NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2089-18T3
LEMONT LOVE,
Plaintiff-Appellant,
v.
MIDDLESEX COUNTY PROSECUTOR'S OFFICE, HELEN ZANETAKOS, CINDY GLASER, CHRIS MULLEN, CAROLYN BERTUCCI, GLENN GRAU, LAURETTE WILSON, and BRUCE KAPLAN,
Defendants-Respondents. _____________________________
Argued telephonically May 18, 2020 – Decided June 12, 2020
Before Judges Sumners, Geiger and Natali.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-1551-16.
Lemont Love, appellant, argued the cause pro se.
Brett J. Haroldson, Deputy Attorney General, argued the cause for respondents (Gurbir S. Grewal, Attorney General, attorney; Jane C. Schuster, Assistant Attorney General, of counsel; Bryan Edward Lucas, Deputy Attorney General, on the brief).
PER CURIAM
Appellant Lemont Love appeals from a March 23, 2018 order vacating
default and a December 13, 2018 order dismissing his complaint with prejudice.
We affirm.
I.
We derive the following facts from the record. Love was the target of a
criminal investigation involving possession and distribution of controlled
dangerous substance. On October 19, 2007, members of the Middlesex County
Prosecutor's Office (MCPO) Task Force executed a search warrant of Love's
apartment in Jamesburg. Among the numerous items seized was a bank
statement for an account Love had at Sovereign Bank with a balance of
$6,691.49.
The MCPO seized the funds in the bank account and on January 14, 2008,
it filed a civil in rem forfeiture action pursuant to N.J.S.A. 2C:64-3(a), alleging
"[s]aid monies were the proceeds from Mr. Love's illegal activities or monies
used to finance and/or facilitate said illegal drug activities." The complaint
alleged Love was unemployed and restrained to his residence at the time. It
A-2089-18T3 2 sought extinguishment of Love's "property rights in said monies" and forfeiture
of the monies to the participating law enforcement agencies. Conversely, Love
argued the bank records during the search showed the funds on deposit were
received from Rider Insurance Company and were not the proceeds of illegal
drug transactions. 1
On January 22, 2008, a Middlesex County Grand Jury returned an
indictment charging Love with two counts of third-degree distribution of
cocaine; one count of third-degree possession of phencyclidine (PCP); one count
of third-degree forgery; and one count of fourth-degree theft or unlawful receipt
of a credit card. Love was also charged with various other crimes, including
additional drug offenses, in three separate indictments.
Love did not move to dismiss the forfeiture action. Instead, he agreed to
an August 21, 2008 consent order staying the forfeiture action pending
completion of his criminal proceedings.
1 In fact, the Sovereign Bank statement for Love's checking account showed he made an ATM deposit on September 12, 2007 in the amount of $8,769.90. The account statement does not disclose the source of the deposited funds. That deposit occurred significantly after Love received two checks from Rider Insurance Company dated May 22, 2007, in the amount of $7,960.56, and August 22, 2007, in the amount $809.34. A-2089-18T3 3 In March 2010, Love entered into a plea agreement with the State that
resolved his pending charges under all four indictments. Pertinent to the
narcotics investigation and related forfeiture involved in this case, Love pled
guilty to third-degree distribution of cocaine. On that charge, the State agreed
to recommend a five-year term subject to a thirty-month period of parole
ineligibility. Love also pled guilty to additional charges under the other
indictments, yielding a recommended aggregate ten-year sentence subject to a
five-year period of parole ineligibility. The court accepted Love's plea and
sentenced him accordingly.
Love's subsequent motion to withdraw his guilty plea was denied by the
trial court and later affirmed on appeal. State v. Love, No. A-2483-10 (App.
Div. June 21, 2013). We found Love had not made "a colorable claim of
innocence and ha[d] not shown fair and just reasons for withdrawal" of the plea.
Id., slip op. at 10.
