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ROBINSON v. WINSLOW TWP.

June 24, 1997

DONALD K. ROBINSON, Plaintiff,
v.
WINSLOW TOWNSHIP, CHIEF OF POLICE ANTHONY BELLO, DETECTIVE AL PICKUL SERGEANT ANTHONY ORTIZ, JOHN DOES (1-10)(f/n), SUPERVISORY OFFICERS OF THE WINSLOW TOWNSHIP POLICE DEPARTMENT, JANE DOES (1-2)(f/n), EMPLOYEES OF THE WINSLOW TOWNSHIP POLICE DEPARTMENT RESPONSIBLE FOR COMPLYING WITH DISCOVERY DEMANDS, CAMDEN COUNTY PROSECUTOR EDWARD BORDEN, ASSISTANT CAMDEN COUNTY PROSECUTOR SALLY SMITH, ASSISTANT CAMDEN COUNTY PROSECUTOR IRA SLOVIN and SAM DOES (1-10)(f/n), and EMPLOYEES OF THE PROSECUTORS OFFICE WITH PROSECUTORIAL DECISION-MAKING AUTHORITY, j/s/a, Defendants.



The opinion of the court was delivered by: SIMANDLE

 SIMANDLE, District Judge:

 Plaintiff, Donald K. Robinson, brings this civil rights action, pursuant to 42 U.S.C. § 1983, against Winslow Township, Winslow Township Chief of Police Anthony Bello, several members of the Winslow Township Police Department, and several members of the Camden County Prosecutor's Office. Plaintiff alleges generally that these defendants violated his due process and other constitutional rights in charging him with a crime he did not commit. (Am. Compl. at P 63). Plaintiff also asserts pendent state-law claims for malicious prosecution against the defendants. All claims and cross-claims against defendants Slovin, Smith, and Borden were voluntarily dismissed by Stipulations filed November 25, 1996, December 10, 1996, and December 17, 1996. Also, plaintiff's claim for punitive damages against defendant Winslow Township was dismissed by Order filed April 12, 1995.

 Presently before the court are two motions for summary judgment, filed pursuant to Fed. R. Civ. P. 56. One was filed by defendants Winslow Township (the "Township") and Chief of Police Anthony Bello ("Chief Bello"), and the other was filed by defendant Sergeant Anthony Ortiz. Both motions seek judgment as a matter of law on plaintiff's § 1983 claims and plaintiff's malicious prosecution claims.

 I. Background

 On June 10, 1991, a robbery occurred at a WaWa convenience store ("WaWa") located on New Brooklyn Road in Winslow Township, New Jersey. (Am. Compl. P 16). The perpetrator struck the store clerk in the head with a pipe, took money from the cash register, and fled on foot. (Pl. Ex. 8).

 Defendant Detective Al Pickul of the Winslow Township Police Department was the officer primarily responsible for the investigation of the WaWa robbery. (Pl. Br. at 1). Detective Pickul took field notes at the scene of the crime, in which he recorded the recollections of the eyewitnesses to the robbery. According to Pickul's notes, one witness stated that the perpetrator was a 6'2" black male who weighed approximately 200 pounds. (Pl. Ex. 1, 2). A second eyewitness described the perpetrator as a six-foot-tall Puerto Rican male weighing about 160 pounds. (Id.). A third witness stated that the larcenist was a 5'10" black male who weighed approximately 150 pounds. (Id.). The perpetrator was also described as being muscular and as having a faint moustache. (Id.).

 The Winslow Township Police Department subsequently issued a press release concerning the WaWa incident. The press release described the perpetrator as a black, adult male with a faint moustache, who is between 5'10" and 6'2" tall. (Pl. Ex. 8). Similarly, defendant Pickul's investigation report described the assailant as a "light skinned black male, . . . had a thin moustache, and was tightly, but compactly, muscled." (Pl. Ex. 6). Defendant Pickul's report, however, also listed the perpetrator as being 5'8" tall, which is shorter than any of the eyewitness estimates found in Pickul's field notes. (Id.). Plaintiff, Donald K. Robinson, who was eventually arrested and prosecuted for the WaWa robbery, is 5'4" tall and weighs 140 pounds. (Pl. Ex. 15). Plaintiff is a black adult male with a moustache.

