1

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

GEORGE RAMIREZ, 

JOSHUA RUIZ,

Plaintiffs,

v.

THE CITY OF NEWARK, ESSEX 

COUNTY CORRECTIONAL FACILITY, 

AND OFFICERS JOHN DOE 1-10 (names 

being ficticious),

Defendants,

THE CITY OF NEWARK,

Defendant/ Third Party

Plaintiff,

COUNTY OF ESSEX, ESSEX COUNTY 

PROSECUTOR’S OFFICE, RICHARD 

ROE, DAVID ZOE (names being ficticious)

Third Party 

Defendants.

 Civil Action No. 11-CV-1150 

(SDW-MCA) 

 

OPINION 

 January 28, 2014

WIGENTON, District Judge.

Before this Court are two separate Summary Judgment Motions filed by Defendant City of 

Newark and Third Party Defendant County of Essex (“Essex County”). This Court has jurisdiction 

pursuant to 28 U.S.C. §§ 1331, 1343(a)(3), and 1367. Venue is proper pursuant to 28 U.S.C. § 

1391(b). This Court, having considered the parties’ submissions, decides this matter without oral 

argument pursuant to Federal Rule of Civil Procedure 78. For the reasons stated below, this Court 

DENIES Newark’s motion in part and GRANTS Newark’s motion in part, but GRANTS Essex 

County’s motion.
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I. FACTUAL AND PROCEDURAL BACKGROUND

This case is about Plaintiffs George Ramirez (“Ramirez”) and Joshua Ruiz (“Ruiz”) 

(collectively, “Plaintiffs”) seeking redress for their arrest and detention in the City of Newark (the 

“City” or “Newark”) and subsequent incarceration in the Essex County Correctional Facility. On 

June 3, 2009, Plaintiffs were apprehended by officers of the Newark Police Department while they

were driving in a vehicle on Montclair Avenue in Newark, NJ. (See Pls.’ Am. Compl. ¶¶ 10-11.)

Plaintiffs had just left a job center and were on their way to pick up a friend when police cars 

suddenly surrounded Ramirez’s vehicle and officers approached the vehicle with guns drawn. (See 

id. at ¶ 11; Pls.’ Supplemental Statement of Undisputed Material Facts (“SSUF”) ¶ 1.) After 

Plaintiffs exited the vehicle, they were forced to the ground and handcuffed. (See Pls.’ Am. Compl. 

¶ 11.) The victims of the crime that Plaintiffs had allegedly committed were then asked to identify 

Plaintiffs. (Pls.’ Responsive Statement of Undisputed Material Facts “RSUF” ¶ 1.) Victim no. 1

positively identified Plaintiffs as the assailants, although Plaintiffs were face down on the ground

and victim no. 1 was sitting in the back seat of a police car and not wearing his glasses. (Id.) After 

the identification, Plaintiffs were then transported to the Second Precinct at One Lincoln Avenue 

and placed in a cell for several hours without having been read their Miranda rights or informed 

of the charges against them. (Pls.’ SSUF ¶¶ 3-4; Pls.’ Am. Compl. ¶ 11.) Plaintiffs were later 

transported to Newark Central Booking where they were held for five days prior to appearing 

before a judge. (Pls.’ Am. Compl. ¶ 11.) Plaintiffs were then transferred to Essex County 

Correctional Facility. (Pls.’ SSUF ¶ 5; Pls.’ Am. Compl. ¶ 11.) It should be noted that at no time 

were Plaintiffs identified in a lineup or identified in any other manner after the initial identification. 

