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Herman v. City of Millville

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY


March 21, 2002

DEBBIE A. HERMAN, PLAINTIFF,
v.
CITY OF MILLVILLE, CITY OF MILLVILLE POLICE DEPARTMENT, PATROLMAN PATRICIA AIKEN, PATROLMAN CHRISTOPHER GROFF, MARIA BONILLA, SHERRY TROUT, JILLIAN BONILLA, AND JOHN DOE LAW ENFORCEMENT OFFICERS AND/OR EMPLOYEES OF THE CITY OF MILLVILLE (1-100), FICTITIOUS NAMES, JOINTLY, SEVERALLY, AND/OR IN THE ALTERNATIVE, DEFENDANTS.

The opinion of the court was delivered by: Simandle, District Judge

NOT FOR PUBLICATION

OPINION

This matter comes before the Court upon motion by defendants City of Millville, City of Millville Police Department, Patrol Officer Patricia Aiken, and Patrol Officer Christopher Groff for summary judgment against plaintiff Debbie A. Herman, and motion by defendants Maria Bonilla, on behalf of her daughter Jillian Bonilla, and Sherry Trout for summary judgment against plaintiff.

Plaintiff brings suit against defendants for having filed charges of vehicular aggravated assault, harassment, and reckless driving against plaintiff after two vehicle-related incidents that occurred on June 29, 1998, in which plaintiff allegedly accelerated her vehicle towards defendants Trout and six-year-old Jillian Bonilla to place them in fear of bodily injury, and on July 1, 1998, in which plaintiff allegedly almost hit Police Officer Patricia Aiken, who was directing traffic in an intersection. Plaintiff brings various claims against Patrolman Christopher Groff, John Doe Law Enforcement Officers and/or Employees of the City of Millville (1-100) fictitious names (hereinafter "John Doe Employees") and Patrolman Aiken, Jillian Bonilla, Maria Bonilla, and Sherry Trout, including false arrest/false imprisonment (Counts I & VI), violations of procedural and substantive due process rights under the First, Fourth, Ninth, and/or Fourteenth Amendments under 42 U.S.C. § 1983 (Counts II, X, XI), intentional and/or negligent infliction of emotional distress (Count III & VII), negligence (Counts IV & VIII), malicious prosecution (Counts V & IX), negligent training and/or supervision against City of Millville and City of Millville Police Department (Count XII), and negligence of its officers through respondeat superior liability against City of Millville and City of Millville Police Department (Count XIII). In addition, plaintiff seeks attorney's fees and costs of litigation pursuant to 42 U.S.C. § 1988. For the reasons discussed herein, the defendants' two motions for summary judgment will be granted.

BACKGROUND

This action arises out of two vehicle-related incidents that occurred on June 29, 1998, and July 3, 1998. *fn1 Def.'s Br. ¶¶ 1, 2. On June 29, 1998, defendant Sherry Trout, a clerk of the Millville Police Department, and 6-year-old defendant Jillian Bonilla, daughter of Trout's friend Maria Bonilla, a clerk/translator with the Millville Municipal Court, were walking across the Wal-Mart Store parking lot in Millville, New Jersey, when plaintiff, in a car that had been stationary in a no-parking zone, allegedly accelerated her vehicle toward Bonilla and Trout so as to place them in fear of bodily injury. (Def.'s Br. ¶ 1 & Ex. A.) On July 8, 1998, defendant Maria Bonilla, Jillian's mother, approached her supervisor Jeannie DuBois for advice on reporting the incident to authorities. (Def.'s Br. Ex. C, at 70-72.) On the advice of Ms. DuBois and Millville Municipal Court Judge Kemble Salvo, Ms. Bonilla reported the incident to Captain Harvey of the Millville Police Department, who assigned the matter to Officer Groff. (Def.'s Br. Ex. D., at 74-77.) Ms. Trout and Ms. Bonilla, gave statements to Officer Groff on July 8, 1998, indicating that the driver of the white Honda had been Debbie Herman and that the passenger had possibly been plaintiff's husband, William Herman, then Chief of Police at City of Millville Police Department. (Def.'s Br. Ex. A.) Based on these statements, Officer Groff believed he had probable cause to bring charges, and spoke with Millville Municipal Court Judge Kemble Salvo about the alleged incident, who also "found probable cause . . . and advised [that] complaint(s) could be signed and sent over to Cumberland County Prosecutor's Office." (Def.'s Br. Ex. A; Def.'s Br. Ex. E, at 78-81.) Officer Groff signed a criminal summons and complaint against plaintiff, charging her with 2 counts of vehicular aggravated assault under N.J.S.A. 2C:12-1B(1), and 2 counts of harassment under N.J.S.A. 2C:33-4. (Def.'s Br. Ex. G.) Officer Groff also prepared a complaint for reckless driving under N.J.S.A. 39:4-96, which was signed by Sherry Trout. (Def.'s Br. Ex. G.)

