GUZMAN v. CITY OF NEWARK

Not for Publication

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

JOSE GUZMAN,

Plaintiff,

v. Civil Action No. 20-6276

OPINION

CITY OF NEWARK, NEWARK POLICE

DEPARTMENT, DETECTIVE FELIBERTO

PADILLA, POLICE OFFICER CRUZ, POLICE

OFFICER P. COLON, POLICE OFFICER

ADAM MORALES, POLICE OFICER

TRACIE ASHFORD, DETECTIVE DOUGLAS

MARSHALL, SERGEANT FERRER,

DETECTIVE RICHARD PISANO,

DETECTIVE MICHAEL KRUSZNIS, POLICE

OFFICER JEFREY DESOUZA, POLICE

OFFICER V. SANCHEZ, INVESTIGATING

OFFICER TYRONNE HANCOCK, AS-YET-

IDENTIFIED POLICE OFFICERS 1-20, ABC

CORP. 1-20 and JOHN DOE 1-20, (said names

being fictitious designations),

Defendants.

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

This action arises out of Plaintiff’s arrest and prosecution relating to two separate incidents

that took place in 2014 and 2016. Presently before the Court is a motion to dismiss the Second

Amended Complaint (“SAC”) by the City of Newark, Newark Police Department, Carlos Cruz,

Feliberto Padilla, Douglass Marshall, Michael Krusznis, Adam Morales, and Valerie Sanchez

Bermudez (collectively “Defendants”). D.E. 34. Plaintiff opposed the motion, D.E. 37, to which

Defendants submitted a letter in reply, D.E. 38. The Court reviewed the parties’ submissions1

made 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.

I. BACKGROUND2

On February 9, 2014, Plaintiff stopped for food at Tony’s Marisqueria, a restaurant in

Newark, New Jersey. SAC ¶¶ 13-14. Upon leaving the restaurant, Plaintiff witnessed “a

commotion” during which shots were fired. Id. ¶ 15. Plaintiff was shot in the legs and lost

consciousness. Id. ¶¶ 15-16. While recovering in the hospital, Plaintiff was visited by Newark

Police Officers Padilla, Colon, Morales, Ashford, Marshall, and Ferrer and was asked whether he

could identify who had shot him, which he was unable to do. Id. ¶ 18. On February 26, 2014, the

day he was discharged from the hospital, Plaintiff was again visited by the officers, who advised

him that he was being arrested for his involvement in the shooting. Id. ¶ 19. Plaintiff was then

held at a police station in Newark for approximately one week before being transferred to the Essex

County Jail. Id. ¶ 20.

On March 10, 2015, Plaintiff was indicted by a Grand Jury on charges related to the

February 9, 2014 shooting. Id. ¶¶ 21-22. Plaintiff alleges on information and belief that the

indictment was based upon the false testimony of Detective Padilla, who testified that a

surveillance video of the shooting clearly depicted Plaintiff as one of the shooters. Id. ¶ 23. The

1 Defendants’ brief in support of their motion to dismiss (D.E. 34-1) will be referred to as “Br.”;

Plaintiff’s opposition brief (D.E. 37) will be referred to as “Opp.”; and Defendants’ letter in reply

(D.E. 38) will be referred to as “Reply.”

2 The factual background is taken from the SAC, D.E. 26. When reviewing a motion to dismiss,

the Court accepts as true all well-pleaded facts in the complaint. Fowler v. UPMC Shadyside, 578

F.3d 203, 210 (3d Cir. 2009).

SAC states that the surveillance “was of poor quality and did not depict [P]laintiff as a shooter.”

Id. Plaintiff was prosecuted for approximately two years before the indictment was dismissed on

June 8, 2016. Id. ¶ 25.

On June 18, 2016, ten days after the indictment was dismissed, an incident occurred on

Taylor Street in Newark involving a physical altercation and shots fired into the air. Id. ¶¶ 26-27.

The incident was investigated by Newark Police Officers Pisano, Krusznis, DeSouza, Sanchez,

and Hancock. Id. ¶ 28. The investigation included interviews of various witnesses. Id. ¶ 29.

