BROOKMAN et al v. TOWNSHIP OF HILLSIDE et al

Filing 117

OPINION. Signed by Judge William J. Martini on 7/23/19. (gh, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

HOWARD BROOKMAN, JEFFREY
BROOKMAN, and BARBARA
BROOKMAN,

Docket No.: 09-cv-02 17$

Plaintiff,

OPINION

V.

TOWNSHIP OF HILLSIDE, et aL,
Defendants.

WILLIAM J. MARTINI, U.S.D.J.:

Plaintiffs Howard, Jeffrey, and Barbara Brookman bring this fourteen-count suit against
various state and local government officials and entities for conduct related to their May 2007
arrests. The matter comes before the Court on the Defendants’ motions for summary judgment.
ECF Nos. 9 1-93. For the reasons set forth below, the motions are GRANTED.
I.

BACKGROUND

On May 9, 2007, Edgewood, New Jersey police officers arrested Plaintiffs Howard,
Jeffrey, and Barbara Brookrnan (“Plaintiffs”) after they discovered an elderly woman named
Florence Siegel at Barbara Brookman’s residence in need of medical care. Plaintiffs Barbara
and Jeffrey (Barbara’s son) were arrested for elder neglect. Jeffrey was released without being
charged. Barbara was charged with and convicted of neglect. Her direct appeal of that
conviction was dismissed. Plaintiff Howard Brookrnan was arrested for obstruction of justice.
Howard’s prosecution terminated when he completed New Jersey’s Pre-Trial Intervention
program.
Before their criminal cases concluded, Plaintiffs brought suit against various police
officers, prosecutors, and government entities for violations of Plaintiffs’ state and federal rights
during their arrests, interrogations, and prosecutions. See Cornpl., ECF No. 1. After motion
practice and delayed discovery, two groups of defendants remain: (1) the Union County
Prosecutors Office (“UCPO”) and Assistant Prosecutors David P. Shneider, Albert Cernadas,
Jr., and Joshua F. McMahon (with UCPO, the “Prosecutor Defendants”) and (2) the Township
of Hillside (“Township”); the Hillside Police Department (“HPD”); Police Chief Robert
Quinlan; Police Officers Matthew Ross, Matthew Cove, Tripoli (no first name provided), Javier
De La Torre, A. Lomonte, and R. Floyd, and Detectives James Holmes and Gen Deo (“Officer
Defendants,” with the Township and HPD, “Hillside Defendants,” and together with the
Prosecutor Defendants, “Defendants”). The following claims remain:
1

Count
Count 1

Count 4
Count 5
Count 6
Count 7

Claim
Libel Per Se and Slander
42 U.S.C. § 1983, 1985: false Arrest, false
Imprisonment, and Malicious Prosecution
42 U.s .C. § 1 983: Concealment of Evidence
42 U.S.C. § 1983 and N.J.S.A. § 2C: 28-6:
Fabrication of Evidence
42 U.S.C. § 1983, 1985: Conspiracy and
.

.

.

.

.

Defendant(s)
Quinlan
All Defendants other than Quinlan
and Deo
Schneider, Cernadas, Cove, Holmes

Schneider, Cernadas, Cove, Holmes
Schneider, Cernadas, Cove, Holmes

Obstruction of Justice

Count 9
Count 10
Count 11

42 U.S.C. § 1983, 1985; N.J.S.A. § 10:61, 5-1; N.J. Const. Art. 1 ¶ 1, 5, 7: Religious
and Ethnic Discrimination
Spoliation of Evidence
Invasion of Privacy False Light
Conversion of Property

Count 12

Assault and Battery

Count 13
Count 14

Intentional Infliction of Emotional Distress
Negligent Infliction of Emotional Distress

Count 8

II.

—

Ross, Cove, Tripoli, De La Torra
Quinlin, Gen Deo, Township
All Defendants
“[T]he [O]fficers”
“[P]olice [D]efendants,” including
Tnpoh and Ross
All Defendants
All Defendants

DISCUSSION

In three separate briefs, Defendants move for summary judgment on all of Plaintiffs’
remaining claims. See ECF Nos. 91-93. Plaintiffs opposed, P1. Opp., ECF No. 104, and
Defendants replied, Reply Brs., ECF Nos. 105, 107-108. As the Prosecutor Defendants’ and
Hillside Defendants’ arguments are largely distinct, their motions will be addressed separately.
A.

Summary Jud%ment Standard

Summary judgment is appropriate if “there is no genuine issue as to any material fact
and.. the moving party is entitled to judgment as a matter of law.” FRCP 56. A fact is material
if its determination might affect the outcome of the suit under the applicable substantive law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248—49 (1986). A dispute is genuine if “a
reasonable jury could return a verdict for the nonmoving party.” Id. To make this determination,
the Court views the facts in the light most favorable to the nonmovant and all reasonable
inferences must be drawn in the nomnovant’s favor. Scott v. Harris, 550 U.S. 372, 378 (2007).
.

