                                                                 NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                        No. 18-1976
                                        __________

                                   MICHAEL TELZER,
                                              Appellant

                                              v.

   BOROUGH OF ENGLEWOOD CLIFFS, (Its Directors, Officers, Servants, Agents,
      Assignees, Delegates, and/or Employees); ENGLEWOOD CLIFFS POLICE
 DEPARTMENT, (Its Directors, Officers, Servants, Agents, Assignees, Delegates and/or
   Employees); MICHAEL CIOFFI, Englewood Cliffs Chief of Police; LT. WILLIAM
   LARAIA; SGT. GERARD MCDERMOTT; SGT. DANIEL MORRISSEY; POLICE
  OFFICER DAVID HILL; POLICE OFFICER RONALD WALDT; JOHN AND JANE
   DOES(S) AND XYZ CORPORATIONS(S), fictitious names and parties intending to
 designee the entity/entities responsible for causing Plaintiff's cause of action and injuries
and intending to designate then person/persons responsible for causing Plaintiff's cause of
                                     action and injuries
                       ____________________________________

                     On Appeal from the United States District Court
                              for the District of New Jersey
                         (D.C. Civil Action No. 2:13-cv-04306)
                      District Judge: Honorable John M. Vazquez
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   August 1, 2019
            Before: CHAGARES, BIBAS and GREENBERG, Circuit Judges

                             (Opinion filed: August 12, 2019)
                                      ___________
                                        OPINION*
                                       ___________

PER CURIAM

       Pro se appellant Michael Telzer appeals from the judgment entered against him in

his civil rights case. For the following reasons, we will affirm.

       In July 2013, Telzer filed a complaint, presenting various claims arising from his

arrest, detention, and subsequent prosecution, based on charges of lewdness and

endangering the welfare of a child. Telzer later filed an amended complaint.

       Telzer’s allegation arise from the following undisputed facts. On July 14, 2011,

Telzer was walking along the track at Witte Field in Englewood Cliffs. During this time,

Nealy Nusbaum Erber (“Erber”) placed a 9-1-1 call, reporting that she had seen a man

walking the field with “his self exposed,” and that she was at the field with her children.

Officers McDermott and Waldt responded to the call; Officer McDermott spoke with

Erber and Officer Waldt approached Telzer (as he fit the description that Erber provided

in her 9-1-1 call). When Officer McDermott approached Erber, she identified Telzer as

the party who had exposed himself. Meanwhile, Officer Waldt approached Telzer,

informing him of the report that a white man was exposing himself at the field and asking

Telzer to lift his shirt. Telzer complied and Officer Waldt verbally indicated that Telzer’s

belt was completely unbuckled and his zipper was undone (this conversation was


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
                                              2
captured on Waldt’s mobile in-car video system). Erber thereafter provided two written

statements to the police (on July 14, 2011 and on July 15, 2011).

       Telzer was subsequently arrested and indicted by a grand jury on lewdness and

endangering charges, see N.J. Stat. Ann. 2C:14-4 & N.J. Stat. Ann. 2C:24:-4. Telzer was

tried before a jury, which found him not guilty on both charges. Telzer presented the

following claims in his amended complaint: false arrest, false imprisonment, and

malicious prosecution in violation of 42 U.S.C. § 1983 and state law; witness and

evidence tampering; withholding evidence in violation of Brady v. Maryland; violations

of the Fifth and Fourteenth Amendments; supervisory liability based on the failure to

train officers; and supervisory liability against Defendant Cioffi.

       After discovery, the District Court granted defendants’ motion for summary

judgment. On appeal, Telzer argues that the District Court’s grant of summary judgment

was in error since “all material facts are in dispute.” See Pro Se Brief, at 4. More

specifically, he argues that there was no probable cause to support his arrest, detention,

and prosecution, that the District Court ignored several exculpatory statements made by

the witness, and that Officer McDermott “coached” the witness and invented the crime.

                                             I.

       We have jurisdiction under 28 U.S.C. § 1291. We review the District Court’s

grant of summary judgment de novo and view all inferences drawn from the underlying

facts in the light most favorable to the nonmoving party. Montone v. City of Jersey City,

                                              3
709 F.3d 181, 189 (3d Cir. 2013). Summary judgment is proper only if the record

“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).

                                            II.

