ZISA v. HAVILAND

Not for Publication

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

CHARLES ZISA,

Plaintiff,

Civil Action No. 17-5551

v.

OPINION

JOHN HAVILAND, et al.,

Defendants.

John Michael Vazquez, U.S.D.J.

Pending before the Court are five partial motions to dismiss Plaintiff’s Second Amended

Complaint(“SAC”). The fivegroups of Defendants who have filed the motions are (1)Defendants

Eric Arosemowicz and Bergen County Sheriff’s Officers (“BCSO”) John Does 21-251(D.E. 137);

(2) Defendants City of Hackensack (“Hackensack”), Stephen LoIacono, and Thomas Padilla (D.E.

138); (3) Defendants John Haviland, Timothy Condon, and Zaida Molina,all of the Bergen County

Prosecutor’s Office (“BCPO”) (the “Individual BCPO Defendants”) (D.E. 139); (4) Defendants

Laura Campos and Anthony Ferraioli (D.E. 140); and (5) Defendant Joseph Al-Ayoubi (D.E. 141).

Plaintiff filed a single consolidated brief in opposition, D.E. 164, to which all Defendants replied,

D.E. 168-72.2 The Court reviewed the submissions made in support and in opposition of the

1Although named as Defendants in Plaintiff’s original complaint, the SAC does not name Bergen

County Sheriff’s Officers John Does 21-25 as Defendants. Consequently, there are presently no

claims to dismiss as to these Defendants and any arguments to this effect are moot.

2Defendant Eric Arosemowicz’s brief in support of his motion to dismiss (D.E. 137-1)is referred

to as “Arosemowicz Br.”;Hackensack, LoIacono, and Padilla’s brief in support of their motion to

dismiss (D.E. 138-1) is referred to as “HackensackBr.”;Haviland, Condon, and Molina’s brief in

motions and considered the motions without oral argument pursuant to Fed. R. Civ. P. 78(b) and

L. Civ. R. 78.1(b).

For the reasons that follow, the motions to dismiss are GRANTED in part and DENIED

in part. As to counts that are being dismissed without prejudice, the Court is not granting leave

to file a third amended complaint at this time. Instead, if during the course of discovery, Plaintiff

believes that he has sufficient information on which to make plausible allegations, Plaintiff may

make a motion to amend at that time.

I. FACTUAL AND PROCEDURAL HISTORY

This matter involves alleged civil rights violations that occurred during the investigation

and prosecution of Plaintiff. The investigation and prosecution related to Plaintiff’s role in two

incidents, an altercation in 2004 involvingjuveniles(the “2004 Altercation”) and acar accident in

2008 (the “2008 Car Accident”). Plaintiff, the former Chief of the Hackensack Police Department,

was prosecuted as a result of his alleged involvement in both incidents. Plaintiff was ultimately

successful in the criminal matter following a trial, appeal,and remand. For purposes of the pending

motion, the Court doesnot retrace this case’s full factual and procedural history. The Court instead

incorporates by reference the detailed background in its October 19, 2019 Opinion and Order

(“October 19 Opinion”)thatpartially dismissed Plaintiff’s FirstAmended Complaint (the “FAC”).

D.E. 77, 78.

The following are the only claims that survived Defendants’ first motions to dismiss: Zisa’s

claims for the denial of fair trial (Counts One and Two) as to Arosemowicz and the Individual

Hackensack Police Department (“HPD”) Defendants; fabrication of evidence (Counts Eight and

support of their motion to dismiss (D.E. 139-2) is referred to as “BCPO Def. Br.”; and Campos

and Ferraioli’s brief in support of their motion to dismiss (D.E. 140-2) is referred to as “Campos

Br.”. Plaintiff’s combined brief in opposition (D.E. 164) will be referred to as “Plf. Opp.”

Nine) as to Arosemowicz and the Individual HPD Defendants;and malicious prosecution (Counts

Three through Five) with respect to the 2004 Altercation charges only and only as to the Individual

HPD Defendants and the Individual BCPO Defendants in their individual (rather than official)

capacities. The Court also determined in the October 19 Opinion, that the FAC did not clearly

delineate whether certain conduct of the Individual BCPO Defendants was prosecutorial or

investigative. Accordingly, the Court granted Plaintiff leave to clarify his allegations in order to

determine whether prosecutorial immunity applied to certain BCPO Defendants. Finally, the

Court dismissed certain of Plaintiff’s claims without prejudice and granted Plaintiff leave to file

an amended pleading solely as to those claims.3

On July 17, 2019, Plaintiff filed the SAC. Plaintiff asserts the following counts in the SAC:

denial of a fair trial under 42 U.S.C. § 1983as to the 2008 Car Accident(Count One)4; denial of a

fair trial under the New Jersey Civil Rights Act (“NJCRA”), N.J.S.A. 10:6-1et seq.,as to the 2008

Car Accident (Count Two); malicious prosecution and conspiracy to commit malicious

prosecution under § 1983 as to all charges except the 2008 Official Misconduct charge and as to

all Defendants except Arosemowicz (Count Three); malicious prosecution and conspiracy to

commit malicious prosecution under the NJCRA as to all charges except the 2008 Official

Misconduct charge and as to all Defendants except Arosemowicz (Count Four); common law

malicious prosecution and conspiracy to commit malicious prosecutionas to all charges except the

2008 Official Misconduct charge and as to all Defendants except Arosemowicz (Count Five);

failure to supervise/intervene under § 1983 against LoIacono, Padilla, Haviland, Condon, and

3 On November 2, 2018, Plaintiff filed a motion seeking reconsideration of five issues that were

addressed in the October 19 Opinion. D.E. 81. Plaintiff’s motion was denied because Plaintiff

did not establish adequate grounds for reconsideration. D.E. 116.

4 Each count is asserted against all Defendants unless otherwise noted.

Hackensack (Count Six); failure to supervise/intervene under the NJCRA against LoIacono,

Padilla, Haviland, Condon, and Hackensack (Count Seven); fabrication of evidence under § 1983

(Count Eight); fabrication of evidence under the NJCRA (Count Nine); conspiracy under § 1983

(Count Twelve)5; conspiracy under the NJCRA (Count Thirteen); municipal liability under § 1983

against Hackensack (Count Fourteen); municipal liability under the NJCRA against Hackensack

(Count Fifteen); and common law aiding and abetting (Count Sixteen). Defendants filed the

instant motions to dismiss on August 28, 2019 seeking to dismiss certain aspects of the SAC

pursuant to Rule 12(b)(6). D.E. 137-141.

