OPINION
I. INTRODUCTION
Plaintiff Gary L. Stolinski is a Sergeant with the New Jersey State Police. On July 15, 2005, a New Jersey state grand jury indicted him on three criminal counts relating to his entering false information on credit card applications. One count of the indictment was based on Stolinski having obtained the social security number of an Arizona resident to commit identity theft. The charges against Stolinski were ultimately dismissed by the prosecutor when she discovered that, with respect to the identity theft charge, Stolinski had not obtained personal information from the Arizona resident; instead he had entered his business’s tax ID in the application’s space for a social security number, which tax ID is coincidentally identical to the Arizona resident’s social security number.
Plaintiff filed this action for malicious prosecution, among other claims, against
The principal issue to be decided is whether New Jersey law permits recovery for malicious prosecution for an individual charged in a multi-count indictment for which probable cause was lacking for a charge that carried a lower maximum penalty than at least one of the charges for which probable cause was present.
For the reasons explained below, the Court will grant Defendants’ motions for summary judgment as to all claims, which moots the motion to strike the expert report.
II. BACKGROUND
A. Mount Laurel Police Department Investigation
On August 11, 2004, an individual living in Arizona, known herein as LG, filed a police report with the Flagstaff Police Department stating that American Express had informed him that someone in Mt. Laurel, New Jersey was using his personal information in an attempt to obtain a credit card. (PL’s Ex. B4, Flagstaff Police Report, JP2801-2802.) 2 On the same day, LG also contacted the Mount Laurel police department. (Pl.’s Ex. B3, Statement of Det. Pincus, March 15, 2005, JP2580-2588, at JP2582.)
After a brief investigation, on September 20, 2004, Detective Edward Pincus went to the address listed on the credit applications and interviewed the man living there, who turned out to be Plaintiff, Mr. Stolinski. (Id. at JP2583.) When Det. Pincus advised Stolinski that he was investigating identity theft, Stolinski identified himself and informed Det. Pincus that he was a State Trooper. (Id. at JP2584.) Mr. Stolinski told Det. Pincus that he had put the tax ID number of his business, GS Tickets, in the space for the social security number by mistake. At that time, the other errors on the application, including an incorrect date of birth and misspelled name, were not discussed. (Id.; Ex. B-4, Reportable Incident Form 2004-0805, JP2797-2798.)
As it turns out, Plaintiffs tax ID number is numerically identical to the social security number of the Arizona resident. In the investigation that followed, the principal investigator failed to verify this exculpatory fact. As explained below, this failure, along with false grand jury testimony about the tax ID, resulted in Stolinski being charged with identity theft in addition to other charges related to credit card fraud.
On September 21, 2004, Detective Sergeant William Rudderow of the Mt. Laurel Police Department contacted Defendant Daniel Hurley at the New Jersey State Police, Office of Professional Standards, and advised Hurley of the status of the case involving Stolinski. (Mt. Laurel Police Report at JP01419.) Though initially assigned to Acting Detective Sergeant John McNally, at some point between December 2004 and January 6, 2005, the investigation was transferred on the order of Defendant Bradford Koshland to Koshland’s Unit, and Koshland assigned Defendant Pennypacker to investigate. (Koshland Dep. 65:7-13, 68:24-69:1; Pennypacker Dep. 30:13-31:2.)
Some of the details of Pennypacker’s investigation are disputed or unclear. But key facts are undisputed. First, Penny-packer learned that Stolinski submitted at least ten credit card applications between May 16, 2004 and September 1, 2004 which contained incorrect and conflicting information. Stolinski admits that he filled out more than ten credit applications (Stolinski Dep. 60:21-22), and that he made a substantial number of errors with respect to his name and his date of birth. {Id. 65:2-10, 69:10-15, 70:23-71:15.) 3 Although Stolinski disputes the intentionality of any of the errors, it is undisputed that Stolinski submitted applications with transposed numbers in his tax ID and social security number, transposed digits in his own birthday, and incorrect variations on his name. According to the evidence relied upon by the police, he also identified GS Tickets as being structured variously as a corporation, a partnership, or a sole proprietorship, stated different amounts of business revenue, and entered his business’s tax ID number where a social security number was to be entered.
