Lepping v. McNally

JUSTIN C. LEPPING, Plaintiff, v. DETECTIVE ROBERT MCNALLY, DETECTIVE EDWARD HUGHES, et al., Defendants.

Civil Action No. 18-2118 (FLW) (ZNQ)

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

May 25, 2021

*NOT FOR PUBLICATION*

OPINION

WOLFSON, Chief Judge:

Plaintiff Justin C. Lepping ("Plaintiff") alleges that Defendants Detective Robert McNally ("Det. McNally") and Detective Edward Hughes ("Det. Hughes") (together, "Defendants"), both of the Mercer County Prosecutors Office ("MCPO"), violated his civil rights under the United States, New Jersey, and Pennsylvania Constitutions by falsely arresting him for charges concerning a minor. Before the Court is a motion for summary judgment filed by Defendants pursuant to Federal Rule of Civil Procedure 56. For the reasons set forth below, Defendants' Motion is GRANTED.

I. BACKGROUND

a. Factual Background¹

On December 1, 2016, Plaintiff first contacted O.M., a ten-year-old girl, by sending her a text message that stated "Hey. Justin." (Defs.' SUMF ¶ 1.) That same day, O.M. added Plaintiff to her contacts as "Justin." (Id. ¶ 2.) Later that evening, O.M. Face Timed Plaintiff, who acceptedthe call. (Id. ¶ 3.) During the FaceTime call, O.M. took three screenshots—one which clearly shows Plaintiff's face and two which show him touching his erect penis. (Id. ¶ 4.) In the two screenshots where Plaintiff is touching his erect penis, O.M.'s face is visible in the upper left corner of the screen and is the image that would have been displayed on Plaintiff's phone during the FaceTime call. (Id. ¶ 5.) According to cell phone records, the FaceTime call between O.M. and Plaintiff lasted for two minutes and fifty-four seconds. (Id. ¶ 6.)

On December 7, 2016, O.M.'s mother, Melissa, discovered the screenshots and found other sexually explicit text messages and images on O.M.'s cell phone. (Id. ¶¶ 7-8.) That same day, Melissa went to the Hamilton Township police station and revealed to Det. McNally, who was called in to investigate the allegations, that she had found a picture of a man's penis on O.M.'s phone. (Id. ¶¶ 7, 9-10.) Melissa told authorities that "[t]here was one picture of his face and a second picture of him holding his penis. The one picture . . . where you see the penis is . . . the same couch from the guy's picture." (Id. ¶ 11.) Melissa also disclosed that she had discovered other sexually explicit pictures and videos on O.M.'s phone, including photos of O.M.'s breasts, vagina, and buttocks, and a video where O.M. appeared to be naked and masturbating. (Id. ¶¶ 13-14.) Melissa additionally described an exchange from October 29, 2016, in which a man asked O.M. to send him a video of herself shaking and slapping her buttocks, and touching her vagina. (Id. ¶ 15.) The man from the October 29 exchange asked O.M. to call him "Master" or "Daddy." (Id. ¶ 16.) While Melissa was not sure, she thought the man from the October 29 exchange might be named Vincent. (Id. ¶ 17.)

Later that day, Det. McNally sent O.M.'s phone to Det. Hughes of the MCPO's Cyber Crimes Unit for forensic analysis. (Id. ¶ 20.) That analysis confirmed that O.M. had several saved screen shots, including one of Plaintiff, a white male with dark hair and a full beard, lying on acouch, and two of his erect penis that appear to show the same couch/background. (Id. ¶ 22.) Forensic analysis of the phone also uncovered two sexually explicit Snap Chat conversations between O.M. and a contact listed as "Master"² and several graphic nude photographs and videos of O.M. taken on October 29, 2016. (Id. ¶¶ 23-25.) Also saved was a Snap Chat conversation with "Master" that read: "1: boobs 2: ass 3: pussy 4: fingering your pussy 5: full body naked And What are you doing right now?" (Id. ¶ 23.) Based on the information obtained from O.M.'s cell phone, Det. McNally apparently reached the mistaken conclusion that Plaintiff was Master and, thus, attributed hundreds of sexually explicit text messages discovered on O.M.'s phone to Plaintiff. (Id. ¶ 27.)

On January 4, 2017, Det. McNally met with Assistant Prosecutor Katie Magee to review the evidence obtained from O.M.'s phone. (Id. ¶ 28.) Based on the information available to them, Det. McNally and Magee made the determination to charge Plaintiff with aggravated sexual assault, N.J. Stat. Ann. § 2C:14-2(a)(1); sexual assault, N.J. Stat. Ann. § 2C:14-2(b); child endangerment, N.J. Stat. Ann. § 2C:24-4a(1); and possession of child pornography, N.J. Stat. Ann. § 2C:24-4b(5). (Id. ¶ 29.) Thereafter, using the cell phone number from the FaceTime call, Det. McNally identified and located Plaintiff, who lived in Sellersville, Pennsylvania. (Id. ¶ 30.)

