ONUEKWUSI v. GRAHAM

Not for Publication

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

JIDEOFOR MICHAEL ONUEKWUSI,

Plaintiff, Civil Action No. 20-cv-02965

v. OPINION

DARNELL GRAHAM, CHRISTOPHER

BROWN, MARIA MITTI, JOSEPH

COZENTINO, MIGUEL ARROYO, and CITY

OF NEWARK

Defendants,

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

This matter arises out of Plaintiff’s 42 U.S.C. § 1983 claims against Defendants, members

of the Newark Police Department (“NPD”), and the City of Newark. Defendants moved to dismiss

Plaintiff’s Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). The Court reviewed

the parties’ submissions1 in support and in opposition and decided the motion without oral

argument pursuant to Fed. R. Civ. P. 78(b) and L. Civ. R. 78.1(b). For the reasons stated below,

Defendants’ motion is granted in part and denied in part.

I. BACKGROUND

A. The Individual Defendants

Plaintiff filed his Complaint on March 18, 2020. See D.E. 1 (“Compl.”). Generally,

Plaintiff alleges that Defendants conspired to frame him for three armed robberies that occurred

between August 14-16, 2018, at 176 Weequahic Avenue in Newark, New Jersey. See id. ¶ 18-

24.

1 Defendants’ motion to dismiss, D.E. 10 (“Br.”); Plaintiff’s opposition, D.E. 13 (“Opp.”).

Defendants did not file a reply.

All three robbery victims intended to meet with an unknown seller at 176 Weequahic

Avenue to purchase an iPhone. Id. Two victims contacted the seller via craigslist and

communicated with the seller at the cell phone number 908-382-4172. Id. ¶¶ 18, 23. One of the

craigslist victims also reported the cell number 908-416-2052 was associated with the seller. Id.

¶ 24. A third victim only communicated with the seller via the mobile app “OfferUp.” Id. ¶ 21.

Upon arrival at 176 Weequahic Avenue, each victim was robbed at gunpoint. Id. ¶¶ 20, 21, 23.

All three victims similarly described the assailant. The first victim described the offender

as “a black man, approximately 25 years old, approximately 5’10’’ and medium build with black

hair and a beard.” Id. ¶ 19. The second victim described the assailant as a “black male,

approximately 5’9-5’10’’ and a medium build.” Id. ¶ 22. The third victim described the assailant

as a “black male in his mid-late 20s, slim/med build with a beard.” Id. ¶ 23. The first and second

victim did not describe the victim as having an accent. Id. ¶¶ 20, 22.

Plaintiff alleges that Defendants knew “with virtual certainty that the same person was

responsible for all three robberies,” id. ¶ 25, and decided to frame Plaintiff for the robberies. Id. ¶

26. However, Plaintiff alleges that Defendants had no factual basis to believe that Plaintiff had

anything to do with the robberies. Id. ¶ 28. In contrast to the suspect described by the victims,

Plaintiff claims that at the time of the robberies he was 36 years old, 6’1”, 254 pounds, and

speaking with a “distinct Nigerian accent.” Id. ¶ 27. Plaintiff further alleges that he “was not

associated in any way with the phone numbers the offender used to communicate” with two of the

victims – 908-382-4172 and 908-416-2052 – and that Plaintiff “maintained no accounts with

Craigslist or Offerup.” Id. ¶ 27. Plaintiff claims that Defendants knew this. Id. ¶ 28.

Plaintiff claims Defendant framed him by inducing false witness identifications through

misleading and suggestive photo arrays. Specifically, Plaintiff alleges that, on August 30, 2018,

Defendants Graham and Mitti arranged for the third victim to view a photo array. Id. ¶ 29. Plaintiff

states that Graham and Mitti included in the array a 2004 photograph of Plaintiff that depicted him

as 70 pounds lighter and 15 years younger than at the time of the robberies. Id. Plaintiff alleges

that at the time of the array, he did not resemble the 2004 photograph and that Graham and Mitti

knew this but did not tell the victim. Id. Plaintiff further alleges that Graham and Mitti falsely

told the victim that Plaintiff was associated with the phone number used by the offender. Id. ¶ 30.

Plaintiff claims that Graham and Mitti showed the victim the old photograph of Plaintiff and told

the victim that Plaintiff was associated with the assailant’s phone number with “the goal of

inducing a false identification of Plaintiff by the victim.” Id. ¶¶ 29-30. The third victim ultimately

identified Plaintiff as the perpetrator of the robbery. Id. ¶ 30.

On September 6, 2018, Defendants arrested Plaintiff. Id. ¶ 32. Plaintiff alleges that

Defendants did so without probable cause and that, after the arrest, “Defendants certainly were

aware that Plaintiff spoke with a distinct Nigerian accent” and that “[n]o victim had described the

offender as having any type of accent.” Id. Additional photo arrays followed. On September 9

and 10, 2018, Defendants Brown and Graham showed a photo array containing the same 2004

photo of Plaintiff to the first and second victims. Id. ¶ 32. Plaintiff states that Brown and Graham

knew the 2004 photo did not resemble Plaintiff at that time but did not tell the victims that and did

not tell the victims that Plaintiff spoke with a distinct Nigerian accent. Id. Brown and Graham

also told both victims that Plaintiff was associated with the phone number used by the perpetrator.

Id. ¶ 33. Plaintiff alleges Brown and Graham did these things to induce false identifications of

Plaintiff from the victims. Id. ¶ 33. The second victim identified Plaintiff but the first victim

“failed to make a positive identification.” Id.

