KELLEY v. REYES

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

ERIC KELLEY,

Plaintiff, Civ. No. 2:19-cy-17911 (WIM)

Vv.

RICHARD REYES, LOUIS STELL,

ROBERT SMITH, ESTATE OF MICHAEL

FINER, ALEX NIEVES, PETER IURATO,

TIMOTHY JORDAN, RAYMOND REID,

ALBERT CLARK, in their individual

capacities, RICHARD MUNSEY and

VINCENT AMORESANO, in their official

capacities, and THE CITY OF PATERSON,

Defendants.

RALPH LEF,

Plaintiff, Civ. No. 2:19-cv-17936 (WJM)

Vv.

ALBERT CLARK, ESTATE OF MICHAEL OPINION

FINER, PETER ILURATO, TIMOTHY

JORDAN, ALEX NIEVES, RAYMOND

REID, RICHARD REYES, ROBERT

SMITH, LOUIS STELL, and JOHN DOES

#1-10, in their individual capacities,

RICHARD MUNSEY and VINCENT

AMORESANO, in their official capacities,

and THE CITY OF PATERSON,

Defendants.

WILLIAM J. MARTINL U.S.D.J.:

Plaintiffs Eric Kelley and Ralph Lee, Jr. (“Plaintiffs”) spent 24 years incarcerated

for the robbery of a video store in Paterson, New Jersey and murder of the store clerk—

crimes that they contend they did not commit, After DNA testing in 2014 proved that the

distinctive green plaid baseball hat left at the crime scene was worn by Eric Dixon,

Plaintiffs Kelley and Lee in separate actions, filed various civil rights and related claims

against the City of Paterson (“Paterson” or “City”) and members of the Paterson Police

Department (“PPD”) in their individual capacities—Lieutenant Albert Clark, the Estate of

Detective Michael Finer,! Detectives Peter lurato, Timothy Jordan, Alex Nieves, Richard

Reyes, Robert Smith, Sergeants Raymond Reid, and Louis Stell (“individual

Defendants”).’ Before the Court are ten separate motions for summary judgment filed in

each case by:

1. City of Paterson, Kelley ECF No. 226, Lee ECF No. 200;

2. Sgt. Reid, Kelley ECF No. 216, Lee ECF No. 192;

3. Estate of Finer, Kelley ECF No. 217, Lee ECF No. 193;

4A. Lt. Clark, Kelly ECF No, 218, Lee ECF No. 194;

». Reyes, Kelly ECF No. 219, Lee ECF No, 195;

6. — [urato Goins in Reyes’ motion), Kelly ECF No. 222, Lee ECF No. 197;

7. Jordan, Kelly ECF No, 221, Lee ECF No. 196;

8. Smith, Kelly ECF No, 223, Lee ECF No. 198;

9, Set. Stell, Kelly ECF No. 220, Lee ECF No. 237;

10. Nieves, Kelly ECF No. 224, Lee ECF No. 235,

The Court decides these motions without oral argument. Fed. R. Civ. P. 78(b). For

the reasons stated below, the motions are GRANTED IN PART and DENIED IN PART.

I, BACKGROUND

Around 1:30 p.m. on July 28, 1993, Plaintiffs claim that Eric Dixon robbed Victoria’s

Video in Paterson, New Jersey and murdered the store clerk, Tito Dante Merino. See Pls,

Stmt. Of Add’l Material Facts (PSAMEF) § 1, Kelly ECF No. 234; Lee ECF No. 208. Lt.

Clark and Sgt. Stell assigned Det. Reyes to be lead detective for the homicide and Sgt.

Reid, Finer, Smith, Iurato, Nieves, and Jordan to assist. Reyes Stmt, of Material Facts

(SUMF), 4 5, Kelley ECF No. 219-2, Lee ECF No. 195-2; City of Paterson Stmt. Of

Material Undisputed Facts (Paterson SUMF) 4 6, Kelley ECF No. 226-1, Lee ECF No.

200-1. Initial interviews with three witnesses who stopped by the store around the time of

the murder - Majdi Mousa, Carmen Paredes, and James Thompson - supported the theory

that the perpetrator was a lone medium-built Black man wearing a green plaid hat. PSAMEF

' Finer passed away on May 23, 2018. Finer Stmt. Of Material Facts, § 15, Kelley ECF No. 217; Lee ECF No. 193.

* The claims against Vincent Amoresano and Richard Munsey have been dismissed. See July 1, 2020 Op., Kelley

ECF No, 81; Lee ECF No. 68.

4. In a statement to the police that day, Mr. Mousa stated he saw a Black man coming out

from the back room of the store bleeding from his right ear and with blood on both his arms. -

and shirt. fd. at ¥] 4b.

On July 30, 1993, Jordan and Sgt. Reid, who were assigned to canvas the

neighborhood in search of possible witnesses to the homicide, received information from

a “confidential source”? claiming to have observed two Black males (one identified as “the

son of Mr. Lee” and the other as “K.C.”), and a white male (“the son of Mrs. Rose”) in

front of the video store around the time of the homicide. PSAME, 4ff 131-132; Jordan Stmt.

Of Undisputed Material Facts Jordan SUMF) {f 7-9, Kelley ECF No. 221-2, Lee ECF No.

196-2. In addition to the anonymous source, according to Reyes, the PPD purportedly

received corroborating information from a woman at a laundromat who overheard that two

Black men and one white man were seen outside Victoria’s Video around the time of the

murder, City of Paterson Stmt. Of Undisputed Material Facts (Paterson SUMF) ¥ 34,

Kelley ECF No. 226-1, Lee ECF No. 200-1.

Set. Reid’s handwritten notes show the last name “Lee” with first name “Travis”

and “yes” next to it and first name “Ralph” crossed out, PSAMF § 133. The notes also

indicate that “K.C.” or “Kasey” was seen hours earlier wearing “green shorts/gray top”

with a scratch on his right cheek area, fd. The third person identified by the confidential

source was Greg McCourt, but Mr. McCourt turned out to have an alibi. /d. at 9 141. While

not reflected in Sgt. Reid’s contemporancous notes, the source allegedly informed police

that the two Black males were “in the brick building on the corner of Jasper and Union

Avenue up on the balcony.” Paterson SUMF § 24, Jordan SUMF § 10. Upon receiving a

radio transmission of a male that Defendants claim fit the description of KC nearing his

detective vehicle, Sgt. Reid stopped Mr. Kelley. Paterson SUMF §f 26-27.

Sgt. Reid, Jordan, and Sgt. Stell found Mr. Lee in the stairwell of the brick apartment

building, 7d. at § 31; Jordan SUMF § 11. Mr. Lee does not dispute that he agreed to go to

the police station for an interview. Jordan SUMF § 11. Iurato, Nieves, and Set. Stell

transported Mr. Lee to the police station in the back ofa police car. PSAMF 4 41. Mr. Lee

maintains he was handcuffed, but he does not know by whom. /d.; Lee Dep. 13:18-21, Pls.

Ex, 134, Kelley ECF No. 234-135, Lee ECF No. 208-135,

Mr. Kelley was nearby but not in the building at Jasper and Union; Set. Reid stopped

him because he “fit the description” given by the confidential source, see PSAMF § 151,

even though at the time, Mr, Kelley did not have a scratch on his face and was not wearing

a gray top. Jd. at {] 136-137, 155. Plaintiffs dispute that Mr. Kelley has ever gone by the

nickname “KC,” “Kasey,” or “Kasey.” Pls. Resp. to Paterson SUMF 28, Kelley ECF No.

235, Lee ECF No. 209; PSAMF § 135. At Set, Reid’s request, Mr. Kelley agreed to go to

the police station. Pls. Resp. to Paterson SUMF § 29, According to the PPD Supplemental

Report (PPD Report) written by Reyes, Mr. Kelley was transported to the police bureau by

Reyes and Finer, PPD Report at Kelley Police 014, Pls. Ex. 6, Kelley ECF No. 237-2, Lee

3 The unknown source was not identified, located, or asked to view photographs or a live lineup, PSAMF ¥ 164,

ECF No. 211-2. There, Mr. Kelley and Mr. Lee were separately interrogated for hours.

PSAME 4ff 57, 87. □

A. Kelley’s Confession

Sat. Stell, Reyes, Smith, Finer, and Jordan were in the room with Mr. Kelley at some

point during the July 30 interrogation. Jd. at § 31,4 Mr. Kelley, who had a severe heroin

addiction as well as serious cognitive limitations, denied any knowledge of the murder. Jd.

at 21, 28, 32. Refusing to accept that, Sgt. Stell got angry and struck Mr. Kelley on the

head with an open hand, which Reyes and Jordan witnessed. fd. at 35, 37; Kelley Dep.

32:22-33:5, Pls. Ex. 135, Kelley ECF No. 234-136, Lee ECF No. 208-136. Reyes and Set.

Stell insisted that Mr. Kelley committed the murder and demanded that he tell the truth.

PSAMEF 4 33; Kelley Dep. 22:15-25. Reyes promised Mr. Kelley that ifhe gave Defendants

the statement they wanted, he would be allowed to go home. /d. at 4/34; Kelley Dep. 23:1-

4, According to Reyes, Finer remarked that he would call Mr. Kelley’s mother to let her

where he was and then, Mr. Kelley began his “free-flowing narrative” confession at about

3:35 or 3:40 p.m. fd. at ¥ 89; Reyes Dep. 350:19-22, 356:3-13, 357:4-10, Pls. Ex. 126,

Kelley ECF No. 234-127, Lee ECF No. 208-127. Mr. Kelley’s waiver of Miranda rights

form indicates it was taken at 3:30 p.m. and is signed by Jordan and Set. Stell as witnesses.

PPD Report at Kelley Police 078-085 (Kelley Miranda Waiver). After the unrecorded oral

confession, at 4:20 p.m., Smith assisted Reyes in taking Mr. Kelley’s formal six-page

written statement. PPD Report at Kelley Police 080-085 (Kelley Confession); see PSPAMF

89. Mr, Kelley claims he agreed to give a confession under duress and before being

read his Miranda rights. PSAMF 4 39.

In the written confession, which also implicated Mr. Lee, Mr, Kelley admitted

stabbing the store clerk and stated that the green cap he wore on the day of the murder

belonged to him. Kelley Confession at Kelley Police 082; Paterson SUMP, 4 44. Between

4:20 and 5 pm, Mr. Kelley identified a photograph of David Hancock, even though that

photo was purportedly not taken until about 7 p.m. that night. PSAMF § 91. Mr. Kelley

then consented to a search of his home. /d. at ] 90. He stated that the clothes he wore at the

time of the murder had blood on them and that he had put the clothes in a hamper at home.

id, at § 70. Those clothes were collected during the search but when tested, showed no

blood on them. Jd.

Mr, Kelley’s confession incorporated other facts that were never corroborated such

as details regarding the sale of some of the stolen goods to Bob’s Supermarket and

elsewhere. /d. at 60-63, 68. Defendants were not able to find the murder weapon that

according to Reyes’ PPD Report, Mr. Kelley stated he threw in an alleyway on Wayne Ave

and Union Ave, /d. at 4 67. Other details in both Mr. Kelley and Mr. Lee’s confessions also

later proved incorrect including whether a yellow chair with blood on it was moved before

or after the victim died and whether the victim walked to the back of the store or his body

‘ Paragraph 31 of PSAMF states Defendants were in the interrogation room with Mr, Kelley on June 30, 1996,

which the Court assumes is a typographical error.

was carried there after he died. Jd. at 9] 62, 63.

B. Lee’s Confession

Mr. Lee, who also had serious cognitive limitations and a severe heroin addiction at

the time, see PSAME {Jf 21, 28, recalls that seven to nine officers, including Nieves, beat

him and repeatedly insisted that he was lying. /d. at ¢ 46; Lee Dep. 19:25-20:23; Lee Aff.,

Pls. Ex. 150, Kelley ECF No, 234-151, Lee ECF No. 208-151. In addition to accusing him

of lying, Mr. Lee also contends Nieves gestured menacingly toward his gun and punched

him in the nose. PSAMF 46, 47; Lee Dep. 76:3-14; Lee Aff. Mr. Lee’s nose continued

to bleed while he was screaming that he did not do anything but officers continued to

declare that he was lying. Lee Dep, 20:24-22:8; Lee Aff. Eventually, officers told him that

Mr. Kelley had confessed. Jd. at 20:20-23; Lee Aff. Despite denying any involvement in

the homicide, Mr. Lee agreed to sign a statement confessing to the crime. PSAMF ¥ 48.

