COSTINO v. ANDERSON et al

Filing 83

OPINION. Signed by Judge Joseph H. Rodriguez on 9/26/2018. (rtm, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JOHN G. COSTINO,

:

Hon. Joseph H. Rodriguez

Plaintiff,

:

Civil Action No. 14-6940

v.

:

POLICE OFFICER TONYA
ANDERSON, et al.,
Defendants.

OPINION

:
:

This matter is before the Court on motions for summary judgment
pursuant to Fed. R. Civ. P. 56 filed by remaining Defendants Little Egg
Harbor Township and its Police Officer Tonya Anderson [Doc. 63] and
Cape May County Prosecutor’s Office Detective George Hallett [Doc. 64].
The Court has reviewed the submissions and decides the matter based on
the briefs pursuant to Fed. R. Civ. P. 78(b). For the reasons stated here, the
motions will be granted.
Background
The facts of this case have been outlined in prior opinions of this
Court. For more than 30 years, Plaintiff John G. Costino was a practicing
physician treating patients in his North Wildwood office. (Am. Compl., ¶1 &
18.) In 2007, when the events giving rise to this lawsuit began, Costino
maintained a successful North Wildwood medical practice including
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general internal medicine, sports medicine, pain management, acute care
for injured patients, and workers compensation related injuries. (Am.
Compl., ¶19.) At that time, Costino was the only pain management
physician in the Wildwoods; one of only two pain management physicians
in all of Cape May County. (Am. Compl., ¶20.) Costino’s multiple board
certifications included being a Fellow of the American Academy of Pain
Management. (Am. Compl., ¶21.) Costino was certified through the Drug
Enforcement Administration to treat patients with opioid (heroin)
addiction, and he was permitted to prescribe Suboxone to treat patients
with opioid addiction. (Am. Compl., ¶22.) By virtue of Costino’s training,
skill and reputation, he often received referrals from other physicians to
provide treatment for pain management to patients. (Am. Compl., ¶23.)
Costino’s medical practice came under the scrutiny of the Cape May County
Prosecutor’s office in 2005, as a result of a statistical report identifying
Costino as prescribing excessive amounts of addictive pain medications.
(Am. Compl., ¶24.) The fact that Costino was prescribing a significant
amount of addictive pain medications was explained by Plaintiff as: (a.) A
substantial portion of his practice was dedicated to pain management
patients and to the treatment of patients addicted to opioids; and (b.) On
three occasions in 2004 and 2005, prescription pads were stolen from
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Costino’s office and used illegally to obtain addictive pain medications. On
each such occasion, Costino reported these thefts and the perpetrators
were prosecuted by the authorities. (Am. Compl., ¶25.)
In December 2005, the Cape May County Prosecutor’s office sent an
undercover detective to Costino’s office, posing as a heroin addict. (Am.
Compl., ¶27.) The detective attempted obtain a prescription for pain
medication. (Id.) Costino refused to prescribe the medication because the
patient presented as a heroin addict. (Id.) Instead, Costino urged the
patient to enter the Suboxone program for treatment of the heroin
addiction. (Id.) The detective therefore wrote a report favorable to Costino,
indicating that there was no evidence to support an allegation that Costino
improperly prescribed medication. (Id.)
On April 12, 2007, Defendant Little Egg Harbor Township Police
Officer Tonya Anderson, wired with a recording device, sought treatment
from Costino. (Am. Compl., ¶2 & 29.) She posed as an exotic dancer who
had been taking Percocet for pain without a valid prescription. (Id.)
Anderson told Plaintiff that she was on her feet all day and it was hard for
her to “unwind” at the end of the day. (Tr. from Audio of Anderson’s
4/12/07 Undercover Visit at ¶¶ 45–48.) She also said that “one of the girls
that I work with at a previous place had told me to come here she . . . she I
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think she had given me percocets and I, I had taken a few um just to kind of
unwind after work[.]” (Id. at ¶¶ 50–52.) Plaintiff told Anderson that
Percocet was a pain medication that was “not for relaxation,” and that she
should not “want something for pain which is addictive unless you’ve really
got a real problem.” (Id. at ¶ 55; ¶¶ 59–60.) Anderson said that Percocet
worked for her before, and Plaintiff asked her if she was addicted, to which
she replied in the negative. (Id. at ¶¶ 92–98.) Plaintiff then asked Anderson
if she had any pain. (Id. at ¶ 103.) She responded, “No no I wouldn’t say
pain. I don’t have any . . . .” (Id. at ¶ 104.) He later asked her if she had any
spine issues or any “major issues at all?” (Id. at ¶¶ 173–74.) She responded,
“No.” (Id. at ¶ 175.) Plaintiff diagnosed Anderson with “acute lumbar and
thoracic strain and sprain” in Anderson’s chart, (see Anderson’s chart notes
from 4/12/07 visit), and prescribed her thirty 7.5 mg tablets of Percocet—
telling her it should last her about 6 weeks. Id. 204–205; (see copy of the
prescription dated April 12, 2007).
Less than three weeks later, on May 2, 2007, Anderson returned for
more Percocet. (Tr. from Audio of Anderson’s 5/2/07 Undercover Visit.)
Plaintiff wrote her a six week prescription. (Id.) When asked if she was sore
after a night of dancing, Anderson told Plaintiff that “it’s more the
relaxation” and she has no discomfort. (Id. at 10–16.) During the
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encounter, Plaintiff told Anderson, “[y]ou really don’t have any other
medical issues I mean you’re basically a healthy gal.” (Id. at 84–85.) He
then wrote her another prescription for thirty 7.5 mg tablets of Percocet
and warned her not to tell her girlfriends that she has it. (Id. at 121–22;
copy of prescription dated May 2, 2007.) Plaintiff again noted in
Anderson’s chart that she suffered from acute lumbar sprain and strain.
(Anderson’s chart notes from 5/2/07 visit.)
Anderson returned for more drugs on June 7, 2007—this time asking
for a stronger prescription of 10 mg because she wanted something “a little
stronger that lasts a little longer[.]” (Tr. from Audio of Anderson’s 6/7/07
Undercover Visit, p. 1.) Plaintiff responded, “Well you can go to 10s yeah”
(referring to 10 mg). (Id.) Plaintiff again wrote Anderson a prescription—
this time for the 10 mg strength. (See copy of prescription dated June 7,
2007.)
The next undercover visit was on June 26—less than a month later.
Anderson complained that she did not notice a difference between the 7.5
mg pills and the 10 mg pills. (Tr. from Audio of Anderson’s 6/26/07
Undercover Visit, p. 2.) Plaintiff responded “you become a little tolerant.”
(Id.) Anderson left with another prescription for thirty tablets of 10 mg
Percocet. (See copy of prescription dated June 26, 2007.) Two and half
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weeks later, Anderson left with another prescription for thirty tablets of 10
mg Percocet. (See copy of prescription dated June 26, 2007.)
During the next visit on August 3, 2007, Anderson was accompanied
by another undercover agent, Margarita Abbattiscianni, who was posing as
a stripper named Maggie Ortiz. During this visit, Plaintiff asked
Abbattiscianni “what’s the matter?” She responded, “Well, I mean it’s
basically the same as Tonya here[,]” (referring to Anderson), “[j]ust I’m up
all night and I just need something to just bring me down a little bit during
the day.” (Tr. of Audio Recording from 8/3/07 at 48:1–7.) Later in the
examination the following exchange took place between Plaintiff and
Abbattiscianni:
Plaintiff:

