Opinion
Civil No. 99-4353 (JBS).
December 5, 2001
Samuel A. Malat, Esquire, Law Offices of Samuel A. Malat, Haddon Heights, New Jersey, Counsel for Plaintiffs.
Richard L. Goldstein, Esquire, Marshall, Dennehey, Warner, Coleman Goggin, P.C., Cherry Hill, New Jersey, Counsel for Defendants Paulsboro Police Department, Borough of Paulsboro, and Chief Kenneth Ridinger.
Allen E. Richardson, Esquire, Woodbury, New Jersey, Counsel for Defendant Officers Tim Suter, Nastasi, Wachter, Lewis, Gilcrest, Menitti, and Grogan.
OPINION
Presently before this Court are two motions for summary judgment on claims made in plaintiffs' Second Amended Complaint. The first, by defendants Paulsboro Police Department, Borough of Paulsboro, and Chief Kenneth Ridinger (collectively, "the Paulsboro defendants"), seeks summary judgment on all claims by all plaintiffs. The second, by defendants Officer Tim Suter, Officer Kevin Nastasi, Officer Chris Wachter, Officer Sheldon Lewis, Officer Gilcrest, Officer Menitti, and Sergeant Grogan (collectively "the Officer defendants"), seeks partial summary judgement on the following claims: all state tort claims by all plaintiffs; all constitutional deprivation claims by Timothy Leuallen, Sr. as Guardian Ad Litem for Rebecca Grove, Timothy Leuallen, Jr., and Harley Leuallen, Rickey Ann Vaughn as Guardian Ad Litem for Patricia Reed and Curtis Reed, Jr. (collectively, "the minor plaintiffs"), Bernice Leuallen, and Dolores Dalbow; all claims by plaintiff Phillip Williamson; all claims by Marge Holeman; all claims by Michael Morgan; all claims by Gary Tucker, Sr.; and the unlawful entry 4th Amendment claims by Timothy Leuallen, Sr. The Court has considered these motions on the papers and without oral argument pursuant to Rule 78, Fed.R.Civ.P. For the reasons discussed below, this Court will grant the motion for summary judgment by the Paulsboro defendants and will grant in part and deny in part the motion for partial summary judgment by the Officer defendants, allowing only plaintiff Holeman's unconstitutional search and seizure claim to go forward against Officer Tim Suter.
Plaintiffs Williamson and Holeman officially named defendant Officer Tim Suter as the Paulsboro officer who allegedly violated their rights. Discovery revealed and plaintiff Williamson concedes that it was actually Officer Fred Suter who took allegedly violated his rights. Plaintiff Holeman asserts that Time Suter was properly named. Officer Fred Suter is not a defendant in this action.
The Court has created a summary chart of the dispositions of all claims in this case, attached as an appendix to this Opinion.
I. PROCEDURAL HISTORY
The long and tortured procedural history of this case began on September 13, 1999 when plaintiffs' counsel, Samuel A. Malat, Esquire, filed the original Complaint by twelve plaintiffs against sixteen defendants, not including John and Jane Does, but made allegations only on behalf of plaintiff Gary Tucker, Jr. On September 21, 1999, this Court ordered Malat to file an Amended Complaint comporting with the Federal Rules of Civil Procedure, particularly Rule 11, Fed.R.Civ.P. On October 1, 1999, the First Amended Complaint was filed, naming the same parties and including allegations and demands for all plaintiffs. On December 3, 1999, the Second Amended Complaint was filed, naming thirteen plaintiffs and sixteen defendants, not including John and Jane Does.
The original Complaint listed the plaintiffs as Timothy Leuallen, Timothy Leuallen as Guardian Ad Litem for Rebecca Grove, Rickey Ann Vaughn, Rickey Ann Vaughn as Guardian Ad Litem for Patricia Reed and Curtis Reed, Jr., Timothy Leuallen and Rickey Ann Vaughn as Guardians Ad Litem for Timothy Leuallen, Jr. and Harley Leuallen, Bernice Leuallen, Dalores Dalbow, Gary Tucker, Danielle Logan, Marge Holeman, Phillip Williamson, and Michael Morgan.
The original Complaint listed the defendants as Paulsboro Police Department, Borough of Paulsboro, Police Chief Ridinger, Officer Timothy Suter, Officer Kevin Nastasi, Officer Chris T. Wachter, Officer Sheldon Lewis, Officer Gilcrest, Officer Menitti, Sergeant Grogan, Mayor John J. Burzichelli, West Deptford Police Department, West Deptford Township, East Greenwich Police Department, East Greenwich Township, and John Does 1-10 and Jane Does 1-10, individually, jointly, severally, and in the alternative.
The Second Amended Complaint lists the plaintiffs as Timothy Leuallen, Timothy Leuallen as Guardian Ad Litem for Rebecca Grove, Timothy Leuallen, Jr., and Harley Leuallen, Rickey Ann Vaughn as Guardian Ad Litem for Patricia Reed and Curtis Reed, Jr., Bernice Leuallen, Dolores Dalbow, Gary Tucker, Gary Tucker, Sr., Samuel Mick, Danielle Logan, Marge Holeman, Phillip Williamson, and Michael Morgan.
The Second Amended Complaint lists the defendants as Paulsboro Police Department, Borough of Paulsboro, Borough of Paulsboro Safety Director Joseph Kidd, Police Chief Ridinger, Officer Timothy Suter, Officer Kevin Nastasi, Officer Chris T. Wachter, Officer Sheldon Lewis, Officer Gilcrest, Officer Menitti, Sergeant Grogan, Paulsboro Mayor John J. Burzichelli, East Greenwich Police Department, East Greenwich Township, East Greenwich Township Public Safety Director Salvadore Licciardello, East Greenwich Mayor Dalyn Currey, and John Does 1-10 and Jane Does 1-10, individually, jointly, severally, and in the alternative.
On January 11, 2000, the Paulsboro defendants and Mayor Burzichelli answered the Second Amended Complaint and asserted cross-claims against East Greenwich Township, East Greenwich Police Department, Mayor Dalyn Currey, and John and Jane Does 1-10. On March 14, 2001, a stipulation and Order of dismissal was filed dismissing any and all claims and cross-claims as to defendants East Greenwich Township, East Greenwich Public Safety Director Salvatore Licciardello, East Greenwich Police Department, and Mayor Dalyn Currey with prejudice. On May 9, 2001, a stipulation and Order of dismissal was filed dismissing all claims against Paulsboro Mayor John Burzichelli and Paulsboro Safety Director Joseph Kidd with prejudice. On October 3, 2001, in an attempt to clarify the muddled pleadings submitted by plaintiffs' counsel, this Court entered an Order for the voluntary dismissal of certain parties not named in the Second Amended Complaint. (See Leuallen v. Paulsboro, No 99-4353 (D.N.J. Oct. 3, 2001) (Order dismissing parties and cross-claims no longer in the case).
On May 1, 2001, the Paulsboro defendants filed a motion for summary judgment on all claims against them. On May 2, 2001, the Officer defendants filed a motion for partial summary judgment on the following claims: all state tort claims by all plaintiffs; all constitutional deprivation claims by Timothy Leuallen as Guardian Ad Litem for Rebecca Grove, Timothy Leuallen, Jr., and Harley Leuallen, Rickey Ann Vaughn as Guardian Ad Litem for Patricia Reed and Curtis Reed, Jr., Bernice Leuallen, and Dolores Dalbow; all claims by plaintiff Phillip Williamson; all claims by Marge Holeman; all claims by Michael Morgan; all claims by Gary Tucker, Sr.; and the unlawful entry 4th Amendment claims by Timothy Leuallen, Sr. The Officer defendants have not moved for summary judgment on the constitutional claims asserted by plaintiffs Gary Tucker, Jr., Danielle Logan, and Samuel Mick pursuant to 42 U.S.C. § 1983.
II. DISCUSSION
A. Summary Judgment Standard
A court may grant summary judgment when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see Hersh v. Allen Prods. Co., 789 F.2d 230, 232 (3d Cir. 1986). A dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the non-moving party." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" only if it might affect the outcome of the suit under the applicable rule of law. Id. Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. Id.
In deciding whether there is a disputed issue of material fact, the court must view the evidence in favor of the non-moving party by extending any reasonable favorable inference to that party.See Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1080-81 (3d Cir. 1996). The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson, 477 U.S. at 250.
