KELLEY

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

ERIC KELLEY,

Plaintiff, No, 2:19-cv-17911 (WJM)

Vv.

OPINION

RICHARD REYES, et al,

Defendants.

Before the Court is Defendant City of Paterson’s (““Paterson” or “City”) Rule 50(a)

motion for a judgment as a matter of law as to Plaintiff Eric Kelley’s claims of 42 U.S.C.

§ 1983 municipal liability and state law negligence and negligent supervision against the

City. Previously, the Court denied summary judgment as to Plaintiff’s claims against

Paterson, referring in part to evidence that ultimately was not presented at trial. ECF No.

266, at 23-27, After hearing argument from the parties, and after reviewing Plaintiff's

briefs, ECF No, 458 (“Monell Opposition”); ECF No. 465 (“Negligence Opposition”), for

the reasons set forth below and stated on the record, Trial Tr. 2372:15-2375:13; 2378:10-

15; 2380:7-2381:6; 2389:11-17; ECF No. 484, the Court GRANTS the City’s Motion.

L BACKGROUND

The evidence presented in support of Plaintiff's Monel/ claim consists primarily of

four isolated incidents over three years occurring in an inner-city police department of

approximately 400 officers. Trial Tr. 1921:6-8; Monell Opp’n 6-7, 9-11. These incidents

involve excessive force, defrauding a fellow police officer, and off-duty conduct—nothing

similar to Plaintiff’s claims of fabricated evidence, deliberate deception, or coerced

confessions. These incidents were known to the PPD, and as described further below, the

officers involved largely faced discipline for misconduct that could be substantiated. See

id. 1825:23-1826:20; 1941:8-1942:4. The Court summarizes these incidents briefly below,

viewing them in the light most favorable to the Plaintiff.

© May 1991: Michael Fostok, Michael Fostok (formerly Bakri Fostok)

testified about an incident in PPD headquarters where, following a verbal

exchange with an officer, he was handcuffed and then subsequently assaulted

by an officer while in booking. Trial Tr. 1349:8-18; 1350:4-10; 1352:1-18.

Although Mr. Fostok initially faced an assault charge, the charges against

him were dropped, and he filed an Internal Affairs complaint and a civil

lawsuit. Jd. 1354:21-1356:11.

© february 1992: Off-duty Fraud, PPD Officer Cynthia Smith was indicted

ona charge of theft by deception for defrauding a fellow officer. Pl. Ex. 86.

The outcome of her proceeding was not introduced into evidence.

e May 1992: Kenneth Taylor. Kenneth Taylor testified that he was involved in

a confrontation with PPD Officer Steven Smith at a bar in Wayne, New

Jersey, resulting in Mr. Taylor’s arrest by Wayne Police. Jd. 1286:22-1290:7-

10, The charges against Mr. Taylor were eventually dismissed, and Officer

Smith ultimately was convicted of aggravated assault, false swearing, and

filing false police reports, after which he “agreed to resign” from the PPD.

Id. 1291;22-1296:16; 1963:20-1964:3; PL Ex. 96; Pl. Ex. 194.

e July 1993; Merino Homicide. Chief Munsey testified that his subordinates

“kept [him] abreast” of updates in the Merino investigation and believed that

he was told “as soon as possible once the confessions were obtained.” Jd.

1980:5-11. When asked whether he “think[s] it would be possible in this

case for sergeants and detectives working under [his] command to beat

suspects and fabricate confessions without [him] knowing about it,” Chief

Munsey stated, “I don’t believe that.” Jd. 1986:20-1987:4. Additionally,

Chief Munsey was “familiar with” then-suspect David Hancock’s stepfather,

who had political influence in Paterson, telling officers when Mr. Hancock

was brought in for questioning that they “better be right on this because you

know who his father is. So don't pull no funny games.” Jd. 631:20-24;

1982:15-17; 1983:16-18. Hancock then faced charges for his involvement

in the homicide. fd. 636:3-19,

e December 1993: Kenneth Eatman. Kenneth Eatman testified that he was

waiting to pay a ticket at the Paterson municipal building while listening to

music on a Walkman when a police officer approached him and instructed

him to remove his headphones. Jd, 1180:11-18, 1181:2-10. An argument

ensued, leading to officers assaulting and handcuffing him. Jd. 1180:11-

1183:21. Mr. Eatman testified that both the charges against him and the

charges against the officers were dropped, and Mr. Eatman filed an Internal

Affairs report. 7d, 1186:13-22. Two patrolmen were arraigned on charges of

ageravated assault and filing a false police report, though PPD Internal

Affairs Sergeant Ronald Barnes told the newspaper that no witness

corroborated Mr. Eatman’s account. Pl. Ex. 83.

e Throughout the 1990s: Federal Investigation. Former AUSA Henry

Klingeman testified about the federal investigation during the 1990s into

allegations that officers in the PPD’s task force charged with policing street

activity also abused citizens without justification, /d. 1467:7-23. Mr.