It is also undisputed that GS Tickets, the business whose tax ID is at the center of this case, exists on paper. But GS Tickets never did any business. It is a sole proprietorship that never generated any revenue. (Stolinski Dep. 11:5-7, 12:24-13:6.) Despite being named GS Tickets, according to Stolinski, it was “supposed to sell individual items, nothing specific, you know, household items, whatever it was.... [J]ust basically anything, you know, buy and sell, eBay stuff, that kind of stuff, nothing specific .... to sell things through the internet or to, you know, friends, other persons, nothing specific.” {Id. 9:13-25.) GS Tickets never bought or sold any item, and had no website. {Id. 10:11-11:2.)
Finally, it is undisputed that Pennypacker was aware of the fact that Stolinski was substantially indebted (in the amount of approximately $53,000 excluding his home mortgage) and was behind on his payments by thousands of dollars when he was submitting these multiple erroneous credit applications. (Ex. B-6, OPS Memorandum, JP 4667.) Mr. Stolinski filed for bankruptcy on December 3, 2004, though it is unclear when Pennypacker learned this. (Pl.’s Ex. B-6, Chapter 13 Plan, JP3817.)
Plaintiff maintains that Pennypacker knew that a FinCEN Query would not verify the validity of the tax ID. No part of the request form indicates that it seeks to verify the tax number, and the report that the request generated makes no mention of the tax ID. The only plausibly relevant statement on the report is that “A check of D & B’s public records database indicates that no filings were found for GS Tickets,” but the next paragraph states that the database includes “business-related suits, liens, judgments, bankruptcies, UCC financing statements and business registrations from every state and the District of Columbia.” (Investigation Report at JP 2595.) Pennypacker’s contemporaneous discussion of the FinCEN report in his Investigative Report is somewhat brief, and does not note the presumably important finding he believed he made from the report that the tax ID allegedly used by GS Tickets did not exist. During his investigation, Pennypacker never contacted the IRS to determine whether or not there was a federal tax ID for GS Tickets (Pennypacker Dep. 69:1-11.) Pennypacker also never interviewed Stolinski for his investigation. He e-mailed Captain Daniel Hurley for permission to do so, but permission was denied because “it appeared] that the evidence [was] overwhelming and there [was] little the Trooper could add to a statement to assist his cause.” (Penny-packer Dep. 88:5-89:8.)
C. Drafting of Indictment
On May 13, 2005, Pennypacker met with Deputy Attorney General Susan Ease.
4
Three days later, apparently having reviewed Pennypacker’s Investigation Report, DAG Ease proposed an indictment which included charges for credit card fraud and official misconduct as well as a charge for identity theft, which requires the accused to have obtained the personal information of another.
See
N.J. Stat. Ann. § 2C:21-17a(4). Plaintiff maintains that DAG Ease and Pennypacker collaborated on the drafting of the prosecution memo and indictment, but there is no evidence that Pennypacker did anything more than review the documents. (Defs.’ Ex. A-l, Memorandum of May 16, 2005, JP00036; Defs.’ Ex. A-l, Memorandum of June 29, 2005, JP00088; Pennypacker Dep. 128:7-21.) The six-page prosecution memo discusses use of a “false social security number,” among other false information, but does not state that this number was obtained from LG. (Ex. B-l, Prosecution Memorandum of July 8, 2005, JP00129-JP00134.) The memo reports Stolinski as claiming that there was a “misunderstanding” regarding the tax ID number but does not state whether the number was in fact the tax ID number of GS Tickets, and does not discuss how the
D. Arrest
Pennypacker delivered a target letter to Stolinski, but did not arrest him. (Penny-packer Dep. 87:14-88:4.) Stolinski was subsequently required to be “processed” by the New Jersey State Police, which included a visit to the station during which his finger prints were taken. (Stolinski Dep. 92:10-15.) He cannot recall who told him he must do so, he was free to leave, and he denies ever having been arrested. (Id.)
