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Kamienski v. Ford

United States District Court, D. New Jersey

September 17, 2019

PAUL KAMIENSKI, et al. Plaintiff,


          PETER G. SHERIDAN, U.S.D.J.

         This matter comes before the Court on a motion for summary judgment by Defendants Marlene Lynch Ford, Thomas F. Kelaher, James W. Holzapfel, Ronald F. DeLigny, John Mercun, Samuel J. Marzarella, E. David Millard, James A. Churchill, and Daniel T. Mahony (hereinafter "Defendants") (ECF No. 155); and a motion to supplement the record brought by Plaintiff (ECF No. 224). The case arises from an alleged wrongful prosecution and incarceration of Plaintiff, Paul Kamienski, for the murders of Henry (Nick) and Barbara DeTournay committed on September 19, 1983. The history of this case has previously been set out in a number of issued opinions by several courts, and the Court incorporates herein the facts and procedural history as set forth in those opinions. See, Kamienski v. Hendhcks, 332 Fed.Appx. 740, 744 (3d Cir. 2009)[1].

         The motion for summary judgment was filed more than two years ago, and the delay in deciding it is due to supplemental briefing and updating the record. More specifically, at the time of filing, the Defendants moved for summary judgment primarily based upon prosecutorial immunity and qualified immunity for each defendant. In response, Plaintiff set forth sixteen specific allegations of acts or omissions concerning the investigation and prosecution of Kamienski which he argues constituted a breach of his constitutional rights. Upon review of the original filing, Defendants did not address each of the sixteen acts or omissions. As a result, the Court requested that each of these sixteen allegations be addressed in supplemental briefing.

         For organizational purposes, a summary of the applicable law is set forth initially, followed by the identification of each Defendant to understand his or her role in the prosecution of Kamienski, then a separate section on each of the sixteen allegations with corresponding facts and legal analysis.


         Summary judgment is appropriate under Fed.R.Civ.P. 56(c) when the moving party demonstrates that there is no genuine issue of material fact and the evidence establishes the moving party's entitlement to judgment as a matter of law. Celotex Corp. v. Catrett, 411 U.S. 317, 322-23 (1986). A factual dispute is genuine if a reasonable jury could return a verdict for the non-movant, and it is material if, under substantive law, it would affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the non-moving party's evidence "is to be believed and all justifiable inferences are to be drawn in his favor." Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at 255).

         Once the moving party has satisfied its initial burden, the party opposing the motion must establish that a genuine issue as to a material fact exists. Jersey Cent. Power & Light Co. v. Lacey Twp., 772 F.2d 1103, 1109 (3d Cir. 1985). The party opposing the motion for summary judgment cannot rest on mere allegations and instead must present actual evidence that creates a genuine issue as to a material fact for trial. Anderson, 477 U.S. at 248; Siegel Transfer, Inc. v. Carrier Express, Inc., 54 F.3d 1125, 1130-31 (3d Cir. 1995). "[U]nsupported allegations ... and pleadings are insufficient to repel summary judgment." Schoch v. First Fidelity Bancorp, 912 F.2d 654, 657 (3d Cir. 1990); see also Fed. R. Civ. P. 56(e) (requiring nonmoving party to set forth specific facts showing that there is a genuine issue for trial). Moreover, only disputes over facts that might affect the outcome of the lawsuit under governing law will preclude the entry of summary judgment. Anderson, 477 U.S. at 247-48. If a court determines, after drawing all inferences in favor of the non-moving party, and making all credibility determinations in his favor "that no reasonable jury could find for him, summary judgment is appropriate." Alevras v. Tacopina, 226 Fed. App'x. 222, 227 (3d Cir. 2007).


         As noted, this case revolves around the alleged deprivation of civil rights in the investigation and prosecution of Kamienski. Section 1983 states:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity or other proper proceeding for redress.

42 U.S.C. § 1983. "By its own terms, the statute does not create substantive rights. Instead, it only provides remedies for deprivations of rights established elsewhere in the Constitution or federal laws." Williams v. Consovoy, 333 F.Supp.2d 297, 299 (D.N.J. 2004) (quoting Brown v. Pa. Dep 't of Health Emergency Med. Servs. Training Inst., 318 F.3d 473, 477 (3d Cir. 2003)). To establish a § 1983 claim, a plaintiff must establish: (1) conduct by a "person"; (2) who acted "under the color of state law"; (3) proximately causing; and (4) a deprivation of a federally protected right. See Section 1983, Federal Judicial Center, at 133 (Third Ed. 2014); see also West v. Atkins, 487 U.S. 42, 48 (1988).

