GOULD v. O'NEAL et al

Filing 110

OPINION. Signed by Judge John Michael Vazquez on 2/7/2022. (bt)

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Not for Publication
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

JONATHAN GOULD,
Civil Action No. 17-100
Plaintiff,
OPINION
v.
DETECTIVE ROBERT O’NEAL, et al.,
Defendants.

John Michael Vazquez, U.S.D.J.
Presently before the Court is a motion for summary judgment filed by Defendants Robert
O’Neal and John Campo. D.E. 99. Plaintiff Jonathan Gould filed a brief in opposition, D.E. 105,
to which Defendants replied, D.E. 107. The Court reviewed all submissions1 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.

1

Defendants’ brief in support of their motion (D.E. 99-100) will be referred to as “Defs. Br.”;
Plaintiff’s brief in opposition (D.E. 105) will be referred to “Plf. Opp.”; and Defendants’ reply
brief (D.E. 107) will be referred to as “Defs. Reply”. Defendants also rely on the Certification of
Brett J. Haroldson (“Haroldson Cert.”) and the attached exhibits (D.E. 99-2 – -8), in addition to
their Statement of Material Facts Not in Dispute (“DSOMF”) (D.E. 99-9). Plaintiff relies on the
Declaration of David B. Shanies (“Shanies Decl.”) and the attached exhibits (D.E. 106), in addition
to his Counterstatement and Statement of Additional Material Facts (“PSOMF”) (D.E. 95-1).

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I.

FACTUAL BACKGROUND2 AND PROCEDURAL HISTORY
During the relevant timeframe, Plaintiff’s mother, Carol Gould, was 83 years old and

resided in a nursing home in West Orange, New Jersey. DSOMF ¶ 2. On March 25, 2014, Chase
Bank USA notified JP Morgan Chase Bank Global Security and Investigations (“GS&I”) of
suspected elder financial exploitation involving Carol Gould. Id. ¶ 1. Plaintiff was an authorized
user for several of his mother’s credit cards and listed as power of attorney for multiple bank
accounts in her name. The following accounts are pertinent: Carol Gould’s personal checking
account ending in 8794 and her credit card accounts ending in 9624, 6000, and 9894. Id. ¶¶ 18,
20, 21, 43, 48.3
A power of attorney (the “POA”) permitted Plaintiff as attorney-in-fact to, among other
things, conduct banking transactions on Carol Gould’s behalf, including making bank withdrawals
to pay bills. Id. ¶ 51; see also Shanies Decl., Ex. 7 (the “POA”) at ¶ 2. Paragraph 4 of the POA
also permitted Plaintiff to do the following:

2

The factual background is taken from DSOMF; PSOMF; the Haroldson Cert. and attached
exhibits; and the Shanies Decl. and attached exhibits. As the parties are familiar with this matter,
the Court recounts the key relevant facts here, and additional facts are discussed in the Analysis
section below.

3

In responding to DSOMF, Plaintiff objects to numerous paragraphs, asserting that Defendants
are relying on a document that is inadmissible hearsay and unauthenticated. See, e.g., PSOMF,
Response to ¶ 43. The document at issue is financial records from GS&I, that were ultimately
provided to the Essex County Prosecutor’s Officer (“ECPO”). See Haroldson Cert., Ex. A. Neither
party addresses this issue in their briefs. Thus, the Court notes that hearsay statements “can be
considered on a motion for summary judgment if they are capable of being admissible at trial.”
Fraternal Order of Police, Lodge 1 v. City of Camden, 842 F.3d 231, 238 (3d Cir. 2016) (internal
quotation omitted); see also Fed. R. Civ. P. 56(c)(2). In deciding a motion for summary judgment,
“the court need only determine if the nonmoving party can produce admissible evidence regarding
a disputed issue of material fact at trial.” Fraternal Order of Police, Lodge 1, 842 F.3d at 238.
Here, the Court concludes that the records could be admissible at trial, for example, through a
GS&I witness establishing a business records foundation or to show the effect on the listener.
Accordingly, the Court will consider the exhibit in deciding this motion.
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To make gifts to any one or more of my descendants, and/or
to a trust established for the benefit of any one of more of my
descendants (including the power to make gifts to himself or herself4
while any of my descendants shall be acting as my attorney-in-fact);
PROVIDED, HOWEVER, that (i) in any calendar year the gift to an
descendant of mine must qualify for the annual exclusion described
in Section 2503(b) of the Internal Revenue Code of 1986, as
amended (the “Code”) . . ., or (ii) the gift to any descendant of mine
must be a transfer described in Section 2503(e) of the Code, or (iii)
the gift to any descendant of mine in excess of said annual exclusion,
as specified in subparagraph (i) of this paragraph 4, shall provide for
such descendants’ s health, education, maintenance and support but
only to the extent that such gift shall not be deemed to discharge any
obligation of support owed by my said attorney-in-fact. I grant this
power notwithstanding that any transaction hereunder may inure to
the benefit of my attorney-in-fact and, consequently may be affected
by a substantial conflict of interest on the party of my attorney-infact[.]
POA ¶ 4. The parties appear to agree that the IRS gift tax parameters at the time were $14,000.
Thus, as will be discussed, the critical language turns on exceeding the gift tax parameters to
provide for a descendant’s “health, education, maintenance and support” (the “HEMS clause”).
Id.
GS&I reviewed the purchases on the three credit card accounts named above, which totaled
$530,176.08, for the period between June 6, 2011, and May 5, 2014. DSOMF ¶¶ 43, 46. This
amount was subsequently paid from Carol Gould’s personal checking account ending in 8794. Id.
¶ 48. Approximately $355,000 of the total charges were payments to Carol Gould’s nursing home.
Id. ¶ 47. Through its internal investigation, GS&I concluded that Plaintiff used the remaining
amount, approximately $171,000, on personal purchases, including trips to multiple states and

