ROBERTS v. COUNTY OF ESSEX et al
OPINION. Signed by Judge Kevin McNulty on 8/12/16. (dc, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
RODNEY B. ROBERTS,
Civ. No. 15-7061 (KM)
COUNTY OF ESSEX, et al.,
In the early morning hours of May 8, 1996, 17-year-old Sheronda Atwell
was dragged to an empty lot in East Orange, New Jersey, and raped. Although
it was dark and her assailant attacked her from behind, Ms. Atwell was later
able to describe the perpetrator’s sex, race, approximate age, height, and
weight. According to police officers, she positively identified Rodney Roberts in
a photo line-up. Roberts was arrested and charged with kidnapping and
aggravated sexual assault. Within weeks of his arraignment, Roberts pled
guilty to the kidnapping charge in exchange for a seven year sentence and
dismissal of the aggravated sexual assault charge. At the conclusion of his
sentence, Roberts was involuntarily civilly committed under the New Jersey
Sexually Violent Predator Act. Roberts initiated post-conviction relief (PCR)
proceedings. During those PCR proceedings, his counsel learned that
immediately after the crime, a rape kit analysis had been performed at the
hospital. Possibly as a result of his prompt guilty plea, Roberts’s DNA had
never been compared to any of the DNA found in the rape kit. Years later, once
DNA analysis was finally conducted, Roberts’s guilty plea was vacated and the
indictment was dismissed.
Roberts then brought this action under 42 U.S.C.
1983 seeking money
damages from the police officers, the prosecutors, the public defenders, and
supervisory personnel. Also named as defendants are the County of Essex, the
Essex county Prosecutor’s Office (“ECPO”), the City of Newark, and the Newark
Police Department (“NPD”). He alleges that exculpatory evidence was withheld
and mishandled, that he was improperly prosecuted for a crime he did not
commit, and that his defense counsel committed malpractice by providing
ineffective assistance in connection with the guilty plea and later PCR
Now before the Court are motions to dismiss the complaint filed by the
City of Newark (Dkt. No. 24); ECPO, Assistant Prosecutor Laurino, and
Investigator Bolan (Dkt. No. 30); and Assistant Public Defenders Martone and
Van Jura (Dkt. No.
For the reasons set forth below, the motions are
granted in part and denied in part.
For purposes of these motions, the major allegations of Roberts’s
Complaint may be summarized as follows.
Prior Convictions and Violation of Parole
In 1986, long before the events at issue here, Roberts was convicted of
sexual assault. As a result of that conviction, Roberts was on parole on May
25, 1996, when he was arrested for theft. (Compl.
37) He failed to obtain
release on bail.
On June 12, 1996, Roberts pled guilty to the theft charges. As a result of
the theft, however, he was also charged with a violation of parole.
On May 8, 1996, Sheronda Atwell was walking in East Orange, New
Jersey, on her way to her aunt’s house. (Id.
18) As she approached
The Court previously denied the motion to dismiss filed by the County of Essex.
(Dkt. No. 46) The remaining defendant, Detective Derrick Eutsey, later filed a motion
to dismiss, not yet fully briefed, which the Court will treat separately.
Fairmount Cemetery, a male attempted to engage her in conversation. When
she declined, he came up behind her, put his hand over her mouth, threatened
her, and dragged her to an empty lot across from the cemetery. (Id.
In that empty lot, the assailant raped Ms. Atwell and ejaculated into her
21) When he was finished, the assailant ordered Ms. Atwell to
stay down until he left and told her to “Remember Jeff.” (Id.) After waiting five
minutes, Ms. Atwell walked around the corner and asked someone to call the
Police Officer Hill responded to the call. (Id.
23) He interviewed Ms.
Atwell. Although it was a dark and rainy night and Ms. Atwell did not have a
good opportunity to see the assailant’s face, she described him as male, black,
20 years old, 5’7” and approximately 185 lbs. (Id.) Ms. Atwell was brought to
United Hospitals Medical Center where a rape kit sampling was conducted. (RI.
24) Ms. Atwell’s mother released the rape kit to the NPD. (Id.
While Ms. Atwell was at the hospital, police brought a suspect (not
Roberts) to her room, but she was unable to identify that person as her
26) On May 14, 1996, Detective Eutsey brought Ms. Atwell to
the NPD’s Sexual Assault Section to examine a photo array. (Id.
According to Det. Eutsey’s report, Ms. Atwell began to cry uncontrollably upon
viewing one of the pictures, and she identified the person in that picture as her
assailant. (fri.) The photograph was a mugshot of Roberts taken ten years
earlier, when he was 19 years old. Ms. Atwell reportedly signed and dated the
photograph, but the photograph has since been lost. (Id.
30) Det. Eutsey’s
report of the photo ID was used to obtain warrants for Roberts’s arrest. (Id. ¶j
The Kidnapping and Sexual Assault Charges and the Guilty Plea
On June 26, 1996, Roberts was arraigned on the sexual assault and
kidnapping charges and pled not guilty. (Id.
38) An appearance was
scheduled before the Hon. Eugene J. Codey three weeks later on July 16, 1996.
Before that appearance, Roberts was approached by Assistant Public Defender
Martone, who informed Roberts that he had been assigned to represent him.
¶ 39) Martone relayed the specifics of a plea agreement offered by the
prosecutor’s office: a plea of guilty to kidnapping in the second degree, in
exchange for dismissal of the charge of aggravated sexual assault in the first
degree. The deal included a recommended sentence of seven years on the
kidnapping charge and three years on the theft charge, to run concurrently
with the three years Roberts would serve on the parole violation. (Id.
Roberts accepted the plea deal. On July 16, 1996, before Judge Codey, he pled
guilty to the kidnapping charge only. (Id.
¶ 46) On October 17, 1996, Roberts
was sentenced in accordance with the terms of the plea deal, and the
aggravated sexual assault charge was dismissed. (Id.
Denial of Parole and Denial of Motion to Withdraw Guilty Plea
Roberts was denied parole by the New Jersey State Parole Board in 1998
and 2000. (Compl.
¶J 49, 50) Those denials took into account the allegations
underlying the dismissed sexual assault charge. (Id.) Roberts appealed the
second of those denials, arguing that the dismissed charge should not have
been considered. The appeals board determined that the Parole Board was
entitled to rely on the sexual assault as constituting part of the circumstances
surrounding the kidnapping offense of conviction. (Id.
On January 12, 2001, following the denial of his parole appeal, Roberts
filed a motion to withdraw his guilty plea. (Id.
¶ 51) The motion argued that
Assistant Public Defender Martone provided ineffective assistance when he
allegedly advised Roberts that the dismissed sexual assault charge would not
be used to penalize him in future proceedings. Judge Codey denied that
application to withdraw the plea on January 18, 2001. (Id.
