# PHILLIPS v. NEW JERSEY TRANSIT

> District Court, D. New Jersey · February 14, 2022

URL: https://www.frixlaw.com/law-library/cases/10272393

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** February 14, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CHARMAINE PHILLIPS, Civil Action No.: 19-13427

Plaintiff,

v.
OPINION

NEW JERSEY TRANSIT, et al.

Defendants.

CECCHI, District Judge.
This matter comes before the Court on two motions to dismiss Plaintiff Charmaine Phillips’
(“Plaintiff”) First Amended Complaint (ECF No. 46 (“FAC”)): (1) Defendants New Jersey Transit
Corporation (“NJ Transit”), Sarah Bernal (“Officer Bernal”), and Dennis Wells’ (“Sergeant
Wells”) (collectively, the “State Defendants”) motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6) (ECF No. 51); and (2) pro se Defendant Carlos Bruno’s (“Bruno”) motion to
dismiss (ECF No. 53).1 Plaintiff has opposed the motions (ECF No. 57 (“Opp.”)) and the State
Defendants filed a reply (ECF No. 60). The Court decides this matter without oral argument
pursuant to Federal Rule of Civil Procedure 78(b). For the reasons set forth below, Bruno’s motion
to dismiss is DENIED, and the State Defendants’ motion to dismiss is GRANTED IN PART and
DENIED IN PART.

1 Upon a stipulation from the parties, on July 1, 2022, the Court extended the time for Defendant
Alexy Ayala (“Ayala”) to respond to the First Amended Complaint “up to and through July 26,
2021.” ECF No. 52. To date, Ayala has not filed a motion to dismiss the First Amended Complaint
or otherwise responded to the First Amended Complaint, and she has not sought any additional
extensions.
I. BACKGROUND
This case arises out of the filing of an allegedly false report by Defendant Ayala and her
stepson, Defendant Bruno, to Defendant NJ Transit’s Police Department regarding a vehicular
incident at or near Newark Penn Station. After receiving the allegedly false report, Defendant
Officer Bernal initiated an investigation into the matter, which led to the arrest of Plaintiff.
Plaintiff asserts that the NJ Transit Police Department’s investigatory procedures were flawed and
corrupt, particularly those concerning her identification by Ayala as the culprit of the crime.

Plaintiff was charged with four crimes in state court and spent forty-four days in jail before she
was released on her own recognizance. Plaintiff was then indicted for the crimes. Before trial,
Plaintiff succeeded on a motion to suppress out-of-court and in-court identifications, and the
prosecutor subsequently dropped all charges against her.
In the instant action, Plaintiff contends that she was maliciously prosecuted and
discriminated against. Her initial complaint was dismissed by this Court because inter alia NJ
Transit was entitled to sovereign immunity, she failed to allege a lack of probable cause as required
to support a malicious prosecution claim, and there were insufficient allegations to support a
discrimination claim. Since then, Plaintiff has amended her complaint to include additional
allegations of fraud, perjury, and corruption, which, in combination with her other allegations,

indicate a lack of probable cause for her arrest. Plaintiff has also agreed to dismiss her
discrimination claim and all claims against NJ Transit. Plaintiff’s remaining claims are discussed
below.
a) Procedural Background
Plaintiff initiated this action on June 5, 2019 against the State Defendants, Ayala, and
Bruno. ECF No. 1-2. Her initial complaint asserted seven causes of action: malicious prosecution
(Count I); Monell liability (Count II); violations of the New Jersey Civil Rights Act (the
“NJCRA”), N.J.S.A. § 10:6-1, et seq. and the New Jersey State Constitution, Article I, ¶¶ 5 & 7
(Count III); violations of New Jersey’s Law Against Discrimination (the “NJLAD”), N.J.S.A. §
10:5-1, et seq. (Count IV); abuse of process (Count V); intentional and/or negligent infliction of
emotional distress (Count VI); and damages under New Jersey’s Punitive Damages Act, N.J.S.A.
§ 2A:15-5.9, et seq. (Count VII). Id.2
Ayala and the State Defendants subsequently moved to dismiss the initial complaint. ECF
Nos. 9, 10. On August 27, 2020, the Court entered an Order to Show Cause directing Plaintiff to