The moving party bears the burden of demonstrating the absence of a genuine dispute of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant meets this burden
by pointing to an absence of evidence supporting an essential element as to which the nonmoving party will bear the burden of proof at trial. Id. at 325. If the moving party carries this
initial burden, “the nonmoving party must come forward with specific facts showing that there
is a genuine issue for trial.” United States v. Donovan, 661 F.3d 174, 185 (3d Cir. 2011) (citation
omitted). “The non-moving party cannot rest on mere pleadings or allegations; rather it must
point to actual evidence in the record on which a jury could decide an issue of fact its way.” El
v. SEP TA , 479 F.3d 232, 238 (3d Cir. 2007) (citation omitted).
2

“A party moving for summary judgment on an issue for which it bears the ultimate burden
of proof faces a more difficult road.
In such a case, if there is a chance that a reasonable
factfinder would not accept a moving party’s necessary propositions of fact, summary judgment
is inappropriate.” Donovan, 661 F.3d at 185 (citation omitted).
..

.

B.

Claims Against the Prosecutor Defendants
Plaintiffs bring claims against the Prosecutor Defendants pursuant to 42 U.S.C. § 1983
& 1985 and various state laws. As Plaintiffs cannot overcome sovereign immunity, prosecutorial
immunity, or the New Jersey Tort claims Act’s requirements to bring suit, summary judgment
is GRANTED for the Prosecutor Defendants.

1.
Sovereign Immunity Defense to 42 US. C §S 1983 & 1985 Claims
The Prosecutor Defendants argue the Eleventh Amendment immunizes them from
liability under 42 U.S.C. § 1983 & 1985 (counts four-seven). “Under the Eleventh
Amendment, an unconsenting State is immune from suits brought in federal courts by her own
citizens. This immunity protects both states and state agencies as long as the state is the real
party in interest.” Woodyard v. Cly. of Essex, 514 F. App’x 177, 182 (3d Cir. 2013) (quoting
Edetman v. Jordan, 415 U.S. 651, 663 (1974)). The protection also applies to suits against state
officials in their official capacities. Lewis v. Clarke, 137 S. Ct. 1285, 1291 (2017). “[W]hen
New Jersey county prosecutors engage in classic law enforcement and investigative functions,
they act as officers of the State.” Woodyard, 514 F. App’x at 182 (quoting Coleman v. Kaye, 87
f.3d 1491, 1505 (3d Cir. 1996)). Therefore, so long as the allegations relate to the Prosecutors’
“classic law enforcement functions,” they are immune from official-capacity liability. See id.
Here, Plaintiffs allege four general categories of misconduct: (1) improper conduct in
Grand Jury proceedings, including a failure to present complete, exculpatory, or balanced
information and impenTlissible, dishonest testimony by the prosecutors; (2) failure to investigate
before bringing the matter to the Grand Jury; (3) improper charging of Plaintiffs Howard and
Barbara Brookman without probable cause; and (4) Schneider’s other misconduct, including
failure to recuse himself, solicitation of a false police report, and presentation of that report to
the Grand Jury, “thereby suboming perjury.” Compl. ¶ 9-18, 28, 34, 41-42, 48. This alleged
misconduct all occurred in connection with Plaintiffs’ own prosecutions. Therefore, the
Prosecutor Defendants were engaged in “classic law enforcement functions,” and were acting as
officers of the state. Woodyard, 514 F. App’x at 182; see also Beightler v. Office ofEssex Cty.
Prosecutor, 342 F. App’x 829, 832 (3d Cir. 2009) (prosecutor’s office “was undeniably engaged
in a classic law enforcement function when it charged” defendant). As state officers, the
Prosecutor Defendants are entitled to sovereign immunity. Accordingly, the Eleventh
Amendment immunizes UCPO and the individual Prosecutor Defendants from suit in their
official capacities. Summary judgment is GRANTED IN PART on that ground. See Lewis,
137 5. Ct. at 1291. However, Plaintiffs also bring unofficial-capacity claims against the
individual Prosecutor Defendants. See Opp. at 5. Sovereign immunity is inapplicable to such
claims. See Lewis, 137 S. Ct. at 1291. Thus, the Court must analyze whether another defense
justifies summary judgment.
2.

Prosectitoriat Immunity Defense to 42 US. C.
1983 & 1985 Claims
The Prosecutor Defendants assert they are entitled to prosecutorial inmiunity.
3

[S]tate prosecutors are absolutely immune from liability under § 1983 for actions
performed in a judicial or quasi-judicial role. This immunity extends to acts that
are intimately associated with the judicial phase of the criminal process, but does
not encompass a prosecutor’s administrative duties and those investigatory
functions that do not relate to an advocate’s preparation for the initiation of a
prosecution or for judicial proceedings. Ultimately, whether a prosecutor is
entitled to absolute immunity depends on whether she establishes that she was
functioning as the state’s “advocate” while engaging in the alleged conduct that
gives rise to the constitutional violation.
Munchinski v. Solomon, 618 F. App’x 150, 153 (3d Cir. 2015) (cleaned up). Thus, to determine
whether prosecutors are entitled to absolute immunity, courts examine the acts of alleged
misconduct to “discern whether the Prosecutors were acting in a judicial or quasi-judicial role,
or were instead performing administrative or investigatory functions.” Id. (citation omitted).