4

The POA named Plaintiff’s sister as a successor attorney-in-fact. POA at 1.
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Mexico.5 Id. ¶¶ 49, 58. Moreover, “GS&I found sufficient information to name [Gould] as the
suspect in its investigation.” Id. ¶ 50.
On May 22, 2014, a GS&I investigator contacted the Essex County Prosecutor’s Office
(“ECPO”) Financial Crimes Unit to report the suspected theft. Id. ¶ 52. The investigator later
provided the ECPO with the relevant banking documents. Id. ¶ 56. The matter was assigned to
Assistant Prosecutor Robert Grady and Defendant Detective O’Neal. Id. ¶ 57. O’Neal was an
investigator at the ECPO assigned to the Financial Crimes Unit, and Grady was a prosecutor in the
same unit. PSOMF ¶ 1; DSOMF ¶ 61. O’Neal contacted Gould on February 4, 2015, to arrange
an interview at the ECPO. Gould voluntarily agreed to come to the ECPO on February 13, 2015.
DSOMF ¶ 63. Then, on February 11, 2015, Assistant Prosecutor Robert Grady decided that
Plaintiff should be charged with second degree theft.6 Id. ¶ 64.
When Gould arrived at the ECPO on February 13, he met with O’Neal and Defendant
Sergeant (now Lieutenant) Campo. Id. ¶ 65. Campo was O’Neal’s direct supervisor at the time.
PSOMF ¶ 24. O’Neal advised Gould of his Miranda rights at the outset. DSOMF ¶ 65. Gould
began asking questions because O’Neal had told Gould on the phone that he was not a suspect in
any investigation. Id. ¶ 67; PSOMF, Response to ¶ 67. After some back and forth between Plaintiff
and Defendants, according to Defendants, Plaintiff refused to acknowledge that he understood his

5

The parties do not discuss the potential tax implications to Carol Gould (or Plaintiff) as to
Plaintiff’s use of the $171,000.

6

Plaintiff disputes this fact, PSOMF, Response to ¶ 64, but it is not clear what the dispute is.
Plaintiff indicates that Defendant O’Neal signed the summons and complaint and that O’Neal
testified that he may not have served the document on Plaintiff if Plaintiff had provided a
satisfactory explanation during the scheduled interview. Id. Plaintiff accurately recounts the
record but does not address the factual issue, that is, whether Grady made the decision to charge
Plaintiff. As will be discussed below, there is no dispute that an assistant prosecutor had to approve
the charge before a final charging decision was made.
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rights,7 so Campo terminated the interview. DSOMF ¶¶ 68-69. During this exchange, Campo told
Plaintiff, among other things, that “you don’t control the situation, we do.” PSOMF ¶ 23.
After Campo said he was terminating the interview, the discussion continued. During the
conversation, Campo told Gould that “we’re going to give some paperwork to you and then you’re
free to leave” and again, that “we control the situation.” PSOMF ¶ 23; Haroldson Cert., Ex. D at
T157:11-159:2; T164:2-8. O’Neal then served Plaintiff with a summons complaint charging him
with theft in violation of N.J. Stat. Ann. § 2C:20-3(a). DSOMF ¶ 70. Once served, Campo said
“we need you to stay there until we turn off the camera.” Haroldson Cert., Ex. D at T167:25-7.
The parties provided the Court with a video of the interview. See Id., Ex. G; Shanies Decl., Ex. 4.
The video is approximately eight and one-half minutes long. Over sixty seconds in the beginning
of the video is of an empty room, and O’Neal and Campo do not enter the room until about three
minutes into the video. Id. Thus, the interaction between Plaintiff and Defendants lasted less than
five and one-half minutes. Finally, Plaintiff, O’Neal, and Campo all left the room before the
camera was turned off. Id. While not explicitly stated, the Court presumes that Gould left the
ECPO after exiting the room.
Plaintiff appeared for his arraignment on February 26, 2015. DSOMF ¶ 74. A few days
later, Carol Gould executed an affidavit stating that she was aware of Plaintiff’s expenditures from
her accounts and that he had “carte blanche” to utilize her funds. Id. ¶ 78. During a later interview
with Carol Gould, O’Neal confirmed Carol Gould’s statements from the affidavit. Id. ¶ 79. As a
result, Grady executed an administrative dismissal of the criminal case on March 4, 2015. Id. ¶
80.

