NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2578-23
DR. TERRY RAMNANAN,
Plaintiff-Appellant,
v.
COLIN KEIFFER, ESQ., individually, DETECTIVE WENDY BERG, individually, DETECTIVE GRACE PROETTA, individually, DETECTIVE JOHN CAMPANELLA, individually, RONALD HAYEK, D.C., individually, UNION WELLNESS CENTER PA LLC, ADAM AWARI, D.C., individually, and ADVANCED CHIRO SPINE CENTER, PC,
Defendants-Respondents. _________________________________
Argued October 1, 2025 – Decided October 24, 2025
Before Judges Mayer, Paganelli and Vanek.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-2146-23.
Joseph Pace (J. Pace Law, PLLC) of the New York bar, admitted pro hac vice, argued the cause for appellant (Joseph & Norinsberg, LLC, and Joseph Pace, attorneys; Diego O. Barros and Joseph Pace, on the briefs).
Justine Longa, Deputy Attorney General, argued the cause for respondents Colin Keiffer, Wendy Berg, Grace Proetta, and John Campanella (Matthew J. Platkin, Attorney General, attorney; Janet Greenberg Cohen, Assistant Attorney General, of counsel; Eric Intriago, Deputy Attorney General, on the brief).
Geoffrey T. Bray argued the cause for respondents Ronald Hayek, D.C., and Union Wellness Center PA LLC (Bray & Bray, LLC, attorneys; Geoffrey T. Bray, on the brief).
Richard A. Greifinger argued the cause for respondents Adam Awari, D.C., and Advanced Chiro Spine Center PC (Law Offices of Richard A. Greifinger, attorneys; Richard A. Greifinger, on the brief).
PER CURIAM
Plaintiff Dr. Terry Ramnanan appeals from three orders, dated March 29,
2024, dismissing with prejudice his complaint against defendants Colin Keiffer,
a Deputy Attorney General for the State of New Jersey, with the Office of
Insurance Fraud (OIF), Wendy Berg, a detective with the OIF, John Campanella,
a detective with the OIF, and Grace Proetta, a detective with the Union County
Prosecutor's Office, who assisted the OIF, (collectively, State defendants),
defendants Ronald Hayek, D.C. and Union Wellness Center PA, LLC
A-2578-23 2 (collectively, Hayek), and defendants Adam Awari, D.C. and Advanced Chiro
Spine Center, PA (Awari). We affirm.
We recite the facts from the motion record as well as two opinions
involving the same parties from the United States District Court for the District
of New Jersey, Ramnanan v. Keiffer, No. 20-cv-12747, 2021 U.S. Dist. LEXIS
121980 (D.N.J. June 30, 2021) (Ramnanan I), and Ramnanan v. Keiffer, No. 20-
cv-12747, 2023 U.S. Dist. LEXIS 52623 (D.N.J. Mar. 28, 2023) (Ramnanan II).
In his state court action, unlike his allegations in Ramnanan I and
Ramnanan II, plaintiff asserts claims against defendants under the New Jersey
Civil Rights Act (NJCRA), N.J.S.A. 10:6-1 to -2. Specifically, plaintiff alleges
fabrication of evidence (Count 1), malicious prosecution (Count 2), deprivation
of substantive due process (Count 3), conspiracy (Count 4), and intentional
infliction of emotional distress (Count 5).
Plaintiff is a New Jersey licensed pain management physician. Hayek and
Awari are chiropractors. The State defendants commenced an investigation into
various medical providers who allegedly committed insurance fraud,
commercial bribery, and participated in an illegal kickback scheme. Hayek and
Awari were included in that investigation.
A-2578-23 3 In 2016, Hayek pleaded guilty to charges of conspiracy, money-
laundering, commercial bribery, and failure to pay taxes. As part of his plea,
Hayek agreed to cooperate with the State defendants regarding the alleged
kickback scheme. Consistent with the plea agreement, Hayek received a
probationary sentence and the State defendants agreed to submit a letter to the
Chiropractic Licensing Board, asking that Hayek retain his chiropractic license
based on his cooperation in the State's prosecution of the kickback scheme.
Hayek implicated plaintiff and other medical providers in the alleged
kickback scheme and other illegal activities as part of his cooperation
agreement. Hayek told the State defendants that plaintiff paid him referral fees
in exchange for referring patients to plaintiff for electrodiagnostic studies and
tests. Hayek, using state-provided equipment, recorded an April 8, 2016
conversation with plaintiff related to the purported fee arrangement.
Based on Hayek's statement and the recorded conversation between
plaintiff and Hayek, Keiffer arranged for a proffer session with plaintiff and
plaintiff's criminal defense attorney. At this session, Keiffer presented a
"Kickback Spreadsheet," detailing various payments based on referral of
patients. Plaintiff denied Hayek's allegations regarding plaintiff's involvement
in payments for patient referrals or any other illegal activities. Plaintiff's
A-2578-23 4 criminal defense attorney told Keiffer the information in the spreadsheet was
fabricated and Hayek lied about his interactions with plaintiff.
