NOT PRECEDENTIAL UNIT E D STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_________________________________

No. 21

- 1770 JIDEOFOR MICHAEL ONUEKWUSI

v. DARNELL GRAHAM; *CHRISTOPHER BROWN; *MARIA MITTI; *JOSEPH COZENTINO; *DET. MIGUEL ARROYO; *CITY OF NEWARK

DARNELL GRAHAM, Appellant *(Dismissed pursuant to the Court Order dated 11/9/21)

_________________________________ On Appeal from the United States District Court f or the District of New Jersey (District Court No. 2:20

- cv
- 0 2965 ) District Judge : Honorable John M. Vazquez

__________ Submitted under Third Circuit L.A.R. 34.1(a)

on March 28, 2022

__________ Before: RESTREPO, ROTH, and FUENTES, Circuit Judges

( Filed : September 28, 2022 )

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OPINION * 1

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1 This disposition is not an opinion of the full Court and, under I.O.P. 5.7, does not constitute binding precedent.2

RESTREPO , Circuit Judge

. Only the facts relevant to the narrow issue presented here will be set forth because
this opinion is not precedential, and the parties are well aware of the somewhat complicated background. Defendant

- Appellant Darnell Graham (Graham) seeks this
Court’s review of the District Court’s order denying him qualified immunity under 42
U.S.C. § 1983 and denying , in part , to dismiss Plaintiff

- Appell ee Jideofor Michael
Onuekwusi’s ( Onuekwusi) complaint

. In 201 8, Graham, a detective with the Newark Police Department , and his co
defendants sought to apprehend an assailant who committed at least three robberies of
victims encountered through Offerup and Craigslist. Onuekwusi’s complaint alleges that
Graham used a 15

- year
- old picture of Onuekwusi in a photo lineup, falsely told witnesses
that Onuekwusi was connected to the number used to contact them, and did not disclose to
witnesses or the court that Onuekwusi spoke with a distinct Nigerian accent.
The grand jury indicted Onuekwusi on three counts of first

- degree robbery, two
counts of second

- degree unlawful possession of a firearm, and three counts of second

degree possession of a weapon with an unlawful purpose. O nuekwusi was subsequently
arrested , placed on an immigration hold, and spent 11 months in jail

. In 2020 , Onuekwusi filed a complaint alleging violations of the Fourth and Fourteenth Amendments stemming
from defendants’ fabrication of evidence and false statements to a grand jury. Graham and
his co

- defendants moved to dismiss Onuekwusi’s complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). In relevant part, t he District Court determined that Graham was
not subject to qualified immu nity

. We affirm.3 I. At issue is whether we possess jurisdiction to review the District Court’s order denying Graham qualified immunity where issues of fact exist. Although Graham’s appeal
is an interlocutory o ne, this Court has jurisdiction

. It is well

- established that, even though
28 U.S.C. § 1291 only provides jurisdiction over final orders, this Court has jur isdiction
under the collateral order doctrine over a petitioner’s § 1983 claim of qualified immunity , but only to the extent that it “turns on an issue of law.” Mitchell v. Forsyth , 472 U.S. 511,
530 , 105 S. Ct. 2806 , 2817 (1985); see also Dougherty v. Sch. Dist. of Philadelphia et al. , 772 F.3d 979, 986 (3d Cir. 2014) (same)

. Under the collateral order doctrine, an interlocutory order is immediately appealable as a “final decision” within the meaning of § 1291 if it “[1] conclusively determine[s] the disputed question, [2] resolve[s] an important issue completely separate from the merits of the action, and [3] [is] effectively unreviewable on appeal from a final judgment.” Johnson
v. Jones , 515 U.S. 304, 310 , 115 S. Ct. 2151, 2152 (1995) (first, third, and fifth alterations in original) (internal quotation marks omitted) (quotin g Puerto Rico Aqueduct & Sewer Authority v. Metcalf & Eddy, Inc. , 506 U.S. 139, 144, 113 S. Ct. 684, 688 (1993))

. A district
court’s order denying qualified immunity may be an appealable final decision under the
collateral order doctrine if the order turns on an issue of law, not fact

. L.R. v. Sch. Dist. of Philadelphia , 836 F.3d 235, 240

– 41 (3d Cir. 2016) (“[A] district court’s denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable ‘final
decision’ within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment.”)

.4

To the extent that this Court has jurisdiction over Graham’s claims , we exercise de

novo review over an appeal from a motion to dismiss

. Phillips v. Cnty. of Allegheny , 515 F.3d 224, 23 1 (3d Cir. 2008). In considering a motion to dismiss, we “accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the com plaint, the plaintiff may be
entitled to relief.” Id . at 233 (quoting Pinker v. Roche Holdings Ltd. , 292 F.3d 361, 374 n.7 (3d Cir. 2002)).