7

Plaintiff claims that he understood his rights but that he did not understand why he was being
read his rights. PSOMF, Response to ¶ 67. The distinction is not material to the Court’s decision.
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Plaintiff filed his initial Complaint on January 6, 2017, asserting claims of false arrest
(Count One) and malicious prosecution (Count Two), both in violation of 42 U.S.C. § 1983.
Plaintiff asserted claims against O’Neal, Campo, and Grady. D.E. 1. The three Defendants moved
to dismiss pursuant to Federal Rule of Civil Procedure (12)(b)(1) and Rule 12(b)(6). D.E. 22. The
Court granted Defendants’ motion on February 8, 2018, and provided Plaintiff leave to file an
amended complaint. D.E. 30, 31. Plaintiff filed his Amended Complaint on February 13, 2018,
reasserting the same claims. D.E. 32. Grady subsequently filed a motion to dismiss. D.E. 34. On
July 18, 2018, the Court granted Grady’s motion, and he was dismissed as a defendant in this
matter with prejudice. D.E. 50. O’Neal and Campo filed an answer to the Amended Complaint.
D.E. 35.
On June 24, 2021, O’Neal and Campo were granted leave to file a motion for summary
judgment, D.E. 96, which they then did, D.E. 99.
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, 248 (1986).
Disputes over irrelevant or unnecessary facts will not preclude granting a motion for summary
judgment. Id. “In considering a motion for summary judgment, a district court may not make
credibility determinations or engage in any weighing of the evidence; instead, the nonmoving
party’s evidence ‘is to be believed and all justifiable inferences are to be drawn in his favor.’”
Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at

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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
specific facts and affirmative evidence that contradict the moving party. Anderson, 477 U.S. at
250. “[I]f the non-movant’s evidence is merely ‘colorable’ or is ‘not significantly probative,’ the
court may grant summary judgment.” Messa v. Omaha Prop. & Cas. Ins. Co., 122 F. Supp. 2d
523, 528 (D.N.J. 2000) (quoting Anderson, 477 U.S. at 249-50)).
Ultimately, there is “no genuine issue as to any material fact” if a party “fails to make a
showing sufficient to establish the existence of an element essential to that party’s case.” Celotex
Corp., 477 U.S. at 322. “If reasonable minds could differ as to the import of the evidence,”
however, summary judgment is not appropriate. See Anderson, 477 U.S. at 250-51.
III.

ANALYSIS
Defendants seek summary judgment on both counts of the Amended Complaint. As noted,

Plaintiff asserts claims pursuant to 42 U.S.C. § 1983, which, 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

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deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding for redress[.]
Section 1983 does not provide substantive rights; rather, Section 1983 provides a vehicle for
vindicating violations of other federal rights. Graham v. Connor, 490 U.S. 386, 393-94 (1989).
To prove a Section 1983 claim, a plaintiff must demonstrate that (1) a person deprived him of a
right secured by the Constitution or federal law; and (2) the person who deprived him of that right
acted under color of state law. Velez v. Fuentes, No. 15-6939, 2016 WL 4107689, at *2 (D.N.J.
July 29, 2016). There is no dispute that Defendants acted under color of state law for purposes of
Section 1983. Thus, the focus is on whether either Defendant violated Plaintiff’s constitutional
rights.
Plaintiff asserts his false arrest and malicious prosecution claims pursuant to the Fourth
and Fourteenth Amendments. Am. Compl. at 9-11. Defendants seek summary judgment for
Plaintiff’s Fourteenth Amendment claims pursuant to the “more specific provision” rule. Defs.
Br. at 31-33. The rule provides that “if a constitutional claim is covered by a specific constitutional
provision . . . the claim must be analyzed under the standard appropriate to that specific provision,
not under the rubric of substantive due process.” DeLade v. Cargan, 972 F.3d 207, 210 (3d Cir.
2020) (quoting United States v. Lanier, 520 U.S. 259, 272 n.7 (1997)). A false arrest or
imprisonment claim that is based on the lack of probable cause “is grounded in the Fourth
Amendment’s guarantee against unreasonable seizures.” Groman v. Township of Manalapan, 47
F.3d 638, 636 (3d Cir. 1995). A malicious prosecution claim also arises under the Fourth
Amendment. Halsey v. Pfeiffer, 750 F.3d 273, 292 (3d Cir. 2014). Accordingly, the Court will
analyze Plaintiff’s claims under the Fourth Amendment. Summary judgment is granted to

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Defendants, to the extent that Plaintiff’s claims are premised on some other, unspecified
Fourteenth Amendment rights, based on the more specific provision rule.8
A. Prosecutorial Immunity
Next, Defendants contend that they are entitled to absolute prosecutorial immunity. Defs.
Br. at 13-15. Prosecutors have absolute immunity from federal civil liability for conduct in their
role as prosecutors. With respect to § 1983 claims, prosecutorial immunity applies when the
prosecutor’s conduct is “‘intimately associated with the judicial phase of the criminal process.’”
Fogle v. Sokol, 957 F.3d 148, 159-60 (3d Cir. 2020) (quoting Burns v. Reed, 500 U.S. 478, 493
(1991)). The Court, however, granted Defendants leave to file a motion for a summary judgment
that was limited to the issues raised in their May 18, 2021 letter requesting leave to file the instant
motion. June 24, 2021 Order at 1. The Court explained that “[i]f additional issues are raised, they
will be disregarded by the Court.” Id. at 1 n.1. Defendants did not address prosecutorial immunity
in their May 18, 2021 letter. Accordingly, Defendants’ prosecutorial immunity argument is
disregarded, and Defendants’ motion is denied on these grounds.
B. Qualified Immunity
Turning to the substance of Plaintiff’s claims, Defendants maintain that Plaintiff fails to
establish that a constitutional violation occurred, and even assuming such a violation, they are
entitled to qualified immunity. Given that these issues are intertwined, the Court addresses them
together.

