ROBERTS v. COUNTY OF ESSEX

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

RODNEY R. ROBERTS, Civ. No. 15-7061 (KM) (JBC)

Plaintiff,

OPINION

v.

COUNTY OF ESSEX, et al.,

Defendants.

KEVIN MCNULTY, U.S.D.J.:

Plaintiff Rodney Roberts was arrested in 1996 for the rape and

kidnapping of 17-year-old Sheronda Atwell. Shortly after his arrest, Roberts

pled guilty to kidnapping in exchange for a seven-year sentence and dismissal

of the rape charge. In 2004, after serving this sentence, Roberts was

involuntarily committed as a sexually violent predator.

In 2013, DNA analysis was performed on samples from Atwell’s 1996

rape kit. The analysis indicated that Roberts did not match the DNA profile of

Atwell’s assailant. The trial court vacated Roberts’s guilty plea in light of these

results and the government dismissed the rape and kidnapping charges.

Roberts was released from civil confinement in March 2014.

Roberts promptly commenced this action under 42 U.S.C. § 19831 with

supplemental state law claims against various state actors and entities. Several

defendants have since been dismissed from the case. The remaining defendants

have filed three motions for summary judgment that are now before the Court.

1 “42 U.S.C. § 1983 . . . provides a cause of action against state and local officers

for ‘the deprivation of any rights ... secured by the Constitution and laws.’” McCray v.

Jones, No. 21-3294, 2022 WL 17485957, at *2 (3d Cir. Dec. 7, 2022).

One motion was filed by the Essex County Prosecutor’s Office (ECPO)

and two of its employees, Assistant Prosecutor Robert Laurino and Investigator

Michelle Bolin. I will refer to these defendants collectively as “the ECPO

Defendants”. A second motion for summary judgment was filed by Essex

County. A third motion for summary judgment was filed by the City of Newark

and one of its detectives, Derrick Eutsey. I will refer to Det. Eutsey and Newark

together as “the Newark Defendants”.

For the reasons set forth below, the ECPO Defendants’ and Newark

Defendants’ motions for summary judgment (DE 214, 223) are granted in part

and denied in part, and the motion of Essex County (DE 219) is denied.2

2 Certain key items from the record will be abbreviated as follows:

DE = Docket entry number in this case

Compl. = Amended Complaint (DE 96)

ECPO St. = ECPO Defendants’ statement of material facts (DE 214-2)

Resp. to ECPO St. = Roberts’s response to ECPO Defendants’ statement of

material facts (DE 218-107)

Newark St. = Newark Defendants’ statement of material facts (DE 223-3)

Resp. to Newark St. = Roberts’s response to Newark Defendants’ statement of

material facts (DE 225-107)

ECPO MSJ = Brief in support of ECPO Defendants’ motion for summary

judgment (DE 214-1)

Opp. to ECPO MSJ = Roberts’s brief in opposition to ECPO Defendants’ motion

for summary judgment (DE 218-108)

ECPO Repl. = Reply brief in further support of ECPO Defendants’ motion for

summary judgment (DE 215)

Essex MSJ = Brief in support of Essex County’s motion for summary judgment

(DE 219-2)

Opp. to Essex MSJ = Roberts’s brief in opposition to Essex County’s motion for

summary judgment (DE 222-108)

Newark MSJ = Brief in support of Newark Defendants’ motion for summary

judgment (DE 223-1)

Opp. to Newark MSJ = Roberts’s brief in opposition to Newark Defendants’

Roberts sues for two essential wrongs: (1) the alleged misrepresentation that

the victim had identified him from a photo array; and (2) the failure, in post-

conviction proceedings, to produce vaginal swabs which did not contain

Roberts’s DNA. The rulings herein leave intact these essential claims against

the persons who are allegedly primarily responsible, while resisting efforts to

spread liability to defendants less directly or knowingly involved.

motion for summary judgment (DE 225-108)

Newark Repl. = Reply brief in further support of Newark Defendants’ motion for

summary judgment (DE 224)

Laur. Dep. = Excerpts from deposition of Robert Laurino (Ex. 14 to DE 218)

Bol. Dep. = Excerpts from deposition of Michelle Bolan (Ex. 15 to DE 218)

Rod. Dep. = Excerpts from deposition of Clara Rodriguez (Ex. 16 to DE 218)

Rod. Dep. II = Excerpts from deposition of Clara Rodriguez (Ex. 38 to DE

225)

Groller Dep. = Excerpts from deposition of Joseph Groller (Ex. I to DE 223)

Rod. PCR Br. = Rodriguez’s 2007 brief submitted in opposition to Roberts’s

PCR petition (Ex. 26 to DE 218)

PCR Tr. = Transcript from July 26, 2007 hearing on Roberts’s PCR petition (Ex.

25 to DE 218)

Comm. Order = Order for temporary civil commitment of Roberts dated May 27,

2004 (Ex. 75 to DE 218)

1996 Report = Det. Eutsey’s 1996 investigatory report (Ex. B to DE 223)

2009 App.Div. = 2009 decision of the Appellate Division (Ex. 92 to DE 225)

2013 App.Div. = 2013 decision of the Appellate Division (Ex. 40 to DE 222)

Receipt = 1996 “Property & Evidence Receipt” for photograph of Roberts (Ex. D

to DE 223)

I. Background3

A. Investigation of the rape and kidnapping of Sheronda Atwell

In the early morning hours of May 8, 1996, Sheronda Atwell was walking

to her aunt’s house in Newark, New Jersey when an unknown male grabbed

her, dragged her to an empty lot, and raped her. (Newark St. ¶1; Resp. to

Newark St. ¶1.) Atwell reported the incident to the Newark police that morning

and described her assailant as a 20-year-old black male.4 (Newark St. ¶5; Resp.

to Newark St. ¶5.) After her interview with police, she was taken to a hospital

where a rape kit was collected. (Newark St. ¶6; Resp. to Newark St. ¶6.)

Detective Eutsey was assigned to investigate the crime. (Newark St. ¶9;

Resp. to Newark St. ¶9.) As part of his investigation, Eutsey met with Atwell

and her mother on May 14, 1996. (Newark St. ¶10; Resp. to Newark St. ¶10.)

The parties agree that Atwell told Eutsey at this meeting that she did not know

her assailant. (Newark St. ¶11; Resp. to Newark St. ¶11.) What happened next,

however, is largely disputed. According to the report Eutsey drafted detailing

his investigation, Eutsey asked Atwell to review suspect files that contained

photographs of black males. (Newark St. ¶12; Resp. to Newark St. ¶12.) The

report states that Atwell began to cry upon viewing one of the photographs and

that she told Eutsey that this was the person who assaulted her. (Id.) The

person in the photograph was Roberts, who at the time was 29 years old.

(Newark St. ¶13; Resp. to Newark St. ¶13.) Eutsey determined that Roberts had

3 These undisputed facts are primarily taken from the Newark Defendants’

statement of material facts not in dispute, filed pursuant to Local Rule 56.1, and

Roberts’s response to that statement. The court is not aware of any factual disputes

between the Newark Defendants, the ECPO Defendants, and Essex County; indeed,

many of the undisputed facts that appear in the Newark Defendants’ 56.1 statement

similarly appear in the other defendants’ 56.1 statements. Given that certain sets of

facts bear more heavily on the claims asserted against some of the defendants as

opposed to others of the defendants, the 56.1 statements provide varying levels of

detail as to such facts. I therefore draw some facts from the ECPO Defendants’ 56.1

statement, and Roberts’s response to that statement, where more details are required.

4 To accurately reflect the record, I have adopted without alteration the racial

terminology used at the time to identify or describe the perpetrator in this 25-year-old

case.

been convicted of aggravated sexual assault in 1986 but had been released on

parole in 1993. (Newark St. ¶¶14, 21; Resp. to Newark St. ¶¶13.)

Eutsey’s report contains a signed statement from Atwell asserting that

she was able to identify her assailant by viewing a photograph of him and that,

after making this identification, she signed and dated a copy of the photograph.

(Newark St. ¶¶15-19; Resp. to Newark St. ¶¶15-19.) Atwell’s signatures on the

statement were “sworn to and subscribed” before another officer, Acting

Lieutenant Daly. (Id.) On a later date, Eutsey executed a “Property and

Evidence Receipt” for the copy of the photograph of Roberts that Atwell

purportedly signed, and Lieutenant Daly signed this receipt. (Newark St. ¶26;

Resp. to Newark St. ¶26.)

On May 16, 1996, Eutsey submitted Atwell’s statement to a prosecutor.

(Newark St. ¶22; Resp. to Newark St. ¶22.) Eutsey then appeared before a

judge of the Newark Municipal Court, and the judge issued two warrants for

Roberts’s arrest: one for aggravated assault, and one for kidnapping. (Newark

St. ¶23; Resp. to Newark St. ¶23.) According to Eutsey’s investigation report,

on May 23, 1996, he went to the address listed in Roberts’s parole records and

determined that the address was “fictitious.” (Newark St. ¶24; Resp. to Newark

St. ¶24.) The report states that Eutsey then issued an alert to police agencies

notifying them that Roberts was wanted pursuant to a warrant. (Newark St.

¶25; Resp. to Newark St. ¶25.)

Eutsey executed another “Property and Evidence Receipt” for Atwell’s

rape kit, and the receipt indicates that it was received by the Newark Forensic

Lab (“Newark Lab”) on May 29, 1996. (Newark St. ¶27; Resp. to Newark St.

¶27; Ex. E to DE 223.) Joseph Groller, a chemist at the Newark Lab, examined

Atwell’s rape kit on that date. (Newark St. ¶29; Resp. to Newark St. ¶29.)

Among other things, Groller examined the vaginal swabs microscopically and

noted the presence of sperm. (Newark St. ¶30; Resp. to Newark St. ¶30.)

Groller then requested blood and saliva samples from a suspect for the purpose

of comparison. (Newark St. ¶32; Resp. to Newark St. ¶32.)

After examining the Atwell rape kit, Groller cut the tips off of the vaginal

swabs and placed them in a brown envelope. (Newark St. ¶33; Resp. to Newark

St. ¶33.) Groller repackaged the brown envelope into a larger white envelope

that he labeled with the name of the victim and other identifying information,

and he placed the white envelope into one of the refrigerators in the Newark

Lab. (Newark St. ¶¶34-36; Resp. to Newark St. ¶¶34-36.) Groller believed that

the rest of the rape kit was returned to the Newark Police Department’s

property room. (Newark St. ¶37; Resp. to Newark St. ¶37.)

B. Arrest and conviction of Rodney Roberts

On May 25, 1996, Roberts was arrested in East Orange, New Jersey on a

theft charge unrelated to the Atwell case. (Newark St. ¶41; Resp. to Newark St.

¶41.) On June 12, Roberts pled guilty to third-degree theft, which resulted in a

violation of his parole from his 1986 conviction. (Newark St. ¶¶41-42; Resp. to

Newark St. ¶¶41-42.) Roberts was not released on bail pending sentencing on

the theft charge because of the pending rape and kidnapping charges in the

Atwell case. (Id.)

On June 26, 1996, Roberts was arraigned on and pled not guilty to

charges of aggravated sexual assault and kidnapping. (Newark St. ¶42; Resp.

to Newark St. ¶42.) Three weeks later, while at the courthouse for a proceeding,

Roberts met with his assigned public defender, Charles Martone, who informed

Roberts of a plea offer by the prosecution: In exchange for a guilty plea to

second-degree kidnapping, the prosecution would dismiss the first-degree

aggravated sexual assault charge and recommend that Roberts be sentenced to

a term of seven years. (Newark St. ¶¶44-45; Resp. to Newark St. ¶¶44-45.) That

seven-year sentence would run concurrently with the two three-year terms that

Roberts was then facing for theft and violating the terms of his parole. (Id.)

According to Roberts, he told Martone that he was innocent of the Atwell

charges and that he would not accept the prosecutor’s offer. (Newark St. ¶46;

Resp. to Newark St. ¶46.) Martone then left the holding cell area where the two

had been conversing and returned approximately 20-25 minutes later with new

information. (Id.) Martone informed Roberts that he had met Atwell, who was at

the courthouse, and that she told him that she had positively identified Roberts

as her assailant and was prepared to do so again in open court that day. (Id.)

Martone advised Roberts that his independent investigation confirmed Atwell’s

identity as the victim and the accuracy of the police reports in the case. (Id.)

