United States District Court, District of New Jersey, D.
January 18, 2000
ERNEST HILL, (AKA) ANTOINE HILL, PLAINTIFF,
JEFFREY ALGOR, INDIVIDUALLY AND AS A NEW JERSEY STATE POLICE OFFICER, DAVID HENRY MEYER, INDIVIDUALLY AND AS A NEW JERSEY STATE POLICE OFFICER, ROBERT KWAP, INDIVIDUALLY AND AS A NEW JERSEY STATE POLICE OFFICER, STEPHEN MAKUKA, INDIVIDUALLY AND AS A NEW JERSEY STATE POLICE OFFICER, AND JOHN DOES (1 THROUGH 6 INDIVIDUALLY AND AS NEW JERSEY STATE POLICE OFFICERS), DEFENDANTS.
The opinion of the court was delivered by: Brotman, District Judge.
OPINION ON MOTION FOR SUMMARY JUDGMENT
Presently before this Court is the motion of defendants Trooper
David Henry Meyer ("Meyer"), Trooper Robert Kwap ("Kwap") and
Trooper Stephen Makuka ("Makuka") for summary judgment pursuant
to Fed.R.Civ.P. 56.*fn1
I. FACTS AND PROCEDURAL BACKGROUND
This 42 U.S.C. § 1983 action arises out of events occurring in
the aftermath of a January 19, 1996 shootout between New Jersey
state troopers and drug suspects inside the Happy Dragon Chinese
Restaurant located at Twenty-Eighth and Mickle Streets in Camden,
New Jersey. On this night, troopers Algor, Meyer ("Meyer"), Roy
Baker ("Baker"), and Sgt. Stewart Whiteman ("Whitman"), pursuant
to the Camden Initiative,*fn2 were on patrol in the Camden area.
They responded to a report of drug activity at the restaurant. As
a result of the gunfire which ensued, Baker was severely wounded,
and a drug suspect was killed.
While these events were unfolding, plaintiff Ernest Hill
("Hill") was walking along Twenty-Eighth Street to the bus stop
to catch a bus to Pennsauken. As he walked, Hill heard gunfire.
Hill continued toward the bus stop but paused directly across the
street from the restaurant, noting the presence of state
troopers. Hill also noticed an African-American male lying in the
entrance to the restaurant. While Hill could not positively
identify the male, he believed the man to be his friend Moses
Clary. Hill yelled to the troopers to call an ambulance. The
parties dispute the events which followed Hill's arrival on the
scene, including both Hill's and the troopers' actions.
Ultimately, Hill was arrested for obstruction of justice. Algor
and Meyer were the officers who arrested Hill.
After his arrest, Hill was transported to the Camden Police
Administration Building. Shortly thereafter, Hill was transported
to the State Police Barracks in Bellmawr, New Jersey ("the
Barracks"). On this night, Kwap was the acting shift supervisor
of the Barracks. At the Barracks, Hill was placed in a holding
cell, where, handcuffed to a bench, he remained from 11:45 p.m.
until approximately 2:30 a.m. During this time, Hill claims that
he was beaten by a group of state troopers. Hill does not know
the identities of these troopers.
At around 2:45 a.m., Investigator Charles Bentham ("Bentham")
entered Hill's holding cell to move him to another room where his
official statement would be taken. Upon entering the cell,
Bentham noticed some blood on Hill's clothing, hands, and head
near the hairline. Bentham took Hill to a restroom to wash the
blood from his face and hands.
In the interrogation room Bentham and Makuka asked Hill
questions and took his statement, which process did not end until
approximately 4:30 a.m. Makuka, who was off-duty on this night,
was summoned to the Barracks to question Hill concerning the
circumstances surrounding the shooting of Trooper Baker.
Ultimately, Hill was charged with obstruction of justice in
violation of N.J.S.A. 2C:29-1 and released from the Barracks
between 4:30 a.m. and 5:30 a.m. on January 20, 1996. After his
release, Hill sought treatment at Cooper Medical Center. At the
hospital, Hill received stitches in his head. In addition, Hill
complains of spinal and knee injuries as a result of his assault.
On January 17, 1997, Hill filed a complaint against the State
of New Jersey, the New Jersey State Police Department, and John
Does 1-6 individually and as state police officers. On October
10, 1997, the Court granted Hill's motion to amend his complaint,
and on October 2, 1997, Hill filed an amended complaint naming
Algor as a defendant. On October 14, 1997, the
Court dismissed with prejudice all federal and state claims
against the State of New Jersey and the New Jersey State Police
Department. On February 23, 1999, Algor filed a motion seeking
summary judgment on all claims. In an Opinion and Order dated
June 1, 1999 ("the June Opinion"), the Court granted Algor's
motion for summary judgment as to the following claims:
(1) First Cause of Action (42 U.S.C. § 1983): that
part which alleges a violation of Hill's Fourth and
Fourteenth Amendment right to equal protection; and
(2) Second Cause of Action: Conspiracy based upon
discriminatory animus under 42. U.S.C. § 1985(3).
(Order dated June 1, 1999.) In addition, pursuant to Hill's
decision not to pursue against Algor the following claims, the
Court dismissed these claims with prejudice:
(1) First Cause of Action (42 U.S.C. § 1983): those
parts which allege a violation of Hill's:
i. Eighth Amendment right to protection from cruel
and unusual punishment;
ii. Sixth Amendment right to be informed of the
nature and cause of the accusations against
iii. Fourth Amendment right to be protected against
punishment disproportionate to any crime;
(2) Third Cause of Action (42 U.S.C. § 1983);
(3) Fourth Cause of Action (42 U.S.C. § 1983);
(4) Sixth Cause of Action (Negligence). Order dated
June 1, 1999.
Thus, the remaining claims against Algor which survived summary
judgment and may proceed to trial include:
(1) First Cause of Action (42 U.S.C. § 1983): that
part alleging violation of Hill's Fourth and
Fourteenth Amendment right to protection from false
arrest and excessive force;
(2) Fifth Cause of Action alleging common law
(3) Ninth Cause of Action alleging common law false
On March 22, 1999, the Court granted Hill's motion to amend his
complaint for a second time, and the following day Hill filed a
second amended complaint. The second amended complaint adds
Meyer, Kwap, Makuka, and John Does 1-6 as defendants. It alleges
that defendants violated 42 U.S.C. § 1983 and
42 U.S.C. § 1985(3). It also contains state law causes of action for
assault, negligence, respondeat superior, malicious prosecution, and
false arrest. On October 8, 1999 defendants Meyer, Kwap, and Makuka
filed the summary judgment motion that is presently before the
The Court has jurisdiction over this matter pursuant to
28 U.S.C. § 1331 and 1367.
B. SUMMARY JUDGMENT STANDARD
The standard for granting a motion for summary judgment is a
stringent one, but it is not insurmountable. Fed.R.Civ.P. 56
provides that summary judgment may be granted only when 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." Serbin v. Bora Corp., 96 F.3d 66, 69 n. 2 (3d
Cir. 1996). In deciding whether there is a disputed issue of
material fact, the court must grant all reasonably inferences
from the evidence to the non-moving party. 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 v.
Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91
L.Ed.2d 202 (1986).
Supreme Court decisions mandate that a summary judgment motion
must be granted unless the party opposing the motion "provides
evidence `such that a reasonable jury could return a verdict for
the nonmoving party.'" Lawrence v. National Westminster Bank New
Jersey, 98 F.3d 61, 65 (3d Cir. 1996) (quoting Anderson, 477
U.S. at 248, 106 S.Ct. 2505). Once the moving party has carried
its burden of establishing the absence of a genuine issue of
material fact, "its opponent must do more than simply show that
there is some metaphysical doubt as to material facts."
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The non-moving
party must "make a showing sufficient to establish the existence
of [every] element essential to that party's case, and on which
that party will bear the burden of proof at trial." Serbin, 96
F.3d at 69 n. 2 (quoting Celotex Corp. v. Catrett,
477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)); see also
Quiroga v. Hasbro, Inc., 934 F.2d 497, 500 (3d Cir. 1991)
(declaring that non-movant may not "rest upon mere allegations,
general denials, or . . . vague statements"). Thus, if the
non-movant's evidence is merely "colorable" or is "not
significantly probative," the court may grant summary judgment.
Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505.
C. COUNT ONE: VIOLATION OF 42 U.S.C. § 1983
In count one of his second amended complaint, Hill alleges that
defendants violated 42 U.S.C. § 1983 by infringing on his Fourth
and Fourteenth Amendment rights to protection from false arrest
and excessive force. See Second Am. Compl. ¶ 20.
42 U.S.C. § 1983 provides in relevant part as follows:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
or Territory or the District of Columbia 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
This statute "is not itself a source of substantive rights, but a
method for vindicating parts of the United States Constitution
and federal statutes that it describes." Alexander v. Whitman,
114 F.3d 1392, 1400 (3d Cir.), cert. denied, 522 U.S. 949, 118
S.Ct. 367, 139 L.Ed.2d 286 (1997) (quoting Baker v. McCollan,
443 U.S. 137, 145 n. 3, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979)).
1. False Arrest
An arrest that is made without probable cause violates the
Fourth Amendment. See Skevofilax v. Quigley, 586 F. Supp. 532,
545 (D.N.J. 1984). The Third Circuit has defined probable cause
Probable cause to arrest requires more than mere
suspicion; however, it does not require that the
officer have evidence
sufficient to prove guilt beyond a reasonable doubt.
Rather probable cause to arrest exists when the facts
and circumstances within the arresting officer's
knowledge are sufficient in themselves to warrant a
reasonable person to believe that an offense has been
or is being committed by the person to be arrested.
Id. 71 F.3d 480
Hill was charged with obstruction of justice pursuant to
N.J.S.A. § 2C:29-1, which states in pertinent part:
A person commits an offense if he purposely
obstructs, impairs or perverts the administration of
law or other governmental function or prevents or
attempts to prevent a public servant from lawfully
performing an official function by means of
intimidation, by force, violence or physical
interference or obstacle, or by means of any
independently unlawful act.
N.J.S.A. § 2C:29-1. Hill alleges that Meyer and Algor arrested
him for obstruction of justice without probable cause,
effectuating a false arrest.
In the June Opinion, the Court denied Algor's motion for
summary judgment as to Hill's false arrest claim, noting
significant differences in the accounts given by Hill and
defendants Algor and Meyer regarding the events leading up to
Hill's arrest. See Op. and Order dated June 1, 1999.
Specifically, the Court noted the following matters in dispute:
1. Algor and Meyers both testified in their
respective depositions that "Hill made threatening
movements while in proximity to the crime scene.
These movements included reaching down into his
waistband and failing to retreat when instructed to
do so by the officers on the scene." (citations
2. Hill testified in his deposition that he was
"moving" but "does not address the troopers'
allegation that Hill repeatedly moved his hands
toward his waistband. Hill attempts to explain away
this allegation in his opposition brief by arguing
that `the allegation that Mr. Hill moved his arms
about is a completely natural action for someone
requesting medical assistance.'" (citation
The Court went on to explain why summary judgment was not proper:
While it is clear that Hill failed to retreat when
asked to do so — either once or multiple times — it
is unclear whether Hill responded to the officers'
requests by moving closer to the crime scene or
simply by remaining stationary. This uncertainty is
the result of confusion regarding what Hill meant by
his admission that he was "moving"; he could have
been moving just his arms as he yelled for someone to
call an ambulance and/or he could have been moving
his feet. It is also unclear whether Hill reached
down to his waistband, as Algor and Meyer allege, or
whether Hill simply flailed his arms about as part of
the emotional outburst he was purportedly having.
Op. dated June 1, 1999 at 9.
Meyer, who was added as a defendant in Hill's second amended
complaint, now seeks summary judgment as to the false arrest
claim, asserting identical arguments as those launched by Algor
in his summary judgment motion, namely that there existed
probable cause to arrest Hill. Thus, for the same reasons stated
in the June Opinion denying Algor's motion for summary judgment,
Meyer's motion as to Hill's false arrest claim also will be
2. Excessive Force
a. Defendant Meyer
Hill alleges that defendant Meyer used excessive force in
effectuating his arrest. "In addressing an excessive force claim
brought under § 1983, analysis begins by identifying the specific
constitutional right allegedly infringed by the challenged
application of force." Graham v. Connor, 490 U.S. 386, 109
S.Ct. 1865, 104 L.Ed.2d 443 (1989). Relevant to this inquiry is
the status of the plaintiff at the time of the alleged violation.
In Graham, the Supreme Court made explicit that the Fourth
Amendment governs excessive force claims arising out of an arrest
or investigatory stop. 490 U.S. at 395, 109 S.Ct. 1865. As Hill's
excessive force claim against Meyer arises from events occurring
during his arrest, a Fourth Amendment analysis is appropriate.
Under the Fourth Amendment, whether an officer used excessive
force is assessed by the "objective reasonableness" of that
officer's conduct. Graham v. Connor, 490 U.S. 386, 109 S.Ct.