       The District Court properly granted summary judgment to the defendants on

Claims 1 and 2, in which Telzer brought false arrest, false imprisonment, and malicious

prosecution claims under 42 U.S.C. § 1983 and state law. To prevail on § 1983 claims

based on false arrest, false imprisonment, and malicious prosecution, a plaintiff must

demonstrate that the police lacked probable cause to arrest him. See James v. City of

Wilkes-Barre, 700 F.3d 675, 680, 682–83 (3d Cir. 2012); Johnson v. Knorr, 477 F.3d 75,

81–82 (3d Cir. 2007). “Probable cause exists whenever reasonably trustworthy

information or circumstances within a police officer’s knowledge are sufficient to

warrant a person of reasonable caution to conclude that an offense has been committed by

the person being arrested.” United States v. Myers, 308 F.3d 251, 255 (3d Cir. 2002)

(citing Beck v. Ohio, 379 U.S. 89, 91 (1964). Necessarily, the analysis is based on the

objective facts available to the officers at the time of the arrest. Although the issue of

probable cause is usually a factual one, a district court may conclude “that probable cause

did exist as a matter of law if the evidence, viewed most favorably to Plaintiff, reasonably

would not support a contrary factual finding.” Estate of Smith v. Marasco, 318 F.3d 497,




                                              4
514 (3d Cir. 2003) (quotation marks omitted) (citing Sherwood v. Mulvihill, 113 F.3d

396, 401 (3d Cir. 1997)). That is the case here, as the District Court correctly held.

       The information provided by Erber’s 9-1-1 call, Telzer’s appearance at the field,

and Erber’s subsequent police statements provided the officers with sufficient

information to have probable cause that Telzer violated N.J. Stat. Ann. 2C:14-4

(lewdness) and N.J. Stat. Ann. 2C:24-4 (endangering welfare of children).1 See Myers,


1
  N.J. Stat. Ann. 2C:14-4(b)(1) states that a person commits lewdness in the fourth degree
if:

              He exposes his intimate parts for the purpose of arousing or gratifying the
              sexual desire of the actor or of any other person under circumstances where
              the actor knows or reasonably expects he is likely to be observed by a child
              who is less than 13 years of age where the actor is at least four years older
              than the child.

N.J. Stat. Ann. 2C:24-4(a)(1)(i) provides that:

              (a)(1) Any person having a legal duty for the care of a child or who has
              assumed responsibility for the care of a child who engages in sexual
              conduct which would impair or debauch the morals of the child is guilty of
              a crime of the second degree. Any other person who engages in conduct or
              who causes harm as described in this paragraph to a child is guilty of a
              crime of the third degree.

              (b) (1) As used in this subsection:

              “Prohibited sexual act” means

              (i) Nudity, if depicted for the purpose of sexual stimulation or gratification
              of any person who may view such depiction.

See also State v. Hackett, 764 A.2d 421, 428 (N.J. 2001) (concluding that a jury
reasonably found a defendant guilty of endangering the welfare of a child when, inter
                                            5
308 F.3d at 255. In Telzer’s opposition to the defendants’ motion for summary

judgment, Telzer concedes that Erber’s 9-1-1 call indicated that she observed a man

walking around the park “with his self exposed,” and further stated that she was at the

park with her kids. See dkt # 71-2, ¶ 4–6. When officers arrived at the scene, Erber

identified Telzer as the man who had exposed himself. See dkt # 66-7, at 25; dkt # 66-6,

at 131. Upon approaching Telzer, Officer Waldt asked Telzer to lift up his shirt, and

Officer Waldt noted that Telzer’s zipper was down and open, and his belt was unbuckled.

See Id.; dkt # 66-7, at 7–8. Though Telzer disputes this fact, it is corroborated by the

audio recording by Officer Waldt’s mobile in-car video system. See Scott v. Harris, 550

U.S. 372, 380–81 (2007) (explaining that, at the summary judgment stage, courts should

“view[] the facts in the light depicted by the videotape”). Telzer explained his

appearance to Officer Waldt by describing himself as “a sloppy dresser.” Dkt # 66-7, at




alia, the defendant “allowed himself to be viewed naked, through an unobstructed
window, by girls who were age thirteen and under”).

                                             6
25.2 Given these undisputed facts, probable cause for the arrest existed as a matter of

law. See Marasco, 318 F.3d at 514.3

       In addition, Erber provided two statements to police, one the day of the incident

and one the following day, which are both consistent with her 9-1-1 call. See dkt # 66-6,

at 89, 91. Though not included in her first statement, Erber’s second statement indicated

that, after the incident, her nine-year-old daughter told her that she too had seen Telzer’s

“privates” when at the field. Id. at 91. Telzer argues, but provides no facts to support his

argument, that this addition in her second statement (and all subsequent testimony) was

due to “coaching” by Officer McDermott. See Pro Se Brief, at 4–13. See Chavarriaga v.

