ROBERTS v. COUNTY OF ESSEX et al

Filing 230

OPINION. Signed by Judge Kevin McNulty on 12/30/2022. (mxw)

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
RODNEY R. ROBERTS,

Civ. No. 15-7061 (KM) (JBC)
Plaintiff,
OPINION

v.
COUNTY OF ESSEX, et al.,
Defendants.

KEVIN MCNULTY, U.S.D.J.:
Plaintiff Rodney Roberts was arrested in 1996 for the rape and
kidnapping of 17-year-old Sheronda Atwell. Shortly after his arrest, Roberts
pled guilty to kidnapping in exchange for a seven-year sentence and dismissal
of the rape charge. In 2004, after serving this sentence, Roberts was
involuntarily committed as a sexually violent predator.
In 2013, DNA analysis was performed on samples from Atwell’s 1996
rape kit. The analysis indicated that Roberts did not match the DNA profile of
Atwell’s assailant. The trial court vacated Roberts’s guilty plea in light of these
results and the government dismissed the rape and kidnapping charges.
Roberts was released from civil confinement in March 2014.
Roberts promptly commenced this action under 42 U.S.C. § 19831 with
supplemental state law claims against various state actors and entities. Several
defendants have since been dismissed from the case. The remaining defendants
have filed three motions for summary judgment that are now before the Court.
“42 U.S.C. § 1983 . . . provides a cause of action against state and local officers
for ‘the deprivation of any rights ... secured by the Constitution and laws.’” McCray v.
Jones, No. 21-3294, 2022 WL 17485957, at *2 (3d Cir. Dec. 7, 2022).
1

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One motion was filed by the Essex County Prosecutor’s Office (ECPO)
and two of its employees, Assistant Prosecutor Robert Laurino and Investigator
Michelle Bolin. I will refer to these defendants collectively as “the ECPO
Defendants”. A second motion for summary judgment was filed by Essex
County. A third motion for summary judgment was filed by the City of Newark
and one of its detectives, Derrick Eutsey. I will refer to Det. Eutsey and Newark
together as “the Newark Defendants”.
For the reasons set forth below, the ECPO Defendants’ and Newark
Defendants’ motions for summary judgment (DE 214, 223) are granted in part
and denied in part, and the motion of Essex County (DE 219) is denied.2
2

Certain key items from the record will be abbreviated as follows:
DE = Docket entry number in this case
Compl. = Amended Complaint (DE 96)
ECPO St. = ECPO Defendants’ statement of material facts (DE 214-2)
Resp. to ECPO St. = Roberts’s response to ECPO Defendants’ statement of
material facts (DE 218-107)
Newark St. = Newark Defendants’ statement of material facts (DE 223-3)
Resp. to Newark St. = Roberts’s response to Newark Defendants’ statement of
material facts (DE 225-107)
ECPO MSJ = Brief in support of ECPO Defendants’ motion for summary
judgment (DE 214-1)
Opp. to ECPO MSJ = Roberts’s brief in opposition to ECPO Defendants’ motion
for summary judgment (DE 218-108)
ECPO Repl. = Reply brief in further support of ECPO Defendants’ motion for
summary judgment (DE 215)
Essex MSJ = Brief in support of Essex County’s motion for summary judgment
(DE 219-2)
Opp. to Essex MSJ = Roberts’s brief in opposition to Essex County’s motion for
summary judgment (DE 222-108)
Newark MSJ = Brief in support of Newark Defendants’ motion for summary
judgment (DE 223-1)
Opp. to Newark MSJ = Roberts’s brief in opposition to Newark Defendants’

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Roberts sues for two essential wrongs: (1) the alleged misrepresentation that
the victim had identified him from a photo array; and (2) the failure, in postconviction proceedings, to produce vaginal swabs which did not contain
Roberts’s DNA. The rulings herein leave intact these essential claims against
the persons who are allegedly primarily responsible, while resisting efforts to
spread liability to defendants less directly or knowingly involved.

motion for summary judgment (DE 225-108)
Newark Repl. = Reply brief in further support of Newark Defendants’ motion for
summary judgment (DE 224)
Laur. Dep. = Excerpts from deposition of Robert Laurino (Ex. 14 to DE 218)
Bol. Dep. = Excerpts from deposition of Michelle Bolan (Ex. 15 to DE 218)
Rod. Dep. = Excerpts from deposition of Clara Rodriguez (Ex. 16 to DE 218)
Rod. Dep. II = Excerpts from deposition of Clara Rodriguez (Ex. 38 to DE
225)
Groller Dep. = Excerpts from deposition of Joseph Groller (Ex. I to DE 223)
Rod. PCR Br. = Rodriguez’s 2007 brief submitted in opposition to Roberts’s
PCR petition (Ex. 26 to DE 218)
PCR Tr. = Transcript from July 26, 2007 hearing on Roberts’s PCR petition (Ex.
25 to DE 218)
Comm. Order = Order for temporary civil commitment of Roberts dated May 27,
2004 (Ex. 75 to DE 218)
1996 Report = Det. Eutsey’s 1996 investigatory report (Ex. B to DE 223)
2009 App.Div. = 2009 decision of the Appellate Division (Ex. 92 to DE 225)
2013 App.Div. = 2013 decision of the Appellate Division (Ex. 40 to DE 222)
Receipt = 1996 “Property & Evidence Receipt” for photograph of Roberts (Ex. D
to DE 223)

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I.

Background3
A. Investigation of the rape and kidnapping of Sheronda Atwell
In the early morning hours of May 8, 1996, Sheronda Atwell was walking

to her aunt’s house in Newark, New Jersey when an unknown male grabbed
her, dragged her to an empty lot, and raped her. (Newark St. ¶1; Resp. to
Newark St. ¶1.) Atwell reported the incident to the Newark police that morning
and described her assailant as a 20-year-old black male.4 (Newark St. ¶5; Resp.
to Newark St. ¶5.) After her interview with police, she was taken to a hospital
where a rape kit was collected. (Newark St. ¶6; Resp. to Newark St. ¶6.)
Detective Eutsey was assigned to investigate the crime. (Newark St. ¶9;
Resp. to Newark St. ¶9.) As part of his investigation, Eutsey met with Atwell
and her mother on May 14, 1996. (Newark St. ¶10; Resp. to Newark St. ¶10.)
The parties agree that Atwell told Eutsey at this meeting that she did not know
her assailant. (Newark St. ¶11; Resp. to Newark St. ¶11.) What happened next,
however, is largely disputed. According to the report Eutsey drafted detailing
his investigation, Eutsey asked Atwell to review suspect files that contained
photographs of black males. (Newark St. ¶12; Resp. to Newark St. ¶12.) The
report states that Atwell began to cry upon viewing one of the photographs and
that she told Eutsey that this was the person who assaulted her. (Id.) The
person in the photograph was Roberts, who at the time was 29 years old.
(Newark St. ¶13; Resp. to Newark St. ¶13.) Eutsey determined that Roberts had

These undisputed facts are primarily taken from the Newark Defendants’
statement of material facts not in dispute, filed pursuant to Local Rule 56.1, and
Roberts’s response to that statement. The court is not aware of any factual disputes
between the Newark Defendants, the ECPO Defendants, and Essex County; indeed,
many of the undisputed facts that appear in the Newark Defendants’ 56.1 statement
similarly appear in the other defendants’ 56.1 statements. Given that certain sets of
facts bear more heavily on the claims asserted against some of the defendants as
opposed to others of the defendants, the 56.1 statements provide varying levels of
detail as to such facts. I therefore draw some facts from the ECPO Defendants’ 56.1
statement, and Roberts’s response to that statement, where more details are required.
3

To accurately reflect the record, I have adopted without alteration the racial
terminology used at the time to identify or describe the perpetrator in this 25-year-old
case.
4

