DORVAL v. STATE OF NEW JERSEY, TREASURY DEPARTMENT

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UNITED STATES DISTRICT COURT                          
                  FOR THE DISTRICT OF NEW JERSEY                         

JEAN L DORVAL,                                                            
    Plaintiff,                                                           
    v.                                                                   
                                   Civ. No. 20-05997 (KM) (CLW)          
STATE OF NEW JERSEY, TREASURY                                             
DEPARTMENT, THOMAS KOCZUR, in               OPINION                       
his individual and official capacity,                                     
JOHN FURDA, in his individual and                                         
official capacity, JOHN DOES 1–5,                                         
and JOHN DOES 6–10,                                                       
    Defendants.                                                          

KEVIN MCNULTY, U.S.D.J.:                                                  
    Jean Dorval served 24 years in prison before he was released after post-
conviction review. Now he sues, among others, a detective involved in the 
investigation, John Furda, for constitutional violations. Detective Furda moves 
to dismiss. (DE 3.)1 For the following reasons, the motion is GRANTED IN  
PART and DENIED IN PART. In essence, I hold that I cannot grant qualified 
immunity based on the face of the Complaint. The issue of whether it should 
have been apparent to the officer that probable cause was lacking (whether 
because of precedent on point, or the clear implication of then-existing law) will 
require some factual development.                                         

1    Certain citations to the record are abbreviated as follows:          
    DE = docket entry                                                    
    Compl. = Complaint (DE 1)                                            
    Mot. = Brief in Support of Defendant Furda’s Motion to Dismiss (DE 3-1) 
    Opp. = Mr. Dorval’s Brief in Opposition to Defendant’s Motion to Dismiss (DE 9) 
    Reply = Reply Brief in Support of Defendant Furda’s Motion to Dismiss (DE 12) 
I.  BACKGROUND                                                           
 A. Facts                                                                
         The 1994 Crime                                                  
    At 3 A.M. on March 20, 1994, police were called to a crime scene in  
Elizabeth, New Jersey. (Compl. at 45.)2 Witnesses told officers that seven 
individuals in two cars had driven up, shot Richard Jerry Myers (who died from 
the gunshot) and Karon Henderson, and fled. (Id. at 24.) Some witnesses were 
taken to the police station where Detective Furda and Officer Thomas Koczur 
took their statements. (Id. at 45.) Witnesses reported that one of the cars was a 
black Acura Legend and that the perpetrators were Haitian. (Id. at 24.)   
    After obtaining these statements, Detective Furda and Officer Koczur 
interviewed, for unspecified reasons, an inmate, L.M., at a county jail “under 
intimidating and coercive circumstances.” (Id. at 46.) L.M. said that he knew an 
individual later confirmed to be Mr. Dorval had a black Acura Legend and was 
friends with individuals nicknamed “Rene” and “Mac.” (Id.) The officers learned 
that the real name of “Rene” was Duquene Pierre. (Id.)                    
    After the L.M. interview, one witness was shown a photo array and    
identified Macgoohan Romelus as a participant. (Id.) The witness stated that 
Romelus had exited from one car, approached her, put a gun to her head, and 
threatened her life. (Id. at 48.) Romelus was arrested but denied any     
involvement. (Id. at 47.)                                                 
    Three weeks later, another inmate, R.S.H., contacted prosecutors to  
speak about the crime. (Id.) Detective Furda and Officer Koczur met with R.S.H. 
and “wrongfully and improperly discussed details of the crimes” with him  
“knowing that he would convey” them to Romelus. (Id.) The officers also told 
R.S.H. that since Romelus now had the right to counsel, they could not speak 
with Romelus unless he initiated contact. (Id.) So Detective Furda provided his 
telephone number to R.S.H. to give to Romelus. (Id.)                      

