COPE v. KOHLER et al

Filing 106

OPINION. Signed by Judge Jerome B. Simandle on 8/31/2017. (dmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

DEMETRIUS C. COPE,

HONORABLE JEROME B. SIMANDLE

Plaintiff,
Civil Action
No. 12-5188 (JBS/KMW)

v.
DAVE KOHLER, JOHN FINE, and
JOE CARUSO,
Defendants.

APPEARANCES:
Mark A. Fury,
22 Washington
PO Box 368
Mt. Holly, NJ
Attorney

Esq.
Street
08060
for Plaintiff

Thomas P. Lihan, Deputy Attorney General
New Jersey Office of the Attorney General
R.J. Hughes Justice Complex
25 Market Street
P.O. Box 116
Trenton, NJ 08625-0112
Attorney for Defendant Kohler
Mary Lou Garty, Esq.
THE GARTY LAW FIRM, LLC
712 East Main Street
Suite 2A
Moorestown, NJ 08057
Attorney for Defendant Fine
Swati M. Kothari, Esq.
212 Route 38
Suite 200
Moorestown, NJ 08057
Attorney for Defendant Caruso

OPINION

SIMANDLE, District Judge:
INTRODUCTION
This matter comes before the Court on the motions of
Defendants Detective Dave Kohler (hereinafter, “Defendant
Kohler” or “Detective Kohler”), Officer John Fine (hereinafter,
“Defendant Fine”), and Officer Joseph Caruso (hereinafter,
“Defendant Caruso”) for summary judgment pursuant to Fed. R.
Civ. P. 56(a) in a § 1983 malicious prosecution action brought
by Plaintiff Rashid Adowa, formerly known as Demetrius Cope
(hereinafter, “Plaintiff”). [Docket Items 86, 91, 93.]

For the

reasons stated herein, the Court grants Defendants’ motions.
BACKGROUND
A. Factual Background
Plaintiff Rashid Adowa is a resident of Burlington County,
New Jersey, and has lived predominantly in Burlington City where
Defendants Fine and Caruso are police officers. (Pl.’s SMF at ¶
1.)

Defendant David Kohler is a Detective at the Burlington

County Prosecutor’s Office, and has worked for the Office’s
Narcotics Task Force since June 2001. (Def. Kohler SMF at ¶ 3.)
Plaintiff acknowledges his prior history of arrests and
run-ins with the law, including charges of assault and
possession of controlled drug substances and firearms, all filed
against him by the Burlington City Police Department and
prosecuted by the Burlington County Prosecutor’s Office. (Pl.
2

SMF at ¶ 2.)

Specifically, in October 2006, Plaintiff was

arrested and indicted on a second-degree weapons charge which
stemmed from a police officer’s discovery and seizure of a SX
Model SKS 762 caliber rifle at Plaintiff’s home on July 5, 2006.
(Def. Caruso SMF at ¶ 28.)1
In March 2007, a confidential informant (“CI 1551”)
provided Detective Kohler and Defendant John Fine of the
Burlington City Police Department with information related to a
“large-scale cocaine distribution organization operated by
[Plaintiff].” (Id. at ¶ 11; Def. Fine SMF at ¶ 3.)

CI 1551

indicated that he/she had known Plaintiff to have sold cocaine
for a period of ten years. (Def. Fine SMF at ¶ 4.) CI 1551
indicated that (1) two individuals, Plaintiff and Mark McNeil,
were distributing cocaine from their residences, (2) Plaintiff
had been selling cocaine for a period of over ten years,
utilizing an unidentified supply source based in New York City,
and (3) that the CI had been purchasing cocaine from Plaintiff
at his Burlington Township residence for six months prior, and
that Plaintiff had additional residences in Willingboro and
possibly Pennsauken. (Def. Kohler SMF at ¶¶ 12-14.)

1

On May 10, 2011, Plaintiff was convicted by a jury on these
charges and sentenced to a term of 12 years in state prison.
(Ex. H to Fine Br.)
3

Detective Kohler, upon interviewing CI 1551, determined
that the CI was “knowledgeable in the jargon used and practices
involving the use and distribution of Controlled Dangerous
Substances.” (Id. at ¶¶ 15, 19.)