The moving party always bears the initial burden of showing that no genuine issue of material fact exists, regardless of which party ultimately would have the burden of persuasion at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Jalil v. Avdel Corp., 873 F.2d 701, 706 (3d Cir. 1989),cert. denied, 493 U.S. 1023 (1990). The non-moving parties, here plaintiffs, "may not rest upon the mere allegations or denials of" their pleadings in order to show the existence of a genuine issue. Fed.R.Civ.P. 56(e). They must do more than rely only "upon bare assertions, conclusory allegations or suspicions." Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985),cert. denied, 474 U.S. 1010 (1985) (citation omitted). If the non-movants' evidence is merely "colorable" or is "not significantly probative," the court may grant summary judgment.Anderson, 477 U.S. at 249-50.
B. Claims Alleged in the Second Amended Complaint
Most plaintiffs in this action allege the same eight claims of wrongdoing, or some lesser combination thereof, by various defendants. The second amended complaint, which contains sixty-six counts in total, merely repeats verbatim the same claims of behalf of each plaintiff/incident group. For the sake of clarity, consistency, and conservation, all eight claims will be discussed here and referred in the discussion of each plaintiff group's by the below-designated Claim Number.
1.) Violations of 42 U.S.C. §§ 1981, 1983, 1985, 1986, and 1988 ("Claim One")
This claim, asserted by all plaintiffs, alleges that all defendants, within the scope of their employment and under color of state law, used excessive force and unreasonably searched and seized plaintiffs, in violation of their 4th, 5th, 6th, 8th, 13th, and 14th amendment rights, 42 U.S.C. § 1983, as well as the New Jersey Constitution and laws. (See Second Am. Compl., Counts I, IX, XVII, XXV, XXXI, XXXVI, XLI, and XLIX.) Plaintiffs allege that the Paulsboro defendants had a policy of permitting, encouraging, or overlooking these alleged violations and that they failed to properly train their officers. Plaintiffs each seek $100,000.00 in damages plus costs and fees in this claim.
2.) Violations of 42 U.S.C. §§ 1981, 1983, 1985(3), 1986, and 1988 ("Claim Two")
This claim, asserted by all plaintiffs, alleges that defendants entered into a conspiracy to deprive plaintiffs of their constitutional rights. (See Second Am. Compl., Counts II, X, XVIII, XXVI, XXXII, XXXVII, XLII, and XLX.) Plaintiffs each seek $100,000.00 in damages plus costs and fees in this count.
3.) Violations of 42 U.S.C. §§ 1981, 1983, 1986, and 1988 ("Claim Three")
This claim, asserted by all plaintiffs, alleges that the Paulsboro defendants recognized and accepted a policy of condoning illegal stops, searches and seizures and the use of excessive force and also condoned the covering-up of such behavior, which policy was carried out by the Officer defendants. Plaintiffs allege that these activities deprived plaintiffs of their constitutionally protected right to access to the courts. (See Second Am. Compl., Counts III, XI, XIX, XXVII, XXXIII, XXXVIII, XLIII, and LI.) Plaintiffs each seek $100,000.00 in damages plus costs and fees in this count.
The five state common law claims pled in plaintiffs' Second Amended Complaint will be referred to collectively as the state law claims.
This state common law claim, made by all plaintiffs except Holeman and Morgan against various individual officers, alleges that the named Officer defendants put plaintiffs in reasonable fear of imminent bodily harm and wrongfully touched them against their will. (See Second Am. Compl., Counts IV, XII, XXVII, XLIV, and LII.) Plaintiffs each seek $100,000.00 in compensatory damages plus costs and fees. Plaintiffs also seek punitive damages on this claim.
5.) False Arrest and False Imprisonment
This state common law claim, made by all plaintiffs except Dalbow, the five minor plaintiffs, and Williamson against various individual officers, alleges that the named Officer defendants intentionally caused the false arrest and imprisonment of the plaintiffs without probable cause. (See Second Am. Compl., Counts V, XIII, XX, XXVIII, XLV, and LIII.) Plaintiffs each seek $100,000.00 in compensatory damages, plus costs and fees. Plaintiffs also seek punitive damages on this claim.
6.) Malicious Prosecution
This state common law claim, made by all plaintiffs except Dalbow, the five minor plaintiffs, and Willaimson against various individual officers, alleges that the named Officer defendants intentionally, maliciously, and without probably cause caused the plaintiffs to be subjected to criminal proceedings. (See Second Am. Compl., Counts VI, XIV, XXII, XLVI, and LIV.) Plaintiffs each seek $100,000.00 in compensatory damages, plus costs and fees. Plaintiffs also seek punitive damages on this claim.
7.) Intentional Infliction of Emotional Distress
This state common law claim, made by all plaintiffs against various individual officers, alleges that the named Officer defendants intentionally and/or recklessly inflicted serious emotional distress on plaintiffs. (See Second Am. Compl., Counts VII, XV, XXIII, XXIX, XXXIV, XXXIX, XLVII, and LV.) Plaintiffs each seek $100,000.00 in compensatory damages, plus costs and fees. Plaintiffs also seek punitive damages on this claim.
8.) Negligent Infliction of Emotional Distress
This state common law claim, made by all plaintiffs against various individual officers, alleges that the named Officer defendants negligently inflicted serious emotional distress on plaintiffs. (See Second Am. Compl., Counts VIII, XVI, XXIV, XXX, XXXV, XXXX, XLVIII, and LVI.) Plaintiffs each seek $100,000.00 in compensatory damages, plus costs and fees. Plaintiffs also seek punitive damages on this claim.
C. Analysis of Plaintiffs' Claims by Incident
The Court will first address and dismiss plaintiffs' claims pursuant to 42 U.S.C. §§ 1981, 1985, and 1986, because all plaintiffs fail to allege the necessary facts required to recover under those statutes. The Court will then consider the remaining Section 1983 and state law claims by plaintiffs. Because there is no clear thread binding the plaintiffs together in this case, other than the commonality of some claims and defendants, the Court will separately address the merits of plaintiffs' claims and related facts according to each of the seven allegedly injurious incidents.
1.) Federal Claims under 42 U.S.C. §§ 1981, 1985, 1986
a.) 42 U.S.C. § 1981
This statute, as amended by the Civil Rights Act of 1991, provides, in relevant part:
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.42 U.S.C. § 1981. In order to state a claim under 42 U.S.C. § 1981, a plaintiff must allege and establish that: (1) he is a member of a racial minority; (2) the defendant intended to discriminate against him on the basis of race; and (3) that the discrimination concerned one or more of the activities enumerated in Section 1981, i.e., the making or enforcing of a contract.Santiago v. City of Vineland, 107 F. Supp.2d 512, 531, n. 7 (D.N.J. 2000) (citing Morris v. Office Max, Inc., 89 F.3d 411, 413 (7th Cir. 1996)).
Plaintiffs in this case fail to allege or prove any of the prongs required for a Section 1981 claim. Indeed, from the pleadings and submissions thus far provided, the Court cannot even tell if any or all of the plaintiffs are members of a racial minority. Summary judgment in favor of all defendants on the Section 1981 claims of all plaintiffs will therefore be granted.
The Court notes that plaintiff Holeman is described as an "older black female" in the police report prepared by Officer Fred Suter (see Officer Defs.' Mot., Ex. F), but plaintiffs fail to assert that they are members of any racial minority group.
b.) 42 U.S.C. § 1985(3) and 1986
Plaintiffs similarly offer no evidence that a violation of 42 U.S.C. § 1985(3) or 42 U.S.C. § 1986 occurred. Section 1983(5) reads, in relevant part:
If two or more persons in any State of Territory conspire, or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within the State or Territory the equal protection of the laws; . . . [and] in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property . . . the party so injured or deprived may have an action for the recovery of damages. . . .42 U.S.C. § 1985(3).
In Lake v. Arnold, 112 F.3d 682 (3d Cir. 1997), the Third Circuit articulated the requirements for establishing a cause of action under 42 U.S.C. § 1985(3), which have been set forth in a line of Supreme Court cases beginning with the decision inGriffin v. Breckenridge, 403 U.S. 88, 91 S. Ct. 1790, 29 L.Ed.2d 338 (1971). The Court held that the reach of section 1985(3) is limited to private conspiracies predicated on "racial, or perhaps otherwise class based, invidiously discriminatory animus." Id. at 102, 91 S. Ct. at 1798. The Court strictly construed the requirement of class-based invidious animus inUnited Brotherhood of Carpenters and Joiners of America, Local 610 v. Scott, 463 U.S. 825, 103 S. Ct. 3352, 77 L. Ed.2d 1049 (1983), finding that commercial and economic animus could not form the basis for a section 1985(3) claim.
