G-69 v. Degnan

• Decision Date: 21 August 1990
• Docket Number: Civ. A. No. 86-3282.
• Citation: 745 F. Supp. 254
• Parties: G-69, a/k/a DG-2, and his wife, Plaintiffs, v. John DEGNAN, et al., Defendants.
• Court: U.S. District Court — District of New Jersey

745 F. Supp. 254

G-69, a/k/a DG-2, and his wife, Plaintiffs, v. John DEGNAN, et al., Defendants.

Civ. A. No. 86-3282.

United States District Court, D. New Jersey.

August 21, 1990.

COPYRIGHT MATERIAL OMITTED

Sprague, Higgins & Creamer by Pamela W. Higgins, Philip I. Weinberg, Collingswood, N.J., for plaintiffs.

Bernard F. Conway, Morristown, N.J., for "New Jersey Atty. Gen. Defendants:" John Degnan, Irwin I. Kimmelman, Barry Goas, David Brody, and Donald Belsole.

Archer & Greiner by George Kugler, Haddonfield, N.J., for "State Police defendants:" Clinton L. Pagano, Louis Taranto, Justin Dintino, Robert Winters, Joseph Guzzardo, Estate of William P. Sullivan, Joseph Calabrese, and John Bogdan.

OPINION

BROTMAN, District Judge.

Presently pending is the motion of defendants John Degnan, Irwin Kimmelman, Donald Belsole, T. Barry Goas, and David V. Brody (the "Attorney General defendants") for summary judgment in this complex civil rights action. The state police defendants have not joined in these motions nor have they filed their own. Resolution of the instant motion revolves around the application of the law of the due process clause, as it exists in the aftermath of DeShaney v. Winnebago County Department of Social Servs., 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989), to the state's decision to renege on its alleged agreement to provide for the relocation and new identity of a confidential informant after his undercover identity had been disclosed.

I. FACTS AND PROCEDURE

Plaintiff G-69¹ brought suit under 42 U.S.C. § 1983 for alleged due process violations arising out of the state's asserted failure to perform contractual obligations to provide for his safety and that of his wife. Defendants include John Degnan, formerly the Attorney General of New Jersey, Irwin Kimmelman, formerly the Attorney General of New Jersey, Donald Belsole, the Director of the Division of Criminal Justice, T. Barry Goas, Attorney in Charge of the Special Prosecution Branch, and David V. Brody, Deputy Attorney General with the Special Prosecutions Division. The complaint also names as defendants individual police officers and detectives who allegedly participated in the conduct which forms the basis for the civil rights claim.

The first count of the complaint alleges deprivations of property and liberty interests guaranteed by the due process clause of the fourteenth amendment and Art. I par. 1 of the New Jersey Constitution. The crux of G-69's claim is that the State of New Jersey, through defendants, entered into an agreement with him under which he would aid in the investigation of organized crime in return for a license to work in the casino industry, for money, and for promises concerning relocation and protection in the event that his undercover identity was discovered. Deposition of G-69 at 137-145, 149.

Plaintiffs further allege that defendants insured that plaintiff received only a temporary license to work in the casinos so that his future cooperation would be assured. Deposition of G-69 at 64, 73, 74, 75. Pursuant to an alleged subsequent oral agreement entered into in 1984, defendants made certain additional promises with regard to plaintiff's personal and financial security.

G-69's undercover role was compromised in May, 1984, when a person from his past² saw and recognized him. Plaintiffs were instructed to remain at their home and not to leave it. Plaintiffs allege that they remained there as virtual prisoners over the next several months as defendants decided whether to honor their agreement with G-69. After some delays, defendants partially complied with the alleged oral agreement by making cash payments and placing plaintiff in a "safe" house in January, 1985. E.g. Deposition of G-69 at 150. The state officials discontinued all assistance to plaintiffs as of October 31, 1985.

A newspaper article published on April 23, 1986³ further destroyed the undercover status of G-69. The article described how he had supplied information to the New Jersey state police concerning a boxing fight at which Nicodemo Scarfo was to attend; the article disclosed how this information had been used to keep Governor Thomas Kean from exposing himself to a politically embarrassing situation. See Exhibit B to Complaint.

