Speth v. Goode

Full title: CLAUS PETER SPETH, Plaintiff, v. ROBERT GOODE, GEETHA NATARAJAN, RICHARD…

Court: United States District Court, D. New Jersey

Date published: Dec 29, 2004

Civil Action No. 95-0264 (JBS) (D.N.J. Dec. 29, 2004)

Opinion

Civil Action No. 95-0264 (JBS).

December 29, 2004

Fredric J. Gross, Esq., FREDRIC J. GROSS LAW FIRM, Mount Ephraim, NJ, Attorney for Plaintiff.

Peter C. Harvey, Attorney General of New Jersey, By: Angela Foster, D.A.G., Trenton, NJ, Attorney for Defendants.

OPINION

JEROME SIMANDLE, District Judge

This controversy began in 1991, when Defendant Robert Goode, then New Jersey State Medical Examiner, began an investigation of Plaintiff Claus P. Speth, then Gloucester County Medical Examiner. As a result of the investigation, Plaintiff's certification as a medical examiner and his medical license were suspended, and criminal charges were brought against him. Plaintiff was found guilty on one of the three criminal charges, which conviction was upheld on all appeals. He now brings this suit against Robert Goode, the former New Jersey State Medical Examiner; Geetha Natarajan, the present New Jersey State Medical Examiner; the late Richard T. Carley, the former Assistant Attorney General in charge of the Operations Bureau of the Division of Criminal Justice, State of New Jersey; Marisetta Lee, a Deputy Attorney General assigned to the Operations Bureau of the Division of Criminal Justice, Department of Law and Public Safety, State of New Jersey; and the Attorney General of the State of New Jersey.

Defendants Robert Goode, Geetha Natarajan, Richard T. Carley, Marisetta Lee, and the Attorney General of the State of New Jersey have filed a motion to dismiss Plaintiff Claus P. Speth's third amended complaint under the Rooker-Feldman doctrine, under the Younger abstention doctrine, for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6),¹ and for failure to comply with the mandatory notice requirements of the Tort Claims Act, N.J.S.A. 59:8-8. For the reasons discussed herein, Defendants' motion to dismiss will be granted to dismiss certain claims on the merits and to abstain pending available state proceedings on others.

1 Defendants' motion to dismiss under Rule 12(b)(6) is supported by briefing addressed to Plaintiff's causes of action for defamation, malicious prosecution, and abuse of process with specificity, but to all counts with generality underRooker-Feldman and Younger.

I. BACKGROUND

A. Factual History

Plaintiff, a board-certified physician in anatomic and clinical pathology as well as forensic pathology, who was formerly licensed to practice medicine in New Jersey and formerly certified as a medical examiner, originally filed this lawsuit in 1995 alleging, among other things, that Defendants wrongfully attempted to deprive him of his license by accusing him of professional and criminal misconduct. (Third Amended Compl.passim.) Defendants Robert Goode and Geetha Natarajan are also physicians licensed to practice medicine in New Jersey and are board certified in pathology. (Id. ¶¶ 5-6.) Goode served as the New Jersey State Medical Examiner, from 1980 until his retirement in 2003, (id. ¶ 5), and was then replaced by Natarajan, who served as Interim New Jersey State Medical Examiner. (Id. ¶ 6.) At the relevant time, until his retirement, the late Defendant Carley was the Assistant Attorney General in charge of the Operations Bureau of the Division of Criminal Justice, Department of Law and Public Safety, State of New Jersey, (id. ¶ 7), and Defendant Lee served as a Deputy Attorney General assigned to the Operations Bureau of the Division of Criminal Justice, Department of Law and Public Safety, State of New Jersey. (Id. ¶ 8)

Plaintiff claims that Goode "undertook and promoted an official vendetta against [him]. As part and parcel of that prolonged vendetta, Goode repeatedly communicated to the State Board of Medical Examiners, seeking without success suspension or revocation of [Plaintiff]'s medical license." (Pl. Brief at 3.) Plaintiff also claims that Goode told senior attorneys in the Division of Criminal Justice, without support, that Plaintiff was making certain official cause of death determinations to receive personal financial advantage. This "speculation" resulted in a criminal investigation of Plaintiff's conduct which, Plaintiff asserts, led to no evidence that corroborated Goode's accusation. (Id.)

The interaction between Plaintiff and Goode began in 1991, when Goode conducted an on-site and off-site evaluation of the Gloucester County Medical Examiner's Office, which Plaintiff ran at the time. See Speth v. Goode, No. 95-cv-264, Slip. Op. at 2 (D.N.J. Apr. 28, 1995). The audit resulted in a 117-page report, the "Goode Report," which was sent to Plaintiff on December 12, 1991. Id. Goode instructed Plaintiff to read the report and be prepared to discuss it at a January 8, 1992 meeting at the Division of Criminal Justice. Id. at 3. Prior to receiving the Goode Report, Plaintiff says that he received a letter dated December 3, 1991, which denounced him for conducting sixty-one partial autopsies in violation of Goode's regulations.Id. Plaintiff says that this December 1991 letter was sent to the Gloucester County Board of Chosen Freeholders and leaked to the press, as was a January 1992 letter that was sent to the Gloucester County Board of Chosen Freeholders, which raised questions about Plaintiff's reappointment as Gloucester County Medical Examiner in light of the Goode Report. Id. at 3-4.

Before the January 8, 1992 meeting, Plaintiff himself published the Goode Report, which he now contends he did because the report had already been leaked to the press. Id. at 4. Plaintiff's attorney attended the January 8 meeting, in lieu of Plaintiff, where he requested, and was granted, additional time for Plaintiff to respond to the report. Id. at 5. At another meeting on January 15, 1992, the parties decided that Plaintiff would submit a written response to the Goode Report, which he did partially by letter dated January 20, 1992, requesting a sixty-day extension to fully respond. Id. at 5-6. By letter dated January 31, 1992, Carley informed Plaintiff that his written report was due by February 28, 1992, and in a letter dated March 26, 1992, he informed Plaintiff that if a response was not received by March 31, 1992, the Division and the Office of the State Medical Examiner would regard the report as accepted. Id. at 6. Plaintiff did not respond to the Report by March 31st, so Goode concluded that Plaintiff could not rebut, and had not corrected, the problems outlined in the report. Id. Plaintiff claims, though, that Goode and Carley reassured him at the time that the Goode Report would not be used as the basis for declaring him ineligible to serve as Gloucester County Medical Examiner. Id. at 5.

Plaintiff also alleges that on January 28, 1992, Goode appeared before the Gloucester County Board of Chosen Freeholders in a closed session, where he read a summary of the Goode Report, and expressed his opinion that Plaintiff was not suited to serve as a New Jersey County Medical Examiner. Id. at 6. The Chief of Police of West Deptford expressed a similarly negative view on the issue, so Plaintiff withdrew himself from consideration for reappointment as the Gloucester County Medical Examiner. Id. at 7.

On April 10, 1992, Goode informed Plaintiff that as a result of the deficiencies cited in the Goode Report and Plaintiff's failure to explain them, Plaintiff would no longer be eligible to practice within the State Medical Examiner System for a period of one year, after which he would be required to complete a remedial course in the Laws, Rules and Regulations held by the State Medical Examiner, and a seven day internship under the supervision of the New Jersey State Medical Examiner Office, prior to seeking reinstatement. If reinstated, he would be placed on probation for one year, so that he would perform his duties under supervision, prior to being fully reinstated. Id. at 7-8. Plaintiff did not attempt or complete these steps, id.; he claims, however, that this is because Natarajan refused to schedule the training. (Def. Brief at 13.)

No longer a County Medical Examiner, Plaintiff began to complete private autopsy work. In 1993, in the presence of State Medical Examiner's Office morgue attendant Jeanette Aguillar, Plaintiff examined various specimens which had been preserved in formalin, on behalf of the Estate of the deceased, Ronald Puttorak. (Pl. Brief at 4.) Defendant Natarajan had previously completed the formal autopsy and had concluded that the cause of death was suicide. (Pl. Brief at 3-4.) Plaintiff claims that he discovered hemorrhage-bearing tissue and a fracture which the prosector had missed, and which was inconsistent with the finding of suicide. (Pl. Brief at 4.) Plaintiff was observed to be "picking with his fingers at the tissue surrounding the hyoid bone." Speth, No. 95-cv-264 at 8 (quoting Speth Decl. Ex. F, ¶ 10). Plaintiff photographed the tissue and commented to Aguillar that he had found hemorrhage and a fracture, who then repeated these comments to Natarajan. (Pl. Brief at 4.)

According to Plaintiff, Natarajan then excised the hemorrhage-bearing tissue without recording this activity, and later demonstrated to Aguillar and two other State Medical Examiner personnel that there was no hemorrhage on the hyoid bone, and that any fracture would therefore have been induced post-mortem. (Pl. Brief at 4.) Natarajan then called Goode to inform him of these findings, who examined the hyoid bone the next day and found a fracture, but no hemorrhage-bearing tissue. (Pl. Brief at 4-5.) The Essex County Prosecutor then began investigating whether or not Plaintiff had tampered with the evidence. Speth, No. 95-cv-264 at 9. Plaintiff asserts that Defendants did not bring the investigation to a close, but instead continued to publicize the fact that Plaintiff was under investigation for evidence tampering. (Pl. Brief at 5.) Plaintiff argues that his "consulting practice was devastated by the official announcement that he was under investigation for evidence tampering and by republication of [the Goode Report]." (Pl. Brief at 6.)