“show cause as to why Counts I–II and VI–VII of the Complaint should not be dismissed as to the
State Defendants for failure to file a notice of tort claim.” ECF No. 36. In response, Plaintiff
conceded that Count VI should be dismissed as to the State Defendants but argued that the other
Counts may proceed against them despite a failure to provide notice. Id. at 1–3.
On April 28, 2021, this Court granted Ayala’s and the State Defendants’ motions to dismiss
the initial complaint. ECF Nos. 44, 45. The Court dismissed the entirety of the complaint without
prejudice because the State Defendants were entitled to sovereign immunity from certain claims
and Plaintiff’s other claims suffered from pleading deficiencies. ECF No. 44. The Court granted
Plaintiff an opportunity to file an amended pleading. Id. On May 26, 2021, Plaintiff filed the
instant First Amended Complaint, asserting five causes of action: malicious prosecution against

Ayala, Bruno, Officer Bernal, and Sergeant Wells (Count I); Monell liability against NJ Transit
(Count II); violations of the NJCRA and the New Jersey State Constitution by Bernal and Wells
(Count III); (4) violations of the NJLAD by Bernal and Wells (Count IV); and (5) abuse of process
against Ayala and Bruno (Count V). ECF No. 46.

2 A partial stipulation of dismissal between the parties, entered on May 1, 2020, limited each Count
to certain defendants. ECF No. 30.
On June 30, 2021, the State Defendants moved to dismiss all claims asserted against them
in the First Amended Complaint, arguing that Plaintiff failed to correct the pleading deficiencies
identified in this Court’s prior Opinion. ECF No. 51. On July 14, 2021, Bruno filed a one-page
notice of a motion to dismiss; however, he does not explain why the claims against him should be
dismissed. See ECF No. 53 at 1. Instead, Bruno attaches a document titled “Constructive Notice
of Conditional Acceptance,” which states that he received a copy of the complaint and
“conditionally accept[s]” an “offer to contract upon proof of claim that [Bruno] owe[s] any alleged
amount or obligation.” Id. at 2.3 Bruno also requests information regarding contractual liability

between himself and the parties involved, and attaches a copy of a postal money order for $1.00.
Id. at 3–7. Plaintiff filed an opposition to the State Defendants’ and Bruno’s motion on August
24, 2021, agreeing to drop certain claims but arguing that her other claims are sufficiently pleaded.
Opp. The State Defendants filed a reply in further support of their motion on September 13, 2021.
ECF No. 60.
b) Factual Background
The factual background of this case, as provided in Plaintiff’s initial complaint, is
summarized in this Court’s prior Opinion:
On July 27, 2015, Plaintiff and her non-party husband were departing Newark Penn Station
when Ayala walked up to their vehicle and accused them of striking her automobile. Id. at
3, ¶ 3. Plaintiff alleges that “[a]t no time did their vehicle make any contact with any other
vehicle at or near Newark Penn Station.” Id. Plaintiff and her husband then drove home.
Id.

Thereafter, Ayala and her stepson Bruno appeared at the NJ Transit Police Department and
reported that “[P]laintiff’s vehicle had struck [Ayala’s] vehicle and left the scene and also
that [] [P]laintiff pointed a handgun at [Ayala] and threatened to shoot her.” Id. at 4, ¶¶ 4,
6. Ayala provided photographs that she had taken of Plaintiff’s vehicle and the license
plate to Defendant Officer Bernal (a police officer employed by Defendant NJ Transit) and
Officer Bernal’s supervisor, Sergeant Wells. Id. at ¶ 5. She also provided a written
statement to Officer Bernal. Id. at ¶ 7. Officer Bernal ran the license plate number of the

3 It is unclear what purported “offer” Bruno is referencing. See id.
vehicle, which Ayala had provided, and showed Ayala Plaintiff’s driver’s license photo
before Ayala had identified Plaintiff as the perpetrator. Id. at ¶ 8. Based on this
information, unnamed members of the NJ Transit Police Department went to Plaintiff’s
home and arrested her and her husband without a warrant. Id. at ¶ 9. Plaintiff maintained
her innocence and no weapon was ever recovered. Id. at 3, ¶ 3; id. at 5, ¶ 15.

Following the arrest, Officer Bernal brought Ayala to the scene to make an identification.
Id. at 4, ¶ 10. Plaintiff asserts that Bernal did not follow the proper protocol for an
identification by, for example, bringing out her and her husband in handcuffs. Id. at ¶ 11.
At the scene, Ayala identified Plaintiff as the person who had pointed a gun at her. Id. at 5,
¶ 12. On July 27, 2015, Plaintiff was charged with aggravated assault, possession of a
handgun used to threaten another, possession of a handgun without a permit and
obstruction of justice. Id. at ¶ 17. She was transferred to the Essex County Jail the next
day. Id. at ¶ 18. Initially, Plaintiff was unable to post bail and she remained incarcerated
at the Essex County Jail for forty-four days. Id. at ¶ 19. Bail was subsequently reduced
upon motion by Plaintiff. Id. at ¶ 20.