In August 2017, plaintiff was charged in a three-count indictment with
third-degree conspiracy, third-degree commercial bribery, and third-degree
criminal running. After the indictment, plaintiff and his new criminal defense
attorney again met with Keiffer. At this meeting, Keiffer provided a "Shared
Claims chart," purportedly providing instances in which plaintiff and Hayek
billed insurance companies for medical procedures, and a "Summary chart,"
listing the names of patients allegedly referred to plaintiff by Hayek. Plaintiff
claimed these documents were also fabricated.
Ten months later, Awari implicated plaintiff in a patient referral for
payment scheme. Awari entered into a plea agreement with the State defendants
to avoid potential criminal charges being filed against him. As part of that
agreement, Awari agreed to cooperate in the State's pursuit of kickback charges
against various medical providers.
In May 2018, the State filed a superseding indictment, charging plaintiff
with conspiracy (Count 1), misconduct by a corporate official (Count 2), health
care claims fraud (Count 3), theft by deception (Count 4), commercial bribery
(Count 5), criminal running (Count 6 and 10), conspiracy (Count 7), healthcare
A-2578-23 5 claims fraud (Count 8), and commercial bribery and breach of duty to act
disinterestedly (Count 9). In seeking an indictment against plaintiff, the State
presented the Kickback Spreadsheet, Summary chart, and Shared Claims chart
to the grand jury. Additionally, Berg testified before the grand jury and
summarized the statements made to the State defendants by Hayek and Awari .
Neither Hayek nor Awari testified at the grand jury proceeding.
A state court criminal judge dismissed the indictment on May 23, 2019,
finding the State misrepresented the statutory law relevant to healthcare fraud
before the grand jury. The criminal court judge concluded the State "left the
grand jurors with [a] patently false impression that the law was in its favor" by
misleading, overstating, and incorrectly advising the grand jury of the applicable
law. The criminal court judge stated:
Had the State not misled the grand jury regarding the law applicable to the charges and had the State not charged defendant improperly with the use of criminal runners, and had the State not . . . overstated the materiality and misled the grand jury with respect to . . . how many, if any, of the insurers would have actually denied . . . these claims, the [c]ourt is not convinced that the grand jury would have indicted the defendant.
In September 2020, plaintiff filed a federal court action against defendants
who are parties to this appeal and other defendants, alleging his personal and
A-2578-23 6 professional reputation was tarnished due to the criminal charges and his
medical practice was ruined. Ramnanan I, at *12-13. In Ramanan I, plaintiff
alleged violation of the NJCRA and violation of his federal civil rights under 42
U.S.C. § 1983, including claims for fabrication of evidence, malicious
prosecution, malicious abuse of process, inducement of false testimony,
conspiracy to violate his civil rights, and a "stigma plus" claim. Id. at *13-14.
The federal judge dismissed plaintiff's claims against the State defendants
without prejudice based on absolute prosecutorial immunity. Id. at 41-42. The
federal judge concluded the State defendants' actions were "carried out in
preparation of, and for use in, grand jury proceedings" and thus immune from
liability. Id. at 24.
In dismissing without prejudice the federal court claims against Hayek
and Awari, the judge held they were not state actors and did not act under color
of law. Id. at 34-35. In rejecting plaintiff's claims that Hayek and Awari were
state actors working in concert with the State defendants to prosecute plaintiff,
the federal judge cited the allegations in plaintiff's federal court action
contending the State defendants coerced Hayek and Awari into testifying against
plaintiff. Id. at 34. The federal judge declined to exercise supplemental
jurisdiction over plaintiff's remaining state law claims. Id. at 40.
A-2578-23 7 As a result of the without prejudice dismissal of his claims in Ramnanan
I, plaintiff filed a second amended complaint in federal court, naming the same
defendants as in the matter on appeal. The complaint in Ramnanan II included
the same § 1983 claims and state law NJCRA claims asserted in Ramnanan I.
The federal judge dismissed plaintiff's claims in Ramnanan II, citing the
same grounds for dismissal as expressed by the judge in Ramnanan I. See
Ramnanan II, at *27-29. The federal judge in Ramnanan II also declined to
exercise jurisdiction over plaintiff's state law claims.
About a month after the federal court's dismissal of Ramnanan II, plaintiff
filed a complaint in the Superior Court of New Jersey, Bergen County, claiming
defendants violated the NJCRA by: fabricating evidence (Count One); engaging
in a malicious prosecution against him (Count Two); depriving him of due
process (Count Three); entering into a conspiracy (Count Four); and
intentionally inflicting emotional distress (Count Five).
The State defendants, Hayek, and Awari filed motions to dismiss under
Rule 4:6-2(e). After considering the written submissions and hearing argument,
the judge issued a March 29, 2024 order and written decision dismissing
plaintiff's state court complaint. The motion judge explained that all defendants
A-2578-23 8 relied "on the determinations made in the federal proceedings," and the judge
considered those proceedings in granting the dismissal motions.