Plaintiff was not mentioned in the initial interviews; nor did the witnesses describe any individual

resembling Plaintiff in the initial interviews. Id. However, according to Defendants, during his

second interview, witness Miguel Robles identified Plaintiff as an individual involved in the

incident. Id. ¶ 30. Plaintiff alleges that he was not involved in the June 18, 2016 incident and was

nowhere near the location on that date. Id. ¶ 27. Plaintiff claims upon information and belief that

Defendants, “acting in concert, introduced [his] name and photographic likeness into [the]

investigation,” “fabricated his involvement,” and “forced, threatened and/or coerced witness

Miguel Robles to identify [P]laintiff by telling Robles that he would be arrested and sent to prison

on fabricated charges if he did not do so.” Id. ¶ 31. According to Plaintiff, Defendants fabricated

his involvement “as revenge and retribution” for the recently dismissed charges relating to the

February 9, 2014 incident and for Plaintiff’s prior contact with the Newark Police Department. Id.

Based on the officers’ investigation, a warrant for Plaintiff’s arrest was issued, and Plaintiff was

arrested and charged in connection with the June 18, 2016 incident. Id. ¶ 32.

On September 1, 2016, a Grand Jury indicted Plaintiff on those charges. Id. ¶¶ 33-34.

Plaintiff alleges upon information and belief that the indictment was based on Pisano’s false

testimony, which included reference to Robles’ forced, threatened and/or coerced identification of

Plaintiff. Id. ¶¶ 34-35. On that same day, charges related to the February 9, 2014 shooting were

presented for a second time to a Grand Jury. Id. ¶ 37. Plaintiff was again indicted based upon

Padilla’s allegedly false testimony. Id. ¶ 38. All charges against Plaintiff under both indictments

were ultimately dismissed on May 25, 2018 on the prosecutor’s own motion. Id. ¶ 40.

On May 22, 2020, Plaintiff filed his initial Complaint, asserting claims arising out of his

arrest and prosecution for the February 9, 2014 and June 18, 2016 incidents. D.E. 1. Plaintiff

subsequently filed an Amended Complaint, D.E. 10, and the SAC, D.E. 26. The SAC contains

claims pursuant to 42 U.S.C. § 1983 (“Section 1983”) based upon alleged violations of the Fourth,

Fifth, Eighth, and Fourteenth Amendments as well as claims under New Jersey state law. SAC ¶¶

44-50, 64. Plaintiff also brings claims for conspiracy, id. ¶¶ 51-54, and municipal liability, id. ¶¶

55-65. The current motion to dismiss the SAC followed. D.E. 34.

II. STANDARD OF REVIEW

Defendants move to dismiss the SAC for failure to state a claim upon which relief can be

granted. Fed. R. Civ. P. 12(b)(6). 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). A court “must

accept all of the complaint’s well-pleaded facts as true.” Id. at 210. However, “‘[t]hreadbare

recitals of the elements of a cause of action, supported by mere conclusory statements, do not

suffice’” to state a plausible claim. Feingold v. Graff, 516 F. App’x 223, 226 (3d Cir. 2013)

(quoting Iqbal, 556 U.S. at 678).

III. ANALYSIS

Plaintiff asserts 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[.]

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

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

To prove a Section 1983 claim, a plaintiff must demonstrate that (1) a person deprived him of a

right secured by the Constitution or federal law; and (2) the person who deprived him of that right

acted under color of state law. Velez v. Fuentes, No. 15-6939, 2016 WL 4107689, at *2 (D.N.J.

July 29, 2016). Because there is no dispute that Defendants acted under color of state law for

purposes of Section 1983, the focus is on whether Defendants violated Plaintiff’s constitutional

rights.

Plaintiff also asserts claims under “the Constitution and laws of the State of New Jersey”

without specifying the underlying laws that were allegedly violated. SAC ¶ 64. The Court

construes Plaintiff’s state law claims as arising under the New Jersey Civil Rights Act (“NJCRA”),

N.J.S.A. § 10:6-2, et seq. The NJCRA affords a private right of action to

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

or equal protection rights, privileges or immunities secured by the

Constitution or laws of the United States, or any substantive rights,

privileges or immunities secured by the Constitution or laws of this

State, or whose exercise or enjoyment of those substantive rights,

privileges or immunities has been interfered with or attempted to be

interfered with, by threats, intimidation or coercion by a person

acting under color of law.

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

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

construed the NJCRA in terms nearly identical to its federal counterpart.” Velez, 2016 WL

4107689, at *5 (internal quotations and citation omitted). Therefore, the Court considers

Plaintiff’s Section 1983 and NJCRA claims together.