Nieves and Jurato took Lee’s statement while Sgt. Stell was going back and forth between

the two interrogations. Jd. at PPD Report at Kelley Police 086-092 (Lee Confession).

Turato typed up Mr, Lee’s written statement. Iurato Dep. 167:22-168:1; 179:13-14, Pls. Ex.

145; Kelley ECF No. 234-146, Lee ECF No. 208-146; Paterson SUMF 4§ 49, 50. Iurato

and Nieves signed as witnesses to Mr. Lee’s confession, as well as to Mr. Lee’s waiver of

Miranda rights. Lee Confession at Kelley Police 092; PPD Report at Kelley Police 070.

Mr. Lee’s five-page confession statement depicts how Mr. Lee tried to wipe away

blood from the crime scene using a “rag” that he left in the back room where the victim

was found. PSAMF 4 69; PPD Report at Kelley Police 090, Defendants never found that

rag. PSAMF { 69, Mr, Lee’s confession also contains a description of the clothes Mr.

Kelley was wearing at the time of the crime. Jd. at | 70. Contrary to PPD procedure on

confessions, which was to type questions and answers verbatim as they are being given,

see id. at | 74, in the notes file maintained by Reyes, there was a handwritten script of Mr.

Lee’s confession. Pls. Resp. to Jordan SUMEF { 2q., Kelley ECF No. 236, Lee ECF No.

210; Handwritten Confession, Pls. Ex. 70, Kelley ECF No. 234-71, Lee ECF No. 208-71.

The handwritten confession is substantially the same as the typed confession. PSAMF §

78. The existence of handwritten Q and A’s would be a “red flag” that the confession could

have been fabricated. Reid Dep, at 135:18-22, 136:7-137:16, Pls. Ex. 131, Kelley ECF No.

234-132, Lee ECF No. 208-132; PSAMF {ff 74-79.

C. Witnesses and Other Evidence

On July 31, 1993, after Plaintiffs were arrested, James Thompson, one of the

witnesses who had stopped by the video store around the time of the murder, viewed two

photo lineups that included photos of Mr, Kelley and Mr. Lee. PSAMF 101, 106. Mr.

Thompson, who had seen a medium-built Black man behind the counter, was unable to

identify the perpetrator, but told Reyes the man in the store was someone he had never seen

before and that he recognized Messrs. Kelley and Lee from the neighborhood. Jd. at 4

103-106, Reyes excluded that statement in the PPD Report and instead wrote that

Thompson “had not had a good look at the person in the store and could not identify him.”

Id. at | 108. Sgt. Reid wrote in his notes: “concerned with Thompson.” Jd. at ¢ 107.

Another witness, Mr. Mousa, viewed two series of photo lineups on July 31, 1993,

but could not identify anyone. PPD Report at Kelley Police 019.

On August 4, Carmen Paredes identified Mr. Lee in a photo lineup as the man she

saw in the video store. PSAMF at § 124. Her written statement was taken by Reyes and

Jurato. /d. Although Ms. Paredes reported seeing only one Black man in the store, Iurato

and Reyes showed her an additional 8-person lineup featuring Mr. Kelley. Jd. at | 129.

Reyes and Iurato took a statement on August 11, 1993 from Dennis Williams that

he saw both Plaintiffs together near the murder scene and overheard Mr. Kelley say “why

did we kill that guy if we wanted a bag of dope we didn’t have to kill that guy for it.”

Paterson Ex. U, Kelley ECF No, 260-37, Lee ECF No. 234-38; PPD Report at

Kelley Police 022.

David Hancock is a white man whom both Plaintiffs separately implicated as the

third participant in the robbery. PSAMF 4 64. Mr. Kelley purportedly stated during his

interrogation, that after the robbery, he and Mr. Hancock sold some of the stolen goods,

including the VCR, to Bob’s Supermarket. Jd. at | 117. According to the PPD Report, on

August 1, 1993, the owner of Bob’s Supermarket told Reid that “a white male” had tried

to sell the VCR to a cashier named Carmen who had left for Peru on vacation for three

weeks. /d, at 9§ 118-119. Sgt. Reid’s contemporaneous handwritten notes, however,

indicate that Sgt. Reid spoke to Carmen who told him that t#ree white men had tried to sell

her a VCR, and questioned: “what are we doing with Carmen from Bobs.” /d. at 121-

122; Pls. Ex, 9 at CITY 001335; Kelley ECF No. 234-10, Lee ECF No. 208-10, 211-5; Pls.

Ex. 7 at CITY 001353, Kelley ECF No. 237-3, Lee ECF No. 211-3. The charges against

Mr. Hancock were dropped after both Plaintiffs refused to testify against him at trial.

D. Conviction and Post-Conviction Evidence

Plaintiffs were indicted on October 26, 1993. Paterson SUMF § 54. At their

respective trials, Mir. Kelley and Mr. Lee attempted to suppress their confessions as

involuntary but those motions were denied. PSAMF § 174. Mr. Lee’s motion to suppress

the photo identification by Ms. Paredes was also denied, Lee Compl. § 84, Lee ECF No. 1.

On February 7, 1996, a jury acquitted Mr. Kelley of murder, but found him guilty of felony

murder, conspiracy, robbery, and possession of a weapon for an unlawful purpose. Kelley

Compl. { 86, Kelley ECF No. 1, Lee Compl. 82. On March 15, 1996, he was sentenced

to life in prison with a mandatory 30 years of parole ineligibility. /d. On April 10, 1996,

Mr. Lee was convicted of murder, felony murder, robbery of the first degree, conspiracy,

possession of a weapon. Kelley Compl. § 88, Lee Compl. □ 87. Mr. Lee was sentenced to

life in prison with a mandatory 30 years of parole ineligibility followed consecutively by

20 years in prison with 10 years of parole ineligibility. fd.

Results of the 1993 DNA testing by the FBI of the green plaid hat had been

inconclusive. Paterson SUME § 67. In 2014, additional DNA testing established that Eric

Dixon was the habitual wearer of the green plaid hat. /d. at § 68. Based on this new

evidence, Mr. Kelley and Mr. Lee moved for a new trial. /d. at 9 69. The state court granted

that application on September 15, 2017, but specifically noted that its decision was “in no

way, shape, or form” a finding as to Plaintiffs’ innocence which would still need to be

determined by a jury. /d at | 70. Thereafter, the State dismissed the indictments and

abandoned plans to retry Plaintiffs. fd at 71.

E, Procedural History

Mr. Lee filed suit on September 11, 2019, and Mr, Kelley filed suit the next day on

September 12, 2019, Each of the Defendants has crossclaitns against the other Defendants

for contribution and indemnification, On July 1, 2020, Defendants’ motions to dismiss

were denied except as to the claims Plaintiffs agreed to dismiss—the state law malicious

prosecution claim against Paterson and claims against Defendants Richard Munsey and

Vincent Anoresano. July 1, 2020 Op., Kelley ECF No. 81, Lee ECF No. 68. The cases

were consolidated for discovery purposes only. Oct. 24, 2019 Order, Kelley ECF No. 10,

Lee ECF No. 12.

F. Defendants

Reyes was the lead detective on the investigation. He received and reviewed all

handwritten notes, including those taken by other officers, and compiled it into a

typewritten report. PSAMF § 107; Reyes Dep. 129:11-130:7. The PPD Report omits Mr.

Thompsons’ exculpatory statement. PSAMF 4 103-106, 108. During Mr. Kelley’s

interrogation, Reyes told Mr. Kelley that he would be allowed to go home ifhe gave police

the statement they wanted. He and Jordan also witnessed Sgt. Stell hitting Mr. Kelley.

Reyes was present for the entirety of Mr. Kelley’s admissions. /d. at 31. Although Reyes

disputes being involved in Mr. Lee’s interview, Plaintiffs contend that during Mr, Lee’s

interrogation, Reyes informed Stell that Mr. Kelley had confessed and what he purportedly

said; Stell then told Iurato and Nieves of Kelley’s confession. Pils. Resp. to Reyes SUMF 4

6, Kelley ECF No. 236, Lee ECF No. 210; Jordan SUME at § 20; PSAME 4 59, Reyes did

not disclose to prosecutors the scripted handwritten version of Mr. Lee’s confession.

Set. Stell was the supervisor in charge of the murder investigation and closely

monitored the interrogations. PSAMF {| 169. He participated in the interview and

confession of Mr. Kelley. Stell Stmt. Of Material Facts (Stell SUMF) □ 1, Kelley ECF No.

220, Lee ECF No. 237. Sgt. Stell struck Mr. Kelley on the head with an open hand and

threatened bodily harm. PSAMF 4 35. While Stell denies participating in Mr. Lee’s

interview and interrogation, he did go back and forth between the two interrogations. Pls.

Resp. to Stell SUMF 4] 2, Kelley ECF No. 236, Lee ECF No. 210; PSAMEF 4) 38, 42.

Sgt. Reid and Jordan received the tip from the unknown source. Sgt. Reid denies

having had a supervisory role in the investigation because Set. Stell was the assigned

supervisor. Reid Stmt. Of Undisputed Material Facts (Reid SUMF) § 4, Kelley ECF No,

216-2, Lee ECF No. 192-2. However, Sgt. Reid was Reyes’ direct supervisor and reviewed

and signed Reyes’ PPD Report regarding the investigation and discovery disclosed to the

defense. Jd. at ¢ 19; Pls. Resp. to Jordan SUMF {[ 4. Sgt. Reid testified that he did not

participate in the interrogations of Messrs. Kelley and Lee. Reid SUMF 16.

Jordan was assigned certain investigative tasks to assist in Merino’s homicide,

including collecting clothing, pictures, information, and other evidence related to the -

investigation, Jordan SUMF {| 3-6. Jordan and Set. Reid received the tip from the

unknown source as to the location and identity of the two Black males and a white male

observed in front of the video store around the time of the homicide. Jordan was not

involved in Mr. Lee’s transport to the police station for questioning or his arrest. Jd. at [

13-14. Reyes and Jordan witnessed Set. Stell hit Mr. Kelley. Jordan is retired from the

PPD. Id. at 25.

Nieves accused Mr. Lee of lying, threatened and punched him, and also gestured

menacingly toward his gun. [urato and Nieves signed Mr. Lee’s confession statement as

witnesses. Nieves only interviewed Mr. Lee and was not involved in Mr. Kelley’s

interview. Nieves Stmt. Of Material Facts (Nieves SUMF) ff 5-6, Kelley ECF No. 224,

Lee ECF No. 235.

Turato joins in the arguments raised by Reyes and provides no separate statement

of facts. Turato was in Mr. Lee’s interview room for the duration of Mr, Lee’s typed

confession. He and Reyes took Carmen Paredes’s statement identifying Mr. Lee in a photo

lineup as the man she saw in the video store and then showed Ms, Paredes a second 8-

person photo lineup featuring Mr. Kelley whom she could not identify.

Smith arrived at the interrogation after Mr. Kelley was assaulted and Set. Stell and

Jordan had left the room, which Plaintiffs have not disputed. Pls. Resp. to Stmt. Of Facts

(Smith SUMF) { 11, Kelley ECF No, 236, Lee ECF No, 210. Smith assisted Reyes in

taking Mr. Kelley’s statement. PSAMF {ff 31, 89. Reyes and Smith signed Mr. Kelley’s

confession as witnesses, and Stell notarized it. Jd. at | 98. Smith is retired from the PPD

and was not capable of being deposed because he suffers from dementia. Smith SUMF 4]

8-9, Kelley ECF No, 223, Lee ECF No. 198.