II. LEGAL STANDARDS

Rule 12(b)(6) of the Federal Rules of Civil Procedure permits a defendant to move to

dismiss a count for “failure to state a claim upon which relief can be granted[.]” To withstand a

motion to dismiss under Rule 12(b)(6), a plaintiff must allege “enough facts to state a claim to

relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A

complaint is plausible on its face when there is enough factual content “that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009). Although the plausibility standard “does not impose a probability

requirement, it does require a pleading to show more than a sheer possibility that a defendant has

acted unlawfully.” Connelly v. Lane Const. Corp., 809 F.3d 780, 786 (3d Cir. 2016) (internal

quotation marks and citations omitted). As a result, a plaintiff must “allege sufficient facts to raise

a reasonable expectation that discovery will uncover proof of [his] claims.” Id.at 789.

In evaluating the sufficiency of a complaint, a district court must accept all factual

allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff.

5 The SAC does not include a Count Ten or Eleven.

Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008). A court, however, is “not

compelled to accept unwarranted inferences, unsupported conclusions or legal conclusions

disguised as factual allegations.” Baraka v. McGreevey, 481 F.3d 187, 211 (3d Cir. 2007). If,

after viewing the allegations in the complaint most favorable to the plaintiff, it appears that no

relief could be granted under any set of facts consistent with the allegations, a court may dismiss

the complaint for failure to state a claim. DeFazio v. Leading Edge Recovery Sols.,LLC,No. 10-

2945,2010 WL 5146765, at *1 (D.N.J. Dec. 13, 2010).

III. LAW & ANALYSIS

Haviland, Condon, and Molina, the Individual BCPO Defendants, all argue that they are

immune for the alleged misconduct because of prosecutorial and qualified immunity.

1. Prosecutorial Immunity

Prosecutors have absolute immunity from civil liability for conduct in their role as

prosecutors. With respect to §1983 claims, prosecutorial immunity applies when the “prosecutor’s

conduct is ‘intimately associated with the judicial phase of the criminal process.’”6 Newsome v.

City of Newark, No. 13-6234, 2014 WL 4798783, at *2 (D.N.J. Sept. 25, 2014) (quoting Imbler v.

Pachtman, 424 U.S. 409, 430 (1976)). A defendant prosecutormust establish that “he or she was

functioning as the state’s advocate when performing the action(s) in question,” such that the

actions were “in a judicial or ‘quasi-judicial’ capacity.” Odd v. Malone, 538 F.3d 202, 208 (3d

Cir. 2008). In addition, prosecutorial immunity is not limited solely to attorneys; employees of

prosecutors are also entitled to immunity “when the employee’s function is closely allied to the

6 To be clear, this discussion of prosecutorial immunity only pertains to Plaintiff’s § 1983 claims.

As discussed in the October 19 Opinion, “[p]rosecutorial immunity is not absolute under New

Jersey law,” and the Court already determined that, as pled, the BCPO Defendants are not immune

for the New Jersey state law claims. Oct. 19 Opinion at 31.

judicial process.” Davis v. Grusemeyer, 996 F.2d 617, 631 (3d Cir. 1993). Prosecutorial

immunity, however, “does not apply where the prosecutor’s actions serve a purely investigative

function.” Newsome, 2014 WL4798783, at *2.

“To decide whether absolute immunity attaches to a particular kind of prosecutorial

activity, [a court] must take into account the ‘functional’ considerations.” Van de Kamp v.

Goldstein, 555 U.S. 335, 343 (2009). This is a fact-based analysis; a court must “ascertain just

what conduct forms the basis for the plaintiff’s cause of action” and then, must “determine what

function (prosecutorial, administrative, investigative, or something else entirely) that act served.”

Schneyder v. Smith, 653 F.3d 313, 332 (3d Cir. 2011).

The Third Circuit has provided guideposts to assist courts in determining whetherconduct

is prosecutorial or investigative. First, timing may be instructive as “the period during which

prosecutors are most likely functioning in a ‘quasi-judicial’ capacity is the time between

indictment and dismissal, acquittal, or conviction.” Odd, 538 F.3d at 211. Next, prosecutorial

activities may include conduct that involves preparing for a case and “obtaining, reviewing, and

[evaluating] evidence.” Newsome, 2014 WL 4798783, at *3. This may include soliciting

testimony from grand jury witnesses and conducting interviews to generate evidence to be

presented to the grand jury. Kulwicki v. Dawson, 969 F.2d 1454,1465 (3d Cir. 1992). Finally,

“decisions regarding how to proceed with a prosecution serve a prosecutorial, rather than

administrative function and thus warrant absolute immunity.” Newsome, 2014 WL 4798783, at

*3. Specifically, “the decision whether to bring a criminal suit” falls “squarely within a

prosecutor’s absolute immunity,” as does the decision of whether to continue a prosecution

through to trial. Davis v. Grusemeyer, 996 F.2d 617, 629 (3d Cir. 1993).

In the October 19 Opinion, this Court determined that Haviland was not entitled to

prosecutorial immunity with respect to the allegations that he instructed staff to destroy their

notes.7 Oct. 19 Opinion at 30-31. As for the remaining allegations, the Court concluded that the

FAC did not draw a clear distinction between investigative and prosecutorial conduct.

Accordingly, the Court could not determine whether any other alleged conduct by the BCPO

Defendants was subject to prosecutorial immunity. Id.at 30. Now, Haviland, Condon, and Molina

argue that the SAC still fails to clarify that certain actions were actually investigative. “Instead,

Plaintiff merely repeated the same allegations previously made and labeled the conduct as

‘investigative.’” BCPO Defs. Br. at 11. Plaintiff counters that Haviland, Condon, and Molina are

not entitled to prosecutorial immunity because the investigation was wrongfully initiatedbased on

an animus against Zisa. Plf. Opp. at 24. But as previously discussed in the October 19 Opinion,

personal considerations that may have influenced a decision as to how to proceed are not relevant.

Kulwicki v. Dawson, 969 F.2d 1454, 1465 (3d Cir. 1992) (finding that prosecutor was immune

from suit alleging that case was brought due to personal animus).

Zisa also contends that the SAC clearly delineates between investigative and prosecutorial

misconduct. Id. at 26. The Court agrees in part. As the BCPO Defendants argue, there are

numerous instances in the SAC where Plaintiff simply added the word “investigative” or

“investigate.” For example, when describing Haviland and Condon’s decision to dismiss Al-

Ayoubi’s criminal charges, Plaintiff states that the conduct was part of the “Zisa investigation.”

See, e.g., SAC ¶95 (explaining that information that Condon received from an attorney about Al-

Ayoubi’s steroid use might compromise the “Zisa investigation”). When Condon received this

7This determination –that Haviland was not entitled to prosecutorial immunity as to the destroyed

notes –stands and is not revisited here.

information, however, Zisa was already indicted and the information was relevant to Al-Ayoubi’s

credibility as a witness in the Zisa prosecution.8 Courts must “look beyond the labels” when

determining whether conduct is part of the prosecutor’s “core prosecutorial function.” Peterson

v. Bernardi, 719 F. Supp. 2d 419, 433 (D.N.J. 2010). Evaluating evidence used to present a case

falls squarely within the confines of prosecutorial conduct. See Newsome, 2014 WL 4798783, at

*2 (“This immunity encompasses decisions to continue a prosecution in light of conflicting

evidence, specifically questionable witness testimony.”). Consequently, the above example, and

the vast majority of the alleged misconduct of Haviland, Condon, and Molina, is prosecutorial

despite Plaintiff’s use of the label investigationor investigative.

