The opinion of the court was delivered by: Walls, Senior District Judge
Defendants City of East Orange and East Orange Police Department (the "East Orange Defendants") move for summary judgment pursuant to Fed. R. Civ. P. 56. Defendant Charles Grimes moves to dismiss the Complaint pursuant to Fed. R. Civ. P. 12(b)(6), or, in the alternative, for summary judgment. Pursuant to Fed. R. Civ. P. 78, defendants' motions are decided without oral argument. The East Orange Defendants' motion is granted. Defendant Grimes' motion is denied.
FACTS AND PROCEDURAL BACKGROUND
Plaintiff Vaughn Miller and his company VLEM Enterprises provided various computer services to the East Orange Police Department over a number of years. In 2001, the plaintiff, through VLEM, submitted a proposal and was awarded a contract to procure software licenses for the Police Department's computer backup system. According to the plaintiff, Defendant Chief of Police Charles Grimes signed all the appropriate documentation related to this work. During the course of his work for the Department, the plaintiff worked with East Orange Police Officer Norman Price.
In 2003, John Foti, an investigator with the Essex County Prosecutor's Office, and Defendant Lieutenant Paul Davis, an East Orange Police officer, began an investigation into the conduct of Officer Price and Plaintiff Miller. Plaintiff argues that this investigation was motivated by personal animus. As a result of the investigation, in January 2004, Officer Norman Price, his wife Natasha Price, and Plaintiff Miller were indicted by a grand jury in Essex County. The charge against Miller was that he had received payment for goods not authorized or received by East Orange. The charges against the Prices were that they had operated "shell" companies designed to defraud the City of East Orange. One of the companies that was alleged to have performed illegal activities was VLEM Enterprises.
Plaintiff alleges that Defendants Grimes and Davis testified falsely before the grand jury and as a result of this false testimony he was wrongly indicted. Defendant Grimes' testimony, as it related to Miller and his company VLEM Enterprises, consisted of the following exchange. In response to the question: "And VLEM is another company. You never signed anything for V-LE-M, did you?" Grimes responded: "Not that I can recall, sir." (Tr. Grand Jury Hr'g 73:21-23, Dec. 16, 2003; Grimes Ex. 2.) Plaintiff also alleges that Defendant Davis testified falsely when he stated that Chief Grimes did not authorize VLEM to be a vendor and that East Orange did not have the product for which it paid VLEM.
Plaintiff further alleges that following the Indictment he was offered a plea deal by Assistant Prosecutor Bradley. Under the agreement, he contends, he could have pled guilty to disorderly conduct on the condition that he did not testify truthfully on behalf on Norman Price. Plaintiff rejected the deal and now argues that this was an attempt to suppress his constitutionally protected right to free speech under the threat of continuing indictment. On April 11, 2005, the Indictment was dismissed and a Superceding Indictment, naming only Norman and Natasha Price, was returned the following day.
A few days after the Indictment against him was dismissed, on April 15, 2005, the plaintiff brought this civil action alleging a variety of federal constitutional, state constitutional and state law claims*fn1 against the Chief of Police Charles Grimes, Lieutenant Paul Davis, and Investigator John Foti.*fn2 In addition to the claims against the individual defendants, the plaintiff alleges that the City of East Orange is liable for the actions of these individuals under "agency principles" and because their conduct "constituted and was taken pursuant to official City policy, practice and custom under the Color of Law." (Compl. Count Two.) The East Orange Police Department is also named as a defendant in this matter, however none of the Counts of the Complaint specifically names the East Orange Police Department.
Plaintiff alleges that as a result of being falsely indicted, from January 2004 through April 12, 2005, he lived under the day-to-day stress of and carried the stigma of the criminal indictment. He also alleges that the criminal indictment forced him to incur legal costs and placed his job status in jeopardy.
For purposes of this summary judgment motion only, the East Orange Defendants accept the factual allegations set out in plaintiff's complaint. Specifically, they concede that 1) Miller's company VLEM sold and delivered licenses to the East Orange Police Department for which VLEM was paid the proper cost; 2) Miller can establish that Grimes and Davis conspired to perpetrate false testimony before the grand jury; and 3) Grimes and Davis did in fact testify falsely before the grand jury. (East Orange Mot. 8.) Defendant Grimes, on the other hand, does not accept these concessions and disputes that he testified falsely before the grand jury. The East Orange Defendants also accept as true, for purposes of this motion only, the plaintiff's response to Interrogatory Number 27 in which he identified the following basis for his claim that the actions of the individual defendants were pursuant to official City policy: "The Chief of Police is the policy maker for the East Orange Police Department. He was involved in the investigation and lied before the Grand Jury. He knew I provided the equipment because he asked me to do so and was present when I installed same and instructed individuals how to use." (Ferentz Certification Ex. D.)
Summary judgment is appropriate where the moving party establishes that "there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Only the existence of a genuine and material factual dispute between the parties will defeat a motion for summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A factual dispute is genuine if a reasonable jury could return a verdict for the non-movant and it is material if, under the substantive law, it would affect the outcome of the suit. Id. at 248. The moving party must show that if the evidentiary material of record was reduced to admissible evidence in court, it would be insufficient to permit the non-moving party to carry its burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 318 (1986).
Once the moving party has carried its burden under Rule 56, "its opponent must do more than simply show that there is some metaphysical doubt as to the material facts in question." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). To survive a motion for summary judgment, a non-movant must present more than a mere scintilla of evidence in his favor. Woloszyn v. County of Lawrence, 396 F.3d 314, 319 (3d Cir. 2005). The opposing party must set forth specific facts showing a genuine issue for ...