Plaintiff alleges that Graham then “made false statements in his police reports and probable

cause affidavits claiming that a phone number associated with the offender was registered to

Plaintiff.” Id. ¶ 34. Graham also told this alleged falsehood to a grand jury and informed the grand

jury that two victims had identified Plaintiff as the offender “without mentioning the highly

suggestive and misleading photo array designed to induce a false identification of Plaintiff.” Id.

However, Plaintiff alleges that Graham “knew with certainty that Plaintiff’s phone number was

not and could not be linked to the offender in any way.” Id. ¶ 35. Graham also did not tell the

grand jury that Offerup and Craigslist confirmed that Plaintiff did not maintain an account with

those platforms. Id. Plaintiff alleges that Graham lied about the connection between Plaintiff and

the perpetrator’s phone number, while also concealing that Plaintiff did not maintain accounts on

Offerup and Craigslist to “secure an indictment against Plaintiff.” Id. Ultimately, the grand jury

indicted Plaintiff “for three counts of first-degree robbery, two counts of second-degree unlawful

possession of a firearm, and three counts of second-degree possession of a weapon with an

unlawful purpose.” Id. ¶ 36.

Plaintiff alleges that Defendants Arroyo and Cozentino “supervised, read, and approved”

Graham’s “detective reports that contained verifiable falsehoods.” Id. ¶ 37. Plaintiff claims

Arroyo and Cozentino “knew that Plaintiff could not be connected to any phone number associated

with the offender and that the photo arrays were deceptive and misleading” and failed “to intervene

to stop” Graham. Id. Specifically, Plaintiff alleges that Graham stated in his detective report that

Plaintiff’s name was “obtained from an Accurint check of the phone number associated with

investigation.” Id. ¶ 38. Plaintiff alleges that this statement was false and that “all Defendants

knew the statement was false.” Id. Plaintiff adds that Graham’s statement in his detective report

that Plaintiff “matches the description of the suspected [sic] involved in all three incidences” was

false, id. ¶ 38 (internal quotation marks omitted), and that all Defendants knew this was false. Id.

Plaintiff points to the fact that all victims described the offender as “a black male in his mid-20s,

5’9” to 5’10” and slim/medium build” whereas Plaintiff, at the time of robberies, was 37 years old,

6’1” and 254 lbs. Id. ¶ 39. Moreover, Plaintiff claims he had a verifiable alibi during the first

robbery: “he was captured on video doing laundry at a laundry mat with his girlfriend at the time

of the robbery.” Id. ¶ 41. Plaintiff alleges that because “all three robberies were committed by the

same person,” he “had affirmative evidence that he was not involved in any of the robberies.” Id.

Plaintiff indicates that, on May 6, 2019, a New Jersey Superior Court judge dismissed all

charges against him based on a finding that Graham “had misrepresented the evidence when he

testified before the grand jury that a phone number associated with the offender was registered to

Plaintiff.” Id. ¶ 42. Due to an “immigration hold stemming from the false charges brought against

Plaintiff,” he was not released until August 2019. Id. ¶ 43. Plaintiff states that he was detained

without probable cause for 11 months. Id. ¶ 44.

B. The City of Newark

Plaintiff claims that, at the time of Plaintiff’s arrest, Defendant City of Newark “had a well-

documented pattern and practice of condoning Fourth Amendment violations of civilians by its

officers, including conduct that resulted in false arrests and malicious prosecutions of innocent

people.” Id. ¶ 83. Plaintiff states this pattern had not been corrected at the time of his arrest in

August 2018. Id. Specifically, Plaintiff alleges that, in May 2011, the United States Department

of Justice (“DOJ”) opened an investigation into the Newark Police Department “after receiving

hundreds of complaints alleging serious allegations of civils rights violations, including allegations

of false arrest, malicious prosecution, and other Fourth Amendment violations.” Id. ¶ 84. In July

2014, DOJ concluded that “Newark Police Department routinely violated the Fourth Amendment

by stopping and arresting individuals absent probable cause” and that the department’s internal

systems designed to prevent and detect misconduct were deficient. Id. ¶ 85. DOJ, NPD, and the

City of Newark entered into a consent decree, intending to correct these issues. Id. ¶ 86. Yet

Plaintiff alleges that as of August 2018 – the time of Plaintiff’s arrest – “Newark Police Department

had not implemented or trained its officers in connection with any new policies and practices

related to addressing the department’s pattern and practice of arresting individuals in violation of

the Fourth Amendment.” Id. ¶ 87. Plaintiff claims that his arrest and prosecution were part of “a

larger pattern and practice of Newark police personnel that routinely arrest and charge civilians

with criminal offenses despite the absence of probable cause.” Id. ¶ 89. In support, Plaintiff points

to other cases filed in this district alleging false arrest and malicious prosecution claims that are

either currently pending or that have settled. Id. ¶¶ 90-95. As a result, Plaintiff alleges that NPD

maintains “policies, practices, or customs” of

(1) arresting and charging innocent individuals for crimes absent

probable cause; (2) fabricating/manufacturing evidence to justify

false charges against innocent people; (3) rigging photo arrays and

manipulating witnesses to obtain false identification; and (4)

suppressing or concealing exculpatory or impeaching evidence that

would demonstrate that charged individuals are actually innocent of

the charged offenses.

Id. ¶ 96. Plaintiff further claims that Newark is liable for the conduct of the Defendant police

officers because Newark, through its conduct, condoned these policies and failed to train Newark

Police Detectives appropriately. Id. ¶¶ 97-114.