2    Because the Complaint renumbers its paragraphs for each section or count, I 
cite to the relevant page number.                                         
    The next day, Romelus called the officers, and they met with him. (Id. at 
48.) Although the officers knew that Romelus was a “main actor,” they provided 
information to him regarding the crime and suggested Mr. Dorval’s and Pierre’s 
names as participants. (Id.) As a result, and due to “coercion” and “threats,” 
Romelus gave a statement implicating Mr. Dorval and Pierre. (Id.) This    
statement contradicted Romelus’s previous statement that he was not involved 
with the crime. (Id. at 49.) Likewise, Romelus gave a third and final statement a 
month later again denying being at the scene. (Id.)                       
    Based on Romelus’s statements, the officers obtained a warrant for Mr. 
Dorval’s arrest. (Id.; see also id. at 7.) Upon his arrest, Mr. Dorval told police 
that he and Pierre were on a road trip to Florida the night of the crime. (Id. at 
15.) Indeed, they had evidence to corroborate this alibi, some of which police 
discovered. (Id. at 13–16.)                                               
         Legal Proceedings                                               
    Despite the alibi, prosecutors pursued the case. At trial, they mostly 
relied on additional witnesses they procured to place Mr. Dorval and Pierre at 
the scene. (Id. at 8, 10.) Mr. Dorval and Pierre were convicted and sentenced to 
decades of imprisonment. (Id. at 17.)                                     
    While imprisoned, Mr. Dorval and Pierre sought appellate and then post-
conviction review. (Id. at 17.) Mr. Dorval eventually abandoned his efforts, but 
Pierre persisted. (Id.) The New Jersey Supreme Court reversed Pierre’s    
convictions and ordered a new trial. (Id. at 18; see State v. Pierre,
127 A.3d 
1260
(2015).) At the retrial, witnesses admitted that their identifications had 
been incorrect. (Id.) Without these witnesses, the court granted a motion for 
acquittal. (Id. at 19.)                                                   
    Despite Pierre’s acquittal, prosecutors refused to reopen Mr. Dorval’s 
case. (Id.) So Mr. Dorval again applied for post-conviction relief, and eventually 
the indictment was dismissed. (Id. at 19–20). He was released in 2020. (Id. at 
20.)                                                                      
 B. Procedural History                                                   
    Mr. Dorval brought an action in New Jersey Superior Court to recover 
damages for his wrongful prosecution and imprisonment, which was removed  
to this Court. (DE 1.) As relevant here, the Complaint asserts against Detective 
Furda a claim under the New Jersey Civil Rights Act (“NJCRA”),
N.J. Stat. Ann. 
§ 10:6-2
, for violations of the New Jersey Constitution (Count 5); a
42 U.S.C. 
§ 1983
claim for violations of the U.S. Constitution (Count 6); a common-law 
malicious prosecution claim (Count 7); and a
42 U.S.C. § 1985
(3) conspiracy 
claim (also asserted against Officer Koczur). (Compl. at 45–59.) The NJCRA and 
§ 1983 claims are asserted against Detective Furda in both his individual and 
official capacities. (Id.) The Complaint seeks only damages. (See id.) Detective 
Furda moves to dismiss the claims against him. (Mot.)                     
II.  STANDARD OF REVIEW                                                  
    Federal Rule of Civil Procedure 8(a) does not require that a pleading 
contain detailed factual allegations. Still, the pleading must contain “more than 
labels and conclusions.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555
(2007). 
The allegations must raise a claimant’s right to relief above a speculative level, 
so that a claim is “plausible on its face.” Twombly,
550 U.S. at 570
. That 
standard is met “when the plaintiff pleads factual content that allows the court 
to draw the reasonable inference that the defendant is liable for the misconduct 
alleged.” Ashcroft v. Iqbal,
556 U.S. 662, 678
(2009).                    
    Rule 12(b)(6) provides for the dismissal of a complaint if it fails to state a 
claim upon which relief can be granted. The moving party bears the burden of 
showing that no claim has been stated. See Animal Sci. Prods., Inc. v. China 
Minmetals Corp.,
654 F.3d 462
, 469 n.9 (3d Cir. 2011). The facts in the   
complaint are accepted as true, and all reasonable inferences are drawn in 
favor of the plaintiff. N.J. Carpenters & Trs. Thereof v. Tishman Constr. Corp. of 
N.J.,
760 F.3d 297, 302
(3d Cir. 2014).                                   
III.  DISCUSSION                                                          
    Detective Furda moves to dismiss (A) the individual-capacity § 1983 and 
NJCRA claims because he enjoys qualified immunity (I disagree), (B) the   
official-capacity § 1983 and NJCRA claims because official-capacity suits for 
damages are not allowed (I agree), (C) the malicious prosecution claim because 
malice is not alleged and he has immunity under state law (I disagree), and 
(D) the § 1985 claim because no discrimination is alleged (I agree).      
 A. Individual-Capacity Claims                                           
    Detective Furda asserts qualified immunity for the individual-capacity 
§ 1983 and NJCRA claims against him. (Mot. at 10.) Qualified immunity     
shields officials from liability unless they violated clearly established rights. 
Williams v. City of York,
967 F.3d 252, 258
(3d Cir. 2020) (§ 1983); Morillo v. 
Torres,
117 A.3d 1206, 1213
(N.J. 2015) (NJCRA). Thus, a motion to dismiss 
may be granted where (1) no constitutional violation is alleged, or (2) the right 
was not clearly established. See George v. Rehiel,
738 F.3d 562, 572
(3d Cir. 
2013).                                                                    
         Constitutional Violation                                        
    First, I determine whether Mr. Dorval has alleged a constitutional   
violation. The Complaint alleges that Detective Furda violated Mr. Dorval’s 
rights under the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to 
the U.S. Constitution (Compl. at 51–52) and his rights under the New Jersey 
Constitution (id. at 49). In response, Detective Furda does not make specific 
arguments about these rights. Instead, he focuses on the second prong of  
qualified immunity. (See infra; Mot. at 10–14.) Mr. Dorval focuses on the issue 
of whether the Fourth Amendment was violated when Detective Furda’s       
investigation led to an arrest and prosecution without probable cause. (Opp. at 
9.) I will view qualified immunity through the lens of such a Fourth      
Amendment claim.3                                                         