In March, 1994, attorney Francis Monahan contacted Natarajan, who had by then succeeded Goode as State Medical Examiner, to determine if Plaintiff could examine evidence in her possession relating to the prosecution of his client, Tracy Spencer.Speth, No. 95-cv-264 at 9. Natarajan denied Monahan's request and, according to Monahan, tried to convince him not to use Plaintiff as an expert by stating that Plaintiff had criminal charges against him. Id. (quoting Monahan Dec. ¶¶ 6-7).

Monahan nevertheless hired Plaintiff, and Natarajan, represented by Lee, appeared before the judge in the case against Tracy Spencer to voice her concerns about the possibility of Plaintiff handling the evidence. Speth, No. 95-cv-264 at 9. Plaintiff contends that Lee's presentation was ex parte andin camera and was made in an effort to enjoin Plaintiff from ever serving as an expert in any case involving Medical Examiner System evidence. Id. (citing Speth Decl., Ex. A at 2). Plaintiff claims that Natarajan, referring to an aborted Office of Administrative Law ("OAL") proceeding, complained to the judge that Plaintiff had sued the State Medical Examiner. (Pl. Brief at 5.) The judge declined to impose the blanket relief sought by the Attorney General, finding the Spencer case to be an inappropriate forum, and instead ordered that Plaintiff could examine the evidence by watching the approved Medical Examiner perform the necessary work. Speth, No. 95-cv-264 at 10 (citing Speth Decl., Ex. A at 47-48).

In the year following the Spencer case, Defendants claim that the State Medical Examiner's office received no other requests for Plaintiff to examine or handle evidence, and Dr. Natarajan did not issue any directives to county medical examiners about how to respond to Plaintiff's requests to handle evidence, and was unaware of Plaintiff making any such requests to county medical examiners. Id. Plaintiff argues that attorneys who would have used him will no longer use him because of the letter of ineligibility, its use for impeachment, and the actions of the defendants. Id. Plaintiff did, however, testify in 1993-94 as an expert witness employed by the defense in four homicide cases. The State attempted to impeach Plaintiff with the letter of ineligibility, but in three of the four cases, the defendant was found innocent, allegedly as a result of Plaintiff's testimony. Id.

During the investigation of Plaintiff's conduct in his 1993 examination of the specimen for the Estate of Ronald Puttorak, Plaintiff attempted to induce Defendant Natarajan to withhold material evidence and testimony regarding that examination. (Def. Reply Brief for Mot. to Amend Ex. I at 5.) Plaintiff offered, in exchange for Defendant Natarajan's withholding of evidence and testimony, to stop the ongoing criticism of Defendant Natarajan by "Concerned Citizens for an Effective Medical Examiners Office," which criticism was discovered to be Plaintiff's own efforts in writing letters to high public officials criticizing Defendant Natarajan. (Def. Reply Brief for Mot. to Amend Ex. I at 5.)

Meanwhile, on March 7, 1994, Plaintiff appealed his eligibility status as Medical Examiner to the Office of Administrative Law, moving for emergent relief which was denied on May 27, 1994 by then-Chief Administrative Law Judge, now-Justice Jaynee LaVecchia. (Foster Aff., Ex. E.) On December 5, 1994, Plaintiff withdrew his appeal of his eligibility status as a Medical Examiner. (Id., Ex. F.)

On October 5, 1995, the Essex County Prosecutor's Office indicted Plaintiff for third degree tampering with a witness, because he attempted to persuade Defendant Natarajan to withhold testimony or physical evidence in the criminal proceeding, fourth degree tampering with physical evidence based on his 1993 examination, and fourth degree false swearing in his report from the 1993 examination. (Def. Brief at 3, Def. Reply Brief for Mot. to Amend Ex. I at 5-6.) Plaintiff was convicted of third degree tampering with a witness on October 28, 1997, but the other two charges resulted in a deadlocked jury and were eventually dismissed upon Plaintiff's formal demand for a speedy retrial. (Def. Brief at 4-5.) Plaintiff's motion for a new trial was denied on February 6, 1998.

On February 24, 1998, the State Board of Medical Examiners filed a complaint requesting the revocation or suspension of Plaintiff's license to practice medicine and surgery in the State of New Jersey. (Def. Brief at 4.) Defendants claim that on or about June 10, 1998, Plaintiff voluntarily signed an interim consent order surrendering his license during the pendency of his appeals in the criminal action. (Def. Brief at 4.)

On July 14, 1999, the Appellate Division affirmed Plaintiff's conviction, on August 13, 1999, denied his motion for reconsideration, and on December 26, 2000, denied his Second Notice of Appeal. (Def. Brief at 4-5.) The Supreme Court of New Jersey denied certiorari on January 23, 2003, and the Supreme Court of the United States denied certiorari on or about October 3, 2003.² (Def. Brief at 5.)

2 Speth petitioned this Court for habeas corpus relief from his conviction in a petition filed on April 5, 2004, pursuant to 28 U.S.C. § 2254, encaptioned Speth v. State of New Jersey, 04-cv-1578 (JBS). In an Opinion and Order filed August 12, 2004, this Court found that the petition must be dismissed for lack of jurisdiction because Speth cannot satisfy the "in custody" requirement of § 2254.

Plaintiff brought this suit in 1995 because he alleged that in publishing the Goode Report, declaring him ineligible, encouraging the indictment and prosecution, and suspending his license, Defendants defamed him, defrauded him, abused the criminal process, maliciously prosecuted him, abused their offices for personal benefit, tortiously interfered with his economic advantage and his right to exercise his trade, retaliated against him for initiating § 1983 litigation, and deprived him of due process and equal protection. Plaintiff invokes this Court's jurisdiction under 28 U.S.C. §§ 1331 and 1337, and invokes supplemental jurisdiction under 28 U.S.C. § 1367 with respect to all matters arising under New Jersey law. (Third Amended Compl. ¶ 1.)

More specifically, the Third Amended Complaint alleges thirteen counts, of which two counts have been withdrawn, summarized as follows:

Count I — Conspiracy to deprive Plaintiff of due process of law by defaming Plaintiff and maliciously interfering with his right to pursue a career as a licensed physician, in violation of the Fourteenth Amendment. (Third Amended Compl. ¶¶ 11-25.)

Count II — Arbitrary imposition of special conditions and restrictions upon Plaintiff for conducting forensic exams, in violation of the Fourteenth Amendment. (Id. at ¶¶ 26-31.)

Count III — Singling Plaintiff out for special conditions and restrictions in violation of the equal protection clause of the Fourteenth Amendment. (Id. at ¶¶ 32-33.)

Count IV — Withdrawn. (Id. at ¶ 34.)

Count V — Oppressively abusing offices for personal benefit of Goode and Natarajan under color of state law. (Id. at ¶¶ 35-36.)

Count VI — Defendants intentionally engaged in tortious interference with Dr. Speth's prospective economic advantage, contrary to New Jersey law. (Id. at ¶¶ 37-38.)

Count VII — Defamation, contrary to New Jersey law. (Id. at ¶¶ 39-40.)

Count VIII — Tortious interference with exercise of New Jersey constitutional right to exercise his trade. (Id. at ¶¶ 41-42.)

Count IX — Equitably defrauding Plaintiff by dissuading him from contesting accusations in the Goode Report, giving false assurances. (Id. at ¶¶ 43-45.)

Count X — Withdrawn. (Id. at ¶ 46.)

Count XI — Conspiracy to maliciously abuse criminal process by urging Essex County Prosecutor to prosecute Plaintiff for tampering with the Puttorak hyoid bone and for falsely certifying his discovery of hemorrhage, which charges were eventually dismissed. (Id. at ¶¶ 47-53.)

Count XII — Retaliation for filing this civil suit by using official positions to prevail upon Essex County Prosecutor to indict Plaintiff on charges that eventually were dismissed, depriving Plaintiff of due process in violation of § 1983. (Id. at ¶¶ 54-57.)

Count XIII — Conspiracy to maliciously prosecute Plaintiff for crimes Defendants know, or reasonably should have known, he never committed, in violation of New Jersey law. (Id. at ¶¶ 58-59.)

B. Procedural History

On November 23, 1993, over one-and-a-half years after the declaration of ineligibility was issued on April 10, 1992, Plaintiff appealed the declaration to the OAL. Speth, 95-cv-264 at 8. In April, 1994, Plaintiff moved for an order which would rescind the letter, but the motion was denied on May 26, 1994. Id. Plaintiff withdrew his administrative appeal on December 5, 1994. Id.

On January 5, 1995, Plaintiff filed a Complaint in this Court, which Plaintiff later amended on March 9, 1995. On March 14, 1995, Plaintiff filed a motion for preliminary injunctive relief against Defendants, in which he sought to enjoin them from placing conditions on his access to medical evidence in the custody and control of the State Medical Examiner and County Medical Examiner, from asserting in a public forum that Plaintiff was under criminal investigation or has tampered with evidence, from asserting or confirming that Plaintiff is ineligible for the position of Medical Examiner, and from disseminating the Goode Report. On April 28, 1995, this Court denied Plaintiff's motion for a preliminary injunction, finding that Plaintiff's claim did not warrant such relief because his lost professional opportunities were monetizeable, because he had little probability of success on the merits for most of his claims, and because granting the preliminary injunction would cause more harm than it would prevent. Id. at 16-26.