1865, 104 L.Ed.2d 443 (1989). Whether the force used to
effectuate an arrest is reasonable depends upon "the facts and
circumstances of each particular case, including the severity of
the crime at issue, whether the suspect poses an immediate threat
to the safety of the officers or others, and whether he is
actively resisting arrest or attempting to evade arrest by
flight." Id. at 396, 109 S.Ct. 1865. The reasonableness of the
force used "must be judged from the perspective of a reasonable
officer on the scene, rather than with the 20/20 vision of
In the June Opinion, the Court denied Algor's motion for
summary judgment on the excessive force claim, finding genuine
issues of material fact as to "the actual events leading up to
Hill's arrest, the extent of Hill's resistance to arrest, and the
amount of force that Algor used in arresting Hill." (Op. dated
June 1, 1999 at 12.) For the same reasons expressed in this
opinion, Meyer's motion for summary judgment likewise fails.
As discussed in Part C.1 above, a genuine issue of material
fact exists regarding Hill's conduct and physical actions prior
to his arrest. Therefore, it is unclear whether Hill posed an
immediate threat to the safety of the officers on the scene and
Moreover, as outlined in the June Opinion, recreated below, a
genuine dispute exists concerning whether Hill resisted arrest:
Q: You [Algor] and Trooper Meyer did use physical
force to apprehend my client; is that correct?
A: Correct, sir.
B: Basically your bare hands?
A: Yes, sir.
I tried to grab and tried to restrain [Hill] to get
his hands behind his back.
A: Where did you grab him?
A: I grabbed him on his arm while he was flailing.
His left arm was to Trooper Meyer and the right was
toward my side. Trooper Meyer was able to get to
the left and I brought it down him, behind at which
time I came around to grab the left and employed a
wrist lock technique to get his arm. I took my
cuffs out, put the cuffs on and tried to get him to
come down to the ground, and he was still flailing
around, and we were able to like trip him and him
get him to the ground at that point. So he went
down and he was laying face down. I had his left
hand behind his back and that's when the arm and
the legs kept kicking and the right arm was trying
to punch at us. We tried to grab his right arm. His
right arm would go back inside so we couldn't get
his wrist to get it
back, twisted behind his back to finish the
Q: Are you saying that you lost your grip on his
A: No, sir. He kept pulling away.
Q: So you never lost your grip on his right arm?
A: I never had a grip of his right arm.
Q: Eventually you subdued him and he was handcuffed?
A: After the blast of OC was administered by Trooper
Meyer he was still fighting, but it seemed like it
took some of the fight out of him and we were able
to finally get the right arm behind the back and
finish up the handcuffing.
Op. dated June 1, 1999 at 10-11 (citing Algor's Summ. J. Br.,
Attach. 3 at 163-165). Hill's deposition testimony contradicts
Algor's statements that Hill kicked and punched at the officers
while they were attempting to arrest him:
Q: Did you resist being arrested?
Q: Did you put up a fight with the police?
Q: Did you raise your hands and try to swing at the
Q: Did you ever try to kick any — or strike that. Did
you ever try to kick a police officer at the scene
while he was attempting to apprehend you?
Q: Did you ever punch a police officer at the scene?
Q: Did you ever pull away from any of the officers
who were attempting to handcuff you?
Id. (citing Pl.'s [Feb. 23, 1999] Opp'n Br., Ex. A at 118).
While Meyer's testimony serves to corroborate Algor's
statements,*fn5 it fails to change the Court's earlier finding
that there is a genuine issue of material fact regarding Hill's
resistance to arrest.
Finally, fact issues exist regarding the extent of force the
troopers used on Hill. Hill claims that one officer hit his face
with a gun and that while on the ground he was kicked by two
officers. See Pl.'s Ex. E. at 112, 119. Meyer denies that he or
Algor struck Hill in the face. See id. at 107. However, Meyer
does admit to using pepper spray on Hill in order to effectuate
his arrest. See id. at 105. Therefore, genuine issues exist as
to the events leading up to Hill's arrest, the degree of Hill's
resistance to arrest, and the extent of Meyer's use of force.
See Groman v. Twp. of Manalapan, 47 F.3d 628, 634 (3rd Cir.
1995) (reversing summary judgment on excessive force claim where
testimonies by plaintiff and officer differed) (citing Frohmader
v. Wayne, 958 F.2d 1024, 1025-26 (10th Cir. 1992)).
Notwithstanding these disputed facts, Meyer argues that he is
qualified immunity. To determine whether a police officer may
enjoy qualified immunity, a court must engage in a two-step
First, the court must determine whether plaintiffs
have established a constitutional claim. The court
must then determine whether the officer's conduct was
objectively reasonable given the legal rules clearly
established at that time. Only when the contours of a
right are sufficiently clear so that a reasonable
officer would understand that his conduct violates
that right will a right be considered clearly
Malignaggi v. County of Gloucester, 855 F. Supp. 74, 79 (D.N.J.
1994) (citations omitted). Meyer argues that the applicability of
qualified immunity presents a question of law for the Court to
decide while Hill insists that the Court treat the question as
one of fact. See Defs.' Br. at 37; Pl.'s Opp'n Br. at 57.
Generally, the applicability of qualified immunity is a
question of law. See Sherwood v. Mulvihill, 113 F.3d 396, 401
n. 4 (3d Cir. 1997). However, where factual issues relevant to
the determination of qualified immunity are in dispute, the Court
cannot resolve the matter as a question of law. See Karnes v.
Skrutski, 62 F.3d 485, 491 (3d Cir. 1995). The Court has already
determined that there is uncertainty regarding the events leading
up to Hill's arrest, the extent of Hill's resistance to arrest,
and the amount of force that Meyer used in arresting Hill.
Because these facts remain in dispute, the Court cannot determine
as a matter of law whether Meyer acted in an objectively
reasonable way when he allegedly used force to arrest Hill.
Therefore, the Court will deny Meyer's motion for summary
judgment with regard to the excessive force portion of Hill's
42 U.S.C. § 1983 claim.
Hill alleges that while detained at the Barracks awaiting
release defendant Makuka, in addition to others, subjected him to
excessive force.*fn6 Specifically, Hill alleges that while
handcuffed to a bench in his holding cell, state troopers came in
and hit him "with their flashlights and walkie-talkies." Pl.'s
Ex. A. at 131.
Under Graham, this Court must "identify the specific
constitutional right allegedly infringed by" the unprovoked
assault occurring during Hill's custody at the Barracks. 490 U.S.
at 394, 109 S.Ct. 1865. Hill argues that he still qualified as an
arrestee protected by the Fourth Amendment, whereas Makuka
contends Hill was a pretrial detainee, whose rights are secured
by the Fourteenth Amendment's guarantee of Due Process. The
standard for § 1983 excessive force claims governed by the
Fourteenth Amendment — that the officer's conduct "shock the
conscience" — is much higher than the "objective reasonableness"
standard imposed by the Fourth Amendment.