Here, the acts of alleged misconduct by the Prosecutor Defendants were committed while
the Prosecutor Defendants were acting as the State’s advocate, not as an administrator or
investigator. See supra Part II.B. 1. As to the alleged failure to disclose exculpatory evidence,
“[ut is well settled that prosecutors are entitled to absolute immunity from claims based on their
failure to disclose exculpatory evidence, so long as they did so while functioning in their
prosecutorial capacity.” Yarns e. Cty. of Delaware, 465 F.3d 129, 137 (3d Cir. 2006).
“Prosecutorial capacity” includes conduct in grand jury proceedings. See Kuiwicki v. Dawson,
969 f.2d 1454, 1465 (3d Cir. 1992) (listing instances of absolute protection); Rose v. Bartte, 871
F.2d 331, 344 n.7 (3d Cir. 1989). As to the alleged improper charging decisions, prosecutors are
immune from suits based on the initiation of criminal proceedings or failures to investigate
before charging. See Hughes v. Long, 242 F.3d 121, 125 (3d Cir. 2001); Jeniytone v. Musto, 167
F. App’x 295, 300 (3d Cir. 2006). Even Schneider’s alleged use of false testimony in the Grand
Jury cannot give rise to individual liability. See Yarns, 465 F.3d at 139.
This leaves Defendant Schneider’s failure to recuse himself and the alleged solicitation
of the false police report. As to recusal, Plaintiffs complain that “Schneider’s decision to involve
himself in the prosecution of this case therefore constituted a conflict of interest in violation of
the New Jersey Code of Ethics.” Compl. ¶ 12 (emphasis adjusted). Given the allegation, any
argument that the claim does not relate to Schneider’s “prosecutorial capacity” is unpersuasive.
As to the alleged solicitation of a false police report, the Third Circuit analyzed similar
allegations of misconduct in Rose v. Bantle, 871 F.2d 331 (3d Cir. 1989). In that case, plaintiffs
alleged prosecutors “attempted to get [plaintiff] to perjure himself in the grand jury proceedings”
and “subjected other grand jury witnesses to similar efforts to solicit perjury in investigatory
interviews and before the grand jury, and some of these witnesses actually did perjure
themselves.” Id. at 344. Despite the “investigatory” language, the court provided immunity,
concluding that the “pleadings indicate that the alleged solicitations of perjury occurred in
preparation for the grand jury proceedings, not in an investigatory capacity.” Id. at 345. Here,
like in Rose, Plaintiffs allege “Schneider, at the ‘eleventh hour,’ directed defendant Officer Cove
to come up with a so-called ‘supplementary investigation report’ on September 17, 2007 more
than 4 months after the arrest in May 2007 and just one week before Schneider was to present
this case to a grand jury.” Compl. ¶J 15-17 (emphasis in original). Given the similarity to the
4

allegations in Rose (i.e., solicitation of false evidence to present to the Grand Jury), like in Rose,
Schneider is entitled to prosecutorial immunity. See 871 F.2d at 345.

§

For these reasons, sunmiary judgment is GRANTED on Plaintiffs 42 U.S.C.
1985 claims against the Prosecutor Defendants.
3.

1983 &

Tort Claims Act Deftnse to State Law Claims

In Counts Ten, Thirteen, and Fourteen, Plaintiffs assert liability against the Prosecutor
Defendants under various New Jersey tort theories. The Prosecutor Defendants argue Plaintiffs’
state law claims are barred because they failed to file a “notice of claim.” UCPO Mot. at 15,
ECF No. 91-4; McMahon Mot. at 17, ECF No. 92-1. In support, they submit a sworn declaration
evidencing that Plaintiff never filed a notice with the UCPO. See Varady Cert., Ex. F, Sullivan
Cert. ¶ 8-9, ECF No. 9 1-5. Plaintiffs respond, without citation to any record evidence, that they
“andlor attorneys acting on their behalf submitted a notice of tort claim to the prosecutor’s
office.” Opp. at 9; see also P1. St. of Facts at 12, ¶ 9 (stating the same without citation).
Pursuant to the New Jersey Tort Claims Act (“TCA”), to bring a suit against public
entities or employees under state law, plaintiffs must file a timely “notice of claim.” See N.J.S.A.
§ 59:8-8-9; Velez v. City ofJersey City, 850 A.2d 1238, 1243 (N.J. 2004). If plaintiffs fail to
do so, they are generally “forever barred from recover[y].” N.J.S.A. § 59:8-8.
Though the parties’ briefs and supplemental statements of fact disagree on whether a
notice of claim was filed, Plaintiffs do not point to any actual record evidence. The only evidence
before the Court establishes that Plaintiffs never filed the required notice of claim. See Sullivan
Cert. ¶J 8-9. Thus, there is no genuine issue of material fact on Plaintiffs state-law claims and
summary judgment is GRANTED as to those counts. See El, 479 F.3d at 238. As summary
judgment is granted on Plaintiffs 42 U.S.C. §sS 1983 & 1985 claims as well, the Prosecutor
Defendants’ motions for summary judgment are GRANTED in full.
C.

Claims Against the Hillside Defendants

Plaintiffs also assert various constitutional and state-law claims against the Hillside
Defendants. Each live claim is addressed below.
1.