The second vehicle-related incident arises out of the following events. On July 3, 1998, defendant Millville Police Officer Patricia Aiken was directing traffic at the intersection of Fairton Road and Rieck Avenue in Millville, where a two-car accident had occurred moments before. (Def.'s Br. Ex. B.) Plaintiff had driven her vehicle through the intersection without incident, but ten minutes later returned and made a left turn on to Fairton Road, allegedly almost striking Officer Aiken, who had motioned for plaintiff to stop and had turned to look to determine if it was clear for plaintiff to make her turn. (Def.'s Br. Ex. B.) Officer Aiken returned to the police station and immediately reported the incident to Lieutenant Olah and requested an investigation. (Def.'s Br. Ex. B.) On July 8, 1998, Officer Aiken, having learned that no investigation had yet taken place, and being told to do one herself, prepared her investigation report. Officer Aiken also consulted with Municipal Court Clerk Jeannie DuBois and Judge Salvo, and signed a summons and complaint against plaintiff, charging her with attempting to purposely or recklessly cause bodily injury to a law enforcement officer while in the performance of her duties, in violation of N.J.S.A. 2C:12-1b(5)a. (Def.'s Br. Ex. H.)

The Honorable Thomas Hein of the Millville Municipal Court presided over the trial of Mrs. Herman on the charges stemming from the incidents of June 29, 1998 and July 3, 1998. (Def.'s Br. Ex. O.) Judge Hein determined that the two counts of harassment, two counts of vehicular aggravated assault, and reckless driving charge relating to the June 29, 1998 incident were not proved beyond a reasonable doubt, and found Mrs. Herman not guilty on those counts. (Id.) As to the July 3, 1998 incident, Judge Hein found that Mrs. Herman was guilty on a reduced charge of careless driving, and fined her $150 plus costs of $30. (Id.)

Defendants Aiken, Groff, City of Millville, and the Millville Police Department filed the present motion for summary judgment on July 3, 2001, and defendants Sherry Trout and Maria Bonilla filed their motion for summary judgment on July 3, 2001 as well.

DISCUSSION

I. 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 Lang v. New York Life Ins. Co., 721 F.2d 118, 119 (3d Cir. 1983). 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 rules 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); Meyer v. Riegel Prods. Corp., 720 F.2d 303, 307 n.2 (3d Cir. 1983), cert. dismissed, 465 U.S. 1091 (1984). 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." Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 329-30 (3d Cir. 1995) (citing Liberty Lobby, 477 U.S. at 248).

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 party "may not rest upon the mere allegations or denials of" its pleading 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). 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 (1986). If the non-movant's evidence is merely "colorable" or is "not significantly probative," the court may grant summary judgment. Liberty Lobby, 477 U.S. at 249-50.

II. Analysis

A. Malicious Prosecution and False Arrest Claims Against Officers Aiken and Groff, Maria Bonilla, Jillian Bonilla, and Sherry Trout

Defendants Aiken and Groff argue that they both had probable cause for bringing charges against plaintiff Herman, and therefore summary judgment should be granted on plaintiff's claims against them for false arrest/false imprisonment, malicious prosecution, negligence, negligent and intentional infliction of emotional distress, and violations of constitutional rights under § 1983. *fn2 Defendants Maria Bonilla and Sherry Trout also argue that they had probable cause and therefore summary judgment should be granted in their favor.

A claim for false arrest requires a showing of an "arrest or detention of the person against his or her will; and lack of proper legal authority or `legal justification.'" Mesgleski v. Oraboni, 330 N.J. Super. 10, 24 (App. Div. 2000) (quoting Barletta v. Golden Nugget Hotel Casino, 580 F. Supp. 614, 617 (D.N.J. 1984)). The existence of probable cause is a defense to false arrest if it serves to validate the arrest. See Mesgleski, 330 N.J. Super. at 24 (citing Bauer v. Borough of Cliffside Park, 225 N.J. Super. 38, 47 (App. Div.), certif. denied, 113 N.J. 330 (1988)); see also Hill v. Algor, 85 F. Supp. 2d 391, 412 (D.N.J. 2000) ("If the defendant proves that he had probable cause to arrest the plaintiff, then the plaintiff's false arrest claim fails.").

Under New Jersey law, a malicious prosecution claim may be brought if plaintiff establishes that the defendant (1) instituted proceedings (2) without probable cause and (3) with legal malice, and (4) the proceedings terminated in favor of the plaintiff. See Trabal v. Wells Fargo Armored Serv. Corp., 269 F.3d 243, 248 (3d Cir. 2001) (citing Lightning Lube v. Witco Corp., 4 F.3d 1153, 1197 (3d Cir. 1993)); see also Van Engelen v. O'Leary, 323 N.J. Super. 141, 156 (App. Div. 1999) (citing Lind v. Schmid, 67 N.J. 255, 262 (1975)), certif. denied, 162 N.J. 486 (1999). "[P]laintiff's inability to prove any of these four elements is fatal to his continued prosecution of this generally unfavored cause of action." Fleming v. United States Postal Serv., Inc., 273 N.J. Super. 526, 529 (App. Div.), certif. denied, 138 N.J. 264 (1994).

Because probable cause is an absolute defense to plaintiff's false arrest and malicious prosecution claims, see Wildoner v. Borough of Ramsey, 162 N.J. 375, 389 (2000), the central issue is whether there was probable cause, or alternatively, whether it was objectively reasonable for the officers to believe that probable cause existed at the time complaints were signed against plaintiff. Id. In determining whether there was probable cause to bring charges against Mrs. Herman for the June 29, 1998 incident, the Court looks to the statutes Mrs. Herman allegedly violated. N.J.S.A. 2C:33-4C provides that "a person commits a petty disorderly persons offense if, with purpose to harass another, he . . . [e]ngages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person." N.J.S.A. 2C:33-4C. "Probable cause exists if at the time of the arrest `the facts and circumstances within [the officers'] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the [suspect] had committed or was committing an offense.'" Wildoner, 162 N.J. at 389 (quoting Beck v. Ohio, 379 U.S. 89, 91 (1964)).