3    Mr. Dorval does not frame his claim based on a specific common law tort. 
Although Fourth Amendment claims are often brought through the vehicle of tort law, 
    “[T]he Fourth Amendment forbids a detention without probable cause.” 
Halsey v. Pfeiffer,
750 F.3d 273, 291
(3d Cir. 2014). Investigators are liable for 
a Fourth Amendment violation if they “influenced or participated in the   
decision to institute criminal proceedings” lacking in probable cause.
Id. at 
297
. The Complaint alleges that Mr. Dorval’s arrest was based on the evidence 
Detective Furda and Officer Koczur developed (e.g., Compl. at 49), so Detective 
Furda is potentially liable.4                                             
    So the issue becomes whether there was probable cause to arrest Mr.  
Dorval. Probable cause means “a fair probability that the person committed the 
crime.” Harvard v. Cesnalis,
973 F.3d 190, 199
(3d Cir. 2020) (quotation marks 
and citation omitted). I look at “the facts and circumstances” Detective Furda 
knew at the time and ask whether a “reasonable person” would believe that Mr. 
Dorval committed the murders.
Id. at 200
. Probable cause must be based on 

it is permissible—and often simpler—to analyze such claims as “plain-vanilla Fourth 
Amendment claim[s],” as I will do here. Tlapanco v. Elges,
969 F.3d 638, 658
(6th Cir. 
2020) (Thapur, J., concurring) (citation omitted); Pagán-González v. Moreno,
919 F.3d 
582, 608
(1st Cir. 2019) (Barron, J., concurring) (same); see Manuel v. City of Joliet,
137 S. Ct. 911, 921
(2017) (“Common-law principles are meant to guide rather than to 
control the definition of § 1983 claims . . . .”).                        
4    When an arrest is made pursuant to a warrant, the analysis differs. The 
plaintiff must show that (1) officers knowingly, deliberately, or recklessly made false 
statements or omissions when applying for the warrant, and (2) such statements or 
omissions were necessary to the finding of probable cause. Goodwin v. Conway,
836 
F.3d 321, 327
(3d Cir. 2016). The second step requires reconstructing the warrant 
without the misrepresentations and determining if probable cause still existed.
Id.
The Complaint alleges in passing that Mr. Dorval was arrested pursuant to an 
arrest warrant supported mostly by Romelus’s statements. (Compl. at 7, 28.) But there 
are no allegations about what precisely was in the warrant application, and no party 
has provided the application. Further, the parties do not argue the probable cause 
issue based on the invalid-warrant standard.                              
    The Third Circuit has explained that the test cannot be applied without the 
warrant application itself. Noviho v. Lancaster Cnty.,
683 F. App’x 160
, 164–65 (3d Cir. 
2017). Given Noviho, and the failure of both parties to present the warrant issue, I will 
analyze probable cause based on the usual test. I note later, however, that the 
warrant-based analysis would be unlikely to produce a different result. See p.11 n.9, 
infra.                                                                    
“reasonably trustworthy information,” Zimmerman v. Corbett,
873 F.3d 414, 
418
(3d Cir. 2017) (quoting Beck v. Ohio,
379 U.S. 89, 91
(1964)), and consider 
exculpatory facts, Harvard,
973 F.3d at 200
. I discuss the facts possessed by 
Detective Furda in turn and then assess their cumulative effect.5         
         a.  Romelus’s Statements                                        
    The driving force behind the probable cause determination was        
Romelus’s accusation. (E.g., Compl. at 49.) There are three reasons that this 
accusation did not meet the standard of “reasonably trustworthy information.” 
Zimmerman,
873 F.3d at 418
.                                               
    First, and most pertinently, the Complaint alleges that Romelus’s    
accusation was coerced and false. (Compl. at 48.) The Third Circuit and other 
courts have held that coerced statements cannot be used to support probable 
cause. Halsey,
750 F.3d at 301
; Gilliam v. Sealey,
932 F.3d 216, 234
(4th Cir. 
2019); Wilkins v. DeReyes,
528 F.3d 790, 806
(10th Cir. 2008); Sutkiewicz v. 
Monroe Cnty. Sheriff,
110 F.3d 352
, 358–60 (6th Cir. 1997), cited favorably by 
Geness v. Cox,
902 F.3d 344, 358
(3d Cir. 2018). Any officer, in 1994 or now, 
would be clearly aware that inculpatory testimony cannot constitutionally be 
planted in the witness’s mind or, worse, coerced. That is the allegation here. 
    Although Detective Furda argues that the Complaint’s allegation of   
coercion is too conclusory (Mot. at 13), he overlooks key factual allegations 
which I must take as true on a motion to dismiss. Namely, the Complaint   
alleges that Detective Furda (1) “provided information to Mr. Romelus regarding 
the incident,” (2) “suggest[ed]” Mr. Dorval’s name, and (3) circumvented  
Romelus’s right to have counsel present during the interview. (Compl. at 47–
48.) Those statements are sufficient allegations that Detective Furda sought to 
invite, elicit, or even coerce a fabricated statement from Romelus.6      

