NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 16-4344

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GARRETT COLLICK; NOAH WILLIAMS; 

NANCY WILLIAMS

v.

WILLIAM PATERSON UNIVERSITY; KATHLEEN M. WALDRON; 

ROBERT FULLEMAN; ELLEN DESIMONE; WILLIAM PATERSON 

UNIVERSITY POLICE DEPARTMENT; JOHN DOES 1-20, 

(names fictitious as presently unknown), employees, representatives,

and/or agents of defendant WILLIAM PATERSON UNIVERSITY POLICE

DEPARTMENT; JANE DOES 1-20, (names fictitious as presently unknown),

employees, representatives, and/or agents of defendant WILLIAM PATERSON 

UNIVERSITY POLICE DEPARTMENT; JOHN SMITH 1-5, (names fictitious as 

presently unknown), employees, representatives, agents, and/or spokespersons of 

defendant WILLIAM PATERSON UNIVERSITY; JANE SMITH 1-5, (names fictitious 

as presently unknown), employees, representatives, agents, and/or spokespersons of 

defendant WILLIAM PATERSON UNIVERSITY,

 Appellants

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On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil Action No. 2-16-cv-00471)

District Judge: Hon. Kevin McNulty

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Argued: October 3, 2017

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Before: SHWARTZ and ROTH, Circuit Judges, and PAPPERT, District Judge.

*

 * Honorable Gerald J. Pappert, United States District Judge for the Eastern District of 

Pennsylvania, sitting by designation.
2

(Opinion filed: October 26, 2017)

Matthew E. Beck, Esq. [ARGUED]

Jeffrey S. Chiesa, Esq.

Ronald L. Israel, Esq.

Chiesa Shahinian & Giantomasi

One Boland Drive

West Orange, NJ 07052

Counsel for Appellants

Michael J. Epstein, Esq. [ARGUED]

The Epstein Law Firm

340 West Passaic Street

Rochelle Park, NJ 07662

Counsel for Appellees

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OPINION**

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ROTH, Circuit Judge.

Jane Doe reported to William Paterson University (“WPU”) Police that her WPU 

classmates, Plaintiffs Garrett Collick and Noah Williams, sexually assaulted her.1

 Based 

on this report, Defendant Detective Sergeant Ellen DeSimone obtained warrants to arrest 

Plaintiffs. A grand jury declined to indict them, but WPU nonetheless expelled them. 

Plaintiffs filed a twenty-one count complaint, alleging violations of Title IX of the 

 ** This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.

1 The complaint refers to the student as Jane Doe to protect her privacy.
3

Education Amendments Act of 1972, the Fourth, Fifth, and Fourteenth Amendments 

under 42 U.S.C. § 1983, the New Jersey Law Against Discrimination, and the New 

Jersey Constitution, and asserting several common law tort and contract causes of action. 

Defendants2 removed the complaint from state to federal court and then moved to dismiss 

the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). 

Defendants argued that DeSimone was entitled to qualified immunity on the 

Fourth Amendment claim and that various Defendants were entitled to qualified 

immunity on the procedural due process claim.

3

 The District Court denied qualified 

immunity with respect to the Fourth Amendment claim, concluding that the facts as 

alleged did not permit the Court to conclude that Defendants did not violate a clearly 

established right. The District Court did not rule on the request for qualified immunity on 

the procedural due process claim.

4

 2 The Defendants are William Paterson University; Kathleen M. Waldron; Robert 

Fulleman; Ellen DeSimone; William Paterson University Police Department; John Does 

1-20, employees, representatives, and/or agents of Defendant William Paterson 

University Police Department; John Smith 1-5, employees, representatives, agents, and/or 

spokespersons of Defendant William Paterson University; Jane Smith 1-5, employees, 

representatives, agents, and/or spokespersons of Defendant William Paterson University. 

Because DeSimone is the only named Defendant from the WPU Police Department

involved in the warrant application process, we refer to her with respect to Defendants’ 

assertion of qualified immunity from Plaintiffs’ Fourth Amendment claims. 

3 Contrary to Defendants’ argument, their briefs in support of the motion to dismiss did 

not adequately apprise the District Court that they sought qualified immunity on the equal 

protection claim.

 4 The District Court had subject matter jurisdiction pursuant to 28 U.S.C. § 1331. 

Because Defendants contend that the District Court committed legal error in the manner 

in which it defied the constitutional right at issue, namely by allegedly failing to identify 

the right with sufficient specificity, we may exercise appellate jurisdiction over this 

interlocutory order pursuant to the collateral order doctrine. George v. Rehiel, 738 F.3d 

562, 570-71 (3d Cir. 2013); see also Mammaro v. N.J. Div. of Child Prot. & Permanency, 
4

We have reviewed the pleadings and heard oral argument. We agree with the 

District Court’s conclusion that it could not grant qualified immunity to DeSimone on the 

Fourth Amendment claim.5 Our Fourth Amendment jurisprudence establishes that 

DeSimone’s entitlement to qualified immunity depends on the objective reasonableness 

of her actions at the time she applied for the arrest warrants.6

 Deciding whether 

DeSimone acted reasonably requires a determination of facts concerning what DeSimone 

knew when she sought the warrant and whether that knowledge would have caused a 

reasonable officer to investigate further. To resolve that issue, we need more facts. 