Two years later, on June 24, 2003, the Parole Board again denied
Roberts’s application for release on parole. (Id.
¶ 53) Roberts appealed that
decision, but on October 29, 2003, the denial was affirmed. (Id.) In its
affirmance, the appeals board noted that the parole board was entitled to
consider all the circumstances, and “must consider the information provided
by the Department of Corrections.” (Id.)
Civil Commitment, New DNA Evidence, and Ms. Atwell’s 2005 Recantation
Roberts alleges that in 2002, he asked the Attorney General to do a DNA
analysis, but was informed that there was no DNA to test. (Id.
During his incarceration, Roberts underwent a series of psychological
evaluations. Those evaluations concluded that Roberts posed a moderate to
high risk of recidivism and recommended that he be civilly committed as a
sexually violent predator. (Id.
55—60) On May 19, 2004, the Attorney
General’s office filed a Petition for Civil Commitment to the Special Treatment
Unit (“STU”) under the New Jersey Sexually Violent Predator Act (“SVPA”). That
petition relied on the 1986 and 1996 sex offenses, as well as two clinic
61) On June 1, 2004, Roberts was transferred to the STU and
temporarily involuntarily committed as a sexually violent predator, pending a
final hearing. (Id. ¶j 54, 66)
In preparation for the commitment hearing, Roberts’s counsel, Assistant
Public Defender Douard, interviewed the victim, Ms. Atwell. Ms. Atwell told
Douard that she had never made a photo identification of her assailant and did
not even know that someone had been arrested for the assault. (Id.
The commitment hearing commenced on December 9, 2004, before
Judge Perretti. It was at this hearing that Douard learned that a rape kit exam
had been conducted within hours of the crime and an analysis had been
conducted on that forensic evidence two months later, on July 18, 1996. (Id.
69) That July 18, 1996 report, Douard learned, noted the presence of sperm.
The analyst requested blood and saliva samples from the defendant in order to
perform a comparison. (Id.
82) Roberts’s DNA, however, was never compared
to any male DNA found in the rape kit. (Id.
In December 2004, Douard wrote to Prosecutor Laurino requesting a
DNA analysis. (Id.
88) On March 10, 2005, Investigator Bolan obtained a
buccal (cheek) swab from Roberts. (Id.
89) Roberts’s swab was submitted to
the lab. Also sent to the lab for DNA testing was part, but not all, of the original
rape kit from 1996. That part consisted only of the vaginal slides from the
victim. It did not include the actual swabs or a control saliva sample (which
would be used to confirm that the DNA designated as that of the victim was in
fact Ms. Atwell’s). (fri.
92) Laurino informed the forensic department that
“everything that Newark P.D. had was sent to lab.” (Id.
96) A lab report, dated
August 29, 2005, concluded that all of the DNA on the vaginal slide was
female. That result obviously excluded Roberts as the source of that particular
On September 12, 2005, Ms. Atwell informed Investigator Bolan that she
had a son who was born nine months after the rape. (Id.
102) Ms. Atwell
requested a paternity test. Assistant Prosecutor Laurino, after discussion with
Bolan, declined to have it done. On September 27, 2005, Ms. Atwell signed a
statement affirming her earlier oral statement to Assistant Public Defender
Douard that she had never performed a photo ID of her assailant and did not
know anyone had been arrested. (Id.
78—79) (Two years later, on June 22,
2007, Ms. Atwell recertified the truth of that 2005 statement. (Id.
On February 15, 2006, Roberts filed a pro se motion for post-conviction
relief and sought to withdraw his guilty plea. (Compl.
109) The PCR petition
asserted that the victim had never identified her assailant and that he had
been afforded ineffective assistance in deciding to plead guilty. (Id.
motion was denied by the trial judge on the grounds that an identical motion
had been denied in 2001 and that the current motion was time-barred. On
appeal, however, that ruling was reversed and the matter was remanded so
that Roberts could be assigned counsel to assist him on the issues of
timeliness and the procedural bar. See State v. Roberts, 2007 WL 1468631, at
*1 (N.J. Super. Ct. App. Div. May 22, 2007). On remand, Assistant Public
Defender Van Jura was assigned to represent Roberts.
In her July 23, 2007, brief to the court in advance of oral argument on
the PCR motion, Assistant Prosecutor Clara Rodriguez represented to the court
that the victim’s swabs and the rape kit were submitted for DNA testing and
that the August 29, 2005, DNA test results “did not provide conclusive results.”
114) At oral argument, Rodriguez stated that the August 29, 2005,
DNA results were “inconclusive as to the seminal part of it” because what was
found consisted only of female cells. (Id.
119) Van Jura, says Roberts,
accepted the prosecution’s position that the results were “inconclusive.”
Roberts faults Van Jura for not stressing that he was actually excluded as the
contributor of DNA to the slide, which contained only female DNA. (Id.
Judge Codey denied Roberts’s PCR application on July 30, 2007. Judge
Codey dismissed Ms. Atwell’s 2005 and 2007 recantatioris as being “riddled
with inconsistencies.” He found them “inherently suspect and untrustworthy”
because Ms. Atwell claimed that, after she was unable to identify her assailant
in her hospital room, no one had ever contacted her again. That statement,
wrote Judge Codey, was obviously suspect in light of evidence that she had
gone to the ECPO precinct to provide a buccal swab, but did not recant her
identification at that time. Ex. 00 at p. 4. As for ineffective assistance of
counsel, Judge Codey found that Roberts failed to demonstrate deficient
performance or prejudice. There was no adequate showing that Martone
provided unreasonable or inadequate advice; Roberts received a “very favorable
plea bargain”; and he had never retracted the factual basis for the kidnapping
conviction, which was based on the same incident that gave rise to the sexual
assault charge. Id. at pp. 4—5.
The Appellate Division again reversed and remanded for a plenary
evidentiary hearing. Judge Codey should have held such a hearing, the court
held, to resolve the conflict between Ms. Atwell’s alleged positive identification
of Roberts in the photo array and her 2005/2007 recantations. The court also
sought development of the record as to what advice Martone gave Roberts in
relation to the guilty plea. State v. Roberts, 2009 WL 2059583, *6_7 (N.J.
Super. Ct. App. Div. Jul. 17, 2009).
Van Jura continued to represent Roberts on this second remand. (Id.
125) An evidentiary hearing was held before Judge Codey on October 27, 2009,
and April 27, 2010. (Id.
126) During the hearing, Roberts testified that
Assistant Public Defender Martone persuaded him to plead guilty by telling him
that he had spoken to Ms. Atwell, who had positively identified Roberts as her
assailant. Roberts also testified that the August 2005 DNA results were
“inconclusive,” that his DNA was not found in the slide, “but they couldn’t rule
me out because of the materials that they were testing had degraded to a
certain degree, they couldn’t make a full determination.” (Id.