5    I will not consider the alibi evidence because it came into investigators’ 
possession post-arrest. (Compl. at 15.)                                   
6    Even if these allegations fall short of showing coercion, they at least indicate 
that Romelus did not genuinely and organically accuse Mr. Dorval. In assessing 
whether an informant’s or a witness’s identification supported probable cause, I 
    Second, coercion aside, any accusation from Romelus was dubious      
because he had a clear motive to inculpate Mr. Dorval. This is common sense. 
See Andrews v. Scuilli,
853 F.3d 690, 704
(3d Cir. 2015) (“[P]robable cause is 
driven by common sense . . . .”). Detective Furda responds that the case law in 
this area largely concerns codefendants who confess to a crime and inculpate 
another in that confession.7 Romelus, he says, was not an accomplice. (Reply 
at 4.) But Romelus was a suspect and an arrestee, implicated by virtue of a 
witness’s testimony that he had emerged from one of the cars and threatened a 
person with a gun. He had a strong motive to wrongly accuse another to divert 
the investigation from himself, and thereafter to avoid the consequences of 
changing his story.                                                       
    Third, Romelus’s statements contradicted themselves and statements by 
witnesses. Andrews,
853 F.3d at 702
(glaring differences in witness testimony 
can negate probable cause). Romelus gave three statements. In two, he denied 