(Pls.’ RSUF ¶ 1.)
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While incarcerated at Essex County Correctional Facility, Plaintiffs were assaulted by 

unknown inmates. (Pls.’ RSUF ¶ 7.) Ramirez’s head was repeatedly bashed into a toilet by other 

inmates, resulting in Ramirez getting seven stitches to heal a wound on his head. (Pls.’ SSUF ¶ 

7.) Ramirez now has a two to three inch scar on his forehead to which he must apply skin cream 

daily. (Id.) After his release, he was reclusive and did not want to socialize. (Id.) For his part, 

Ruiz was physically and sexually assaulted, resulting in chipped teeth, hot flashes, cold sweats, 

and traumatic flashbacks. (Id. ¶ 6.) He developed kidney stones from the high-sodium food served 

in Essex County Correctional Facility. (Id.) Additionally, the incarceration period ended the 

relationship with his high school sweetheart and mother of his child. (Id.) Plaintiffs were offered 

plea bargains on three separate occasions while they were incarcerated in Essex County 

Correctional Facility, but they denied each offer, proclaiming that they were innocent of the 

charges filed against them. (Pls.’ SSUF ¶ 5.) After being held at the Essex County Correctional 

Facility for thirteen months, the Essex County Prosecutor’s Office dismissed the charges against 

Plaintiffs. (Def.’s Statement of Undisputed Material Facts “SUF” ¶ 6.) 

On March 1, 2011, Plaintiffs filed a Complaint against ten unnamed police officers of the 

Newark Police Department and the City itself (collectively, “Newark”). (Dkt. No. 1.) On April 

29, 2011, Plaintiffs filed an Amended Complaint adding Essex County Correctional Facility as a 

defendant. (Dkt. No. 5.) The Amended Complaint asserts six different causes of action. (See id.) 

First, Plaintiffs allege that Defendant Police Officers, the City, and Essex County Correctional 

Facility, acting willfully and knowingly, deprived Plaintiffs of their rights secured by the Fourth 

and Fourteenth Amendments to the Constitution in violation of 42 U.S.C. § 1983. (Pls.’ Am. 

Compl. ¶¶ 30-33.) Second, Plaintiffs alleged that Defendant Officers willfully deprived Plaintiffs 

of their constitutional rights under Article 1, Section 7 of the New Jersey Constitution, and that the 
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City is vicariously liable for said deprivation. (See id. at ¶¶ 37, 38.) Third, Plaintiffs claimed 

damages for the “willful, unlawful, unwarranted, and intentional assault and battery upon 

Plaintiffs” committed by Defendant Officers. (Id. at ¶ 41.) Fourth, Plaintiffs alleged that the City 

maliciously prosecuted them by bringing criminal charges against them absent probable cause. 

(See id. at ¶ 44.) Last, Plaintiffs claimed that the City negligently hired and retained officers it had 

reason to know posed a danger to society thereby resulting in Plaintiffs’ injuries. (See id. ¶¶ 50-

55.) Plaintiffs and Defendants stipulated to the dismissal of the fifth cause of action claiming 

negligent infliction of emotional distress. (Dkt. No. 13.)

On July 26, 2011, the City filed an answer to Plaintiffs’ complaint. (Dkt. No. 14.) Then, 

on January 13, 2012, the City filed a motion seeking an order permitting leave to file an amended 

answer to Plaintiffs’ amended complaint and a third party complaint. (Dkt. No. 27.) The motion 

was granted and the City subsequently filed an amended answer to Plaintiffs’ complaint and a third 

party complaint against the Essex County Prosecutor’s Office and Essex County seeking 

indemnification from Essex County for Plaintiffs’ injuries. (Dkt. No. 30.) 

On March 26, 2012, Essex County filed a motion to dismiss the City’s third party 

complaint. (Dkt. No. 36.) In an Opinion dated July 14, 2012, this Court granted Essex County’s 

motion inasmuch as the City asserted tort claims against Essex County; however, this Court denied 

Essex County’s motion with respect to the City’s contribution claims for damages relating to 

Plaintiffs’ § 1983 claims. See Ramirez v. City of Newark, Civil Action No. 11-CV-1150 (June 14, 

2012). Thereafter, both Essex County Correctional Facility (dkt. no. 72) and the Essex County 

Prosecutor’s Office were dismissed as defendants, leaving only the City as a defendant and Essex 

County as a third party defendant.
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On June 6, 2013, Essex County filed the instant summary judgment motion seeking to end 

the City’s third party action. (Dkt. No. 78.) The next day, the City filed its own summary judgment 

motion looking to obtain judgment against Plaintiffs. (Dkt. No. 79.)