Specifically, CI 1551

indicated that when he/she would contact Plaintiff, he/she would
use code words such as “tickets” or “tee-shirts’ in reference to
crack cocaine, and that Plaintiff would change his wireless
telephone every few months and purchase pre-paid wireless
telephones under fictitious names, both in an effort to thwart
law enforcement investigators. (Id. at ¶¶ 16-17.)

CI 1551 also

informed Detective Kohler that Plaintiff had directed him/her to
deal with Mark McNeil at a specific telephone number, and that
McNeil was being supplied by Plaintiff personally. (Id. at ¶
18.)

Detective Kohler confirmed CI 1551’s familiarity with

Plaintiff and McNeil based on his/her identification of certain
physical identifiers of McNeil, the identification of unmarked
photographs of Plaintiff and McNeil, and the recitation of both
Plaintiff and McNeil’s criminal history. (Id. at ¶ 20.)
In March 2007, based on the corroborated information
received from CI 1551, Detective Kohler commenced Operation
Whirlwind. (Id. at ¶ 21.)2

CI 1551 made undercover purchases of

crack cocaine from McNeil on March 25, 2007 and March 28, 2007.

2

The identity of the confidential informant has not been
disclosed.
4

(Id. at ¶ 26.)

Then, on April 18, 2007, Detective Kohler made

an application for the first of five communications data
warrants to a judge of the Superior Court of New Jersey; after
reviewing Detective Kohler’s supporting Application and
Affidavit, the court found probable cause of a narcotics
conspiracy, and issued the warrant. (Id. at ¶¶ 27-28.)3 This
warrant and the subsequent renewals resulted in the interception
and recording of numerous telephone conversations between
Plaintiff and McNeil from July 2007 to August 2007. (Id. at ¶
30.)
On August 11, 2007, at approximately 11:45 A.M., an
outgoing telephone call from McNeil to an unidentified male was
intercepted and recorded. (Id. at ¶ 32.)

Detective Kohler

believed that McNeil was identifying Plaintiff as a source of
narcotics for McNeil’s distribution network, indicating that
Cope was running low on his supply and should be obtaining an
additional supply in the near future, and expressing hop that
Cope would get an additional supply of cocaine prior to McNeil
and his girlfriend having their baby. (Id. at ¶ 33.)

Then, on

August 13, 2007, at approximately 2:20 P.M., an outgoing
telephone call from McNeil to Plaintiff was intercepted and

3

The Court made similar findings of probable cause as to all
subsequent renewal applications submitted by Detective Kohler to
the Superior Court judge. (Id. at ¶ 29.)
5

recorded. (Id. at ¶ 35.)

Plaintiff asked McNeil if he “gotta

hundred,” which Kohler interpreted as Plaintiff referring to a
previous narcotics transaction with McNeil, and that he wanted
100 grams of cocaine. (Id. at ¶ 36.)

On a later intercepted

call that day, at 7:22 P.M., Plaintiff stated “bring I, bring
that with you,” which Detective Kohler interpreted to mean that
Plaintiff was telling McNeil that he was prepared to conduct the
narcotics transaction negotiated during their earlier telephone
call, and that the parties agreed that it would be conducted at
the hospital. (Id. at ¶¶ 39-40.)
Then, on August 16, 2007, at approximately 8:18 P.M., an
outgoing call from McNeil to Plaintiff was intercepted, where
McNeil confirmed that he would be taking Plaintiff somewhere,
which Detective Kohler believed to be the airport. (Id. at ¶
41.)

A check with the DEA’s Airport Group confirmed that on

August 17, 2007, Plaintiff and two others flew from LaGuardia
International Airport to Dallas-Fort Worth International
Airport, with a final destination of El Paso International
Airport. (Id. at ¶ 43.)

An intercepted call on August 17 at

12:17 P.M. from Plaintiff to an unknown individual indicated to
Detective Kohler that there would be a delivery of cocaine to
Plaintiff from an unknown supplier in Juarez, Mexico. (Id. at ¶
47-48.)

On August 19, 2007, McNeil called Plaintiff, and

according to Detective Kohler’s interpretation, McNeil was
6

questioning Plaintiff as to whether he has obtained the cocaine,
and Plaintiff was indicating that he had and was returning to
New Jersey. (Id. at ¶¶ 55-56.)
During Plaintiff’s journey from Texas to New Jersey,
investigators put a GPS “ping” on Plaintiff’s cell phone, and
observed an associate, Demetrius Lawful, removing two black
duffle bags from the back seat of his car and placing them into
the bed of Plaintiff’s red Chevrolet pickup truck. (Id. at ¶¶
56, 62.)