Officer Groff investigated the incident of June 29, 1998, involving plaintiff, Ms. Trout and Jillian Bonilla. In his police report, Officer Groff's report stated that

[Ms. Trout] related that as [she] and Jillian started to walk across the roadway portion of lot she heard a car coming at them and noticed it was Debbie Herman, and as vehicle passed them very closely it accelerated quickly, then left area. Sherry Trout was asked if she was certain who the driver was and answered that she is sure it was Debbie Herman, that she made eye contact with her, as well as taking note of the registration plate . . . . Sherry Trout explained that she was in fear for her and Jillian, as she does not know what accused is trying to do or capable of doing. Def.'s Br. Ex. A.

Maria Bonilla provided statements to Officer Groff after her daughter Jillian told her about the above incident on July 1, 1998. Id.; Def.'s Br. Ex. C, at 72. Maria Bonilla and Sherry Trout went to the police department to report the incident after hearing that "Ms. Herman tried to run someone else over." Mun. Ct. Tr. 1/20/99, at 90. Based on the statements provided by Sherry Trout and Maria Bonilla, Officer Groff signed a complaint against plaintiff on July 8, 1998, charging her with 2 counts of vehicular aggravated assault under N.J.S.A. 2C:12-1B(1) and 2 counts of harassment under N.J.S.A. 2C:33-4C. Sherry Trout signed a complaint for one count of reckless driving under N.J.S.A. 39:4-96.

Officer Aiken investigated and prepared a report on the vehicle-related incident of July 3, 1998, involving Mrs. Herman. In her report, Officer Aiken stated:

As the vehicle approached from the east and I was between the accused vehicle and the disabled vehicle. As the vehicle approached I motioned for it to stop and turned to look in the eastbound lane of traffic to determine if it was clear for the accused vehicle to make a left hand turn on to Fairton Rd. While my back was to the vehicle I felt the vehicle pass behind me and bent my knees to avoid being struck. I then turned and saw the rear of the vehicle pass close enough to me that I could have touched same. Def.'s Br. Ex. B.

Officer Aiken then signed a complaint charging Mrs. Herman with one count of reckless driving.

The Honorable Thomas Heim presided in the Municipal Court trial of Mrs. Herman on the above charges. See Trout Def.'s Br. Ex. A. Judge Heim heard testimony from Mrs. Herman, Officers Groff, Aiken, Sherry Trout, Maria and Jillian Bonilla, Chief Herman, Lindsay Herman, Officer Vanaman, and a bystander Jeffrey Janolowski. Sherry Trout testified that Mrs. Herman's car came "extremely close" to them as she and Jillian Bonilla walked across the Wal-Mart parking lot. Mun. Ct. Tr. 1/20/99, at 60. Jillian Bonilla also testified that they were "going across the street and then a white car came in, kind of turned over to like run over us." Mun. Ct. Tr. 1/20/99, at 95. Further testimony indicated that Mrs. Herman approached Ms. Trout and Jillian Bonilla and allegedly accelerated towards them. Judge Heim in the municipal trial held that the State did not prove beyond a reasonable doubt that Mrs. Herman was guilt of reckless driving, aggravated assault, and harassment. Id. at 179-82. This Court looks to Judge Heim's decision with deference, due to his ability to observe the witnesses firsthand. Judge Heim stated further that "There just is not sufficient proof, although I understand why you brought the charges." Id. at 180. Noting the contentious history between the parties, Judge Heim stated that "the best thing for the parties, whatever has been going on, is to just stay away from each other." Id.

Here, considering the circumstances of the incident on June 29, 1998, as well as the parties' histories, the Court finds that a prudent person could believe that plaintiff had driven her vehicle towards Ms. Trout and Jillian Bonilla in the Wal-Mart parking lot in an accelerated manner with the purpose of harassing or alarming them, at a minimum. A reasonable person could find that Mrs. Herman could have been motivated by previous contentious interactions to cause fear in Mrs. Trout and Jillian Bonilla when presented with this opportunity. Moreover, in the municipal trial, Judge Heim found Ms. Trout's testimony to be credible, and although he found the State had not proven beyond a reasonable doubt that Mrs. Herman committed the violation, he nevertheless stated he "understands" why the charges were brought. Given the testimony and findings of Judge Heim, this Court finds that there was probable cause to bring the harassment charges against Mrs. Herman.

N.J.S.A. 2C:12-1B(1) provides that "[a] person is guilty of aggravated assault if he . . . [a]ttempts to cause serious bodily injury to another, or causes such injury purposely or knowingly or under circumstances manifesting extreme indifference to the value of human life recklessly causes such injury." N.J.S.A. 2C:12-1B(1). Under the circumstances of this case, Officer Groff properly relied on the statements given by Ms. Trout and Maria Bonilla, on behalf of her daughter Jillian, which indicated that Mrs. Herman drove towards them so as to put them in fear of being injured. Provided with that information, a police officer could have reasonably concluded that assault or attempt to injure was in the realm of possibilities that faced the driver of the car. Although no bodily injury actually occurred, this Court finds that a reasonable person could conclude, considering the statements of Maria Bonilla and Sherry Trout as given to Officer Groff, that Officer Groff had probable cause to charge Mrs. Herman with attempt to cause injury in violation of N.J.S.A. 2C:12-1B(1).