 Detective Pickul's investigation report also stated that the day after the WaWa robbery, Pickul "was contacted by a confidential source who requested anonymity for fear of retaliation." (Pl. Ex. 6). The report stated that the informant told Pickul that "'the guy who did WaWa used to live right behind it, in Villa Knoll. That's why he got away so fast, he ran thru the woods.' Source added that accused had a prior criminal record . . . in regards to [drug and alcohol-related crimes]." (Id.). According to detective Pickul's deposition testimony, Pickul subsequently concluded that the individual who committed the WaWa robbery was Mr. Robinson, who had previously plead guilty to driving while intoxicated and had also previously been charged with possession of marijuana. (Df. Ex. G, H). Mr. Robinson lived in the Villa Knoll apartments at the time of the marijuana charge. (Df. Ex. H). Defendant Pickul contacted Mr. Robinson's employer, who allegedly informed Pickul that, on the day of the WaWa incident, Robinson had taken the day off for personal reasons. (Df. Ortiz Statement of Undisputed Facts P 16).

 Three eyewitnesses to the WaWa incident subsequently viewed police photographs and identified plaintiff, Mr. Robinson, as the man responsible for the robbery and assault. (Am. Compl. PP 35-39). Plaintiff, however, asserts that at least one of the photo identifications was unreliable. Plaintiff points to testimony in the record that indicates that James Sallade, who was the second witness to identify plaintiff's picture, was in the room when the first witness to identify the picture, Maryanne Taglioli, picked out plaintiff's picture from a book of photographs. (Pl. Ex. 4). Sallade testified that plaintiff's photograph was brought over to him when Taglioli picked it out, and that Sallade merely confirmed that the picture was that of the WaWa assailant. (Id.). Nonetheless, following a Wade hearing that was held in the criminal action against Mr. Robinson, New Jersey Superior Court Judge Mary E. Colalillo found that the photo identification procedures used in this case did not violate plaintiff's constitutional rights. (Df. Statement of Undisputed Facts P 13; Df. Ortiz Ex. D).

 Aside from the eyewitness descriptions, the photo identifications, and the alleged statement of the confidential informant, a final item of evidence in this case is a lighter that defendant Pickul seized from the WaWa store. The police had reason to believe that the assailant may have touched the lighter in question during the course of the robbery. (Pl. Ex. 1). After seizing the lighter from the WaWa, Detective Pickul kept the lighter in a ziplock bag on his desk. (Pl. Ex. 11). *fn1" Because Detective Pickul then became involved in other matters, defendant Sergeant Anthony Ortiz volunteered to lift the fingerprints from the lighter and transport the prints and the lighter to the State Police crime lab. (Id.).

 The lab technician, Sergeant David Blaker, looked at the fingerprints that Ortiz had taken from the lighter and determined that the prints were not identifiable. (Id.). Blaker then performed an additional "fuming" procedure on the lighter in an attempt to lift identifiable prints from the lighter. Because of the poor quality of the fingerprint that Blaker was able to lift through this procedure, the print could not be used to identify the WaWa assailant by matching the print with other fingerprints kept in police records. (Pl. Ex. 13). Blaker was, however, able to determine conclusively that the fingerprint on the lighter was not the fingerprint of Mr. Robinson. (Id.).

 Sergeant Blaker memorialized his conclusions in a report. (Pl. Ex. Q). According to defendant Ortiz, such a report normally would have been sent to the Winslow Township Police Department, where the records clerk would have placed it in Mr. Robinson's case file. (Pl. Ex. 11). Sergeant Blaker has testified, however, that he believes he would have sent the report to defendant Ortiz as the officer who requested the fingerprint information. (Pl. Ex. N). It is unclear what eventually happened to the Blaker report, but it is undisputed that no such report was ever placed in Mr. Robinson's file. (Id.). As a result, it was not part of the package of exculpatory evidence delivered to Mr. Robinson's attorney during the criminal prosecution of Mr. Robinson.