Lawful exited with one duffel bag at a residence in

Willingboro, NJ, and Plaintiff went to a location in Pennsauken,
NJ carrying the other duffel bag. (Id. at ¶¶ 63-64.)
On August 24, 2007, a warrant authorizing the search of
both Plaintiff and his residence in Pennsauken was reviewed and
issued by a judge of the Superior Court of New Jersey. (Id. at ¶
67.)

During the search, illegal weapons were seized, and as a

result, Plaintiff was charged with the federal crime of illegal
possession of weapons by a person not permitted to own a weapon.
(Def. Fine SMF at ¶¶ 15, 31.)

Plaintiff plead guilty to this

charge on May 11, 2010, and was sentenced to a term of seventy
months in federal prison. (Id. at ¶¶ 16, 34.)
On September 18, 2008, a Burlington County Grand Jury
returned an indictment charging Plaintiff, amongst eight other
co-defendants, with second-degree conspiracy to
distribute/possess with intent to distribute cocaine, in
7

contravention of N.J.S.A. 2C:35-a(1) and 2C:35-5b(2). (Id. at ¶
78.)

Detective Kohler conducted additional proffer sessions

with McNeil in the presence of his attorney on March 17, 2008
and May 2, 2008. (Id. at ¶¶ 79, 83.) On October 14, 2011, while
Plaintiff was still incarcerated for the federal weapons, the
Burlington County Prosecutor moved to dismiss the state
indictment as to Plaintiff nolle prosequi. (Id. at ¶ 93; Def.
Fine SMF at ¶ 36.)
B. Procedural History
On August 17, 2012, Plaintiff filed a civil rights
complaint pro se pursuant to 42 U.S.C. § 1983 alleging claims of
false arrest, illegal search and seizure, and a host of other
violations. [Docket Item 1.]

By Order dated March 4, 2013, this

Court granted Plaintiff’s motion to proceed in forma pauperis
and administratively terminated the complaint without prejudice
for failure to state a claim. [Docket Items 3 and 4.]

Plaintiff

filed an Amended Complaint on May 17, 2013. [Docket Item 11.]4 In
the Amended Complaint, Plaintiff alleged that Defendant Kohler
“knowingly used false statements, intimidated/coerced witnesses,
harassment, manufactured evidence, malicious prosecution, and
unreasonable seizure” and “distorted the real facts to create

4

For a more robust summary of the allegations in Plaintiff’s
Amended Complaint, the Court directs readers to Cope v. Kohler,
No. 12-5188, 2015 WL 3952714, at *1-3 (D.N.J. June 29, 2015).
8

probable cause.” (Am. Compl. at 3.) Plaintiff alleged that
Defendant Fine “initiated the investigation by knowingly using
false statements;” specifically, that Fine “developed” and “fine
tuned” the accusations of the “first time [confidential]
informant” by “fill[ing] in the blanks with knowingly false
accusation’s (sic), then built a case around it.” (Id.)
Plaintiff also alleges that Defendant Fine coached witness Mark
McNeil and “intentionally distorted surveillance observations to
give plaintiffs (sic) conduct a cds appearance/relationship.”
(Id.)

Regarding Defendant Caruso, Plaintiff alleged that he

“was another officer who interviewed Mark McNeil and attempted
to coerce him into implicating plaintiff.” (Id.)
On January 16, 2014, after engaging in sua sponte screening
pursuant to 28 U.S.C. § 1915, the Court permitted the Amended
Complaint to proceed against Defendants on the malicious
prosecution claim only. [Docket Item 14.] Defendants Fine and
Caruso filed Answers to the Amended Complaint, but Defendant
Kohler moved to dismiss the Amended Complaint asserting
entitlement to absolute immunity for his testimony before a
grand jury and qualified immunity for his actions relating to
his investigation of Plaintiff. [Docket Item 35.]

The Court

granted Defendant Kohler’s motion with respect to the absolute
immunity issue, but denied his motion without prejudice with
respect to the assertion of qualified immunity, based upon the
9

Court’s finding that Plaintiff should be afforded opportunity to
conduct discovery of underlying facts relevant to Defendant
Kohler’s assertion of qualified immunity. Cope v. Kohler, No.
12-5188, 2015 WL 3952714, at *6 (D.N.J. June 29, 2015).
The Magistrate Judge appointed counsel for Plaintiff on
November 16, 2015. [Docket Item 60.]