Mrs. Herman was also charged under N.J.S.A. 39:4-96, which provides:

A person who drives a vehicle heedlessly, in willful or wanton disregard of the rights or safety of others, in a manner so as to endanger, or be likely to endanger, a person or property, shall be guilty of reckless driving and be punished by imprisonment in the county or municipal jail for a period of not more than 60 days, or by a fine of not less than $50.00 or more than $200.00, or both. N.J.S.A. 39:4-96.

The statements as provided to Officer Groff indicate that Mrs. Herman drove her car towards Ms. Trout and Jillian Bonilla in an accelerated manner so as to frighten them at a minimum. In addition, testimony from Ms. Trout and Jillian Bonilla indicates that they believed that Mrs. Herman tried to run them over with her car. Mun. Ct. Tr. 1/20/99, at 95. Based on the facts and circumstances, this Court finds that a reasonable person could conclude that probable cause existed for the charge of reckless driving.

Officer Aiken signed a complaint charging Mrs. Herman with reckless driving as related to the July 3, 1998 incident. Officer Aiken testified:

And when my back was turned, I thought I was going to be hit. She passed so close to me. She may have touched my pants, and actually I bent my legs because I thought that the car was going to pin me in between her car and the car that I was in front of. . . . I bent my knees and she didn't hit me, and I turned around and the car - I could touch the car, that's how close she was. Id. at 11.

A bystander of the scene, Mr. Jeffrey Janolowski, also testified that

And what I remember seeing, when I was on the corner, we were waiting for paramedics for the other woman who was injured, was a car that almost hit her. . . . It was pretty darn close. . . . As far as I know she could have, you know, actually touched the car. It was that close. Id. at 76-77.

Judge Heim afforded the testimony of Officer Aiken and Mr. Janolowski great significance, stating

Now [Officer Aiken's] feelings I don't think can be made up. I think they were the feelings of an officer who felt in imminent danger of actually being hit by another motor vehicle while she's in the course of directing traffic around [an] auto accident. . . . Her testimony, standing on its own, perhaps she over-reacted. But her testimony is corroborated by the independent witness we refer to him as Jeff, Mr. [Janolowski], who . . . doesn't know any of the people here, and he testified I remember seeing the light-colored car almost hit Ms. Aiken. It was pretty darn close to her. Those were his words. . . . That was from an independent source who has nothing to do with anybody here, but merely to tell the Court what he observed. . . . So I'm convinced beyond a reasonable doubt. . . . I am convinced that you are guilty of careless driving. I'm reducing the charge of reckless driving to careless driving, because I don't believe you exercised the proper circumspection, Mrs. Herman, when you approached that accident scene . . . . Mun. Ct. Tr. 1/20/99, at 179-82.

Based on the trial testimony of Officer Aiken and Mr. Janolowski, a reasonable person could find that Mrs. Herman was driving through the intersection in willful disregard of Officer Aiken's safety. Given the circumstances of this incident, as well as the fact that Judge Heim found that Mrs. Herman was guilty of careless driving beyond a reasonable doubt, this Court finds that there was probable cause to bring the reckless driving charge against Mrs. Herman as related to the incident of July 3, 1998.

Plaintiff asserts that Officer Groff is not entitled to the defense of probable cause due to his lack of thoroughness in conducting the investigation of the June 29, 1998 incident. Officer Groff concedes that he did not interview Jillian Bonilla regarding the June 29, 1998 incident. In addition, plaintiff argues that Officer Groff failed to "pursue other avenues of investigation." Pl.'s Br. at 19. However, "[t]he reasonable belief which constitutes probable cause does not require [a complainant] to evaluate the totality of circumstances both inculpatory and exculpatory, as a trier of fact guided by a reasonable doubt standard." Trabal, 269 F.3d at 251 (quoting Carollo v. Supermarkets Gen. Corp., 597 A.2d 1105, 1108-09 (App. Div. 1991), certif. denied, 127 N.J. 559 (1992)). "Probable cause does not depend on the state of the case in point of fact but upon the honest and reasonable belief that of the party prosecuting." Trabal, 269 F.3d at 251 (quoting Martinez v. E.J. Korvette, 477 F.2d 1014, 1016 (3d Cir. 1973)). Although plaintiff claims that Officer Groff did not conduct a thorough investigation, she fails to address how he "didn't pursue reasonable avenues of investigation." Pl.'s Br. at 19. Officer Groff did not interview Jillian Bonilla for his investigation report, but he did interview Jillian's mother Maria Bonilla, who provided an account of the incident as told to her by her daughter. While this Court understands the value of reports by witnesses who observe incidents firsthand, it is also noted that Jillian Bonilla provided testimony at the Municipal Court trial that did not conflict with Officer Groff's report. Furthermore, after reviewing Jillian Bonilla's short trial testimony, whether Jillian Bonilla could have added substantially more useful information to Officer Groff's report is debatable. Whereas conflicting or potentially exculpatory statements could have bolstered plaintiff's contention that Officer Groff was not thorough in his investigation and therefore probable cause in this case was lacking, neither is present in the instant matter.