N.J. Dep’t of Corr., 806 F.3d 210, 218 (3d Cir. 2015) (noting that the party opposing

summary judgment “must point to specific factual evidence showing that there is a

genuine dispute on a material issue requiring resolution at trial”). In any event, we note,



2
  The recording from Officer Waldt’s mobile in-car video system does not show the
conversation that took place between Officer Waldt and Telzer, but the conversation can
be heard on the recording. Officer Waldt is heard stating that Telzer’s zipper was down
and belt was unbuckled. Telzer did not dispute that characterization of his appearance at
the time of the conversation, but instead explained that his appearance was due to him
being a “sloppy dresser.”
3
  Telzer argues that a strap of his shorts was sticking through his cargo shorts and that
Erber apparently confused this for Telzer exposing himself. Although this might explain
why a finder of fact was not able to find him guilty beyond reasonable doubt, the test here
is simply one of probable cause. Even if Erber had been mistaken about what she saw,
the report, the identification of Telzer, and Telzer’s statement about being a “sloppy
dresser” demonstrate the existence of probable cause.

                                              7
the fact that Erber’s daughter also saw Telzer exposing himself is further confirmed by

Officer Morrissey’s supplemental police report, which stated that the daughter told him

that she also saw Telzer’s privates hanging out of his pants while at the field. See dkt #

66-7, at 62. Thus, based on these facts, the District Court was correct to conclude that

there was no genuine issue of material fact and that there was probable cause4 to arrest

and prosecute Telzer with lewdness and endangering the welfare of a child.5

       Telzer has made numerous arguments against probable cause. On appeal, Telzer

argues that the District Court’s conclusion was in error due to “[e]xculpatory

[s]tatements” Erber made to the offers. Pro Se Brief, at 2–4. However, the exculpatory

statements Telzer points to in his brief merely show Erber doubting herself and worrying

whether the police will have enough evidence. They do not, as Telzer suggests,

exculpate Telzer of the charges or create a dispute of material facts regarding the


4
 In addition to the above discussion of probable cause, “in a [§] 1983 malicious
prosecution action . . . a grand jury indictment or presentment, [which occurred in this
case,] constitutes prima facie evidence of probable cause to prosecute.” Rose v. Bartle,
871 F.2d 331, 353 (3d Cir. 1989).
5
  The District Court analyzed Claims 1 and 2 under 42 U.S.C. § 1983 as well as under the
New Jersey Civil Rights Act (“NJCRA”) and New Jersey common law. Because § 1983
claims and NJCRA claims are analyzed nearly identically, the District Court correctly
analyzed them together. See, e.g., Trafton v. City of Woodbury, 799 F.Supp.2d 417, 443
(D.N.J. 2001); see also Hedges v. Musco, 204 F.3d 109, 121 n.12 (3d Cir. 2000).
Because the state-law claims all require a showing a probable cause, see Mesgleski v.
Oraboni, 748 A.2d 1130, 1139 (N.J. Super. Ct. App. Div. 2000); LoBiondo v. Schwartz,
970 A.2d 1007, 1022 (N.J. 2009), the defendants were entitled to summary judgment as
to these claims under New Jersey common law as well.

                                             8
existence of probable cause.6 Telzer additionally argues, as he did in the District Court,

that the officers coerced Erber and her daughter to lie. However, as noted by the District

Court, there is no evidence in the summary judgment record to support this claim, and in

fact, statements made by Erber in her deposition flatly refute it. See dkt # 66-6, at 126.

Accordingly, the District Court’s grant of summary judgment on Claims 1 and 2 was

proper.

                                           III.

          In Claims 3 and 4, Telzer argues that the defendants engaged in witness

tampering and evidence tampering, in violation of New Jersey criminal laws N.J. Stat.

Ann. 2C:28-5(a) and N.J. Stat. Ann. 2C:28-6. Telzer has pointed to no caselaw

suggesting that these criminal statutes create a private right of action, and we are not

aware of any. The District Court correctly granted summary judgment in favor of the

defendants on these claims.

                                           IV.

       In Claim 5, Telzer alleges that the defendants violated Brady v. Maryland, 373

U.S. 83 (1963), by withholding evidence at his criminal trial, including clearer

photographs, video recordings, and forensic test results. Telzer asserted this claim



6
 In some circumstances, a complaining witness’s doubts may prevent a finding of
probable cause. Here, however, the fact that Officer Waldt observed Telzer’s open zipper
and unbuckled belt, which was consistent with Erber’s claim, helped establish the
existence of probable cause.
                                            9
against the police officers involved with his arrest. See Gibson v. Superintendent of N.J.

