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Plummer v. Department of Corrections

November 25, 1997

GROVER PLUMMER, JR., PLAINTIFF-RESPONDENT,
v.
DEPARTMENT OF CORRECTIONS, STATE OF NEW JERSEY; CORRECTIONS OFFICERS JOHN WADLEY, *FN1 TERRENCE BELLAMY, PHILIP STEINBERG AND SERGEANTS FRANK PINHO AND VICTOR CHASEY, DEFENDANTS-APPELLANTS.



On appeal from Superior Court of New Jersey, Law Division, Middlesex County.

Approved for Publication November 25, 1997.

Before Judges Havey, Landau and Newman. The opinion of the court was delivered by Havey, P.j.a.d.

The opinion of the court was delivered by: Havey

The opinion of the court was delivered by

HAVEY, P.J.A.D.

Plaintiff instituted the present action under 42 U.S.C.A. § 1983 ( § 1983) against defendants State of New Jersey, Department of Corrections (DOC) and five corrections officers. *fn2 By leave granted, the defendant officers appeal from the denial of their summary judgment motion. They argue that: (1) the motion Judge erred when concluding that the defense of qualified immunity was a question of fact for the jury; and (2) summary judgment should have been granted because their actions were objectively reasonable, thereby entitling them to qualified immunity as a matter of law. We reverse and dismiss the complaint against all defendants.

The following facts were presented by defendants in support of their motion. At approximately 7:30 a.m., while patrolling the East Jersey State Prison, Corrections Officer John Wadley observed plaintiff dressed in "state grays" *fn3 and state boots in the prison parking lot, asking employees for money. Wadley recognized plaintiff as a former inmate who had been housed at Rahway Camp during his confinement. Inmates housed in Rahway Camp have access to the exterior grounds of the prison. They therefore have the "opportunity to become familiar with the grounds and with the procedures in effect at Rahway Camp." Knowing that plaintiff was no longer an inmate, Wadley ordered him to leave the premises.

Later that day Wadley received a call from the prison centerkeeper *fn4 reporting that there was a person in the bushes near prison property. A second call from a prison officer reported that the trespasser was across the street from the prison behind the Superintendent's house. In both instances Wadley was unable to locate any trespasser. Later, he received a third call reporting that the trespasser was again near the Superintendent's house. Wadley observed plaintiff running from a shed behind the house. He called for backup and pursued plaintiff to a nearby Dairy Queen.

Sergeant Chasey, hearing that a "possible inmate" or trespasser was running from the Superintendent's house, was told by a senior officer to pursue the unidentified person, detain him and take him to the Internal Affairs Unit (IAU) for questioning. Sergeant Pinho received a transmission from his lieutenant requesting that Pinho backup Chasey. In response, Pinho and Officer Steinberg joined in the pursuit. Officer Bellamy, who also heard the transmission about an inmate in "grays", joined the pursuit in a prison van.

Officers Chasey, Pinho, Wadley, Bellamy and Steinberg stopped plaintiff and questioned him. Plaintiff was frisked and handcuffed because he was angry and was making hostile remarks. He was thereupon transported to the IAU.

In his certification in opposition to summary judgment, plaintiff states that although he was in the vicinity of the prison on the morning in question, he never entered prison property. At the time, he was walking from his home to a nearby warehouse to make inquiry respecting job prospects. He was wearing blue jeans, a gray shirt and sneakers. He obtained an employment application from the warehouse and returned home. Upon returning to the warehouse later that day, plaintiff observed Officer Wadley driving his perimeter patrol. Plaintiff then walked to the Dairy Queen to get something to eat. There, he was arrested and handcuffed by defendants.

In light of the competing certifications, the motion Judge denied defendants' summary judgment application in its entirety. Without deciding the validity of defendants' qualified immunity defense, the Judge concluded that because there were factual disputes, all issues, including qualified immunity, must be decided by a jury.

In order to establish a viable claim under § 1983, a plaintiff must show that a public official acting under color of law violated a right guaranteed by federal law, constitutional or statutory. Gomez v. Toledo, 446 U.S. 635, 640, 100 S. Ct. 1920, 1923, 64 L. Ed. 2d 572, 577 (1980); McKinney v. East Orange Mun. Corp., 284 N.J. Super. 639, 647, 666 A.2d 191 (App. Div. 1995), certif. denied, 143 N.J. 519 (1996). Here, defendants were obviously acting under color of state law in seizing plaintiff and transporting him to IAU for questioning.

Qualified or "good faith" immunity is an affirmative defense to a § 1983 claim alleging a violation of a federal constitutional right by a public official. Harlow v. Fitzgerald, 457 U.S. 800, 815, 102 S. Ct. 2727, 2736, 73 L. Ed. 2d 396, 408 (1982); Gomez, (supra) , 446 U.S. at 640, 100 S. Ct. at 1924, 64 L. Ed. 2d at 577-78. The immunity, available only to officials performing discretionary functions, see Harlow, (supra) , 457 U.S. at 816, 102 S. Ct. at 2737, 73 L. Ed. 2d at 409, protects "all but the plainly ...


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