NOEL L. HILLMAN, District Judge.
Presently before the Court are two motions [Doc. Nos. 110, 111] filed by the remaining defendants, Matthew Woshnak and Harry Collins, for summary judgment pursuant to Fed. R. Civ. P. 56. The Court has considered the submissions of the parties, as well as the arguments of counsel presented on August 25, 2015.
For the reasons that follow, Defendant Woshnak's motion for summary judgment will be granted, and Defendant Collins' motion for summary judgment will be granted in part and denied in part.
In his amended complaint [Doc. No. 49], Plaintiff asserts claims pursuant to 42 U.S.C. § 1983 for alleged violations of his constitutional rights, as well as state law claims for malicious prosecution and alleged violations of the New Jersey Civil Rights Act. The Court has jurisdiction over Plaintiff's federal claims under 28 U.S.C. § 1331, and may exercise supplemental jurisdiction over any state law claims pursuant to 28 U.S.C. § 1367.
The background of this case was previously set forth at length in the Court's prior Opinions. Generally, "[i]n this case, Plaintiff, Perman Pitman, contends that he was wrongfully arrested and imprisoned for a murder he did not commit. After spending two years in jail because he was unable to make bail, Plaintiff pled guilty to a downgraded charge of manslaughter. [Approximately] [t]wo years later, the Camden County Prosecutor's Office ("CCPO") disclosed exculpatory evidence, at which time Plaintiff's Judgment of Conviction and guilty plea were vacated and Plaintiff was released from jail. Shortly thereafter, Plaintiff filed the present civil action . . . based on his wrongful arrest and subsequent prosecution." (Op. [Doc. No. 40] 2, Dec. 30, 2011.)
The essence of Plaintiff's civil rights claims arises from his arrest, conviction, and imprisonment for the September 2005 shooting death of Robert A. Mays ("Mays"). On September 26, 2005, Mays was shot and killed in Camden, New Jersey. Mays was shot three times with a .45 caliber weapon in the back and the arm. Woshnak was a Detective with the CCPO on the date of the homicide and was the lead investigator of the homicide.
Efrain Ayala Acevedo approached Reyes and Woshnak while they were in the process of canvassing the neighborhood about the shooting of Mays. Acevedo informed Woshnak and Reyes that he had witnessed the shooting of Mays, and he told them that Plaintiff and another man who was a twin, either Tommie or Tyrone Smith, were involved in the shooting. Woshnak interviewed Acevedo on October 17, 2005, at which time Acevedo stated that he saw Plaintiff and one of the twins shoot Mays. Woshnak and Reyes then interviewed both twins, Tommie and Tyrone Smith.
Detective Woshnak spoke with the sergeant and then presented his investigation to the section chief of the homicide unit of the CCPO. The section chief of the homicide unit was the person that ultimately approved the execution of the warrant and the probable cause statement to arrest Plaintiff for the murder of Mays. The probable cause statement relied upon the statement of Acevedo and the statement of another witness, Skipper Grant, who said that Plaintiff's vehicle was parked about a half of a block from the shooting.
On February 8, 2006, approximately four months after Mays was killed, the Court Administrator for the City of Camden Municipal Court issued a warrant for Plaintiff's arrest for the felony murder of Mays. Woshnak and Reyes both stated that they believed the probable cause statement to be true. Pursuant to the arrest warrant, Plaintiff was arrested on February 9, 2006 and was charged with murder in the shooting death of Mays.
Defendant Collins was employed as a prosecutor with the CCPO, and at all times relevant to the underlying criminal case was assigned to the Administrative Unit under supervision of the "indicting in-charge prosecutors." Collins was randomly assigned to cases, and his duties included investigating the prior criminal history of defendants, plea issues, hearings, trials, formulation of strategy, and determination of the State's interest in a particular case, all of which were performed in consultation with the "indicting in-charge" prosecutor. Collins was not involved in the case involving the Mays murder until post-indictment.