consider their reliability and basis of knowledge. Illinois v. Gates,
462 U.S. 213, 233
(1983) (informant’s “veracity,” “reliability,” and “basis of knowledge” are “relevant 
considerations”); Wilson v. Russo,
212 F.3d 781, 790
(3d Cir. 2000) (evidence that 
witness is unreliable undermines probable cause). So, at a minimum, because 
Detective Furda elicited the statements, Romelus’s veracity and basis of knowledge are 
undermined.                                                               
7    I do not regard as pertinent, however, the legal issue of, e.g., admission of a 
codefendant’s confession in evidence, see Bruton v. United States,
391 U.S. 123
, 135–
36 (1968), or the question of whether the officers’ indirect approach to Romelus 
violated Romelus’s Sixth Amendment right to counsel, see Michigan v. Jackson,
475 
U.S. 625, 632
(1986), overruled on other grounds by Montejo v. Louisiana,
556 U.S. 778
(2009).                                                                   
    Still, the Supreme Court has cited in a variety of contexts the commonsense 
proposition that statements by suspects or accused accomplices that inculpate 
another are inherently unreliable. See, e.g., Williamson v. United States,
512 U.S. 594
, 
607–08 (1994) (Ginsburg, J., concurring in part and concurring in the judgment) (“A 
person arrested in incriminating circumstances has a strong incentive to shift blame 
or downplay his own role in comparison with that of others . . . .”); Lee v. Illinois,
476 
U.S. 530, 542
(1986) (statements by an accomplice that incriminate another are 
“presumptively unreliable” due to the obvious motive to “shift or spread blame, curry 
favor, avenge himself, or divert attention to another”).                  
being at the scene (Compl. at 49), but in another, he said he was a bystander 
(id. at 48). Those accounts are irreconcilable, further calling into question his 
basis of knowledge. What is more, either account still contradicted one   
witness’s statement that Romelus was a participant who threatened that    
witness. (Id.) See Dempsey v. Bucknell Univ.,
834 F.3d 457
, 477–78 (3d Cir. 
2016) (discussing reliability factors of victim identifications). All said, the 
internal and external inconsistencies with Romelus’s statements rendered  
them unreliable.                                                          
    The allegation that Detective Furda elicited or coerced false testimony, 
corroborated by indications of unreliability, suffice to support a claim of lack of 
probable cause.                                                           
         b.  Descriptions of the Perpetrators                            
    Setting aside Romelus’s statements, Detective Furda learned from     
witnesses that the perpetrator was Haitian and drove a black Acura Legend. 
Mr. Dorval fit that description. (Compl. at 24, 46.)                      
    A match with the perpetrator’s race/ethnicity and car, without more, is 
not sufficient to support probable cause. Compare United States v. Kithcart,
134 
F.3d 529
, 531–32 (3d Cir. 1998) (Alito, J.) (no probable cause when officer 
pulled over a black sports car with two Black men inside after a radio informed 
her that two Black males driving a black sports car had committed a robbery), 
with United States v. Harple,
202 F.3d 194
, 197–98 (3d Cir. 1999) (Alito, J.) 
(probable cause existed when car and race matched description of arsonists 
and, in contrast to Kithcart, the perpetrators were stopped just blocks away 
from the fire). Even in Kithcart, the defendants’ matching car was found  
somewhere near the crime scene in the time frame of the crime (though not 
near enough to support probable cause).
134 F.3d at 132
. There was no such 
proximity here; the evidence established only that Mr. Dorval owned a black 
Acura Legend.8 Thus, the additional information in Detective Furda’s      
possession did not itself rise to the level of probable cause.            
         c.  Totality                                                    
    The question, then, is whether the totality of the information—the   
description of the perpetrator’s race/ethnicity and car, plus Romelus’s   
statements—furnished probable cause. District of Columbia v. Wesby,
138 S. 
Ct. 577, 588
(2018) (instructing that “the whole is often greater than the sum 
of its parts” when determining probable cause).                           
    A reasonable officer could not conclude that a person committed a    
murder based on that very officer’s elicitation of the statement from an  
untrustworthy accuser. Nor does the evidence get over the probable cause  
threshold because the accused and the perpetrator were of the same        
ethnicity/race and drove the same model car. The first piece of information is 
too incredible, and the second too vague. Although they may reinforce each 
other to some limited extent, see Wesby,
138 S. Ct. at 588
, Detective Furda has 
pointed to no precedent—and I could locate none—endorsing such a set of facts 
as a sufficient basis for probable cause. Cf. Smith v. Munday,
848 F.3d 248
, 
253–54 (4th Cir. 2017) (no probable cause when informant told police that 
“‘April Smith,’ a skinny, black woman, sold him crack cocaine,” and officers 
found, through a database, someone with that description). Further, although 
multiple witnesses claimed they saw the murders, they allegedly did not name 
Mr. Dorval. (Compl. at 46.) There were not enough credible facts to support a 
finding of probable cause to believe that Mr. Dorval participated in this murder 
and assault.                                                              
    I stress, however, that this conclusion only flows from accepting the 
Complaint’s allegations as true, as I must for present purposes. Probable cause 
here will turn on factual issues, e.g., whether Romelus was coerced, whether 
an Acura Legend was a commonly owned car in 1994 in Elizabeth, and so on. 

8    Again, I set aside the later-obtained evidence that Mr. Dorval, Pierre, and 
indeed the black Acura, were on the way to Florida at the time.           
But for now, the immunity issue is presented in the context of a motion to 
dismiss, and my task is only to determine whether the Complaint’s allegations 
“are sufficient as a matter of law to avoid an immunity defense.” Wiley v. City of 
Newark, Civ. No. 16-2530,
2017 WL 4678202
, at *3 (D.N.J. Oct. 16, 2017)   
(quoting Scnrob v. Catterson,
967 F.2d 929, 938
(3d Cir. 1992)). Factual  
development will be necessary before the question of qualified immunity can be 
fully resolved.
Id.
As I stated in a recent case, “I cannot rule that [Detective 
Furda] had probable cause for the arrest,” or more accurately, “I cannot  
dismiss a claim that [he] did not have probable cause.” Saint-Jean v. County of 
Bergen, Civ. No. 19-10680,
2020 WL 7693998
, at *9 (D.N.J. Dec. 28, 2020). 9 
         Clearly Established                                             
    Having concluded that the Complaint alleges a constitutional violation, I 
must determine whether “it would have been clear to a reasonable person that 
[his] conduct was unlawful.” Porter v. Pa. Dep’t of Corrs.,
974 F.3d 431, 449
(3d 
Cir. 2020) (citation omitted). To do so, I analyze whether the case law in 1994 
(when Mr. Dorval was arrested) put Detective Furda on “fair notice” that he 
lacked probable cause. Starnes v. Butler Cnty. Ct. of Common Pleas,
971 F.3d 
416, 426
(3d Cir. 2020) (citation omitted). The case law must have placed that 
question “beyond debate.”
Id.
(citation omitted).                         
    To place the question beyond debate, the case law must be sufficiently 
specific. Wesby,
138 S. Ct. at 590
. That is, there must either be “a case where 
an officer acting under similar circumstances . . . was held to have violated the 
Fourth Amendment” or cases which, while not “address[ing] similar         
circumstances,” that made it “sufficiently clear” that probable cause would be 
lacking.
Id.
(citations omitted). As for the latter alternative, “a general 
constitutional rule already identified in the decisional law may apply with 