As stated previously, the Supreme Court in Graham held that §
1983 excessive force claims arising out of an arrest,
investigatory stop or other "`seizure' of a free person" are to
be analyzed under the Fourth Amendment. 490 U.S. at 395, 109
S.Ct. 1865. The Supreme Court defined "seizure" for Fourth
Amendment purposes as a government actor's use of "physical force
or show of authority [which] restrain[s] the liberty of a
citizen." Id. 490 U.S. at 395 n. 10, 109 S.Ct. at 1871
(citation omitted). Noting that the Due Process Clause protects
pretrial detainees against the use of excessive force amounting
to punishment, Id. (citing Bell v. Wolfish, 441 U.S. 520,
535-539, 99 S.Ct. 1861, 60 L.Ed.2d 447), the Supreme Court
acknowledged, "Our cases have not resolved the question whether
the Fourth Amendment continues to provide individuals with
protection against the deliberate use of excessive physical force
beyond the point at which arrest ends and pretrial detention
begins, and we do not attempt to answer that question today."
Id. Thus, the Supreme Court left unanswered (1) the particular
moment in time at which arrest or seizure ends and pretrial
detention begins; and (2) whether the Fourth Amendment applies
beyond arrest into the period of pretrial detention.
With regard to the line of demarcation separating arrest and
pretrial detention, the Supreme Court, prior to Graham, has
defined "pretrial detainee" as a person who has been charged but
not yet tried of a crime. Bell v. Wolfish, 441 U.S. 520, 522,
99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). In Bell, the Supreme
Court held that conditions of pretrial detention must comport
with Due Process, reasoning:
A person lawfully committed to pretrial detention has
not been adjudged guilty of any crime. He has had
only a `judicial determination of probable cause as a
prerequisite to [the] extended restraint of [his]
liberty following arrest.' Under such circumstances,
the Government concededly may detain him to ensure
his presence at trial and may subject him to the
restrictions and conditions of the detention facility
so long as those conditions and restrictions do not
amount to punishment, or otherwise violate the
Id. at 536-37, 99 S.Ct. 1861 (emphasis added). Thus, it is
clear from Bell that one who remains in detention after formal
charge and while awaiting trial is a pretrial detainee subject to
Due Process protection. The question now plaguing the courts of
appeals, however, concerns whether the starting point of pretrial
detention, as determined by the termination of a Fourth Amendment
"seizure", precedes post-charge detention as acknowledged in
Recognizing the difficulty in resolving this issue, the Third
Circuit has stated, "Although the Supreme Court has repeatedly
defined when a Fourth Amendment seizure occurs or begins, it has
not determined when that seizure ends and Fourth Amendment
protections no longer apply. We also have left open that
question." Torres v. McLaughlin, 163 F.3d 169, 174 (3rd Cir.
1998).*fn8 Moreover, while several of the other courts of
appeals have rendered decisions on this issue, clearly lacking is
a consensus. At least three circuits have declined to extend the
Fourth Amendment beyond the initial arrest or seizure. Riley v.
Dorton, 115 F.3d 1159, 1163 (4th Cir. 1997) (holding Fourth
Amendment does not apply to post-arrest conditions of custody);
Brothers v. Klevenhagen, 28 F.3d 452, 456 (5th Cir. 1994)
(finding plaintiff constituted pretrial detainee governed by Due
Process standard where he had been arrested, placed into police
custody and arresting officer had transferred him to jail cell);
Titran v. Ackman, 893 F.2d 145, 147 (7th Cir. 1990) (assuming
that "presence in the jail and the completion of the booking
marked the line between `arrest' and `detention'") and Wilkins
v. May, 872 F.2d 190, 192 (7th Cir. 1989) (holding Due Process
standard governs excessive force claims predicated on events
occurring during the period between arrest and charge).
Disagreeing with these courts, the Ninth and Tenth Circuits have
applied the Fourth Amendment to post-arrest, pre-arraignment
custody obtained without a warrant. See
Pierce v. Multnomah Co., 76 F.3d 1032, 1043 (9th Cir.) ("[T]he
Fourth Amendment sets the applicable constitutional limitation on
the treatment of an arrestee detained without a warrant up until
the time such arrestee is released or found to be legally in
custody based upon probable cause for arrest."); Austin v.
Hamilton, 945 F.2d 1155, 1160 (10th Cir. 1991) (overruled on
other grounds). In line with the Ninth and Tenth Circuits, the
Second Circuit has concluded, "the Fourth Amendment standard
probably should be applied at least to the period prior to the
time when the person arrested is arraigned, or formally charged,
and remains in the custody . . . of the arresting officer."
Powell v. Gardner, 891 F.2d 1039, 1043 (2nd Cir. 1989).
The Ninth and Tenth Circuits in Pierce*fn9 and
Austin,*fn10 respectively, held that the Fourth Amendment
governs § 1983 claims alleging use of excessive force during a
person's post-arrest, warrantless detention awaiting arraignment
or determination of probable cause.*fn11 In reaching this
conclusion, both courts sought guidance from case law addressing
the constitutional limits of the duration or legality of
post-arrest custody. Pierce, 76 F.3d at 1043; Austin, 945
F.2d at 1160 (overruled on other grounds).*fn12 Noting that the
constitutionality of prolonged detention is assessed under the
standard of the Fourth Amendment, the Ninth and Tenth Circuits
concluded the Fourth Amendment also must apply to determine the
condition of such custody. Pierce, 76 F.3d at 1043; Austin,
945 F.2d at 1160 (overruled on other grounds).
This Court agrees with the Ninth and Tenth Circuits that a
person continues to be an arrestee subject to Fourth Amendment
protection through the period of post-arrest but prearraignment
detention. Stated differently, this Court declines to extend
pretrial detention beyond the circumstances in Bell, concluding
that such detention does not begin until an arrestee is at least
formally charged and his release or continued detainment is
determined. This conclusion logically follows from the line of
cases addressing extended warrantless detention after arrest.
See supra n. 12. In addition, defining pretrial
detention as beginning with formal charge or initial presentment
serves practical purposes. It creates a bright line, thereby
affording the courts and law enforcement with much needed clarity
as to the precise constitutional standard governing police
conduct.*fn13 As Hill's assault at the Barracks occurred before
he was formally charged or taken before a judicial officer, this
Court holds that Hill was an arrestee whose condition of custody
is governed by the Fourth Amendment's "objective reasonableness"
Moreover, the Court notes that an unprovoked assault, if proved
by Hill, would constitute excessive force under both the Fourth
Amendment and Due Process standards in that it clearly is
"objectively unreasonable" conduct that is "shocking to the
conscience." Thus, were Hill considered to be a pretrial
detainee, the record would support a finding that he suffered
excessive force in violation of his Fourteenth Amendment right to
The next issue for the Court's attention concerns whether
sufficient evidence exists for a jury to find that Makuka
participated in Hill's assault. Hill alleges that state troopers
came into his cell and without provocation began beating him with
their flashlights and walkie-talkies. Hill concedes, however,
that he cannot identify any of his attackers, because he "put
[his] head down:"
Q: So now you get into the [Bellmawr] station and
they take you in a room and they handcuff you?