But there is oneexception--Haviland’s directions to open an internal affairs investigation

as to Campos in June 2010. Plaintiff alleges that after learning that Campos’s earlier sworn

statement conflicted with facts alleged in her civil lawsuit against Zisa, Haviland directed the HPD

to open an internal affairs investigation into Campos. SAC ¶ 184. Directing others to open an

internal affairs investigationdoes not align with the traditional role of a prosecutor, even thoughit

occurred after Zisa was indicted. In fact, it is a job that is traditionally performed by police officers.

Haviland, therefore, is not entitled to prosecutorial immunity with respect to this conduct. See

Lopez-Siguenza v. Roddy, No. 13-2005, 2014 WL 1298300, at *9 (D.N.J. Mar. 31, 2014)

(concluding that “allegations of directing an ongoing investigation are sufficient to remove [the

8 Plaintiff also argues that when this occurred the BCPO Defendants were acting under a

memorandum of understanding (“MOU”), as a result they were not acting within their

prosecutorial capacity. Plf. Opp. at 31. The Court already determined that conduct that occurred

as a result of the MOU did not amount to administrative work because it was directly related to

the BCPO’s investigation and prosecution of Plaintiff. Oct. 19 Opinion at 25. Accordingly, in

light of the relevant factual allegations, the MOU does not automatically convert traditional

prosecutorial functions into administrative acts.

prosecutor’s] conduct before Plaintiff was charged with a crime from the protections of absolute

immunity”).

Plaintiff also contends that Haviland’s conduct throughout the Campos internal affairs

investigation is not subject to immunity because through the investigation, Haviland obtained false

statements from Campos that helped the Zisa investigation. SAC ¶¶ 187-95. Prosecutorial

immunity would not apply if Haviland conspired or intended to obtain false testimony from

Campos. See Walker v. Clearfield Cty. Dist. Att’y, 413 F. App’x 481, 483 (3d Cir. 2011)

(concluding that prosecutor was not immune to allegations that he manufactured evidence to

establish probable cause). But it is not clear when Haviland knew that Campos was giving false

testimony. SAC ¶ 216 (alleging that Haviland knew Campos’s allegations as to Zisa were

fabricated by, “at latest, August 11, 2011”). The Supreme Court has directed lower courts to apply

prosecutorial immunity sparingly such that there is a “presumption that qualified rather than

absolute immunity is appropriate.” Odd, 538 F.3d at 208. Thus, the Court concludes that Haviland

is not entitled to absolute prosecutorial immunity at this time. Given the uncertainty as to whether

Haviland knew he was eliciting false testimony, the Court does not conclude that Haviland is

absolutely immune for his conduct with respect to the Campos internal affairs investigation. Of

course, this determination is made as to the SAC’s allegations; the Court may need to revisit the

issue following discovery if different facts come to light.

In sum, Condon and Molina are afforded prosecutorial immunity for their alleged

wrongdoing, and Haviland is entitled to prosecutorial immunity for his conduct except for his

involvement in the Campos internal affairs investigation.

2. Qualified Immunity

In the October 19 Opinion, this Court determined that “[t]o the extent that the BCPO

Officers are not absolutely immune as a result of prosecutorial immunity, the remaining claims

asserted against them are barred as a result of qualified immunity in light of the allegations as

pled.” Oct. 19 Opinion at 32. Plaintiff repeats his argument that the BCPO Defendants’ conduct

is not protected by qualified immunity.9 Plf. Opp. at 6-24. As in the first motion to dismiss, the

parties focus on Haviland’s instructions to destroy notes and the failure to disclose immunity

agreements. Accordingly, the Court also focuses on this conduct.

Qualified immunity can shield a municipal officer from liability in a § 1983 case. Wright

v. City of Philadelphia, 409 F.3d 595, 599 (3d Cir. 2005). Qualified immunity under the NJCRA

“tracks the federal standard.” Brown v. State, 230 N.J. 84, 98 (2017) (“To ascertain whether a

governmental official . . . is entitled to qualified immunity requires inquiries into whether: (1) the

facts, taken in the light most favorable to the party asserting the injury . . . show the officer’s

conduct violated a constitutional right; and (2) that constitutional right was clearly established at

the time that defendant acted.”) (quotations, citations, and brackets omitted). Accordingly, the

Court considers qualified immunityfor Plaintiff’s § 1983 and NJCRA claims together.

9 Plaintiff again argues that it is “premature” to decide whether any Defendant is entitled to

qualified immunity, and that qualified immunity should only be decided with a complete factual

record. Plf. Opp. at 6. The Court is dismayed that Plaintiff continues to make arguments that

Court has expressly considered, ruled on, and rejected. Again, “the Supreme Court ‘repeatedly

has stressed the importance of resolving immunity questions at the earliest possible stage in

litigation.’” Thomas v. Independence Township, 463 F.3d 285, 291 (3d Cir. 2006)(quoting Hunter

v. Bryant, 502 U.S. 224 (1991)) (internal brackets omitted). Thus, courts can resolve the question

of qualified immunity at the motion to dismiss stage. See, e.g., Laniado v. County of Ocean, No.

18-1513, 2019 WL 3451705, at *5 (D.N.J. July 31, 2019) (granting Rule 12(b)(6) motion to

dismiss as to certain defendants because of qualified immunity).

“Qualified immunity shields government officials from personal liability for civil damages

insofar as their conduct does not violate clearly established statutory or constitutional rights of

which a reasonable person would have known.” Paszkowski v. Roxbury Twp. Police Dep’t, No.

13-7088, 2014 WL 346548, at *2 (D.N.J. Jan. 30, 2014). A court must engage in the following

two-part inquiry to determine whether qualified immunity applies: (1) whether the allegations,

reviewedin alight most favorableto the party asserting the injury, show that defendant’s conduct

violated a constitutional right, and (2) whether the constitutional right at issue was clearly

established at the time of the alleged violation. Pearson v. Callahan, 555 U.S. 223, 232 (2009).

Courts have the discretion to consider either prong of the two-part analysis first. Id. at 236. The

United States Supreme Court has ruled that the “contours of the right must be sufficiently clear

that a reasonable official would understand that what he is doing violates that right.” Saucier v.

Katz, 533 U.S. 194, 202 (2001). “To make that determination, [a court should] engage in another

reasonableness inquiry: ‘whether it would be clear to a reasonable officer that his conduct was

unlawful in the situation he confronted.’” Santini v. Fuentes, 795 F.3d 410, 417-18 (3d Cir. 2015)

(quoting Saucier, 533 U.S. at 202). This analysis is “undertaken in light of the specific context of

the case.” Saucier, 533 U.S. at 201.