First, the motion judge found the State defendants were entitled to
dismissal of the state court complaint based on absolute immunity. The judge
explained the legislative history in enacting the NJCRA evidenced the
Legislature's intent to provide New Jersey citizens with a state analogue to
federal actions under 42 U.S.C. § 1983. Additionally, the judge found state law
cases applied immunity under § 1983 to NJCRA claims.
The judge rejected plaintiff's argument that prosecutorial immunity for the
State defendants was narrower under state law than under federal law. In
adopting the reasoning in Ramanan I and Ramanan II, the judge, citing Fogel v.
Sokol, 957 F.3d 148, 160 (3d Cir. 2020), concluded the State defendants were
immune from prosecution for claims under the NJCRA "because the underlying
alleged facts [we]re 'intimately associated with the judicial phase of the criminal
process.'" The judge agreed plaintiff's state court complaint related to the State
defendants preparing for, and conducting, the grand jury proceedings.
Despite finding the State defendants were entitled to absolute immunity,
the motion judge also considered whether the State defendants were entitled to
qualified immunity in the event their conduct was investigatory and not
A-2578-23 9 sufficiently associated with the judicial process. Applying the two-part test for
qualified immunity announced in Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982), the judge agreed plaintiff had a right to be free from prosecution based
on fabricated evidence. However, the judge concluded the alleged fabricated
evidence purportedly contained in the Kickback Spreadsheet, Summary chart,
and Shared Claims chart in support of probable cause to prosecute plaintiff was
irrelevant because the statements made by Hayek and Awari to the State
defendants, independent of these documents, were sufficient to support probable
cause. Additionally, the judge found the dismissal of the criminal charges
against plaintiff did "not establish that [the] creation of these documents and use
of them during the investigation phase constitute[d] violations of a clearly
established right not to be prosecuted based on fabricated evidence."
Because the judge dismissed plaintiff's constitutional claims, she
concluded his conspiracy claim could not survive.
In dismissing plaintiff's claim for intentional infliction of emotional
distress, the judge held the conduct giving rise to this claim occurred before or
during the grand jury proceedings in May 2018. Because N.J.S.A. 59:8-8
requires the filing of a lawsuit against a public entity or public employee within
two-years from the date a claim accrues, the judge determined the latest date
A-2578-23 10 plaintiff could have filed suit against the State defendants was May 2020. Thus,
she found plaintiff's September 2020 state court complaint time-barred.
The judge also rejected plaintiff's reliance on the discovery rule for his
intentional infliction of emotional distress claim. Plaintiff argued he was
unaware of his claims against the State defendants based on fabricated evidence
until the criminal court judge dismissed the charges against him. The motion
judge found plaintiff's complaint undermined this argument because the state
court complaint "repeatedly assert[ed] that [plaintiff's] criminal defense counsel
told the State [d]efendants, in 2017, that the various documents proffered were
fabricated."
In dismissing plaintiff's claims against Hayek and Awari, the judge
concluded they were not state actors acting under the color of state law. The
judge found Hayek and Awari were not willful participants who conspired with
the State defendants in prosecuting plaintiff. According to plaintiff's complaint,
Hayek and Awari were coerced or relentlessly pressured by the State defendants
to implicate plaintiff in a kickback scheme.
On appeal, plaintiff argues the judge erred in finding his NJCRA claims
barred under the doctrines of absolute immunity or qualified immunity. He
further asserts the judge erred in finding his intentional infliction of emotion
A-2578-23 11 distress claim barred by the statute of limitation. As to the claims against Hayek
and Awari, plaintiff contends the judge erred by concluding these defendants
did not act under color of state law.
I.
We review a trial court's order dismissing a complaint for failure to state
a claim de novo. Guzman v. M. Teixeira Int'l, Inc., 476 N.J. Super. 64, 69 (App.
Div. 2023) (citing MTK Food Servs., Inc. v. Sirius Am. Ins. Co., 455 N.J. Super.
307, 311 (App. Div. 2018)). We "examine 'the legal sufficiency of the facts
alleged on the face of the complaint,' giving the plaintiff the benefit of 'every
reasonable inference of fact.'" Baskin v. P.C. Richard & Son, LLC, 246 N.J.
157, 171 (2021) (quoting Dimitrakopoulos v. Borrus, Goldin, Foley, Vignuolo,
Hyman & Stahl, PC, 237 N.J. 91, 108 (2019)). We apply "the same standard
under Rule 4:6-2(e) that governed the motion court," Wreden v. Township of
Lafayette, 436 N.J. Super. 117, 124 (App. Div. 2014), which is whether the
pleadings even "suggest[]" a basis for the requested relief. Printing Mart-
Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989) (quoting Velantzas
v. Colgate-Palmolive Co., 109 N.J. 189, 192 (1988)). A complaint must be
dismissed where "it has failed to articulate a legal basis entitling plaintiff to
relief." Sickles v. Cabot Corp., 379 N.J. Super. 100, 106 (App. Div. 2005)
A-2578-23 12 (citing Camden Cnty. Energy Recovery Assocs. v. N.J. Dep't of Env't Prot., 320
N.J. Super. 59, 64 (App. Div. 1999)).