Libel per se and Stander (Count One)
In Count One, Plaintiffs allege liability because “Quinlan issued a written press release
and made verbal contact with members of the media” (“Press Release”) in which he “made false
claims regarding Howard tBrookrnan].” Cornpl. at 14. Specifically, Plaintiffs complain that
Quinlan falsely stated “Howard Brookman was arrested by Hillside Police May 9 and charged
with neglecting a 92-year-old’ woman” when Howard was never charged with neglect. Id.
Plaintiffs also allege Quinlan falsely stated that emergency medical technicians (“EMTs”)
described the house as “squalid.” Id. Defendants argue the press release was accurate.
“In any defamation action, the plaintiff bears the burden of establishing
that the
defendant (1) made a defamatory statement of fact (2) concerning the plaintiff (3) which was
false, and (4) which was communicated to a person or persons other than the plaintiff.” Petersen
v. Meggitt, 969 A.2d 500, 507 (N.J. App. Div. 2009) (citation omitted). As Defendants argue
the Press Release was accurate (and Plaintiffs will bear the burden at trial), Plaintiffs “must come
• forward with specific facts showing that there is a genuine issue.” Donovan, 661 F.3d at 185.
.

5

.

Plaintiffs “cannot rest on mere pleadings or allegations,” they “must point to actual evidence in
the record on which a jury could decide an issue of fact its way.” El, 479 F.3d at 238.
Here, Plaintiffs fail to point to any evidence of the Press Release’s falsity. The written
Press Release actually states that the Brookinans were arrested “in connection with the neglect
of a 92-year-old,” not that Howard was charged with neglect, as written in the Complaint.
Compare Hillside Sof Ex. G, ECF No. 93-2 (emphasis added), wit/i Compi. at 14. Howard
Brookrnan was literally arrested “in connection with” a neglect case (even though he was not
charged with neglect), thus the statement is true and non-defamatory. See Petersen, 969 A.2d at
507. Plaintiffs have produced no evidence of any oral statements to the contrary either.
As to the “squalid” statement, Plaintiffs argue it “is not supported by the evidence,” and
thus summary judgment should be denied. P1. Mot. at 5. However, it is not Defendants’ job to
support their previous statements with evidence. It is Plaintiffs’ burden to evidence a statement’s
falsity. See Petersen, 969 A.2d at 507. Because Plaintiffs fail to do so, summary judgment is
GRANTED on Count One.
2.

Invasion ofPrivacy

—

false Light (Cottnt Ten)

In Count Ten, Plaintiffs assert liability for Invasion of Privacy/False light. Other than
incorporating Plaintiffs’ entire Complaint, the only allegation is that “[i]n committing the abovedescribed conduct.
defendants have invaded the privacy of plaintiff Howard by untruthfully
portraying him in a false light.” Cornpl. ¶ 64. As Plaintiffs’ brief does not even mention this
claim, the Court will assume the reference to Howard means the “above-described conduct” is
the distribution of the allegedly false Press Release.
.

.

,

[A] fundamental requirement of the false light tort is that the disputed publicity be
in fact false, or else at least have the capacity to give rise to a false public
impression as to the plaintiff. In other words, a false-light claim requires that the
offending party make a major misrepresentation of plaintiffs character, history,
activities, or beliefs.
G.D. v. Kenny, 15 A.3d 300, 319 (N.J. 2011). Plaintiffs bear the burden on each element. See
Williams v. Associated Press, No. A-2840-OOTI, 2001 WL 1346730, at *9 (N.J. Super. Ct. App.
Div. July 13, 2001).
Here, Plaintiffs fail to produce any evidence of a “major misrepresentation” despite
bearing the burden of proof. See id.; sttpra Part II.C. 1. Accurately stating that Howard was
arrested “in connection” with neglect is insufficient. As Plaintiffs failed to meet their burden,
summary judgment is GRANTED on Count Ten.
3.

42 US. C.
a.

1983 & 1985 Claims

False Arrest, False Imprisonment, and Malicious Prosecution
(Count Four)

In Count Four, Plaintiffs assert liability against all Defendants except Quinlan and Deo
for false arrest, false imprisomilent, and malicious prosecution. See Compl. ¶J 22-3 0. The Court
already dismissed Plaintiff Barbara’s Count-Four claims. See Op. & Ord. (Oct. 24, 2017), ECF
No. 46-47. As to Howard and Jeffrey, Defendants argue they had probable cause to arrest and
6

detain them, and thus are immune from liability. As to Howard’s claims, Defendants also argue
Heck v. Humphiy precludes liability. See Heck v. Humphrey, 512 U.S. 477 (1994).
1.

Heck v. Humphrey bars Howard’s false arrest, false
imprisonment, and malicious prosecution claims.