         The Fourteenth Amendment to the United States Constitution states "[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law." U.S. Const. Amend. XIV, § 1. "The touchstone of due process is protection of the individual against arbitrary action of government.. .." Cnty. of Sacramento v. Lewis, 523 U.S. 833, 845, 118 S.Ct. 1708, 1716 (1998). Thus, to establish a substantive due process claim under §1983, a plaintiff must prove that: (1) the particular interest at issue is protected by the Fourteenth Amendment, and (2) the government's deprivation of that protected interest shocks the conscience. Connection Training Servs. v. City of Phila., 358 Fed.Appx. 315, 319 (3d Cir. 2009).

         Generally, to show such deprivation of a Fourteenth Amendment due process right "requires the Plaintiff to establish that a state [actor] . . . intentionally or deliberately caused the deprivation of the right. Section 1983 Litigation, Federal Judicial Center, at 12-13 (3d Edition 2014). "The Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty, or property." Daniels v. Williams, 474 U.S. 327, 328 (1986) (emphasis in original).

         Through sixteen allegations, Kamienski alleges that Defendants violated his Fourteenth Amendment right to due process by: (1) not conducting a full and fair investigation; (2) failing to provide exculpatory evidence; (3) creating false or misleading statements; (4) coercing witnesses to give false testimony; (5) presenting false or misleading evidence to the jury; (6) filing false and misleading briefs with the Court; and (7) failing to supervise the investigation, prosecution, and post-conviction litigation. (See ECF No. 186, at 17, 19, 20, 22, 24, 26, 27, 28, 29, 30, 31, 32, 33, 34). In response, Defendants argue that none of these allegations amount to a violation of due process, and at most, "Kamienski's criticisms consist of second guessing as to additional areas of investigation which could have been conducted. Lacking any evidence of intentional or bad faith acts, Kamienski essentially accuses the OCPO [Ocean County Prosecutors Office] Defendants of negligence." (Def. Supp. Br., ECF No. 194, at 13-14). Defendants also assert qualified immunity and absolute prosecutorial immunity apply to their actions. Both prosecutorial and qualified immunity are explained below.


         Prosecutorial immunity applies when a prosecutor advocates for the state by engaging in conduct that is "intimately associated with the judicial phase of the criminal process." Imbler v. Pachtman, 424 U.S. 409, 430 (1976). "A prosecutor bears the 'heavy burden' of establishing entitlement to absolute immunity." Odd v. Malone, 538 F.3d 202, 207-08 (3d Cir. 2008). The presumption is that qualified immunity, rather than absolute immunity, "is sufficient to protect government officials in the exercise of their duties." Burns v. Reed, 500 U.S. 478, 486-87, 111 S.Ct. 1934, 1939 (1991). In order to overcome this presumption, a "prosecutor must show that he or she was functioning as the state's advocate when performing the action(s) in question." Odd, 538 F.3d. at 208 (citing Yarris v. Cnty. of Del, 465 F.3d 129, 136 (2006)). Thus, courts evaluate whether a prosecutor may assert absolute immunity by engaging in a "functional analysis" of the prosecutor's actions. Giuffre v. Bissell, 31 F.3d 1241, 1251 (3d Cir. 1994). The functional analysis looks to the nature of the function performed, not the actor who performed the function. Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993). Moreover, the functional analysis "focuses on the conduct... not on the. harm the conduct may have caused or the question whether it was lawful." Id. 271.

         Essentially, "acts undertaken by a prosecutor in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of his [or her] role as an advocate for the State, are entitled to the protection of absolute immunity." Buckley, 509 U.S. at 273. "This includes activity taken while in court, such as the presentation of evidence or legal argument, as well as selected out-of-court behavior intimately associated with the judicial phases" of litigation. Kulwicki v. Dawson, 969 F.2d 1454, 1463 (3d Cir. 1992). The Supreme Court considers the following factors in deciding whether to extend absolute immunity under § 1983: whether "(1) there is a common law tradition of according immunity in similar situations; (2) denying immunity would subject the prosecutor to the chilling influence of vexatious lawsuits; and (3) there exist adequate checks on prosecutorial abuse other than individual suits against the prosecutor." Odd, 538 F.3d at 216 (first citing Imbler, 424 U.S. at 421-29; then citing Burns, 500 U.S. at 492-96; then citing Kulwicki, 969 F.2d at 1463).