II.
We first address plaintiff's assertion that the judge erred in dismissing the
state court complaint by finding his NJCRA claims were subject to § 1983's
absolute immunity. He argues the judge's holding was contrary to the NJCRA's
text, legislative history, and judicial precedent. We disagree.
The NJCRA provides:
Any person who has been deprived of any substantive due process or equal protection rights, privileges or immunities secured by the Constitution or laws of the United States, or any substantive rights, privileges or immunities secured by the Constitution or laws of this State, or whose exercise or enjoyment of those substantive rights, privileges or immunities has been interfered with or attempted to be interfered with, by threats, intimidation or coercion by a person acting under color of law, may bring a civil action for damages and for injunctive or other appropriate relief.
[N.J.S.A. 10:6-2(c).]
"The NJCRA, which was modeled on 42 U.S.C. § 1983, created a private
cause of action for violations of civil rights secured by the federal and New
Jersey Constitutions." Cruz v. Camden Cnty. Police Dep't, 466 N.J. Super. 1, 9-
10 (App. Div. 2021) (citing Tumpson v. Farina, 218 N.J. 450, 474 (2014);
A-2578-23 13 Rezem Fam. Assocs. v. Borough of Millstone, 423 N.J. Super. 103, 115 (App.
Div. 2011)). Courts interpreting the NJCRA regularly examine federal cases
when analyzing § 1983. Ibid.; see also Farina, 218 N.J. at 474 (holding cases
applying "[§] 1983 may provide guidance in construing our Civil Rights Act").
Based on these legal principles, we are satisfied the NJCRA is analogous
to § 1983, and the judge correctly considered federal case law in deciding
whether the State defendants were entitled to absolute immunity.
III.
We next consider plaintiff's argument that, even if the NJCRA is
interpreted the same as § 1983, the State defendants were not entitled to absolute
immunity. Plaintiff asserts the actions of the State defendants were not
intimately associated with the judicial process. According to plaintiff, the State
defendants bore the burden of establishing entitlement to absolute immunity for
each alleged wrongful act.
When a prosecutor performs actions that are "intimately associated with
the judicial phase of the criminal process," absolute immunity applies "with full
force." Imbler v. Pachtman, 424 U.S. 409, 430 (1976). To determine whether
absolute immunity applies, the court must "focus upon the functional nature of
the activities rather than [the prosecutor's] status." Ibid.; see also Williams v.
A-2578-23 14 Consovoy, 453 F.3d 173, 178 (3d Cir. 2006) (observing that courts focus on the
purpose served by the acts for which immunity is sought in granting a prosecutor
absolute immunity). "[A]cts undertaken by a prosecutor in preparing for the
initiation of judicial proceedings or for trial, and which occur in the course of
[their] role as an advocate for the State, are entitled to the protections of absolute
immunity," including "the professional evaluation of the evidence assembled by
the police and appropriate preparation for its presentation at trial or before a
grand jury." Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993). Courts have
granted immunity from claims alleging a prosecutor "us[ed] false testimony in
connection with [a] prosecution," Yarris v. County of Delaware, 465 F.3d 129,
137, 139 (3d Cir. 2006) (second alteration in original) (quoting Kulwicki v.
Dawson, 969 F.2d 1454, 1465 (3d Cir. 1992)); "so long as they did so while
functioning in their prosecutorial capacity." Id. at 137. Additionally, the
negotiation of a plea agreement by a prosecutor has been deemed to be closely
associated with the criminal justice process. See Imbler, 424 U.S. at 430.
New Jersey courts have noted that "the United States Supreme Court has
accorded absolute immunity to judges, prosecutors, and witnesses testifying
during judicial proceedings." Loigman v. Twp. Comm. of Middletown, 185 N.J.
566, 580 (2006). The immunity is based on "concern that harassment by
A-2578-23 15 unfounded litigation would cause a deflection of the prosecutor's energies from
[their] public duties, and the possibility that [they] would shade [their] decisions
instead of exercising the independence of judgement required by [the] public
trust." Id. at 581 (quoting Imbler, 424 U.S. at 423). Our Supreme Court
recognized absolute immunity "leave[s] the genuinely wronged defendant
without civil redress against a prosecutor whose malicious or dishonest action
deprives him of liberty," but nonetheless concluded "it serves the 'broader public
interest' of ensuring that vexatious litigation not suppress 'the vigorous and
fearless performance of the prosecutor's duty that is essential to the proper
functioning of the criminal justice system.'" Id. at 581-82 (alteration in original)
(quoting Imbler, 424 U.S. at 427-28).
