JASON CAMPBELL VS. KELLEY LAVERY (L-3366-18, PASSAIC COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: May 25, 2021
• Docket: A-2818-19
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2818-19

JASON CAMPBELL,

Plaintiff-Appellant,

v.

KELLEY LAVERY, BRIAN KEANE, RAMON LOPEZ, ANTHONY MAUCERI, CHRISTOPH KIMKER, STEVEN BRYLINSKI, THOMAS LAIRD, JUSTIN GABRYS, J. ZAMMIT, MORRIS COUNTY PROSECUTOR'S OFFICE, and FREDERICK KUHRT,

Defendants-Respondents,

and

BRIAN STANTON, EDWARD ROCHFORD, MORRIS COUNTY'S SHERIFF'S OFFICE, COUNTY OF MORRIS, and ANTHONY RIZZULO,

Defendants. ___________________________________

Submitted March 3, 2021 – Decided May 25, 2021

Before Judges Fuentes and Whipple. On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-3366-18.

Patti & Patti, LLC, attorneys for appellant (Jeffrey M. Patti, of counsel and on the briefs).

Gurbir S. Grewal, Attorney General, attorney for respondents Kelley Lavery, Brian Keane, Ramon Lopez, Anthony Mauceri, Christoph Kimker, Steven Brylinski, Thomas Laird, Justin Gabrys, J. Zammit, and Morris County Prosecutor's Office (Jane C. Schuster, Assistant Attorney General, of counsel, Brett J. Haroldson, Deputy Attorney General, on the brief).

Gurbir S. Grewal, Attorney General, attorney for respondent Frederick Kuhrt (Sookie Bae, Assistant Attorney General, of counsel; Timothy P. O'Brien, Deputy Attorney General, on the brief).

PER CURIAM

Plaintiff, Jason Campbell, appeals from the January 31, 2020 order

dismissing his complaint against defendants Kelley Lavery, Ramon Lopez,

Anthony Mauceri, Christoph Kimker, Thomas Laird, Justin Gabrys, Steven

Brylinski, J. Zammit, and Brian Keane (collectively the Morris County

Prosecutor's Office (MCPO) defendants), and the September 17, 2019 order

dismissing all claims against New Jersey State Trooper Frederick Kuhrt. Having

reviewed the record, we affirm for the reasons stated by Judge Frank Covello in

A-2818-19 2 his well-reasoned written decisions issued with the January 31, 2020 order and

the September 17, 2019 order. We add our separate comments.

I.

Before spring of 2011, plaintiff was an employee of the Morris County

Sheriff's Office. The trial court record reveals a series of allegations,

investigations, arrests, and charges against him. In June 2010, Morris County

authorities investigated an abandoned house fire, which they suspected was

arson. An individual named Anthony Rizzulo claimed to have set fire to a

garage with plaintiff in 2008. Plaintiff was charged with both arsons on

February 15, 2011. Defendant Kimker, a prosecutor's office detective, with the

assistance of Lavery, an assistant prosecutor, prepared and signed the criminal

complaint and an application for an arrest warrant. Shortly thereafter, plaintiff

was suspended from the Morris County Sheriff's Office pending his criminal

charges.1

1 As Judge Covello explained, "there is a back story alleged by [p]laintiff, and accepted as true for purposes of the within motion, that gives some additional context for the alleged motivations of the parties. Plaintiff was hired by the Morris County Sheriff's Department in 2000. In 2006-07 [p]laintiff was appointed Post Advisor of the Morris County Sheriff's Explore[r]s Post 140. In 2010, while [d]efendant Rochford was Morris County Sheriff, [p]laintiff campaigned for [d]efendant Rochford's primary election opponent. Plaintiff alleges that he was removed from his post as [a]dvisor of the Morris County

A-2818-19 3 On March 9, 2012, plaintiff was stopped in his vehicle by New Jersey

State Trooper Frederick Kuhrt on Interstate 287 in Hanover. Plaintiff alleged

the stop was pretextual and designed to hurt his reputation because Lavery

instructed Kuhrt to follow him as part of an ongoing surveillance operation.

Plaintiff also alleges Lavery instructed Kuhrt to do so because they believed he

was still improperly using his law enforcement credentials. Kuhrt eventually

did pull plaintiff over for tailgating and improperly drifting into the shoulder.

After plaintiff produced his license, registration and insurance, Kuhrt allegedly

goaded him to display his now-defunct badge, stating: "no, your other ID" and

"commenced to cajole plaintiff to produce his spare sheriff's badge," which he

eventually did.