You’re pretty healthy, are you? Well I guess you are,
right?
Abbattiscianni: I sure am. I’m one hundred percent healthy.
Plaintiff:
No major issues with the dance?
Abbattiscianni: No, none whatsoever.
....
Plaintiff:
No surgery ever, huh?
Abbattiscianni: No surgery, no.
Plaintiff:
And no medical issues or anything?
Abbattiscianni: No, none.
....
Plaintiff:
Any knee issues or—
Abbattiscianni: Oh, no.
Plaintiff:
—ankle issues—
Abbattiscianni: No.
Plaintiff:
—or anything like that?
Abbattiscianni: Nothing.
Plaintiff:
No?
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Abbattiscianni:
Plaintiff:
Abbattiscianni:
Plaintiff:

I feel good.
That’s terrific. And really, no history of anything?
Nothing.
So, you’re basically just as normal as normal can be,
right?
Abbattiscianni: Yes, very normal.
(Id. 60:23–62:18.) Following this interaction, Plaintiff listened to
Abbattiscianni’s chest and remarked, “I mean you’re clear as a bell, too. Do
you want to do the same thing? Do you want to take one of these
Percocets?” (Id. at 63:1–3.) Abbattiscianni said “Yes, please.” (Id.)
Moments later Plaintiff began questioning Abbattiscianni again about pain:
Plaintiff:

