claim of qualified immunity, see, e.g., Cannon v. Macon County, 1 F.3d 1558, 1565 (11th Cir. 1993); Simkunas v. Tardi, 930 F.2d 1287, 1291 (7th Cir. 1991), it is apparent that a reasonable official in Graham's position would have known that his conduct violated clearly established rights protected by 42 U.S.C. § 1983. See Grant, 98 F.3d at 121. The circumstances are so lacking in indicia of probable cause to believe that plaintiff was the individual who perpetrated the carjacking, that it can be said, as a matter of law, that if plaintiff establishes this chain of events at trial, no reasonable police officer could have had a good faith belief that plaintiff was the perpetrator. If proved, such conduct does not constitute a discretionary act that defendant Graham could have, in good faith, believed to be lawful. Defendant Graham is therefore not entitled to summary judgment on plaintiff's malicious prosecution claim on the basis of the qualified immunity doctrine.
2. Defendant Gilbert
The court also concludes that defendant Gilbert is not entitled to summary judgment on plaintiff's malicious prosecution cause of action. Like defendant Graham, defendant Gilbert contends that he is entitled to judgment as a matter of law on this claim because there is no evidence in the record that he acted with malice in bringing about plaintiff's arrest and indictment. (Df. Br. at 25). Defendant Gilbert argues specifically that there is no evidence in the record that demonstrates that he was aware of defendant Graham's alleged tainting of Richard Rodriguez's identification of plaintiff. (Df. Rep. Br. at 1, 12).
Concededly, there is no direct evidence demonstrating that Gilbert knew of or condoned Graham's alleged attempt to influence Rodriguez to select plaintiff's picture from the photo array. The record does indicate, however, that Graham and Gilbert were working very closely together on this case, essentially acting in concert as an investigation team. Moreover, like Graham, Gilbert failed to approach Kung Fu's mother or sister with a picture of plaintiff (or with plaintiff's birth date) to confirm that plaintiff was indeed Kung Fu. Also like Graham, Gilbert insists that defendant Busbee identified plaintiff as Kung Fu, while Busbee denies that claim and there is no written documentation of such an identification.
Perhaps most importantly, defendant Gilbert testified at his deposition that Sepulveda refused to cooperate when asked to identify his accomplice from a photo array. The photo array identification form, however, contains Sepulveda's signed statement that provides: "From the pictures shown to me I wasn't able to identify Kung Fu." That statement indicates that Sepulveda did not see his accomplice's picture among those in the array, an assertion that is rather different from defendant Gilbert's claim that Sepulveda refused to cooperate.
In addition, in completing the arrest warrant, defendant Gilbert listed the probable cause for plaintiff's arrest as "statement of co-defendant." Such an assertion is suspicious at best in view of defendant Gilbert's own representation that Sepulveda had ceased cooperating with the police and did not pick out plaintiff's picture from the array. In fact, Sepulveda had not in any way connected plaintiff to Kung Fu, Sepulveda's accomplice. To the contrary, Sepulveda's information pointed toward an accomplice from Vineland, which was corroborated by "Kung Fu's" sister and mother. A jury could find that the fact that defendant Gilbert nevertheless listed Sepulveda as the basis for probable cause for plaintiff's arrest is compelling evidence that Gilbert did not have probable cause for plaintiff's arrest and that he knew that he did not.
Under these circumstances, defendant Gilbert's claim of qualified immunity fails. The test, again, is whether Officer Gilbert, upon the basis of information known to him, had an objectively reasonable basis to believe he had probable cause to arrest plaintiff for the Camden carjacking. Orsatti, 71 F.3d at 484. At the time of arrest, Gilbert knew that a crime had been committed in Camden, that the accomplice (Sepulveda) identified his cohort as "Kung Fu," whom he had met in Vineland, and that "Kung Fu's" mother and sister lived in Camden. He knew that Kung Fu had driven a pick-up truck the day before the carjacking which had been purchased from Richard Rodriguez of Camden. Rodriguez didn't know the purchaser, but he knew the purchaser's sister, Joan, in Camden, who identified her brother's name as Javier Torres Morales. Upon these facts, Gilbert pursued the case against Javier Morales of Staten Island, New York, who had a similar Hispanic name and a prior record of a North Jersey arrest related to selling cocaine, but no known connection to Vineland or Camden and no clear photographic identification. Plaintiff's arrest for the traffic violation on the Verrazano Bridge near his Staten Island home adds nothing to the element of probable cause. Under these circumstances, if these facts are proved to a jury, the facts known to Gilbert were so lacking in the indicia of probable cause that no reasonable law enforcement officer could have entertained a reasonable belief in the existence of probable cause to arrest, thus rendering qualified immunity unavailable.