Q: To what?
A: A bench.
Q: On either side of you?
A: No. The bench is — it was a little bench. It was
like a wall. It was a wall on both sides of the
bench. It wasn't — it was close. The wall wasn't
far away, it was close, and I was handcuffed from
each wall, and the door just kept opening up and
they was coming in and hitting me with their
flashlight and walkie-talkies.
Q: To what were you handcuffed on the wall?
A: To a little round metal thing.
Q: Who came in hitting you?
A: State troopers.
Q: Do you know their identity?
A: No. I put my head down. That's all I could do.
Q: Again, let me direct your attention to the officer
who's sitting at the same table across from you.
Was this any one of the officers who struck you
that night at the Bellmawr Barracks?
A: I put my head down.
Q: So you wouldn't know whether or not he was; is
A: I wouldn't know.
Pl.'s Ex. A at 130-131. In light of Hill's inability to identify
the assaulting officers, Makuka insists that no reasonable jury
could find by a preponderance of the evidence that he was one of
the assailants, and therefore summary judgment must be granted in
his favor. The Court agrees.
In Anela v. City of Wildwood, 790 F.2d 1063, 1068 (3d Cir.
1986), the Third Circuit upheld a directed verdict in favor of
individual defendant officers in a § 1983 action where the
plaintiffs could not identify the officers alleged to have
violated their constitutional rights.*fn15 The plaintiffs in
Anela, six young women, were arrested one night with four other
individuals for violating Wildwood's anti-noise ordinance. Id.
at 1064. The ten arrestees were taken to the police station where
they were detained. Nine of the ten arrestees were women. The one
male arrestee was released after paying the sum of $200. He later
returned with $700 and unsuccessfully attempted to have the
others released on bail. The female arrestees, including the
plaintiffs, were detained in holding cells until 11:00 a.m. the
next morning. Id. Plaintiffs filed § 1983 claims against the
City of Wildwood, its chief of police, and several Wildwood
police officers, alleging inter alia "that the release of the
one male arrestee on bail violated their rights to equal
protection."*fn16 Id. at 1064-65.
The district court dismissed several of plaintiffs' claims,
including the equal protection count against the City of
Wildwood. Thereafter, the case proceeded to trial on two issues,
one of which was the equal protection claim against the
individual officers. Id. at 1065.
At trial, plaintiffs admitted into evidence police log sheets
indicating which officers were on duty at the police station on
the night in question. Id. at 1067. Plaintiffs did not present
any evidence, however, identifying which officers were
responsible for their detention. Id. At the close of
plaintiffs' case in chief, the defendant officers moved for a
directed verdict under Fed.R.Civ.P. 50 on the equal protection
claim, stating as grounds that "plaintiffs had not specifically
identified the individuals who booked them and locked them up."
Id. at 1065. Agreeing with the officers, the district court
granted a directed verdict in their favor, dismissing plaintiffs'
equal protection claim. Id. at 1068.
On appeal, the Third Circuit upheld the directed verdict,
"[the police log sheets] at most establish that the
six individual defendants, among others, were on duty
during the shifts in question. The evidence
establishes that . . . the arresting officers did not
participate in booking the plaintiffs. Two defendants
were civilian dispatchers, and no evidence suggests
that the dispatchers had duties with respect to
booking and detention. There is evidence that the
other individual defendants were on duty, but no
evidence as to where or in what capacity. Looking at
the evidence of record in the light most favorable to
plaintiffs, we conclude that the trial court properly
granted the motion for a directed verdict in favor of
the individual defendants."
Hill, like the plaintiff in Anela, cannot identify the
officers alleged to have subjected him to excessive force. Hill
argues, however, that sufficient circumstantial evidence exists
for a reasonable jury to find that defendant Makuka is "more
likely than not one of the individuals who assaulted [him] while
he was in the holding cell." Pl.'s Br. at 39. Essentially, Hill's
circumstantial case is the following:
1. Evidence exists that Hill was not bleeding at the
time he was placed in the holding cell at the
2. Hill testified in his deposition that he was
beaten in the holding cell by a group of unknown
3. Defendant Makuka was alone with Hill during the
period immediately before Investigator Bentham
entered the holding cell;
4. In his deposition, Bentham stated that when he
walked into Hill's cell, he noticed Hill had blood
on his hands, head, and clothing. Bentham also
testified that Hill had a cut near his hairline and
was holding a Kleenex to his head;
5. Defendant Makuka stated in his deposition that he
cannot recall any blood and/or injuries described
6. Assistant Prosecutor James Conley recalled a young
black male in the Bellmawr holding cell yelling and
holding something over his eye;*fn17
7. During his deposition Hill recalled that a
sergeant had entered his cell, left without giving
him some water, and then several individuals came
in and struck him over the head with flashlights
The Court finds that taking the above facts and all reasonable
inferences therefrom in a light most favorable to Hill, the
record remains speculative as to Makuka's involvement in the
alleged beating. At most, the above deposition accounts place
Makuka with Hill sometime after the beating took place. While
this fact, when joined with Bentham's testimony disputing
Makuka's account that Hill was not bleeding, might support the
claim against Makuka for failure to provide medical care,*fn18
it fails to establish that Makuka was more likely than not one of
the assaulting officers. Furthermore, although Makuka spent time
alone with Hill before he was taken into another room to give a
statement, Hill does not assert that Makuka physically abused him
during this time.*fn19
Therefore, summary judgment will be
granted as to that portion of Hill's claim alleging that Makuka
personally subjected him to excessive force.*fn20
D. COUNT FOUR: VIOLATION OF 42 U.S.C. § 1983 — SUPERVISORY
Hill alleges that Makuka and Kwap are personally liable for his
assault at the Barracks by the unidentified state troopers.*fn21
"Traditional concepts of respondeat superior do not apply to
civil rights actions arising under 42 U.S.C. § 1983." Bieros v.
Nicola, 860 F. Supp. 226, 234 (E.D.Pa. 1994). A supervisory
official may be personally liable under § 1983, however, where
the official either "directed others to violate [plaintiff's
constitutional rights] or had knowledge of and acquiesced in his
subordinates' violations." Baker v. Monroe Twp., 50 F.3d 1186
1190-91 (3d Cir. 1995). Although this standard requires that the
supervisory official have actual knowledge of the misconduct,
such knowledge "can be inferred from circumstances other than
actual sight." Id.
Hill presents no evidence that Makuka directed his assault by
the state troopers. Thus, the Court addresses only whether
sufficient evidence exists for a reasonable jury to find that
Makuka knew of and acquiesced in the alleged assault. After
carefully reviewing the record and drawing all reasonable
inferences therefrom in favor of Hill, the Court concludes that
summary judgment should be granted for Makuka on the § 1983
supervisory liability claim.