Do you have any back pain every—every now and
then?
Abbattiscianni: No back pain whatsoever, nothing.
....
Plaintiff:
Well, let me just caution you to be careful with the
medication, okay?
Abbattiscianni: Okay.
Plaintiff:
Just take, you know, one a day.
Abbattiscianni: Uh-huh.
Plaintiff:
See, taking one a day you’ll never have any trouble
with the medication.
Abbattiscianni: Right.
Plaintiff:
You know, you’ll never get addicted or habituated.
Do you know what I mean?
Abbattiscianni: Right.
Plaintiff:
Just take it when you’re done your work. You know,
and it’ll just relax you—
Abbattiscianni: Just relax, yeah.
Plaintiff:
—and takes the pain away.
Abbattiscianni: Uh-huh, uh-huh.
Plaintiff:
You know, I’m sure you get these acute strains and
sprains and this and that.
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Abbattiscianni: You know what, I’m pretty flexible, so there’s not
much pain. I do a lot of exercise, so I’m good.
(Id. at 63:16–64:20.) Anderson and Abbattiscianni each left with a
prescription for 60 10mg tablets of Percocet—twice as much as the previous
visits. (See copy of Abbattiscianni’s prescription dated August 3, 2007; copy
of Anderson’s prescription dated August 3, 2007.)
An Indictment was issued against Costino, charging him with drug
related offenses relating to the unlawful distribution of controlled
substances. (Am. Compl., ¶33.) Costino was arrested in September of 2007
and taken into police custody until he was able to post $100,000 bail. (Am.
Compl., ¶43.) After more than five years, the criminal charges were tried
before the Honorable Raymond A. Batten in the Superior Court of Cape
May County. (Am. Compl., ¶46.) Costino testified on his own behalf. (Am.
Compl., ¶47.) After deliberating less than two hours, on November 8, 2012,
the jury returned a verdict in favor of Costino and he was acquitted of all
criminal charges. (Am. Compl., ¶48.)
Costino has filed a civil rights complaint in this Court. In Count I of
the Amended Complaint, Costino asserted claims against the individual
Defendants for the violation of his 4th and 14th Amendment rights (1) to be
free from malicious prosecution without probable cause and (2) to due
process. He alleged that the individual Defendants worked in concert to
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secure false charges against him resulting in his arrest, confinement, and
prosecution. Count II alleged deliberately indifferent policies, procedures,
customs, and/or practices as well as deliberately indifferent training and
supervision by Little Egg Harbor Township, (see Am. Compl. ¶ 12-13), in
violation of Plaintiff’s 4th and 14th Amendment rights. In Count III,
Costino asserts a claim for malicious prosecution in violation of the New
Jersey Civil Rights Act, N.J. Stat. Ann. § 10:6-1. Count IV has been
dismissed from the case, as have all claims against previously named
Defendants Margarita Abbattiscianni, Robert Taylor, Meghan Hoerner,
Matthew Weintraub, Tina Kell, Lynn Frame, and Cape May County.
Applicable Standard
“Summary judgment is proper if there is no genuine issue of material
fact and if, viewing the facts in the light most favorable to the non-moving
party, the moving party is entitled to judgment as a matter of law.” Pearson
v. Component Tech. Corp., 247 F.3d 471, 482 n.1 (3d Cir. 2001) (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)); accord Fed. R. Civ. P. 56
(a). Thus, the Court will enter summary judgment in favor of a movant who
shows that it is entitled to judgment as a matter of law, and supports the
showing that there is no genuine dispute as to any material fact by “citing to
particular parts of materials in the record, including depositions,
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documents, electronically stored information, affidavits or declarations,
stipulations . . . admissions, interrogatory answers, or other materials.”
Fed. R. Civ. P. 56 (c)(1)(A).
An issue is “genuine” if supported by evidence such that a reasonable
jury could return a verdict in the nonmoving party’s favor. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is “material” if, under
the governing substantive law, a dispute about the fact might affect the
outcome of the suit. Id. In determining whether a genuine issue of material
fact exists, the court must view the facts and all reasonable inferences
drawn from those facts in the light most favorable to the nonmoving party.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Initially, the moving party has the burden of demonstrating the
absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. Once
the moving party has met this burden, the nonmoving party must identify,
by affidavits or otherwise, specific facts showing that there is a genuine
issue for trial. Id.; Maidenbaum v. Bally’s Park Place, Inc., 870 F. Supp.
1254, 1258 (D.N.J. 1994). Thus, to withstand a properly supported motion
for summary judgment, the nonmoving party must identify specific facts
and affirmative evidence that contradict those offered by the moving party.
Anderson, 477 U.S. at 256-57. “A nonmoving party may not ‘rest upon mere
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allegations, general denials or . . . vague statements . . . .’” Trap Rock Indus.,
Inc. v. Local 825, Int’l Union of Operating Eng’rs, 982 F.2d 884, 890 (3d
Cir. 1992) (quoting Quiroga v. Hasbro, Inc., 934 F.2d 497, 500 (3d Cir.
1991)). Indeed,
the plain language of Rule 56(c) mandates the entry of
summary judgment, after adequate time for discovery and
upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential
to that party’s case, and on which that party will bear the
burden of proof at trial.
Celotex, 477 U.S. at 322. That is, the movant can support the assertion that
a fact cannot be genuinely disputed by showing that “an adverse party
cannot produce admissible evidence to support the [alleged dispute of]
fact.” Fed. R. Civ. P. 56(c)(1)(B); accord Fed. R. Civ. P. 56(c)(2).
In deciding the merits of a party’s motion for summary judgment, the
court’s role is not to evaluate the evidence and decide the truth of the
matter, but to determine whether there is a genuine issue for trial.
Anderson, 477 U.S. at 249. Credibility determinations are the province of
the factfinder. Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358,
1363 (3d Cir. 1992).
Discussion
42 U.S.C. § 1983