On January 11, 2017, Det. McNally prepared and submitted an affidavit for an arrest warrant. (Id.) In that affidavit, Det. McNally indicated that he had interviewed the ten-year-old victim who confirmed that she had communicated with the perpetrator using her cell phone, specifically with Snap Chat, FaceTime, and text messaging. (Id. ¶ 31.) In addition, Det. McNally stated that the victim had purportedly received photos of the perpetrator's nude penis and that Det. McNally was able to verify this information after conducting a consent search of the victim'sphone. (Id. ¶¶ 32-33.) Det. McNally also referenced other messages in the affidavit, presumably from "Master," in which the perpetrator requests nude images and videos of O.M. performing pornographic acts. (Id. ¶ 34.) A neutral magistrate reviewed the warrant application, found probable cause, and duly executed the application. (Id. ¶ 35.) Also on January 11, 2017, Detective Dave Hanks ("Det. Hanks") of the Bucks County District Attorney's Office, relying on the information contained in the New Jersey affidavit of probable cause and arrest warrant, applied to a Pennsylvania magistrate for an arrest warrant for Plaintiff, which was granted. (Id. ¶ 36.) The Pennsylvania authorities did not conduct an independent investigation into the allegations contained in the affidavit of probable cause. (Pl.'s Resp. to Defs.' SUMF ¶ 36.)

Pennsylvania authorities arrested Plaintiff at his home in Sellersville, Pennsylvania, on January 13, 2017. (Id. ¶ 37.) Plaintiff was thereafter extradited to New Jersey on January 20, 2017. (Id. ¶ 38.) Following Plaintiff's arrest, his criminal defense attorney retained a cell phone forensic expert to examine the evidence relied upon in support of the affidavit of probable cause and data found on Plaintiff's cell phone.³ (Defs. Mot., Ex. J.) The data extracted from Plaintiff's cell phone was not available at the time of his arrest. (Defs.' SUMF ¶ 39.) The expert report opines that based on the data available in O.M. and Plaintiff's phones, Plaintiff could not have been "Master." (Id. ¶ 40.) In that connection, the expert report claims that the only contact between Plaintiff and O.M. was the FaceTime call O.M. initiated on December 1, 2016. (Id. ¶ 41.)Notably, however, the report makes no mention of the screenshots O.M. took during the FaceTime call or the text message purportedly sent to O.M. by Plaintiff. (Id. ¶ 42.) Nevertheless, the MCPO decided to voluntarily dismiss the charges against Plaintiff. (Id. ¶ 43.)

b. Procedural History

Plaintiff filed suit against Defendants, the MCPO, and other individuals on February 14, 2018. (ECF No. 1.) In the initial complaint, Plaintiff alleged that the MCPO had wrongfully moved to detain him without bail pending trial and asserted claims of false arrest, Monell liability, conspiracy under 42 U.S.C. §§ 1981, 1983, 1985, 1986, and 1988, negligence, and negligent hiring, training, and supervision. (See id.) On October 23, 2018, I granted Defendants' motion to dismiss the Complaint for failure to state a claim under Rule 12(b)(6). (ECF No. 29.) As relevant here, I dismissed Plaintiff's false arrest claim because the Complaint did not allege that Defendants were personally involved in his actual arrest. (Id. at 17-18.) Moreover, I found that the Complaint did not plausibly allege that the affidavit of probable cause contained any knowing, deliberate, or reckless statements or omissions. (Id.) Plaintiff thereafter filed an Amended Complaint that asserts a single claim for false arrest in violation of the United States, Pennsylvania, and New Jersey Constitutions against Defendants.

II. STANDARD OF REVIEW

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). A factual dispute is genuine only if there is "a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party," and it is material only if it has the ability to "affect the outcome of the suit under governing law." Kaucher v. County ofBucks, 455 F.3d 418, 423 (3d Cir. 2006); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. Anderson, 477 U.S. at 248. "In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the non-moving party's evidence 'is to be believed and all justifiable inferences are to be drawn in his favor.'" Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at 255); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, (1986); Curley v. Klem, 298 F.3d 271, 276-77 (3d Cir. 2002).

The party moving for summary judgment has the initial burden of showing the basis for its motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "If the moving party will bear the burden of persuasion at trial, that party must support its motion with credible evidence . . that would entitle it to a directed verdict if not controverted at...