E. Grand Jury
Before the grand jury, Pennypacker testified about his investigation. He testified about the credit application which American Express had alerted LG about, containing the name “G. Stolins,” an incorrect date of birth, and having LG’s social security number entered in both the social security number and tax ID slots. (Ex. B-1, Grand Jury Transcript, JP2431-2475, at JP02440.) He also testified at length about other credit applications with incorrect information made by Stolinski. Importantly, he told the grand jury about Stolinski’s explanation that he put his business tax ID in the wrong slot by mistake. (Id. at JP02445.) This revelation led to the logical follow-up question from the Grand Jury regarding whether or not GS Tickets existed and whether that was its real tax ID number. (Id. at JP02469-70.) Consequently, DAG Ease recalled Penny-packer and had the following exchange:
Q: This was another question, do you know whether GS Tickets exists and has a tax ID number?
A: Right. We did a financial lookup on Sergeant Stolinski, and in April of '04 he registered himself as the president of GS Tickets. GS Tickets’[s] registered business address is 407 Trescott Place, Mount Laurel, New Jersey. Did that answer the question?
Q: Yes. Does it have a tax ID number?
A: No.
Q: So, in the event a business does not have a tax ID number, what do they usually use?
A: Their Social Security number.
(Id. at JP02471.)
Plaintiff was indicted on July 15, 2005. He was charged with Fourth Degree Credit Card Fraud for “knowingly [making] or [causing] to be made, either directly or indirectly ... and with the intent that it be relied upon ... false statements] in writing respecting his identity or financial condition ... with purpose to procure the issuance of a credit card from the American Express Corporation” between May 16, 2004 and September 1, 2004.
5
(Indictment at 3.) This charge was supported by Pennypacker’s testimony regarding the evidence of applications containing false names, birth dates, and other information, including but not limited to the July 31, 2004 application involving LG that was the initial cause of the investigation. (Grand Jury Transcript at 2443-66.) Stolinski was also charged with Second Degree Official Misconduct for “purposely and knowingly, while on duty and utilizing State of New Jersey computer equipment,
F. Dismissal of Charges
On December 2, 2005, the prosecutor dismissed all of the charges upon determining that Stolinski had been issued a tax ID number corresponding to LG’s social security number. (Pl.’s Ex. B-5, Supplemental Internal Investigation Report, JP03471-3511, at JP03471-72.) The reason for dismissing the charges unrelated to obtaining LG’s personal information is unclear; Pennypaeker’s supplemental investigative report relates that DAG Ease “believed the employer identification number was exculpatory evidence,” but does not explain why Ease thought the tax ID was exculpatory as to the other counts of the indictment. (Id. at JP3472.) Indeed, the employer identification number evidence was not necessary to prove any other element of the remaining charges for credit card fraud and official misconduct, discussed below. Pennypacker was reinstated to his position on January 5, 2006.
G. Stolinski’s Theory of Malice
Plaintiff claims that Defendant Eoshland, acting as Pennypacker’s supervisor, compelled Pennypacker to ignore the evidence regarding the tax ID number and lie to the Grand Jury. Plaintiff argues that Eoshland was biased against him because of an alleged affair that Plaintiffs father had with Eoshland’s ex-wife, and that this bias led Eoshland to induce Pennypacker to maliciously investigate and help prosecute Plaintiff.
Stolinski’s father, William Stolinski Sr., avers that he engaged in an affair with Marriane Noakes from 1979 to 1985, including through part of the marriage between Ms. Noakes and Defendant Eoshland from 1981 to 1991. (Stolinski Sr. Deck ¶ 5.) Ms. Noakes filed for divorce in August 1991.