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Plaintiff’s Constitutional claims are governed by Title 42 U.S.C. §
1983, which provides a civil remedy against any person who, under color of
state law, deprives another of rights protected by the United States
Constitution. See Collins v. City of Harker Heights, 503 U.S. 115, 120
(1992). Any analysis of 42 U.S.C. § 1983 should begin with the language of
the statute:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law, suit in equity, or
other proper proceeding for redress.
See 42 U.S.C. § 1983.
As the above language makes clear, Section 1983 is a remedial statute
designed to redress deprivations of rights secured by the Constitution and
its subordinate federal laws. See Baker v. McCollan, 443 U.S. 137, 145 n.3
(1979). By its own words, therefore, Section 1983 “does not . . . create
substantive rights.” Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir.
2006) (citing Baker, 443 U.S. at 145, n.3).
To state a cognizable claim under Section 1983, a plaintiff must allege
a “deprivation of a constitutional right and that the constitutional
deprivation was caused by a person acting under the color of state law.”
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Phillips v. County of Allegheny, 515 F.3d 224, 235 (3d Cir. 2008) (citing
Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996)). Thus, a plaintiff must
demonstrate two essential elements to maintain a claim under § 1983: (1)
that the plaintiff was deprived of a “right or privileges secured by the
Constitution or the laws of the United States” and (2) that plaintiff was
deprived of his rights by a person acting under the color of state law.
Williams v. Borough of West Chester, Pa., 891 F.2d 458, 464 (3d Cir. 1989).
A similar analysis may be made regarding any claim under the New
Jersey Civil Rights Act, as the two generally are interpreted in parallel. See
Ingram v. Twp. Of Deptford, 911 F. Supp. 2d 289, 298 (D.N.J. 2012);
Trafton v. City of Woodbury, 799 F. Supp. 2d 417, 443 (D.N.J. 2011).
Municipal Liability
A municipality is not liable under 42 U.S.C. § 1983 on a respondeat
superior theory. Monell v. Dept. Soc. Servs. of New York, 436 U.S. 658, 691
(1978). However, a government entity may be liable for its agent’s actions
upon a demonstration that a policy or custom of the municipality caused, or
was a “moving force” behind, the alleged violation of Plaintiff’s rights.
Kentucky v. Graham, 473 U.S. 159, 166 (1985) (quoting Polk County v.
Dodson, 454 U.S. 312, 326 (1981)); Beck v. City of Pittsburgh, 89 F.3d 966,
971 (3d Cir. 1996). Thus, in order to prevail against the government entity,
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“[a] plaintiff must identify the challenged policy, attribute it to the city
itself, and show a causal link between execution of the policy and the injury
suffered.” Losch v. Parkesburg, 736 F.2d 903, 910 (3d Cir. 1984).
A plaintiff cannot seek to hold a municipality liable for damages
where the officer has inflicted no constitutional harm. Acumed LLC v.
Advanced Surgical Servs., Inc., 561 F.3d 199, 217 n.12 (3d Cir. 2009) (citing
City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986)). Therefore, before
addressing deliberate indifference and causation, a court must first address
whether there was a constitutional violation at all. See Grazier, 328 F.3d at
124 (“municipal liability requires constitutional harm”); cf., Thomas, 749
F.3d at 223 (“The parties do not challenge the existence of . . . a
constitutional violation on appeal.”).
Moreover, the United States Supreme Court has held that “neither a
State nor its officials acting under their official capacities are ‘persons’
under § 1983.” Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989).
As such, an employee of the state named as a defendant in a civil rights
action may be held liable only if that person has personal involvement in
the alleged wrongs and is sued in their personal capacity. See Hafer v. Melo,
502 U.S. 21, 31 (1991) (“state officials, sued in their individual capacities,
are ‘persons’ within the meaning of § 1983”).
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Qualified Immunity
The doctrine of qualified immunity provides that “government
officials performing discretionary functions . . . are shielded from liability
for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person
should have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
Thus, government officials are immune from suit in their individual
capacities unless, “taken in the light most favorable to the party asserting
the injury, . . . the facts alleged show the officer’s conduct violated a
constitutional right” and “the right was clearly established” at the time of
the objectionable conduct. Saucier v. Katz, 533 U.S. 194, 201 (2001).
Courts may exercise 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).
This doctrine “balances two important interests—the need to hold
public officials accountable when they exercise power irresponsibly and the
need to shield officials from harassment, distraction, and liability when
they perform their duties reasonably” and it “applies regardless of whether
the government official’s error is a mistake of law, a mistake of fact, or a
15