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been convicted of aggravated sexual assault in 1986 but had been released on
parole in 1993. (Newark St. ¶¶14, 21; Resp. to Newark St. ¶¶13.)
Eutsey’s report contains a signed statement from Atwell asserting that
she was able to identify her assailant by viewing a photograph of him and that,
after making this identification, she signed and dated a copy of the photograph.
(Newark St. ¶¶15-19; Resp. to Newark St. ¶¶15-19.) Atwell’s signatures on the
statement were “sworn to and subscribed” before another officer, Acting
Lieutenant Daly. (Id.) On a later date, Eutsey executed a “Property and
Evidence Receipt” for the copy of the photograph of Roberts that Atwell
purportedly signed, and Lieutenant Daly signed this receipt. (Newark St. ¶26;
Resp. to Newark St. ¶26.)
On May 16, 1996, Eutsey submitted Atwell’s statement to a prosecutor.
(Newark St. ¶22; Resp. to Newark St. ¶22.) Eutsey then appeared before a
judge of the Newark Municipal Court, and the judge issued two warrants for
Roberts’s arrest: one for aggravated assault, and one for kidnapping. (Newark
St. ¶23; Resp. to Newark St. ¶23.) According to Eutsey’s investigation report,
on May 23, 1996, he went to the address listed in Roberts’s parole records and
determined that the address was “fictitious.” (Newark St. ¶24; Resp. to Newark
St. ¶24.) The report states that Eutsey then issued an alert to police agencies
notifying them that Roberts was wanted pursuant to a warrant. (Newark St.
¶25; Resp. to Newark St. ¶25.)
Eutsey executed another “Property and Evidence Receipt” for Atwell’s
rape kit, and the receipt indicates that it was received by the Newark Forensic
Lab (“Newark Lab”) on May 29, 1996. (Newark St. ¶27; Resp. to Newark St.
¶27; Ex. E to DE 223.) Joseph Groller, a chemist at the Newark Lab, examined
Atwell’s rape kit on that date. (Newark St. ¶29; Resp. to Newark St. ¶29.)
Among other things, Groller examined the vaginal swabs microscopically and
noted the presence of sperm. (Newark St. ¶30; Resp. to Newark St. ¶30.)
Groller then requested blood and saliva samples from a suspect for the purpose
of comparison. (Newark St. ¶32; Resp. to Newark St. ¶32.)
After examining the Atwell rape kit, Groller cut the tips off of the vaginal
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swabs and placed them in a brown envelope. (Newark St. ¶33; Resp. to Newark
St. ¶33.) Groller repackaged the brown envelope into a larger white envelope
that he labeled with the name of the victim and other identifying information,
and he placed the white envelope into one of the refrigerators in the Newark
Lab. (Newark St. ¶¶34-36; Resp. to Newark St. ¶¶34-36.) Groller believed that
the rest of the rape kit was returned to the Newark Police Department’s
property room. (Newark St. ¶37; Resp. to Newark St. ¶37.)
B. Arrest and conviction of Rodney Roberts
On May 25, 1996, Roberts was arrested in East Orange, New Jersey on a
theft charge unrelated to the Atwell case. (Newark St. ¶41; Resp. to Newark St.
¶41.) On June 12, Roberts pled guilty to third-degree theft, which resulted in a
violation of his parole from his 1986 conviction. (Newark St. ¶¶41-42; Resp. to
Newark St. ¶¶41-42.) Roberts was not released on bail pending sentencing on
the theft charge because of the pending rape and kidnapping charges in the
Atwell case. (Id.)
On June 26, 1996, Roberts was arraigned on and pled not guilty to
charges of aggravated sexual assault and kidnapping. (Newark St. ¶42; Resp.
to Newark St. ¶42.) Three weeks later, while at the courthouse for a proceeding,
Roberts met with his assigned public defender, Charles Martone, who informed
Roberts of a plea offer by the prosecution: In exchange for a guilty plea to
second-degree kidnapping, the prosecution would dismiss the first-degree
aggravated sexual assault charge and recommend that Roberts be sentenced to
a term of seven years. (Newark St. ¶¶44-45; Resp. to Newark St. ¶¶44-45.) That
seven-year sentence would run concurrently with the two three-year terms that
Roberts was then facing for theft and violating the terms of his parole. (Id.)
According to Roberts, he told Martone that he was innocent of the Atwell
charges and that he would not accept the prosecutor’s offer. (Newark St. ¶46;
Resp. to Newark St. ¶46.) Martone then left the holding cell area where the two
had been conversing and returned approximately 20-25 minutes later with new
information. (Id.) Martone informed Roberts that he had met Atwell, who was at
the courthouse, and that she told him that she had positively identified Roberts
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as her assailant and was prepared to do so again in open court that day. (Id.)
Martone advised Roberts that his independent investigation confirmed Atwell’s
identity as the victim and the accuracy of the police reports in the case. (Id.)
Roberts subsequently accepted the plea agreement and was convicted of
kidnapping. (Newark St. ¶47; Resp. to Newark St. ¶47.) He was sentenced by
Judge Eugene Codey to seven years on the kidnapping conviction, to run
concurrently with his three-year sentence(s) for the theft conviction and the
related parole violation. (Newark St. ¶49; Resp. to Newark St. ¶49.)
C. Parole denials and civil confinement
In April 1998, and again in May 2000, Roberts appeared before the New
Jersey State Parole Board for parole release hearings. Both times, Roberts was
denied parole based upon the allegation that he raped Atwell. (Newark St.
¶¶52-53; Resp. to Newark St. ¶¶52-53.) Roberts appealed the May 2000
decision, which was affirmed on the ground that the Board was entitled to rely
on the charged sexual assault. (Id.)
In January 2001, Roberts filed a pro se motion to withdraw his guilty
plea in the Atwell case due to ineffective assistance of counsel. (Newark St. ¶54;
Resp. to Newark St. ¶54.) Judge Codey denied the motion. (Id.) In June 2003,
Roberts was again denied parole and appealed. The denial was affirmed on the
basis that Roberts would not accept responsibility for the Atwell rape and that
he thus “minimized [his] conduct.” (Newark St. ¶55; Resp. to Newark St. ¶55.)
During this period, Roberts underwent several psychological evaluations.
(Newark St. ¶¶58-60; Resp. to Newark St. ¶¶58-60.) The evaluation reports
recommended that he be referred to the Attorney General’s office for further
assessment as to whether he met the criteria for civil confinement as a sexually
violent predator, pursuant to N.J. Stat. Ann. § 30:4-27.31. Among other things,
the reports found that Roberts continued to deny responsibility for the Atwell
rape. (Id.)
In May 2004, after Roberts had maxed out his criminal sentence, the
Attorney General’s office filed a petition for civil commitment, which was
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granted temporarily pending a final hearing. (Newark St. ¶62; Resp. to Newark
St. ¶62.) Commitment hearings were held over several days in 2004, 2005 and
2006, before Judge Serena Perretti. (Newark St. ¶63; Resp. to Newark St. ¶63.)
Roberts was represented at these hearings by Assistant Deputy Public
Defender John Douard. (Newark St. ¶62; Resp. to Newark St. ¶62.) At the
conclusion of the hearings, Judge Perretti ordered that Roberts be committed
to the State of New Jersey Special Treatment Unit as a sexually violent
offender. (Newark St. ¶67; Resp. to Newark St. ¶67.) Over the course of the
years following his commitment, Roberts was repeatedly found to be a sexually
violent predator in need of continued confinement. (Newark St. ¶68; Resp. to
Newark St. ¶68.)
D. 2005 DNA Analysis
During one of the hearings on the initial petition to have Roberts civilly
committed, Dr. Luis Zeiguer testified about the rape kit that was collected after
Atwell’s assault in 1996. (ECPO St. ¶9; Resp. to EPCO St. ¶9.) Dr. Zeiguer
explained that the kit was sent to the Newark Lab where a chemist examined it,
reported that there was a positive semen stain on the vaginal swabs, and
recommended that samples be obtained from a suspect for purposes of
comparison. (ECPO St. ¶9; Resp. to EPCO St. ¶9.) It appears that prior to
hearing Dr. Zeiguer’s testimony, Roberts was not aware that a rape kit had
been collected from Atwell, or at least that he was not aware that materials in
the kit had tested positive for semen.
In December 2004, after hearing Dr. Zeiguer’s testimony, Douard sent a
letter to Robert Laurino, who at the time was the director of the Sexual Assault
Response Team at ECPO. (ECPO St. ¶10; Resp. to EPCO St. ¶10.) Douard
requested that Roberts’s DNA be compared to the seminal stains preserved in
the Atwell rape kit. (Id.)
Michelle Bolan, who was then an investigator at ECPO, was asked to
collect a DNA sample from Roberts. Bolan was also asked to ensure that the
Atwell rape kit be provided to the New Jersey State Police crime laboratory
(“State Lab”) for analysis. (ECPO St. ¶¶11-12; Resp. to EPCO St. ¶¶11-12.)
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Bolan collected a buccal swab from Roberts and then arranged for another
ECPO employee to deliver both the rape kit and the buccal swab to the State
Lab. (ECPO St. ¶¶13-15; Resp. to EPCO St. ¶¶13-15.) At no point did Bolan
open the rape kit, which had been sealed in 1996. (Id.) A receipt indicates that
both the kit and Roberts’s buccal swab were received by the State Lab in March
2005. (ECPO St. ¶16; Resp. to EPCO St. ¶16.)
An entry in the communications log maintained by the State Lab
indicates that Joe Petersack, a scientist employed by the lab, called Laurino in
April 2005. (ECPO St. ¶21; Resp. to EPCO St. ¶21.) In the comments section of
the log, it states: “Regarding items in case. Only things retrieved from Crime
Unit were the vaginal slides & the buccal swabs from the suspect. The kit did
not contain the vaginal swab, genital swab, or the victim’s saliva control. He
will look into it & get back to me.”5 (ECPO St. ¶21; Resp. to EPCO St. ¶21.)
The State Lab log indicates that Petersack called Laurino two more times
in July 2005. The comments pertaining to the first July call read: “Regarding
locating the vaginal swabs. He will look into it and get back to me.” (ECPO St.
¶22; Resp. to EPCO St. ¶22.) As for the second July call, the comments read:
“With regard to swabs, everything that Newark P.D. had was sent to the lab. I
advised him that we were going to scrape more of the slides to try & generate a
sample – He agreed that was okay.” (ECPO St. ¶23; Resp. to EPCO St. ¶23.)
In August 2005, the State Lab prepared a report detailing the results of
the DNA testing that was conducted. (ECPO St. ¶27; Resp. to EPCO St. ¶27.)
The report indicated that the only DNA detected from the tested sample was
female DNA. (Id.) In October 2005, Laurino sent a copy of the report to Douard
and informed Douard that the results were “inconclusive” because although
Roberts’s DNA was not detected, Roberts “could not be ruled out” because the
materials “had degraded.” (ECPO St. ¶28; Resp. to EPCO St. ¶28.)
In September 2005, Bolan collected a buccal swab from Atwell. (ECPO St.

The parties dispute the precise wording of this comment and others from the
State Lab log, but the disputes do not appear to be central to the issues at hand.
5

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¶35; Resp. to EPCO St. ¶35.) The undisputed facts do not indicate whether or
when this buccal swab was received by the State Lab.
E. Atwell’s 2005 statements
In conjunction with his efforts regarding the rape kit, Douard arranged to
interview Atwell. In late 2004, Douard and Ronald Price, an investigator for the
Office of the Public Defender, met with Atwell to discuss the 1996 rape.
(Newark St. ¶70; Resp. to Newark St. ¶70.) Atwell told Douard and Price at this
meeting that she never made a photo identification of her assailant in 1996
and that she did not even know that anyone had ever been arrested in
connection with the assault. (Newark St. ¶71; Resp. to Newark St. ¶71.)
In September 2005, Douard and Price interviewed Atwell again and
prepared a statement memorializing what she had told them at the meeting in
late 2004. (Newark St. ¶72; Resp. to Newark St. ¶72.) Atwell signed the
statement, which asserted that she “told the police officer [she] was not able to
make a positive identification” and that she was “unaware that a suspect had
been indicted for the assault.” (Id.) A crossed-out sentence in the statement
reads: “I was not contacted thereafter and never made a photo identification or
taken to the police station.” (Id.)
At the same meeting, Atwell provided an oral statement that Price
transcribed by hand on the same document as her written statement. (Newark
St. ¶73; Resp. to Newark St. ¶73.) The oral statement provided, in relevant
part: “I did give as [sic] statement to the police but please note that when I was
taken to the police station shortly after the assault, I was shown photos of
possible assailants & could not identify any as my assailant.” (Id.)
F. PCR efforts
In February 2006, Roberts filed a pro se motion for post-conviction relief
and to withdraw his guilty plea. (Newark St. ¶75; Resp. to Newark St. ¶75.) He
argued that Martone, his public defender in 1996, provided ineffective
assistance of counsel by misrepresenting to him that Atwell had made an
identification. (Id.) Judge Codey denied Roberts’s motion, concluding that it
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was time barred. (Newark St. ¶76; Resp. to Newark St. ¶76.)
Roberts’s appealed the denial, and in 2007 the Appellate Division
reversed and remanded the case so that Roberts would be afforded the
assistance of counsel in demonstrating why his motion should not be
considered time barred. (Newark St. ¶77; Resp. to Newark St. ¶77.) On remand,
Assistant Deputy Public Defender Stefan Van Jura was assigned to represent
Roberts. (Newark St. ¶79; Resp. to Newark St. ¶79.) Assistant Prosecutor Clara
Rodriguez represented the government. Following a hearing, Judge Codey again
denied the motion, in part based on his finding that neither Atwell’s 2005
statements nor the 2005 DNA report provided legitimate grounds for relief.
Roberts appealed this second denial. (Newark St. ¶¶82-83; Resp. to Newark St.
¶¶82-83.)
In a 2009 decision, the Appellate Division reversed a second time and
remanded the case for an evidentiary hearing. (Id.) At a hearing before Judge
Codey in 2009, Atwell testified that she did not recognize Roberts, who was
present in the courtroom, and that she did not recall ever making a photo
identification of him or anyone else. (Newark St. ¶85; Resp. to Newark St. ¶85.)
She also said directly to Roberts, “I want to know why did you confess to
something that you didn’t do to me? . . . .” (Newark St. ¶88; Resp. to Newark
St. ¶88.) Judge Codey denied Roberts’s PCR petition following this hearing, and
Roberts appealed a third time. (Newark St. ¶¶97-98; Resp. to Newark St. ¶¶9798.) In a 2013 decision, the Appellate Division again reversed and remanded for
a further evidentiary hearing. (Id.)
Over the course of Roberts’s PCR proceedings, the government attempted
to locate the copy of the photograph of Roberts that Atwell had purportedly
signed in 1996. (Newark St. ¶100; Resp. to Newark St. ¶100.) The photograph
was not located at that time or as a result of subsequent searches conducted
after the present lawsuit was filed. (Id.; Newark St. ¶101; Resp. to Newark St.
¶101.)
In 2013, after the Appellate Division remanded the case a third time,
Rodriguez requested assistance from the Newark police in obtaining the Atwell
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rape kit. (ECPO St. ¶¶39-40; Resp. to EPCO St. ¶¶39-40.) Detective Christine
Witkowski was assigned to assist. Witkowski eventually learned that the tips
from the vaginal swabs in the Atwell rape kit were in a box in one of the
refrigerators in the Newark Lab, which had closed in 2010. (Newark St. ¶¶39,
138; Resp. to Newark St. ¶¶39, 138.) The missing tips from the vaginal swabs
were subsequently obtained and sent to the State Lab, and DNA analysis
indicated that Roberts’s DNA did not match the profile of the specimen on the
swabs. (ECPO St. ¶¶44-45; Resp. to EPCO St. ¶¶44-45.)
In November 2013, Judge Hutchins-Henderson, who had been assigned
to the case after Judge Codey retired, vacated Roberts’s guilty plea and ordered
a new trial. (ECPO St. ¶46; Resp. to EPCO St. ¶46.) ECPO subsequently
dismissed the charges against Roberts, and the State dismissed the civil
commitment petition. (Id.) Roberts was released from custody on March 12,
2014. (ECPO St. ¶47; Resp. to EPCO St. ¶47.)
II.

Procedural history
Roberts commenced this action in September 2015. (DE 1.) He filed an

amended complaint in December 2016, after the court ruled on motions to
dismiss by several of the defendants (DE 64, 92).
In broad terms, the amended complaint alleges that Roberts’s
constitutional and common law rights were violated as a result of actions taken
by the various defendants in connection with the investigation and arrest of
Roberts for Atwell’s kidnapping and rape, as well as in connection with the
handling and testing of the Atwell rape kit in 2005. Roberts seeks
compensatory damages, punitive damages, and other relief. (Compl. ¶42.)
Discovery concluded in 2019. (DE 135, 150.) In May 2022, the ECPO
Defendants, Essex County, and the Newark Defendants filed their respective
motions for summary judgment. (DE 214, 219, 223.) The motions are now fully
briefed and appropriate for adjudication.
III.