Roberts subsequently accepted the plea agreement and was convicted of

kidnapping. (Newark St. ¶47; Resp. to Newark St. ¶47.) He was sentenced by

Judge Eugene Codey to seven years on the kidnapping conviction, to run

concurrently with his three-year sentence(s) for the theft conviction and the

related parole violation. (Newark St. ¶49; Resp. to Newark St. ¶49.)

C. Parole denials and civil confinement

In April 1998, and again in May 2000, Roberts appeared before the New

Jersey State Parole Board for parole release hearings. Both times, Roberts was

denied parole based upon the allegation that he raped Atwell. (Newark St.

¶¶52-53; Resp. to Newark St. ¶¶52-53.) Roberts appealed the May 2000

decision, which was affirmed on the ground that the Board was entitled to rely

on the charged sexual assault. (Id.)

In January 2001, Roberts filed a pro se motion to withdraw his guilty

plea in the Atwell case due to ineffective assistance of counsel. (Newark St. ¶54;

Resp. to Newark St. ¶54.) Judge Codey denied the motion. (Id.) In June 2003,

Roberts was again denied parole and appealed. The denial was affirmed on the

basis that Roberts would not accept responsibility for the Atwell rape and that

he thus “minimized [his] conduct.” (Newark St. ¶55; Resp. to Newark St. ¶55.)

During this period, Roberts underwent several psychological evaluations.

(Newark St. ¶¶58-60; Resp. to Newark St. ¶¶58-60.) The evaluation reports

recommended that he be referred to the Attorney General’s office for further

assessment as to whether he met the criteria for civil confinement as a sexually

violent predator, pursuant to N.J. Stat. Ann. § 30:4-27.31. Among other things,

the reports found that Roberts continued to deny responsibility for the Atwell

rape. (Id.)

In May 2004, after Roberts had maxed out his criminal sentence, the

Attorney General’s office filed a petition for civil commitment, which was

granted temporarily pending a final hearing. (Newark St. ¶62; Resp. to Newark

St. ¶62.) Commitment hearings were held over several days in 2004, 2005 and

2006, before Judge Serena Perretti. (Newark St. ¶63; Resp. to Newark St. ¶63.)

Roberts was represented at these hearings by Assistant Deputy Public

Defender John Douard. (Newark St. ¶62; Resp. to Newark St. ¶62.) At the

conclusion of the hearings, Judge Perretti ordered that Roberts be committed

to the State of New Jersey Special Treatment Unit as a sexually violent

offender. (Newark St. ¶67; Resp. to Newark St. ¶67.) Over the course of the

years following his commitment, Roberts was repeatedly found to be a sexually

violent predator in need of continued confinement. (Newark St. ¶68; Resp. to

Newark St. ¶68.)

D. 2005 DNA Analysis

During one of the hearings on the initial petition to have Roberts civilly

committed, Dr. Luis Zeiguer testified about the rape kit that was collected after

Atwell’s assault in 1996. (ECPO St. ¶9; Resp. to EPCO St. ¶9.) Dr. Zeiguer

explained that the kit was sent to the Newark Lab where a chemist examined it,

reported that there was a positive semen stain on the vaginal swabs, and

recommended that samples be obtained from a suspect for purposes of

comparison. (ECPO St. ¶9; Resp. to EPCO St. ¶9.) It appears that prior to

hearing Dr. Zeiguer’s testimony, Roberts was not aware that a rape kit had

been collected from Atwell, or at least that he was not aware that materials in

the kit had tested positive for semen.

In December 2004, after hearing Dr. Zeiguer’s testimony, Douard sent a

letter to Robert Laurino, who at the time was the director of the Sexual Assault

Response Team at ECPO. (ECPO St. ¶10; Resp. to EPCO St. ¶10.) Douard

requested that Roberts’s DNA be compared to the seminal stains preserved in

the Atwell rape kit. (Id.)

Michelle Bolan, who was then an investigator at ECPO, was asked to

collect a DNA sample from Roberts. Bolan was also asked to ensure that the

Atwell rape kit be provided to the New Jersey State Police crime laboratory

(“State Lab”) for analysis. (ECPO St. ¶¶11-12; Resp. to EPCO St. ¶¶11-12.)

Bolan collected a buccal swab from Roberts and then arranged for another

ECPO employee to deliver both the rape kit and the buccal swab to the State

Lab. (ECPO St. ¶¶13-15; Resp. to EPCO St. ¶¶13-15.) At no point did Bolan

open the rape kit, which had been sealed in 1996. (Id.) A receipt indicates that

both the kit and Roberts’s buccal swab were received by the State Lab in March

2005. (ECPO St. ¶16; Resp. to EPCO St. ¶16.)

An entry in the communications log maintained by the State Lab

indicates that Joe Petersack, a scientist employed by the lab, called Laurino in

April 2005. (ECPO St. ¶21; Resp. to EPCO St. ¶21.) In the comments section of

the log, it states: “Regarding items in case. Only things retrieved from Crime

Unit were the vaginal slides & the buccal swabs from the suspect. The kit did

not contain the vaginal swab, genital swab, or the victim’s saliva control. He

will look into it & get back to me.”5 (ECPO St. ¶21; Resp. to EPCO St. ¶21.)

The State Lab log indicates that Petersack called Laurino two more times

in July 2005. The comments pertaining to the first July call read: “Regarding

locating the vaginal swabs. He will look into it and get back to me.” (ECPO St.

¶22; Resp. to EPCO St. ¶22.) As for the second July call, the comments read:

“With regard to swabs, everything that Newark P.D. had was sent to the lab. I

advised him that we were going to scrape more of the slides to try & generate a

sample – He agreed that was okay.” (ECPO St. ¶23; Resp. to EPCO St. ¶23.)

In August 2005, the State Lab prepared a report detailing the results of

the DNA testing that was conducted. (ECPO St. ¶27; Resp. to EPCO St. ¶27.)

The report indicated that the only DNA detected from the tested sample was

female DNA. (Id.) In October 2005, Laurino sent a copy of the report to Douard

and informed Douard that the results were “inconclusive” because although

Roberts’s DNA was not detected, Roberts “could not be ruled out” because the

materials “had degraded.” (ECPO St. ¶28; Resp. to EPCO St. ¶28.)

In September 2005, Bolan collected a buccal swab from Atwell. (ECPO St.

5 The parties dispute the precise wording of this comment and others from the

State Lab log, but the disputes do not appear to be central to the issues at hand.

¶35; Resp. to EPCO St. ¶35.) The undisputed facts do not indicate whether or

when this buccal swab was received by the State Lab.

E. Atwell’s 2005 statements

In conjunction with his efforts regarding the rape kit, Douard arranged to

interview Atwell. In late 2004, Douard and Ronald Price, an investigator for the

Office of the Public Defender, met with Atwell to discuss the 1996 rape.

(Newark St. ¶70; Resp. to Newark St. ¶70.) Atwell told Douard and Price at this

meeting that she never made a photo identification of her assailant in 1996

and that she did not even know that anyone had ever been arrested in

connection with the assault. (Newark St. ¶71; Resp. to Newark St. ¶71.)

In September 2005, Douard and Price interviewed Atwell again and

prepared a statement memorializing what she had told them at the meeting in

late 2004. (Newark St. ¶72; Resp. to Newark St. ¶72.) Atwell signed the

statement, which asserted that she “told the police officer [she] was not able to

make a positive identification” and that she was “unaware that a suspect had

been indicted for the assault.” (Id.) A crossed-out sentence in the statement

reads: “I was not contacted thereafter and never made a photo identification or

taken to the police station.” (Id.)

At the same meeting, Atwell provided an oral statement that Price

transcribed by hand on the same document as her written statement. (Newark

St. ¶73; Resp. to Newark St. ¶73.) The oral statement provided, in relevant

part: “I did give as [sic] statement to the police but please note that when I was

taken to the police station shortly after the assault, I was shown photos of

possible assailants & could not identify any as my assailant.” (Id.)

F. PCR efforts

In February 2006, Roberts filed a pro se motion for post-conviction relief

and to withdraw his guilty plea. (Newark St. ¶75; Resp. to Newark St. ¶75.) He

argued that Martone, his public defender in 1996, provided ineffective

assistance of counsel by misrepresenting to him that Atwell had made an

identification. (Id.) Judge Codey denied Roberts’s motion, concluding that it

was time barred. (Newark St. ¶76; Resp. to Newark St. ¶76.)

Roberts’s appealed the denial, and in 2007 the Appellate Division

reversed and remanded the case so that Roberts would be afforded the

assistance of counsel in demonstrating why his motion should not be

considered time barred. (Newark St. ¶77; Resp. to Newark St. ¶77.) On remand,

Assistant Deputy Public Defender Stefan Van Jura was assigned to represent

Roberts. (Newark St. ¶79; Resp. to Newark St. ¶79.) Assistant Prosecutor Clara

Rodriguez represented the government. Following a hearing, Judge Codey again

denied the motion, in part based on his finding that neither Atwell’s 2005

statements nor the 2005 DNA report provided legitimate grounds for relief.

Roberts appealed this second denial. (Newark St. ¶¶82-83; Resp. to Newark St.

¶¶82-83.)

In a 2009 decision, the Appellate Division reversed a second time and

remanded the case for an evidentiary hearing. (Id.) At a hearing before Judge

Codey in 2009, Atwell testified that she did not recognize Roberts, who was

present in the courtroom, and that she did not recall ever making a photo

identification of him or anyone else. (Newark St. ¶85; Resp. to Newark St. ¶85.)

She also said directly to Roberts, “I want to know why did you confess to

something that you didn’t do to me? . . . .” (Newark St. ¶88; Resp. to Newark

St. ¶88.) Judge Codey denied Roberts’s PCR petition following this hearing, and

Roberts appealed a third time. (Newark St. ¶¶97-98; Resp. to Newark St. ¶¶97-

98.) In a 2013 decision, the Appellate Division again reversed and remanded for

a further evidentiary hearing. (Id.)

Over the course of Roberts’s PCR proceedings, the government attempted

to locate the copy of the photograph of Roberts that Atwell had purportedly

signed in 1996. (Newark St. ¶100; Resp. to Newark St. ¶100.) The photograph

was not located at that time or as a result of subsequent searches conducted

after the present lawsuit was filed. (Id.; Newark St. ¶101; Resp. to Newark St.

¶101.)

In 2013, after the Appellate Division remanded the case a third time,

Rodriguez requested assistance from the Newark police in obtaining the Atwell

rape kit. (ECPO St. ¶¶39-40; Resp. to EPCO St. ¶¶39-40.) Detective Christine

Witkowski was assigned to assist. Witkowski eventually learned that the tips

from the vaginal swabs in the Atwell rape kit were in a box in one of the

refrigerators in the Newark Lab, which had closed in 2010. (Newark St. ¶¶39,

138; Resp. to Newark St. ¶¶39, 138.) The missing tips from the vaginal swabs

were subsequently obtained and sent to the State Lab, and DNA analysis

indicated that Roberts’s DNA did not match the profile of the specimen on the

swabs. (ECPO St. ¶¶44-45; Resp. to EPCO St. ¶¶44-45.)

In November 2013, Judge Hutchins-Henderson, who had been assigned

to the case after Judge Codey retired, vacated Roberts’s guilty plea and ordered

a new trial. (ECPO St. ¶46; Resp. to EPCO St. ¶46.) ECPO subsequently

dismissed the charges against Roberts, and the State dismissed the civil

commitment petition. (Id.) Roberts was released from custody on March 12,

2014. (ECPO St. ¶47; Resp. to EPCO St. ¶47.)

II. Procedural history

Roberts commenced this action in September 2015. (DE 1.) He filed an

amended complaint in December 2016, after the court ruled on motions to

dismiss by several of the defendants (DE 64, 92).

In broad terms, the amended complaint alleges that Roberts’s

constitutional and common law rights were violated as a result of actions taken

by the various defendants in connection with the investigation and arrest of

Roberts for Atwell’s kidnapping and rape, as well as in connection with the

handling and testing of the Atwell rape kit in 2005. Roberts seeks

compensatory damages, punitive damages, and other relief. (Compl. ¶42.)

Discovery concluded in 2019. (DE 135, 150.) In May 2022, the ECPO

Defendants, Essex County, and the Newark Defendants filed their respective

motions for summary judgment. (DE 214, 219, 223.) The motions are now fully

briefed and appropriate for adjudication.

III. Legal standard

Summary judgment is proper if “there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” See

Kreschollek v. S. Stevedoring Co., 223 F.3d 202, 204 (3d Cir. 2000) (quoting

Fed. R. Civ. P. 56(a)). In deciding a motion for summary judgment, a court

must construe all facts and inferences in the light most favorable to the

nonmoving party. Boyle v. County of Allegheny, 139 F.3d 386, 393 (3d Cir.