mistake based on mixed questions of law and fact. Id. (internal quotation
omitted). Properly applied, qualified immunity “protects ‘all but the plainly
incompetent or those who knowingly violate the law.’” Ashcroft v. al-Kidd,
131 S. Ct. 2074, 2085 (2011) (quoting Malley v. Briggs, 475 U.S. 335, 341
(1986)).
For a right to be clearly established, “[t]he contours of the right must
be sufficiently clear that a reasonable official would understand that what
he is doing violates that right.” Saucier v. Katz, 533 U.S. 194, 202 (2001)
(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). That is, “[t]he
relevant, dispositive inquiry in determining whether a right is clearly
established is whether it would be clear to a reasonable officer that his
conduct was unlawful in the situation he confronted.” Couden v. Duffy, 446
F.3d 483, 492 (2006). “If the officer’s mistake as to what the law requires is
reasonable,” the officer is entitled to qualified immunity. Couden, 446 F.3d
at 492 (internal citations omitted). Further, “[i]f officers of reasonable
competence could disagree on th[e] issue, immunity should be recognized.”
Malley v. Briggs, 475 U.S. 335, 341 (1986). See also Brosseau v. Haugen,
543 U.S. 194, 198 (2004) (The general touchstone is whether the conduct of
the official was reasonable at the time it occurred.); Kulwicki, 969 F.2d at
1463 (“Objective reasonableness is measured by the amount of knowledge
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available to the officer at the time of the alleged violation.”). Finally,
because qualified immunity is an affirmative defense, the burden of proving
its applicability rests with the defendant. See Beers-Capital v. Whetzel, 256
F.3d 120, 142, n.15 (3d Cir. 2001).
Analysis
A thorough review of the Amended Complaint, as outlined above, fails
to reveal any facts sufficient to state a plausible claim against Little Egg
Harbor Township. The Amended Complaint does not identify conduct of a
municipal decisionmaker or specify a custom or policy of Little Egg Harbor
Township that could form the basis for municipal liability. Rather, the
Amended Complaint states:
The Government Defendants developed and maintained policies,
procedures, customs and/or practices exhibiting deliberate
indifference to the constitutional rights of citizens, which were
moving forces behind and proximately caused the violations of
Costino’s constitutional rights as aforesaid.
The Government Defendants have created and tolerated an
atmosphere of lawlessness, and have developed and maintained longstanding, department-wide customs, law enforcement related
policies, procedures, customs, practices, and/or failed to properly
train and/or supervise their employees in a manner amounting to
deliberate indifference to the constitutional rights of Costino and of
the public.
The deliberately indifferent training and supervision provided by the
Government Defendants resulted from a conscious or deliberate
choice to follow a course of action from among various alternatives
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available to them and were moving forces in the constitutional
injuries suffered by Costino.
(Am. Compl., ¶ 66-68.) These conclusory allegations are unsupported by
any facts alleged and therefore are insufficient to state a plausible Monell
claim to survive the instant motion. Moreover, Plaintiff has not supplied
the Court with any argument that would tend to allow the claim to survive.
Accordingly, summary judgment will be granted in favor of Little Egg
Harbor Township.
The Court is left with Counts I and III for malicious prosecution
against Defendants Anderson and Hallett. Plaintiff has not opposed
Hallett’s argument that malicious prosecution claims against a public
employee are not subject to the NJCRA but instead are governed by the
New Jersey Tort Claims Act (“NJTCA”). See Thigpen v. City of East Orange,
974 A.2d 1126, 1133 (N.J. Super. Ct. App. Div. 2009). This Court previously
dismissed the malicious prosecution claims brought under the NJTCA
because Plaintiff failed to comply with the Act’s notice requirements.
Summary judgment will be granted as to Count III.
To establish malicious prosecution under § 1983 a plaintiff must
establish that: (1) the defendant initiated a criminal proceeding; (2) the
plaintiff suffered a deprivation of liberty consistent with the concept of
seizure as a consequence of a legal proceeding; (3) the criminal prosecution
18