Legal standard

Summary judgment is proper if “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” See
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Kreschollek v. S. Stevedoring Co., 223 F.3d 202, 204 (3d Cir. 2000) (quoting
Fed. R. Civ. P. 56(a)). In deciding a motion for summary judgment, a court
must construe all facts and inferences in the light most favorable to the
nonmoving party. Boyle v. County of Allegheny, 139 F.3d 386, 393 (3d Cir.
1998). The moving party bears the burden of establishing that no genuine
issue of material fact remains. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23
(1986). “[W]ith respect to an issue on which the nonmoving party bears the
burden of proof ... the burden on the moving party may be discharged by
‘showing’—that is, pointing out to the district court—that there is an absence
of evidence to support the nonmoving party's case.” Id. at 325.
Once the moving party has met that threshold burden, the nonmoving
party “must do more than simply show that there is some metaphysical doubt
as to material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 586 (1986). The opposing party must present actual evidence that creates
a genuine issue as to a material fact for trial. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986); see also Fed. R. Civ. P. 56(c) (setting forth types of
evidence on which nonmoving party must rely to support its assertion that
genuine issues of material fact exist). “A fact is material if—taken as true—it
would affect the outcome of the case under governing law. And a factual
dispute is genuine if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” M.S. by and through Hall v. Susquehanna
Twp. Sch. Dist., 969 F.3d 120, 125 (3d Cir. 2020) (quotation marks and citation
omitted).
IV.

Discussion: Newark Defendants
I first discuss the summary judgment motions of the Newark Defendants,

regarding claims arising from the alleged actions of Det. Eutsey of the Newark
Police Department.
A. Malicious prosecution
The Newark Defendants move for summary judgment on Counts 1 and
8, which raise claims against Det. Eutsey for malicious prosecution under 42
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U.S.C. § 1983 and state law.
To prevail on a malicious prosecution claim under § 1983, a plaintiff
must establish that (1) the defendant initiated a criminal proceeding; (2) the
criminal proceeding ended in the plaintiff’s 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
a deprivation of liberty consistent with the concept of seizure as a consequence
of a legal proceeding. Zimmerman v. Corbett, 873 F.3d 414, 418 (3d Cir. 2017).
Under New Jersey law, a malicious prosecution claim consists of the first four
of these elements, without the requirement that the plaintiff was deprived of
his or her liberty. Trabal v. Wells Fargo Armored Serv. Corp., 269 F.3d 243, 248
(3d Cir. 2001).
The Newark Defendants first argue that the malicious prosecution claims
must fail because Eutsey had probable cause to initiate a criminal proceeding.
(Newark MSJ 9-21.) They maintain that when Eutsey applied for a warrant to
arrest Roberts, he did so based upon Atwell’s photo identification of Roberts.
That identification supplied him with probable cause to believe that Roberts
was Atwell’s assailant.
“Probable cause to arrest exists when the facts and circumstances within
the arresting officer's knowledge are sufficient in themselves to warrant a
reasonable person to believe that an offense has been or is being committed by
the person to be arrested.” Orsatti v. New Jersey State Police, 71 F.3d 480, 483
(3d Cir. 1995). To demonstrate a lack of probable cause where, as in this case,
the arresting officer applied for and was issued a warrant by a judge, a plaintiff
must show “(1) that the police officer ‘knowingly and deliberately, or with a
reckless disregard for the truth, made false statements or omissions that create
a falsehood in applying for a warrant;’ and (2) that ‘such statements or
omissions are material, or necessary, to the finding of probable cause.’” Wilson
v. Russo, 212 F.3d 781, 786-787 (3d Cir. 2000) (quoting Sherwood v. Mulvihill,
113 F.3d 396, 399 (3d Cir. 1997)).
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According to the Newark Defendants, there is no evidence that Eutsey
knowingly or recklessly made any false material statements or omissions in
applying for a warrant for Roberts’s arrest. That is of course one valid view of
the evidence, but there is another, contrary view. This record presents a triable
factual issue requiring denial of summary judgment on the issue of probable
cause.
Eutsey’s warrant application was based on Atwell’s identification of
Roberts as her assailant, but whether Atwell actually did identify Roberts in
1996 is a disputed issue of fact. Although Atwell signed a statement in 1996
indicating that she positively identified the male who assaulted her after
viewing his picture (1996 Report 11), she subsequently signed a statement in
2005 indicating that she never made such an identification. (Newark St. ¶¶7273.) The record further reveals that in 2007, Van Jura prepared a certification
that Atwell signed confirming the truth of her 2005 statement. (Ex. 85 to DE
225.) Atwell confirmed the truth of her 2005 statement again at her deposition
in 2019 (Atwell Dep. 88:22-91:1).
Of course, an officer may reasonably rely on a witness’s statement of
identification. But there is an issue as to the validity of Atwell’s 1996
statement, which was typed up by Eutsey. Atwell testified at her deposition
that she “just skimmed through” the statement that Eutsey prepared because
her mother was in a rush to leave the police station. (Id. at 53:11-54:18.) She
also testified that she pre-signed the statement indicating that she made a
photo identification before Eutsey had even shown her the mugshots, which, if
true, would be highly suggestive of Eutsey’s knowledge of the statement’s
inaccuracy. (Id. at 47:14-25.) Later at the deposition, Atwell testified that
Eutsey’s report, which states that Atwell cried uncontrollably upon seeing a
suspect’s photo and informed Eutsey that that man was the person who
assaulted her, was false. (Id. at 175:23-176:23.) Atwell testified that she is
“certain” she “didn’t pick out Rodney Roberts’ photo in 1996.” (Id. at 177:3-7.)
As the Newark Defendants point out, there is also considerable evidence
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to suggest that Atwell did identify Roberts as her assailant in 1996.
Recantations are notoriously unreliable, and Atwell’s memory was less than
consistent or complete. At various points during her deposition, she also
testified that she was not sure whether she made any photo identification in
1996 and that she “just do[es]n’t recall” whether she did or did not. (Id. at
190:12-191:24; 194:3-8.; 195:4-5.) She also testified that part of her 2005
statement, which suggests that she did not identify anyone as her assailant in
1996, was not truthful. (Id. at 207:5-8.)
Viewing this evidence in its entirety, and construing it in the light most
favorable to Roberts, I conclude that a reasonable jury could find either way:
i.e., that Atwell did or did not identify Roberts from his photo in 1996. While it
is obviously very possible, as Eutsey says, to dispute Atwell’s credibility, the
court may not make any credibility determinations or engage in any weighing
of the evidence when ruling on a motion for summary judgment. See Montone
v. City of Jersey City, 709 F.3d 181, 191 (3d Cir. 2013) (citation omitted).
Whether Atwell made an identification in 1996 is an issue for the jury, as
factfinder, to decide.
Because there is sufficient evidence in the record for a jury to find that
Eutsey made a false statement when applying for a warrant for Roberts’s
arrest, the next questions are (a) whether any such statement was made
knowingly or recklessly, and (b) whether it was material. See Wilson, 212 F.3d
at 786-787. “An assertion is made with reckless disregard when ‘viewing all the
evidence, the affiant must have entertained serious doubts as to the truth of
his statements or had obvious reasons to doubt the accuracy of the
information he reported.’” Id. at 788 (quoting United States v. Clapp, 46 F.3d
795, 801 n.6. (8th Cir. 1995)). A false assertion made in an application for a
warrant is material if, upon removing the false assertions, the application
would no longer establish probable cause. Wilson, supra at 789.
Assuming Atwell did not identify Roberts as her assailant in 1996, then
Eutsey surely knew or recklessly “must have entertained serious doubts” as to
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the truth of his statements in his report that she did make such an
identification. See Wilson, 212 F.3d at 788.
Furthermore, the statements were undoubtedly material, because
without the purported photo identification, there was very little linking Roberts
to the crime. The Newark Defendants point out that Roberts had previously
committed a sexual assault and was not incarcerated at the time of Atwell’s
attack. (Newark MSJ 19.) Those facts alone do not approach a showing of
probable cause. Without the photo identification, no probable cause to arrest
Roberts for Atwell’s rape existed. A reasonable jury could therefore find (taking,
as I must, the plaintiff-favorable view that the statements were false) that
Eutsey initiated proceedings against Roberts without probable cause.6
The Newark Defendants next argue that Eutsey is entitled to summary
judgment on the malicious prosecution claims because there is no evidence
that he acted with malice. (Newark MSJ 22-23.) In the context of a malicious
prosecution claim, malice is a term of art, which includes “lack of belief by the
actor himself in the propriety of the prosecution.” Lee v. Mihalich, 847 F.2d 66,
70 (3d Cir. 1988). “The element of malice may be inferred from lack of probable
cause.” Morales v. Busbee, 972 F. Supp. 254, 261 (D.N.J. 1997). “As a result,

Roberts argues that there is also sufficient evidence for a jury to find that
Eutsey made material omissions when applying for a warrant. Roberts asserts, in the
alternative, that if Atwell did in fact identify Roberts from his photo, Eutsey failed to
disclose to the judge issuing the warrant that the photo of Roberts that Atwell selected
was 10 years old. An omission made in an application for a warrant is material if, after
inserting the facts recklessly omitted, the affidavit would no longer established
probable cause. Wilson, 212 F.3d at 789. Here, even if it were disclosed that the photo
was 10 years old, that circumstance would at best go to the weight of the evidence; if
Atwell identified her assailant as the person in the photo, that would ordinarily be
sufficient to establish probable cause. Without further evidence that Roberts’s
appearance had so changed that the photo was misleading, Roberts would not have a
malicious prosecution claim based on this omission alone. Cf. Onuekwusi v. Graham,
No. 20-cv-02965, 2021 WL 1085523, at *7 (D.N.J. Mar. 22, 2021) (plaintiff stated a
malicious prosecution claim where defendant police officers showed robbery victims a
photo of plaintiff that depicted him 70 pounds lighter and 15 years younger and falsely
told witnesses that he was associated with the phone number used by the
perpetrator). At any rate, given my resolution of the main claim, this alternative theory
is not critical to my ruling here.
6

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fact issues precluding a finding on probable cause will generally also preclude
a finding on malice.” Sanders v. Jersey City, 2021 WL 1589464, Civ. No. 1801057, at *21 (D.N.J. Apr. 23, 2021).
Here, because a reasonable jury could find that Eutsey acted without
probable cause in pursuing a warrant for Roberts’s arrest, a jury could also
find that the element of malice is met. If Atwell never identified Roberts as her
assailant, then it is likely that Eutsey himself did not believe there was a basis
to initiate criminal proceedings against Roberts. Thus, there is a genuine
factual dispute as to whether Eutsey acted with malice.
Finally, the Newark Defendants argue that Roberts cannot succeed on
the malicious prosecution claim under § 1983 because he cannot prove that he
suffered a deprivation of liberty. (Newark MSJ 21-22.) To satisfy the deprivation
of liberty prong for a malicious prosecution claim, a plaintiff must show that he
was “seized” within the meaning of the Fourth Amendment. Liberty Bell Temple
III v. Trenton City Police Dep't, No. 316CV1339PGSLHG, 2019 WL 4750836, at
*20 (D.N.J. Sept. 30, 2019) (vacated on other grounds). Time spent in jail is the
quintessential deprivation of liberty. See id. at 21.
The Newark Defendants point out that when Roberts was charged in the
Atwell case, he was already in jail for a theft offense. The Newark Defendants
also note that Roberts was eventually sentenced to and did serve three years on
that offense. Thus, they argue that Roberts did not suffer a deprivation of
liberty solely because of the Atwell prosecution.
Here, the Newark Defendants cite Curry v. Yachera, 835 F.3d 373 (3d
Cir. 2016). In that case, the Third Circuit affirmed a district court’s grant of
summary judgment on the plaintiff’s malicious prosecution claim because the
plaintiff could not show that he had suffered a deprivation of liberty due to the
specific charges at issue. Id. at 380. When those charges were brought, the
plaintiff was already incarcerated for a separate and unrelated offense. Id.
When the relevant charges were dropped, the plaintiff was still in jail because
of the unrelated offense. Id. The Third Circuit thus concluded that the
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plaintiff’s liberty was not denied as a consequence of the alleged improper
charges. Id. Any possible deprivation was entirely subsumed by the sentence
the plaintiff was already serving.
While the Newark Defendants may well be correct that Roberts was
seized and taken into custody on the theft charges before he could be
apprehended on the Atwell charges, the facts here are distinguishable from
Curry because the theft sentence expired while Roberts was in custody, so the
remainder of the time he served was pursuant to the kidnapping conviction
alone. Roberts was arrested on the theft charges, pled guilty to those charges
on June 12, 1996, and was sentenced to three years’ imprisonment. (Newark
St. ¶ 42) While still incarcerated, he pled guilty to the Atwell kidnapping and
was sentenced to seven years’ imprisonment. The two sentences ran
concurrently, but the kidnapping sentence was far longer than the theft
sentence; the sentence on the theft charges expired while the seven-year
kidnapping sentence still had four years left to run.7 (Id.) Unlike the plaintiff in
Curry, then, Roberts was sentenced to serve four additional years in custody
solely as a consequence of the charges alleged to have been maliciously
brought. And thereafter, he spent 10 years in civil confinement as a sexually
violent predator, based solely on the Atwell conviction.
In sum, while the Newark Defendants are correct that part of the time
Roberts spent in custody—roughly, the initial three years—was not solely due
to the Atwell charges, that does not defeat Roberts’s § 1983 malicious
prosecution claim. I will therefore deny the motion for summary judgment with
respect to Counts 1 and 8.
B. Fabrication of evidence
The Newark Defendants also move for summary judgment on Roberts’s
fabrication-of-evidence claims against Det. Eutsey, asserted in Counts 2 and
10 under § 1983 and state law. The Third Circuit has held that a police officer
may be liable for fabrication where the officer provides false or misleading
7

For simplicity, I ignore the effect of parole.

