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.:

This matter comes before the Court on three motions by defendants

Essex County (“the County”); Essex County Prosecutor’s Office and two of its

employees (“the ECPO defendants”); and the City of Newark (“the City”). Both

the County and the ECPO defendants have moved for reconsideration of the

Court’s opinion and order granting in part and denying in part their motions

for summary judgment (DE 230, 231),1 while the City has moved for leave to

appeal from that opinion and order. For the reasons set forth below, I will

GRANT the County’s motion for reconsideration (DE 233); order supplemental

1 Certain citations from the record will be abbreviated as follows:

Op. = Opinion on defendants’ summary judgment motions (DE 230)

Essex Mot. = Brief in support of Essex County’s motion for reconsideration (DE

233-1)

ECPO Mot. = Brief in support of the ECPO defendants’ motion for

reconsideration (DE 235-1)

Newark Mot. = Brief in support of the City of Newark’s motion for leave to

appeal (DE 241-1)

Opp. to ECPO Mot. = Roberts’s brief in opposition to Newark’s motion for leave

to appeal (DE 254)

Laurino Dep. = Deposition of Prosecutor Robert Laurino (Ex. 14 to DE 218)

briefing on the ECPO defendants’ motion for reconsideration (DE 235); and

DENY the City’s motion for leave to appeal and for a stay (DE 241).

I. Background

A detailed factual background can be found in my most recent opinion in

this matter (DE 230, hereinafter referred to as “the Opinion”). In 2014, Roberts

was released from civil confinement after DNA evidence exonerated him from

the 1996 rape and kidnapping of Sheronda Atwell. Following his release,

Roberts commenced this lawsuit against various state actors and entities,

alleging violations of 42 U.S.C. § 1983 and New Jersey law.

In August and November 2016, several defendants and claims were

dismissed from the case as a result of successful motions to dismiss. (DE 64,

92.) The opinions and orders on those motions left intact Roberts’s claims

against the City and one of its employees, Detective Derrick Eutsey, as well as

Roberts’s claims against the ECPO defendants and the County.

The claims against Eutsey center on his role in the 1996 investigation of

the Atwell rape and kidnapping. Roberts pled guilty to the kidnapping, but was

later civilly detained based on the alleged rape. Roberts alleges that Eutsey

falsely stated that Atwell had identified Roberts as her assailant from a photo

array. The claims against the other defendants relate to Atwell’s rape kit, which

Roberts sought to have tested for DNA evidence in 2005. At that time, Roberts

had served his prison sentence for the kidnapping charge to which he pled

guilty, but remained in involuntary civil confinement as a result of having been

designated a sexually violent offender. He had recently learned that a rape kit

had been taken from Atwell but never analyzed, and thus he sought testing in

order to hopefully overturn his conviction and secure his release from civil

confinement.

Although Roberts did not know it at the time, the vaginal swabs from the

rape kit were stored separately and thus were not analyzed in 2005 along with

the rest of the kit. The swabs were not actually located and tested until 2013,

resulting in Roberts’s continued civil confinement until then. Roberts faults the

City for its poor evidence storage practices, which prevented anyone from

finding the swabs for nearly a decade. He also blames the ECPO employees

who facilitated the testing in 2005 for failing to inform him that the vaginal

swabs were missing from the kit.

In December 2022, the Court ruled on three separate motions for

summary judgment by the various defendants. The Opinion and order denied

the summary judgment motion of the County, while granting in part and

denying in part the motion of the ECPO defendants and the motion of the City

and Detective Eutsey. Shortly thereafter, the ECPO defendants and the County

filed their respective motions for reconsideration. (DE 233, 235.) Eutsey then

filed a notice of appeal as of right (DE 236), and the City subsequently filed its

motion for leave to appeal.

II. Motions for reconsideration

I begin with the motions for reconsideration. “The purpose of a motion for

reconsideration is to correct manifest errors of law or fact or to present newly

discovered evidence.” Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir.