         However, "the actions of a prosecutor are not absolutely immune merely because they are performed by a prosecutor." Buckley, 509 U.S. at 273. Instead, prosecutorial immunity does not apply to "[a] prosecutor's administrative duties and those investigatory functions that do not relate to an advocate's preparation for the initiation of a prosecution or for judicial proceedings." Id. at 273 (1993) (citing Burns, 500 U.S. at 494-96). "The key is whether or not a prosecutor is functioning in 'his role as advocate for the State' when undertaking the actions in question. If the answer to this question is yes, then absolute immunity applies. If not, then the prosecutor is entitled to only qualified immunity, 'the norm for executive officers[.]"' Murphy v. Middlesex Cnty., No. 15-7102, 2017 U.S. Dist. LEXIS 56663, at *18-19 (D.N.J. Apr. 13, 2017) (quoting Buckley, 509 U.S. at 273). "To be sure, this immunity does leave the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty." Imbler, 424 U.S. at 427.

         The Supreme Court has explained that when a prosecutor performs the investigative functions normally performed by a detective or police officer,

[t]here is a difference between the advocate's role in evaluating evidence and interviewing witnesses as he prepares for trial, on the one hand, and the detective's role in searching for the clues and corroboration that might give him probable cause to recommend that a suspect be arrested, on the other hand. When a prosecutor performs the investigative functions normally performed by a detective or police officer, it is "neither appropriate nor justifiable that, for the same act, immunity should protect the one and not the other." Hampton v. Chicago, 484 F.2d 602, 608 (7th Cir.) (internal quotation marks omitted), cert, denied, 415 U.S. 917, 39 L.Ed.2d 471, 94 S.Ct. 1413, 94 S.Ct. 1414 (1974). Thus, if a prosecutor plans and executes a raid on a suspected weapons cache, he "has no greater claim to complete immunity than activities of police officers allegedly acting under his direction." 484 F.2d at 608-609.

Buckley, 509 U.S. 259, 273-74, 113 S.Ct. 2606, 2616 (1993). Accordingly, "[w]hen the functions of prosecutors and detectives are the same, ... the immunity that protects them is also the same." Id. at 274.

         The Supreme Court has declined to establish bright-line rules to determine whether a prosecutor is acting as an advocate, subject to absolute immunity, or as an investigator or an administrator, subject only to qualified immunity. Odd v. Malone, 538 F.3d 202, 210 (3d Cir. 2008). Instead, in determining the nature of a prosecutor's actions, courts have found relevant the timing of the actions. Odd, 538 F.3d at 213; see also Murphy, 2017 U.S. Dist. LEXIS 56663, at *20. For example, "pre-indictment and post-conviction actions are more likely administrative than advocative," Odd, 538 F.3d at 213, and a "prosecutor neither is, nor should consider himself to be, an advocate before he has probable cause to have anyone arrested." Buckley, 509 U.S. at 274.

         In Burns v. Reed, the Supreme Court considered whether absolute immunity applied for a prosecutor's participation in a probable cause hearing, and for the prosecutor's legal advice to police officers in the investigative stage. Burns, 500 U.S. at 487. The Court found qualified immunity for the first, explaining that "appearing before a judge and presenting evidence in support of a motion for a search warrant -- clearly involve the prosecutor's 'role as advocate for the State,' rather than his role as 'administrator or investigative officer.'" Id. at 491. In contrast, the Court disallowed absolute immunity for "advising the police in the investigative phase of a criminal case" because that role was not '"intimately associated with the judicial phase of the criminal process.'" Id. at 493.

         In Buckley, the Supreme Court considered whether prosecutors were absolutely immune for allegedly fabricating evidence during the preliminary investigation of a crime and making false statements at a press conference announcing the return of an indictment. Addressing the first issue, the Court found that in allegedly fabricating evidence during preliminary investigation of the crime, prosecutors were not entitled to prosecutorial immunity because during the period of the alleged fabrication of evidence, "[t]he prosecutors [did] not contend that they had probable cause to arrest petitioner or to initiate judicial proceedings during that period. Their mission at that time was entirely investigative in character." Buckley, 509 U.S. at 274. Because the prosecutors were performing the functions normally performed by investigators, they were entitled only to qualified immunity. Id. at 276. Regarding the prosecutors statements during a press conference, the Court determined that these statements were not entitled to absolute immunity, as "[t]he conduct of a press conference does not involve the initiation of a prosecution, the presentation of the State's case in court, or actions preparatory for these functions." Id. at 278. Instead, the Court explained that in performing this action, the "prosecutor is in no different position than other executive officials who deal with the press, and, . . . qualified immunity is the norm for them." Id.