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information that is thereafter used in a prosecution. See Halsey v. Pfeiffer, 750
F.3d 273, 294 (3d Cir. 2014). New Jersey courts have also recognized that the
use of fabricated evidence to secure a conviction violates state due process
protections. See State v. Patton, 362 N.J. Super. 16, 18 (2003). (For a fuller
discussion, see Part V.A, infra.)
Roberts’s fabrication claim is based on essentially the same conduct as
the malicious prosecution claims: Eutsey’s allegedly false statement in his
1996 report that Atwell identified Roberts as her assailant. The Newark
Defendants here repeat their contention that there is no evidence showing that
Eutsey fabricated Atwell’s 1996 photo identification. (Newark MSJ 9-14.) I have
already found that this contention presents issues of fact that bar summary
judgment.
I therefore turn to the Newark Defendants’ second contention, which is
that Roberts is estopped from claiming that the identification was fabricated.
The defendants maintain that Roberts made a fabrication claim in his PCR
proceedings and that Judge Codey rejected it. According to the Newark
Defendants, Roberts is collaterally estopped from relitigating that factual issue.
(Id. 23-25.)
Under the doctrine of collateral estoppel, “once an issue is actually and
necessarily determined by a court of competent jurisdiction, that determination
is conclusive in subsequent suits based on a different cause of action involving
a party to the prior litigation.” Montana v. United States, 440 U.S. 147, 153
(1979). Federal law requires that a federal court give state court decisions the
same preclusive effect they would be given in courts of the state that rendered
the decision. Delaware River Port Auth. v. Fraternal Ord. of Police, 290 F.3d 567,
573 (3d Cir. 2002). Hence, it is New Jersey’s collateral estoppel doctrine that
governs the analysis here.
“New Jersey courts apply a five-pronged test to determine whether
collateral estoppel should bar relitigation of an issue: (1) the issue must be
identical; (2) the issue must have actually been litigated in a prior proceeding;
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(3) the prior court must have issued a final judgment on the merits; (4) the
determination of the issue must have been essential to the prior judgment; and
(5) the party against whom collateral estoppel is asserted must have been a
party or in privity with a party to the earlier proceeding.” Delaware River, 290
F.3d at 573 (citing In re Estate of Dawson, 641 A.2d 1026, 1034–35 (N.J.
1994)). “For purposes of issue preclusion ..., ‘final judgment’ includes any prior
adjudication of an issue in another action that is determined to be sufficiently
firm to be accorded conclusive effect.” Woodrick v. Jack J. Burke Real Est., Inc.,
703 A.2d 306, 316 (App. Div. 1997) (quoting Restatement (Second) of
Judgements § 13 (1982)).
Although Judge Codey found in his 2007 decision that Atwell’s
September 2005 statement was “inherently suspect and untrustworthy,” the
Appellate Division reversed Judge Codey’s decision on grounds that are
pertinent here. The Appellate Division held that Judge Codey committed error
by making credibility findings as to Atwell’s statement based upon papers
alone, rather than conducting a plenary hearing. (2009 App. Div. at 9-16.) It
therefore vacated and remanded the case, instructing Judge Codey to conduct
an evidentiary hearing consistent with its opinion.
Judge Codey conducted such a hearing in 2009 and issued a decision in
2010 which again denied Roberts’s PCR motion. (2013 App. Div. at 11.) In this
written decision, Judge Codey again found Atwell’s 2005 statement to be false.
(Id.) Again, however, the Appellate Division reversed; it held that counsel had
been ineffective, which led to several deficiencies at the hearing, and in light of
these deficiencies, it could not defer to Judge Codey’s credibility findings. (Id.)
Accordingly, Judge Codey’s determination of the fabrication issue in both
the 2007 and 2010 decisions was rendered non-final by the Appellate Division
reversals. See McLendon v. Cont'l Grp., Inc., 660 F. Supp. 1553, 1562 (D.N.J.
1987) (noting that where an appellate court reverses a lower court, the
appellate decision “is the operative ‘judgment’ for preclusion purposes”).
Because the resolution of this factual issue was neither final nor essential to a
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final judgment, Roberts is not estopped from litigating this issue here.
C. Mishandling of exculpatory evidence (photo)
The Newark Defendants next argue that they are entitled to summary
judgment on Roberts’s § 1983 and state law claims against Det. Eutsey, to the
extent they are based on the failure to preserve the photo of Roberts that was
allegedly shown to Atwell when she made her photo identification in 1996.
Roberts asserts that the photograph was taken 10 years before that, when he
was 19 years old, and that it therefore did not accurately reflect his appearance
at the time of the Atwell rape/kidnapping, when he was 29. According to
Roberts, if Atwell did identify her assailant from the photograph, and if the
photograph did not resemble Roberts’s current appearance, it could have been
used to undermine the photo identification and thereby exonerate him.
However, the photograph could not be located, despite substantial efforts
during the course of Roberts’s post-conviction proceedings (Newark St. ¶79)
Roberts’s claims relating to Eutsey’s handling of the missing photo
underly Counts 3, 12, 4, and 11. The summary judgment motion argues these
matters in connection with Counts 3 and 12, without reference to Counts 4
and 11. Roberts responds that Counts 3 and 12 are withdrawn as against
Eutsey, but says nothing about Counts 4 and 11. (Opp. to Newark MSJ 1.) His
brief refers to the missing photo in connection with other claims, but does not
appear to argue failure to preserve the photo as a distinct claim for relief. This
makes a certain amount of sense, as Roberts’s main contention is that the
Atwell photo identification of him never occurred at all.8 To remove doubt,
however, I briefly discuss Det. Eutsey’s alleged failure to preserve the
photograph of Roberts that Atwell purportedly identified in 1996. (DE 96
¶¶186-189.)
The Supreme Court’s decision in Arizona v. Youngblood establishes the
Defendants also purport to move for summary judgment on Count 13
(negligence), but the allegations of that Count relate only to the DNA evidence. The
opening brief contains no substantive discussion of Count 13, although the
responding brief does. I do not address it.
8

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standard for determining whether law enforcement officials have infringed a
defendant’s due process rights by failing to preserve evidentiary materials that
might have exonerated the defendant. 488 U.S. 51. “The Youngblood Court held
that ‘unless a criminal defendant can show bad faith on the part of the police,
failure to preserve potentially useful evidence does not constitute a denial of
due process of law.’” Yarris v. County of Delaware, 465 F.3d 129, 142 (3d Cir.
2006) (quoting Youngblood, supra at 58). To establish bad faith, the defendant
must show that the police knew of the exculpatory value of the evidence at the
time it was destroyed. Id.
In Yarris, the Third Circuit extended Youngblood, a pre-conviction case,
to encompass post-conviction failures to preserve exculpatory evidence. Id. The
Court of Appeals reasoned that “the Youngblood decision did not indicate that
it was limited to its temporal context, as it sought to govern applicability of the
Due Process Clause in ‘what might loosely be called the area of constitutionally
guaranteed access to evidence’ and resolve the violation it described broadly as
‘the failure of the State to preserve evidentiary material.’” Id. Accordingly, the
Youngblood test could apply to Eutsey’s alleged failure to preserve the
photograph. Whether it occurred before or after Roberts’s conviction, it
allegedly had the effect of obstructing Roberts’s quest for post-conviction relief.
Eutsey argues that Roberts cannot succeed on a due process
mishandling-of-evidence claim for several reasons. While rejecting two
threshold contentions,9 I find that Eutsey’s substantive position has merit.

First, Eutsey contends that because Roberts had no trial, he cannot have any
claim based on non-preservation of evidence. (Newark MSJ 27.) Nothing in the
Youngblood decision so holds. Roberts’s claim is not that he was denied a fair trial;
rather, his claim is that he was denied the ability to use the potentially exculpatory
photograph in his post-conviction proceedings.
9

Second, Eutsey argues that Roberts is estopped from bringing this claim
because he “could have raised the issue of suggestiveness [of the photograph] during
his post-conviction relief proceedings,” but failed to do so. (Newark MSJ 28.) The point
of Roberts’s claim, though, is that without the photograph, he could not make out a
claim of “suggestiveness” (or the contrary) and thus exonerate himself. I therefore
reject Eutsey’s estoppel argument.