Klingeman explained that the investigation produced multiple grand jury

subpoenas but only one excessive force prosecution against Officer Stanley

Smith in 1998. fd. 1468:18-23; 1469:17-21; 1471:13-1472:17; 1473:12-24.

IL LEGAL STANDARD

A court may grant judgment as a matter of law under Rule 50(a) only when it finds

that a “reasonable jury would not have a legally sufficient evidentiary basis to find for the

[non-moving] party on that issue.” Fed. R. Civ. P. 50(a)(1). Judgment as a matter of law

should be granted “sparingly,” and, in determining whether there exists a sufficient

evidentiary basis to sustain liability, the court “may not weigh the evidence, determine the

credibility of witnesses, or substitute its version of the facts for the jury’s version.” Ocasio

v. Cnty. of Hudson, No. 23-1336, 2024 WL 2843018, at *1 (3d Cir. June 5, 2024) (citation

modified). A motion under Rule 50(a) “should be granted only tf viewing the evidence in

the light most favorable to the nonmoving party, there is no question of material fact for

the jury and any verdict other than the one directed would be erroneous under the governing

law.” Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996) (citation modified). The

standard under Rule 50 “largely mirrors the summary-judgment standard, the difference

being that district courts evaluate Rule 50(a) motions in light of the trial record rather than

the discovery record.” Dupree v. Younger, 598 U.S. 729, 731-32 (2023) (citation modified).

The Court “draws all reasonable and logical inferences in the nonmovant’s favor.”

Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir. 1993) (emphasis added),

I. DISCUSSION

Plaintiff has two Monel! theories: (A) Paterson has an official policy or custom of

overlooking police misconduct, fostering a culture of impunity that caused his

constitutional rights to be violated; and (B) Paterson’s failure to adequately supervise and

discipline its employees constitutes deliberate indifference, causing Plaintiff's

constitutional rights to be violated. ECF No. 402 (“Plaintiff Trial Brief’), at 16-19; Monell

Opp’n 5. These theories are distinct: “A plaintiff may put forth that an unconstitutional

policy or custom of the municipality led to his or her injuries, or that they were caused by

a failure or inadequacy by the municipality that reflects a deliberate or conscious choice.”

Forrest v. Parry, 930 F.3d 93, 105 (3d Cir. 2019) (citation modified) (emphasis added).

Under both theories, the Supreme Court has cautioned that “a municipality cannot be held

liable under § 1983 on a respondeat superior theory.” Monell v. Dept of Soe. Servs. of

N.¥, 436 U.S, 658, 691 (1978).

A. Official Policy or Custom

Under his official policy or custom theory, Plaintiff must prove either (1) there was

an official custom so widespread and well-settled that it constitutes a standard operating

procedure of the PPD or (2) Chief Munsey, the official policymaker of the City of

Paterson,! directed, approved, or endorsed the constitutional misconduct. Pl. Trial Br. 18-

19; see Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 403-04 (1997)

' The relevant policymaker under New Jersey law in Monell cases involving alleged police

misconduct is the police chief. Hernandez v. Borough of Palisades Park Police Dept, 58

F, App’x 909, 913 (3d Cir. 2003).

(explaining the standard). As explained below, he failed to produce sufficient evidence at

trial to sustain a jury finding of liability under both approaches.

1. Custom

Under Monell, a custom exists when “a given course of conduct, although not

specifically endorsed or authorized by law, is so well-settled and permanent as virtually to

constitute law.” Est. of Roman vy. City of Newark, 914 F.3d 789, 798 3d Cir, 2019) (citation

modified). Custom “may also be established by evidence of knowledge and acquiescence.”

Beck, 89 F.3d at 971.

The evidence of the alleged culture of impunity at the PPD, when viewed in a light

most favorable to Plaintiff, was not so widespread and well-settled that a jury could find

that it constituted a standard operating procedure of the PPD at the time of the Merino

murder. At the time, Chief Munsey had 400 officers under his command, so the handful of

instances of misconduct over a few years surrounding the Merino homicide cannot as a

matter of law rise to the level of a permanent custom of impunity meriting § 1983 liability.

