GREENE v. ELIZABETH POLICE DEPARTMENT

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

:

KHASEEM GREENE, :

: Civil Action No. 18-8972 (JXN) (CLW)

Plaintiff, :

:

v. : OPINION

:

ELIZABETH POLICE DEPARTMENT, :

ALFONSO COLON, JAMES SZPOND, :

UNION COUNTY PROSECUTOR’S :

OFFICE, PATRICIA CRONIN, STEPHEN :

KAISER, DEBORAH WHITE, MARK :

SPIVEY, and JOHN/JANE DOES 1 through :

10, :

:

Defendants. :

:

NEALS, District Judge:

This matter comes before the Court on three motions for summary judgment filed pursuant to

Federal Rule of Civil Procedure 56 and Local Civil Rule 56.1: (1) Defendant James Szpond’s (“Szpond”)

motion for summary judgment (ECF No. 110); (2) Defendant Alfonso Colon’s (“Colon”) motion for

summary judgment (ECF No. 111); and (3) Defendant Elizabeth Police Department’s (the “EPD”) motion

for summary judgment (ECF No. 112). Plaintiff Khaseem Greene (“Plaintiff”) filed opposition to the

motions for summary judgment (ECF No. 114) (the “Opposition”). Szpond, Colon, and the EPD

(collectively, the “Defendants”) filed their respective replies (ECF Nos. 116-18). Jurisdiction is proper

pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1343(a)(3). Venue is proper pursuant to 28 U.S.C. § 1391.

The Court has carefully considered the parties’ submissions and decides this matter without oral

argument under Federal Rule of Civil Procedure 78(b) and Local Civil Rule 78.1(b). For the reasons set

forth below, Szpond’s motion for summary judgment (ECF No. 110) is GRANTED, and Plaintiff’s

Complaint (ECF No. 1) in its entirety is DISMISSED with prejudice as to Defendant Szpond. Colon’s

motion for summary judgment (ECF No. 111) is GRANTED in part and DENIED in part, GRANTED

as to Counts Two to Four, Seven to Eight, and Eleven in Plaintiff’s Complaint (ECF No. 1), which are

DISMISSED with prejudice as to all Defendants, and DENIED as to Counts One, Six, and Ten. Because

Counts Five, Nine, Twelve, and Fourteen are barred by N.J.S.A. 59:1-1, et seq. (the “Tort Claims Act”),

these Counts are also dismissed with prejudice as to all Defendants. The EPD’s motion for summary

judgment (ECF No. 112) is GRANTED, and Plaintiff’s Complaint (ECF No. 1) in its entirety is

DISMISSED with prejudice as to Defendant the EPD. The Court awards no costs, expenses, or attorney

fees to any party.

I. BACKGROUND AND PROCEDURAL HISTORY1

Plaintiff alleges this litigation represents “one of the most chilling episodes of police . . .

misconduct in modern New Jersey history . . . .” Pl.’s complaint (the “Complaint”), ¶ 1. Plaintiff in

relevant part alleges that he suffered a deprivation of rights because Defendants provided “false

statements” and “conspired to conceal exculpatory evidence” to unlawfully indict Plaintiff for a December

3, 2016, shooting at “All Star Café” in the City of Elizabeth, New Jersey (“Elizabeth”) (the “December

Shooting”). Id. ¶¶ 4, 26. Plaintiff alleges that Defendants knew there was no probable cause to indict

Plaintiff for unlawful possession of a weapon (the “Indictment”) and that his “actual innocence” was

confirmed when Defendant Union County Prosecutor’s Office (the “Prosecutor’s Office”) sought and

obtained an order dismissing the Indictment. Id. ¶¶ 3, 48, 69-70. And due to Defendants’ efforts, Plaintiff,

a professional football player, was allegedly “waived” by the Kansas City Chiefs when the Prosecutor’s

Office made the Indictment public. Id. ¶¶ 2, 50-55.

Plaintiff alleges that the basis for the Indictment is: (i) a video interview of Jason Sanders

(“Sanders”), the assailant in the December Shooting, which was conducted by EPD detectives Colon and

1 For the sake of brevity, all citations to the parties’ Rule 56.1 statements incorporate the evidentiary citations contained therein.

Szpond (the “Sanders Interview”); (ii) a Complaint-Warrant “prepared” by Colon that states “Plaintiff was

observed on surveillance video [(the “All Star Café Video”)] handing over a handgun to Sanders” (the

“Warrant”); and (iii) Colon’s grand jury testimony. Id. ¶¶ 38-39, 42-43, 45, 49 (internal quotations

omitted).

On May 8, 2018, Plaintiff filed the fourteen-count Complaint asserting the following claims

against Defendants: (Count One) - Civil Action for Deprivation of Rights under 42 U.S.C. § 1983; (Count

Two) - Violation of Equal Rights under 42 U.S.C. § 1981; (Count Three) - Conspiracy to Violate Civil

Rights under 42 U.S.C. § 1985; (Count Four) - Failure to Prevent Violations of Civil Rights under 42

U.S.C. § 1986; (Count Five) - Negligent Screening, Hiring, Training, Supervising and Retention of

Dangerous Discriminatory Employees against the EPD2 and the Prosecutor’s Office only under 42 U.S.C.

§ 1983; (Count Six) - New Jersey Civil Rights Act, N.J.S.A. 10:6-1, et seq. (the “New Jersey Civil Rights

Act”); (Count Seven) - Willful Disregard; (Count Eight) - Abuse of Process; (Count Nine) - False Arrest

and Imprisonment; (Count Ten) - Malicious Prosecution/Conspiracy to Commit Malicious Prosecution;

(Count Eleven) - Negligence; (Count Twelve) - Intentional Infliction of Emotional Distress; (Count

Thirteen) - Defamation against the Prosecutor’s Office and Defendant Mark Spivey (“Spivey”) only; and

(Count Fourteen) - Vicarious Liability against the EPD and the Prosecutor’s Office only.

On November 1, 2018, the Honorable Susan Wigenton, U.S.D.J., dismissed all claims against the

Prosecutor’s Office and Defendants Spivey, Stephen Kaiser, Deborah White, and Patricia Cronin

(“Cronin”) (ECF Nos. 22-23). As a result, Count Thirteen was dismissed and Counts Five and Fourteen

remain as to the EPD. The relevant facts follow.

2 The EPD, as an inseparable component of Elizabeth, is an improper party to this lawsuit. See, e.g., Livingston v. Borough of

McKees Rocks, 223 F.App'x 84, 87 (3d Cir. 2007); see also N.J.S.A. 40A:14-118. Accordingly, Elizabeth is the real party in

interest. Bonenberger v. Plymouth Twp., 132 F.3d 20, 25 (3d Cir. 1997). The Court, therefore, treats the EPD and Elizabeth

as a single entity for purposes of its analysis. Adams v. City of Camden, 461 F.Supp.2d 263, 266 (D.N.J. 2006).

The EPD “is a municipality subdivision and arm of” Elizabeth. Szpond’s Statement of Undisputed

Material Facts (ECF No. 110-2) (the “SSOF”) ¶ 2; Pl.’s Responsive Statement of Undisputed Material

Facts (ECF No. 114) (the “PRSOF”)3 ¶ 2. During the relevant period, Colon was “employed by EPD and

was responsible for investigating the” December Shooting. SSOF ¶¶ 3-4; PRSOF ¶¶ 3-4. Szpond, who

was also employed by the EPD during the relevant period, “assisted” Colon with the investigation of the

December Shooting. Id.