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Primarily, Eutsey argues that there is no evidence that he was culpably
involved in the disappearance of the photograph. According to the defendants,
Eutsey submitted the photograph to the Newark police property room in 1996
and had no access to the photograph thereafter. (Newark MSJ 28.) Roberts
demurs; Eutsey, he says, never actually submitted the photograph to the
property room in the first place. (Resp. to Newark St. ¶26.) But Roberts has
failed to point to any evidence sufficient to raise a jury issue on this factual
point. There is no deposition testimony or affidavit regarding the manner in
which the evidence was mislaid. The Newark Defendants have produced a
“Property and Evidence Receipt” (the “Receipt”), regular on its face, indicating
that it was attached to a sealed envelope containing the photograph and that
the photograph was logged in. Roberts notes that the Receipt mistakenly states
that the photograph is of a male identified as the perpetrator of an assault
upon a 15-year-old female, whereas Atwell was 17 years old at the time. (Resp.
to Newark St. ¶26.) That mistake, according to Roberts, suggests that no one
took care to ensure that the photograph was actually logged in. I conclude that
a mistake on the Receipt regarding the age of the victim is too slim a basis for a
jury finding that Eutsey, in bad faith, withheld or destroyed the photo.
Finally, there is no independent evidence that the photo could or would
have been exculpatory. Atwell’s photo identification would be undermined only
if there was a showing that the photo did not reasonably reflect Roberts’s
appearance in 1996. Of course that is conceivable. But there was no
evidentiary showing that his appearance had changed so substantially between
the ages of 19 and 29 as to undermine the accuracy of the photo identification,
assuming it occurred.
As I say, it appears that Roberts is not pressing these claims. I consider
these arguments in an excess of caution, however, and grant summary
judgment on Counts 4 and 11, but only insofar as they assert Youngblood-style
federal or state law claims against Eutsey (or, derivatively, against the City of
Newark) based on the failure to preserve the photos. I note that Counts 3 and
12 have been withdrawn by Roberts as against Eutsey.
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D. Qualified immunity
As a separate ground for summary judgment, the Newark Defendants
argue that Eutsey is entitled to qualified immunity on all of the federal and
state law claims raised against him. (Newark MSJ 28-31.)
I begin with immunity under § 1983. “To overcome qualified immunity, a
plaintiff must plead facts sufficient to show that: (1) the official violated a
statutory or constitutional right; and (2) the right at issue was ‘clearly
established’ at the time of defendant's alleged misconduct.” Faragalla v. Jersey
City, No. 2:17-CV-03604-KM-MAH, 2020 WL 5812798, at *7 (D.N.J. Sept. 30,
2020) (citation omitted). Having already determined that there is sufficient
evidence for a reasonable jury to find that Eutsey committed the constitutional
violations of fabricating evidence or maliciously prosecuting Roberts, I consider
only whether these rights were “clearly established” at the time Eutsey acted.
“A Government official's conduct violates clearly established law when, at the
time of the challenged conduct, ‘[t]he contours of [a] right [are] sufficiently
clear’ that every ‘reasonable official would [have understood] that what he is
doing violates that right.’” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)
(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). While a case directly
on point is not required, “existing precedent must have placed the statutory or
constitutional question beyond debate.” Ashcroft, supra.
Beginning with fabrication of evidence, the Third Circuit held in 1985
that “any reasonable state actor” would know that “by fabricating evidence for
use in a criminal prosecution, [the] state actor would violate a defendant’s
constitutional rights . . . .” Halsey, 750 F.3d at 295. Thus, as early as 1985,
and certainly in 1996 when Eutsey applied for a warrant based on the allegedly
fabricated identification of Roberts by Atwell, the right to be free from a
prosecution based on fabricated evidence was “clearly established.”
As for malicious prosecution, in Gallo v. City of Philadelphia, the Third
Circuit held that government actors were not immune from malicious
prosecution claims based on conduct that occurred in 1994. 161 F.3d 217, 220
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(3d Cir. 1998), as amended (Dec. 7, 1998). The Gallo decision noted that
malicious prosecution had been recognized as a constitutional tort before1994.
Id. It follows that the federal constitutional right to be free from a malicious
prosecution was “clearly established” in 1996, when the events in this action
occurred. Eutsey therefore does not enjoy qualified immunity with respect to
the § 1983 constitutional claims.
As to the state law claims, the New Jersey Tort Claims Act (TCA)
immunizes public employees from liability for actions taken “in good faith in
the execution or enforcement of any law.” See N.J. Stat. Ann. 59:3-3. In order
to benefit from this immunity, “a public employee must demonstrate either that
he acted with objective reasonableness or establish that he acted with
subjective good faith.” Villari v. Twp. of Wall, No. CIV. A. 06-0004 FLW, 2009
WL 2998135, at *14 (D.N.J. Sept. 15, 2009). See Marley v. Borough of Palmyra,
473 A.2d 554, 566 (Law. Div. 1983) (“[a]n employee claiming immunity under
N.J.S.A. 59:3–3 must prove “good faith”) (abrogated on other grounds). The
Newark Defendants have not met this burden, and they incorrectly argue in
their brief that it is Roberts’s burden to prove that Eutsey did not act in good
faith. (Newark MSJ 31.) Eutsey is therefore not entitled to summary judgment
on the state law claims on grounds of qualified immunity either.
E. Monell claims against City of Newark
i. Procedural due process
Count 5 asserts a claim against the City of Newark for violating Roberts’s
procedural due process rights by maintaining an inadequate evidence
management system that prevented Roberts from accessing key components of
the Atwell rape kit for many years. (Compl. ¶¶191-194.) This claim is raised
pursuant to Monell v. Dep’t of Soc. Servs. of City of New York, in which the
Supreme Court held that a municipality may be held directly liable under
§ 1983 for a constitutional injury caused by an official policy or custom of the
municipality. 436 U.S. 658, 694 (1978). The Newark Defendants argue that
Roberts cannot succeed in proving Monell liability because there is no evidence
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of a pattern of evidence mismanagement within the Newark Police Department.
(Newark MSJ 38.) They also argue that the claim fails because there is no
evidence of bad faith conduct and they are entitled to qualified immunity under
§ 1983.
As stated, Monell liability may attach on the basis of an official policy or
custom. As to policy, a municipality is liable where “the action that is alleged to
be unconstitutional implements or executes a policy statement, ordinance,
regulation, or decision officially adopted and promulgated by that body's
officers.” Monell, 436 U.S. at 690. “As to custom, municipalities may be sued
for ‘constitutional deprivations visited pursuant to governmental ‘custom’ even
though such a custom has not received formal approval through the body's
official decision[-]making channels.’” Costantino v. City of Atl. City, 152 F.
Supp. 3d 311, 319 (D.N.J. 2015) (quoting Monell, supra). “Liability based on a
custom rather than a formal adopted policy proceeds on the theory that the
relevant practice is so widespread as to have the force of law.” Costantino,
supra.
The record suggests that during the time the Atwell rape kit was tested,
the Newark Lab maintained an internal policy and practice of removing
materials that tested positive for bodily fluid stains and storing them separately
from the rest of the kit. Joseph Groller, the forensic chemist who examined the
Atwell rape kit in 1996, testified at his deposition in 2019 about this practice.
(Groller Dep. 154:9-159:3). He explained that when he tested an item from a
sex crimes kit and received a “positive result,” he would withdraw it from the
kit, repackage it in a smaller envelope, and place that envelope in one of the
refrigerators in the lab. (Id.) Groller stated that he did this “generally for all the
rape kits that [he] tested” (id.), and that he was advised to do this by his
superiors. (Id. at 190:1-16.) Groller further explained that after a kit was
analyzed, and the positive material, if any, was removed and placed in a
refrigerator, the remainder of the kit was picked up from the lab by Newark
police personnel and stored in a separate location. (Id. at 95:9-96:16.)
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The record further suggests that officials outside of the Newark Lab were
not made aware of this practice of storing material that tested positive for
bodily fluid separately from the rest of the rape kit. Rodriguez, who was
supervisor of the ECPO Sex Crimes Unit at one point and regularly
communicated with detectives of the Newark Police Department regarding
locating evidence, testified that prior to 2013, even she never knew that the Lab
kept this material separate from the rape kits it tested. (Rod. Dep. II 316:13317:24.) There is also evidence that Laurino was made aware in 2005 that the
Atwell rape kit submitted to the State Lab was missing the vaginal swabs, and
that Laurino communicated with Newark police about the missing swabs,
which nevertheless were not located at that time. The State Lab communication
log indicates that Laurino told a State Lab employee that he would “look into”
the missing swabs and get back to him. (Newark St. ¶122.) Several weeks later,
Laurino told the employee that “everything that Newark P.D. had was sent to
the lab.” (Newark St. ¶124.) One could reasonably infer from these
communications that Laurino and perhaps even the Newark police to whom he
spoke were unaware that the positive-test materials were stored separately.
Based on this evidence, a reasonable jury could find that a practice
existed in the Newark Police Department of storing positive-test swabs from a
rape kit in a separate location from the rest of the kit, but without making that
policy generally known, defeating much of its purpose. Moreover, a jury could
conclude that this flawed policy obstructed Roberts’s access to exculpatory DNA
evidence, thus amounting to a procedural due process violation. See Newton v.
City of New York, 779 F.3d 140, 155 (2d Cir. 2015) (city’s poor administration
of its evidence management system amounted to due process violation where it
prevented plaintiff from accessing exculpatory DNA evidence for over a decade).
See Part V.B, infra (concluding that Roberts had a protected liberty interest in
demonstrating his innocence with newly discovered evidence).
The Newark Defendants cite the Third Circuit’s decision in Yarris in
support of their argument that unless a criminal defendant can show bad faith
on the part of the police, failure to preserve potentially useful evidence does not
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constitute a denial of due process. (Newark MSJ 34.) Roberts’s procedural due
process claim is not based on the failure to preserve the Atwell rape kit,
however. The critical component of the rape kit was preserved, but it was
stored in such a manner that it could not be located for many years. A failureto-preserve claim under Youngblood requires a showing of bad faith, but a
procedural due process claim based on evidence mismanagement does not. As
the Second Circuit recognized in Newton, the concerns that led the Supreme
Court to require a bad faith showing with respect to claims based on the failure
to preserve potentially exculpatory evidence, now irretrievably destroyed, are
not present when it comes to a claim that an inadequate evidence management
system deprived an individual of access to existing evidence that eventually
exonerated him. Newton 779 F.3d at 157-158. Any reasonable system for
“preserving” evidence must be set up so that the preserved evidence can be
located and recovered.
Finally, the City of Newark is not entitled to qualified immunity with
respect to the procedural due process claim, as qualified immunity under
§ 1983 is available only to individual government actors, not to government
entities. Harper v. Cnty. of Delaware, 779 F. App'x 143, 147 (3d Cir. 2019). I
will therefore deny the motion for summary judgment on Count 5 as to the City
of Newark.10
ii. Vicarious tort liability
Count 14 alleges a state law vicarious liability claim against the City of
Newark for any non-intentional torts committed by Eutsey and the Newark
Police Department personnel who handled Roberts’s criminal file and the rape
The Newark Defendants have attached to their reply brief a set of guidelines
from the Attorney General on the retention of evidence in criminal cases that was
published in 2010. From this, they infer that there was no requirement that the City
preserve the DNA evidence in the Atwell case prior to 2010. (Newark Repl. 28-29.) In
response, Roberts submitted a letter to the court indicating that the guidelines were
not produced in discovery, despite Roberts’s request for all documents pertaining to
the handling and storing of sex crimes evidence. I will not consider on this motion
evidence not produced in discovery and attached to a reply brief. Its potential
admissibility at trial I leave for another day.
10

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kit. (Compl. ¶¶245-247.)11 The Newark Defendants move for summary
judgment on this count on the ground that the City is entitled to good faith
immunity under the TCA.
Pursuant to the TCA, “[a] public entity is not liable for an injury resulting
from an act or omission of a public employee where the employee is not liable.”
N.J. Stat. Ann. § 59:2-2(b). As noted above, the TCA grants immunity to a
public employee for actions taken “in good faith in the execution or
enforcement of any law.” See N.J. Stat. Ann. 59:3-3.
Here, the Newark Defendants have not demonstrated that Eutsey or any
other Newark personnel upon whose conduct the vicarious liability claim rests
are themselves entitled to good faith immunity. Because the burden is theirs to
establish such an entitlement, this argument fails. See Part IV.D, supra.
V.

Discussion: ECPO Defendants and Essex County

I discuss here the motions relating to the acts of the ECPO Defendants,
i.e., the summary judgment motions of Assistant Prosecutor Laurino and
Investigator Bolan, as well as the related motions of Essex County and ECPO,
which are directed at their derivative liability for the acts of Laurino and Bolan.
A. Fabrication of evidence
The ECPO Defendants move for summary judgment on Counts 2 and 10,
which assert claims of fabrication of evidence under 42 U.S.C. § 1983 and state
law against Laurino and Bolan. As discussed in Part IV.b, supra, both the
Third Circuit and New Jersey courts have recognized that a defendant may
have a stand-alone due process claim where fabricated evidence was used to
secure the defendant’s conviction. See Halsey, 750 F.3d at 294; Patton, 362
N.J. at 18.
The Third Circuit has cautioned that, under federal law, evidence “that is
While the City of Newark argues that it is entitled to immunity from vicarious
liability as to any intentional tort claims under state law, the point is moot. Roberts
clarified in his responsive brief that he is not asserting such intentional tort claims
against the City. (Opp. to Newark MSJ 70, n.27.)
11

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incorrect or simply disputed should not be treated as fabricated merely
because it turns out to have been wrong.” Halsey, 750 F.3d at 295. Rather, for
a fabricated-evidence claim to succeed, “[t]here must be ‘persuasive evidence
supporting a conclusion that the proponents of the evidence’ are aware that the
evidence is incorrect or that the evidence is offered in bad faith.” Black v.
Montgomery Cnty., 835 F.3d 358, 372 (3d Cir. 2016), as amended (Sept. 16,
2016) (quoting Halsey, supra). New Jersey courts have not indicated that any
less culpable mental state will support a fabrication of evidence claim under
New Jersey law. See Patton, 362 N.J. at 49 (holding that “the use of policefabricated evidence to induce a confession that is then used at trial to support
the voluntariness of a confession is per se a violation of due process”).
The complaint alleges that Laurino and Bolan falsified evidence against
Roberts by telling Assistant Prosecutor Rodriguez that Atwell’s complete rape
kit was tested in 2005 and that the results of the testing were inconclusive.
(Compl. ¶ 168.) According to Roberts, Rodriguez relied upon these
misrepresentations when she prosecuted the PCR proceedings in 2007. (Opp.
to ECPO MSJ 9, 12.) Rodriguez wrote in her 2007 PCR brief that Atwell’s DNA
sample was sent to the State Lab, and that the lab also tested the Atwell rape
kit, but the analysis did not provide conclusive results (Rod. PCR Br. 3, 12).
These statements were literally true, but substantively misleading. The kit that
was tested was missing the vaginal swab tips, i.e., the very portions which
would contain the seminal stains and thus the male assailant’s DNA.12
The ECPO Defendants argue that summary judgment is appropriate on
the fabrication claims as to them. Even assuming arguendo that misconduct
occurred at the police level, they say, the record is devoid of any evidence that
either Laurino or Bolan misrepresented to Rodriguez that the rape kit tested in
Roberts maintains that these statements were also false because Atwell’s own
buccal swab had not been submitted to the State Lab, so there was no way to confirm
that female DNA in the rape kit was hers. The whole premise of Roberts’s motion,
however, is that the Atwell rape kit did not contain his DNA, which is not disputed at
this point. To find that this was not Atwell’s rape kit would only undermine Roberts’s
contentions.
12