On November 11, 1995, this Court placed the matter on inactive status pending the resolution of the criminal charges against Plaintiff, which had been initiated about one month earlier. The parties stipulated to a tolling of the statute of limitations during the pendency of the criminal proceedings, including direct and collateral appeals. After the United States Supreme Court denied certiorari on Plaintiff's criminal appeal on October 3, 2003, the present civil matter was re-opened. On February 20, 2004, Plaintiff moved to amend his Complaint for the second time, and Defendants cross-moved to dismiss his Complaint pursuant to Fed.R.Civ.P. 12(b). On April 16, 2004, this Court granted Plaintiff's motion. On April 29, 2004, per this Court's request, Plaintiff submitted a Third Amended Complaint, and Defendants' motion to dismiss was denied without prejudice as moot due to the filing of that amended pleading. Defendants subsequently filed the present motion to dismiss Plaintiff's Third Amended Complaint.

II. DISCUSSION

A. The Rooker-Feldman Doctrine

Defendants argue, first, that the Rooker-Feldman doctrine deprives this Court of subject matter jurisdiction over Plaintiff's claims. The Rooker-Feldman doctrine provides that the Supreme Court is the exclusive means for review of a final adjudication made by a state's highest court, so that a federal district court cannot review a decision made by the highest court of the state. Rooker v. Fidelity Trust Co., 263 U.S. 413, 416 (1923); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482 (1983). Therefore, "[i]f the relief sought in [the district court] would `effectively reverse the state decision or void its ruling . . . the district court has no subject matter jurisdiction to hear the suit.'" Id. at 390-91 (quotingWhiteford v. Reed, 155 F.3d 671, 674 (3d Cir. 1998)). Moreover, when constitutional claims presented to the district court are inextricably intertwined with the merits of a state court's decision, the district court lacks subject matter jurisdiction to hear the claim. Feldman, 460 U.S. at 483; Port Auth. P.B.A. v. Port Auth. of N.Y. N.J., 973 F.2d 169, 177 (3d Cir. 1992).

Under this doctrine, the district court cannot review a decision by the highest state court when it is an adjudicative decision. See Valenti v. Mitchell, 962 F.2d 288, 297 (3d Cir. 1992) (distinguishing between non-adjudicative decisions that do not bar subsequent suit in district court and adjudicative decision that do bar such subsequent suits). An adjudication involves the application of existing law to the facts of a particular case. Feldman, 460 U.S. at 479. Adjudication of a claim includes the denial of a petition in the state's supreme court, where it applied existing law to the case's facts to make a decision. Valenti, 962 F.2d at 296; Blake v. Papadakos, 953 F.2d 68, 73 (3d Cir. 1992). Thus subsequent challenge of the adjudication is outside of the district court's subject matter jurisdiction. Id.

Defendants argue that the Rooker-Feldman doctrine deprives this Court of jurisdiction, because Plaintiff's Complaint includes claims previously resolved by the New Jersey Supreme Court, as he argues that his October 28, 1997 conviction for third degree witness tampering violated his due process rights. Defendants point to the underlying factual history of this case: Plaintiff was convicted on October 28, 1997 in the Superior Court of New Jersey of third degree witness tampering. Plaintiff subsequently filed a "Notice of Motion for Appeal," which was denied by the Superior Court of New Jersey, Appellate Division on July 14, 1999. Plaintiff appealed to the New Jersey Supreme Court and was denied on January 23, 2003. The United States Supreme Court denied Plaintiff's petition for a writ of certiorari on October 3, 2003.

Plaintiff argues, however, that neither his malicious abuse of process claim, nor any of his other claims, challenges his conviction for third degree witness tampering. (Third Amended Compl. at ¶¶ 11-59.) Plaintiff instead is challenging Defendants' role in urging the Essex County Prosecutor's Office to prosecute Plaintiff for the two charges that did not result in a conviction. (Id. at ¶ 51.)

While Plaintiff's malicious abuse of process claim challenges two charges that are undoubtedly related to his conviction, they do not appear to be inextricably intertwined with the state court's decision in his conviction on the third charge. The first and second charge in the indictment, upon which the jury was hung, stem from Plaintiff's alleged altering of the specimen and false testimony as to his finding a fracture of the hyoid bone associated with hemorrhage. The third charge in the indictment, on which Plaintiff was convicted, stems from Plaintiff's attempt to persuade Defendant Natarajan to withhold testimony or physical evidence. Because the third charge could have been, and indeed was, decided without final adjudication as to whether Plaintiff was guilty of actually altering the specimen and falsely testifying as to his findings regarding that specimen, the first two charges are not so inextricably intertwined with the third as to deprive this Court of jurisdiction.

Moreover, Plaintiff's other claims in this matter are even less intertwined with his conviction than is his malicious abuse of process claim, as they are based not on the conviction at all, but rather on the Goode Report, Goode's Declaration of Ineligibility Letter, the publication of these materials, the restrictive conditions imposed on Plaintiff prior to his conviction, false assurances about the report, and the charges not resulting in a conviction. (Id. at ¶¶ 11-59.) Thus, because Plaintiff's Complaint does not ask this Court to effectively reverse the state court's decision or void its ruling, theRooker-Feldman doctrine does not strip this Court of subject matter jurisdiction.

B. The Younger Abstention Doctrine

Next, Defendants argue that the Younger abstention doctrine requires this Court to abstain from exercising jurisdiction over this case, because any decision rendered here would interfere with the state administrative proceeding that Plaintiff initiated to appeal the determination that Plaintiff was ineligible to practice as a Medical Examiner. Younger v. Harris, 401 U.S. 37 (1971).

The Supreme Court, in Younger, explained that federalism represents a system "in which the National Government, anxious though it may be to vindicate and protect federal rights and federal interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the States." 401 U.S. at 44. In abstention decisions beginning withYounger, the Supreme Court has articulated a strong public policy against interference with ongoing State proceedings by federal courts. Id. at 43. The Younger abstention doctrine instructs that, absent extraordinary circumstances justifying intrusion, federal courts should refrain from taking any injunctive or declaratory action in cases where the federal plaintiff has or had adequate redress available in State proceedings. See Pennzoil v. Texaco, 481 U.S. 1 (1987); Ohio Civil Rights Comm'n v. Dayton Christian Schools, Inc., 477 U.S. 619 (1986); Samuels v. Mackell, 401 U.S. 66 (1971); Younger v. Harris, 401 U.S. 37 (1971).

The Supreme Court has extended the Younger doctrine from criminal proceedings to civil proceedings, including administrative proceedings. See Ohio Civil Rights Comm'n, 477 U.S. 619; Williams v. Red Bank Bd. of Ed., 662 F.2d 1008, 1020-21 (3d Cir. 1981). "The policies underlying Younger are fully applicable to noncriminal judicial proceedings when important state interests are involved." Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 432 (1982) (citing Moore v. Sims, 442 U.S. 415, 423 (1979)). Thus the fact that the proceeding being questioned under the Younger doctrine is an administrative proceeding makes abstention no less appropriate.

In Quackenbush v. Allstate Ins. Co., the Supreme Court held that because the action was solely for damages, abstention under the Burford doctrine was inappropriate. 517 U.S. 706, 730 (1996). The Third Circuit has interpreted the Supreme Court's holding in Quackenbush as indicating "that abstention underYounger principles is not proper when damages are sought."Marran v. Marran, 376 F.3d 143, 155 (3d Cir. 2004).

Here, Plaintiff requests both equitable relief and damages. The first issue here, therefore, is whether the Younger abstention doctrine bars Plaintiff's claim for equitable relief. The equitable relief request by Plaintiff is as follows:

[t]he defendants, and each of them, be enjoined (I) from circulating or further publishing the Goode Report, (ii) from declaring and continuing to assert that Dr. Speth is "ineligible" to serve as a medical examiner; (iii) to notify all who inquire that any past determination of ineligibility has been vacated.

(Third Amended Compl. at ¶ A.)³

3 Though Plaintiff contends that only his second request for equitable relief was at issue in the OAL proceeding, it appears that a decision by the OAL on Plaintiff's ineligibility would necessarily have involved the issue of the validity of the Goode Report, and whether Defendants should be allowed to publish and circulate it. The decision of the ALJ denying Plaintiff's request for emergent relief mentions the Goode Report as the basis for the letter of ineligibility. (Def. Mot. to Dismiss, Ex. E at 2) This supports the Court's belief that the issue of the Goode Report was not separate from the issue of the letter of ineligibility. Furthermore, a determination by the OAL that the withdrawal of Plaintiff's eligibility was in error would result in notification that Plaintiff's determination of ineligibility had been vacated. Thus Plaintiff may not avoid application of theYounger abstention doctrine by dividing and recasting the same issues into different language.

In Middlesex, the Supreme Court articulated three requirements for the application of the Younger abstention doctrine: (1) the existence of an ongoing state proceeding which is judicial in nature; (2) the implication of important state interests; and (3) an adequate opportunity to raise constitutional challenges in the state proceedings. Middlesex, 457 U.S. at 432.

