HATCHER v. CITY OF JERSEY CITY POLICE DEPARTMENT et al

Filing 63

OPINION. Signed by Judge John Michael Vazquez on 2/27/2019. (sm)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

INDIGO HATCHER,
Civil Action No. 15-8303
Plain tiff
OPINION
V.

CITY OF JERSEY CITY POLICE
DEPARTMENT, et al,
Defendants.

John Michael Vazguez, U.S.D.J.
This matter comes before the Court on the motion for summary judgment filed by
Defendants City of Jersey City (“Jersey City”), the City of Jersey City Police Department
(“JCPD”) and Officer Eddie Fernandez. D.E. 52. Plaintiff Indigo Hatcher opposes the motion
(D.E. 54-57), and Defendants filed a brief in reply (D.E. 62).’ The Court reviewed all submissions
made in support and opposition of the motion, and considered the motion without oral argument
pursuant to fed. R. Civ. P. 78(b) and L. Civ. R. 78.1(b). For the reasons that follow, Defendants’
motion is GRANTED in part and DENIED in part.

1The brief in support of Defendants’ motion for summary judgment (D.E. 52-1) is referred to as
“Defs’ Br.”; Plaintiff’s opposition brief(D.E. 56) is referred to as “PiPs Opp.”; and Defendants’
reply brief(D.E. 62)is referred to as “Defs’ Reply”.

I.

FACTS AND PROCEDURAL HISTORY
A. Factual Background2

From approximately 3:30 p.m. to 6:00 p.m. on December 21, 2014, Defendant Eddie
Fernandez, a patrol officer with the JCPD, performed plain clothes surveillance at Fulton Avenue
in Jersey City. DSOMF

¶J 1, 4,

15, 30. Fernandez and other JCPD officers were conducting

surveillance because of complaints that drugs were being sold in the area. Id.

¶J 17-19. When a

JCPD officer performs surveillance, he “surveys the relevant area to see what is going on in the
immediate area

.

.

.

look[ing] for illegal activity.” Id.

¶ 21. If the officer observes unlawful

conduct, he informs the “perimeter unit.” Id. The perimeter unit, which also consists of JCPD
officers, is located within two to three blocks from the surveillance area, and is directed to arrest
actors that the surveillance unit observes performing illegal activity. Id.

¶J 23-24.

On December 21, 2014, Officer Fernandez performed surveillance from the backseat of an

unmarked car with tinted windows. Id.

¶ 29. The car was parked across from an empty lot on

fulton Avenue where Fernandez had concluded that, “[biased on past experience and recent
complaints,” people hid drugs. Id.

¶ 27. While performing surveillance, Officer Fernandez

observed a female walking back and forth in front of the lot, which Officer Fernandez deemed
“suspicious.” Id.

¶ 33. Shortly after seeing the female, a van pulled up and the female approached

the vehicle. Officer Fernandez then watched the driver exit the van and give the female a black
bag in exchange for cash. Id.

¶ 34. The female took possession of the bag, ran into the empty lot,

2

The factual background is taken from Defendants’ Statement of Undisputed Material Facts
(“DSOMF”) (D.E. 52-2); Plaintiffs Statement of Material Facts (“PSOMF”) (D.E. 57-1); the
Certification of Philip S. Adelman and supporting exhibits (“Adelman Cert.”) (D.E. 52-4); and the
Certification of Aymen A. Aboushi and supporting exhibits (“Aboushi Cert.”) (D.E. 55).
2

and placed the bag on the ground next to “a big box truck” parked in the lot. Id.

¶ 36. Officer

Fernandez then saw the female leave the empty lot and speak with the van driver. Id.

¶ 37.

After observing these events, Officer Fernandez instructed the perimeter unit to stop the
van for further investigation. The perimeter unit eventually pulled the van over and arrested the
driver. Id.

¶J 37-38. Presumably after the van left, Officer Fernandez watched the female “go to

the black bag in the empty lot, take out a bag from inside the black bag and give it to another
unknown male.” Id.

¶ 39. While this was occurring, Officer Fernandez saw another female

standing in the middle of Fulton Avenue “looking back and forth.” Id.