9    There is no indication that, if the invalid-warrant test were used, supra n.4, the 
result would be any different. The parties do not state that the officers possessed, or 
that the warrant application contained, any additional evidence. The Complaint 
confirms that the application was primarily based on the statements from Romelus. 
(Compl. at 7, 28.) See Goodwin,
836 F.3d at 327
.                          
obvious clarity to the specific conduct in question, even though the very action 
in question has [not] previously been held unlawful.” Hope v. Pelzer,
536 U.S. 
730, 741
(2002); accord Taylor v. Riojas,
141 S. Ct. 52
, 53–54 (2020) (per 
curiam) (no qualified immunity for corrections officers who forced an inmate to 
sleep in a sewage covered cell because, while there were no sewage cases, “no 
reasonable correctional officer could have concluded that . . . it was    
constitutionally permissible to house [an inmate] in such deplorably unsanitary 
conditions”); Williams v. Bitner,
455 F.3d 186, 191
(3d Cir. 2006).       
    At the outset, the Third Circuit has held that the general right to be free 
from arrest or prosecution absent probable cause was clearly established by 
1994. Orsatti v. N.J. State Police,
71 F.3d 480
, 483 (3d Cir. 1995) (arrest); Gallo 
v. City of Philadelphia,
161 F.3d 217
, 220 n.4 (3d Cir. 1998) (prosecution). 
Moreover, the Third Circuit seems to have held that that right is sufficiently 
specific for qualified immunity purposes. Andrews,
853 F.3d at 705
.       
    There is some tension, however, between Andrews and the Supreme      
Court’s recent admonitions that “[g]iven [probable cause’s] imprecise nature,” a 
prior case with similar circumstances is generally, if not always, necessary to 
put an officer on notice. Wesby,
138 S. Ct. at 590
; see also Jones v. Clark 
County,
959 F.3d 748, 774
(6th Cir. 2020) (Murphy, J., concurring in part and 
dissenting in part) (arguing that the right to be free from detention without 
probable cause is too general under Wesby). I therefore examine the issue 
further.                                                                  
    Three specific principles put Detective Furda on notice that prosecuting 
Mr. Dorval would not satisfy the probable cause standard:                 
    First, it was clearly established in 1994 that coerced or fabricated 
statements could not support probable cause. The Halsey court explained that 
“[i]nvestigators . . . should have known [before 1985] that they would be 
violating a defendant’s constitutional rights if they knowingly used fabricated 
evidence to bring about his prosecution.”
750 F.3d at 296
. Likewise, in 1992, 
the Third Circuit explained that “proceed[ing] on manufactured or coerced 
evidence” was unconstitutional. Kulwicki v. Dawson,
969 F.2d 1454, 1468
(3d 
Cir. 1992). As explained earlier, the Complaint alleges that Romelus’s    
statements were coerced and possibly suggested by Detective Furda. It was 
clearly established that Detective Furda could not rely on such statements. 
    Second, though less important, factor 1 is reinforced by the general, 
clearly established principle that incriminating statements by an accomplice or 
suspect are not reliable. The Supreme Court had affirmed that principle since 
1965. Douglas v. Alabama,
380 U.S. 415, 419
(1965); Bruton v. United States,
391 U.S. 123, 136
(1968); Lee v. Illinois,
476 U.S. 530, 541
(1986).10 Based on 
such precedent, Detective Furda—even if he were not personally responsible for 
the unreliability of Romelus’s statements, as alleged—should have known that 
they merited the most cautious scrutiny and would require corroboration.11  
    Third, it was clearly established that probable cause could not be based 
on generalities such as race/ethnicity and the ownership of a particular make 
and model of car. In 1977, the Third Circuit explained that a few generic 
descriptors are insufficient for probable cause. United States ex rel. Wright v. 
Cuyler,
563 F.2d 627, 630
(3d Cir. 1977). The court explained that, on one end 
of the spectrum, race and age would not be enough; on the other, however, 
“race, height, weight, color of hair, distinctive type of hair styling, precise color 
of clothing, and [the fact that] the suspects were apprehended near the scene of 
the crime one night after it had occurred” would suffice.
Id.
The court also 