Similarly, "an investigator performing investigative work related to a
criminal proceeding enjoys the same scope of immunity that a prosecutor
performing such tasks would." Murphy v. Middlesex Cnty., 361 F. Supp. 3d
376, 385 (D.N.J. 2019). "When the functions of prosecutors and detectives are
the same . . . the immunity that protects them is also the same." Buckley, 509
U.S. at 276.
We reject plaintiff's argument that the allegedly false statements elicited
by the State defendants were part of investigatory interviews and therefore not
A-2578-23 16 subject to absolute immunity. "The mere invocation of the catch-word
'investigatory', however, cannot suffice . . . to forestall dismissal on immunity
grounds." Rose v. Bartle, 871 F.2d 331, 345 (3d Cir. 1989) (explaining
interviewing witnesses and soliciting alleged perjury prior to presenting grand
jury testimony involves preparation necessary to present a case, entitling
defendants to absolute immunity).
However, prosecutors are not entitled to absolute immunity if they "acted
out of personal motive, with malicious intent, or in excess of [their]
jurisdiction." Cashen v. Spann, 66 N.J. 541, 552 (1975). The "presumption that
[prosecutors] act legally in the discharge of their public dut[ies] . . . is overcome
by convincing proof that they acted in excess of and distinct from their required
official duty for personal reasons of their own." Id. at 550 (quoting Earl v.
Winne, 14 N.J. 119, 134 (1953)).
In evaluating whether the actions of the State defendants were entitled to
absolute immunity, the judge considered the following facts. Beginning in 2015,
the Office of the Attorney General's Commercial Bribery Task Force (CBTF)
sought to pursue criminal charges against various doctors, including Hayek.
Plaintiff alleged the investigation of Hayek led the CBTF to pursue plaintiff.
According to plaintiff, Hayek, as part of a plea deal, "joined the State
A-2578-23 17 [d]efendants' prosecution team, and became fully invested in their shared goal
of manufacturing a case against as many doctors as possible."
At the time the State defendants first spoke with plaintiff and his criminal
defense attorney, they were involved in an ongoing investigation into bribery
and fraud allegations against several physicians and medical practices. At that
time, the State defendants had charged several doctors, including Hayek, with
various crimes. Plaintiff asserted Hayek joined the State defendants' scheme to
obtain a favorable plea deal resolving the charges against him.
Similarly, plaintiff contended that Awari entered into a plea agreement
with State defendants and agreed to cooperate by naming other doctors involved
in an alleged kickback scheme. When Awari spoke to the State defendants,
plaintiff was already indicted. The State defendants then relied on Awari's
statements to obtain a superseding indictment against plaintiff.
Based on the plea colloquies proffered by Awari and Hayek, the State
defendants had sufficient probable cause to believe multiple individuals were
involved in an illegal kickback scheme. The State defendants, relying on the
information gleaned from the plea hearings, proceeded to ascertain plaintiff's
role, if any, in the kickback scheme and then determine whether to prosecute
plaintiff.
A-2578-23 18 Based on these facts, the judge found plaintiff's allegations against the
State defendants were associated with the judicial phase of the criminal
process—specifically, the grand jury process and criminal prosecution. The
judge determined "the crux of the complaint concerned preparation for and
conduct of the grand jury proceedings." Even accepting as true plaintiff's claims
that the State defendants indicted him based on the purported solicitation of false
testimony from Hayek and Awari, the judge found the State defendants' conduct
was intimately connected to their advocacy or prosecutorial functions of the
State defendants, entitling them to absolute immunity.
Moreover, nothing proffered in plaintiff's state court complaint suggests
the State defendants exceeded their official duties for personal reasons or acted
with malicious intent to preclude absolute immunity. Plaintiff offers only
speculation and inferences to support his claim that the State defendants acted
based on any improper motive. Under the specific facts in this case, we are
satisfied the judge correctly concluded the State defendants were entitled to
absolute immunity.
IV.
We turn to plaintiff's argument that the judge also erred in finding the
State defendants were entitled to qualified immunity. Although the judge found
A-2578-23 19 the State defendants entitled to absolute immunity, she also analyzed whether
they would be entitled to qualified immunity.
In situations where absolute immunity may not apply, a governmental
official may be entitled to qualified immunity "for discretionary acts that do 'not
violate clearly established statutory or constitutional rights of which a
reasonable person would have known.'" Baskin v. Martinez, 243 N.J. 112, 127
(2020) (quoting Harlow, 457 U.S. at 818). In considering qualified immunity,
the court must determine "(1) whether the evidence, viewed in the light most
favorable to the plaintiff, establishes that the official violated the plaintiff's
constitutional or statutory rights, and (2) whether the right allegedly violated
was 'clearly established' at the time of the [defendant]'s actions." Id. at 128.
"Qualified immunity can be asserted as a defense against actions brought under
the [NJCRA] and federal causes of action for a violation of civil rights under 42
U.S.C. § 1983." Harris v. City of Newark, 250 N.J. 294, 300, 306 (2022)
(explaining "[t]he interpretation given to parallel provisions of [42 U.S.C. §
1983] may provide guidance in construing" the NJCRA) (alteration in original).