1985). “Accordingly, a judgment may be altered or amended if the party seeking

reconsideration shows at least one of the following grounds: (1) an intervening

change in the controlling law; (2) the availability of new evidence that was not

available when the court granted the motion for summary judgment; or (3) the

need to correct a clear error of law or fact or to prevent manifest

injustice.” Max's Seafood Cafe ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669,

677 (3d Cir. 1999) (citing North River Ins. Co. v. CIGNA Reinsurance Co., 52

F.3d 1194, 1218 (3d Cir. 1995)).

In this district, motions for reconsideration are governed by Local Civil

Rule 7.1(i). That rule provides that a party may move for reconsideration within

14 days of an entry of order or judgment on the original motion. See L. Civ. R.

7.1(i). It also requires that a party file a brief with their motion for

reconsideration “setting forth concisely the matter or controlling decisions

which the party believes the Judge has overlooked.” See id.

“The word ‘overlooked’ is the operative term in the Rule.” Bowers v. Nat'l

Collegiate Athletic Ass'n, 130 F. Supp. 2d 610, 612 (D.N.J. 2001) (citing Allyn Z.

Lite, New Jersey Federal Practice Rules 30 (2001)). “A motion that merely raises

a disagreement with the Court's initial decision is not an appropriate

reconsideration motion, but should be dealt with in the normal appellate

process.” Church & Dwight Co. v. Abbott Lab'ys, 545 F. Supp. 2d 447, 450

(D.N.J. 2008). That said, reconsideration is discretionary, and the Court will

not knowingly persist in an error.

The reconsideration motions filed by the County and the ECPO

defendants relate to the alleged negligence of Prosecutor Robert Laurino in

facilitating the DNA testing of Atwell’s rape kit in 2005. In short, although the

lab that conducted the analysis reached out to Laurino several times to say

that the vaginal swabs were missing from the kit, Laurino failed to pass along

that critical information to Roberts’s attorney. Roberts was thus led to believe

that the testing had yielded inconclusive results because the rape kit materials

had degraded over time. (Op. 32.) Only in 2013, after he had been denied post-

conviction relief several times, did Roberts learn that the vaginal swabs from

the rape kit were missing and had not been tested at all. The Opinion thus

determined that there was sufficient evidence in the record for a reasonable

jury to find that Laurino was negligent in conveying to Roberts the results of

the 2005 DNA analysis. (Id.)

The defendants do not seek reconsideration of that specific ruling, but

rather some related ones. The County seeks reconsideration of the Court’s

ruling that the County may be held vicariously liable for Laurino’s negligence,

while the ECPO defendants seek reconsideration of the Court’s ruling that

Laurino is not entitled to qualified immunity on the negligence claim. I will

address these arguments in turn.

A. Vicarious liability of the County

The New Jersey Tort Claims Act (“TCA”) provides that “[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. 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. Relying on

these sections, the Opinion determined that the ECPO may be held vicariously

liable for Laurino’s negligence because he was acting within the scope of his

employment when he facilitated the testing of Atwell’s rape kit in 2005. (Op.

46.)

The question of whether the County may also be held vicariously liable

for Laurino’s negligence was, as the Opinion recognized, trickier in light of the

“dual or hybrid” status of county prosecutors in New Jersey. Coleman v. Kaye,

87 F.3d 1491, 1499 (3d Cir. 1996). Like most distinctions, it is clearest at the

extremes. 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. Thus, as the New Jersey Supreme Court has explained, 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,”

because a prosecutor in that context is acting as a State, not County,

functionary. Wright v. State, 169 N.J. 422, 452 (2001). 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, supra, at 454).

Applying this test to the circumstances at issue, the Opinion concluded

that Laurino was not acting in a law enforcement capacity on behalf of the

State when he facilitated the testing of Atwell’s rape kit. The Opinion’s

reasoning was as follows:

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 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

[Roberts]’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.

(Op. 47-48.)