Read together, Griffen and Carpenters establish that in order to state a claim under 42 U.S.C. §§ 1985(3), a plaintiff must allege: (1) a conspiracy; (2) motivated by a racial or class based discriminatory animus designed to deprive, directly or indirectly, any person or class of persons to the equal protection of the laws; (3) an act in furtherance of the conspiracy; and (4) an injury to person or property or the deprivation of any right or privilege of a citizen of the United States. Id. at 828-29, 103 S. Ct. at 3356; Griffin v. Breckenridge, 403 U.S. at 102-03, 91 S. Ct. at 1798-99. The vitality of this analysis was reaffirmed in Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 268, 113 S. Ct. 753, 758-59, 122 L. Ed.2d 34 (1993).
Although plaintiffs in the Second Amended Complaint allege a vague conspiracy against them, they do not allege, much less prove, that such conspiracy was motivated by a racial or class based discriminatory animus designed to deprive, directly or indirectly, any person or class of persons to the equal protection of the laws, or that such conspiracy injured or deprived any plaintiff of any right. In fact, there is no mention whatsoever of any plaintiff's race or class in any of plaintiffs' pleadings or submissions. Plaintiffs' claims under Section 1985 must therefore fail. Because no claim under Section 1985 has been made, no claim under Section 1986 is possible either. Summary judgment in favor of all defendants on all Section 1985(3) and 1986 claims will therefore be granted and those claims will be dismissed with prejudice.
Section 1986 reads, in relevant part: "Every person who, having knowledge that any of the wrongs conspired to be done, and mentioned in section 1985 of this title, are about to be committed, and having the power to prevent or aid in preventing the commission of same, neglects or refuses so to do, if such wrongful act be committed, shall be liable to the party injured,. . . ." 42 U.S.C. § 1986. Plaintiffs, having failed to even identify their class or race, or the basis for the alleged section 1985 violation, and this Court concluding that no section 1985 violation occurred, have also failed to state a claim under Section 1986.
2.) Incident One: Gary Tucker, Jr. on September 13, 1997
This incident occurred on September 13, 1997 and allegedly involved defendants Sgt. Grogan and Officers Gilcrest and Menitti. On September 13, 1997, at approximately 10:30 p.m., Gary J. Tucker, Jr. ("Tucker, Jr."), at the time a minor, was out on a street in Paulsboro after 10:00 pm, in violation of a local curfew ordinance. Tucker, Jr. admits that he was a minor out after 10:00 p.m. (Second Am. Compl., ¶ 36.) Officer Gilcrest, who was on bicycle patrol, called in the violation. Sgt. Grogan arrived in a police cruiser and placed Tucker Jr., uncuffed, in the back of his police cruiser.
Sgt. Grogan testified that after Tucker Jr. was placed in the car, he heard a loud bang, which he determined was Tucker Jr. striking the vehicle's partition. (Officers' Mot. for Summ. J. "Officers' Motion," Ex. A, Tr. 9:14-20.) Tucker, Jr. admits only to knocking on the rear window to advise his cousin to call his father. (Id., Ex. B, Tr. 100:1-3.) After Tucker, Jr. struck some part of the police car, he was removed from the car by Sgt. Grogan and Officers Gilcrest and Menitti, handcuffed and returned to the car. Sgt. Grogan testified that Tucker, Jr. struggled when the Officers attempted to cuff him. (Id., Ex. A, Tr. 10:2-9.) Tucker, Jr. alleges that he was punched, beaten, and humiliated by the officers (Second Am. Compl., ¶¶ 38-39; Pls.' Opp., ¶¶ 3-4), but admits that he sought no medical treatment (Paulsboro's Mot. for Summ. J. "Paulsboro's Motion", Ex. A., Tr. 140:7-10), and he took no medicine whatsoever (id. at Tr. 140:17-141:1). He claims he sustained only minor lumps and scratches during the incident. (Id. at Tr. 141:2-21.) Plaintiff submitted no evidence of any physical or emotional injury resulting from the September 13th incident, which is the sole basis for Tucker, Jr.'s claims. Upon Tucker, Jr. and the officers' arrival at the police station, Tucker, Jr. was released to his parents without being charged.
Tucker, Jr. asserts all three federal and all five state law claims discussed above. His Section 1981, 1985, and 1986 claims having been dismissed, the Court will now discuss his remaining claims.
a.) 42 U.S.C. § 1983
Plaintiff Tucker, Jr. alleges that the Officer defendants used excessive force and committed an illegal search and seizure in violation of his rights under the "Fourth, Fifth, Sixth, Eighth, Thirteenth, and Fourteenth Amendments" (Second Am. Compl., ¶ 109), and thus violated 42 U.S.C. § 1983.
The statute invoked, 42 U.S.C. § 1983, is a powerful legislative "sword" providing injunctive relief and damages for the benefit of citizens whose Federal Constitutional rights have been violated by persons acting on behalf of a state or local government. Since its enactment, § 1983 has become Congress's primary means of protecting United States citizens from illegal state action. Sheldon H. Nahmod, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 § 1.1 (4th ed. 1997).
Section 1983 provides, in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory . . . 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, suit in equity, or other proper proceeding for redress.
Thus, to properly assert a claim for alleged violations of his constitutional rights pursuant to 42 U.S.C. § 1983, a plaintiff must allege (1) a violation of a right secured by the Constitution and laws of the United States, and (2) that the alleged deprivation was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
The Court first considers plaintiff Tucker, Jr.'s claims against the Officer defendants. It should be noted that the individual Officer defendants have not moved for summary judgment on Tucker, Jr.'s Section 1983 claims, however, in order to clarify the proper bases of the 1983 claim that will proceed against Sgt. Grogan and Officers Gilcrest and Menitti, a brief discussion of those claims is necessary.
Tucker, Jr. admits to being in violation of Paulsboro's 10:00 p.m., curfew for minors. (Second Am. Compl., ¶ 36) There is no dispute that defendants had probable cause to take plaintiff into custody and return him to his parents for curfew violation, and no inference from any fact proffered by plaintiff suggests that the length of his detention for this purpose was excessive. Any Fourth Amendment claim relating to the arrest or detention period, therefore, is improper. Tucker, Jr's Fifth, Sixth, Eighth, and Thirteenth Amendment claims are inappropriate and unsupported, and cannot serve as the basis for 1983 liability against any defendant in this action. Tucker, Jr. was not subject to any federal action (5th Amendment), he was not under criminal prosecution (6th Amendment), he was not a convicted criminal who was subjected to punishment (8th Amendment), and he was not forced into slavery or involuntary servitude (13th Amendment).
Only Tucker Jr.'s Fourteenth Amendment claims for the alleged use of excessive force by the Officer defendants shall remain as a possible basis for Section 1983 liability. This claim is not analyzed in great detail because the Officer defendants have not moved for summary judgment upon it. Summary judgment will be granted on plaintiff's Section 1983 claims against the individual officers to the extent that he alleges violations of his 5th, 6th, 8th, and 13th Amendment rights. Tucker, Jr.'s Section 1983 claims against the Officer defendants (Gilcrest, Menitti, and Grogan) for the use of excessive force in violation of the Fourteenth Amendment shall proceed in the ordinary course to trial.
The Court will now consider whether summary judgment is proper on plaintiff's claims against the Paulsboro defendants. A local or county government may only be sued under § 1983 for implementing a policy, practice, or custom. Monell v. Dept. of Social Services, 436 U.S. 658, 691 (1978). As the Monell Court made clear, there can be no § 1983 liability under a respondeat superior theory. Id. at 694. There are two ways a defendant can be held liable under § 1983. First, one can be liable for one's own constitutional tort, that is, "subjecting" the plaintiff to the constitutional harm. Second, one may be liable, under certain circumstances, for someone else's constitutional tort if the defendant's conduct "caused" the plaintiff to be subjected to the constitutional deprivation at issue. See Sample v. Diecks, 885 F.2d 1099, 1113 (3d Cir. 1989). In this case, there would be Section 1983 liability against the Paulsboro defendants only if plaintiff shows that the Paulsboro defendants were deliberately indifferent to his rights. See City of Canton, Ohio v. Harris, 489 U.S. 378, 388, 109 S. Ct. 1197, 1204, 103 L.Ed.2d 412 (1989).