C. Procedural History

Plaintiff filed his Complaint on March 18, 2020. D.E. 1. Plaintiff’s Complaint asserts six

counts: (1) a claim for unlawful search and seizure under the Fourth Amendment pursuant to 42

U.S.C. §1983 (Count One); (2) a claim for malicious prosecution and prolonged pre-trial detention

under the Fourth Amendment pursuant to 42 U.S.C. § 1983 (Count Two); (3) a “Brady/Fabricated

Evidence Claim” under the Due Process Clause pursuant to 42 U.S.C. § 1983 (Count Three); (4)

a failure to intervene claim pursuant to 42 U.S.C. § 1983 (Count Four); (5) a conspiracy claim

pursuant to 42 U.S.C. § 1983 (Count Five); and (6) a “Monell Claim” pursuant to 42 U.S.C. § 1983

(Count Six). Defendants responded with the current motion to dismiss.

II. STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b)(6) permits a court to dismiss a complaint that fails

“to state a claim upon which relief can be granted[.]” For a complaint to survive dismissal under

Rule 12(b)(6), it must contain sufficient factual matter to state a claim that is plausible on its face.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007)). A claim is facially plausible “when the plaintiff pleads factual content that allows

the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

Id. Further, a plaintiff must “allege sufficient facts to raise a reasonable expectation that discovery

will uncover proof of her claims.” Connelly v. Lane Const. Corp., 809 F.3d 780, 789 (3d Cir.

2016). In evaluating the sufficiency of a complaint, district courts must separate the factual and

legal elements. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-211 (3d Cir. 2009). Restatements

of the elements of a claim are legal conclusions, and therefore, are not entitled to a presumption of

truth. Burtch v. Milberg Factors, Inc., 662 F.3d 212, 224 (3d Cir. 2011). The Court, however,

“must accept all of the complaint’s well-pleaded facts as true.” Fowler, 578 F.3d at 210. Even if

plausibly pled, however, a complaint will not withstand a motion to dismiss if the facts alleged do

not state “a legally cognizable cause of action.” Turner v. J.P. Morgan Chase & Co., No. 14-7148,

2015 WL 12826480, at *2 (D.N.J. Jan. 23, 2015).

III. ANALYSIS

Plaintiff brings his claims pursuant to 42 U.S.C. § 1983 which, 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).

A. Defendants’ Motion to Dismiss Count Three

Defendant first attacks Count Three, which alleges a “Brady/Fabricated Evidence Claim”

under the Due Process Clause. Defendant relies heavily on documents from Plaintiff’s now-

dismissed criminal case, which are annexed as exhibits to the motion to dismiss. See id. at 26-27.

First, Defendants argue the Court must disregard Plaintiff’s allegation that Defendants’ falsely

linked him to a cell phone number that was not his, because, Defendants’ claim, “Plaintiff by his

own admission conceded to the Superior Court that he was, in-fact, actually connected to the

telephone number utilized in the robberies through a family member.” Id. at 26. Next Defendants

argue that “[u]sing an outdated photo is not fabrication in any reasonable meaning of that term”

and that “Plaintiff fails to plead any plausible factual allegations that indicate Graham, Mitti and

Brown were actually aware his photo was inaccurate.” Id. at 27. Plaintiff counters that, at this

stage, the Court must accept his allegation that he “had no connection whatsoever to phone number

908-416-2052” as true. Opp. at 8. Plaintiff states that although the Court may take judicial notice

of the existence of the documents from Plaintiff’s criminal proceedings, the Court “may not go so

far as to take judicial notice of the truth of the facts set forth in the transcripts.” Opp. at 4 (citing

Easterling v. Perez, No. CV 16-4463 (JMV), 2017 WL 3610484, at *4 (D.N.J. Aug. 22, 2017);

Anderson v. Dauphin Cty. Adult Prob. Office, No. 1:15-CV-00878, 2016 WL 769278, at *7 (M.D.

Pa. Jan. 25, 2016), report and recommendation adopted, No. 1:15-CV-878, 2016 WL 759162

(M.D. Pa. Feb. 26, 2016)). Plaintiff continues that even if the Court were to take judicial notice

of the truth of the facts in Defendants’ exhibits, that “Defendants’ own supporting documents show

that Plaintiff was not linked to th[e] phone number[.]”2 Opp. at 8. Finally, Plaintiff argues that he

has alleged sufficient facts to support a plausible inference that the witness identifications

constituted fabricated evidence. Id. at 10-12.

The issue is whether the Court may consider Plaintiffs’ then criminal defense counsel’s

statements in the underlying proceedings to resolve Defendants’ motion to dismiss. The Third

Circuit allows courts to consider matters of public record when ruling on a motion to dismiss. In

re Rockefeller Center Properties, Inc. Sec. Litig., 184 F.3d 280, 292–93 (3d Cir. 1999). Judicial

proceedings are public records of which courts may take judicial notice. Sands v. McCormick, 502

F.3d 263, 268 (3d Cir. 2007). In criminal cases, matters of public record have been limited to

criminal case dispositions (such as convictions or mistrials), letter decisions of government

agencies, and published reports of administrative bodies. Id. at 293 (citing Pension Benefit Guar.

Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993); Southern Cross Overseas

2 Alternatively, Plaintiff contends that if the Court is inclined to the consider the truth of

Defendants’ exhibits that the Court must convert Defendants’ motion to one for summary

judgment and permit discovery. Opp. at 9.

Agencies, Inc. v. Wah Kwong Shipping Group Ltd., 181 F.3d 410, 426 (3d Cir. 1999) (taking

judicial notice of bankruptcy court opinion).