Indeed, federal investigators conducted a broad probe, culminating in charges against only

one officer for excessive force. In all but Mr. Fostok’s incident (as well as this case),

officers faced disciplinary or criminal charges,’ though in Mr. Eatman’s case, the charges

were dropped against the offending officer. Other than speculation, there is no evidence

that the charges were dropped for corrupt reasons. Based on these incidents, a reasonable

jury could not conclude that there was a culture of impunity at the PPD.

Even crediting Mr, Eatman and Mr. Fostok’s testimony, two incidents involving

excessive force over three years do not create a custom of condoning constitutional

misconduct. Although Mr. Fostok testified that no one from Internal Affairs spoke with

him, that alone is insufficient to support a custom theory. See Brown v. City of Pittsburgh,

586 F.3d 263, 292 (3d Cir. 2009) (describing the need for a “pattern” of behavior to

substantiate a custom theory), Moreover, Mr, Eatman’s incident occurred after Mt.

Kelley’s confession, so it could not support the existence of a custom existing at the

relevant time. Additionally, the incidents involving Mr. Eatman and Mr. Fostok do not

involve fabrication, deliberate deception, and coerced confessions, nor do they involve

interrogations or false arrests. See Beck, 89 F.3d at 974-75 (concluding that there was

sufficient evidence to support knowledge and acquiescence where the evidence included

multiple complaints of the same type against the same officer within a year); Beers v. Cnty.

of Northumberland, No. 23-2555, 2024 WL 2874283, at *3 (3d Cir. June 7, 2024)

(affirming dismissal of a complaint that failed to allege a custom of understaffing county

jails—-the exact type of relevant misconduct).

The off-duty incident involving Officer Steven Smith in Wayne is immaterial as a matter

of law because the decisions of Wayne officers’ charging decisions say nothing about the

PPD, particularly where Chief Munsey communicated with the Wayne Police about the

investigation, and the officer ultimately was convicted. Trial Tr. 1952:21-1953:25,

The remainder of the evidence includes tangential comments in support of police

officers accused of misconduct, which cannot as a matter of law constitute a widespread,

standard operating procedure in the PPD to condone official misconduct. See Pl, Ex. 86,

There is no evidence to support even a reasonable inference that Chief Munsey

obstructed or otherwise interfered with the criminal investigations into Officers Cynthia

Smith, Stanley Smith, or Steven Smith. Plaintiff’s assertion that Individual Defendants’

positions at trial somehow demonstrate a culture of impunity is speculative, conclusory,

and inconsistent with the actual evidence. See Opp’n 8. Rhetoric aside, Plaintiff's

argument that during this trial, the Individual Defendants “[wel]re lying on the stand to

protect themselves and each other” is irrelevant to a claim of a culture of impunity more

than thirty years ago. See id. Viewing the evidence in the light most favorable to Plaintiff,

these incidents cannot as a matter of law demonstrate a culture of unaccountability

supporting a custom so weil-settled and permanent that it constitutes law.

2. Policy

As to policy, Plaintiff “must point to an official proclamation, policy or edict by a

decisionmaker possessing final authority to establish municipal policy on the relevant

subject,” Forrest, 930 F.3d at 105 (emphasis added). He did not do so at trial. Although

Chief Munsey had discretion to suspend officers facing indictment, “[t]he fact that a

particular official—even a policymaking official—has discretion in the exercise of

particular functions does not, without more, give rise to municipal lability based on an

exercise of that discretion.” Pembaur v. City of Cincinnati, 475 U.S. 469, 481-82 (1986).

Similarly, for the reasons discussed above, the evidence presented by Plaintiff does not

show an overarching policy of condoning false or coerced confessions—indeed, the

undisputed evidence is to the contrary. See generally, e.g., Pl. Ex. 2A (PPD Manual

prohibiting such conduct). Therefore, Plaintiff failed to introduce sufficient evidence upon

which a reasonable jury could find that Chief Munsey established an official

unconstitutional policy based on the incidents described.

What remains is Plaintiff's theory that Munsey’s conduct in the Merino

investigation suffices to impose Mone// liability based on a theory of ratification. Opp’n.

5, 11-12. Ratification involves the “[clonfirmation and acceptance of a previous act,” or

affirmance of someone’s prior act.” Ratification, Black’s Law Dictionary (12th ed.

2024). As an agency principle, ratification requires either a manifestation of assent or

“conduct that justifies a reasonable assumption that the person so consents.” Restatement

(3d) of Agency § 4.01(2) (2006); see Valentin v. Phila. Gas Works, 128 F. App’x 284, 285-

86 (3d Cir. 2005) (describing how liability can attach to the city based on “the affirmative

conduct of a person who has been identified as the ultimate policymaker”), Certainly,

“municipal liability may be imposed for a single decision by municipal policymakers under

appropriate circumstances.” Pembaur, 475 U.S. at 4809.

