TELZER v. BOROUGH OF ENGLEWOOD CLIFFS et al

Filing 83

OPINION. Signed by Judge John Michael Vazquez on 4/12/18. (DD, )

Not for Publication
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

MICHAEL TELZER,
Plaintiff
Civil Action No. 13-4306 (JMV)
V.

OPINION
BOROUGH OF ENGLEWOOD CLIFFS. et al.,
Defendants.

John Michael Vazguez, U.S.D.J.

This case arises from the events surrounding Plaintif?s arrest, indictment, and subsequent
acquittal on charges of fourth degree lewdness in violation of N.J.S.A. 2C:14-4B(l), and third
degree endangering the welfare of a child in violation of N.J.$.A. 2C:24-4B(l). Plaintiff Michael
Telzer (“Plaintiff’ or “Telzer”) brings his suit against Defendants Borough of Englewood Cliffs
(“the Borough” or “Englewood Cliffs”), the Englewood Cliffs Police Department (the “ECPD”);
Chief of Police Michael Cioffi; Police Officers William Laraia, Gerard McDermott, Daniel
Morrissey, David Hill, Ronald Waldt; as well as John and Jane Does and XYZ Corporation
(collectively, “Defendants”). Defendants bring two motions: (1) a motion for summary judgment
(D.E. 66), and (2) a motion to preclude the expert report and testimony of Plaintiffs expert
Timothy J. Hardiman (D.E. 65). The Court reviewed all submissions,1 and considered the motions
without oral argument pursuant to Fed. R. Civ. P. 78(b) and L. Civ. R. 78.1(b). For the reasons
In this Opinion, Plaintiffs first Amended Complaint (D.E. 3) will be referred to as “FAC.”
Defendants’ brief in support of their motion for summary judgment will be referred to as “Defs.
SJ Br.” (D.E. 66). Plaintiffs brief in opposition (D.E. 71) will be referred to as “P1. SJ Opp.”
Defendants’ brief filed in reply will be referred to as “Defs. $J Reply” (D.E. 74).

that follow, Defendants’ motion for summary judgment (D.E. 66) is GRANTED. Defendants’
motion (D.E. 65) to preclude Hardiman is dismissed as moot.
I.

BACKGROUND

The Incident
On the evening of July 14, 2011, Plaintiff was “fast walking” along the track at Witte Field
(“the Field”) in Englewood Cliffs. D.E. 66-4, Defendants’ Statement of Material F acts (“Defs.
SOMF”) at
at

¶

¶ 2-3;

D.E. 7 1-2, Plaintiffs Supplemental Statement of Material Facts (“P1. SOMF”)

1. Plaintiff wore cargo shorts that had two cargo straps hanging down. Defs. SOMF at

¶ 3.

At $ p.m. the Englewood Cliffs Police Department received a 9-1-1 call routed from the Bergen
County Communications Center. Defs. $OMF at ¶4. The caller, Nealy Nusbaum Erber (“Erber”)
told the 9-1-1 operator that she was in “Davis Johnson Park in Englewood Cliffs, there’s a man
walking around the circle with his self exposed,” P1. SOMF at

¶ 4,

and that “I’m here with my

kids,” Id. at ¶ 5. Erber was at the park with her six and nine-year-old children.
In response to the call, officers for the Englewood Cliffs Police Department were
dispatched. Upon arriving at the park, Officer Waldt approached Plaintiff, who was on the track.
The conversation between the two was captured on Waldt’s mobile in-car unit video (“MICV”).
Id. at ¶ 10. Waldt said to Plaintiff: “Excuse me sir. Sir. Come here. I waima talk to you. Do you
have identification on you? Just walking around here? Just walking?” P1. SOMF at ¶ 10. Plaintiff
responded that he was ‘just doing my workout.” Ex. 33 (MICV Recording) at 03:37; see P1.
SOMF at ¶ 11. The conversation continued:
Waldt: Airight, listen. We got a report of someone matching your
description exposing himself.
Plaintiff: Oh come on. Who said that?
Waldt: I’m not sure who the complaint was

2

—

Plaintiff: That’s the sickest thing I’ve ever heard.
Waldt: Okay, that’s fine, airight. Just lift your shirt up for me just
a second, okay. You see that your zipper ‘s down and your belt
undone. Come on over here. Come on over here for me, okay.
Plaintiff: This is crazy.
Waldt: Just sit on over on that bench.
Plaintiff: I’ve been walking the whole time [INAUDIBLE]. I’m
just a sloppy dresser.
Id. at

¶

12 (emphases added).

Plaintiff then asked “are you kidding me?” to which Waldt

responded that “this is not something we take lightly, sir.” MICV Recording at 04:49. Plaintiff
stated that “I don’t take it lightly either.” Id. at 04:50. Plaintiff then asked the officer “is this a
nightmare or something?” Id. at 04:53. The officer responded: “I assure you this is very real.”

Id. at 04:55.
Around the same time, Officer McDermott separately spoke with Erber at the scene. As
McDerniott began to speak, Erber stated that “I hope that I’m not crazy.” MICV Recording at
20:45-20:51. Erber then described to the Officer a “white male, tall, khaki shorts, and like a white
button down shirt.” Id. at 21:00-2 1:10. Plaintiff is a white male and Erber accurately described
what he was wearing. There is no indication that there were any other persons at the scene who
could possibly fit Erber’s description.

3

McDenTlott then joined Waldt’s conversation with Plaintiff. Waldt stated to McDermott:
“[Plaintiffs] belt was undone, his zipper was undone.” P1. SOMF at

¶

12. The conversation

between Plaintiff and the Officers continued, in part2:
Officer3: You need to fix yourself up bud, your zipper is down and
button was undone.
Plaintiff: Well yes it is cause I am a little sloppy ofa dresser.
Officer: Turn around. You certainly are.
***

Plaintiff: I was down here this morning too. [11’JAUDIBLE].
That’s the sickest thing I’ve ever heard. [iNAUDIBLE]. That’s
the sickest thing I’ve ever heard of.
***

Plaintiff: They are fine, let me talk to them. [presumably referring
to Erber and her daughters]
McDermott: No, you will not talk to them, you will talk to us.
Plaintiff: This is the craziest thing I have ever heard of.
***

McDermott: Well doing that would be the sickest thing I’ve ever
heard of, do you agree?
Plaintiff: Yes. I agree. Absolutely. Beyond a shadow of a doubt.
I didn’t do that.
***

2 The Court has reviewed the multiple overlapping MICV Recordings and, where relevant,
supplements and re-orders Plaintiffs transcript included in his SOMF. Defendants have not
contested any of Plaintiffs transcriptions.
Plaintiff asserts, and Defendants do not contest, that it is sometimes difficult to decipher which
Officer is speaking. When Plaintiff could not determine the identity of the officer, Plaintiff used
“Officer.” See P1. SOMF ¶ 14 n.2. The Court likewise uses “Officer” when the speaker is not
clear.
4

Waldt: Airight, listen. We are going to bring you in for further
investigation ok?
Plaintiff: Is this going to go in the paper that I did something?
Officer: No. Just relax.
Waldt: We need to ask you a few questions, we’re going to be
bringing you into the headquarters airight?
***

Plaintiff: Sir, I come out here and I exercise. I am not thinking
like 100%.
McDermott: Oh you’re not thinking that? When I exercise I think
100%. Alright take the other shoe off. Take the other shoe off.
Plaintiff: When I exercise I’m not thinking about anything except
getting healthy. Please don’t treat me like I’m guilty. You can’t
believe I am.
***

Plaintiff: I cannot believe this.
McDermott: I have no interest in.
appearance.

.

.

well you should change your

Plaintiff: I’m not that careful.
P1. SOMF at ¶ 14 (emphasis added); MICV Recording.
Shortly thereafter, one officer asked the other if Erber should be brought over to identify
Plaintiff. The other officer responded that Plaintiff “fits the description, and as soon as I started to
walk up he started walking back that way—that’s why I stopped him right away.”