Although plaintiffs name then as separate entities, the Court treats the municipality and its police department as a single entity for purposes of section 1983 liability. See Colburn v. Upper Darby Twp., 838 F.2d 663, 671 n. 7 (3d Cir. 1988).
Deliberate indifference exists if the challenged act (here the use of excessive force by officers effectuating an arrest) implements a municipal policy or a "statement, ordinance, regulation, or decision officially adopted and promulgated by [a local governing] body's officers." See Bonenberger v. Plymouth Twp., 132 F.3d 20, 25 (3d Cir. 1997) (quotingSimmons v. City of Philadelphia, 947 F.2d 1042, 1059 (3d Cir. 1991)). Section 1983 liability may also exist if the allegedly unconstitutional action reflects "practices of state officials . . . so permanent and well settled as to constitute a `custom or usage' with the force of law." Id. (citation omitted).
The Paulsboro defendants move for summary judgment on all of plaintiffs' Section 1983 claims because they assert that the alleged violations (Officers' use of excessive force upon arrest, illegal search and seizure) were not caused by a policy or custom and because plaintiff fails to establish any direct involvement by Chief Ridinger. This Court must determine, therefore, whether any plaintiffs' allegations create any genuine issue of material fact concerning whether the Paulsboro defendants failed to train, discipline or control the Officer defendants and thereby violated section 1983 and plaintiff's constitutional rights. The Court finds that plaintiffs have proffered no facts or admissible evidence that raise a genuine issue about whether there was a failure to train or a policy of accepting the use of excessive force. Plaintiffs offer only vague and unsubstantiated allegations. Additionally, the Paulsboro defendants have come forward with the testimony of Chief Ridinger, which further undercuts these claims. (See Ridinger Deposition, Tr. 19:3-34:14.) There being no material issue of fact remaining as to the existence of 1983 liability against the Paulsboro defendants, summary judgment is proper as a matter of law and all plaintiffs' 1983 claims against the Paulsboro defendants will be dismissed.
The individual plaintiffs all allege the same vague and conclusory statements about the Paulsboro defendants' "policies" regarding constitutional violations and "failure to train." Therefore, the Court will consider the Paulsboro defendants' motion for summary judgment on the 1983 claims of all plaintiffs in this section.
b.) State Law Claims
Plaintiff Tucker, Jr. next alleges that Chief Ridinger and Officers Gilcrest, Menitti, and Grogan are liable to him for the state common law torts of assault and battery, false arrest/false imprisonment, malicious prosecution, intentional infliction of emotional distress, and negligent infliction of emotional distress.
Under New Jersey law, a person may be liable for battery if he acts intending to cause a harmful or offensive contact . . . or an imminent apprehension of such contact and a harmful or offensive contact directly or indirectly results. See 1 Restatement (Second) of Torts §§ § 13, 18 (1965). A person who acts with the same intent may be liable for assault even if no contact actually results if the victim is placed in "imminent apprehension" of a harmful or offensive contact. Id. at § 21;Giovine v. Giovine, 284 N.J. Super. 3, 33 (App.Div. 1995).
False arrest, or false imprisonment, is the constraint of a person against his will without legal justification. See Mesgleski v. Oraboni, 330 N.J. Super. 10, 24 (App.Div. 2000) (citing cases); Fleming v. United Parcel Serv., Inc., 255 N.J. Super. 108, 155 (Law Div. 1992).
To establish a cause of action for malicious prosecution under New Jersey law, a plaintiff must establish: (1) a criminal action instituted by the defendant, (2) which was actuated by malice, (3) where there was no probable cause for the proceeding, and (4) the action was terminated in plaintiff's favor. See Lind v. Schmid, 67 N.J. 255, 262-63 (1975).
To establish a cause of action for intentional infliction of emotional distress, a plaintiff must prove: (1) that defendant acted intentionally or recklessly, (2) that defendant's conduct was extreme and outrageous, (3) that defendant's actions were the proximate cause of the plaintiff's distress, and (4) that the emotional distress suffered by plaintiff was severe. See Hill v. New Jersey Department of Corrections, 342 N.J. Super 273, 297 (App.Div. 2001). The emotional distress must be so severe that no reasonable person could be expected to endure it. Id.
To establish a cause of action for negligent infliction of emotional distress, a plaintiff must prove (1) death or serious injury to another caused by defendant's negligence, (2) marital or intimate familial relationship between plaintiff and the injured person, (3) observation of death or injury at the scene of the accident, and (4) resulting severe emotional distress.See Fertile v. St. Michael's Medical Center, 334 N.J. Super. 43, 53-54 (App.Div. 2000).
Before considering whether plaintiff alleges facts which support each of the elements of his claims, this Court must first determine whether plaintiff has met the threshold limitation contained in the New Jersey Tort Claims Act, 59:9-1, et. seq. ("NJTCA"). The NJTCA provides that:
no damages shall be awarded against a public entity or public employee for pain and suffering resulting from any injury; provided, however, that this limitation on the recovery of damages for pain and suffering shall not apply in cases for permanent loss of a bodily function, permanent disfigurement or dismemberment where the medical treatment expenses are in excess of $3,600.00.
N.J.S.A. 59:9-2(d). The New Jersey Supreme Court has held that in order to recover damages from a public entity or employee, "a plaintiff must prove by objective medical evidence that the injury is permanent." Brooks v. Odom, 150 N.J. 395, 406 (1997).
Plaintiff Tucker, Jr. fails to even acknowledge that there is a threshold requirement for tort actions against public entities, such as the Paulsboro defendants, and public employees, such as the Officer defendants. Plaintiff alleges that he was punched and beaten by the officers during his arrest (Second Am. Compl., ¶¶ 38-39), but admits that he sought no medical treatment for his injuries (Tucker, Jr. Deposition, Tr. 140:7-10), took no medication (id., Tr. 140:17-141:1), and sustained only minor lumps and scratches (id., Tr. 141:2-21). Plaintiff submitted no medical evidence of permanent physical or psychological sufficient to meet the NJTCA threshold. His state tort law claims are therefore barred.
Additionally, although it is not necessary to reach the merits of the five state law torts claims asserted, a preliminary review of the evidence submitted on this motion reveals that Tucker, Jr. would have great difficulty proving the prima facie elements of each tort, even if the permanent injury threshold of the NJTCA had been met. Summary judgment in favor of all defendants on all of plaintiff Tucker, Jr.'s state law claims is appropriate and, therefore, Counts IV, V, VI, VII, and VII will be dismissed with prejudice.
3.) Incident Two: The Birthday Party on April 26, 1998
This incident occurred at the home of Timothy Leuallen, Sr. ("Tim, Sr.") and Rickey Ann Vaughn ("Vaughn") during a birthday party for Tim, Sr.'s daughter, Rebecca Grove, on April 26, 1998. This incident involved plaintiffs Tim Sr., individually and as Guardian Ad Litem for minors Harley Leuallen, Tim Leuallen, Jr. ("Tim, Jr."), and Rebecca Grove, Dolores Dalbow, Bernice Leuallen, and Rickey Ann Vaughn as Guardian Ad Litem on behalf of minors Patricia Reed and Curtis Reed, Jr., and directly involved defendant Officer Nastasi.
On April 26, 1998, plaintiffs Tim Sr., Tim Jr., Harley Leuallen, Bernice Leuallen, Dolores Dalbow, Patricia Reed, and Curtis Reed, Jr. were gathered at the home of Tim Sr. and Rickey Ann Vaughn for Rebecca Grove's birthday party. Tim Sr. was aware that Rebecca, under a custody order, was to be returned to her mother by 6:00 p.m. At approximately 6:09 p.m., at the request of Wanda Grove, Rebecca's mother, Officer Nastasi went to Tim Sr.'s home so that Rebecca could be returned to her mother. Tim Sr. claims that he was given permission to keep Rebecca until 6:30 p.m., but Wanda Grove, who arrived at the house at the same time as Officer Nastasi, disputed that fact and advised the officer that she wanted the custody order enforced.