We have recognized "probable cause as an absolute defense to NJCRA
claims." Cruz, 466 N.J. Super. at 13. However, even absent probable cause, a
defendant may still be entitled to a qualified immunity defense if he or she
A-2578-23 20 "reasonably believed that probable cause existed." Wildoner v. Borough of
Ramsey, 162 N.J. 375, 385 (2000).
Here, plaintiff contends the fabrication of evidence by the State
defendants, including the Kickback Spreadsheet, Summary chart, and Shared
Claims chart, violated his due process rights. However, plaintiff must
demonstrate the alleged fabricated evidence was "so significant that it could
have affected the outcome of the criminal case." Halsey v. Pfeiffer, 750 F.3d
273, 295 (3d Cir. 2014). "[T]estimony that is incorrect or simply disputed
should not be treated as fabricated merely because it turns out to have been
wrong." Ibid.
Contrary to plaintiff's argument, the criminal judge did not dismiss the
indictment based on the alleged fabricated evidence. Rather, the criminal judge
concluded the State "misled the grand jurors regarding the law applicable to the
charges" against plaintiff as the basis for dismissing the indictment. Nowhere
in explaining his reasons for dismissing the indictment did the criminal judge
refer to any allegedly fabricated evidence. Moreover, as we previously noted,
the State defendants believed there was probable cause to prosecute plaintiff
based on the statements proffered by Hayek and Awari.
A-2578-23 21 On these facts, plaintiff failed to demonstrate any alleged fabricated
evidence affected the outcome of the criminal case, negating the application of
qualified immunity for the State defendants.
We next consider plaintiff's claim that the judge erred in determining
Awari and Hayek were not acting under color of law. He further asserts his state
court complaint established Hayek and Awari willfully participated and
cooperated with the State's prosecution of him in return for more lenient
sentences on their own criminal charges.
The judge found plaintiff's claims failed to show Hayek or Awari acted
willingly to conspire or engage in joint activity with the State defendants.
Because Hayek and Awari were not willful participants in an alleged conspiracy,
the judge concluded plaintiff failed to sustain his claims against them.
Statutory construction, particularly the NJCRA's "under color of law"
language, is reviewed de novo. Perez v. Zagami, LLC, 218 N.J. 202, 209 (2014)
(citing Toll Bros. v. Twp. of Windsor, 173 N.J. 502, 549 (2002)). We previously
noted that judicial interpretation of the NJCRA may be guided by federal case
law interpretating § 1983. Under the NJCRA, a private action for violation of a
person's substantive rights only lies against individuals acting under "color of
A-2578-23 22 law." N.J.S.A. 10:6-2(c). A person may act under the color of law by exercising
power "possessed by virtue of state law and made possible only because the
wrongdoer is clothed with the authority of state law." Polk Cnty. v. Dodson,
454 U.S. 312, 317-18 (1981) (quoting United States v. Classic, 313 U.S. 299,
326 (1941)).
A private person "who willfully participates in a joint conspiracy with
state officials to deprive a person of a constitutional right acts 'under color of
state law' for purposes of § 1983." Abbott v. Latshaw, 164 F.3d 141, 147-48
(3d Cir. 1998). Whether a private individual acted under the color of law is a
fact-sensitive inquiry. Groman v. Twp. of Manalapan, 47 F.3d 628, 638 (3d Cir.
1995). It is not enough to show merely "some tenuous connection to state action.
The issue is not whether the state was involved in some way in the relevant
events, but whether the action taken can be fairly attributed to the state itself."
Id. at 638-39 (citing Jackson v. Metro. Edison Co., 419 U.S. 345, 351 (1974)).
A civil conspiracy is defined as "a combination of two or more persons acting
in concert to commit an unlawful act, or to commit a lawful act by unlawful
means, the principal element of which is an agreement between the parties 'to
inflict a wrong against or injury upon another,' and 'an overt act that results in
damage.'"
A-2578-23 23 Morgan v. Union Cnty. Bd. of Chosen Freeholders, 268 N.J. Super. 337, 364
(App. Div. 1993) (quoting Rotermund v. U.S. Steel Corp., 474 F.2d 1139, 1145
(8th Cir. 1973)). "The gist of the claim is not the unlawful agreement, 'but the
underlying wrong which, absent the conspiracy, would give a right of action. '"
Ibid. (citations omitted).
Here, plaintiff failed to allege Hayek and Awari were party to the alleged
conspiracy. Counts one, two, and three of the state court complaint relate solely
to the State defendants' conduct in allegedly fabricating evidence against
plaintiff. In count two, asserting malicious prosecution, plaintiff alleged the
State defendants acted "in concert with [d]efendants Hayek and Awari," to
pursue criminal charges against plaintiff. Although count two mentioned Hayek
and Awari, the claim in that count asserted the State defendants "acting alone
and in concert, agreed to engage in and engaged in misconduct amounting to a
malicious prosecution."
