ZISA v. HAVILAND et al

Filing 347

OPINION & ORDER that Defendants motions to dismiss 325 and 326 are DENIED. Signed by Judge John Michael Vazquez on 4/28/2023. (sm)

Not for Publication
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

CHARLES ZISA,
Plaintiff,
Civil Action No. 17-5551

v.

OPINION & ORDER

JOHN HAVILAND, et al.,
Defendants.

John Michael Vazquez, U.S.D.J.
This matter involves alleged civil rights violations that occurred during the criminal
investigation and prosecution of Plaintiff, the former Chief of the Hackensack Police Department.
Through the present motions, Defendants Stephen LoIacono, Thomas Padilla, and John Herrmann
seek to dismiss the malicious prosecution claims asserted against them. D.E. 325, 326. Plaintiff
filed a consolidated brief in opposition, D.E. 332, to which Defendants replied, D.E. 339, 340. The
Court reviewed the submissions made in support and in opposition to the motions1 and considered
the motions without oral argument pursuant to Fed. R. Civ. P. 78(b) and L. Civ. R. 78.1(b). For
the reasons that follow, the motions are DENIED.

1

The Court refers to Defendants LoIacono and Padilla’s brief in support of their motion to dismiss
(D.E. 325-1) as “LoIacono Br.”; Defendant Herrmann’s brief in support of his motion to dismiss
(D.E. 326) as “Herrmann Br.”; Plaintiff’s omnibus brief in opposition (D.E. 332) as “Plf. Opp.”;
LoIacono and Padilla’s reply brief (D.E. 339) as “LoIacono Reply”; and Herrmann’s reply brief
(D.E. 340) as “Herrmann Reply”.
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I.

FACTUAL2 AND PROCEDURAL HISTORY
Because the parties are familiar with this matter, the Court does not retrace the full factual

and procedural history. Instead, the Court incorporates by reference the detailed background in its
October 19, 2019 Opinion and Order (“October 19 Opinion”) that partially dismissed Plaintiff’s
First Amended Complaint, D.E. 77, 78, and its March 31, 2020 Opinion and Order (“March 30
Opinion”) that partially dismissed the SAC, D.E. 217, 218.

The present motions involve

allegations related to the 2008 Car Accident and Plaintiff’s malicious prosecution claims, Counts
III through V of the SAC.3 Accordingly, the Court provides a brief factual background of the 2008
Car Accident and discusses further, relevant facts in the analysis below.
Briefly, Plaintiff’s 2008 Car Accident allegations pertain to a single vehicle accident
involving K.T., Plaintiff’s former girlfriend, who was driving Plaintiff’s car. SAC ¶ 59. Plaintiff
alleges that Defendants conspired to falsely allege that K.T. was driving under the influence of
alcohol when the accident occurred. Id. ¶¶ 82-84. Herrmann, an officer with the Hackensack
Police Department, allegedly participated in the investigation and gave false information that
ultimately gave rise to the criminal proceedings against Plaintiff. Id. ¶ 63. Critically, Herrmann
claimed that he was present at the accident scene and observed K.T. under the influence. Plaintiff
later learned, on the eve of trial, that Herrmann allegedly falsified information to make it appear
that he was at the scene. Id. ¶¶ 65, 83. Herrmann also claimed that the day after the accident,
Plaintiff threatened Herrmann and told him to keep the circumstances of the accident a secret. Id.
2