         In Van De Kamp v. Goldstein, the Court considered whether prosecutors were entitled to prosecutorial immunity where a prosecutor failed to train other prosecutors on the subject of impeachment related information, and failed to create a system for prosecutors that handled criminal cases to access information "pertaining to the benefits provided to jailhouse informants and other impeachment information." Van de Kamp v. Goldstein, 555 U.S. 335, 341 (2009). The plaintiff characterized this failure to disclose as an "administrative procedure" not subject to absolute immunity, because it is related to the training and supervision of prosecutors. Id. at 339. The Supreme Court disagreed, explaining that "prosecutors involved in such supervision or training or information-system management enjoy absolute immunity from the kind of legal claims at issue here, [which] focus upon a certain kind of administrative obligation - a kind that itself is directly connected with the conduct of a trial." Id. at 344. The Supreme Court distinguished these administrative functions from other administrative duties, such as payroll administration or workplace hiring, because these administrative functions "required legal knowledge and the exercise of related discretion, e.g. in determining what information should be included in training, supervision, or information-system management." Id. at 344. In short, the Supreme Court did not wish to see an "end run around prosecutorial immunity" by restyling a complaint as an administrative or information-system activity rather than as a prosecutorial action. Section 1983 Federal Judicial Center, at 137 (Third Ed. 2014).

         Even more, the Third Circuit has acknowledged that a prosecutor may not enjoy prosecutorial immunity for deliberately destroying exculpatory evidence or for failing to preserve exculpatory evidence, but is entitled to absolute immunity for these types of actions "so long as they did so while functioning in their prosecutorial capacity." Meanwhile, immunity applies to post-conviction proceedings, so long as "the prosecutor is personally involved . . . and continues his role as an advocate." Yarris, 465 F.3d at 136-139 (quoting Spurlock v. Thompson, 330 F.3d 791, 799 (6th Cir. 2003)); Munchinski v. Solomon, 747 Fed.Appx. 52, 57 (3d Cir. 2018); see also Rose v. Bartle, 871 F.2d 331, 344 (3d Cir. 1989) (explaining that prosecutorial immunity applies even where "a federal prosecutor and a cooperating witness had conspired to use perjured testimony ... in order to convict appellants").

         Overall, prosecutors may assert absolute immunity when engaged in the following activities:

• deciding whether to prosecute; engaging in pretrial litigation activities concerning applications for arrest and search warrants, bail applications and suppression motions;
• appointing special prosecutor;
• making decisions concerning extradition;
• preparing for trial, including interviewing witnesses and evaluating evidence; failing to turn over exculpatory material to defense;
• introducing evidence;
• plea bargaining;
• entering into release-dismissal agreement;
• making sentencing recommendations; and
• failing to disclose exculpatory material to defense in post-conviction proceedings.

Section 1983, Federal Judicial Center, at 133 (Third Ed. 2014).


         Qualified immunity protects executive officials who violate a petitioner's federally protected right, so long as the right was not clearly established by law. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Whether government officials can assert qualified immunity is resolved by a two-part test: (1) whether the facts that a plaintiff has alleged or shown make out a violation of a constitutional right and, if so; (2) whether the right at issue was "clearly established" at the time of the defendant's alleged misconduct. Walker v. Coffey, 905 F.3d 138, 144 (3d Cir. 2018); Saucier v. Katz, 533 U.S. 194, 201 (2001). It is within the Court's discretion in addressing "either of these questions first, in light of the circumstances in the particular case at hand . . . ." Walker, 905 F.3d at 144.