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2005 was complete. (ECPO MSJ 19-20.) Roberts argues in response that there
is sufficient evidence for a jury to find that both Laurino and Bolan spoke with
Rodriguez about Atwell’s rape kit at some point prior to the 2007 PCR
proceedings, and that neither informed Rodriguez that portions of the rape kit
were not submitted for testing.
To begin with, the record is clear that Rodriguez was in the dark about
the fact that portions of the rape kit were missing from the sample that was
tested by the State Lab in 2005. Rodriguez testified at a 2019 deposition that
she did not know in 2007 that the vaginal swab tips were stored separately
from the rest of the kit. (Rod. Dep. 117:2-118:2.) Rather, at that time she
believed that the entire kit was tested and that the inconclusive results were
due to the fact that the material had degraded. (Rod. Dep. 123:13-124:25.)
Rodriguez further testified that she never knowingly misrepresented any facts
to Judge Codey in 2007. (Rod. Dep. 67:14-17.) The question thus becomes
whether Rodriguez’s misrepresentations regarding what was tested can be
attributed to knowingly false statements or omissions by Bolan or Laurino.
As for Bolan, Rodriguez testified that, although she does not recall
having a conversation with Bolan about Atwell’s rape kit, she would have
spoken to Bolan “[i]f she was part of this case.” (Rod. Dep. 95:10-11.).
Rodriguez testified that she does recall speaking with Bolan about a request
Atwell made for a paternity test in 2005, and the evidence suggests that this
request occurred at the time when Bolan met with Atwell to collect a buccal
swab from her. (Id. at 95:16-23; ECPO St. ¶35.) Bolan testified at her
deposition, however, that she does not believe she ever told Rodriguez that the
buccal samples she had collected from Atwell were not submitted to the State
Lab for testing in 2005. (Bolan Dep. 130:15-19). As to the more critical issue of
the missing swab tips, there is nothing in the record of the interactions
between Bolan and Rodriguez.
With respect to Laurino, there is a bit more. Both Laurino and Rodriguez
testified at their depositions that they spoke frequently with one another about
DNA cases. Rodriguez testified that given their working relationship she “must
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have spoken with [Laurino] at some point” about the Roberts matter. (Rod.
Dep. 123:6-9, 127:1-3; Laur. Dep. 99:4-12). Rodriguez did not recall Laurino
ever telling her that the rape kit submitted for testing was not complete. She
also did not recall Laurino ever relaying to her that the State Lab had reached
out to him regarding the completeness, or not, of the materials it had received.
(Rod. Dep. 131:18-25, 132:18-22, 133:11-15.)
Viewing this evidence in the light most favorable to Roberts, a reasonable
jury could find that Laurino and Bolan had conversations of some kind with
Rodriguez about the Roberts matter and the DNA testing that was done.
Absent, however, is any evidence from which a jury could reasonably conclude
that Laurino or Bolan ever told Rodriguez that Atwell’s complete rape kit was
tested, which would have been false.
Perhaps recognizing this, Roberts argues that Laurino and Bolan are
liable for fabrication of evidence based on omissions—i.e., that they failed to tell
Rodriguez that the rape kit that was tested was incomplete.
Roberts cites a string of cases for the proposition that a fabrication-ofevidence claim can be based upon a government actor’s omission of material
information. (Opp. to ECPO MSJ 5-6.) Several of the cited cases do not stand
for such a proposition, however. In Halsey, police officers fabricated the
plaintiff’s confession to a crime. 750 F.3d 273, 278. The Third Circuit noted
that there were “omission[s] of critical facts” in the purported confession, but
these omissions were relevant only in the sense that they demonstrated that
the confession had been fabricated, because it was ultimately “inconsistent
with . . . significant facts” about the crime that eventually emerged. Id. at 284.
The omissions themselves were not treated as material.
Similarly, in Dennis v. City of Philadelphia, the plaintiff asserted both a
fabrication claim and a deliberate deception claim, and it was only the latter
that was based upon the defendant police officers’ concealment of physical
evidence and failure to correct a witness’s mistaken testimony about that
physical evidence, which in a sense could be considered an omission. 379
F.Supp.3d 420, 425 (E.D. Pa. 2019). The fabrication claim was based upon an
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officer’s false testimony at trial, not on that arguable omission. Id. Finally, Siehl
v. City of Johnstown concerned fabricated results in forensic reports with no
omissions of material information alleged. 365 F. Supp. 3d 587, 601-602 (W.D.
Pa. 2019).
Two of the cases Roberts cites do suggest that a fabrication claim can be
based upon a material omission, but the facts in those cases are readily
distinguishable. In Jaslar v. Zavada, police officers “made false statements and
omitted pertinent facts in their probable cause affidavit,” which was the basis
for the arrest and filing of charges against the plaintiff. No. 3:CV-05-2080,
2009 WL 82553, at *1 (M.D. Pa. Jan. 12, 2009). And in Morse v. Fusto, the
defendants created a spreadsheet that misleadingly omitted certain
information, and the spreadsheet was presented to a grand jury and used to
indict the plaintiff. 804 F.3d 538, 542-543 (2d Cir. 2015). In both cases, the
omissions were made in the context of a piece of evidence that, as a whole, was
deemed to be fabricated in part due to the omitted information. That evidence
was presented to a judge or grand jury, and the defendants were unmistakably
the source of it.
Here, by contrast, there is nothing from which a reasonable jury could
conclude that either Laurino or Bolan was the source of the misleading
evidence that Rodriguez presented at the PCR proceedings. At most, the record
generally shows that Rodriguez might have spoken with each of them about the
case at some point. It does not show that Laurino or Bolan participated in the
PCR litigation, even as sources of information, or that that they directly or
indirectly made any representations to the PCR court. Nor is there any evidence
that Rodriguez relied on the accuracy or completeness of her conversations
with Laurino or Bolan in prosecuting the PCR proceedings. Put differently, the
only relevant evidence is that Rodriguez relied on the State Lab report, which
itself did not indicate that there was anything missing from the rape kit. While
Rodriguez mentioned the State Lab report during oral argument on the PCR
petition, it does not appear that she ever referenced her conversations with
Laurino or Bolan. (PCR Tr. at 18:10-19:2.)
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To be sure, Roberts has presented a case that Rodriguez’s presentation
in the PCR proceedings was misleading, because she did not disclose that the
rape kit that was tested did not include the critical swab tips. What is lacking
is any evidence that either Laurino or Bolan was responsible for that omission
or fabrication. See generally Whitlock v. Brueggemann, 682 F.3d 567, 580 (7th
Cir. 2012) (liability for fabricating evidence requires that the evidence be “used
to deprive the defendant of her liberty in some way”).
I will therefore grant summary judgment on the fabrication of evidence
claims and dismiss Counts 2 and 10 against Laurino and Bolan.13
B. Procedural due process
The ECPO Defendants also move for summary judgment on Count 5,
which asserts a § 1983 procedural due process claim against Laurino and
Bolan. Unlike the fabrication of evidence claim, which focuses on a
prosecutor’s misrepresentations to the court, this claim focuses on
misrepresentations to the criminal defendant. Under current law, Roberts
might possess such a claim, but Laurino and Bolan are entitled to qualified
immunity because that right was not clearly established as of 2005.
“To state a claim under § 1983 for deprivation of procedural due process
rights, a plaintiff must allege that (1) he was deprived of an individual interest
that is encompassed within the Fourteenth Amendment's protection of ‘life,
liberty, or property,’ and (2) the procedures available to him did not provide
‘due process of law.’” Hill v. Borough of Kutztown, 455 F.3d 225, 233–34 (3d
Cir. 2006) (citing Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000)). Roberts
maintains that Laurino and Bolan deprived him of the process he was due in
his post-conviction proceedings by providing him with inaccurate information
about the materials that were submitted for DNA testing in 2005. (Opp. to

In light of this resolution, I need not address the ECPO Defendants’ argument
that they are entitled to absolute prosecutorial immunity with respect to Roberts’s
claim that they fabricated evidence. (ECPO MSJ 20-23.) See generally Yarris, 465 F.3d
at 137 (discussing limitations on scope of prosecutorial immunity for post-conviction
actions).
13

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ECPO MSJ 27).
Beginning with the factual component of this claim, a reasonable jury
could find that Laurino provided Roberts with inaccurate information regarding
the scope of the DNA testing that was performed in 2005. Laurino was
apparently told several times by the State Lab that the vaginal swab tips were
missing from the kit, but Laurino did not share this critical information with
Douard when he informed Douard of the results of the analysis. (ECPO St.
¶ 20-23). Rather, Laurino “forwarded a copy of th[e] report to Douard on
October 6, 2005, stating that the results were ‘inconclusive’ because although
Roberts’s DNA was not on the slides, Roberts ‘could not be ruled out’ because
the materials ‘had degraded.’” (ECPO St. ¶28.)
That Laurino misinformed Roberts about the scope of the testing that
was done in 2005, however, does not necessarily amount to a procedural due
process violation. As stated, procedural due process rights only attach where
there is a constitutionally protected liberty interest and a person is deprived of
that interest. See Hill, 455 F.3d at 233–34. A key issue, then, is whether
Roberts had a protected liberty interest in having the entirety of the Atwell rape
kit tested in 2005. The answer is yes, but the analysis is somewhat complex.
In Dist. Attorney's Off. for Third Jud. Dist. v. Osborne, the Supreme Court
held that there is no freestanding right to obtain post-conviction access to the
state’s evidence for DNA testing. 557 U.S. 52, 55-56 (2009). However, where
state law creates a post-conviction right to access potentially exculpatory DNA
evidence, procedural due process protections do attach, although they are less
extensive than those that attach in the pre-trial context. Id. 68-69. The Court
explained that “when a State chooses to offer help to those seeking relief from
convictions,” due process does not “dictate the exact form such assistance
must assume.” Id. at 69 (quoting Pennsylvania v. Finley, 481 U.S. 551, 559
(1987). “The State accordingly has more flexibility in deciding what procedures
are needed in the context of postconviction relief.” Osborne, supra at 69. Given
this flexibility, due process is violated only where the state’s procedures for
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post-conviction relief “are fundamentally inadequate to vindicate the
substantive rights provided.” Id.
Roberts cites to two cases in support of his procedural due process claim
under Osborne. In Newton, the Second Circuit upheld a jury verdict that New
York City’s inadequate evidence management system violated the plaintiff’s
right to due process in his post-conviction proceedings. 779 F.3d at 142. The
plaintiff, who was convicted of rape and other crimes, requested DNA testing
under New York’s then-newly enacted statute permitting post-conviction DNA
testing. The plaintiff was told that the rape kit in his case could not be located
and was likely destroyed. A decade later, the rape kit was found and tested,
and the plaintiff was exonerated. Id. at 144-145. The Second Circuit concluded
that the plaintiff’s statutory right to obtain post-conviction DNA testing created
a corresponding procedural right to a “a faithful accounting of the evidence in
the City’s possession.” Id. at 151. The Court deemed it reasonable for a jury to
conclude that the inadequacy of the City’s evidence-management system
deprived the plaintiff of procedural due process.
Similarly, the Eastern District of North Carolina denied the City of
Goldsboro’s motion to dismiss a complaint alleging a procedural due process
claim based upon its police department’s evidence retention policies which
delayed the plaintiff’s exoneration. See Dail v. City of Goldsboro, No. 5:10-CV00451-BO, 2011 WL 2837067, at *6 (E.D.N.C. July 14, 2011). In Dail, the
plaintiff was also told upon seeking post-conviction DNA testing that the rape
kit taken from the victim had been destroyed. Id. at 2. Over a decade later, the
evidence from the case was found and tested, which led to his release from
custody. Id.
Although the facts in Newton and Dail are similar to the facts here, there
is a difference: the plaintiffs in those cases were serving terms of imprisonment
when they sought DNA testing under their respective states’ post-conviction
relief statutes. Roberts, on the other hand, had finished serving his sentence by
the time he sought DNA testing. (Comm. Order 2) Douard requested DNA
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testing on Roberts’s behalf to use in opposing the civil commitment petition
filed against Roberts (ECPO St. ¶¶7-10), and Roberts later pursued postconviction relief for the purpose of securing his release from civil confinement
as a sexually violent predator.
This distinction makes a difference, because although New Jersey law
permits a person to seek post-conviction DNA testing, in 2005 that right was
only available to an individual “who was convicted of a crime and is currently
serving a term of imprisonment.” N.J. Stat. § 2A:84A-32a (2001).14 Roberts
himself appears to recognize that this statute did not apply to him when he
sought DNA testing in 2005, as he states in one of his opposition briefs that
“Laurino voluntarily agreed to assist” in obtaining a DNA comparison and was
not complying with or enforcing any law in doing so. (DE 222 11, 15.)
Nonetheless, under current law, Roberts could have a viable procedural
due process claim based on this record. In Osborne, the Supreme Court held in
2009 that the defendant had a protected liberty interest in accessing the State
of Alaska’s evidence for DNA testing despite the fact that Alaska did not have a
statute authorizing post-conviction DNA analysis at the time. 557 U.S. at 64.
The Court concluded that a liberty interest existed because Alaska (a) had a
general post-conviction relief statute that allowed a prisoner to challenge his or
her conviction on the basis of newly discovered evidence, and (b) permitted
discovery in post-conviction proceedings to access evidence in the state’s
possession. Id.
Under Osborne, Roberts would have a protected liberty interest in
accessing the Atwell rape kit for DNA testing, even if New Jersey’s DNA testing
statute did not explicitly grant such a right. Like Alaska, New Jersey has (and
had in 2005) a procedure permitting criminal defendants to seek postconviction relief. See N.J. Ct. R. 3:22-2. Moreover, New Jersey law permits a
The statute has since been amended to permit an individual who was convicted
of a crime and “has completed serving the sentence for that conviction” to seek DNA
testing of evidence upon a showing of “just cause.” N.J. Rev. Stat. § 2A:84A-32a
(2016).
14

