United States District Court, D. New Jersey
McNulty United States District Judge
plaintiffs, Jeffery Richardson and Colby Richardson, filed a
complaint under 42 U.S.C. § 1983 alleging violations of
their federal and state constitutional rights and asserting
that defendants committed intentional torts against them. The
complaint arises from plaintiffs' arrest and prosecution
in connection with the December 15, 2013 shooting death of
Naeem Williams. Defendants are the State of New Jersey, the
Essex County Assistant Prosecutor Jamel Semper, and Detective
the complaint was filed, the state criminal case was still
ongoing. On May 31, 2016, defendants moved to dismiss the
complaint. (DE 10). In the alternative, defendants moved to
stay this action pending the outcome of the state criminal
proceeding. On October 15, 2016, I granted the stay, granted
the motion to dismiss with respect to the injunctive relief,
and administratively terminated the motion to dismiss without
prejudice to renewal after the expiration of the stay. (DE
9, 2018, plaintiffs moved for leave to file an amended
complaint and moved to vacate the stay. (DE 23). Plaintiffs
attached to their motion a copy of the judgment of acquittal
in connection with the December 15, 2013 incident. (DE 23-1).
On September 19, 2018, Judge Clark vacated the stay and
granted plaintiffs' motion to file an amended complaint.
(DE 25). On January 22, 2019, plaintiffs then filed an
amended complaint. (DE 34).
Prosecutor Semper now moves to dismiss the amended complaint
because of the immunity afforded to prosecutors when they are
performing essential prosecutorial functions. (DE 39).
Plaintiffs oppose that motion. (DE 44).
reasons explained herein, I will grant AP Semper's motion
allegations of the amended complaint are assumed to be true
for purposes of this motion only. I summarize them as
amended complaint alleges that on December 15, 2013 at
approximately 7:34 p.m., there was a shooting near the
intersection of Elizabeth Avenue and Clinton Avenue in
Newark. (AC ¶ 15). There was a surveillance video, which
DSG Oriolo obtained two days later and reviewed.
(Id. ¶ 17). The surveillance appears to show
two individuals targeting two other individuals who are
standing near an Exxon gas station. (Id. ¶ 18).
A week later, Oriolo obtained additional surveillance footage
from December 5, 2013. [Id. ¶ 19). This time,
the footage showed plaintiffs standing outside of a grocery
store, Luisa Grocery, located at 123 Elizabeth Avenue.
(Id.) The video shows plaintiffs standing at this
location from 5 p.m. to 9 p.m. (Id., ). Oriolo then obtained
two witness statements which did not match the surveillance
video. (Id. ¶¶ 21-23; 30-37). One witness,
Kamika Erby, stated that she was standing by a bus stop near
the incident on Clinton Avenue at the time of the shooting;
the surveillance video, however, shows no one standing in
that location at the time of the shooting. (Id.
¶ 31). The second witness, Jennifer Gilbert (who was
also a victim of the shooting) stated that both plaintiffs
shot her. (Id. ¶ 33). The surveillance video is
inconsistent, in that it shows that each of the shooters
targeted only one individual. (Id. ¶ 18).
Oriolo used these witnesses' inaccurate statements in
preparing a criminal complaint and applying for arrest
warrants. (Id. ¶ 24). As a result, on February
10, 2014, the plaintiffs were arrested. (Id. ¶
6, 2014, AP Semper and DSG Oriolo together used the allegedly
false statements of the two witnesses and Oriolo's own
allegedly false testimony to obtain a grand jury indictment.
(Id. ¶¶ 46-49). The amended complaint
alleges that AP Semper used the two witnesses' allegedly
perjured statements before the grand jury. (Id.
¶ 46). Semper also purportedly withheld exculpatory
surveillance footage from the grand jury and allowed Oriolo
to present his false testimony to the grand jury.
(Id. ¶¶ 47-48).
October 2017, plaintiffs were tried, but the proceeding ended
in a declaration of mistrial. (Id. ¶ 26). A
second trial was held and on June 25, 2018, plaintiffs were
acquitted. (Id. ¶¶ 27-28).
amended complaint cites 42 U.S.C. § 1983, and asserts a
variety of claims under the U.S. Constitution, the New Jersey
State Constitution, and asserts various tort claims:
Count 1 - Violation of 4th Amendment (Oriolo)
Count 2 - Violation of 14th Amendment (Oriolo)
Count 3 - Violations of 5th and 14th Amendments (Semper)
Count 4 - Malicious Prosecution (all defendants)
Count 5 - Intentional Infliction of Emotional Distress (all
Count 6 - Compensatory damages Count
7 - Defamation (all defendants)
Count 8 - Punitive/Exemplary damages Count
9 - Declaratory Relief (return of personal property)
the movant, AP Semper, is named only in Counts 3, 4, 5, and
7, I fbcus on those counts.
complaint seeks $18 million in damages and seeks an order
requiring the Essex County Prosecutor's Office to return