Accepting as true the complaint’s allegations regarding the purportedly cursory 

investigation conducted by DeSimone, we, like the District Court, are unable to “hold, 

without a factual record, that [her] behavior was reasonable.”7 Discovery may show that 

DeSimone acted reasonably in not taking any further investigative steps after receiving 

the Doe’s report or that DeSimone made no material omissions in the application for the 

arrest warrants;8 or it may not. Because such facts were not available to the District 

 

814 F.3d 164, 168-69 (3d Cir. 2016) (in exercising jurisdiction over denial of motion to 

dismiss on qualified immunity grounds, court noted that plaintiff’s articulation of the 

right at issue was “too broad for purposes of qualified immunity”).

5 Since no named Defendant is alleged to have been involved in only executing the 

arrest warrants, we do not decide whether the officers would be entitled to qualified 

immunity based on their reliance on the warrants.

6 See Wilson v. Russo, 212 F.3d 781, 789 (3d Cir. 2000); Paff v. Kaltenbach, 204 F.3d 

425, 436 (3d Cir. 2000); Showers v. Spangler, 182 F.3d 165, 171-72 (3d Cir. 1999).

United States v. Myers, 308 F.3d 251, 255 (3d Cir. 2002). 

7 Collick v. William Paterson Univ., 2016 WL 6824374, at *15 (D.N.J. November 17, 

2016). 8 See Wilson, 212 F.3d at 786-87 (“[A] plaintiff may succeed in a § 1983 action for 

false arrest made pursuant to a warrant if the plaintiff shows, by a preponderance of the 

evidence: (1) that the police officer ‘knowingly and deliberately, or with a reckless 
5

Court or to us, we will affirm the District Court’s denial of qualified immunity without 

prejudice to Defendants’ reasserting motions for summary judgment at a later time if 

further discovery indicates that the qualified immunity defense bars Plaintiffs’ Fourth 

Amendment claim. 

The parties agree that the District Court did not address Defendants’ request for 

qualified immunity on Plaintiffs’ procedural due process claim. On this claim as well, 

Defendants’ motion is premature. Defendants essentially argue that they would be 

entitled to qualified immunity if the Plaintiffs had not deliberately omitted material facts 

from their complaint about the university disciplinary proceedings that resulted in their 

expulsions.9

 But the burden of pleading qualified immunity as an affirmative defense

“rests with the defendant[s], not the plaintiff[s].”10 Indeed, under the Federal Rules of 

Civil Procedure, “a plaintiff has no pleading burden to anticipate or overcome a qualified 

immunity defense, and a mere absence of detailed factual allegations supporting a 

 

disregard for the truth, made false statements or omissions that create a falsehood in 

applying for a warrant;’ and (2) that ‘such statements or omissions are material, or 

necessary, to the finding of probable cause.’” (quoting Sherwood v. Mulvihill, 113 F.3d 

396, 399 (3d Cir. 1997))). 

9 Appellants’ Br. at 27 (“Plaintiffs’ broad-brush complaints about alleged deficiencies 

in the disciplinary process are contradicted by the facts Plaintiffs affirmatively chose to 

exclude from the Complaint.”); id. (describing other allegations in the complaint about 

the disciplinary proceedings as “unsubstantiated”); Defs.’ Mot. to Dismiss at 24-25 

(same).

10 Thomas v. Indep. Twp., 463 F.3d 285, 293 (3d Cir. 2006) (“[A] plaintiff need not 

plead allegations relevant to an immunity claim in order to set forth ‘a short and plain 

statement of the claim showing that the pleader is entitled to relief.’”); see also Reedy v. 

Evanson, 615 F.3d 197, 223 (3d Cir. 2010) (burden of establishing qualified immunity on 

summary judgment rests with defendants). 
6

plaintiff’s claim for relief under § 1983 does not warrant dismissal of the complaint or 

establish defendants’ immunity.”11

Defendants’ attempts to obtain qualified immunity by rebutting or supplementing 

the allegations in Plaintiffs’ complaint are improper at this stage of the proceedings. We 

will remand to the District Court the request for qualified immunity on Plaintiffs’ 

procedural due process claim.12 This remand is also without prejudice to the Defendants’

reasserting a motion to dismiss the equal protection claim on qualified immunity grounds 

at a later time. 

 11 Thomas, 463 F.3d at 289. 

12 Although in Thomas we held that it is “appropriate” for the District Court to order a 

more definite statement in these circumstances, our rationale for directing such a 

statement was to protect the defendants from the burdens of discovery and “to facilitate 

an early resolution of the qualified immunity issue.” Id. at 301-02. Those rationales for 

requiring a more definite statement do not necessarily militate in favor of requiring one 

here, as we agree with the District Court that qualified immunity as to Plaintiffs’ § 1983 

claims must be resolved after discovery. Accordingly, any outstanding disputes between 

the parties regarding the pleadings are best resolved by the District Court on remand.