“[J]udicial noticing the existence of a published opinion is proper to resolve a 12(b)(6)

motion.” Southern Cross, 181 F.3d at 427, n.7. Yet, the Third Circuit has found that when “a

court . . . examines a transcript of a prior proceeding to find facts [it] converts a motion to dismiss

into a motion for summary judgment.” Id. (citing Kauffman v. Moss, 420 F.2d 1270, 1274–75 (3d

Cir. 1970)). Thus, there is a distinction between “judicially noticing the existence of prior

proceedings and judicially noticing the truth of facts averred in those proceedings.” Id. (citing 21

Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice & Procedure: Evidence § 5106,

at 247 (1999 Supp.)); see also Colonial Leasing Co., Inc. v. Logistics Control Group Int’l, 762

F.2d 454, 459 (5th Cir.1985). Additionally, where an affidavit is filed in opposition to a pending

motion to dismiss, it is clearly a matter outside the pleading “which, if not excluded by the court,

require[s] the court to convert the pending motions to dismiss into motions for summary

judgment.” Rose v. Bartle, 871 F.2d 331, 339 n.3 (3d Cir. 1989).

In short, while this Court may take judicial notice of public records from Plaintiff’s

criminal proceedings in deciding this Rule 12(b)(6) motion to dismiss, the Court may not go so far

as to take judicial notice of the truth of the facts set forth in the records. See Southern Cross, 181

F.3d at 427, n.7. As a result, the Court cannot consider any factual statements made by counsel

during the state court hearings. See Southern Cross, 181 F.3d at 427, n.7. The Court does not

consider, at this stage, Defendants’ argument as to Plaintiff’s former criminal defense counsel’s

alleged admission that a phone number used by the alleged robber was associated with Plaintiff.

The question remains whether Plaintiff adequately pleads that Defendants’ alleged false

testimony, linking the robber’s phone number to Plaintiff, constitutes fabricated evidenced. To

plead a claim for fabrication of evidence, a plaintiff must demonstrate that there was “a reasonable

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

charged.” Black v. Montgomery Cty., 835 F.3d 358, 371 (3d Cir. 2016), as amended (Sept. 16,

2016); see also Zisa v. Haviland, No. CV 17-5551, 2020 WL 1527862, at *12 (D.N.J. Mar. 31,

2020) (“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.’” (quoting Halsey v. Pfeiffer, 750 F.3d 273, 294 (3d Cir. 2014)). “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.’” Zisa, No. CV 17-5551, 2020 WL 1527862, at *12 (quoting Halsey v.

Pfeiffer, 750 F.3d at 295)).

Defendants claim Graham’s testimony was correct. However, this factual assertion is

directly contrary to the well-pleaded allegations in the Complaint, Compl. ¶¶ 30, 33-35, which the

Court accepts as true in deciding the current motion. The Court finds that Plaintiff has adequately

pled facts giving rise to a reasonable inference that there was “a reasonable likelihood that, absent

that fabricated evidence, the defendant would not have been criminally charged.” Black, 835 F.3d

at 371.

Plaintiff also asserts that “Defendants fabricated evidence against Plaintiff, consisting of .

. . false identifications of victims through the use of deceptive and highly suggestive photo arrays.”

Id. ¶ 64. Defendants argue that “[u]sing an outdated photo is not a fabrication in any reasonable

meaning of that term, the picture was in fact Plaintiff, just a younger version of Plaintiff.” Id. at

26-27. Besides ignoring Plaintiff’s allegations that Graham, Brown, and Mitti told the victims

during the photo arrays that the offender’s phone number was associated with Plaintiff, Compl. ¶¶

30, 33, Defendants do not cite any authority for the proposition that showing an outdated and

materially different photograph cannot support a claim for fabricated evidence. While true that

the photograph may be an accurate depiction of Plaintiff at an earlier point in his life, the objective

of a photo array is to determine whether a victim or witness can identify a suspect. To this end,

using an old photograph that no longer reflects a person’s physical features (as Plaintiff alleges

here as to both age and weight) results in fabricated evidence, that is, a knowingly faulty

identification.

Contrary to Defendants’ assertions, other courts have found that a state actor’s manufacture

of, and knowing reliance on, an unreliable identification can support a fabrication claim. See e.g.,

Bolden v. City of Chicago, 293 F. Supp. 3d 772, 780 (N.D. Ill. 2017). In Bolden, the plaintiff

alleged the defendant officers engineered a faulty lineup by walking the victim past the plaintiff

immediately before the lineup and by having one of the officers mention the plaintiff’s name while

conducting the lineup. Id. The Boldin court found these allegations sufficient to state a fabrication

of evidence claim. Id. Accordingly, the Court declines to accept Defendants’ categorical rule that

a manufactured false identification cannot serve as the basis for a fabrication of evidence claim.

Defendants next argue that Plaintiff fails to plead any plausible factual allegations that

indicate Graham, Mitti and Brown were actually aware his photo was inaccurate. Here, Plaintiff

alleges the Defendants used a 15-year-old photo of him and told the victims that Plaintiff’s phone

number was associated with their assailant. Compl. ¶¶ 29, 32. Plaintiff further alleges that

Defendants’ knew that the phone number was not associated with him and that they knew the

photograph did not resemble him. Id. ¶ 28. Based on these allegations, the Court can reasonably

infer that Defendants knew a 15-year-old photo of Plaintiff was inaccurate. See, e.g., Bolden, 293

F. Supp. 3d at 780. The Court concludes that Plaintiff’s allegations as to the Defendants’

manufacture of the false identification of Plaintiff gives rise to a reasonable inference that there

was “a reasonable likelihood that, absent that fabricated evidence, the defendant would not have

been criminally charged.” Black, 835 F.3d at 371. Aside from Defendants’ alleged false testimony

that Plaintiff was connected to the assailant’s phone number, the only other evidence supporting

probable cause is the false identifications – which Plaintiff adequately alleges were fabricated,

Compl. ¶¶ 29, 32, and Defendants’ indication to the victims that their assailant’s phone number

was connected to Plaintiff, id. ¶¶ 30, 33. Defendants’ motion to dismiss Count Three is denied.