¶ 40. “Based on Officer

Fernandez’s experience and training, he concluded that [the first female] had just sold a drug to
the unknown male while [the second female] was looking out for police.” Id. Officer Fernandez
observed the first female allegedly sell drugs to a second unidentified man in the same manner.
He then described the second male to the perimeter unit, who stopped the male and recovered
drugs on his person. Id.

¶ 42. Eventually, the two females went into a house with the address of

45 Fulton Avenue, and Officer Fernandez ended his surveillance because it was getting dark. Id.

¶¶ 44,

54. Before leaving the scene, Officer Fernandez directed the perimeter unit to recover the

black bag from the empty lot; the bag contained illegal drugs. Id.

¶J 45-46.

Officer Fernandez then went to the South District Police Precinct and within an hour,
requested assistance from non-party Detective Morris3 in order to identify the two females that he
saw during the surveillance. Id.

¶ 47-48. At the time, Officer Fernandez claims that he did not

know the identity of either female. Id.

¶ 32-3 3, 47. The first woman was wearing a black knitted

Morris was originally named as a defendant in this matter. The claims against him, however,
were dismissed pursuant to a voluntary stipulation between the parties. D.E. 51.
3

hat, black coat, blue jeans and sneakers. The second woman was wearing a heavy, black North
Face coat. Id.

¶ 5$.

As a detective, Morris had access to the computer system used to look up Bureau of
Criminal Investigation (“BCI”) data. Using the database, detectives can check BCI identification
numbers, which are given to individuals who have been arrested. In addition, a detective can enter
an address into the BCI database and retrieve photographs and identifying information of persons
who were previously arrested at that address. Id.

¶ 49-52. With Detective Morris’s assistance,

Officer Fernandez concluded that Plaintiff Indigo Hatcher was the first female who he saw selling
drugs, and Plaintiffs sister, Jasmine Hatcher, was the look out. Id.

¶ 40. How Officer Fernandez

ascertained the identity of the two females that he observed earlier in the day, however, is disputed.
Officer Fernandez testified that he told Morris the address of the house that he saw the
women enter, 45 Fulton Avenue, and that Morris entered this address into the BCI database. After
Morris entered the address into the database, the names Indigo and Jasmine Hatcher “popped up.”
Aboushi Cert. Ex. B, Deposition of Eddie Fernandez at T55:7-1$ (June 30, 2016) (hereinafter
“Fernandez Dep”). Morris pulled up the arrest reports for Indigo and Jasmine, which included
photographs of both women. After seeing Indigo’s photograph, Officer Fernandez identified her
as the first female who was selling drugs, and after seeing Jasmine’s photograph, Fernandez
identified her as the lookout. Id. at T55:1$-56:3.
Morris, however, testified that Officer Fernandez “provided [him] with a substantial
amount of information in order for [Morris] to figure out who that person [i.e. Indigo] was.”
Aboushi Cert. Ex. C, Deposition of Dejon Morris at T21:16-1$ (June 30, 2016) (hereinafter
“Morris Dep.”). Although Morris did not recall precisely what information Officer Fernandez
provided to him, Morris believed that Fernandez provided the address, the name Indigo Hatcher,

4

and potentially her date of birth. Id. at T2 1:19-22; T23 :9-10. Because Fernandez provided Morris
with enough identifying information, Morris testified that he did not need to conduct an address
search in the BCI database. Id. at T24:5-25:4. Morris also testified that Fernandez only provided
him with information for one female, and accordingly, he only pulled one photograph from the
database for Fernandez to review. Thus, Fernandez only identified one person. Id. at T26:12-21.
After Morris inputted the information provided by Fernandez into the database, a picture came up.
Id. at T23 :11-19. When the photo appeared on Morris’s computer screen, Fernandez said, “That’s

her.” Id. at T28:l-7. Once Fernandez saw the photograph associated with Plaintiffs BCI report,
“he was 100% sure” that Indigo Hatcher was the first female he saw while conducting surveillance
earlier in the afternoon. DSOMF

¶ 56.

At approximately 7:00 p.m. that same evening, Officer Fernandez called Jersey City
Municipal Court Judge Rosen and provided Judge Rosen with information regarding his
surveillance. Based on this information, Judge Rosen determined that there was probable cause,
and signed four complaint-warrants for Plaintiffs arrest. DSOMF

¶ 59,

62; Adelman Cert. Ex.