On December 3, 2016, the EPD learned of the December Shooting. SSOF ¶ 10; PRSOF ¶ 10. By

December 6, 2016, law enforcement had obtained the gun used in the December Shooting, as well as the

All Star Café Video. SSOF ¶¶ 12-13; PRSOF ¶¶ 12-13. On December 30, 2016, the EPD arrested Sanders

in connection to the December Shooting. SSOF ¶ 15; PRSOF ¶ 15. On the same date, Colon and Szpond

conducted the Sanders Interview. SSOF ¶ 16; PRSOF ¶ 16.

“[T]hroughout the” Sanders Interview, Sanders stated Plaintiff gave him the gun used in the

December Shooting. SSOF ¶ 17; PRSOF ¶ 17. “[U]pon being confronted with the fact that” he

“criminally implicated Plaintiff, Sanders stated he had lied and sought to retract his statement.” SSOF ¶

19; PRSOF ¶ 19. Szpond informed Sanders that he could “retract any portion . . . of his statement [but]

at a later date . . . .” SSOF ¶ 20; PRSOF ¶ 20. Based on Sanders’s statement and “her review of the” All

Star Café Video, Cronin, an Assistant Prosecutor with the Prosecutor’s Office, “deci[ded] to charge

Plaintiff with unlawful possession of a weapon.” Colon’s Statement of Undisputed Material Facts (ECF

No. 111) (the “CSOF”) ¶ 10; PRSOF ¶ 104. While admittedly she “did not believe that the” All Star Café

Video “was sufficient probable cause to arrest Plaintiff[,]” Cronin testified that the All Star Café Video

“coupled with Sanders’[s] statement that Plaintiff possessed the gun,” provided sufficient probable cause.

CSOF ¶¶ 14-15; PRSOF ¶¶ 14-15.

3 See Pl.’s Opp. at 2-3.

4 See Pl.’s Opp. at 3-5.

On January 4, 2017, criminal charges were “approved” against Plaintiff. SSOF ¶ 21; PRSOF ¶ 21.

“At Cronin’s direction,” and on the same date, Colon prepared the Warrant. CSOF ¶ 16; SSOF ¶ 22;

PRSOF ¶ 16, 22. The “Affidavit for Probable Cause [(the ‘Affidavit’)] was based upon” the Sanders

Interview and All Star Café Video “taken together.” CSOF ¶ 17; PRSOF ¶ 17. Plaintiff admits Colon

was not involved “in th[e] decision” to charge Plaintiff. CSOF ¶ 10; PRSOF ¶ 10.

On January 5, 2017, Plaintiff turned himself in and “spen[t] approximately two days in jail.” SSOF

¶ 23; PRSOF ¶ 23; Pl.’s Further Statement of Undisputed Material Facts (the “PSOF”)5 ¶ 27; Szond’s

Responsive Statement to Pl.’s Further Statement of Undisputed Material Facts (ECF No. 116-1) (the

“SRSOF”) ¶ 276; Ex. A to Silverman’s Cert., Pl.’s Nov. 19, 2020, deposition transcript (“Pl.’s Dep.”), at

T61:6-14; T62:6-12; T63:2-64:2. Colon subsequently testified at the grand jury that Sanders and Plaintiff

“appear[ed] to exchange an item” in the All Star Café Video and that Sanders identified Plaintiff as “the

individual passing [him] the gun . . . .” CSOF ¶ 21; PRSOF ¶ 21. Plaintiff admits that the Prosecutor’s

Office and not “a detective” is “responsib[le]” for “what is presented to the grand jury.” CSOF ¶ 22;

PRSOF ¶ 22.

On May 9, 2017, the grand jury issued the Indictment against Plaintiff “for unlawful possession of

a weapon (second degree) in violation of N.J.S.A. 2C:39-5b(1).” SSOF ¶ 24; PRSOF ¶ 24. On the same

date, the Kansas City Chiefs “waive[d]” Plaintiff “and asked [him] to return his playbook . . . .” SSOF ¶

25; PRSOF ¶ 25. On July 17, 2017, the Prosecutor’s Office “sought, and w[as] granted, an Order

dismissing the indictment against Plaintiff.” SSOF ¶ 27;7 PRSOF ¶ 27.

While the Affidavit provides that Plaintiff “was observed on surveillance video handing over a

handgun to . . . Sanders[,]” Colon testified “he never saw [Plaintiff] possessing a gun[,]” “didn’t see

5 See Pl.’s Opp. at 5-8.

6 Szpond disputes Plaintiff surrendered “[a]s a result of the false allegations,” but takes no position as to whether Plaintiff

“spen[t] approximately two days in jail.”

7 While Szpond failed to cite to the record, see Compl. ¶ 70 for support.

[Plaintiff] with a gun,” and that Plaintiff is “not seen with a gun in his hands” in the All Star Café Video.

Ex. E to Daniel T. Silverman, Esq.’s Certification (ECF No. 114-1) (“Silverman’s Cert.”), the Aff.; PSOF

¶¶ 13, 23, 25; SRSOF ¶ 13, 23; Ex. F to Michael S. Simitz, Esq.’s Dec. 9, 2022, Certification (ECF No.

111) (“Simitz’s Cert.”), Colon’s December 22, 2020, deposition transcript (ECF No. 111-7) (“Colon’s

Dep.”), at T63:8-T64:21. The Affidavit neither provides Sanders’s statement that he lied nor his request

to retract the same statement. PSOF ¶ 24; Ex. E to Silverman’s Cert., the Aff. Moreover, despite Colon

testifying that Cronin “never saw the” Affidavit and that he did not “call[]” Cronin to discuss the Affidavit,

Cronin testified that she “would ordinarily speak to the detectives before [she] approve[s] charges.”

Colon’s Dep., at T99:2-10; Ex. G to Simitz’s Cert., Cronin’s December 14, 2020, deposition transcript

(ECF No. 111-8) (“Cronin’s Dep.”), at T38:7-11. Colon also testified that the Affidavit was “approved

by [] prosecutor [Cronin] before it” was presented to the judge and that Cronin “read[]” and approve[d]

it,” and could have “denie[d] it or request[ed]” that Colon “make changes to it.” Colon Dep., at T69:13-

23, T71:25-T72:8.

On June 9, 2017, Plaintiff filed a Notice of Claim with Elizabeth wherein Plaintiff identified the

EPD and Colon “as responsible for his damages.” EPD’s Supplemental Statement of Undisputed Material

Facts (ECF No. 112-3) (the “ESOF”)8 ¶ 4; PRSOF ¶ 4.9 The Notice of Claim similarly does not identify

Szpond. Ex. B to Robert F. Varady, Esq.’s Dec. 9, 2022, Certification (ECF No. 112-5), Notice of Claim,

at ¶¶ 8-10.

II. LEGAL STANDARD

Summary judgment is appropriate where the Court is satisfied “that there is no genuine issue as to

any material fact and that the movant is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(a);

8 Counsel improperly cites his own Certification as support of some proffered statements. ESOF ¶¶ 7-9. Because counsel did

not “cit[e] to particular parts of materials in the record,” (see Fed. R. Civ. P. 56(c)(1)(A)), the Court disregards ¶¶ 7-9.

9 See Pl.’s Opp. at 5.

see also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Orson, Inc. v. Miramax Film Corp., 79 F.3d

1358, 1366 (3d Cir. 1996). A factual dispute is genuine only if there is “a sufficient evidentiary basis on

which a reasonable jury could find for the non-moving party,” and it is material “only if it might affect

the outcome of the suit under governing law.” Kaucher v. Cty. of Bucks, 455 F.3d 418, 423 (3d Cir. 2006)

(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). Disputes over “irrelevant or

unnecessary” facts will not preclude a grant of summary judgment. Anderson, 477 U.S. at 248 (citation

omitted). “In considering a motion for summary judgment, a district court may not make credibility

determinations or engage in any weighing of the evidence; instead, the non-moving party’s evidence is to

be believed and all justifiable inferences are to be drawn in his favor.” Marino v. Indus. Crating Co., 358

F.3d 241, 247 (3d Cir. 2004) (citation and internal quotations omitted).