10   True, these cases did not arise in the probable-cause context. But the Third 
Circuit has explained that a principle need not arise in the same legal context as the 
present case to be considered clearly established. See Halsey,
750 F.3d at 295
. These 
are bedrock principles and would be relevant to the determination that the officer 
acted unreasonably even in the absence of on-point precedent.             
11     Detective Furda urges that Romelus be considered an informant, rather than an 
accomplice, and hence more reliable. (Reply at 3–4.) That argument presents an issue 
of fact; in Mr. Dorval’s version, Romelus was accused in connection with this offense, 
but was downgraded from accomplice to informant as a result of his shifting the blame 
to Mr. Dorval. In any event, a statement from an unreliable, uncorroborated informant 
without an adequate basis for his knowledge could not support probable cause. See 
Gates,
462 U.S. at 233
(decided in 1983).                                 
noted that finding a person who matched the description in close geographic 
and temporal proximity to the crime would be key.
Id.
Ten years later, the court 
in Edwards v. City of Philadelphia affirmed that descriptions mainly based on 
race were insufficient.
860 F.2d 568
, 571 n.2 (3d Cir. 1988). Edwards is  
further notable because Kithcart (the most on-point case, albeit decided four 
years too late for Mr. Dorval) relied on Edwards to hold that “it is clear” that 
relying on race and a car description was insufficient. 134 F.3d at 531–32. The 
case law made it clear, then, that prosecutions could not permissibly be  
brought based on a match between the accused and a description of their race 
and car, with no sufficient temporal or geographic connection to the crime, as 
here.                                                                     
    All said, case law by 1994 had identified one probable cause factor that 
was wholly invalid, and two that were at best dubious: (1) coerced statements, 
(2) accusations from an accomplice, and (3) vague descriptions of the     
perpetrator. Detective Furda relied on all three—and nothing else. Given such 
case law, it should have been apparent that probable cause was lacking.   
    The Complaint, I find, has enough merit to require that the case go  
forward. I so rule without prejudice to a renewed application seeking qualified 
immunity based on factual submissions by the parties, at the proper time. In 
short, the question of whether the officer should clearly have known that 
probable cause was lacking presents, at best, a factual issue. For the present, 
the motion to dismiss is denied to the extent it seeks qualified immunity from 
the claims in Counts 5 and 6.12                                           

12   A final note on qualified immunity: Even if Detective Furda were entitled to 
immunity on the claim discussed above, it is not clear that he would be entitled to 
qualified immunity on all claims. Recall that the Complaint alleges violations of 
multiple rights. (Compl. at 51–52.) Detective Furda has not attempted to argue 
specifically as to those violations. The rights that come into play based on a wrongful 
prosecution and conviction have given rise to a rich, complex area of the law. See 
generally Thomas v. City of Philadelphia,
290 F. Supp. 3d 371
(E.D. Pa. 2018) 
(analyzing the complexities of many of the claims asserted here). Despite this richness, 
Detective Furda asks for dismissal of all claims without even mentioning the contours 
of those constitutional rights. Instead, he argues generally that, whatever rights are at 
 B. Official-Capacity Claims                                             
    Mr. Dorval asserts § 1983 and NJCRA claims against Detective Furda in 
his official capacity as well as his individual capacity. However, such suits for 
damages are not permitted against state actors in their official capacities. 
Downey v. Pa. Dep’t of Corrs.,
968 F.3d 299
, 309–10 (3d Cir. 2020) (§ 1983); 
Estate of Lagano v. Bergen Cnty. Prosecutor’s Office,
769 F.3d 850, 856
(3d Cir. 
2014) (NJCRA). As a result, to the extent Counts 5 and 6 are asserted against 
Detective Furda in his official capacity, they are dismissed.             
 C. Malicious Prosecution Claim                                          
    Mr. Dorval brings a common-law malicious prosecution claim (Count 7) 
(Compl. at 53–56), which Detective Furda moves to dismiss because (1) malice 
is not alleged, and (2) he is immune under
N.J. Stat. Ann. § 59:3-8
(Mot. at 18–
19).                                                                      
    On his first argument, Detective Furda is incorrect. True, a malicious 
prosecution claim requires, among other things, that the prosecution was  
motivated by malice. LoBiondo v. Schwartz,
970 A.2d 1007, 1022
(N.J. 2009). 
But “malice may be inferred from want of probable cause.” Brunson v. Affinity 
Fed. Credit Union,
972 A.2d 1112, 1120
(N.J. 2009). At least at the pleading 
stage, adequate allegations that probable cause was lacking suffice to raise an 
inference that the action was motivated by malice. Crane v. Sussex Cnty.  
Prosecutor’s Office, Civ. No. 08-1641,
2009 WL 192567
, at *7 (D.N.J. Jan. 27, 
2009). Put differently, one can infer that if an action was commenced without 
probable cause, then the defendant’s “primary purpose was one other than  
bringing the plaintiff to justice.” Bartlebaugh v. City of Camden, Civ. No. 05-
0121,
2007 WL 4415066
, at *2 (D.N.J. Dec. 13, 2007). Accordingly, because 