In Heck, the Supreme Court held that:
[I]n order to recover damages for allegedly unconstitutional conviction or
imprisomTient, or for other harm caused by actions whose unlawfulness would
render a conviction or sentence invalid, a § 1983 plaintiff must prove that the
conviction or sentence has been reversed on direct appeal, expunged by executive
order, declared invalid by a state tribunal authorized to make such determination,
or called into question by a federal court’s issuance of a writ of habeas corpus.
But if the district court detenines that the plaintiffs action, even if successful,
will not demonstrate the invalidity of any outstanding criminal judgment against
the plaintiff, the action should be allowed to proceed.
Heck, 512 U.S. at 486—87.
Here, Howard Brookman’s malicious prosecution. false arrest, and false imprisonment
claims are barred by Heck. As to the alleged malicious prosecution, a “cause of action.. does
not accrue until the criminal proceedings have terminated in the plaintiffs favor.” Id. at 489.
Thus, to bring a successful claim, Howard would have to prove the criminal proceedings against
him terminated favorably. Howard’s prosecution terminated when he completed New Jersey’s
Pre-Trial Intervention program (“PTI”). In Fernandez v. City of Elizabeth, the Third Circuit
determined that “dismissal of criminal charges
under the PTI program” did not constitute a
“favorable determination.” Fernandez v. City of Elizabeth, 468 F. App’x 150, 154 (3d Cir.
2012). Thus, entry into PTI bars Howard’s malicious prosecution claim under Heck.
.

.

.

.

Heck also bars Howard’s false arrest and imprisonment claims. False arrest and
imprisonment liability require an arrest without probable cause. Groman v. Twp. oflianalapan,
47 F.3d 628, 634, 636 (3d Cir. 1995). Here, Howard was arrested and detained for obstruction
of justice in connection with his interference with Barbara’s arrest. As the parties agree the
conduct for which Howard was charged occurred in the Officer’s presence, the only way the
Officers lacked probable cause is if Howard was innocent of obstruction. See Hillside SoF Exs.
at 42, ECF No. 93-2 (Howard “began physically interfering with our efforts to gain control over
Ms. Brookman.”); Pis. SoF Ex. C, Yellon Cert., ECF No. 104 (“At all times Howard stood in
the beginning of the circular driveway. and never attempted to approach the front door [or]
his mother.”). Thus, if successful, Howard’s false arrest and imprisonment claims would
“demonstrate the invalidity” of his sentence (i.e., entry into PIT). See Heck, 512 U.S. at 487.
Accordingly, Howard’s claims are barred and summary judgment is GRANTED.
.

ii.

Defendants had probable cause to arrest and detain
Jeffrey for neglect, precluding liability.

Plaintiff Jeffrey Brookrnan’s Count Four claims for false arrest and detention will fail if
the Officers had probable cause. See Groman, 47 F.3d at 634, 646 (requiring plaintiff to show
7

police lacked probable cause). “While the probable-cause standard is incapable of precise
definition or quantification, all interpretations of probable cause require a belief of guilt that is
reasonable, as opposed to certain.” Wright v. City of Philadelphia, 409 F.3d 595, 60 1—02 (3d
Cir. 2005) (cleaned up). Probable cause exists if “the facts and circumstances within the officers’
knowledge and of which they had reasonably trustworthy infonTlation were sufficient to warrant
a prudent man in believing that the suspect had committed or was committing an offense.” Id.
at 602 (cleaned up). “[T]he evidentiary standard for probable cause is significantly lower than
the standard which is required for conviction.” Id. Further, it is irrelevant to the probable cause
analysis (I) weather the suspect actually committed a crime; (2) what crime is eventually
charged; and (3) whether the suspect is later acquitted. Id. “Probable cause need only exist as
to any offense that could be charged under the circumstances.” Barna v. City of Perth Amboy,
42 F.3d 809, 819 (3d Cir. 1994).
Under New Jersey law:
A person having a legal duty to care for or who has assumed continuing
responsibility for the care of a person 60 years of age or older or a disabled adult,
who abandons the elderly person or disabled adult or unreasonably neglects to do
or fails to permit to be done any act necessary for the physical or mental health of
the elderly person or disabled adult, is guilty of a crime of the third degree.
N.J. Stat. Ann. § 2C:24-8. Thus, the Officers had probable cause if they had reasonably
trustworthy infonnation from which a prudent person would conclude: (1) Ms. Siegel was
neglected and (2) Jeffrey had a legal duty of care or had assumed continuing responsibility for
Ms. Siegel’s care.
Here, the only evidence before the Court demonstrates the Officers had probable cause to
arrest and detain Jeffrey for neglect. In a police report, Officer De La Torre details how he was
called to the Brooknians’ residence on a case involving an elderly woman of unknown condition.
See Hillside SoF Exs. at 35. He lists Jeffrey and Barbara as the grandson and daughter of the
woman found, Florence Siegel. According to the report, officers entered a bedroom to find Ms.
Siegal in the fetal position, wrapped in a blanket, conscious but unresponsive. Id. at 36. Ms.
Siegel was dressed in a filthy sweater and the room smelled of urine. Id. EMTs found large
bedsores on Ms. Siegel’s buttocks and a large rash. Id.
Given Ms. Siegel’s condition upon the Officer’s arrival, they justifiably believed she had
been “unreasonably neglect[ed].” See N.J. Stat. Ann. § 2C:24-8. Therefore, they had probable
cause to arrest Jeffrey if they reasonably believed he had an obligation to care for Ms. Siegel.
See Id.; Wright, 409 F.3d at 601—02 (requiring reasonable belief of guilt for probable cause).