B. Defendants’ Motion to Dismiss Counts One and Two

Defendant attacks Counts One and Two, § 1983 claims arising under the Fourth

Amendment, as to probable cause. Br. at 28-34. Lack of probable cause is an element of both of

Plaintiff’s claims under the Fourth Amendment.

To establish a Fourth Amendment malicious prosecution claim, a plaintiff must show the

following:

(1) the defendant initiated a criminal proceeding; (2) the criminal

proceeding ended in his favor; (3) the defendant initiated the

proceeding without probable cause; (4) the defendant acted

maliciously or for a purpose other than bringing the plaintiff to

justice; and (5) the plaintiff suffered deprivation of liberty consistent

with the concept of seizure as a consequence of a legal proceeding.

Black v. Montgomery Cty., 835 F.3d 358, 364 (3d Cir. 2016), as amended (Sept. 16, 2016) (quoting

Johnson v. Knorr, 477 F.3d 75, 82 (3d Cir. 2007)).

Similarly, “[a]n arrest made without probable cause creates a cause of action for false arrest

under 42 U.S.C. § 1983.” O'Connor v. City of Philadelphia, 233 F. App'x 161, 164 (3d Cir. 2007)

(citing Dowling v. City of Philadelphia, 855 F.2d 136, 141 (3d Cir. 1988)). “The proper inquiry

in a Section 1983 claim based on false arrest . . . is not whether the person arrested in fact

committed the offense but whether the arresting officers had probable cause to believe the person

arrested had committed the offense.” Groman v. Twp. of Manalapan, 47 F.3d 628, 634-35 (3d

Cir. 1995) (quoting Dowling v. City of Philadelphia, 855 F.2d 136, 141 (3d Cir. 1988)). “Where

the police lack probable cause to make an arrest, the arrestee has a claim under [Section] 1983 for

false imprisonment based on a detention pursuant to that arrest.” Id. at 636 (quoting Thomas v.

Kippermann, 846 F.2d 1009, 1011 (5th Cir. 1988)).

Defendant argues that Plaintiff has not adequately pleaded that he was arrested and

prosecuted without probable cause because the judges in the criminal case found that there was

probable cause for arrest and detention. Id. at 30. Defendant adds that Plaintiff must be collaterally

estopped from attempting to relitigate the issue of probable cause through his Complaint. Id. at

32-33. Plaintiff counters that the Court should not consider the truth of the documents attached to

Defendants’ motion to dismiss, Opp. at 13, and that, regardless, the Complaint adequately pleads

that Defendants made numerous misrepresentations and material omissions to the grand jury and

the state court judges to obtain the probable cause determinations that Defendants now rely on, id.

at 14-17.

The Court does not find it necessary to delve into the law of preclusion because Plaintiff

adequately alleges that the evidence related to Defendant’s impropriety – as to the phone numbers

connected with Plaintiff, informing victims of the numbers connected to Plaintiff, and showing the

victims an outdated and materially different photograph of Plaintiff – were necessary to the state

courts’ finding of probable cause. When a warrant is allegedly based false statements or omissions,

the Third Circuit applies a two-part test to determine if the warrant actually lacked probable cause:

“(1) that the affiant knowingly and deliberately, or with a reckless disregard for the truth, made

false statements or omissions that create a falsehood in applying for a warrant; and (2) that such

statements or omissions are material, or necessary, to the finding of probable cause.” Sherwood

v. Mulvihill, 113 F.3d 396, 399 (3d Cir. 1997) (citing Franks v. Delaware, 438 U.S. 154, 171-72

(1978)). As to the first prong, an assertion “is made with reckless disregard when ‘viewing all the

evidence, the affiant must have entertained serious doubts as to the truth of his statements or had

obvious reasons to doubt the accuracy of the information he reported.’” Wilson v. Russo, 212 F.3d

781, 788 (3d Cir. 2000) (quoting United States v. Clapp, 46 F.3d 795, 801 n. 6 (8th Cir. 1995)).

The second prong requires a court to determine the materiality of the misstatements and omissions

by “[excising] the offending inaccuracies and insert[ing] the facts recklessly omitted, and then

determin[ing] whether or not the ‘corrected’ warrant affidavit would establish probable cause.”

Id. at 789.

The allegations in the Complaint meet this standard. Compl. ¶¶ 27-28, 30, 33-35.

Moreover, Defendants largely base their argument on information (Plaintiff’s defense counsel’s

alleged admission as to the connection of Plaintiff to the phone numbers), Br. at 32, which the

Court has found that it cannot consider at this stage. Defendants also argue that Plaintiff’s

identification by two of the victims also adequately established probable cause, id., but the Court

has similarly found that Plaintiff’s allegations are plausible as to the faulty photo array.

Defendants’ motion to dismiss Counts One and Two is denied.

C. Defendants’ Motion to Dismiss Counts Four and Five

Defendant argues that Counts Four and Five, claims for failure to intervene and conspiracy,

should be dismissed because Plaintiff has not pleaded an underlying constitutional violation. Br.

at 34-35. As set forth above, the Court finds that Plaintiff has adequately asserted plausible

constitutional violations. Defendants’ motion to dismiss Counts Four and Five is denied.