Dep’t of Law & Pub. Safety-Div. of State Police, 411 F.3d 427, 443 (3d Cir. 2005)

(holding that “police officers and other state actors may be liable under § 1983 for failing

to disclose exculpatory information to the prosecutor”), overruled on other grounds by

Dique v. N.J. State Police, 603 F.3d 181 (3d Cir. 2010). We agree that the defendants

were entitled to summary judgment on Telzer’s Brady claim. “A Brady violation occurs

if: (1) the evidence at issue is favorable to the accused, because either exculpatory or

impeaching; (2) the prosecution withheld it; and (3) the defendant was prejudiced

because the evidence was ‘material.’” Breakiron v. Horn, 642 F.3d 126, 133 (3d Cir.

2011). As we discussed in Smith v. Holtz, “the Constitution is not violated every time

the government fails or chooses not to disclose evidence that might prove helpful to the

defense”; instead, the government’s failure to disclose evidence rises to the level of a due

process violation only if the failure to disclose “undermines confidence in the outcome of

the trial.” 210 F.3d 186, 196 (3d Cir. 2000). Because Telzer was acquitted of the charges

against him, we conclude that no conduct by the defendants has undermined our

confidence in the outcome of the trial and thus this case does not implicate Brady. See

Morgan v. Gertz, 166 F.3d 1307, 1310 (10th Cir. 1999) (“Regardless of any misconduct

by government agents before or during trial, a defendant who is acquitted cannot be said

to have been deprived of the right to a fair trial.”); Flores v. Satz, 137 F.3d 1275, 1278

(11th Cir. 1998) (“Plaintiff, however, was never convicted and, therefore, did not suffer

                                             10
the effects of an unfair trial. As such, the facts of this case do not implicate the

protections of Brady.”).

                                             V.

       In Claims 6, 7 and 8, Telzer asserts violations of his rights to due process and

equal protection. These claims were wholly undeveloped in the District Court, as Telzer

failed to provide any factual support for them in his amended complaint. For that matter,

it is not clear whether Telzer has argued these claims on appeal. In any event, we agree

with the District Court that summary judgment was proper on these claims.

                                            VI.

       In Claim 9, Telzer asserts a claim based on Monell v. Dep’t of Social Servs., 436

U.S. 658 (1978), alleging that the Englewood Cliffs Police Department and its

supervisors are liable for the failure to train Englewood Cliffs’ officers. In Claim 10,

Telzer asserts a claim of supervisory liability pursuant to § 1983 against Defendant

Cioffi. The District Court correctly concluded that the Englewood Cliffs Police

Department and Defendant Cioffi were entitled to summary judgment.

       “[A] municipality cannot be held liable solely because it employs a tortfeasor—or,

in other words, a municipality cannot be held liable under § 1983 on a respondeat

superior theory.” Id. at 691. Pursuant to Monell, Telzer could assert a claim under §

1983 against the police department only if the alleged constitutional violation involved a

policy officially adopted by the department or where, although not officially adopted, the

                                              11
violation arose from the local government’s “custom.” Id. at 690–91; see also Beck v.

City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996). Additionally, supervisors are

generally not vicariously liable for their subordinates’ acts. See Rode v. Dellarciprete,

845 F.2d 1195, 1207 (3d Cir. 1988). Supervisory liability is allowed, however, if the

supervisors: (1) “established and maintained a policy, practice or custom which directly

caused the constitutional harm”; or (2) “they participated in violating plaintiff's rights,

directed others to violate them, or, as the persons in charge, had knowledge of and

acquiesced in their subordinates’ violations.” Parkell v. Danberg, 833 F.3d 313, 330 (3d

Cir. 2016).

       Telzer has not proffered evidence of either an official policy or an unofficial

custom that caused his arrest or any other alleged constitutional violation. Furthermore,

Telzer failed to raise a genuine issue of material fact regarding the involvement of the

Englewood Cliffs Police Department or Defendant Cioffi in any unconstitutional

conduct, since Telzer failed to show any violation of his rights. Thus, the District Court

properly granted summary judgment on these claims.



                                           VII.

       For the foregoing reasons, we will affirm the judgment of the District Court. In

addition, we deny Appellant’s and Appellees’ requests for oral argument. See L.A.R.

34.1(a). Appellant’s motion to lodge exhibits is granted; however, we have not

                                              12
considered any commentary on the exhibits that was not presented to the District Court,

see United States v. Donsky, 825 F.2d 746, 749 (3d Cir. 1987), and, to that extent only,

Appellees’ motion to strike is granted.




                                            13