Plaintiffs argue that the police reports’ descriptions are inaccurate. However, Plaintiffs rely on their
briefing papers and pleadings, not evidence. See FRCP 56(c) (requiring citation to materials in the
record). Plaintiffs did submit some evidence that Ms. Siegel had been sufficiently cared for, but even
assuming that was true, the uncontested presence of bedsores was enough for the Officers to reasonably
believe she was neglected. See Wright, 409 F.3d at 602 (requiring information sufficient to warrant a
prudent man to believe an offense was being committed); Hillside Sof Ex. C (depicting injuries).
8

The uncontradicted evidence establishes the Officers reasonably believed Jeffrey had a
legal duty or had assumed responsibility for Ms. Siegel’s care. See N.J. Stat. Ann. § 2C:24-8.
First, Jeffrey was present at the residence where the Officers found Ms. Siegel in her debilitated
condition. Hillside Sof Ex. B. Given Jeffrey’s presence with Barbara (Jeffery’s mother), they
reasonable believed he was Ms. Siegel’s live-in grandson. Id. Second, Officers only made the
arrest afier “the EMTs attempted to ascertain the situation through Jeffrey” and he “became
uncooperative.” Id. Faced with (1) an elderly woman in need of medical care, and (2) an
individual they believed to be her grandson who (3) became uncooperative when asked about
her condition, the Officers reasonably believed Jeffrey had a “legal duty to care for” or had
“assumed continuing responsibility” for Ms. Siegel. See N.J. Stat. Ann. § 2C:24-8. Thus,
finding Ms. Siegel in an apparently neglected state, they had probable cause to arrest and detain
Jeffrey for a short period. As the Officers acted with probable cause, they cannot be liable for
false arrest and imprisonment, and summary judgment is GRANTED on Jeffrey’s Count Four
claims 2
b.

Concealment of Evidence (Count Five)
In Count five, Plaintiffs allege Officer Cove and Detective Holmes (with the Prosecutors)
“conspired to conceal three exculpatory police reports
from the Grand Jurors.
The Grand
Jurors were entitled to be informed of the existence of said exculpatory police reports pursuant
to New Jersey common law and the Fourteenth Amendment.” Compl. ¶J 34-3 5. Defendants
argue Plaintiffs fail to identify any evidence of wrongful concealment. Hillside Br. at 20.
Absent some obligation to provide exculpatory police reports to the Grand Jury,
Defendants cannot be liable for their failure to do so. See Gonzaga Univ. v. Doe, 536 U.S. 273,
285 (2002) (“ 1983 merely provides a mechanism for enforcing individual rights ‘secured’
elsewhere”). With respect to that purported obligation, the Supreme Court has stated:
.

.

.

.

.

.

It is axiomatic that the grand jury sits not to determine guilt or innocence, but to
assess whether there is adequate basis for bringing a criminal charge. That has
always been so; and to make the assessment it has always been thought sufficient
to hear only the prosecutor side.
United States v. Williams, 504 U.S. 36,51(1992) (emphasis added). While New Jersey law may
require the production of exculpatory evidence in certain circumstances, they are not present
here. See State v. Hogan, 676 A.2d 533, 543 (N.J. 1996) (requiring (1) direct negation of guilt
and (2) clearly exculpatory evidence). In any event, New Jersey state rules are not enforceable
via Section 1983. See Gonzaga Univ., 536 U.S. at 285 (requiring deprivation of federal rights).
Therefore, summary judgment on Count Five is GRANTED.

2

The Complaint vaguely asserts Jeffrey was maliciously prosecuted as well, but Plaintiffs appear to
abandon that theory and the Court is unaware of any evidence (or even allegations) that would support
a malicious prosecution claim for Jeffrey. See generally Compl. (noting once in passing that Jeffrey was
charged with neglect); Opp. Br. (failing to defend any malicious prosecution claim by Jeffrey); see also
Backofv. New Jersey State Police, 92 F. App’x $52, $56 (3d Cir. 2004) (requiring an absence of probable
cause to initiate a criminal proceeding for malicious prosecution liability to attach).
9

c.

Fabrication of Evidence (Count Six)