After the parties

exchanged written discovery and conducted the depositions of
Plaintiff and McNeil, the Defendants served Plaintiff with
Requests for Admissions seeking the factual basis for the
allegations in the Amended Complaint. Plaintiff did not respond
to any of the statements set forth in the Requests for
Admissions. Defendant Fine filed his motion for summary judgment
on December 9, 2016 [Docket Item 86], Defendant Kohler filed his
motion for summary judgment on December 9, 2016 [Docket Item
91], and Defendant Caruso filed his motion for summary judgment
on December 21, 2016 [Docket Item 93.]

In response, Plaintiff

filed a “Statement of Material Facts” along with a nineparagraph submission titled “Plaintiff’s Certification in
Opposition to Summary Judgment.” [Docket Items 100-101.]5

5

Defendant Fine argues that Plaintiff’s opposition materials do
not comply with L. Civ. R. 56.1. Counsel for Plaintiff
requested an extension of time to respond to Defendants’ summary
judgment motions on several occasions, including on January 3,
2017 [Docket Item 96], February 2, 2017 [Docket Item 98], and
February 16, 2017 [Docket Item 100]. The Court permitted each of
these extensions. On March 15, 2017, Plaintiff filed a fourpage, nine-paragraph “Statement of Material Facts,” where he
10

STANDARD OF REVIEW
At summary judgment, the moving party bears the initial
burden of demonstrating that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(a); accord Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). Once a properly supported
motion for summary judgment is made, the burden shifts to the
non-moving party, who must set forth specific facts showing that
there is a genuine issue for trial. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250 (1986). In reviewing a motion for
summary judgment, the court is required to examine the evidence
in light most favorable to the non-moving party, and resolve all
reasonable inferences in that party's favor. Scott v. Harris,
550 U.S. 372, 378 (2007); Halsey v. Pfeiffer, 750 F.3d 273, 287
(3d Cir. 2014).

does not respond to Defendants’ allegations nor does he cite to
the record for any of his allegations, as required by, as
required by L. Civ. R. 56.1(a)(“The opponent of summary judgment
shall furnish, with its opposition papers, a responsive
statement of material facts, addressing each paragraph of the
movant’s statement, indicating agreement or disagreement and, if
not agreed, stating each material fact in dispute and citing to
the affidavits and other documents submitted in connection with
the motion.”)(emphasis added). While Plaintiff was initially pro
se, he has been represented by counsel since November 16, 2015.
Accordingly, the Court deems the facts as set forth in
Defendants' various 56.1 statements undisputed for purposes of
the instant summary judgment motions. L. Civ. R. 56.1(a) (“[A]ny
material fact not disputed shall be deemed undisputed for
purposes of the summary judgment motion.”).
11

A factual dispute is material when it “might affect the
outcome of the suit under the governing law,” and genuine when
“the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson, 477 U.S. at 248. The
non-moving party “need not match, item for item, each piece of
evidence proffered by the movant,” but must simply present more
than a “mere scintilla” of evidence on which a jury could
reasonably find for the non-moving party. Boyle v. Cnty. of
Allegheny Pennsylvania, 139 F.3d 386, 393 (3d Cir.
1998) (quoting Anderson, 477 U.S. at 252).
DISCUSSION
A. Requests for Admissions
Defendant Kohler served Plaintiff with Requests for
Admission on June 29, 2016, and counsel for Plaintiff received
them on June 30, 2016, but never responded to any of the
requests. (Exs. B-C to Def. Kohler Br.)

Defendant Fine served

Plaintiff’s counsel (via e-mail and first-class mail) with
Requests for Admissions on August 11, 2016, but no response or
objection from Plaintiff has been received. (Exs. C-D to Def.
Fine Br.)
Requests for Admissions were properly served and were
required to be answered by stating either “admitted” or “denied”
as required by Rule 36. See United Coal Companies v. Powell
Construction Co., 839 F.2d 958, 967-68 (3d Cir. 1988) (noting
12

that Rule 36 requests should be simple and concise and capable
of being admitted or denied without explanation).
Plaintiff did not timely respond to the requests and
Defendants therefore argue that they should now be deemed
admitted under the provisions of Rule 36(a), which states in
relevant part:
A matter is admitted unless, within 30 days after being
served, the party to whom the request is directed serves on
the requesting party a written answer or objection
addressed to the matter and signed by the party or its
attorney.
Fed. R. Civ. P. 36(a)(3).