Finer conducted the interviews of witnesses Felix Nieves and Miguel Victoria, see

Finer Exs. C and D, Kelley ECF Nos. 217-5, 217-6, Lee ECF Nos. 193-5, 193-6, and

authored July 28, 1993 reports containing descriptions of items stolen from the crime scene,

see Ex, F, Kelley ECF Nos. 217-8, Lee ECF No. 193-8, and a suspect identification, see

Ex, E, Kelley ECF No. 217-7, Lee ECF 193-7. Finer was in Mr. Kelley’s interrogation

room when Mr, Kelley purportedly confessed. PSAMF 31. Just prior to Mr. Kelley’s

confession, Finer told Mr. Kelley that he would contact his mother to let her know where

he was.

Lt. Clark reviewed the typed reports during and at the end of the case as well as

witness statements after the sergeant reviewed them. /d. at 9 171. Supplemental reports

would be reviewed by the sergeant and then by the lieutenant. Jd. Stell, Reid, as well as

other sergeants would have communicated with Lt. Clark to update him on developments

in investigations. fd. Lt. Clark did not participate in the interviews of either Mr. Kelley or

Mr. Lee, which Plaintiffs have not disputed. Clark Dep. 96:11-16, Clark Ex. A, Kelley ECF

No. 218-3, Lee ECF No. 194-3.

Paterson is a municipality in New Jersey where store clerk Tito Merino was

murdered on July 28, 1993. Pls. Resp. to Paterson SUMEF 4 1. At all relevant times, Paterson

was the employer of the individual Defendant officers who investigated the homicide.

Kelley Compl. § 24, Lee Compl. 25. Richard Munsey (“Chief Munsey”) served as PPD’s

Chief of Police from approximately May 1990 to January 1995 and has since retired from

the department. Pls. Resp. to Paterson SUMF 4 2; Munsey Dep. 7:11-14, Pls, Ex, 138,

Kelley ECF No. 234-139, Lee ECF No. 208-139, Plaintiffs’ claims against Chief Munsey

have been dismissed, but he is the final “policymaker” for Paterson in this case for purposes

of nwnicipal liability. See Kelley Compl. § 22, Lee Compl. § 23; Paterson Mot. 6-7, Kelley

ECF No. 225, Lee ECF No. 199; Munsey Dep. 35:2-7, Pls. Ex. 138 (testifying that

policymaking for supervision and discipline at the PPD was shared between the Chief of

Police and Director of Public Safety).

G. Twelve Causes of Action

1. Federal Claims Under 42 U.S.C. § 1983

e Deprivation of liberty without due process of law and denial of a fair trial by

fabricating evidence and withholding material exculpatory and impeachment

evidence against all individual Defendants: Count I for Mr. Kelley, Count II for

Mr. Lee includes claim for deliberately failing to conduct a constitutionally

adequate investigation

Malicious prosecution in violation of the Fourth and Fourteenth Amendments

against all individual Defendants: Count J for Mr. Lee, Count IIT for Mr. Kelley

e Violation of right against self-incrimination under the Fifth and Fourteenth

Amendments: Count II for Mr. Kelley against Reyes, Stell, Smith, Jordan, and

Finer, Count HI for Mr. Lee, against Reyes, Stell, Iurato, and Nieves

e Civil rights conspiracy against all individual Defendants: Count IV for both

Failure to intervene against all individual Defendants: Count V for both

e Supervisory liability against Lt. Clark, Set. Stell, and Set. Reid: Count VI_for

both

Municipal liability against Paterson: Count VII for both

2. New Jersey State Law Claims

e Malicious prosecution against all individual Defendants:? Count VIII for both

As noted, the Court dismissed Plaintiffs’ state law malicious prosecution claim against Paterson. See Kelley ECF

No, 81, Lee ECF No. 68,

Intentional infliction of emotional distress against all individual Defendants

and Paterson:® Count IX for both

e Negligence and gross negligence against all individual Defendants and

Paterson: Count _X for both

e Negligent supervision and training against Lt. Clark, Sgt. Stell, Sgt. Reid, and

Paterson: Count_XI for both

e Violation of the New Jersey Civil Rights Act (“NJICRA”) against all individual

Defendants and Paterson: Count XH for both

STANDARD OF REVIEW

Federal Rule of Civil Procedure 56(a) provides that summary judgment is proper

when “the movant shows that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” “A fact is ‘material’... if its existence

or nonexistence might impact the outcome of the suit under the applicable substantive law.”

Santini v. Fuentes, 795 F.3d 410, 416 Gd Cir. 2015) (quoting Anderson v. Liberty Lobby,

477 US. 242, 248 (1986)), “A dispute over a material fact is ‘genuine’ if ‘a reasonable

jury could return a verdict for the nonmoving party.’” Jd. (quoting Anderson, 477 U.S. at

248). The moving party bears the initial burden of showing the basis for its motion and

identifying those portions of the record which it believes demonstrate the absence of a

genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986), If the

moving party meets its burden, the burden then shifts to the non-moving party to “come

forward with specific facts showing that there is a genuine issue for trial and do more than

simply show that there is some metaphysical doubt as to the material facts.” United States

y, Donovan, 661 F.3d 174, 185 (3d Cir. 2011) (quoting Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S, 574, 586-87 (1986)) (emphasis in original and internal

quotation marks omitted). In other words, “unsupported assertions, speculation, or

conclusory allegations” are insufficient to defeat a summary judgment motion. Longstreet

vy. Holy Spirit Hosp., 67 F. App’x 123, 126 3d. Cir. 2003). “[T]here must be evidence on

which the jury could reasonably find for the [non-movant].” Anderson, 477 U.S. at 252.

The Court’s role at the summary judgment stage “is ‘not... to weigh the evidence and

determine the truth of the matter but to determine whether there is a genuine issue for

trial.’” Baloga v. Pittston Area Sch. Dist., 927 F.3d 742, 752 3d Cir. 2019) (quoting

Anderson, 477 U.S. at 249). In evaluating a summary judgment motion, a court must view

all evidence in the light most favorable to the nonmoving party. Matsushita, 475 U.S. at

587; Boyle v. Cnty. of Allegheny Pennsylvania, 139 F.3d 386, 393 (3d Cir. 1998),

6 Plaintiffs agreed to drop their intentional infliction of emotional distress claim against Paterson. Pls. Opp. Br. at 51.

10

Hil DISCUSSION

The following discussion proceeds in three parts. First, the Court addresses

Plaintiffs’ § 1983 claims against the individual Defendants (“Part A”) before turning to

the issue of municipal liability against Paterson (“Part B”). Finally, the Court addresses

the series of New Jersey state law claims against both the individual Defendants and

Paterson (“Part C”).

A. 42 U.S.C, § 1983 Claims Against the Individual Defendants

I, Personal Involvement

“A defendant in a § 1983 action ‘must have personal involvement in the alleged

wrongs; liability cannot be predicated solely on the operation of respondeat superior.’”

Crosland v. City of Philadelphia, 676 F, Supp, 3d 364, 379 (E.D., Pa. 2023) (citing Rode v.

Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)). “Personal involvement can be shown

through allegations of personal direction or of actual knowledge and acquiescence.

Allegations of participation or actual knowledge and acquiescence, |], must be made with

appropriate particularity.” Rode, 845 F.2d at 1207. Hence “a plaintiff alleging that one or

more officers engaged in unconstitutional conduct must establish the ‘personal

involvement’ of each named defendant to survive summary judgment and take that

defendant to trial.” Jutrowski vy. Twp. of Riverdale, 904 F.3d 280, 285 (3d Cir. 2018).

Section 1983 liability does not attach to an “individual's cohorts who happen to be in the

immediate vicinity.” fd. at 290. “Although a court can infer that a defendant had

contemporaneous knowledge of wrongful conduct from the circumstances surrounding a

case, the knowledge must be actual, not constructive.” Chavarriaga v. New Jersey Dep't of

Corr., 806 F.3d 210, 222 Gd Cir, 2015) (citing Baker v. Monroe Twp., 50 F.3d 1186, 1194

(3d Cir.1995) and Rode, 845 F.2d at 1201 n. 6). Rather than argue that there are no genuine

issues of material fact to establish the elements of each constitutional violation, each

Defendant primarily argues that he had no participation in or knowledge of any

wrongdoing,

Because it is undisputed that Lt. Clark did not personally participate in the

interviews of either Plaintiff or in the actual investigation of the murder, his potential

liability is based solely on his supervisory role in reviewing and signing off on reports and

witness statements. See discussion below. Thus, Lt. Clark’s motion for summary judgment

is granted on claims except for the civil conspiracy claim in Count IV and the supervisory

liability claims in Counts VI and XI of Mr. Kelley and Mr. Lee’s Complaints. Whether the

alleged conduct of each of the other individual Defendants constitutes personal

involvement in the violation ofa constitutional violation or is entitled to qualified immunity

is addressed below.

1]

2. Qualified Immunity!

“Police officers, embodying the authority of the state, are liable under § 1983 when

they violate someone's constitutional rights, unless they are protected by qualified

immunity.” Peroza-Benitez v. Smith, 994 F.3d 157, 165 (3d Cir. 2021) (quoting Santini v.

Fuentes, 795 F.3d 410, 416-17 (3d Cir. 2015)). The qualified immunity analysis is a two-

prong inquiry: “(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 [such that it would have been clear to a reasonable officer that his conduct was

unlawful].” ° Jefferson v. Lias, 21 F.4th 74, 80 (3d Cir. 2021); El v. City of Pittsburgh, 975

F.3d 327, 334 Gd Cir. 2020). An answer in the negative to cither prong entitles an officer

to qualified immunity. See Reedy v. Evanson, 615 F.3d 197, 223-24 3d Cir. 2010). Courts

are “permitted to exercise their sound discretion in deciding which of the two prongs of the

qualified immunity analysis should be addressed first in light of the circumstances in the

particular case at hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009).

“Where a defendant asserts a qualified immunity defense in a motion for summary

Judgment, the plaintiff bears the initial burden of showing that the defendant's conduct

violated some clearly established statutory or constitutional right.’” Donahue v. Gavin, 280

F.3d 371, 378 (3d Cir. 2002) (citing Sherwood v. Mulvihill, 113 F.3d 396, 399 (3d

Cir.1997); see Pearson, 555 U.S. at 232 (noting that in qualified immunity analysis, court

must decide whether “facts that a plaintiff has ... shown (see Rules 50, 56) make out a

violation of a constitutional right.” (emphasis added)). Once the plaintiff carries this initial

burden, the movant asserting the affirmative defense of qualified immunity bears the

ultimate burden of persuasion on both prongs at the summary judgment stage. Halsey v.

Pfeiffer, 750 F.3d 273, 288 3d Cir. 2014); Mack v. Yost, 63 F.4" 211, 227 (3d Cir. 2023).

3. Deprivation of Liberty without Due Process, Denial of Fair Trial By

Fabricating Evidence and Withholding Exculpatory and Impeachment

Evidence Against All Individual Defendants (Kelley Count I; Lee Count I

includes Failure to Conduct Constitutionally Adequate Investigation)

? Qualified immunity under § 1983 and the NJCRA share the same standards. See Chavarriaga, 806 F.3d at 222, n.7

(‘{t]he defenses and immunities applicable to federal constitutional claims apply with equal force to parallel New

Jersey state constitutional claims,” (citing generally N.J. Stat. Ann. §§ 10:61 ef seq.)); see also Faragalia v. Jersey

City, No. 17-03604, 2020 WL 5812798, at *12 (D.N.J. Sept. 30, 2020); Brown v. State, 230 N.I. 84 (NJ. 2017).

Accordingly, the Court need not conduct a separate qualified immunity analysis regarding Count XII, which alleges

state-law constitutional claims under the NICRA,

® The individual Defendants’ briefs in support of their respective motions are largely underdeveloped and deficient in

the recitations of undisputed material facts and relevant law including whether the law was clearly established on the

constitutional violation claims at the time of the violation. Nonetheless, the Court endeavors to address both prongs

of the qualified immunity analysis because qualified immunity is “*an immunity from suit rather than a mere defense

to liability,” Pearson, 555 U.S. at 237, and “tin proper cases the court may consider the question of qualified immunity

sua sponte.” Varabyev v. Wolfe, 638 F. Supp. 3d 410, 427 (M.D. Pa. 2022) (citing Doe v, Delie, 257 F.3d 309, 312

(3d Cir. 2001) (affirming magistrate judge’s sua sponte recommendation of qualified immunity)).