As an initial matter, Plaintiff concedes that his Fifth Amendment claim and claim for

punitive damages must be dismissed and withdraws those claims. Opp. at 23. Therefore, the Court

dismisses those claims.

A. Statute of Limitations

Defendants first argue that Plaintiff’s Section 1983 claims are time-barred. Br. at 15-16.

The statute of limitations is an affirmative defense not normally decided on a motion to dismiss.

See Crump v. Passaic County, 147 F. Supp. 3d 249, 259 (D.N.J. 2015). However, “where the

complaint facially shows noncompliance with the limitations period,” dismissal on statute of

limitations grounds may be appropriate. Id. “Section 1983 has no statute of limitations of its own,

but borrows the statute of limitations from state personal injury torts.” Nguyen v. Pennsylvania,

906 F.3d 271, 273 (3d Cir. 2018). In New Jersey, personal injury torts have a two-year statute of

limitations. Dique v. N.J. State Police, 603 F.3d 181, 185 (3d Cir. 2010). Federal law, however,

governs the date when a Section 1983 claim accrues such that the statute of limitations begins to

run. Nguyen, 906 F.3d at 273. Under federal law, “a claim accrues when the last act needed to

complete the tort occurs.” Id.

Defendants contend that all of Plaintiff’s Section 1983 claims are time-barred, asserting

without supporting analysis that the claims arising out of the February 9, 2014 incident accrued on

that same date and the claims arising out of the June 18, 2016 incident accrued on that same date.

Br. at 15-16. To the extent Plaintiff brings false arrest claims, his cause of action accrued “on the

date of the arrest…because that is when [he] ha[d] reason to know of his injury.” Pittman v.

Metuchen Police Dep’t, 441 F. App’x 826, 828 (3d Cir. 2011). To the extent Plaintiff’s claims

sound in false imprisonment, his cause of action accrued when he became detained pursuant to

legal process. Id. (citing Wallace v. Kato, 549 U.S. 384, 389-90 (2007)). Thus, Plaintiff’s false

arrest and imprisonment claims relating to the February 9, 2014 shooting accrued no later than

March 2015, when Plaintiff was indicted and charged for the first time in relation to the shooting.

Likewise, his false arrest and imprisonment claims relating to the June 18, 2016 incident accrued

no later than September 2016, when he was charged in relation to that incident. Accordingly, the

two-year statute of limitations period for the false arrest and imprisonment claims expired well

before Plaintiff filed his Complaint on May 22, 2020. The Court therefore finds that Plaintiff’s

false arrest and imprisonment claims are time-barred.

Plaintiff argues, however, that Defendants attempt to frame his claims as false arrest and

imprisonment claims, whereas his claims sounding in malicious prosecution are not time-barred.

Opp. at 12. He further asserts that “it is undisputed” that his malicious prosecution claims did not

accrue until all false charges related to both incidents were dismissed. Id. Defendants respond

that “a thorough reading of Plaintiff’s complaint indicates that Plaintiff does not sufficiently plead

[his malicious prosecution] allegation,” but they do not dispute whether the malicious prosecution

claims were timely brought. Reply at 2. Defendants thus appear to concede that the malicious

prosecution claims accrued when the charges were dismissed.

A malicious prosecution claim accrues “when the termination of criminal proceedings

becomes favorable; that is, when the conviction or sentence is reversed, expunged, invalidated, or

impugned by the grant of a writ of habeas corpus.” Curry v. Yachera, 835 F.3d 373, 379 (3d Cir.

2016) (internal quotation omitted). Here, all charges brought against Plaintiff under the second

indictment for the February 9, 2014 incident and the indictment for the June 18, 2016 incident

were dismissed on May 25, 2018. SAC ¶ 40. Because the parties do not dispute whether dismissal

of the charges constitutes a favorable termination of criminal proceedings, the Court accepts

Plaintiff’s position that his malicious prosecution claims accrued on the date the charges against

him were dismissed. Thus, Plaintiff timely brought his malicious prosecution claims within the

two-year statute of limitations which expired on May 25, 2020, three days after Plaintiff filed his

initial Complaint.

B. Individual Defendants’ Involvement

Defendants next contend that Plaintiff fails to specifically plead the individual Defendants’

personal involvement in the violation of his civil rights. Br. at 16-18. In order for Section 1983

liability to attach to “[an individual] defendant in a civil rights action[, that defendant] must have

personal involvement in the alleged wrongdoing.” Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir.