The moving party bears the initial burden of demonstrating the absence of a genuine issue of

material fact. Celotex Corp., 477 U.S. at 322 (citations omitted). If the movant satisfies its initial burden,

the nonmoving party cannot rest upon mere allegations in the pleadings to withstand summary judgment;

rather, the nonmoving party “must counter with specific facts which demonstrate that there exists a

genuine issue for trial.” Orson, Inc., 79 F.3d at 1366 (citation omitted). Specifically, the nonmoving party

“must make a showing sufficient to establish the existence of each element of his case on which he will

bear the burden of proof at trial.” Huang v. BP Amoco Corp, 271 F.3d 560, 564 (3d Cir. 2001) (citation

omitted). Thus, “a mere scintilla of evidence in the nonmovant’s favor” is insufficient to “create a genuine

issue of fact.” Ramara, Inc. v. Westfield Ins. Co., 814 F.3d 660, 666 (3d Cir. 2016) (citation and internal

quotations omitted). Ultimately, the Court’s role is to “determine whether there is a genuine issue for

trial” such that a reasonable jury could return a verdict for the nonmoving party. See Brooks v. Kyler, 204

F.3d 102, 105 n.5 (3d Cir. 2000) (citations omitted).

III. DISCUSSION

A. Because Plaintiff Abandoned Counts Two, Seven, Eight, and Eleven, the Claims

are Dismissed with Prejudice

As an initial matter, the Court notes Plaintiff’s claims are somewhat muddled, thus causing the

Court to comb through the Opposition to determine whether Plaintiff has satisfied his burden on summary

judgment. See DeShields v. Int’l Resort Props. Ltd., 463 F.App’x 117, 120 (3d Cir. 2012) (Role of judge

is not to “hunt[] for truffles buried in briefs.”) (citation omitted). The Court further notes that the

Opposition does not “include a table of contents and a table of authorities” (see Local Civil Rule 7.2(b)).

The Court “in its discretion will overlook the[se] procedural irregularities in deciding the merits of this

case[,]” and proceed to Defendants’ substantive arguments. Ameriprise Fin. Servs. v. Koenig, No. 11-

6140, 2012 WL 379940, *8 n.9 (D.N.J. Feb. 6, 2012). Defendants contend that Plaintiff’s failure to

respond to any arguments raised should result in the Court granting summary judgment. Szpond’s Reply

Br. (ECF No. 116), at 210; Colon’s Reply Br. (ECF No. 117), at 3-6; EPD’s Reply Br. (ECF No. 118), at

2. The Court agrees as to Counts Two, Seven to Eight, and Eleven, and disagrees as to Counts One and

Six.

A party’s “failure to respond to the defendant’s arguments on summary judgment constitutes an

abandonment of these causes of action . . . .” Brenner v. Twp. of Moorestown, No. 9-219, 2011 WL

1882394, *11 (D.N.J. May 17, 2011) (citation and internal quotations and brackets omitted); see also

Desyatnik v. Atl. Casting & Eng’g Corp., No 3-5441, 2006 WL 120163, *1 (D.N.J. Jan. 17, 2006)

(“[W]hen a party fails to offer any argument . . . in opposition to . . . [a] motion for summary judgment,

such claims . . . have been abandoned.”) (citation and internal quotations and ellipses omitted).

In respect to Count One, Colon argues that Plaintiff failed to argue in support of the claim. Colon’s

Reply Br. at 3-4. The Court disagrees. Plaintiff alleges that the Affidavit stated he was “observed” on the

10 The Court refers to the ECF page numbers for the documents discussed herein.

All Star Café Video possessing and giving the gun used in the December Shooting to Sanders. Compl. ¶

88. Also, that Defendants “withheld” Sanders’s statement that he lied and wished to recant his statement.

Ibid. In the Opposition, Plaintiff argues: (i) Defendants lacked probable cause to charge him; that (ii) the

Affidavit contains a fabrication as to what Colon saw in the All Star Café Video; and that (iii) Plaintiff

was falsely imprisoned in violation of due process. Opp. at 10-13. As a result, the Court finds Plaintiff

did not abandon the § 1983 claim. For substantially the same reasons, Plaintiff similarly did not abandon

his claim under the New Jersey Civil Rights Act.

Next, Colon argues Plaintiff “does not contest that he has no valid” § 1981 claim. Colon’s Reply

Br. at 4. The Court agrees. In the Complaint, Plaintiff alleges Defendants’ actions violated § 1981, as

well as the Fourth Amendment of the United States. Compl. ¶ 92. And that those actions were done to

“injure, oppress and intimidate” Plaintiff “because of his race, ethnicity, national origin, or other protected

attribute.” Id. ¶ 93. The Opposition, however, fails to provide the elements of a § 1981 claim (see

Castleberry v. STI Group, 863 F.3d 259, 263 (3d Cir. 2017)), does not articulate how Defendants’ actions

were motivated by race, national origin, or protected attribute, and the only reference to the Fourth

Amendment is in respect to Plaintiff’s malicious prosecution claim. Opp. at 10-12. Plaintiff also failed

to dispute Colon’s and the EPD’s assertion that § 1981 claims apply only in contracts and property

transactions cases. Colon’s Br. at 29-30; EPD’s Br. at 16-17. The Court, therefore, finds Plaintiff

abandoned the § 1981 claim, which is accordingly dismissed with prejudice. See Bernard v. Webb-McRae,

No. 17-7030, 2020 WL 1329934, *2 (D.N.J. Mar. 23, 2020) (dismissing §§ 1983, 1985, and New Jersey

Civil Rights Act claims for failure to respond to the arguments raised in) (citation omitted).

Colon further argues that Plaintiff does not “contest that he has no valid claim for” willful

disregard. Colon’s Reply Br. at 5. The Court agrees. Plaintiff alleges Defendants’ conduct “was

outrageous, wanton and willful,” done “in reckless indifference to” Plaintiff’s rights, and that Defendants

“acted with deliberate indifference to” Plaintiff’s rights. Compl. ¶¶ 110-11. The Opposition provides no

supporting arguments. Plaintiff further failed to respond to Colon’s argument that the willful disregard

claim “is actually a claim for Deliberate Indifference under the Due Process Clause of the Fourteenth

Amendment[,]” and that such claim applies only in the context of pre-trial detainees (see Colon’s Br. at

34-35), thereby “leading the Court to conclude that he had abandoned” the claim and “warranting its

dismissal.” Williams v. Lenape Bd. of Educ., 17-7482, 2020 WL 2111221, *19 (D.N.J. May 4, 2020)

(citation omitted). Thus, the willful disregard claim is dismissed with prejudice.

Additionally, the Court finds that Plaintiff abandoned the abuse of process claim. In support of

this claim Plaintiff alleges that Defendants “made improper, illegal and perverted use of the legal process

and their resort to the legal process was neither warranted nor authorized by law.” Compl. ¶ 114. And

that Defendants “had ulterior motives in initiating the legal process against Plaintiff by filing a criminal

complaint against him.” Id. ¶ 115. Plaintiff failed to discuss the claim in the Opposition and, like the §

1981 claim, did not provide the elements of the claim. See Galbraith v. Lenape Reg’l High Sch. Dist.,

964 F.Supp. 889, 897-98 (D.N.J. 1997). Lastly, Plaintiff does not refute Colon’s argument that because

“[t]here was no civil action and [he had] no involvement in the criminal case . . . after the institution of

charges[,]” the claim should be dismissed. Colon’s Br. at 36. The claim is therefore dismissed with

prejudice.