The first Middlesex prong is still satisfied, and Younger abstention is not precluded, where the federal plaintiff has refused to pursue appellate remedies in the state court system. A proceeding is considered "ongoing even if it is in the appellate process, because "[v]irtually all of the evils at whichYounger is directed would inhere in federal intervention prior to completion of state appellate proceedings, just as surely as they would if such intervention occurred at or before trial."Huffman v. Pursue, Ltd., 420 U.S. 592, 608-09 (1975). Therefore, as the Supreme Court explained:

[f]or Younger purposes, the State's trialand-appeals process is treated as a unitary system, and for a federal court to disrupt its integrity by intervening in midprocess would demonstrate a lack of respect for the State as sovereign. For the same reason, a party may not procure federal intervention by terminating the state judicial process prematurely. . . .

New Orleans Pub. Serv. v. New Orleans, 491 U.S. 350, 369 (1989) (emphasis added).

As a result, in O'Neill v. City of Philadelphia, 32 F.3d 785 (3d Cir. 1994), the Third Circuit directed the dismissal of a complaint where the federal plaintiffs chose to pursue a collateral due process challenge to administrative proceedings in federal court rather than pursing state court judicial review of the decision. 32 F.3d 785, 790-91.

Consequently, the first prong of Middlesex requiring an ongoing proceeding does not actually require that there be a currently pending state proceeding, because the prong is satisfied where the state proceeding was terminated prematurely. As the court in W.K. v. New Jersey Division of Developmental Disabilities stated,

the principles set forth in Younger and its progeny do not demand that there be a currently pending state proceeding at the time of either the filing of the federal complaint or determination of the motion to abstain. Rather, it is sufficient that the federal plaintiff has an adequate opportunity to resolve the federal issues in a state proceeding.

974 F. Supp. 791, 794 (D.N.J. 1997) (quoting Huffman, 420 U.S. at 608; O'Neill, 32 F.3d at 70-91).⁴

4 Thus, where a federal plaintiff in a § 1983 action has abandoned the administrative process and judicial review thereof in the state courts, the state proceeding may be deemed "ongoing." Dictum in Marran v. Marran, 376 F.3d 155, to the effect that "[w]hen there are no pending state proceedings,Younger abstention is inappropriate," did not involve circumstances where the federal plaintiff had initiated and abandoned state judicial proceedings. Marran does not suggest that Quackenbush, supra, departed from the well-established precedents, such as New Orleans Pub. Serv., supra, which hold that a party may not pursue federal intervention by prematurely terminating the state judicial proceeding, nor did Quackenbush, address this issue.

Though Plaintiff's claim is not currently pending, the above-cited precedents suggest that the first prong is nonetheless satisfied here. Plaintiff did have the opportunity to present his claims of constitutional error to the administrative body's attention on appeal. He chose, nonetheless, to withdraw his challenge to the withdrawal of his medical examiner privileges in 1994, and he voluntarily surrendered his New Jersey license to practice medicine and surgery during the pendency of his criminal appeals in 1998, as noted above. Either or both proceedings, if reopened, would presumably be subject to administrative determination upon the record. That decision could, in turn, be appealed to the Superior Court, Appellate Division, and then be appealed to the New Jersey Supreme Court. If still dissatisfied with the state courts' treatment of his federal claims, Plaintiff could then petition for a writ of certiorari in the United States Supreme Court.

Plaintiff instead terminated the state administrative processes prematurely, when he withdrew his petition challenging Medical Examiner ineligibility status from the OAL, and soon thereafter filed a complaint requesting equitable relief in this Court, a federal district court, and when he consented before the Board of Medical Examiners to surrender his medical license in 1998. Plaintiff has done, therefore, exactly that which the Supreme Court warned against in New Orleans Public Service, 491 U.S. at 369. Because New Orleans Public Service provides that the first prong of Middlesex is still satisfied where the federal plaintiff terminated the state process early, that prong has been satisfied here.⁵

5 It would seem especially important for the State tribunals to have the opportunity to address the claim of wrongful denial of eligibility, which Plaintiff had withdrawn from consideration a decade ago, due to the occurrence of intervening events including Dr. Speth's subsequent conviction for witness tampering.

The implication of an important state interest is necessary for satisfying the second Middlesex prong. Defendants argue that "[t]here is an overwhelming state interest in ensuring the safe delivery of medical care to consumers in the state." American Inst. of Foot Med. v. N.J. Medical Exam., 807 F. Supp. 1170, 1173 (D.N.J. 1982). "`It is difficult to imagine a state interest more important than the protection of citizens against the harms of unethical or incompetent practitioners of the healing arts.'"Id. (quoting Phillips v. Virginia Bd. of Medicine, 749 F. Supp. 715, 722-23).

Plaintiff, however, argues that an important state interest is not implicated, because of the distinction between the medical profession and forensic pathology. Though Plaintiff is correct in noting that Defendants have conflated the two professions,⁶ he is incorrect in his conclusion that an important state interest is not implicated. New Jersey does, in fact, have an important interest in assuring that its official forensic pathologists are ethical and competent in determining cause of death, all as expressed through the statutory scheme and regulations of the State Medical Examiner Act, N.J.S.A. 52:17B-78, et seq. It also has an interest in maintaining the honesty and integrity of those testifying in its criminal courts. Thus important state interests concerning the integrity of the Medical Examiner program and medical licensing are implicated, and the second prong of Middlesex is satisfied.

6 The Board of Medical Examiners has jurisdiction over physician licensing, see N.J.S.A. 45:1-2.1, et seq. The State Medical Examiner, on the other hand, supervises performance of official autopsies and investigates the medical aspects of the cause of any unexpected or sudden deaths, see N.J.S.A. 52:17B-78, et seq. A County Medical Examiner, which is the position Speth held in Gloucester County, "shall be a licensed physician, of recognized ability and good standing in his community," N.J.S.A. 52:17B-83. It follows that there is an intertwining between the relief sought in the Third Amended Complaint of restoring Dr. Speth's eligibility to serve as a medical examiner, contrary to the 1994 determination of ineligibility, and Speth's surrender of his medical license in 1998, since he must be a "licensed physician, of recognized ability and good standing" in order to be statutorily eligible. Thus, the state's interest in the medical licensing of its County Medical Examiners is strongly and directly implicated in the relief sought herein. Stated differently, to afford Dr. Speth the relief of being restored to Medical Examiner eligibility status would also require this Court to determine, contrary to the Board of Medical Examiners, that Speth's surrendered medical license should also be restored.

Under the third Middlesex prong, the Plaintiff must have had an adequate opportunity to raise federal constitutional claims before the administrative agency or in a state-court judicial review of the agency's determination. O'Neill, 32 F.3d at 792 (citing Ohio Civil Rights Comm'n, 477 U.S. at 629; andMiddlesex County, 457 U.S. at 436). "Moreover, when a litigant has not attempted to present his federal claims in related state-court proceedings, a federal court should assume that state procedures will afford an adequate remedy, in the absence of unambiguous authority to the contrary." O'Neill, 32 F.3d at 792.

Since Plaintiff did not attempt to present these federal claims in the OAL proceedings and in the available appellate court review, and has provided no evidence that he would not have been afforded an adequate opportunity to raise his federal claims, this Court assumes that the state procedures, which include appeals of any adverse determination through the New Jersey Supreme Court and the opportunity to seek review by the United States Supreme Court, will afford Plaintiff an adequate remedy. Thus the third Middlesex prong has also been satisfied.

However, the Younger court recognized that extraordinary circumstances will justify a federal court's decision to not abstain, even when the three Middlesex prongs are satisfied. 401 U.S. at 53. The Third Circuit explained that:

Even if the necessary three predicates exist, however, Younger abstention is not appropriate if the federal plaintiff can establish that (1) the state proceedings are being undertaken in bad faith or for purposes of harassment or (2) some other extraordinary circumstances exist, such as proceedings pursuant to a flagrantly unconstitutional statute, such that deference to the state proceeding will present a significant and immediate potential for irreparable harm to the federal interests asserted.

Schall v. Joyce, 855 F.2d 101, 106 (3d Cir. 1989) (referencingMiddlesex, 457 U.S. at 435; and Younger, 401 U.S. at 49-50, 53-54). The state proceedings that Defendants seek to use as grounds for abstention are the OAL proceedings that Plaintiff initiated. Because Plaintiff initiated the proceedings himself, he can not, and does not, argue that Defendants undertook them in bad faith, or for purposes of harassing Plaintiff.

The Supreme Court further explained what is required for a showing of "extraordinary circumstances" that create an exception to the Younger abstention doctrine in Kugler v. Helfant, 421 U.S. 117, 124-25 (1975), stating:

Only if "extraordinary circumstances" render the state court incapable of fairly and fully adjudicating the federal issues before it, can there be any relaxation of the deference to be accorded to the state criminal process. The very nature of "extraordinary circumstances," of course, makes it impossible to anticipate and define every situation that might create a sufficient threat of such great, immediate, and irreparable injury as to warrant intervention in state criminal proceedings. But whatever else is required, such circumstances must be "extraordinary" in the sense of creating an extraordinarily pressing need for immediate federal equitable relief, not merely in the sense of presenting a highly unusual factual situation.