II. LEGAL STANDARD

Summary judgment shall be granted “if the movant shows that there is no genuine dispute 

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 

56(a). A factual dispute is genuine if a reasonable jury could return a verdict for the nonmovant, 

and it is material if, under the substantive law, it would affect the outcome of the suit. See

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party must show that if 

the evidentiary material of record were reduced to admissible evidence in court, it would be 

insufficient to permit the nonmoving party to carry its burden of proof. See Celotex Corp. v. 

Catrett, 477 U.S. 317, 322-23 (1986).

Once the moving party meets the initial burden, the burden then shifts to the nonmovant 

who must set forth specific facts showing a genuine issue for trial and may not rest upon the mere 

allegations or denials of its pleadings. See Shields v. Zuccarini, 254 F.3d 476, 481 (3d Cir. 2001). 

The court may not weigh the evidence and determine the truth of the matter but rather should 

determine whether there is a genuine issue as to a material fact. See Anderson, 477 U.S. at 249. 

In doing so, the court must construe the facts and inferences in “a light most favorable” to the 

nonmoving party. Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 521 (1991). The 

nonmoving party “must present more than just ‘bare assertions, conclusory allegations or 

suspicions’ to show the existence of a genuine issue.” Podobnik v. United States Postal Serv., 409 

F.3d 584, 594 (3d Cir. 2005) (quoting Celotex Corp., 477 U.S. at 325). If the nonmoving party 

“fail[s] to make a sufficient showing on an essential element of [its] case with respect to which [it] 
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has the burden of proof,” then the moving party is entitled to judgment as a matter of law. Celotex 

Corp., 477 U.S. at 323.

III. DISCUSSION

A. The City of Newark’s Summary Judgment Motion

1. Qualified Immunity

As a threshold matter, the City argues that it is entitled to qualified immunity for the actions 

of its officers. Under the doctrine of qualified immunity, “government officials performing 

discretionary functions, generally are shielded from liability for civil damages insofar as their 

conduct does not violate clearly established statutory or constitutional rights of which a reasonable 

person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (citing Procunier v. 

Navarette, 434 U.S. 555, 565 (1978)). In determining whether qualified immunity applies, the 

first step is to determine whether the officer violated a constitutional right. Pearson v. Callahan, 

555 U.S. 223, 232 (2009). The second step is to assess whether the right was clearly established

when the defendant engaged in the misconduct. Id.

Here, the undisputed evidence shows that the officers arrested Plaintiffs based upon the 

identification of a victim who was not wearing his glasses and sitting in the back seat of a police 

car; Plaintiffs were also face down on the ground at the time of the identification. No further 

identification attempts of Plaintiffs were made. Significantly, a grand jury did not indict Plaintiffs 

for the crimes for which they were arrested. After their arrest, Plaintiffs were also confined to a 

jail cell for five days before they appeared before a judge. On this evidence, a jury could conclude

that Plaintiffs’ rights under the Fourth and Fourteenth Amendments were violated. Moreover, 

these rights were clearly established when Plaintiffs were arrested. Therefore, qualified immunity 

is inapplicable.
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2. Plaintiff’s Section 1983 Claims

Plaintiffs assert § 1983 claims based upon the City’s deprivation of their Fourth and 

Fourteenth Amendment constitutional rights. (Pls.’s Opp. Br. 8-12.) The City argues that 

Plaintiffs cannot prove § 1983 violations because they have failed to obtain discovery on the 

customs and practices of the Newark Police Department. (Def.’s Br. 9.) As such, Newark argues 

that Plaintiffs cannot establish an essential element of their § 1983 claims. Id. Plaintiffs counter 

that the actions of the police officers in failing to read Plaintiffs their Miranda rights, allowing

them access to an attorney, taking their statements, or obtaining evidence to corroborate the 

victims’ account of the events give rise to an inference of a custom of the City’s police officers 

violating constitutional rights. (Pls.’ Opp. Br. 12.)

In relevant part, § 1983 states as follows: 

Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State . . . 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.