12

a. Suppression of Brady materials

The obligation of a police officer to disclose exculpatory materials (a corollary of

the prosecution’s duty to disclose) was not clearly recognized until 2005 in Gibson v.

Superintendent of NJ Dep’t of L. & Pub. Safety-Div. of State Police, 411 F.3d 427, 443

(3d Cir. 2005), overruled on other grounds as recognized by Dique v. N.J. State Police,

603 F.3d 181, 182 3d Cir, 2010); Stokes v. City of Philadelphia, No. 22-0338, 2023 WL

362006, at *5 (E.D. Pa. Jan. 23, 2023); see Hicks v. City of Philadelphia, No. CV 22-977,

2023 WL 5278713, at *6 G2.D. Pa. Aug. 16, 2023) (citing cases). In Gibson, the Court

found that the troopers were entitled to qualified immunity because an officer’s affirmative

duty to disclose information was not clearly established at the time of the plaintiffs

conviction in 1994; in reaching that decision, it observed that “[e]ven in 2000, this Court

was only able to assume that police officers ‘have an affirmative duty to disclose

exculpatory evidence to an accused if only by informing the prosecutor that the evidence

exists.” /d. at 444) (emphasis in original) (citing Smith v. Holtz, 210 F.3d 186, 197 n. 14

(3d Cir, 2000)), Nonetheless, some courts interpret Gibson as holding that a police officer’s

obligation to disclose exculpatory materials was established in 1995 with the Supreme

Court’s decision in Kyles v. Whitley, 514 U.S. 419, 437 (1995).? See e.g., Pierre v, Treasury

Dep’t, No. 18-3443, 2019 WL 2121369, at *6 (D.N.J. May 14, 2019). Given that courts

disagree whether an officer’s duty to disclose exculpatory evidence was established in 1995

by Kyles or in 2005 by Gibson, the Court cannot conclude that an officer’s obligation to

disclose exculpatory materials was clearly established at the time of Plaintiffs’ convictions

in 1996, See Spady v. Bethlehem Area Sch, Dist., 800 F.3d 633, 639 Gd Cir. 2015) (noting

clearly established right requires that “existing precedent must have placed the statutory or

constitutional question beyond debate.” (citing Ashcroft v. al-Kidd, 563 U.S. 731, 741

(2011)).

Even if an officer’s duty to disclose was clearly established by 1996, the facts

alleged by Plaintiffs fail to show that Defendants’ conduct rose to the level of a

constitutional violation. Under Brady □□□ Maryland, 373 U.S. 83, 87 (1963), “the

suppression by the prosecution of evidence favorable to an accused upon request violates

due process where the evidence is material either to guilt or to punishment, irrespective of

the good faith or bad faith of the prosecution.” As defined by the Supreme Court,

“favorable evidence is material, and constitutional error results from its suppression by the

government, ‘if there is a reasonable probability that, had the evidence been disclosed to

the defense, the result of the proceeding would have been different.’” Kyles, 514 U.S. at

433 (citing United States v. Bagley, 473 U.S. 667, 682 (1985)). The “reasonable

In Kyles, the Court stated that “the individual prosecutor has a duty to learn of any favorable evidence known to

the others acting on the government's behalf in the case, including the police” and settled the matter of whether

evidence held by the police could be imputed to the prosecutor; it did not address the “related duty of the police to

disclose information to the prosecutor” which was “not widely addressed until later.” Gibson, 411 F.3d at 444

(discussing Kyles, 514 U.S, at 437),

13

probability” standard does not require “demonstration by a preponderance that disclosure

of the suppressed evidence would have resulted ultimately in the defendant's acquittal.” Jd.

at 434. Rather, a “reasonable probability” of a different result is when “the favorable

evidence could reasonably be taken to put the whole case in such a different light as to

undermine confidence in the verdict.” Jd. at 434-35, Suppressed evidence is to be

“considered collectively, not item by item.” Jd. at 436. The Constitution does not demand

“an open file policy.” /d. at 437, This leaves the government with a “degree of discretion”

and a “corresponding burden” to make disclosure when “reasonable probability” is

reached. Id.

The favorable evidence that Plaintiffs allege was deliberately suppressed includes:

1) “Ralph” was crossed out in Sgt. Reid’s notes of the tip from the confidential source; 2)

Mr. Kelley, whose initials are “EI” rather than “KC,” did not have a scratch on his face

and he was not wearing a gray top as described by the unknown source at the time Reid

stopped Mr. Kelley; 3) Carmen from Bob’s Supermarket told Sgt. Reid that it was three

white men who tried to sell her a VCR; 4) Thompson commented to Reyes that he did not

know the perpetrator but recognized Plaintiffs from the neighborhood. The Court cannot

conclude that even cumulatively, this evidence is so favorable that a jury could conclude

there to be a “reasonable probability” of a different result because the suppressed evidence

puts the whole case in such a different light as to undermine confidence in the outcome of

the trial. A constitutional violation does not occur every time any evidence helpful to the

defense is not disclosed. Smith, 210 F.3d at 196. Even if Sgt. Reid and Reyes should have

disclosed such evidence under Brady, there are no facts in dispute to suggest that Jordan,

Stell, Nieves, Turato, Smith, or Finer were personally involved in suppressing any material

exculpatory evidence.

The individual Defendants are entitled to summary judgment as a matter of law and

based on qualified immunity with regard to their failure to inform the prosecutor of

exculpatory material under Brady. Summary judgment is granted as to that claim in Count

I of Mr. Kelley’s Complaint and on Count II of Mr. Lee’s Complaint.

b. Fabrication of Evidence

It is well settled that the denial ofa fair trial by fabricating evidence violates clearly

established constitutional rights to due process. See Halsey, 750 F.3d at 294 (finding to be

clearly established by 1985 stand-alone Fourteenth Amendment claim under § 1983 for

fabrication of evidence “if there is a reasonable likelihood that, without the use of that

evidence, the defendant would not have been convicted” at trial), A claim for fabrication

of evidence requires a plaintiff to demonstrate “that the allegedly fabricated evidence was

so significant that it could have affected the outcome of the criminal case” in which he was

convicted. fd. at 295 (footnote omitted), In addition to this causation requirement,

“testimony that is incorrect or simply disputed” is not fabricated “merely because it turns

out to have been wrong.” Jd. To defeat summary judgment, a plaintiff must offer

14

“persuasive evidence” of “bad faith,” that is, that Defendants “formulated or submitted

false evidence willfully, knowingly, or with a reckless disregard for its truth.” Mervilus vy.

Union County, 73 F.A® 185, 194-95 (3d Cir, 2023). “Because this intent requirement is

stringent, ‘it will be an unusual case in which a police officer cannot obtain summary

judgment in a civil action charging him with having fabricated evidence.” Jd. at 194 (citing

Halsey, 750 F.3d at 295). An “’inference’ of fabrication ‘based upon a speculation or

conjecture does not create a material factual dispute sufficient to defeat summary

judgment.’” Scott Brasher v. New Jersey State Park Police, No. 20-01351, 2025 WL

342071, at *13 (D.NJ. Jan. 30, 2025) (citing Brackbill v. Ruff, No. 22-1628, 2023 WL

5447271, at *3 3d Cir. Aug, 24, 2023)).

At the outset, there can be no dispute that the confessions were of such significance

that it could have affected the outcome of Plaintiffs’ criminal trials. Notably, any facts that

may support a coercion claim against Stell, Jordan, Reyes, or Nieves, see discussion below,

do not create an inference that those Defendants fabricated the confessions. See Brown v.

City of Chicago, 633 F. Supp. 3d 1122, 1156 (N.D. Il. 2022) (“there is a difference between

fabricated evidence, which is necessarily untrue, and evidence obtained through coercion,

which may be true.”}. As evidence of fabrication, Plaintiffs note that Mr. Kelley’s

confession included nonpublic information (e.g., the green and purple plaid hat worn by

the perpetrator) and details that were never corroborated (e.g., the existence of a bloody

rag, the location where the murder weapon was disposed of, or where the stolen items could

be found). Plaintiffs also conclude that Reyes and Smith created Mr. Kelley’s written

confession and that Iurato and Nieves did so for Mr. Lee, see PSAMF § 263c, presumably

because they typed up the statements or signed as witnesses. Plaintiffs also speculate,

without citing supporting evidence in the record, that the handwritten version of Lee’s

confession is in Nieves’ handwriting and “obviously created” and fed to Mr. Lee to match

Mr. Kelley’s confession. See Pls. Resp. to Jordan’s SUMF, § 2q. While Plaintiffs do not

allege that the witness statements or reports completed by Finer were fabricated, they do

claim that Ms. Paredes’ identification of Mr. Lee was also incorrect and thus fabricated.

As evidence, Plaintiffs highlight that Ms. Paredes was shown a second photo lineup despite

having identified Mr. Lee and reported seeing only one Black man in the video store.

Assuming the confessions and Ms. Paredes’ identification were false, Plaintiffs have

not shown that each Defendant personally participated in the formulation or submission of

evidence he knew was fabricated and did so with the requisite bad intent. See e.g., PSAMF

4] 55 (Kelley testified that “they” fed him information). Even if, for instance, Reye, Smith,

lurato, and Nieves, by typing up the confessions and writing out the handwritten

confession, had personal involvement in creating false evidence, there is no “persuasive

evidence” that each Defendant knew the confessions were fabricated and formulated or

submitted them willfully, knowingly, or with a reckless disregard for truth or that Iurato

and Reyes “were aware that [Ms. Paredes’ identification was incorrect, and thus, in effect,

offered the evidence in bad faith.” See Halsey, 750 F.3d at 295. Likewise, Plaintiffs have

not identified persuasive evidence, or even any evidence, that shows that Sgt, Reid and

15

Jordan formulated and submitted a false tip from the confidential source knowing it was

false and did so with the requisite intent.

Viewing all evidence in its totality and construing reasonable inferences in

Plaintiffs’ favor as the Court must, no genuine issues of material facts exist upon which a

reasonable jury could find that each of the individual Defendants had personal involvement

in formulating and submitting fabricated evidence willfully, knowingly, or with reckless

disregard for its truth. Based on the same fact issues, the individual Defendants are also

entitled to qualified immunity on this claim. Thus, summary judgment is granted as to the

§ 1983 fabrication of evidence claim in Count I of Mr. Kelley’s Complaint and Count I of

Mr. Lee’s Complaint.

c. Constitutionally Inadequate Investigation

No recognized constitutional right to an “adequate” investigation existed in 1996.

See Handy v. City of Philadelphia, No, 24-1905, 2024 WL 4309973, at *5 (E.D. Pa. Sept.

26, 2024) (“Courts in this district have consistently held that there is no constitutional right

to a police investigation, iet alone one that meets some threshold of “adequacy,” and no

such right was clearly established during the relevant period of 2011 to 2013.” (citing

Thomas v. City of Phila., 290 F. Supp. 3d 371, 386 (E.D. Pa. 2018) and Wright v. City of

Philadelphia, 229 F. Supp. 3d 322, 332 0.3 (E.D., Pa. 2017)); Murphy v. Middlesex County,

361 F. Supp. 3d 376, 391 (D.N.J. 2019). The individual Defendants have qualified

immunity on Mr, Lee's inadequate investigation claim in Count I1.

4. Malicious Prosecution in Violation of Fourth and Fourteenth Amendments"

Against All Individual Defendants (Kelley Count IH; Lee Count 2)

a. Fourteenth Amendment Malicious Prosecution Claim

Between 1993 and 1996 when Plaintiffs were interrogated and convicted, a

Fourteenth Amendment procedural due process right against malicious prosecution was

not clearly established. Compare Torres v, McLaughlin, 163 F.3d 169, 173 Cir. 1998)

(“we do not read Albright [v. Oliver, 510 U.S. 266 (1994)] to hold that a malicious

prosecution claim can only be based in a Fourth Amendment violation.”), with Gallo v.