On or about January 24, 2007, Acevedo recanted his statement by which he had implicated Plaintiff in the Mays murder. Specifically, Acevedo signed an affidavit in which he stated that he did not have any evidence in connection with Plaintiff's underlying criminal matter. Plaintiff's attorney in the underlying criminal matter had a copy of this affidavit in February 2007, and he also had received a separate statement from Acevedo in which Acevedo had again recanted his prior statement to the police.
On October 11, 2007, Plaintiff pled guilty to a significantly downgraded charge of manslaughter with a four-year prison term, approximately half of which Plaintiff had already served. At the time Plaintiff entered into the guilty plea, he was aware that Acevedo had recanted his statement that Plaintiff murdered Mays. However, Plaintiff did not learn until after his plea that Collins had information that Acevedo was bribed to implicate Plaintiff in the Mays murder. Specifically, Plaintiff learned in 2010 that in March of 2007, Collins wrote on a "sticky note" to Woshnak the following: "For your info only. Per Inv. Falco, his witness B-Nice (resident of Camden Jail) stated that my witness was paid $$ by the Puerto Ricans to identify my defendant as the shooter. Please Destroy This Note." According to Collins, Plaintiff told B-Nice that Acevedo had been bribed, B-Nice then told Investigator Falco that Plaintiff said Acevedo was bribed, and Falco then advised Collins of this information.
The "sticky note" was never destroyed and was located in the trial file when another member of the CCPO was reviewing the file in connection with Plaintiff's petition for post-conviction relief. Shortly after the note was brought to the attention of other members of the CCPO, an Order of Nolle Pros was entered and Plaintiff was released from jail.
Based on the foregoing, Plaintiff's amended complaint asserts a number of claims against various Defendants. At this time, the Court focuses only on the claims against the moving Defendants, Woshnak and Collins. Both of these defendants are named in Count I for purported Fourteenth Amendment Due Process deprivations; Count II
Summary judgment is appropriate where the Court is satisfied that "`the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' .. . demonstrate the absence of a genuine issue of material fact" and that the moving party is entitled to a judgment as a matter of law.
An issue is "genuine" if it is supported by evidence such that a reasonable jury could return a verdict in the nonmoving party's favor.
Initially, the moving party bears the burden of demonstrating the absence of a genuine issue of material fact.
Once the moving party has met this burden, the nonmoving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial.
Collins first argues that the official capacity claims against him should be dismissed based upon Eleventh Amendment sovereign immunity. In opposition to Collins' motion, Plaintiff asserts that Collins is not entitled to Eleventh Amendment immunity because Collins was acting in an administrative capacity and not as an agent of the CCPO.
The Court previously considered whether Woshnak, who is also a member of the CCPO, was immune from suit for official capacity claims under the Eleventh Amendment. In its January 14, 2015 Opinion, the Court found that any claims against Woshnak in his official capacity were, in all respects, claims against the CCPO. (Op. [Doc. No. 99] 17-18, Jan. 14, 2015.) The Court concluded that Woshnak was entitled to Eleventh Amendment immunity on the official capacity claims and therefore dismissed such claims.
In so finding, the Court noted that "[t]he arrest of Plaintiff, his continued incarceration, and the decision to prosecute him are classic law enforcement and investigative functions and not administrative functions." (
Because Collins is a member of the CCPO, the Court finds for the same reasons expressed in the January 14, 2015 Opinion that the official capacity claims against Collins are barred under the Eleventh Amendment. Collins' motion for summary judgment as to the claims against him in his official capacity will be granted.
In Count I of the amended complaint, Plaintiff asserts a due process claim under 42 U.S.C. § 1983 against Collins based on three theories: (1) fabricating false evidence, (2) failing to disclose exculpatory evidence, and (3) coercing Plaintiff to make a false plea. There is no evidence of record that Collins fabricated evidence against Plaintiff. Plaintiff's theory, as clarified in the briefing on this summary judgment motion, is that his due process rights were violated when Collins failed to disclose to Plaintiff the exculpatory information contained in the "sticky note" and instead directed that the note be destroyed. In Count II of the amended complaint, Plaintiff asserts a malicious prosecution claim under Section 1983, also based upon Collins' continued prosecution of Plaintiff despite his knowledge of the "sticky note" and his efforts to destroy exculpatory evidence. Counts IV and V are state law claims for malicious prosecution and a violation of the New Jersey Civil Rights Act.