The County argues that in reaching this conclusion, the Court construed

the law enforcement function of prosecutors too narrowly. According to the

County, the law enforcement function encompasses more than arrests,

prosecutions, and the investigation of criminal cases. (Essex Mot. 3-4.)

Moreover, Laurino’s allegedly negligent conduct is nothing like the conduct that

courts have found counties vicariously liable for, all of which relate to the

internal operations of the prosecutor’s office. (Id. at 5.) See, e.g., Coleman v.

Kaye, 87 F.3d 1491, 1499 (3d Cir. 1996) (dispute involving the denial of a

promotion); DeLisa v. County of Bergen, 326 N.J. Super. 32

(App.Div.1999), rev'd on other grounds, 165 N.J. 140 (2000) (involving a

retaliatory discharge claim).

The County also points out that the Attorney General’s supervision over

prosecutor’s offices is not expected to function at the granular level. (Essex

Mot. 2-3.) As the Third Circuit recently observed, there is “no unified chain of

command, and [the Attorney General] is not responsible for day-to-day

functioning.” (Id. at 6.) See Clark v. Governor of New Jersey, 53 F.4th 769, 781

(3d Cir. 2022). The County thus argues that the State may be held vicariously

liable for a prosecutor’s misconduct even where the State does not directly

supervise the type of conduct at issue.

The County’s points are well-taken. Although Laurino was not, in a strict

sense, enforcing the criminal laws of the State when he assisted Roberts in

obtaining DNA testing of the rape kit, his actions were connected with the

prosecutor’s law enforcement function; he was facilitating the testing of

evidence from a criminal case. While the case at that point was closed, Laurino

knew that Roberts sought the testing in order to reopen the case and obtain

post-conviction relief. Laurino’s testimony suggests that he agreed to help

Roberts in order to expedite what he assumed was to come: a challenge to the

validity of Roberts’ criminal conviction. (Laurino Dep. 36:3-12) (discussing his

practice of working with defense counsel to “amicably arrange DNA testing” in

order to “advance a case”).

In addition, Laurino’s conduct fell well outside the classic internal

operations of the prosecutor’s office, such as its hiring processes, payroll

administration, or the maintenance of its physical facilities. To the contrary,

Laurino’s conduct involved the office’s external relations with a former criminal

defendant. And while Laurino testified that the Attorney General’s office did not

oversee or supervise his DNA testing practices, the New Jersey Supreme Court

has explained that, in assessing whether it is the State or the county that is

vicariously liable for the actions of county prosecutors, it is not adequate to

consider only “the degree of control” that either entity exercises “over the

means by which the task is accomplished.” Wright, 169 N.J. at 450. The nature

of the function must be analyzed. It follows that the State’s lack of day-to-day

supervision over Laurino, while relevant, does not suffice to resolve the issue.

Accordingly, upon further consideration, I conclude that Laurino was

acting on behalf of the State, rather than the County, when he allegedly

misrepresented the scope of the DNA testing to Roberts.2 I will therefore grant

the County’s motion for reconsideration. If there is to be derivative liability, the

entity liable for Laurino’s actions would be the State, not the County. Count 14

will therefore be dismissed as against the County.

B. Qualified immunity of Laurino

As mentioned, the ECPO defendants’ motion concerns Laurino’s

entitlement to qualified immunity on the negligence claim. The Opinion did not

address the merits of this issue because the defendants raised it only in their

reply brief and Roberts did not have a meaningful opportunity to respond. (Op.

43 n.16.)

The ECPO defendants object that Roberts did, in effect, have the

opportunity to respond. They point to their opening brief, which argued that

Laurino was entitled to federal qualified immunity on the § 1983 procedural

2 For what it is worth, the State has not registered any disagreement.

due process claim. In defendants’ view, the § 1983 claim and the state law

negligence claim were based on the same conduct, and the same legal

standards govern the qualified immunity analysis under federal and state law.