         "[T]he clearly established right must be defined with specificity." City of Escondido v. Emmons, 139 S.Ct. 500, 503 (2019). Thus, "[a] clearly established right is one that is 'sufficiently clear that every reasonable official would have understood that what he is doing violates that right.'" Mullenix v. Luna, 136 S.Ct. 305, 308 (2015) (quoting Reichle v. Howards, 132 S.Ct. 2088 (2012)). Qualified immunity is designed to allow government officials to make reasonable judgments, even if they are mistaken, about open legal questions. It is intended to protect "all but the plainly incompetent or those who knowingly violate the law." Kisela v. Hughes, 138 S.Ct. 1148, 1152 (2018) (quoting White v. Pauly, 137 S.Ct. 548, 551 (2017)). Qualified immunity has been defined as a "fair warning" standard by the Supreme Court, meaning that if the federal right is clearly established, the official is sufficiently on notice and may be held monetarily liable. Hope v. Pelzer, 536 U.S. 730, 741 (2002). Qualified immunity "will attach if the official can demonstrate his conduct was 'objectively reasonable.'" Davis v. Malitzki, 451 Fed.Appx. 228, 232 (3d Cir. 2011).

         A right is clearly established when precedent exists that is similar to the case at hand, although the facts of the precedent do not need to be "materially similar." Anderson v. Creighton, 483 U.S. 635, 640 (1987); Hope, 536 U.S. at 739. While there is no need for a "case directly on point . . . existing precedent must have placed the statutory or constitutional question beyond debate," and the "violative nature of particular conduct" must not be defined at a "high level of generality." Ashcroft v. Al-Kidd, 131 S.Ct. 2074, 2083-84 (2011). To determine whether a right is clearly established, "we look first for 'applicable Supreme Court precedent.' If none exists, we consider whether there is a case of controlling authority in our jurisdiction or a 'robust consensus of cases of persuasive authority in the Courts of Appeals that could clearly establish a right for purposes of qualified immunity.'" Barna v. Bd. of Sch. Dirs. of the Panther Valley Sch. Dist., 877 F.3d 136, 142 (3d Cir. 2017) (citing Mammaro v. N.J. Div. of Child Prot. & Permanency, 814 F.3d 164, 169 (3d Cir.), as amended (Mar. 21, 2016)). "The clearly established law must be 'particularized' to the facts of the case[o]therwise, plaintiffs would be able to convert the rule of qualified immunity . . . into a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights." White, 137 S.Ct. at 552 (quoting Anderson, 483 U.S. at 640). However, "the unconstitutionality of outrageous conduct obviously will be unconstitutional," and "officials can still be on notice that their conduct violates established law in novel factual circumstances." Safford Unified Sch. Dist. #7 v. Redding, 557 U.S. 364, 378-79 (quoting Hope, 536 U.S. at 741).

         Accordingly, some of the actions that prosecutors and investigators may assert qualified immunity include:

• holding a press conference;
• engaging in investigative activity prior to the establishment of probable cause to arrest;
• providing the police with legal advice during the investigative phase;
• ordering police to conduct warrantless arrests; and
• participating in execution of material witness warrant.

Section 1983, Federal Judicial Center, at 134 (Third Ed. 2014).


         Since the Defendants are named independently throughout the sixteen allegations but are not clearly identified as to their role within Kamienski's prosecution, each Defendant is identified below by their role and responsibilities in the prosecution.

         James A. Churchill

         Defendant James A. Churchill, an investigator with the Ocean County Prosecutor's Office (hereinafter "OCPO") was promoted to lieutenant in 1981, promoted to the captain of detectives in 1988, and to interim chief of detectives in 1991. (PI. SOF. ECF No. 158, at ¶ 236).[2] At his deposition, Churchill acknowledged that during the investigation of the DeTournay murders and drug transactions, he "basically . . . was in charge of the investigators from the Prosecutor's office who worked on the case." (Id. at ¶ 238). He performed supervisory duties during the investigation, from September 1983, through the grand jury indictment in 1988, as well as the trial and post-trial motions in 1988. (Id. at ¶ 237). He continued these supervisory duties throughout the appeals process between 1989 and 1992, during the filing of Kamienski's habeas petition between 2002 and 2006, and through the Third Circuit appeal in 2006. (Id.)

         Churchill also performed investigative functions for the OCPO from 1970 through 1995, and from 1997 to 2006. These duties continued throughout the Kamienski investigation. (Id. at ¶ 239-40). The investigative functions performed by Churchill included interviewing witnesses, reviewing evidence, meeting daily with the team of agents conducting other aspects of the investigation, conducting a polygraph test, and choosing what evidence should be analyzed through forensic examination. (Id. at ¶ 240).