City of Philadelphia, 161 F.3d 217, 222 Gd Cir.1998) (interpreting Abright to imply that

malicious prosecution claim must show deprivation of liberty consistent with Fourth

Amendment “seizure”). See also Halsey, 750 F.3d at 291, n.14 (declining to decide

viability of malicious prosecution under Fourteenth Amendment as plaintiff had abandoned

The boundary between Fourth and Fourteenth Amendment claims is temporal: the Fourth Amendment's

protection against unlawful scizure without probable cause extends only until trial in contrast to the guarantee of due

process which “protects defendants during an entire criminal proceeding through and after trial.” Halsey, 750 F.3d at

291.

16

that claim but noting comparison of Torres and Gallo); see, e.g, Ogrod v. City of

Philadelphia, 598 EF. Supp. 3d 253, 267 (B.D, Pa. 2022) (concluding that individual

defendants were entitled to qualified immunity because between 1992 and 1996, “it was

not clearly established that the Fourteenth Amendment provided for a procedural due

process right against malicious prosecution”). Even by 2020, “[a]s reflected in Gallo,

Torres, and Halsey, there was, and continues to be, confusion amongst lower courts about

how the Supreme Court's decision in Albright impacts the ability to maintain a malicious

prosecution claim based on the right to procedural due process guaranteed by the

Fourteenth Amendment.” Lewis v. City of Philadelphia, No. CV 19-2847, 2020 WL

1683451, at *8 (B.D. Pa. Apr, 6, 2020). But see Crosland v. City of Philadelphia, 676 F.

Supp. 3d 364, 376-77 (E.D. Pa. 2023) (rejecting qualified immunity as to Fourth

Amendment malicious prosecution claim because criminal charges must be based on

probable cause and no reasonable officer could have thought otherwise). Following the

majority of decisions in the Third Cireuit, the Court finds that Fourteenth Amendment

procedural due process right against malicious prosecution was not clearly established at

the time of the violation and therefore, all individual Defendants are entitled to qualified

immunity on that claim.

b. Fourth Amendment Malicious Prosecution Claim

The right to be free from malicious prosecution under the Fourth Amendment,

however, was clearly established at the time of the violation and contains five elements:

(1) a defendant initiated a criminal proceeding against the plaintiff; (2) the criminal

proceeding ended in the plaintiff's favor; (3) the defendant initiated the proceeding without

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

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

the concept of seizure as a consequence of a legal proceeding. Johnson v. Knorr, 477 F.3d

75, 82 (3d Cir. 2007). The elements of tort claim for malicious prosecution under New

Jersey are substantially the same except that it does not require proof of the last element

(deprivation of liberty). See Brunson v. Affinity Fed. Credit Union, 199 N.J. 381, 393-94

(2009) (citing Helmy v. City of Jersey City, 178 N.J. 183, 190 (2003)).

Nieves and Reyes argue that Plaintiffs cannot satisfy each of these elements of

malicious prosecution. The Court disagrees. First, contrary to their contention that they did

not initiate criminal proceedings against Plaintiffs, “{i]f the officers influenced or

participated in the decision to institute criminal proceedings, they can be liable for

malicious prosecution.” Halsey, 750 F.3d at 297. Set. Stell, Nieves, Jordan, and Reyes

arguably influenced or participated in the decision to institute criminal proceedings by

obtaining what a jury could find were coerced confessions, see discussion below. See

Nieves Dep., 91:9-92:8, Pls. Ex. 142, Kelley ECF No, 234-143, Lee ECF No. 208-143.

Second, the Court has previously ruled that the criminal proceedings against Plaintiffs

ended in their favor, see July 1, 2020 Op. at 7. Third, a reasonable jury could conclude that

the arrests lacked probable cause because Set. Stell, Nieves, Jordan, and Reyes coerced

17

Plaintiffs’ confessions, Fourth, contrary to Nieves’ and Reyes’ contention that Plaintiffs

cannot prove the element of malice, “‘malice may be inferred from lack of probable

cause.’” Evans v. City of Newark, No. 14-00120, 2023 WL 2535283, at *18 (D.NJ. Mar.

16, 2023) (citing Morales v. Busbee, 972 F. Supp. 254, 261 (D.N.J. 1997). Consequently,

Plaintiffs were clearly deprived of liberty. Summary judgment is denied as to Sgt. Stell,

Nieves, Jordan, and Reyes on the Fourth Amendment malicious prosecution claim in Count

of Mr. Kelley’s Complaint and Count I of Mr. Lee’s Complaint.

However, evidence that Finer, Smith or Iurato were present in the interrogation

room at some point, that Smith and Iurato typed up the confessions, or that Sgt. Reid

investigated the tip from the confidential source is insufficient to establish that each of

those Defendants influenced or participated in the decision to institute criminal proceedings

or that they were involved in initiating the criminal proceeding without probable cause.

Thus, Finer, Smith, Iurato, and Sgt. Reid are entitled to summary judgment based on

qualified immunity and as a matter of law with regard to the malicious prosecution claim

under the Fourth Amendment.

5. Right Against Self-Inerimination Under Fifth and Fourteenth Amendments

(Kelley Count HT against Reyes, Stell, Smith, Jordan, and Finer; Lee Count

Ill against Reyes, Stell, lurato, and Nieves)

“{A]n involuntary confession may result from psychological, as well as physical,

coercion.’” Halsey, 750 F.3d at 303 (citing Miller v. Fenton, 796 F.2d 598, 603 (3d Cir.

1986)). A coercion inquiry requires a court to exam the totality of circumstances and

“consider the specific tactics utilized by the police in eliciting the admissions, the details

of the interrogation, and the characteristics of the accused.’” /d. (citing Miller, 796 F.2d at

604). That inquiry can include consideration of the accused’s youth, lack of education or

low intelligence, lack of advice to the accused of his constitutional rights, length of

detention, repeated and prolonged nature of questioning, and the use of physical

punishment such as food or sleep deprivation. /¢. at 303 (citing Miller, 796 F.2d at 604).

The “ultimate question” that the Court should consider is “’whether the defendant's will

was overborne when he confessed.’” /d. at 304 (citing Miller, 796 F.2d at 604). Plaintiffs

must also point to “some link between police misconduct and the confession.” Jd. at 303

(citing United States y. Jacobs, 431 F.3d 99, 108 (d Cir. 2005)).

a. Kelley Complaint Against Reyes, Stell, Smith, Jordan, and Finer

Plaintiffs have identified material facts in dispute that if believed by a jury could

support their claims that their confessions were coerced, Mr. Kelley claims that Sgt. Stell

hit him, that Jordan and Reyes witnessed it (thus acquiescing in the coercion), and that

Reyes made promises to Mr, Kelley that he could go home if he confessed. Based on these

fact issues, including Mr. Kelley’s cognitive limitations, severe heroin addiction, and

officers’ repeated insistence that he was lying, a jury could conclude that Sgt. Stell, Jordan,

18

and Reyes crossed the line between permissible police conduct and unconstitutional

coercion. Summary judgment is denied as to Reyes, Stell, Jordan on Count II of Kelley’s

Complaint.

However, the allegation that Finer told Mr. Kelley that he would let Mr. Kelley’s

mother know where he was, viewed in the light most favorable to Plaintiffs, is an

insufficient basis for a reasonable factfinder to conclude that Finer personally participated

in, had actual knowledge of, and acquiesced in coercing Mr. Kelley’s confession. As for

Smith, it is undisputed that he arrived at Mr, Kelley’s interrogation after the alleged assault

occurred. Furthermore, that Smith assisted Reyes in memorializing Mr. Kelley’s statement

does not demonstrate that he was personally involved in coercing Mr. Kelley’s confession.

See e.g., Handy, 2024 WL 4309973, at *4 (noting that “mere allegation that Jenkins was

in the back of the interrogation room on his phone” during a coerced confession “does not

permit the inference that Jenkins participated in that coercion or later submitted that

confession to the prosecution,”). Because there are no genuine issues of material fact for a

jury to find that Finer or Smith participated in coercing Plaintiffs’ confessions, they are

entitled to qualified immunity and to judgment as a matter of law. Summary judgment is

granted as to Finer and Smith on Count I of Kelley’s Complaint.

b. Lee’s Complaint Against Reyes, Stell, Turato, and Nieves

Mr. Lee’s sworn statement that officers, including Nieves, beat him and repeatedly

told him he was lying is sufficient for a jury to possibly find that Nieves participated in

violating Mr, Lee’s constitutional rights. Sgt. Stell allegedly went back and forth between

the two interrogations, was present when Mr. Lee repeatedly proclaimed his innocence,

and he and other officers informed Mr. Lee of the “bits of information” from Mr. Kelley

to convince Mr. Lee that they in knew of his participation in the murder. PSAMF 4 59;

Stell Dep. 52:5-19, Pls. Ex. 151, Kelley ECF No. 234-152, Lee ECF No, 208-151. Reyes

was the lead investigator, witnessed hitting Mr. Kelley, and gave Set. Stell a full briefing

of Mr. Kelley’s confession. PSAMF 4 59. Viewing all evidence in its totality including Mr.

Lee’s cognitive limitations and heroin addiction, it is reasonable to infer that Reyes and

Set. Stell knew of and acquiesced in the coercion of Mr. Lee’s confession. In contrast,

although Turato was in the interview room typing up Mr. Lee’s statement, that fact does not

demonstrate that Iurato personally participated in or had actual knowledge and acquiesced

in directly violating Plaintiffs’ constitutional rights against self-incrimination. Thus,

summary judgment on Count II of Mr, Lee’s Complaint is denied as to Reyes, Nieves,

and Stell because they are not entitled to qualified immunity and because there are genuine

issues of material fact to be resolved by a jury. Summary judgment is granted as to Iurato

on the coercion claim.

6, Civil Rights Conspiracy Against All Individual Defendants (Both Counts IV)

A civil rights conspiracy claim requires that a plaintiff “prove that persons acting

19

under color of state law ‘reached an understanding’ to deprive him of his constitutional

tights.” Jutrowski, 904 F.3d at 293-94 (citing Adickes v. S.H. Kress & Co., 398 U.S.

144, 150-52 (1970)). Plaintiffs “‘must provide some factual basis to support the

existence of the elements of a conspiracy: agreement and concerted action.’” Jd, at 295

(citing Capogrosso v. Supreme Court of N.J., 588 F.3d 180, 184-85 (3d Cir. 2009)).

“To show agreement, he must demonstrate that the state actors named as defendants in

the [ ] complaint somehow reached an understanding to deny [the plaintiff] his rights,

and in the absence of direct proof, that ‘meeting of the minds’ or ‘understanding or

agreement to conspire’ can be inferred from circumstantial evidence.” /d. (cleaned up,

internal citations omitted), “Because ‘inferring mental state from circumstantial

evidence is among the chief tasks of factfinders,’ [citation omitted], an allegation of

conspiracy can only be overcome at summary judgment when ‘the moving parties'

submissions foreclose[ ] the possibility of the existence of certain facts from which” a

jury could infer that there had been a meeting of the minds.” Jd. (citing Anderson, 477

U.S. at 249). “To defeat summary judgment, a plaintiff need only point to circumstantial

evidence of an agreement and concerted action” such as distorted stories in police

reports. Sanders v. Jersey City, No. 18-01057, 2021 WL 1589464, at *21 (D.N.J. Apr.

23, 2021) (citing Jutrowski, 904 F.3d at 295).

Here, Defendants have not foreclosed the possibility of the existence of certain

facts from which a jury could infer that Jordan, Stell, Nieves, Reyes, as well as Set. Reid

and Lt. Clark as supervisors, had a meeting of the minds and acted to deprive Plaintiffs

of their constitutional rights against malicious prosecution and self-incrimination.

Summary judgment on the claim for civil conspiracy is denied as to those Defendants.

However, because no underlying claims remain against Finer, Smith, and Iurato,

summary judgment is granted as to those Defendants on the conspiracy count.

7. Failure to Intervene in Violation of Fourth and Fourteenth Amendments

Against All Individual Defendants (Both Counts V)

Plaintiffs allege that Defendants “had opportunities to intervene on behalf of [Mr.