In Count Six, Howard alleges Officers Cove and Detective Holmes “conspired to produce
and describe to the grand jury a completely fabricated Fourth ‘Supplemental Investigation
Report’ which was irreconcilably inconsistent with and directly contradicted what had been
alleged in the three exculpatory police reports.” Compl. ¶ 41. Defendants allegedly “understood
that the fabricated report would be falsely misrepresented to the grand jurors,” and thus violated
Plaintiff Howard’s Fourth and Fourteenth Amendment rights. Id. ¶ 42.
Officer Cove and Detective Holmes are absolutely immune from suit with respect to a
conspiracy to present false testimony to the Grand Jury. See Reltherg v. Patttk, 566 U.S. 356,
369 (2012) (finding witness immune from backdoor attempt to sue for false testimony). The
actual fabrication of evidence can give rise to liability as a Fourteenth Amendment violation if
such evidence “is used as a basis for a criminal charge that would not have been filed without its
use.” Halsey v. Pfeffer, 750 F.3d 273, 292, 295 n.19 (3d Cir. 2014). However, like all Section
1983 claims, the Court “must consider whether a judgment in favor of the plaintiff would
necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be
dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been
invalidated.” Heck, 512 U.S. at 487.
Courts in this district have repeatedly held that a successful fabrication of evidence claim
would “imply the invalidity” of a criminal conviction or sentence, and thus is barred by Heck.
See Ebztzor-Onayerni v. Union Cty. Police Dep ‘t, 16-cv-1869, 2017 WL 1377640, at *4 (D.N.J.
Apr. 12, 2017), affd, 736 F. App’x 44 (3d Cir. 2018); Echeverria i”. Con’asce, l3-cv-1852, 2014
WL 2094140, at *2 (D.N.J. May 20, 2014). The Third Circuit has specifically endorsed this
application of Heck where plaintiffs allege defendants conspired to use false evidence to obtain
a conviction. Ebuzor-Onayemi v. Union Cty. Police Dep ‘t, 736 F. App’x 44, 46 (3d Cir. 2018).
Here, Howard alleges that Officer Cove conspired with Schneider to create the Fourth
Supplemental Investigative Report, which was the only report used to indict Howard for
obstruction. Compi. ¶J 34, 42. After being indicted, Howard agreed to enter PTI. Accordingly,
a fabrication of evidencejudgment in Howard’s favor would imply the invalidity of his sentence
(i.e., PTI). See Ebuzor-Onayemi, 736 F. at 46. Therefore, summary judgment is GRANTED as
to Howard’s Fabrication of Evidence claim (Count Six).
d.

Conspiracy and Obstruction of Justice (Count Seven)

In Count Seven, Plaintiffs allege Cove and Holmes (with the Prosecutors) “conspired...
to deprive Plaintiff Howard of his constitutional rights by charging and prosecuting an innocent
young attorney on charges of obstruction and hindering apprehension, charges which Defendants
knew were not supported by probable cause.” Cornpl. ¶ 48. This is not a cLaim for obstruction
ofjustice, but malicious prosecution. For the same reasons summary judgment is granted as to
Howard Brookman’s malicious prosecution claims, summary judgment is GRANTED on Count
Seven. See supra Part II.C.3.a.i.
e.

Religious and Ethnic Discrimination (Count Eight)

In Count Eight, Plaintiffs accuse Officers Ross, Cove, Tripoli, and De La Torra of acting
“to deprive Plaintiffs of their Civil Rights in contravention of the New Jersey Civil Rights Act,
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the New Jersey Law Against Discrimination, 42 U.S.C. § 1983 &1985 & the New Jersey State
Constitution.” Compl. ¶ 54. Plaintiffs accuse Officer Tripoli of questioning them regarding
their religion and Officer Ross of threatening to injure them, referring to Plaintiffs’ yarmulke
derogatorily, and making racial slurs. Id. ¶J 55-57.
Defendants assert [t]here is no evidence. that any Defendant engaged in this conduct
and. Jeffrey Brookman could not identify any officer who actually directed racial slurs at
him.” Hillside Br. at 21. Plaintiffs fail to reply to this argument in their brief. While their
attached Statement of Facts repeats the allegations, it fails to cite any actual evidence of specific
officers engaging in specific conduct. See Jutrowski v. Twp. of Riverdate, 904 F.3d 280, 291
(3rd Cir. 2018) (“[I]n the face of motion for summary judgment, a § 1983 plaintiff must produce
evidence supporting each individual defendant’s personal involvement in the alleged violation
to bring that defendant to trial.”); El, 479 F.3d at 238 (requiring actual evidence from
nonmovant). Accordingly, summary judgment is GRANTED on Count Eight.
.

.

.

.

4.
Section 1985 Conspiracy Claims
The above-described claims each assert liability pursuant to 42 U.S.C. § 1985 as well as
42 U.S.C. § 1983. Defendants argue they are entitled to summary judgment on the Section 1985
claims because Plaintiffs fail to produce any actual evidence of a conspiracy. Hillside Br. at 18.
Defendants are correct. Plaintiffs produce no evidence of an actual conspiracy to deprive
Plaintiffs of their rights, as required by Section 1985. See Farber v. City ofPaterson, 440 F.3d
131, 134 (3d Cir. 2006) (listing elements). Accordingly, summary judgment is GRANTED on
Plaintiffs’ Section 1985 claims.
Rentaining State Law Claims
5.
In the remaining counts (Nine and Eleven-Fourteen), Plaintiffs assert liability under
spoliation, invasion of privacy, conversion, and intentional and negligent infliction of emotional
distress theories. The Hillside Defendants argue the remaining claims should be dismissed for
lack of evidence and pursuant to the New Jersey Tort Claims Act (“NJTCA”).

a.

Immunity Pursuant to the New Jersey Tort Claims Act

Pursuant to the NJTCA, “[a] public employee is not liable if he acts in good faith in the
execution or enforcement of any law.” N.J. Stat. § 59:3-3. To qualify for good faith immunity,
a public employee must prove either “objective reasonableness” or that he acted with “subjective
good faith.” Aiston v. City ofCamden, 168 N.J. 170, 186, 773 A.2d 693 (2001) (citation omitted).
However, good faith immunity will not attach “if it is established that [defendant’s] conduct was
outside the scope of his employment or constituted a crime, actual fraud, actual malice or willful
misconduct.” N.J. Stat. § 59:3-14. As good-faith immunity’s application to this matter will vary
by claim, each is taken in turn.
b.