Accordingly, this Court finds that no reasonable jury could fail to conclude that these facts rise to probable cause, even if a conviction as to certain charges was not secured. Probable cause therefore existed to bring the charges of reckless driving, harassment, and vehicular aggravated assault against plaintiff. Defendants' motions for summary judgment will be granted as to the malicious prosecution and false arrest claims on these grounds.

B. 42 U.S.C. § 1983 Claims Against Officers Aiken and Groff, and Bonilla and Trout

Plaintiff alleges that defendants violated her rights under the First, Fourth, Ninth, and Fourteenth Amendments under 42 U.S.C. § 1983. To recover under 42 U.S.C. § 1983, a plaintiff must establish that a state actor engaged in conduct that deprived him of his "rights, privileges, or immunities" secured by the constitution or laws of the United States. Wilson v. Russo, 212 F.3d 781, 786 (3d Cir. 2000) (quoting Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996)).

Although Maria Bonilla and Sherry Trout are employed by the City of Millville as a translator and clerk, plaintiff's claims against Maria Bonilla and Sherry Trout must fail because their actions were not committed under color of state law. "[I]n order for the tortfeasor to be acting under color of state law, his act must entail "misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law." Mark v. Borough of Hatboro, 51 F.3d 1137, 1150 (3d Cir.) (quoting United States v. Classic, 313 U.S. 299, 326 (1941)), cert. denied, 516 U.S. 858 (1995). In this case, on June 29, 1998, six-year-old Jillian Bonilla and Sherry Trout had been walking across the Wal-Mart store parking lot when the alleged vehicle-related incident occurred. On July 8, 1998, after Jillian Bonilla reported the event to her mother, Maria Bonilla, she and Ms. Trout provided statements regarding the June 29, 1998 incident to Officer Groff, who then instituted and signed a complaint against plaintiff based on those statements. In speaking to Officer Groff, Ms. Bonilla and Ms. Trout were neither acting within their official capacities as translator of Millville Municipal Court and clerk of Millville Police Department, nor were they misusing power given to them under authority of state law. "It is well settled that an otherwise private tort is not committed under color of law simply because the tortfeasor is an employee of the state." Mark, 51 F.3d at 1150 (holding that volunteer firefighter who committed arson was acting in purely private capacity and therefore not liable under § 1983). Ms. Bonilla and Ms. Trout were reporting incidents in which Ms. Bonilla's daughter Jillian Bonilla and Ms. Trout, in her non-professional capacity and in her off-duty hours, had been involved. In addition, in signing a complaint against plaintiff for reckless driving, Ms. Trout was not exercising, and thus not abusing, a power given to her as a clerk for the Millville Police Department. She was acting as a citizen bringing a complaint based on an event that occurred in her off-duty hours. If a person's actions "were not committed in the performance of any actual or pretended duty," the actions were not committed under color of law. Bonsignore v. City of New York, 683 F.2d 635, 639 (2d Cir. 1982). Plaintiff points to no evidence that would establish that Ms. Trout and Ms. Bonilla were acting under color of state law. Accordingly, defendants Sherry Trout and Maria Bonilla will be granted summary judgment on the claim against them under 42 U.S.C. § 1983.

Officers Aiken and Groff raise the defense of qualified immunity in the claims brought against them under § 1983. "Government officials exercising discretionary functions have qualified immunity from suits seeking damages under § 1983 `insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Donahue v. Gavin, 280 F.3d 371, 377 (3d Cir. 2002) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). A court must "determine first whether the plaintiff has alleged a deprivation of a constitutional right at all" when a government official raises qualified immunity as a defense to an action under § 1983. Donahue, 280 F.3d at 378 (quoting County of Sacramento v. Lewis, 523 U.S. 833, 842 n.5 (1998)). The Third Circuit in Sherwood v. Mulvihill, 113 F.3d 396 (3d Cir. 1997), stated:

Where a defendant asserts a qualified immunity defense in a motion for summary judgment, the plaintiff bears the initial burden of showing that the defendant's conduct violated some clearly established statutory or constitutional right. Only if the plaintiff carries this initial burden must the defendant then demonstrate that no genuine issue of material fact remains as to the objective reasonableness of the defendant's belief in the lawfulness of his actions. This procedure eliminates the needless expenditure of money and time by one who justifiably asserts a qualified immunity defense from suit. Id. at 399 (citations omitted).

Plaintiff in her complaint brings claims for violations under the First, Fourth, Ninth, and Fourteenth Amendments. Plaintiff, however, nowhere discusses or raises any allegation as to how she was deprived of a constitutional right under the First Amendment, such as the right to be free from retaliation for speech, see, e.g., Latessa v. New Jersey Racing Comm'n, 113 F.3d 1313, 1319-21 (3d Cir. 1997). The totality of plaintiff's allegations and papers fail to point to any facts or circumstances that would implicate, much less prove, any violations of plaintiff's First Amendment rights. Plaintiff has thus not demonstrated that defendants Aiken or Groff violated a clearly established constitutional right under the First Amendment.