Id. In Kugler, allegations that New Jersey Supreme Court members were involved in coercing Helfant's grand jury testimony were found outside of the scope of "extraordinary circumstances," and thus did not bring Kugler within an exception to theYounger rule. Id. at 125-26. The Third Circuit noted that the "extraordinary circumstances" exception would be appropriate in a case "where a challenged state statute is `flagrantly and patently violative of express constitutional prohibitions in every clause, sentence and paragraph' and federal abstention would cause `irreparable injury.'" Port Authority P.B.A., 973 F.2d at 176 (quoting Younger, 401 U.S. at 49-50, 53-54). The Third Circuit also found extraordinary circumstances in Sullivan v. City of Pittsburgh, Pa., 811 F.2d 171 (3d Cir. 1987), where recovering alcoholics sought declaratory and injunctive relief, predicated upon claims of constitutional deprivation, from a city's decision to close alcoholic treatment centers. See also Ford Motor Co. v. Insurance Comm'r of the Commonwealth of Pa., 874 F.2d 926, 935 (3d Cir. 1989).

Though no identical situation has been addressed, Plaintiff's claims are somewhat similar in nature to those in Kugler, and quite dissimilar to those in Sullivan and those recognized by the Third Circuit in its Port Authority P.B.A. decision. Plaintiff does not claim that a statute has been applied unconstitutionally, or is unconstitutional on its face. Rather, he asserts that the Defendants have acted in a way that deprived him of his constitutional rights to practice his profession, among other things. He does not come within the recognized extraordinary circumstance of a statute that is "flagrantly and patently violative of express constitutional prohibitions in every clause, sentence and paragraph," Port Authority P.B.A., 973 F.2d at 176, and has not alleged a deprivation of rights that will immediately and irreparably affect his health and physical well-being, as the closing of alcoholic treatment centers would affect the alcoholics dependent upon them, distinguishing Plaintiff's claims from those inSullivan. Plaintiff's claims are similar to the claims of Supreme Court Justices coercing testimony, because Plaintiff also alleges official misconduct by Defendants for the purpose of destroying Plaintiff's career. The clear similarity of this claim to Kugler suggests that Plaintiff has not presented an "extraordinary circumstance" within the meaning described by the Supreme Court and the Third Circuit.

Since all three Middlesex prongs have been satisfied, and Plaintiff has not shown extraordinary circumstances, this Court will abstain from asserting jurisdiction over Plaintiff's requests for injunctive relief.⁷

7 The Court therefore abstains and dismisses Plaintiff's request for injunctive relief as set forth in the Third Amended Complaint at ¶ A, supra.

In addition to his request for injunctive relief, Plaintiff also seeks monetary damages stemming from the loss of his medical examiner privileges in 1994. The Supreme Court has never explicitly decided whether Younger abstention covers actions for damages as well as equitable relief. See Deakins v. Monaghan, 484 U.S. 193, 202 (1988).⁸ In Deakins, the Supreme Court reserved the question of whether a federal court could decline to exercise jurisdiction over a claim for damages under Younger, but approved of the Third Circuit's rule requiring courts to stay, rather than dismiss, actions for damages that were not cognizable in ongoing state proceedings. 484 U.S. at 202.

8 While the Third Circuit suggested in dictum that "abstention under Younger principles is not proper when damages are sought" in Marran, it did not reach the precise issue presented either. 376 F.3d at 155 (holding that "even ifYounger abstention is proper in suits for damages," it was not proper in the case presented given the absence of a pending state proceeding.)
Moreover, although Quackenbush held that abstention was proper only when discretionary relief, such as an injunction or declaratory judgment, was sought, the Court's holding was directed at those cases that had been removed from state court and implicating the Burford abstention doctrine, thus rendering that case distinguishable from the one at hand. 517 U.S. at 730.

This Court finds such a stay of damages claims in each count related to the suspension of medical examiner certification, harm to professional standing, and restoration of medical licensure to be the appropriate course of action in the instant case. The issue of whether and in what amount damages would be appropriate cannot be determined until a decision by the state administrative tribunal and courts has been rendered on the issue of whether Plaintiff's medical examiner privileges were properly suspended.⁹ The Third Circuit's rule requiring a district court to stay, rather than dismiss such claims "allows a parallel state proceeding to go forward without interference from its federal sibling, while enforcing the duty of federal courts to `assume jurisdiction where jurisdiction properly exists.'" Deakins, 484 U.S. at 202-03 (quoting Williams v. Red Bank Bd. of Ed., 662 F.2d 1008, 1024 (1981)).

9 The issues of Plaintiff's medical examiner ineligibility and of the surrender of his medical license must necessarily be determined by the competent state tribunals before this Court could determine whether the State's procedures offend due process and whether Plaintiff is entitled to monetary damages for the alleged interference with the pursuit of Plaintiff's profession. It is inconceivable in this case that a claim for compensatory and punitive damage relief relating to Plaintiff's practice of medicine and eligibility as a medical examiner could go forward while the underling lynchpin determinations of his eligibility and licensing must necessarily be determined in the State's own processes.

Thus, unless otherwise dismissed on the merits herein, this Court will stay Plaintiff's causes of action for damages in or related to Counts II, III, V, VI, VIII and IX, pending conclusion of state administrative and judicial remedies to restore medical examiner eligibility and medical licensure. Additionally, as determined above, this Court will abstain under Younger from exercising jurisdiction over Plaintiff's claims for injunctive relief.

C. Res Judicata

Plaintiff's claim that his substantive and procedural due process rights were violated when Defendants defamed him and singled him out for disfavored official treatment is not barred by the doctrine of res judicata. "Res judicata as a principle of law bars a party from relitigating a second time what was previously fairly litigated and determined finally." City of Hackensack v. Winner, 162 N.J. Super. 1, 27 (App.Div. 1978). "In order for res judicata to have effect, there must be a valid, final judgment on the merits in the prior action, and the claim in the later action must arise out of the same transaction or occurrence as the claim in the first action." Nolan v. First Colony Life Ins. Co., 345 N.J. Super. 142, 153 (App.Div. 2001) (citing Watkens v. Resorts Int'l Hotel and Casino, Inc., 124 N.J. 398, 412 (1991)).

It is generally recognized that judicial determinations by administrative agencies are entitled to preclusive effect if rendered in proceedings which merit such deference. City of Hackensack, 82 N.J. at 31-33; Ensslin v. North Bergen, 275 N.J. Super. 352, 369 (App.Div. 1994); Hernandez v. Region Nine Housing Corp., 146 N.J. 645, 660 (1996). "The procedural due process afforded by the Office of Administrative Law and the caliber of its hearing officers place those proceedings on a par with plenary judicial proceedings." Ensslin, 275 N.J. Super. at 371.

Though an OAL proceeding is clearly subject to preclusion doctrines under City of Hackensack, Ensslin, and Hernandez, Plaintiff's suit is not barred because he never obtained a valid, final judgment on the merits in the administrative proceeding. Plaintiff withdrew his complaint from the OAL without prejudice to any of his rights in any other forum. (Def. First Motion to Dismiss, Ex. F) Furthermore, the action by Defendant Natarajan giving rise to Plaintiff's allegation that she deprived him of due process by refusing to schedule the training required to end the suspension of Plaintiff's privileges allegedly occurred after the OAL proceedings were terminated. Plaintiff's claim was therefore not litigated at all in the OAL.

As discussed in the context of the Rooker-Feldman doctrine above, Plaintiff's complaint does not seek to re-litigate his conviction for third degree witness tampering. Some of the claims he now brings before this Court were not decided in a final judgment on the merits in state court at the time of his conviction, and the others were not litigated at all in state court. Because the charges of fourth degree tampering with physical evidence and fourth degree false swearing were eventually dismissed after jury deadlock, there was no final judgment on the merits of those two issues. They can not, therefore, be the basis for barring Plaintiff's claims as already having been adjudicated under the doctrine of res judicata.

The issues Plaintiff now seeks to litigate were not at issue in the state court prosecution of Plaintiff. His conviction for third degree witness tampering can therefore not be used to assert an argument of res judicata when Plaintiff brings claims that were not previously litigated in state court. Plaintiff's Complaint does not seek to re-litigate any previously decided claims or issues from the criminal prosecution, so this Court will not dismiss his Complaint under the doctrine of res judicata.

D. Dismissal of Defamation and Malicious Prosecution Counts for Failure to State a Claim

1. Standard for 12(b)(6) Dismissal

A Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief may be granted must be denied "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). A district court must accept any and all reasonable inferences derived from those facts. Unger v. Nat'l Residents Corp. v. Exxon Co., U.S.A., 761 F. Supp. 1100, 1107 (D.N.J. 1991); Guttman v. Howard Sav. Bank, 748 F. Supp. 254, 260 (D.N.J. 1990). Further, the court must view all allegations in the Complaint in the light most favorable to the plaintiff. See Scheuer, 416 U.S. at 236; Jordan v. Fox, Rothschild, O'Brien Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).