42 U.S.C. § 1983. In general, a public entity may not be liable under § 1983 for the actions of its 

employees unless the injury is the result of the “execution of a government’s policy or custom, 

whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent 

official policy.” Monell v. Dep’t of Soc. Servs. of New York, 436 U.S. 658, 694 (1978). “A policy 

is made ‘when a decisionmaker possess[ing] final authority to establish municipal policy with 

respect to the action issues a final proclamation, policy or edict.’” Natale v. Camden Cnty. Corr. 

Facility, 318 F.3d 575, 584 (3d Cir. 2003) (citation omitted). A custom, on the other hand, is an 

act that although has not been officially approved by an appropriate decisionmaker, is “so 

widespread as to have the force of law.” Id. (citation omitted). The Third Circuit has articulated 
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three situations in which a public entity may be liable under § 1983: (1) the alleged injury results 

from a public employee implementing a “generally applicable statement of policy”; (2) although 

there is no stated policy, the policymaker acts in violation of a federal law; and (3) “the 

policymaker has failed to act affirmatively at all, . . . [such] that the policymaker can reasonably 

be said to have been deliberately indifferent to the [obvious] need” to act. Id.

Here, genuine questions of material fact exist as to whether the police officers acted 

reasonably in their apprehension, arrest, and incarceration of Plaintiffs. A jury could conclude that 

the identification of Plaintiffs was unreliable because Plaintiffs were face down when they were 

identified, and the victim was sitting in the back of a police car, not wearing his glasses. 

Additionally, a jury could also determine that it was unreasonable to deprive Plaintiffs of their

liberty by confining them to a jail cell after their arrest for five days before they appeared before a 

judge. A jury could very well find this to be a violation of Plaintiffs’ rights under the Fourth 

Amendment to be free from unreasonable searches and seizures. Thus, genuine issues of material 

fact exist as to whether Newark violated Plaintiffs’ constitutional rights secured by the Fourth and 

Fourteenth Amendments, and Newark’s summary judgment motion is denied inasmuch as it seeks 

judgment on Plaintiffs’ § 1983 claim for violation of their Fourth and Fourteenth Amendment 

rights1.

Furthermore, Plaintiffs assert § 1983 malicious prosecution claims. (Pls.’s Opp. Br. 9-12.) 

“To prove malicious prosecution under section 1983 when the claim is under the Fourth 

Amendment, a plaintiff must show that: (1) the defendant initiated a criminal proceeding; (2) the 

 

1 Plaintiffs’ cause of action in Count II for violation of the New Jersey State Constitution is properly brought pursuant 

to the New Jersey Civil Rights Act (“NJCRA”). N.J.S.A. 10:6-1 et seq. It is well-settled that NJCRA claims are 

interpreted analogously to § 1983. Trafton v. City of Woodbury, 799 F. Supp. 2d 417, 443 (D.N.J. 2011); see also 

Hurdleston v. New Century Financial Servs., Inc., 629 F. Supp. 2d 434, 443 (D.N.J. 2009). As such, Plaintiffs’ claims 

for violation of New Jersey State Constitution are duplicative of their § 1983.
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criminal proceeding ended in his favor; (3) the defendant initiated the proceeding without probable 

cause; (4) the defendant acted maliciously or for a purpose other than bringing the plaintiff to 

justice; and (5) the plaintiff suffered deprivation of liberty consistent with the concept of seizure 

as a consequence of a legal proceeding.” Johnson v. Knorr, 477 F.3d 75, 81-82 (3d Cir. 2007) 

(citing Estate of Smith v. Marasco, 318 F.3d 497, 521 (3d Cir. 2003)).

The undisputed evidence shows that Newark initiated criminal proceedings against 

Plaintiffs, that the criminal proceedings ended in Plaintiffs’ favor, and that Plaintiffs suffered 

deprivation of liberty consistent with the concept of seizure. (See Def. Ex. H, Dismissal Order, 

May 27, 2010.) Newark does not contest that the evidence establishes these three elements. (Defs.’

Br. 15-16.) Newark, however, does argue that probable cause existed to arrest Plaintiffs. (Id.) 

They point to the fact that a grand jury indicted Plaintiffs. (Id.) This argument is unavailing. 