(ECPO Mot. 6-8.) Roberts, for his part, disputes that the same standards apply

to federal and state law qualified immunity. (Opp. to ECPO Mot. 7-8.)3

I will exercise my usual strong preference, consistent with the policy of

the Federal Rules, that issues be decided on the merits. I cannot grant

reconsideration outright, but I will grant the ECPO defendants’ alternative

request that the Court order full briefing on the issue. Following supplemental

briefing, I will consider the ECPO defendants’ motion for reconsideration on the

issue of state law qualified immunity.

III. Motion for leave to appeal an interlocutory order

I turn to the City’s motion for leave to appeal the summary judgment

opinion and order. In general, a litigant may not appeal a denial of summary

judgment, because such a decision is not final within the meaning of 28 U.S.C.

§ 1291. In re City of Philadelphia Litig., 49 F.3d 945, 956 (3d Cir. 1995) (quoting

Giuffre v. Bissell, 31 F.3d 1241, 1245 (3d Cir. 1994)). However, 28 U.S.C.

§ 1292(b) provides for the immediate appeal of interlocutory decisions of the

district court in “exceptional cases.” Caterpillar Inc. v. Lewis, 519 U.S. 61, 74

(1996) (citations omitted).

“The statute imposes three criteria for the district court's exercise of

discretion to grant a § 1292(b) certificate. The order must (1) involve a

‘controlling question of law,’ (2) offer ‘substantial ground for difference of

opinion’ as to its correctness, and (3) if appealed immediately ‘materially

advance the ultimate termination of the litigation.’” Katz v. Carte Blanche Corp.,

496 F.2d 747, 754 (3d Cir. 1974) (quoting 28 U.S.C. § 1292(b)). “The burden is

3 Roberts also argues that the ECPO defendants’ reconsideration motion is

untimely. The Court issued its summary judgment opinion and order on December 30,

2022. The ECPO defendants filed their motion on January 17, 2023—four days after

the 14-day deadline had expired. (DE 231, 235.) Given that the delay was slight and

the prejudice nonexistent, I will not deny the motion on this basis alone.

on the movant to demonstrate that all three requirements are met.” Litgo New

Jersey, Inc. v. Martin, No. CIV. 06-2891 AET, 2011 WL 1134676, at *2 (D.N.J.

Mar. 25, 2011). Even if the movant satisfies this burden, the Court retains

discretion to deny certification for interlocutory appeal. Y.W. v. Roberts, No. CV

2:14-01642, 2018 WL 5784995, at *4 (D.N.J. Nov. 5, 2018). See Bachowski v.

Usery, 545 F.2d 363, 368 (3d Cir. 1976) (“The certification procedure is not

mandatory; indeed, permission to appeal is wholly within the discretion of the

courts, even if the criteria are present.”)

Certification should rarely be granted, as it “deviates from the strong

policy against piecemeal litigation.” Id. (Quoting Huber v. Howmedica Osteonics

Corp., No. 07–2400, 2009 WL 2998160, at *1 (D.N.J. Mar. 10, 2009)). In

evaluating the § 1292(b) factors, “‘the court must remember that ... [a] motion

should not be granted merely because a party disagrees with the ruling of the

district judge.’” Kapossy v. McGraw-Hill, Inc., 942 F. Supp. 996, 1001 (D.N.J.

1996) (quoting Max Daetwyler Corp. v. Meyer, 575 F.Supp. 280, 282 (E.D.

Pa.1983)). “Rather, the ‘difference of opinion’ must arise out of genuine doubt

as to the correct legal standard.” Kapossy, supra.

The City seeks to certify five questions for interlocutory appeal.4 Four

pertain to the § 1983 Monell claim against the City, while the fifth pertains to

the claim for vicarious liability. (Newark Mot. 1-2.) The City also asks the Court

to stay the action pending its own appeal and Detective Eutsey’s appeal as of

right. (Id. at 19-24.) I will address the Monell-related questions first, followed by

the question pertaining to vicarious liability. Finally, I will address the request

for a stay.