Similarly, plaintiff fails to demonstrate a violation of the Ninth Amendment. The Ninth Amendment is not a source of substantive rights unless it is coupled with the denial of a fundamental right. See United States v. LeBeau, 985 F.2d 563, at *17 (7th Cir. 1993) (unpublished opinion); see also United States v. Choate, 576 F.2d 165, 181 (9th Cir. 1978) ("Rights under the Ninth Amendment are only those `so basic and fundamental and so deep-rooted in our society' to be truly `essential rights,' and which, nevertheless, cannot find direct support elsewhere in the Constitution."), cert. denied, 439 U.S. 953 (1978). Here, plaintiff asserts in her complaint that defendants "violated [plaintiff]'s procedural and substantive due process rights guaranteed by the . . . Ninth . . . Amendment[]." Compl. at 6. Plaintiff has neither identified nor even alleged a fundamental right that has been impaired under the Ninth Amendment. Without specificity as to the rights of which plaintiff complains, this Court finds that plaintiff does not demonstrate that defendants Aiken and Groff violated a clearly established constitutional right under the Ninth Amendment.

The only violation that plaintiff sufficiently identifies is one for malicious prosecution. The Supreme Court in Albright v. Oliver determined that a plaintiff suing a police officer who had obtained his arrest warrant alleging that the officer had deprived him of his Fourteenth Amendment right to be free from prosecution except upon probable cause, could be afforded no relief under substantive due process principles. The Supreme Court stated that "[w]here a particular amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of `substantive due process,' must be the guide for analyzing these claims." Albright v. Oliver, 510 U.S. 266, 273 (1994). The Supreme Court thus left open the possibility of a successful claim brought under the Fourth Amendment. Albright, 510 U.S. at 275. Accordingly, in the Third Circuit, a plaintiff asserting a malicious prosecution claim as a violation under the Fourth Amendment must show "some deprivation of liberty consistent with the concept of `seizure.'" Gallo v. City of Philadelphia, 161 F.3d 217, 222 (3d Cir. 1998) (determining that plaintiff must show that he suffered a seizure as a consequence of a legal proceeding) (quoting Singer v. Fulton County Sheriff, 63 F.3d 110, 116 (2d Cir. 1995), cert. denied, 517 U.S. 1189 (1996)). As in Gallo, this Court's first determination is whether plaintiff sufficiently demonstrated that she suffered a seizure as a consequence of the charges filed against her relating to the incidents of June 29, 1998, and July 3, 1998. Officer Groff signed a complaint against plaintiff on July 8, 1998, charging her with 2 counts of vehicular aggravated assault and 2 counts of harassment. Def.'s Br. Ex. H. Officer Aiken signed a complaint on July 8, 1998, charging her with reckless driving. Def.'s Br. Ex. H. It is clear to this Court that plaintiff fails to demonstrate in her Complaint or in her briefs any deprivation of her liberty as a result of Officer Groff's or Officer Aiken's complaints that is consistent with seizure. *fn3 Although, based on these charges, the Honorable Thomas Heim of the Millville Municipal Court found plaintiff guilty of a reduced charge of careless driving, see Def.'s Br. Ex. O, at 183, plaintiff was not sentenced to any jail time and was required only to pay a monetary judgment of $150 and costs of $30. Id. Viewing the evidence in the light most favorable to plaintiff, plaintiff's malicious prosecution claim under the Fourth Amendment fails to show a deprivation of liberty consistent with seizure that is required by the Third Circuit in Gallo.

Due to plaintiff's inability to demonstrate that she has suffered a deprivation of a clearly established constitutional right, this Court concludes that it need not consider the defendants' claim of qualified immunity. Accordingly, defendants' motion for summary judgment will be granted as to the claims brought under 42 U.S.C. § 1983 against Officers Aiken and Groff.

C. Municipality Liability

Defendants City of Millville and City of Millville Police Department argue that there are no valid and judiciable claims against any of the municipal employees that would give rise to a valid claim against the City of Millville under the principles of respondeat superior. Municipalities cannot be held liable for the unconstitutional acts of its employees on a theory of respondeat superior. See Berg v. County of Allegheny, 219 F.3d 261, 275 (3d Cir. 2000) (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 (1978)), cert. denied, 531 U.S. 1072 (2001); Kneipp v. Tedder, 95 F.3d 1199, 1211 (3d Cir. 1996) (citing Monell, 436 U.S. at 691). When a suit against a municipality is based on § 1983, *fn4 the municipality may only be liable if the alleged constitutional transgression implements or executes a policy, regulation, or decision officially adopted by custom. See Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996) (citing Monell, 436 U.S. 658 (1978)), cert. denied, 519 U.S. 1151 (1997). A plaintiff must first identify a municipal policy or custom, *fn5 then "demonstrate that, though its deliberate conduct, the municipality was the `moving force' behind the injury alleged." Berg, 219 F.3d at 276 (quoting Bd. of County Comm'rs of Bryan County v. Brown, 520 U.S. 397, 404 (1997)).

Plaintiff argues that the City's negligent training of Officer Groff was deliberately indifferent to the constitutional rights of plaintiff through his actions on June 29, 1998. *fn6 Where, as alleged here, the policy concerns a failure to train or supervise municipal employees, liability under § 1983 requires a showing that the failure amount to "deliberate indifference" to the rights of the person with whom those employees will come into contact. See Carter v. City of Philadelphia, 181 F.3d 339, 357 (3d Cir. 1997) (citing City of Canton v. Harris, 489 U.S. 378, 388 (1989)), cert. denied, 528 U.S. 1005 (1999). Here, plaintiff, relying on the three-part test established by the Second Circuit in Walker v. City of New York, points to Officer Groff's "ex parte communications" with Judge Salvo regarding what charges he should file against plaintiff. Pl.'s Br. at 8. The Second Circuit held

In order for a municipality's failure to train or supervise to amount to deliberate indifference, it must be shown that (1) municipal policymakers know that employees will confront a particular situation, (2) the situation involves a difficult choice or a history of [employees'] mishandling, and (3) the wrong choice by an employee will frequently cause deprivation of constitutional rights. Walker v. City of New York, 974 F.2d 293, 297-98 (2d Cir. 1992), cert. denied, 507 U.S. 961 (1993).