The BCPO Defendants argue that Haviland is entitled to qualified immunity because Zisa

does not allege a Brady violation. BCPO Def. Br. at 6-7. In Brady v. Maryland, the Supreme

Court concluded that pursuant to the Due Process Clause of the Fourteenth Amendment,

prosecutors must disclose exculpatory evidence that is material to a defendant’s guilt or

punishment. 373 U.S. 83, 87 (1963). The requirements of Brady have been extended to state

actors. See, e.g.,Kaplan v. Holder, No. 14-1740, 2015 WL 1268203, at *4 (D.N.J. Mar. 18, 2015).

Moreover, Brady represents a clearly established constitutional right. See, e.g., Munchinski v.

Solomon, 747 F. App’x 52, 61 (3d Cir. 2018).

In the SAC, Zisa alleges that the notes destroyed by Haviland “are believed to have

contained exculpatory Brady material.” SAC ¶ 307. Zisa continues that the notes hindered his

ability to confront and cross examine witnesses. Id.¶ 308. Evidence is Bradymaterial “if there is

a reasonable probability that, if the evidence had been disclosed, the result of the proceeding would

have been different.” Breakiron v. Horn, 642 F.3d 126, 133 (3d Cir. 2011) (quoting Wilson v.

Beard, 589 F.3d 651, 665 (3d Cir. 2009)). “A reasonable probability of a different result is shown

when the government’s evidentiary suppression undermines confidence in the outcome of the

trial.” Id. Although Zisa does not know precisely what was destroyed, he argues that he is entitled

to discovery to determine whether Bradyevidence was in fact destroyed. Plf. Opp. at 21-22.

Citing to United States v. Ramos, 27 F.3d 65 (3d Cir. 1994), in the October 19 Opinion,

this Court explained, assuming that it constituted a clearly established right, to establish that a

constitutional wrong occurred, Zisa must raise “a colorable claim that the investigator’s discarded

rough notes contained evidence favorable to him and material to his claim of innocence or to the

applicable punishment—and that such exculpatory evidence has not been included in any formal

interview report provided to defendant.” Oct. 19 Opinion at 37. The FAC, however, only

speculatedthat the destroyed notes may have containedBradymaterial. Id.

The SAC includes additional allegations to support a colorable claim that Haviland

destroyed Brady material that was not otherwise disclosed. The SAC pleads that after Zisa’s

counsel made a request for the preservation of relevant documents, Haviland walked through the

office and instructed “everybody” to get rid of notes and e-mails “on the Zisa case.” SAC ¶ 298.

Moreover, Haviland’srequest to get rid of notes and documents was “peculiar.” Id.¶ 298. Finally,

the SAC explains that few documents were actually produced, and thatno notes, for example,were

ever produced from meetings with Wilks, Attorney T’s investigator. Id. ¶ 306. The Court had

anticipated that Zisa was going to make a colorable claim based on responses to his actual cross

examination at trial. For example, a trial witness may have recalled that there were differences

between the material turned over in discovery when compared to the information in the destroyed

notes.

Nevertheless, reading the SAC in a light most favorable to Plaintiff, the Court concludes

that Zisa makes a colorable claim that Brady material was not disclosed because of Haviland’s

destruction of materials. Zisa adequately points tothe timing(on the heels of a defense request to

preserve); the fact that Haviland’s instructions were, at best, unusual; the limited number of

documents that were produced; and the allegedly instrumental role played by Wilks. Plaintiff,

therefore, sufficiently pleads that Haviland’s conduct with respect to the destruction of materials

constitutes a constitutional wrong.

Haviland does not address whether his alleged constitutional harm violated a clearly

established right. “[T]he burden of pleading a qualified immunity defense rests with the

defendant.” Thomas v. Independence Township, 463 F.3d 285, 291 (3d Cir. 2006). Because

Haviland fails to address the second prong, the Court cannot conclude that he is entitled to qualified

immunity at this time. See Rosenberg v. Vangelo, 93 F. App’x 373, 378-79 (3d Cir. 2004) (“To

the extent the Supervisory Defendants fail to address the issue [of whether a right was clearly

established], therefore, their claim for qualified immunity fails ipso facto.”).

Turning to the immunity deals, the BCPO Defendants maintain that they are also entitled

to qualified immunity. BCPO Def. Br. at 7-8. In Giglio v. United States, 405 U.S. 150 (1972),the

Supreme Court concluded that there is a due process violation if the prosecution failed to reveal

that a witness had been promised not to be prosecuted in exchange for giving testimony because

such a promiseis critical impeachment evidence. Giglio, 405 U.S. at 154-55. Like Brady,Giglio

has been extended to state actors and is also a clearly established constitutional right. See, e.g.,

Kamienski v. Ford, No. 11-3056, 2019 WL 4556817, at *18 (D.N.J. Sept. 17, 2019).

Plaintiff alleges that the BCPO Defendants failed to disclose “meaningful, detailed

information” regarding the immunity deals, SAC ¶ 275; Plaintiff does not claim that the BCPO

Defendants failed to disclose that the immunity deals existed. Plaintiff also alleges that during his

trial he cross-examined witnesses about their immunity deals and that the witnesses testified about

their understanding of the terms. Id. ¶¶270, 222. As discussed, aGiglioviolation occurs when a

defendant fails to disclose an immunity agreement. Because Plaintiff knewbefore his trialthat the

immunity agreements existed,hefails to adequately pleadany violation of Giglio. Consequently,

the BCPO Defendants are entitled to qualified immunity as to this alleged misconduct.

Thus, with the exception of Haviland’s conduct with respect to the Campos internal

investigationand his destruction of potential Bradymaterial,the remaining claims asserted against

the Individual BCPO Defendants are barred as a result of prosecutorial and qualified immunity.

Accordingly, the claims against Condon and Molina are dismissed without prejudice.

B. Section 1983 and the New Jersey Civil Rights Act

42 U.S.C. § 1983, in relevant part, provides as follows:

Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of the United States or other

person within the jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution and laws, shall be

liable to the party injured in an action at law, suit in equity, or other proper

proceeding for redress[.]

§ 1983 does not provide substantive rights; rather, § 1983 provides a vehicle for vindicating

violations of other federal rights. Graham v. Connor, 490 U.S. 386, 393-94 (1989). In order to

state a claim under §1983, a plaintiff must demonstrate that “(1) a person deprived him of a federal

right; and (2) the person who deprived him of that right acted under color of state or territorial

law.” Burt v. CFG Health Sys., No. 15-2279, 2015 WL 1646849, at *2 (D.N.J. Apr. 14, 2015).