A. Monell

Monell liability attaches where a city’s official policy, practice or custom

results in the deprivation of a constitutional right. See Monell v. Dep’t of Soc.

Servs. of City of New York, 436 U.S. 658, 694 (1978). The Opinion denied the

4 The City’s brief lists six questions, but questions three and four are exact

duplicates (other than the additional word “of” in the fifth line of the fourth question).

(Newark Mot. 1.)

City’s motion for summary judgment as to Roberts’s Monell claim on the

ground that a reasonable jury could find that the Newark Police Department

maintained a practice 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, thus inhibiting Roberts’s access to exculpatory evidence and

depriving him of procedural due process. (Op. 28.)

The City seeks to certify the following questions related to this claim:

1. “Whether the practice of a few chemists in the police evidence lab can

amount to a custom of the entire City police department for purposes

of a Monell claim” under § 1983;

2. “Whether the unconstitutional custom, supporting the § 1983 Monell

claim against the City, can be the separate storage of essential rape

kit contents in police laboratory, rather than the failure to

communicate that practice to other officers and personnel responsible

for handling rape kit evidence”;

3. “Whether one instance of a Chemist’s failure to disclose a practice as

to storage of rape kit contents, amounts to a custom or pattern of

unconstitutional activity, under a § 1983 Monell claim, where there is

no evidence of any other failures of communication or instances

where other criminal defendants have been adversely affected by any

such failures of communication”;

4. “Whether one instance of a failure to disclose a practice as to storage

of rape kit contents, can support a Monell claim, under § 1983, in the

absence of any evidence of deliberate indifference on the part of the

City.”

(Newark Mot. 1-2.)

I begin by considering whether these questions are “controlling

question[s] of law.” See 28 U.S.C. § 1292(b). “A question is controlling if an

incorrect disposition would constitute reversible error and . . . it is serious to

the conduct of the litigation, either practically or legal[ly].’” Valeant Pharms.

Int'l, Inc. v. AIG Ins. Co. of Canada, No. CV18493MASRLS, 2023 WL 113959, at

*3 (D.N.J. Jan. 5, 2023) (quoting Kaplan v. Saint Peter's Healthcare Sys., No.

CIV.A. 13-2941 MAS, 2014 WL 4678059, at *2 (D.N.J. Sept. 19, 2014)). Still,

“[c]ourts in this district have held that . . . questions about a district court's

application of facts of the case to established legal standards are

not controlling questions of law for purposes of section 1292(b).” Juice Ent.,

LLC v. Live Nation Ent., Inc., 353 F. Supp. 3d 309, 312–13 (D.N.J. 2018)

(Quoting Morgan v. Ford Motor Co., No. CIV.A. 06-1080, 2007 WL 269806, at *2

(D.N.J. Jan. 25, 2007)). See also In re Barsan Contractors, No. 04-12362, 2010

WL 3907116, at *5 (D.N.J. Sept. 30, 2010) (“Misapplication of the law to the

facts is not a question of law”).

At the outset, I note that questions one, two and four are marred by

misguided “advocacy” in formulating the issue for appeal. The Opinion did not

hold that only “a few chemists in the police evidence lab” maintained a practice

of storing positive swabs separately from the rest of the kit (question one), or

that there was merely “one instance of a Chemist’s failure to disclose” this

practice and “no evidence of any other failures of communication” (questions

three and four). Instead, I noted that there was evidence that the chemist

handling the Atwell rape kit was advised by his superiors to store positive

swabs separately (suggesting that this was a sanctioned policy and not merely

the idiosyncratic practice of a few chemists), and I noted that there was

evidence that officials outside of the Newark lab, including individuals at the

prosecutor’s office who worked closely with the lab, were not made aware of

this practice (suggesting that the failure to communicate the fact of separate

storage was systematic and widespread). (Op. 27-28.) The City disagrees, but a

party cannot obtain leave to file an interlocutory appeal by positing new or

different facts under which it might prevail.