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convicted person to seek a new trial on the basis of newly discovered evidence
“at any time.” See N.J. Ct. R. 3:20-2. A new trial motion will be granted if it can
be shown that the evidence is material, would have been likely to change the
jury’s verdict, and was not previously available. State v. Behn, 868 A.2d 329,
342 (App. Div. 2005).
While there was no freestanding right to discovery in post-conviction
proceedings in New Jersey, the trial court has and had inherent power to order
discovery in such proceedings “when justice so requires.” State v. Szemple, 247
N.J. 82, 97 (2021) (citation omitted). The New Jersey Supreme Court held long
ago that “where a defendant presents the PCR court with good cause to order
the State to supply the defendant with discovery that is relevant to the
defendant’s case and not privileged, the court has the discretionary authority
to grant relief.” State v. Marshall, 148 N.J. 89, 270 (1997).
By creating a procedure for post-conviction relief and authorizing
discovery in post-conviction procedures upon a showing of good cause, New
Jersey chose “to offer help to those seeking relief from convictions,” and not
just those who were currently serving a term of imprisonment. Id. at 69. Thus,
in 2005, Roberts had a substantive right to challenge the validity of his
conviction with DNA evidence, and he was entitled to adequate procedures in
order to vindicate this right. Id. By analogy to Newton, that right carried with it
a corresponding procedural right to a “a faithful accounting of the evidence in
the City’s possession.” 779 F.3d at 151 (emphasis added). And it is fair to read
“faithful” to mean “accurate.”15
The ECPO Defendants argue that even if the evidence does support a
procedural due process claim against Laurino, Laurino is entitled to qualified
immunity. (ECPO MSJ 24.) As discussed more thoroughly in Part.IV.d, supra,
“[t]he doctrine of qualified immunity protects government officials ‘from liability
Further tipping the balance as to what process is due was Roberts’s
confinement as a sexually violent predator. While no longer literally serving a criminal
sentence, he was behind bars as a result of this conviction, and he can perhaps be
forgiven for failing to appreciate the distinction.
15

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for civil damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have
known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)).
Osborne, the Supreme Court case establishing that federal due process
protections accompany a state-created right to post-conviction DNA testing,
was decided in 2009. The alleged due process violations in this case occurred
in 2005. Hence, while Roberts had a right under New Jersey law to postconviction DNA testing in 2005, his corresponding federal procedural due
process rights were not yet “clearly established.”
Qualified immunity protects Laurino under these circumstances. See
Dail, 2011 WL 283706 at *7 (qualified immunity shielded government
defendants from procedural due process claim under Osborne because Osborne
was decided after the alleged unconstitutional conduct occurred). Accordingly, I
will grant summary judgment on the procedural due process claim and dismiss
Count 5 against Laurino and Bolan.
C. Supervisory liability
Count 7 alleges that Laurino is vicariously liable for the constitutional
violations of his subordinate, Bolan. Because I am granting summary judgment
as to Bolan on both of Roberts’s constitutional claims against her, see Parts
V.A and V.B, supra, I will also grant summary judgment to Laurino on the
derivative claim against him for supervisory liability.
D. Negligence
Count 13 raises a state law negligence claim against Laurino and Bolan
based on the same conduct as the procedural due process claim. The ECPO
Defendants move for summary judgment on this claim as well.
To sustain a cause of action for negligence, a plaintiff must prove four
elements: (1) a duty of care, (2) a breach of that duty, (3) proximate cause, and
(4) damages. Polzo v. Cnty. of Essex, 196 N.J. 569, 584 (2008). The ECPO
Defendants argue that Roberts’s negligence claim fails because neither Laurino
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nor Bolan breached a legal duty to Roberts by not ensuring that all
components of the Atwell rape kit were received by the State Lab and tested.
(ECPO MSJ 29.)
Whether and to what extent a defendant owes a legal duty are generally
questions of law for the court. Clohesy v. Food Circus Supermarkets, Inc., 149
N.J. 496, 502 (1997) (citations omitted). Because “[d]uty is a fluid concept,”
there is no exact rule that determines when one owes a legal duty to another to
prevent harm. § 11:3. Duty of care, 56 N.J. Prac., Personal Injury Law § 11:3
(2022-2023 ed.), quoting Tighe v. Peterson, 356 N.J. Super. 322, 330 (App. Div.
2002), judgment aff'd, 175 N.J. 240, 814 A.2d 1066 (2002). The foreseeability
of harm is a significant consideration, but it does not establish the existence of
a duty in itself. Carvalho v. Toll Bros. & Devs., 143 N.J. 565, 572 (1996). “Once
the foreseeability of an injured party is established, considerations of fairness
and policy govern whether the imposition of a duty is warranted.” Id. at 573
(citation omitted). “The assessment of fairness and policy ‘involves identifying,
weighing, and balancing several factors—the relationship of the parties, the
nature of the attendant risk, the opportunity and ability to exercise care, and
the public interest in the proposed solution.’” Id., quoting Hopkins v. Fox &
Lazo Realtors, 132 N.J. 426, 439 (1993).
Considerations of foreseeability, fairness, and public policy counsel that
Laurino did owe a duty to Roberts to accurately represent the scope of the DNA
testing that was performed in 2005. Although, as stated, Laurino had no
statutorily imposed obligation to locate the Atwell rape kit for Roberts and
submit it for testing, he agreed to do so, and he created the appearance that he
had done so. He testified to speaking with Douard about the DNA testing that
Roberts was requesting and to informing Douard of the inconclusive results of
the State Lab’s analysis. (Laur. Dep. 146:10-12, 233:22-235:2). The evidence
suggests, however, that Laurino never told Douard that the Lab reached out to
Laurino several times to say that components of the rape kit were missing and
thus could not be tested. Instead, Laurino represented to Douard that the
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requested DNA analysis had been completed.
The harm that Roberts would suffer from Laurino’s misrepresentation
was foreseeable. Laurino testified that he knew Roberts was facing civil
commitment and understood that Roberts was contesting his involvement in
the Atwell rape in order to demonstrate that civil commitment was not
warranted. Having agreed to help Roberts obtain the DNA testing he sought,
and later having represented to Roberts that the requested testing was
completed and the materials had degraded, rendering the results inconclusive,
Laurino could have foreseen that Roberts would rely on this representation and
no longer pursue DNA analysis as a means to exonerate himself.
Fairness and public policy similarly weigh in favor of finding a duty
under the circumstances. As a government actor, Laurino was in a position of
trust and authority. He was the “go-to guy” at the Essex County Prosecutor’s
Office regarding DNA analysis, such that it was reasonable for Douard and
Roberts to rely on his representations. (Laurino Dep. 73:19-23.) Moreover,
Laurino could have easily exercised reasonable care in the situation; all he had
to do was inform Douard that components of the rape kit were missing. Had he
done so, instead of lulling Douard, Roberts likely would have continued his
efforts to locate the relevant evidence and ensure that it was tested. Finally,
there is a strong public interest in overturning wrongful convictions through
the use of DNA analysis. That interest would be served by imposing a duty on a
government actor who voluntarily agrees to assist a defendant in obtaining
DNA analysis to accurately represent the scope of the testing that is ultimately
performed.
To be clear, I do not find that Laurino had a statutory duty in 2005 to
ensure that the missing components of the rape kit were located and ultimately
tested. The duty I am recognizing is much narrower. All that was required was
that Laurino, when informing Douard as to the status of the DNA testing,
exercise reasonable care under the circumstances.
I also conclude that a reasonable jury could find that Laurino breached
this duty of care and that the breach caused foreseeable harm to Roberts. The
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evidence shows that Van Jura, who represented Roberts in his PCR
proceedings in 2007 and 2009-10, spoke with Douard about the 2005 State
Lab report and asked whether there was “a better specimen that wasn’t tested.”
(Resp. to ECPO St. ¶26.) Douard replied, “I think it should be considered the
best sample, apart from any speculation of misconduct on the part of the
prosecutor.” (Id.) At his deposition in 2019, Van Jura testified that he “had no
reason to believe that what was tested wasn’t everything,” and thus he relied
on the 2005 report in arguing in the PCR proceedings that the DNA analysis
was inconclusive because the material had degraded, but a timely DNA
analysis would have exonerated Roberts (Id.) Had Van Jura known that the
entire rape kit was not tested in 2005, he “would have looked at the case
differently.” (Id.) A jury could therefore find that all of the elements of
negligence are met with respect to Laurino’s misrepresentation to Douard
about the scope of the DNA testing done in 2005.16
I do not find, however, that Bolan owed Roberts a similar duty. Although
Bolan was apparently tasked with ensuring that the Atwell rape kit was
provided to the State Lab, and with collecting Atwell’s buccal swab and
submitting it to the Lab as well (ECPO St. ¶¶11-12; Resp. to ECPO St. ¶18),
there is no evidence to suggest that Bolan ever communicated with Douard or
any other lawyer representing Roberts. There is also no evidence to suggest
that Bolan knew that the rape kit that was submitted to the lab was missing
The ECPO defendants assert in their reply brief that even if Roberts has
developed a prima facie case of negligence, summary judgment is still appropriate
because they are entitled to qualified immunity and/or absolute prosecutorial
immunity under New Jersey law. (ECPO Repl. 16-17.) In ruling on a summary
judgment motion, a court may not consider a new argument made for the first time in
reply papers where the non-movant does not have a meaningful opportunity to
respond. See Alston v. Forsyth, 379 F. App’x 126, 129 (3d Cir. 2010) (reversing grant of
summary judgment which was based on an argument raised for the first time in
reply). Because the ECPO defendants did not raise these immunity defenses to
Roberts’s negligence claim in their moving brief, and because Roberts did not have an
opportunity to respond to their reply brief, I will not reach the merits of these
arguments. See also Halsey, 750 F.3d at 288 (at summary judgment stage the burden
of establishing entitlement to the affirmative defense of qualified immunity falls on the
defendant-movant).
16

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key components; it is undisputed that it was sealed and that Bolan never
opened it. (ECPO St. ¶¶13-15; Resp. to EPCO St. ¶¶13-15.)17
I will therefore deny summary judgment on Count 13 as to Laurino and
grant summary judgment on the same count as to Bolan.
E. Vicarious liability of ECPO and Essex County
Both ECPO and Essex County move for summary judgment on Count
14, which alleges that both entities are vicariously liable for the state law
violations of Laurino and Bolan. Having granted summary judgment as to both
Laurino and Bolan on the state law claim for fabricating evidence and as to
Bolan on the state law negligence claim, I consider only whether there is
sufficient evidence in the record for a jury to find ECPO and Essex County
vicariously liable for Laurino’s alleged negligence. See Entrot v. BASF Corp., 359
N.J. Super. 162, 193 (App. Div. 2003) (whether an employer is vicariously liable
for the tortious conduct of an employee is usually a question of fact for the
jury).
Pursuant to the TCA, “[a] public entity is liable for injury proximately
caused by an act or omission of a public employee within the scope of his
employment in the same manner and to the same extent as a private individual
under like circumstances.” N.J. Rev. Stat. § 59:2-2 (2013). The TCA defines a
“public entity” as including “the State, and any county, municipality, district,
public authority, public agency, and any other political subdivision or public
body in the State.” N.J. Rev. Stat. § 59:1-3 (2013). Thus, established principles
of law such as the doctrine of respondeat superior govern the analysis of
whether ECPO and Essex County—both of which are “public entities” under
True, a reasonable jury could conclude that Bolan knew that Atwell’s buccal
swab never made it to the Lab, as it was her job to ensure that it did reach the lab.
But given that Bolan herself never agreed to help Roberts (she was merely assigned
tasks as the investigator on the case), and given that she never represented to Roberts
that she completed the assigned tasks, I find that her relationship with Roberts is too
attenuated to justify imposing a duty on her to inform Roberts about what was
actually submitted for testing. In any event, the identity of Atwell’s own buccal swab is
far from central to the case, and doubts about the rape kit’s authenticity would, if
anything, undermine Roberts’s position here. See pp. 17, 31 & n. 6, 12, supra.
17