Bolan, in her testimony, recounted her 2005 consultation with Prosecutor
Laurino about whether to perform a paternity test. (Id.
128) Martone denied
under oath that he had told Roberts he had spoken with the victim or
confirmed her identification of Roberts as the assailant. (Id.
134) At the
hearing on October 27, 2009, Judge Codey directed Assistant Prosecutor
Rodriguez to locate the missing biological evidence and ordered a paternity test
on Ms. Atwell’s son. (Id.
133) The paternity test determined that Roberts was
not the father of Ms. Atwell’s son. (Id.
On May 19, 2010, Judge Codey again denied the PCR petition. (Id.
He found that the exclusion of Roberts as the father of Ms. Atwell’s child did
not exclude him as the rapist. Judge Codey found Martone to be a credible
witness and accepted his testimony as true. (Id.)
That decision, too, was appealed. Roberts argued to the Appellate
Division that Van Jura had been ineffective at the PCR stage because he failed
to call Assistant Public Defender Douard or Investigator Price as witnesses. The
Appellate Division agreed that Douard’s testimony might have lent credibility to
Ms. Atwell’s recantations. Id. at *6. The Appellate Division “fail[ed] to see” why
Van Jura argued that the 2005 DNA results were “inconclusive” when the 2005
report “on its face, excluded defendant’s DNA.” Id. Its decision, however, did
not rest solely on semantics; an effective attorney, said the Appellate Division,
would have called an expert witness to clarify the significance of the DNA
evidence. On March 8, 2013, the Appellate Division reversed and remanded for
a further evidentiary hearing. State v. Roberts, 2013 WL 844573 (N.J. Super.
Ct. App. Div. Mar. 8, 2013).
On remand, Roberts was assigned new counsel and the case was
transferred to Judge Sherry Hutchins-Henderson. (Id.
140) Judge Hutchins-
Henderson again directed Assistant Prosecutor Rodriguez to locate the
complete rape kit. On June 17, 2013, Rodriguez reported that she had located
the entire, original rape kit. (Id.
142) DNA testing was conducted. On October
24, 2013, the forensic unit reported that Roberts was excluded as a possible
contributor of DNA. (Id.
On November 21, 2013, based on this newly discovered evidence,
Roberts’s guilty plea was vacated and a new trial was ordered. (Id.
prosecution opted not to retry the case. On February 20, 2014, the charges
against Roberts were dropped and dismissed. (Id. ¶152) On March 10, 2014,
the petition for civil commitment was dismissed, and on March 12, 2014,
Roberts was released from the STU. (Id.
On September 24, 2015, Roberts filed the complaint in this action. (Dkt.
No. 1) Roberts voluntarily dismissed the Newark Police Department as a
defendant on December 3, 2015. (Dkt. No. 12) Following various extensions of
time, certain defendants filed motions to dismiss. In his opposition to the
motions to dismiss, Roberts voluntarily dismissed certain counts against
certain defendants. (See Dkt. No. 54, n. 2; Dkt No. 33 at 2 n.2)
The County of Essex moved to dismiss the complaint on November 25, 2015.
(Dkt. No. 8) Roberts opposed that motion (Dkt. No. 19) and the County filed a reply
(Dkt. No. 29). By Order dated April 7, 2016, this Court denied Essex County’s motion
to dismiss without prejudice to the reassertion of its arguments in the context of
summary judgment after appropriate discovery. (Dkt. No. 46) Eutsey’s motion to
dismiss is still at the briefing stage, so all of the counts asserted against him remain in
As a result of the foregoing dismissals, the counts of the complaint, and
the defendants against whom they are asserted, are currently as follows:
First Count 42 U.S.C. § 1983 Violation of the 4th Amendment for
Malicious Prosecution, asserted against Defendant Eutsey
Second Count 42 U.S.C. § 1983 Violation of the 14th Amendment for
Fabricating! Falsifying Evidence, asserted against Defendants Eutsey,
ECPO, Laurino and Bolan
Third Count 42 U.S.C. § 1983 Violation of the 1 Amendment for
Withholding Exculpatory Evidence, asserted against Defendants City of
Newark and Eutsey
Fourth Count 42 U.S.C. § 1983 Violation of the 14th Amendment for
Mishandling Exculpatory Evidence, asserted against Defendants City of
Newark and Eutsey
Fifth Count 42 U.S.C. § 1983 Violation of the 14th Amendment for
Denial of Procedural Due Process, asserted against Defendants City of
Newark, Eutsey, ECPO, Laurino, Bolan
Sixth Count 42 U.S.C. § 1983 Violation of the 1st and 14th
Amendments for Denial of Access to the Courts, asserted against
Defendants City of Newark, Eutsey, ECPO, Laurino, Bolan
Seventh Count 42 U.S.C. § 1983 Supervisory Liability, asserted against
Defendant ECPO and Laurino
Malicious Prosecution, asserted against Defendant
Malicious Abuse of Process, asserted against Defendant
Tenth Count Fabrication of Evidence, asserted against Defendants
Eutsey, ECPO, Laurino and Bolan
Eleventh Count Mishandling Exculpatory Evidence, asserted against
Defendants City of Newark and Eutsey
Twelfth Count Withholding Exculpatory Evidence, asserted against
Defendants City of Newark and Eutsey
Thirteenth Count Negligence/Gross Negligence/Recklessness, asserted
against Defendants City of Newark, Eutsey, ECPO, Laurino and Bolan
Fourteenth Count Vicarious Liability, asserted against Defendants City
of Newark, County of Essex and ECPO
Fifteenth Count Professional Negligence! Legal Malpractice, asserted
against Defendants Martone and Van Jura
R. CIV. P. 12(b)(6) provides for the dismissal of a complaint, in whole
or in part, if it fails to state a claim upon which relief can be granted. The
moving party bears the burden of showing that no claim has been stated.
Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). In deciding a motion
to dismiss, a court must take all allegations in the complaint as true and view
them in the light most favorable to the plaintiff. See Warth v. Seldin, 422 U.s.
490, 501 (1975); Trump Hotels & Casino Resorts, Inc. u. Mirage Resorts Inc., 140
F.3d 478, 483 (3d Cir. 1998); see also Phillzs v. County ofAllegheny, 515 F.3d
224, 231 (3d Cir. 2008) (“reasonable inferences” principle not undermined by
later Supreme Court Twombly case, infra).
R. Civ. P. 8(a) does not require that a complaint contain detailed
factual allegations. Nevertheless, “a plaintiff’s obligation to provide the
‘grounds’ of his ‘entitlement to relief requires more than labels and
conclusions, and formulaic recitation of the elements of a cause of action will
not do.”’ Bell Ati. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, the factual
allegations must be sufficient to raise a plaintiff’s right to relief above a
speculative level, such that it is “plausible on its face.” See id. at 570; see also
Umland v. PLANCO Fin. Serv., Inc., 542 F.3d 59, 64 (3d Cir. 2008). A claim has
“facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 556). While “[t]he plausibility standard is not akin to a
it asks for more than a sheer possibility.” Iqbal, 556
U.S. at 678 (2009).