It is not necessary for the plaintiff to plead evidence, and it is not necessary to plead the facts that serve as the basis for the claim. Bogosian v. Gulf Oil Corp., 561 F.2d 434, 446 (3d Cir. 1977); In re Midatlantic Corp Shareholder Litigaiton, 758 F. Supp. 226, 230 (D.N.J. 1990). The question before the court is not whether plaintiffs will ultimately prevail; rather, it is whether they can prove any set of facts in support of their claims that would entitle them to relief. Hishon v. King Spalding, 467 U.S. 69, 73 (1984). Therefore, in deciding a motion to dismiss, a court should look to the face of the complaint and decide whether, taking all of the allegations of fact as true and construing them in a light most favorable to the nonmovant, plaintiff's allegations state a legal claim.Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990). Only the allegations in the complaint, matters of public record, orders, and exhibits attached to the complaint, are taken into consideration.¹⁰ Chester County Intermediate Unit v. Pennsylvania Blue Shield, 896 F.2d 808, 812 (3d Cir. 1990).

10 While the parties have referred in their briefs to procedural matters outside the Third Party Complaint and documents referred to therein and the public record, as reflected in this Court's recitation of background information in Part I. A, supra, neither side has asserted that such information is necessary to the determination of Defendants' Rule 12(b)(6) motion, and the Court confines its analysis accordingly.

2. Statute of Limitations for Defamation

Plaintiff's common law cause of action for defamation, as set forth in Count VII, is governed by the statute of limitations found at N.J.S.A. 2A:14-3, which provides that "[e]very action at law for libel or slander shall be commenced within 1 year next after the publication of the alleged libel or slander." Plaintiff does not contest that this statute of limitations governs his defamation claim. Plaintiff argues, however, that his Complaint cannot be dismissed pursuant to Rule 12(b)(6), because the dates of the defamatory statements are not pleaded by him or provided by Defendants, and because the defamatory statements continued within the year before this litigation commenced and continued even after it commenced.

Claims based on libel, under New Jersey law, filed one year after the publication of the defamation are clearly time-barred.Rodriguez v. The Home News, 137 N.J. Super. 320, 323 (App.Div. 1975). In New Jersey statutes, the term "year" refers to a calendar year. The Supreme Court of New Jersey has explained that, where the defamation is repeated, the defendant can only be liable for defamatory statements made within one year of the initiation of the litigation:

Each repetition of the defamation was a publication in itself. Restatement of Torts, § 578 (1938). Each constituted a separate cause of action. Odgers, Libel and Slander 132 (6th ed. 1929); 1 Harper and James, The Law of Torts, § 5.15 (1956). So, although the period of limitations selected by the Legislature was relatively short, one year, still the wrongdoer was responsible for each libelous act though the damages were limited to those occurring within the applicable one year period.

Barres v. Holt, Rinehart Winston, Inc., 74 N.J. 461, 464 (1977). Since Plaintiff filed his complaint on January 5, 1995,¹¹ his allegations of defamatory statements made before January 5, 1994 are time-barred. His common law defamation claim is not dismissed on this ground, however, as to any allegations of defamatory statements made after January 5, 1994, because they remain within the one-year time limit.

11 The parties thereafter agreed to a tolling of the statute of limitations while the New Jersey criminal trial was pending. (Pl. Brief at 6.)

Therefore Plaintiff's common law defamation claim will be dismissed in part as to the alleged defamatory statements made prior to January 5, 1994. The post-January 5, 1994 claims are not dismissed on this statute of limitations ground.

3. Immunity for Official Statements

Defendants next argue that Plaintiff's timely defamation claims (post-January 5, 1994 for common law claim) should also be dismissed, because Defendants are entitled to immunity for statements made in their official capacities. Defendants contend that Plaintiff cannot state a claim upon which relief can be granted for defamation since any statements made by Defendants during the course of the proceedings against Plaintiff are absolutely privileged pursuant to N.J.S.A. 2A:43-1. That statute provides:

The privileged character attaching to the publication of judicial or other proceedings shall extend to the publication in any newspaper of official statements issued by police department heads and country prosecutors in investigations in progress or completed by them, and which are accepted in good faith by the publisher of any newspaper, and the privileged character thereof shall be a good defense to any action for libel, unless malice in fact be shown by the plaintiff therein.

Privilege of publication may be absolute or qualified; absolute privilege affords a complete defense, irrespective of malice or motive on part of the publisher, while qualified privilege affords protection only if there is no ill motive or malice in fact. Swede v. Passaic Daily News, 30 N.J. 320 (1959).

It does not appear disputed, and this Court agrees, that any testimony given by these Defendants in Plaintiff's grand jury proceedings is absolutely privileged. Plaintiff contends, however, that privilege does not apply to the statements alleged in the complaint's seventh cause of action (defamation contrary to New Jersey law) because "defendants' allegations that plaintiff tampered with evidence were first issued at a press conference." (Plaintiff's Brief at 15.) However, statements made at a press conference by these defendants regarding an ongoing investigation would necessarily be statements made in their official capacity. Statements made at a press conference are statements uttered in connection with the State Defendants' official positions and within their authority to issue statements to the press.

Absolute privilege affords a complete defense to defamation, irrespective of malice or motive on part of the publisher.Swede, 30 N.J. at 332. New Jersey law is clear that participants in judicial proceedings have an absolute privilege to be free from liability for statements made during the proceedings and relating to the proceedings, even if made with malice. Wendy's of South Jersey, Inc. v. Blanchard Mgmt. Corp. of New Jersey, 170 N.J. Super. 491, 494 (1979). Once absolute privilege has attached, even a showing of actual malice will not destroy it.Devlin v. Greiner, 147 N.J. Super. 446, 455 (citing Rainier's Dairies v. Raritan Valley Farms, Inc., 19 N.J. 552, 558 (1955)).

As these alleged defamatory statements were made by Defendants' public statements and alleged leaks to the media in their official capacities and relate to the official proceedings, Defendants are entitled to immunity and Plaintiff's seventh cause of action must be dismissed.

4. Defamation and Due Process

Defendants also argue that Plaintiff's § 1983 claim in Count I for a due process violation arising from defamatory statements, as stated in the Complaint's first cause of action, should be dismissed, because defamation is not a violation of the Due Process Clause. "The Supreme Court has made clear that federal courts are not to view defamatory acts as constitutional violations." Boyanowski v. Capital Area Intermediate Unit, 215 F.3d 396, 401 (3d Cir. 2000) (citing Paul v. Davis, 424 U.S. 693 (1976)). "[H]arm to reputation alone [does] not suffice for a constitutional tort based on procedural due process." Id. InPaul, the Supreme Court held that "the interest in reputation was neither `liberty' nor `property' that was protected by the Due Process Clause." Boyanowski, 215 F.3d at 401. The Supreme Court, explaining why Wisconsin v. Constantineau, 400 U.S. 433 (1971), warranted due process protection, but Paul did not, explained that the "alteration of legal status¹² which, combined with the injury resulting from the defamation, justified the invocation of procedural safeguards." Paul, 424 U.S. 693, 708-09. The Supreme Court continued, explaining that the defamation and resultant stigma were important, but alone, were insufficient to show a deprivation of any "liberty" protected by the Fourteenth Amendment. Id. at 709. The Supreme Court "has never held that the mere defamation of an individual, whether by branding him disloyal or otherwise, was sufficient to invoke the guarantees of procedural due process absent an accompanying loss of government employment." Id. at 706.

12 The alteration of the plaintiff's legal status inConstantineau came from a statute that authorized the practice of "posting," which forbade in writing "the sale or gift of intoxicating liquors to one who `by excessive drinking' produces described conditions or exhibits specified traits, such as exposing himself or family `to want' or becoming `dangerous to the peace' of the community." 400 U.S. at 434 (citing Wis. Stat. § 176.26 (1967)).

Plaintiff argues that he has stated a claim because he was defamed in 1993 and was not then provided a forum to clear his name until the criminal charges were brought in 1995. Assuming these facts to be true, though, this combination of defamation and the denial of an immediate indictment does not meet thePaul requirement for a due process claim. There is no right to a speedy indictment under § 1983, due process, or even the Sixth Amendment's speedy trial clause. Plaintiff's § 1983 claim therefore rests solely on his allegation of defamation, which is not actionable as a § 1983 claim under Paul. Thus, even if Plaintiff could prove facts in support of his allegations, he fails to state a claim upon which relief can be granted in Count I, and this claim must therefore be dismissed pursuant to Rule 12(b)(6).¹³

13 Accordingly, Plaintiff's due process claims sounding in defamation in violation of § 1983 will be dismissed with prejudice for failure to state a claim, as set forth in Count I of the Third Amended Complaint.

E. Malicious Prosecution and Abuse of Process Claims

1. Malicious Prosecution Claim

Plaintiff asserts a New Jersey common law claim for malicious prosecution (Count XIII). As Plaintiff points out, his claim must be assessed under Helmy v. City of Jersey City, 178 N.J. 183 (2003),¹⁴ which held that the elements of malicious prosecution are: (1) that the criminal action was instituted by the [malicious prosecution] defendant against the [malicious prosecution] 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 [malicious prosecution] plaintiff. 178 N.J. at 190.

14 Because Plaintiff asserts his malicious prosecution claim under New Jersey common law rather than § 1983, Defendants' argument that Plaintiff fails to state a claim upon which relief can be granted under § 1983 is moot.

