NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________

No. 16

- 4344

_____________ 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 fictitiou s 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 WI LLIAM PATERSON UNIVERSITY; JANE SMITH 1

- 5, (names fi ctitious as presently unknown), employees, representatives, agents, and/or spokespersons of defendant WILLIAM PATERSON UNIVERSITY,
Appellants

______________ 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

______________ Argued: October 3, 2017

______________ Before: SHWARTZ and ROTH, Circuit Ju dges , and PAPPERT, District Judge

. *

* Honorable Gerald J. Pappert, United States District Judge for the Eastern District of Pennsylvania, sitting by designation.2 ( Opinion f iled : 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

______________
OPINION * *

______________

ROTH
, Circuit Judge

. Jane Doe reported to William Paterson Univer sity (“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 t o I.O.P. 5.7 does not constitute binding precedent.

1 The c omplaint 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 Agains t Discrimination, and the New
Jersey Constitution, and asserting several common law tort and contract causes of action.

Defendants 2 removed the complaint from state to federal court and then moved to dismiss
the complaint pursuant to Federal Rule of C ivil 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 proce ss claim

. 3 The District Court denied quali fied
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. T he District Court did not rule on the request for qualified i mmunity on
the procedural due process claim

. 4

2 The Defendants are William Paterson University; Kathleen M. Waldron; Robert Fulleman; Ellen DeSimone; William Paterson Universit y Police Department; John Does 1

- 20, employees, rep resentatives, and/or agents of D efendant William Paterson University Police Department; John Smith 1

- 5, employees, representatives, agents, and/or spokesperson s of D efendant William Paterson University; Ja ne Smith 1

- 5, employees, representatives, a gents, and/or spokespersons of D efendant 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 C o urt committed legal error in the manner in which it defied the constitutional righ t at issue, namely by allegedly failing to identify the right with sufficient specificity, we may exercise appellate jurisdiction o ver this interlocutory order pursuant to the collateral order doctrine. George v. Rehiel , 738 F.3d 562, 570

- 71 (3d Cir. 2013 ) ; see also Mamm a ro 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 Amend ment 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 o f 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 inv estigative 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 wa s “ 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 t he 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. W illiam 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 evide nce: (1) that the police officer ‘ knowingly and deliberately, or with a reckless5 Court or to us, we will affirm the District Cou rt’s denial of qualified immunity without
prejudice to D efendants’ 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 immun ity 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 t he 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

nec essary, 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 fa cts 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 (3 d Cir. 2010) (burden of establishing qualified immunity on summary judgment rests with defendants).6 plaint iff’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 t his stage of the proceedings

. We

will remand to the District Court th e request for qualified immunity on Plaintiffs’
procedural due process claim. 12 This remand is also wit hout prejudice to the Defendants ’
reasserting a motion to dismiss the equal protect ion 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 circum stances , 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 state ment 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 regard ing the pleadings are best resolved by the District Court on remand.