The Court further finds that Colon and the EPD are entitled to judgment as a matter of law on

Plaintiff’s abuse of process claim. “To succeed on a claim for malicious abuse of process, a plaintiff must

demonstrate some coercive or illegitimate use of the judicial process.” Galbraith, 964 F.Supp. at 898

(citation and internal quotations omitted). The plaintiff “must show an ulterior motive and some further

act after the issuance of process . . . .” Simone v. Golden Nugget Hotel and Casino, 844 F.3d 1031, 1036-

37 (3d Cir. 1988) (citation omitted). Indeed, the “touchstone of this tort is that, subsequent to the issuance

of process, a party has perverted that process.” Mosley v. Delaware River Port Auth., No. 99-4147, 2000

WL 1534743, *9 (D.N.J. Aug. 7, 2000) (citation omitted).

It is undisputed that criminal charges were approved against Plaintiff, that Colon prepared the

Affidavit and testified that he did not see Plaintiff possessing the gun, and that Sanders’s and Plaintiff’s

deposition testimony confirms Plaintiff did not give Sanders the gun. SSOF ¶¶ 21-22; PRSOF ¶¶ 16, 21-

22, 29-30, CSOF ¶¶ 16, 29-30; PSOF ¶¶ 13, 23, 25; SRSOF ¶ 13, 23; Colon’s Dep., at T63:8-T64:21;

Sanders’s Dep., at T26:6-17. It is also undisputed that the Indictment was issued against Plaintiff, that

Plaintiff was “waived” by the Kansas City Chiefs, and that two (2) months later, the Prosecutor’s Office

sought and obtained a dismissal of the Indictment. SSOF ¶¶ 24-25, 27; PRSOF ¶¶ 24-25, 27. These facts,

however, do not establish some “further act” necessary to sustain a claim. See Galbraith, 964 F.Supp. at

898 (Abuse of process claim, “cannot be premised upon a sinister motive, alone.”) (citations omitted).

Indeed, there are no facts suggesting Defendants “took some further act after issuance of process that was

illegitimate.” Cagno v. Ivery, 2022 WL 17887231, *9 (D.N.J. Dec. 23, 2022). Moreover, Plaintiff’s

charge, even if were brought for some ulterior motive, is not enough to sustain a claim. See Zebrowski v.

Wells Fargo Bank, N.A., 657 F.Supp.2d 511, 518 (D.N.J. 2009) (“Where a defendant carries out process

to its authorized conclusion, albeit with bad intentions, there is no valid claim for abuse of process.”)

(citation omitted).

Though in support of other claims, Plaintiff argues that Defendants purportedly omitted

information to obtain probable cause to charge Plaintiff, and that Defendants conspired with the

Prosecutor’s Office to “materially fabricate[] charges against Plaintiff and proceeded with the same

despite knowing them to be false.” Opp. at 12, 14. Even if true, such actions were taken prior to the

issuance of process at issue here. See Rogers v. Henry, No. 2-3495, 2006 WL 2850605, *4 (D.N.J. Oct.

3, 2006) (Because “Plaintiff’s allegations of abuse of process pertain only to actions that took place before

process had been issued, Plaintiff has not raised a genuine issue of material fact with regard to the existence

of a malicious abuse of process claim.”) (citation omitted). Thus, Colon and the EPD are entitled to

judgment as a matter of law, and Plaintiff’s abuse of process claim is dismissed with prejudice.

Finally, Colon argues that Plaintiff does not dispute that he has no claim for negligence. Colon’s

Reply Br. at 7. The Court agrees. Plaintiff alleges that Defendants committed negligence because they

owed him a duty of care, which they breached “by fabricating and manufacturing evidence[,]” and such

breach proximately causing him injuries. Compl. ¶¶ 129-33. The Opposition, however, neither provides

the elements of a negligence claim nor sets forth any argument in support of the same. Further, Plaintiff

does not dispute that the claim is barred by the Tort Claims Act. EPD’s Br. at 33.11 Thus, the claim is

dismissed with prejudice.

B. As Counts Five, Nine, Twelve and Fourteen Are Barred by the Tort Claims Act,

the Claims are Dismissed with Prejudice

Szpond argues that Plaintiff’s claims for false arrest and imprisonment and intentional infliction

of emotional distress are barred under the Tort Claims Act. Szpond’s Br. at 28-29. The EPD argues

Plaintiff’s claims for negligent screening, hiring, training, supervising and retention and vicarious liability

are similarly barred. EPD’s Br. at 27, 35. The Court agrees that the claims are barred.

The Tort Claims Act “sets forth a procedural framework for making claims against public entities

and public employees.” Geissler v. City of Atlantic City, 198 F.Supp.3d 389, 400 (D.N.J. 2016) (citing

N.J.S.A. 59:8-3). Under N.J.S.A. 59:8-8, a plaintiff is “forever barred from recovering against a public

entity or public employee if . . . [t]he claimant failed to file the claim with the public entity within 90 days

of the claim.” Geissler, 198 F.Supp.3d at 400 (citations and internal quotations omitted). “The notice

11 While Plaintiff argues Defendants are not entitled to qualified immunity (see Opp. at 15), which may be in response to

Colon’s immunity argument (see Colon’s Br. at 43-44), Plaintiff maintains that this argument is in support of claims for

malicious prosecution and false arrest and imprisonment. Opp. at 16.

provision” of the Tort Claims Act “applies to both intentional and non-intentional torts[.]” Lassoff v. New

Jersey, 414 F.Supp.2d 483, 490 (D.N.J. 2006) (citation omitted).

Szpond and the EPD correctly argue the claims “accrued at the time of arrest and/or

imprisonment.” Szpond’s Br. at 28; EPD’s Br. at 27. See Heath v. Gloucester Twp., 2020 WL 7090743,

*9 (D.N.J. Dec. 4, 2020) (“[C]laims for false arrest, false imprisonment” accrue “on the day of the incident

or arrest.”) (citation omitted). Here, Plaintiff turned himself in on January 5, 2017, and spent

“approximately two days in jail” thereafter. SSOF ¶¶ 21, 23; PRSOF ¶¶ 21, 23; SRSOF ¶ 27; Pl.’s Dep.,

T61:6-14; T62:6-12; T63:2-64:2. Under the Tort Claims Act, the Notice of Claim was to be filed no later

than April 5, 2017. Plaintiff failed to do so.

Plaintiff admits that he filed the Notice of Claim with Elizabeth on June 9, 201712. ESOF ¶ 4;

PRSOF ¶ 4. This is approximately two (2) months after notice should have been given. Plaintiff does not

dispute that he failed to timely file notice or that the Tort Claims Act bars his recovery. See, gen., Opp.

Because failure to file the notice of tort claim entitles the opposing party to judgment as a matter of law

(see Nance v. Danley, No. 17-6409, 2019 WL 2367064, *4 (D.N.J. June 5, 2019)), the Court finds Szpond

and the EPD are entitled to summary judgment on Counts Five, Nine, Twelve and Fourteen, which are

accordingly dismissed with prejudice.

C. Counts One, Three, Four, Six, and Ten Against Szpond Are Dismissed with

Prejudice

Because no genuine issues of material fact exist and Szpond is entitled to judgment as a matter of

law, the Court dismisses Counts One, Three, Four, Six, and Ten with prejudice. The Court also finds

Szpond is immune from suit because he is entitled qualified immunity.

12 Szpond states without support in the record that Plaintiff filed a notice of tort claim on July 6, 2017.

1. The Claims Lack Evidentiary Support

Plaintiff argues “Defendants lacked probable cause, as evidenced by the false Affidavit[,]” that

“[i]t was only through perjury, knowing omission and corruption that the Defendants obtained the

probable cause finding against Plaintiff[,]” and that “Defendants in concert and in conspiracy with” the

Prosecutor’s Office “materially fabricated charges against” Plaintiff. Opp. 12, 14.13 In reviewing the

record, the Court finds Szpond played no role in these allegations.