Here, there is no dispute as to the first element.¹⁵ Thus, this Court will confine its analysis of Plaintiff's malicious prosecution claim to the remaining requirements, namely, malice, lack of probable cause, and favorable termination. Plaintiff pleads that Defendants conspired and agreed to maliciously prosecute Plaintiff for crimes which they knew, or reasonably should have known, he never committed in order to further Defendant Goode's official vendetta against Plaintiff. Accepting these allegations as true, this Court is unable to say that Plaintiff has not articulated the requisite malice for a claim of malicious prosecution. However, even assuming that Plaintiff can sufficiently show the malice required for such a claim, he cannot prevail on the required showing of a lack of probable cause for bringing the charges that were lodged against him.

15 The Court, for purposes of the inquiry, accepts and assumes that those Defendants who had the power to initiate criminal action did so here. As to any Defendant without the authority to "initiate" a criminal action — for example, a grand jury witness — that Defendant fails to satisfy the first required element of a claim for malicious prosecution and cannot therefore be held liable for the same. The issue need not be decided, however, because the pleading is deficient for other reasons set forth in the text, infra.

Defendants argue that Plaintiff can not establish a lack of probable cause because he was indicted. However, under New Jersey law, indictment by a grand jury does not necessarily preclude a finding that probable cause was lacking. Helmy, 178 N.J. at 190-91. "Although a grand jury indictment is prima facie evidence of probable cause to prosecute, when the facts underlying it are disputed, the issue must be resolved by a jury." Id. at 191. Nonetheless, due to the indictment, the Defendants have the benefit of prima facie evidence of probable cause for each charge.

Plaintiff asserts a lack of probable cause, pointing to the fact that the charges against Dr. Speth for tampering with the Puttorak hyoid bone (4th degree tampering with physical evidence) and for falsely certifying that he had discovered hemorrhage when examining that bone (4th degree false swearing) were eventually dismissed. Plaintiff's argument, however, is flawed. Under New Jersey law, even an acquittal (which is not present here) sheds no light on the existence of probable cause at the time of the initial indictment. Rubin v. Nowak, 248 N.J. Super. 80, 85 (App.Div. 1991), cited in Campione v. Adamar of New Jersey, 302 N.J. Super. 99, 120-21 (App.Div. 1997). There was a unified criminal trial on three counts due to their obvious relatedness. Plaintiff was convicted on one of the three charges brought against him — 3rd degree tampering with a witness — and the jury deadlocked on the other two. That the deadlocked charges were ultimately dropped rather than re-charged does not support Plaintiff's contention that prosecutors lacked probable cause to bring these charges initially. The fact that two charges of the three charges prosecuted were deadlocked by the jury cannot be overlooked. Indeed, a deadlocked jury suggests that at least one juror (and possibly more) was persuaded beyond a reasonable doubt that the evidence proved Dr. Speth's guilt. It is axiomatic that "[a] showing of probable cause may stop considerably short of proof beyond a reasonable doubt." Coleman v. Burnett, 477 F.2d 1187, 1202 (D.C. Cir. 1973). By the same token, however, proof beyond a reasonable doubt to a unanimous jury of twelve is a far more stringent standard than probable cause. If, as in Speth's trial, at least one juror believed, after due deliberation, that proof of guilt existed beyond a reasonable doubt, as evidenced in the deadlock, then it cannot be said, absent juror corruption or incompetence, that probable cause to bring these charges was lacking. Thus, Plaintiff is unable to demonstrate a lack of probable cause. Moreover, the trial judge, at the conclusion of the State's case, permitted all three counts to go forward for the jury's consideration, which suggests that the trial judge found the evidence sufficient as a basis for a possible finding of guilt beyond a reasonable doubt on all three counts.

In addition, Plaintiff's malicious prosecution claim further fails because "[p]roceedings are `terminated in favor of the accused,' . . . only when their final disposition is such as to indicate the innocence of the accused.'" Freeman v. State, 347 N.J. Super. 11, 27 (App.Div. 2002) (quoting Restatement (Second) of Torts § 660 cmt. 3 (2002)). Here, it is clear that, following the conviction, the two remaining charges against Plaintiff were dismissed upon Plaintiff's demand for a speedy retrial after they were mistried, not because of his innocence. This dismissal gives no indication of Plaintiff's innocence, as required by Freeman. Moreover, the defendant was found guilty and sentenced at the conclusion of the criminal case.

Furthermore, the essential element of the tort of malicious prosecution — that proceedings are terminated in favor of the accused — requires examination of the prosecution as a whole. It is one "proceeding" consisting of three counts. For example, an acquittal on all three counts would satisfy this prong. Here, the criminal proceeding Plaintiff contests included a trial and sentencing on the count of conviction which indisputably terminated unfavorably to Dr. Speth. The parties have identified no New Jersey case in which the element of favorable termination was parsed so narrowly as to permit examination on a count-by-count basis, nor has this Court located any. Where three related counts are tried to a jury, resulting in one felony conviction and two hung verdicts, where the conviction was affirmed on appeal, it is clear as a matter of law that the proceedings did not terminate in favor of the accused.

Plaintiff has, therefore, failed to state facts that would support a finding that the criminal trial was terminated in his favor. Thus Plaintiff has failed to state a claim upon which relief can be granted for malicious prosecution under New Jersey law, and this claim in Count XIII will be dismissed pursuant to Rule 12(b)(6).

2. Abuse of Process Claim

Plaintiff also states a claim for malicious abuse of criminal process (Count XI), although it is unclear whether he asserts this as arising under New Jersey common law or under § 1983. (See ¶¶ 47-53 of Third Amended Compl.) The Court will assume that Plaintiff attempts to plead both state and federal causes of action for abuse of process, which claims are now addressed.

In New Jersey, "[t]he [abuse of process] cause of action requires proof of an improper motive or a perversion of the judicial process." Caggiano v. Fontoura, 354 N.J. Super. 111, 134 (App.Div. 2002) (citing Tedards v. Auty, 232 N.J. Super. 541, 550 (App.Div. 1989).

The gist of the tort of malicious abuse of process is not commencing an action without justification, as in malicious use of process (or malicious prosecution). Rather, it is the misuse, or "misapplying process justified in itself for an end other than that which it was designed to accomplish. The purpose for which the process is used, once it is issued, is the only thing of importance."

Baglini v. Lauletta, 338 N.J. Super. 282, 293 (App.Div. 2001) (citing Prosser Keeton on Torts § 121 at 897 (5th ed. 1984)) (emphasis in original). Thus, a plaintiff asserting an abuse of process claim under New Jersey common law must show that the process was motivated out of an improper motive to accomplish something other than that intended by law.

To prove abuse of process under § 1983, a plaintiff must show that after the legitimate initiation, the prosecution is "used for a purpose other than that intended by the law." Rose v. Bartle, 871 F.2d 331, 350 (3d Cir. 1989) (quoting Jennings v. Shuman, 567 F.2d 1213, 1217 (3d Cir. 1977).

Plaintiff alleges that Defendants, with an axe to grind, "urged the Essex County Prosecutor's Office to prosecute Dr. Speth for tampering with the Puttorak hyoid bone and for falsely certifying that Dr. Speth had found hemorrhage when defendants knew, or reasonably should have known" otherwise. (Third Amended Compl. ¶ 49.) The Third Amended Complaint alleges that the indictment was pursued "even after the prosecutor knew, or reasonably should have known, that defendant Natarajan had tampered with the Puttorak hyoid bone and thereby prevented Dr. Speth from receiving a fair trial within the meaning of the due process clause of the Fourteenth Amendment." (Id. at ¶ 51.)

Thus, both New Jersey's law of malicious abuse of criminal process and § 1983 require proof that a defendant maliciously took steps after the legitimate initiation of prosecution to achieve purposes other than the prosecution of a plaintiff. In New Jersey law, these required malicious steps are referred to as "further acts" after issuance of process. Such "further acts" indeed serve to distinguish the tort of malicious abuse of process from malicious prosecution. This distinction was clearly stated almost seventy years ago in Ash v. Cohn, 119 N.J.L. 54, 58, 194 A. 174 (E. A. 1937) as follows:

An action for malicious abuse of process is distinguished from an action for malicious use of process in that the action for abuse of process lies for the improper, unwarranted and perverted use of process after it has been issued while that for the malicious use of it lies for causing process to issue maliciously and without reasonable or probable cause. Thus it is said, in substance, that the distinction between malicious use and malicious abuse of process is that the malicious use is the employment of process for its ostensible purpose, although without reasonable or probable cause, whereas the malicious abuse is the employment of a process in a manner not contemplated by law. (Citation omitted.)

(quoted in Baglini v. Lauletta, 338 N.J. Super. at 293-94.) TheLauletta court further noted at 338 N.J. Super. at 294 that "basic to the tort of malicious abuse of process is the requirement that the defendant perform `further acts' after issuance of process `which represent the perversion or abuse of the legitimate purposes of that process.'" Id., quoting Penwag Prop. Co., Inc. v. Landau, 148 N.J. Super. 493, 499, 372 A.2d 1162 (App.Div. 1977), aff'd, 76 N.J. 595, 388 A.2d 1265 (1978) (citing Gambocz v. Apel, 102 N.J. Super. 123, 130, 245 A.2d 507 (App.Div.), cert. denied, 52 N.J. 485, 246 A.2d 447 (1968)). For example, making knowing and material misrepresentations to a trial judge to obtain the setting of a substantial bail after arrest to procure incarceration is a type of "further act" lending itself to abuse of process, see Tedards v. Auty, 232 N.J. Super. 541, 551, 557 A.2d 1030 (App.Div. 1989).