B. The complaint-warrants stated, among other things, that Plaintiff possessed illegal drugs with
the intent to distribute and that she conspired with Jasmine to commit drug offenses. DSOMF

¶

61, Adelman Cert. Ex. B. Then, on April 9, 2015, Officer Fernandez testified in front of a grand
jury as to the events he saw on December 21, 2014. Because of Officer Fernandez’s testimony,
which included his determination that Plaintiff was the first female, an indictment was returned
against Plaintiff on April 9, 2015. The indictment contained various allegations concerning the
possession and distribution of illegal drugs on December 21, 2014. DSOMF

¶ 63-64.

Plaintiff indicates that she was not even in Jersey City, much less on Fulton Avenue, when
Fernandez was surveilling the area. While Fernandez was conducting surveillance in the afternoon

5

on December 21, 2014, Plaintiff indicates that she working at a Shop-Rite in Hoboken, New Jersey.
Plaintiffs time card from Shop-Rite shows that on December 21, she worked from 1:23 p.m. to
6:36 p.m. PSOMF

¶ 6-7. Despite Plaintiffs representation that she was at work when the

surveillance occurred, “Fernandez claims that he is 100% sure that Indigo Hatcher was engaged in
the narcotics activity he claims to have observed.” Id.

¶ 26.

In the summer of 2015, Plaintiff received a notice in the mail to appear in court in Jersey
City. Plaintiff appeared and was informed by a judge that there were drug charges pending against
her and that there was a warrant for her arrest. DSOMF

¶J 66-67; PSOMF ¶ 34. Plaintiff was

arrested and bail was set at $10,000. PSOMF ¶ 36. Plaintiff was placed in a holding cell but was
released the same day when she posted bail. DSOMF ¶J 69-71.
On August 10, 2015, the charges against Plaintiff were dismissed because the State
determined that Officer Fernandez’s identification of Plaintiff was incorrect. Id.

¶ 72; PSOMF ¶

39. In moving to dismiss the Indictment, the Assistant Prosecutor explained that “[a]s it turns out
your Honor, the police did not observe Indigo Hatcher making hand{-]to[-]hand transactions, it
was another female who entered the home at 45 Fulton Street.” PSOMF ¶ 39.
B. Procedural History

Plaintiff filed the instant Complaint on November 25, 2015, alleging claims for malicious
prosecution (Count One), false arrest and unlawful imprisonment (Count Two), and illegal search
and seizure (Count Three) pursuant to 42 U.S.C.

§ 1983 and the New Jersey Civil Rights Act

(“NJCRA”), N.J.S.A. 10:6-2. See Compl., D.E. 1. The Complaint also asserts a Monelt claim
against the JCPD for its failure to train, supervise, and control its police officers, and a claim for
supervisory liability (Count Four).

Id.

On March 23, 2018, the Court entered a voluntary

stipulation between the parties that dismissed two defendants; Plaintiffs claim for punitive

6

damages against Jersey City; and Count four, Plaintiffs municipal liability claim. D.E. 51. On
April 11,201$, the remaining Defendants filed this motion for summary judgment.
II.

SUMMARY JUDGMENT STANDARD

A moving party is entitled to summary judgment where “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
fed. R. Civ. P. 56(a). A fact in dispute is material when it “might affect the outcome of the suit
under the governing law” and is genuine “if the evidence is such that a reasonable jury could return
a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 24$ (1986).
Disputes over irrelevant or unnecessary facts will not preclude granting a motion for summary
judgment. Id. “In considering a motion for summary judgment, a district court may not make
credibility deterniinations or engage in any weighing of the evidence; instead, the nonmoving
party’s evidence ‘is to be believed and all justifiable inferences are to be drawn in his favor.”
Marino v. Indits. Crating Co., 358 f.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at

255)). A court’s role in deciding a motion for summary judgment is not to evaluate the evidence
and decide the truth of the matter but rather “to determine whether there is a genuine issue for
trial.” Anderson, 477 U.S. at 249.
A party moving for summary judgment has the initial burden of showing the basis for its
motion and must demonstrate that there is an absence of a genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). After the moving party adequately supports its motion,
the burden shifts to the nonmoving party to “go beyond the pleadings and by her own affidavits,
or by the depositions, answers to interrogatories, and admissions on file, designate specific facts
showing that there is a genuine issue for trial.” Id. at 324 (internal quotation marks omitted). To
withstand a properly supported motion for summary judgment, the nonmoving party must identify