2005). Moreover, mere “conclusory allegations against defendants as a group” that “fail[] to allege

the personal involvement of any defendant” are insufficient to survive a motion to dismiss. Galicki

v. New Jersey, No. 14-169, 2015 WL 3970297, at *2 (D.N.J. June 29, 2015). A plaintiff must

allege facts that “establish each individual [d]efendant’s liability for the misconduct alleged.” Id.

When a number of defendants are named in a complaint, plaintiff cannot refer to all defendants

“who occupied different positions and presumably had distinct roles in the alleged misconduct”

without specifying “which defendants engaged in what wrongful conduct.” Falat v. County of

Hunterdon, No. 12-6804, 2013 WL 1163751, at *3 (D.N.J. Mar. 19, 2013) (emphasis in original).

A complaint that contains “impermissibly vague group pleading” will be dismissed. Id.

The SAC alleges that Defendants Padilla, Colon, Morales, Ashford, Marshall and Ferrer

arrested Plaintiff in connection with the February 9, 2014 shooting and that this arrest and

subsequent detention were unconstitutional. SAC ¶ 19. Additionally, as to the June 18, 2016

incident, Plaintiff claims that Defendants Pisano, Krusznis, DeSouza, Sanchez and Hancock

engaged in an improper investigation that led to his unconstitutional arrest. Id. ¶¶ 28, 32. These

allegations fail to specify the personal involvement of any given Defendant and constitute

“impermissibly vague group pleading” that cannot withstand a motion to dismiss. Falat, 2013 WL

1163751, at *3; see also Diaz v. City of Passaic, Civ. No. 16-9282, 2019 WL 337583, at *4 (D.N.J.

Jan. 28, 2019) (dismissing claims for failure to plead specific facts as to each defendant’s

involvement in the alleged wrongdoing).

However, Plaintiff also alleges that Padilla provided false grand jury testimony regarding

the February 9, 2014 shooting, SAC ¶¶ 23, 38, and that Pisano provided false grand jury testimony

leading to Plaintiff’s indictment for the June 18, 2016 incident, id. ¶ 34.3 These claims specify

Padilla and Pisano’s personal involvement in the alleged wrongdoing and thus will not be

dismissed on the basis of impermissible group pleading. See Cresci v. Kazan, Civ. No. 19-19928,

2020 WL 5700754, at *3 (D.N.J. Sept. 24, 2020) (holding that the plaintiff’s complaint alleging

3 Defendants have not asserted that Padilla and Pisano are entitled to immunity from liability

arising from their grand jury testimony, and the Court declines to do so sua sponte. However, it

appears settled that “a grand jury witness has absolute immunity from any § 1983 claim based on

the witness’ testimony.” Peteete v. Asbury Park Police Dep’t, 477 F. App'x 887, 889 (3d Cir.

2012) (quoting Rehberg v. Paulk, 566 U.S. 356, 369 (2012)). Law enforcement witnesses are

entitled to this absolute immunity to the same extent lay witnesses are. Rehberg, 566 U.S. at 367.

If in his amended pleading, Plaintiff again relies on grand jury testimony, the Court will require

briefing on this issue.

two officers unconstitutionally arrested and detained the plaintiff was a sufficient showing of the

officers’ personal involvement).

C. Malicious Prosecution

Defendants argue that Plaintiff fails to state a claim for false arrest or any other

constitutional violation because there was probable cause for his arrest. Br. at 18. Because

Plaintiff’s false arrest claims are time-barred, the Court will analyze the parties’ probable cause

arguments only in relation to Plaintiff’s malicious prosecution claim. For a Section 1983 malicious

prosecution claim, a plaintiff must establish that (1) defendants initiated a criminal proceeding; (2)

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

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

plaintiff to justice; and (5) plaintiff suffered from a “deprivation of liberty consistent with the

concept of seizure as a consequence of a legal proceeding.” Allen v. N.J. State Police, 974 F.3d

497, 502 (3d Cir. 2020) (quoting Johnson v. Knorr, 477 F.3d 75, 81-82 (3d Cir. 2007)). If law

enforcement officers “influenced or participated in the decision to institute criminal proceedings,

they can be liable for malicious prosecution.” Halsey v. Pfeiffer, 750 F.3d 273, 297 (3d Cir. 2014);

see also Henderson v. Union County, Civ. No. 14-7708, 2017 WL 4861622, at *4 n.3 (D.N.J.