The factual background is taken from Plaintiff’s Second Amended Complaint (the “SAC”). D.E.
118. When reviewing a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), a
court accepts as true all well-pleaded facts in a complaint. Fowler v. UPMC Shadyside, 578 F.3d
203, 210 (3d Cir. 2009).
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Plaintiff asserts malicious prosecution and conspiracy to commit malicious prosecution claims
pursuant to Section 1983 in Count III, the New Jersey Civil Right Act (“NJCRA”) in Count IV,
and the common law in Count V. SAC ¶¶ 399-448.
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¶ 66. Plaintiff pleads that the Bergen County Prosecutor’s Office (“BCPO”) based its criminal
investigation on the purportedly falsified allegations from Herrmann and other Defendants. Id. ¶
82.
Plaintiff was subsequently arrested for insurance fraud related to a claim that he filed for
the accident, id. ¶ 140, and then indicted for the insurance fraud and additional charges related to
the car accident, id. ¶ 261. On May 16, 2012, a jury convicted Plaintiff on five of the nine counts
brought against him, which included counts related to the 2008 Car Accident. Id. ¶ 318. The trial
court subsequently dismissed the charges for lack of evidence except for the official misconduct
count pertaining to the 2008 Car Accident and the insurance fraud count. Id. ¶ 321. On appeal,
the Appellate Division ordered the insurance fraud count dismissed and remanded the official
misconduct charge. Id. ¶ 350. On remand, the trial court dismissed the remaining count due to
considerations of fundamental fairness and double jeopardy. Id. ¶ 358. Plaintiff alleges that
LoIacono and Padilla permitted, “through their inaction” the malicious prosecution of Plaintiff.
Id. ¶¶ 14, 406. LoIacono was the Hackensack City Manager during the relevant events, and Padilla
was the Acting Officer in Charge of the Hackensack Police Department. Id. ¶ 14.
Plaintiff filed this civil rights litigation in 2017, asserting numerous claims related to the
investigation and prosecution of charges related to the 2008 Car Accident and an altercation that
occurred in 2004. In the October 19, 2018 and March 31, 2020 Opinions, the Court dismissed
Plaintiff’s malicious prosecution claims premised on the 2008 Car Accident as to the then moving
Defendants because Plaintiff had failed to plead that the criminal prosecution was favorably
terminated. See Oct. 19 Opinion at 49-50. On April 4, 2022, however, the Supreme Court decided
Thompson v. Clark, -- U.S. --, 142 S. Ct. 1332, 1340 (2022), and rejected the argument that a
plaintiff must establish “an affirmative indication of innocence” in a Section 1983 malicious

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prosecution claim. Id. at 1340. Instead, the Supreme Court concluded that “a plaintiff need only
show that his prosecution ended without a conviction.” Id. at 1341. Accordingly, this Court denied
Herrmann’s pending motion to dismiss the malicious prosecution claim based on the law of the
case doctrine. D.E. 316. The Court also granted Plaintiff’s motion for reconsideration as to
dismissal of the malicious prosecution claims, and reinstated Counts Three through Five of the
SAC to the extent they were dismissed for lack of a favorable termination. D.E. 321. Finally, the
Court granted Defendants leave to assert arguments to dismiss the reinstated claims on a basis
other than the favorable termination. Id. The instant motions followed.
II.

LEGAL STANDARDS
LoIacono and Padilla seek to dismiss Counts Three through Five pursuant to Federal Rule

of Civil Procedure 12(b)(6). LoIacono Br. at 3. Rule 12(b)(6) permits a defendant to move to
dismiss a count for “failure to state a claim upon which relief can be granted[.]” To withstand a
motion to dismiss under Rule 12(b)(6), a plaintiff must allege “enough facts to state a claim to
relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A
complaint is plausible on its face when there is enough 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). Although the plausibility standard “does not impose a probability
requirement, it does require a pleading to show more than a sheer possibility that a defendant has
acted unlawfully.” Connelly v. Lane Constr. Corp., 809 F.3d 780, 786 (3d Cir. 2016) (internal
quotation marks and citations omitted). As a result, a plaintiff must “allege sufficient facts to raise
a reasonable expectation that discovery will uncover proof of [his] claims.” Id. at 789.
In evaluating the sufficiency of a complaint, a district court must accept all factual
allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff.