8

Plaintiff’s reference to the Fourteenth Amendment is not entirely clear. The Court is obviously
aware that the Fourth Amendment applies to state officials, including Defendants, because it is
incorporated into the Fourteenth Amendment. Karnes v. Skrutski, 62 F.3d 485, 488 n.1 (3d Cir.
1995). Thus, to the extent Plaintiff included the Fourteenth Amendment on these grounds,
Plaintiff’s reference to the Fourteenth Amendment is appropriate. Summary judgment is granted
as to Plaintiff’s Fourteenth Amendment claims, however, to the extent that Plaintiff is attempting
to assert claims based on other rights also covered by the Fourth Amendment.
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Qualified immunity can protect a state actor from liability in a Section 1983 case. Wright
v. City of Philadelphia, 409 F.3d 595, 599 (3d Cir. 2005).

“Qualified immunity shields

government officials from personal liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable person would
have known.” Paszkowski v. Roxbury Twp. Police Dep’t, No. 13-7088, 2014 WL 346548, at *2
(D.N.J. Jan. 30, 2014). A court must engage in the following 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 the defendant’s conduct violated a constitutional right;
and (2) whether the constitutional right at issue was clearly established at the time of the alleged
violation. Pearson v. Callahan, 555 U.S. 223, 232 (2009). Courts have discretion to consider
either prong of the two-part 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). Moreover, qualified immunity is an affirmative defense for which
a defendant bears the burden of proof. See Goldenbaum v. DeLorenzo, No. 08-1127, 2010 WL
5139991, at *11 (D.N.J. Dec. 10, 2010). 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, 550 U.S. 372, 378 (2007). Thus, summary judgment may be granted to a defendant 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

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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.
1. False Arrest
“An arrest made without probable cause creates a cause of action for false arrest under 42
U.S.C. § 1983.” O'Connor v. City of Philadelphia, 233 F. App'x 161, 164 (3d Cir. 2007) (citing
Dowling v. City of Philadelphia, 855 F.2d 136, 141 (3d Cir. 1988)). To prove a false arrest claim,
a plaintiff must demonstrate that there was an arrest and “that the arrest was made without probable
cause.” Islam v. City of Bridgeton, 804 F. Supp. 2d 190, 197 (3d Cir. 2011).
a. Probable Cause9
Although they also contest whether Plaintiff was arrested, Defendants contend that
probable cause justified any arrest. Defs. Br. at 17. “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, 47 F.3d at 634-35 (quoting Dowling, 855 F.2d at 141). “Where the police lack
probable cause to make an arrest, the arrestee has a claim under [Section] 1983 for false
imprisonment based on a detention pursuant to that arrest.” Id. at 636 (quoting Thomas v.
Kippermann, 846 F.2d 1009, 1011 (5th Cir. 1988)).
Probable cause exists if, at the time a suspect is arrested, “the facts and circumstances
within the officers’ knowledge and of which they had reasonably trustworthy information were
sufficient to warrant a prudent man in believing that the suspect had committed or was committing
an offense.” Wright, 409 F.3d at 602. In determining whether a police officer had probable cause

9

Lack of probable cause is also an element of Plaintiff’s malicious prosecution claim. See Allen
v. N.J. State Police, 974 F.3d 497, 502 (3d Cir. 2020) (quoting Johnson v. Knorr, 477 F.3d 75, 8182 (3d Cir. 2007)). Thus, the probable cause analysis applies equally to that claim.
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to arrest, a court must review the totality of the circumstances of the events leading up to the arrest
and must do so from the “standpoint of an objectively reasonable police officer[.]” United States
v. Myers, 308 F.3d 251, 255 (3d Cir. 2002) (internal citation omitted). “A police officer may be
liable for civil damages for an arrest if ‘no reasonable competent officer’ would conclude that
probable cause exists.” Wilson v. Russo, 212 F.3d 781, 789-90 (3d Cir. 2000) (quoting Malley v.
Briggs, 475 U.S. 335, 341 (1986)). The existence of probable cause is frequently a question of
fact that is not appropriate for resolution through summary judgment. Sharrar v. Felsing, 128 F.3d
810, 818 (3d Cir. 1997).
The Court addresses three issues as to probable cause: the information supplied by GS&I,
the scope of the POA, and the failure to interview Carol Gould. Gould was charged with theft in
violation of N.J. Stat. Ann. § 2C:20-3(a). DSOMF ¶ 70. The statute states that “a person is guilty
of theft if he unlawfully takes, or exercises unlawful control over, movable property of another
with purpose to deprive him thereof.” N.J. Stat. Ann. § 2C:20-3(a).
The information supplied by GS&I certainly contributed to a finding of probable cause.
GS&I provided its investigative information to the ECPO, as well as GS&I’s conclusion that
Plaintiff used Mrs. Gould’s money for his personal use. Namely, after an internal investigation,
GS&I concluded that there was sufficient information to conclude that Plaintiff used $171,014.20
of Carol Gould’s money for his own personal purchases. DSOMF ¶¶ 49, 58. A GS&I investigator
contacted the ECPO Financial Crimes Unit on May 22, 2014 to report the suspected theft. Id. ¶
52. The investigator later provided the ECPO with the relevant banking documents, which
referenced the POA. Id. ¶ 56. Through his review of the banking documents, O’Neal noted that
Plaintiff used Mrs. Gould’s credit cards for $171,014.20 of personal purchases and her checking
account to pay for the credit card purchases. Id. ¶ 58. Based on these documents, a reasonable