The United States Court of Appeals for the Third Circuit, interpreting the
Twombly/Iqbal standard, has provided a three-step process for analyzing a
Rule 12(b)(6) motion:
To determine whether a complaint meets the pleading standard, our
analysis unfolds in three steps. First, we outline the elements a
plaintiff must plead to a state a claim for relief. See [Iqbal, 556 U.S.]
at 675; Argueta [v. U.S. Immigration & Customs Enforcement, 643
F.3d 60, 73 (3d Cir. 2011)]. Next, we peel away those allegations that
are no more than conclusions and thus not entitled to the
assumption of truth. See Iqbal, 556 U.S. at 679; Argueta, 643 F.3d
at 73. Finally, we look for well-pled factual allegations, assume their
veracity, and then “determine whether they plausibly give rise to an
entitlement to relief.” Iqbal, 556 U.S. at 679; Argueta, 643 F.3d at
73. This last step is “a context-specific task that requires the
reviewing court to draw on its judicial experience and common
sense.” Iqbal, 556 U.S. at 679.
Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012).
Claims against Assistant Prosecutor Laurino and Investigator Bolan
A. Fabrication of Evidence (Counts 2 and 10)4
In Counts 2 and 10, Roberts alleges that Laurino and Bolan falsified
evidence, in violation of 42 U.S.C.
§ 1983 and state law. They allegedly did so
by giving Assistant Prosecutor Clara Rodriguez two pieces of false information:
(1) that the complete rape kit had been submitted to the laboratory for testing,
Counts 1, 8 and 9 have been voluntarily dismissed as against Newark, ECPO,
Laurino, Bolan, Martone and Van Jura. See Dkt. No. 54 at 1 n.2; Dkt No. 33 at 2 n.2.
Roberts also dismissed Counts 3, 4, 11, and 12 as against ECPO, Laurino and Bolan.
The allegations of Counts 2 and 10 refer directly to actions by Defendants
Eutsey, Laurino, and Bolan only. Neither side’s brief discusses these counts in relation
to the City of Newark. I therefore treat these counts as having been asserted against
those three individuals only. I generally discuss the City’s vicarious liability under
Count 14, the Monell count.
and (2) that the results of the test were inconclusive. Rodriguez relayed that
information to the court during Roberts’s PCR hearing. (Compi.
168) In her
pre-hearing brief dated July 23, 2007, Rodriguez represented that “[tjhe victim
provided the samples on September 12, 2005. The samples and the sex crime
kit in this matter were sent to the New Jersey State Police Laboratory for DNA
analysis. The DNA examination did not provide conclusive results.” (Id.
Then, at oral arguments on July 26, 2007, she relayed that the August 2005
DNA report was “inconclusive as to the seminal part of it” because the only
cells found were female. (Id.
First, Roberts suggests that the time line proves the falsity of Laurino
and Bolan’s statement to Rodriguez that the complete rape kit was tested in
2005 and that the 2005 analysis included comparison with the victim’s swabs.
168) The Complaint alleges that the “inconclusive” DNA report was
dated August 29, 2005, a few weeks before Ms. Atwell gave a buccal swab on
September 12, 2005. (Id.
98, 99) Indeed, Ms. Atwell’s buccal swab was not
submitted for testing until December 3, 2009. (Id.
107) Thus, says Roberts,
Rodriguez’s statements to the PCI? court in July of 2007 that the victim’s
sample was tested could not have been correct.
Of course, these are allegations only, and even incorrect evidence does
not equate to falsified or fabricated evidence. See Halsey v. Pfeiffer 750 F.3d
273, 295 (3d Cir. 2014) (“[T}estimony that is incorrect or simply disputed
should not be treated as fabricated merely because it turns out to have been
wrong.”). Indeed, the complaint itself could be wrong. In context, all involved
might have been justified in not yet thinking that the August 29, 2005 DNA
test was potentially exculpatory; by definition, a slide containing solely female
DNA did not contain the DNA of the male rapist, whether Roberts or someone
else, at all. We may even concede that it was not yet clear whether the female
DNA on the vaginal slide was that of Ms. Atwell, the victim. But where
ejaculation concededly took place, a partial analysis of the rape kit that
produced only female DNA might have suggested that further inquiry was
required. All of these facts, and others, would go into a fact finder’s
determination of whether there was misconduct by Laurino and Bolan. But
such a determination is premature at the pleading stage.
The complaint sufficiently alleges that the officers misrepresented the
nature and scope of the analysis to Rodriguez, who made a representation in
court that was more certain and categorical than the facts warranted. I will
permit the parties to explore the truth, or not, of that allegation in discovery.
The motion of Laurino and Bolan to dismiss Counts 2 and 10 is denied.
B. Due Process Violation (Count 5)
In Count 5, Roberts alleges that Laurino and Bolan prevented him from
accessing exculpatory DNA evidence and thereby violated his due process
The starting point is Arizona v. Youngblood, 488 U.S. 51, 109 S. Ct. 333
(1988). There, the police failed to test semen samples and failed to refrigerate
the victim’s clothing, permitting the degeneration of any testable evidence.
Reviewing a due process challenge to Youngblood’s conviction on direct appeal,
the Supreme Court determined that (1) the police did not have a constitutional
duty to perform any particular tests on evidence and (2) absent a showing of
bad faith, there is no denial of due process where the police fail to preserve
potentially useful evidence. Id. at 57, 59.
In Dist. Attorney’s Office for the Third Judicial Dist. v. Osborne, 557 U.S.
52, 129 S. Ct. 2308 (2009), the Supreme Court considered a Youngblood-like
issue in the special context of a post-conviction challenge. Osborne held that
there is no substantive due process right to obtain post-conviction access to
the state’s evidence for DNA testing. Procedural due process rights, however, do
extend to post-conviction proceedings, although these do not include the
panoply of procedural protections that apply at the trial phase. Even after
having pled (or been found) guilty and convicted, a defendant retains liberty
interests, but they are less extensive than those that attach to a person merely
accused. Thus, “when a State chooses to offer help to those seeking relief from
convictions,’ due process does not ‘dictat[ej the exact form such assistance
must assume.”’ Osborne, 557 U.S. at 69 (citing Pennsylvania v. Finley, 481 U.S.
551, 559, 107 S. Ct. 1990 (1987)). Rather, post-conviction procedures are
impermissible only if they “offend some principle of justice so rooted in the
traditions and conscience of our people as to be ranked as fundamental,” or
“transgress[ any recognized principle of fundamental fairness in operation.” Id.
