JOHN W, TATE Civil Action No.: 09-2440 (PGS)

Plaintiff.

MEMORANI)UM & ORI)Ek

vs.

MORRIS COUNTY PROSECUToRS

OFFICE. et al..

Defendants.

ShERIDAN, U.S.D.J.

This matter comes before the Court on a Motion to Dismiss the Complaint of Plaintiff

John W. Tate (Plaintiffl. filed by State Defendants Office of the Attorney General (OAG);the 1)ivision of Youth and Family Services (DYFS); I)eputy Attorneys General Patricia Parker.

Ester Bakyoni. and Martin Mooney: and former and current DYES employees Joanne Graves,

Lisa Finnegan, Grace Lundry, Laura Eure, and Jackie Mathes. (ECF No. 110.).

I.

The allegations in Plaintiffs complaint arise from his May 2003. arrest, incarceration,

interrogation, and criminal prosecution. On May 20. 2003, Plaintiff was arrested on Warrant No.

W409580 and ifltelTOgated by Morris County Prosecutors Office (MCPO) detectives for alleged

sexual assault, sexual contact. and endangering the welfare of a minor. The interrogation was

conducted by Detective Stephen Wilson, who was acting under the control of Assistant
after any conversation or interrogation. On the same day. the MCPO, through Detectives Wilson

and George Botsko. lingerprinted Plaintiff even though Plaintiff had refused to do so without an

attorney present.

In June 2003. a Morris County Grand Jury indicted Plaintiff lbr sexual assault. sexual

contact, and endangering the welfare of a minor, This indictment was dismissed on October 23,

2004, for constitutional violations, grand jury abuse, and prosecutorial misconduct by the

prosecutor. Plaintiff was re-indicted in October 2004. During both indictments, Plaintiffasserted that the Grand Jury was never informed of relevant facts and information, known and in

the possession of the OAG, DYFS. and a number of other parties. On June 4, 2009. Plaintiff

accepted a plea and pled guilty to N.J.S.A. 9:6-3. Fourth Degree Child Neglect.

On October 1 8, 2006, Plaintiff tiled a complaint against the Morris County Prosecutor’s

Office, Assistant Prosecutor Calderwood, and Detective Wilson in a matter captioned Tate v.

MCPO, Superior Court ofNew Jerset. Law Division, Morris County, Docket No. MRS-L-2967-

06. Plaintiff alleged that during the May 20. 2003 incident. Defendants engaged in perjury,

prosecutorial misconduct, flaurant grand jury abuse. constitutional violations: failed and refused

to present known exculpatory evidence to the grand jury: secured illegally obtained e idence:

interrogated Plaintiff without inlorming him of his Miranda rights: and did not record the

interrogation, despite Plaintiffs request. The Honorable David B. Rand, J.S.C. granted
including MCPO, OAG, DYFS, and the individual Defendants mentioned above, alleging a

violation of his Miranda rights, malicious prosecution, and denial of a speedy trial. See Tale v.

Morris Cnty Prosecutor’i Office, 284 Fed. Appx. 877 (3d Cir. 2008). Similar to this case,

Plaintiffs complaint alleged that those claims arose from the May 20. 2003 arrest, interrogation,

and prosecution. On April 17, 2007, the federal action was dismissed by Hon. Susan Wigenton,

U.S.D.J. Plaintiff appealed to the Court of Appeals of the Third Circuit, which remanded a

limited part of the matter “to afford Plaintiff an opportunity to file a single concise amended

complaint asserting claims he believes he may have regarding the denial of access to legal

materials and physical treatment while Plaintiff was incarcerated as a pretrial detainee at the

Morris County Correctional Facility.” Id at 880. The Third Circuit directed Plaintiff to only

allege a cause of action against the prison personnel. On September 15, 2008, Plaintiff

disregarded the Third Circuit’s directive and filed an Amended Complaint, which named the

same State Defendants and re-alleged the same claims that had been previously dismissed by

Judge Wigenton. Accordingly, Judge Wigenton dismissed Plaintiff’s Amended Complaint on

October 7,2008.

Despite the prior rulings, the Plaintiff filed this current complaint on February 9, 2010.