First, Plaintiff does not identify Szpond in the Notice of Claim. ESOF ¶ 4; PRSOF ¶ 4; Notice of

Claim, at ¶¶ 8-10. Second, Plaintiff admits all 30 statements of material facts proffered by Szpond (see

Opp. at 2-3), including paragraphs 5 and 27 (see SSOF ¶¶ 5, 27), which do not cite to materials in the

record in violation of Federal Rule of Civil Procedure 56(c)(1)(A)14. Third, Plaintiff does not proffer any

facts related to Szpond beyond his and Colon’s statement to Sanders that he could recant his statement

later. See, gen., PSOF ¶¶ 1-30. Indeed, the facts only show that Szpond “assisted” Colon “with the

investigation of Sanders.” SSOF ¶ 4; PRSOF ¶ 4. Szpond’s assistance, however, was limited to the

Sanders interview. CSOF ¶¶ 6-7; SSOF ¶ 16; PRSOF ¶¶ 6-7, 16.

During the Sanders Interview, Szpond and Colon told Sanders that he could recant any portion of

his statement but not that night. SSOF ¶ 20; PRSOF ¶ 20; PSOF ¶ 21; SRSOF ¶ 21. That was the extent

of Szpond’s involvement, which does not give rise to a genuine issue of material fact to preclude Szpond’s

entitlement to judgment as a matter of law. See Kaucher, 455 F.3d at 423 (Factual dispute is genuine if

only there is “a sufficient evidentiary basis on which a reasonable jury could find for the non-moving

party” and is material only if it can “affect the outcome of the suit under governing law.”) (citation

13 Plaintiff further asserts that when he “appeared at the” EPD, “he was separated from his attorney and [Defendants] attempted

to interview him on video.” PSOF ¶ 28. Szpond disputes the statement. SRSOF ¶ 28. Because the statement is unsupported

by the cited testimony (see Pl.’s Dep., at T140:5-9), and is in dispute, the Court does not consider the statement.

14 Plaintiff similarly admits the EPD’s statements that do not cite to the record. See ESOF ¶ 7; PRSOF ¶ 7.

omitted). To be sure, Szpond’s limited role is neither genuine nor material because Plaintiff’s claims rely

on the actions of Colon, the EPD, and non-party Cronin.

Cronin reviewed the Sanders Interview and All Star Café Video and determined there was probable

cause to charge Plaintiff. CSOF ¶¶ 10, 14-15; PRSOF ¶¶ 10, 14-15. Colon prepared the Affidavit and

testified at the grand jury that Sanders identified Plaintiff as the person who handed him the gun used at

the December Shooting. CSOF ¶¶ 16, 21; SSOF ¶ 22; PRSOF ¶¶ 16, 21-22. When asked what Szpond

“did wrong” in this matter, Plaintiff testified that “somebody could have said” to the grand jury when his

case was “presented[,]” that Sanders “said that he lied about his statement[,]” and that “somebody could

have done something” in connection about the All Star Café Video. Pl.’s Dep., at T114:20-T115:10.

Thus, these facts of record do not suggest that Szpond was involved in the decision to charge Plaintiff, the

preparation and presentation of the Affidavit, and/or Plaintiff’s limited jail stay.

In viewing the evidence in the light most favorable to Plaintiff, and in affording him all reasonable

inferences (see Brownstein v. Lindsay, No. 10-1581, 2012 WL 12918406, *1 (D.N.J. Jan. 3, 2012)), the

Court accordingly finds that there are no facts to suggest Szpond is liable to Plaintiff. And because the

record shows Plaintiff’s claims are directed to Colon and the EPD, there are no disputed facts to preclude

Szpond’s entitlement to summary judgment. Therefore, Counts One, Three, Four, Six, and Ten are

dismissed with prejudice.

2. Szpond is Entitled to Qualified Immunity

Plaintiff contends that Defendants are not entitled to qualified immunity because “[t]here is

sufficient evidence to conclude that they violated plaintiff’s substantive due process rights . . . .” Opp. at

15. The Court disagrees as to Szpond.

Qualified immunity “is an affirmative defense and the burden of pleading it rests with the

defendant.” Brenner, 2011 WL 1882394, 12 (D.N.J. May 17, 2011) (citation omitted). Qualified

immunity “shields government officials from suit and from liability if their conduct does not violate

clearly established statutory of constitutional rights of which a reasonable person would have known.”

Mack v. Yost, 63 F.4th 211, 221 (3d Cir. 2023) (citation and internal quotations omitted).

“The Third Circuit Court of Appeals uses a two-step inquiry to determine whether a government

official is entitled to qualified immunity in connection with the arrest of a private citizen.” Brenner, 2011

WL 1882394, at *12 (citation omitted). First, courts consider “if the facts, taken in the light most favorable

to the party asserting the injury, show the officer’s conduct violated a constitutional right.” Lozano v.

New Jersey, 9 F.4th 239, 245 (3d Cir. 2021) (citation and internal quotations, brackets and ellipses

omitted). Second, “whether the right was clearly established, because the contours of the right must be

sufficiently clear such that the unlawfulness of the action was apparent in light of pre-existing law[.]”

Lozano, 9 F.4th at 245 (citation and internal quotations and brackets omitted).

Here, the analysis stops at the first prong because there are no facts in dispute that suggest Szpond

violated Plaintiff’s constitutional rights. See Peroza-Benitez v. Smith, 994 F.3d 157, 165 (3d Cir. 2021)

(“An answer in the negative to either prong entitles an officer to qualified immunity.”) (citation omitted).

Because Szpond has demonstrated that he did not violate Plaintiff’s constitutional rights, the Court finds

Szpond is immune from liability.

D. Plaintiff’s Malicious Prosecution Claim (Count Ten) Brought Under § 1983

(Count One) and the New Jersey Civil Rights Act (Count Six) Are Dismissed with

Prejudice Against the EPD But Not as to Colon

The Court finds that the EPD is entitled to summary judgment as to Plaintiff’s malicious

prosecution claim because the EPD is immune from suit. As to Colon, however, Plaintiff has established

genuines issue of material fact to deny summary judgment. Therefore, the Court dismisses Counts One,

Six, and Ten with prejudice as to the EPD only.

Because § 1983 and the New Jersey Civil Rights Act claims are similarly analyzed (see Duardo

v. City of Hackensack, 2023 WL 4418606, *5 (D.N.J. July 10, 2023)), the Court will do so here. To

establish a claim for malicious prosecution under § 1983, a plaintiff must show: “(1) the defendants

initiated a criminal proceeding; (2) the criminal proceeding ended in his favor; (3) the defendants initiated

the proceeding without probable cause; (4) the defendants acted maliciously or for a purpose other than

bringing the plaintiff to justice; and (5) [the plaintiff] suffered deprivation of liberty consistent with the

concept of seizure as a consequence of a legal proceeding.” Zimmerman v. Corbett, 873 F.3d 414, 418

(3d Cir. 2017) (citation and internal brackets omitted). As to the second prong, the plaintiff “need only

show that the criminal prosecution ended without a conviction.” Thompson v. Clark, 142 S. Ct. 1332,

1341 (2022). The plaintiff must also show “the absence of” probable cause and qualified immunity.

Thompson, 142 S. Ct. at 1340-41. “Under New Jersey law, . . . [the] [p]laintiff must establish that the

defendant[:] (1) instituted proceedings[;] (2) without probable cause[;] and (3) with legal malice; and (4)

the proceedings terminated in favor of the plaintiff.” Trabal v. Wells Fargo Armored Serv. Corp., 269

F.3d 243, 248 (3d Cir. 2001) (citation omitted). Here, the Court will address in turn the EPD’s and Colon’s

arguments as to Plaintiff’s § 1983 and New Jersey Civil Rights Act claims.