Shortly after, MCPO detectives Mauceri, Laird, and Kimker all arrived in

unmarked cars and plain clothes and arrested plaintiff, with Mauceri allegedly

telling Kuhrt, "you did us a solid." The police report Kuhrt generated indicates

that "[Lavery] asked if we could stop the vehicle and to see if [plaintiff] would

present himself as a member of the Morris County Sheriff's Office."

Sheriff's Explorers in 2010, in retaliation for his support for the Sheriff's primary election challenger. Plaintiff alleges that the arson and March 9, 2012 motor vehicle stop were acts of retaliation by the Sheriff and other defendants." A-2818-19 4 Plaintiff was charged with official misconduct, and other charges not

specified in the complaint, for showing his badge to avoid either criminal

charges, traffic offenses, or both. MCPO Detective Lopez signed the complaint

and presented it to a municipal court judge to authorize it for a complaint-

warrant. The charges stemming from the traffic stop were dismissed on

December 14, 2015, because the court found plaintiff was a victim of unlawful

and unconstitutional entrapment. The State appealed that dismissal.

On April 18, 2016, plaintiff entered into a global plea agreement providing

the arson indictment was to be dismissed. Plaintiff pled guilty to cruelty and

neglect of children, in exchange, the State's dismissed its appeal of the trial

court's decision to dismiss the charges related to the motor vehicle stop.

Plaintiff then filed the current suit against the MCPO defendants, alleging

malicious prosecution, false arrest, excessive force, false imprisonment, civil

conspiracy, and violations of substantive due process and equal protection under

the New Jersey Constitution through the New Jersey Civil Rights Act (NJCRA),

N.J.S.A. 10:6-1 to -2. On October 5, 2018, the MCPO defendants moved to

dismiss plaintiff's claims under Rule 4:6-2(e). Kuhrt also moved to dismiss. In

a May 31, 2019 order, the trial court granted the MCPO defendants' motion to

dismiss but denied Kuhrt's.

A-2818-19 5 Notably, the trial court dismissed the malicious prosecution claim because

plaintiff could not show a "favorable outcome," as he accepted a global plea

agreement for his charges, which does not lie on his innocence as an acquittal

or voluntary dismissal would, but rather, a compromise from both sides of the

dispute. The trial court did permit plaintiff to file an amended complaint,

provided he do so by June 20, 2019. He did not file an amended complaint until

July 22, 2019, and in the process voluntarily dismissed his claims against certain

MCPO officials who are not part of this appeal.

The amended complaint alleged plaintiff had a right under the NJCRA to

be "secure in his persons" against unreasonable searches, seizures, and arrests;

to not be deprived of life, liberty, or property without due process; and last, to

be protected against the alleged false and baseless arrest, detention, and

malicious prosecution. Kuhrt moved to dismiss the amended complaint, and

plaintiff cross-moved for summary judgment. This time, the trial court granted

Kuhrt's motion, finding he was entitled to qualified immunity, and denied

plaintiff's cross-motion on September 17, 2019.

On October 1, the MCPO defendants moved to dismiss the amended

complaint, and plaintiff's cross-motion for leave to file a second amended

complaint which focuses on the impropriety of the traffic stop, and the

A-2818-19 6 subsequent dismissal of the indictment stemming from the stop, despite the fact

that the MCPO withdrew its appeal as part of a plea agreement with plaintiff.

On January 31, 2020, the trial court granted the MCPO defendants' motion to

dismiss and denied plaintiff's cross-motion.

At this point, all of plaintiff's remaining claims centered on the

impropriety of the traffic stop. The court rejected plaintiff's substantive due

process and equal protection claims after determining the cause of action for any

constitutional violations suffered during the traffic stop accrued at the time of

the stop, on March 9, 2012. Thus, these claims were time-barred by the two-

year statute of limitations governing NJCRA claims. This appeal followed.

Plaintiff raises several issues on appeal, alleging he pled sufficient facts

to survive the motion to dismiss; the trial court improperly found his plea

agreement did not amount to a favorable outcome; defendant Kuhrt should not

have been granted qualified immunity because plaintiff's entrapment claim was

not adjudicated; and if successful, plaintiff should be permitted to file a second

amended complaint. Having reviewed the record, we conclude plaintiff's

arguments lack merit.

II.