“The purpose of Rule 36(a) is to

narrow the issues for trial to those which are genuinely
contested.” United Coal Companies, 839 F.2d at 967. Therefore,
“[a]ny matter admitted under this rule is conclusively
established unless the court on motion permits withdrawal or
amendment of the admission.” Fed. R. Civ.P. 36(b). An admission
under Rule 36 is an “unassailable statement of fact.” Langer v.
Monarch Life Ins. Co., 966 F.2d 786, 803 (3d Cir. 1992) (quoting
Airco Industrial Gases, Inc. v. Teamsters Health & Welfare
Pension Fund, 850 F.2d 1028, 1037 (3d Cir. 1988)).
It is well established that admissions under Rule 36 are
conclusive and sufficient to support summary judgment. See
Langer, 966 F.2d at 803; Anchorage Assocs. v. Virgin Islands Bd.
of Tax Rev., 922 F.2d 168, 176 n.7 (3d Cir. 1990) (citing

13

Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976),
cert. denied, 429 U.S. 1038 (1977)).
The Court therefore deems the facts in Defendants’ Requests
for Admissions as true for purposes of summary judgment. See
Fed. R. Civ. P. 36; J & J Sports Productions, Inc. v.
Gencarelli, No. 10-4375, 2012 WL 266419, at *2 (D.N.J. Jan. 30,
2012)(granting summary judgment to plaintiff on admitted facts
based on defendant’s failure to respond to requests for
admission).
B. Malicious Prosecution
Defendants contend that they are entitled to summary
judgment on Plaintiff’s malicious prosecution claim.

To prevail

on a Section 1983 claim of malicious prosecution, Plaintiff must
show that: (1) Defendants initiated a criminal proceeding; (2)
the criminal proceeding ended in plaintiff’s favor; (3) the
proceeding was initiated without probable cause; (4) the
defendants acted maliciously or for a purpose other than
bringing the plaintiff to justice; and (5) the plaintiff
suffered deprivation of liberty consistent with the concept of
seizure as a consequence of a legal proceeding. Estate of Smith
v. Marasco, 318 F.3d 497, 521 (3d Cir. 2009); Johnson v. Knorr,
477 F.3d 75, 82 (3d Cir. 2007).

Failure to prove any element is

a basis to deny a malicious prosecution claim. Amato v. Smith,
No. 06-3161, 2010 WL 3906958, at *8 (D.N.J. Sept. 28,
14

2010)(citations omitted).

When claims of malicious prosecution

are brought against an arresting officer, it must also be shown
that the chain of causation was not broken by the “intervening
exercise of independent judgment” by a judge or prosecutor.
Rankines v. Meyrick, No. 14-1842, 2016 WL 545134, at *7 (D.N.J.
Feb. 10, 2016)(citations omitted).
Defendants Kohler, Fine, and Caruso do not contest that the
criminal proceeding ended in Plaintiff’s favor; however, they
argue that Plaintiff cannot satisfy the other elements required
to bring a successful § 1983 claim based on malicious
prosecution. The Court agrees with Defendants and, for the
followings reasons, grants summary judgment in favor of the
Defendants on Plaintiff’s remaining malicious prosecution claim.
1.

Initiated Proceedings

Defendants Fine and Caruso argue that Plaintiff cannot
satisfy the first element of a malicious prosecution claim
because Plaintiff fails to show that either one of them
initiated the proceedings against him.6

Defendants argue that

the narcotics investigation of Plaintiff and others was led by
the Burlington County Prosecutor’s Office, and that Defendant
Fine did not author any warrant, affidavit, or report. (Def.
Fine Br. at 21.) Defendants are correct that a malicious

6

Defendant Kohler does not contest this prong of the malicious
prosecution analysis.
15

prosecution action against a police officer is out of the
ordinary because a prosecutor, not police officer, initiates
criminal proceedings against an individual. Shamberger v.
Glover, No. 10-3236, 2012 WL 12517917, at *8 (D.N.J. May 23,
2012). “Although a prosecutor may initiate criminal proceedings
based on information received from a police officer, the
prosecutor does so only after independently reviewing the
information and exercising his or her discretion to initiate
such proceedings.” Shamberger, 2012 WL 12517917, at *8 (citation
omitted).