7

specific facts and affinnative evidence that contradict the moving party. Anderson, 477 U.S. at
250. “[I]f the non-movant’s evidence is merely ‘colorable’ or is ‘not significantly probative,’ the
court may grant summary judgment.” Messa v. Omaha Prop. & Cas. Ins. Co., 122 F. Supp. 2d
523, 528 (D.N.J. 2000) (quoting Anderson, 477 U.S. at 249-50)).

Ultimately, there is “no genuine issue as to any material fact” if a party “fails to make a
showing sufficient to establish the existence of an element essential to that party’s case.” Celotex
Corp., 477 U.S. at 322. “If reasonable minds could differ as to the import of the evidence,”
however, summary judgment is not appropriate. See Anderson, 477 U.S. at 250-51.
III.

ANALYSIS

Plaintiffs claims arise under 42 U.S.C.

§ 1983 and the NJCRA. Section 1983, in relevant

part, provides as follows:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of
Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding for redress[.]
Section 1983 does not provide substantive rights; rather, Section 1923 provides a vehicle for
vindicating violations of other federal rights. Graham v. onnor, 490 U.S. 386, 393-94 (1989).
To prove a Section 1983 claim, a plaintiff must demonstrate that (1) a person deprived her of a
right secured by the Constitution or federal law; and (2) the person who deprived her of that right
acted under color of state law. Vetez v. fuentes, No. 15-6939, 2016 WL 4107689, at *2 (D.N.J.
July 29, 2016). Here, Plaintiff alleges that Defendants violated her Fourth Amendment rights.
The NJCRA provides a private cause of action to
[a]ny person who has been deprived of any substantive due process
or equal protection rights, privileges or immunities secured by the

8

Constitution or laws of the United States, or any substantive rights,
privileges or immunities secured by the Constitution or laws of this
State, or whose exercise or enjoyment of those substantive rights,
privileges or immunities has been interfered with or attempted to be
interfered with, by threats, intimidation or coercion by a person
acting under color of law, may bring a civil action for damages and
for injunctive or other appropriate relief.
N.J.S.A. 10:6-2.

The “NJCRA was modeled after

§ 1983, [so] courts in New Jersey have

consistently looked at claims under the NJCRA through the lens of

§ 1983 and have repeatedly

construed the NJCRA in terms nearly identical to its federal counterpart.”
4107689, at *5 (internal quotations and citation omitted).

Velez, 2016 WL

Therefore, the Court considers

Plaintiffs Section 1983 and NJCRA claims together.
A. Claims Against the JCPD

Defendants argue that summary judgment should be granted as to the JCPD because a
municipal police department is not an entity subject to suit, Defs’ Br. at 7-8, and that the JCPD
cam-iot be liable under a theory of vicarious liability, id. at 6. Plaintiff does not appear to oppose
Defendants’ arguments regarding the JCPD.
The Court agrees that the JCPD is not a proper party because local police departments are
not subject to suit under Section 1983 or the NJCRA. See Paditla v. Township of Cherry Hill, 110
F. App’x 272, 278 (3d Cir. 2004) (finding that in “Section 1983 actions, police departments cannot
be sued in conjunction with municipalities, because the police department is merely an
administrative arm of the local municipality, and is not a separate judicial entity”) (internal
quotation omitted); Castoran v. Potlak, No. 14-253 1, 2017 WL 4805202, at *7 (D.N.J. Oct. 25,
2017) (dismissing Section 1983 and NJCRA claims asserted against local police department).
Consequently, Defendants’ motion for summary judgment is granted and the JCPD is dismissed
as a defendant in this matter.

9

B. Claims Against Jersey City

Defendants contend that the claims against Jersey City should also be dismissed because a
municipality cannot be liable under Section 1983 under a theory of respondeat superior. Defs’ Br.
at 6. Plaintiff also does not appear to oppose Defendants’ arguments with respect to Jersey City.
Again, the Court agrees with Defendants. “A municipality cannot be responsible for
damages under section 1983 on a vicarious liability theory, and ‘can be found liable under
only where the municipality itself causes the constitutional violation at issue.”