The Third Circuit has applied the Youngblood
/ Osborne due process
analysis to the State’s post-conviction conduct, and has under some
circumstances upheld a challenge. In Yarns v. County of Del., 465 F.3d 129,
142 (3d Cir. 2006), for example, the Court of Appeals, considering a Section
1983 action, determined that the police “consciously acted to frustrate [the
defendant’s] request for DNA testing,” by letting evidence containing DNA sit in
a bag, unpreserved, under someone’s desk. That conduct, held the Court,
established bad faith sufficient to constitute a due process violation. Id.
Taking this case law as my guide, I must deny the motion to dismiss.
Here, the Complaint alleges that a rape kit exam was conducted at United
Hospitals Medical Center within hours of the assault. Shortly thereafter,
pursuant to a release form signed by Ms. Atwell’s mother, the kit was
transferred to the Newark Police Department. (Compi. ¶j 24, 25) The NPD sent
the rape kit to the Newark Police Forensic Laboratory where it was analyzed, at
least preliminarily, on July 18, 1996. (Id.
82) The results of that test showed
seminal stains. The analyst requested samples from the defendant in order to
make a comparison. (Id.) No such comparative test was done at the time. (I
note that Roberts had pled guilty two days before.)
Eight years later, in 2004, learning of the existence of possible DNA
evidence, Roberts’s PCR attorney requested a DNA comparison. (Id.
March 10, 2005, Bolan collected a buccal swab from Roberts. (Id.
Investigator Bolan “submitted just one portion” of the rape kit (the vaginal
slide), along with Roberts’s buccal swab, to the Office of Forensic Sciences on
March 22, 2005.6 (Id.
90) (It is not clear how Bolan came into possession of
the slide.) The reasons that only the vaginal slide was submitted for analysis
remain obscure. The Complaint alleges that the Office of Forensic Sciences
twice contacted Laurino about the rest of the swabs and slides that would have
been in the original rape kit, and that Laurino promised to investigate. (Id. ¶j
92—95) The third time the Office of Forensic Sciences contacted Laurino, he
allegedly told them that “everything the Newark P.D. had was sent to lab.” (Id.
96) On August 29, 2005, a report was prepared which determined that the only
DNA on the vaginal slide was female. That result, as far as it went, obviously
excluded Roberts, since the slide did not contain any male DNA at all. The
report also stated that it could not be determined if the female DNA belonged to
Ms. Atwell. (Id.
It was only in 2013, in response to the order of Judge HutchinsHenderson, that Assistant Prosecutor Rodriguez located the rest of the rape kit.
It is unclear precisely where and how the rape kit was found, whether within
the “precinct” (which precinct is not clear), ECPO, or the New Jersey State
Police Laboratory. (Id.
143) Nor is it clear why the kit could not have been
located years before—for example, in response to the 2009 order of Judge
Roberts alleges that he personally contacted the Attorney General in 2002
requesting a DNA analysis. Roberts alleges he was told by an unnamed person at the
Attorney General’s Office that “there was no DNA to test.” (Compi. ¶ 84)
At the PCR hearing in July of 2007, Assistant Prosecutor Rodriguez told the
court that, back in 1996, only the Newark Police Department had a laboratory for DNA
testing, but that in 2005 the New Jersey State Police laboratory was available. (Id. ¶
Roberts alleges that Laurino and Bolan are responsible for the missing
rape kit, that they knew the complete kit was not submitted in 2005, and that
they played a hide—and-seek game, delaying his exoneration. Maybe yes, maybe
no, but I find that the allegations sufficiently state a claim of bad faith.
Discovery should assist the parties in determining who had custody of the
original rape kit between 1996 and 2007, why only portions of the rape kit were
submitted for testing, and why it remained undisclosed in its complete form
until 2013. Accordingly, the motion to dismiss is denied as to Count 5, which
will proceed against Laurino and Bolan.
C. Access to Courts (Count 6)
Count 6 alleges that the withholding of the exculpatory DNA evidence
denied Roberts to access to the courts in violation of the 1st and 14th
To state a claim for denial of access to the courts, a plaintiff must show
“(1) he suffered an actual injury—that is, that he lost a chance to pursue a
‘nonfrivolous’ or ‘arguable’ underlying claim; and (2) that he has no other
‘remedy that may be awarded as recompense’ for the lost claim other than in
the present denial-of-access suit.” Coulston v. Houtzdale,
WL 3196684, at *2 (3d Cir. June 9, 2016) (citing Christopher v. Harbury, 536
U.S. 403, 415, 122 S. Ct. 2179 (2002)). The nonfrivolous, arguable underlying
claim must be set forth in the complaint in such a way as to present “more
than mere hope,” and the complaint must also describe the remedy allegedly
lost. Monroe v. Beard, 536 F.3d 198, 205—06 (3d Cir. 2008) (citing Harbury, 536
U.S. at 416—17).
The reasoning behind the second, “no other remedy” element seems to be
as follows: The injury from an access-to-courts claim is the loss of a
meritorious claim; if the merits of that lost claim are otherwise being litigated,
and there is an effective remedy for them, the access-to-courts aspect becomes
superfluous. See Harbury, 536 U.S. at 416 (“[Tjhe remedy sought must itself be
identified to hedge against the risk that an access claim be tried all the way
through, only to find that the court can award no remedy that the plaintiff
could not have been awarded on a presently existing claim.”).
Roberts has alleged a nonfrivolous underlying claim: that he was denied
effective access to DNA evidence that ultimately exonerated him. He has not
sufficiently alleged that he has no other remedy besides the access to courts
claim. Roberts can proceed on his underlying claims and may obtain a money
judgment if they should be decided in his favor. But “[t]here is
no point in
spending time and money to establish the facts constituting a denial of access
when a plaintiff would end up just as well off after litigating a simpler case
without the denial-of-access element.” Id. at 415.
Accordingly, Count 6 is dismissed without prejudice.
D. Supervisory Liability of Assistant Prosecutor Laurino (Count 7)
Count 7 alleges that Laurino is vicariously liable for the acts of his
subordinate, Investigator Bolan. “A defendant in a civil rights action must have
personal involvement in the alleged wrongs; liability cannot be predicated solely
on the operation of resportdeat superior.” Rode v. Dellarciprete, 845 F.2d 1195,
1207 (3d Cir. 1988). Thus a plaintiff must allege that the defendant supervisor
directed the allegedly unconstitutional conduct, or at least that the supervisor
actually knew of and acquiesced in it. Id.
The complaint’s allegations as to Laurino are somewhat skimpy. Laurino
was Bolan’s supervisor. Laurino is alleged to have told the Office of Forensic
Sciences in 2005 that the NPD had turned over everything it had, which
allegedly was untrue. Also in 2005, Bolan and Laurino allegedly discussed
whether to conduct a paternity test, and decided not to do so. (Id.
test was not conducted until four years later, pursuant to the order of Judge
Codey.) These allegations indicate that Laurino, as supervisor, had some
specific involvement in the Roberts PCR case and acted in concert with Bolan.