Kelley and Mr. Lee] to prevent his false arrest, malicious prosecution, false imprisonment,

and deprivation of liberty without due process of law, but with deliberate indifference

declined to do so,” and that such failures violated their “constitutional right to be free from

unreasonable search and seizure and not to be deprived of liberty without due process of

law as guaranteed by the Fourth and Fourteenth Amendments.” Kelley Compl. {¥ 157-158;

Lee Compl. §§ 155-156.

A police officer’s duty to intervene is clear in the Eighth Amendment excessive

force context. See El, 975 F.3d at 335; Smith v. Mensinger, 293 F.3d 641, 650 (3d Cir.

2020) (“a police officer has a duty to take reasonable steps to protect a victim from another

officer's use of excessive force, even if the excessive force is employed by a superior.”).

However, “[c]ourts in this district have consistently held that there is no clearly established

20

stand-alone right to intervention by officers to prevent malicious prosecution or deprivation

of liberty without due process, and no such right was clearly established during 2011 and

2013.”). Handy, 2024 WL 4309973, at *6; Onyiah v. City of Phila., 660 F. Supp. 3d 407,

416 (E.D. Pa, 2023) (we find that there is simply no pervasive authority on which we

could conclude that [police officers] had a clearly established duty to intervene to prevent

[p}laintiffs coerced confession or malicious prosecution.”}; Maldonado v. City of

Philadelphia, No, 22-3474, 2023 WL 4685967, at *9 (E.D. Pa. July 21, 2023) (noting Third

Circuit has not “extended failure-to-intervene liability to, for example, a state actor if he

observes or has reason to know ofa false arrest and has a realistic opportunity to intervene.”

(cleaned up) (citing Lozano v. New Jersey, 9 F Ath 239, 246 n.4 (3d Cir. 2021)). Thus, the

individual Defendants are entitled to qualified immunity on the failure to intervene claim.

Summary judgment is granted as to Count V.

& Supervisory Liability Against Clark, Stell, and Reid (Both Counts VI)

Plaintiffs contend that Sgts. Stell and Reid were both personally involved in the

investigations and that Stell, Reid, and Lt. Clark directly supervised the investigative acts

taken by the PPD detectives on the murder case. A supervisor may be personally liable

under § 1983 for a subordinate’s unconstitutional acts is “if he or she participated in

violating the plaintiff's rights, directed others to violate them, or, as the person in charge,

had knowledge of and acquiesced in his subordinates' violations.” 4.M. ex rel. v.

Luzerne Cnty. Juy. Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004). Liability based on a claim

that supervisors directed others to violate constitutional rights necessarily requires an

“actual violation at the hands of subordinates” as well as a “causal connection between the

supervisor's direction and that violation, or, in other words, proximate causation.” Santiago

v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010). Another theory under which

supervisory liability may attach is where the official “with deliberate indifference to the

consequences, established and maintained a policy, practice or custom which directly

caused [the] constitutional harm.” 4.M. ex rel. J M.K., 372 F.3d at 586 (citing Stoneking v.

Bradford Area Sch, Dist., 882 F.2d 720, 725 (3d Cir.1989)); Neals v. Stromberg, No. 16-

7141, 2020 WL 5088226, at *16 (D.N.J. Aug. 28, 2020) (“failure to train” claims are

generally considered subcategory of “policy or practice liability’).

Given that Set. Stell was in charge of the murder investigation and evidence that he

struck Mr. Kelley, Stell is not entitled to qualified immunity or to summary judgment on

Mr. Kelley’s claim for § 1983 supervisory liability based on the participation theory of

supervisory liability. In addition, there are fact issues that preclude summary judgment

under the alternate theory of supervisory liability - that Clark, Stell, and Reid acted

recklessly and with deliberate indifference to Plaintiffs’ constitutional rights by failing to

adequately train, supervise or discipline the other Defendant detectives. Specifically,

Plaintiffs contend that supervisors did not identify and follow up on concerns or red flags

such as the absence of a formal statement from the witness, Mr. Thompson, that Carmen

Paredes’s statement was taken on August 4" after she made a photo identification rather

21

than on July 28" or 29", or the existence of a handwritten version of Mr. Lee’s confession.

See PSAMB { 172. These are triable issues of material fact precluding summary judgment

on the supervisory liability claim.

B. Municipal Liability Against Paterson (Both Counts VID

Plaintiffs seek to hold Paterson liable for the constitutional violations by its PPD

officers. Asserting a Monell claim against the City under § 1983, Plaintiffs contend that

Paterson failed to curb rampant police misconduct that fostered a departmental “culture of

impunity,” which, in turn, empowered the individual Defendants to violate Plaintiffs’ civil

rights without fear of repercussion. See generally Kelley Compl., Lee Compl.

Municipalities may be sued for depriving someone of their constitutional rights, but

are not subject to respondeat superior liability under § 1983. Monel/ v. Dep’t of Soc. Servs.

of N.Y., 436 U.S. 658, 691 (1978). Instead, the municipality must itself have precipitated

the alleged violation. While a finding of municipal liability does not depend on the liability

of any one police officer, see Fagan v. City of Vineland, 22 F.3d 1283, 1292-93 (3d Cir,

1994), a Monell claim does require a violation of the plaintiff's constitutional rights.

Bornstad v. Honey Brook Twp., 211 F. App’x 118, 126 (3d Cir. 2007). Plaintiffs have

identified material facts in dispute that support the contention that their confessions were

coerced by certain PPD officers who violated their right against self-incrimination and

malicious prosecution. See Part A supra, As relevant to the Mone// analysis, the following

claims survive:

Malicious prosecution under the Fourth Amendment (Count I for Mr, Lee against

Sgt. Stell, Nieves, Jordan, and Reyes; Count Hi for Mr. Kelfley against Sgt. Stell,

Nieves, Jordan, and Reyes); and

e Self-incrimination under the Fifth Amendment (Count III for Mr. Lee against Set.

Stell, Reyes, and Nieves; Count IE for Mr. Kelley against Sgt. Stell, Reyes, and

Jordan).

A. Monell claim can proceed in two ways. “A plaintiff may put forth [1] that an

unconstitutional policy or custom of the municipality ied to his or her injuries, or [2] that

they were caused by a failure or inadequacy by the municipality that reflects a deliberate

or conscious choice.” Forrest vy. Parry, 930 F.3d 93, 105 (3d Cir. 2019) (cleaned up) (citing

Est. of Roman v. City of Newark, 914 F.3d 789-99 (3d Cir. 2019) and Monell, 436 U.S. at

694). Plaintiffs advance arguments under both frameworks. They allege that, during the

1980s and 1990s, PPD had a pattern, practice, and custom of police misconduct and,

relatedly, a pattern, practice, and custom of failing to take appropriate corrective actions

against officers who engaged in misbehavior. Kelley Compl. 124-125, 167, Lee Compl.

q{] 122-123, 165; Pls. Opp. Br. 47-49, As for “failure-or-inadequacy,” Plaintiffs contend

that Paterson’s failure to train, supervise, and discipline its officers reflects deliberate

22

indifference to the “obvious possibility that PPD officers would and in fact did violate the

constitutional rights of [Plaintiffs] and many Paterson residents.” Kelley Compl. §] 125,

168, Lee Compl. {] 123, 167. As the Court previously observed, these avenues are

distinct.’ See July 1, 2020 Op., Kelley ECF No. 81, Lee ECF No. 68. A plaintiff alleging

that a policy or custom led to their injuries must reference an unconstitutional policy or

custom, while the failure to supervise, train, or discipline requires that the said failure

amounts to deliberate indifference to the rights of those affected. Forrest, 930 F.3d at 106.

1. Plaintiffs’ Evidence

Plaintiffs produced various evidence to establish PPD’s culture of impunity that led

to the constitutional violations alleged in the Complaints.

a. Police Misconduct Documented in Newspaper Articles

Plaintiffs submitted a compendium of newspaper articles that, at the very least, paint

a picture of rampant police misconduct at the PPD in the years leading up to and following

the Merino murder investigation. A common theme emerges from these chronicles:

recurrent excessive force against citizens as well as brutality often directed at persons of

color. In 1985, The Record reported separate incidents in which white PPD officers used

unprovoked violence against two Black citizens: a high school student and a New Jersey

transit bus driver, Pls. Ex. 183. The student was allegedly beaten so severely during his

arrest that he nearly lost an eye and had to spend ten days in the hospital. Jd, That year, the

newspaper published a story about two PPD officers who arrested a man for possessing a

small quantity of marijuana and, after hauling him to the station, beat him so severely that

they broke one of his legs. Pls. Ex. 184. By 1987, The Record’s editorial board observed

that “[ijnstances of ‘excessive force’...are so common in Paterson that they’ve become a

part of the city’s fabric.” Pls. Ex, 179. The board resolved that it was “high time an outside

agency looked at the pattern of abuse that has been paid little more than lip service by local

officials.” fd. Two years later, in 1989, the same board bemoaned that “[d]espite dozens of

[misconduct] cases, city officials have been reluctant to rein in [PPD] officers who injure

citizens by force or abuse them with racial epithets.” Pis. Ex. 180. The board further

observed that Paterson officials “have refused for years to even concede that a problem

exists.” Id. As reported by The Record, between 1987 and 1995, more than 17 separate

federal civil rights suits alleging police brutality were filed against Paterson and ultimately

settled. Pls. Ex, 187.

b. PPD’s “Culture of Impunity”

Plaintiffs also furnished evidence to establish PPD’s persistent practice of tolerating

4 The Third Circuit has acknowledged the close relationship between a “custom” claim and a “failure-or-inadequacy”

claim, and the inevitable “evidentiary overlap” on a motion for summary judgment. See Forrest, 930 F.3d at 106,

23

police misconduct or at least failing to address it in a meaningful way. Representative

examples include:

Bribery Scandal. Around 1990, a federal investigation uncovered that high-ranking

PPD officers accepted bribes from organized crime outfits. PSAMF ¥ 206. When

asked about whether this matter reflected a “breakdown in supervision,” Chief

Munsey testified that it did. Munsey Dep. 33:15-22, Pls. Ex. 138. Chief Munsey

further stated that there had been “several” high-profile scandals at the PPD by the

time he took over the department in 1990 and noted that he needed to “keep tabs

on what the press was reporting about allegations of police corruption” in order to

effectively do his job. fd, at 57:10-20. When asked what systemic changes were

implemented following the arrests of the delinquent PPD officers, Chief Munsey

testified that he recruited new personnel—at least 22 new detectives, with a focus

on hiring persons of color—and transferred existing officers from the problematic

unit to another department. Jd. at 34:1-14.

e Michael Fostok. In May 1991, Michael Fostok—then Bakri Fostok—-was a 19-

yeat-old Lebanese immigrant residing in Paterson when he learned he had an

unpaid animal-control ticket related to walking an unleashed dog. PSAMF § 199.

Plaintiffs submitted a declaration of Fostok, executed on June 6, 2024, recounting

the incident. See Fostok Decl., Pls. Ex. 185.!* When Fostok arrived at the station

to handle the matter, he was subjected to intense harassment and brutality by PPD

officers. fd. After Fostok identified himself, the officers mocked his name and

Middle Eastern background. fd. at § 5. The encounter escalated, and the officers

needlessly handcuffed Fostok, took his mugshot, and threw him in a jail cell. Id.

at {| 6. Fostok was allegedly beaten by an officer, who punched him so hard in the

face—while fellow officers watched—that Fostok needed stitches (his request for

medical treatment at the station was denied). Jd. 47-11. After the incident, Fostok

filed a complaint against the offending officers with PPD’s Internal Affairs unit.

Id. § 13. Internal Affairs never interviewed Fostok, and as far as he is aware, the

officers were never disciplined. /d. In 1993, Fostok filed a civil rights suit against

the officers, and Paterson offered him a settlement to dismiss the case. /d. § 14.