1. The EPD Is Not Liable for Colon’s Malicious Acts or Willful Conduct

Preliminarily, the Court will review EPD’s potential liability. The EPD argues that Plaintiff’s

malicious prosecution claim should be dismissed because as a public entity it is not liable for the

intentional torts of its employees. EPD’s Br. at 32-33. The Court agrees.

Plaintiff alleges “Defendants were activated by malicious motives in prosecuting the charges

lodged against Plaintiff.” Compl. ¶ 126; see also Opp. at 12. The EPD, however, is immune from suit.

N.J.S.A. 59:2-10 provides that “[a] public entity is not liable for the acts or omissions of a public employee

constituting a crime, actual fraud, actual malice, or willful misconduct.” Indeed, public entities are

“incapable of acting with malice” such that a plaintiff may sustain a malicious prosecution claim against

the same. Jones v. New Jersey Dept. of Corrections, No. 4-4052, 2009 WL 3128351, *3 (D.N.J. Sept. 28,

2009) (citations omitted); see also Moriarty v. DiBuonaventura, No. 14-2492, 2014 WL 3778728, *10

(D.N.J. July 31, 2014) (Dismissing malicious prosecution claim against police department because claim

was “premised on the intentional, willful conduct of” officers); Graham v. Carini, No. 9-4501, 2011 WL

1639998, *4 (D.N.J. May 2, 2011) (finding municipality and police department were immune from suit

because malice was an element of plaintiff’s malicious prosecution claim).

Here, because the malicious prosecution claim requires Plaintiff to demonstrate that the EPD acted

maliciously, the EPD is entitled to judgment as a matter of law, and the claim is dismissed with prejudice.

2. Plaintiff Established Genuine Issues of Material Fact Exist as to Colon

a) A Reasonable Jury May Conclude There Was No Probable Cause to

Charge and Indict Plaintiff

Because the record indicates beyond dispute that: (1) the Defendants initiated a criminal

proceeding against Plaintiff; and that (2) the criminal proceeding ended in Plaintiff’s favor;15 the Court

will dispense with further review of these elements and address the following element, (3) the Defendants

initiated the proceeding without probable cause. Colon argues that because there was probable cause,

Plaintiff’s malicious prosecution claim should be dismissed. Colon’s Br. at 38. Because a material issue

of fact has been demonstrated, however, a reasonable jury could decide that there was no probable cause,

and the Court accordingly finds that Colon is not entitled to judgment as a matter of law.

“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.” Goodwin v. Conway, 836 F.3d 321, 327 (3d Cir.

15 Plaintiff’s “criminal proceeding ended in his favor” (see Zimmerman, 873 F.3d at 418 (citation and internal brackets

omitted)), because on July 17, 2017, the Prosecutor’s Office “sought, and was granted, an Order dismissing the indictment

against Plaintiff.” SSOF ¶ 27; PRSOF ¶ 27.

2016) (citation and internal quotations and brackets omitted). A court “may conclude that probable cause

exists as a matter of law if the evidence, viewed most favorably to the nonmoving party, reasonably would

not support a contrary factual finding.” Goodwin, 836 F.3d at 327 (citation and internal quotations and

brackets omitted). The question of probable cause “is generally left to the jury . . . .” Goodwin, 836 F.3d

at 327 (citation omitted). This is because a probable cause determination “is necessarily fact-intensive,

and will usually be appropriate for a jury to determine whether probable cause existed.” Dempsey v.

Bucknell University, 834 F.3d 457, 468 (3d Cir. 2016) (citation omitted). This analysis applies in § 1983

actions. See Sherwood v. Mulvihill, 113 F.3d 396, 401 (3d Cir. 1997) (“[t]ypically, the existence of

probable cause in a section 1983 action is a question of fact.”) (citations omitted).

Plaintiff argues that “the question of probable cause in a section 1983 damage suit is one for the

jury.” Opp. at 11 (quoting Montgomery v. De Simone, 159 F.3d 120, 124 (3d Cir. 1998) (citation omitted)).

The Court agrees. “There is a tension inherent in evaluating probable cause at the summary judgment

stage.” Castro v. New Jersey, 521 F.Supp.3d 509, 519 (D.N.J. 2021), appeal dismissed sub nom. As a

result, “[t]he Third Circuit has directed . . . that [c]ourts should exercise caution before granting a

defendant summary judgment in a malicious prosecution case when there is a question of whether there

was probable cause for the initiation of the criminal proceeding . . . .” Castro, 521 F.Supp.3d at 522

(citation and internal quotations omitted). To that end, it “certainly is inappropriate for a court to grant a

defendant officer’s motion for summary judgment in a malicious prosecution case if there are underlying

factual disputes bearing on the issue or if reasonable minds could differ on whether he had probable cause

for the institution of the criminal proceedings . . . .” Id. at 522-53 (citation and internal quotations omitted).

Because a reasonable jury could find that there was no probable cause for Plaintiff’s charge and

Indictment, the Court finds that “[o]n this record, a jury, and not this Court, must resolve these issues.”

Id. at 523.

As an initial matter, Colon appropriately argues that Cronin “was not required to introduce”

Sanders’s “recantation” to the grand jury. Colon’s Br. at 16. See Fehl v. Borough of Wallington, 2021

WL 4473157, *15 (D.N.J. Sept. 30, 2021) (“[T]here is no obligation to present exculpatory evidence to

grand juries.”) (citation omitted). The Court also notes that in malicious prosecution cases, a “grand jury

indictment constitutes prima face evidence of probable cause[.]” Deposito v. New Jersey, 2022 WL

4626501, *5 (D.N.J. Sept. 30, 2022) (citations and internal ellipses omitted). A plaintiff, however, may

“rebut the presumption [] by showing that the indictments resulted from fraud, perjury or other corrupt

means.” Deposito, 2022 WL 462501, at *5 (citation and internal quotations omitted).

It is undisputed that Cronin “did not believe that the” All Star Café Video alone established

probable cause to “arrest Plaintiff,” rather that the All Star Café Video be considered along with Sanders’s

statement that Plaintiff gave him the gun . CSOF ¶¶ 14-15; PRSOF ¶¶ 14-15. In other words, without

both, there would not have been sufficient probable cause to charge Plaintiff. It is also undisputed that

the Affidavit, which memorialized the basis for probable cause, “was based upon” the Sanders Interview

and All Star Café Video “taken together.” CSOF ¶ 17; PRSOF ¶ 17. The Court, however, finds that

genuine issues of material fact exist as to Colon’s representation in the Affidavit to rebut the presumption

of probable cause.

While the Affidavit provides that Plaintiff “was observed on surveillance video handing over a

handgun to co-defendant, [] Sanders, outside of All Star Café” and that Sanders “admit[ted] that” Plaintiff

“handed him the handgun[,]” Colon testified that “he never saw [Plaintiff] possessing a gun[,]” “didn’t

see [Plaintiff] with a gun,” and that Plaintiff is “not seen with a gun in his hands” in the All Star Café

Video. Ex. E to Silverman’s Cert., the Aff.; PSOF ¶¶ 13, 23, 25; SRSOF ¶ 13, 23; Colon’s Dep., at T63:8-

T64:21. Moreover, the Affidavit does not provide Sanders’s statement that he lied or include Sanders’s

request to retract portions of his statement. PSOF ¶ 24; Ex. E to Silverman Cert., the Aff. As a result,

whether there was probable cause, considering that Colon’s representation in the Affidavit is undermined

by his own deposition testimony, and Colon’s alleged “purposeful omission” of Sanders’s statement that

he lied and that he wished to recant (see Opp. at 12), are genuine fact issues that are inappropriate for

summary judgment.