 Defendant Ortiz also filed his own investigation report concerning his handling of the lighter and the fingerprint evidence. The report states:

 
ON 6- 14-91 AT 10:50 AM I TRANSPORTED A CIGARETTE LIGHTER AND LIFTED LATENT PRINTS TO THE ID LAB IN HAMMONTON. I ALSO TRANSPORTED A COPY ON THE SUSPECT'S PRINTS FOR COMPARISON. THE LATENT PRINTS WERE NOT IDENTIFIABLE. THE PRINT ON THE LIGHTER WAS NOT ABLE TO BE MATCHED WITH THE SUSPECT'S PRINTS. FURTHER INVEST TO BE CONT.

 (Pl. Ex. O). Plaintiff claims that the Ortiz report was "materially misleading" because it did not mention that Sergeant Blaker was able to conclude that the print on the lighter was definitely not that of Mr. Robinson. (Pl. Br. at 6).

 Robinson was arrested on June 14, 1991, for his alleged role in the WaWa incident. (Am. Compl. P 60). That same day, in a criminal complaint signed by defendant Pickul, plaintiff was charged with robbery, aggravated assault, and terroristic threats. (Df. Ex. B). A grand jury subsequently indicted plaintiff, finding probable cause to believe that plaintiff violated numerous provisions of the New Jersey Code of Criminal Justice. (Df. Ex. C). Plaintiff plead not guilty to the charges brought against him.

 In May 1992, the prosecutor in the criminal case against Mr. Robinson informed Robinson's attorney that fingerprints had been lifted from a lighter seized from the crime scene, and that the prints on the lighter were found not to be those of Mr. Robinson. (Pl. Ex. J). Mr. Robinson's attorney attempted to obtain a copy of the lab report concerning the fingerprinting, but was unsuccessful in her attempts to do so. (Id.).

 After a bench trial, on August 11, 1994, plaintiff was acquitted of all charges. (Df. Ex. E).

 On August 9, 1994, plaintiff filed the present civil action. (Df. Ortiz Ex. E). According to defendant Ortiz, at that point, Ortiz checked the Robinson case file and found that Sergeant Blaker's report was not contained in the file. (Id.). Ortiz then allegedly went to the State Police lab, obtained the report, and made a photocopy of the report for his personal files. (Id.). *fn2"

 In the civil complaint filed by plaintiff, he alleges that defendant Pickul targeted plaintiff as a suspect and had him arrested despite the fact that plaintiff did not match any of the eyewitness descriptions contained in Pickul's field notes. Plaintiff also alleges that Detective Pickul concealed his field notes, and, in his investigative report, falsely and inaccurately described the perpetrator of the robbery as a black male, standing 5'8" tall. (Pl. Br. Ex. 6).

 Plaintiff's complaint also contains § 1983 claims against Chief Bello and the Township. Plaintiff criticizes those defendants for failing to train Winslow Township police officers to preserve their field notes and to use such notes to verify the accuracy of all investigation reports. Plaintiff asserts that this alleged failure constitutes inadequate training. Plaintiff alleges that Chief Bello and the Township were deliberately indifferent to that inadequacy, thus rendering them liable under § 1983.

 Plaintiff further contends that the Township and Chief Bello had a "custom" of not comparing police investigation reports to field notes and press releases in order to ensure the accuracy of the investigation reports. Plaintiff also contends that despite the discrepancies between the eyewitness accounts and Detective Pickul's report, Detective Pickul was never disciplined for making a false statement in a police report. Plaintiff argues that this evidence permits an inference that the police department had a de facto custom of avoiding the discovery of false or inaccurate statements contained in police department records. (Pl. Br. at 4).

 Plaintiff's complaint also contains § 1983 claims against defendant Ortiz. Those claims allege that Sergeant Ortiz unlawfully suppressed the Blaker report and aspects of the fingerprint evidence. Plaintiff contends that the suppression of such exculpatory evidence in his criminal case violated the Due Process Clause of the Constitution.

 In addition, plaintiff's complaint charges Chief Bello, the Township, and Sergeant Ortiz with malicious prosecution.

 These three defendants have subsequently moved for summary judgment on all claims against them.

 II. Discussion

 A. Summary Judgment ...


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