The sole evidence that this alleged affair was known to Eoshland is Stolinski Sr.’s speculation that, although he has never met Eoshland, he believes “that he knew and knows of my relationship with Marianne Eoshland.” (Stolinski Sr. Deck ¶ 5.) The evidence that Eoshland instructed Pennypacker to improperly investigate Stolinski’s son in an inter-generational revenge plot is an e-mail in which Eoshland indicates that creating a concrete investigation plan would make Pennypacker look good for those in charge of promotion (Pk’s Opp. Br. Ex. E at 4); an email characterizing Pennypacker as “chomping at the bit” to complete his investigation of Stolinski
(id.
at 12); and the fact that Pennypacker received a promotion in De
Koshland testified that he had heard the name Stolinski from his former wife, that she had “mentioned that name and many others troopers’ names that used to work on the New Jersey Turnpike years back, in the seventies, I guess, that developed a friendship with her.” (Koshland Dep. 52:2-53:1.) Koshland denied knowing of any romantic relationship. (Id. 58:5-60:18.) Koshland says Pennypacker was always eager in his investigations, (Id. 112:19-113:3), and that he did not promise him anything, nor did he have the authority to promise him anything related to the investigation (Id. 113:4-14.)
H. Expert Report of Edward Mamet
Plaintiff hired a retired NYPD Captain to write an expert report opining on whether the various aspects of Pennypacker’s investigation were contrary to normal police procedure (Docket Item 93, Ex. A (“Mamet Report”)). Mr. Mamet opines that the transfer of the investigation from McNally to Pennypacker, the supervision of that investigation by Koshland, Penny-packer’s failure to properly verify the tax ID number, the denial of permission for Pennypacker to interview Stolinski, and Pennypacker’s subsequent investigation of Stolinski after the charges were dismissed were all improper police procedure. Mr. Mamet also opines that Pennypacker’s behavior is indicative of his trying to get a promotion.
Defendants move to strike this report as mostly net opinion that fails to meet the requirements for expert testimony. Since Plaintiff does not rely on the expert report in opposing summary judgment, and the Court finds that summary judgment is warranted for reasons discussed below, the Court does not reach the question of the expert report. 8
III. SUMMARY JUDGMENT
A. Standard of Review
Summary judgment is appropriate
“if
the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is “material” only if it might affect the outcome of the suit under the applicable rule of law.
Anderson v. Liberty Lobby, Inc.,
B. Malicious Prosecution
To prevail on a malicious prosecution claim under New Jersey law, a plaintiff must prove “(1) that the criminal action was instituted by the defendant against
1. Malice
Plaintiffs evidence of malice on the part of Defendants consists of the claim that Pennypacker lied to the Grand Jury regarding whether GS Tickets had a tax ID number matching LG’s social security number, that Pennypacker deliberately failed to properly verify the existence of the tax ID, and that Pennypacker was motivated by a desire to get a promotion from Koshland who wanted an against Stolinski because of the alleged affair between Stolinski Sr. and Koshland’s ex-wife.
Pennypacker was aware of Stolinski’s claim that the number matching LG’s social security number was in fact his company’s tax ID. And yet, Pennypacker’s only attempt to verify this critical fact was to examine a report that did not discuss the tax ID number at all. If Pennypacker understood the report to be stating that GS Tickets had no tax ID number, there is not yet any explanation for why his investigative report makes no mention of this critical finding. A reasonable jury could believe based on the current record that Pennypacker either knew, or was willfully blind to the fact that the tax ID number was legitimate, and therefore lied to the Grand Jury.
However, the rest of Plaintiffs theory of malice is not supported by evidence. Unlike any number of other possible false crimes, this is not a case where an officer’s testimony might actually result in conviction, since it would inevitably be revealed that the tax ID number was legitimate. Thus, Plaintiff would have to convince a jury that Koshland hatched a revenge plot involving having a subordinate lie about an
While Pennypacker’s questionable use of the FinCEN report and his grand jury testimony creates a dispute of material fact over Pennypacker’s malice, Plaintiff has failed to adduce evidence showing that any of the other Defendants shared this mental state. Without proof of actual malice on the part of the supervising officers, there can be no malicious prosecution claim under New Jersey law.