Collins argues that he is entitled to absolute immunity on the federal claims because he was acting in his role as a prosecutor. Plaintiff contends that Collins is not entitled to absolute immunity because in seeking destruction of exculpatory evidence, Collins' conduct cannot be said to be an act of advocacy. According to Plaintiff, Collins was required under
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Given the holding of
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Here, the alleged wrongful acts involve Collins' decision to continue to prosecute Plaintiff once he learned that Acevedo was bribed to implicate Plaintiff, and the handling of the prosecution after the decision to continue to prosecute was made. These acts, the Court finds, are acts of advocacy rather than of administration. Indeed, Plaintiff cites no authority to support his contention that Collins' actions fall under the umbrella of administration rather than advocacy. Collins is entitled to absolute immunity for the Section 1983 claims concerning his failure to disclose the "sticky note" to Plaintiff.
The Court next turns to whether Collins is immune from civil liability based on his efforts to destroy the exculpatory evidence.
Here, Collins did not actually destroy exculpatory evidence, but it is clear from the contents of the note that he intended for the evidence to be destroyed. The above-quoted language in
Based on this rationale, the Court finds that Collins is not entitled to absolute immunity for directing the destruction of exculpatory evidence. Indeed, if failing to prevent the destruction of evidence is an act that is not entitled to absolute immunity, then directing the destruction of evidence likewise must not be entitled to absolute immunity. Accordingly, the Court finds that Collins is not entitled to absolute prosecutorial immunity based on a claim that he sought to destroy exculpatory evidence.
The Court thus turns to whether Collins is entitled to qualified immunity for directing the destruction of exculpatory evidence. Collins asserts that he is entitled to qualified immunity because he did not violate a "clearly established" constitutional right. Specifically, Collins asserts that he did not withhold exculpatory evidence because Plaintiff was aware of the evidence when he entered into his plea, as he knew that Acevedo had recanted his statement implicating Plaintiff, and he knew that Acevedo had been paid to implicate Plaintiff in the Mays murder.
The doctrine of qualified immunity protects government officials "from 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."
Qualified immunity attaches if the official can demonstrate his or her conduct was "objectively reasonable."
As noted above, Collins' qualified immunity argument focuses on whether Plaintiff's constitutional rights were violated, as he argues that disclosure of exculpatory evidence is not required when the defendant in the criminal matter either knew or should have known of the essential facts of the evidence. There is no dispute that Plaintiff knew, at the time he pled guilty, that Acevedo had recanted his statement. However, the exculpatory evidence at issue is not the fact that Acevedo recanted his statement, but the fact that Acevedo was bribed to implicate Plaintiff. There is a qualitative difference between these two types of evidence. As Collins noted in a hearing in the underlying criminal proceeding, witnesses frequently recant their stories due to fear of being considered a "snitch," but the recantation does not necessarily mean that the original statement was untrue. (
Therefore, the facts of record do not demonstrate that Plaintiff was aware that Acevedo was bribed to implicate Plaintiff in the Mays murder, and thus the Court cannot conclude at this time that Collins was not required to disclose the evidence to Plaintiff under
Under New Jersey law, "[t]o establish malicious prosecution, a plaintiff must show that: `(1) a criminal action was instituted by th[e] defendant against th[e] plaintiff; (2) the action was motivated by malice; (3) there was an absence of probable cause to prosecute; and (4) the action was terminated favorably to the plaintiff.'"