§ 1983

Carswell v.

Borottgh of Homestead, 381 F.3d 235, 244 (3d Cir. 2004) (internal citations omitted); Ingram v.
Township of Deptford, 911 F. Supp. 2d 289, 298 (D.N.J. 2012) (“[B]ecause respondeat superior
liability is not permitted under
analogous to
under.

.

.

§ 1983, and because New Jersey courts interpret the NJCRA as

§ 1983, the Court holds that respondeat superior liability is not permitted for claims

the NJCRA”). Here, Plaintiff voluntarily dismissed her Monell claim.4 D.E. 51. As a

result, her claims against Jersey City appear to be premised solely on a theory of vicarious liability.
Because this is not a viable theory of liability as to Jersey City, Defendants’ motion for summary
judgment is granted on these ground and Jersey City is dismissed as a defendant in this matter.
C. Claims Against Officer Fernandez

Defendants5 also maintain that summary judgment should be granted for the claims against
Officer Fernandez in his official capacity. Defs’ Br. at 24-25. “[C]laims against defendants in

A plaintiff seeking to hold a municipality liability under Section 1983 via a Monell claim “must
demonstrate that the violation of rights was caused by the municipality’s policy or custom.”
Thomas v. Citmberland County, 749 F.3d 217, 222 (3d Cir. 2014) (citing Monell v. Dept of Soc.
Sen-’s. ofN.Y., 436 U.S. 658, 690-91 (1978)).
Because the JCPD and Jersey City are dismissed as defendants, the remainder of this opinion
only addresses the claims as to Defendant Fernandez in his personal capacity, the only remaining
Defendant in this matter.
10

their official capacity represent an action against the municipality.” Rodriguez v. City of Camden,
No. 09-1909, 2010 WL 186248, at *6 (D.N.J. Jan. 13, 2010); see also Ctuvo v. Dc Biasi, 169 F.
App’x 688, 693 (3d Cir. 2006) (“[A] lawsuit against public officers in their official capacities is
functionally a suit against the public entity that employs them.”). As discussed, municipalities are
not liable unless the wrongdoing “was caused by the municipality’s policy or custom.” Thomas,
749 f.3d at 222 (citing Monett, 436 U.S. at 690). Plaintiff explains that the claims asserted against
Fernandez in his official capacity involve the use of “his position as [a] JCPD officer to provide
specific information that led to the identification and false arrest of Plaintiff” See PIP s Br. at 14.
Thus, Plaintiffs claims against Fernandez in his official capacity are clearly not based on an
alleged violation of a municipal policy. Therefore, Plaintiffs Section 1983 claims against Officer
Fernandez in his official capacity cannot proceed. The Court will grant Defendants’ motion for
summary judgment on these grounds.
Turning to the claims against Officer Fernandez in his personal capacity, Defendants
contend that because there was probable cause to indict Plaintiff, her claims for false
arrest/unlawful imprisonment, illegal search and seizure, and malicious prosecution fail as a matter
of law. Defs’ Br. at 8-21. False arrest and false imprisonment are very similar and are often
considered together. For a Section 1983 false arrest claim, a plaintiff must establish that (1) there
was an arrest; and (2) the arrest was made without probable cause. See James v. City of Wilkes—
Barre, 700 F.3d 675, 680 (3d Cir. 2012). “The proper inquiry in a section 1983 claim based on

false arrest

.

.