Here, Plaintiff's ratification theory hangs on Chief Munsey’s testimony that he was

“kept abreast” of the Merino investigation and believed that it would not “be possible in

this case for sergeants and detectives working under [his] command to beat suspects and

Qo

fabricate confessions without [him] knowing about it.” This speculative answer to a

hypothetical question at trial, decades later, about what he believes he might have known

about misconduct that might have occurred does not fit the “extreme factual situation|]”

contemplated for imposing municipal lability. See Davidson v. City of Stafford, 848 F.3d

384, 395-96 (Sth Cir. 2017), as revised (Mar. 31, 2017) (holding that the police chief’s

after-the-fact review of the officers’ conduct did not amount to ratification), Chief Munsey

never even testified that he saw the confessions or any of the other relevant case documents.

For Plaintiff’s ratification theory to work, he must introduce evidence that Chief Munsey

actually or constructively knew of the misconduct, not that he hypothetically would have

known about it if it did in fact occur, See Alen v. Hays, 65 F.4th 736, 749 & n.10 (5th Cir,

2023) (reasoning that Monell liability requires actual or constructive knowledge by the

official policymaker). Therefore, as to the Merino investigation (and all incidents

referenced by Plaintiff), there is no evidence supporting a reasonable assumption that Chief

Munsey confirmed or accepted any misconduct, making ratification impossible.

Moreover, Chief Munsey’s alleged comment that the officers had better be correct

that Mr. Hancock was a suspect has nothing to do with the alleged misconduct in this case

involving Mr. Kelley’s confession. If anything, the jury could reasonably conclude that

Chief Munsey’s comment was consistent with an instruction to be careful, and even with

that warning, the officers prosecuted Mr. Hancock for his alleged role in the Merino

homicide. Based on the record, no reasonable jury could credit Plaintiff’s theory that Chief

Munsey was showing favoritism based on Mr. Hancock’s political connections when Mr.

Hancock ultimately faced prosecution.

Therefore, the City has shown that the evidence introduced at trial is insufficient for

a jury to find liability on both his custom and policy theories.

B. Failure to Supervise or Discipline

Plaintiff also claims liability against the City for failing to supervise and/or

discipline PPD officers. That theory requires Plaintiff to prove (1) inadequate supervision

or discipline; (2) deliberate indifference to the inadequacy; and (3) proximate cause. See

Forrest vy. Parry, 930 F.3d 93, 105-06 (3d Cir. 2019). As to the deliberate indifference

element, Plaintiff must prove (a) the City knew the officers would confront a particular

situation; (b) which involved a difficult choice or a choice officers had a history of

mishandling; and (c) the wrong choice would frequently cause a deprivation of

constitutional rights. Carter v. City of Phila., 181 F.3d 339, 357 (3d Cir. 1999), “The scope

of failure to train liability is a narrow one.” Brown v. Muhlenberg Twp., 269 F.3d 205, 215

(3d. Cir. 2001). A failure to supervise, discipline, or train requires “evidence that the need

for more or different training was so obvious and so likely to lead to the violation of

constitutional rights that the policymaker’s failure to respond amounts to deliberate

indifference.” /d. at 216.

Here, Plaintiff argues that Internal Affairs had a history of not following up on

complaints of misconduct, (e.g., the Eatman, Taylor, and Fostok incidents) and that Internal

Affairs failed to take corrective action, frequently depriving citizens of their constitutional □

Lf

rights and amounting to deliberate indifference. None of these incidents in the record

demonstrate deliberate indifference based on a pattern of fabrication, deliberate deception,

or coercion charges. See Connick v. Thompson, 563 U.S. 51, 62-63 (2011) (“A pattern of

similar constitutional violations by untrained employees is ordinarily necessary to

demonstrate deliberate indifference for purposes of failure to train.” (citation modified));

City of Oklahoma City v. Tuttle, 471 US. 808, 821 (1985) (rejecting municipal liability

under a deliberate indifference theory “simply because the municipality hired one ‘bad

apple’”). Although Plaintiff argued at trial that the officers in each of these incidents

fabricated charges to cover up misconduct, in several incidents, the officers faced

disciplinary charges themselves, belying a speculative inference that the City condoned the

alleged misconduct.