Taken together, on the merits of the summary judgment motion, there is sufficient, credible evidence in the record to permit a factfinder to conclude that defendant Gilbert acted with malice in investigating and bringing charges against plaintiff. As defendant Gilbert argues, there is no evidence in the record indicating that Gilbert knew plaintiff prior to December 1992 or that he felt any personal animus toward him. On the other hand, a reasonable jury could find that perhaps because of an overzealous desire to "collar" a suspect
or for more nefarious reasons, defendant Gilbert acted with willful blindness toward and intentional avoidance of the evidence that would eventually establish plaintiff's innocence.
In fact, the evidence in the record has led Donald T. Robinson, plaintiff's proposed expert in the field of police procedures, to conclude that Gilbert and Graham "manipulated the evidence" and "knew or should have known that they had identified the wrong person." (Pl. Ex. F). Robinson criticizes Graham and Gilbert for not investigating plaintiff in New York and for not questioning Kung Fu's sister to establish that plaintiff was indeed Kung Fu. Robinson states:
To someone familiar with police procedure one of the most striking aspects of this case - it jumps at you from the record - is that the detectives clearly avoided, or did not report on, or lied about any investigative activity or information which may have cleared or tended to clear Mr. Morales-Torres. . . . Why would these detectives not, at least, go back to Ms. Torres to ask, "Is this your brother?"
The court finds that the record contains ample evidence to permit a jury to conclude that Gilbert conducted this investigation and secured this indictment with ill will toward plaintiff and with willful blindness as to plaintiff's innocence. Defendant Gilbert is therefore not entitled to summary judgment on the grounds of insufficient evidence of malice.
In summary, defendant Gilbert is not entitled to summary judgment on the basis of his assertions of qualified immunity, nor upon the merits of the plaintiff's case. Plaintiff has put forth evidence on the basis of which a juror could properly infer that this defendant maliciously acted to ensure plaintiff's prosecution absent probable cause. Defendant Gilbert's acts, as alleged by plaintiff, are not mere discretionary acts that a reasonable person could have believed to be lawful. As to the probable cause issue specifically, a jury could find that no reasonable person in defendant Gilbert's position could have believed that there existed probable cause connecting plaintiff to Kung Fu. Certainly, the probable cause put forth by Gilbert himself on the arrest warrant application -- "statement of codefendant" -- did not provide such probable cause. A reasonable jury could credit the testimony of defendant Busbee and Richard Rodriguez and conclude that defendant Gilbert knew of no credible evidence that demonstrated that plaintiff was Kung Fu. In fact, the jury might infer from Sepulveda's signed statement and Rodriguez's statement implicating Graham that defendant Gilbert knew that one or more witnesses had specifically indicated that plaintiff was not Kung Fu. Moreover, jurors could agree with Donald Robinson and find that defendant Gilbert deliberately did not pursue certain areas of investigation in order to ensure that he would not come upon other exculpatory evidence in this case. Because plaintiff may be able to prove that defendant Gilbert violated plaintiff's clearly established civil rights, summary judgment is not appropriate as to plaintiff's malicious prosecution claims against defendant Gilbert. See Grant, 98 F.3d at 121.
3. Defendant Busbee
Defendant Busbee has moved for summary judgment as to plaintiff's malicious prosecution claim on the grounds that Busbee did not participate in the prosecution of plaintiff. The court agrees with defendant Busbee's argument, and will grant summary judgment on this ground.
As discussed previously, defendant Busbee was the officer who initially encountered Hector Sepulveda and Kung Fu. He participated in the arrest of Mr. Sepulveda. The record is uncontroverted, however, that Busbee did not "initiate" or even actively participate in the arrest or criminal prosecution of plaintiff. Such initiation of prosecution is a critical element in a malicious prosecution claim. See Lee, 847 F.2d at 70.
Busbee's only involvement with the prosecution of plaintiff came when Busbee was asked to look at a photographic lineup and pick out the picture of Kung Fu. There is a factual dispute as to whether Busbee selected plaintiff's picture from the array, but that dispute is not a "material" one for purposes of this summary judgment motion. Even if Busbee identified plaintiff as Kung Fu at the photographic lineup, that would not render him a prosecuting officer in this case. Rather, so far as the record indicates, Busbee was a mere witness in the investigation and prosecution of plaintiff, which were being orchestrated by, among others, Gilbert, Graham, and the ATF. See Senra v. Cunningham, 9 F.3d 168, 174 (1st Cir. 1993) (discussing degree of involvement of defendants in decision to bring criminal charges against plaintiff, in evaluating possible merit of malicious prosecution claim); cf. Williams v. Hepting, 844 F.2d 138, 141 (3d Cir. 1988) (discussing absolute immunity for witnesses testifying in pretrial proceedings and policy reasons justifying that immunity). In addition, there is no evidence that Busbee knowingly gave false information inculpating plaintiff or that Busbee actively encouraged the arrest or prosecution of plaintiff. See Devlin v. Greiner, 147 N.J. Super. 446, 471, 371 A.2d 380 (Law Div. 1977) (stating that to be held liable for malicious prosecution, defendant must "'take some active part in instigating or encouraging the prosecution'") (quoting Prosser, Law of Torts § 119, at 836-37 (4th ed. 1971)). The court will therefore grant summary judgment to defendant Busbee as to plaintiff's claims of malicious prosecution.