A-2818-19 7 Judge Covello found that violations of an individual's Fourth Amendment

right occur where there is an unreasonable search and seizure and claims under

the NJCRA are subject to a two-year statute of limitation. Lapolla v. Cnty. of

Union, 449 N.J. Super. 288, 298 (App. Div. 2017); N.J.S.A. 2A:14-2(a).

Addressing when a Fourth Amendment violation accrues for purposes of the

NJCRA, when the plaintiff alleges he was wrongfully searched and seized in the

traffic stop that led to his wrongful incarceration, the court reasoned plaintiff's

complaint against the defendants is not the detention he endured; it is the

propriety of the March 9, 2012 traffic stop. To that end, all wrongs suffered are

derived from the traffic stop. Therefore, this case turns on the accrual of the

claim for an unreasonable search and seizure stemming from a seemingly

pretextual traffic stop. It follows that a claim for an unreasonable search and

seizure brought under the NJCRA accrues at the time the action occurred . The

court outlined the progression of events:

- March 9, 2012: Plaintiff stopped and arrested

- December 14, 2015: Suppression hearing finds search and seizure unreasonable

- February 10, 2016: Notice of Appeal filed

- April 18, 2016: Global Plea Agreement

- July 25, 2016: Notice of Appeal Dismissal

A-2818-19 8 - July 20, 2018: Plaintiff files original complaint

The court thus held that the cause of action accrued on March 9, 2012. Plaintiff

needed to file his complaint no later than March 9, 2014.

Judge Covello found Kuhrt is entitled to both qualified and sovereign

immunity, based on the objective nature and basis of his conduct at the time of

the stop. The trial court found it has long been settled that the subjective intent

of a police officer is of no significance in evaluating his alleged violations of

the Fourth Amendment so long as his acts are reasonable. State v. Bruzzese, 94

N.J. 210, 219 (1983). He found it indisputable that Kuhrt had probable cause to

initiate the traffic stop because plaintiff failed to maintain his lane and tailgated

another motorist. Thus, whether he was asked to pull the defendant over by

entities investigating the plaintiff is of no import when Kuhrt possessed probable

cause to initiate the stop. As such, in his individual capacity, Kuhrt committed

no wrongdoing. Even if his actions were influenced by pretext, the traffic stop

was certainly legal. And wrapping up this argument, we agree with Judge

Covello that plaintiff's attempt to hold Kuhrt responsible in his official capacity

is also futile under NJCRA based on Kuhrt's sovereign immunity.

Finally, plaintiff argues the trial court erred in dismissing his complaint,

and he asserts he received a favorable outcome. Having reviewed the record,

A-2818-19 9 we again affirm here for the reasons stated by Judge Covello in his well-reasoned

written decision issued with the January 31, 2020 and the September 17, 2019

orders.

As Judge Covello noted, dismissing plaintiff's amended complaint, to

prevail in a claim for malicious prosecution in New Jersey, 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." Helmy v. City of Jersey City, 178 N.J. 183, 190 (2003) (citing Lind

v. Schmid, 67 N.J. 255, 262 (1975); JEM Mktg., LLC v. Cellular Telecomm.

Indus. Ass'n, 308 N.J. Super. 160, 172 (App. Div. 1998)).

If the charge against a plaintiff is withdrawn, or the prosecution

abandoned, pursuant to an agreement of compromise with the accused, "the

termination is viewed as indecisive and insufficient to support the cause of

action [for malicious prosecution]." Mondrow v. Selwyn, 172 N.J. Super. 379,

384 (App. Div. 1980) (citing Restatement (Second) of Torts § 658 (Am. Law

Inst. 1977)). "Having compromised for his peace in the criminal proceeding,

the accused may not later contend that the proceedings terminated in his favor."

Id. at 384-85 (citing Restatement (Second) of Torts § 660 cmt. c (Am. Law Inst.

A-2818-19 10 1977)). Plaintiff's proposed amended complaint alleges that the charges against

him were dismissed as part of a plea agreement. A plea agreement that resulted

in the dismissal of the misconduct charges and resulting in the withdrawal of the

State's appeal on the arson charge cannot be considered a favorable termination

for plaintiff. Thus, he cannot satisfy all elements of a cause of action for

malicious prosecution, and his claims for malicious prosecution must be

dismissed.

We have considered plaintiff's contentions in light of the record and

applicable law. We are convinced plaintiff's substantive claims were fully and

correctly addressed for the reasons given by Judge Covello and require no

further discourse. R. 2:11-3(e)(1)(E).

Affirmed.

A-2818-19 11