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officer could conclude that there was probable cause that Plaintiff was using his mother’s funds
for his own personal purchases.
Before turning to the scope of the POA, the Court notes that the parties appear to agree that
Plaintiff was an authorized user of the credit cards on which he made the relevant trip purchases.
The parties also apparently agree that as an authorized user, Gould was permitted to make such
purchases. Thus, the critical question becomes whether the POA permitted Plaintiff to use funds
from his mother’s account to pay the credit card bills. As noted, paragraph 4 of the POA addressed
Plaintiff’s authority in this regard. The parties appear to agree that the IRS gift tax parameters at
the time were $14,000, so this clause of paragraph 4 is of no benefit to Plaintiff. As a result, the
critical inquiry is whether Defendants had probable cause to believe that the HEMS clause was not
applicable to Plaintiff’s personal purchases (including trips to California, Nevada, Texas, Florida,
and Mexico) that exceeded the gift tax parameters.
Before this investigation, O’Neal had never seen a power of attorney and lacked a
professional understanding of the legal implications of such a document. PSOMF ¶ 12. There is
no indication that O’Neal was an attorney by training. Grady, however, was a licensed attorney
although, as a prosecutor, not one who practiced in trusts and estates. “The Supreme Court has
recognized that ‘it is inevitable that law enforcement officials will in some cases reasonably but
mistakenly conclude that probable cause is present, and we have indicated that in such cases those
officials—like other officials who act in ways they reasonably believe to be lawful—should not
be held personally liable.’” Kelly v. Borough of Carlisle, 622 F.3d 248, 254 (3d Cir. 2010) (quoting
Anderson v. Creighton, 483 U.S. 635, 641 (1987)). An officer may be entitled to qualified
immunity under such circumstances. Id. In fact, the Third Circuit has explained that “a police
officer who relies in good faith on a prosecutor’s legal opinion that the arrest is warranted under

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the law is presumptively entitled to qualified immunity from Fourth Amendment claims premised
on a lack of probable cause.” Id. at 256. Such reliance must be objectively reasonable, but a
plaintiff may rebut the presumption “by showing that, under all the factual and legal circumstances
surrounding the arrest, a reasonable officer would not have relied on the prosecutor’s advice.” Id.
“[T]he touchstone is ‘the objective reasonableness’ of their belief in the lawfulness of their
actions.” Handy v. Palmiero, 836 F. App’x 116, 119 (3d Cir. 2020) (quoting Sherwood v.
Mulvihill, 113 F.3d 396, 399 (3d Cir. 1997)).
During his deposition, Grady did not recall much about Plaintiff’s case. But Grady
acknowledged that after GS&I telephonically reported its concerns to the ECPO, Grady asked for
a copy of the POA. Haroldson Cert., Ex. E at T44:7-44:25. Grady explained that he wanted a
copy of the POA to see what it permitted. Id. at T50:9-52:10. Grady further testified that he spoke
to the attorney who had drafted the POA. Id. at T133:3-135:6. Grady acknowledged that he did
not practice in trusts and estates, he did not speak with a trust and estates expert, and he did not
research how the IRS interpreted “health, education, maintenance, and support.” Id. at T138:20139:18. But Grady also testified that in his view, Plaintiff’s payments from his mother’s account
for his personal expenditures did not fall within the HEMS clause. Id. at T137:16-138:15.
Plaintiff fails to raise a genuine dispute of material fact as to Grady’s reading of the HEMS
clause or, more importantly, Defendant O’Neal’s reasonable reliance thereon. Plaintiff does not
produce any evidence to contradict Grady’s reading of the HEMS clause. Plaintiff provides no
expert report, no IRS guidance as to the scope of the HEMS clause, no caselaw, or any other
information that would raise a genuine dispute of material fact. In fact, as the record currently
stands, Plaintiff has not produced any evidence demonstrating that the POA did in fact permit him
to make the payments from his mother’s account for his personal use. Thus, Plaintiff fails to

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provide any evidence challenging Defendants’ contention that probable cause existed on February
13. Because there is no genuine dispute of material fact as to probable cause, Defendants are
entitled to qualified immunity as no constitutional violation occurred.
Plaintiff’s arguments as to his mother do not change the Court’s conclusion. Plaintiff
argues that probable cause did not exist because Defendants could not actually confirm that theft
occurred.

Plf. Opp. at 17.