See
N.J. Stat. Ann. § 59:3-8 (immunizing public employees from suit based on institution of judicial proceedings in the absence of actual malice);
see also Hoag v. Brown,
2. Lack of Probable Cause
The other element of malicious prosecution in dispute is the requirement of a lack of probable cause. As explained below, probable cause existed as to the official misconduct and credit card fraud charges, which means that Defendants are entitled to summary judgment.
a. Probable Cause Defined
New Jersey courts define probable cause as “facts such as to lead a person of ordinary prudence to believe on reasonable grounds the truth of the charge at the time it was made.”
Brunson v. Affinity Fed. Credit,
Probable cause is a sufficiently fact-laden issue as to typically be a question for the jury; however, summary judgment is appropriate, as with any other issue, if taking all of Plaintiffs allegations as true and resolving all inferences in his favor, a reasonable jury could not find in Plaintiffs favor.
See Montgomery v. De Simone,
b. Probable Cause as to Charges or Proceedings
Both parties take the position in briefing and at oral argument that the question as to probable cause is whether Defendants had probable cause to believe Plaintiff was involved in criminal activity. However, it is an open question whether a malicious prosecution claim must negate probable cause as to criminal activity generally, or whether there are circumstances in which a plaintiff need only show that some particular charge in a multi-count indictment was made without probable cause even when probable cause is present as to other
The foundational New Jersey Supreme Court case explaining the common law tort of malicious prosecution speaks of “probable cause to set the action in motion.”
Lind v. Schmid,
67 N. J. 255,
The federal courts’ approach to this problem is instructive. For a § 1983 malicious prosecution claim in the Third Circuit, district courts are asked to carefully assess the factual context to determine whether the Plaintiff must show a lack of probable cause as to every count, or only as to one or more counts.
See Kossler v. Crisanti,
Though authority is split, the majority of jurisdictions that have decided this question fall on the side of the fact-sensitive approach as exemplified by the Third Circuit’s approach to § 1983 malicious prosecution, in which the facts of the malicious prosecution claim are examined to determine whether a lack of probable cause as to an individual count is a sufficient basis for the claim.
See Johnson,
The question is which line of precedent New Jersey would follow.
11
This Court sitting in diversity need not make a definitive prediction, however, because, applying the fact-sensitive approach to this case shows that this case is not one that warrants examination of probable cause for each count, even if New Jersey courts were to apply that approach. The paradigm case of when it makes sense to examine probable cause for an individual count is when an illegitimate and unrelated count carrying a higher penalty or causing greater reputational damage is maliciously added as a direct result of a defendant misleading the public prosecutor.
See Johnson,
In this case, the facts weigh against application of the count-by-count approach. First, as distinct from the evidence that Pennypacker misled the grand jury, there is no evidence that Pennypacker misled or manipulated DAG Ease. It was DAG Ease’s responsibility to recognize that the investigation had revealed no evidence that Stolinski had some way of accessing LG’s personal information, and that nothing in the investigation report showed that the tax ID story had been discredited, but she elected to bring the charges anyway. Perhaps, since this identity theft crime had been added to the statute only a few year previous in 1999, DAG Ease failed to appreciate that entering a nine-digit number which is likely to match another individual’s social security number may be an effective strategy for fraud, but it does not satisfy the statutory language. 1999 NJ Sess. Law Serv. Ch. 117.
Second, the crime charged is closely related to the other charges: the difference between two different kinds of fraud is much less than the difference between disorderly conduct and violence,
Posr,
Consequently, under the present circumstances, the presence of probable cause as to any significant offense charged in the multi-count indictment will be sufficient to defeat a claim for malicious prosecution upon any of the charged offenses.