In his deposition, Hill testified that a sergeant, who had
offered him a glass of water, entered the holding cell and exited
just before the group of unidentified state troopers came in and
assaulted him. Pl.'s Ex. A at 56. While undisputed that Makuka
was a sergeant at the Bellmawr Barracks on the night in question,
Defs.' Ex. 6 at 138-39, it is also uncontested that Makuka was
off-duty on this night but then summoned to the Barracks to
interview Hill regarding the events surrounding Trooper Baker's
shooting. Id. at 141. Hill presents no evidence that Makuka was
the sergeant arguably connected to the unprovoked beating. Hill
admits he spent some time alone with Makuka in his cell and an
additional approximate one hour forty-five minutes with him in
the interrogation room. (Pl.'s Br. at 6-8.) Notwithstanding ample
opportunity to observe Makuka, Hill cannot identify him as the
mysterious sergeant who left the cell before his assailants
entered.*fn22 As Hill has proffered no evidence, direct or
circumstantial, from which the Court can infer that Makuka had
actual knowledge of and acquiesced in the alleged attack on Hill,
summary judgment will be granted.*fn23
2. Defendant Kwap
It is undisputed that Kwap was the Barracks shift supervisor on
the night of Hill's detention. Defs.' Ex. 5 at 35. The Bellmawr
Barracks is a state trooper facility with only one holding cell.
Id. at 44. Sharing this facility with the Bellmawr personnel
was the Camden City Initiative, with which outfit troopers Algor,
Meyer and Makuka belonged. Id. at 52.
Kwap states in his deposition that the Initiative, a separate
state trooper entity with separate facilities and its own
detectives, used the Barracks as a processing center. Id. In an
attempt to shield himself from supervisory liability resulting
from Hill's alleged assault, Kwap insists, and Hill does not
dispute, that Kwap was neither involved with the Initiative nor
any subordinates who were part of the Initiative. Id. Although
no evidence has been presented as to the specific outfit, be it
the Initiative or Bellmawr, to which the assaulting troopers
belonged, such a distinction fails to be legally significant. The
Barracks is a New Jersey State Trooper facility with only one
holding cell. Standard operating procedure mandates that the
shift sergeant be notified when a detainee is placed in the
holding cell. Id. at 45. Also with respect to the holding cell,
the relieving shift supervisor is advised of what has occurred
therein during the previous shift and what jobs remain for the
upcoming shift. Id. at 44. Thus, it is clear that a portion of
Kwap's responsibilities as shift supervisor of the Barracks
included overseeing the condition and use of the holding
cell.*fn24 Id. at 43-45. For purposes of § 1983 supervisory
liability, the Court therefore concludes that Kwap, by virtue of
his position as acting shift supervisor of the Barracks, assumed
a supervisory role with respect to Hill's alleged beating by
state troopers occurring in the Barracks' holding cell.
Now that it has been determined that Kwap qualifies as a
supervisor subject to supervisory liability under § 1983, the
next issue for resolution is whether Kwap knew of and acquiesced
in the assault of Hill.*fn25 Arguing for summary judgment, Kwap
claims that while on duty, he had no knowledge that Hill was
being detained in the holding cell, much less that troopers were
beating him with flashlights and walkie-talkies. Kwap's own
testimony, however, undercuts his assertion that he did not know
of Hill's detention at the Barracks. First, Kwap admits that it
was standard procedure for him, as shift supervisor, to be
informed when detainees were placed inside the holding cell.
Id. at 45. Moreover, inconsistent with his insistence that he
"did not know there was someone in the holding cell," Id. at
88, Kwap recalls that "there were several, several people brought
in[to the Barracks] by different subjects regarding the shooting
of Trooper Baker." Id. at 76. Although "several people were
brought in[to the Barracks]" on the night in question, Kwap
claims that he did not look into the holding cell, Pl.'s Ex. G at
89, and does not remember walking past the cell, Id. at 105,
which was centrally located approximately 30 feet from his desk.
Pl.'s Stmt. of Material Facts at 6.*fn26 Kwap admits, however,
that had he "known that a prisoner was in the cell, [he] would
have periodically checked on his status." Id. at 88.
Moreover, in explaining the standard procedure for bringing in
detainees, Kwap stated that the detainee would be taken into the
holding cell and handcuffed to the bench. Defs.' Ex. 5 at 37;
Pl.'s Ex. G at 66. Access to the cell required a key, which was
kept either inside the shift supervisor's desk or on a hook
underneath the desk. Pl.'s Ex. G at 66. While Kwap does not
recall giving anyone the key to the cell on the night of Hill's
detention, it is undisputed that officers had access to the cell.
Both Makuka and Bentham recall the door to Hill's cell being open
when they entered to take Hill to the interrogation room, Pl.'s
Ex. G at 101; Ex. L at 26, and that a number of people were
standing in the hallway to the cell. Defs.' Ex. 6 at 179.; Pl.'s
Ex. L at 27. Makuka further described the atmosphere at the
Barracks that night:
Hundreds [were] in the Barracks [sic] I'm not sure,
it was very crowded. It was, it was a subdued
atmosphere. People were talking in hushed tones. We
had numerous people there of importance. The Colonel
of the state police was there. The [sic] I believe
from the Attorney General's office were there. The
prosecutor was probably there although I don't know
who he was.
Ex. 6 at 176-77. Taking all of the above in a light most
favorable to Hill, a reasonable jury could find that Kwap knew of
Hill's detention, further creating a reasonable inference that
Kwap had knowledge of and acquiesced in Hill's assault. See
Baker v. Monroe Twp., 50 F.3d 1186
, 1193-94 (3rd Cir. 1995)
(reversing summary judgment and remanding for trial § 1983
supervisory liability claim where there was sufficient evidence
to create reasonable inference that supervisor, who was not
present during alleged use of excessive force by subordinates,
knew of and acquiesced in such treatment); Walmsley v. City of
Philadelphia, 872 F.2d 546
, 552 (3rd Cir. 1989).
Finally, there is no meaningful dispute regarding Kwap's
entitlement to qualified immunity. The right to be free from an
unprovoked beating while in police custody is clearly
established. See e.g., Thompson v. Montemuro, 383 F. Supp. 1200,
1203 (E.D.Pa. 1974). Summary judgment therefore will be denied.
E. COUNT THREE: FAILURE TO PROVIDE MEDICAL CARE
Hill asserts against Makuka and Kwap § 1983 claims for failure
to provide him with medical care ("medical care claims") during
his custody at the Barracks. In light of this Court's finding
that Hill was an arrestee during such custody, Hill now seeks
application of the Fourth Amendment "objective reasonableness"
standard to his medical care claims. Bound by Groman v.
Manalapan, this Court must deny Hill's request and apply the
"deliberate indifference" standard to these claims.