Officer Nastasi entered the house, upon probable cause supplied by the custody order, and arrested Tim, Sr. During the arrest, there was a struggle between Tim, Sr. and Officer Nastasi. Plaintiff alleges that the officer used foul language in front of children while he was arresting plaintiff and that during the struggle the officer's foot struck Tim, Jr., causing him to be thrown into Harley Leuallen, who was thrown into Dolores Dalbow, all three of whom landed on the couch. (See Paulsboro Br., Ex. 47:22-50:18.) Plaintiff also alleges that Nastasi sprayed him with mace (Second Am. Compl., ¶ 62), however, no mention of the mace was made during his deposition. After the arrest "[d]efendant Nastasi . . . handcuffed plaintiff, Timothy Leuallen, and removed him from the residence and placed him in the patrol car, by himself and without incident." (Second Am. Compl., ¶ 64.)
Plaintiffs Tim, Sr. and Bernice Leuallen each assert all eight claims discussed in Section II.B above. The remaining plaintiffs in this incident group, Dalbow and the five minor plaintiffs, assert constitutional claims in violation of 42 U.S.C. §§ 1981, 1983, 1985, and 1986, as well as the state tort claims of assault and battery, intentional infliction of emotional distress, and negligent infliction of emotional distress. The §§ 1981, 1985, and 1986 claims have already been dismissed, and their remaining claims are discussed below.
a.) Tim, Sr.'s Claims
The Court will first consider the Officer defendants' motion to dismiss Tim, Sr.'s unlawful entry 4th Amendment claim. The Officers assert that they had probable cause to arrest Tim, Sr. because he was in violation of a custody order involving his daughter, Rebecca Grove. As discussed above, although he was aware that the order required him to have Rebecca back to her mother, Wanda Grove, by 6:00 p.m., Tim, Sr. still had Rebecca at his home at 6:09 p.m. Tim, Sr. asserts that he requested and received permission by phone from Wanda Grove to keep Rebecca until 6:30 p.m. Ms. Grove, who telephoned the Leuallen Police Department and accompanied the officers to Tim, Sr.'s home, denies ever extending the visitation time.
The Court finds that there is no genuine issue of material fact as to whether Officer Nastasi had probable cause to arrest Tim, Sr. on the custody order. Although there may be some dispute as to whether Ms. Grove gave permission over the phone to Tim, Sr., that dispute is not material to this issue because Officer Nastasi, at the time he executed the arrest, had probable cause, from the custody order and the complaint of Ms. Grove, to take Tim, Sr. into custody. The Officers' motion for summary judgment on the unlawful entry claims will be granted. Tim, Sr.'s other constitutional claims for the unlawful use of excessive force in violation of Section 1983, will proceed in the ordinary course to trial.
Tim, Sr.'s allegations that the Officer defendants also violated 1983 by infringing on his 5th, 6th, 8th, and 13th Amendment rights are no more viable than Tucker, Jr.'s same claims. Those bases for Section 1983 liability will therefore be dismissed.
The Court will next consider the state law claims asserted by Tim, Sr. Before reaching the merits of the Tim, Sr.'s claims, the Court must determine whether the NJTCA injury threshold has been met. Plaintiff submitted no medical evidence of permanent physical or psychological injury sufficient to meet the NJTCA threshold. Tim, Sr. admitted that he sought no medical treatment for physical or emotional injuries arising out of the birthday party incident. (T. Leuallen Deposition, Tr. 219-222.) Specifically, he conceded that his injuries were "nothing severe" and that the incident "did not impair me physically whatsoever." (Id., Tr. 223:7-20.) Tim, Sr.'s state tort law claims are therefore barred and will be dismissed.
b.) Claims of the Minor Plaintiffs, Dalbow and Bernice Leuallen
The Court will first consider the constitutional claims of the minor plaintiffs, Dalbow and Bernice Leuallen. As discussed above with plaintiff Tucker, Jr., the Fifth, Sixth, Eighth, and Thirteenth Amendment claims of the minor plaintiffs, Dalbow, and B. Leuallen are incorrect and cannot serve as a basis for 1983 liability against any individual officer. These plaintiffs also claim that their Fourth and Fourteenth Amendment rights were violated when Officer Nastasi allegedly searched and seized and used excessive force against them. There is no evidence in the record that Officer Nastasi touched any of these plaintiffs except Tim, Jr., which touching allegedly started a chain reaction detailed in the Second Amended Complaint, and it is clear that the touching was accidental or negligent at best. There is no evidence that Nastasi's conduct would shock the conscience or that he intended to come into contact with the minor plaintiffs, Dalbow, or Bernice Leuallen. Even if the Court were to find that plaintiffs were injured by this chain reaction, a police action [the arrest of Tim, Sr.] that negligently causes injury to bystanders does not equate to an excessive use of force toward those bystanders. See Claybrook v. Birchwell, 199 F.3d 350, 360-61 (6th Cir. 2000) (finding that the negligent actions of police officers resulting in the unintentional shooting of a bystander did not warrant Fourteenth Amendment substantive due process liability under Section 1983); Popow v. City of Margate, 476 F. Supp. 1237, 1242-43 (D.N.J. 1979) (citing cases holding that simple negligence, even on the part of a police officer, is not sufficient to establish Section 1983 liability). These plaintiffs have failed to show that Officer Nastasi violated any of their constitutional rights. There being no genuine issue of material fact remaining regarding the constitutional claims under Section 1983 of the minor plaintiffs, Dalbow, and B. Leuallen, summary judgment in favor of the Officer defendants is proper and will be granted.
The Court will next consider the state law claims asserted by Dalbow, B. Leuallen and the minor plaintiffs. Before reaching the merits of their claims, the Court must determine whether the NJTCA injury threshold has been met.
There are no factual allegations of any injury whatsoever to Rebecca Grove or the two Reed children, who were upstairs during the entire incident. Dalbow alleges that the incident caused her severe hip problems, but she has not submitted evidence of a permanent injury to meet the NJTCA threshold. Dalbow admitted that she was able to walk and stand after the child came into contact with her (see Dalbow Deposition, Tr. 51:14-20) and that she did not seek medical treatment until her next regularly scheduled doctor's appointment for her hip, for which she had been treated long before the party incident (see id., Tr. 81:15-82:3). Bernice Leuallen claims that she experiences chest pains and depression as a result of the party incident, but admits that she sought no medical treatment for her injuries and continues to work full-time. (See B. Leuallen Deposition, Tr. 80:9-15.)
These plaintiffs have failed to submit sufficient medical evidence showing the permanent loss of any physical or psychological bodily function sufficient to meet the NJTCA threshold. The state tort law claims of the minor plaintiffs, Dalbow, and Bernice Leuallen are therefore barred and will be dismissed.
4.) Incident Three: Danielle Logan and Samuel Mick on September 25, 1998
This incident occurred on September 25, 1998 and involves plaintiffs Danielle Logan ("Logan") and Samuel Mick ("Mick"). On September 25, 1998, at approximately 11:30 p.m., plaintiff Logan and her boyfriend Mick were walking along Delaware Street in the Borough of Paulsboro. (Second. Am. Compl., ¶ 67.) Plaintiffs were stopped by Officer Tim Suter and asked for identification, which was produced without incident. (Id., ¶¶ 68-69.) Plaintiff Logan then contends that when she and Mr. Mick began friendly conversation with the officers, they began to beat them with their fists and their weapons and sprayed everyone in the area with mace. (Id., ¶¶ 70-72.) Logan alleges that she was beaten and strangled until she was unconscious and that her head was slammed into the car by the officers. (Id., ¶ 73.) Ms. Logan admits that she spit on Officer Suter at some point during this incident. (Paulsboro Mot., Tr. 107:20-23.) Ms. Logan did not seek medical treatment after the incident. Plaintiff Mick alleges that he was sprayed with mace and "beaten beyond recognition, his face was bloodied and swollen." (Id., ¶ 79.)
Plaintiffs Logan and Mick each assert all eight claims discussed above in Section II.B above. The Officer Defendants do not move to dismiss the constitutional claims alleged to establish Section 1983 liability. Therefore, the 1983 claims of Logan and Mick alleging and illegal search and seizure and the unconstitutional use of excessive force in violation of the Fourth and Fourteenth Amendments shall proceed to trial. As discussed above, plaintiffs' claims of Fifth, Sixth, Eighth, and Thirteenth Amendment violations are improper and will be dismissed.