2017) (“Although prosecutors typically initiate proceedings against criminal defendants, liability

for malicious prosecution can also attach when a defendant influences a third party to initiate the

proceedings.”) (internal quotation omitted). In order to prevail on a malicious prosecution claim

arising from his arrest, Plaintiff must show that Defendants lacked probable cause to arrest him.

See Wright v. City of Philadelphia, 409 F.3d 595, 604 (3d Cir. 2005). Probable cause exists if, at

the time a suspect is arrested, “the facts and circumstances within the officers’ knowledge and of

which they had reasonably trustworthy information were sufficient to warrant a prudent man in

believing that the suspect had committed or was committing an offense.” Id. at 602.

Here, Defendants claim that probable cause existed for Plaintiff’s arrest for the February

9, 2014 incident because surveillance camera footage showed Plaintiff shooting at the individuals

who ultimately shot him. Br. at 19. As to the June 18, 2016 incident, Defendants point to witness

accounts that Plaintiff was involved and fired a gun into the air as well as an identification of

Plaintiff during a photo array. Id. Defendants also note that an arrest warrant was issued for gun

charges associated with this incident after a judge found probable cause. Id. at 19-20. Plaintiff

counters that Defendants’ claims were “concocted solely to contradict the allegations in [the

SAC]” and must be ignored on a motion to dismiss. Opp. at 15. Plaintiff’s position is undercut

by his pleading, which sets forth facts consistent with the contentions in Defendants’ briefing.

According to the SAC, Padilla testified that a surveillance video of the February 9, 2014 shooting

depicted Plaintiff as one of the shooters. SAC ¶ 23. The SAC also states that, according to

Defendants’ investigatory documents, a witness identified Plaintiff as a participant in the June 18,

2016 incident, and that a warrant for Plaintiff’s arrest was issued in connection with that incident.

Id. ¶¶ 30, 32.

Plaintiff has not plausibly pled that Defendants lacked probable cause to arrest him. He

alleges that he was arrested in connection with the February 9, 2014 shooting despite the officers

“not having any credible evidence indicating that [he] had committed a crime.” Id. ¶ 19. Plaintiff

does not dispute that he was present at the scene of the shooting, see id. ¶¶ 13-15, but he posits

that a surveillance video capturing the incident was of poor quality and did not depict him as a

shooter, id. ¶ 23. Even accepting his contention that the surveillance video did not show him as a

shooter, Plaintiff has not shown that Defendants lacked probable cause to arrest him. The officers

may have obtained evidence aside from the surveillance video, which paired with Plaintiff’s

presence at the scene of the shooting, may have created a “fair probability” that Plaintiff was the

shooter. Wilson v. Russo, 212 F.3d 781, 789 (3d Cir. 2000) (“Probable cause exists if there is a

‘fair probability’ that the person committed the crime at issue.”) (internal citation omitted). Indeed,

the fact that officers interviewed Plaintiff about the identity of the shooter when Plaintiff was still

considered a victim, see SAC ¶ 18, indicates that they investigated the incident prior to their

determination that probable cause existed to arrest Plaintiff. In any event, Plaintiff simply has not

met his burden of plausibly pleading that Defendants lacked probable cause such that his malicious

prosecution claim may survive a motion to dismiss.

As to Plaintiff’s arrest for the June 18, 2016 incident, an arrest pursuant to a warrant

generally establishes that the proceeding was initiated with probable cause. See Waters v.

Cheltenham Twp., 700 F. App’x 149, 152 (3d Cir. 2017). However, “an arrest warrant issued by

a magistrate or judge does not, in itself, shelter an officer from liability for false arrest.” Wilson,

212 F.3d at 786. Here, Plaintiff claims that the warrant for his arrest was issued “[b]ased upon

[D]efendants’ false and improper investigation.” SAC ¶ 32. To prevail on his claim that the

officers’ sworn affidavit of probable cause reflected a false version of events, Plaintiff must show

“first, that the officer, with at least a reckless disregard for the truth, ‘made false statements or

omissions that create[d] a falsehood in applying for a warrant,’ and second, that those assertions

or omissions were ‘material, or necessary, to the finding of probable cause.’” Dempsey v. Bucknell

Univ., 834 F.3d 457, 468 (3d Cir. 2016) (quoting Wilson, 212 F.3d at 786-87).