In Groman, the Third Circuit applied the "deliberate
indifference" standard to plaintiff's § 1983 medical care claim
arising out of events occurring during his post-arrest detention
at the police station. In utilizing this standard, the court of
appeals stated, "[f]ailure to provide medical care to a person in
custody can rise to the level of a constitutional violation under
§ 1983 only if that failure rises to the level of deliberate
indifference to that person's serious medical needs." Groman v.
Township of Manalapan, 47 F.3d 628, 637 (3rd Cir. 1995). The
court of appeals, however, did not define "custody" nor otherwise
indicate where along the custodial continuum the deliberate
indifference standard applies. However, the standard has been
applied to § 1983 medical care claims arising out of one's
arrest. In Walmsley v. City of Philadelphia, the court of
appeals reversed a directed verdict, concluding that a jury could
reasonably infer that certain officers were deliberately
indifferent to plaintiff's medical needs during the course of his
arrest and transport to the station. 872 F.2d 546, 552-53 (3d
Cir. 1989) (emphasis added). Groman and Walmsley therefore
provide that the deliberate indifference standard governs such
claims arising out of one's arrest and post-arrest detention.
Accordingly, Hill's medical care claims will be assessed
according to the deliberate indifference standard.*fn27
Makuka and Kwap argue that Hill cannot show that they were
deliberately indifferent to his serious medical needs. Defs. Br.
at 28. First, the defendants argue there is no genuine dispute as
to the seriousness of Hill's injuries.*fn28 A medical
need is serious if it is "one that has been diagnosed by a
physician as requiring treatment or one that is so obvious that a
lay person would easily recognize the necessity for a doctor's
attention." Monmouth Co. Correctional Institutional Inmates v.
Lanzaro, 834 F.2d 326, 347 (3rd Cir. 1987). Moreover, where
plaintiff's injuries turn out not to be serious, liability may
still lie where "at the time of the alleged violation the threat
of serious injury . . . existed" and therefore "[the officers
had] reason to suspect [the injuries were] serious." Lattany v.
Four Unknown U.S. Marshals, 845 F. Supp. 262, 268 (E.D.Pa. 1994).
According to Bentham, Hill had "a gash on his head," Pl.'s Ex.
L at 31, and had blood on his head, hands, and clothing. Id. at
28. Bentham further recalls seeing some blood on the bench to
which Hill was handcuffed. Id. at 29. Were the jury to believe
Bentham's account of Hill's injuries, they could conclude that
Hill's gash to the head is the type of injury that a lay person
easily would recognize as requiring medical treatment.
Furthermore, Hill testified that upon release from the Barracks
he checked into Cooper Hospital where he received stitches in his
head. Defs.' Ex. 1 at 217. Reviewing the record in a light most
favorable to Hill, a jury could find that Hill sustained serious
injuries warranting medical treatment.
Both Makuka and Kwap next contend that Hill has presented no
evidence which indicates they were deliberately indifferent to
his medical needs. Defs.' Reply Br. at 16. The Court will address
each defendant in turn.
Makuka asserts that he did not perceive Hill as having any
serious injuries, id., and that he saw no blood on Hill's
person or clothing. Pl.'s Ex. 6 at 209. In his deposition, Makuka
admits that while he saw an injury about [Hill's] face, it was
the sort of "minor abrasion . . . that if my children were to
have such an injury, I would say get back in the game." Id. at
185. It is undisputed that Makuka was in Hill's holding cell
immediately before Bentham entered the cell to take Hill to the
interrogation room. It is at this point that Bentham observed the
gash in Hill's head and blood on his head, hands, and clothing.
Determining Makuka's credibility is an issue for the jury. Given
the apparent inconsistency between Makuka and Bentham's
testimonies concerning Hill's physical condition, a reasonable
jury could disbelieve Makuka's testimony, finding that he was
indeed aware of Hill's serious injuries. Furthermore, it is
undisputed that Makuka did not offer to render medical aid to
Hill.*fn29 Thus, were a jury to find that Makuka did perceive
the seriousness of Hill's injuries, it could further find that he
was deliberately indifferent to those injuries. Summary judgment
will be denied.
Insisting that he was unaware that Hill was being detained at
the Barracks on the night in question, Kwap argues that he could
not have been deliberately indifferent to Hill's injuries. The
Court already has determined that genuine issues exist as to
Kwap's awareness of Hill's detention and alleged beating. See
supra Part D.2. Were a jury to find that Kwap acquiesced in
Hill's assault, it could further find that he was aware of Hill's
injuries resulting from the assault. Walmsley, 872 F.2d at
552-53. Therefore, summary judgment will be denied.*fn30
F. COUNT FIVE: ASSAULT
In count five of the second amended complaint, Hill alleges
that Meyer "wilfully, wantonly and intentionally assaulted and
battered [him]" and that "[a]s a direct and proximate result of
the aforesaid assault and battery, [he] sustained severe
injuries" from which he has suffered and will continue to suffer
in the future. Second Am. Compl., ¶¶ 34, 35. When effecting an
arrest, a police officer may use such force as is reasonably
necessary under the circumstances. See State v. Williams,
29 N.J. 27, 148 A.2d 22, 29 (1959). To determine whether the force
used was excessive, it is necessary to examine "the facts as they
reasonably appeared to the officer at the time of the
occurrence." Id. Where a police officer uses excessive force in
effectuating an arrest, that officer may be liable for assault
As the Court has already indicated, there is uncertainty
regarding the amount of force that Meyer used in arresting Hill.
See supra Part C.2. There is also uncertainty regarding the
actual events leading up to Hill's arrest and the extent of
Hill's resistance to arrest, making it impossible for the Court
to determine at this time what amount of force would have been
reasonable for Meyer to use. See id.
Meyer argues that he enjoys immunity from Hill's state law
claims pursuant to the New Jersey Tort Claims Act, specifically
N.J.S.A. 59:3-3. See Defs.' Br. at 38. This statute provides
that "[a] public employee is not liable if he acts in good faith
in the execution or enforcement of any law" but prohibits
exoneration "from liability for false arrest or false
imprisonment." N.J.S.A. 59:3-3. The "objective reasonableness"
standard that is used to determine whether a defendant enjoys
qualified immunity from actions brought pursuant to
42 U.S.C. § 1983 is used to determine questions of good faith arising under
N.J.S.A. 59:3-3. See Lear v. Township of Piscataway,
236 N.J. Super. 550, 566 A.2d 557, 558-59 (1989). Therefore, the same
uncertainty that prevents the Court from determining as a matter
of law whether Meyer enjoys qualified immunity with regard to
Hill's 42 U.S.C. § 1983 excessive force claim also prevents the
Court from determining as a matter of law whether the New Jersey
Tort Claims Act shields Meyer from liability for allegedly
Moreover, Meyer is not entitled to any immunity under the New
Jersey Tort Claims Act if he engaged in "willful misconduct" when
he allegedly used excessive force to arrest Hill. See N.J.S.A.