The NJCRA provides a private cause of action to

[a]ny person who has been deprived of any substantive due process or equal

protection rights, privileges or immunities secured by the Constitution or

laws of the United States, or any substantive rights, privileges or immunities

secured by the Constitution or laws of this State, or whose exercise or

enjoyment of those substantive rights, privileges or immunities has been

interfered with or attempted to be interfered with, by threats, intimidation

or coercion by a person acting under color of law, may bring a civil action

for damages and for injunctive or other appropriate relief.

N.J.S.A. 10:6-2. The “NJCRA was modeled after § 1983, [and so] courts in New Jersey have

consistently looked at claims under the NJCRA through the lens of § 1983 and have repeatedly

construed the NJCRA in terms nearly identical to its federal counterpart.” Velez v. Fuentes, No.

15-6939, 2016 WL 4107689, at *5 (D.N.J. July 29, 2016) (internal quotations and citation

omitted). Therefore, the Court considers Plaintiff’s §1983 and NJCRA claims together.

1. Monell Liability(Counts Fourteen &Fifteen)

Hackensack argues that the SAC fails to plausibly plead Monell liability as to it because

the SAC contains no allegations about a city policy, plan, or custom that relates to Plaintiff’s

prosecution. Hackensack Br. at 20-26. A municipality may be liable under Section 1983 “if the

plaintiff identifies a municipal ‘policy’ or ‘custom’ that was the ‘moving force’ behind the injury.”

Jewell v. Ridley Township, 497 F. App’x 182, 185 (3d Cir. 2012) (quoting Monellv. Dep’t of Soc.

Servs. of N.Y.C., 436 U.S. 658, 694 (1978)). A policy exists “when a decision-maker with final

authority issues an official proclamation, policy, or edict.” Noble v. City of Camden, 112 F. Supp.

3d 208, 221 (D.N.J. 2015) (internal quotations and citations omitted). “[A] custom may be

established by showing that a given course of conduct, although not specifically endorsed or

authorized by law, is so well-settled and permanent as virtually to constitute law.” Id. (internal

quotations and citations omitted). In addition, the Third Circuit recently clarified that a Monell

claim may also be premised on a municipality’s failure to train, supervise, and discipline. To plead

such a claim, a plaintiff “must demonstrate that a city’s failure to train its employees ‘reflects a

deliberate or conscious choice.’” Estate of Roman v. City of Newark, 914 F.3d 789, 798, 800 (3d

Cir. 2019) (quoting Brown v. Muhlenberg Township, 269 F.3d 205, 215 (3d Cir. 2001)). For claims

involving police officers, the alleged failure can only serve as a basis for § 1983 liability where it

“amounts to deliberate indifference to the rights of persons with whom the police come into

contact.” Id. (quoting City of Canton v. Harris, 489 U.S. 378, 388 (1989)).

In the October 19 Opinion, the Court dismissed Plaintiff’s Monell claim, in part, because

Plaintiff failed to sufficiently plead that Hackensack acted with deliberate indifference. Plaintiff

still fails to do so. Deliberate indifference is plausibly pled by showing that “(1) municipal policy

makers know that employees will confront a particular situation, (2) the situation involves a

difficult choice or a history of employees mishandling, and (3) the wrong choice by an employee

will frequently cause deprivation of constitutional rights.” Estate of Roman, 914 F.3d at 798

(quoting Doe v. Luzerne County, 660 F.3d 169, 180 (3d Cir. 2011) (internal brackets omitted)). In

the SAC, Plaintiff again alleges that Hackensack failed to train and supervise the HPD officers,

and that Padilla and LoIacono acted with deliberate indifference. SAC ¶¶ 528-30. Although the

SAC includes new allegations as to certain incidents where the HPD demonstrated favoritism or a

disregard to enforce laws, some of these incidents occurred after the Zisa prosecution, see, e.g.,

SAC ¶¶ 369(a), (f), (g), or it is not clear when they occurred, see, e.g., id. ¶¶ 369(d), (q). As a

result, the Court cannot ascertain whether there was a history of misconduct before the Zisa

prosecutionoccurred. Moreover, the new allegations are factually distinct. Even if they did occur

prior to the Zisa prosecution, viewing these incidents together would not alert HPD decisionmakers

that they were likely to confront the situation that occurred here.10

Plaintiff argues in passing that a single incident may be sufficient to establish deliberate

indifference. Plf. Opp. at 41. It is true that in some instances, “the need for training can be said

to be so obvious, that failure to do so could properly be characterized as deliberate indifference to

constitutional rights even without a pattern of constitutional violations.” Thomas v. Cumberland

County, 749 F.3d 217, 223 (3d Cir. 2014) (citing City of Canton, Ohio v. Harris, 489 U.S. 378,

390 n. 10 (1989)). “Liability in single-incident cases depends on ‘[t]he likelihood that the situation

will recur and the predictability that an officer lacking specific tools to handle that situation will

violate citizens' rights.’” Id.at 223-24(quoting Brown, 520 U.S. at 409). Plaintiff has not alleged

sufficient facts to demonstratedeliberate indifference based on his incident alonebecause he fails

to plead facts demonstrating that the need for training was patently obvious. Id. at 223. Without

allegations establishing that Hackensack acted with deliberate indifference, Plaintiff’s Monell

claims fail.

10 Plaintiff also alleges that Hackensack and the HPD had a “standard operating procedure” or

“custom” of selective enforcement and prosecution for personal or political reasons. SAC ¶ 368.

Plaintiff clarifies that this “policy” was effectuated through the HPD’s failure to train or supervise

the HPD officers. Id. ¶ 530; see also Plf. Opp. at 36. The Court does not interpret Plaintiff’s

allegations to mean that HPD engaged in selective enforcement for political reasons when he was

the head of the department –although his tenure would seemingly be the relevant time period, i.e.

the period in which he was he chief and before he was charged. Moreover, even if Plaintiff’s

Monell claim was pled as true custom claim, rather than a failure to train claim, the incidents in

the SAC are too factually distinct to adequately allegea custom.

2. Supervisory Liability(Counts Six&Seven)

Plaintiff also asserts § 1983 and NJCRA claims against LoIacono and Padilla, the

Individual Hackensack Defendants in supervisory positions; Haviland, the remaining BCPO

Defendant in a supervisory position; and Hackensack, for their failure to supervise or intervene.

Plaintiff alleges that these Defendants “turned a blind eye” on the failures of several employees

and “failed to hold them accountable for their misconduct.” SAC ¶ 453.