Spoliation of Evidence (Count Nine)

In Count Nine, Plaintiffs allege Chief Quinlan and Gen Deo (HPD’s records clerk) are
liable for spoliation of evidence because they received a timely letter to preserve certain video
recordings but failed to do so. Compl. ¶ 59-62. Defendants assert they are entitled to qualified

11

immunity and, in any event, Plaintiffs fail to establish the necessary elements of a “spoliation”
claim. Hillside Br. at 22-25.
Plaintiffs fail to respond to Defendants’ arguments. Their brief does not even mention
Count Nine. See generally Opp. Br. Accordingly, Plaintiffs have waived their spoliation-based
claim. See Player v. Motiva Enterprises, LLC, 240 F. App’x 513, 522 n.4 (3d Cir. 2007)
(requiring party opposing summary judgment to identify evidence in the record that creates a
genuine issue of material fact when movant points to lack of evidence). Summary judgment on
Count Nine is thus GRANTED.
c.

Conversion and Assault and Battery (Cotrnts Eleven and
Twelve)

In Count Eleven, Plaintiffs allege Defendants are liable for conversion because “officers
stole money, jewelry and personal property belonging to both Florence [Siegal] and Barbara.”
Compl. ¶ 66. In Count Twelve, Plaintiffs allege assault and battery liability because Officer
Tripoli derogatorily questioned Plaintiffs regarding their religion while Officer Ross threatened
to “bash their heads.” Compi. ¶ 6 8-69. Defendants argue that Plaintiffs “have failed to establish
any material facts sufficient to sustain their claims of conversion of property” or assault and
battery. Hillside Br. at 27-29.
Plaintiffs fail to respond to Defendants’ arguments or provide any evidence supporting
their claims. Thus, summary judgment is GRANTED on Counts Eleven and Twelve. See El,
479 F.3d at 238 (requiring non-moving party to come forward with evidence); Hernon v. Webb
McRae, 116-cv-1512, 2018 WL 4204440, at *2 (D.N.J. Sept. 4,2018) (collecting cases granting
summary judgment when opposition brief fails to defend a claim).
d.

Intentional and Negligent Infliction of Emotional Distress
(Counts Thirteen and Fourteen)

Counts Thirteen and Fourteen consist entirely of Plaintiffs incorporating their previous
allegations by reference before concluding “defendants have intentionally [or negligently]
inflicted severe emotional distress and anguish on Plaintiff.” Compl. ¶ 70-73. Defendants
assert immunity pursuant to the NJTCA and that Plaintiffs failed to establish “distress” to a
sufficient level of severity (i.e., a sufficient injury). Hillside Br. at 23-24.

Under New Jersey law, “spoliation” is not a separate cause of action, but “acts of spoliation by parties
may give rise to the court’s use of discovery and evidentiary sanctions and may support separate counts
in the nature of fraudulent concealment claims.” Tartaglia v. UBS Paine Webber Inc., 961 A.2d 1167,
1189 (N.J. 200$). A fraudulent concealment claim in the spoliation context requires: (I) that defendant
in the fraudulent concealment action had a legal obligation to disclose evidence in connection with an
existing or pending litigation; (2) that the evidence was material; (3) that plaintiff could not reasonably
have obtained access to the evidence from another source; (4) that defendant intentionally withheld,
altered or destroyed the evidence with purpose to disrupt the litigation; (5) that plaintiff was damaged.
Id. at 118$. Defendants argue Plaintiffs failed to produce evidence of the first and fourth elements. See
Hillside Br. at 25.
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Plaintiffs fail to respond to Defendants’ arguments or provide any evidence of actionable
injuries under an emotional distress theory.4 Accordingly, summary judgment is GRANTED
on Counts Thirteen and fourteen.

III.

CONCLUSION

For the reasons set forth above, Defendants’ motions for summary judgment, ECF
Nos. 9 1-93, are GRANTED. An appropriate order follows.

July 23, 2019

U.S.D.J.

Well past their filing deadline, Plaintiffs attempted to submit, exparte, evidence they suffer from Post
Traumatic Stress Disorder (“PTSD”) as a result of Defendants’ conduct. See Ord. (June 6, 2019), ECF
No. 115. The Court will not consider this untimely evidence. Even if the Court were inclined to do so,
the purported PTSD is not a cognizable injury for purposes of an emotional distress suit against
Government entities and employees. See Thomas v. E. Orange Rd. of Ethtc., 998 F. Supp. 2d 338, 355
(D.N.J. 2014) (holding Section 59:9-2(d) of the NJTCA provides defendants with immunity from
liability for damages other than for treatment of physical injuries in excess of $3,600.). Regardless,
Plaintiffs waived their emotional distress claims by failing to respond to Defendants’ arguments. See
Hernon, 2018 WL 4204440, at *2 (finding failure to respond constitutes abandonment or waiver of
claims).
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