They do not rest on simple respondeat superior. I consider also that the inner
workings of the ECPO involve facts within defendants’ exclusive control. The
allegations are sufficient to warrant discovery. The motion to dismiss Count 7,
alleging supervisory liability against Laurino, is therefore denied.
E. Negligence (Count 13)
In Count 13, Roberts alleges that Laurino and Bolan were negligent,
grossly negligent, or reckless in failing to submit the complete rape kit for
testing and in withholding or tampering with the DNA evidence. Under New
Jersey law, to state a claim for negligence, a plaintiff must set forth that the
defendant owed him a duty of care, that there was a breach of that duty, and
that the plaintiff suffered damages which were actually or proximately caused
by the breach. See, e.g., Jersey Central Power & Light Co. v. Melcar Utility Co.,
59 A.3d 561, 571 (N.J. 2013). In light of the allegations recounted with respect
to Count 5, supra, I find that Roberts has sufficiently stated a claim for
negligence against Laurino and Bolan. The motion to dismiss Count 13 is
Claim Against the Assistant Public Defenders
Count 15 sounds in negligence and legal malpractice. Roberts alleges
that two of his attorneys, Assistant Public Defenders Martone and Van Jura,
provided ineffective assistance of counsel. Martone’s negligent advice, Roberts
alleges, led to his improvident decision to plead guilty in 1996. Van Jura’s
negligence in PCR proceedings, he alleges, led to his continued incarceration in
the STU from 2007 to 2013.
1. Threshold grounds for dismissal
Martone seeks dismissal of Count 15 on certain threshold grounds.
First, Martone argues that Roberts failed to comply with the notice
requirements of the New Jersey Tort Claims Act, N.J.S.A. 59:1 et seq.
(“NJTCA”). The NJTCA imposes certain requirements upon a plaintiff who
wishes to sue a public entity or public employee. See Beauchamp v. Amedio,
164 N.J. 111, 121—22 (N.J. 2000) (NJTCA is designed to “provide the public
entity with prompt notification of a claim in order to adequately investigate the
facts and prepare a defense”). One such requirement is that the would-be
plaintiff serve a notice of claim within ninety days of the date on which the
cause of action accrued. N.J.S.A. 59:8-8.
The court’s first task, then, is to determine when the cause of action
accrued. “A cause of action against an attorney who represented a defendant in
a criminal matter does not accrue ‘until the defendant receives relief in the
form of exoneration,’ and
the grant of PCR falls short [of establishing accrual]
if defendant is still subject to retrial and reconviction on the original charges.”
Rogers v. Cape May Cnty. Office of Public Defender, 31 A.3d 934, 939 (N.J.
2011) (citing McKnight v. Office of the Public Defender, 962 A.2d 482, 483 (N.J.
2008)). Thus exoneration occurs when an indictment is dismissed with
prejudice, and not, for example, when a conviction is reversed and remanded
for a new trial. Rogers, 31 A.3d at 941; Cortez v. Gind hart, 90 A.3d 653, 659
(N.J. Super. Ct. App. Div. 2014) (“For the accrual of a malpractice claim based
on such an allegation [of public defenders’ negligence], there is no injury unless
and until the conviction is shown to be invalid, with some degree of finality.”).
Here, Roberts’s guilty plea was vacated and a new trial ordered on
November 21, 2013. The charges against Roberts were not finally dismissed,
however, until February 20, 2014. That is the earliest possible accrual date for
Roberts’s legal malpractice claim. The Notice of Claim was filed May 28, 2014,
and supplemented on June 9, 2014. (Compl. Ex. A) The original notice of claim
was therefore filed eight days after the 90-day time limit imposed by the NJTCA
Late-filed notices may be permitted, at the discretion of the trial judge,
where a plaintiff can demonstrate (1) “extraordinary circumstances” explaining
his failure to timely file the notice and (2) that the public entity and/or
employees have not been “substantially prejudiced” by the late filing. N.J.S.A.
59:8-9. The only reason in the record for this late filing (which was not very
late) is that Roberts remained imprisoned; although his criminal conviction was
The petition for civil commitment was dismissed on March 10, 2014, but that
dismissal was without prejudice.
vacated on February 14, 2014, his civil commitment was not vacated until
March 10, 2014, and he was not actually released from the STU until March
12, 2014. (Compi.
153—54) For the first month of the 90-day NJTCA notice
period, then, Roberts remained in the STU. That incarceration, though a civil
commitment, constituted the major ongoing effect of the criminal charge, and it
did not end until well within the 90-day notice period. Roberts, perhaps
insufficiently attuned to the subtlety of being under lock and key yet not
technically imprisoned, could be forgiven for thinking (if he thought about it at
all) that the clock did not start to run until he was released. Furthermore, I see
no substantial indication that a brief delay of eight days resulted in prejudice
to any defendant. Accordingly, I decline to dismiss the claim against Martone
on this ground.
Martone also takes issue with the contents of the notice of claim. The
notice of claim states that “Mr. Roberts was wrongfully imprisoned from 2003
until on or about March 12—14, 2014” and that Roberts “was finally released
only after DNA evidence demonstrated that he had not committed a crime.”
(Compi. Ex. A) First Martone argues that the notice is ineffective against him
because it does not specifically name him or refer to Roberts’s 1996 guilty plea.
Failure to include specific names is not fatal. See, e.g., Henderson v. Herman,
862 A.2d 1217, 1223 (N.J. Super. Ct. App. Div. 2004) (declining to dismiss
plaintiff’s complaint for failure to include specific names of dispatchers on
notice of claim). Furthermore, I am not convinced that the failure to cite the
1996 guilty plea renders the notice unsatisfactory. A notice of claim is not
required to meet some heightened specificity requirement; as the name implies,
it is merely a notice, not a civil complaint. Torrey v. New Jersey, 2014 WL
941308, at *17 (D.N.J. Mar. 11, 2014). This notice of claim speaks of Roberts’s
Nor am I persuaded that the doctrine of laches provides a basis for dismissal. It
cannot be seriously argued that Roberts substantially delayed in bringing his
malpractice claim, considering that the charges were dismissed against him as of
February 20, 2014 and his claim was brought on September 24, 2015. Nor do the
attorney defendants establish that they suffered any incremental prejudice in
wrongful incarceration, despite the fact that “he had not committed a crime.” It
requires no great leap to infer that he is contesting his counseled guilty plea.
