# ONUEKWUSI v. GRAHAM

> District Court, D. New Jersey · March 22, 2021

URL: https://www.frixlaw.com/law-library/cases/10270528

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** March 22, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10270528

## How later opinions describe it (automated extraction)

- 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”

## Opinion text

Not for Publication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.

25

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10270528. Public record. Not legal advice.