The probable cause determination is based on “the facts and

circumstances within the officers’ knowledge” at the time of arrest. Wright, 409 F.3d at 602.
Plaintiff asserts that probable cause did not exist because Carol Gould approved of all of Plaintiff’s
charges. Plf. Opp. at 15-17. Plaintiff continues that “[h]ad they taken this simple step of speaking
with [Carol Gould], they could, and would have easily confirmed that Plaintiff committed no
crime.” Id. at 17. While speaking with Carol Gould beforehand would have been prudent (and,
frankly, expected as there did not appear to be any extenuating circumstances requiring an
immediate decision to charge), Plaintiff fails to point to any authority demonstrating that
Defendants were legally required to first interview Carol Gould. The cases relied on by Defendants
are distinguishable. See Clipper v. Takoma Park, 876 F.2d 17, 19-20 (4th Cir. 1989) (upholding
jury finding of lack of probable cause because the officers failed to speak to alibi witnesses, failed
to review surveillance footage, and another officer had said that while the plaintiff looked like the
robber, the officer was not sure)10; Wagenmann v. Adams, 829 F.2d 196, 206-09 (1st Cir. 1987)

10

The Fourth Circuit in Clipper made clear that mere failure to investigate certain leads was
insufficient, standing alone, to negate probable cause:
We would not suggest that Starkey's failure to investigate the leads
that Clipper provided was, in itself, sufficient to negate probable
cause.
In our view, however, the evidence of that
omission, see BeVier v. Hucal, 806 F.2d 123, 127–28 (7th
Cir.1986), cited with approval in Sevigny v. Dicksey, 846 F.2d 953,
957 n. 5 (4th Cir.1988), the evidence of Wortman's statement to
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(upholding jury findings of lack of probable cause because there was conflicting evidence which
the jury could have credited); Sevigny v. Dicksey, 846 F.2d 953, 956-58 (4th Cir. 1988) (upholding
jury finding of lack of probable cause because officer charged woman with two offenses that were
factually inconsistent and because the officer failed to interview witnesses at the scene); BeVier v.
Hucal, 806 F.2d 123, 126-28 (7th Cir. 1986) (upholding verdict that officer lacked probable cause
as to child neglect because the officer did not have sufficient evidence as to the mens rea element;
disregarded the opinion of experienced investigator that the case did not appear to be childhood
neglect; and failed to interview the parents, the babysitter, or other personnel); Moore v.
Marketplace Rest., Inc., 754 F.2d 1336, 1345-47 (7th Cir. 1985)11 (remanding unlawful arrest
claim as to probable cause because factual issues existed as to whether officers could reasonably
rely on restaurant owner’s complaint when small amount of money was involved and the matter
was akin to a breach of contract over a meal and also remanding to determine whether an statement
was provided in violation of the constitution); Lusby v. T.G. & Y. Stores, Inc., 749 F.2d 1423, 1432
(10th Cir. 1984) (upholding finding of lack of probable cause when security guard failed to check

Starkey, and the speculative nature of the other information and
investigative instincts upon which Starkey relied in making the
arrest form a sufficient evidentiary base to sustain the verdict upon
post-trial motions and on appeal.
Id. at 20.
11

The three-judge panel in Moore issued three opinions. Judges Coffey and Posner each wrote
separate opinions and Judge Gibson filed an opinion that concurred in part and dissented in part.
Judge Gibson, however, concurred with Judge Coffey as to the probable cause analysis. Id. at
1361 (Gibson, J., concurring in part and dissenting in part).

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with cashier as to whether the plaintiff paid for sunglasses and also prohibited the plaintiff from
getting the cashier’s attention to confirm that he paid for them).12
The Court further notes that Carol Gould’s statements exonerating Plaintiff are not
necessarily dispositive as to a probable cause determination. A reasonable officer could potentially
conclude that Carol Gould was not providing accurate information in an effort to protect her son
after-the-fact. Of course, any such statements by a victim exonerating an alleged defendant may
make the case, as a practical matter, extremely weak and lacking in jury appeal. But, as a matter
of law, if an officer had a reasonable basis to doubt the veracity of such statements, probable cause
could nevertheless be established in the face of such information. To this end, Carol Gould
informed O’Neal that Plaintiff had “carte blanche” pursuant to the POA. Haroldson Cert., Ex. C
at T227:22-228:4. Yet, when O’Neal asked her about paragraph 4 of the POA and how much
Plaintiff could gift himself, Carol Gould responded that she did not know how to answer that
question. Id. at 229:16-230:1. The POA clearly shows that Plaintiff did not have “carte blanche”
as to himself. And the POA was the only document that permitted Plaintiff to make payments
from Carol Gould’s account.
Summary judgment is granted to Defendants as to probable cause. As a result, both
counts—the false arrest and the malicious prosecution—are dismissed. Nevertheless, the Court
also reviews additional elements of both claims.

12

Another aspect of the case concerning policy was vacated and remanded by the Supreme Court,
474 U.S. 805 (1985), for reconsideration in light of a recent Supreme Court decision. On remand,
the Tenth Circuit affirmed its prior decision. Lusby v. T.G. & Y. Stores, Inc., 796 F.2d 1307 (10th
Cir. 1986).
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b. Arrest
The Court next considers whether Gould was unlawfully seized. Defendants argue that
Plaintiff cannot prove a false arrest claim because he was never arrested. Defs. Br. at 17. Plaintiff
contends that he was arrested on February 13, 2015, while he was at the ECPO for his interview.
Plf. Opp. at 13-15.
A traditional arrest constitutes a seizure under the Fourth Amendment.

Black v.