59:3-14 (The New Jersey Tort Claims Act does not shield a public
employee from liability "if it is established that his conduct
was outside the scope of his employment*fn31 or constituted a
crime, actual fraud, actual malice or willful misconduct.").
Willful misconduct is "`the commission of a forbidden act with
actual (not imputed) knowledge that the act is forbidden'. . . .
[I]t requires much more than an absence of good faith and `much
more' than negligence." PBA Local No. 38 v. Woodbridge Police
Dept., 832 F. Supp. 808, 830 (D.N.J. 1993) (quotation omitted).
As there exists a genuine issue of material fact regarding
whether Meyer engaged in willful misconduct, the Court cannot
determine as a matter of law whether the New Jersey Tort Claims
Act shields Meyer from liability for his actions. Consequently,
the Court will deny Meyer's motion for summary judgment with
regard to count five of Hill's second amended complaint.
G. COUNT VII: RESPONDEAT SUPERIOR
Hill asserts a respondeat superior claim against Kwap as the
Barracks shift supervisor, for his alleged assault by state
troopers. Hill's theory of liability is misplaced, however, as
respondeat superior lets a cause of action lie against an
employer, on the basis of vicarious liability, for the actions of
its employees. See e.g., Abbamont v. Piscataway Twp. Bd. of
Educ., 138 N.J. 405, 650 A.2d 958, 963 (1994). As Hill cites no
authority extending this doctrine to hold a supervisor
vicariously liable for the conduct of his subordinates, this
claim is dismissed.*fn32
H. COUNT NINE: MALICIOUS PROSECUTION AND FALSE ARREST
Hill alleges that Meyer falsely arrested and maliciously
prosecuted him. See Second Am. Compl., ¶ 46. Hill claims that
the charges against him were groundless. See id., ¶ 47. He
further claims that his arrest was made "with malice, for
improper purposes and with reckless disregard of the total
absence of probable or reasonable causes [sic] for such charges."
Id., ¶ 48.
1. False Arrest
A plaintiff proves a false arrest claim by "showing that the
plaintiff's liberty was unlawfully constrained as a result of
force or threat of force, on the part of a defendant." Roth v.
Golden Nugget Casino/Hotel, Inc., 576 F. Supp. 262, 265 (D.N.J.
1983) (citing New Jersey law). If the defendant proves that he
had probable cause to arrest the plaintiff, then the plaintiff's
false arrest claim fails. See Orsatti v. N.J. State Police,
71 F.3d 480, 482 (3d Cir. 1995). The Court has already determined
that there exist genuine issues of material fact regarding
whether Algor and Meyer had probable cause to arrest Hill. See
supra Part C. Therefore, the Court will deny Meyer's motion for
summary judgment with respect to the false arrest claim.*fn33
2. Malicious Prosecution
To prove malicious prosecution under New Jersey law, the
following elements must be present:
(1) a criminal proceeding must have been instituted
or continued by the defendant against the plaintiff;
(2) terminated in favor of the accused;
(3) with absence of probable cause for the charge;
(4) with malice (which may be inferred from lack of
probable cause) or primary purpose other than
bringing the offender to justice.
Voytko v. Ramada Inn of Atlantic City, 445 F. Supp. 315, 322
(D.N.J. 1978). In fact, the requirement that the underlying
action must have "terminated in favor of
the accused" is a condition precedent to the institution of an
action for malicious prosecution; a cause of action for malicious
prosecution does not even accrue until the criminal proceeding
has terminated in the plaintiff's favor. See Pisano v. City of
Union City, 198 N.J. Super. 588
, 487 A.2d 1296
, 1299 (1984). By
Hill's own admission, determination of the obstruction of justice
charge against him was scheduled for October 4, 1999 in the
Camden County Courthouse. See Pl.'s Opp'n Br. at 54. Therefore,
Hill's cause of action against Meyer for malicious prosecution,
filed on March 22, 1999, ceases to be ripe. The Court will
dismiss this count of Hill's second amended complaint without
I. LIMITATION OF DAMAGES
Meyer argues that the New Jersey Tort Claims Act prevents Hill
from recovering damages for pain and suffering due to their
alleged state law violations. See Pl.'s Br. at 39. N.J.S.A.
59:9-2(d) provides as follows:
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 of permanent loss
of a bodily function, permanent disfigurement or
dismemberment where the medical treatment expenses
are in excess of $1,000.00. For purposes of this
section medical treatment expenses are defined as the
reasonable value of services rendered for necessary
surgical, medical and dental treatment of the
claimant for such injury, sickness or disease,
including prosthetic devices and ambulance, hospital
or professional nursing service.
This restriction has been justified as follows:
The limitation on the recovery of damages in
subparagraph (d) reflects the policy judgment that in
view of the economic burdens presently facing public
entities a claimant should not be reimbursed for
non-objective types of damages, such as pain and
suffering, except in aggravated circumstances — cases
involving permanent loss of a bodily function,
permanent disfigurement or dismemberment where the
medical treatment expenses are in excess of $1,000.
The limitation that pain and suffering may only be
awarded when medical expenses exceed $1,000 insures
that such damages will not be awarded unless the loss
N.J.S.A. 59:9-2 cmt.
In the June Opinion, the Court previously determined, "Hill has
failed to present evidence that he has suffered a `permanent loss
of a bodily function, permanent disfigurement or dismemberment.'"
In doing so, the Court explained:
The best evidence of a permanent injury that Hill has
offered is a statement made by Gerald Roth, D.C.
("Roth"), of the Tristate Therapy Center. In a letter
to Hill's counsel, Roth wrote that Hill has suffered
"[a] significant limitation of the musculoskeletal
system." Pl.'s Opp'n Br., Ex. O. This statement does
not, however, suggest that Hill has suffered a
"permanent loss of bodily function, permanent
disfigurement or dismemberment." The New Jersey Tort
Claims Act therefore precludes Hill from recovering
for the pain and suffering he allegedly endured as a
result of defendants' actions.
(Op. dated June 1, 1999 at 19.)*fn34
finding, the Court declined to
order at that time that Hill be denied pain and suffering
damages, explaining "if the jury determines that [the defendant]
engaged in willful misconduct, [he] will receive no protection
from the New Jersey Tort Claims Act and Hill's pain and suffering
claim may proceed." Id. For the same reasons, until a jury
ascertains whether Meyer engaged in willful misconduct, the Court
cannot determine if Hill is barred from pain and suffering
damages arising out of Meyer's alleged misconduct. See N.J.S.A.
For the reasons stated above, defendants' motion for summary
judgment is granted in part and denied in part. The Court will
enter an appropriate order.