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Pitman v. Ottehberg

United States District Court, Third Circuit

December 31, 2013

JOSHUA M. OTTEHBERG, et al., Defendants.

Paul R. Melletz, Esquire, Ross Begelman, Esquire, Begelman, Orlow & Melletz, Cherry Hill, NJ, Attorneys for Plaintiff Perman Pitman.

Matthew J. Behr, Esquire, Marshall, Dennehey, Warner, Coleman & Goggin, Cherry Hill, NJ, Attorneys for Defendant Matthew Woshnak.

Elyse Glazer Crawford, Esquire Shimberg & Friel PC, Cherry Hill, New Jersey, Attorney for Defendant Harry Collins.

Stuart W. Jay, Esquire Taylor and Jay, LLC, Woodbury, NJ, Attorneys for Defendants Isidoro Reyes and Gilberto Morales.


NOEL L. HILLMAN, District Judge.

This matter comes before the Court by way of a motion [Doc. No. 85] for summary judgment by Defendants Gilberto Morales and Isidoro Reyes pursuant to Federal Rule of Civil Procedure 56. The Court has considered the parties' submissions and decides this matter pursuant to Federal Rule of Civil Procedure 78.

For the reasons expressed below, Defendants' motion will be granted.


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.


As the Court has previously explained, "[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 pursuant to 42 U.S.C. § 1983 and state law based on his wrongful arrest and subsequent prosecution." (Op. [Doc. No. 40] 2, Dec. 30, 2011.) By Opinion and Order dated December 30, 2011, several Defendants were dismissed from this suit, and Plaintiff was granted leave to file an amended complaint.[2]

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").[3] Late in the evening of September 26, 2005, Mays was shot and killed in Camden, New Jersey and police responded shortly after midnight on September 27, 2005.[4] (Am. Compl. ¶ 20.) As set forth in the amended complaint, Mays was apparently shot three times with a.45 caliber weapon in the back and the arm. (Id.) The City of Camden Police Department and the CCPO assigned detectives and other personnel to investigate the shooting death of Mays. (see, e.g., id. ¶¶ 12-13, 21-22, 29.) According to Plaintiff, the CCPO[5] and the individual Defendants[6] "had no physical or testimonial evidence against [Plaintiff] other than a witness" by the name of Efrain Ayala Acevedo ("Acevedo") and they relied solely on Acevedo's statement[7] to "arrest, imprison and prosecute Mr. Pitman." (Id. ¶¶ 2, 43.)

On or about February 8, 2006, approximately four months after Mays was killed, Defendant Palmira White, the Court Administrator for the City of Camden Municipal Court, issued a warrant for Plaintiff's arrest for the alleged felony murder of Mays.[8] (Id. ¶¶ 1, 15, 32.) The arrest warrant was issued by Defendant White based upon a sworn statement of probable cause submitted to her by Defendant Matthew Woshnak, an investigator with the CCPO, and Defendant Isidoro Reyes, a detective with the City of Camden Police Department. (Id. ¶¶ 1, 12, 13.) Pursuant to the arrest warrant, Plaintiff was arrested on February 9, 2006 and charged with murder in the shooting death of Mays. (Id. ¶ 32.) On February 9, 2006, after he was arrested, Plaintiff provided a statement to Defendants Woshnak and Reyes in which he admitted that "he was present at the scene of the shootings" but denied that he was the shooter. Plaintiff told the investigators he observed a lone gunman of Puerto Rican origin - who Plaintiff believed killed Mays - and who shot at Plaintiff as Plaintiff ran away from the scene. (Id. ¶ 33.)

At the time he was arraigned, Plaintiff's bail was allegedly set so high that he was unable to post bail and remained in prison "during the entire pre-trial process" for nearly two years. (Id. ¶ 44.) During this time, Plaintiff continued to profess his innocence, demanded discovery, requested investigation of the crime scene, and filed motions to dismiss the indictment against him and reduce his bail, but was unsuccessful in his attempts. (Id. ¶¶ 45-47.) In October of 2007, Plaintiff asserts that Defendant Collins presented Plaintiff with a plea offer whereby Plaintiff would plead guilty to a significantly downgraded charge of manslaughter with a four year prison term, approximately half of which Plaintiff had already served. (Id. ¶ 50.)

Facing an indictment that charged him with murder, felony murder, armed robbery, conspiracy, possession of a firearm for an unlawful purpose and unlawful possession of a handgun, Plaintiff represents that he "reluctantly agreed to the plea agreement" which dismissed all of those charges in lieu of the amended single charge for manslaughter because he was feeling "[d]epressed, broken, ... cornered and abused by the system" and he had "no trial date and [there was] no end in sight[.]" (Id. ¶¶ 50-51.)

As the Court previously noted, "[i]t now appears, by its own admission, that the State should never have allowed Plaintiff to plead guilty." (Op. [Doc. No. 40] 5, Dec. 30, 2011.) Plaintiff asserts in the amended complaint that on February 23, 2010, the CCPO sought Plaintiff's immediate release from prison and an Order vacating his conviction. (Id. ¶ 6.) This apparently occurred because, on February 18, 2010, during the course of responding to Plaintiff's Petition for Post-Conviction Relief, Teresa M. Garvey, an Assistant Prosecutor in the CCPO, "searched the trial file" and discovered a March 7, 2007 memorandum and an attached "sticky note", both written by Defendant Collins and addressed to Defendant Woshnak. (Id. ¶ 41.) The handwritten sticky note, attached as Exhibit G to Plaintiff's amended complaint, indicated that another investigator with the CCPO had been advised by a jailhouse informant that Acevedo was paid to implicate Plaintiff in the crime. Garvey brought the sticky note to the attention of her superiors and "it was determined that the note and the information contained therein represented exculpatory evidence that should have been provided to" Plaintiff pursuant to Brady v. Maryland , 373 U.S. 83 (1963). (Id.)

As the Court explained in the December 30, 2011 Opinion, in response to the discovery of the note, the CPPO filed a Motion and Order for Dismissal of Plaintiff's Indictment on February 23, 2010. (See Exhibit A to Pl.'s Compl. [Doc. No. 1].) "The CCPO admitted in the motion that while investigators had obtained a taped statement from Acevedo, the alleged eyewitness, they had no other evidence, physical or testimonial, directly implicating Plaintiff in the murder. Moreover, the motion revealed that, prior to the plea, Acevedo had recanted his statement implicating the Plaintiff and further admitted that he implicated Plaintiff to deflect suspicion away from himself." (Op. [Doc. No. 40] 5-6, Dec. 30, 2011) (citations omitted). The motion further revealed the existence of the note and the circumstances surrounding it had not been disclosed to the defense, and that the State therefore consented to vacating the Judgment of Conviction for Plaintiff and the withdrawal of his guilty plea. (See Ex. A to Compl., Mot. and Order for Dismissal of Indictment [Doc. No. 1-1], ¶ 3.) Thereafter, the state court entered "an Order of Nolle Pros, ... confirming that the [CCPO] [would] no longer prosecute [Plaintiff] on behalf of the State of New Jersey for the indictment... and that all proceeding[s] upon the indictment aforesaid be altogether and forever stayed in court against [Plaintiff].'" (Am. Compl. ¶ 52.)

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 Morales and Reyes.


A. Standard of Review

In the present motion, Defendants Gilberto Morales and Isidoro Reyes seek the entry of summary judgment in their favor on all of Plaintiff's claims against them. 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, show that there is no genuine issue as to any material fact and that the moving party is entitled ...

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