After bail was reduced, Plaintiff was released on her own recognizance on September 19,
2015 and was prosecuted for the next eighteen months. Id. at ¶¶ 20–21. On October 22,
2015, a grand jury indicted Plaintiff on four counts: fourth degree aggravated assault,
second degree unlawful possession of a weapon, second-degree possession of a weapon
for an unlawful purpose, and fourth degree obstruction of the administration of law. ECF
No. 10-4. Plaintiff subsequently filed a motion to suppress an out-of-court and in-court
identification. Compl. at 6, ¶ 22. On March 1, 2017, a Wade hearing on the motion to
suppress was conducted, during which Bernal and Ayala testified on behalf of the State.
Id. Plaintiff’s motion to suppress was granted on March 6, 2017. Id. at ¶ 23. The Complaint
alleges that the state court found that: NJ Transit Police procedures were flawed, Bernal’s
testimony was not credible, the show-up identification was impermissibly suggestive, the
officers failed to properly record the identification, and the victim had limited opportunity
to observe the perpetrators. Id. at ¶ 23. On March 10, 2017, all charges against the Plaintiff
were dismissed by motion of the prosecutor. Id. at ¶ 24.

Plaintiff alleges that, as a result of the Defendants’ actions, in addition to being unjustly
detained, she suffered “emotional distress and anxiety; the loss of her employment and
other economic harm; and the temporary loss of custody of her sons.” Id. at ¶ 26.”

ECF No. 80. In addition to the allegations described above, Plaintiff now alleges, in the First
Amended Complaint, that: Ayala and Bruno held an ulterior motive to incarcerate Plaintiff for
“an alleged minor motor vehicle accident” (id. at 13, ¶ 5); Officer Bernal assisted Ayala in writing
a fraudulent statement reiterating her false claims (id. at 4, ¶ 7); Officer Bernal and Ayala
committed perjury in the course of the grand jury presentment (id. at 7, ¶ 26); and all Defendants
“conspired to create a fraudulent incident report that was used in the prosecution and indictment”
of Plaintiff (id. at ¶ 25).
II. LEGAL STANDARD
For a complaint to survive dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6),
it “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’” Ashcroft v. Iqbal, 556 U.S. 662 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). In evaluating the sufficiency of a complaint, the Court must accept all well-

pleaded factual allegations in the complaint as true and draw all reasonable inferences in favor of
the non-moving party. See Phillips v. Cty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008).
“Factual allegations must be enough to raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 555. “A pleading that offers ‘labels and conclusions . . . will not do.’ Nor
does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’”
Iqbal, 556 U.S. at 678 (citations omitted). However, “the tenet that a court must accept as true all
of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals
of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.
Thus, when reviewing complaints for failure to state a claim, district courts should engage in a
two-part analysis: “First, the factual and legal elements of a claim should be separated . . . .

Second, a District Court must then determine whether the facts alleged in the complaint are
sufficient to show that the plaintiff has a ‘plausible claim for relief.’” Fowler v. UPMC Shadyside,
578 F.3d 203, 210–11 (3d Cir. 2009) (citations omitted).4

4 When assessing a motion to dismiss under Rule 12(b)(6), this Court is limited to considering the
allegations in the complaint, exhibits attached to the complaint, matters of public record, and
indisputably authentic documents on which a plaintiff’s claims are based. Pension Benefit Guar.
Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993).
III. DISCUSSION
As a preliminary matter, the Court will dismiss certain claims pursuant to Plaintiff’s
concession. In their motion to dismiss, the State Defendants argue that all claims against NJ
Transit and all claims against Officer Bernal and Sergeant Wells in their official capacities should
be dismissed because nothing has changed respecting the prior dismissal of those claims. ECF No.
51-2 (“Mot.”) at 23. The State Defendants also argue that the NJLAD claim under Count IV must
be dismissed because there have been no additional facts alleged to support a finding that