resulted in plaintiff's favor; (4) the proceeding was initiated without
probable cause; and (5) the defendant acted maliciously or for a purpose
other than bringing the plaintiff to justice. Halsey v. Pfeiffer, 750 F.3d 273,
296-97 (3d Cir. 2014); DiBella v. Borough of Beachwood, 407 F.3d 599, 601
(3d Cir. 2005); Santiago v. City of Vineland, 107 F. Supp. 2d 512, 566
(D.N.J. 2000).
Probable cause is defined in terms of facts and circumstances
sufficient to warrant a prudent to believe that the suspect had committed or
was committing an offense. Sharrar v. Felsing, 128 F.3d 810, 817-18 (3d Cir.
1987). A grand jury indictment is prima facie evidence of probable cause.
Helmy v. Jersey City, 836 A.2d 802, 807 (N.J. 2003); Rose v. Bartle, 871
F.2d 331, 349 (3d Cir. 1989). However, probable cause may be subverted
where an officer “knowingly and deliberately, or with a reckless disregard
for the truth, made false statements or omissions that create a falsehood”
and “[s]uch statements or omissions are material, or necessary, to the
finding of probable cause.” Wilson v. Russo, 212 F.3d 781, 786-87 (3d Cir.
2000). In seeking a charge or arrest warrant, officers may not rely on facts
of which they had a “high degree of awareness of [their] probable falsity”—
meaning that, “when viewing all the evidence, [they] must have entertained
serious doubts as to the truth of his statements or had obvious reasons to
19

doubt the accuracy of the information ... reported.” Id. See also Halsey, 750
F.3d at 289 (“When falsified evidence is used as a basis to initiate the
prosecution of a defendant, or is used to convict him, the defendant has
been injured regardless of whether the totality of the evidence, excluding
the fabricated evidence, would have given the state actor a probable cause
defense in a malicious prosecution action that a defendant later brought
against him.”).
Plaintiff argues that Anderson lacked probable cause to believe he
committed a crime because Anderson presented Plaintiff with “indicia of
pain” to justify the Percocet prescription. After an examination, and
considering Anderson’s description of “the rigors of her occupation as a
stripper” (Pl. Br., p. 36), Plaintiff diagnosed Anderson with muscular strain
and sprain. Plaintiff also relies on the facts that Anderson signed his pain
management agreement and had seen a chiropractor on one occasion near
the time of her undercover visit to his office.
These arguments fail to defeat the presumption of probable cause that
stem from the grand jury indictment. In addition, Plaintiff has not shown
that Anderson or Hallett acted maliciously or for a purpose other than
bringing him to justice or that either Defendant was responsible for

20

initiating the criminal proceeding against him. Summary judgment will be
granted.
Conclusion
For these reasons, the motions for summary judgment pursuant to
Fed. R. Civ. P. 56 filed by remaining Defendants Little Egg Harbor
Township and its Police Officer Tonya Anderson [Doc. 63] and Cape May
County Prosecutor’s Office Detective George Hallett [Doc. 64] will be
granted. An Order will accompany this Opinion.

Dated: September 26, 2018

/s/ Joseph H. Rodriguez
JOSEPH H. RODRIGUEZ
U.S.D.J.

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