Montgomery County, 835 F.3d 358, 364-65 (3d Cir. 2016). “But the scope of what may be
considered a seizure is broader.” Id. at 365. A seizure occurs “‘when the officer, by means of
physical force or show of authority, has in some way restrained the liberty of a citizen.’”
California v. Hodari D., 499 U.S. 621, 625 (1991) (quoting Terry v. Ohio, 392 U.S. 1, 19 n.16
(1968)). The restraint must be “‘willful’ and not merely the consequence of ‘an unknowing act.’”13
Brendlin v. California, 551 U.S. 249, 254 (2007) (quoting Brower v. County of Inyo, 489 U.S. 593,
596 (1989)). When a restraint occurs through a show of authority rather than physical force, courts
apply an objective test to determine whether a seizure occurred. Specifically, a court considers
“‘whether the officer’s words and actions would have conveyed . . . to a reasonable person’ that
he was not free to leave.” United States v. Lowe, 791 F.3d 424, 430 (3d Cir. 2015) (quoting Hodari
D., 499 U.S. at 628). “While an officer merely asking a citizen questions may not be a seizure,”
the presence of additional factors may turn the questioning into a seizure. Black, 835 F.3d at 365.
For example, certain “demonstration[s] of authority” such as “‘the threatening presence of several
officers, the display of a weapon by an officer, some physical touching . . . , or the use of language

13

While not raised by Defendants, the Court questions whether the purported seizure on February
13 could be considered willful. Although Campo’s verbal statements conditioned Gould’s ability
to leave on certain events like turning off the video camera, Campo viewed the interview as noncustodial and believed that Gould was free to leave at any point. Haroldson Cert., Ex. D at
T157:24-13.
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or tone of voice indicating that compliance with the officer’s request might be compelled.’”
Vargas v. City of Philadelphia, 783 F.3d 962, 969 (3d Cir. 2015) (quoting United States v.
Crandell, 554 F.3d 79, 85 (3d Cir. 2009)). Finally, there must be “submission to the assertion of
authority.” Id. at 626. Submission may “take[] the form of passive acquiescence.” Brendlin, 551
U.S. at 255.
Turning to the relevant events, O’Neal contacted Gould earlier in the month to arrange an
interview and Gould voluntarily agreed to come to the ECPO on February 13, 2015. PSOMF ¶
63. Gould maintains O’Neal did not inform Gould that he was the subject on any investigation.
PSOMF, Response to ¶ 67. When Gould arrived at the ECPO on February 13, O’Neal, who was
“accompanied by” Campo, asked Gould to go into “what looked to [Gould] like a conference
room.” Haroldson Cert., Ex. F at T55:8-10. Once in the conference room, O’Neal advised Gould
of his Miranda rights. PSOMF ¶ 65. Gould then started asking O’Neal and Campo questions
about the interview process. After some back and forth, Gould said, “hold on a second” and Campo
replied to Gould “you don’t control the situation, we do.” Haroldson Cert., Ex. D at T155:3-5.
After more back and forth, Gould said “[i]f I had known this, I would’ve come in with an attorney”
and Campo said that they were terminating the interview. Id. at T157:5-23. There was some
additional discussion, and Campo told Gould that “we’re going to give some paperwork to you
and then you’re free to leave” and again, that “we control the situation.” PSOMF ¶ 23; Haroldson
Cert., Ex. D at T157:11-159:2; T164:2-8. O’Neal then handed Gould the Summons Complaint.
Haroldson Cert., Ex. D at T165:22-25. Finally, after more back and forth, Campo told Gould that
“[w]e need you to stay there until we turn off the camera and you’re free to leave.” Id. at T167:257. This entire exchange lasted less than six minutes. See Shanies Decl., Ex. 4. And neither

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Defendant told Gould he was not free to leave or that he was under arrest at any point during their
conversation. Yet due to Campo’s statements, Gould maintains that he was placed under arrest.
The totality of the evidence, which the Court views in a light most favorable to Plaintiff as
the non-moving party (and gives Plaintiff the benefit of all reasonable inferences therefrom),
demonstrates that Plaintiff was not seized on February 13. Gould voluntarily went to the ECPO,
and O’Neal started the interview by reading Gould his Miranda rights. The Court is aware that
Miranda rights must be given “in the context of a custodial interrogation.” Alston v. Redman, 34
F.3d 1237, 1242 (1994). However, that does not mean that an officer cannot provide the warnings
at other times. O’Neal testified that it was always his practice to provide a suspect with Miranda
warnings before an interview at the ECPO, Haroldson Cert., Ex. C at T262:3-20, and Plaintiff has
produced no evidence to the contrary.
In addition, during the interview, Campo told Gould that “we control the situation.”
PSOMF ¶ 23. The statement about control does not address whether Gould was required to stay.14
The statement does not expressly indicate that Gould had to remain, and neither Defendant told
Gould that he was under arrest during the interview. Finally, Plaintiff does not allege that Campo
“physically restrained him, flashed his weapon or made a similar show of authority, or even raised
his voice during the meeting.” Fera v. Baldwin Borough, 350 F. App’x 749, 754 (3d Cir. 2009)
(concluding that plaintiff was not seized during questioning at police station where the plaintiff
was asked to “to make a difficult decision” but the defendants “did not restrict his freedom of
movement or otherwise prevent him from ending the meeting”). Viewed objectively, Plaintiff