The Court notes that Plaintiff admitted that Colon “did not have any involvement in th[e] decision

to charge Plaintiff” and that Colon’s grand jury testimony was in response to questions posed by the

Prosecutor’s Office. CSOF ¶¶ 10, 22; PRSOF ¶¶ 10, 22. This, however, does not establish that the record

evidence “reasonably would not support a contrary factual finding.” Goodwin, 836 F.3d at 327 (citation

and internal quotations omitted). In “constru[ing] all facts and inferences in the light most favorable to”

Plaintiff, the Court concludes that a reasonable jury should determine whether probable cause was present.

Read v. Profeta, 397 F.Supp.3d 597, 625 (D.N.J. 2019) (citation omitted). For this reason, the Court

denies Colon’s motion for summary judgment as to Counts One, Six, and Ten.

b) The Same Jury May Conclude Colon Acted Maliciously

Plaintiff argues that like probable cause, whether his prosecution “was done with legal malice”

should similarly be put to the jury. Opp. at 11. The Court agrees.

In a malicious prosecution claim, whether the defendant acted maliciously or for a purpose other

than bringing the plaintiff to justice “may be inferred from lack of probable cause.” Roberts v. Cty. of

Essex, 2022 WL 18024214, *9 (D.N.J. Dec. 30, 2022) (citation and internal quotations omitted). “As a

result, fact issues precluding a finding on probable cause will generally also preclude a finding on malice.”

Roberts, 2022 WL 18024214, at *9 (citation and internal quotations omitted). Moreover, “[i]t is settled

law that officers who conceal and misrepresent material facts to” prosecutors “are not insulated from a §

1983 claim for malicious prosecution simply because the prosecutor, grand jury . . . all act independently

to facilitate erroneous convictions.” Halsey v. Pfeiffer, 750 F.3d 273, 297 (3d Cir. 2014) (citations

omitted). Here, because a reasonable jury could find that probable cause was lacking, the same jury could

similarly conclude that Colon acted with malice in this case.

The Affidavit reads Plaintiff “was observed on surveillance video handing over a handgun to”

Sanders, despite Colon’s testimony that “he never saw [Plaintiff] possessing a gun[,]” and that Plaintiff is

“not seen with a gun in his hands” in the same video. Ex. E to Silverman’s Cert., the Aff.; PSOF ¶¶ 13,

23, 25; SRSOF ¶ 13, 23; Colon’s Dep., at T63:8-T64:21. There is also a genuine issue of material fact

regarding whether Cronin reviewed the Affidavit and/or spoke with Colon prior to charging Plaintiff. See

Colon’s Dep., at T99:2-10; Cronin’s Dep., at T38:7-11; see also Fed. R. Civ. P. 56(c)(3) (Courts “may

consider other materials in the record” in deciding motions for summary judgment). As a result, a

reasonable jury could conclude that Colon acted maliciously in his communication with Cronin. Such a

finding is further supported by Colon’s testimony that Cronin read and approved the Affidavit before it

was presented to the judge. Colon Dep., at T69:13-23, T71:25-T72:8. See Evans v. City of Newark, 2023

WL 2535283, *18-19 (D.N.J. Mar. 16, 2023) (finding jury could conclude defendants acted maliciously

due to material omissions). In so finding, the Court does not “weigh the evidence” and takes no position

as to the truth of the same. Camp v. Scholtz, No. 17-1895, 2020 WL 1330192, *5 (D.N.J. Mar. 23, 2020)

(citations omitted).

c) The Same Jury May Find Colon Influenced or Participated in the

Prosecutor’s Office’s Decision to Institute Criminal Proceedings

Against Plaintiff

Colon argues that because Colon did not influence or participate in the decision to prosecute

Plaintiff, the malicious prosecution claim should be dismissed. While Plaintiff does not dispute or

otherwise respond to Colon’s assertion, the Court disagrees.

“Although prosecutors are the ones who typically initiate criminal proceedings, a law enforcement

officer may be liable for malicious prosecution where the officer influenced or participated in the decision

to institute criminal proceedings.” Saint-Jean v. Cty. of Bergen, 509 F.Supp.3d 87, 101 (D.N.J. 2020)

(citation and internal quotations omitted). Here, there is a genuine issue of material fact regarding Colon’s

involvement in Cronin’s decision to charge and prosecute Plaintiff. See Colon’s Dep., at T69:13-23;

T71:25-T72:8; T99:2-10; Cronin’s Dep., at T38:7-11; see also Diaz v. Donahoe, No. 10-6510, 2013 WL

85262, *13 (D.N.J. Jan. 4, 2013) (considering uncited deposition testimony in consideration of a motion

for summary judgment); see also Turkmany v. Excelsior Ins. Co., No. 12-142, 2014 WL 3556390, *6 n.3

(D.N.J. July 18, 2014) (considering uncited exhibit in summary judgment motion).

d) Evidence Shows Plaintiff Was Deprived of His Liberty

Malicious prosecution claims under § 1983, require a showing that Plaintiff “suffered deprivation

of liberty consistent with the concept of seizure as a consequence of a legal proceeding.” Halsey, 750

F.3d at 297 (3d Cir. 2014) (citations omitted). Colon argues that Plaintiff was not deprived of liberty

because “[t]hough Plaintiff was arrested, he was able to make bail and remained free until his charges

were dismissed.” Colon’s Br. at 41. This statement is internally inconsistent and contradicted by the

record evidence. Colon’s argument that Plaintiff was not deprived of liberty while nevertheless

acknowledging Plaintiff’s arrest is in effect an oxymoron.

The United States Supreme Court has held that “the arrest of a person is quintessentially a seizure.”

Torres v. Madrid, 141 S. Ct. 989, 996 (2021) (citation and internal quotations omitted). It is undisputed

that Plaintiff suffered a further deprivation of his liberty because after turning himself in, he “spen[t]

approximately two days in jail.” SSOF ¶ 23; PRSOF ¶ 23; PSOF ¶ 27; SRSOF ¶ 27; Pl.’s Dep., at T61:6-

14; T62:6-12; T63:2-64:2. Moreover, Colon has not disputed these facts and they are thereby established

for purposes of the motion. See Fed. R. Civ. P. 56(e)(2) (Party’s “fail[ure] to properly address another

party’s assertion of fact” permits the court to “consider the fact undisputed for purposes of the motion[.]”).

Accordingly, for purposes of the motion, Plaintiff “suffered deprivation of liberty consistent with the

concept of seizure as a consequence of a legal proceeding.” Zimmerman, 873 F.3d at 418 (citation and

internal quotations omitted). As a result, Colon is not entitled to judgment as a matter of law on the claim,

and summary judgment is denied.

3. Colon Is Not Entitled to Qualified Immunity

Because the New Jersey Civil Rights Act is “a state law analogue to Section 1983,” federal law

applies to a qualified immunity analysis under such a claim, and “because qualified immunity under §

1983 is an immunity from suit,” so too is it an immunity from suit under the New Jersey Civil Rights Act.

Lozano, 9 F.4th at 244 (citations and internal quotations omitted). In the context of a police officer, the

officer “is entitled to qualified immunity under § 1983 [and the New Jersey Civil Rights Act] unless the

plaintiff shows that the officer violated clearly established statutory or constitutional rights of which a

reasonable person would have known.” Id. 9 F.4th at 244 (citation and internal quotations omitted).

As discussed herein, in deciding whether qualified immunity applies, Third Circuit courts

consider: “(1) whether the facts alleged by the plaintiff show the violation of a constitutional right, and

(2) whether the law was clearly established at the time of the violation.” Jefferson v. Lias, 21 F.4th 74,

80 (3d Cir. 2021) (citation omitted). Here, the Court finds Colon is not entitled to qualified immunity

because both prongs are established based on the record evidence.