Love filed a civil action in federal district court under 42 U.S.C. § 1983
against the New Jersey Department of Corrections, the MCPO, Zanetakos, and
others. Love v. N.J. Dep't of Corr., No. 15-3681 (SDW), 2015 WL 4430353
(D.N.J. July 20, 2015). There, Love alleged the defendants breached an
agreement that the seized funds were to be sent to his brother. Id. at *1. The
A-2089-18T3 4 district court found that Zanetakos mailed the check refunding Love's seized
monies to the prison where he was incarcerated and the prison deposited the
funds into his inmate account after deducting approximately $1600 "to pay
various fees owed by [Love]." Ibid. The judge noted that while Love
characterized these deductions as "'spending' his money," the certified account
statement attached to the complaint made "it clear that these deductions covered
the costs of loans, fines, and fees [Love] owed to, among others, this [c]ourt and
the State of New Jersey arising out of his criminal convictions and filing of civil
suits." Id. at *1 n.1.
The district court dismissed Love's Section 1983 claims because they
amounted to no more than alleged negligence, which is not a cognizable cause
of action under Section 1983. 2 Id. at *4. The court also found "an adequate
post-deprivation remedy" for the alleged negligence was available under the
New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3. Ibid. Thus, the
alleged deprivation of property without authorization did "not result in a
2 In this case, Love's federal claims are blocked by collateral estoppel. His arguments are identical to those raised before the district court; he had "a full and fair opportunity to litigate the issue"; the district court entered a final judgment to which determination of the federal claims was essential; and the parties involved are identical. Perez v. Rent-a-Center, Inc., 186 N.J. 188, 199 (2006) (quoting Fama v. Yi, 359 N.J. Super. 353, 359 (App. Div. 2003)). A-2089-18T3 5 violation of the Fourteenth Amendment." Ibid. The court declined to exercise
supplemental jurisdiction over the state law claims. Love v. Dep't of Corr., No.
15-3681 (SDW), 2016 WL 632226, at *6 (D.N.J. Feb. 17, 2016).
On February 16, 2016, Love filed this action against respondents MCPO;
then Prosecutor Bruce Kaplan; Assistant Prosecutors Helen Zanetakos, Cindy
Glaser, and Glenn Grau; Detectives Chris Mullen and Laurette Wilson; and
Investigator Carolyn Bertucci. Love alleges respondents maliciously prosecuted
him; conspired to maliciously prosecute him; violated his right to due process
by depriving him of life, liberty, and property without probable cause; destroyed
his property; and committed theft. Love named the individual respondents in
their official and individual capacities and sought an award of compensatory and
punitive damages as well as prejudgment interest.
Respondents moved to dismiss the complaint for failure to state a claim
upon which relief can be granted pursuant to Rule 4:6-2(e). On March 8, 2017,
the motion court dismissed Love's claims except for conspiracy to maliciously
prosecute. Both parties moved for reconsideration. On June 1, 2017, the motion
court partially granted reconsideration and restored Love's claim for malicious
prosecution.
A-2089-18T3 6 Love later moved to amend his complaint, which was denied.
Respondents filed an answer on August 7, 2017. After the discovery period
ended in June 2018, respondents again moved to dismiss the complaint pursuant
to Rule 4:6-2(e). Because respondents submitted additional supporting
documents, the motion court converted the motion into one for summary
judgment.3 Love cross-moved for summary judgment. Following oral
argument, the motion court a thirteen-page written opinion and order denying
Love's motion for summary judgment and granting respondent's motion,
dismissing the complaint with prejudice.
In his written opinion, the motion judge found: (1) respondents were
entitled to absolute and qualified immunity; (2) Love's TCA claim was time-
barred; (3) Love did not provide evidential support for his malicious prosecution
claim and the consent order—relinquishing Love's seized money back to him—
did not qualify as a "favorable termination"; and (4) Love did not provide legal
or evidential support to demonstrate a conspiracy to maliciously prosecute. This
appeal followed.
3 If "matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided by [Rule] 4:46." R. 4:6-2.
A-2089-18T3 7 Love argues the trial court erred by granting respondents' motion to
dismiss based on prosecutorial immunity, qualified immunity, and late notice of
tort claim; he satisfied the favorable termination element of malicious
prosecution; and that he alleged sufficient facts to support his claim of
conspiracy to maliciously prosecute. Notably, Love does not contend there was
inadequate probable cause for the search warrant or the resulting criminal
charges brought against him.