c. Existence of Probable Cause
A reasonable jury could find that Pennypacker lacked probable cause as to the identity theft charge. The only evidence suggesting that Stolinski obtained LG’s private information is that Stolinski entered a number on credit applications matching LG’s social security number. In the absence of other facts known to an investigator, this would likely constitute probable cause for identity theft, even though Stolinski did not enter any other information matching LG’s identity. But in this case, Pennypacker was aware of Stolinski’s claim that these numbers were also the tax ID issued to his business (as evidenced by, among other things, his purported verification of the number). A reasonable jury could find that the facts known to Pennypacker at the time did not warrant a prudent officer in believing that Stolinski had committed identity theft. In the absence of any suggestion of how it was that Stolinski would have obtained the information from an elderly man in Arizona, and in the absence of any other information related to LG entered on the form, and in the presence of the explanation offered by Stolinski that the number
However, no reasonable jury could find that Pennypaeker lacked probable cause to believe credit card fraud and official misconduct had occurred. Credit card fraud requires only that a person make a false statement respecting his identity or financial condition knowing it to be false and with intent that it be relied on by the potential creditor.
See
N.J. Stat. Ann. § 2C:21-6b. As a matter of law, based on the undisputed facts, a reasonably prudent officer could conclude that the magnitude and nature of the pervasive pattern of material errors on the credit applications submitted by Stolinski, along with the other circumstances of this case such as his bleak financial situation, were evidence of a deliberate scheme to obtain credit under a false identity or based on fraudulent financial information while maintaining plausible deniability.
12
See, e.g., United States v. Nichols,
As discussed above, in this case it is sufficient that Defendants identify probable cause as to any comparably significant or more significant offense in the indictment to defeat a claim for malicious prosecution. Here, the facts demonstrate that there was probable cause to indict Stolinski for the significant and related charges of credit card fraud and official misconduct, the latter of which carried a maximum penalty greater than the identity theft count. Stated differently, the single charge on which probable cause was absent was not the most significant charge in this multi-count indictment; Stolinski legitimately was called upon to defend against this indictment. Defendants are therefore entitled to summary judgment because probable cause existed for counts other than identity theft.
d. Relevance of Malice to Probable Cause
Plaintiff argues that proof that Penny-packer misled the grand jury is itself proof of a general lack of probable cause. This argument rests on a false legal premise, namely, that there is a relationship between subjective beliefs and probable cause.
At common law, a plaintiff could “show the lack of probable cause either by showing that the actual facts did not amount to probable cause (an objective inquiry) or by showing that the defendant lacked a sincere belief that probable cause existed (a subjective inquiry).”
Wyatt v. Cole,
Three considerations counsel for the use of objective probable cause. First, if a malicious prosecution claim turned solely on the subjective beliefs of the defendant, then there would be no objective standard which an official could meet to insulate himself from such suit; consequently, many cases would be a matter of the credibility of the testimony of the official who instituted the proceedings about their subjective mental state, increasing the chilling effect of such malicious prosecution suits.
See Lind v. Schmid,
Second, the requirement of objective probable cause acts as a test for whether damage was actually caused by the malicious prosecution. If there is objective probable cause, the suit could legitimately have been brought whether there was malice or not. But if objective probable cause is lacking, proof of malice becomes a much stronger showing that in the absence of such malice the malicious prosecution plaintiff would have been unharmed. Finally, it would be odd if the element of probable cause served the purpose of describing a particular mental state or intentionality that must be present in the mind of the defendant, since there is already a requirement of actual malice. Lack of probable cause would virtually cease to be an independent element if lack of subjective belief in guilt were sufficient, as that mental state will nearly inevitably accompany charges brought maliciously.
Unfortunately, the purpose of the requirement of lack of probable cause has long since ceased to be discussed in the precedent, making it more difficult to determine for what purposes New Jersey courts apply this element of the tort. However, New Jersey Courts have consistently used the language of objective probable cause when describing the tort of malicious prosecution.
See, e.g., LoBiondo v. Schwartz,
Plaintiff relies on
Peterson v. Bernardi, 719
F.Supp.2d
419
(D.N.J.2010), for the proposition that the presence of malicious fabrication of evidence can permit a reasonable jury to conclude that the officers proceeded without probable cause.