B. False Arrest/False Imprisonment
Plaintiff's complaint also alleges that defendants falsely arrested and imprisoned plaintiff, in violation of plaintiff's constitutional rights and section 1983. The court finds that defendants are entitled to summary judgment on these claims. As the court will proceed to explain, because plaintiff was arrested and imprisoned pursuant to legal process, a false imprisonment or false arrest cause of action is not available to plaintiff in this case.
Although courts and litigants often confuse the two, false arrest (also referred to as false imprisonment) and malicious prosecution are two distinct causes of action. See Torres v. McLaughlin, 1996 U.S. Dist. LEXIS 17189, 1996 WL 680274, at *3-4 (E.D. Pa. Nov. 21, 1996). Generally, only one or the other cause of action is available to a plaintiff in a given case. The Supreme Court has recently explained the distinction between these causes of action in noting that where confinement has been "imposed pursuant to legal process," damages may be sought on a theory of malicious prosecution, but not under a claim of false arrest or imprisonment. Heck v. Humphrey, 512 U.S. 477, 484, 129 L. Ed. 2d 383, 114 S. Ct. 2364 (1994). "'If there is a false arrest claim, damages for that claim cover the time of detention up until issuance of process or arraignment, but not more.'" Id. (quoting W. Keeton et al., Prosser and Keeton on Law of Torts 888 (5th ed. 1984)). The "legal process" that separates a false arrest/imprisonment claim from a malicious prosecution claim may be in the form of an arrest warrant, an arraignment, or an indictment. See Singer v. Fulton County Sheriff, 63 F.3d 110, 117 (2d Cir. 1995), cert. denied, 134 L. Ed. 2d 779, 116 S. Ct. 1676 (1996). As Prosser has explained:
So long as the plaintiff has been detained by legal process, it cannot be said that he has been falsely imprisoned and the claim, if there is one, must be for malicious prosecution, where malice and a want of probable cause must be shown. If there is no process issued at all and the plaintiff is arrested without a warrant or any other valid basis for an arrest, there is no malicious prosecution but a false arrest. Where an unjustified detention takes place, followed by an improper prosecution, the plaintiff may be required to assert both false imprisonment and malicious prosecution . . . .
W. Page Keeton et al., supra, at 885-86 (quoted in Torres, 1996 U.S. Dist. LEXIS 17189, *11, 1996 WL 680274, at *4 n.4).
In the present case, by the time that plaintiff was apprehended and incarcerated, a duly executed arrest warrant had been issued and plaintiff had been indicted. Thus, plaintiff may not bring claims against these defendants under the rubric of false imprisonment or arrest, but rather must satisfy the elements of malicious prosecution to obtain recovery for his alleged unlawful detention. Defendants are therefore entitled to judgment as a matter of law on those aspects of the complaint that allege false arrest or imprisonment.
Plaintiff's complaint also charges the three defendants with conspiring to deprive plaintiff of his constitutional rights. (Compl. at 12). Neither the complaint nor plaintiff's response to defendants' summary judgment motions sets forth a statutory or other legal basis for plaintiff's conspiracy claims. However, because plaintiff refers to the federal civil rights statutes in his complaint, the court will assume that plaintiff is seeking recovery for the alleged conspiracy under 42 U.S.C. § 1985. The defendants have made the same assumption in their summary judgment motion, and plaintiff has not argued that such an assumption is unwarranted.
Section 1985 provides a private right of action to those persons who have been victims of a conspiracy to deprive them of their civil rights. One of the elements of a section 1985 claim is that the plaintiff must prove that there was "'some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action.'" United Brotherhood of Carpenters v. Scott, 463 U.S. 825, 829, 77 L. Ed. 2d 1049, 103 S. Ct. 3352 (1982) (quoting Griffin v. Breckenridge, 403 U.S. 88, 102, 29 L. Ed. 2d 338, 91 S. Ct. 1790 (1971)). In this case, plaintiff has made no showing in this regard. The complaint does not allege that defendants' alleged conduct was motivated by class-based, invidiously discriminatory animus, and there is no evidence in the record that would support such a claim. Defendants will therefore be granted summary judgment as to plaintiff's section 1985 conspiracy claims.
III. Plaintiff's State Law Causes of Action
It is difficult to ascertain whether plaintiff is attempting to obtain recovery on the basis of state law causes of action in this case. The complaint states in relevant part:
1. At all times material hereto, plaintiff is entitled to assert causes of action arising by law under the Constitution and Statutes of the State of New Jersey of which this Court has pendent jurisdiction.
2. Defendant[s], Busbee, Gilbert, Graham and John Doe(s), jointly and severally, acted intentionally recklessly, negligently, and with gross negligence in the false arrest, false imprisonment and malicious prosecution of plaintiff causing the injuries and damages as outlined herein.