stake here, there is no factually on-point case in any context. Here, the government 
paints with too broad a brush; for example, the Third Circuit has recognized rights in 
similar contexts and held that “[a]nalogous precedent” should have informed 
defendants of them. Halsey, 750 F.3d at 295–96. Something more substantial in the 
way of argument would be required to secure such a broad-based immunity.  
the Complaint alleges that probable cause was lacking (Section III.A.1, supra), I 
can infer malice for purposes of this motion to dismiss.                  
    On his second argument, Detective Furda is also incorrect. True, the New 
Jersey Tort Claims Act provides that “[a] public employee is not liable for injury 
caused by his instituting or prosecuting any judicial . . . proceeding within the 
scope of his employment.”
N.J. Stat. Ann. § 59:3-8
. But the Act provides that 
an employee is still liable if “his conduct . . . constituted . . . actual malice or 
willful misconduct.”
Id.
§ 59:3-14(a). This latter section forecloses immunity 
here for two reasons. First, the Complaint pleads “willful misconduct,” namely 
that Detective Furda coerced the Romelus statements. See Alston v. City of 
Camden,
773 A.2d 693, 185
(N.J. 2001) (“willful misconduct” is more than  
“simple negligence” but less than “intentional infliction of harm”). Second, 
because a malicious-prosecution claim requires malice, and I can at least infer 
malice, it would be improper to dismiss at this stage. Langford v. Gloucester 
T’ship Police Dep’t, Civ. No. 16-1023,
2016 WL 7130912
, at *3 (D.N.J. Dec. 7, 
2016).                                                                    
    For these reasons, the motion to dismiss is denied as to Count 7.    
 D. § 1985(3) Claim                                                      
    Mr. Dorval brings a § 1985(3) conspiracy claim against Detective Furda 
and Officer Koczur (Count 8) (Compl. at 56–58), which Detective Furda moves 
to dismiss as insufficiently pleaded (Mot. at 14–16). To state a § 1985(3) claim, 
a plaintiff must allege, among other things, “(1) a conspiracy; (2) for the 
purpose of depriving . . . any person . . . the equal protection of the laws.” 
Farber v. City of Paterson,
440 F.3d 131, 134
(3d Cir. 2006) (citation omitted).  
    Detective Furda argues that the second element is not met. (Mot. at 16.) 
That element requires the plaintiff to allege “some racial, or perhaps otherwise 
class-based, invidiously discriminatory animus behind the conspirators’   
action.” Farber,
440 F.3d at 135
(citation omitted). The Complaint alleges that 
Detective Furda and Officer Koczur’s wrongful investigation and prosecution 
were motivated by Mr. Dorval’s “Haitian ethnicity.” (Compl. at 59.) But as the 
Complaint acknowledges, Detective Furda and Officer Koczur took interest in 
Mr. Dorval because witnesses had identified the perpetrators as Haitian. (Id. at 
57.) There is no impermissible discrimination when race is confined to its 
proper role as a physical description, like height, weight, or eye color. When 
law enforcement learns from a witness that a perpetrator was a member of a 
particular race, it is permissible to use that fact in the investigation. Brown v. 
City of Oneonta,
221 F.3d 329
, 337 (2d Cir. 2018); Pinkney v. Meadville, No. 
1:19-cv-167,
2020 WL 1667241
, at *12 (W.D. Pa. Apr. 3, 2020), adopted in  
relevant part,
2020 WL 1984721
(W.D. Pa. Apr. 27, 2020). As a result, Mr. 
Dorval has not alleged that any conspiratorial acts were motivated by racial 
animus.                                                                   
    For these reasons, Count 8 is dismissed.                             
IV.  CONCLUSION                                                           
    For the reasons set forth above, the motion to dismiss is denied in part 
and granted in part. It is denied to the extent it seeks dismissal of (1) the 
individual-capacity § 1983 and NJCRA claims (Counts 5 and 6), and (2) the 
malicious prosecution claim (Count 7). It is granted to the extent it seeks 
dismissal of (1) the official-capacity § 1983 and NJCRA claims (Counts 5 and 
6), and (2) the § 1985 conspiracy claim (Count 8).                        
    A separate order will issue.                                         
Dated: January 25, 2021                                                   

                                  /s/ Kevin McNulty                      
                                  ___________________________________    
                                  Hon. Kevin McNulty                     
                                  United States District Judge