In support of the malicious prosecution claim, Plaintiff argues “Defendants lacked probable cause,

as evidenced by the false Affidavit[,]” that “[i]t was only through perjury, knowing omission and

corruption that the Defendants obtained the probable cause finding against Plaintiff[,]” and that

“Defendants in concert and in conspiracy with” the Prosecutor’s Office “materially fabricated charges

against the Plaintiff . . . .” Opp. 12, 14. As to what rights Colon purportedly violated that were clearly

established at the time, Plaintiff alleges that pursuant to the Fourth Amendment, he “had a constitutional

right to be free from the use of unlawful seizure, arrest and incarceration . . . .” Compl. ¶¶ 5, 7, 85. Colon

opposes this assertion by contending that because the Affidavit and All Star Café Video established

probable cause and he relied on Cronin’s direction in charging Plaintiff, he did not violate Plaintiff’s

constitutional rights. Colon’s Br. at 20-21. The Court disagrees.

On this record, there are genuine issues of material fact as to whether there was probable cause to

arrest, indict, and prosecute Plaintiff. There is also a genuine issue of material fact as to whether Colon

acted maliciously, and whether Colon influenced or participated in the decision to charge Plaintiff.

Moreover, Colon’s testimony undercuts his own representation in the Affidavit that Plaintiff was seen

handing Sanders the gun used in the December Shooting. On these facts, it cannot be said that Colon

“reasonably but mistakenly conclude[d] that probable cause [was] present . . . .” Lozano, 9 F.4th at 246

(citations and internal quotations omitted). Given this, it would be inappropriate to conclude that Colon

is entitled to qualified immunity. See Bland v. City of Newark, 900 F.3d 77, 83 (3d Cir. 2018) (“[Q]ualified

immunity protects all but the plainly incompetent or those who knowingly violate the law.”) (citation and

internal quotations omitted). Thus, Colon’s liability under § 1983 and the New Jersey Civil Rights Act is

a question for the jury.

E. Colon and the EPD Are Entitled to Judgment as a Matter of Law on Counts Three

and Four

In support of the § 1985 claim, Plaintiff alleges Colon and the EPD were involved in “a conspiracy

to violate the civil rights of Plaintiff based on his race, ethnicity, national origin, or other unlawful basis.”

Compl. ¶ 95. And under § 1986, Plaintiff alleges Colon and the EPD “had knowledge of the

discrimination/violation of constitutional rights perpetrated on Plaintiff . . . but neglected and failed to

prevent said wrongful and illegal acts when they had power to do so.” Id. ¶ 98. In the Opposition, Plaintiff

argues “Defendants in concert and in conspiracy with the” Prosecutor’s Office “materially fabricated

charges against [] Plaintiff and proceeded with the same despite knowing them to be false.” Opp. at 14.

§ 1985(3) “imposes liability on two or more persons who conspire for the purpose of depriving

any person or class of persons of the equal protection of the laws.” Ziglar v. Abbasi, 582 U.S. 120, 150

(2017) (internal quotations and ellipses omitted). § 1986 provides that any “person who, having

knowledge that any of the wrongs conspired to be done, and mentioned in section 1985 . . . are about to

be committed, and having power to prevent or aid in preventing the commission of the same, neglects or

refuses so to do, . . . shall be liable to the party injured . . . .” § 1986.

As an initial matter, the EPD alleges a municipality may not be liable under § 1985. EPD’s Br. at

17-18. The Court disagrees with this proposition. See Johnson v. City of Clifton, 2023 WL 4248859, *6

(D.N.J. June 29, 2023) (§ 1985 claim against municipal police department is considered under the same

Monell analysis applied in § 1983 actions) (citations omitted). Nevertheless, the Court finds that Colon

and the EPD are entitled to judgment as a matter of law on Plaintiff’s §§ 1985 and 1986 claims.

First, Plaintiff has no cognizable § 1985(3) claim because there is no evidence that “two or more

persons” conspired against Plaintiff. Cronin and the Prosecutor’s Office were dismissed from the case,

and Plaintiff has no cause of action against Szpond, who is also entitled to qualified immunity. Further,

Plaintiff lacks specificity as to who purportedly conspired to deprive him of rights beyond “Defendants”

and “multiple actors, in concert with each other[.]” Opp. at 14.

Second, even if Cronin and Colon were alleged to have conspired together, there is no evidence

beyond Plaintiff’s personal view (see PSOF ¶ 29), which suggests such conspiracy was due to Plaintiff’s

race or class. See Lasche v. New Jersey, No. 20-2325, 2022 WL 604025, *7 (3d Cir. Mar. 1, 2022)

(“[T]here must be some racial, or perhaps otherwise class-based invidiously discriminatory animus behind

the conspirators’ action.”) (citation and internal quotations omitted); see also Reeves v. Cty. of Bergen,

2022 WL 4104239, *7 (D.N.J. Sept. 8, 2022) (“Section 1985(3) actions are limited to conspiracies

predicated on racial, or perhaps otherwise class based, invidiously discriminatory animus.”) (citation and

internal quotations omitted). Indeed, Plaintiff’s personal beliefs do not give rise to a § 1985 action. See

Landis v. Ebbert, 22-1265, 2022 WL 17496012, *1 (3d Cir. Dec. 8, 2022) (“The allegations for a

conspiracy must be based in fact and not merely upon plaintiff’s own suspicion and speculation.”)

(citations and internal quotations and brackets omitted). The record contains no evidence that Cronin and

Colon’s alleged conspiracy was due to Plaintiff’s race or class. If Plaintiff were to assert that such

conspiracy was between Colon and Szpond, then the claim similarly fails because “a plaintiff cannot

maintain a conspiracy claim against[] actors within the same municipal entity” because such actors “are

considered a single entity that cannot conspire with itself.” Reeves, 2022 WL 4104239, at *7 (citations

and internal quotations omitted).

In short, there is no evidence for a reasonable jury to “infer from the circumstances that the

Defendants had a meeting of the minds” as to an alleged conspiracy to deprive Plaintiff of the equal

protection of the laws. Brown v. Caldwell, 2023 WL 4014476, *8 (D.N.J. June 15, 2023) (citation and

internal quotations omitted). And because the § 1985 claim fails, so too does the § 1986 claim. Pierre v.

City of Elizabeth, 2022 WL 16362463, *3 (D.N.J. Oct. 28, 2022). Thus, Colon and the EPD are entitled

to judgment as a matter of law and Counts Two and Three are dismissed with prejudice.

IV. CONCLUSION

For the reasons set forth above, Szpond’s motion for summary judgment (ECF No. 110) is

GRANTED, and Plaintiff’s Complaint (ECF No. 1) in its entirety is DISMISSED with prejudice as to

Defendant Szpond. Colon’s motion for summary judgment (ECF No. 111) is GRANTED in part and

DENIED in part, GRANTED as to Counts Two to Four, Seven to Eight, and Eleven in Plaintiff’s

Complaint (ECF No. 1), which are DISMISSED with prejudice as to all Defendants, and DENIED as

to Counts One, Six, and Ten. Because Counts Five, Nine, Twelve, and Fourteen are barred by N.J.S.A.

59:1-1, et seq. (the “Tort Claims Act”), these Counts are also dismissed with prejudice as to all

Defendants. The EPD’s motion for summary judgment (ECF No. 112) is GRANTED, and Plaintiff’s

Complaint (ECF No. 1) in its entirety is DISMISSED with prejudice as to Defendant the EPD. The

Court awards no costs, expenses, or attorney fees to any party.

An appropriate Order accompanies this Opinion.

s/ Julien Xavier Neals

DATED: 9/26/2023 JULIEN XAVIER NEALS

United States District Judge