In seeking dismissal of the state malicious prosecution claim, Collins argues that Plaintiff fails to produce evidence in support of the prima facie elements of such claim. Collins concedes that the criminal action terminated favorably to Plaintiff, but he asserts that Plaintiff cannot produce evidence in support of the remaining elements of the claim. Collins particularly focuses on the absence of probable cause, noting that probable cause existed at the time criminal proceedings were initiated against Plaintiff, which is purportedly sufficient to overcome a malicious prosecution claim even though the witness later recanted. Collins also asserts that he is not the individual who initiated criminal proceedings against Plaintiff, and that Plaintiff fails to show that Collins acted with ill will or malice.
Collins' arguments focus too narrowly on the time frame in which the criminal prosecution was initiated. "Malicious prosecution provides a remedy for harm caused by the institution or continuation of a criminal action that is baseless."
Turning to the probable cause element, the Court finds, as discussed at length below, that there was probable cause to arrest Plaintiff in 2006. However, "it is `possible that following an arrest based on sufficient probable cause, circumstances might ensue or facts might become known . . . which would so undermine the reasonableness of an initial belief in the p[erson]'s guilt' underpinning probable cause for arrest as to make continued detention unjustified."
Finally, Collins argues that Plaintiff has produced no evidence of malice. "Malice in the law is the intentional doing of a wrongful act without just cause or excuse."
Based on the foregoing, the Court finds that Plaintiff has provided sufficient evidence to support a malicious prosecution claim based upon state law. Collins' motion for summary judgment as to Count IV of the amended complaint will therefore be denied.
"The New Jersey Civil Rights Act (hereinafter `NJCRA') was modeled after 42 U.S.C. § 1983, and creates a private cause of action for violations of civil rights secured under the New Jersey Constitutions."
N.J.S.A. 10:6-2(c). The District of New Jersey has repeatedly interpreted the NJCRA analogously to § 1983.
Plaintiff's claims which allege a violation of the NJCRA are directly controlled by the Court's determination on the federal due process and malicious prosecution claims. For the same reasons that summary judgment will be granted in part and denied in part on the federal claims, summary judgment will likewise be granted in part and denied in part on Plaintiff's claim against Collins under the NJCRA.
In the amended complaint, Plaintiff's due process claim against Woshnak is predicated upon fabrication of false evidence, failure to disclose exculpatory evidence, and coercing a plea. In opposition to the summary judgment motion, Plaintiff clarifies that Woshnak did not fabricate evidence, nor is there any evidence that Woshnak played any role in plea negotiations that resulted in Plaintiff's decision to take a plea. Rather, the basis of the due process claim against Woshnak is two-fold: (1) his failure to account for inconsistencies in the evidence, and (2) his failure to act upon learning of the information in the "sticky note."
"To establish a due process violation for failure to investigate, the plaintiff must show the defendant acted intentionally or recklessly" in a manner that shocks the conscience.
Plaintiff contends that Woshnak ignored the physical scene, which was purportedly inconsistent with Acevedo's statement; ignored the fact that Acevedo claimed the victim was standing in the rain when shot, even though the victim's clothes were dry and his body was found on a porch; and ignored that there were no bullet marks under the body and no shell casings on the porch, even though Acevedo said that Plaintiff stood over the body on the porch and shot three times.
The evidence presented by Plaintiff does not establish that Woshnak acted intentionally or recklessly in his investigation in a manner that shocks the conscience. With respect to whether Mays' clothes were dry, the only evidence is the testimony of Investigator Settles, who assumed that the clothes must have been dry because he would have noted in his investigation report if they were wet. There is no evidence that Woshnak knew the clothes were dry, such that he would have intentionally ignored such evidence. Furthermore, Settles testified that there is no way of determining where the shooter was standing based on the physical evidence, and Mays therefore could have been shot and run up the stairs before collapsing on the porch, at which point he was shot three more times. Concerning the bullet marks, Settles testified that he would not necessarily expect to find bullet strikes on the porch under the victim's body if he had been shot in the back on the porch. Finally, while Plaintiff asserts that the location of the shell casings did not corroborate Acevedo's story, his conclusion is not supported by an expert opinion. Woshnak testified that he believed the physical evidence was consistent with Acevedo's statement, and there is no evidence that such belief was unreasonable.