         Daniel T. Mahony

         Defendant Daniel T. Mahony performed investigative duties at the OCPO from 1977 until 1995 and from 1997 until 2007. (ECF No. 166, at ¶ 279). He was hired by Churchill, and he was the lead case agent on the Kamienski investigation from 1983 through the trial. (Id. at ¶ 281, 283). Mahony also held supervisory positions, including being a sergeant from 1988 to 1990, a lieutenant from 1990 to 1995, and the chief of investigators from 1997 to 2007. (Id. at ¶ 279). Mahony initially stated he did not participate in drug investigations after 1980, but later explained that he participated in arresting Donna Duckworth[3] on drug charges in 1985 and participated in searching Kamienski's boat for controlled drug substances at that time. At the time of his deposition in March 2017, he could not recall what probable cause the OCPO had to obtain the warrant for search of Kamienski's boat. (Id. at ¶ 280). Mahony testified that he would generally discard any notes he had created. (ECF No. 166, ¶ 282).

         E. David Millard

         Defendant E. David Millard became a part-time prosecutor at the OCPO beginning in May 1987 and continuing for about eight years, during which time he served as a trial team leader. (Ex. D, Dep. Of E. David Millard, T12:9-14:7). Millard was then the Ocean County Prosecutor from September 1997 until January 2002 and was involved in the Kamienski matter during the Grand Jury proceedings, during the trial and post-trial motions, and Kamienski's sentencing. (E. David Millard Answers to Interrogatories, ECF No. 155-19, Ex. Q, at ¶ 4).

         The DeTournay trial was Millard's first murder trial. (Pl. SOF, at ¶ 133). Millard was the sole prosecutor handling the case at trial, and he was solely responsible for selecting the witnesses and physical evidence for the State's case. (Id. at ¶ 143).

         In addition, Millard presented the DeTournay matter to the Grand Jury. Millard also handled the prosecution of Donna Duckworth on an unrelated drug charge that had been initiated prior to his arrival. (Def. Response to Statement of Material Facts, ECF No. 166, at ¶¶ 130-135).

         James W. Holzapfel

         Defendant James W. Holzapfel was the Ocean County Prosecutor from May 1987 to the fall of 1992. The County Prosecutor is the highest executive position in the office, and Holzapfel directly supervised Terrance Farley, the First Assistant County Prosecutor (on legal issues) and also supervised Chief of Detectives, Palmer Herbert and James A. Churchill (on investigative issues).

         Assistant County Prosecutor Farley oversaw trials and appeals. During his tenure, the OCPO's office, undertook the following activities: (1) investigated Kamienski's alleged involvement in the DeTournay murders and drug charges; (2) tried Kamienski on murder and drug charges; (3) opposed Kamienski's post-trial motion for judgment of acquittal; and (4) filed the appellate brief seeking reinstatement of the murder charges which the trial judge had dismissed.

         Plaintiff alleges that no other person at the OCPO had oversight over ethical issues or ethics training during Holzapfel's tenure. (ECF No. 166, ¶¶ 42-45).

         Thomas F. Kelaher

         Defendant Thomas F. Kelaher was the Ocean County Prosecutor from January 2002 to July 2007, during which time the OCPO opposed Kamienski's habeas petition. (Id. at ¶ 62). During most of Kelaher's tenure, Terrance Farley was the First Assistant County Prosecutor. Defendant John Mercun was the Executive County Prosecutor, and Defendant Samuel J. Marzarella was in charge of the criminal appeals unit. Also, during Kelaher's tenure, the OCPO did not have an ethics officer or "formal ethics training." (Id. at ¶¶ 62-67).

         Marlene Lynch Ford

         Defendant Marlene Lynch Ford was the Ocean County Prosecutor from June 27, 2007 to March 22, 2013, which included the time period during which Kamienski's habeas petition appeal was pending in the Third Circuit. During most of Lynch Ford's tenure, Defendant Ronald F. DeLigny was the First Assistant County Prosecutor. William Heisler was the Executive County Prosecutor. In addition, DeLigny was the designated ethics officer, and Samuel J. Marzarella was the head of the appeals unit. Charles Kyle was the chief investigator. (Id. at ¶¶ 76, 79-83).

         Ronald DeLigny

         Ronald DeLigny was employed as an Assistant County Prosecutor from September 1987 to July 1, 2012. DeLigny claims he was never the ethics officer. However, this contradicts Defendant Marlene Lynch Ford's testimony (see above). DeLigny also alleges that his first and only involvement in the Kamienski matter occurred after the Third Circuit's reversal, when the OCPO was considering filing a petition for certiorari to the U.S. Supreme Court. He claims that he was unaware of any aspect of the Kamienski investigation, trial, appeal, or habeas litigation. (ECF No. 166, ¶¶ 117-118).