1998). The moving party bears the burden of establishing that no genuine

issue of material fact remains. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23

(1986). “[W]ith respect to an issue on which the nonmoving party bears the

burden of proof ... the burden on the moving party may be discharged by

‘showing’—that is, pointing out to the district court—that there is an absence

of evidence to support the nonmoving party's case.” Id. at 325.

Once the moving party has met that threshold burden, the nonmoving

party “must do more than simply show that there is some metaphysical doubt

as to material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.

574, 586 (1986). The opposing party must present actual evidence that creates

a genuine issue as to a material fact for trial. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986); see also Fed. R. Civ. P. 56(c) (setting forth types of

evidence on which nonmoving party must rely to support its assertion that

genuine issues of material fact exist). “A fact is material if—taken as true—it

would affect the outcome of the case under governing law. And a factual

dispute is genuine if the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.” M.S. by and through Hall v. Susquehanna

Twp. Sch. Dist., 969 F.3d 120, 125 (3d Cir. 2020) (quotation marks and citation

omitted).

IV. Discussion: Newark Defendants

I first discuss the summary judgment motions of the Newark Defendants,

regarding claims arising from the alleged actions of Det. Eutsey of the Newark

Police Department.

A. Malicious prosecution

The Newark Defendants move for summary judgment on Counts 1 and

8, which raise claims against Det. Eutsey for malicious prosecution under 42

U.S.C. § 1983 and state law.

To prevail on a malicious prosecution claim under § 1983, a plaintiff

must establish that (1) the defendant initiated a criminal proceeding; (2) the

criminal proceeding ended in the plaintiff’s 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

a deprivation of liberty consistent with the concept of seizure as a consequence

of a legal proceeding. Zimmerman v. Corbett, 873 F.3d 414, 418 (3d Cir. 2017).

Under New Jersey law, a malicious prosecution claim consists of the first four

of these elements, without the requirement that the plaintiff was deprived of

his or her liberty. Trabal v. Wells Fargo Armored Serv. Corp., 269 F.3d 243, 248

(3d Cir. 2001).

The Newark Defendants first argue that the malicious prosecution claims

must fail because Eutsey had probable cause to initiate a criminal proceeding.

(Newark MSJ 9-21.) They maintain that when Eutsey applied for a warrant to

arrest Roberts, he did so based upon Atwell’s photo identification of Roberts.

That identification supplied him with probable cause to believe that Roberts

was Atwell’s assailant.

“Probable cause to arrest exists when the facts and circumstances within

the arresting officer's knowledge are sufficient in themselves to warrant a

reasonable person to believe that an offense has been or is being committed by

the person to be arrested.” Orsatti v. New Jersey State Police, 71 F.3d 480, 483

(3d Cir. 1995). To demonstrate a lack of probable cause where, as in this case,

the arresting officer applied for and was issued a warrant by a judge, a plaintiff

must show “(1) that the police officer ‘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.’” Wilson

v. Russo, 212 F.3d 781, 786-787 (3d Cir. 2000) (quoting Sherwood v. Mulvihill,

113 F.3d 396, 399 (3d Cir. 1997)).

According to the Newark Defendants, there is no evidence that Eutsey

knowingly or recklessly made any false material statements or omissions in

applying for a warrant for Roberts’s arrest. That is of course one valid view of

the evidence, but there is another, contrary view. This record presents a triable

factual issue requiring denial of summary judgment on the issue of probable

cause.

Eutsey’s warrant application was based on Atwell’s identification of

Roberts as her assailant, but whether Atwell actually did identify Roberts in

1996 is a disputed issue of fact. Although Atwell signed a statement in 1996

indicating that she positively identified the male who assaulted her after

viewing his picture (1996 Report 11), she subsequently signed a statement in

2005 indicating that she never made such an identification. (Newark St. ¶¶72-

73.) The record further reveals that in 2007, Van Jura prepared a certification

that Atwell signed confirming the truth of her 2005 statement. (Ex. 85 to DE

225.) Atwell confirmed the truth of her 2005 statement again at her deposition

in 2019 (Atwell Dep. 88:22-91:1).

Of course, an officer may reasonably rely on a witness’s statement of

identification. But there is an issue as to the validity of Atwell’s 1996

statement, which was typed up by Eutsey. Atwell testified at her deposition

that she “just skimmed through” the statement that Eutsey prepared because

her mother was in a rush to leave the police station. (Id. at 53:11-54:18.) She

also testified that she pre-signed the statement indicating that she made a

photo identification before Eutsey had even shown her the mugshots, which, if

true, would be highly suggestive of Eutsey’s knowledge of the statement’s

inaccuracy. (Id. at 47:14-25.) Later at the deposition, Atwell testified that

Eutsey’s report, which states that Atwell cried uncontrollably upon seeing a

suspect’s photo and informed Eutsey that that man was the person who

assaulted her, was false. (Id. at 175:23-176:23.) Atwell testified that she is

“certain” she “didn’t pick out Rodney Roberts’ photo in 1996.” (Id. at 177:3-7.)

As the Newark Defendants point out, there is also considerable evidence

to suggest that Atwell did identify Roberts as her assailant in 1996.

Recantations are notoriously unreliable, and Atwell’s memory was less than

consistent or complete. At various points during her deposition, she also

testified that she was not sure whether she made any photo identification in

1996 and that she “just do[es]n’t recall” whether she did or did not. (Id. at

190:12-191:24; 194:3-8.; 195:4-5.) She also testified that part of her 2005

statement, which suggests that she did not identify anyone as her assailant in

1996, was not truthful. (Id. at 207:5-8.)

Viewing this evidence in its entirety, and construing it in the light most

favorable to Roberts, I conclude that a reasonable jury could find either way:

i.e., that Atwell did or did not identify Roberts from his photo in 1996. While it

is obviously very possible, as Eutsey says, to dispute Atwell’s credibility, the

court may not make any credibility determinations or engage in any weighing

of the evidence when ruling on a motion for summary judgment. See Montone

v. City of Jersey City, 709 F.3d 181, 191 (3d Cir. 2013) (citation omitted).

Whether Atwell made an identification in 1996 is an issue for the jury, as

factfinder, to decide.

Because there is sufficient evidence in the record for a jury to find that

Eutsey made a false statement when applying for a warrant for Roberts’s

arrest, the next questions are (a) whether any such statement was made

knowingly or recklessly, and (b) whether it was material. See Wilson, 212 F.3d

at 786-787. “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.’” Id. at 788 (quoting United States v. Clapp, 46 F.3d

795, 801 n.6. (8th Cir. 1995)). A false assertion made in an application for a

warrant is material if, upon removing the false assertions, the application

would no longer establish probable cause. Wilson, supra at 789.

Assuming Atwell did not identify Roberts as her assailant in 1996, then

Eutsey surely knew or recklessly “must have entertained serious doubts” as to

the truth of his statements in his report that she did make such an

identification. See Wilson, 212 F.3d at 788.

Furthermore, the statements were undoubtedly material, because

without the purported photo identification, there was very little linking Roberts

to the crime. The Newark Defendants point out that Roberts had previously

committed a sexual assault and was not incarcerated at the time of Atwell’s

attack. (Newark MSJ 19.) Those facts alone do not approach a showing of

probable cause. Without the photo identification, no probable cause to arrest

Roberts for Atwell’s rape existed. A reasonable jury could therefore find (taking,

as I must, the plaintiff-favorable view that the statements were false) that

Eutsey initiated proceedings against Roberts without probable cause.6

The Newark Defendants next argue that Eutsey is entitled to summary

judgment on the malicious prosecution claims because there is no evidence

that he acted with malice. (Newark MSJ 22-23.) In the context of a malicious

prosecution claim, malice is a term of art, which includes “lack of belief by the

actor himself in the propriety of the prosecution.” Lee v. Mihalich, 847 F.2d 66,

70 (3d Cir. 1988). “The element of malice may be inferred from lack of probable

cause.” Morales v. Busbee, 972 F. Supp. 254, 261 (D.N.J. 1997). “As a result,

6 Roberts argues that there is also sufficient evidence for a jury to find that

Eutsey made material omissions when applying for a warrant. Roberts asserts, in the

alternative, that if Atwell did in fact identify Roberts from his photo, Eutsey failed to

disclose to the judge issuing the warrant that the photo of Roberts that Atwell selected

was 10 years old. An omission made in an application for a warrant is material if, after

inserting the facts recklessly omitted, the affidavit would no longer established

probable cause. Wilson, 212 F.3d at 789. Here, even if it were disclosed that the photo

was 10 years old, that circumstance would at best go to the weight of the evidence; if

Atwell identified her assailant as the person in the photo, that would ordinarily be

sufficient to establish probable cause. Without further evidence that Roberts’s

appearance had so changed that the photo was misleading, Roberts would not have a

malicious prosecution claim based on this omission alone. Cf. Onuekwusi v. Graham,

No. 20-cv-02965, 2021 WL 1085523, at *7 (D.N.J. Mar. 22, 2021) (plaintiff stated a

malicious prosecution claim where defendant police officers showed robbery victims a

photo of plaintiff that depicted him 70 pounds lighter and 15 years younger and falsely

told witnesses that he was associated with the phone number used by the

perpetrator). At any rate, given my resolution of the main claim, this alternative theory

is not critical to my ruling here.

fact issues precluding a finding on probable cause will generally also preclude

a finding on malice.” Sanders v. Jersey City, 2021 WL 1589464, Civ. No. 18-

01057, at *21 (D.N.J. Apr. 23, 2021).

Here, because a reasonable jury could find that Eutsey acted without

probable cause in pursuing a warrant for Roberts’s arrest, a jury could also

find that the element of malice is met. If Atwell never identified Roberts as her

assailant, then it is likely that Eutsey himself did not believe there was a basis

to initiate criminal proceedings against Roberts. Thus, there is a genuine

factual dispute as to whether Eutsey acted with malice.

Finally, the Newark Defendants argue that Roberts cannot succeed on

the malicious prosecution claim under § 1983 because he cannot prove that he

suffered a deprivation of liberty. (Newark MSJ 21-22.) To satisfy the deprivation

of liberty prong for a malicious prosecution claim, a plaintiff must show that he

was “seized” within the meaning of the Fourth Amendment. Liberty Bell Temple

III v. Trenton City Police Dep't, No. 316CV1339PGSLHG, 2019 WL 4750836, at

*20 (D.N.J. Sept. 30, 2019) (vacated on other grounds). Time spent in jail is the

quintessential deprivation of liberty. See id. at 21.

The Newark Defendants point out that when Roberts was charged in the

Atwell case, he was already in jail for a theft offense. The Newark Defendants

also note that Roberts was eventually sentenced to and did serve three years on

that offense. Thus, they argue that Roberts did not suffer a deprivation of

liberty solely because of the Atwell prosecution.

Here, the Newark Defendants cite Curry v. Yachera, 835 F.3d 373 (3d

Cir. 2016). In that case, the Third Circuit affirmed a district court’s grant of

summary judgment on the plaintiff’s malicious prosecution claim because the

plaintiff could not show that he had suffered a deprivation of liberty due to the

specific charges at issue. Id. at 380. When those charges were brought, the

plaintiff was already incarcerated for a separate and unrelated offense. Id.

When the relevant charges were dropped, the plaintiff was still in jail because

of the unrelated offense. Id. The Third Circuit thus concluded that the

plaintiff’s liberty was not denied as a consequence of the alleged improper

charges. Id. Any possible deprivation was entirely subsumed by the sentence

the plaintiff was already serving.

While the Newark Defendants may well be correct that Roberts was

seized and taken into custody on the theft charges before he could be

apprehended on the Atwell charges, the facts here are distinguishable from

Curry because the theft sentence expired while Roberts was in custody, so the

remainder of the time he served was pursuant to the kidnapping conviction

alone. Roberts was arrested on the theft charges, pled guilty to those charges

on June 12, 1996, and was sentenced to three years’ imprisonment. (Newark

St. ¶ 42) While still incarcerated, he pled guilty to the Atwell kidnapping and

was sentenced to seven years’ imprisonment. The two sentences ran

concurrently, but the kidnapping sentence was far longer than the theft

sentence; the sentence on the theft charges expired while the seven-year

kidnapping sentence still had four years left to run.7 (Id.) Unlike the plaintiff in

Curry, then, Roberts was sentenced to serve four additional years in custody

solely as a consequence of the charges alleged to have been maliciously

brought. And thereafter, he spent 10 years in civil confinement as a sexually

violent predator, based solely on the Atwell conviction.