At any rate, questions one and three take issue, not with the Court’s

articulation of the established standards for Monell liability, but with its

application of that standard to the facts, and in that sense do not present

“controlling questions of law.” Essentially, the City challenges the sufficiency of

the evidence to support the Monell claim, positing that “a few chemists in the

police evidence lab” maintained this practice of storing rape kit contents

separately, and that there was only “one instance of a Chemist’s failure to

disclose” that practice. These questions are very far from being purely legal,

and an interlocutory appeal is not a prudent exercise of discretion.

Those factual matters aside, question four does appear to ask whether

evidence of deliberate indifference is necessary for Monell liability to attach in

context of this case. That could potentially qualify as a controlling question of

law, but the City has not shown that there is “substantial ground for difference

of opinion,” as required by the second § 1292(b) factor.

“Substantial ground for difference of opinion lies where ‘there is genuine

doubt or conflicting precedent as to the correct legal standard.’” Valeant

Pharms. Int'l, Inc. v. AIG Ins. Co. of Canada, No. CV18493MASRLS, 2023 WL

113959, at *3 (D.N.J. Jan. 5, 2023) (quoting Korrow v. Aaron's, Inc., No. 10-

6317, 2016 WL 4083219, at *2 (D.N.J. July 29, 2016)). Here, Third Circuit

precedent is clear that a showing of deliberate indifference is only necessary

where the Monell claim is based on a failure or inadequacy of the municipality.

A recent Third Circuit decision is instructive in this regard:

[A] § 1983 claim against a municipality may proceed in two

ways. Estate of Roman v. City of Newark, 914 F.3d 789, 798–99 (3d

Cir. 2019). A plaintiff may put forth that an unconstitutional policy

or custom of the municipality led to his or her injuries, id. at 798

(citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694, 98 S.Ct.

2018, 56 L.Ed.2d 611 (1978)), or that they were caused by a failure

or inadequacy by the municipality that “reflects a deliberate or

conscious choice,” see id. (internal quotation marks omitted)

(quoting Brown v. Muhlenberg Twp., 269 F.3d 205, 215 (3d Cir.

2001)). The latter avenue arose in the failure-to-train context, but

applies to other failures and inadequacies by municipalities,

including those related to supervision and discipline of its police

officers. Id. at 798–99 (“[Plaintiff] has not pled a municipal policy ...

[but] has ... adequately pled that the City failed to train, supervise,

and discipline its police officers.”).

Plaintiffs that proceed under a municipal policy or custom theory

must make showings that are not required of those who proceed

under a failure or inadequacy theory, and vice versa. Notably, an

unconstitutional municipal policy or custom is necessary for the

former theory, but not for the latter, failure or inadequacy

theory. Id. at 798 (“[F]or failure-to-train claims ...[,] a plaintiff need

not allege an unconstitutional policy.”) (citing Reitz v. County of

Bucks, 125 F.3d 139, 145 (3d Cir. 1997)). . . . On the other hand,

one whose claim is predicated on a failure or inadequacy has the

separate, but equally demanding requirement of demonstrating a

failure or inadequacy amounting to deliberate indifference on the

part of the municipality. See id. . . .

Although we have acknowledged the close relationship between

policy-and-custom claims and failure-or-inadequacy

claims, Barkes v. First Corr. Med., 766 F.3d 307, 316–17 (3d Cir.

2014), the avenues remain distinct: a plaintiff alleging that a policy

or custom led to his or her injuries must be referring to an

unconstitutional policy or custom, and a plaintiff alleging failure-

to-supervise, train, or discipline must show that said failure

amounts to deliberate indifference to the constitutional rights of

those affected.

Forrest v. Parry, 930 F.3d 93, 105–06 (3d Cir. 2019).

Roberts is the master of his claims, and his Monell claim appears to be

based on the City’s allegedly faulty evidence storage policy; it is not based on a

failure to adequately train, supervise or discipline employees as such.