.

is not whether the person arrested in fact committed the offense but whether the

arresting officers had probable cause to believe the person arrested had committed the offense.”
Groman v. Township ofManalapan, 47 F.3d 628, 634 (3d Cir. 1995) (quoting Dowling v. City of
Philadelphia, 855 F.2d 136, 141 (3d Cir. 1988)); see also Nanton v. Mecka, No. 11-6132, 2013

11

WL 1844756, at *6 (D.N.J. Apr. 30, 2013) (“The validity of an arrest does not depend on the
ultimate finding of guilt or innocence following an arrest.”). In addition, “where the police lack
probable cause to make an arrest, the arrestee has a claim under

§ 1983 for false imprisonment

based on a detention pursuant to that arrest.” O’Connor v. City ofPhiladelphia, 233 F. App’x 161,
164 (3d Cir. 2007) (citations omitted); see also Reedy v. Township of Cranbern’, No. 06-1080,
2007 WL 2318084, at *3 (W.D. Pa. Aug. 9, 2007) (“The basis for false arrest is the arrest itself,
whereas the basis for false imprisonment is the detention that follows the false arrest.”). A claim
for illegal search and seizure also “stands or falls based on the existence of probable cause or not.”
Crane v. Sttssex Cty. Prosecutor’s Office, No. 08-1641, 2009 WL 192567, at *4 (D.N.J. Jan. 27,
2009). Finally, for a Section 1983 malicious prosecution claim, a plaintiff must establish that (1)
defendants initiated a criminal proceeding; (2) the criminal proceeding ended in plaintiffs favor;
(3) the proceeding was initiated without probable cause; (4) the defendants acted maliciously or
for a purpose other than bringing the plaintiff to justice; and (5) plaintiff suffered from a
“deprivation of liberty consistent with the concept of seizure as a consequence of a legal
proceeding.” See Kossler v. Crisanti, 564 F.3d 181, 186 (3d Cir. 2009) (quoting Estate of Smith
v. Marasco, 318 f.3d 497, 521 (3d Cir. 2003)). Thus, Defendants correctly assert that if there was
probable cause to indict Plaintiff, Plaintiffs claims fail as a matter of law. See Herman v. City of
Millville, 66 F. App’x 363, 365 n.3 (3d Cir. 2003) (stating that probable cause is a “complete
defense” to plaintiffs false arrest, false imprisonment, and malicious prosecution claims).
Defendants maintain that in light of the grand jury indictment, there was probable cause to
prosecute Plaintiff. As a result, Defendants argue that summary judgment must be granted for
them. Defs’ Br. at 8-1 1. Plaintiff counters that there is a genuine issue of material fact that
precludes summary judgment. Plfs Opp. at 7-9.

12

“A grand jury indictment or presentment constitutes prima fade evidence of probable cause
to prosecute.” Rose v. Bartle, 871 F.2d 331, 353 (3d Cir. 1989). This prima fade evidence,
however, may be rebutted with evidence that the presentment was “procured by fraud, perjury or
other corrupt means.” Id. In fleshing out the parties’ arguments, there is a fundamental factual
issue that precludes granting summary judgment for Defendants

—

Plaintiffs whereabouts on

December 21, 2014. As noted, Plaintiff indicates that she was working in another town during the
time of Fernandez’s surveillance in Jersey City. PSOMF ¶J 6-7. As a result, if Plaintiff is believed,
then she could not have been observed by Fernandez. Yet, Defendants do not concede that Plaintiff
was working in Hoboken, such that Fernandez mistakenly identified Plaintiff as being the first
woman he observed during his surveillance.

Although Defendants argue, in passing, that

Fernandez may have made a mistake, see Defs’ Br. at 31, they fail to point to any facts
demonstrating that a mistake occurred. Rather, “Fernandez claims that he is 100% sure that Indigo
Hatcher was engaged in the narcotics activity he claims to have observed.”6 PSOMF ¶ 26. Thus,
if a jury believes Plaintiff, then Fernandez could have not seen Plaintiff commit the drug activity
and, as a result, he lacked probable cause seek charges against her.

Similarly, Plaintiffs

indictment, which was based on Fernandez’s grand jury testimony identifying Plaintiff, would
have been procured through wrongful means.

If a police officer mistakenly arrests the wrong person, the arrest is nevertheless constitutional if
there is probable cause to arrest the correct person, and the officer reasonably believes that he
arrested the right person. United States v. Marshall. 79 F.3d 68, 69 (7th Cir. 1996) (citing Hill v.
C’alijbrnia, 401 U.S. 797, 802 (1971)). Accordingly, had Defendants argued that Fernandez
reasonably, but mistakenly, identified Plaintiff as being present in Jersey City, the Court would
assess whether Fernandez’s mistaken identification was reasonable. However, Defendants have
pointed to no evidence that justifies a mistaken identification analysis. To the contrary, Fernandez
unequivocally testified that he observed Plaintiff during his surveillance.