         Samuel J. Marzarella

         Defendant Samuel J. Marzarella is or was the head attorney in the Appeals Unit at the OCPO from September 1986 to 1991, and then again from March 2002 until at least 2017. During the latter period he became a Supervising Attorney (circa 2006/2008) and then Chief of Appeals (2015). (Pl. SOF at ¶¶ 355-56). Marzarella drafted the brief seeking to reverse Judge Perskie's JNOV decision submitted to the Appellate Division (ECF No. 166, ¶ 8, 33). Marzarella also drafted and argued the Kamienski case before the United States District Court and the Third Circuit Court of Appeals on the habeas matter, Kamienski v. Hendricks, 332 Fed.Appx. 740, 740 (3d Cir. 2009). (ECF No. 166, ¶¶ 9-16).


         This section presents the sixteen allegations engendered by Plaintiff in response to the motion for summary judgment based on qualified immunity and prosecutorial immunity.

         Organizationally, each allegation[4] will be addressed in numerical order except one. Allegation fifteen will be presented first because it focuses on the essential facts and the most pertinent issue giving rise to this case.

         Allegation 15:

Defendant Marzarella filing false and misleading briefs on direct appeal, in opposition to Kamienski's habeas petition and in opposition to Kamienski's federal appeal. Defendant Marzarella attempting to mislead the United States District Court and Court of Appeals at oral argument with unsupported and/or false statements as to the record in the underlying trial. And, Defendant Millard not stepping in to correct matters once he became County Prosecutor and knew or should have known Marzarella had completely distorted the trial record, claiming for instance that the evidence showed Kamienski had "premeditated" the murders when Millard at trial and during post-trial motion said there was no evidence Kamienski knew in advance of his co-defendants' plan to commit a drug robbery, much less a dual murder.

         In the supplemental briefing, Plaintiff reframes Allegation 15 as follows:

Attorney Marzarella filed false briefs on the direct appeal, during the habeas litigation and in the federal appeal. When Marzarella's misconduct was finally exposed for what it was the Third Circuit reacted by becoming, in the words of a member of the panel, "almost apoplectic." The Third Circuit further excoriated Marzarella for filing "misleading" and "totally improper" briefs in order to try to perpetuate Kamienski's murder convictions, which had been wrongful secured from the beginning. Kamienski v. Hendricks, 332 Fed.Appx. 740, 744 n.8 and n. 9 (3d Cir. 2009) and Ex. 12 at 20:3- 23, 21:1-2 and 21:3-9. This statement, in and of itself, is compelling evidence that Marzarella violated Kamienski's well-established constitutional rights to fair legal proceedings. See Rochin v. California, 342 U.S. 165, 172 (1952) (the Due Process Clause of the Fourteenth Amendment is violated by conduct that "shocks the conscience"). If the Court similarly concludes that Marzarella's conduct "shocks the conscience" then he would not be entitled to absolute or qualified immunity.

(PI. Supp. Br., ECF No. 186, at 32-33).

         By way of background, Kamienski was tried on an indictment alleging conspiracy to distribute drugs and murders of the DeTournays, and he was convicted on both counts. Judge Perskie found his instruction of murders as it applied to Kamienski was flawed, and he ruled on a judgment notwithstanding the verdict (JNOV) to set aside the murder convictions based on the improper charge. On appeal, Judge Stephen P. Perskie's ruling was reversed, and the murder conviction was reinstated. On remand, Judge Perskie imposed a sentence of two life sentences with thirty years parole ineligibility for the murder convictions, and consecutive terms of twelve years imprisonment for the drug conspiracy convictions. Kamienski v. AG for N.J., Civil Action No. 11-3056 (PGS), 2012 U.S. Dist. LEXIS 130046 (D.N.J. Sept. 12, 2012). Kamienski was confined from 1988 through 2007, at which time the Third Circuit found that Perskie's JNOV was correct and it set aside the Appellate Division's decision. As a result, Plaintiff alleges that the actions of the trial attorneys of the Ocean County Prosecutor's Office culminated in Marzarella's allegedly misleading appellate and habeas briefs.