MICV

Recording at 08:48-08:55. Plaintiff was then transported to police headquarters, where he was
photographed. Id. at 14:30-17:30; D.E. 66-5, Exhibit Ff.
While at the park, McDermott searched the area and found a paper towel (or tissue) in a
waste basket near the area where Plaintiff was stopped. P1. SOMF at ¶ 25. McDermott took photos
5

of the towel and then seized it. Id. at

¶ 26-27. On July 18, 2011, the paper towel was sent for

testing to the Division of State Police Forensic Science Bureau’s Central Region Laboratory in
Hamilton, New Jersey. Id. at ¶ 28. The laboratory later determined that the towel tested negative
for semen. Id. at

¶ 33. The parties dispute the circumstances surrounding the receipt of the lab

results. Plaintiff claims that the lab results came back on October 17, 2011. Id. In a supplemental
filing, Defendants contend that the lab results were mailed on October 26, 2011. D.E. 77 at 2.
Erber’s Written Statements to Police
Immediately after, Erber went to the police station and provided police with the following
written statement:
I Nealy Nusbaurn Erber of Booth Avenue, Englewood NJ, 20 1-541[REDACTED] was walking on the pedestrian loop at Davis Johnson
Park when I saw a tall white male in greenish/khaki cargo shorts and
a white shirt walking towards me with himself exposed. It appeared
to me that his fly was open and his penis was sticking out through
the fly opening. I do not believe it was the string of his shorts as the
color appeared to be a pinkishlnude tone. I looked away and called
911. The gentleman was walking quickly and what I believe was
his penis was moving up and down.
The statement was signed by Detective Morrissey. P1. SOMF at ¶ 48. Morrissey called Erber back
to the police station the next day to correct her statement. Erber had believed that the park was
Davis Johnson when in fact it was Witte Field. Erber re-wrote her entire report and included more
details. Id. at ¶ 51. Her second statement read as follows:
I Nealy Nusbaum Erber of Booth Avenue, Englewood NJ 07631,
201-541-[REDACTED], was walking on the pedestrian loop at
Witte Field Park on Johnson Avenue, in Englewood Cliffs, NJ (I
thought this was known as David Johnson Park) while my 2
daughters rode bikes when a tall white male in greenish/beige/khaki
cargo shorts and a white shirt walked towards me with his penis
sticking out of his fly. I do not believe that this was a part of his
shorts of strings [sic] as it appeared to be a nude/pinkish color. He
was walking at a fast pace with his penis flopping up and down. I
called 911 and while we waited he did pass us on the loop a second
6

time. My 9 year old daughter later told me that she thought she saw
his private sticking out of his shirt.
When the officers arrived, I described the man who they then spoke
to on the pedestrian loop. The man that they questioned was the
man that I saw exposed. I saw the officers speaking to him.
Id. at ¶ 52.
Police Reports
After arriving at the police station, Waldt wrote an adult arrest report. Id. at ¶ 35; D.E. 667, Ex. J (“Waldt Arrest Report”). In the report, Waldt recounted that he had received a 9-1-1 call
that Nealy Erber was with her two children at Witte Field and that she had “observed a white male
with ‘himself exposed’ walking around the pedestrian walkway.” Waldt Arrest Report at 1. Waldt
continued that once he arrived at the field, he “observed a disheveled white male party walking
the track” who he later identified as Plaintiff. Id. at 2. The report indicated that as Waldt
approached Plaintiff. Waldt noticed that Plaintiff’s fly was down and open. id. Later, the report
continued, Waldt asked Plaintiff to lift his shirt and Waldt “noticed that in addition to his fly being
down and open, his belt was completely unbuckled.” Id. Waldt’s report stated that Defendant
McDermott later found a soiled paper towel in a trashcan. Id. The report said that after Erber filled
out a statement form, Plaintiff was placed under arrest. Id. Plaintiff disputes many aspects of
Waldt’s report. See P1. SOMF at ¶J 3 6-46.
Defendant Morrissey prepared a Supplemental Arrest Report on July 15, 2011. D.E. 7 1-4,
Ex. 9 (“Morrissey Supp. Arrest Report”). In his report, Morrissey recounted that he spoke to
Erber’s nine-year-old daughter at the police station. Id. Morrissey wrote:
[The daughter] said she had seen a man with ‘something’ hanging
out of his pants. She was asked if maybe she had seen his belt
hanging from his pants or his shirt out and she shook her head no. I
then said, ‘so it wasn’t any of those things?’ She said ‘no.’
Using her hands to show me, she stated that she was a little ahead of
.

7

.

.

her mother, on her bicycle, when she saw the man coming toward
her and her mother. She then said she saw something hanging out.
When asked again what it was, this time she said she thinks it was
[Erber] also stated that the male actor had passed
his ‘privates.’
them twice. After the first time is when she called the police. The
actor then came around a second time past them. At this time she
had pulled her daughters off the track and was awaiting police to
respond.... After leaving the police department the previous night,
the victim stated her 9 year old daughter admitted to her that she had
seen the male actors [sic] privates, but she was very embarrassed to
tell this officer.
....

Id.

Chief Cioffi Public Statements
On July 15, 2011, Defendant Cioffi issued a press release addressed to “All News Media”
detailing Plaintiffs arrest. It read as follows:
Englewood Cliffs Police Department Chief Michael Cioffi
announced the arrest of Michael Telzer (DOB: 11-22-1956) of
Englewood Cliffs, New Jersey on charges of Lewdness 2C:14-4N,
a crime of the Fourth Degree and Endangering Welfare of Children
2C:24-4B(1), a crime of the Third Degree.
On July 14, 2011 at approximately 7:55 pm Englewood Cliffs
received a transfer 9-1-1 call from Bergen County dispatch center of
a “male party walking around with himself exposed.” An adult
female was on the walking path at Witte Field on Johnson Avenue
with her two daughters ages nine and six. She along with one of her
daughters observed this white male exposing himself and called 91—1.
Officers Ronald Waldt #133 and Gerard McDermott #126
responded to the call. Officer Waldt located the actor at Witte Field
and observed the actor had his pants/shorts unbuttoned, belt buckle
and zipper opened. The actor was attempting to walk away from
Officer Waldt. The victim positively identified this subject as the
actor. Officer’s [sic] Waldt and McDermott took Michael Telzer
into custody. He was placed under arrest and transported to
Englewood Cliffs Police Headquarters....
All defendants are presumed innocent until proven guilty beyond a
reasonable doubt.

8

D.E. 66-7, Ex. U (“Cioffi Press Release”).
Cioffi was also interviewed by the local media, resulting in a story published on July 1$ in
the Cliffview Pilot. The Cliffview Pilot article stated:
A woman walking with her two girls in an Englewood Cliffs park
just before dark called police from her celiphone and said a man
exposed himself to them, and officers found his pants still open
when they arrived, said Police Chief Michael Cioffi. The chiefsaid
hefotind a crttcial piece of evidence at the scene. “It was a paper
towel in a wastebasket, and it had obviously just been thrown in
there,” Cioffi told Chffriew Pilot. Cioffi directed an officer to
retrieve and bag the evidence. It was then sent to the New Jersey
State Police laboratoiy for DNA testing. The woman and her two
daughters—ages 6 and 9—were on the walking path at Witte Field
on Johnson Avenue just before $ o’clock Friday night when they
saw Michael Teizer, the chief said. The startled mom dialed 911
and immediately was connected to the Bergen County Dispatch
Center, which patched her right through to Cioffi’s department. “He
was walking away with his pants unbuttoned and belt buckle and
zipper opened, when the Officers [Ronald Waldt and Gerard
McDermott] pulled up,” the chief told Cliffview Pilot. Michael
Telzer, spent nearly four hours in custody before being able to post
a bond to cover his $50,000 bail on charges of lewdness and child
endangerment.
D.E. 71-4, Exhibit 7 (emphasis added) (“Cliffview Pilot Article”).
Criminal Charges and Trial
On July 14, 2011, the Honorable Marc C. Saperstein, J.M.C., found probable cause to
charge Plaintiff with violations of N.J.$.A. 2C:14-4(b), fourth degree lewdness, and N.J.S.A.
2C:24-4(a)(1)(i), third degree endangering the welfare of a child. P1. SOMF at

¶ 65. The

Complaint stated that “[p]robable cause for [Officer Waldt’s] belief is set forth in the police report
marked exhibit A.” Id. at

¶ 66. The referenced report was Waldt’s adult arrest report discussed

above. On October 26, 2011, Plaintiff was indicted by the Bergen County Grand Jury for both the
lewdness and endangering charges. Id. at

¶ 34; D.E. 66-7, Ex. W. Officer Waldt testified before

the grand jury. Plaintiff disputes the accuracy of Officer Waldt’s testimony before the grand jury,
9

including Waldt’s testimony that Erber was “confident” that she saw Plaintiffs penis exposed, that
Erber returned to the police station on July 15 to further clarify her initial report, and that Waldt
was unaware of the laboratory testing results at the time of his testimony. P1. SOMF ¶ 126, ¶ 127.
The Honorable James J. Guida, J.S.C., presided over a short jurytrial, and on July 13, 2012,
the jury acquitted Plaintiff on both counts. P1. SJ. Opp. at 1; Defs. SJ Br. at 4.
II.