The Third Circuit in Carter v. City of Philadelphia, 181 F.3d 339, 357 (3d Cir. 1999) cites the case approvingly, but is, as indicated by this Court's research, the only Third Circuit case to do so. This Court is therefore unwilling to proceed with an analysis based on the Second Circuit's holding in Walker.

Plaintiff also argues that Officer Groff initiated a "superficial investigation" due to his "conflict of interest." *fn7 Failure to adequately train or screen municipal employees can ordinarily be considered deliberate indifference only where the failure has caused a pattern of violations. See Berg, 219 F.3d at 271 (citing Brown, 520 U.S. at 408-09). If the policy or custom does not facially violate federal law, causation can only be established by "demonstat[ing] that the municipal action was taken with `deliberate indifference' as to its known or obvious consequences. A showing of simple or even heightened negligence will not suffice." Berg, 219 F.3d at 276 (holding that county may be liable for issuing erroneous arrest warrant and failing to provide protective measures) (citing Brown, 520 U.S. at 408-09). However, "[o]nly where a failure to train reflects a `deliberate' or `conscious' choice by a municipality - a `policy' as defined by our prior cases - can a city be liable for such a failure under § 1983." Kneipp, 95 F.3d at 1212 (quoting City of Canton v. Harris, 489 U.S. 378, 389 (1989)).

Here, Captain Ron Harvey gave Officer Groff the assignment to investigate the incident with plaintiff, despite Groff and plaintiff's husband William Herman, then Chief of Police, having had problems before. Deposition testimony indicates that Captain Harvey's belief was that Officer Groff would be objective and do a good report. See Def.'s Br. Ex. E, at 64-65. Considering that Mr. Herman was Chief of the Police Department at that time and that there had been some tension due to lawsuits having been filed against Chief Herman and the Millville Police Department, most employees of the Millville Police Department would have had some sort of contact with Chief Herman, with some dissension likely. This singular assignment to Officer Groff does not demonstrate that a pattern of violations occurred, nor show that municipal action was taken with `deliberate indifference' as to its known or obvious consequences.

Similarly, Officer Groff's meeting with Judge Salvo to ascertain whether probable cause had been sufficiently shown in order to bring certain charges against plaintiff fails to demonstrate that a pattern of violations occurred such that the actions by the Police Department were made with deliberate indifference as to any consequences. It is assumed that Officer Groff's meeting with Judge Salvo was an isolated incident, as plaintiff fails to raise any contention to the contrary. A finding of deliberate indifference as to Officer Groff's actions is controverted by the facts of this case, as Officer Groff independently assessed that he had probable cause and further consulted with a superior to confirm his probable cause analysis. Unlike Berg, defendant in this case attempted to provide for a protective measure to ensure the appropriateness and legality of bringing charges. *fn8

Because plaintiff fails to show that the City of Millville or its Police Department were deliberately indifferent in its training of employees, summary judgment will be granted on plaintiff's claim of respondeat superior liability against the City of Millville and its Police Department under § 1983.

D. Claims for Negligence, Negligent and/or Intentional Infliction of Emotional Distress, and Negligent Training

As to the remaining claims, plaintiff bears the burden of establishing her claims of negligence, negligent and/or intentional infliction of emotional distress, and negligent training and/or supervision. See Fed. R. Civ. P. 56. Rule 56(e) provides:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleadings, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party. Fed. R. Civ. P. 56(e).

Where the party opposing summary judgment also bears the burden of proof at trial, the motion must be granted if the party fails to proffer admissible evidence sufficient to enable a reasonable jury to find in plaintiff's favor, as discussed above. This Court will thus determine whether plaintiff has sufficiently set forth specific facts establishing her claims of negligence, negligent and/or intentional infliction of emotional distress, and negligent training and/or supervision, showing that there is no genuine issue for trial, or whether summary judgment is appropriate.

Plaintiff claims that defendants Officers Aiken and Groff, Sherry Trout, and Maria Bonilla were negligent. The requisite elements of a negligence cause of action are: (1) the existence of a duty; (2) the breach of that duty; and (3) proximate causation of damages. LaBracio Family P'ship v. 1239 Roosevelt Ave., Inc., 340 N.J. Super. 155, 161 (App. Div. 2001) (citing Conklin v. Hannoch Weisman, 145 N.J. 395, 417 (1996)). Here, plaintiff fails to establish her claim for negligence. The record demonstrates that defendants Officers Aiken and Groff and Sherry Trout filed charges against plaintiff, and that Maria Bonilla additionally provided statements to Officer Groff that formed the basis of his probable cause finding. Even assuming that a duty existed between defendants and plaintiff, such as the general duty that might be owed by a police officer, the filing of charges against plaintiff does not constitute a breach of that duty when there was probable cause to initiate the action based upon the evidence known to the police officer. Accordingly, plaintiff fails to establish her negligence claims, and those claims will therefore be dismissed.