However, a plaintiff may maintain a malicious

prosecution action against a police officer who made “knowing
misstatements” to the prosecutor, or “interfered with the
prosecutor’s informed discretion in deciding whether to initiate
proceedings.” Id.
Plaintiff alleges that Defendant Caruso and Defendant Fine
coerced Mark McNeil into implicating him in a drug conspiracy.
If this were true, and Defendant Kohler prosecuted Plaintiff
under false pretenses of a coerced informant, then Plaintiff
could satisfy the first element of a malicious prosecution
claim, that Defendants Caruso and Fine initiated proceedings
against him.

However, Plaintiff has not pointed the Court to

any evidence in the record that Defendant Fine or Defendant
Caruso did in fact intimidate or coerce McNeil into implicating
his involvement. To the contrary, McNeil stated in his
16

deposition that he never informed Plaintiff that someone coerced
him into implicating Plaintiff in the distribution of a
controlled dangerous substance. (Ex. B to Def. Fine Br. at 16.]
While the fact that the police officers did not directly
initiate the prosecution cannot alone preclude Plaintiff’s claim
from going forward, there is no genuine issue of material fact
as to whether Defendants knowingly relayed false information to
the prosecutor.
2. Probable Cause
Defendants next argue that Plaintiff has put forth no
evidence that his arrest was initiated without probable cause.
“Probable cause to arrest exists when the facts and
circumstances within the arresting officer’s knowledge are
sufficient in themselves to warrant a reasonable person to
believe that an offense has been or is being committed by the
person being arrested.” Estate of Smith v. Marasco, 318 F.3d
497, 514 (3d Cir. 2003)(quoting Orsatti v. New Jersey State
Police, 71 F.3d 480, 482 (3d Cir. 1995)). Probable cause may be
absent where an officer “knowingly and deliberately, or with a
reckless disregard for the truth made false statements or
omissions that create a falsehood” and “such statements or
omissions are material, or necessary to the finding of probable
cause.” Wilson v. Russo, 212 F.3d 781, 786-787 (3d Cir. 2000).
Furthermore, officers may not rely on facts of which they had a
17

“high degree of awareness of their probable falsity.” Id.

While

usually “the question of probable cause in a section 1983 damage
suit is one for the jury,” Montgomery v. De Simone, 159 F.3d
120, 124 (3d Cir. 1998), “a district court can determine that
probable cause exists as a matter of law and grant summary
judgment when the evidence cannot reasonably support a contrary
finding.” Woodyard v. City of Essex, 514 F. App’x 177, 183 (3d
Cir. 2013).

“Lack of probable cause is the sine qua non of

malicious prosecution.” Trabal v. Wells Fargo Armored Service
Corp., 269 F.3d 243, 249 (3d Cir. 2001).
Plaintiff alleges that Defendant Kohler and Defendant Fine
knew the allegations of the CI were not reliable by virtue of
him/her being a first-time CI, and that Defendants did nothing
to “corroborate accusations and in fact, ignored the veracity
and reliability of the CI”. (Am. Compl. at 1.)

Specifically,

Plaintiff states that (1) “Defendants converted innocent
conversations about Mr. McNeil dropping me to the airport for a
Texas trip that I planned to take into a purported description
of a drug transaction in that state, (2) Defendants then
represented to a state court judge that conversations overhead
on the wiretap were coded to conceal CDS related transactions,
and (3) Defendant Kohler expressly misrepresented the
conversations to the state court judge in order to create the
impression of Plaintiff’s involvement in a drug transaction, all
18

as a means to obtain a search warrant.” (Pl. Certification at ¶
6.)

Furthermore, Plaintiff states that “police under

Defendants’ direction seized my truck, stripped it in search of
drugs, and finding none, intimidated known drug dealer and
prosecutorial target Mark McNeil (heard on some of the wiretaps)
into making a statement implicating me in his drug selling
affairs as evidence to accomplish an arrest.” (Id. at ¶ 7.)

All

of this, Plaintiff argues, is evidence that Defendants had no
probable cause for making the arrest, but rather manufactured
accusations and then distorted the real facts to create probable
cause.
Defendants respond that Plaintiff has failed to come
forward with competent, admissible evidence to raise a genuine
issue of material fact that Defendants Kohler, Fine, or Caruso,
knew or should have known that any specific aspect of the
information revealed during the investigation was inaccurate.
Detective Kohler states that based on his training and
expertise, the discussions between Plaintiff and McNeil captured
by the wiretap were discussions concerning narcotics
transactions.