Although a grand jury indictment creates a presumption of probable cause, this presumption is 

rebuttable. See Camiolo v. State Farm Fire & Cas. Co., 334 F.3d 345, 363 (3d Cir. 2003) (quoting 

Rose v. Bartle, 871 F.2d 331, 353 (3d Cir. 1989)). Nevertheless, Plaintiffs were not indicted for 

the charges for which they were arrested, namely, carjacking, kidnapping, robbery, and conspiracy 

with respect to victim no. 2. (See Def. Ex. D, Arrest Report; Def. Ex. H, Dismissal Order, May 

27, 2010.) The fact that the grand jury appears to have indicted them under a 

conspiracy/accomplice liability theory with respect to victim no. 1 does not substantiate the initial 

charges. (See Def. Ex. H, Dismissal Order, May 27, 2010.) In the malicious prosecution context, 

where there is prosecution for more than one charge, probable cause must exist for each charge. 

See Johnson, 477 F.3d at 85 (“[A] cause of action for malicious prosecution may be based on the 

prosecution of more than one charge, and the validity of the prosecution for each charge comes 

into question inasmuch as the plaintiff was subject to prosecution on each individual charge . . .
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.”) Here, a reasonable jury could conclude that the police officers lacked probable cause to arrest 

Plaintiffs. As discussed supra, a jury could determine that the identification of Plaintiffs was 

invalid, and without a proper identification of Plaintiffs, the officers did not possess probable cause 

to arrest them. Moreover, whether or not probable cause exists in a § 1983 action is generally a 

question of fact for the jury. Merkle v. Upper Dubin School Dist., 211 F.3d 782, 788 (3d Cir. 

2000) (citing Montgomery v. De Simone, 159 F.3d 120, 124 (3d Cir. 1998)).

There is also a question of fact regarding whether the officers possessed malice. “Actual 

malice in the context of malicious prosecution is defined as either ill will in the sense of spite, lack 

of belief by the actor himself in the propriety of the prosecution, or its use for an extraneous 

improper purpose.” Morales v. Busbee, 972 F. Supp. 254, 261 (D.N.J. 1997). A reasonable jury 

could determine that the police officers lacked a belief in the propriety of the arrest of Plaintiffs. 

The undisputed evidence shows that the police officers were reluctant to arrest Plaintiffs. One 

officer commented that the circumstances surrounding the underlying criminal incident did not 

make sense. (See Def. Ex. J, Plaintiff Joshua Ruiz Deposition at 35:1-15 (February 11, 2013).) 

The officers also mentioned that they did not have any reason to arrest Plaintiffs. (Id.) 

Nevertheless, Plaintiffs were still arrested and jailed. Thus, a jury could conclude that the officers 

acted with legal malice in arresting Plaintiffs. Therefore, Newark’s summary judgment motion 

with respect to Plaintiffs’ § 1983 malicious prosecution claim is denied.

3. Plaintiffs’ Assault and Battery and 

Negligent Hiring and Retention Claims

Plaintiffs also assert causes of action for assault and battery and negligent hiring and 

retention. Under New Jersey law, police officers are privileged to use as much force as necessary 

to effectuate an arrest; if the officers use more force than necessary in making an arrest, the officers 

may be liable for assault and battery. See Hill v. Algor, 85 F. Supp. 2d 391, 411 (D.N.J. 2000); see 
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also Groman v. Township of Manalapan, 47 F.3d 628, 634 (3d Cir. 1995). Here, there is no 

evidence of record that the police officers used excessive force in arresting Plaintiffs. Plaintiffs 

have not advanced any evidence establishing that the arresting officers used more force than was 

necessary to arrest them and therefore, Newark is entitled to summary judgment on Plaintiffs’ 

assault and battery claim.

Likewise, Plaintiffs’ negligent hiring and retention claim fails as well. New Jersey law 

subjects a municipality to liability for its own negligence in the hiring and retention of a police 

officer. Denis v. City of Newark, 307 N.J. Super. 304, 312-14 (App. Div. 1998). A plaintiff must 

demonstrate that the municipality knew or should have known of the police officer’s dangerous 

propensities to be successful under this theory. Id. Specifically, the plaintiff must first prove that 

the municipality “knew or had reason to know of the particular unfitness, incompetence or 

dangerous attributes of the employee and could reasonably have foreseen that such qualities 

created a risk of harm to other persons.” Di Cosala v. Kay, 91 N.J. 159, 173 (N.J. 1982). Second, 

the plaintiff must prove that, as a result of the municipality hiring the officer, the officer’s 

“incompetence, unfitness or dangerous characteristics” was the proximate cause of his injuries. 