Defendants were motivated by racial animus. Id. at 19–20. Plaintiff does not oppose the dismissal
of those claims. See Opp. at 15 (“[P]laintiff does not oppose the motion to dismiss the civil rights
claims against defendant New Jersey Transit nor the NJLAD claims. Plaintiff also does not oppose
the dismissal of the official capacity claims against New Jersey Transit police officers Bernal and
Wells.”). Therefore, the following claims are dismissed: Count II (the only claim asserted against
NJ Transit), Count IV (the NJLAD claim), and all claims asserted against Officer Bernal and
Sergeant Wells in their official capacity.
Plaintiff argues that the claims against Officer Bernal and Sergeant Wells can nevertheless
proceed because they are being sued in their individual or personal capacities. Opp. at 15. Indeed,
this Court previously held that section 1983 claims may proceed against Bernal and Wells in their

individual or personal capacities, so long as they are properly pleaded. ECF No. 44 at 12 (“It does
not matter that the individual is a government official, or that the acts for which they are being
sued are official acts, because their amenability to suit flows solely from the personal capacity in
which they are being sued. Therefore, despite being state officials sued for their official acts,
Officer Bernal and Sergeant Wells are amenable to suit under section 1983 because they are also
being sued in their personal capacities.”) (citing Hafer v. Melo, 502 U.S. 21, 27–28 (1991); Est. of
Lagano v. Bergen Cty. Prosecutor’s Off., 769 F.3d 850, 856 (3d Cir. 2014); and Richardson v.
New Jersey, No. 16-135, 2019 WL 6130870, at *5 (D.N.J. Nov. 18, 2019)). In their reply, the
State Defendants do not appear to dispute that Officer Bernal and Sergeant Wells are amenable to
suit. See ECF No. 60. They only argue that probable cause existed here for Plaintiff’s arrest and
that the officers are entitled to qualified immunity. Id.
Therefore, next, the Court will consider whether Plaintiff has sufficiently pleaded: (1) a
malicious prosecution claim against Ayala, Bruno, Bernal and Wells under Count I, taking into
consideration any qualified immunity arguments by Bernal and Wells; (2) a violation of the

NJCRA by Bernal and Wells under Count III; and (3) an abuse of process claim against Ayala and
Bruno under Count V.
a) Count I: Malicious Prosecution (asserted against Ayala, Bruno, Officer Bernal
and Sergeant Wells)
In Count I of the Complaint, Plaintiff alleges that Ayala, Bruno, Officer Bernal, and
Sergeant Wells maliciously initiated a criminal prosecution against her even though she “had not
committed any infraction to legally justify her arrest nor did there exist sufficient facts for a finding
of probable cause.” FAC at 8, ¶¶ 2–9. To state a claim for malicious prosecution brought
under section 1983, a plaintiff must allege that: “(1) the defendant initiated a criminal proceeding;
(2) the criminal proceeding ended in plaintiff’s favor; (3) the proceeding was initiated 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.” Kossler v. Crisanti, 564 F.3d 181. 186 (3d Cir.
2009) (en banc) (internal quotation marks omitted). The first four elements listed above also
comprise the New Jersey common law tort of malicious prosecution. Allen v. N.J. State Police,
No. 16-1660, 2017 WL 5714707, at *6 (D.N.J. Nov. 28, 2017); Wilson v. N.J. State Police, No.

04–1523, 2006 WL 2358349, at *9 (D.N.J. Aug. 15, 2006). As noted above, neither Ayala nor
Bruno have argued for a dismissal of the First Amended Complaint’s malicious prosecution claim.
Officer Bernal and Sergeant Wells argue that the claim against them must be dismissed because
Plaintiff has failed to sufficiently allege a lack of probable cause under the third element.
Bernal and Wells do not appear to dispute that the other four elements are sufficiently
pleaded here. See ECF Nos. 51, 60. First, Plaintiff alleges that the officers, Ayala, and Bruno
initiated a criminal prosecution against her. FAC at 8, ¶ 3. Second, she alleges that the proceeding
ended in her favor because all charges against her were dropped. Id. ¶ 4. Fourth, she alleges that

her prosecution “was done with malice.” Id. at 9, ¶ 5. And fifth, Plaintiff allegedly suffered a loss
of liberty by being detained for forty-four days and temporarily losing custody of her kids. Id. at
8, ¶ 32.
With respect to the third element, Plaintiff alleges that she “had not committed any
infraction to legally justify her arrest nor did there exist sufficient facts for a finding of probable
cause.” Id. at ¶ 2. However, here, Plaintiff’s grand jury indictment constitutes prima facie evidence
of probable cause. Rose v. Bartle, 871 F.2d 331, 352 (3d Cir. 1989). This presumption of probable
cause can be overcome only if Plaintiff sufficiently alleges that the indictment was procured by
“fraud, perjury or other corrupt means.” Id.; see Mobilio v. Dep’t of L. & Pub. Safety of New Jersey,
No. 07-3945, 2008 WL 2704826 (D.N.J. July 7, 2008) (applying Rose standard to malicious