Defendants further argue that the results of the

investigation prompted the Superior Court Judge to find that
there was a reasonable basis for the issuance of search warrants
for Plaintiff’s house. (Def. Kohler investigative reports of
August 21-24, 2007.)
19

In Woodyard v. Cty. Of Essex, 514 F. App’x 177 (3d Cir.
2013), the plaintiff was indicted for first-degree murder and
fourth degree unlawful possession of a weapon. The prosecution
later filed a Recommendation of Dismissal noting that although
there was probable cause for plaintiff’s arrest, they would not
be able to meet their standard of proof. Id. at 180. Plaintiff
subsequently filed a malicious prosecution complaint under 42
U.S.C. § 1983 alleging that the individual police officers did
not have probable cause to make the arrest. Id.

The plaintiff

claimed that a detective manipulated and suppressed evidence
relating to plaintiff’s relationship with the victim and drug
habits, and failed to expose the other defendant’s unlawful acts
by not revealing the inconsistencies in the eyewitness’s
testimony. Id. at 181.

The court held that there was no

evidence that the lead detective coerced the eyewitness’s
statements, or that he knew her statement about her physical
proximity to the murder was false. Id.

Further, the court held

that plaintiff’s grand jury indictment created a presumption of
probable cause. Id. at 183.

A “grand jury indictment or

presentment constitutes prima facie evidence of probable cause
to prosecute;” the presumption will only be overcome “by
evidence that the presentment was procured by fraud, perjury or
other corrupt means.” Woodyard, 514 F. App’x at 183 (quoting
Rose v. Bartle, 871 F.2d 331, 353 (3d Cir. 1989)). See Trabal v.
20

Wells Fargo Armored Service Corp., 269 F.3d 243, 251 (3d Cir.
2001) (explaining that an “indictment establishes probable cause
by definition, and it does not evaporate simply because the
prosecutor later decided that subsequent events compromised
Rodriguez's value as a witness”); King v. Deputy Atty. Gen.
Del., 616 F. App’x 491, 495 (3d Cir. 2015) (“A grand jury
indictment is prima facie evidence of probable cause to
prosecute.”).
Here, Plaintiff was indicted by a grand jury, creating a
presumption of probable cause; however, he claims that this
indictment was the result of Defendant Kohler fraudulently
testifying that McNeil implicated Plaintiff’s involvement in
drug distribution, when in fact McNeil attempted to disabuse the
Defendants of their impression that Plaintiff was involved.
Aside from the conclusory allegation that Defendant Kohler
falsely testified, Plaintiff has not pointed to any facts within
the evidentiary record, to create a genuine issue of material
fact that McNeil did not implicate Plaintiff in a drug
conspiracy, and yet Defendant Kohler, nonetheless, testified to
the opposite. Plaintiff has not produced any evidence (besides
his own conclusory certification) to support the allegation that
Defendant Fine or Defendant Kohler knew the information they
received from the CI was false or unreliable, aside from the
fact that he/she was a first time informant.
21

Furthermore,

Kohler only obtained a wiretap on McNeil’s phone, not
Plaintiff’s phone, and came to the conclusion that the multiple
conversations he heard concerned illegal drug sales. In
Plaintiff’s Amended Complaint, he even admits that “[i]t’s true
that there was drug distribution, but to call it a ‘large scale
drug ring’, is exaggerated.” (Am. Compl. at 15.)

Accordingly,

Plaintiff has failed to raise any material fact issues to
demonstrate a lack of probable cause; thus, summary judgment is
appropriate.
3.

Malice

Defendants contend that there is no evidence of malice.
Malice is defined as “the intentional doing of a wrongful act
without just cause or excuse.” Prince v. Aiellos, 594 F. App’x
742, 746 (3d Cir. 2014)(quoting LoBiondo v. Schwartz, 199 N.J.
62, 93-94, 970 A.2d 1007 (2009)). Malice can be inferred from
“want of probable cause,” provided the plaintiff “produce[s] at
least some extrinsic evidence” of the malice. Id. (quoting
Brunson v. Affinity Fed. Credit Union, 199 N.J. 381, 395-96, 972
A.2d 1112 (2009)). In the context of malicious prosecution,
“malice can mean ill-will or the use of a prosecution for an
extraneous purpose or a lack of belief in the guilt of the
accused.” Lippay v. Christos, 996 F.2d 1490, 1503 (3d Cir. 1993)
(emphasis in original).