PROCEDURAL HISTORY
Plaintiff filed his initial Complaint on July 12, 2013. D.E. 1. He then filed his First

Amended Complaint on July 16, 2013. D.E. 3. At the time, Plaintiff was proceedingpro se. Since
then, Plaintiff retained counsel but counsel never moved to amend the FAC.
The FAC set forth ten counts: (1) false anest, (2) false imprisonment, (3) witness
tampering, (4) evidence tampering, (5) withholding evidence in violation of Brady, (6) violations
of Due Process under the Fifili Amendment, (7) violations of Equal Protection under the
Fourteenth Amendment, (8) violations of Equal Protection under the Fifili Amendment, (9)
supervisory liability based on failure to train against Englewood Cliffs, and (10) supervisory
liability against Defendant Cioffi.4 Although not clear to the Court, Defendants concede that
Plaintiff alleges malicious prosecution as part of his allegations in Counts One and Two, so the
Court will consider such claims.5

The Court notes that Plaintiffs FAC is sometimes unclear as to the legal basis for its claims.
Plaintiff characterizes the FAC’s claims in his Opposition consistent with recitation above.
Defendants do not dispute this characterization of Plaintiffs claims. The Court therefore accepts
this fonuulation of the counts.
In fact, Defendants argue against Plaintiffs claim of “defamation,” while at the same time
recognizing that Plaintiff does not actually make such a claim. Defs. SJ Br. at 43-45. The FAC
does not allege defamation, and the Court will not address non-existent causes of action. In
addition, Defendants also repeatedly confuse the plausibility standard in a motion to dismiss with
the genuine issue of material fact standard in a motion of summary judgment. The Court does
10

On December 11, 2013, Defendants submitted their Answer. D.E. 6. On March 17, 2017,
Defendants filed the instant motions. D.E. 65, 66.
III. SUMMARY JUDGMENT STANDARD

A moving party is entitled to summary judgment where “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
fed. R. Civ. P. 56(a). A fact in dispute is material when it “might affect the outcome of the suit
under the governing law” and is genuine “if the evidence is such that a reasonable jury could return
a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Disputes over irrelevant or unnecessary facts will not preclude granting a motion for summary
judgment. Id. “In considering a motion for summary judgment, a district court may not make
credibility determinations or engage in any weighing of the evidence; instead, the nonmoving
party’s evidence ‘is to be believed and all justifiable inferences are to be drawn in his favor.”
Marino v. Indus. Crating Co., 358 f.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at
255). In other words, a court’s role in deciding a motion for summary judgment is not to evaluate

the evidence and decide the truth of the matter but rather “to determine whether there is a genuine
issue for trial.” Anderson, 477 U.S. at 249.
A party moving for summary judgment has the initial burden of showing the basis for its
motion and must demonstrate that there is an absence of a genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). After the moving party adequately supports its motion,
the burden shifts to the nomnoving party to “go beyond the pleadings and by [his] own affidavits,
or by the depositions, answers to interrogatories, and admissions on file, designate specific facts

not consider the motion to dismiss standard in resolving the current motion for summary
judgment.

showing that there is a genuine issue for trial.” Id. at 324 (internal quotation marks omitted). To
withstand a properly supported motion for summary judgment, the nonmoving party must identify
specific facts and affirmative evidence that contradict the moving party. Anderson, 477 U.S. at
250. “[I]f the non-movant’s evidence is merely ‘colorable’ or is ‘not significantly probative,’ the
court may grant summary judgment.” Messa v. Omaha Prop. & Cas. Ins. Co., 122 F. Supp. 2d
523, 528 (D.N.J. 2000) (quoting Anderson, 477 U.S. at 249-50).

Ultimately, there is “no genuine issue as to any material fact” if a party “fails to make a
showing sufficient to establish the existence of an element essential to that party’s case.” Celotex
Corp., 477 U.S. at 322. “If reasonable minds could differ as to the import of the evidence,”
however, summary judgment is not appropriate. See Anderson, 477 U.S. at 250-5 1.
IV. ANALYSIS
a. Counts Three, Four, Six, Seven, and Eight

Defendants move for summary judgment on Counts Three (witness tampering), Four
(evidence tampering), Six (Fifth Amendment Due Process), Seven (Fourteenth Amendment Equal
Protection), and Eight (Fifth Amendment Equal Protection) without any opposition by Plaintiff.
Even though Plaintiff fails to oppose the dismissal of the counts, the Third Circuit has cautioned
that “the movant for summary judgment has the burden of demonstrating the absence of genuine
issues of material fact

.

.

.

and even if the opposing party fails to file contravening affidavits or

other evidence, summary judgment must still be ‘appropriate’ and will be denied where the
movant’s own papers demonstrate the existence of material factual issues.” Drexel v. Union
Prescription Centers, Inc., 582 F.2d 781, 790 (3d Cir. 197$) (internal citations omitted).
In regards to Counts Three (witness tampering) and Four (evidence tampering), Defendants
submit that Plaintiff filed these counts under New Jersey Criminal Law, specifically N.J.S.A.

12

2C:28-5(a) and N.J.S.A. 2C:28-6. Defs. SJ Br. at 18-25. Plaintiff does not contest this assertion
or raise any genuine issue of material fact. Obviously this case is a civil action. If Plaintiffbelieved
that Defendants engaged in criminal conduct, Plaintiff should have filed either a citizen’s
complaint or reported the conduct to the relevant authorities. Therefore, Counts Three and Four
are dismissed. To the extent that Plaintiff relies on allegations of witness and evidence tampering
to support other claims, the Court will address the allegations in its analysis of those counts.
Counts Six (Fifth Amendment Due Process), Seven (fourteenth Amendment Equal
Protection), and Eight (Fifth Amendment Equal Protection) are likewise dismissed. Defendants
have established that there is an absence of a genuine issue ofmaterial fact and that they are entitled
to summary judgnient on those counts.6
Accordingly, Counts Three, Four, Six, Seven, and Eight are dismissed. Remaining are
Counts One (false arrest and malicious prosecution), Two (false imprisonment and malicious
prosecution), Five (withholding evidence in violation of Brady), Nine (Monelt claims against the
Borough), and Ten (supervisory liability against Defendant Cioffi). Plaintiff does not explicitly
stylize any of the counts as state law claims. However, Defendants concede that Plaintiff brings
“both Fourth Amendment civil rights claims under federal law and New Jersey state common law
claims for false arrest, false imprisonment and malicious prosecution[.j”

Def. SJ Br. at 7.

Accordingly, the Court will examine Plaintiffs false arrest, false imprisonment, and malicious
prosecution claims under both 42 U.S.C.

§ 1983 and New Jersey law.

Moreover, Count Six brings an action based solely on the Fifth Amendment. The Fifth
Amendment’s protections apply to the federal government and are applied to the states by way of
the Fourteenth Amendment. See, e.g., Ma/toy i Hogan, 378 U.S. 1, 6 (1964). Defendants here
are not federal actors. Therefore, to the extent that Count Six asserts a claim solely based on the
Fifth Amendment, it is also dismissed because the Fifth Amendment alone does not apply to
Defendants.
6

13

b. Count One and Count Two

Counts One and Two bring claims for false arrest, false imprisonment, and malicious
prosecution. As noted, the Court considers the claims pursuant to both federal and state law.
Because Plaintiffs FAC is unclear and because Defendants concede that Plaintiff brings Counts
One and Two under federal law and “state common law,” the Court will, out of an abundance of
caution, examine Plaintiffs claims under Section 1983, the New Jersey Civil Rights Act (NJCRA),
and New Jersey common law.
i. Criminal Statutes at Issue

Plaintiffs claims in Counts One and Two are directly related to Plaintiffs detention, arrest,
and prosecution under two New Jersey criminal statutes: N.J.S.A. 2C:14-4(b)(1), fourth degree
lewdness; and N.J.$.A. 2C:24-4(a)(1)(i), third degree endangering the welfare of a child. N.J.S.A.
2C:14-4(b)(1) provides as follows:
(a) A person commits a disorderly persons offense if he does any
flagrantly lewd and offensive act which he knows or reasonably
expects is likely to be observed by other nonconsenting persons who
would be affronted or alarmed.
(b) A person commits a crime of the fourth degree if:
(1) He exposes his intimate parts for the purpose of
arousing or gratifying the sexual desire of the actor
or of any other person under circumstances where the
actor knows or reasonably expects he is likely to be
observed by a child who is less than 13 years of age
where the actor is at least four years older than the
child.
As to lewdness, the New Jersey Supreme Court has indicated that
[f]ourth-degree lewdness consists of an actor intentionally
“exposing” or displaying himself or herself for sexual arousal or
gratification under circumstances in which the actor “knows or
reasonably expects” that he or she is likely to be observed by a child
less than thirteen years old. Thus, lewdness is limited to exposing
14

or displaying an actor’s intimate parts rather than touching them.
For example, a “flasher” or “streaker” may expose the genitals
without touching them.
State v. Zeidell, 154 N.J. 417, 430—31 (N.J. 1998) (emphasis added) (internal citation omitted).
Lewdness stands in contrast to second degree tender years sexual assault, N.J.S.A. 2C:14-2b,
which requires “the actor [to] ‘intentionally’ touch[] his or her intimate parts

.

.

.

for arousal or

sexual gratification ‘in view’ of an underage child whom the actor ‘knows’ to be present.” Id. at
431. The Court also described the actor’s required mental state toward the underage child: “The
non-contact lewdness offense requires the actor to expose or display himself or herself “know[ing]
or reasonably expect[ingj” that an underage child will observe the conduct. Under the Code, this
mens rea equates with the actor knowing or intending that a child view him or her.” Id. at 431.
This is, in part, because “[m]ere exposure.

.

.

can be a more ambiguous form

of

conduct. It is not

inherently or obviously gratifying to expose the genitals; rather, gratification comes only from the
subjective beliefby the actor that he or she is being viewed.” Id. at 432 (emphasis added).
N.J.S.A. 2C:24-4(a)(1)(i), in turn, provides in pertinent part as follows:
(a) (1) Any person having a legal duty for the care of a child or who
has assumed responsibility for the care of a child who engages in
sexual conduct which would impair or debauch the morals of the
child is guilty of a crime of the second degree. Any other person
who engages in conduct or who causes harm as described in this
paragraph to a child is guilty of a crime of the third degree.
(5) (1) As used in this subsection:
“Prohibited sexual act” means
(i) Nudity, if depicted for the purpose of sexual
stimulation or gratification of any person who may
view such depiction.
Comparing the two statutes, the Supreme Court of New Jersey stated:

15

The same nudity that may constitute the fourth-degree offense of
lewdness can additionally fonii the basis for the third-degree offense
of endangering the welfare of children if such nudity “would impair
or debauch the morals” of a child under the age of sixteen.
Thus,
the focus in a prosecution for endangering the welfare of children
shifis from the mental state of the actor in performing the lewd
conduct to the potential effect that such conduct may have on the
morals of the child or children who are witness to the conduct.
.