6

There is also a genuine issue of material fact as to how Fernandez procured Plaintiffs
identity following his surveillance. Fernandez claims that he merely gave Morris the relevant
address, 45 Fulton Avenue, and Morris inputted the information into the BCI Database. As a result
of Morris’s computer search, according to Fernandez, Morris retrieved photographs of both
Plaintiff and her sister, Jasmine Hatcher. Morris recalls the events differently. Morris indicated
that Fernandez already had Plaintiffs name when he (Fernandez) approached Morris. Morris also
remembers Fernandez only asking about Plaintiff rather than both Plaintiff and Jasmine.
Fernandez and Morris’s different versions raise related concerns. If Morris is believed, then his
testimony completely undercuts Fernandez’s claim that he (Fernandez) did not know Plaintiffs
identity before approaching

Morris.

At a minimum, such an inconsistency is relevant to

Fernandez’s credibility on the central issue in the case

—

Plaintiffs identity.

Because of these two material factual disputes, Defendants’ motion for summary judgment
is denied as to the claims asserted against Officer Fernandez.
D. Qualified Immunity

Qualified immunity can protect a municipal officer from liability in a Section 1983 case.
Wright v. City of Philadelphia, 409 F.3d 595, 599 (3d Cir. 2005). “Qualified immunity shields

govermilent officials from personal liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable person would
have known.” Paszkowski v. Roxbury Twp. Police Dep’t, No. 13-7088, 2014 WL 346548, at *2
(D.N.J. Jan. 30, 2014). A court must engage in a two-part inquiry to determine whether qualified
immunity applies: (1) whether the allegations, taken in the light most favorable to the party
asserting the injury, show that defendant’s conduct violated a constitutional right; and (2) whether
the constitutional right at issue was clearly established at the time of the alleged violation. Pearson

14

v. Callahan, 555 U.S. 223, 232 (2009). Courts have discretion to consider either prong of the twopart analysis first. Id. at 236.

“The issue of qualified immunity is generally a question of law, although a genuine issue
of material fact will preclude summary judgment on qualified immunity.” Giles

V.

Kearney, 571

F.3d 318, 326 (3d Cir. 2009). In deciding qualified immunity questions at summary judgment, a
court must view the facts in the light most favorable to the plaintiff. Id.; see also Scott v. Harris,
sso U.s. 372, 378 (2007).

Thus, summary judgment may be granted to an officer if, when

interpreting the facts in the light most favorable to the non-moving party, the court determines that
the evidence does not support a violation of a clearly established constitutional right. Mitchell v.
Forsyth, 472 U.S. 511, 546 (1985) (stating that “when a trial court renders a qualified immunity
decision on a summary judgment motion, it must make a legal determination very similar to the
legal determination it must make on a summary judgment motion on the merits”); see also Tolan
v. Cotton, 572 U.S. 650, 656-57 (2014); Scott, 550 U.S. at 378.
Defendants only address the first inquiry, that Officer Fernandez did not violate Plaintiffs
constitutional rights, arguing Officer Fernandez is entitled to qualified immunity because his
method of identifying Plaintiff was reasonable. Defs’ Br. at 28-31. Yet, to find that Fernandez
acted reasonably in identifying Plaintiff would require the Court to disregard Plaintiffs evidence
that she was not even present during the surveillance. It would further require the Court to ignore
that Fernandez and Morris present materially different versions as to how Fernandez identified
Plaintiff. Again, Defendants have not presented evidence that Fernandez’s identification was
mistaken but nevertheless constitutionally protected.

Because of the parties’ diametrically

opposed views as to Plaintiffs whereabouts on December 21, 2014— along with the inconsistent

15

testimony of Fernandez and Morris viz-a-vis the identification the Court cannot conclude at this
-

time that Officer Fernandez is entitled to qualified immunity.
IV.

CONCLUSION

For the reasons set forth above, Defendants’ motion (D.E. 52) is GRANTED in part and
DENIED in part. An appropriate Order accompanies this Opinion.
Dated: february 27, 2019
/
joiE1 vIichae1 Vazq2’.$.D.J.

16