“Government officials may not be held liable for the unconstitutional conduct of their

subordinates under a theory of respondeat superior.” Argueta v. U.S. Immigration & Customs

Enf’t, 643 F.3d 60, 71 (3d Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)). Rather,

a plaintiff must show that “each Government-official defendant, through the official's own

individual actions, has violated the constitution.” Id. (quoting Iqbal, 556 U.S. at 676). “[A]

supervisor may be personally liable under § 1983 if he or she participated in violating the plaintiff’s

rights, directed others to violate them, or, as the person in charge, had knowledge of and acquiesced

in his subordinates’ violations.” A.M. ex rel. J.M.K. v. Luzerne Cty. Juvenile Det. Ctr., 372 F.3d

572,586(3d Cir. 2004). “Proximate causation is established where the supervisor gave directions

that the supervisor knew or should reasonably have known would cause others to deprive the

plaintiff of her constitutional rights.” Santiago v. Warminster Township, 629 F.3d 121, 130 (3d

Cir. 2010) (internal quotation omitted). In other words,

a plaintiff asserting a failure to supervise claim must not only identify a

specific supervisory practice that the defendant failed to employ, he or she

must also allege both (1) contemporaneous knowledge of the offending

incident or knowledge of a prior pattern of similar incidents, and (2)

circumstances under which the supervisor's inactioncould be found to have

communicated a message of approval.

Jankowski v. Lellock, 649 F. App’x 184,187 (3d Cir. 2016)(citation omitted).11

Plaintiff’s supervisory liability claims as to Haviland were previously dismissed without

prejudice because the Court could not delineate what Plaintiff contended was investigative as

opposed to prosecutorial. Oct. 19 Opinion at 43-45. In this Opinion, the Court already determined

that due to prosecutorial and qualified immunity, Plaintiff’s supervisory liability claim as to

Haviland can only be premised on his involvement in the Campos internal affairs investigation

and his instructions to destroy notes, as the remainder of Haviland’s allegedly wrongful conduct

is protected by prosecutorial and qualified immunity. Based solely on the non-immune conduct

and drawing all reasonable inferences in Plaintiff’s favor, the SAC states a claim for supervisory

liability as to Haviland. Haviland ordered and then oversaw the internal investigation of Campos

because he realized that Campos provided conflicting testimony. See Jankowski, 649 F. App’x at

187. Further, Haviland personally participated in the investigation. Next, the allegations regarding

Haviland’s instructions to destroy notes are also sufficient to plead a claim for supervisory liability

because Haviland “knew or should reasonably have known” that these instructions “would cause

others to deprive the plaintiff of [his]constitutional rights.” Santiago, 629 F.3d at 130.

As for the supervisory liability claims against LoIacono and Padilla, the Court dismissed

these claims in the FAC because Plaintiff failed to plead sufficient facts demonstrating that

LoIacono and Padilla condoned or instructed their subordinates to act in a manner that violated

Plaintiff’s civil rights. Oct. 19 Opinion at 44-45. In the SAC, Plaintiff pleads that LoIacono knew

that Al-Ayoubi illegally ingested steroids but failed to supervise by ensuring that Al-Ayoubi was

11 The Third Circuit has “refrained from answering the question of whether Iqbal eliminated—or

at least narrowed the scope of—supervisory liability because it was ultimately unnecessary to do

so in order to dispose of the appeal then before us.” Jankowski, 649 F. App’x at 187 (quoting

Argueta, 643 F.3d at 70).

terminated per the Drug Policy Guidelines. SAC ¶¶ 101-08, 112, 463. These allegations are

sufficient to establish knowledge and participation in the alleged wrongdoing that is necessary to

plead a supervisory liability claim under § 1983. The SAC, however, does not plead that Padilla

knew of Al-Ayoubi’s steroid use or the dismissal of Al-Ayoubi’s administrative charges.

Accordingly,as pled,Plaintiff does not sufficiently allege that Padilla condoned or instructed any

subordinates in a manner that violated Zisa’s civil rights. Thus, Plaintiff fails to plead a

supervisory liability claim as to Padilla.

Finally, Plaintiff also asserts his supervisory liability claims against Hackensack. As

discussed, [a]municipality may beliable under Section 1983 “if the plaintiff identifies a municipal

‘policy’ or ‘custom’ that was the ‘moving force’ behind the injury.” Jewell, 497 F. App’x at 185

(quoting Monell, 436 U.S. at 694). But Plaintiff fails to pleaddeliberate indifference. As a result,

Plaintiff’s supervisory liability claims fail as to Hackensack.12

3. Malicious Prosecution (Counts Three –Five)

In Counts Three through Five of the SAC, Zisa asserts malicious prosecution and

conspiracy to commit malicious prosecution claims as to all charges except the 2008 Official

Misconduct charge against Haviland, Campos, Al-Ayoubi, Herrmann, Padilla, LoIacono and

Ferraioli. SAC ¶¶ 399-448. Campos, Ferraioli, and Haviland seek to dismiss these claimspursuant

to Rule 12(b)(6). Campos Br. at 11-14; BCPO Def. Br. at 19-27.

To state a prima facie malicious prosecution claim under § 1983, the NJCRA, and the

common law, a plaintiff must plead that (1) defendants initiated a criminal proceeding; (2) the

12 In the SAC, Plaintiff also asserts his claims for denial of a fair trial, malicious prosecution,

fabrication of evidence and conspiracy against Hackensack. Because Plaintiff does not plead that

Hackensack was acting pursuant to an official policy or custom, these claims are all dismissed as

to Hackensack.

criminal proceeding ended in plaintiff’s favor; (3) the proceeding was initiated without probable

cause; and (4) the defendants acted maliciously or for a purpose other than bringing the plaintiff

to justice. See Kossler v. Crisanti, 564 F.3d 181, 186 (3d Cir. 2009) (quoting Estate of Smith v.

Marasco, 318 F.3d 497, 521 (3d Cir. 2003)) (setting forth elements for a Section 1983 malicious

prosecution claim); Waselik v. Township of Sparta, No. 16-4969, 2017 WL 2213148, at *8 n.15

(D.N.J. May 18, 2017) (stating that a malicious prosecution claim under the NJCRA is construed

in parallel to a § 1983 claim); Frost v. County of Monmouth, No. 17-4395, 2018 WL 1469055, at

*9 (D.N.J. Mar. 26, 2018) (setting forth elements of common law malicious prosecution claim).

Section 1983 claims also require a plaintiff to establish that “he suffered a deprivation of liberty

consistent with the concept of seizure as a consequence of a legal proceeding.” Kossler, 564 F.3d

at 186.

Ferraioli contends that the malicious prosecution claims must be dismissed as to him

because Plaintiff fails to allege that he waspersonallyinvolvedin the wrongdoing. Campos Br. at

12. The Court agrees. Plaintiff pleads that Ferraioli and others intentionally presented false

testimony, which facilitated the unfair trial. SAC ¶¶ 405-406. Outside of this conclusory

allegation, Plaintiff fails to identify any false testimony from Ferraioli or even provide specific

allegations of his involvement in the Zisa prosecution more generally. Without sufficient

allegations demonstrating Ferraioli’s personal involvement, the malicious prosecution claims

asserted against him fail. See Rode v. Dellarciprete, 845 F.2d 1195, 1207-08 (3d Cir. 1988)

(affirming dismissal of First Amendment retaliation claim where plaintiff failed to allege personal

direction of or knowledge and acquiescence in retaliatory actions by individual defendants);

Livingston v. Borough of Edgewood, 430 F. App’x 172, 178 (3d Cir. 2011) (affirming dismissal

of conspiracy claims because plaintiff “proffered neither direct nor circumstantial evidence

sufficient to a reasonable finding of conspiratorial agreement or concerted efforts among the

defendants”) (internal brackets omitted).