Id. at 174. There is no evidence of record with regard to the officers’ “incompetence, unfitness or 

dangerous characteristics.” As such, Newark is entitled to summary judgment on Plaintiffs’ 

negligent hiring and retention claim.

B. Essex County’s Summary Judgment Motion

Essex County moves for summary judgment on Newark’s contribution claim arguing, inter 

alia, that it is not subject to § 1983 liability. (Third Party Def.’s Br. 8-9.) The gravamen of Essex 

County’s argument is that since this Court has already dismissed any tort claims against it and the 

only remaining claim against it is Newark’s § 1983 contribution claim, Essex County is entitled to 
12

summary judgment on the remaining claim because the undisputed evidence shows that it is not 

liable to Plaintiffs. (See generally, Third Party Def.’s Br.) Newark counters that Plaintiffs 

remained in Essex County’s custody for the vast majority of the time Plaintiffs were incarcerated 

because Plaintiff’s were held in the Essex County Correctional Facility. (Third Party Pl.’s Br. 5-

6.) As such, Newark argues, Essex County is subject to § 1983 liability. (Id.)

As in initial matter, in the Opinion dated June 4, 2012, this Court dismissed any tort claims 

against Essex County but maintained Newark’s third party § 1983 contribution claims, which is 

the only remaining claim against Essex County. See Ramirez v. City of Newark, Civil Action No. 

11-CV-1150 (June 14, 2012). “Typically, a right to contribution is recognized when two or more 

persons are liable to the same plaintiff for the same injury and one of the joint tortfeasors has paid 

more than his fair share of the common liability.” Northwest Airlines v. Transp. Workers Union, 

451 U.S. 77, 87-88 (1981). Contribution recognizes “the view that when two or more persons 

share responsibility for a wrong, it is inequitable to require one to pay the entire cost of reparation.” 

Id. Accordingly, in order for contribution to apply, there must be two or more joint tortfeasors. 

See id. 

An analysis of the Amended Complaint, the parties’ briefs, and the evidence of record as 

developed during discovery reveals that Plaintiffs do not have any direct claims against Essex 

County. Thus, Essex County cannot be adjudged a joint tortfeasor and contribution is inapplicable. 

Indeed, to the extent that the evidence shows that Plaintiffs have claims for inmate-on-inmate 

assault that they experienced while incarcerated in the Essex County Correctional Facility, this 

Court has already dismissed Essex County Correctional Facility as a defendant. (Dkt. No. 72.)

Plaintiffs’ remaining claims in this matter are only against Newark; Plaintiffs did not assert any 

claims against Essex County directly. In any event, this Court has already ruled that pursuant to 
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the New Jersey Tort Claims Act, N.J.S.A. 59:5-2(b)(4), Essex County is immune from Plaintiffs’ 

inmate-on-inmate claims that arose during their incarceration in the Essex County Correctional

Facility. See Ramirez v. City of Newark, Civil Action No. 11-CV-1150 (June 14, 2012). In 

conclusion, because Essex County is not a joint tortfeasor, Newark’s § 1983 contribution claim is 

not cognizable. Therefore, Essex County is entitled to summary judgment on Newark’s § 1983 

contribution claim.

IV. CONCLUSION

For the reasons set forth above, this Court grants Newark’s summary judgment motion

with respect Plaintiffs’ assault and battery and negligent hiring and retention claims; however, 

this Court denies Newark’s summary judgment motion with respect to Plaintiffs’ § 1983 causes 

of action. This Court also grants Essex County’s summary judgment motion.

S/Susan D. Wigenton, U.S.D.J. 

Orig: Clerk 

Cc: Madeline Cox Arleo, U.S.M.J. 

Parties