Peterson,
however, conflates the presumption of probable cause with actual probable cause. In
Peterson,
the Court relied on precedent stating that malice in the form of fabricating evidence or lying overcomes the presumption of probable cause which arises when an indictment issues.
Id.
at 428. The reason malice rebuts that evidentiary presumption in those cases is that an indictment tainted by false evidence does not warrant an inference that it must have been procured based on probable cause.
See, e.g., Hinchman v. Moore,
Unlike the case in which fabricated evidence undermines reliance on an indictment, fabricated evidence is logically irrelevant to whether undisputed real evidence creates probable cause in the modern constitutional sense.
14
“Whether probable cause exists depends upon the reasonable conclusion to be drawn from the facts known to the arresting officer at the time of the arrest.”
Id.
(citing
Maryland v. Pringle,
Therefore, even if a reasonable jury could find that lying about the identity theft count also casts doubt on Pennypacker’s subjective belief in Stolinski’s guilt on the other charges, this would not be a sufficient basis for concluding that Penny-packer lacked probable cause as to those other charges.
C. Abuse of Process
To establish a claim for abuse of process, Plaintiff must show: “1) an ulterior motive and 2) some further act after an issuance of process representing the perversion of the legitimate use of process.”
See Mosley v. Delaware River Port Authority, J.P.,
No. 99-4147,
Plaintiff explains that this claim is based on Pennypacker’s continued investigation and pursuit of a federal indictment after the state indictment was dismissed, and the fact that Pennypacker “continued to access Sgt. Stolinski’s mail, through use of a ‘Mail Cover’ subsequent to the indictment.” (FL’s Opp. Br. 31.) The continued investigation and pursuit of federal indictment do not constitute abuse of process because it involves no use of process, as that term is understood in New Jersey law.
See Ruberton,
Mail cover “is the process by which a nonconsensual record is made of any data appearing on the outside cover of any sealed or unsealed class of mail matter, or by which a record is made of the contents of any unsealed class of mail matter as allowed by law, to obtain information” for various law enforcement purposes.
See
39 C.F.R. § 233.3;
Paton v. La Prade,
In addition to the fact that the processes alleged to have been abused do not fall ■within New Jersey’s abuse of process tort, Plaintiff does not adduce any evidence or present any argument that Pennypacker’s activities were a “perversion of the legitimate use of process”
(i.e.,
that his activities exceeded the scope of what was reasonably necessary to continue to investigate objectively reasonable concerns about Stolinski’s false applications), as required by New Jersey law.
Mosley,
D. § 1983 False Arrest
To prove a claim for false arrest, a plaintiff must prove two elements: (1) that there was an arrest; and (2) that the arrest was made without probable cause.
Dowling v. City of Philadelphia,
In order to prove a cause of action for civil conspiracy under § 1983, a plaintiff must adduce evidence of both the elements of cause of action under § 1983 and conspiracy.
See Marchese v. Umstead,
F. False Light Tort
The tort of false light requires a showing that “the false light in which the other was placed would be highly offensive to a reasonable person” and “the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.”
Leang v. Jersey City Bd. of Educ.,
G.Invasion of Seclusion Tort
This tort “imposes liability on ‘one who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns ... if the intrusion would be highly offensive to a reasonable person.’ ”
Leang,
IV. CONCLUSION
The only claim approaching viability in this case is Plaintiffs malicious prosecution claim. But since probable cause existed to
The accompanying Order will be entered.
Notes
. The Court previously dismissed the claims against the State of New Jersey, the Office of Professional Standards, Sgt. William Rudder-ow, and the individual Defendants in their official capacities. [Docket Item 34.] The Court also dismissed all claims except for the § 1983 false arrest claim, § 1983 conspiracy claim, state law malicious prosecution and abuse of process claims, and invasion of privacy claims.
. The Court’s references to items by JP number refer to the Bates-stamped documents produced in discovery and provided by the parties for this motion.