The Court will now consider their remaining state law claims. Before reaching the merits of their claims, the Court must determine whether the NJTCA injury threshold has been met. Although plaintiffs Logan and Mick allege that Officer Suter beat them "manually and with weapons," neither has presented objective medical evidence supporting that either has sustained a permanent medical injury. Logan only alleged that she incurred light bruises, neck pain, and a slight headache, all of which went away several days after the incident (see Logan Deposition, Tr. 167:2-168:13) and admitted that she did not seek any medical treatment after the alleged beating (see id., Tr. 165:23-166:20). Mick asserted that he sustained cuts and bruises, memory problems, and headaches after the incident, but submitted no medical evidence of a permanent loss of a bodily function as required by New Jersey law. (See Mick Deposition, Tr. 145:9-24.) Additionally, Mick admitted that he missed, at most, one week of work after the incident. (Id.)
These plaintiffs have failed to submit sufficient medical evidence of any permanent loss of a physical or psychological bodily function to meet the NJTCA threshold. The state tort law claims of the Logan and Mick are therefore barred and will be dismissed.
5.) Incident Four: Phillip Williamson on July 14, 1998
This incident occurred on July 14, 1998 and involves plaintiff Phillip Williamson ("Williamson") and Officer Fred Suter, not a defendant in this action. On July 14, 1998, Williamson was arrested by Officer Fred Suter, not a party to this action, on a warrant for charges of sexual contact with a minor. In the Second Amended Complaint, Williamson alleges that Officer Fred Suter choked him while in custody at the Paulsboro Police Department and told him "I hope you die in jail." (Second Am. Compl., ¶ 79.) Williamson named Officer Tim Suter as the defendant responsible for the alleged choking in this action, although he concedes that it was actually Fred Suter who arrested him. (See 70:22-71:1; Pls.' Opp. at 12-13.) Plaintiff further concedes that summary judgment is proper as to Tim Suter. Plaintiff has not, to date, sought to add Fred Suter as a defendant in this action. Plaintiff Williamson asserts constitutional claims in violation of 42 U.S.C. §§ 1981, 1983, 1985, and 1986, as well as the state tort claims of assault and battery, intentional infliction of emotional distress, and negligent infliction of emotional distress. All defendants move for summary judgment on all claims.
Plaintiff Williamson concedes that summary judgment is proper against Officer Tim Suter "because he was improperly named as a defendant." (Pls.' Opp. at 12.) Plaintiff's attorney goes on to assert, however, that "Williamson's claim against the officer who performed the injustice" should remain. (Id. at 12-13.) There is one large problem with plaintiff's assertion. The officer that allegedly performed an injustice against Williamson, Officer Fred Suter, is not a party named in the Second Amended Complaint and has never been named or served in this action. Therefore, no claim can "remain" against him, because none has ever been made. Additionally, as discussed above, even if the proper defendant were named, plaintiff cannot establish violations of his Fourth, Fifth, Sixth, Eighth, or Thirteenth Amendment rights based on the allegations in the Second Amended Complaint.
There being no genuine issue of material fact remaining as to the viability of plaintiff's claims against Officer Tim Suter, there being no opposition from plaintiff, and because the Court deems it appropriate, summary judgment will be entered in favor of defendant Tim Suter on plaintiff Williamson's Section 1983 Claims.
The Court will now consider plaintiff's state law claims against Tim Suter. Even if plaintiff Williamson had named the proper officer, his state tort law claims would fail because he has submitted no objective medical evidence of any permanent loss of a bodily function, as required by the NJTCA. Williamson testified that he had bruises on his neck for approximately one week after the incident (Williamson Deposition, Tr. 66:2-10) and that he sought no medical treatment (id., Tr. 67:17-20). Williamson admitted that he sustained other injuries, foot and punch marks, on his side during an altercation with another prisoner at the county jail, which are not the subject of this lawsuit. (Id., Tr. 66:14-67:15.) For the same reasons discussed above, plaintiff Williamson cannot meet the NJTCA threshold and summary judgment will be granted in favor of all defendants on this Count.
6.) Incident Five: Marge Holeman on October 9, 1998
This incident occurred on October 9, 1998 and involved plaintiff Marge Holeman ("Holeman"), defendant Chief Ridinger, and Officer Fred Suter, not a party in this action. On October 9, 1998 at approximately 11:30 p.m., several Paulsboro Police officers knocked on the door of plaintiff Holeman's home and requested permission to search the premises. Chief Ridinger testified that the police believed Ms. Holeman's neighbors were storing drugs in her home without her knowledge. (Paulsboro Mot., Ex. F; Tr. 101:10-102:4.) Officer Fred Suter, in the police report he prepared, noted that he, along with Investigator Craig Kraemer, Patrolman Anthony Francesco, West Deptford Officer Sean McKenna, and Kilo, a narcotic detecting K-9 officer (not parties in this action), went to Holeman's home to investigate a lead that drugs were being stored in Holeman's home. (See Officer Defs.' Mot., Ex. F.) Fred Suter noted that he advised plaintiff of the purpose of their visit and read her the consent to search form before she signed it, allowing the search for narcotics to proceed. (Id.) Fred Suter noted that Holeman escorted them throughout the house, granting access to closets and cabinets, and that no narcotics were found at the residence. (Id.)
Plaintiff disputes that she gave permission for the officers to enter and search her home. Holeman alleges that the officers entered her home and began searching without her invitation or permission. (Second Am. Compl., ¶¶ 84-88.) Plaintiff Holeman testified that the officers searched her home for two hours and she never said anything to them and they said nothing to her. (Officer's Mot., Ex. G, Tr. 94:14-98:8.) Plaintiff also contends that the officers never gave her the consent to search form until they were preparing to leave (id., Tr. 96:22-97:23), that she cannot read (id., Tr. 114:4-8), and that she has difficulty seeing, and therefore was unaware of what she was signing and was unable to give consent for the search. Defendants produced a consent to search form signed by Holeman and dated October 9, 1998 at 11:15 p.m., which granted permission to search the residence at 26 A Baird Avenue, Paulsboro, NJ. (Paulsboro Mot., Ex. E.)
Plaintiff also disputes that Fred Suter was the officer who searched her home, insisting that it was Tim Suter, whom she recognized from the neighborhood, (see Officer's Br., Ex. G, Tr. 94:1-7), even though the police report and consent to search were signed by Fred Suter. (Paulsboro Mot., Ex. E, Consent to Search signed by Fred Suter.) Yet plaintiff Holeman also admitted that although she recognized the Paulsboro officers who searched her home, she "d[idn't] know their names." (Holeman Deposition, Tr. 94:7.) Fred Suter has not been named as a defendant in this action.
Plaintiff Holeman asserts excessive force and illegal search constitutional claims in violation of 42 U.S.C. §§ 1981, 1983, 1985, and 1986, as well as state tort claims of intentional infliction of emotional distress, and negligent infliction of emotional distress. All defendants move for summary judgment of all claims.
The Court will first address plaintiff's Section 1983 claim for excessive force and illegal search violations under the Fourth Amendment. There is no evidence in the summary judgment record before the court that any of the searching officers touched or used excessive force against plaintiff Holeman. Summary judgment on that claim will be granted. The illegal search claim is a closer call, however, because plaintiff has averred that Officer Tim Suter conducted the search and that she did not give knowing and voluntary consent to search. Although the evidence submitted to this Court by Holeman is not tremendously convincing, it does raise genuine issues of material fact regarding which officer searched the home and whether knowing and voluntary consent was given. A grant of summary judgment on this claim would require the court to make a credibility determination about the testimony and recollection of Ms. Holeman. The Court will not take this credibility determination away from the ultimate finder of fact and will deny summary judgment on Ms. Holeman's unconstitutional search and seizure claim against Tim Suter, allowing only that claim by her to proceed to trial.
Plaintiff Holeman's claims of Fifth, Sixth, Eighth, and Thirteenth Amendment violations are improper and will be dismissed. Although the Court notes that the police report identified Ms. Holeman as "an older black female," plaintiff alleged no facts that could reasonably establish that a Thirteenth Amendment violation had occurred.