..

[A] conviction for fourth-degree lewdness should not automatically
sustain a third-degree endangering conviction. To sustain such a
conviction, there must be proof that the nudity went beyond mere
exposure and “would impair or debauch the morals” of the children
subjected to such conduct.
State v. Hackett, 166 N.J. 66, 76 (N.J. 2001). The Supreme Court noted that “both statutes were

amended by the Legislature as part of an effort to increase penalties for sexual crimes committed
against minors.” Id. at 77.
In Hackett, the Court further ruled as follows:
Proof of actual impairing or debauching of the victirns[’] morals is
not required. The legislative language prohibits any sexual conduct
that would result in the impairing or debauching of an average child
in the community. The word “would” signals the futurity of a likely
event; it does not require the event’s actual occurrence.
Id. at $0. The Hackett Court made clear that the determination of whether such conduct would

impair or debauch the morals of a child in the community “is well within the abilities of the average
jury, and allows the jury to fulfill its role as arbiter of community standards when applying the
laws of our State. Id. at $3. for example, inHackett, the Court found that ajury reasonably found
a defendant guilty of third degree endangering the welfare of a child when, among other things,
“there was testimony of repeated instances when the defendant allowed himself to be viewed
naked, through an unobstructed window, by girls who were age thirteen and under.” Id. at $1.

16

ii. Section 1983 and NJCRA Claims

Plaintiff brings Counts One and Two pursuant to Section 1983, and the Court also assumes
Plaintiff brings them under the New Jersey Civil Rights Act (“NJCRA”).7
42 U.S.C.

§ 1983, in relevant part, provides:

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[.]
Section 1983 does not provide substantive rights; rather, Section 1983 provides a vehicle
for vindicating violations of other federal rights. Graham v. Connor, 490 U.S. 386, 3 93-94 (1989).
In order to state a claim under Section 1983, a plaintiff must demonstrate that “(1) a person

The Court notes that it assumes that Plaintiff brings his claims against Defendants in their
individual capacities. To the extent that Plaintiff brings his claims against the individual
Defendants in their official capacities, these claims are dismissed as a matter of law. Baker v.
Camaritlo, 2018 WL 1203473, at *3 (D.N.J. Mar. 8, 2018) (“As with § 1983, New Jersey state
courts have held that the State, its agencies, and state officials in their official capacities are not
‘persons’ within the meaning of the NJCRA and are immune from suit.” (citing Brown v. State,
124 A.3d 243, 255-56 (N.J. Super. Ct. App. Div. 2015)).
Plaintiff also brings claims against the Englewood Cliffs Police Department, as well as
against the Borough of Englewood Cliffs. Defendants argue that the police department cannot be
sued separately from the municipality in a Section 1983 case. Plaintiff provides no contrary
argument. “In Section 1983 actions, police departments cannot be sued in conjunction with
municipalities, because the police department is merely an administrative arm of the local
municipality, and is not a separate judicial entity.” Path/la v. Twp. of Cheriy Hill, 110 F. App’x
272, 27$ (3d Cir. 2004) (emphasis added) (internal quotation omitted); Bonenberger v. Plvmottth
Thip., 132 F.3d 20, 25 (3d Cir. 1997) (“{W]e treat the municipality and its police department as a
single entity for purposes of section 1983 liability.”); Adams v. City of Camden, 461 F. Supp. 2d
263, 266 (D.N.J. 2006) (finding that “[i]n New Jersey a municipal police department is not an
entity separate from the municipality; therefore, the Camden Police Department is not a proper
defendant in this action.” (internal citation omitted)). Plaintiffs Section 1983 claims against the
Englewood Cliffs Police Departinent are dismissed as duplicative of its claims against the
Borough.
17

deprived him of a federal right; and (2) the person who deprived him of that right acted under color
of state or territorial law.” Burt v. CfG Health Sys., No. 15-2279, 2015 WL 1646849, at *2 (D.N.J.
Apr. 14, 2015).
Although Plaintiff does not refer to the NJCRA in his FAC, the Court will nevertheless
analyze his claims under the statute because, as discussed, Defendants concede the point in their
briefing. The NJCRA provides a private cause of action to
[a]ny person who has been deprived of any substantive due process
or equal protection rights, privileges or immunities secured by the
Constitution or laws of the United States, or any substantive rights,
privileges or immunities secured by the Constitution or laws of this
State, or whose exercise or enjoyment of those substantive rights,
privileges or immunities has been interfered with or attempted to be
interfered with, by threats, intimidation or coercion by a person
acting under color of law, may bring a civil action for damages and
for injunctive or other appropriate relief.
N.J.S.A. 10:6-2. The “NJCRA was modeled after

§ 1983, [and so] courts

consistently looked at claims under the NJCRA through the lens of

in New Jersey have

§ 1983 and have repeatedly

construed the NJCRA in terms nearly identical to its federal counterpart.” Vetez v. fitentes, No.
No. 15-6939, 2016 WL 4107689, at *5 (D.N.J. July 29, 2016) (internal quotations and citation
omitted); see, e.g., Waselikv.

Titp.

ofSparta, No. 16-4969, 2017 WL 2213148, at *8 n.15 (D.N.J.

May 18, 2017) (noting that the court had “not seen in the case law any indication that malicious
prosecution is an exception to the general principle that NJCRA is construed in parallel to

§

1983.”). Therefore, the Court considers Plaintiffs Section 1983 and NJCRA claims together.
1. Elements of False Arrest, False Imprisonment, and Malicious
Prosecution Under Federal and State Law

False arrest and false imprisonment are very similar and are often considered together. To
state a claim for false arrest under federal or New Jersey law, a plaintiff must establish: (1) that
there was an arrest; and (2) that the arrest was made without probable cause. See James v. City of
18

Wilkes—Bane, 700 F.3d 675, 680 (3d Cir. 2012) (describing false arrest under the Fourth
Amendment); Schirmer v. Penkethman, No. CIV. 10-1444, 2012 WL 6738757, at *8 (D.N.J. Dec.
31, 2012) (citations omitted) (describing false arrest under New Jersey law), affd, 553 F. App’x
268 (3d Cir. 2014). “The proper inquiry in a section 1983 claim based on false arrest

.

.

.

is not

whether the person arrested in fact committed the offense but whether the arresting officers had
probable cause to believe the person arrested had coimuitted the offense.” Grornan v. Thp. of
Manalapan, 47 F.3d 628, 634 (3d Cir. 1995) (quoting Dowling v. City ofPhila., $55 F.2d 136, 141
(3d Cir. 1988)); Nanton v. Mecka, No. 11-6132, 2013 WL 1844756, at *6 (D.N.J. Apr. 30, 2013)
(“The validity of an arrest does not depend on the ultimate finding of guilt or innocence following
an arrest.”).
In addition. “where the police lack probable cause to make an arrest, the arrestee has a
claim under

§ 1983 for false imprisomuent based on a detention pursuant to that arrest.” O’Connor

v. City of Philadelphia, 233 F. App’x 161, 164 (3d Cir. 2007) (citations omitted); see Reedy v.
Twp. of Cranbeniy, No. 06-1080, 2007 WL 2318084, at *3 (W.D. Pa. Aug. 9, 2007) (“The basis
for false arrest is the arrest itself, whereas the basis for false imprisonment is the detention that
follows the false arrest.”) Under New Jersey law, “[t]he tort of false imprisonment has two
elements: (1) an arrest or detention of the person against his or her will and (2) lack of proper legal
authority or legal justification.” Leang v. Jersey City 3d. ofEduc., 198 N.J. 557, 591 (N.J. 2009)
(quotations omitted). In other words, in New Jersey, “[f]alse imprisonment is the constraint of the
person without legal justification.” Id.
Under both federal and New Jersey law, the absence of probable cause is also a required
element of a malicious prosecution claim. McKenna v. City of Philadelphia, 582 F.3d 447, 461
(3d Cir. 2009) (describing federal requirements); Schirmer, 2012 WL 6738757, at *8 (describing

19

New Jersey requirements). To succeed on a malicious prosecution claim under federal law, a
plaintiff must show:
(1) the defendant initiated a criminal proceeding; (2) the criminal
proceeding ended in [the plaintiffs] favor; (3) the defendant
initiated the proceeding without probable cause; (4) the defendant
acted maliciously or for a purpose other than bringing the plaintiff
to justice; and (5) the plaintiff suffered deprivation of liberty
consistent with the concept of seizure as a consequence of a legal
proceeding.
Halsey v. Pfetffer, 750 f.3d 273, 296—97 (3d Cir. 2014) (citing Johnson v. Knorr, 477 F.3d 75, 82