Consequently, as explained by the Third Circuit in Forrest, Roberts is not

required to show deliberate indifference.

Many of the decisions cited by the City in its brief are not on point, as

they involve cases where the theory underlying Monell liability was a

municipality’s failure to adhere to unrelated policies. See, e.g., Marable v. W.

Pottsgrove Twp., 176 F. App'x 275, 282 (3d Cir. 2006) (Monell claim was based

on police officers’ failure to adhere to municipality’s policy); Jewell v. Ridley

Twp., 497 F. App'x 182, 185 (3d Cir. 2012) (Monell claim was based on

municipality’s failure to train its officers on police pursuits).

Newton v. City of New York, 779 F.3d 140 (2d Cir. 2015), cited and

discussed in the Opinion, at least involved a similar evidence mismanagement

claim. But Newton did not hold, as the City argues, that the plaintiff was

required to show deliberate indifference. (Newark Mot. 15.) Rather, the Second

Circuit concluded that it did not need to decide that issue, as the jury had

actually found that the City acted either with intent or recklessness. Id. at 157,

n.18. Furthermore, Newton is an out-of-circuit case decided four years prior to

Forrest, in which the Third Circuit held unequivocally that a showing of

deliberate indifference is not necessary to the extent Monell liability is premised

on a faulty policy, and not failure to train. In light of the clear precedent of this

Circuit, question four does not present “substantial ground for difference of

opinion.”

That leaves question two, which asks “[w]hether the unconstitutional

custom, supporting the § 1983 Monell claim against the City, can be the

separate storage of essential rape kit contents in police laboratory, rather than

the failure to communicate that practice to other officers and personnel

responsible for handling rape kit evidence.” I am not entirely sure what this

question is getting at, but it, like questions one and three, relates to the Court’s

application of law to the facts of the case and therefore does not present a

“controlling question of law.” In addition, the City does not point to any

authority indicating a “substantial ground for difference of opinion” as to this

question.5

It is not strictly necessary to address the final § 1292(b) factor—whether

immediate appeal would materially advance the litigation—as the City has not

shown that the first two factors are met with respect to questions one, two,

three, and four. I do observe that most of the underlying issues and facts are

likely to be tried in any event, and, should individual liability be found, the

5 The City does not make an argument as to this question specifically, but rather,

argues generally that “[t]here is substantial ground [for] difference of opinion as to the

denial of the City’s defenses under Monell.” (Newark Mot. 10.) In so doing, the City has

not satisfied its burden under § 1292(b) with respect to question two.

issue of whether such liability should have extended to the City will be subject

to correction on appeal. The time occupied in an interlocutory appeal will delay,

not advance, the progress of litigation.

Accordingly, I decline to exercise my discretion to certify these questions

for interlocutory appeal.

B. Vicarious liability

As discussed in Part II.A, supra, the TCA holds public entities vicariously

liable for torts committed by their employees within the scope of employment.

N.J. Rev. Stat. § 59:2-2. The TCA provides, however, that “[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). Thus, where an

employee is entitled to qualified immunity under the TCA, the public entity

employer is also immune from liability. The TCA grants immunity to a public

employee for actions taken “in good faith in the execution or enforcement of

any law.” N.J. Stat. Ann. § 59:3-3.

In its summary judgment briefing, the City argued that it could not be

held vicariously liable for the negligent conduct of its employees because those

employees were immune from Roberts’s negligence claim under the TCA.

(Newark MSJ 40.) The City failed to satisfy its burden, however, to establish the

premise of its argument, i.e., that its employees entitled to qualified immunity. I

therefore denied summary judgment as to the claim against the City for

vicarious liability. (Op. 30.)

Now, the City seeks to certify the following question related to the

vicarious liability claim:

Whether the City is entitled to good faith immunity or

immunity for failure to enforce the law, under the New Jersey

Tort Claims Act (“TCA”), for a Chemist’s errant execution of (or

failure to enforce) the law, in failing to advise officers that

certain contents of a rape kit has been preserved separately

(Newark Mot. 2.)