In sum, while the Newark Defendants are correct that part of the time

Roberts spent in custody—roughly, the initial three years—was not solely due

to the Atwell charges, that does not defeat Roberts’s § 1983 malicious

prosecution claim. I will therefore deny the motion for summary judgment with

respect to Counts 1 and 8.

B. Fabrication of evidence

The Newark Defendants also move for summary judgment on Roberts’s

fabrication-of-evidence claims against Det. Eutsey, asserted in Counts 2 and

10 under § 1983 and state law. The Third Circuit has held that a police officer

may be liable for fabrication where the officer provides false or misleading

7 For simplicity, I ignore the effect of parole.

information that is thereafter used in a prosecution. See Halsey v. Pfeiffer, 750

F.3d 273, 294 (3d Cir. 2014). New Jersey courts have also recognized that the

use of fabricated evidence to secure a conviction violates state due process

protections. See State v. Patton, 362 N.J. Super. 16, 18 (2003). (For a fuller

discussion, see Part V.A, infra.)

Roberts’s fabrication claim is based on essentially the same conduct as

the malicious prosecution claims: Eutsey’s allegedly false statement in his

1996 report that Atwell identified Roberts as her assailant. The Newark

Defendants here repeat their contention that there is no evidence showing that

Eutsey fabricated Atwell’s 1996 photo identification. (Newark MSJ 9-14.) I have

already found that this contention presents issues of fact that bar summary

judgment.

I therefore turn to the Newark Defendants’ second contention, which is

that Roberts is estopped from claiming that the identification was fabricated.

The defendants maintain that Roberts made a fabrication claim in his PCR

proceedings and that Judge Codey rejected it. According to the Newark

Defendants, Roberts is collaterally estopped from relitigating that factual issue.

(Id. 23-25.)

Under the doctrine of collateral estoppel, “once an issue is actually and

necessarily determined by a court of competent jurisdiction, that determination

is conclusive in subsequent suits based on a different cause of action involving

a party to the prior litigation.” Montana v. United States, 440 U.S. 147, 153

(1979). Federal law requires that a federal court give state court decisions the

same preclusive effect they would be given in courts of the state that rendered

the decision. Delaware River Port Auth. v. Fraternal Ord. of Police, 290 F.3d 567,

573 (3d Cir. 2002). Hence, it is New Jersey’s collateral estoppel doctrine that

governs the analysis here.

“New Jersey courts apply a five-pronged test to determine whether

collateral estoppel should bar relitigation of an issue: (1) the issue must be

identical; (2) the issue must have actually been litigated in a prior proceeding;

(3) the prior court must have issued a final judgment on the merits; (4) the

determination of the issue must have been essential to the prior judgment; and

(5) the party against whom collateral estoppel is asserted must have been a

party or in privity with a party to the earlier proceeding.” Delaware River, 290

F.3d at 573 (citing In re Estate of Dawson, 641 A.2d 1026, 1034–35 (N.J.

1994)). “For purposes of issue preclusion ..., ‘final judgment’ includes any prior

adjudication of an issue in another action that is determined to be sufficiently

firm to be accorded conclusive effect.” Woodrick v. Jack J. Burke Real Est., Inc.,

703 A.2d 306, 316 (App. Div. 1997) (quoting Restatement (Second) of

Judgements § 13 (1982)).

Although Judge Codey found in his 2007 decision that Atwell’s

September 2005 statement was “inherently suspect and untrustworthy,” the

Appellate Division reversed Judge Codey’s decision on grounds that are

pertinent here. The Appellate Division held that Judge Codey committed error

by making credibility findings as to Atwell’s statement based upon papers

alone, rather than conducting a plenary hearing. (2009 App. Div. at 9-16.) It

therefore vacated and remanded the case, instructing Judge Codey to conduct

an evidentiary hearing consistent with its opinion.

Judge Codey conducted such a hearing in 2009 and issued a decision in

2010 which again denied Roberts’s PCR motion. (2013 App. Div. at 11.) In this

written decision, Judge Codey again found Atwell’s 2005 statement to be false.

(Id.) Again, however, the Appellate Division reversed; it held that counsel had

been ineffective, which led to several deficiencies at the hearing, and in light of

these deficiencies, it could not defer to Judge Codey’s credibility findings. (Id.)

Accordingly, Judge Codey’s determination of the fabrication issue in both

the 2007 and 2010 decisions was rendered non-final by the Appellate Division

reversals. See McLendon v. Cont'l Grp., Inc., 660 F. Supp. 1553, 1562 (D.N.J.

1987) (noting that where an appellate court reverses a lower court, the

appellate decision “is the operative ‘judgment’ for preclusion purposes”).

Because the resolution of this factual issue was neither final nor essential to a

final judgment, Roberts is not estopped from litigating this issue here.

C. Mishandling of exculpatory evidence (photo)

The Newark Defendants next argue that they are entitled to summary

judgment on Roberts’s § 1983 and state law claims against Det. Eutsey, to the

extent they are based on the failure to preserve the photo of Roberts that was

allegedly shown to Atwell when she made her photo identification in 1996.

Roberts asserts that the photograph was taken 10 years before that, when he

was 19 years old, and that it therefore did not accurately reflect his appearance

at the time of the Atwell rape/kidnapping, when he was 29. According to

Roberts, if Atwell did identify her assailant from the photograph, and if the

photograph did not resemble Roberts’s current appearance, it could have been

used to undermine the photo identification and thereby exonerate him.

However, the photograph could not be located, despite substantial efforts

during the course of Roberts’s post-conviction proceedings (Newark St. ¶79)

Roberts’s claims relating to Eutsey’s handling of the missing photo

underly Counts 3, 12, 4, and 11. The summary judgment motion argues these

matters in connection with Counts 3 and 12, without reference to Counts 4

and 11. Roberts responds that Counts 3 and 12 are withdrawn as against

Eutsey, but says nothing about Counts 4 and 11. (Opp. to Newark MSJ 1.) His

brief refers to the missing photo in connection with other claims, but does not

appear to argue failure to preserve the photo as a distinct claim for relief. This

makes a certain amount of sense, as Roberts’s main contention is that the

Atwell photo identification of him never occurred at all.8 To remove doubt,

however, I briefly discuss Det. Eutsey’s alleged failure to preserve the

photograph of Roberts that Atwell purportedly identified in 1996. (DE 96

¶¶186-189.)

The Supreme Court’s decision in Arizona v. Youngblood establishes the

8 Defendants also purport to move for summary judgment on Count 13

(negligence), but the allegations of that Count relate only to the DNA evidence. The

opening brief contains no substantive discussion of Count 13, although the

responding brief does. I do not address it.

standard for determining whether law enforcement officials have infringed a

defendant’s due process rights by failing to preserve evidentiary materials that

might have exonerated the defendant. 488 U.S. 51. “The Youngblood Court held

that ‘unless a criminal defendant can show bad faith on the part of the police,

failure to preserve potentially useful evidence does not constitute a denial of

due process of law.’” Yarris v. County of Delaware, 465 F.3d 129, 142 (3d Cir.

2006) (quoting Youngblood, supra at 58). To establish bad faith, the defendant

must show that the police knew of the exculpatory value of the evidence at the

time it was destroyed. Id.

In Yarris, the Third Circuit extended Youngblood, a pre-conviction case,

to encompass post-conviction failures to preserve exculpatory evidence. Id. The

Court of Appeals reasoned that “the Youngblood decision did not indicate that

it was limited to its temporal context, as it sought to govern applicability of the

Due Process Clause in ‘what might loosely be called the area of constitutionally

guaranteed access to evidence’ and resolve the violation it described broadly as

‘the failure of the State to preserve evidentiary material.’” Id. Accordingly, the

Youngblood test could apply to Eutsey’s alleged failure to preserve the

photograph. Whether it occurred before or after Roberts’s conviction, it

allegedly had the effect of obstructing Roberts’s quest for post-conviction relief.

Eutsey argues that Roberts cannot succeed on a due process

mishandling-of-evidence claim for several reasons. While rejecting two

threshold contentions,9 I find that Eutsey’s substantive position has merit.

9 First, Eutsey contends that because Roberts had no trial, he cannot have any

claim based on non-preservation of evidence. (Newark MSJ 27.) Nothing in the

Youngblood decision so holds. Roberts’s claim is not that he was denied a fair trial;

rather, his claim is that he was denied the ability to use the potentially exculpatory

photograph in his post-conviction proceedings.

Second, Eutsey argues that Roberts is estopped from bringing this claim

because he “could have raised the issue of suggestiveness [of the photograph] during

his post-conviction relief proceedings,” but failed to do so. (Newark MSJ 28.) The point

of Roberts’s claim, though, is that without the photograph, he could not make out a

claim of “suggestiveness” (or the contrary) and thus exonerate himself. I therefore

reject Eutsey’s estoppel argument.

Primarily, Eutsey argues that there is no evidence that he was culpably

involved in the disappearance of the photograph. According to the defendants,

Eutsey submitted the photograph to the Newark police property room in 1996

and had no access to the photograph thereafter. (Newark MSJ 28.) Roberts

demurs; Eutsey, he says, never actually submitted the photograph to the

property room in the first place. (Resp. to Newark St. ¶26.) But Roberts has

failed to point to any evidence sufficient to raise a jury issue on this factual

point. There is no deposition testimony or affidavit regarding the manner in

which the evidence was mislaid. The Newark Defendants have produced a

“Property and Evidence Receipt” (the “Receipt”), regular on its face, indicating

that it was attached to a sealed envelope containing the photograph and that

the photograph was logged in. Roberts notes that the Receipt mistakenly states

that the photograph is of a male identified as the perpetrator of an assault

upon a 15-year-old female, whereas Atwell was 17 years old at the time. (Resp.

to Newark St. ¶26.) That mistake, according to Roberts, suggests that no one

took care to ensure that the photograph was actually logged in. I conclude that

a mistake on the Receipt regarding the age of the victim is too slim a basis for a

jury finding that Eutsey, in bad faith, withheld or destroyed the photo.

Finally, there is no independent evidence that the photo could or would

have been exculpatory. Atwell’s photo identification would be undermined only

if there was a showing that the photo did not reasonably reflect Roberts’s

appearance in 1996. Of course that is conceivable. But there was no

evidentiary showing that his appearance had changed so substantially between

the ages of 19 and 29 as to undermine the accuracy of the photo identification,

assuming it occurred.

As I say, it appears that Roberts is not pressing these claims. I consider

these arguments in an excess of caution, however, and grant summary

judgment on Counts 4 and 11, but only insofar as they assert Youngblood-style

federal or state law claims against Eutsey (or, derivatively, against the City of

Newark) based on the failure to preserve the photos. I note that Counts 3 and

12 have been withdrawn by Roberts as against Eutsey.

D. Qualified immunity

As a separate ground for summary judgment, the Newark Defendants

argue that Eutsey is entitled to qualified immunity on all of the federal and

state law claims raised against him. (Newark MSJ 28-31.)

I begin with immunity under § 1983. “To overcome qualified immunity, a

plaintiff must plead facts sufficient to show that: (1) the official violated a

statutory or constitutional right; and (2) the right at issue was ‘clearly

established’ at the time of defendant's alleged misconduct.” Faragalla v. Jersey

City, No. 2:17-CV-03604-KM-MAH, 2020 WL 5812798, at *7 (D.N.J. Sept. 30,

2020) (citation omitted). Having already determined that there is sufficient

evidence for a reasonable jury to find that Eutsey committed the constitutional

violations of fabricating evidence or maliciously prosecuting Roberts, I consider

only whether these rights were “clearly established” at the time Eutsey acted.

“A Government official's conduct violates clearly established law when, at the

time of the challenged conduct, ‘[t]he contours of [a] right [are] sufficiently

clear’ that every ‘reasonable official would [have understood] that what he is

doing violates that right.’” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)

(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). While a case directly

on point is not required, “existing precedent must have placed the statutory or

constitutional question beyond debate.” Ashcroft, supra.

Beginning with fabrication of evidence, the Third Circuit held in 1985

that “any reasonable state actor” would know that “by fabricating evidence for

use in a criminal prosecution, [the] state actor would violate a defendant’s

constitutional rights . . . .” Halsey, 750 F.3d at 295. Thus, as early as 1985,

and certainly in 1996 when Eutsey applied for a warrant based on the allegedly

fabricated identification of Roberts by Atwell, the right to be free from a

prosecution based on fabricated evidence was “clearly established.”