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Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008). A court, however, is “not
compelled to accept unwarranted inferences, unsupported conclusions or legal conclusions
disguised as factual allegations.” Baraka v. McGreevey, 481 F.3d 187, 211 (3d Cir. 2007). If,
after viewing the allegations in the complaint most favorable to the plaintiff, it appears that no
relief could be granted under any set of facts consistent with the allegations, a court may dismiss
the complaint for failure to state a claim. DeFazio v. Leading Edge Recovery Sols., LLC, No. 102945, 2010 WL 5146765, at *1 (D.N.J. Dec. 13, 2010).
Herrmann contends that the malicious prosecution claims must be dismissed as to him
pursuant to Federal Rule of Civil Procedure 12(c). Herrmann Br. at 6-7. A Rule 12(c) motion for
judgment on the pleadings is filed after the pleadings are closed. Fed. R. Civ. P. 12(c). In addition,
Rule 12(h) provides that the defense of failure to state a claim may be raised through a Rule 12(c)
motion for judgment on the pleadings or a Rule 12(b)(6) motion to dismiss. Fed. R. Civ. P. 12(h).
Accordingly, courts apply the same standard when analyzing the defense of failure to state a claim
for a Rule 12(b)(6) motion and a Rule 12(c) motion. Turbe v. Virgin Islands, 938 F.2d 427, 428
(3d Cir. 1991). The Court, therefore, considers the motions together.
III.

ANALYSIS
To state a prima facie malicious prosecution claim under Section 1983, the NJCRA, and

the common law, a plaintiff must plead that (1) defendants initiated a criminal proceeding; (2) the
criminal proceeding ended in plaintiff’s favor; (3) the proceeding was initiated without probable
cause; and (4) the defendants acted maliciously or for a purpose other than bringing the plaintiff
to justice. See Roberts v. County of Essex, --- F. Supp. 3d ---, 2022 WL 18024214, at *7 (D.N.J.
Dec. 30, 2022) (setting forth elements for Section 1983 and common law malicious prosecution
claims); Waselik v. Township of Sparta, No. 16-4969, 2017 WL 2213148, at *8 n.15 (D.N.J. May

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18, 2017) (stating that a malicious prosecution claim under the NJCRA is construed in parallel to
a Section 1983 claim). Section 1983 claims also require a plaintiff to establish that “he suffered a
deprivation of liberty consistent with the concept of seizure as a consequence of a legal
proceeding.” Roberts, 2022 WL 18024214, at *7.
1. Probable Cause
Defendants first argue that the malicious prosecution claims must be dismissed because
Plaintiff’s SAC plausibly establishes the existence of probable cause for the criminal charges
related to the 2008 Car Accident. Herrmann Br. at 7; LoIacono Br. at 3-7. “The existence of
probable cause is an absolute defense to a malicious prosecution claim brought either under § 1983
or pursuant to New Jersey law.” Moore v. Carteret Police Dep’t, 254 F. App’x 140, 142 (3d Cir.
2007) (citing Wildoner v. Borough of Ramsey, 744 A.2d 1146, 1154 (N.J. 2000)). Probable cause
exists where “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 v. City of Philadelphia, 409 F.3d
595, 599 (3d Cir. 2005); see also Evans v. City of Newark, No. 14-120, 2023 WL 2535283, at *17
(D.N.J. Mar. 16, 2023) (explaining that “probable cause exists if there is a ‘fair probability’ that
the person committed the crime at issue”). Courts must conduct “an objective inquiry as to whether
probable cause can be inferred from the facts known to the defendant at the time criminal charges
were initiated.” Frost v. County of Monmouth, No. 17-4395, 2018 WL 1469055, at *4 (D.N.J.
Mar. 26, 2018) (citing Stolinski v. Pennypacker, 772 F. Supp. 2d 626, 642-43 (D.N.J. 2011)).
Defendants all rely on New Jersey Superior Court Judge Susan Steele’s Opinion dismissing
the remaining count after remand. LoIacono Br. at 4-5; Herrmann Br. at 12-14. Judge Steele
dismissed the last count, the official misconduct charge related to the 2008 Car Accident, on