After according plaintiff all reasonable inferences based on the facts set
forth in his state court complaint, the judge properly found neither Awari nor
Hayek acted willingly in the prosecution of plaintiff. In his complaint, plaintiff
stated the State defendants "coerced witnesses to give false, misleading, and
dishonest testimony," which, combined with the alleged fabricated documents,
A-2578-23 24 led to his indictment. Thus, relying on the facts alleged in plaintiff's complaint,
the judge properly determined neither Hayek nor Awari acted willingly to
conspire or engage in a joint activity with the State defendants and properly
dismissed plaintiff's claims against them.
VI.
We also reject plaintiff's claim that the judge improperly dismissed his
malicious prosecution claims premised on the false testimony Hayek and Awari
proffered to the State defendants.
To prevail on a claim of malicious prosecution, a "plaintiff must prove (1)
that the criminal action was instituted by the defendant against the plaintiff, (2)
that it was actuated by malice, (3) that there was an absence of probable cause
for the proceeding, and (4) that it was terminated favorably to the plaintiff."
Brunson v. Affinity Fed. Credit Union, 199 N.J. 381, 393-94 (2009) (quoting
Helmy v. City of Jersey City, 178 N.J. 183, 190 (2003)). Each element must be
established and "[u]pon failure to prove any one, the cause must fail." Id. at 394
(alteration in original) (quoting Lind v. Schmid, 67 N.J. 255, 262 (1975)). Only
"'one who recklessly institutes criminal proceedings without any reasonable
basis should be [held] responsible for such irresponsible action.'" Ibid. (quoting
Lind, 67 N.J. at 262).
A-2578-23 25 The second element, that the action was actuated by malice, may be
inferred "from want of probable cause." Id. at 395 (quoting Hammill v. Mack
Int'l Motor Truck Corp., 104 N.J.L. 551, 552 (E. & A. 1928)). Malice is defined
as "the intentional doing of a wrongful act without just cause or excuse." Ibid.
(quoting McFadden v. Lane, 71 N.J.L. 624, 630 (E. & A. 1905)).
In a malicious prosecution claim, only defendants who are "the 'proximate
and efficient cause of maliciously putting the law in motion'" are held liable.
Myrick v. Resorts Int'l Casino & Hotel, 319 N.J. Super. 556, 566 (App. Div.
1999) (quoting Seidel v. Greenberg, 108 N.J. Super. 248, 258 (Law Div. 1969)).
Here, plaintiff satisfied the first and fourth prongs supporting a claim for
malicious prosecution––there were two indictments against plaintiff, and the
superseding indictment was dismissed. However, plaintiff needed to
demonstrate the prosecution was actuated by malice and there was an absence
of probable cause to initiate a judicial proceeding. See Brunson, 199 N.J. at
394.
Here, Awari's and Hayek's statements were provided to the State
defendants as part of advantageous plea deals. Their statements, in part,
established probable cause for the State defendants to proceed with a case
against plaintiff. However, at the time Hayek and Awari gave statements to the
A-2578-23 26 State defendants, the State had already obtained indictments against other
physicians. Plaintiff's indictments were among a series of pending indictments
against doctors who allegedly participated in an illegal kickback scheme.
As we noted, the State defendants had ample evidence supporting
probable cause to indict plaintiff. Therefore, plaintiff failed to meet his burden
under the third prong in support of his malicious prosecution claim.
Nor did plaintiff offer any support to establish the prosecution was
actuated by malice to satisfy the second prong. Rather, plaintiff's state court
complaint contained a single conclusory statement that the State defendants
"acted maliciously, willfully, and wantonly in violating [plaintiff]'s rights."
Because plaintiff failed to meet his burden under each of the prongs to
establish a claim for malicious prosecution, we are satisfied the judge properly
dismissed that claim.
VII.
We next consider plaintiff's claim that the judge erred in finding his
intentional infliction of emotion distress claim time-barred. Plaintiff relies on
McDonough v. Smith, 588 U.S. 109, 117 (2019), in arguing his claims accrued
on May 23, 2019, when the criminal judge dismissed the indictments. He further
A-2578-23 27 asserts he was entitled to the discovery rule for determining the accrual date for
his intentional infliction of emotional distress claim. We disagree.
"Whether a cause of action is barred by a statute of limitations is a
question of law," which we review de novo. Catena v. Raytheon Co., 447 N.J.
Super. 43, 52 (App. Div. 2016). We accord "'no deference to [the] trial judge's
legal interpretations' in dismissing plaintiffs' complaint as time-barred." Save
Camden Pub. Schs. v. Camden City Bd. of Educ., 454 N.J. Super. 478, 487-88
(App. Div. 2018) (alteration in original) (quoting Giannakopoulos v. Mid State
Mall, 438 N.J. Super. 595, 600 (App. Div. 2014)).