As for malicious prosecution, in Gallo v. City of Philadelphia, the Third

Circuit held that government actors were not immune from malicious

prosecution claims based on conduct that occurred in 1994. 161 F.3d 217, 220

(3d Cir. 1998), as amended (Dec. 7, 1998). The Gallo decision noted that

malicious prosecution had been recognized as a constitutional tort before1994.

Id. It follows that the federal constitutional right to be free from a malicious

prosecution was “clearly established” in 1996, when the events in this action

occurred. Eutsey therefore does not enjoy qualified immunity with respect to

the § 1983 constitutional claims.

As to the state law claims, the New Jersey Tort Claims Act (TCA)

immunizes public employees from liability for actions taken “in good faith in

the execution or enforcement of any law.” See N.J. Stat. Ann. 59:3-3. In order

to benefit from this immunity, “a public employee must demonstrate either that

he acted with objective reasonableness or establish that he acted with

subjective good faith.” Villari v. Twp. of Wall, No. CIV. A. 06-0004 FLW, 2009

WL 2998135, at *14 (D.N.J. Sept. 15, 2009). See Marley v. Borough of Palmyra,

473 A.2d 554, 566 (Law. Div. 1983) (“[a]n employee claiming immunity under

N.J.S.A. 59:3–3 must prove “good faith”) (abrogated on other grounds). The

Newark Defendants have not met this burden, and they incorrectly argue in

their brief that it is Roberts’s burden to prove that Eutsey did not act in good

faith. (Newark MSJ 31.) Eutsey is therefore not entitled to summary judgment

on the state law claims on grounds of qualified immunity either.

E. Monell claims against City of Newark

i. Procedural due process

Count 5 asserts a claim against the City of Newark for violating Roberts’s

procedural due process rights by maintaining an inadequate evidence

management system that prevented Roberts from accessing key components of

the Atwell rape kit for many years. (Compl. ¶¶191-194.) This claim is raised

pursuant to Monell v. Dep’t of Soc. Servs. of City of New York, in which the

Supreme Court held that a municipality may be held directly liable under

§ 1983 for a constitutional injury caused by an official policy or custom of the

municipality. 436 U.S. 658, 694 (1978). The Newark Defendants argue that

Roberts cannot succeed in proving Monell liability because there is no evidence

of a pattern of evidence mismanagement within the Newark Police Department.

(Newark MSJ 38.) They also argue that the claim fails because there is no

evidence of bad faith conduct and they are entitled to qualified immunity under

§ 1983.

As stated, Monell liability may attach on the basis of an official policy or

custom. As to policy, a municipality is liable where “the action that is alleged to

be unconstitutional implements or executes a policy statement, ordinance,

regulation, or decision officially adopted and promulgated by that body's

officers.” Monell, 436 U.S. at 690. “As to custom, municipalities may be sued

for ‘constitutional deprivations visited pursuant to governmental ‘custom’ even

though such a custom has not received formal approval through the body's

official decision[-]making channels.’” Costantino v. City of Atl. City, 152 F.

Supp. 3d 311, 319 (D.N.J. 2015) (quoting Monell, supra). “Liability based on a

custom rather than a formal adopted policy proceeds on the theory that the

relevant practice is so widespread as to have the force of law.” Costantino,

supra.

The record suggests that during the time the Atwell rape kit was tested,

the Newark Lab maintained an internal policy and practice of removing

materials that tested positive for bodily fluid stains and storing them separately

from the rest of the kit. Joseph Groller, the forensic chemist who examined the

Atwell rape kit in 1996, testified at his deposition in 2019 about this practice.

(Groller Dep. 154:9-159:3). He explained that when he tested an item from a

sex crimes kit and received a “positive result,” he would withdraw it from the

kit, repackage it in a smaller envelope, and place that envelope in one of the

refrigerators in the lab. (Id.) Groller stated that he did this “generally for all the

rape kits that [he] tested” (id.), and that he was advised to do this by his

superiors. (Id. at 190:1-16.) Groller further explained that after a kit was

analyzed, and the positive material, if any, was removed and placed in a

refrigerator, the remainder of the kit was picked up from the lab by Newark

police personnel and stored in a separate location. (Id. at 95:9-96:16.)

The record further suggests that officials outside of the Newark Lab were

not made aware of this practice of storing material that tested positive for

bodily fluid separately from the rest of the rape kit. Rodriguez, who was

supervisor of the ECPO Sex Crimes Unit at one point and regularly

communicated with detectives of the Newark Police Department regarding

locating evidence, testified that prior to 2013, even she never knew that the Lab

kept this material separate from the rape kits it tested. (Rod. Dep. II 316:13-

317:24.) There is also evidence that Laurino was made aware in 2005 that the

Atwell rape kit submitted to the State Lab was missing the vaginal swabs, and

that Laurino communicated with Newark police about the missing swabs,

which nevertheless were not located at that time. The State Lab communication

log indicates that Laurino told a State Lab employee that he would “look into”

the missing swabs and get back to him. (Newark St. ¶122.) Several weeks later,

Laurino told the employee that “everything that Newark P.D. had was sent to

the lab.” (Newark St. ¶124.) One could reasonably infer from these

communications that Laurino and perhaps even the Newark police to whom he

spoke were unaware that the positive-test materials were stored separately.

Based on this evidence, a reasonable jury could find that a practice

existed in the Newark Police Department of storing positive-test swabs from a

rape kit in a separate location from the rest of the kit, but without making that

policy generally known, defeating much of its purpose. Moreover, a jury could

conclude that this flawed policy obstructed Roberts’s access to exculpatory DNA

evidence, thus amounting to a procedural due process violation. See Newton v.

City of New York, 779 F.3d 140, 155 (2d Cir. 2015) (city’s poor administration

of its evidence management system amounted to due process violation where it

prevented plaintiff from accessing exculpatory DNA evidence for over a decade).

See Part V.B, infra (concluding that Roberts had a protected liberty interest in

demonstrating his innocence with newly discovered evidence).

The Newark Defendants cite the Third Circuit’s decision in Yarris in

support of their argument that unless a criminal defendant can show bad faith

on the part of the police, failure to preserve potentially useful evidence does not

constitute a denial of due process. (Newark MSJ 34.) Roberts’s procedural due

process claim is not based on the failure to preserve the Atwell rape kit,

however. The critical component of the rape kit was preserved, but it was

stored in such a manner that it could not be located for many years. A failure-

to-preserve claim under Youngblood requires a showing of bad faith, but a

procedural due process claim based on evidence mismanagement does not. As

the Second Circuit recognized in Newton, the concerns that led the Supreme

Court to require a bad faith showing with respect to claims based on the failure

to preserve potentially exculpatory evidence, now irretrievably destroyed, are

not present when it comes to a claim that an inadequate evidence management

system deprived an individual of access to existing evidence that eventually

exonerated him. Newton 779 F.3d at 157-158. Any reasonable system for

“preserving” evidence must be set up so that the preserved evidence can be

located and recovered.

Finally, the City of Newark is not entitled to qualified immunity with

respect to the procedural due process claim, as qualified immunity under

§ 1983 is available only to individual government actors, not to government

entities. Harper v. Cnty. of Delaware, 779 F. App'x 143, 147 (3d Cir. 2019). I

will therefore deny the motion for summary judgment on Count 5 as to the City

of Newark.10

ii. Vicarious tort liability

Count 14 alleges a state law vicarious liability claim against the City of

Newark for any non-intentional torts committed by Eutsey and the Newark

Police Department personnel who handled Roberts’s criminal file and the rape

10 The Newark Defendants have attached to their reply brief a set of guidelines

from the Attorney General on the retention of evidence in criminal cases that was

published in 2010. From this, they infer that there was no requirement that the City

preserve the DNA evidence in the Atwell case prior to 2010. (Newark Repl. 28-29.) In

response, Roberts submitted a letter to the court indicating that the guidelines were

not produced in discovery, despite Roberts’s request for all documents pertaining to

the handling and storing of sex crimes evidence. I will not consider on this motion

evidence not produced in discovery and attached to a reply brief. Its potential

admissibility at trial I leave for another day.

kit. (Compl. ¶¶245-247.)11 The Newark Defendants move for summary

judgment on this count on the ground that the City is entitled to good faith

immunity under the TCA.

Pursuant to the TCA, “[a] public entity is not liable for an injury resulting

from an act or omission of a public employee where the employee is not liable.”

N.J. Stat. Ann. § 59:2-2(b). As noted above, the TCA grants immunity to a

public employee for actions taken “in good faith in the execution or

enforcement of any law.” See N.J. Stat. Ann. 59:3-3.

Here, the Newark Defendants have not demonstrated that Eutsey or any

other Newark personnel upon whose conduct the vicarious liability claim rests

are themselves entitled to good faith immunity. Because the burden is theirs to

establish such an entitlement, this argument fails. See Part IV.D, supra.

V. Discussion: ECPO Defendants and Essex County

I discuss here the motions relating to the acts of the ECPO Defendants,

i.e., the summary judgment motions of Assistant Prosecutor Laurino and

Investigator Bolan, as well as the related motions of Essex County and ECPO,

which are directed at their derivative liability for the acts of Laurino and Bolan.

A. Fabrication of evidence

The ECPO Defendants move for summary judgment on Counts 2 and 10,

which assert claims of fabrication of evidence under 42 U.S.C. § 1983 and state

law against Laurino and Bolan. As discussed in Part IV.b, supra, both the

Third Circuit and New Jersey courts have recognized that a defendant may

have a stand-alone due process claim where fabricated evidence was used to

secure the defendant’s conviction. See Halsey, 750 F.3d at 294; Patton, 362

N.J. at 18.

The Third Circuit has cautioned that, under federal law, evidence “that is

11 While the City of Newark argues that it is entitled to immunity from vicarious

liability as to any intentional tort claims under state law, the point is moot. Roberts

clarified in his responsive brief that he is not asserting such intentional tort claims

against the City. (Opp. to Newark MSJ 70, n.27.)

incorrect or simply disputed should not be treated as fabricated merely

because it turns out to have been wrong.” Halsey, 750 F.3d at 295. Rather, for

a fabricated-evidence claim to succeed, “[t]here must be ‘persuasive evidence

supporting a conclusion that the proponents of the evidence’ are aware that the

evidence is incorrect or that the evidence is offered in bad faith.” Black v.

Montgomery Cnty., 835 F.3d 358, 372 (3d Cir. 2016), as amended (Sept. 16,

2016) (quoting Halsey, supra). New Jersey courts have not indicated that any

less culpable mental state will support a fabrication of evidence claim under

New Jersey law. See Patton, 362 N.J. at 49 (holding that “the use of police-

fabricated evidence to induce a confession that is then used at trial to support

the voluntariness of a confession is per se a violation of due process”).

The complaint alleges that Laurino and Bolan falsified evidence against

Roberts by telling Assistant Prosecutor Rodriguez that Atwell’s complete rape

kit was tested in 2005 and that the results of the testing were inconclusive.

(Compl. ¶ 168.) According to Roberts, Rodriguez relied upon these

misrepresentations when she prosecuted the PCR proceedings in 2007. (Opp.

to ECPO MSJ 9, 12.) Rodriguez wrote in her 2007 PCR brief that Atwell’s DNA

sample was sent to the State Lab, and that the lab also tested the Atwell rape

kit, but the analysis did not provide conclusive results (Rod. PCR Br. 3, 12).

These statements were literally true, but substantively misleading. The kit that

was tested was missing the vaginal swab tips, i.e., the very portions which

would contain the seminal stains and thus the male assailant’s DNA.12

The ECPO Defendants argue that summary judgment is appropriate on

the fabrication claims as to them. Even assuming arguendo that misconduct

occurred at the police level, they say, the record is devoid of any evidence that

either Laurino or Bolan misrepresented to Rodriguez that the rape kit tested in

12 Roberts maintains that these statements were also false because Atwell’s own

buccal swab had not been submitted to the State Lab, so there was no way to confirm

that female DNA in the rape kit was hers. The whole premise of Roberts’s motion,

however, is that the Atwell rape kit did not contain his DNA, which is not disputed at

this point. To find that this was not Atwell’s rape kit would only undermine Roberts’s

contentions.

2005 was complete. (ECPO MSJ 19-20.) Roberts argues in response that there

is sufficient evidence for a jury to find that both Laurino and Bolan spoke with

Rodriguez about Atwell’s rape kit at some point prior to the 2007 PCR

proceedings, and that neither informed Rodriguez that portions of the rape kit

were not submitted for testing.