prosecution claims under both § 1983 and New Jersey common law). To overcome the
presumption of probable cause at the motion to dismiss stage, a plaintiff must allege “specific
instances of fraud, perjury, or corrupt means to procure the grand jury indictment.” Liberty Bell
Temple III v. Trenton City Police Dep’t, No. 16-1339, 2019 WL 4750836, at *22 (D.N.J. Sept. 30,
2019); see Rose, 871 F.2d at 353–54 (affirming a Rule 12(b)(6) dismissal of plaintiff’s section
1983 malicious prosecution claim because he did not allege any specific instances of witnesses
perjuring themselves or any substantive perjured testimony).
In its prior Opinion, the Court dismissed Plaintiff’s malicious prosecution claim because
she did not allege any specific instances of fraud, perjury, or corruption in the grand jury
presentment. See ECF No. 44 at 13–14. Since then, Plaintiff has amended her complaint to include
the requisite allegations. Specifically, she now alleges that Bernal and Ayala committed perjury
in the course of the grand jury presentment by “reiterating the false story of the [P]laintiff pointing
a handgun at Ayala.” FAC at 7, ¶ 26. She further alleges that all Defendants “conspired to create
a fraudulent incident report that was used in the prosecution and indictment by lying and claiming

that [P]laintiff had brandished a handgun and pointed it at Ayala.” Id. at ¶ 25. Plaintiff’s
allegations of perjury and falsification of evidence do “rise to the level of plausibly asserting
corruption or fraud in the grand jury presentment.” Liberty Bell Temple, 2019 WL 4750836, at
*22; see Mobilio, 2008 WL 2704826, at *5 (plaintiff’s allegations that defendant police office
“fabricated and suppressed evidence in order to obtain an arrest warrant and initiate a criminal
proceeding against [the] [p]laintiff” were sufficient to overcome presumption of probable cause
afforded by grand jury indictment).
Additionally, Plaintiff alleges that she was falsely identified as the assailant of the crime at
issue because Officer Bernal “intentionally” showed Ayala a photograph of Plaintiff in the course
of his investigation (FAC at 5, ¶ 8) and because the police implemented an “inappropriate and

illegal show up identification procedure” (id. at ¶ 12).5 She also alleges that the police never

5 In the underlying criminal proceeding, Plaintiff’s motion to suppress her out-of-court
identification was granted, at least in part, because the judge therein found that the police
identification procedures “were either not properly followed, or were tainted, and taken [] in their
aggregate . . . the identification was impermissibly suggestive.” ECF No. 57-2 21:15–19; see id.
at 24:4–9 (“So for all those reasons I am going to grant the Motion to Suppress the out of Court
identification of both defendants by the victim. And because I find that the procedure was
impermissibly suggestive, and that the identifications are not reliable, I’m going to bar any in Court
identification.”). This finding does not independently refute a determination of probable cause,
but taken in combination with the other allegations discussed, it indicates that probable cause was
lacking here for Plaintiff’s arrest.
found the weapon at issue or “any evidence to corroborate that the plaintiff had a weapon in her
possession.” Id. at 7, ¶¶ 23, 24. Assessing the totality of the circumstances and resolving all
inferences in Plaintiff’s favor, the Court finds that Plaintiff has sufficiently alleged a lack of
probable cause at this stage. See Groman v. Twp. of Manalapan, 47 F.3d 628, 635 (3d Cir. 1995)
(“Generally, the existence of probable cause is a factual issue.”). Therefore, as Plaintiff has
rebutted the prima facie presumption of probable cause established by the grand jury indictment,
see Rose, 871 F.2d at 352–54, and sufficiently alleged a lack of probable cause, the third element

is satisfied here for the purposes of the motion to dismiss. Accordingly, Plaintiff has stated a claim
for malicious prosecution against Ayala and Bruno under New Jersey common law, and against
Officer Bernal and Sergeant Wells under section 1983.
Next, the Court evaluates whether Officer Bernal and Sergeant Wells are entitled to
qualified immunity. “Qualified immunity shields government officials from personal liability for
civil damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Paszkowski v. Roxbury
Twp. Police Dep't, No. 13-7088, 2014 WL 346548, at *2 (D.N.J. Jan. 30, 2014). “While early
resolution of qualified immunity issues is desirable, factual issues or factual uncertainty may make
an assessment impossible at the complaint stage.” Saint-Jean v. Cty. of Bergen, 509 F. Supp. 3d