Moreover, as to the failure or inadequacy theory, single-incident liability is frowned

upon, whether based on the Merino investigation or any individual incident. See Hightower

City of Phila., 130 F.4th 352, 357 Gd Cir. 2025) (cautioning against premising municipal

liability involving an inadequacy theory based on a single incident, noting that the Supreme

Court has only entertained a single-incident theory as a hypothetical); see McGuire v. City

of Pittsburgh, No. 14-cv-01531, 2016 WL 6561457, at *8-9 (W.D. Pa. Nov. 3, 2016)

(granting summary judgment to the city on a failure-to-train claim where the plaintiff failed

to introduce evidence supporting other similar instances). Furthermore, the record lacks

any allegations of misconduct so extreme and obvious, such as a city failing to train armed

officers before “set[ting] them loose without any legal training,” that would merit single-

incident liability. See Hightower, 130 F.4th at 357.

Viewed in the light most favorable to Plaintiff, the record shows that in each

incident, the PPD’s Internal Affairs Department investigated, leading to charges in most of

incidents. Based on this record, the City has shown that a reasonable jury could not

find Monell liability on a theory of inadequate supervision of training of PPD officers.

C, Negligence

Finally, the Court grants the City’s motion for judgment as a matter of law as to

Plaintiff’s negligence-based theories because Plaintiff failed to adduce evidence of

economic damages as required under the New Jersey Tort Claims Act, N.J. Rev. Stat.

§ 59:1-1 (2025) et seg. (SNITCA”).

Although respondeat superior can provide a basis for municipal liability for

negligence-based torts, pain and suffering damages “against a public entity or public

employee for pain and suffering resulting from any injury” are permitted only where there

is evidence of “permanent loss of a bodily function, permanent disfigurement, or

dismemberment where the medical treatment expenses are in excess of $3,600.00.”

N.J.S.A. 59:9-2(d) (the “verbal threshold”); Lankford v. City of Clifton Police Dep t, 546

F. Supp. 3d 296, 322 (D.N.J. 2021); Casciano y. City of Paterson, No, 19-cv-09475, 2022

WL 170857, at *8 (D.NJ. Jan. 19, 2022) (recognizing that “Plaintiff cannot maintain a

claim for pain and suffering damages” under her state law negligence claims); see Nieves

v. Adolf, 241 N.J. 567, 581-82 (2020) (applying the NJTCA to claims for pain and suffering

=

based on twelve years of wrongful incarceration). It is undisputed that Plaintiff’s damages

are for pain and suffering. See Negligence Opp’n 1 (referring to “Plaintiff’s requested

relief of pain and suffering damages”). Plaintiff offered no evidence that he suffered a

permanent, substantial loss of bodily function or permanent disfigurement or

dismemberment resulting in greater than $3,600 in medical expenses. See Faragalla v,

Jersey City, No, 17-cv-03604, 2020 WL 5812798, at *14 (D.N.J. Sept. 30, 2020); Baker v

United States, 642. . App’x 147, 150 Gd Cir. 2016) (holding that the NJTCA bars a claim

for negligent supervision of law enforcement against a city); Hansell v. City of Atl. City,

152 F. Supp. 2d 589, 611 (DNL. 2001), aff'd, 46 F. App’x 665 (3d Cir, 2002) (holding that

the NJTCA bars a claim for negligence absent a showing of “permanent loss of bodily

function’).

Plaintiff’s arguments in support of reconsideration are unavailing. First, Plaintiff is

incorrect that the City waived its affirmative defense. ECF No. 90 (“Paterson Answer”),

at 19, 25 (Eighteenth Separate Defense; Fifty-Fourth Separate Defense), Second,

Plaintiff's case law is inapposite, relating either to liability for intentional torts or where

the statute does not apply. See Hayward v. Salem City Bd. of Educ., No..14-cv-05200, 2016

WL 4744132, at *8, 11, 13 (D.N.J. Sept. 12, 2016) (concluding that the verbal threshold

applied but there was a genuine issue of material fact as to actual malice or willful

misconduct in surviving state-law tort counts); Brewer vy. Hayman, No. 06-cv-06294, 2009

WL 2139429, at *11 (D.NJ. July 10, 2009) (applying the NJTCA to non-negligence

counts); Alston v. City of Camden, 168 N.J. 170, 176 (2001) (noting the rule is “immunity

for public entities with liability as the exception’); Tice v. Cramer, 133 N.J, 347, 355-56

(1993) (concluding that “[w]hen both liability and immunity appear to exist, the latter

trumps the former”). Because Plaintiff has not introduced sufficient evidence at trial to

substantiate the damages element of his negligence claims under New Jersey law, the Court

grants the City’s motion as to Plaintiff’s negligence claims and denies Plaintiff’s request

for reconsideration.

IV. CONCLUSION

For these reasons, the City’s Motion for Judgment as a matter of law is GRANTED.

DATE: April _, 2026 Zo Lit) MV

WILLI ih J. MARTINI, U.S.D.J.