Plaintiff falls short of meeting his burden here. As an initial matter, Plaintiff’s conclusory

claim that Defendants conducted a “false and improper investigation” is unsupported by any

plausible facts in the SAC. More importantly, Plaintiff has not identified the false statements or

omissions contained within the affidavit underlying his arrest warrant, much less shown that the

officers who created the affidavit made false statements or omissions with at least a reckless

disregard for the truth. Because Plaintiff has not identified those assertions or omissions, he

necessarily cannot meet the additional requirement of showing that the allegedly false statements

or omissions were material to the finding of probable cause. Without specific information about

the contents of the affidavit underlying Plaintiff’s arrest warrant, including which statements or

omissions within the affidavit are allegedly false, the Court cannot determine whether there was

probable cause to support the arrest warrant. See Dempsey, 834 F.3d at 470 (ruling that in

analyzing whether there was probable cause for the issuance of an arrest warrant based upon an

officer’s sworn affidavit, a district court must identify the improperly asserted or omitted facts and,

if it determines that there were reckless misrepresentations or omissions, excise those portions of

the affidavit and assess whether the remaining contents of the affidavit would establish probable

cause). Therefore, the Court finds that Plaintiff has not plausibly pled that Defendants lacked

probable cause to arrest him in connection with the June 18, 2016 incident.

In sum, Plaintiff has not shown that Defendants lacked probable cause to arrest him in

connection with the two incidents; thus, his malicious prosecution claims fail. See Wright, 409

F.3d at 604 (dismissing the plaintiff’s malicious prosecution claim because there was probable

cause for the arrest and prosecution underlying her malicious prosecution claim).4 Because

Plaintiff’s malicious prosecution claims are dismissed, the Court need not reach Defendants’

arguments that they are entitled to qualified immunity for their conduct in connection with

Plaintiff’s arrest.

4 The parties did not analyze whether the other elements of a malicious prosecution claim are

sufficiently stated.

D. Fabrication of Evidence

Defendants further argue that Plaintiff’s conclusory assertions are insufficient to meet the

pleading standard for fabrication of evidence claims. Br. at 31. 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). To meet the

“reasonable likelihood” standard, a plaintiff must “draw a meaningful connection between her

particular due process injury and the use of fabricated evidence against her.” Id. at 372 (internal

quotation omitted). Moreover, “testimony that is incorrect or simply disputed should not be treated

as fabricated merely because it turns out to have been wrong.” Id. (quoting Halsey, 750 F.3d at

295). Rather, there must be “‘persuasive evidence supporting a conclusion that the proponents of

the evidence’ are aware that evidence is incorrect or that the evidence is offered in bad faith.” Id.

(quoting Halsey, 750 F.3d at 295). A pleading must contain allegations describing such persuasive

evidence in order to survive a motion to dismiss. See Boseman v. Upper Providence Twnshp., 680

F. App’x 65, 70 (3d Cir. 2017).

Plaintiff alleges on information and belief that Padilla falsely testified before a Grand Jury

that a surveillance video of the February 9, 2014 shooting clearly depicted Plaintiff as one of the

shooters, when in fact the video was of poor quality and did not depict Plaintiff as a shooter. SAC

¶ 23. He also alleges on information and belief that Pisano provided false grand jury testimony

regarding Plaintiff’s involvement in the June 18, 2016 incident—which included reference to

Robles’ allegedly forced, threatened, and/or coerced identification of Plaintiff—leading to

Plaintiff’s indictment. Id. 34-35. Plaintiff’s claims are conclusory. When a plaintiff makes

allegations based on information and belief, he must explain the basis for the information and

belief. See In re Schering Plough Corp. Intron/Temodar Consumer Class Action, 678 F.3d 235,

252-53 (3d Cir. 2012) (finding that the pleading failed to allege sufficient facts regarding an alleged

participant in a wrongful scheme because the pleading did not explain the basis for the allegations

based on information and belief about the participant). Here, Plaintiff provides no basis for his

claims that Padilla and Pisano provided false grand jury testimony, and “[w]ithout providing a

factual basis for his purported knowledge of the grand jury proceedings, [Plaintiff’s] allegations

that the individual defendants made false statements to the grand jury are speculative and

threadbare.” Karkalas v. Marks, 845 F. App’x 114, 119 (3d Cir.) (internal quotation marks

omitted), cert. denied, 142 S. Ct. 464, 211 L. Ed. 2d 282 (2021). In addition, it appears that

Plaintiff should have had access to the relevant information because Plaintiff could have obtained

the grand jury materials relating to his indictments pursuant to the New Jersey discovery rules.