. The parties squabble over thirty-seven printouts described as credit applications submitted by Stolinski in Pennypacker’s Statement of Undisputed Material Facts, and summarized in a chart by his counsel at Pennypacker’s Exhibit E. Plaintiff argues that Defendants have not produced any witnesses who can authenticate the records, and therefore they should not be considered for this motion. But the documents are not being submitted to show the truth of their content, but rather to show what information the police investigators relied on. And even if these documents are ignored, they are not necessary to establish the undisputed fact that Plaintiff submitted multiple applications containing false information.
. Evidence regarding what information was exchanged between the two is purportedly found on JP2534, but that part of the document as submitted to this Court is obscured.
. See N.J. Stat. Ann. § 2C:21-6b (“A person who makes ... any false statement in writing, knowing it to be false and with intent that it be relied on, respecting his identity or that of any other person, firm or corporation, or his financial condition or that of any other person, firm or corporation, for the purpose of procuring the issuance of a credit card is guilty of a crime of the fourth degree.”). A copy of the indictment can be found at Defendant Pennypacker's Reply Exhibit 1.
. See N.J. Stat. Ann. § 2C:30-2 ("[W]ith purpose to obtain a benefit for himself ... He commits an act relating to his office but constituting an unauthorized exercise of his official functions, knowing that such act is unauthorized or he is committing such act in an unauthorized manner.”).
. See N.J. Stat. Arm. § 2C:21-17a(4) ("Obtains any personal identifying information pertaining to another person and uses that information ... in order to assume the identify of or represent himself as another person, without that person's authorization and with the purpose to fraudulently obtain or attempt to obtain a benefit or services.”)
. In any case, Defendants correctly observe that Mamet's report is little more than personal speculation based on the assumptions Plaintiff asked him to make.
. Although Plaintiff brings two separate state law malicious prosecution claims — one under the New Jersey Constitution (Count V) and the other under the common law (Count VI)— both parties discuss them as if they were a single claim with the same elements. This Court is not aware of any precedent suggesting the proofs would differ in any way.
See Heck v. Humphrey,
. The question would be whether, under New Jersey law, the testimony of a police officer as complaining witness can be used to prove causation in light of both witness immunity and the endorsement of the charges by the public prosecutor.
See Malley v. Briggs,
. The nature of the malicious prosecution tort in the context of the modem criminal justice system involving public prosecutors is that those individuals other than public prosecutors who are involved in bringing charges are rarely in control of the formal charges made in an ultimate indictment. Thus, in most cases, there is no need to distinguish between probable cause that some crime is committed and probable cause that particular
. The prosecution memo outlines how Stolinski submitted six false credit card applications while on duty, and several more from home, using false names (i.e., Stolinki, Stolins, Stolinsk), false birth dates (usually by inverting two of the digits), and false social security numbers. (Prosecution Memo at JP129.) In his deposition for this action, Stolinski admitted the repeated alterations in his own name, entering of incorrect income amounts, and listing his own year of birth incorrectly ten times. (Stolinski Dep. 54:13-22, 69:10-13, 70:11-15.)
. Even if the common law definition of probable cause still applied in New Jersey, it is unclear whether malice as to one count in a multi-count indictment would be sufficient to undermine probable cause as to the other counts.
. The Court in Peterson also discussed the application of malice to negate probable cause in the qualified immunity context of what a reasonable officer would believe about the law, acknowledging "the counterintuitive possibility that an officer believing in the presence of probable cause could nonetheless fabricate evidence to further strengthen an already strong prosecutorial case,” but deciding that "the doctrine of qualified immunity must not be expanded to absolve objectively bad actors.” Id. at 429 n. 8. This reasoning might be correct in the narrow context of whether an officer who lacked actual probable cause might nevertheless be protected by qualified immunity, because qualified immunity aims to protect officers acting in good faith. But, for the reasons given above, this reasoning cannot be expanded to the question of whether probable cause was actually lacking when it is already present in the undisputed evidence as in this case.
. Because the Court finds that Defendants are entitled to summary judgment on all of Plaintiff's federal claims even without qualified immunity, it need not address whether qualified immunity would otherwise apply.