Bakery Beating. In January 1993, six months prior to the Merino murder, three

PPD officers were indicted by a Passaic County grand jury for beating a citizen

suspected of breaking into a bakery truck, rupturing his spleen, and then

attempting to cover up the incident by falsifying police reports. PSAMF § 214

(citing a contemporaneous news article about the matter submitted by Plaintiffs as

Exhibit 88). The officers allegedly hauled the suspect to a remote area behind the

bakery, where the store owner could hear the suspect screaming. /d. The store

owner, who witnessed the individual curled in a fetal position on the floor, had to

2 The incident is also described in both Plaintiffs’ Complaints and in a produced news article, See Pls, Ex. 186,

24

intervene to stop the assault. Jd. Chief Munsey suspended only the officer accused

of the assault, not the two officers who observed the beating, purportedly did

nothing to stop it, and falsified subsequent incident reports. fd. They remained on

active duty. Jd. According to Paterson’s Rule 30(b)(6) witness, Louis Lawrence

Spagnola, had the incident occurred today, all three officers would be suspended

automatically for 30 days and then placed on administrative leave. Spagnola Dep.

157:19-160:9, Pls. Ex. 175.

Kenneth Eatman. That same year, two PPD officers attacked a substitute teacher

named Kenneth Eatman who came to the station to file a report regarding a minor

accident, PSAMF § 209 (citing a contemporaneous news article about the incident

submitted by Plaintiffs as Exhibit 188). Eatman was allegedly listening to music

on headphones while he waited at the station. Kelley Compl. § 117, Lee Compl. 4

115. After someone complained that the music was too loud, the situation

escalated, and officers allegedly attacked Eatman, pushing him down a set of stairs

and punching him in the face. PSAMF { 209. Internal Affairs claimed to have

investigated the matter, but the assigned investigator never spoke to the numerous

witnesses who corroborated Eatman’s story. /@. When a journalist questioned the

investigator about the inquiry, the investigator stated about the witnesses: “They

know where I am. If they want to be witnesses, they can come find me. I don’t

know where they are.” /d. (citing a contemporaneous news article about the

incident submitted by Plaintiffs as Exhibit 190), During his deposition, Chief

Munsey testified that, if true, the assault “would be extraordinarily serious police

misconduct.” Munsey Dep. 126:13—23, Pls. Ex. 138. Munsey also stated that he

had “no qualms” about how the investigation unfolded. /d. at 132:18-24. Paterson

stated that, if the allegations are true, the investigation procedure would not be

acceptable. Spagnola Dep. 109:1-2, Pls, Ex. 175,

e Other Incidents Reflecting Alleged Disciplinary Failures. In 1990, three white

PPD officers were charged with beating two teenagers of color in a parking lot.

PSAMF § 217 (citing a news article about the incident submitted by Plaintiffs as

Exhibit 92). A full Internal Affairs investigation of the incident did not occur, but

Paterson admitted that one shouid have transpired. Spagnola Dep. 191:2-5, 203:1—

5, Pls. Ex. 175. In 1991, an officer drunkenly drove his patrol car into an 18-year-

old civilian’s car, lied about it, and falsely blamed the teenager. PSAMF 4 211

(citing a contemporaneous news article about the incident submitted by Plaintiffs

as Exhibit 85). Even though New Jersey automatically revoked the officer’s

driver’s license, Chief Munsey did not suspend him or commit to bringing any

disciplinary charges. Jd. Paterson admitted that, today, the officer would be

removed from any proactive position. Spagnola Dep. 131:11-135:25, Pls. Ex, 175.

A year later, in 1992, a PPD officer was indicted and charged with counts of theft

by deception. PSAMEF ] 212 (citing a contemporaneous news article about the

incident submitted by Plaintiffs as Exhibit 86). Following the indictment, Chief

25

Munsey stated at the time that there were no plans to charge the officer with

official misconduct or implement a suspension since the crime was not committed

while she was working in her official capacity as a police officer-—even though

the victim was a fellow officer. /d.; see Munsey Dep. 137:18-138:18, Pls. Ex. 138.

c. The Individual Defendants

Plaintiffs produced evidence indicating at least one of the individual Defendants

engaged in allegedly tolerated misconduct while on the job. Plaintiffs also point to facts

possibly demonstrating a blue code of silence among some individual Defendants outside

the context of the Merino murder investigation.

In 1991, for example, Detective Iurato was accused of pointing his service weapon

at a civilian during a traffic stop. PSAMF § 244; Turato Dep, 105:3-110:24, Pls. Ex. 145.

PPD never investigated the incident, even though Iurato was charged with assault (the

case was ultimately dismissed), and he continued to interact with civilians and carry a

gun. fd. Lt, Clark, lurato’s superior, claimed he never had knowledge of this incident,

testifying that he was possibly on vacation when it happened. Clark Dep. 187:10—-189:8,

Pls. Ex. 140. Further, in 1996, Turato worked as a private investigator in violation of

departmental policy. PSAMF { 245 (citing a contemporaneous news article about the

incident submitted by Plaintiffs as Exhibit 105). furato allegedly misled his superiors, who

believed he was conducting sanctioned security work, not investigative matters. Jd.

Paterson stated that an Internal Affairs investigation should have occurred to determine

whether Iurato intentionally misled the PPD about the nature of the outside work.

Spagnola Dep. 312:17-314:9, Pls. Ex. 175, But no investigation seems to have been

conducted. PSAMF 4] 245. In yet another incident involving Iurato, a civilian accused him

of harassing her at a traffic stop. PSAMF 246 (citing the harassment complaint filed

against Iurato submitted by Plaintiffs as Exhibit 75, filed under seal), Lt. Clark was

assigned to investigate the incident and cleared Turato without interviewing the other

officers present during the stop. PSAMF § 245 (citing Clark Dep., Pls. Ex. 140).

Lt. Clark separately testified that while he witnessed instances of excessive force

by PPD officers, he never once reported such incidents in his 30 years on the force, and

has no knowledge of whether Internal Affairs investigated those incidents. Clark Dep.

89:17—-90:24, Pls. Ex. 140. Echoing that testimony, Set. Reid stated that, in his entire

career, he is not aware of any PPD supervisor disciplining a detective for misconduct

during an investigation, Reid Dep. 146:24—147:15, Pls. Ex. 131. Sgt, Reid also testified

that he is not aware of any supervisor disciplining a detective for failing to include critical

information in a report. Jd. at 148:1-9.

d. Additional Statements from Paterson’s Policymaker

As noted, the record includes statements and deposition testimony of Chief Munsey,

26

Paterson’s final policymaker for purposes of Monell liability. Plaintiffs contend that Chief

Munsey’s testimony, along with statements he made about the PPD during his tenure

leading the department, support their argument that PPD’s culture of impunity was widely

known and even purposefully maintained. Pis. Opp, Br. 35-36. For example, Plaintiffs

produced a newspaper article about Chief Munsey published in The Herald-News six

months after the murder of Merino that states in relevant part:

[Chief Munsey] bitterly resents anyone pointing accusing fingers at his officers

saying they are too rough and tough. Paterson cops, it has often been said—and

written—are like a Gestapo force on the loose. They are too quick in slapping people

around, too hasty in pulling law abiding citizens over, too eager to confront. “T

absolutely resent that,” Munsey snapped. “Because it is unfair. And all I ever wanted

is fairness.”

Pls. Ex. 81. In the article, Chief Munsey indicated that he resented the unique “scrutiny”

that comes with policing—scrutiny by “internal affairs, by municipal court, by civil suits,

[and] reporters.” /d He also characterized PPD as an organization unfairly “picked upon.”

id, On the other hand, the article notes that Chief Munsey, who worked in Internal Affairs

for five years before becoming chief, insisted that he was not overly protective of his

officers when they faced brutality charges, letting Internal Affairs handle investigations

before studying the findings to make a final judgment. 7d.

In his deposition, Chief Munsey testified that it was important to follow local news

coverage of the PPD, and that he did so, particularly for high profile cases. Munsey Dep.

$3:13-57:9, Pls. Ex. 138. He stated that there was “enormous pressure” on PPD to solve

the Merino murder, as there was for all homicides. at 70:10-71:20. Plaintiffs highlight

Chief Munsey’s agreement with the statement that “paying too much attention to the degree

of force police officers use, is bad for police and bad for communities.” /d. at 120:6-10.

He made that view known among the officers under his command. Jd 120:10-15.

However, as Paterson underscores, Chief Munsey was brought in to lead the PPD following

misconduct scandals and was “instrumental in removing 22 detectives from the department

in coordination with the County Prosecutor.” Paterson Stmt. Of Add’! Material Facts

(Paterson SAMF) □ 1, Kelly ECF No. 247; Lee ECF No. 221.

2. Paterson’s Response

Paterson argues that Plaintiffs’ evidence of PPD’s alleged culture of impunity is

based solely on inadmissible facts, irrelevant news articles lacking probative value, and

mischaracterizations of the record. Paterson Reply Br. 6, Kelley ECF No. 246, Lee ECF

No. 220. First, Paterson questions the propriety of the submitted news articles, reminding

the Court of the general evidence rule that articles are usually considered inadmissible

hearsay. Jd. The Court is mindful of Federal Rules of Evidence 801 and 802, but finds

statements from the abovementioned articles proper at this juncture under Rule 807 and

27

consistent with decisions of other courts that have considered facts from newspapers to

evaluate Monel! claims at the summary judgment stage. See, e.g., Thomas v. City of

Philadelphia, No. 17-4196, 2019 WL 4039575, at *15 (E.D. Pa. Aug. 27, 2019)

(referencing a four-part reporting series by the Philadelphia Inquirer exposing a pattern of

misconduct by homicide detectives that mirrored the unlawful conduct in that case). The

residual hearsay exception applies when the statement at issue “is supported by sufficient

guarantees of trustworthiness” and is “more probative on the point for which it is offered

than any other evidence that the proponent can obtain through reasonable efforts,” Fed. R.

Evid. 807(a). Second, Paterson challenges the relevancy of such articles, arguing they lack

probative value. As the Third Circuit explained, “evidence is not irrelevant merely because

it does not show causation, does not specifically pertain to one unit of [a] police

department, or does not focus on the particular activities carried out by the officers that

were involved in [a plaintiff's] encounter, It is only irrelevant if it bears on no aspect of the

overarching theory and its underlying elements,” Forrest, 930 F.3d at 114-15. In light of

this instruction, the Court will not “unduly narrow” Plaintiffs’ evidence at this stage

because, as discussed further below, a reasonable jury may consider that certain facts from

relevant articles—in combination with other admissible evidence, including deposition

testimony—demonstrate PPD’s longstanding culture of impunity that caused Plaintiffs’

civil rights violations. See id. at 114. Finally, as to Plaintiffs’ purported mischaracterization

of the record, see Paterson Reply Br. 6-7, the Court is capable of reviewing and interpreting

deposition testimony and does not rely on either party’s description of any exhibits,

3. Municipal Liability Under a “Custom” Theory

Plaintiffs contend that, during the 1980s and 1990s, the PPD had a pattern, practice,

and custom of violating the constitutional rights of criminal suspects and citizens—

including systemic violations of the Fourth Amendment—-and, relatedly, a pattern,

practice, and custom of failing to take appropriate disciplinary or other corrective actions

against officers who engaged in such violations. Kelley Compl. 9{ 124-125, Lee Compl.

122-123, They further allege that the PPD officers, acting with impunity, “engag[ed] in

unlawful interrogation of suspects, witness detentions and interrogations, fabrication of

witness and suspect statements, failing to disclose exculpatory evidence, and engaging in

corruption.” Kelley Compl. { 125, Lee Compl. { 123.

A plaintiff can prevail on a “custom” claim under Mone// by (1) “showing that a

given course of conduct, although not specifically endorsed or authorized by law, is so

well-settled and permanent as virtually to constitute Jaw” and (2) establishing an

“affirmative link” between the custom and the alleged constitutional violation. Est. of

Roman, 914 F.3d at 798 (quoting Bielevicz vy. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990))

(internal quotation marks omitted). Liability based on custom, as opposed to a formal

adopted policy, proceeds on the theory that the relevant practice is so widespread as to have

the force of law. Colon v. City of Paterson, 12-1653, 2014 WL 4441503, at *5 (D.N.J.

Sept. 9, 2014) (citing Board of County Com’rs. of Bryan County, Okl. v. Brown, 520 U.S.