II.
We review a trial court's decision on a motion for summary judgment de
novo, Henry v. Department of Human Servs., 204 N.J. 320, 330 (2010), and
apply the same standard employed by the trial court, Rowe v. Mazel Thirty,
LLC, 209 N.J. 35, 41 (2012). Summary judgment should be granted where there
is no genuine issue of material fact, viewing the evidence in the light most
favorable to the non-moving party, and the moving party "is entitled to judgment
as a matter of law." Rowe, 209 N.J. at 41 (citing Brill v. Guardian Life Ins. Co.
of Am., 142 N.J. 520, 529 (1995)); R. 4:46-2(c).
On appeal, we review judgments and orders, not opinions, allowing us "to
affirm the trial court's decision on grounds different from those relied upon by "
that court. State v. Heisler, 422 N.J. Super. 399, 416 (App. Div. 2011).
A-2089-18T3 8 III.
We first address Love's claim that the motion court erred in dismissing his
claims for malicious prosecution and conspiracy to maliciously prosecute based
on a lack of evidential support, absolute prosecutorial immunity, and qualified
immunity. We are unpersuaded by his arguments.
To demonstrate malicious prosecution, a plaintiff must demonstrate: (1)
the institution of the criminal proceeding by defendant against plaintiff; (2)
defendant initiated the proceeding with malice; (3) an absence of probable
cause; and (4) a favorable termination for plaintiff. LoBiondo v. Schwartz, 199
N.J. 62, 90 (2009) (citing Lind v. Schmid, 67 N.J. 255, 262 (1975)). "[E]ach
element must be proven, and the absence of any one of these elements is fatal to
the successful prosecution of the claim." Ibid. (citing Klesh v. Coddington, 295
N.J. Super. 51, 58 (Law Div.), aff'd, 295 N.J. Super. 1 (App. Div. 1996)).
Regarding the claim for conspiracy to maliciously prosecute, Love was
required to demonstrate respondents formed an agreement "to deprive [him] of
his civil rights." Morgan v. Union Cty. Bd. of Chosen Freeholders, 268 N.J.
Super. 337, 366 (App. Div. 1993). Although the unlawful agreement need not
be expressed, the participants must share the general conspiratorial objective.
Weil v. Express Container Corp., 360 N.J. Super. 599, 614 (App. Div. 1993).
A-2089-18T3 9 The existence of probable cause for the forfeiture action defeats any claim for
conspiracy to maliciously prosecute Love.
A. Claims Against the Prosecutors
Prosecutors are absolutely immune from Section 1983 claims for their
actions associated with the "judicial phase of the criminal process" and, thus,
shielded from liability for any wrongdoing allegedly committed while acting as
an advocate for the State. Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976) (by
"initiating a prosecution and in presenting the State's case, the prosecutor is
immune from a civil suit for damages under § 1983").
Absolute prosecutorial immunity is not limited to Section1983 claims. It
also applies with equal force to claims under the TCA for malicious prosecution
and conspiracy to maliciously prosecute associated with the judicial phase of in
rem forfeiture actions commenced pursuant to N.J.S.A. 2C:64-3(a). See Schrob
v. Catterson, 948 F.2d 1402, 1411 (3d Cir. 1991) (stating that "absolute
immunity is extended to officials when their duties are functionally analogous
to those of a prosecutor's, regardless of whether those duties are performed in
the course of a civil or criminal action" (citing Butz v. Economou, 438 U.S. 478,
515 (1978))). Regarding forfeiture, the Third Circuit found "that a prosecutor
seeking a seizure warrant is performing 'the preparation necessary to present a
A-2089-18T3 10 case' and such preparation is encompassed within the prosecutor's advocacy
function." Id. at 1416. Moreover, it held "that a prosecutor's actions and
statements before a judge in support of an in rem complaint and seizure warrant
are entitled to absolute immunity." Id. at 1417.
