Stephen Beightler v. Office of the Essex County Prosecutor

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 09-1122
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STEPHEN BEIGHTLER,
Appellant
v.
OFFICE OF THE ESSEX COUNTY PROSECUTOR;
ESSEX COUNTY, NEW JERSEY;
STATE OF NEW JERSEY, ET AL
______________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 08-cv-00966)
District Judge: Honorable Joseph A. Greenaway, Jr.
_______________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
August 14, 2009
Before: BARRY, SMITH and GARTH , Circuit Judges
(Opinion Filed: August 20, 2009)
_________
OPINION
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PER CURIAM
Stephen Beightler, proceeding pro se, appeals from the order of the United States

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District Court of New Jersey granting the defendants’ motion to dismiss his complaint.
For the reasons that follow, we will affirm.
I.
As we write solely for the benefit of the parties, we set forth briefly only those
facts necessary to our analysis. On February 22, 2007, Beightler was arrested at the
Newark Liberty International Airport just before he was to board a flight to Amsterdam.
Port Authority police Mirandized and questioned him regarding a firearm which was
found disassembled, unloaded, and placed in multiple bags that he had checked with the
airline. Beightler fully cooperated with the Port Authority and admitted that the firearm
belonged to him. He claimed that he packed it for safety purposes while traveling abroad,
that he was unaware that airline procedure required passengers to declare firearms, and
that he thought the proper procedure for carrying a firearm was to disassemble and stow it
in a locked container in the airplane’s cargo.
Federal agents questioned Beightler while he was in custody and decided not to
pursue the matter further. The arresting Port Authority officers contacted the Essex
County Prosecutor’s office, and Beightler was charged with unlawful possession of a
firearm. Beightler applied for admission to the state’s Pre-Trial Intervention (“PTI”)
program, which would have allowed him to complete a period of probation and avoid
indictment. The parties agree that the Essex County Prosecutor’s Office (“ECPO”)
denied Beightler’s application, despite the probation department’s recommendation that

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he be admitted, characterizing Beightler’s actions as national security breaches and
likening them to acts of terrorism. Beightler appealed his PTI admissions denial, but
pleaded guilty when his appeal was denied. Beightler then filed this civil rights suit
pursuant to 42 U.S.C. § 1983, alleging that the State of New Jersey, Essex County, and
ECPO: (1) violated his equal protection rights under the Fourteenth Amendment; (2)
violated his Fifth Amendment due process rights; (3) defamed him pursuant to N.J. Stat.
Ann. § 2a:14-3; and (4) negligently prosecuted him in violation of state common law.
Upon defendants’ motion to dismiss, the District Court concluded that Beightler failed to
state a claim upon which relief could be granted because the defendants were protected by
the Eleventh Amendment. This appeal followed.
II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and conduct de
novo review of the District Court’s dismissal pursuant to Rule 12(b)(6). Phillips v.
County of Allegheny, 515 F.3d 224, 230 (3d Cir. 2008). We accept as true all of the
allegations contained in the complaint and draw reasonable inferences in favor of a pro se
plaintiff. Id. at 229; see also Erickson v. Pardus, 127 S.Ct. 2197, 2200 (2007) (per
curiam). “To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007)).

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By only raising the issues outlined above on appeal, Beightler has waived his1
claims against the State of New Jersey and Essex County. See United States v. Pelullo,
399 F.3d 197, 222 (3d Cir. 2005) (holding “an appellant’s failure to identify or argue an
issue in his opening brief constitutes waiver of that issue on appeal.”). We note, however,
that even had Beightler preserved his claims against the State of New Jersey, that claim
would have failed because the Supreme Court has held, “a State is not a ‘person’ against
whom a § 1983 claim for money damages might be asserted.” Lapides v. Board of
Regents, 535 U.S. 613, 617 (2002).
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III.
Beightler’s appeal presents two arguments. First, he argues that ECPO is not an
arm of the state and therefore should not enjoy Eleventh Amendment immunity. Next, he
claims that even if ECPO were eligible for immunity under the Eleventh Amendment, that
protection was waived by voluntarily placing itself within federal jurisdiction, or
alternatively, by acting maliciously and with wilful misconduct.1
Eleventh Amendment immunity protects not only states but also state agencies, “as
long as the state is the real party in interest.” Fitchik v. New Jersey Transit Rail
Operations, 873 F.2d 655, 658 (3d Cir. 1989) (en banc), cert. denied, 493 U.S. 850
(1989). To determine whether Eleventh Amendment immunity applies, we consider three
factors: (1) the source of the agency’s funding-i.e, whether payment of any judgment
would come from the state’s treasury; (2) the status of the agency under state law; and (3)
the degree of autonomy from state regulation. Id. at 659. In the context of an agency
analysis, we discussed all of these concerns, see Coleman v. Kaye, 87 F.3d 1491, 1505
(3d Cir. 1996), culminating in the conclusion that “when [New Jersey county] prosecutors

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engage in classic law enforcement and investigative functions, they act as officers of the
state.”
We recognized in Coleman that county prosecutorial offices conducted two
distinct sets of functions: (1) the administrative functions of operating their offices, and
(2) the classic law enforcement and investigative functions for which they are chiefly
responsible. After essentially analyzing the same factors presented in Fitchik, we
concluded that county prosecutors acted as arms of the state when they performed the
latter. Id. at 1499-1505. Here, ECPO was undeniably engaged in a classic law
enforcement function when it charged Beightler with unlawful possession of a firearm.
Accordingly, in doing so, ECPO was acting as an arm of the state and entitled to
immunity under the Eleventh Amendment, unless it waived its protection.
Beightler theorizes that ECPO waived its immunity by voluntarily placing itself
within federal jurisdiction. According to Beightler, ECPO placed itself within federal
jurisdiction “when [it] voluntarily invoked the jurisdiction of federal courts.” Appellant’s
Brief at 8. In support of this claim, he cites Lapides, 525 U.S. at 624, in which the
Supreme Court held that a state waived its Eleventh Amendment immunity when it
removed a case from state court to federal court. Lapides, however, is distinguishable.
Here, Beightler chose the forum, and the defendants claimed sovereign immunity from
the outset. ECPO’s presence in federal court was thus involuntary and did not waive its
sovereign immunity.

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Alternatively, Beightler theorizes that ECPO waived its immunity by acting
maliciously and with willful misconduct. In support of his claim Beightler cites Wright v.
State, 169 N.J. 422, 456 (2001), in which the New Jersey Supreme Court held that county
prosecutors were not entitled to indemnification and defense by the State of New Jersey
for alleged “tortious conduct committed during the investigation, arrest, and prosecution”
when their acts or omissions involve fraud, actual malice, or willful misconduct.
According to Beightler, Wright demonstrates that evidence that a county
prosecutor’s office acted with malice or willful misconduct is relevant in determining
whether the state treasury would be responsible for paying a judgment. Despite its
relevancy to the Fitchik analysis, we already determined, after considering all of the
Fitchik factors as a whole, that New Jersey county prosecutors are arms of the state when
carrying out prosecutorial functions. Furthermore, Wright was not an Eleventh
Amendment immunity case, and we have found no authority that has deemed garden
variety overzealousness of the type alleged here to be a waiver sufficient to establish a
waiver of Eleventh Amendment immunity.
IV.
In light of the foregoing, we conclude that Beightler has failed to state a claim
upon which relief could be granted. Accordingly, the District Court’s order is affirmed.

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