28

397, 404 (1997)). This type of liability does not require a showing of deliberate

indifference. Forrest, 903 F.3d at 105-06. Custom may instead be established by proof of

knowledge and acquiescence. Fletcher v. O’Donnell, 867 F.2d 791, 793 (Gd Cir. 1989).

Specifically, liability is attributed to the municipality through a policymaker’s actual or

constructive knowledge of and acquiescence in the unconstitutional custom or practice, See

Bielevicz, 915 F.2d at 854, In other words, knowledge or a showing that the municipal

policymaker should have known about the pattern of constitutional misconduct is

sufficient. See Forrest, 930 F.3d at 109,

But simply establishing a custom is not enough. Est. of Roman, 914 F.3d at 789. A

plaintiff must also show the custom was the “proximate cause” of their injuries and can do

so by demonstrating a “plausible nexus or affirmative link between the municipality’s

custom and the specific deprivation of constitutional rights at issue.” Bielevicz, 915 F.2d at

850 (internal citation and quotation marks omitted). Notably, causation is typically

question for the jury. Colon, 2014 WL 4441503, at *5 (citing Panas v. City of Philadelphia,

871 F. Supp. 2d 370, 378 (ED. Pa. 2012)). “As long as the causal link is not too tenuous,

the question whether the municipal policy or custom proximately caused the constitutional

infringement should be left to the jury.” Bielevicz, 915 F.2d at 851.

Paterson argues that Plaintiffs have failed to produce evidence that the alleged

unlawful conduct was so commonplace or well-settled as to virtually constitute the law.

See Paterson Mot. at 5. The City further claims the record is “absolutely devoid” of

documentary evidence or testimony related to the Chief Munsey’s knowledge of any

pattern of similar constitutional violations. /¢@. The Court disagrees. The record evidence

shows that the PPD had a long history of overlooking or mishandling police officer

misconduct, which fostered a culture of impunity that caused the constitutional

deprivations in this case. Viewing the record in a light most favorable to Plaintiffs, various

evidence cited above combine to raise disputed issues of material fact as to whether

Paterson had a custom of tacitly permitting the misconduct of officers, creating a culture

of impunity, that ultimately caused Plaintiffs’ injuries. Summary judgment on Plaintiffs’

Monell claim under the custom theory is therefore denied.

4, Municipal Liability Under a “Failure-or-Inadequacy” Theory

The failure-or-inadequacy theory of municipal liability under § 1983 requires a

plaintiff to establish that a municipality’s failure to train, supervise, and discipline its

officers “amounts to deliberate indifference to the rights of persons with whom the police

come into contact.” City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989). This consists

of establishing whether “(1) municipal policymakers know that employees will confront a

particular situation, (2) the situation involves a difficult choice or a history of employees

mishandling, and (3) the wrong choice by an employee will frequently cause deprivation

of constitutional rights.” Forrest, 930 F.3d at 106 (citing Carter v. City of Philadelphia,

181 F.3d 339, 357 (3d Cir. 1999)).

29

While the record contains sufficient facts supporting Plaintiffs’ claim for failure to

supervise and discipline—the record is replete with instances of open and egregious

misconduct during the relevant time period that was never subjected to meaningful

discipline—there is less evidence to bolster their failure-to-train theory. In a claim for

municipal liability based on failure-to-train, to prove deliberate indifference, a plaintiff

“needs to show that a defendant was on notice that, absent additional specialized training,

it was so predictable that failing to train the municipal employees amounted to conscious

disregard for the constitutional rights of citizens.” Diaz v. City of Philadelphia, 670 F.

Supp. 3d 174 (E.D. Pa. 2023) (cleaned up) (citing Connick v. Thompson, 563 U.S. 51, 71

(2011)). The alleged deficiency in a training program must be closely related to the alleged

constitutional injury because “[i]n virtually every instance where a person has had his or

her constitutional rights violated by a city employee, a § 1983 plaintiff will be able to point

to something the city ‘could have done’ to prevent the unfortunate incident.” City of

Canton, Ohio v. Harris, 489 U.S, 378, 392 (1989). Typically, “[a] pattern of similar

constitutional violations by untrained employees is necessary to demonstrate deliberate

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

223 (3d Cir. 2014) (quoting Connick, 563 U.S. at 62) (internal quotation marks omitted).

Paterson has produced records indicating PPD officers underwent police training,

and Plaintiffs have not cited compelling facts within the evidentiary record regarding

specific deficiencies in the departinent’s training program. See Lapella v. City of Atlantic

City, No. 10-2454, 2012 WL 2952411, at *6 (D.NJ. July 18, 2012) (to sustain an

inadequate training theory, plaintiff must identify the precise deficiency in training).

Further, various evidence cuts against Plaintiffs’ arguments that the PPD failed to train its

officers. For example, the Herald-News profile of Chief Munsey states that he “sends his

officers, and himself, to the yearly recommended sensitive training to try to avoid the hard

edges.” Pls. Ex. 81.

In sum, on the “failure or inadequacy” theory, the Court will grant summary

judgment on the aspect of Plaintiffs’ Mone// claim dealing with failure to train, and will

deny summary judgment with respect to failure to supervise and discipline.

C. New Jersey State Law Claims

Plaintiffs bring a series of state law claims against the individual Defendants and

Paterson. As noted, Plaintiffs allege violation of the NICRA against all individual

Defendants and Paterson (Count XII for both), as well as the following common law

claims:

e Malicious prosecution against all individual Defendants (Count VIII for both);

e Intentional infliction of emotional distress against all individual Defendants

30

(Count [X for both);

e Negligence and gross negligence against all individual Defendants and

Paterson (Count X for both); and

e Negligent supervision and training against Lt. Clark, Sgt. Stell, Sgt. Reid, and

Paterson (Count XI for both).

I. State Law Claims Against Individual Defendants”?

Based on the existence of genuine issues of material facts, see Part A in discussion

above, the motions for summary judgement by Defendants Sgt. Stell, Jordan, Nieves,

Reyes are denied as to Counts VII (malicious prosecution), EX (intentional infliction of

emotional distress), and X (negligence and gross negligence).!4 Summary judgment is

granted as to Finer, Smith, Iurato, Set. Reid, and Lt. Clark on Counts VIII, [IX and X;

Plaintiffs’ factual allegations against those individual Defendants show their limited

involvement in the investigation and as such, do not present genuine issues of material facts

upon which a jury could find for Plaintiffs on those claims. Summary judgment against

Set. Reid, Sgt. Stell, and Lt. Clark on Count XI (negligent supervision and training) is

denied,

2. State Law Claims Against Paterson

Under Count X, Plaintiffs seek to hold Paterson liable for negligence and gross

negligence, which involves a breach of a duty of care that causes injury. See Roccisano v.

Township of Franklin, No. 11-6558, 2013 WL 3654101, at *11 (D.N.J. July 12, 2013)

(citing Weinberg v. Dinger, 542 A.2d 366, 373 (N.J. 1987)). To establish negligence, a

plaintiff must show: (1) a duty of care, (2) a breach of that duty, (3) causation, and (4)

damages. /d. (citation omitted). As to gross negligence, “the difference between gross and

ordinary negligence is one of degree rather than of quality.” Smith v. Kroesen, 9 F. Supp.

3d 439, 442 (D.N.J. 2014) (cleaned up) (citations omitted). Further, gross negligence refers

to behavior which constitutes “an indifference to consequences.” Banks v. Korman Assocs.,

218 NJ. Super. 370, 527 A.2d 933, 934 (NJ. App. Div. 1987). Based on the existence of

genuine issues of material facts, see Part B in discussion above, the motion for summary

2 See n.7, supra.

4 The Court does not address the issue of a public employee’s immunity under the New Jersey Tort Claims Act,

59:1-1, ef seq. for acts in good faith, which Defendants have not raised.

NJCRA claims are analogous to their § 1983 federal counterparts and therefore analyzed “through the lens of §

1983,” Ingram v. Twp. of Deptford, 911 F. Supp. 2d 289 (D.N.J. 2012). Accordingly, the Court need not conduct a

separate analysis of Count X11 as to Paterson. As discussed above, there are genuine issues of material fact precluding

summary judgment on the corresponding Mone// claim under theories of unconstitutional custom and failure to

supervise and discipline.

31

judgement by Paterson is denied as to Count X.

Plaintiffs also allege Paterson is liable for negligent supervision and training (Count

XJ). To establish this cause of action, a plaintiff must present evidence demonstrating: (1)

that the municipality “knew or had reason to know of the particular unfitness,

incompetence or dangerous attributes of the employee and could reasonably have foreseen

that such qualities created a risk of harm to other persons” and (2) “that, through the

negligence of the employer in [training or supervising] the employee, the latter’s

incompetence, unfitness or dangerous characteristics proximately caused the injury.” G.A.-

Hv, K.G.G., 210 A.3d 907, 916 (N.J. 2019) (quoting Di Cosala v. Kay, 450 A.2d 508, 516

(N.J. 1982)), Plaintiffs offered sufficient evidence regarding the City’s failure to supervise

and discipline its officers, allowing the individual Defendants in this case to allegedly

violate Plaintiffs’ civil rights with impunity. Since there are genuine issues of material fact

that demonstrate that the City was negligent in the supervision of the individual

Defendants, summary judgment against Paterson on Count XT is denied.

IV. CONCLUSION

For the reasons set forth above, Defendants’ motions for summary judgment are

GRANTED IN PART and DENIED IN PART as follows:

1. Summary judgment is granted in favor of all individual Defendants on Count I of Mr.

Kelley’s Complaint and Count IL of Mr. Lee’s Complaint;

2, Summary judgment is granted in favor of all individual Defendants on the Fourteenth

Amendment malicious prosecution claims in Count II of Mr. Kelley’s Complaint and

Count I of Mr. Lee’s Complaint;

3. Summary judgment on the Fourth Amendment malicious prosecution claims in Count

Til of Mr, Kelley’s Complaint and Count I of Mr. Lee’s Complaint and on the state

Jaw malicious prosecution claim in Count VIII of both Complaints is denied as to Sgt.

Stell, Nieves, Jordan, and Reyes but granted as to Sgt. Reid, Smith, Finer, Turato, and

Lt. Clark;

4. Summary judgment is denied on the Fifth Amendment right against self-incrimination

in Count IT of Mr. Kelley’s Complaint against Stell, Reyes, and Jordan, and granted

as to Finer and Smith;

5. Summary judgment is denied on the Fifth Amendment right against self-incrimination

in Count III of Mr. Lee’s Complaint against Stell, Reyes, Nieves and granted as to

Turato;

6. Summary judgment is granted in favor of all individual Defendants on the failure to

intervene claim in Count V of both Complaints;

7, Suminary judgment is denied on the civil rights conspiracy claim against all individual

Defendants in Count IV of both Complaints;

32

8, Summary judgment is denied on the supervisory liability claims against Sgts. Reid,

Stell, and Lt. Clark in Counts VI and XI of both Complaints;

9, Summary judgment on the intentional infliction of emotional distress and negligence-

based state law claims in Counts IX and X is denied as to Defendants Set. Stell,

Jordan, Nieves, Reyes, but granted as to Finer, Smith, Iurato, Set. Reid, and Lt. Clark;

10, Summary judgment is denied in part and granted in part on the NJCRA claim in

Count Ali of both Complaints against the individual Defendants consistent with the

Court’s decisions on the federal constitutional claims;

11. The intentional infliction of emotional distress claim against Paterson in Count IX is

dismissed pursuant to Plaintiffs’ agreement to drop the claim against the City;

{2, Summary judgment is denied in part and granted in part on the municipal liability

claim against Paterson in Count VII of both Complaints;

13, Summary judgment is denied on the negligence-based state law claims against

Paterson in Count X of both Complaints;

Summary judgment is denied on the negligent supervision and training claim against

Paterson in Count XI of both Complaints; and

15. Summary judgment is denied on the NJCRA claim against Paterson in Count XII of

both Complaints.

An appropriate order follows.

ta

DATE: February-<@ , 2025

WILLIAM J. MARTINI, U.S.D.J.

33