In the case at hand, Assistant Prosecutor Glaser presented Detective
Mullen's affidavit to the court in a hearing resulting in a seizure order; Assistant
Prosecutor Grau drafted and submitted the forfeiture complaint to initiate the in
rem action against Love's bank account; Detective Bertucci provided a
certification verifying the accuracy of the forfeiture complaint; and Assistant
Prosecutor Zanetakos litigated Love's forfeiture proceeding.
Love does not claim respondents lacked probable cause to obtain the
search warrant for his apartment or the resulting charges that were prosecuted,
nor would any such claim be viable. The search warrant was issued by a neutral
magistrate. A grand jury found probable cause and returned an indictment
charging Love with the offenses. He pleaded guilty to third-degree distribution
of cocaine. His conviction was affirmed on appeal.
The decision to initiate and prosecute the forfeiture action was part of the
judicial phase of the criminal proceedings brought against Love. Those actions
fall squarely within the absolute prosecutorial immunity afforded to prosecutors.
A-2089-18T3 11 Accordingly, respondents Kaplan, Zanetakos, Glaser, and Grau are absolutely
immune from liability for the alleged malicious prosecution and conspiracy to
maliciously prosecute. The motion court properly dismissed Love's claims
against those respondents with prejudice.
B. Claims against the Detectives and Investigator
"Qualified immunity protects all officers 'but the plainly incompetent or
those who knowingly violate the law.'" Connor v. Powell, 162 N.J. 397, 409
(2000) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). Our Supreme
Court has interpreted Section 1983 "to limit the rights of plaintiffs and to
encourage disposition of the actions as a matter of law, at least when these
actions arise out of an alleged unlawful arrest, search, or seizure by a law
enforcement officer." Kirk v. City of Newark, 109 N.J. 173, 179 (1988). The
same analysis applies to claims for malicious prosecution and conspiracy to
maliciously prosecute under the TCA.
Love asserts his rights were violated by the seizure of his bank account
and the initiation of the forfeiture action. "[A] law enforcement officer can
defend such a claim by establishing either that he or she acted with probable
cause, or, even if probable cause did not exist, that a reasonable police officer
could have believed in its existence.'" Morillo v. Torres, 222 N.J. 104, 118-19
A-2089-18T3 12 (2015) (quoting Kirk, 109 N.J. at 184). In fact, "probable cause is an absolute
defense to [claims for] malicious prosecution [and] Section 1983 claims."
Wildoner v. Borough of Ramsey, 162 N.J. 375, 389 (2000).
"[O]ur jurisprudence has held consistently that a principal component of
the probable cause standard 'is a well-grounded suspicion that a crime has been
or is being committed.'" State v. Moore, 181 N.J. 40, 45 (2004) (quoting State
Nishina, 175 N.J. 502, 515 (2003)); accord Orsatti v. N.J. State Police, 71 F.3d
480, 482-83 (3d Cir. 1995) (applying the same standard). In a forfeiture
proceeding, the Supreme Court has held "a pre-trial asset restraint
constitutionally permissible whenever there is probable cause to believe that the
property is forfeitable." Kaley v. United States, 571 U.S. 320, 323 (2014);
accord State v. Melendez, 454 N.J. Super. 445, 463-64 (App. Div. 2018)
(outlining the procedure under N.J.S.A. 2C:64-3 for pre-trial asset forfeiture).
Determining whether probable cause existed in a forfeiture case involves two
steps: "[t]here must be probable cause to think that (1) that the defendant has
committed an offense permitting forfeiture, and (2) that the property at issue has
the requisite connection to that crime." Kaley, 571 U.S. at 323-24.
Here, the motion court found respondents had probable cause to seize
Love's assets since the investigation revealed
A-2089-18T3 13 he had a motive and the expertise to commit the suspected crimes of drug possession and distribution, had been in the residence where the crimes and subsequent search occurred, was among the people [who] would have been aware that a large amount of [cash] might have been in that residence, and was described by witness[es] as having been in the area on several occasions around the time of the crime.