Similarly, Campos argues that malicious prosecution claims must be dismissed as to her,

as they pertain to the 2008 Car Accident, because “Plaintiff has failed to allege a single fact that

would tie Campos to the 2008 Car Accident or the subsequent investigation thereof.” Campos Br.

at 14. Again, the Court agrees. Zisa only alleges that Campos was involved in the 2004 Altercation

and resulting investigation. Thus, Campos and Ferraioli’s motion to dismiss is granted on these

grounds.

Turning to Haviland, Haviland first argues that the malicious prosecution claims must be

dismissed as to him because Plaintiff fails to allege that he personally initiated any criminal

proceedings. BCPO Br. at 19. Although Haviland did not personally sign the two criminal

complaints, Plaintiff alleges that Haviland participated in the Zisa investigation, which ultimately

led to the criminal complaint and indictment. Indeed, Haviland was the lead investigator for the

Zisa investigation. SAC ¶ 20. These facts are sufficient to establish at the motion to dismiss stage

that Haviland was personally involved in the decision to initiate criminal proceedings as to Zisa.

See Peterson v. Bernardi, 719 F. Supp. 2d 419, 431 n.12 (D.N.J. June 15, 2010) (explaining that

“there must be a showing that the misconduct significantly contributed to the decision to

prosecute”).

Next, Haviland contends that the malicious prosecution claims are pled too broadly in light

of the Court’s earlier decision. In the October 19 Opinion, the Court explained that the official

misconduct charges as to the2008 Car Accident werenot terminated favorably because theywere

ultimately dismissed after the remand on double jeopardy and fundamental fairness grounds.

Accordingly, this Court dismissed the malicious prosecution claims, with prejudice, to the extent

that they relied on the official misconduct charges as to the 2008 Car Accident. Oct. 19 Opinion

at 49-50. Yet, in its earlier Opinion, the Court permitted Plaintiff leave to replead as to other

charges related to the 2008 Car Accident, specifically, the witness tampering and insurance fraud

charges. Id. at 50. In the SAC, Plaintiff clarifies that his malicious prosecution claims are

premised on charges that pertain to the 2004 Altercation, the insurance fraud charges for the 2008

Car Accident, SAC ¶ 407, the pattern of official misconduct charge,and the intimidating a witness

charge, id. ¶ 408. These allegations appear to be in accord with Court’s prior ruling. The SAC,

however, fails to sufficiently differentiate the alleged wrongful conduct as to the 2008 Car

Accident. In other words, as pled, the insurance fraud and witness tampering charges are not

adequately distinguished from the official misconduct charges. Accordingly, because this Court

already determined that the charge for official misconduct relating to the 2008 Car Accident was

not favorably terminated, Plaintiff’s malicious prosecution claim as a whole fails with respect to

the 2008 Car Accident claims.13 Haviland’s motion to dismiss is granted on these grounds.

4. Denial of Fair Trial (Counts One & Two)

In Counts One and Two, Plaintiff alleges that Defendants offered false testimony, used

immunity agreements to solicit and offer perjured testimony, destroyed exculpatory evidence, and

presented false and fabricated evidence to the grand jury and at trial with respect to the 2008

Accident charges. SAC ¶¶ 371-98. To plead a claim for an unfair trial, a plaintiff must allege

“that the government’s alleged pretrial misconduct resulted in an unfair trial.” Anderson v.

Venango County, 458 F. App’x 161, 164 (3d Cir. 2012). Moreover, “a violation of the procedures

protecting the Sixth Amendment right to a fair trial, without an accompanying violation of the

13 As a result, the Court does not reach Haviland’s argument that he is entitled to qualified

immunity with respect the Insurance Fraud Charge. BCPO Def. Br. at 24-27.

right to a fair trial itself, is not enough to state a § 1983 claim.” Id. For example, in Anderson, the

Third Circuit determined that the plaintiff could not state a § 1983 fair trial claim because the

plaintiff was not retried following the alleged misconduct of witness tampering. Id.at 162-63;see

also Morgan v. Gertz, 166 F.3d 1307,1308 (10th Cir. 1999) (“The only judgment the court entered

was a judgment of acquittal. Regardless of any misconduct by government agents before or during

trial, a defendant who is acquitted cannot be said to have been deprived of the right to a fair trial.”).

Haviland contends that the fair trial counts must be dismissed because Plaintiff fails to

identify any relevant non-immune misconduct. BCPO Br. at 18. As discussed, there are two non-

immune activities for which Haviland could be subject to liability. First, is Haviland’s

involvement in the internal affairs investigation as to Campos, which pertains to the 2004

Altercation. Consequently, Counts One and Two cannot be premised on this conduct because

Plaintiff ultimately prevailed on these charges. Oct. 19 Opinion at 56. Second, is Haviland’s

destruction of notes, which is not limited to the 2004 Altercation. Plaintiff alleges that the

destroyed evidence inhibited Zisa’s right to confront and cross-examine witnesses. SAC ¶¶ 306-

08. Therefore, Plaintiff states a denial of fair trial claim as to Haviland based on conduct that is

not subject to prosecutorial or qualified immunity.

Campos and Ferraioli argue that the fair trial claims should be dismissed as to them because

Plaintiff fails to point to any statements or actions from either Defendant that relate to the 2008

Accident that contributed to the allegedly unfair trial. Campos Br. at 6. As discussed above,

Campos’s false testimony involved the 2004 altercation. Despite the fact that Plaintiff’s denial of

fair trials claims are limited to the 2008 Car Accident, Plaintiff alleges that he was denied a fair

trial because the “jury also heard Campos’s testimony on the 2004 Altercation and thereby she

prejudiced Zisa.” SAC ¶ 378. Campos’s trial testimony is subject to absolute immunity. Oct. 19

Opinion at 27-28. Moreover, the Court already concluded, and reiterated above, that “Plaintiff’s

fair trial claims are dismissed to the extent that they rely on the 2004 Altercation.” Id. at 56.

Accordingly, Plaintiff cannot rely on Campos’s trial testimony to support his fair trial claims, and

these Counts are dismissed as to Campos.

The fair trial claims are also dismissed as to Ferraioli because outside of conclusory

allegations, Plaintiff fails to attribute any actual wrongdoing by Ferraioli that caused Plaintiff to

receive anunfair trial with respect to the 2008 Car Accident. See Rode, 845 F.2d at 1207-08.

