United States District Court, D. New Jersey
PAUL KAMIENSKI, et al. Plaintiff,
MARLENE LYNCH FORD, THOMAS F. KELAHER, JAMES W. HOLZAPFEL, RONALD F. DELIGNY, SAMUEL J. MARZARELLA, E. DAVID MILLARD, JAMES A. CHURCHILL, and DANIEL T. MAHONY. Defendants.
MEMORANDUM AND ORDER
G. SHERIDAN, U.S.D.J.
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).
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.
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.
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.
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).
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
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).
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
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
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.
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.
"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).
"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.
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
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
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.
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.
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.
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).
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
prosecutors may assert absolute immunity when engaged in the
• 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
Section 1983, Federal Judicial Center, at 133 (Third Ed.
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.
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.
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).
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
• ordering police to conduct warrantless arrests; and
• participating in execution of material witness
Section 1983, Federal Judicial Center, at 134 (Third Ed.
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
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). 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.)
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 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 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 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 ¶
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).
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 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
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.
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 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 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).
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 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, ¶¶
section presents the sixteen allegations engendered by
Plaintiff in response to the motion for summary judgment
based on qualified immunity and prosecutorial immunity.
each allegation 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.
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
supplemental briefing, Plaintiff reframes Allegation 15 as
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
(PI. Supp. Br., ECF No. 186, at 32-33).
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.
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
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.
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.
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.
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.
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. ...