This should have been sufficient to put the Public Defenders’ Office, and the
Assistant Public Defenders involved, on notice of the general nature of
Third, Martone seeks dismissal of the claim on grounds of collateral
estoppel. Collateral estoppel, or issue preclusion, has the following essential
elements: (1) identical issue presented in the earlier and later actions, (2) final
judgment on the merits, (3) same party, or one in privily, raising the issue in
the later action, (4) a full and fair opportunity to litigate the issue in the earlier
action, and (5) that the determination of the issue was essential to the final
judgment. See Alevras v. Tacopina, 399 F. Supp. 2d 567, 571 (D.N.J. 2005)
(citing Matter of the Estate of Dawson, 641 A.2d 1026, 1034—35 (N.J. 1994)).
Martone fails to establish that the issue as to which he seeks estoppel
(the adequacy of his representation) was essential to a prior final judgment. It
is true, as he says, that Roberts attacked the adequacy of his representation
before Judge Codey at the July 26, 2007 PCR oral arguments, and that Judge
Codey rejected Roberts’s ineffective assistance arguments. Judge Codey’s
decision, however, was reversed by the Appellate Division. That reversal,
although not specifically based on the ineffective assistance ground, rendered
Judge Codey’s decision non-final. The Appellate Division found the procedure
to have been flawed, and remanded for an evidentiary hearing.
At least at the pleading stage, I have no sufficient basis to find that
collateral estoppel bars a legal malpractice claim. I therefore decline to dismiss
Count 15 as against Martone on this ground.
2. Failure to state a claim
Martone next argues that Count 15 should be dismissed for failure to
state a claim. The malpractice alleged against Martone is that he led Roberts to
believe that the sexual assault charge, which was being dismissed, would not
be used to penalize him in future proceedings.
“A legal malpractice action is rooted in the tort of negligence.” Rogers, 31
A.3d at 938. To state a claim for legal malpractice, New Jersey law requires the
following elements: “(1) the existence of an attorney-client relationship creating
a duty of care upon the attorney; (2) that the attorney breached the duty owed;
(3) that the breach was the proximate cause of any damages sustained; and (4)
that actual damages were incurred.” Cortez, 90 A.3d at 658 (citations omitted).
That duty of care, as it relates to the plea bargain process, requires a “standard
of representation in that process that satisfies the Sixth Amendment.” Id. at
659 (citing Lafler v. Cooper,
132 S. Ct. 1376 (2012)). Under
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), a defendant
asserting that counsel failed to meet that standard of effective assistance must
demonstrate (1) “that counsel’s representation fell below an objective standard
of reasonableness,” or in other words, was “deficient,” or outside “the wide
range of professionally competent assistance,” and (2) that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different. See State v. Fritz, 519 A.2d 336,
341—42 (N.J. 1987) (quoting Strickland, 466 U.S. at 687, 690, 694).
In general, counsel must advise a client as to any penal or direct
consequences that will result from a plea, but need not advise a client about
collateral consequences. That Strickland standard requires, for example, that
counsel advise a client about the guilty plea’s likely effect on future parole
eligibility. Hill v. Lockhart, 474 U.S. 52, 57, 106 5. Ct. 366 (1985). This follows
because denial of parole, being punitive, is part of the criminal law process and
is therefore considered a direct consequence of the plea. The motion to dismiss
is therefore denied as to Martone’s alleged failure to warn Roberts that the
dismissed charge would continue to affect his parole eligibility.
Civil commitment as a sexually violent offender, however, is considered a
collateral consequence of a plea. State v. Bellamy, 835 A.2d 1231, 1238 (N.J.
2003). That said, the New Jersey Supreme Court has nevertheless placed a
duty upon counsel to ensure that a defendant understands the possibility of
future civil commitment as a consequence of entering a guilty plea. Id. The
Court’s rationale is that the failure to so advise a client “deprives that
defendant of information needed to make a knowing and voluntary plea.” Id. at
1238—39. Bellamy was, however, granted only “pipeline” retroactivity; it applied
only to cases active at the trial level or on direct appeal at the time when it was
decided on December 11, 2003. Roberts’s case long preceded that date, and
Martone, assuming the truth of the allegations, did not fail to meet any
standard that applied at the time.
Just as important is the fact that, at the time of Roberts’s plea, the
enactment of the SVPA lay two years in the future, in 1998. Failure to predict
the future enactment of SVPA, and the defendant’s hypothetical liability
thereunder, does not fall short of any reasonable standard of representation.
New Jersey state cases, not precisely binding but persuasive, have rejected
ineffective assistance claims against counsel for failing to advise about the
possibility of civil commitment pursuant to the SVPA in connection with guilty
pleas that occurred before the law’s enactment. See State v. Lorenzo, 2009 WL
465437, at *4 (N.J. Super. Ct. App. Div. Feb. 26, 2009) (noting that permitting
ineffective assistance claims in such a situation puts an “impossible burden”
on trial counsel); State v. Malde, 2009 WL 2834273, at *3 (N.J. Super. Ct. App.
Div. Sept. 4, 2009) (rejecting ineffective assistance claim regarding failure of
defense counsel to explain SVPA consequence of guilty plea because “a defense
attorney is not required to advise a defendant of collateral consequences of a
plea not then existing”). In the context of this civil action for damages, too, it
demands too much of a public defender to advise a client of an as-yet
nonexistent statute, where the defendant was pleading guilty to an offense that
was not a predicate offense for that future statute, and where civil commitment
Nor is the defendant’s decision to plead guilty and subsequent incarceration
essential to civil commitment. The SVPA permits the Attorney General to seek
commitment of any person if the Attorney General believes the individual may be a
sexuafly violent predator. State v. Jaffe, 2009 WL 3850002, at *3 (N.J. Super. Ct. App.
Div. Nov. 17, 2009) (citing In re Civil Commitment of P.Z.H., 873 A.2d 595, 598 (N.J.
Super. Ct. App. Div. 2005)).
under the statute was not reliant on the defendant’s actually pleading guilty to
a sex offense. As to the portion of Count 15 relating to the SVPA, then, the
motion to dismiss is granted.
Accordingly, Count 15 is granted in part and denied in part as to
Martone, without prejudice to the filing of an amended complaint that remedies
the deficiencies identified here.
ii. Van Jura
Roberts’s claim of malpractice against Van Jura relates to Van Jura’s
representation of him in the civil commitment and PCR proceedings.
Specifically, Roberts alleges that Van Jura was negligent in having stated at the
PCR hearing on October 27, 2009, that the August 2005 DNA report was
121, 248) Roberts also alleges that Van Jura was
negligent for failing to call Roberts’s prior post-conviction counsel, Assistant
Public Defender Douard, and Investigator Price as witnesses at the PCR
evidentiary hearing to corroborate the circumstances surrounding Atwell’s
recantation story. (Id.
247) Had Van Jura called these witnesses, Roberts
contends, Judge Codey would have found Ms. Atwell credible when she said
she had not identified Roberts in a photo array.
Roberts contends that the Appellate Division has already endorsed his
claims of deficiency. (Id.