To begin with, the record is clear that Rodriguez was in the dark about

the fact that portions of the rape kit were missing from the sample that was

tested by the State Lab in 2005. Rodriguez testified at a 2019 deposition that

she did not know in 2007 that the vaginal swab tips were stored separately

from the rest of the kit. (Rod. Dep. 117:2-118:2.) Rather, at that time she

believed that the entire kit was tested and that the inconclusive results were

due to the fact that the material had degraded. (Rod. Dep. 123:13-124:25.)

Rodriguez further testified that she never knowingly misrepresented any facts

to Judge Codey in 2007. (Rod. Dep. 67:14-17.) The question thus becomes

whether Rodriguez’s misrepresentations regarding what was tested can be

attributed to knowingly false statements or omissions by Bolan or Laurino.

As for Bolan, Rodriguez testified that, although she does not recall

having a conversation with Bolan about Atwell’s rape kit, she would have

spoken to Bolan “[i]f she was part of this case.” (Rod. Dep. 95:10-11.).

Rodriguez testified that she does recall speaking with Bolan about a request

Atwell made for a paternity test in 2005, and the evidence suggests that this

request occurred at the time when Bolan met with Atwell to collect a buccal

swab from her. (Id. at 95:16-23; ECPO St. ¶35.) Bolan testified at her

deposition, however, that she does not believe she ever told Rodriguez that the

buccal samples she had collected from Atwell were not submitted to the State

Lab for testing in 2005. (Bolan Dep. 130:15-19). As to the more critical issue of

the missing swab tips, there is nothing in the record of the interactions

between Bolan and Rodriguez.

With respect to Laurino, there is a bit more. Both Laurino and Rodriguez

testified at their depositions that they spoke frequently with one another about

DNA cases. Rodriguez testified that given their working relationship she “must

have spoken with [Laurino] at some point” about the Roberts matter. (Rod.

Dep. 123:6-9, 127:1-3; Laur. Dep. 99:4-12). Rodriguez did not recall Laurino

ever telling her that the rape kit submitted for testing was not complete. She

also did not recall Laurino ever relaying to her that the State Lab had reached

out to him regarding the completeness, or not, of the materials it had received.

(Rod. Dep. 131:18-25, 132:18-22, 133:11-15.)

Viewing this evidence in the light most favorable to Roberts, a reasonable

jury could find that Laurino and Bolan had conversations of some kind with

Rodriguez about the Roberts matter and the DNA testing that was done.

Absent, however, is any evidence from which a jury could reasonably conclude

that Laurino or Bolan ever told Rodriguez that Atwell’s complete rape kit was

tested, which would have been false.

Perhaps recognizing this, Roberts argues that Laurino and Bolan are

liable for fabrication of evidence based on omissions—i.e., that they failed to tell

Rodriguez that the rape kit that was tested was incomplete.

Roberts cites a string of cases for the proposition that a fabrication-of-

evidence claim can be based upon a government actor’s omission of material

information. (Opp. to ECPO MSJ 5-6.) Several of the cited cases do not stand

for such a proposition, however. In Halsey, police officers fabricated the

plaintiff’s confession to a crime. 750 F.3d 273, 278. The Third Circuit noted

that there were “omission[s] of critical facts” in the purported confession, but

these omissions were relevant only in the sense that they demonstrated that

the confession had been fabricated, because it was ultimately “inconsistent

with . . . significant facts” about the crime that eventually emerged. Id. at 284.

The omissions themselves were not treated as material.

Similarly, in Dennis v. City of Philadelphia, the plaintiff asserted both a

fabrication claim and a deliberate deception claim, and it was only the latter

that was based upon the defendant police officers’ concealment of physical

evidence and failure to correct a witness’s mistaken testimony about that

physical evidence, which in a sense could be considered an omission. 379

F.Supp.3d 420, 425 (E.D. Pa. 2019). The fabrication claim was based upon an

officer’s false testimony at trial, not on that arguable omission. Id. Finally, Siehl

v. City of Johnstown concerned fabricated results in forensic reports with no

omissions of material information alleged. 365 F. Supp. 3d 587, 601-602 (W.D.

Pa. 2019).

Two of the cases Roberts cites do suggest that a fabrication claim can be

based upon a material omission, but the facts in those cases are readily

distinguishable. In Jaslar v. Zavada, police officers “made false statements and

omitted pertinent facts in their probable cause affidavit,” which was the basis

for the arrest and filing of charges against the plaintiff. No. 3:CV-05-2080,

2009 WL 82553, at *1 (M.D. Pa. Jan. 12, 2009). And in Morse v. Fusto, the

defendants created a spreadsheet that misleadingly omitted certain

information, and the spreadsheet was presented to a grand jury and used to

indict the plaintiff. 804 F.3d 538, 542-543 (2d Cir. 2015). In both cases, the

omissions were made in the context of a piece of evidence that, as a whole, was

deemed to be fabricated in part due to the omitted information. That evidence

was presented to a judge or grand jury, and the defendants were unmistakably

the source of it.

Here, by contrast, there is nothing from which a reasonable jury could

conclude that either Laurino or Bolan was the source of the misleading

evidence that Rodriguez presented at the PCR proceedings. At most, the record

generally shows that Rodriguez might have spoken with each of them about the

case at some point. It does not show that Laurino or Bolan participated in the

PCR litigation, even as sources of information, or that that they directly or

indirectly made any representations to the PCR court. Nor is there any evidence

that Rodriguez relied on the accuracy or completeness of her conversations

with Laurino or Bolan in prosecuting the PCR proceedings. Put differently, the

only relevant evidence is that Rodriguez relied on the State Lab report, which

itself did not indicate that there was anything missing from the rape kit. While

Rodriguez mentioned the State Lab report during oral argument on the PCR

petition, it does not appear that she ever referenced her conversations with

Laurino or Bolan. (PCR Tr. at 18:10-19:2.)

To be sure, Roberts has presented a case that Rodriguez’s presentation

in the PCR proceedings was misleading, because she did not disclose that the

rape kit that was tested did not include the critical swab tips. What is lacking

is any evidence that either Laurino or Bolan was responsible for that omission

or fabrication. See generally Whitlock v. Brueggemann, 682 F.3d 567, 580 (7th

Cir. 2012) (liability for fabricating evidence requires that the evidence be “used

to deprive the defendant of her liberty in some way”).

I will therefore grant summary judgment on the fabrication of evidence

claims and dismiss Counts 2 and 10 against Laurino and Bolan.13

B. Procedural due process

The ECPO Defendants also move for summary judgment on Count 5,

which asserts a § 1983 procedural due process claim against Laurino and

Bolan. Unlike the fabrication of evidence claim, which focuses on a

prosecutor’s misrepresentations to the court, this claim focuses on

misrepresentations to the criminal defendant. Under current law, Roberts

might possess such a claim, but Laurino and Bolan are entitled to qualified

immunity because that right was not clearly established as of 2005.

“To state a claim under § 1983 for deprivation of procedural due process

rights, a plaintiff must allege that (1) he was deprived of an individual interest

that is encompassed within the Fourteenth Amendment's protection of ‘life,

liberty, or property,’ and (2) the procedures available to him did not provide

‘due process of law.’” Hill v. Borough of Kutztown, 455 F.3d 225, 233–34 (3d

Cir. 2006) (citing Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000)). Roberts

maintains that Laurino and Bolan deprived him of the process he was due in

his post-conviction proceedings by providing him with inaccurate information

about the materials that were submitted for DNA testing in 2005. (Opp. to

13 In light of this resolution, I need not address the ECPO Defendants’ argument

that they are entitled to absolute prosecutorial immunity with respect to Roberts’s

claim that they fabricated evidence. (ECPO MSJ 20-23.) See generally Yarris, 465 F.3d

at 137 (discussing limitations on scope of prosecutorial immunity for post-conviction

actions).

ECPO MSJ 27).

Beginning with the factual component of this claim, a reasonable jury

could find that Laurino provided Roberts with inaccurate information regarding

the scope of the DNA testing that was performed in 2005. Laurino was

apparently told several times by the State Lab that the vaginal swab tips were

missing from the kit, but Laurino did not share this critical information with

Douard when he informed Douard of the results of the analysis. (ECPO St.

¶ 20-23). Rather, Laurino “forwarded a copy of th[e] report to Douard on

October 6, 2005, stating that the results were ‘inconclusive’ because although

Roberts’s DNA was not on the slides, Roberts ‘could not be ruled out’ because

the materials ‘had degraded.’” (ECPO St. ¶28.)

That Laurino misinformed Roberts about the scope of the testing that

was done in 2005, however, does not necessarily amount to a procedural due

process violation. As stated, procedural due process rights only attach where

there is a constitutionally protected liberty interest and a person is deprived of

that interest. See Hill, 455 F.3d at 233–34. A key issue, then, is whether

Roberts had a protected liberty interest in having the entirety of the Atwell rape

kit tested in 2005. The answer is yes, but the analysis is somewhat complex.

In Dist. Attorney's Off. for Third Jud. Dist. v. Osborne, the Supreme Court

held that there is no freestanding right to obtain post-conviction access to the

state’s evidence for DNA testing. 557 U.S. 52, 55-56 (2009). However, where

state law creates a post-conviction right to access potentially exculpatory DNA

evidence, procedural due process protections do attach, although they are less

extensive than those that attach in the pre-trial context. Id. 68-69. The Court

explained that “when a State chooses to offer help to those seeking relief from

convictions,” due process does not “dictate the exact form such assistance

must assume.” Id. at 69 (quoting Pennsylvania v. Finley, 481 U.S. 551, 559

(1987). “The State accordingly has more flexibility in deciding what procedures

are needed in the context of postconviction relief.” Osborne, supra at 69. Given

this flexibility, due process is violated only where the state’s procedures for

post-conviction relief “are fundamentally inadequate to vindicate the

substantive rights provided.” Id.

Roberts cites to two cases in support of his procedural due process claim

under Osborne. In Newton, the Second Circuit upheld a jury verdict that New

York City’s inadequate evidence management system violated the plaintiff’s

right to due process in his post-conviction proceedings. 779 F.3d at 142. The

plaintiff, who was convicted of rape and other crimes, requested DNA testing

under New York’s then-newly enacted statute permitting post-conviction DNA

testing. The plaintiff was told that the rape kit in his case could not be located

and was likely destroyed. A decade later, the rape kit was found and tested,

and the plaintiff was exonerated. Id. at 144-145. The Second Circuit concluded

that the plaintiff’s statutory right to obtain post-conviction DNA testing created

a corresponding procedural right to a “a faithful accounting of the evidence in

the City’s possession.” Id. at 151. The Court deemed it reasonable for a jury to

conclude that the inadequacy of the City’s evidence-management system

deprived the plaintiff of procedural due process.

Similarly, the Eastern District of North Carolina denied the City of

Goldsboro’s motion to dismiss a complaint alleging a procedural due process

claim based upon its police department’s evidence retention policies which

delayed the plaintiff’s exoneration. See Dail v. City of Goldsboro, No. 5:10-CV-

00451-BO, 2011 WL 2837067, at *6 (E.D.N.C. July 14, 2011). In Dail, the

plaintiff was also told upon seeking post-conviction DNA testing that the rape

kit taken from the victim had been destroyed. Id. at 2. Over a decade later, the

evidence from the case was found and tested, which led to his release from

custody. Id.

Although the facts in Newton and Dail are similar to the facts here, there

is a difference: the plaintiffs in those cases were serving terms of imprisonment

when they sought DNA testing under their respective states’ post-conviction

relief statutes. Roberts, on the other hand, had finished serving his sentence by

the time he sought DNA testing. (Comm. Order 2) Douard requested DNA

testing on Roberts’s behalf to use in opposing the civil commitment petition

filed against Roberts (ECPO St. ¶¶7-10), and Roberts later pursued post-

conviction relief for the purpose of securing his release from civil confinement

as a sexually violent predator.

This distinction makes a difference, because although New Jersey law

permits a person to seek post-conviction DNA testing, in 2005 that right was

only available to an individual “who was convicted of a crime and is currently

serving a term of imprisonment.” N.J. Stat. § 2A:84A-32a (2001).14 Roberts

himself appears to recognize that this statute did not apply to him when he

sought DNA testing in 2005, as he states in one of his opposition briefs that

“Laurino voluntarily agreed to assist” in obtaining a DNA comparison and was

not complying with or enforcing any law in doing so. (DE 222 11, 15.)

Nonetheless, under current law, Roberts could have a viable procedural

due process claim based on this record. In Osborne, the Supreme Court held in

2009 that the defendant had a protected liberty interest in accessing the State

of Alaska’s evidence for DNA testing despite the fact that Alaska did not have a

statute authorizing post-conviction DNA analysis at the time. 557 U.S. at 64.