See Matter of Grand Jury Testimony, 124 N.J. 443, 450 (1991) (“[I]n New Jersey every defendant

has full and complete access to grand-jury materials.”) (citing R. 3:13-3(a)(3)). Nor does Plaintiff

explain the basis for his allegations “[u]pon information and belief” that Defendants forced,

threatened, and/or coerced Robles to identify him in the photo array presented during the

investigation of the June 18, 2016 incident. Further, the SAC does not contain “persuasive

evidence supporting a conclusion that [Padilla and Pisano] [we]re aware that evidence [was]

incorrect or that the evidence [was] offered in bad faith.” Black, 835 F.3d at 372. In sum,

Plaintiff’s conclusory allegations that Padilla and Pisano provided false grand jury testimony are

insufficient to meet the high bar to plead a fabrication of evidence claim. Therefore, Plaintiff’s

fabrication of evidence claims are dismissed.

E. Conspiracy

Defendants also argue that Plaintiff’s conspiracy claim should be dismissed because they

did not act in concert or agreement. Br. at 27. To prove a civil conspiracy under Section 1983, a

plaintiff must show “that two or more co-conspirators reached an agreement for the purpose of

depriving constitutional rights under color of state law.” Stolinski v. Pennypacker, 772 F. Supp.

2d 626, 646 (D.N.J. 2011). The “linchpin for [Section 1983] conspiracy is agreement[;] concerted

action, without more, cannot suffice to state a conspiracy claim.” Watson v. Sec. Pa. Dept. of

Corrections, 436 F. App’x 131, 137 (3d Cir. 2011) (internal quotations omitted). A plaintiff must

also establish an agreement and the existence of an underlying wrong to establish a claim for civil

conspiracy under New Jersey law. Banco Popular N.A. v. Gandi, 184 N.J. 161, 177-78 (2005).

Here, Plaintiff alleges in a conclusory manner that Defendants “acted in concert to violate

[his] civil rights and further conspired to charge [him] with crimes he did not commit,” SAC ¶ 42,

and that Defendants “engaged in a joint venture, conspired together, and had an agreement, to act

in concert” to inflict constitutional injury against Plaintiff, id. ¶ 52. Such threadbare allegations,

without more, are insufficient to plead that the Defendants reached an agreement to deprive

Plaintiff of his constitutional rights. See Estate of Martin v. U.S. Marshals Serv. Agents, 649 F.

App’x 239, 244 (3d Cir. 2016) (“A plaintiff must rely on more than his or her own suspicion and

speculation to satisfy [the meeting of the minds] requirement.”); Livingston v. Borough of

Edgewood, 430 F. App’x 172, 178 (3d Cir. 2011) (affirming dismissal of conspiracy claims

because plaintiff “proffered neither direct nor circumstantial evidence sufficient to a reasonable

finding of conspiratorial agreement or concerted efforts among the defendants”) (internal brackets

omitted). Accordingly, Plaintiff’s conspiracy claim is dismissed.

F. Monell Claims

Plaintiff also brings municipal liability claims against the City. SAC ¶¶ 55-65. A

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

for a Section 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 Section 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).5 A policy

exists “when a decisionmaker possessing final authority to establish municipal policy with respect

to the action’ issues an official proclamation, policy, or edict.” Watson v. Abington Twp., 478 F.3d

144, 155 (3d Cir. 2007) (internal quotation and alteration 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. at 155-56 (internal

quotation omitted). Ultimately, to plausibly plead Monell liability, “[a] plaintiff must identify the

challenged policy, attribute it to the [municipality] itself, and show a causal link between execution

of the policy and the injury suffered.” Kranson v. Valley Crest Nursing Home, 755 F.2d 46, 51

(3d Cir. 1985) (internal citation and quotation marks omitted).

A Monell claim may also be premised on a municipality’s failure to train, supervise, and

discipline. To plead such a failure-to 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 Section 1983

5 Claims asserting municipal liability pursuant to Section 1983 are commonly referred to as Monell

claims.