D. Defendants’ Motion to Dismiss all Claims Against Defendants’

Cozentino and Arroyo

Defendants argue that all claims against Cozentino and Arroyo should be dismissed

because Plaintiff fails to adequately allege that those Defendants knew that Plaintiff was not

connected to the case through the phone numbers and that the photo array used was misleading.

Br. at 35. Plaintiff responds that the Complaint states allegations to create a plausible inference

that Cozentino and Arroyo either gave “personal direction” or had “actual knowledge and

acquiescence” of Graham’s conduct to support a theory of supervisory liability. Opp. at 18-19

(citing Widmaier v. City of Newark, No. CV 16-2533, 2017 WL 2999022, at *3 (D.N.J. July 14,

2017)).

There are two cognizable theories of supervisory liability for Section 1983 claims.

Widmaier v. City of Newark, No. CV 16-2533, 2019 WL 1895087, at *4 (D.N.J. Apr. 29, 2019).

First, factual allegations that suggest “personal direction or of actual knowledge and acquiescence”

may be sufficient to establish the necessary involvement for a supervisory liability claim. Id. “At

least prior to Iqbal,3 a plaintiff asserting such a supervisory liability claim must (1) identify a

specific supervisory practice that the defendant failed to employ; (2) “contemporaneous

knowledge of the offending incident or knowledge of a prior pattern of similar incident”; and (3)

“circumstances under which the supervisor’s inaction could be found to have communicated a

message of approval.” Id. (citing Janowski v. Lellock, 649 F. App’x 184, 187 (3d Cir. 2016)).

Second, policymakers may be liable “if it is shown that such defendants, ‘with deliberate

indifference to the consequences, established and maintained a policy, custom, or practice which

directly caused the constitutional harm.’” A.M. ex rel J.M.K. v. Luzerne Cty. Juvenile Detention

3 The precise scope of a Section 1983 supervisory liability claim after Iqbal is not settled within

the Third Circuit. See Argueta v. U.S. Immigration & Customs Enf’t, 643 F.3d 60, 70 (3d Cir.

2011). The parties have not addressed this issue.

Ctr., 372 F.3d 572, 586 (quoting Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 725 (3d Cir.

1989)). The second theory of liability is not at issue here.

The relevant allegation in the Complaint as to Arroyo and Cozentino is as follows:

Defendants ARROYO and COZENTINO supervised, read, and

approved Defendant GRAHAM’s detective reports that contained

verifiable falsehoods. Defendants ARROYO and COZENTINO

knew that Plaintiff could not be connected to any phone number

associated with the offender and that the photo arrays were

deceptive and misleading. Defendants ARROYO and

COZENTINO, who supervised Defendant GRAHAM, did nothing

to intervene or stop Defendant GRAHAM’s unconstitutional

conduct despite knowing that it would lead to the wrongful arrest

and prosecution of Plaintiff.

Compl. ¶ 37.

The Court finds this allegation insufficient to state a claim based on supervisory liability.

The allegations are insufficient because Plaintiff fails to allege Arroyo and Cozentino’s

“contemporaneous knowledge of the offending incident or knowledge of a prior pattern of similar

incidents” by Graham, Brown, and Mitti. See Widmaier, No. CV 16-2533, 2019 WL 1895087, at

*4. In conclusory fashion, Plaintiff alleges that Arroyo and Cozentino read, supervised, and

approved Graham’s allegedly false reports. See Compl. ¶ 37. While this may be accurate, it does

not indicate that Arroyo or Cozentino had knowledge of the allegedly false information. Instead,

Plaintiff alleges that Arroyo and Cozentino “knew” Plaintiff was not connected to the phone

number and that Graham, Brown, and Mitti’s photo arrays were suggestive. But Plaintiff fails to

allege sufficient facts from which the Court can infer that Arroyo and Cozentino had

contemporaneous knowledge of these issues. Plaintiff, for example, does not allege Arroyo and

Cozentino knew that the photo of Plaintiff used in arrays was not an accurate depiction of

Plaintiff’s current appearance or that they knew the photo of Plaintiff used in the arrays was 15

years old. Similarly, Plaintiff does not allege factual support for the basis of Arroyo or Cozentino’s

knowledge that the perpetrator’s phone number was not connected to Plaintiff at the time Graham

made his reports. Nor does Plaintiff allege that Graham, Brown, and Mitti acted similarly in the

past. Accordingly, Plaintiff has failed to allege sufficient facts establishing Arroyo and Cozentino

had contemporaneous knowledge of Graham, Brown, and Mitti’s alleged wrongdoing.

Defendants’ motion to dismiss the claims against Arroyo and Cozentino is granted without

prejudice.

E. Defendants’ Motion to Dismiss all Claims Against Defendant Graham

Defendants next argue that the Court should dismiss all claims against Defendant Graham

because he is entitled to qualified immunity. Br. at 37. Defendants argue that “there are no well

pleaded facts that support any interpretation that Defendant Graham could not have reasonably

believed anything but that he had probable cause to seek to arrest Plaintiff for these robberies.” Id.

Qualified immunity “shields government agents from 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.” Thomas v. Independence Township, 463 F.3d 285, 291

(3d Cir. 2006) (quoting Behrens v. Pelletier, 516 U.S. 299, 305 (1996)). Because qualified

immunity protects government agents from suit, it “should be resolved as early as possible.” Id.

The inquiry into qualified immunity, however, is fact intensive. Therefore, it is “generally ill-

suited for resolution at the pleadings stage.” Janowski v. City of North Wildwood, No. 16-4464,

2017 WL 1821078, at *4 (D.N.J. May 5, 2017) (quoting Batiz v. Brown, No. 12-581, 2013 WL

1137531, at *7 (D.N.J. Mar. 14, 2013)). “[Q]ualified immunity will be upheld on a 12(b)(6)

motion only when the immunity is established on the face of the complaint.” Thomas, 463 F.3d at

291 (quoting Leveto v. Lapina, 258 F.3d 156, 161 (3d Cir. 2001)).