87, 110 (D.N.J. 2020); see Grant v. City of Pittsburgh, 98 F.3d 116, 122 (3d Cir. 1996)) (“[C]rucial
to the resolution of any assertion of qualified immunity is a careful examination of the record
(preferably by the district court) to establish . . . a detailed factual description of the actions of each
individual defendant (viewed in a light most favorable to the plaintiff).”).
A court must engage in the following two-prong inquiry to determine whether qualified
immunity applies: (1) whether the allegations, reviewed in a light most favorable to the party
asserting the injury, show that defendant’s conduct violated a constitutional right, and (2) whether
the constitutional right at issue was clearly established at the time of the alleged violation. Pearson
v. Callahan, 555 U.S. 223, 232 (2009). Courts have the discretion to consider either prong of the
two-part analysis first. Id. at 236. The United States Supreme Court has ruled that the “contours
of the right must be sufficiently clear that a reasonable official would understand that what he is
doing violates that right.” Saucier v. Katz, 533 U.S. 194, 202 (2001). “To make that determination,
[a court should] engage in another reasonableness inquiry: ‘whether it would be clear to a
reasonable officer that his conduct was unlawful in the situation he confronted.’” Santini v.

Fuentes, 795 F.3d 410, 417–18 (3d Cir. 2015) (quoting Saucier, 533 U.S. at 202). This analysis
is “undertaken in light of the specific context of the case.” Saucier, 533 U.S. at 201.
Here, both prongs of the analysis indicate that Officer Bernal and Sergeant Wells do not
deserve qualified immunity at this stage. Regarding the first prong, this Court has already
determined that the allegations, viewed in a light most favorable to Plaintiff, sufficiently state that
the officers violated Plaintiff’s constitutional rights by maliciously prosecuting her and falsifying
evidence.
Regarding the second prong, the Supreme Court has stated that a police officer is not
entitled to qualified immunity if “a reasonably well-trained officer in [the defendant’s] position
would have known that his affidavit failed to establish probable cause and that he should not have

applied for the warrant.” Malley v. Briggs, 475 U.S. 335, 345 (1986); see also Kelly v. Borough of
Carlisle, 622 F.3d 248, 255 (3d Cir. 2010). Officer Bernal and Sergeant Wells argue that no
reasonable officer in their position would have believed probable cause was lacking because two
eyewitness identified Plaintiff as the individual that pointed a handgun at Ayala, and moreover,
Ayala provided photographs of Plaintiff’s vehicle. Mot. at 20–22. In rebuttal, Plaintiff alleges
that: the sole witnesses, Ayala and Bruno, lied to support an ulterior motive and gave poor
descriptions of the alleged assailant and weapon (FAC at 4, ¶¶ 3, 4; id. at 5, ¶ 13); Officer Bernal
assisted Ayala in writing a fraudulent statement (id. at 4, ¶ 7); there was no weapon found
connecting Plaintiff to the crime (id. at ¶ 15); and all officers blatantly violated identification
procedures to suggest Plaintiff was the assailant (id. at 5).
The Court finds that there are sufficient allegations here, such that reasonably well-trained
officers under the purported circumstances would have known that they lacked probable cause to
arrest Plaintiff, and moreover, would have known that the alleged falsification of evidence violated
Plaintiff’s clearly established rights. See, e.g., United States v. Brown, 631 F.3d 638, 649 (3d Cir.

2011) (“[T]he idea of a police officer fabricating facts . . . in order to obtain probable cause is quite
obviously repugnant to the Fourth Amendment.”); Molina v. City of Lancaster, 159 F. Supp. 2d
813, 820 (E.D. Pa. 2001) (“[T]he right to be free from the fabrication of evidence, falsifying
documents, and malicious prosecution is clearly established.”). The Court notes, however, that
the determination of what specific information was available to the officers and whether, given
that information, reasonable law enforcement officers in their position could have believed that
their conduct was lawful requires development of the factual record. Further development of the
record is also necessary to determine whether Plaintiff’s allegations of falsification of evidence
and perjured testimony are credible. Therefore, qualified immunity is denied at this stage. See,
e.g., Saint-Jean, 509 F. Supp. 3d at 112 (denying qualified immunity at the 12(b)(6) stage because