The Court concluded that a liberty interest existed because Alaska (a) had a

general post-conviction relief statute that allowed a prisoner to challenge his or

her conviction on the basis of newly discovered evidence, and (b) permitted

discovery in post-conviction proceedings to access evidence in the state’s

possession. Id.

Under Osborne, Roberts would have a protected liberty interest in

accessing the Atwell rape kit for DNA testing, even if New Jersey’s DNA testing

statute did not explicitly grant such a right. Like Alaska, New Jersey has (and

had in 2005) a procedure permitting criminal defendants to seek post-

conviction relief. See N.J. Ct. R. 3:22-2. Moreover, New Jersey law permits a

14 The statute has since been amended to permit an individual who was convicted

of a crime and “has completed serving the sentence for that conviction” to seek DNA

testing of evidence upon a showing of “just cause.” N.J. Rev. Stat. § 2A:84A-32a

(2016).

convicted person to seek a new trial on the basis of newly discovered evidence

“at any time.” See N.J. Ct. R. 3:20-2. A new trial motion will be granted if it can

be shown that the evidence is material, would have been likely to change the

jury’s verdict, and was not previously available. State v. Behn, 868 A.2d 329,

342 (App. Div. 2005).

While there was no freestanding right to discovery in post-conviction

proceedings in New Jersey, the trial court has and had inherent power to order

discovery in such proceedings “when justice so requires.” State v. Szemple, 247

N.J. 82, 97 (2021) (citation omitted). The New Jersey Supreme Court held long

ago that “where a defendant presents the PCR court with good cause to order

the State to supply the defendant with discovery that is relevant to the

defendant’s case and not privileged, the court has the discretionary authority

to grant relief.” State v. Marshall, 148 N.J. 89, 270 (1997).

By creating a procedure for post-conviction relief and authorizing

discovery in post-conviction procedures upon a showing of good cause, New

Jersey chose “to offer help to those seeking relief from convictions,” and not

just those who were currently serving a term of imprisonment. Id. at 69. Thus,

in 2005, Roberts had a substantive right to challenge the validity of his

conviction with DNA evidence, and he was entitled to adequate procedures in

order to vindicate this right. Id. By analogy to Newton, that right carried with it

a corresponding procedural right to a “a faithful accounting of the evidence in

the City’s possession.” 779 F.3d at 151 (emphasis added). And it is fair to read

“faithful” to mean “accurate.”15

The ECPO Defendants argue that even if the evidence does support a

procedural due process claim against Laurino, Laurino is entitled to qualified

immunity. (ECPO MSJ 24.) As discussed more thoroughly in Part.IV.d, supra,

“[t]he doctrine of qualified immunity protects government officials ‘from liability

15 Further tipping the balance as to what process is due was Roberts’s

confinement as a sexually violent predator. While no longer literally serving a criminal

sentence, he was behind bars as a result of this conviction, and he can perhaps be

forgiven for failing to appreciate the distinction.

for civil damages insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person would have

known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982)).

Osborne, the Supreme Court case establishing that federal due process

protections accompany a state-created right to post-conviction DNA testing,

was decided in 2009. The alleged due process violations in this case occurred

in 2005. Hence, while Roberts had a right under New Jersey law to post-

conviction DNA testing in 2005, his corresponding federal procedural due

process rights were not yet “clearly established.”

Qualified immunity protects Laurino under these circumstances. See

Dail, 2011 WL 283706 at *7 (qualified immunity shielded government

defendants from procedural due process claim under Osborne because Osborne

was decided after the alleged unconstitutional conduct occurred). Accordingly, I

will grant summary judgment on the procedural due process claim and dismiss

Count 5 against Laurino and Bolan.

C. Supervisory liability

Count 7 alleges that Laurino is vicariously liable for the constitutional

violations of his subordinate, Bolan. Because I am granting summary judgment

as to Bolan on both of Roberts’s constitutional claims against her, see Parts

V.A and V.B, supra, I will also grant summary judgment to Laurino on the

derivative claim against him for supervisory liability.

D. Negligence

Count 13 raises a state law negligence claim against Laurino and Bolan

based on the same conduct as the procedural due process claim. The ECPO

Defendants move for summary judgment on this claim as well.

To sustain a cause of action for negligence, a plaintiff must prove four

elements: (1) a duty of care, (2) a breach of that duty, (3) proximate cause, and

(4) damages. Polzo v. Cnty. of Essex, 196 N.J. 569, 584 (2008). The ECPO

Defendants argue that Roberts’s negligence claim fails because neither Laurino

nor Bolan breached a legal duty to Roberts by not ensuring that all

components of the Atwell rape kit were received by the State Lab and tested.

(ECPO MSJ 29.)

Whether and to what extent a defendant owes a legal duty are generally

questions of law for the court. Clohesy v. Food Circus Supermarkets, Inc., 149

N.J. 496, 502 (1997) (citations omitted). Because “[d]uty is a fluid concept,”

there is no exact rule that determines when one owes a legal duty to another to

prevent harm. § 11:3. Duty of care, 56 N.J. Prac., Personal Injury Law § 11:3

(2022-2023 ed.), quoting Tighe v. Peterson, 356 N.J. Super. 322, 330 (App. Div.

2002), judgment aff'd, 175 N.J. 240, 814 A.2d 1066 (2002). The foreseeability

of harm is a significant consideration, but it does not establish the existence of

a duty in itself. Carvalho v. Toll Bros. & Devs., 143 N.J. 565, 572 (1996). “Once

the foreseeability of an injured party is established, considerations of fairness

and policy govern whether the imposition of a duty is warranted.” Id. at 573

(citation omitted). “The assessment of fairness and policy ‘involves identifying,

weighing, and balancing several factors—the relationship of the parties, the

nature of the attendant risk, the opportunity and ability to exercise care, and

the public interest in the proposed solution.’” Id., quoting Hopkins v. Fox &

Lazo Realtors, 132 N.J. 426, 439 (1993).

Considerations of foreseeability, fairness, and public policy counsel that

Laurino did owe a duty to Roberts to accurately represent the scope of the DNA

testing that was performed in 2005. Although, as stated, Laurino had no

statutorily imposed obligation to locate the Atwell rape kit for Roberts and

submit it for testing, he agreed to do so, and he created the appearance that he

had done so. He testified to speaking with Douard about the DNA testing that

Roberts was requesting and to informing Douard of the inconclusive results of

the State Lab’s analysis. (Laur. Dep. 146:10-12, 233:22-235:2). The evidence

suggests, however, that Laurino never told Douard that the Lab reached out to

Laurino several times to say that components of the rape kit were missing and

thus could not be tested. Instead, Laurino represented to Douard that the

requested DNA analysis had been completed.

The harm that Roberts would suffer from Laurino’s misrepresentation

was foreseeable. Laurino testified that he knew Roberts was facing civil

commitment and understood that Roberts was contesting his involvement in

the Atwell rape in order to demonstrate that civil commitment was not

warranted. Having agreed to help Roberts obtain the DNA testing he sought,

and later having represented to Roberts that the requested testing was

completed and the materials had degraded, rendering the results inconclusive,

Laurino could have foreseen that Roberts would rely on this representation and

no longer pursue DNA analysis as a means to exonerate himself.

Fairness and public policy similarly weigh in favor of finding a duty

under the circumstances. As a government actor, Laurino was in a position of

trust and authority. He was the “go-to guy” at the Essex County Prosecutor’s

Office regarding DNA analysis, such that it was reasonable for Douard and

Roberts to rely on his representations. (Laurino Dep. 73:19-23.) Moreover,

Laurino could have easily exercised reasonable care in the situation; all he had

to do was inform Douard that components of the rape kit were missing. Had he

done so, instead of lulling Douard, Roberts likely would have continued his

efforts to locate the relevant evidence and ensure that it was tested. Finally,

there is a strong public interest in overturning wrongful convictions through

the use of DNA analysis. That interest would be served by imposing a duty on a

government actor who voluntarily agrees to assist a defendant in obtaining

DNA analysis to accurately represent the scope of the testing that is ultimately

performed.

To be clear, I do not find that Laurino had a statutory duty in 2005 to

ensure that the missing components of the rape kit were located and ultimately

tested. The duty I am recognizing is much narrower. All that was required was

that Laurino, when informing Douard as to the status of the DNA testing,

exercise reasonable care under the circumstances.

I also conclude that a reasonable jury could find that Laurino breached

this duty of care and that the breach caused foreseeable harm to Roberts. The

evidence shows that Van Jura, who represented Roberts in his PCR

proceedings in 2007 and 2009-10, spoke with Douard about the 2005 State

Lab report and asked whether there was “a better specimen that wasn’t tested.”

(Resp. to ECPO St. ¶26.) Douard replied, “I think it should be considered the

best sample, apart from any speculation of misconduct on the part of the

prosecutor.” (Id.) At his deposition in 2019, Van Jura testified that he “had no

reason to believe that what was tested wasn’t everything,” and thus he relied

on the 2005 report in arguing in the PCR proceedings that the DNA analysis

was inconclusive because the material had degraded, but a timely DNA

analysis would have exonerated Roberts (Id.) Had Van Jura known that the

entire rape kit was not tested in 2005, he “would have looked at the case

differently.” (Id.) A jury could therefore find that all of the elements of

negligence are met with respect to Laurino’s misrepresentation to Douard

about the scope of the DNA testing done in 2005.16

I do not find, however, that Bolan owed Roberts a similar duty. Although

Bolan was apparently tasked with ensuring that the Atwell rape kit was

provided to the State Lab, and with collecting Atwell’s buccal swab and

submitting it to the Lab as well (ECPO St. ¶¶11-12; Resp. to ECPO St. ¶18),

there is no evidence to suggest that Bolan ever communicated with Douard or

any other lawyer representing Roberts. There is also no evidence to suggest

that Bolan knew that the rape kit that was submitted to the lab was missing

16 The ECPO defendants assert in their reply brief that even if Roberts has

developed a prima facie case of negligence, summary judgment is still appropriate

because they are entitled to qualified immunity and/or absolute prosecutorial

immunity under New Jersey law. (ECPO Repl. 16-17.) In ruling on a summary

judgment motion, a court may not consider a new argument made for the first time in

reply papers where the non-movant does not have a meaningful opportunity to

respond. See Alston v. Forsyth, 379 F. App’x 126, 129 (3d Cir. 2010) (reversing grant of

summary judgment which was based on an argument raised for the first time in

reply). Because the ECPO defendants did not raise these immunity defenses to

Roberts’s negligence claim in their moving brief, and because Roberts did not have an

opportunity to respond to their reply brief, I will not reach the merits of these

arguments. See also Halsey, 750 F.3d at 288 (at summary judgment stage the burden

of establishing entitlement to the affirmative defense of qualified immunity falls on the

defendant-movant).

key components; it is undisputed that it was sealed and that Bolan never

opened it. (ECPO St. ¶¶13-15; Resp. to EPCO St. ¶¶13-15.)17

I will therefore deny summary judgment on Count 13 as to Laurino and

grant summary judgment on the same count as to Bolan.

E. Vicarious liability of ECPO and Essex County

Both ECPO and Essex County move for summary judgment on Count

14, which alleges that both entities are vicariously liable for the state law

violations of Laurino and Bolan. Having granted summary judgment as to both

Laurino and Bolan on the state law claim for fabricating evidence and as to

Bolan on the state law negligence claim, I consider only whether there is

sufficient evidence in the record for a jury to find ECPO and Essex County

vicariously liable for Laurino’s alleged negligence. See Entrot v. BASF Corp., 359

N.J. Super. 162, 193 (App. Div. 2003) (whether an employer is vicariously liable

for the tortious conduct of an employee is usually a question of fact for the

jury).

Pursuant to the TCA, “[a] public entity is liable for injury proximately

caused by an act or omission of a public employee within the scope of his

employment in the same manner and to the same extent as a private individual

under like circumstances.” N.J. Rev. Stat. § 59:2-2 (2013). The TCA defines a

“public entity” as including “the State, and any county, municipality, district,

public authority, public agency, and any other political subdivision or public

body in the State.” N.J. Rev. Stat. § 59:1-3 (2013). Thus, established principles

of law such as the doctrine of respondeat superior govern the analysis of

whether ECPO and Essex County—both of which are “public entities” under

17 True, a reasonable jury could conclude that Bolan knew that Atwell’s buccal

swab never made it to the Lab, as it was her job to ensure that it did reach the lab.