Plaintiff also brings a claim for negligent infliction of emotional distress and/or intentional infliction of emotional distress. To bring a claim for negligent infliction of emotional distress, a plaintiff must establish four elements: (1) the death or serious physical injury of another caused by defendant's negligence; (2) a marital or intimate familiar relationship between plaintiff and the injured person; (3) observation of the death or injury at the scene of the accident; and (4) resulting severe emotional distress. Vasilik v. Federbush, 327 N.J. Super. 6, 12 (App. Div. 1999) (citing Portee v. Jaffee, 84 N.J. 88, 91 (1980)). Obviously, this tort does not fit the circumstances of this case. The record demonstrates that no one in this case has either died or been seriously injured through defendants' negligence. Indeed, as a threshold issue, plaintiff fails to identify anyone who has been injured in relation to this case. Viewing the evidence in the light most favorable to the plaintiff, plaintiff fails to establish a claim for negligent infliction of emotional distress as defined by New Jersey law.

In order to bring a claim for intentional infliction of emotional distress, a "plaintiff must establish intentional and outrageous conduct by the defendant, proximate cause, and distress that is severe." Taylor v. Metzger, 152 N.J. 490, 527 (1998) (quoting Buckley v. Trenton Sav. Fund. Soc'y, 111 N.J. 355, 366 (1988)). "The conduct must be `so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Taylor, 152 N.J. at 527 (quoting Buckley, 111 N.J. at 366). The actions of Officers Aiken and Groff, Ms. Bonilla, and Ms. Trout, in determining that they had probable cause to bring charges against plaintiff, as discussed above, does not constitute conduct so outrageous as to go beyond all bounds of decency. Their actions were reasonable, and indeed, based on Mrs. Herman's actions on two occasions, probable cause existed to justify defendants bringing charges of reckless driving, harassment, and aggravated assault, as discussed above.

Because plaintiff fails to establish her claim for negligent infliction of emotional distress and/or intentional infliction of emotional distress, summary judgment will be granted as to those claims. Accordingly, those claims will be dismissed.

Plaintiff also brings a claim against the City of Millville and Millville Police Department for negligent supervision and/or training of its employees. N.J.S.A. 59:2-2 establishes liability of a public entity "for injury proximately caused by an act or omission of a public employee within the scope of his employment in the same manner and to the same extent as a private individual under like circumstances." N.J.S.A. 59:2-2; see also Denis v. City of Newark, 307 N.J. Super. 304, 314 (App. Div. 1998) (concluding that plaintiff established prima facie case of negligent retention). In Denis, plaintiff brought claims against a police department after being assaulted by an on-duty police officer. Based on the police officer's past history of discipline and previous nine suspensions for violations of police regulations, the court found that plaintiff established a prima facie case of negligent retention liability, stating that the defendant police department "knew or should have know of [the defendant police officer's] dangerous propensities . . . [and] the risk of injury he presented to the public." Denis, 307 N.J. Super. at 314.

The record in this case fails to demonstrate any set of facts that would establish plaintiff's claim of negligent supervision and/or training. There is no evidence indicating that either Officers Aiken or Groff, Maria Bonilla, or Sherry Trout had previous histories of wrongdoing that would have alerted the City of Millville or the Millville Police Department as to any dangerous propensities. Unlike the assaultive police officer in Denis, Officers Aiken and Groff, Maria Bonilla, and Sherry Trout did not present any risk to the public. Plaintiff therefore fails to establish her claim for negligent training and/or supervision against the City of Millville or the Millville Police Department.

Accordingly, summary judgment will be granted on plaintiff's claims for negligence, negligent infliction of emotional distress and/or intentional infliction of emotional distress, and negligent training and/or supervision, and those claims will be dismissed.

CONCLUSION

Based on the above, defendants' motions for summary judgment will be granted on plaintiff's claims for false arrest/false imprisonment, malicious prosecution, negligence, negligent infliction of emotional distress and/or intentional infliction of emotional distress, negligent training and/or supervision, civil rights violations under 42 U.S.C. § 1983, and respondeat superior liability under 42 U.S.C. § 1983. Accordingly, plaintiff's complaint will be dismissed in its entirety. The accompanying Order is entered.

JEROME B. SIMANDLE United States District Judge

ORDER

THIS MATTER comes before the Court upon motion by defendants Officer Groff, Officer Aiken, City of Millville, City of Millville Police Department, and John Doe Employees, and motion by defendants Sherry Trout and Maria Bonilla for summary judgment on claims brought against them by plaintiff Debbie Herman arising out of events that took place on June 29, 1998, and July 3, 1998; and this Court having considered the parties' submissions; and good cause having been shown; and for the reasons discussed in the Opinion of today's date;

IT IS on this 21st day of March, 2002, hereby

ORDERED that the motion of defendants Groff, Aiken, City of Millville, City of Millville Police Department, John Doe Employees [Docket Item 15-1], and the motion by Sherry Trout, and Maria Bonilla [Docket Item 18-1], be, and hereby are, GRANTED; and

IT IS FURTHER ORDERED that all of plaintiff's claims be, and hereby are, DISMISSED in their entirety.

JEROME B. SIMANDLE United States District Judge


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