5. Fabrication of Evidence(Counts Eight & Nine)

In Counts Eight and Nine, Plaintiff alleges that Defendants fabricated evidence in violation

of Plaintiff’s Fourteenth Amendment rights. SAC ¶¶ 491-510. A claim for fabrication of evidence

can constitute a stand-alone § 1983 claim based on the Fourteenth Amendment’s Due Process

Clause.14 Halsey v. Pfeiffer, 750 F.3d 273, 294 (3d Cir. 2014). To plead a claim for fabrication

of evidence, a plaintiff must demonstrate that there was a “reasonable likelihood that, without the

use of that [fabricated] evidence, the defendant would not have been convicted.” Id.; see also

Black v. Montgomery County,835 F.3d 358, 371 (3d Cir. 2016)(stating that the evidence must be

“so significant that it could have affected the outcome of the criminal case”). However, testimony

that is incorrect or disputed cannot necessarily support a claim for fabrication of evidence. Rather,

there must be “persuasive evidence supporting a conclusion that the proponents of the evidence

were aware that the identification was incorrect, and thus, in effect, offered the evidence in bad

faith.” Halsey, 750 F.3d at 295.

14 Alleged fabrication of evidence can also be used in conjunction with a § 1983 claim for

malicious prosecution in violation of the Fourth Amendment. Halsey v. Pfeiffer, 750 F.3d 273,

290-91(3d Cir. 2014).

Ferraioli seeks to dismiss the fabrication of evidence claims as to him because the SAC

does not plead any facts alleging that he fabricated evidence. Campos Br. at 14-16. While the

SAC pleads that Ferraioli’s attorney,in essence, set the entire Zisa prosecution into action, SAC ¶

49, the SAC does not allege that the Zisa prosecution was in any way based on statements or

testimony from Ferraioli. Without an allegation that Ferraioli provided or assisted in

manufacturing false testimony, the false testimony claims fail as to him. See Rode, 845 F.2d at

1207-08.

Campos argues that the false testimony claims must be dismissed as to her because Plaintiff

fails to point to any evidence from her that is connected to the 2008 Accident conviction. Even if

an individual is acquitted, he may still bring a fabrication of evidence claim if “there is a reasonable

likelihood that, absent the fabricated evidence, the defendant would not have been criminally

charged.” Black v. Montgomery County, 835 F.3d 358, 371 (3d Cir. 2016). Accordingly,

Campos’s motion to dismiss is denied on these grounds.

Turning to the allegations as they pertain to Haviland, Haviland argues that because the

claim only involves the 2004 Altercation, Plaintiff’s claims are barred by the statute of

limitations.15 BCPO Def. Br. at 28-29. The statute of limitations is an affirmative defense not

normally decided on a motion to dismiss. See Crump v. Passaic County, 147 F. Supp. 3d 249, 259

(D.N.J. 2015). However, “where the complaint facially shows noncompliance with the limitations

period,”dismissal on statute of limitations grounds may be appropriate. Id. “Section 1983 has no

15 Zisa argues that the BCPO Defendants are barred from asserting this statute of limitations

argument pursuant to Fed. R. Civ. P. 12(g)(2). Plf. Opp. at 60. Rule 12(g)(2) generally prohibits

a party from asserting a new argument or defense in a Rule 12(b)(6) motion to dismiss that was

not, but could have been, raised in an earlier filed Rule 12(b)(6) motion to dismiss. Fed. R. Civ.

P. 12(g)(2). The BCPO Defendants, however, raised the statute of limitations argument in their

first motion to dismiss. SeeD.E. 40-1 at 11.

statute of limitations of its own, but borrows the statute of limitations from state personal injury

torts.” Nguyen v. Pennsylvania,906F.3d 271,273(3d Cir. 2018). InNew Jersey, personal injury

torts have a two-year statute of limitations. Dique v. N.J. State Police, 603 F.3d 181, 185 (3d Cir.

2010). This same limitation period also applies to Plaintiff’s claims under theNJCRA. Caban v.

City of Newark, No. 17-8230, 2018 WL 2427124, at *4 (D.N.J. May 30, 2018)). Federal law,

however, governs the date when a Section 1983 claim accruesand the statute of limitations begins

to run.16 Nguyen,906F.3dat 273.

“A claim accrues when the last act needed to complete the tort occurs.” Id. To that end,

the Supreme Court recently clarified that like a claim for malicious prosecution,a plaintiff cannot

bring “fabricated-evidence claims under § 1983 prior to favorable termination of his prosecution.”

McDonough v. Smith, 139 S. Ct. 2149, 2156-57 (2019) (concluding that the Heck bar applies to §

1983 claims for fabrication of evidence). Thus, for the same reasons as discussed in the October

19 Opinion, Plaintiff’s malicious prosecution claims did not accrue until July 24, 2017. Oct. 19

Opinion at 48-49. Plaintiff’s fair trial claims, therefore, are not time-barred.

Haviland also contends that Zisa fails to plead specific facts as to Haviland’s involvement

in the purportedly fabricated evidence. BCPO Def. Br. at 28. Drawing all reasonable inferences

in Plaintiff’s favor, the SAC pleads sufficient facts as to Haviland’s personal involvement in the

alleged fabrication of evidence. Specifically, the SAC pleads that Haviland ordered and then

oversaw the Campos internal affairs investigation because he realized that Campos provided

conflicting testimony, and fabricated evidencethrough this Internal Affairs investigation. SAC ¶¶

178-95. Consequently, the BCPO’s motion to dismiss is denied to the extent that it seeks to dismiss

16 While not specifically addressed by either party, Zisa’s NJCRA claims also accrued when the

wrongful act or omission occurred. Evans v. City of Newark, No. 14-120, 2016 WL 2742862, at

*4 (D.N.J. May 10, 2016).

the fabrication of evidence claims asserted against Haviland based on conduct that is not protected

by sovereign or qualified immunity.

6. Conspiracy (Counts Twelve and Thirteen) and Aiding and Abetting

(Count Sixteen)

Campos, Ferraioli, Haviland and Al-Ayoubi seek to dismiss Plaintiff’s conspiracy and

aiding and abetting claims as time-barred. The conspiracy and common-law tort claims that

Plaintiff asserted in the FAC were dismissed as time-barred because they accrued when his trial

was complete in 2012. Oct. 19 Opinion at 59-60. In the SAC, Plaintiffs conspiracy and aiding

and abetting claims are still premised on the same pre-trial conduct. SAC {/§[ 511-24; 63-70.

Accordingly, Counts Twelve, Thirteen and Sixteen are dismissed with prejudice because they are

barred by the statute of limitations. !”

IV. CONCLUSION

For the reasons stated above, Defendants’ motions to dismiss (D.E. 137-41) are

GRANTED in part and DENIED in part. An appropriate Order accompanies this Opinion.

Dated: March 31, 2020

Qe VNA\

Joh, Michael Vazquez, U.$.D.J. U

'7 Arosemowicz seeks to dismiss the conspiracy and aiding and abetting counts on the merits. See

D.E. 137. Because the Court is dismissing these counts on statute of limitations grounds it does

not reach the merits of these claims.

28