II.
We turn to the merits of Graham’s qualified immunity defense. We must determine whether the District Court properly denied Graham qualified immunity. Under § 1983, government officials are shielded from civil damages liability unless the official violated a complainant’s statutory or constitutional right that was “clearly established” at the time of
the conduct at issue. Reichle v. Howards , 566 U.S. 658, 664 , 132 S. Ct. 2088, 2093 (2012). A court reviewing a qualified immunity claim must engage in a two

- step analysis: “(1) whether the plaintiff sufficiently alleged the violation of a constitutional right, and (2) whether the right was ‘clearly established’ at the time of the of ficial’s conduct.” L.R. , 836
F.3d at 241 (quoting Pe a rson v. Callahan , 555 U.S. 223 , 232, 129 S. Ct. 808 , 816 (2009))

. To satisfy the first step, we must decide whether the record was sufficient to
establish a constitutional violation based on the set of facts before the district court. Graham argues that Onuekwusi failed to establish a constitutional violation of a clearl y established right. Onuekwus i, on the other hand, points to his complaint which claims violations of his5

Fourth and Fourteenth Amendments. To determine whether Onuekwusi properly raised a Fourth Amendment violation, the District Court evaluated whether Gr aham had probable
cause to arrest Onuekwusi. Viewing the facts in the light most favorable to Onuekwusi, the
District Court note d that Onuekwusi alleged Graham falsely linked him to a cell phone
number that was not his ; 2 Graham used a significantly outdated photograph (15

- years
- old) of Onuekwusi in a photo lineup; Onuekwusi did not have accounts on Craigslist or Offerup
and Graham knew that ; and Graham pursued Onuekwusi’s arrest despite the fact that the assailant was not described as having an accent whereas Onuekwusi spoke with a significant Nigerian accent. Based on these facts, the District Court determined that Graham did not have probable ca use to arrest Onuekwusi and therefore violated his Fourth
Amendment rights

.
The District Court used the same set of aforementioned facts to determine
Onuekwusi’s Fourteenth Amendment claim , which alleges a Brady /Fabricated Evidence

2 There is some dispute regarding the factual question of whether one of the perpetrator’s phone number s was connected to Onuekwusi through a relative (Onuekwusi claims that he has no connection to the phone numbers though he may have mistakenly testified that one of the phone numbers used by the assailants was connected to a family member of Onuekwusi). The District Court must weigh the facts in the light most favorable to Onuekwusi as the non

- moving party. Judge Vazquez considered Onuekwusi ’s alleged facts as true, namely that he was not actually connected to the numbers, and that Graham knowingly falsified this information. Even if the question of Onuekwusi’s connection to the assailant’s phone numbers is a genuine issue of material fact , the District Court properly considered several other factors in denying Graham’s § 1983 protection claim, and we have j urisdiction to review that determination

.6

Claim under the Due Pro cess Clause. Graham claimed that using an old photo was not fabricated evidence. However, as the District Court pointed out, the photograph shown to the robbery victims depicted Onuekwusi as 15 years younger and 70 pounds lighter than
he was at the time of the robberies

. On u ekwusi claimed that Graham framed him by inducing false witness identification using misleading and suggestive photo lineups. Graham also falsely testified to the grand jury regarding Onuekwusi’s alleged accounts on Offerup and Craigslis t.

The District Court f

ound that Onuekwusi adequately pled facts giving rise to a
reasonable inference that there was a reasonable likelihood that, absent Graham’s fabricated evidence, Onuekwusi would not have been criminally charged in violation of his Fourth and Fourteenth Amendments. We agree.

We now turn to whether Onuekwusi’s Fourth and Fou rteenth Amendment rights were clearly established . T he District Court found that “no reasonable police officer with the knowledge of the foregoing allegations would have believed that there was probable cause to arrest and prosecute Plaintiff .” App. 23. We agree. In his brief, Graham cites
As h croft v. al

- Kidd , 563 U.S. 731, 741 , 131 S. Ct. 2074, 2083 (2011) which provides officials with qualified immunity unless, inter alia , every “ reasonable offic ial” would have known that his actions were violative of the Constitution. Here, we agree with the District
Court: any reasonable officer would have known that Graham’s alleged actions

— fabricating evidence and making false statement s to a grand jury with the i ntent of arresting
an individual

—

would be in violation of an individual’s constitutional protections. We7

conclude, therefore, that Graham is not entitled to qualified immunity and the District Court did not err in denying his motion to dismiss

.
III.

For the foregoing reasons, we will affirm the District Court’s order denying
Graham’s motion to dismiss

.