In short, Plaintiff points to no evidence that the investigation leading to the determination of probable cause was so inadequate as to violate his substantive due process rights under the Fourteenth Amendment. As delineated below, probable cause was established as a matter of law at the time Plaintiff was arrested. Under these circumstances, Woshnak had no further constitutional duty to continue his investigation in an attempt to unearth potentially exculpatory evidence undermining the probable cause determination. Woshnak will be granted summary judgment on the federal due process claim to the extent that such claim is based upon Woshnak's alleged ignoring of evidence.
To the extent Plaintiff's due process claim is based upon Woshnak's failure to act upon learning of the "sticky note," there is a dispute of fact over whether Woshnak even saw the note. The Court assumes for purposes of summary judgment that Woshnak did see the note and decided to do nothing. Woshnak argues that even assuming he knew of the note, however, he had no duty to act because the evidence was already known to the prosecutor.
In
Here, Woshnak did not discover exculpatory evidence and fail to disclose it to the prosecutor. Rather, the prosecutor discovered the evidence and disclosed it to Woshnak. Because the exculpatory evidence was already in the hands of the prosecutor, Woshnak has no duty to disclose the evidence to the prosecutor. Plaintiff argues, however, that under the circumstances here, where Woshnak knew that the prosecutor sought to destroy exculpatory evidence, he should have reported Collins' wrongdoing to Collins' superiors. He also argues that Woshnak should have investigated further, particularly in light of Collins' request that Woshnak do so. Woshnak asserts that he is entitled to qualified immunity on the due process claim.
Under the second prong of the "objective reasonableness" test, the Court must determine whether it would have been clear to a reasonable officer that the conduct was unlawful."
In Count II of the amended complaint, Plaintiff asserts a malicious prosecution claim against Woshnak under federal law. Plaintiff's claim generally consists of two theories. First, Plaintiff asserts that Woshnak did not have reasonably trustworthy information to seek an arrest warrant for Plaintiff, and second, that he did nothing upon learning that Acevedo had been bribed to falsely implicate Plaintiff. Woshnak moves for summary judgment, arguing that there was probable cause to arrest Plaintiff and that he is therefore entitled to qualified immunity.
"Malicious prosecution is a common law tort that occurs when an official initiates a criminal proceeding without probable cause."
"To prove a claim for malicious prosecution brought under 42 U.S.C. § 1983, a plaintiff must satisfy each of the following five elements: `(1) the 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) the plaintiff suffered deprivation of liberty consistent with the concept of seizure as a consequence of a legal proceeding.'"
Before the Court can address the merits of Plaintiff's Section 1983 claim for malicious prosecution, it must consider Woshnak's argument that he is entitled to qualified immunity on the federal claim. In the context of a malicious prosecution claim, "a police officer must show his actions were objectively reasonable under prevailing Fourth Amendment doctrines."
Here, Plaintiff contends that Woshnak lacked probable cause to arrest Plaintiff based solely upon the statement of Acevedo because there was contradictory evidence that discredited Acevedo's statement. According to Plaintiff, because Woshnak did not have reasonably trustworthy information to believe that Plaintiff committed the murder, he did not have probable cause to seek an arrest warrant for Plaintiff.
Having reviewed the evidence of record, the Court finds that at the time of the arrest Woshnak had probable cause to believe that Plaintiff committed the murder of Mays. At that time, Woshnak had an eyewitness statement that Plaintiff's car was parked half of a block away from the murder scene, as well as the statement of Acevedo directly implicating Plaintiff and Tommie Smith in the murder. In addition, Woshnak had interviewed Tommie Smith and his twin brother. According to Woshnak, Tommie Smith's story contradicted that of his brother, in that Smith indicated that he was in Atlantic City while his brother stated that they were both home. Woshnak also noted that Smith failed to provide any details to corroborate the story that he was in Atlantic City. Additionally, Woshnak testified that Smith acted "extremely nervous," "extremely agitated," and terminated the interview. This evidence thus supports a conclusion that Tommie Smith was lying about his whereabouts, and does not undermine Acevedo's statement.