On this relatively modest factual foundation plaintiff has constructed a claim under 42 U.S.C. § 1983 for deprivations of a liberty and property interests in violation of the due process clause. In short, plaintiffs claim that the contract with the state afforded them property rights under Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), and its progeny, and that the conduct of the state officials has deprived them of the liberty of interstate travel by creating a situation in which they are unable to travel throughout the states for fear for their lives. Plaintiffs also claim that the contract between G-69 and defendants created a "special relationship" such that the state had an affirmative duty, as a matter of constitutional law, to provide protection and relocation.

The complaint also includes claims under state law for breach of contract, fraudulent misrepresentation, invasion of privacy, and intentional and negligent infliction of emotional distress. Plaintiffs seek compensatory and punitive damages and a permanent injunction requiring defendants to perform their obligations under the contract, including the payment of money due plaintiffs.

Defendants raise five grounds for the entry of summary judgment: (1) the claims against the Attorney General defendants are "official capacity" claims which must be dismissed as a matter of law; (2) the Attorney General defendants are not "persons" within the meaning of 42 U.S.C. § 1983; (3) the Attorney General defendants are entitled to qualified or absolute immunity; (4) the conduct of the state police defendants cannot be imputed to the Attorney General defendants;⁴ (5) the pendent claims should be dismissed for lack of jurisdiction.

II. DISCUSSION

The standard for granting summary judgment is a stringent one. A court may grant summary judgment only when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see Hersh v. Allen Prods. Co., 789 F.2d 230, 232 (3d Cir.1986); Lang v. New York Life Ins. Co., 721 F.2d 118, 119 (3d Cir.1983). In deciding whether there is a disputed issue of material fact the court must view all doubt in favor of the nonmoving party. Meyer v. Riegel Prods. Corp., 720 F.2d 303, 307 n. 2 (3d Cir.1983), cert. denied, 465 U.S. 1091, 104 S.Ct. 2144, 79 L.Ed.2d 910 (1984); Smith v. Pittsburgh Gage & Supply Co., 464 F.2d 870, 874 (3d Cir.1972). The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).

Recent Supreme Court decisions mandate that "a motion for summary judgment must be granted unless the party opposing the motion can produce evidence which, when considered in light of that party's burden of proof at trial, could be the basis for a jury finding in that party's favor." J.E. Mamiye & Sons, Inc. v. Fidelity Bank, 813 F.2d 610, 618 (3d Cir.1987) (Becker, J., concurring) (citing Anderson, 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 and Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Moreover, once the moving party has carried its burden of establishing the absence of a genuine issue of material fact, "its opponent must do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). Thus, if the non-movant's evidence is merely "colorable" or is "not significantly probative," the court may grant summary judgment. Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2510-11.

The court will address first whether the moving defendants are persons within the meaning of Section 1983, as that issue goes to whether plaintiffs have stated a cause of action. Only if the complaint does state a claim is it necessary to evaluate defendant's affirmative defense of qualified immunity in light of the evidence presented as viewed in the light most favorable to plaintiffs.

1. Defendants as "Persons" Within the Meaning of Statute

Defendants rely on the recent Supreme Court case in Will v. Michigan State Dep't of Police, ___ U.S. ___, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989), for the proposition that they are not "persons" within the meaning of § 1983 because they acted in their official capacities. Will simply held that a former employee's claim against the Department of State Police, his employer, and the Director of the State Police in his official capacity was not a suit against a person within the meaning of § 1983. The Supreme Court reasoned that Congress in enacting § 1983 did not intend to abrogate common law immunities, id. 109 S.Ct. at 2309, and since a state official in his official capacity was entitled to immunity, see U.S. Const. amend. XI, any official entitled to Eleventh Amendment immunity is not a person within the meaning of the statute.

Defendants claim that the suit seeks to impose monetary damages against them in their official capacities. They assert that they were acting solely on behalf of the state when they entered into the agreement with G-69. They also present portions of plaintiff's deposition in which he states that he sought to enter in a contract with state agencies, and that he just wanted the individuals to be named on the contract so that he would have someone who was responsible for dealing with him.

This court's March 2, 1987 opinion accurately described the jurisprudence of...