Certification of this question is not warranted, as it seeks review of an

issue that the Court did not reach. My only determination with respect to the

vicarious liability claim was that the City did not establish the entitlement of its

employees to good faith immunity under the TCA. The City did not argue in its

summary judgment briefing that the chemist handling the Atwood rape kit

acted in good faith in “failing to advise officers that certain contents of the rape

kit had been preserved separately.” I therefore did not consider that issue,

which would in any event appear to present a factual dispute for trial. Instead,

based on the issues as presented, I concluded that the City failed to meet its

burden of establishing the good faith immunity of its employees.

This Court “cannot ask the Third Circuit to issue speculative, advisory

opinions on questions the Court did not answer in its original opinion.” In re

Cent. Eur. Distribution Corp. Sec. Litig., No. CIV.A. 11-6247 JBS, 2012 WL

5511711, at *5 (D.N.J. Nov. 14, 2012). See Link v. Mercedes-Benz of N. Am.,

Inc., 550 F.2d 860, 862 (3d Cir. 1977) (“In the absence of a definitive order . . .

by the district court, the inquiry is essentially a request for an advisory

opinion, which we may not honor.”) Accordingly, I will decline to exercise my

discretion to certify this question for interlocutory appeal.

C. Request for a stay

The City has requested that the Court stay further proceedings pending

its prospective appeal and that of Detective Eutsey. Given that I am not

certifying any of the City’s questions for appeal, I will address this argument

only as it relates to Eutsey’s appeal as of right.

Courts analyze the following four factors in addressing request for a stay

pending appeal: “(1) whether the stay applicant has made a strong showing

that he is likely to succeed on the merits; (2) whether the applicant will be

irreparably injured absent a stay; (3) whether issuance of the stay will

substantially injure the other parties interested in the proceeding; and (4)

where the public interest lies.” Republic of Philippines v. Westinghouse Elec.

Corp., 949 F.2d 653, 658 (3d Cir. 1991).

Eutsey has appealed the Court’s ruling that he is not entitled to qualified

immunity as to the claims asserted against him. (DE 236.) Those claims are

§ 1983 fabrication of evidence, § 1983 malicious prosecution, parallel state law

claims, and a state law negligence claim.

The Opinion concluded that, with respect to § 1983 immunity, the law

was “clearly established” as of 1996 when Eutsey allegedly fabricated evidence

and maliciously prosecuted Roberts. (Op. 25.) See Pearson v. Callahan, 555

U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982))

(“The doctrine of qualified immunity protects government officials ‘from liability

for civil damages insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person would have

known.’”) As to state law immunity under the TCA, the Opinion determined

that Eutsey had not met his burden to demonstrate his entitlement to good

faith immunity, as he incorrectly argued that it was Roberts’s burden to prove

that he did not act in good faith. (Op. 26.) 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 prohibition on fabrication of evidence is and was always clear;

should it be proven that Eutsey falsely stated that the victim had identified

Roberts in a photo array, that would violate well-established standards.

Despite requesting a stay pending Eutsey’s appeal, the City did not argue,

much less make a “strong showing,” that Eutsey is likely to succeed on the

merits of his interlocutory appeal. In the absence of such a showing, I will deny

the request for a stay.

IV. Conclusion

For the reasons set forth above, the County’s motion for reconsideration

(DE 233) is GRANTED and the City’s motion for leave to appeal the summary

judgment opinion and order is DENIED (DE 241). Supplemental briefing is

ordered on the ECPO defendants’ motion for reconsideration (DE 235). The

plaintiff and the ECPO defendants may each file a brief, no longer than 5

pages, limited solely to the issue of whether qualified immunity bars the

negligence claim against defendant Laurino. The City’s motion for a stay is

DENIED. An appropriate order will issue.

Dated: April 17, 2023

/s/ Kevin McNulty

______________________________

KEVIN MCNULTY

United States District Judge