Defendants’ assert that there are no well-pleaded facts to establish that it was unreasonable

for Graham – or a reasonable officer in Graham’s position – to believe that he had probable cause

to arrest and pursue the prosecution of Plaintiff. Br. at 37 (citing Morillo v. Torres, 117 A.3d 1206,

1215 (N.J. 2015)). However, as described above, the Court does not consider the veracity of

Plaintiff’s criminal defense counsel’s alleged admission that the phone number was associated

with Plaintiff. Moreover, Defendants’ contention overlooks Plaintiff’s allegations that (1) he had

no connection to the offender’s phone number, Compl. ¶ 27; (2) he did not match the description

of the offender, id. ¶ 28; (3) he maintained no accounts on either Offerup or Craigslist, id. ¶¶ 28,

35; (4) that the assailant was not described as having an accent while Plaintiff spoke with a distinct

Nigerian accent, id. ¶¶ 27, 48; (5) that the two victim identifications were the product of Graham,

Mitti, Brown’s improper tactic in using a fifteen-year-old photo of Plaintiff to fit the description

of the assailant and falsely telling the victims the offender’s phone was associated with Plaintiff,

id. ¶¶ 30, 33; and (6) that Graham knew all of this, see e.g., id. ¶ 28. The Court finds that no

reasonable police officer with the knowledge of the foregoing allegations would have believed that

there was probable cause to arrest and prosecute Plaintiff. Accordingly, Defendants’ motion to

dismiss Plaintiff’s claims against Graham on the ground of qualified immunity is denied.

F. Defendants’ Motion to Dismiss Count Six Against Newark

Defendants raise two arguments to dismiss Count Six, a Monell claim against Newark.

First, Defendants argue that the claim should be dismissed because Plaintiff failed to allege a

predicate constitutional violation. Br. at 39. This argument is denied for the reasons discussed

above. Second, Defendants argue that “the Complaint contains no well-pleaded factual allegations

that the city failed to employ corrective practices for any improper custom, and no well-pleaded

factual allegations of an improper custom.” Id. at 43. Plaintiff, in response, points to its allegations

concerning the DOJ investigation and the consent decree as well as the other cases of alleged

constitutional violations to show he has adequately pleaded his Monell claim. See id. at 23.

A municipality or local governing body cannot be held liable under a theory of respondeat

superior for a § 1983 claim. Monell v. Dept. of Social Servs. of N.Y.C., 436 U.S. 658, 691 (1978).

Instead, a municipality may be liable under § 1983 only “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 Monell, 436 U.S. at 694). 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).

Plaintiff’s first theory of Monell liability is that, at the time of Plaintiff’s arrest and

prosecution, Newark “had a well-documented pattern and practice of condoning Fourth

Amendment violations of civilians by its officers, including conduct that resulted in false arrests

and malicious prosecutions of innocent people.” Compl. ¶ 83; see also Opp. at 21. Plaintiff relies

heavily on DOJ’s 2011 investigation into the NPD, the report of investigation4 that followed, and

the consent decree reached between Newark and DOJ. Plaintiff expressly relies on the DOJ Report

in his Complaint and provided a link to the report as well. See Compl. ¶ 84; see also id. at 17, n.

4. Accordingly, the Court may consider the report at this stage, U.S. Express Lines Ltd. v. Higgins,

281 F.3d 383, 388 (3d Cir. 2002) (stating that at motion to dismiss stage a court may rely on “a

4 See Investigation of Newark Police Department, United States Department of Justice Civil Rights

Division, United States Attorney’s Office District of New Jersey (July 22, 2014) (hereinafter “DOJ

Report”).

document integral to or explicitly relied upon in the complaint.” (emphasis in original) (citation

omitted)), see also Rollins v. City of Newark, No. CV 18-14473, 2020 WL 6194035, at *3 (D.N.J.

Oct. 22, 2020), Widmaier v. City of Newark, No. CV 16-2533, 2019 WL 1895087, at *3 (D.N.J.

Apr. 29, 2019).

The most relevant aspects of the DOJ Report focus on officer’s reporting practices. Among

other things, the DOJ Report commented that “[a]lthough NPD officers generally write reports

that facially appear to establish probable cause to arrest, those reports have reflected two categories

of problematic practices.” DOJ Report at 11. The DOJ Report continues that “there is reasonable

cause to believe that some number NPD narcotics arrest reports may not have accurately described

the circumstances leading to the arrest, and that the NPD has not addressed this problem.” Id. at

11. DOJ found that, from a sample of 100 arrest reports, “[t]he overwhelming majority of . . .

narcotics arrests and associated incident reports contained remarkably similar language to support

officers’ reasonable suspicion to stop the individual.” Id. The DOJ observed that, among other

things, Newark police officers used the “plain view” exception to justify probable cause to arrest

despite the implausible application of that exception given the circumstances: “In the ‘plain view’

scenarios, individuals were purportedly seated in cars holding clear plastic baggies in front of them

or in their laps and officers could ‘immediately’ see the contraband, even through the report

indicated that the subject’s back was to an officer, or that the officer had not yet approached the

car.” Id. at 15. The DOJ concluded as follows:

The prevalence of instances in which officers purportedly recovered

drugs without the need for a search, together with the circumstances

of those arrests as described by the reports, indicated that some

portion of NPD arrest reports may have been inaccurate and that the

NPD does not have the systems in place to reliably detect such

deficient reports so that it can ensure that the underlying

circumstances of the stop, search, and arrest are lawful.