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)). Moreover,

“‘[d]eliberate indifference’ is a stringent standard, requiring proof that a municipal actor

disregarded a known or obvious consequence of his action… Ordinarily, a pattern of similar

constitutional violations by untrained employees is necessary to demonstrate deliberate

indifference for purposes of failure to train.” Thomas v. Cumberland Cty., 749 F.3d 217, 223 (3d

Cir. 2014) (emphasis added) (internal quotations, citations, and brackets omitted).

Here, Plaintiff alleges that the City’s “customs, policies, usages, practices, procedures, and

rules” included “initiating and continuing criminal proceedings without evidence of criminal

activity and/or continuing criminal proceedings despite the presence of exculpatory evidence.”

SAC ¶ 59. He continues that these customs and policies constituted deliberate indifference to his

constitutional rights and were the proximate cause of constitutional violations he allegedly

suffered. Id. ¶¶ 60-61. Plaintiff additionally claims that the City, “as municipal policymaker in

the training and supervision” of police officers, has pursued a policy and custom of deliberate

indifference. Id. ¶ 64. Defendants argue that the municipal liability claims should be dismissed

because Plaintiff fails to identify any policy or custom that resulted in the alleged constitutional

violations. Br. at 26.

Plaintiff has not adequately pled his Monell claims. First, he has not plausibly alleged the

existence of a policy or custom that resulted in his alleged constitutional injuries. The two

instances in which the City allegedly wrongfully initiated criminal proceedings against Plaintiff

do not give rise to a plausible claim that the City had a policy or custom of initiating and/or

continuing criminal proceedings without evidence or in the face of exculpatory evidence. See

Kilgarriff v. Strunk, Civ. No. 18-10120, 2019 WL 1434763, at *5 (D.N.J Mar. 31, 2019) (finding

that merely because the plaintiff was arrested and allegedly subjected to excessive force does not,

by itself, provide a factual basis to claims of a city-wide policy). Nor does Plaintiff provide any

other specific factual allegations supporting the existence of such a policy or custom. See

Benjamin v. E. Orange Police Dep’t, 937 F. Supp. 2d 582, 595 (D.N.J. 2013) (dismissing the

plaintiff’s municipal liability claim because the complaint set forth only a single instance of the

wrongful conduct and did not contain specific facts demonstrating the existence of a policy or

custom). Further, Plaintiff’s conclusory statements that the City’s policies and customs constituted

deliberate indifference to Plaintiff’s constitutional rights are insufficient to meet the “stringent

standard” for pleading deliberate indifference. Thomas, 749 F.3d at 223. The Court

acknowledges, as Plaintiff notes, that he has not yet had the benefit of discovery. See Opp. at 20.

But nonetheless, Plaintiff’s municipal liability claim must be supported by more than what is stated

in the SAC in order to survive a motion to dismiss. See Kilgarriff, 2019 WL 1434763, at *5 (“Even

though in order to survive a motion to dismiss [the p]laintiff is not required to plead the level of

proof needed to ultimately prove his municipal liability claims, [he] must do more than he has

pleaded here.”).

IV. CONCLUSION

For the reasons set forth above, Defendants’ motion to dismiss is GRANTED.° The

dismissal is without prejudice and Plaintiff shall have thirty (30) days to file a third amended

complaint that cures the deficiencies noted herein.’ If Plaintiff does not file a third amended

complaint within that time, the claims dismissed without prejudice will be dismissed with

prejudice. An appropriate Order accompanies this Opinion.

Dated: April 7, 2022

Ao yO O, V

John\Michael Vazquez, U.S.D.7. |

® Defendants Colon, Ashford, Ferrer, Pisano, DeSouza, and Hancock did not file a motion to

dismiss or otherwise answer the SAC. However, “a court dismissing claims against moving

defendants may sua sponte dismiss claims against non-moving defendants.” Eun Ju Song v. Bank

of Am., N.A., Civ. No. 14-3204, 2015 WL 248436, at *3 (D.N.J. Jan. 20, 2015) (dismissing claims

against non-moving defendants with prejudice).

7 The Court notes that it appears from the face of the SAC that Plaintiff's false arrest claims are

clearly time-barred. However, Plaintiff will be granted an opportunity to replead his false arrest

claims alongside his other dismissed claims.

20