Although summary judgment must be denied on this claim, plaintiff should consider pressing forward with the claim in light of the weaknesses and inconsistencies in her testimony, and the evidence and testimony that will likely be offered on behalf of defendant Suter.
The Court will next address plaintiff's state law tort claims of intentional and negligent infliction of emotional distress. Prior to addressing the merits of these claims, the Court must determine as a threshold matter whether Ms. Holeman has met the threshold permanent injury requirement of the NJTCA. Ms. Holeman alleges that she experienced some nervousness and one incident of elevated blood pressure after her home was searched. (Holeman Deposition, Tr. 137:4-24.) Ms. Holeman admits that she had a lifelong and family history of high blood pressure prior to this incident (id., Tr. 135:17-20) and that the nervousness subsided after several weeks (id., Tr. 139:8-24). Ms. Holeman testified that there is nothing she could do before the incident that she cannot do now. (Id., Tr. 141:9-12.) Additionally, even if the Court were to consider the merits of these claims, plaintiff has not alleged any behavior that would establish a prima facie claim of intentional or negligent infliction of emotional distress.
Plaintiff Holeman has failed to meet her burden of showing, through objective medical evidence, that she suffered a permanent loss of a bodily function as a result of defendants' alleged torts. Plaintiff's state tort law claims are therefore barred and will be dismissed.
7.) Incident Six: Michael Morgan on July 3, 1999
This incident occurred on July 3, 1999 and involves plaintiff Michael Morgan ("Morgan") and defendant Officer Lewis. On July 3, 1999, Officer Lewis responded to a Heritage's Food Market where he picked up plaintiff Morgan who was intoxicated. (Second Am. Compl., ¶¶ 95-96.) Officer Lewis then transported Mr. Morgan to the residence of Gary J. Tucker ("Tucker, Jr.") and Faye Nastasi, where he was staying. (Paulsboro Mot., Ex. G, Tr. 24:18-24.) Mr. Morgan got into the police car by himself, advised the officer that Gary Tucker was at home, and took out keys when Officer Lewis dropped him at the residence. (Id., Tr. 24:23-25:8.)
After Officer Lewis dropped Morgan at the Tucker home, he returned to the scene of a fire, where he encountered Faye Nastasi and advised her that he just escorted Morgan to her home. (Id., Tr. 25:11-19.) Minutes later Officer Lewis got an ambulance call to report to the Tucker home, where Morgan was passed out or sleeping on the porch. (Id., Tr. 25:19-26:7.) Because Paulsboro's ambulances were in use responding to the fire, Officer Lewis instructed Ms. Nastasi to take Morgan to the hospital, which she did. (Id., Tr. 26:22-27:5.)
Plaintiff Morgan asserts constitutional claims in violation of 42 U.S.C. §§ 1981, 1983, 1985, and 1986, as well as state tort claims of intentional infliction of emotional distress, and negligent infliction of emotional distress. All defendants move for summary judgment on all of Morgan's claims.
The Court will first address plaintiff's Section 1983 claim that Officer Lewis violated Morgan's Fourteenth Amendment substantive due process rights when he drove him home from a convenience store and left him at his doorstep. Although plaintiff fails to plead or argue this claim under the state-created danger theory and instead argues that the officer violated some state tort law duty, the Court will use the four prong test articulated by the Third Circuit in Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir.), cert. denied, 516 U.S. 858 (1995) (declining to adopt the state-created danger theory because facts dissimilar to other appellate courts upholding its use); see also Kneipp v. Tedder, 95 F.3d 1199, 1208-09 (3d Cir. 1996) (applying the four prong test and finding that state actors created a danger which deprived an individual of her Fourteenth Amendment right to substantive due process). The four elements that are common to cases asserting constitutional liability on a state created danger theory are: (1) the harm ultimately caused was foreseeable and fairly direct; (2) the state actor acted in willful disregard for the safety of the plaintiff; (3) there existed some relationship between the state and the plaintiff; (4) the state actors used their authority to create a danger that otherwise would not have existed. Kneipp, 95 F.3d at 1208 (citing Mark, 51 F.3d at 1141).
Plaintiff Morgan's claims of Fourth, Fifth, Sixth, Eighth, and Thirteenth Amendment violations are improper and will be dismissed.
The Third Circuit determined that the facts in Kneipp, if believed, would trigger the application of the state-created danger theory for constitutional liability under 42 U.S.C. § 1983. In Kneipp, plaintiffs, Samantha and her husband Joseph Kneipp, were walking home from a bar after a night of drinking. 95 F.3d at 1201. Approximately one-third of a block from their home, plaintiffs were stopped by Philadelphia Police Officer Wesley Tedder, who smelled alcohol on Samantha and determined that both plaintiffs were intoxicated. Id. Observation revealed that Samantha was unable to stand by herself (she leaned on the police car for stability) and was unable to follow Officer Tedder's instructions. Id. During the stop, Joseph informed the officers that his infant son was at home with a babysitter and requested that he be allowed to go home. The officer allowed him to leave and he did so without Samantha, assuming that the officers would escort her home in her intoxicated state. Id. 1201-02. Officer Tedder did not escort Samantha home and instead sent her alone. Samantha never made it home and was found unconscious at the bottom of an embankment next to a shopping plaza parking lot. Id. at 1202-03. As a result of her fall and exposure to the cold, Samantha suffered permanent brain damage and the impairment of many basic body functions. Id. at 1203.
The District Court entered summary judgment in favor of the city and officers, finding that the legal guardians for Samantha had failed to prove a constitutional violation under either the "special relationship" test or the state created danger theory.Id. at 1204. The Third Circuit reversed and remanded, finding that the case presented the appropriate factual background to support a finding that the state officers created a danger which deprived Samantha of her Fourteenth Amendment right to substantive due process. Id. at 1205. Applying the four prong test for the state-created danger theory, the Third Circuit found that: (1) the injuries to Samantha were foreseeable in light of her impaired walking ability, .25% blood alcohol level, and the cold weather at the time the officers sent her home unescorted; (2) that Officer Tedder acted with willful disregard when he separated Samantha from Joseph and then failed to escort the obviously drunk and impaired Samantha home; (3) that Officer Tedder, exercising his powers as a police officer, had sufficient control over Samantha to meet the special relationship requirement and placed her in danger of foreseeable injury when he sent her home alone; and (4) that Officer Tedder used his authority as an officer to create a more dangerous situation or to make Samantha more vulnerable to danger than if he had not intervened. Id. at 1208-09.
The Third Circuit, however, agreed with the district court's finding that no special relationship, as required byDeShaney v. Winnebago Co. Dep't of Social Serv., 489 U.S. 198 (1989), existed between Officer Tedder and Samantha Kneipp. See Kneipp, 95 F.3d at 1205.
The facts involving Mr. Morgan in this case fall far short of the circumstances present in Kneipp. First and foremost, the incident involving Morgan occurred on July 3, 1999, so the dangerous weather element present in Kneipp was absent here. Second, Officer Lewis responded to a call from the Heritage's Store, where the manager was concerned that several other customers were trying to rob or take advantage of Morgan in his intoxicated state. (See Lewis Deposition, Tr. 23:1-24:5.) Third, Officer Lewis was able to have a conversation with Morgan at the store, during which he determined that Morgan was intoxicated, but not incapacitated. (Id., Tr. 24:16-23.) Fourth, Morgan was able to walk to and get into Lewis's patrol car without assistance and coherently advised the officer of the location at which he was staying. Even though Morgan's home was very close to the store, Officer Lewis drove Morgan home and waited until Morgan was at the door with his house keys before leaving him to return to the scene of a fire. (Id., Tr. 24:23-25:8.)
Plaintiff in this case has offered no admissible evidence in support of finding constitutional liability under a state-created danger theory. Plaintiff Morgan cannot establish that his injuries, which are unsubstantiated by any medical evidence or testimony submitted to this Court, were foreseeable, that Officer Lewis demonstrated a willful disregard for Morgan's safety, or that Officer Lewis created a dangerous situation or made Morgan more vulnerable to injury. Conversely, Officer Lewis exercised an abundance of caution and acted to remove Morgan from the danger he faced alone and intoxicated at a convenience store at night. Additionally, even though Morgan was speaking and walking well and lived only a short distance from the store, Officer Lewis drove him home and waited until he was at the door with his keys before leaving. The state-created danger theory is not appropriate in this case and summary judgment will be granted in favor of defendant Officer Lewis.