The purpose of the "further acts" requirement is to distinguish malicious abuse of process from malicious prosecution. Otherwise, malicious abuse of process could serve as the tort claim every time when the existence of probable cause, as in this case, defeats the tort of malicious prosecution, simply by alleging that the otherwise appropriate prosecution was motivated by a malicious purpose. New Jersey law does not recognize such a circumvention of the black letter principles of malicious prosecution unless the "further acts" after issuance of process are undertaken to pervert or abuse the legitimate process for improper means, as discussed above.

In the present case, the Third Amended Complaint alleges no "further acts." The Defendants' alleged abuses were all undertaken to urge the Essex County prosecutor to prosecute Dr. Speth. Certainly, the Third Amended Complaint alleges that Dr. Speth's ability to pursue his profession was compromised, his reputation was tarnished, he lost income and accumulated debt to defend himself. These harms are normal, expected sequellae of every criminal prosecution, whether successful or not, and do not themselves constitute "further acts" by the Defendants following indictment. If caused by abuse of process, of course, such harms may be compensable in damages, a question not here determined.¹⁶ Despite three attempts to amend the original Complaint herein, however, Plaintiff has not alleged that Defendants undertook "further acts" such as maliciously obtaining Dr. Speth's pretrial detention or intentionally serving him with compulsory process so that he had to go to court and miss a competing personal obligation. The absence of pleading such "further acts" is fatal to this claim of malicious abuse of process.

16 Indeed, caution is indicated before concluding which types of damages may be available in an abuse of process case. The Supreme Court has written, in Heck v. Humphrey, 512 U.S. 477, 486 n. 5 (1994), that

[t]he gravaman of that tort [of abuse of process] is not the wrongfulness of the prosecution, but some extortionate perversion of lawfully initiated process to illegitimate ends. . . . Cognizable injury for abuse of process is limited to the harm caused by the misuse of process, and does not include harm (such as conviction and confinement) resulting from that process's being carried through to its lawful conclusion. . . . [citations omitted].

Similarly, under 42 U.S.C. § 1983, the freedom from malicious abuse of process is not itself a right enshrined in the Constitution, since the federal civil rights statute in § 1983 does not constitutionalize ordinary tort law. See Berg v. County of Allegheny, 219 F.3d 261, 268 (3d Cir. 2000). As noted above, to be liable for malicious abuse of process under § 1983, the defendants must be shown to have taken steps after the initiation of a legitimate prosecution to achieve a purpose other than the prosecution of the plaintiff. Rose v. Bartle, 871 F.2d 331, 350 (3d Cir. 1989); see also Heck v. Humphrey, 512 U.S. at 486 n. 5. In other words, the purpose of the abuse of process must be to achieve goals that invade Plaintiff's constitutional rights, such as deprivation of liberty or property without due process. To allege, as Plaintiff does in ¶ 51 of the Third Amended Complaint, that Dr. Natarajan's alleged tampering with the Puttorak hyoid bone deprived him of a fair trial within the meaning of the Fourteenth Amendment's due process clause, where such tampering allegedly occurred even before the prosecutor's involvement, does not state a claim for malicious abuse of process under § 1983. Again, while the Third Amended Complaint claims damages such as for loss of income, reputation and defense fees, Plaintiff does not allege that the criminal process was itself used after its commencement to deprive him of a constitutional right; Plaintiff's allegations of pre-indictment misconduct and collusion by Defendants to bring about the indictment will not suffice under § 1983. Therefore, Count XI will be dismissed in its entirety.¹⁷

17 In light of the dismissal of Plaintiff's malicious prosecution and malicious abuse of process claims on the merits, the Court will not consider Defendants' alternative grounds that such claims are also time-barred by the statute of limitations and by laches.

F. Mandatory Requirements of Notice of the Tort Claims Act

Finally, Defendants argue that all of Plaintiff's New Jersey common law tort claims are barred by his failure to follow the procedural requirements of the New Jersey Tort Claims Act,N.J.S.A. 59:1-1 et seq. ("NJTCA"). Pursuant to its mandatory procedures, a claimant endeavoring to press a claim against the State and/or one of its employees must, prior to initiating any suit, file a detailed Notice of Claim; such Notice must satisfy various specific requirements and must be presented within 90 days of the accrual of the alleged cause of action.N.J.S.A. 59:8-3. Thereafter, the claimant must wait a statutorily prescribed six-month period before initiating any legal action against any State defendants. N.J.S.A. 59:8-8. The provisions of N.J.S.A. 59:8-8 were amended in 1994 to require a complaining party to give a public entity notice of "[a] claim relating to a cause of action for death or for injury or damage to person or to property" against a public entity or public employee. Failure to satisfy the timely notice requirements of N.J.S.A. 59:8-8 constitutes an absolute bar to recovery against the public entity. See Karczewski v. Nowicki, 188 N.J. Super. 355, 357-58 (App.Div. 1982).

Defendants argue that Plaintiff's claims that State defendants tortiously abused their public offices, tortiously interfered with prospective economic advantage, defamed him and maliciously abused the criminal process must be dismissed because he has not complied with the mandatory requirement of first filing a notice of tort claim. Plaintiff's claims therefore implicate intentional torts.

Until recently, the New Jersey Supreme Court had not clarified whether the statutory definition of injury in the NJTCA was so expansive as to include injuries resulting from intentional torts as well as those resulting from negligence. However, earlier this year, the New Jersey Supreme Court answered that question in the affirmative, holding that the Act's notice requirements also encompass injuries arising from intentional conduct. See Velez v. City of Jersey City, 180 N.J. 284 (June 29, 2004).

The court in Velez, however, held that its decision would only be "applied prospectively to all similar causes of action accruing after the date of [that] opinion." Id. at 297. Defendants contend that this language means that prospective application applies only to "similar causes of action" as that presented in the facts underlying Velez, namely assault and battery. Thus, because Plaintiff's claims accrued prior to June 30, 2004 and do not involve the tort of assault and battery, Defendants contend that Plaintiff must file a Notice of Tort Claim prior to filing a suit against individual government employees for intentional conduct.

Defendants' argument, however, fails, as courts in New Jersey have not adopted Defendants position. For example, in Ptaszynski v. Uwaneme, 371 N.J. Super. 333 (App.Div. July 21, 2004), the New Jersey Superior Court, Appellate Division, held that because plaintiffs' causes of action — i.e., claims for assault and battery, false arrest, false imprisonment and malicious prosecution — accrued on July 16, 1999, the notice of claim requirements did not apply, based on the New Jersey Supreme Court's decision in Velez. Id. at 344. Thus, New Jersey courts have not limited the New Jersey Supreme Court's retroactivity holding in Velez to be applicable only to the intentional torts of assault and battery.

Moreover, though Defendants are correct in pointing out that the Velez court cited with favor Bonitsis v. New Jersey Inst. of Tech., 363 N.J. Super. 505 (2003), the New Jersey Supreme Court reversed and remanded the Bonitsis decision on June 30, 2004, citing to Velez, presumably because the Velez rule could not be applied retroactively to the Bonitsis case, which cause of action accrued before the Velez decision. Therefore, this Court cannot rely, as Defendants would have it, on Bonitsis, a decision that has been reversed and remanded. The recent outcomes of these two decisions indicates that no common law intentional torts claims accruing prior to the Velez decision should be dismissed for failure to give a public entity written notice pursuant to the Tort Claims Act's notice requirement. Thus Plaintiff's intentional tort claims will not be dismissed for failure to file a notice of claim.¹⁸

18 Because this case is not dismissed for failure to file a notice of claim pursuant to the Velez decision, this Court will not address Plaintiff's request that the court grant leave to file a late notice of tort claim, or Defendants' arguments against granting Plaintiff leave to file a late notice of tort claim.

III. CONCLUSION

In summary, for the foregoing reasons, this Court has determined:

A. That Defendants' motion to abstain under Younger will be granted as to all claims for injunctive relief, namely to enjoin Defendants from circulating or further publishing the Goode Report, from declaring and continuing to assert that Dr. Speth is ineligible to serve as a medical examiner, and to notify all who inquire that any past determination of ineligibility has been vacated; the Court also stays Plaintiff's related claims for damages arising from alleged improper denial of state medical examiner certification and surrender of medical licensure, pending conclusion of state administrative and appellate judicial remedies to restore such eligibility and medical licensure; thus, further proceedings on Counts II, III, V, VI, VIII, and IX are stayed in accordance with Younger and its progeny;

B. That Defendants' motion to dismiss for failure to state a claim is granted as to Count I (defamation in violation of due process), Count VII (defamation under state law), Count XI (abuse of criminal process), Count XII (retaliation for filing this civil suit by indicting Plaintiff without probable cause), and Count XIII (conspiracy to maliciously prosecute Plaintiff);

C. That Plaintiff's remaining claims in Counts IV and X were withdrawn, and no claims remain to be adjudicated at this time;

D. Defendants' statute of limitations motion is granted to extinguish any claim for defamation arising prior to January 5, 1994; and

E. That the remaining grounds of Defendants' motion were denied as to Rooker-Feldman, res judicata, and failure to file a notice of state tort claim, and granted to recognize official immunity for official statements alleged in Count VII which is alternatively dismissed on this ground.

The accompanying Order is entered.