Plaintiff alleges that the OAG, DYFS, and the individual Defendants (1) violated his

constitutional rights under 42 U.S.C. § 1983, (2) violated his Due Process rights, (3) engaged in

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Rule of Civil Procedure 1 2(b)(6) allows a court to dismiss a complaint for failure to state a claim

upon which relief can be granted. When considering a I 2(b)(6) motion to dismiss. the Court

must accept as true all allegations in the complaint and draw all reasonable inferences in favor of

the non-moving part. See .4shcro/t v. Iqbal. 129 S. Ct. 1937, 1949-50 (2009); Bell At!. Corp. v.

Tiomb1v, 550 U.S. 544, 555 (2007). A complaint survives a motion to dismiss if it “contain[sJ

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.”

Jqha!. 129 S. Ct. at 1949 (quoting 7’wombl’. 550 U.S. at 570). The plausibility standard requires

that the facts alleged “allow[j the court to draw the reasonable inference that the defendant is

liable for the conduct alleged” and demands “more than a sheer possibility that a defendant has

acted unlawfully.” Id. “A pleading that offers labels and conclusions’ or a formulaic recitation

of the elements of a cause of action will not do.” Id. (quoting Twombly, 55 U.S. at 555). When

evaluating a motion to dismiss, “courts generally consider only the allegations in the complaint.

exhibits attached to the complaint. matters of public record. and documents that form the basis of

the claim,” Lurn v. Bank ofArn,, 361 F.3d 217, 222 n.3 (3d Cir. 2004).

III.

The OAG. DYFS. and the individual Defendants assert Plaintiff’s claims against them

should be dismissed. pursuant to Federal Rule of Civil procedure l2(b)(6). for a multitude of

reasons, one of which is res/udicata. Res judicata applies when there has been “ 1) a final

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judicala. The claims against the State Defendants were dismissed by Judge Wigenton in the

federal action; Plaintiff has named the same parties in the current suit as in the October 2006

action; and this current suit is based on the same causes of action -- violation of constitutional

rights under 42 U.S.C. § 1983 and state tort claims arising from Plaintiffs May 20, 2003 arrest,interrogation, and subsequent prosecution. Further, the current suit is barred due to issue

preclusion, which prevents parties from re-litigating an issue that has already been litigated. Thefollowing requirements for its application are “(1) the issue sought to be precluded is the same as

that involved in the prior action; (2) that issue was actually litigated: (3) it was determined by a

final and valid judgments; and (4) the determination was essential to the prior judgment.”

BurIinion A’ KR. (‘a. v. Th’undai Mere/i. Marine Co., 64 F.3d 1227, 1231-1232 (3d. Cir. 1995).

A litigant may also be prevented from bringing a suit for claims presented and lost in a prior

proceeding against a different opponent. See Alevras v, Tacopina, 399 F. Supp. 2d 567, 574

(D.N.J. 2005) “A party who has had one fair and lull opportunity to prove a claim and has failed

in that effort should not be permitted to go to trial on the merits of that claim a second time.”).

Blonder-Tongue Labs, Inc. i’. Univ. ofIlL Found., 402 U.S. 313, 324 (1971). With regard to the

case at hand. the two major issues of whether the Defendants have violated 42 U.S.C. § 1983 and

slate tort laws have already been litigated and dismissed by Judge Wigenton.
Congress did not set forth a statute of limitations to govern §1983; rather, Federal Courts

look to the relevant state statute of limitations. Wilson v. Garcia. 471 U.S. 261 (1985). Actions

filed under § 1983 are governed by the two year limitations period applicable to the state’s

personal injury claims. Id. at 276-78 (N.J.S.A. 2A:14-2), In addition, the civil rights and tort

claims that are alleged are characterized as personal injury actions, so they are governed by thesame. Wilson, 471 U.S. at 276-78. Further, any state law tort claims against public entities and

employees are subject to a two year statute of limitation. See N.J.S.A. 59:8-8(b). Finally, the

Court of Appeals for the Third Circuit has recognized that the statute of limitation for an abuse

of process claim is two years. Wilt: v. Middlesex Cnry. OffIce. 249 Fed. App’x 944. 948-49 (3d

Cir. 2007); see also Cito v, Bridgewater Twp. Police Dep ‘t, 892 F.2d 23, 25 (3d Cir. 1989).

All of the claims alleged by Plaintiff arise between the time of his initial interrogation

(May 20, 2003) and the date the indictment was dismissed (October 2004). Plaintiff filed his

initial State and Federal Complaints in October 2006, but those claims were dismissed except for

a claim against correction officials. Here, the Complaint was tiled in February. 2010 — far after

the date on which the limitation period expired.

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r PETER G. SHERIDAN, U.S.DJ.

Jtmr2L2011