"[T]o establish a claim for intentional infliction of emotional distress, the
plaintiff must establish intentional and outrageous conduct by the defendant,
proximate cause, and distress that is severe." Buckley v. Trenton Saving Fund
Soc'y, 111 N.J. 355, 366 (1988). An intentional infliction of emotional distress
claim may be based on a "conspiracy to file false charges which were intended
to, and could have[,] cost plaintiff his livelihood and severely impacted his
career." Hill v. N.J. Dep't of Corr. Comm'r Fauver, 342 N.J. Super. 273, 297-
98 (App. Div. 2001).
"Statutes of limitations, by their nature, are intended to compel plaintiffs
to file their lawsuits within a prescribed time to allow defendants a fair
A-2578-23 28 opportunity to respond and safeguard their interests." The Palisades at Fort Lee
Condo. Ass'n, Inc. v. 100 Old Palisade, LLC, 230 N.J. 427, 443 (2017).
Generally, a personal injury claim "shall be commenced within two years next
after the cause of any such action shall have accrued." N.J.S.A. 2A:14-2(a).
"[A] cause of action is deemed to accrue when facts exist which authorize one
party to maintain an action against another." Mullen v. Ippolito Corp., 428 N.J.
Super. 85, 105 (App. Div. 2012) (quoting Marini v. Wanaque, 37 N.J. Super. 32,
38 (App. Div. 1955)). Because intentional infliction of emotional distress
claims are personal injury claims, they are governed by the two-year statute of
limitations. Fraser v. Bovino, 317 N.J. Super. 23, 34 (App. Div. 1998) (citing
N.J.S.A. 2A:14-2).
The accrual date for a cause of action may be affected by the discovery
rule. "The discovery rule provides that 'in an appropriate case a cause of action
will be held not to accrue until the injured party discovers, or by an exercise of
reasonable diligence and intelligence should have discovered that he may have
a basis for an actionable claim.'" Maldonado v. Leeds, 374 N.J. Super. 523, 530-
31 (App. Div. 2005) (quoting Lopez v. Swyer, 62 N.J 267, 272 (1973)). "The
standard is basically an objective one—whether plaintiff knew or should have
known of sufficient facts to start the statute of limitations running." Ben Elazar
A-2578-23 29 v. Macrietta Cleaners, Inc., 230 N.J. 123, 134 (2017) (quoting Caravaggio v.
D'Agostini, 166 N.J. 237, 246 (2001)). To toll the statute of limitations under
the discovery rule, a plaintiff must also be aware that another party may be at
fault for the injury:
When a plaintiff knows he has "suffered an injury but [does] not know that it is attributable to the fault of another," the discovery rule tolls the date of accrual as to that unknown responsible party. And, when a plaintiff knows her injury "is the fault of another, but is reasonably unaware that a third party may also be responsible, the accrual clock does not begin ticking against the third party until the plaintiff has evidence that reveals [their] possible complicity."
[Id. at 134-35 (alteration in original) (citation omitted) (quoting Caravaggio, 166 N.J. at 250).]
Plaintiff mistakenly relies on the "favorable termination" requirement
under McDonough to assert he could not file an intentional infliction of
emotional distress claim until the criminal judge dismissed the indictments.
However, McDonough involved a § 1983 fabricated-evidence claim, which does
not accrue until there is a favorable termination of the litigation. 588 U.S. at
119-20.
Here, plaintiff's intentional infliction of emotional distress claim is not
premised on § 1983. Therefore, the favorable termination requirement, an
element of the claims under § 1983, is inapplicable.
A-2578-23 30 Plaintiff's state court complaint alleges all defendants "manipulated the
truth during the pre-trial investigation, suborned perjury, protected witnesses
providing false testimony, and flagrantly violated [his] constitutional rights."
According to the complaint, on November 8, 2016, plaintiff's criminal attorney
"formally told Keiffer, in no uncertain terms, that this alleged 'smoking gun' —
the schedule allegedly showing the kickback from [plaintiff] to . . . Hayek—
contained blatantly fabricated evidence and gross inaccuracies, and would never
hold up in a court of law." Based on the facts stated in plaintiff's complaint, as
early as 2016 plaintiff and his criminal counsel contended the State defendants'
"blatantly fabricated evidence" and relied on "gross inaccuracies" in proceeding
to indict plaintiff. Even assuming plaintiff did not realize his claim for
intentional infliction of emotional distress in 2016, such a claim accrued no later
than May 31, 2018, upon the return of the superseding indictment against
Further, even assuming the Attorney General's June 2018 news release,
implicating plaintiff in an illegal kickback scheme, caused him to suffer distress
and injury to his reputation, plaintiff's intentional infliction of emotional distress
claim would still be time-barred because the complaint in Ramanan I was filed
A-2578-23 31 on October 7, 2020, more than two years after publication of the Attorney
General's June 2018 news release.
Having reviewed the record, we discern no error in the judge's finding
plaintiff's intentional infliction of emotional distress claims was time-barred.
To the extent we have not addressed any of plaintiff's remaining
arguments, we conclude they lack sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-2578-23 32