(3d Cir. 2007)). Under New Jersey law, malicious prosecution requires “(1) that the criminal
action was instituted by the defendant against the plaintiff, (2) that it was actuated by malice, (3)
that there was an absence of probable cause for the proceeding, and (4) that it was terminated
favorably to the plaintiff.” Stolinski v. Fennypacker, 772 F. Supp. 2d 626, 636—3 7 (D.N.J. 2011)
(quoting Epperson v. Wa/—Mart Stores, Inc., 373 N.J.Super. 522, 530 (App. Div. 2004)). “A
plaintiff must also show that the conduct constituting institution of the action was the proximate
cause of the charges being brought (i.e., the chain of causation was not interrupted by an
intervening agent).” Stolinski, 772 F. Supp. 2d at 637.
2. Qualified Immunity

Defendants argue that they are entitled to qualified immunity. Qualified immunity can
shield a municipal officer from liability in a Section 1983 case. Wright v. City of Philadelphia,
409 F.3d 595, 599 (3d Cir. 2005). “Qualified immunity shields government officials from personal
liability for civil damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Paszkowski v. Roxbtirv
Twp. Police Dep’t, No. 13-7088, 2014 WL 34654$, at *2 (D.N.J. Jan. 30, 2014). A court must

engage in a two-part inquiry to determine whether qualified immunity applies: (1) whether the

20

allegations, taken in the light most favorable to the party asserting the injury, show that defendant’s
conduct violated a constitutional right, and (2) whether the constitutional right at issue was clearly
established at the time of the alleged violation. Pearson v. Callahan, 555 U.S. 223, 232 (2009).
Courts have the discretion to consider either prong of the two-part analysis first. Id. at 236.
The United States Supreme Court has ruled that the “contours of the right must be sufficiently
clear that a reasonable official would understand that what he is doing violates that right.” Sattcier
v. Katz, 533 U.S. 194,202 (2001). “To make that determination, [a court should] engage in another
reasonableness inquiry: ‘whether it would be clear to a reasonable officer that his conduct was
unlawful in the situation he confronted.” Santini v. fuentes, 795 F.3d 410, 417—1 $ (3d Cir. 2015)
(quoting Saucier, 533 U.S. at 202). This analysis is “undertaken in light of the specific context of
the case.” Saucier, 533 U.S. at 201.
“The issue of qualified immunity is generally a question of law, although a genuine issue
of material fact will preclude summary judgment on qualified immunity.” Giles v. Kearney, 571
F.3d 318. 326 (3d Cir. 2009). In deciding qualified immunity questions at summary judgment, a
court must view the facts in the light most favorable to the plaintiff. Id.; see Scott v. Harris, 550
U.S. 372, 37$ (2007) (finding that when the parties’ versions of the facts differ substantially at
summary judgment, “courts are required to view the facts and draw reasonable inferences in the
light most favorable to the party opposing the summary judgment motion,” and therefore, in
“qualified immunity cases, this usually means adopting

.

.

.

the plaintiffs version of the facts.”

(internal quotations, citations, and brackets omitted)). Summary judgment may be granted to
officers if, when interpreting the facts in the light most favorable to the plaintiff, the court
determines that the facts do not support a violation of a clearly established constitutional right.
Mitchell v. forsyth, 472 U.S. 511, 546 (1985) (stating that “when a trial court renders a qualified

21

immunity decision on a summary judgment motion, it must make a legal determination very
similar to the legal determination it must make on a summary judgment motion on the merits”);
see also Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014); Scott, 550 U.S. at 378.
Qualified immunity under New Jersey law “tracks the federal standard.” Brown v. State,
230 N.J. 84, 98 (N.J. 2017) (“To ascertain whether a govenmiental official

.

.

.

is entitled to

qualified immunity requires inquiries into whether: (1) the facts, taken in the light most favorable
to the party asserting the injury.

.

.

show the officer’s conduct violated a constitutional right; and

(2) that constitutional right was clearly established at the time that defendant acted.” (quotations,
citations, and brackets omitted)). The qualified immunity defense “extends to suits brought under
the [NJCRA].” Id. Accordingly, the Court considers qualified immunity under federal or state
law together.
In regards to the first step of the qualified immunity analysis, it is undisputed that the right
to be free from arrest except on probable cause was clearly established at the time of Plaintiffs
arrest. Orsatti, 71 F.3d at 482 (citing Fapachristou v. City of Jacksonville, 405 U.S. 156, 169
(1972)).

The same is true of false imprisonment, Groman, 47 F.3d at 636, and malicious

prosecution, Torres v. McLaughlin, 163 F.3d 169, 183 (3d Cir. 199$).
The Court now moves to the second step of the analysis: whether there has been a violation
of a clearly established constitutional right.

As noted, false arrest, false imprisoment, and

malicious prosecution all require a plaintiff to show a lack of probable cause. Berry v. Kabacinski,
704 F. App’x 71, 73 (3d Cir. 2017). “The standard for probable cause is identical under federal
and New Jersey law.” Schirmer v. Fenkethman, No. 10-1444, 2012 WL 6738757, at *8 (D.N.J.
Dec. 31, 2012), aff’d, 553 F. App’x 26$ (3d Cir. 2014). “Probable cause exists if there is a ‘fair
probability’ that the person committed the crime at issue.” Wilson v. Russo, 212 F.3d 781, 789 (3d

22

Cir. 2000). Specifically, “[p]robable 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 to be arrested.” i’vlerkte v.
Upper Dublin Sc/i. Dist., 211 F.3d 782, 788 (3d Cir. 2000) (quoting Orsatti v. New Jersey State

Police, 71 f.3d 480, 482 (3d Cir.1995)). The New Jersey Supreme Court has described probable
cause as “less than legal evidence necessary to convict though more than mere naked suspicion.”
State v. Wilson, 178 N.J. 7, 13 (N.J. 2003). “Probable cause exists [under New Jersey law] if at

the time of the police action there is a well grounded suspicion that a crime has been or is being
committed.” Id.
“A police officer may be liable for civil damages for an arrest if ‘no reasonable competent
officer’ would conclude that probable cause exists.” Wilson, 212 F.3d at 789—90 (3d Cir. 2000)
(quoting Mallev v. Briggs, 475 U.S. 335, 341 (1986)). “Generally, the question of probable cause
in a section 1983 damage suit is one for the jury.

.

.

.

particularly

[ ] where the probable cause

determination rests on credibility conflicts.” Merkle, 211 F.3d at 788 (internal quotations and
citations omitted). “However, a district court may conclude that probable cause exists as a matter
of law if the evidence, viewed most favorably to Plaintiff, reasonably would not support a contrary
factual finding, and may enter summary judgment accordingly.” Id. at 788—89 (quotation omitted).
Plaintiff argues that genuine issues of material fact exist as to whether Defendants had
probable cause to arrest and charge Plaintiff. P1. SJ

Opp.

at 47-54. Plaintiff first asserts that

Defendants lacked probable cause to detain and arrest him at Witte Field.8 In support of this
assertion, Plaintiff claims the following: there was no evidence of his sexual arousal or

8

Plaintiff claims that he was arrested at Witte Field, P1. SJ Opp. at 47, and Defendants’ position
on the issue is not clear. The Court assumes, for the basis of this motion, that Plaintiff was
detained and arrested at Witte Field.
23

gratification, no mention of Erber’s children, Erber questioned her own sanity, Plaintiff provided
a viable explanation, and there was no other corroborating witness. Plaintiff next argues that the
municipal judge who signed the complaint did not have probable cause because Waldt made false
statements in his adult arrest report. The alleged false statements concern Plaintiffs appearance,
Erber being “confident” that Plaintiff exposed himself, and a reference to the paper towel. Plaintiff
concludes that as the investigation continued, any cause “evaporated” because of the laboratory
results on the paper towel, evidence tampering as to Plaintiffs photographs, and Defendants’
withholding of the MICV recordings.
Here, the Court finds that there is no genuine issue of material fact and that Defendants had
probable cause to arrest and charge Plaintiff with lewdness and endangering the welfare of a child.
Accordingly, Defendants are entitled to qualified immunity and are granted summary judgment on
Plaintiffs Section 1983 and NJCRA claims in Counts One and Two. Erber’s 9-1-1 call and
subsequent statements to Officers at the scene provided specific allegations that Defendant had
exposed himself while walking on the track. Erber told the 9-1-1 operator that she was in “David
Johnson Park in Englewood Cliffs, there’s a man walking around the circle with his self exposed,”
P1. SOMF

¶

4, and that “I’m here with my kids,” Id. at

¶

5. When the officers arrived, they

encountered Plaintiff (and there is no indication in the record that there was another person present
who matched his description). The officers also found Erber and her two minor children, as Erber
indicated on the emergency call. At the scene, Erber’s description of a “white male, tall, khaki
shorts, and like a white button down shirt,” MICV Recording at 21:00-21:10, matched Plaintiffs
appearance.
When Officer Waldt approached Plaintiff, Waldt observed Plaintiffs zipper down. After
asking Plaintiff to lift his shirt, the officer also noticed that Plaintiffs belt was unbuckled. On the

24

audio recording, Plaintiff did not deny that either his belt was unbuckled or that his zipper was
down. Instead, Plaintiff claimed that he was merely a “sloppy dresser,” an explanation that the
officers reasonably found unconvincing. While sloppiness may explain why a person’s shirt is
untucked, his clothes are wrinkled, or his clothes do not match, it does not explain why Plaintiff’s
zipper was down and his belt was unbuckled. Critically, Plaintiffs open zipper and unbuckled
belt were consistent with him exposing himself as he walked near Erber and her children. All of
these facts and circumstances provided officers with sufficient information to have probable cause
that Defendant had violated both N.J.S.A. 2C:14-45(l) and N.J.S.A. 2C:24-43(1).
After the events at the field, Erber went to the police station and gave a definitive statement,
which she then replaced with another definitive statement while explaining that she initially
thought she was at a park other than Witte Field. In the second statement, Erber also noted that
her nine-year-old daughter had indicated that she (the child) had seen Plaintiff exposed. Similarly,
Morrissey’s supplemental report reflects that the child thought that she had seen Plaintiffs
“privates.”
As noted, Plaintiff makes many arguments against probable cause. However, Plaintiffs
arguments are not persuasive. For example, Plaintiff contends that in her 9-1-1 call, Erber may
have believed that Plaintiffs exposure was “accidental” or because he was “in some sort of distress
that would require medical attention.”