We concur. Previously, we have found that a large sum of currency in
close proximity to CDS, paraphernalia, and other illegal activities is a significant
factor in determining whether the currency is forfeitable. See State v.
$36,560.00 in U.S. Currency, 289 N.J. Super. 237, 255 (App. Div. 1996) (noting
that "money's proximity to prima facie contraband, such as controlled dangerous
substances, or admitted past or planned illegal activity," in conjunction with
other evidence of illegality, weighs in favor of forfeiture (quoting State v. Seven
Thousand Dollars, 136 N.J. 223, 235 (1994))).
According to the search warrant inventory, along with Love's bank
account statement, police also seized the following items from Love's apartment:
(1) "numerous copies of one[-]hundred and fifty dollar bills"; (2) "two glass
vials"; (3) "three boxes of sandwich bags"; (4) "three T-Mobile blackberry cell
phones"; (5) "one prescription for Percocet"; and (6) "numerous I.D. cards."
Indeed, Love does not dispute that these items were seized from his apartment
and that he was indicted and pled guilty to a charge supported by this evidence.
A-2089-18T3 14 Based upon the totality of the circumstances, we hold there was probable
cause to seize Love's bank account and initiate the forfeiture action. Therefore,
the conduct of Mullen, Wilson, and Bertucci "was justified by objectively
reasonable belief that it was lawful." Connor, 162 N.J. at 409 (quoting Gomez
v. Toledo, 446 U.S. 635, 640 (1980)).
Because there was probable cause to initiate the forfeiture action, the
motion court properly granted summary judgment dismissing Love's claims
against Mullen, Wilson, and Bertucci because each are entitled to qualified
immunity and cannot be found liable under Section 1983 or the TCA.
As no members of the MCPO are liable, the MCPO cannot be found liable
under the doctrine of respondeat superior or otherwise.
IV.
We find no merit in Love's claim that the remittance of his funds to the
Department of Corrections (DOC) rendered respondents liable for damages.
We first note that contrary to Love's assertions, there was no consent order
requiring respondents to remit the seized funds to Love's brother. At most, there
was an informal verbal representation that the funds would be sent to his brother.
Thus, returning the funds to Love through the DOC did not violate his rights or
otherwise render respondents liable for damages.
A-2089-18T3 15 Inmate funds are deposited into inmate accounts. Deductions from inmate
accounts shall be made for fines, assessments, restitution, other court-ordered
obligations, and transaction fees. N.J.A.C. 10A:2-2.2(f). In addition, "[i]n
accordance with N.J.S.A. 30:4-16.4, monies" received by an inmate that are
"derived from a civil action judgment" "shall be deposited in the account of the
inmate" and "used to pay court-imposed fines, restitution or penalties that the
inmate has not met; and may be used to satisfy any claims for reimbursement "
of the State, a county, or the DOC. N.J.A.C. 10A:2-2.2(i).
Love attempted to have the seized funds remitted to his brother rather than
to his inmate account to avoid paying his outstanding financial obligations. As
noted by the district court:
[Love] did not "lose" the property at issue when the prison deposited the check. [He] still had the same amount of money at the moment that this deposit took place and the prison itself didn't keep that money for itself. As this [c]ourt noted in screening the complaint, the only loss of funds, and in turn the loss of property, occurred when the prison, in accordance with its procedures, automatically deducted . . . money which [Love] legitimately owed to the prison, the State of New Jersey, and this [c]ourt based on his criminal conviction, various loans he had taken from the prison, and fines and fees owed the State.
[Love, 2016 WL 632226, at *3 n.3.]
A-2089-18T3 16 The district court concluded "it is doubtful that any 'taking' of property without
due process actually took place." Ibid. We agree.
The funds deducted from his inmate account were applied against the
balances owed to the DOC, the State, and the district court. To that extent, Love
suffered no loss or damages. Instead, the financial obligations he owed were
reduced by the deductions made, less authorized transaction fees. Consequently,
he suffered no deprivation of property without due process.
In light of our rulings, we do not reach Love's claim that the trial court
erred in finding his claims under the TCA were time-barred.
Love's remaining arguments are without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-2089-18T3 17