NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2511-15T1
TROY HENDERSON,
Plaintiff-Appellant,
v.
SOMERSET COUNTY and WARREN
TOWNSHIP POLICE DEPARTMENT,
Defendants-Respondents.
_____________________________
Submitted July 12, 2017 – Decided September 12, 2017
Before Judges Simonelli and Carroll.
On appeal from the Superior Court of New
Jersey, Law Division, Somerset County, Docket
No. L-1413-14.
Troy Henderson, appellant pro se.
DiFrancesco, Bateman, Kunzman, Davis, Lehrer
& Flaum, PC, attorneys for respondent Warren
Township Police Department (Timothy P. Beck,
on the brief).
Cooper, Cottell & Taylor, LLC, attorneys for
respondent Somerset County (Carl A. Taylor,
III, of counsel and on the brief).
PER CURIAM
Plaintiff Troy Henderson appeals from the October 9, 2015 Law
Division order, which dismissed his complaint against defendant
the County of Somerset (County) with prejudice pursuant to Rule
4:6-2(e). Plaintiff also appealed from the January 22, 2016 order,
which dismissed the complaint against defendant Warren Township
Police Department with prejudice. However, plaintiff failed to
submit the order or the judge's statement of reasons, leaving us
no alternative but to affirm the January 22, 2016 order. Cipala
v. Linclon Tech. Inst., 179 N.J. 45, 55 (2004); Soc'y Hill Condo.
Ass'n. v. Soc'y Hill Assocs., 347 N.J. Super. 163, 177-78 (App.
Div. 2002). For the following reasons, we affirm the October 9,
2015 order as well.
We derive the following facts from the record. Following a
motor vehicle stop on June 10, 2011, the police searched
plaintiff's vehicle and found six bricks of heroin. A grand jury
indicted defendant for possession with intent to distribute a
controlled dangerous substance (heroin), N.J.S.A. 2C:35-5(a)(1)
and N.J.S.A. 2C:35-5(b)(13). Defendant also received summonses
charging him with several motor vehicle violations.
On July 18, 2013, the trial court granted defendant's motion
to suppress the heroin found in his vehicle, finding the stop was
justified, but the search was unlawful. The State appealed, and
2 A-2511-15T1
we affirmed. State v. Henderson, No. A-0032-13 (App. Div. Mar.
28, 2014). On August 7, 2014, the court dismissed the indictment
and remanded the summonses to the Warren Township Municipal Court.
Plaintiff did not file a notice of tort claim, as required
by N.J.S.A. 59:8-8(a). On October 28, 2014, he filed a complaint
against the County, alleging malicious prosecution, but did not
name the Somerset County Prosecutor's Office or the assistant
prosecutor as defendants.
The County filed a motion to dismiss the complaint with
prejudice pursuant to Rule 4:6-2(e), arguing it was not an
appropriate party to this action and was not vicariously liable
for the acts of prosecutors. Citing Cashen v. Spann, 66 N.J. 541,
552 (1975) and Wright v. State, 169 N.J. 422, 455 (2001), the
motion judge concluded that the State is the proper defendant when
filing a claim against a prosecutor because the prosecutor is
considered an agent of the State, not the County. The judge
emphasized that defendant did not name either the assistant
prosecutor or the Prosecutor's Office as defendants in this action.
This appeal followed.
On appeal, plaintiff does not address the judge's decision
in his merits brief. "An issue that is not briefed is deemed
waived upon appeal." N.J. Dep't of Envtl. Prot. v. Alloway Twp.,
3 A-2511-15T1
438 N.J. Super. 501, 505-06 n.2 (App. Div.), certif. denied, 222
N.J. 17 (2015). Nevertheless, we discern no reason to reverse.
We have held that
[m]otions to dismiss for failure to state a
claim require the complaint be searched in
depth and with liberality to determine if
there is any cause of action suggested' by the
facts. The inquiry is limited to examining
the legal sufficiency of the facts alleged on
the face of the complaint. On appeal, review
is plenary and we owe no deference to the trial
judge's conclusions.
. . . .
Dismissal is the appropriate remedy where
the pleading does not establish a colorable
claim and discovery would not develop one.
[State v. Cherry Hill Mitsubishi, 439 N.J.
Super. 462, 467 (App. Div. 2015) (citations
omitted).]
Dismissal was appropriate here. A County cannot be held
vicariously liable for the acts of prosecutors because, when
"investigat[ing] . . . criminal activity," prosecutors act "as
agents of the State and not the County." Cashen, supra, 66 N.J.
at 552. In addition to being vicariously liable for the acts of
prosecutors, the State is responsible for the legal defense and
must indemnify the County against claims against prosecutors in
connection with investigating or prosecuting criminal defendants.
Wright, supra, 169 N.J. at 454-56.
4 A-2511-15T1
Here, the claims against the County were limited to claims
arising from plaintiff's alleged malicious prosecution.
Accordingly, plaintiff's complaint against the County was properly
dismissed with prejudice as a matter of law.
Affirmed.
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