Opp.

P1. SJ

at 5-6.

This argument cannot even be

generously characterized as speculative because Plaintiff himself contradicts these contentions

—

he does not claim to have accidentally exposed himself or that he was in distress. As to Waldt’s
police report, which was relied upon by Judge Saperstein, the Court disagrees with Plaintiffs
arguments.

For example, Plaintiff argues that the report improperly characterized him as

“disheveled,” but Plaintiff freely admitted at the scene that he was a sloppy dresser by way of

25

defense. The Court does not comprehend how Plaintiff can take issue with a characterization that
he himself promulgated. In addition, even if the Court were to excise the word “confident” from
the description of Erber’s identification, the report nevertheless sufficiently sets forth probable
cause on which Judge Saperstein could rely.
Plaintiff also repeatedly argues that the officers coerced Erber and her daughter to lie. But
there is no evidence to support such a contention. In her deposition, Erber said the exact opposite;
that is, no officer pressured her to change her allegations in any way. Likewise, Plaintiff claims
that Defendants failed to give the MICV recordings to the county prosecutor.

However,

Defendants’ evidence reflects that they did in fact provide copies of the recordings to the
prosecutor on two occasions. D.E. 66-7, Ex. T, $gt. T. Coletta Reports (stating that two copies of
the MICV recordings were provided to the Bergen County Prosecutor’s Office on January 2, 2012
and on february 24, 2012). Plaintiff’s argument appears to be based on a hearsay statement of the
trial prosecutor that she was unaware of the recordings. Yet, plaintiff did not depose the trial
prosecutor in this case nor did he produce credible evidence to create a genuine issue of material
fact that Defendants intentionally failed to disclose any information to the county prosecutor. To
the extent that Erber’s statements on the MICV recordings can be argued to cast doubt on her
identification, they were not sufficient to eradicate probable cause (and Plaintiff was able to make
use of them at trial, as discussed below) in light of her 9-1-1 call and her identification of Plaintiff
at the scene. In addition, while Plaintiff asserts that the copies of the photographs that he was
given in discovery were darker than they should have been, there is no evidence of any tampering
with the photogi-aphs by Defendants. Similarly, there is no indication that Plaintiff was denied the
right to inspect the original photographs.

26

Plaintiff also contends that Officer Waldt lied during his grand jury testimony and that the
indictment was “unconstitutionally obtained based upon these contradictory and misleading
statements.” P1. 53 Opp. at 3 8-39. However, Waldt is entitled to absolute immunity as to his grand
jury testimony. Rehberg v. Faulk, 566 U.S. 356, 369 (2012) (holding that “a grand jury witness
has absolute immunity from any

§ 1983 claim based on the witness’ testimony”). Beyond absolute

immunity, Plaintiffs analysis of Waldt’s grand jury testimony is flawed. for example, Plaintiff
claims that Waldt intentionally lied when he told the grand jury that he did not believe that the
laboratory results concerning the paper towel were available. Based on Defendants’ supplemental
information, it appears that Waldt’s testimony was accurate; the laboratory had not yet mailed the
test results as of the day of Waldt’s grand jury appearance. See D.E. 77.
Plaintiff further asserts that Defendants did not have probable cause that Plaintiff exposed
himself to a minor for the purposes of sexual gratification as required by N.J.S.A. 2C:14—4b(1).
P1. SJ Opp. at 47-49. Plaintiff argues that at the time of his arrest, “there is not a single shred of
evidence that Plaintiff had exposed himself to Erber’ s children for the purposes of sexual arousal
or desire.” P1. SJ Opp. at 48. However, Erber’s evidence indicated that Plaintiff passed her and
her children twice with his penis exposed. Plaintiff argues that he did not have an erection nor
was he masturbating, but neither is required for either offense. In fact, the defendant in Hackett
was merely standing in front of an open window while naked; there was no evidence of an erection
or masturbation. Hackett, 166 N.J. at 71-72 (internal citations omitted). In fact, as the New Jersey
Supreme Court in Hackett observed, if Plaintiff had been masturbating in view of the two minor
children, he could have been charged with second degree tender years assault.
Plaintiff also argues that there is no proof that Erber’s daughter actually saw his exposed
penis. P1. SJ Br. at 48-49. However, N.J.S.A 2C: 14—4b(l) only requires that an actor intentionally

27

expose himself for sexual arousal or gratification “under circumstances which the actor ‘knows or
reasonably expects’ that he

.

.

.

is likely to be observed by a child less than thirteen years old.”

Zeidell, 154 N.J. 430 (citing N.J.S.A 2C:14—4b(l)). Contrary to Plaintiffs assertions, there is
evidence that Erber’ s nine-year-old daughter did see Plaintiff expose himself. But even if Erber’ s
daughter did not see Plaintiffs exposure, the officers had probable cause to believe that Plaintiff
“reasonably expect[ed]” that it was likely that the children would see him expose himself at Witte
Field, a public park where Erber’s two children were riding their bikes.
As to malicious prosecution, in addition to his probable cause arguments, Plaintiff adds
that Chief Cioffi acted with an improper purpose in charging Plaintiff because Cioffi wanted to
increase the size of the police force. Plaintiff also has presented evidence that the chief had argued
for more officers due to issues with sick time, overtime, and traffic duty. Plaintiff, however, has
presented no evidence that the police department was able to increase the size of its force based
on his arrest, or that Cioffi believed that he could do so.
Because Defendants had probable cause as a matter of law to detain, arrest, and prosecute
Plaintiff, they are entitled to qualified immunity under federal and state law. Defendants are
likewise entitled to summary judgment on Plaintiffs Section 1983 and NJRRA claims for false
arrest, false imprisonment, and malicious prosecution claims.
iii. New Jersey Common Law Claims

Additionally, Defendants are entitled to summary judgment on any state common law
claims for false arrest, false imprisomnent, and malicious prosecution because there are no genuine
issues of material fact as to Defendants’ probable cause.9 As noted, New Jersey common law tort

Under New Jersey law, the Tort Claims Act, N.J.S.A. 59: 1-1 et seq., governs tort actions
against public entities. There are a number of statutory immunity provisions under New Jersey
law that shield individuals and entities from potential liability under the NJTCA, and Defendants
28

claims for false arrest, false imprisonment, and malicious prosecution all require a showing of
probable cause. Mesgieski v. Oraboni, 330 N.J. Super. 10, 25 (App. Div. 2000) (“A plaintiff need
not prove the lack of probable cause, but the existence of probable cause will nevertheless defeat
[a false arrest or false imprisonment] action.”); LoBiondo v. Schwartz, 199 N.J. 62, 90 (NJ. 2009)
(Observing that malicious prosecution under New Jersey law requires a plaintiff to demonstrate
that “there was an absence of probable cause to prosecute” (citation omitted)). Accordingly,
Defendants are granted summary judgment on Plaintiffs state law tort claims.
c. Count Five (Brady Claims)

Plaintiffs Count Five, brought pursuant to Section 1983, alleges that Defendants violated
Brady by withholding evidence, including clearer photographs, MICV recordings, and forensic

test results.