         Initially, this is the most significant issue because in order to prove a § 1983 case one must establish (1) conduct by a person; (2) who acted under the color of law; (3) proximately causing; and (4) deprivation of a federally protected right. Here, Kamienski's loss of liberty (incarcerated for nearly 20 years) was proximately caused by the reversal of Judge Perskie's JNOV to set aside the murder conviction by the Appellate Division allegedly due to Marzarella's brief.

         Prosecutor Marzarella worked on both the direct appeal and Plaintiffs habeas petition. (See Dep. of Samuel Marzarella, ECF No. 155-27, at 17:17-55; 45:25-46:4). According to Kamienski, Marzarella "filed false briefs on the direct appeal, during the habeas litigation and in the federal appeal." (Pl. Supp. Br., ECF No. 186, at 32). Kamienski claims that by filing these allegedly false and misleading briefs, Marzarella denied him his due process right to a fair trial. (Id. at 33). Even more, according to Kamienski, if these false and misleading briefs were not filed, the Appellate Division would not have reinstated his murder conviction, and it is "highly unlikely the District Court would have denied" his habeas petition. (Id.)

         In support of this proposition, Kamienski points to the Third Circuit's decision in Kamienski v. Hendricks, 332 Fed.Appx. 740, 745 (3d Cir. 2009), and comments made by Third Circuit Judges during oral argument for the habeas petition. Kamienski argues that one member of the panel "excoriated Marzarella for filing 'misleading' and 'totally improper' briefs in order to try to perpetuate Kamienski's murder convictions . . . ." (Id.) Kamienski highlights portions of both the briefs on direct appeal and the briefs before the Third Circuit, in an effort to show specific instances where the briefs were misleading. (See PSOF, ECF No. 169, at ¶¶ 371-388; 400-407; 412; 423). Regardless, Kamienski rightly notes that "[t]o permit Kamienski to go forward on this claim, the Court would have to determine that an appellate attorney opposing a federal habeas petition is not entitled to absolute immunity." (Id. at 33). Rather, Plaintiff argues that Marzarella's conduct "shocks the conscious" and absolute immunity should not apply. (Id.). However, Kamienski's arguments are without merit.

         As previously explained, the Third Circuit has held that "[a]bsolute immunity applies to the adversarial acts of prosecutors during post-conviction proceedings . . . where the prosecutor is personally involved ... and continues his role as an advocate" Yarris, 465 F.3d at 137 (quoting Spurlock v. Thompson, 330 F.3d 791, 799 (6th Cir. 2003) (emphasis added)). Here, it is clear that during the direct appeal and during the habeas proceeding, Marzarella was personally involved, and continuing his role as advocate for the State by engaging in activity "intimately associated with the judicial phase of the criminal process" - drafting and arguing briefs before the courts. Imbler, 424 U.S. at 430. Accordingly, Marzarella is entitled to prosecutorial immunity for filing allegedly false and misleading briefs before the courts.

         More so, the Court declines to find that Marzarella's conduct here "shocks the conscious." First, the comments made by counsel or a judge at oral argument for the habeas petition must be viewed in light of the Third Circuit's opinion. See Kamienski, 332 Fed.Appx. at 745. Second, Kamienski mischaracterizes the Third Circuit's comments regarding "misleading" aspects of the briefs. The first comment discusses Duckworth's testimony regarding the knots Kamienski would tie and the knots used to tie the bodies to the cement blocks. Id. at 744. The Third Circuit explained:

[t]he government makes much of this testimony on appeal . . . However, the state's selective reliance on that testimony is misleading because Duckworth conceded on cross examination that there was nothing unique about the knots, and that the hitch knot is a common boater's knot. . . Accordingly, the fact finder could only conclude from that portion of her testimony that Kamienski knew how to tie a common "hitch knot," used in boating.

Id. at 744 n.8.

         The second comment discusses how, throughout the brief before the Third Circuit, the government:

used the term "defendants" in a manner that included Kamienski without specifying which of the three defendants the evidence refers to. In several of those references, the evidence being discussed pertained only to Marsieno and/or Alongi, and not to Kamienski. Moreover, the government's brief frequently includes facts based on testimony that was admitted only against Marsieno and/or Alongi. Although counsel does note that such evidence was admitted only against the other defendant(s), it is clearly irrelevant in determining if the evidence admitted against Kamienski was sufficient. Moreover, including such evidence in the brief is both unhelpful and misleading as only Kamienski's appeal is before us. ...

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