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principals of fundamental fairness and double jeopardy. SAC, Ex. J. Defendants contend that
because Judge Steele dismissed the last count on grounds other than a lack of probable cause, that
means there was probable cause for the official misconduct claim. See, e.g., LoIacono Br. at 7
(explaining that through Judge Steele’s reasoning there is an “implicit acknowledgment that
probable cause existed”). Herrmann also maintains that this Court’s previous discussion of the
favorable termination element is “tantamount to a finding that there was probable cause.”
Herrmann Br. at 13-14 (emphasis in original). But Judge Steele was not tasked with determining
whether probable cause existed when the criminal proceedings were first initiated. And in its prior
Opinions, this Court analyzed Judge Steele’s basis for dismissal.4 Accordingly, this Court also did
not consider whether probable cause existed when Plaintiff’s criminal investigation began.
Considering Plaintiff’s plausible allegations that certain Defendants falsified information during
the investigation and others were involved in Plaintiff’s prosecution for personal and political
gains, the prior opinions are insufficient at the motion to dismiss stage to demonstrate the existence
of probable cause for the official misconduct charge. This is especially true given the fact that this
Court must draw all reasonable inferences in Plaintiff’s favor at this stage. Phillips, 515 F.3d at
231.
Next, Herrmann maintains that K.T.’s conviction and subsequent participation in PTI
establish that probable cause existed. Herrmann Br. at 10-11. K.T. was convicted of insurance
fraud and was then diverted to PTI. SAC ¶ 177. This argument, however, is undercut by the fact
that on appeal, the Appellate Division concluded that there was no evidence to support the count.

4

This Court considered Judge Steele’s Opinion to determine if it could be construed as an
indication of innocence, as was required for malicious prosecution claims before Thompson. See,
e.g., Oct. 19 Opinion at 49-50.
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Id. ¶ 350. Accordingly, K.T.’s conviction is insufficient to establish probable cause for Plaintiff’s
alleged insurance fraud.
Finally, Herrmann argues that an indictment alone establishes probable cause, noting that
before trial, the trial court judge denied Plaintiff’s motion to dismiss the indictment. Herrmann
Br. at 8-10. A grand jury indictment is frequently prima facie evidence of probable cause. Trabal
v. Wells Fargo Armored Serv. Corp., 269 F.3d 243, 251 (3d Cir. 2001). But this presumption
“may be rebutted by allegations that the presentment was procured by fraud, perjury or other
corrupt means.” Rose v. Bartle, 871 F.2d 331, 353 (3d Cir. 1989). Here, Plaintiff includes
adequate allegations in the SAC to suggest that perjury and other corrupt behavior compromised
the evidence submitted to the grand jury. Accordingly, at this stage, the indictment is insufficient
to demonstrate probable cause. Rather, Plaintiff sufficiently pleads facts demonstrating a lack of
probable cause when Defendants initiated the criminal charges as to Plaintiff. In sum, Defendants’
motions are denied with respect to their probable cause arguments.
2. Initiation of Charges
Turning to the initiation of charges, LoIacono and Padilla also contend that Zisa does not
sufficiently allege that either Defendant influenced the decision to initiate charges against Zisa or
encouraged the initiation of charges in any manner.5 LoIacono Br. at 9. If third parties “influenced