In Brady, the United States Supreme Court held that “the suppression by the

prosecution of evidence favorable to an accused upon request violates due process where the
evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of
the prosecution.” Brady v. Maryland, 373 U.S. 83, 87 (1963). A Brady claim raises due process
concerns. See Gagliardi v. Fisher, 513 F. Supp. 2d 457, 489 (W.D. Pa. 2007). “A Brady [due

appear to argue that every provision bars Plaintiffs state law claims. Defs. SJ Br. at 49-56. The
Defendants’ brief essentially cites the relevant statutory provisions, string cites certain cases, and
then in conclusory fashion, avers that they are entitled to immunity. When Defendants do
engage in a substantive analysis, they are unconvincing. For example, Defendants claim that
“the Defendant Officers are vested with discretion as to how to proceed in any particular
situation. This would include whether to arrest Plaintiff.” Def. SJ Br. at 54 (emphasis added).
As a result, Defendants conclude, that “[i]t cannot be questioned” that the individual officers
have discretionary immunity regarding their arrest of Plaintiff. Id. at 54-5 5. Thus, it appears that
Defendants are arguing that they have unfettered discretion to do whatever they want, whenever
they want, as police officers. The Court assumes that this means making arrests without
probable cause. Defendants provide no support for their unreasonably broad reading of
discretionary immunity, nor could the Court find any supporting authority. Therefore, the
Defendants’ state immunity arguments fail, but they nevertheless prevail because there is no
genuine issue of material fact precluding summary judgment.
29

process] violation occurs if: (1) the evidence at issue is favorable to the accused, because either
exculpatory or impeaching; (2) the prosecution withheld it; and (3) the defendant was prejudiced
because the evidence was ‘material.” Break-iron v. Horn, 642 F.3d 126, 133 (3d Cir. 2011). “This
is an objective test, meaning that no bad-faith inquiry is required.” United States v. Risha, 445
F.3d 298, 303 (3d Cir. 2006). “It is well-settled that the prosecution has a duty to learn of and
disclose information known to the others acting on the government’s behalf in the case.” United
States v. Reyeros, 537 f.3d 270, 281 (3d Cir. 200$) (internal quotation omitted). “Accordingly, it
has been held that a state prosecutor has a duty to obtain and turn over to the defense favorable
evidence known to a state police officer who investigated the case.” Id. (citing Kyles v. Whitley,
514 U.S. 419, 437 (1995)).

“Under Brady, evidence is material if there is a reasonable probability that, if the evidence
had been disclosed, the result of the proceeding would have been different.” Break-iron, 642 f.3d
at 133—34 (internal quotations and brackets omitted).

The Third Circuit has delineated the

parameters of materiality:
The question is not whether the defendant would more likely than
not have received a different verdict with the evidence, but whether
in its absence he received a fair trial, understood as a trial resulting
in a verdict worthy of confidence. A reasonable probability of a
different result is shown when the government’s evidentiary
suppression undermines confidence in the outcome of the trial.
Id. at 134 (internal citations, quotation marks, and brackets omitted).

Here, Plaintiff brings his claims against police officers rather than members of the
prosecutor’s office. Defendants argue that “[i]n the instant matter, the duty of Brady disclosure
was solely on the Prosecutor from the BCPO[, Bergen County Prosecutor’s Office,] (and not upon
the police department).” Def. SJ Brief at 20. Defendants provide no legal support for their
position. Plaintiff also provides no argument in response. In Gibson v. Superintendent ofNJDep’t
30

ofLaw & Pub. Safety-Div. ofState Police, 411 F.3d 427 (3d Cir. 2005), overruled on other grottnds

by Diqtte v. N.J. State Police, 603 f.3d 181 (3d Cir. 2010), the Third Circuit held that “police
officers and other state actors may be liable under

§ 1983 for failing to disclose exculpatory

information to the prosecutor.” Id. at 443; see also Yarns v. Cty. ofDelaware, 465 F.3d 129, 141
(3d Cir. 2006) (finding that “police officers and other state actors may be liable under

§ 1983 for

failing to disclose exculpatory information to the prosecutor”). The Gibson court reasoned that
“[a]lthough Brady places the ultimate duty of disclosure on the prosecutor, it would be anomalous
to say that police officers are not liable when they affirmatively conceal material evidence from
the prosecutor.” Gibson, 411 f.3d at 443. “Thus, the Third Circuit joined numerous other circuits
in recognizing that a plaintiff states an actionable

§ 1983 claim against police officers for

interference with his fourteenth Amendment rights by alleging that the police officers failed to
disclose material exculpatory information to the prosecutor.” Nanton v. Mecka, No. 11-6132, 2013
WL 1844756, at *9 (D.N.J. Apr. 30, 2013). Accordingly, police officers maybe liable for aBrady
violation if the facts warrant such a finding.
Plaintiff alleges the following Brady violations: (1) Plaintiff was only provided darkened
processing photos until afler jury selection, when he was provided clearer pictures, P1. SJ

Opp. at

34-3 5; (2) officers were instntcted to make copies of the MICV and provide the videos to the
prosecutor and Plaintiffs attorney, but that they were only made aware of the videos in March
2012, P1. SJ Opp. at 35; and (3) the police department failed to disclose to defense counsel the test
results of the paper towel, P1. SJ. Opp. at 36.

‘

In sum, Plaintiff alleges that “Defendants engaged

As noted, Plaintiff makes the same arguments concerning probable cause. In an abundance of
caution, the Court also addresses the arguments as to the Brady claim.
10

31

in an orchestrated scheme to withhold evidence from Plaintiffs defense attorney.” P1. SJ

Opp. at

36.
However, Plaintiff fails to show how the alleged withholding of this evidence affected the
result of Plaintiffs criminal trial, which resulted in an acquittal of all charges. The Third Circuit
has importantly noted the limits of Brady, stating:
Even though this duty of disclosure is tightly tethered to
constitutional guarantees of due process, the Constitution is not
violated every time the government fails or chooses not to disclose
evidence that might prove helpful to the defense. Rather, the
prosecution ‘sfailure to disclose evidence rises to the level of a due
process violation only if the government evidentiaiy suppression
undermines confidence in the outcome of the trial. Thus, the
question is not whether the defendant would more likely than not
have received a different verdict with the concealed evidence, but
whether in its absence he received a fair trial, understood as a trial
resulting in a verdict worthy of confidence.
Smith v. Holtz, 210 F.3d 186, 196 (3d Cir. 2000) (internal quotations, citations, and brackets
omitted). The Supreme Court has further clarified that “strictly speaking, there is never a real
‘Brady violation’ unless the nondisclosure was so serious that there is a reasonable probability that
the suppressed evidence would have produced a different verdict.” Strickler v. Greene, 527 U.S.
263, 281 (1999).
Plaintiffs Brady claim fails because, as noted above, he has not produced evidence
demonstrating that Defendants improperly tampered with the photographs or that they did not
provide the MICV recordings in a timely fashion to the prosecutor. Moreover, Plaintiff has not
alleged that the infonriation in question was not made available to him before trial. United States
v. Higgs, 713 F.2d 39, 44 (3d Cir. 1983) (holding that “[n]o denial of due process occurs if Brady
material is disclosed.

.

.

in time for its effective use at trial” (citation omitted)). To the contrary,

it appears that Plaintiff had access to the original photographs, the MICV recordings, and the

32

laboratory results for trial. In addition, Plaintiffs Brady claim also fails because he was acquitted
at trial. See, e.g., Leone v. Tup. ofDeptford, 616 F. Supp. 2d 527, 534 (D.N.J. 2009) (finding that
plaintiffs had “no standing to bring a due process claim based on defendants’ alleged interference
with evidence material to their cases” because “all charges were dropped against them, and their
case never proceeded to trial”); Morgan v. Gertz, 166 F.3d 1307, 1310 (10th Cir. 1999)
(“Regardless of any misconduct by government agents before or during trial, a defendant who is
acquitted cannot be said to have been deprived of the right to a fair trial.”); flores v. Satz, 137 F.3d
1275, 1278 (11th Cir. 1998) (“Plaintiff, however, was never convicted and, therefore, did not suffer
the effects of an unfair trial” and therefore the actions “do not implicate the protections of Brady.”);
Gagliardi v. fisher, 513 F. Supp. 2d 457, 491 (W.D. Pa. 2007) (finding that when a plaintiff “was
never convicted of forgery or attempted thefl by unlawful taking

.

.

.

.

he cannot claim that the

‘evidence’ was material to his guilt or punishment” under Brady); United States v. Wirtz, 357 F.
Supp. 2d 1164, 1171 (D. Minn. 2005) (“Because of the acquittal, the alleged Brady violation did
not occur in the commercial airlines fraud trial.”). Accordingly, Defendants are granted summary
judgnient on Count Five.
d. Count Nine (Monet! Liability Against the Borough)

Count Nine brings an action for “Supervisory Liability” and alleges, in part, that
“Supervisor officers and a municipality are liable for their own negligence in failing to select, train,
or supervise adequately their subordinates for their establishment [sic], directly or implicitly of an
official policy or procedure that violates an individual’s constitutional rights.

.

.

.

Plaintiff asserts

his belief, that supervisors who chose men of no character, and believe the constitutional violations
that will follow are to be expected, are culpable [sic].” FAC at 79-80. In his opposition, Plaintiff
recognizes Count Nine as bringing “{s]upervisory [l]iability for failure to train against Englewood
Cliffs under Monell

V.