In an effort to survive summary judgment, Plaintiff cites to other evidence contradicting Acevedo's statement, which purportedly demonstrates the absence of probable cause. Critically, though, there is no indication that such contradictory evidence was known to Woshnak at the time of the arrest. For instance, Plaintiff points to Acevedo's statement that it was raining on the night of the murder and notes his own testimony that it was not raining. Plaintiff's testimony, however, was not given until his deposition in this case, and thus was not known to Woshnak prior to Plaintiff's arrest. Plaintiff also asserts that he admitted to being at the scene of the crime but running away from the shooter, and he argues that the physical evidence is consistent with this story. Plaintiff's statement as to the events of September 26, 2005 was not made until after he was arrested. Plaintiff also attempts to cast doubt on Acevedo's statement that Acevedo knew who Plaintiff was because they were in a half-way house together. Plaintiff cites his own deposition testimony in this case, in which he denied knowing Acevedo. Again, Plaintiff's testimony was not known to Woshnak at the time of the arrest and could not have been accounted for when Woshnak evaluated the credibility of Acevedo's statement.
Arguably, had Woshnak conducted further investigation,
In so finding, the Court notes that in making a probable cause determination, officers cannot "simply turn a blind eye toward potentially exculpatory evidence known to them in an effort to pin a crime on someone."
In this case, there is no indication that Woshnak turned a blind eye to potentially exculpatory evidence to pin the crime on Plaintiff, nor is there any evidence that Woshnak should have recognized Acevedo's statement as unreliable when the arrest was made on February 8, 2006. Therefore, Plaintiff does not point to exculpatory information in Woshnak's possession before he sought the arrest warrant. Having found that probable cause existed for the arrest of Plaintiff, Plaintiff has failed to demonstrate that a constitutional deprivation occurred here as a result of Woshnak's conduct up to the point of Plaintiff's arrest. In the absence of such a constitutional deprivation, the qualified immunity inquiry is at an end with respect to Plaintiff's malicious prosecution claim under Section 1983, to the extent such claim is based on Woshnak's conduct in seeking Plaintiff's arrest.
Furthermore, to the extent the malicious prosecution claim is based on the fact that Woshnak was privy to exculpatory information and did nothing, the Court finds that Plaintiff is entitled to qualified immunity. As discussed above, under
As noted abvoe, "[t]o establish malicious prosecution, a plaintiff must show that: `(1) a criminal action was instituted by th[e] defendant against th[e] plaintiff; (2) the action was motivated by malice; (3) there was an absence of probable cause to prosecute; and (4) the action was terminated favorably to the plaintiff.'"
The Court has already determined that there was probable cause to arrest Plaintiff. The absence of probable cause is fatal to Plaintiff's malicious prosecution claim under New Jersey law to the extent such claim is based on Plaintiff's arrest without probable cause.
Plaintiff also argues that Woshnak continued to maliciously prosecute after learning that Acevedo's statement was obtained through bribery. However, there is no evidence that Woshnak had any role in the continued prosecution of Plaintiff after the case was turned over to Collins. In fact, Woshnak testified at his deposition that he rarely spoke with Collins about the case, that no one on the investigative side of the prosecutor's office talked to him about the case, and that he had no input after the case was turned over to the CCPO. Defendant Woshnak will be granted summary judgment on Count IV of the amended complaint.
Plaintiff's claims which allege a violation of the NJCRA are directly controlled by the Court's determination on the federal due process and malicious prosecution claims. For the same reasons that summary judgment will be granted on the federal claims, summary judgment will likewise be granted on Plaintiff's claim against Woshnak under the NJCRA.
For the foregoing reasons, Woshnak's motion for summary judgment will be granted, and judgment will be entered in favor of Woshnak on all remaining claims in the amended complaint. Collins' motion for summary judgment will be granted in part and denied in part. Plaintiff will be granted leave to amend his complaint to clarify the basis of his claim against Collins based upon Collins' attempt to destroy exculpatory evidence.
An Order consistent with this Opinion will be entered.