The Court will next address plaintiff's state law tort claims of intentional and negligent infliction of emotional distress. Prior to addressing the merits of these claims, the Court must determine as a threshold matter whether Morgan has met the threshold permanent injury requirement of the NJTCA. Plaintiff alleges that after Officer Lewis drove him to the home where he was staying, he was transported to the hospital by ambulance and placed on a respirator in the intensive care unit. (Second Am. Compl. at 16, ¶ 103; Pls.' Opp. at 9.) No admissible evidence in support of this allegation has been submitted to the court. Additionally, plaintiff has failed to show that he has permanently lost the use of a bodily function as a result of Lewis's alleged tortious behavior. Even if the Court were to find that the threshold had been met, which it does not, Morgan has not met his prima facie burden of showing either intentional or negligent infliction of emotional distress. See notes 14 and 15, supra.
Plaintiff Morgan has failed to meet his burden of showing, through objective medical evidence, that he suffered the permanent loss of a bodily function as a result of defendants' alleged tortious behavior. Plaintiff's state tort law claims are therefore barred and will be dismissed.
8.) Incident Seven: Gary W. Tucker, Sr. on July 22, 1999
This incident occurred on July 22, 1999 and involved plaintiff Gary W. Tucker, Sr. ("Tucker, Sr.") and defendant Officer Gilcrest. It is undisputed that on July 22, 1999, Tucker, Sr. was arrested by Officer Gilcrest on an outstanding warrant. (Second Am. Compl., ¶ 105.) Upon his release from custody, Tucker, Sr. alleges that Officer Gilcrest used excessive force and injured his pinky.
Tucker, Sr. has given three diverging accounts of how Gilcrest allegedly injured him. In Version One, alleged in the Second Amended Complaint, Tucker, Sr. stated that he extended his hand to Officer Gilcrest for a handshake (id., ¶ 106) and that "Gilcrest grabbed Plaintiff's hand in such a manner to cause his pinky finger to break and become deformed at the first knuckle." (Id., ¶ 107.) In Version Two, offered in Tucker, Sr.'s deposition, Tucker, Sr. testified that Officer Gilcrest forced his arm behind his back at the police station, injuring his pinky. (Police Mot., Ex. H, Tr. 69:11-70:15.) Finally, in Version Three, offered in Tucker, Sr.'s answers to interrogatories, Tucker, Sr. alleged that Gilcrest grabbed and injured his pinky while he was removing handcuffs from him. (Police Mot., Ex. I, Response #11.)
In his opposition papers to defendants' summary judgment motions, Tucker, Sr., through his attorney, asserts that version one, plead in the Second Amended Complaint, is the true and only version of the incident alleged by Tucker, Sr., and that the other versions are "mischaracterizations of the one aforementioned story given by Plaintiff as a testimony to what occurred on the night in question." (Pls.' Opp. Br. at 16.) This Court will, therefore, accept plaintiff's representation that the injury occurred during a handshake between the two men after Tucker, Sr. was released from custody. Plaintiff Tucker, Sr. asserts all eight claims discussed above in Section II.B. All defendants move for summary judgment on all claims made by Tucker, Sr.
The Court will first address plaintiff's Section 1983 claim of excessive force. The Court finds that there is no genuine issue of material fact remaining as to whether plaintiff has shown that a clearly established right was violated by Officer Gilcrest when he shook Tucker, Sr.'s hand and allegedly injured his finger. Plaintiff is adamant that the version plead in the complaint is what occurred between the parties. The Court has accepted that representation as the truth, in deference to plaintiff as the non-moving party in this motion. While the second and third versions reportedly alleged by plaintiff might have implied that Officer Gilcrest used some excessive force against plaintiff Tucker, Sr., the first version indicates, at best, that Officer Gilcrest's actions were accidental or negligent. Negligence on the part of an officer, without more, cannot serve as a basis for Section 1983 liability. Summary judgment in favor of Officer Gilcrest is appropriate and plaintiff Tucker, Sr.'s Section 1983 claims will be dismissed.
Plaintiff Tucker, Sr.'s claims of Fourth, Fifth, Sixth, Eighth, and Thirteenth Amendment violations are improper and will be dismissed.
The Court will finally address plaintiff's state law tort claims. Prior to addressing the merits of these claims, the Court must determine as a threshold matter whether Tucker, Sr. has met the threshold permanent injury requirement of the NJTCA.
Tucker, Sr.'s pinky finger injury, which is the only injury alleged by this plaintiff, cannot be considered to be a permanent loss of a bodily function. Plaintiff Tucker, Sr. has failed to meet his burden of showing, through objective medical evidence, that he suffered a permanent loss of a bodily function as a result of defendants' alleged tortious behavior. Plaintiff's state tort law claims are therefore barred and will be dismissed.
III. CONCLUSION
For the reasons stated above, the Paulsboro defendants' motion for summary judgment on all claims will be granted, as will the Officer defendant's motion for partial summary judgment, except that the motion for partial summary judgment by Tim Suter on the Holeman claims for unlawful search is denied. The Appendix attached to this Opinion summarizes the dispositions of plaintiffs' claims against defendants. The accompanying Order is entered.
ORDER
This matter having come before the court upon a motion for summary judgment on all claims in the Second Amended Complaint by defendants Paulsboro Police Department, Borough of Paulsboro, and Chief Kenneth Ridinger (collectively "the Paulsboro defendants") and upon a separate motion for partial summary judgment on claims in the Second Amended Complaint by defendants Officer Tim Suter, Officer Kevin Nastasi, Officer Chris Wachter, Officer Sheldon Lewis, Officer Gilcrest, Officer Menitti, and Sergeant Grogan (collectively "the Officer defendants") pursuant to Rule 56, Fed.R.Civ.P.; and this Court having considered all submissions made by the parties; and for the reasons expressed in the Opinion of today's date;IT IS this day of December 2001 hereby
ORDERED that the Paulsboro defendants' motion for summary judgment on all claims by all plaintiffs in the Second Amended Complaint [Docket Item 48-1] be, and hereby is, GRANTED ;
IT IS FURTHER ORDERED that all claims by all plaintiffs against the Paulsboro defendants be, and hereby are, DISMISSED WITH PREJUDICE ;
IT IS FURTHER ORDERED that the Officer defendants' motion for partial summary judgment on certain claims in the Second Amended Complaint [Docket Item 49-1] be, and hereby is, GRANTED ;
IT IS FURTHER ORDERED that the following claims shall be DISMISSED WITH PREJUDICE :
1) All state law claims by all plaintiffs;
2) All Section 1983 constitutional violation claims made by Timothy Leuallen, Sr. as Guardian Ad Litem for Rebecca Grove, Timothy Leuallen, Jr., and Harley Leuallen, and all Section 1983 constitutional violation claims made by Rickey Ann Vaughn as Guardian Ad Litem for Patricia Reed and Curtis Reed, Jr;
3) All Section 1983 constitutional violation claims made by Bernice Leuallen and Dolores Dalbow;
4) All Section 1983 constitutional violation claims made by Phillip Williamson; 5) All Section 1983 constitutional violation claims made by Marge Holeman, with the exception of her unconstitutional search and seizure claim;
6) All Section 1983 constitutional violation claims made by Michael Morgan;
7) All Section 1983 constitutional violation claims made by Gary Tucker, Sr.; and
8) The Fourth Amendment unlawful entry claim of Timothy Leuallen, Sr. as well as the Fifth, Sixth, and Thirteenth Amendment claims of Timothy Leuallen, Sr., which are improper;IT IS FURTHER ORDERED that the remaining claims against the Officer defendants, as listed below, shall proceed in the ordinary course to trial:
1) The excessive force constitutional violation claims under Section 1983 by plaintiff Gary Tucker, Jr. against Officers Grogan, Gilcrest, and Menitti;
2) The excessive force constitutional violation claims under Section 1983 by plaintiff Timothy Leuallen, Sr. against Officer Nastasi;
3) The excessive force and search and seizure constitutional violation claims under Section 1983 by plaintiff Danielle Logan against Officer Timothy Suter;
4) The excessive force and search and seizure constitutional violation claims under Section 1983 by plaintiff Samuel Mick against Officer Timothy Suter; and
5) The unconstitutional search and seizure claim under Section 1983 by plaintiff Marge Holeman.