14

Campo’s statement appears to be in response to Gould’s questions, meaning that Defendants
were in charge of the questioning rather than the other way around. The Court could not discern
any indication during the interview that Campo said that he was in control of the situation in
response to a statement or question by Plaintiff as to being free to leave. To the contrary, Plaintiff
never asked if he was free to leave or if he was under arrest. See Shanies Decl., Ex. 4.
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does not establish that he was barred at any point, through either words or actions, from leaving
during the interview. See United States v. Ludwikowski, 944 F.3d 123, 132-34 (3d Cir. 2019)
(concluding that a defendant who voluntarily went to police station and was questioned for a very
lengthy period of time was objectively not in custody for purposes of Miranda custody).
Campo did make statements about Gould’s ability to leave after Campo said he was
terminating the interview. Henderson Decl., Ex. D at T157:17-159:3. Both these statements were
conditioned on the completion of brief administrative tasks – the service of paperwork and turning
off a video camera. PSOMF ¶ 23. Yet, Plaintiff fails to cite any authority indicating that a seizure
occurs when a law enforcement officer instructs a person to wait for service of legal documents.
Otherwise, law enforcement would commit an unconstitutional seizure each time they attempted
to serve a defendant (who was not otherwise in custody). Similarly, Plaintiff fails to provide
authority demonstrating that an illegal seizure occurs when an officer tells a person that the person
is free to leave but the officer first has to stop a recording. A seizure only results from “coercive
pressure from state actors resulting in significant, present disruption of the targeted person’s
freedom of movement.” James v. City of Wilkes-Barre, 700 F.3d 675, 681 (3d Cir. 2012)
(emphasis in original) (quoting Kernats v. O’Sullivan, 35 F.3d 1171, 1180 (7th Cir. 1994)).
Plaintiff does not allege that Campo raised his voice, flashed a weapon, or engaged in any other
conduct suggesting that Plaintiff would not be able to leave. In short, Plaintiff was told that he
was free to leave pending the resolution of two short tasks. As a result, there is no genuine dispute
of material fact and Plaintiff fails to establish a triable issue as to his alleged seizure.
For the foregoing reasons, summary judgment on the false arrest claim is also granted to
Defendants on this ground.

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2. Malicious Prosecution
For a Section 1983 malicious prosecution claim, a plaintiff must establish that (1)
defendants initiated a criminal proceeding; (2) the criminal proceeding ended in plaintiff’s 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 Allen v. N.J. State Police, 974 F.3d 497, 502 (3d Cir. 2020) (quoting Johnson v.
Knorr, 477 F.3d 75, 81-82 (3d Cir. 2007)).
Defendants argue that as law enforcement officers, they cannot initiate criminal
proceedings. Defs. Br. at 19-20. If law enforcement officers “influenced or participated in the
decision to institute criminal proceedings, they can be liable for malicious prosecution.” Halsey,
750 F.3d at 297; see also Henderson v. Union County, No. 14-7708, 2017 WL 4861622, at *4 n.3
(D.N.J. 2017) (“Although prosecutors typically initiate proceedings against criminal defendants,
liability for malicious prosecution can also attach when a defendant influences a third party to
initiate the proceedings.”) (internal quotation omitted).
As to Campo, Plaintiff provides no evidence suggesting that Campo was involved in the
decision to initiate criminal charges against him. Plaintiff, therefore, fails to raise a genuine dispute
of material fact that Campo initiated criminal proceedings. O’Neal, however, signed the summons
complaint against Plaintiff and there is evidence that O’Neal participated to some extent in the
decision to institute criminal proceedings. Critically, however, there must also be some evidence
of officer misconduct. Namely, “officers who conceal and misrepresent material facts to the
district attorney are not insulated from a § 1983 claim for malicious prosecution.” Halsey, 750
F.3d at 297. Moreover, a plaintiff must demonstrate that the prosecutorial decision to initiate

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criminal proceedings was influenced by the law enforcement officer’s purported misconduct.
Peterson v. Bernardi, 719 F. Supp. 2d 419, 431 n.12 (D.N.J. 2010).
Here, Plaintiff fails to point to evidence that would create a genuine dispute of material fact
demonstrating that O’Neal engaged in misconduct. Nothing demonstrates that O’Neal fabricated
evidence, provided Grady with false information, or otherwise made any material
misrepresentations or omissions that influenced Grady’s decision to charge Gould with second
degree theft. While Grady could not recall the specific decision to charge Plaintiff, Grady
acknowledged that an assistant prosecutor approved a complaint before filing, that he assumed that
he was the assistant prosecutor who approved Plaintiff’s complaint, and that he had no reason to
believe that another assistant prosecutor approved Plaintiff’s complaint. Haroldson Cert., Ex. E at
T92:2-18; 100:17-24; 104:4-24. As to the critical document, the POA, O’Neal freely admitted that
at the time of the decision to charge as well as at the time of his deposition, he did not know the
full legal implications of the document. And, as noted, Grady testified that he had reviewed the
POA and come to his own conclusion as to the HEMS clause. There is no evidence that O’Neal
interpreted the scope of the clause or provided Grady with misleading information as to the clause
or the POA itself.
For this additional reason, both Defendants are entitled to summary judgment on the
malicious prosecution claim.
IV.

CONCLUSION
For the reasons set forth above, Defendants’ motion for summary judgment (D.E. 99) is

GRANTED. An appropriate Order accompanies this Opinion.
Dated: February 7th, 2022
_____________________________
John Michael Vazquez, U.S.D.J.

23