Dept. of Social Services, 436 U.S. 658 (1978) (Count Nine).” P1. SJ

33

Opp.

at 3. The Court accepts Plaintiffs interpretation and considers Count Nine accordingly pursuant
to Section 1983.
While a municipality may be liable under Section 1983, it cannot be held liable under a
theory of respondeat superior. Monell, 436 U.S. at 691. “A municipality may only be held liable
under

§ 1983 if the plaintiff identifies a municipal ‘policy’ or ‘custom’ that was the ‘moving force’

behind the injury.” Jewellv. Ridley Twp., 497 F. App’x 182, 185 (3d Cir. 2012) (quoting Monell,
436 U.S. at 694). “In other words, the plaintiff must show that the municipality, through one of
its policymakers, affirmatively proclaimed the policy, or acquiesced in the widespread custom,
that caused the violation.” Noble v. City of Camden, 112 F. Supp. 3d 208, 221 (D.N.J. 2015)
(internal citation omitted). “A plaintiff may show the existence of apolicy when a decision-maker
with final authority issues an official proclamation, policy, or edict.” Id. (emphasis added)
(internal quotations and citations omitted). “[A c]ustom may be established by showing that a
given course of conduct, although not specifically endorsed or authorized by law, is so well-settled
and permanent as virtually to constitute law.” Id. (emphasis added) (internal quotations and
citations omitted).
Concerning appropriate training, “the inadequacy of police training may serve as the basis
for

§ 1983 liability only where the failure to train amounts to deliberate indifference to the rights

of persons with whom the police come into contact.” City of Canton, Ohio v. Harris, 489 U.S.
378, 388-89 (1989) (“Only where a failure to train reflects a ‘deliberate’ or ‘conscious’ choice by
a municipality—a ‘policy’ as defined by our prior cases—can a city be liable for such a failure
under

§ 1983.”). “Deliberate indifference’ is a stringent standard of fault, requiring proof that a

municipal actor disregarded a known or obvious consequence of his action.

.

.

.

Ordinarily, a

pattern of similar constitutional violations by untrained employees is necessary to demonstrate

34

deliberate indifference for purposes of failure to train.” Thomas v. Citmberland Cty., 749 F.3d
217, 223 (3d Cir. 2014) (emphasis added) (internal quotations, citations, and brackets omitted))1
Additionally, a plaintiff must show that the unlawful policy or custom was the proximate
cause of the plaintiffs injuries. The United States Supreme Court has observed the following as
to proximate cause:
As our § 1983 municipal liability jurisprudence illustrates, however,
it is not enough for a § 1983 plaintiff merely to identify conduct
properly attributable to the municipality. The plaintiff must also
demonstrate that, through its deliberate conduct, the municipality
was the ‘moving force’ behind the injury alleged. That is, a plaintiff
must show that the municipal action was taken with the requisite
degree of culpability and must demonstrate a direct causal link
between the municipal action and the deprivation of federal rights.
3d. of Cty. Comm ‘rs ofBiyan Cty., Ok!. v. Brown, 520 U.S. 397, 404 (1997); see also Watson v.

Abington Tp., 478 F.3d 144, 156 (3d Cir. 2007); Bielevicz v. Ditbinon, 915 f.2d 845, 850 (3d
Cir. 1990).

A police department may have an otherwise adequate policy or practice, or an

otherwise sufficient training program, but may nevertheless still fall constitutionally short if it fails
to recognize the deficiencies of a particular officer. As noted, the department or its superiors are
generally charged with notice of an individual officer’s shortcomings based on the officer’s
“pattern of similar constitutional violations[.j” Thomas, 749 F.3d at 223.
Plaintiff fails to address any of Defendants’ arguments in its opposition. Plaintiff does not
provide any information about any alleged policy or custom that caused Plaintiffs alleged false
“[I]n certain situations, the need for training can be said to be so obvious, that failure to do so
could properly be characterized as ‘deliberate indifference’ to constitutional rights even without
a pattern of constitutional violations.” Thomas, 749 F.3d at 223 (internal quotations omitted)
(citing Canton, 489 U.S. at 390 n.l0). These “single-incident” failure to train cases are,
however, rare. “Liability in single-incident cases depends on the likelihood that the situation will
recur and the predictability that an officer lacking specific tools to handle that situation will
violate citizens rights.” Thomas, 749 F.3d at 223—24 (internal quotation, citation, and bracket
omitted). Here, Plaintiff has not argued the “single-incident” theory of liability.
35

arrest, or any other constitutional violation. Because Plaintiff fails to raise a genuine issue of
material fact, Defendant Englewood Cliffs is granted summary judgment on Count Nine.
e. Count Ten (Supervisory Liability Against Defendant Cioffi)

Count Ten brings a claim for “[s]upervisory [l]iability as is/was relevant to other charges
to all parties names [sic] as Defendants in the McMorrow Lawsuit (referring to Deputy Police
Chief McMorrow lawsuit filled [sic] against Police Chief Michael Cioffi), and all others named in
that suit, and any parties not yet known in that complaint.” FAC at $0. In his opposition, Plaintiff
interprets his claim as bringing “[s]upervisory [l]iability against Chief Cioffi (Count Ten).” P1. SJ

Opp. at 3.

The Court accepts Plaintiffs interpretation and considers Plaintiffs claims pursuant to

Section 1983.
Plaintiff fails to include any legal arguments in opposition. However, Plaintiff does detail
some facts surrounding Defendant Cioffi’s involvement in Plaintiffs criminal case in the “F actual
Background” section of his opposition. Plaintiff states that the police department “committed so
many constitutional violations in connection with Plaintiffs arrest and prosecution for political
reasons.” P1. SJ Opp. at 42. Plaintiff namely alleges that “[w]hen Plaintiff was arrested in 2011,
Chief Cioffi saw an opportunity to leverage his arrest for a disturbing offense as an excuse to
increase the size of the police force” and “accomplished this by directing his officers to continue
the investigation of Plaintiff without probable cause and by publicizing his case in the press.” Id.
at 43.
There are two theories of supervisory liability that may be applicable to Defendant Cioffi.
These theories are distinct from respondeat superior liability because “{g]overnment officials may
not be held liable for the unconstitutional conduct of their subordinates under a theory of
respondeat superior.” Argueta v. US. Immigration & Customs Enf’t, 643 F.3d 60, 71 (3d Cir.

36

2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)). Accordingly, a plaintiff must show
that “each Government-official defendant, through the official’s own individual actions, has
violated the constitution.” Id. (quoting Iqbal, 556 U.S. at 676).
The first theory of supervisory liability examines whether Defendant Cioffi acted as a
policyrnaker. “Individual defendants who are policymakers may be liable under

§ 1983 if it is

shown that such defendants, with deliberate indifference to the consequences, established and
maintained a policy, practice or custom which directly caused [the] constitutional harm.” A.M. ex
rel. 1MK. v. Luzerne Ctv. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004) (internal quotation
omitted).

“This standard

.

.

.

specifically requires (1) deliberate indifference and (2) direct

causation.” Jankowski v. Lellock, 649 F. App’x 184, 187 (3d Cir. 2016) (citation omitted).
The second theory of supervisory liability that may be applicable to Defendant Cioffi
“provides that a supervisor may be personally liable under

§ 1983 if he or she participated in

violating the plaintiffs rights, directed others to violate them, or, as the person in charge, had
knowledge of and acquiesced in his subordinates’ violations.” AM ex rel. JMK., 372 F.3d at
586. “Proximate causation is established where the supervisor gave directions that the supervisor
knew or should reasonably have known would cause others to deprive the plaintiff of her
constitutional rights.” Santiago v. Warminster Tp., 629 f.3d 121, 130 (3d Cir. 2010) (internal
quotation omitted). In other words,
[A] plaintiff asserting a failure to supervise claim must not only
identify a specific supervisory practice that the defendant failed to
employ, he or she must also allege both (1) contemporaneous
knowledge of the offending incident or knowledge of a prior pattern
of similar incidents, and (2) circumstances under which the
supervisor’s inaction could be found to have communicated a
message of approval.

37

Jankowski, 649 F. App’x at 187 (citation omitted).’2
Here, Plaintiff fails to raise any genuine issues of material fact regarding Defendant
Cioffi’s involvement in any unconstitutional conduct.

Far from showing any “deliberate

indifference,” Plaintiff fails to show that there was any violations of his constitutional rights.
Plaintiff also presents no evidence of a policy, practice, or custom, as noted above. The Court has
already determined that Defendants possessed the requisite probable cause to detain, arrest, and
prosecute Plaintiff, that there is no actionable Brady violation, and that all of Plaintiffs other
constitutional claims fail as a matter of law.’3 Accordingly, Plaintiffs supervisory claim against
Defendant Cioffi fails and Cioffi is granted summary judgment on Count Ten.
V. CONCLUSION

For the reasons set forth above, the Defendants’ motion for summary judgment (D.E. 66)
is GRANTED. Because the Court grants Defendants’ motions for summary judgment on all
counts, Defendants’ outstanding motion (D.E. 65) regarding Plaintiffs expert is dismissed as
moot. An appropriate Order accompanies this Opinion.

Date: April 12, 2018

John Michael Vazqu’*, U..D.J.
12

The Third Circuit has “refrained from answering the question of whether Iqbal eliminated—or
at least narrowed the scope of—supervisory liability because it was ultimately unnecessary to do
so in order to dispose of the appeal then before us.” Jankowski, 649 F. App’x at 187 (quoting
Argueta, 643 F.3d at 70).
13

Additionally, the department’s press release had an explicit statement that “[a]ll defendants are
presumed innocent until proven guilty beyond a reasonable doubt.” D.E. 66-7, Ex. U (“Cioffi
Press Release”). Defendant Cioffi’s interview with the press resulted in an ill-advised comment
concerning the potential paper towel evidence. Instead, Cioffi could have merely indicated that
there was potentially additional evidence (without identifying the specific evidence) but that
additional testing was needed.
3$