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Plaintiff argues that LoIacono and Padilla waived arguments for dismissal because they did not
raise them in their previous Rule 12(b)(6) motions to dismiss. Plf. Opp. at 14-15. Federal Rule of
Civil Procedure 12(g) prohibits a party from filing multiple pre-answer motions if a defense “was
available to the party but omitted from its earlier motion.” Fed. R. Civ. P. 12(g)(2). This is
LoIacono and Padilla’s fourth pre-answer motion to dismiss, D.E. 13, 39, 138, and neither
Defendant previously sought to dismiss the malicious prosecution claims on either ground
addressed in their instant motion. Accordingly, this argument is procedurally improper pursuant
to Rule 12(g). However, this Court expressly granted Defendants leave to raise deficiencies with
Plaintiff’s malicious prosecution claims “for reasons that have not yet been addressed by this
Court.” D.E. 321 at 6. This Court has not addressed the presence of probable cause or the initiation
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or participated in the decision to institute criminal proceedings, they can be liable for malicious
prosecution.” Halsey v. Pfeiffer, 750 F.3d 273, 297 (3d Cir. 2014); 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).
Providing information regarding possible criminal activity is not considered to be initiating
criminal activity, but advising that another begin the proceeding, “ratifying it when it is begun,”
or taking “any active part in directing or aiding the conduct of the case” may. See Falat v. County
of Hunterdon, No. 12-6804, 2014 WL 6611493, at *16 (D.N.J. Nov. 21, 2014).
Although LoIacono and Padilla criticize the paucity of Plaintiff’s allegations regarding
their involvement, these Defendants’ analysis of this element is equally anemic. LoIacono Br. at
7-8. LoIacono and Padilla’s argument is approximately a page long. It largely repeats Plaintiff’s
factual allegations and provides virtually no legal analysis, outside of the general proposition that
a pleading must include more than conclusory statements to survive a Rule 12(b)(6) motion. Id.
Al-Ayoubi and Herrmann were the key witnesses for the 2008 Car Accident allegations.
And Plaintiff alleges that LoIacono and Padilla insulated Herrmann, Al-Ayoubi, and other
Hackensack officers with “a clear path to freely provide false information.” SAC ¶ 57(g).
Specifically, Plaintiff alleges that despite receiving evidence demonstrating that Al-Ayoubi
ingested steroids and was part of the “steroid culture,” LoIacono signed off on the dismissal of AlAyoubi’s administrative charges and his reinstatement just twelve days after Zisa was indicted.
Id. ¶¶ 101-112. Padilla “did nothing to prevent” this from occurring. Id. ¶ 112. Plaintiff further

of charges for the 2008 Car Accident allegations. Consequently, the Court considers LoIacono
and Padilla’s motion.
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contends LoIacono and Padilla approved these decisions during the investigation to “preserve AlAyoubi’s purported integrity as a witness.” Id. ¶¶ 107, 11-12. Finally, Plaintiff alleges that Padilla
dismissed legitimate administrative charges against Herrmann. Id. ¶ 369(l). Thus, viewing the
SAC in a light most favorable to Plaintiff and given Defendants’ meager analysis, LoIacono and
Padilla’s motion to dismiss is denied on these grounds.
3. Malice
In their reply brief, LoIacono and Padilla first argue that Plaintiff fails to plead malice.
LoIacono Reply at 3. Courts routinely fail to consider arguments first raised in reply. See Cobra
Enters., LLC v. All Phase Servs., Inc., No. 20-4750, 2020 WL 2849892, at *1 (D.N.J. June 1, 2020)
(“As a matter of procedure, this Court will not accept arguments offered for the first time in
the reply brief, as they were not properly asserted in the opening brief and Plaintiffs have not had
the opportunity to respond to them.”). Regardless, Plaintiff sufficiently pleads malice. “Malice
can be inferred from a lack of probable cause, but some New Jersey courts have also required the
plaintiff to ‘produce at least some extrinsic evidence’ of malice.” Langford v. Gloucester
Township Police Dep’t, No. 16-1023, 2016 WL 7130912, at *6 (D.N.J. Dec. 7, 2016) (quoting
Prince v. Aiellos, 594 F. App’x 742, 746 (3d Cir. 2014)). As discussed, Plaintiff adequately pleads
the absence of probable cause. Moreover, Plaintiff pleads that Defendants were motivate by their
own personal and political agenda. SAC ¶ 1. Accordingly, LoIacono and Padilla’s motion is also
denied on these grounds.

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IV.

CONCLUSION
For the reasons stated above, and for good cause shown,
IT IS on this 28 day of April, 2023,
ORDERED that Defendants’ motions to dismiss (D.E. 325, 326) are DENIED.

___________________________
John Michael Vazquez, U.S.D.J.

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