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Plaintiff alleges that Defendants Kohler, Fine, and Caruso
misled and distorted events, coerced and threatened Mark McNeil,
and that Kohler “intentionally and maliciously lied before a
grand jury.” (Am. Compl. at 3.) Defendants argue that these are
broad conclusory allegations and are not supported by facts or
an explanation as to how any of the defendants lied or distorted
events.

The Court agrees with Defendants. Plaintiff has failed

to present any extrinsic evidence to show that any Defendant
acted with malice or for any other reason than to bring
Plaintiff to justice.

Plaintiff states that “[f]or reasons that

Plaintiff can only conclude were malicious, Defendants opened an
investigation of Plaintiff allegedly related to the possession
and sale of controlled dangerous substances.” (Pl. Certification
at ¶ 6.)

But such conclusory allegations, without any citations

to the record or other support, cannot suffice at the summary
judgment stage. See Celotex Corp., 477 U.S. 317, 324 (1986)
(explaining that the non-moving party must “go beyond the
pleadings and by [its] own affidavits, or by the ‘depositions,
answers to interrogatories, and admissions on file,’ designate
‘specific facts showing that there is a genuine issue for
trial.’” (quoting Fed. R. Civ. P. 56(e)); see also Lujan v.
National Wildlife Fed., 497 U.S. 871, 888 (1990) (“The object of
[Rule 56(e)] is not to replace conclusory allegations of the
complaint . . .

with conclusory allegations of an affidavit.”)
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Because there is no evidence from which a reasonable fact finder
could find malice, Defendants are entitled to summary judgment
due to failure of this essential element of malicious
prosecution.
4. Deprivation of Liberty
Finally, Defendants Kohler, Fine, and Caruso argue that
Plaintiff did not suffer any deprivation of liberty as a result
of his prosecution.

In order to successfully bring a claim for

malicious prosecution, a plaintiff must not only show
prosecution without lack of probable cause, but also must show
“some deprivation of liberty consistent with the concept of
seizure.” Donahue v. Gavin, 280 F.3d 371, 380 (3d Cir.
2002)(quoting Gallo v. City of Philadelphia, 161 F.3d 217, 222
(3d Cir. 1998)).

Fourth Amendment seizures for purposes of a §

1983 claim “relate to the boundary between arrest and pretrial
detention.At most, there may be some circumstances during pretrial detention that implicate Fourth Amendment rights; however,
we refer to the Fourth Amendment as applying to those actions
which occur between arrest and pre-trial detention.” United
States v. Johnstone, 107 F.3d 200, 206-207 (3d Cir. 1997).

A

Plaintiff contesting the deprivation of liberty prong “must show
that he suffered a seizure as a consequence of a legal
proceeding.” Gallo, 161 F.3d at 222.

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Defendants argue that that there is no evidence in the
record that Plaintiff was ever incarcerated, or otherwise
suffered any deprivation of his liberty as a result of the
investigation and Plaintiff’s subsequent indictment. (Def.
Kohler Reply Br. at 2.)
In Curry v. Yachera, 835 F.3d 373, 380 (3d Cir. 2016), the
court held that the plaintiff could not succeed on the
deprivation of liberty prong because he was already in jail for
a different crime when the detective brought his charges that
were eventually dropped.

Here, like in Curry, Plaintiff was

already in jail for the illegal weapons found during a search of
his home on August 24, 2007, and therefore Plaintiff suffered no
pre-trial detention as a result of the narcotics investigation.
Plaintiff has failed to satisfy the fifth prong in a malicious
prosecution action and show that he suffered a deprivation of
liberty due to his prosecution. For the reasons stated herein
the Court will grant summary judgment in favor of Defendants
Kohler, Fine, and Caruso.
C. Qualified Immunity
Defendant Fine, Defendant Caruso and Defendant Kohler
alternatively move for summary judgment on qualified immunity
grounds. Given that the Court grants summary judgment to all
three defendants on Plaintiff’s remaining malicious prosecution

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claim, the Court need not address Defendants’ qualified immunity
arguments.
CONCLUSION
An accompanying Order will be entered.

August 31, 2017
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge

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