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the TCA—may be found vicariously liable for Laurino’s purportedly negligent
conduct. Wright v. State, 169 N.J. 422, 435 (2001) (citing N.J. Rev. Stat. § 59:22 (2013)).
I begin with ECPO. “Under respondeat superior, an employer can be
found liable for the negligence of an employee causing injuries to third parties,
if, at the time of the occurrence, the employee was acting within the scope of
his or her employment.” Carter v. Reynolds, 175 N.J. 402, 408-09 (2003)
(quoting Lehmann v. Toys ‘R’ Us, Inc., 132 N.J. 587, 619 (1993)). Because
Laurino was an employee of ECPO during the relevant time period, the analysis
centers on whether he was acting within the scope of his employment when he
assisted Roberts with the DNA testing Roberts requested. New Jersey courts
evaluate whether an employee’s conduct falls within the scope of employment
by considering whether (a) the conduct is of the kind the employee is employed
to perform, (b) the conduct occurs substantially within the authorized time and
space limits of the employment, and (c) the conduct is carried out, at least in
part, for the purpose of serving the employer. See Carter, 175 N.J. at 411
(citing Restatement (Second) of Agency § 228 (1958)).
In support of their motion for summary judgment, the ECPO Defendants
argue only that Roberts’s vicarious liability claim against ECPO fails as a
matter of law because neither Laurino nor Bolan is liable to Roberts under New
Jersey law. (ECPO MSJ 30). The ECPO Defendants do not appear to dispute
that Laurino acted within the scope of his employment when he engaged in this
allegedly negligent conduct.
I find that there are sufficient facts in the record for a jury to conclude
that Laurino acted within the scope of his employment when he agreed to
locate the Atwell rape kit for Roberts and submit it to the State Lab for testing.
During the relevant time period, Laurino was employed as the Deputy Chief
Assistant Prosecutor at ECPO (Laurino Dep. 19:8-14). He testified that he was
also the office “point person for the state lab with respect to testing sexual
assault kits,” meaning that he was the liaison between the Lab and ECPO. (Id.
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at 26:4-25.) When a request for DNA testing was made to ECPO, Laurino was
the person in the office who would handle it. (Id. at 149:1-925, 150:1-4.)
According to Laurino, facilitating the testing of DNA evidence in post-conviction
cases is consistent with his ethical obligations as a prosecutor, given that “the
primary role of the prosecutor is to do justice.” (Id. at 66:22-25, 67:1-7.)
Laurino explained that if such a request was made by someone who did not file
a motion under New Jersey’s post-conviction DNA testing statute, ECPO would
agree to facilitate the testing “on a voluntary nature.” (Id. at 49:4-12.)
Accordingly, a jury could reasonably find that Laurino’s assistance, though in
some sense voluntary, occurred in the scope of his employment at ECPO and
therefore that ECPO is vicariously liable for Laurino’s alleged negligence.
Whether Essex County may be held vicariously liable for Laurino’s
purportedly negligent conduct is a more difficult question. As both the Third
Circuit and the New Jersey Supreme Court have observed, county prosecutors
in New Jersey possess a “dual or hybrid” status in that they serve both the
county and the State. See Wright, 169 N.J. at 455; Coleman v. Kaye, 87 F.3d
1491, 1499 (3d Cir. 1996). On the one hand, “[i]t is well established that when
county prosecutors execute their sworn duties to enforce the law by making
use of all the tools lawfully available to them to combat crime, they act as
agents of the State.” Coleman, supra. “On the other hand, when county
prosecutors are called upon to perform administrative tasks unrelated to their
strictly prosecutorial functions, such as a decision whether to promote an
investigator, the county prosecutor in effect acts on behalf of the county that is
the situs of his or her office.” Id.
Consequently, the New Jersey Supreme Court has stated that a county
cannot be held vicariously liable for the actions of a county prosecutor “related
to the investigation and enforcement of the criminal laws of the State.” Wright,
169 N.J. at 452. The Court has further instructed “that the test for determining
in which capacity a county prosecutor acts should ‘focus on whether the
function that the county prosecutors and their subordinates were performing
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during the alleged wrongdoing is a function that traditionally has been
understood to be a State function and subject to State supervision in its
execution.’” Gramiccioni v. Dep't of L. & Pub. Safety, 243 N.J. 293, 312 (2020)
(quoting Wright, 169 N.J. at 454).18
Essex County argues that it may not be held vicariously liable for the
allegedly tortious conduct of Laurino because the record shows that Laurino
was at all times acting in a law enforcement capacity on behalf of the State.
(Essex County MSJ 7.) I disagree.
Laurino testified at his deposition that in agreeing to assist Roberts in
obtaining a DNA test, he did not investigate Roberts’s criminal case. (Laurino
Dep. 154:4-15.) Laurino explained that the prosecution in the case “had been
completed” and “it was not reopened.” (Id.) The case was in a sense reopened
when Roberts sought post-conviction relief in 2007, but that occurred after
Laurino assisted with the DNA testing, and Laurino was not involved in the
eventual PCR prosecution. This evidence suggests that Laurino was not
investigating or enforcing New Jersey’s criminal laws when he assisted with the
requested testing in an allegedly negligent manner. Wright, 169 N.J. at 452.
Nor was Laurino acting pursuant to the post-conviction DNA testing
statute. As discussed above, the statute in 2005 did not apply to individuals in
civil confinement. Laurino was therefore under no State statutory obligation to
assist Roberts with the testing he requested.
The record also suggests that the State did not supervise ECPO’s
facilitation of DNA testing in any manner. Laurino testified that in 2004 and
2005, the New Jersey Attorney General’s Office did not oversee ECPO’s policy
or practice regarding arranging for DNA testing, nor did anyone from the
Attorney General’s Office supervise ECPO’s practice of arranging for such
Essex County’s arguments that Laurino and Bolan are entitled to qualified
immunity and/or absolute prosecutorial immunity from claims arising under 42
U.S.C. § 1983 are not on point, as Roberts has made it clear that the only claim
against the County is one for vicarious liability for the underlying state law tort claims.
(Essex MSJ 9-12; Opp. to Essex MSJ 1.) The County does not argue that Laurino and
Bolan are entitled to qualified immunity and/or absolute immunity under state law.
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testing. (Laurino Dep. 71:18-22, 75:8-11.) With regard to the Roberts matter
specifically, Laurino testified that no one from the Attorney General’s Office had
any role or say in his decision to agree to Douard’s request for assistance.
(Laurino Dep. 149:1-9, 150:5-10.) Laurino explained that “it’s not the kind of
thing that [the Attorney General’s Office] would be involved in.” (Id.)
In light of this evidence, a reasonable jury could find that Laurino’s
allegedly negligent conduct was not “a part or an aspect of prosecutorial
performance over which the State would exercise supervision.” See Gramiccioni,
243 N.J. at 314. Accordingly, Essex County may be held vicariously liable for
the conduct at issue.19
F. Damages
The ECPO defendants argue that Roberts cannot recover damages for
pain and suffering on his state law claims because the TCA prohibits an award
of damages against a public employee or entity for pain and suffering resulting
from an injury, except in the case of permanent loss of a bodily function,
permanent disfigurement, or dismemberment. N.J. Stat. Ann. § 59:9-2(d).
(ECPO MSJ 30-32.) Roberts acknowledges this limitation but maintains that he
can still recover for pain and suffering on his claims under § 1983. While this
is true as a legal proposition, as to the ECPO defendants the § 1983 claims are
being dismissed.

The fact that the Attorney General’s Office agreed to defend and indemnify the
ECPO Defendants in this action does not alter the conclusion that the County, rather
than the State, is vicariously liable for Laurino’s alleged negligence. Pursuant to the
TCA, the Attorney General is required to defend an action brought against a “State
employee,” upon that employee’s request, for conduct that occurred in the scope of his
or her employment. N.J. Rev. Stat. § 59:10A-1 (2013). That the Attorney General
agreed to defend the ECPO Defendants in this matter suggests that, in the view of the
Attorney General, the ECPO defendants were acting as “State employees” when they
committed at least one of the violations that Roberts alleges. But it does not tell us
which of the alleged violations the Attorney General considers to be actions of the
State. Given that Roberts raised fabrication of evidence claims against the ECPO
Defendants, and given that fabricating evidence appears closely related to the law
enforcement function of prosecutors, it is entirely possible that the Attorney General
deemed the actions that gave rise to the fabrication claim to be actions of “State
employees” and based the decision to defend in this matter solely on that.
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The ECPO Defendants also argue that the court should grant summary
judgment on any claims against them for damages for lost wages, as Roberts
has failed to provide any competent evidence that supports a claim for such
damages. (ECPO MSJ 33.) In particular, he has not provided any data or expert
opinion about the supposed past employment he would have enjoyed and how
much income he allegedly would have received. (Id.)
The ECPO Defendants cite to a number of cases in support of their
argument that expert testimony is required to proceed on a claim for lost
wages. These cases concern a different issue: the calculation of damages for
future economic loss. See, e.g. Elcock v. Kmart Corp., 233 F.3d 734, 754 (3d
Cir. 2000) (“An expert’s testimony regarding future earnings loss must be
accompanied by a sufficient factual foundation before it can be submitted to
the jury.”) (citation omitted); Benjamin v. Peter's Farm Condo. Owners Ass'n,
820 F.2d 640, 642 (3d Cir. 1987) (“This Court has required more than
speculative opinion when determining damages for prospective earnings loss.”);
Evans v. BV Shipping Co. Lombok Strait, No. CIV.07-3139RMB/KMW, 2009 WL
3233524, at *3 (D.N.J. Oct. 5, 2009) (“Without the testimony of an expert . . .
an award of future lost income would be speculative and is therefore
impermissible.”) (emphasis added in all). I am not persuaded that Roberts must
support his claim for past lost wages with the opinion of an expert. See Burris
v. Richards Paving, Inc., 461 F. Supp. 2d 244, 251 (D. Del. 2006) (an expert
witness is not always necessary when addressing a claim for past lost wages).
I will allow the claim for lost wages as a component of damages. It must,
of course, be supported with admissible evidence.
VI.

Conclusion
For the reasons set forth above, the motions for summary judgment of

the ECPO Defendants (DE 214) and the Newark Defendants (DE 223) are
granted in part and denied in part, and the motion for summary judgment of
Essex County (DE 219) is denied.
In particular, summary judgment is granted as to Bolan on Counts 2, 5,
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10, and 13; summary judgment is granted as to Laurino on Counts 2, 5, 7, and
10 and denied as to Laurino on Count 13;20 summary judgment is denied as to
ECPO and Essex County on Count 14; summary judgment is granted as to
Eutsey on Counts 4 and 11 and denied as to Eutsey on Counts 1, 2, 8, and 10;
and summary judgment is denied as to the City of Newark on Counts 5 and 14.
In sum, the following claims remain:
•

Count 1 (§ 1983 malicious prosecution) against Eutsey

•

Count 2 (§ 1983 fabrication of evidence) against Eutsey

•

Count 5 (procedural due process) against the City of Newark

•

Count 8 (state law malicious prosecution) against Eutsey

•

Count 10 (state law fabrication of evidence) against Eutsey

•

Count 13 (negligence) against Laurino and Eutsey

•

Count 14 (vicarious liability) against ECPO, Essex County, and
the City of Newark, as to the above counts.

An appropriate order will issue.
Dated: December 30, 2022
/s/ Kevin McNulty
______________________________
KEVIN MCNULTY
United States District Judge

As a result of my ruling, all of the federal claims against Laurino will be
dismissed, but a state law negligence claim remains. I will exercise my discretion to
retain supplemental jurisdiction over that state claim in the interest of judicial
economy, as this case has been ongoing for over seven years, the parties have
exchanged substantial discovery, and the court has jurisdiction over all other
defendants. See Hedges v. Musco, 204 F.3d 109, 123 (3d Cir. 2000) (where the federal
claims that provided the basis for original jurisdiction are dismissed, the court should
ordinarily “decline to decide the pendent state claims unless considerations of judicial
economy, convenience, and fairness to the parties provide an affirmative justification
for doing so”).
20

50