Id. at 15-16.

The Court finds that the DOJ Report does not support a plausible inference that Newark

had a policy or custom that was the moving force behind Plaintiff’s alleged constitutional injury.

On the one hand, both the DOJ Report and Complaint address problems with NPD’s police reports.

However, the focus of the DOJ Report, as to the NPD’s police reports, was the apparently uncanny

consistency among the NPD reports in drug arrests. Here, Plaintiff does not claim that he was

arrested for a drug offense or under circumstances akin to those noted in the DOJ Report. As to

other matters that have been filed against Newark, Plaintiff does not allege that any of the

referenced cases resulted in a judgment against Newark as to the alleged Monell claims.

Accordingly, the Court will not consider such allegations in support of Plaintiff’s Monell claim.

Rollins, No. CV 18-14473, 2020 WL 6194035, at *4 (“Plaintiff appears to rely solely on

allegations, as no judgments were entered for the Monell claims asserted in any of these matters.

The simple fact that Monell claims have been asserted against Newark in other cases does not

support Plaintiff's Monell claim in this instance.”).

Plaintiff also makes a conclusory allegation that Newark maintains “a formalized policy

that precludes the use of live line-up identification procedures and/or any other confirmatory

identification procedures.” Id. ¶ 99; see also id. ¶¶ 100-101. This allegation is insufficient to

establish a policy because Plaintiff fails to identify the “decision-maker with final authority” that

officially established the policy. Rapeika, No. CV 19-6612, 2020 WL 6391202, at *3 (citing Noble

v. City of Camden, 112 F. Supp. 3d 208, 221 (D.N.J. 2015)). Plaintiff’s allegations also fail to

indicate when this alleged official policy came into place and where the policy may be found.

Plaintiff further fails to provide sufficient allegations to show that this policy “is so well-settled

and permanent as virtually to constitute law.” Id. Plaintiff only points to the use of a photo array

in this case.

Plaintiff also asserts a “failure to supervise” claim against Newark for failing “to

meaningfully investigate any cases in which Newark police officers have falsely arrested and

recommended charging innocent persons with a serious crime[.]” Compl. ¶ 102. Plaintiff further

alleges that Newark failed to train its officers in a variety of areas. Id. ¶ 106. 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 “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)); see also Forrest v. Parry, 930 F.3d 93, 106 (3d

Cir. 2019) (explaining that a Monell claim that is “predicated on a failure or inadequacy has the

separate, but equally demanding requirement of demonstrating a failure or inadequacy amounting

to deliberate indifference on the part of the municipality”). 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.”

Roman, 914 F.3d at 798 (quoting Doe v. Luzerne County, 660 F.3d 169, 180 (3d Cir. 2011)

(internal brackets omitted)).

The Court finds Plaintiff’s failure to supervise and/or train claims, see Compl. ¶¶ 102-114,

are not plausibly alleged.5 Plaintiff alleges that Newark has failed to

“meaningfully investigate any cases in which Newark police officers have falsely arrested and

recommended charging innocent persons with a serious crime and no Newark police officer has

ever been disciplined as a result of his misconduct in any of those cases.” Id. ¶ 102. Plaintiff

further alleges Newark “operated a dysfunctional disciplinary system” for police officers accused

of serious misconduct and facilitated a “code of silence within the Newark Police Department”

that allowed officers “to believe that they may violate the civil rights of members of the public and

cause innocent persons to be charged with serious crimes without fear of adverse consequences.”

Id. ¶¶ 103-105. But the allegations are conclusory and lack sufficient factual support.

Similarly, Plaintiff’s failure to train claim is conclusory. Plaintiff alleges Newark police

department failed to provide adequate training to police officers as to (1) “the constitutional

requirement to disclose evidence,” id. ¶ 106(a); (2) “[t]he need to refrain from manipulation or

potentially coercive conduct in relation to witnesses,” id. ¶ 106(b); (3) “how to assemble and

administer a fair and constitutionally-sound photo array, and generally how to conduct proper and

reliable identification procedures,” id. ¶ 106(c); (4) “[t]he risks of wrongful conviction and the

steps police officers should take to minimize risks,” id. ¶ 106(d); (5) “[t]he risks of engaging in

tunnel vision during investigation,” id. ¶ 106(e); and (6) the “need for full disclosure, candor, and

openness on the part of all officers who participate in the police disciplinary process[,]” id. ¶

106(f). However, in general, “to plead deliberate indifference, a plaintiff must allege, among other

things, that there was a history of employees mishandling a particular situation.” Rapeika, No.

CV 19-6612, 2020 WL 6391202, at *4. Here, Plaintiff fails to provide sufficient allegations that

5 Plaintiff does not appear to rely on the DOJ Report as to the failure to supervise allegations.

there was a history of Newark police officers mishandling any of the situations above. Instead,

the allegations are again conclusory. Accordingly, Defendants’ motion to dismiss Count Six,

Plaintiff's Monell claim against Newark, is granted without prejudice.

G. Punitive Damages

Defendant also moves to dismiss Plaintiff's punitive damages claim against Newark. Br.

at 47. Plaintiff concedes that “[Newark] is not subject to punitive damages.” Opp. at 24. Thus,

Plaintiffs claim for punitive damages against Newark is dismissed with prejudice.

IV. CONCLUSION

For the reasons stated above, Defendants’ motion is granted in part and denied in part. An

appropriate Order accompanies this Opinion.

Dated: March 19, 2021

DGS yO ©. NA □

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

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