the record was undeveloped and there were insufficient corroborating factors to support a finding
of probable cause); Molina, 159 F. Supp. 2d at 820 (denying qualified immunity because Plaintiff
alleged that the officers falsified documents and fabricated evidence).
Accordingly, Count I may proceed against Bernal, Wells, Ayala, and Bruno.
b) Count III: Violation of the New Jersey Civil Rights Act and the New Jersey
Constitution (asserted against Officer Bernal and Sergeant Wells)
In Count III, Plaintiff asserts a violation of the NJCRA and Article I, paragraphs 5 and 7
of the New Jersey Constitution. FAC at 10–11. She specifically alleges a deprivation of her
substantive due process and equal protection rights based on the alleged malicious prosecution
against her. Id. at ¶¶ 1–6. As explained in this Court’s prior Opinion:
The New Jersey Constitution, Article 1, ¶ 5 states in relevant part, “No person shall be . . .
discriminated against in the exercise of any civil or military right, . . . because of religious
principles, race, color, ancestry or national origin.” The New Jersey Constitution, Article
1, ¶ 7 states in relevant part, “The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall not be violated . . .”
The NJCRA, in turn, provides a cause of action for violations of civil rights secured under
federal and state law; it was modeled after, and is analogous to, section 1983. Pettit v. New
Jersey, No. 09-3735, 2011 WL 1325614, at *3 (D.N.J. Mar. 30, 2011). Thus, courts often
analyze the sufficiency of the NJCRA and New Jersey constitutional claims––particularly
malicious prosecution claims brought under those provisions––through the same lens as a
section 1983 claim. See Coles v. Carlini, 162 F. Supp. 3d 380, 404 (D.N.J. 2015); Lucia v.
Carroll, No. 12-3787, 2014 WL 1767527, at *5 (D.N.J. May 2, 2014) (finding that the
analysis for plaintiff’s N.J. Const. art. I ¶ 7 malicious prosecution claim was the same as
the section 1983 claims); Chapman v. New Jersey, No. 08-4130, 2009 WL 2634888, *3
(D.N.J. Aug. 25, 2009) (“Courts have repeatedly construed the NJCRA in terms nearly
identical to its federal counterpart”).

ECF No. 44 at 15–16.

First, Officer Bernal and Sergeant Wells argue that any NJCRA claim based upon
malicious prosecution should be dismissed for the same reason as the section 1983 claim, qualified
immunity. See Mot. at 19. Because the Court has denied qualified immunity at this stage for the
purposes of the section 1983 claim, qualified immunity is also denied for the purposes of the
NJCRA claim. See Faragalla v. Jersey City, No. 17-3604, 2020 WL 5812798, at *12 (D.N.J. Sept.
30, 2020) (“Because, as discussed above, [the defendant-officer] is not entitled
to qualified immunity under Section 1983, summary judgment as to the NJCRA claim
is denied as well.”).
Second, the State Defendants argue that the Amended Complaint lacks any allegation that
Plaintiff was treated differently than other similarly situated individuals, which is required for an
equal protection claim under the NJCRA. Mot. at 18. Plaintiff does not appear to oppose that
argument and does not address the discrimination claim under the NJCRA anywhere in her
opposition. See generally Opp. Instead, she concedes to a dismissal of her discrimination claim
under the NJLAD, which mirrors her claim under the NJCRA. Opp. at 10. Therefore, as Plaintiff
has failed to sufficiently allege differential treatment, and does not appear to oppose a dismissal of

her equal protection claims, Count III is dismissed only to the extent that it relies upon a violation
of Plaintiff’s equal protection rights. See Shuman ex rel. Shertzer v. Penn Manor Sch. Dist., 422
F.3d 141, 151 (3d Cir. 2005) (in order to bring a successful claim for denial of Equal Protection
under section 1983, a plaintiff must show that she received different treatment than other similarly
situated individuals); Pettit, 2011 WL 1325614, at *3 (NJCRA claims are analyzed analogously to
section 1983).
Accordingly, Count III may proceed against Bernal and Wells but it is dismissed to the
extent that it relies upon a violation of Plaintiff’s equal protection rights.
c) Count V: Abuse of Process (asserted against Ayala and Bruno)
In Count V, Plaintiff alleges that Ayala and Bruno improperly abused the legal process “for

an ulterior motive not contemplated by law, namely the arrest and incarceration of the plaintiff
. . . in order to cause the arrest of the plaintiff for what was merely an alleged minor motor vehicle
accident.” FAC at 13, ¶ 5. A claim under New Jersey common law for
malicious abuse of process claims seeks to hold a defendant liable for “the improper, unwarranted,
and perverted use of process after it has been issued . . .” Ash v. Cohn, 194 A. 174, 176 (N.J. 1937).
“A successful malicious abuse of process claim requires a [p]laintiff to demonstrate ‘(1) that
defendants made an improper, illegal, and perverted use of the process, i.e., a use neither warranted
nor authorized by the process; and (2) that in use of such a process there existed an ulterior
motive.’” Cluver v. Borough of Sayreville, No. 10-3173, 2013 WL 394030, at *8 (D.N.J. Jan. 30,
2013), aff’d, 557 F. App’x 180 (3d Cir. 2014) (quoting Ash, 194 A. at 176). Special concern is
directed to whether the defendant engaged in “further acts” following the issuance of process,
which indicate the existence of an ulterior motive. Cluver, 2013 WL 394030, at *8; see Melillo v.
Elizabeth Bd. of Educ., No. 11-4887, 2012 WL 6725837, at *7 (D.N.J. Dec. 27, 2012). In the
context of a criminal prosecution, the issuance of process is the arrest of the plaintiff-victim.