249) Not quite. Although the Appellate Division
raised these issues, it did not decide them; it remanded because it believed
they merited an evidentiary hearing.
As for the portion of the claim alleging ineffective assistance for failing to
call certain witnesses at the evidentiary hearing, I find that Roberts has
sufficiently stated a claim. Van Jura’s statement that the August 29, 2005,
DNA report was inconclusive is a closer issue.’° Nevertheless, as part of the
larger picture, it may be significant.
As stated above, that report stated that the only DNA present on the tested slide
(one portion of the complete rape kit) was female DNA from an unknown source
(because there was no control sample from Atwell). So it was not “conclusive” as to the
Accordingly, Count 15 will proceed against Van Jura.
Vicarious Monell Liability of Newark and ECPO
The claims against the City of Newark and ECPO are premised on
theories of vicarious liability. Count 14 states so explicitly. Other counts do so
impliedly. They are asserted against the City of Newark and ECPO, but are
based on actions taken by individual employees such as Det. Eutsey, who is an
employee of the City of Newark, or Assistant Prosecutor Laurino and
Investigator Bolan, who are employees of ECPO. To the extent that the claims
survive against those employees, I must consider whether vicarious liability
flows to Newark or the ECPO.
A municipality is not vicariously liable via respondeat superior for the
constitutional torts of its officials. Polk County v. Dodson, 454 U.S. 312, 325,
102 S. Ct. 445 (1981) (“[Slection 1983 will not support a claim based on a
respondeat superior theory of liability.”); N.J. Stat. Ann. § 59:2—10 (“A public
entity is not liable for the acts or omissions of a public employee constituting a
crime, actual fraud, actual malice, or willful misconduct.”); Hoag v. Brown, 935
A.2d 1218, 1230 (N.J. Super. Ct. App. Div. 2007) (“[Tlhere can be no vicarious
liability by a public entity for the intentional torts committed by its employees;
that is, with respect to such intentional torts, the theory of respondeat superior
does not apply.”).
Rather, a plaintiff must show that any violation of his constitutional
rights “implement[ed] or execute[d] a policy, regulation or decision officially
adopted by the governing body or informally adopted by custom.” Beck v. City
of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996). “In other words, the
[municipality] may not be held liable for constitutional torts under
§ 1983 on a
vicarious liability theory rooted in respondeat superior but ‘it can be held
identity of the assailant; logically, the assailant’s (male) DNA was not on the slide at
all. It did not demonstrate that Roberts (or anyone else) was the assailant, and did not
exclude Roberts (or anyone else) as the assailant. It did perhaps suggest, however,
that the picture was incomplete and that more investigation of the rape kit would be
responsible as an entity when the injury inflicted is permitted under its
adopted policy or custom.”’ Muiholland u. Gov’t Cnty. of Berks, Pa., 706 F.3d
227, 237 (3d Cir. 2013) (citing Andrews v. City of Philadelphia, 895 F.2d 1469,
1480 (3d Cir. 1990) and quoting Beck, 89 F.3d at 971).
“Policy is made when a decisionmaker possessing final authority to
establish municipal policy with respect to the action issues an official
proclamation, policy, or edict.” Andrews, 895 F.2d at 1480 (internal citations
omitted). “An official has policymaking authority for Monell purposes when the
official is responsible as a matter of state law for making policy in the
particular area of county business in question, and the official’s authority to
make policy in that area is final and unreviewable.” Muiholland, 706 F.3d at
237 (citing Hill v. Borough of Kutztown, 455 F.3d 225, 245—46 (3d Cir. 2006)).
“Custom” is a course of conduct which, although not formally authorized
by law, is “so permanent and well-settled” as to virtually constitute law.
Andrews, 895 F.2d at 1480 (internal citations omitted). “Custom
may also be
established by evidence of knowledge and acquiescence.” Beck, 89 F.3d at 971.
A boilerplate allegation of municipal custom or practice will often be
insufficient. A single incident involving a single officer—use of excessive force in
an arrest-related tussle, for example—might well flow from individual fault
only; it would not necessarily give rise to an inference that there was something
wrong with municipal policy. Here, however, there is an alleged course of
conduct extending over a decade. In Count 5, Roberts alleges that Newark and
ECPO perpetuated a practice or custom of inadequate evidence management.
(Compi. ¶ 188) The basis for this allegation is that the original, complete rape
kit was missing between 1996 and 2007, and the entire kit was not produced
until 2013; that only portions of it were located and submitted for DNA testing
in 2005; and that this mismanagement delayed Roberts’s exoneration for years.
The test that was initially performed allegedly could not be conclusive (and was
ruled inconclusive). That occurred because the slide samples were singled out
for analysis, for reasons that are not satisfactorily explained. The entire rape
kit was not produced for many years, also for unexplained reasons. An
inference that there was something wrong with (at least) the filing and storage
system for rape kits is not inevitable, but it is not implausible, either.
Accordingly, I find that the Complaint adequately alleges a policy,
practice, or custom implemented or executed by the City of Newark or ECPO.
Discovery may or may not reveal such a policy, but I will permit such discovery
to go forward. The motion to dismiss the complaint against the City and the
ECPO on Monell grounds is denied.
For the reasons set forth above, the motions to dismiss the Complaint
brought by defendants (1) the City of Newark (Dkt. No. 24); (2) ECPO, Assistant
Prosecutor Laurino, and Investigator Bolan (Dkt. No. 30); and (3) Assistant
Public Defenders Martone and Van Jura (Dkt. No. 35) (together, the “Movants”)
are granted in part and denied in part.
In response, the Plaintiff has voluntarily dismissed the following counts
against the Movants: Counts 1, 3, 4, 8, 9, 11, and 12. These are deemed
In accordance with the foregoing opinion, the Court decides the motions
as follows. Count 6 is dismissed only as against Assistant Prosecutor Laurino
and Investigator Bolan. Count 15 is dismissed only as against Assistant Public
Defender Martone, and only to the extent the claim is premised on a failure to
warn of the potential for civil commitment. Those dismissals of Counts 6 and
15 are without prejudice to the filing of an amended complaint within 30 days.
The non—dismissed claims which remain as against the Movants
therefore are as follows:
Count 2 (Section 1983 Fabrication of Evidence) against Laurino and
Count 5 (Section 1983 Due Process) against Laurino and Bolan
Count 7 (Section 1983 Supervisory Liability) against Laurino
Count 10 (Fabrication of Evidence) against Laurino and Bolan
Count 13 (Negligence) against Laurino and Bolan
Count 14 (Vicarious Liability) against ECPO and City of Newark
Count 15 (Legal Malpractice) against Martone (to the extent the claim is
premised on a failure to warn of parole consequences) and Van Jura
No opinion is expressed as to the pending motion to dismiss filed by Detective
An appropriate order follows.
Dated: August 12, 2016
HON. KEVIN MCNULTY, U.S.D.J.
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