But given that Bolan herself never agreed to help Roberts (she was merely assigned

tasks as the investigator on the case), and given that she never represented to Roberts

that she completed the assigned tasks, I find that her relationship with Roberts is too

attenuated to justify imposing a duty on her to inform Roberts about what was

actually submitted for testing. In any event, the identity of Atwell’s own buccal swab is

far from central to the case, and doubts about the rape kit’s authenticity would, if

anything, undermine Roberts’s position here. See pp. 17, 31 & n. 6, 12, supra.

the TCA—may be found vicariously liable for Laurino’s purportedly negligent

conduct. Wright v. State, 169 N.J. 422, 435 (2001) (citing N.J. Rev. Stat. § 59:2-

2 (2013)).

I begin with ECPO. “Under respondeat superior, an employer can be

found liable for the negligence of an employee causing injuries to third parties,

if, at the time of the occurrence, the employee was acting within the scope of

his or her employment.” Carter v. Reynolds, 175 N.J. 402, 408-09 (2003)

(quoting Lehmann v. Toys ‘R’ Us, Inc., 132 N.J. 587, 619 (1993)). Because

Laurino was an employee of ECPO during the relevant time period, the analysis

centers on whether he was acting within the scope of his employment when he

assisted Roberts with the DNA testing Roberts requested. New Jersey courts

evaluate whether an employee’s conduct falls within the scope of employment

by considering whether (a) the conduct is of the kind the employee is employed

to perform, (b) the conduct occurs substantially within the authorized time and

space limits of the employment, and (c) the conduct is carried out, at least in

part, for the purpose of serving the employer. See Carter, 175 N.J. at 411

(citing Restatement (Second) of Agency § 228 (1958)).

In support of their motion for summary judgment, the ECPO Defendants

argue only that Roberts’s vicarious liability claim against ECPO fails as a

matter of law because neither Laurino nor Bolan is liable to Roberts under New

Jersey law. (ECPO MSJ 30). The ECPO Defendants do not appear to dispute

that Laurino acted within the scope of his employment when he engaged in this

allegedly negligent conduct.

I find that there are sufficient facts in the record for a jury to conclude

that Laurino acted within the scope of his employment when he agreed to

locate the Atwell rape kit for Roberts and submit it to the State Lab for testing.

During the relevant time period, Laurino was employed as the Deputy Chief

Assistant Prosecutor at ECPO (Laurino Dep. 19:8-14). He testified that he was

also the office “point person for the state lab with respect to testing sexual

assault kits,” meaning that he was the liaison between the Lab and ECPO. (Id.

at 26:4-25.) When a request for DNA testing was made to ECPO, Laurino was

the person in the office who would handle it. (Id. at 149:1-925, 150:1-4.)

According to Laurino, facilitating the testing of DNA evidence in post-conviction

cases is consistent with his ethical obligations as a prosecutor, given that “the

primary role of the prosecutor is to do justice.” (Id. at 66:22-25, 67:1-7.)

Laurino explained that if such a request was made by someone who did not file

a motion under New Jersey’s post-conviction DNA testing statute, ECPO would

agree to facilitate the testing “on a voluntary nature.” (Id. at 49:4-12.)

Accordingly, a jury could reasonably find that Laurino’s assistance, though in

some sense voluntary, occurred in the scope of his employment at ECPO and

therefore that ECPO is vicariously liable for Laurino’s alleged negligence.

Whether Essex County may be held vicariously liable for Laurino’s

purportedly negligent conduct is a more difficult question. As both the Third

Circuit and the New Jersey Supreme Court have observed, county prosecutors

in New Jersey possess a “dual or hybrid” status in that they serve both the

county and the State. See Wright, 169 N.J. at 455; Coleman v. Kaye, 87 F.3d

1491, 1499 (3d Cir. 1996). On the one hand, “[i]t is well established that when

county prosecutors execute their sworn duties to enforce the law by making

use of all the tools lawfully available to them to combat crime, they act as

agents of the State.” Coleman, supra. “On the other hand, when county

prosecutors are called upon to perform administrative tasks unrelated to their

strictly prosecutorial functions, such as a decision whether to promote an

investigator, the county prosecutor in effect acts on behalf of the county that is

the situs of his or her office.” Id.

Consequently, the New Jersey Supreme Court has stated that a county

cannot be held vicariously liable for the actions of a county prosecutor “related

to the investigation and enforcement of the criminal laws of the State.” Wright,

169 N.J. at 452. The Court has further instructed “that the test for determining

in which capacity a county prosecutor acts should ‘focus on whether the

function that the county prosecutors and their subordinates were performing

during the alleged wrongdoing is a function that traditionally has been

understood to be a State function and subject to State supervision in its

execution.’” Gramiccioni v. Dep't of L. & Pub. Safety, 243 N.J. 293, 312 (2020)

(quoting Wright, 169 N.J. at 454).18

Essex County argues that it may not be held vicariously liable for the

allegedly tortious conduct of Laurino because the record shows that Laurino

was at all times acting in a law enforcement capacity on behalf of the State.

(Essex County MSJ 7.) I disagree.

Laurino testified at his deposition that in agreeing to assist Roberts in

obtaining a DNA test, he did not investigate Roberts’s criminal case. (Laurino

Dep. 154:4-15.) Laurino explained that the prosecution in the case “had been

completed” and “it was not reopened.” (Id.) The case was in a sense reopened

when Roberts sought post-conviction relief in 2007, but that occurred after

Laurino assisted with the DNA testing, and Laurino was not involved in the

eventual PCR prosecution. This evidence suggests that Laurino was not

investigating or enforcing New Jersey’s criminal laws when he assisted with the

requested testing in an allegedly negligent manner. Wright, 169 N.J. at 452.

Nor was Laurino acting pursuant to the post-conviction DNA testing

statute. As discussed above, the statute in 2005 did not apply to individuals in

civil confinement. Laurino was therefore under no State statutory obligation to

assist Roberts with the testing he requested.

The record also suggests that the State did not supervise ECPO’s

facilitation of DNA testing in any manner. Laurino testified that in 2004 and

2005, the New Jersey Attorney General’s Office did not oversee ECPO’s policy

or practice regarding arranging for DNA testing, nor did anyone from the

Attorney General’s Office supervise ECPO’s practice of arranging for such

18 Essex County’s arguments that Laurino and Bolan are entitled to qualified

immunity and/or absolute prosecutorial immunity from claims arising under 42

U.S.C. § 1983 are not on point, as Roberts has made it clear that the only claim

against the County is one for vicarious liability for the underlying state law tort claims.

(Essex MSJ 9-12; Opp. to Essex MSJ 1.) The County does not argue that Laurino and

Bolan are entitled to qualified immunity and/or absolute immunity under state law.

testing. (Laurino Dep. 71:18-22, 75:8-11.) With regard to the Roberts matter

specifically, Laurino testified that no one from the Attorney General’s Office had

any role or say in his decision to agree to Douard’s request for assistance.

(Laurino Dep. 149:1-9, 150:5-10.) Laurino explained that “it’s not the kind of

thing that [the Attorney General’s Office] would be involved in.” (Id.)

In light of this evidence, a reasonable jury could find that Laurino’s

allegedly negligent conduct was not “a part or an aspect of prosecutorial

performance over which the State would exercise supervision.” See Gramiccioni,

243 N.J. at 314. Accordingly, Essex County may be held vicariously liable for

the conduct at issue.19

F. Damages

The ECPO defendants argue that Roberts cannot recover damages for

pain and suffering on his state law claims because the TCA prohibits an award

of damages against a public employee or entity for pain and suffering resulting

from an injury, except in the case of permanent loss of a bodily function,

permanent disfigurement, or dismemberment. N.J. Stat. Ann. § 59:9-2(d).

(ECPO MSJ 30-32.) Roberts acknowledges this limitation but maintains that he

can still recover for pain and suffering on his claims under § 1983. While this

is true as a legal proposition, as to the ECPO defendants the § 1983 claims are

being dismissed.

19 The fact that the Attorney General’s Office agreed to defend and indemnify the

ECPO Defendants in this action does not alter the conclusion that the County, rather

than the State, is vicariously liable for Laurino’s alleged negligence. Pursuant to the

TCA, the Attorney General is required to defend an action brought against a “State

employee,” upon that employee’s request, for conduct that occurred in the scope of his

or her employment. N.J. Rev. Stat. § 59:10A-1 (2013). That the Attorney General

agreed to defend the ECPO Defendants in this matter suggests that, in the view of the

Attorney General, the ECPO defendants were acting as “State employees” when they

committed at least one of the violations that Roberts alleges. But it does not tell us

which of the alleged violations the Attorney General considers to be actions of the

State. Given that Roberts raised fabrication of evidence claims against the ECPO

Defendants, and given that fabricating evidence appears closely related to the law

enforcement function of prosecutors, it is entirely possible that the Attorney General

deemed the actions that gave rise to the fabrication claim to be actions of “State

employees” and based the decision to defend in this matter solely on that.

The ECPO Defendants also argue that the court should grant summary

judgment on any claims against them for damages for lost wages, as Roberts

has failed to provide any competent evidence that supports a claim for such

damages. (ECPO MSJ 33.) In particular, he has not provided any data or expert

opinion about the supposed past employment he would have enjoyed and how

much income he allegedly would have received. (Id.)

The ECPO Defendants cite to a number of cases in support of their

argument that expert testimony is required to proceed on a claim for lost

wages. These cases concern a different issue: the calculation of damages for

future economic loss. See, e.g. Elcock v. Kmart Corp., 233 F.3d 734, 754 (3d

Cir. 2000) (“An expert’s testimony regarding future earnings loss must be

accompanied by a sufficient factual foundation before it can be submitted to

the jury.”) (citation omitted); Benjamin v. Peter's Farm Condo. Owners Ass'n,

820 F.2d 640, 642 (3d Cir. 1987) (“This Court has required more than

speculative opinion when determining damages for prospective earnings loss.”);

Evans v. BV Shipping Co. Lombok Strait, No. CIV.07-3139RMB/KMW, 2009 WL

3233524, at *3 (D.N.J. Oct. 5, 2009) (“Without the testimony of an expert . . .

an award of future lost income would be speculative and is therefore

impermissible.”) (emphasis added in all). I am not persuaded that Roberts must

support his claim for past lost wages with the opinion of an expert. See Burris

v. Richards Paving, Inc., 461 F. Supp. 2d 244, 251 (D. Del. 2006) (an expert

witness is not always necessary when addressing a claim for past lost wages).

I will allow the claim for lost wages as a component of damages. It must,

of course, be supported with admissible evidence.

VI. Conclusion

For the reasons set forth above, the motions for summary judgment of

the ECPO Defendants (DE 214) and the Newark Defendants (DE 223) are

granted in part and denied in part, and the motion for summary judgment of

Essex County (DE 219) is denied.

In particular, summary judgment is granted as to Bolan on Counts 2, 5,

10, and 13; summary judgment is granted as to Laurino on Counts 2, 5, 7, and

10 and denied as to Laurino on Count 13;20 summary judgment is denied as to

ECPO and Essex County on Count 14; summary judgment is granted as to

Eutsey on Counts 4 and 11 and denied as to Eutsey on Counts 1, 2, 8, and 10;

and summary judgment is denied as to the City of Newark on Counts 5 and 14.

In sum, the following claims remain:

• Count 1 (§ 1983 malicious prosecution) against Eutsey

• Count 2 (§ 1983 fabrication of evidence) against Eutsey

• Count 5 (procedural due process) against the City of Newark

• Count 8 (state law malicious prosecution) against Eutsey

• Count 10 (state law fabrication of evidence) against Eutsey

• Count 13 (negligence) against Laurino and Eutsey

• Count 14 (vicarious liability) against ECPO, Essex County, and

the City of Newark, as to the above counts.

An appropriate order will issue.

Dated: December 30, 2022

/s/ Kevin McNulty

______________________________

KEVIN MCNULTY

United States District Judge

20 As a result of my ruling, all of the federal claims against Laurino will be

dismissed, but a state law negligence claim remains. I will exercise my discretion to

retain supplemental jurisdiction over that state claim in the interest of judicial

economy, as this case has been ongoing for over seven years, the parties have

exchanged substantial discovery, and the court has jurisdiction over all other

defendants. See Hedges v. Musco, 204 F.3d 109, 123 (3d Cir. 2000) (where the federal

claims that provided the basis for original jurisdiction are dismissed, the court should

ordinarily “decline to decide the pendent state claims unless considerations of judicial

economy, convenience, and fairness to the parties provide an affirmative justification

for doing so”).