Cluver, 2013 WL 394030, at *8.
In its prior Opinion, this Court dismissed the abuse of process claim in Plaintiff’s initial
complaint because she did not explain what Ayala and Bruno’s ulterior motive was nor did she
allege any specific instances following Plaintiff’s arrest that could lead the Court to infer that Ayala
or Bruno acted with an ulterior motive. See ECF No. 44 at 20–21 (“Plaintiff does not allege that
Ayala or Bruno lied during their testimony or otherwise acted in a way suggestive of ulterior
motive. Ayala and Bruno’s participation as witnesses in a criminal proceeding is not itself
indicative of any ulterior motive, and is insufficient to support an abuse of process claim.”) (citing
Cluver, 2013 WL 394030, at *8). Plaintiff has amended her complaint to include the requisite
allegations. Specifically, she now alleges that: (1) Ayala and Bruno’s ulterior motive was to force

the arrest and incarceration of Plaintiff for “an alleged minor motor vehicle incident” (FAC at 13,
¶ 5); and (2) “[f]ollowing the issuance of process, Ayala and Bruno continued to assist law
enforcement authorities with the false and malicious prosecution of the plaintiff, by offering false
testimony to the Grand Jury and at the Wade hearing” (id. at ¶ 4). Plaintiff has sufficiently alleged
“further acts” by Ayala and Bruno, following Plaintiff’s arrest, which support their alleged ulterior
motive. See Cluver, 2013 WL 394030, at *8.
Neither Ayala nor Bruno argue that the malicious abuse of process claim in the First
Amended Complaint should be dismissed. As noted above, Ayala has not filed a motion to dismiss
the First Amended Complaint, see supra fn. 1, and Bruno has not put forth any arguments for
dismissal, see ECF No. 53. With no substantive opposition, the Court finds that Plaintiff has
adequately stated an abuse of process claim through allegations that Ayala and Bruno: (1) made
unwarranted and unauthorized use of the judicial process; and (2) had an ulterior motive. FAC at
12–13, ¶¶ 1–6; see Melillo, 2012 WL 6725837, at *7 (plaintiff stated abuse of process claim

because he alleged that: (1) the defendants engaged in several distinct acts after the issuance of
process, which were unwarranted, and supported an ulterior motive; and (2) the defendant
employer’s ulterior motives were to make the plaintiff’s underlying litigation more expensive and
to prevent his employment).
Therefore, Count V may proceed against Ayala and Bruno.
IV. Conclusion
For the foregoing reasons, the State Defendants’ motion to dismiss (ECF No. 51) is granted
in part and denied in part, and Bruno’s motion to dismiss (ECF No. 53) is denied. Counts II
(Monell liability) and IV (violations of the NJLAD) are dismissed in their entirety. Count I
(malicious prosecution) may proceed against Ayala, Bruno, Officer Bernal, and Sergeant Wells.

Count III (violations of the NJCRA) may proceed against Bernal and Wells, but it is dismissed to
the extent that it relies upon a violation of Plaintiff’s equal protection rights. Count V (abuse of
process) may proceed against Ayala and Bruno in its entirety.6

6 All claims in Counts II, III and IV that are dismissed in this action are dismissed with prejudice
because: (1) amendment would be futile; and (2) Plaintiff has had an opportunity to amend said
claims but failed to cure the deficiencies or provide any argument against dismissal. See Lundy v.
Adamar of N.J., Inc., 34 F.3d 1173, 1196–97 (3d Cir. 1994) (amendment will not be granted if
there is “bad faith or dilatory motive, truly undue or unexplained delay, repeated failure to cure
deficiency by amendments previously allowed or futility of amendment.”) (citation omitted).
An appropriate Order follows this Opinion.

Date: February 14, 2022
s/ Claire C. Cecchi
HON. CLAIRE C. CECCHI, U.S.D.J.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10272393. Public record. Not legal advice.