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August 4, 2005.

WILLIAM DAVIS, JR., Plaintiff,
TOWNSHIP of LAKEWOOD, et al., Defendants.

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

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OPINION

This matter comes before the Court on the summary judgment motion, pursuant to Federal Rule of Civil Procedure ("Rule") 56, by defendants Ocean County (the "County"), Ocean County Prosecutor's Office (the "OCPO"), and E. David Millard, former Ocean County Prosecutor (collectively referred to as the "moving defendants"). The Court, for the reasons stated herein, will grant in part moving defendants' motion and enter judgment in favor of (1) the County and the OCPO as to all claims asserted against these entities and (2) Millard as to claims asserted against him in his official capacity.


  I. Events Preceding Action

  Plaintiff, William Davis, Jr., was a passenger in a motor vehicle that was stopped by members of the Township of Lakewood Police Department (the "Police Department"), the Township of Lakewood Police Department Street Crimes Unit (the "SCU"), and the Ocean County Narcotics Strike Force (the "NSF"),*fn1 on March 12, 2001. (2d Am. Compl. at ¶¶ 20-22.)*fn2 Plaintiff alleges that, despite his lack of resistance, he was physically assaulted by members of the Police Department, the SCU, and/or the NSF. (Id. at ¶¶ 22-30.) Plaintiff was arrested and charged with possession of less than fifty grams of marijuana, in violation of N.J.S.A. § 2C:35-10(A)(4), a municipal court offense. (Id. at ¶ 31.) The municipal court subsequently dismissed the charge. (Id. at ¶ 75.)

  Plaintiff alleges that as a result of the assault he sustained bodily injuries but that "at no time while [he] was in the custody and control of the Police Department[,] the [SCU,] and/or the [NSF] was he offered first aid or other medical treatment for his injuries." (Id. at ¶ 33.) Plaintiff, after being charged, was released from custody. (Id. at ¶¶ 31.) Plaintiff then went to the emergency room at Paul Kimball Hospital in Lakewood, New Jersey, where it was found that he had sustained a facial fracture, contusions, cuts, and bruises. (Id. at ¶¶ 34-35.) II. Procedural History

  Plaintiff filed an initial complaint asserting multiple claims arising from the incident occurring on March 12, 2001. Plaintiff filed a second amended complaint on October 27, 2003 asserting claims against (1) the County; (2) the OCPO; (3) the NSF; (4) Millard, individually and in his official capacity; (5) the Township of Lakewood; (6) the Police Department; (7) the SCU; (8) John Steinhauer, investigator for the NSF, in his individual and official capacity; (9) Michael Mooney, a detective with the Police Department, in his individual and official capacity; (10) Michael Dennis, a sergeant with the Police Department, in his individual and official capacity; and (11) Chris Spagnulo, a patrolman with the Police Department, in his individual and official capacity. (2d Am. Compl.)*fn3 The second amended complaint alleges violations of plaintiff's constitutional rights, pursuant to 42 U.S.C. § 1983 ("Section 1983"), the New Jersey Constitution, and the New Jersey Tort Claims Act ("NJTCA"), N.J.S.A. § 59:10A. The complaint also alleges various tort claims including harassment and intimidation, intentional infliction of emotional distress, and negligent infliction of emotional distress. (Id.)

  Plaintiff alleges violations of his rights under the Fourth, Fifth, Eighth, and Fourteenth Amendments to the United States Constitution. (Id. at ¶¶ 38-71.) Counts 1 through 3 respectively allege false arrest, excessive use of force, and deliberate indifference to plaintiff's medical needs. (Id.) These counts are asserted against all named defendants except Millard. (Id.) Count 4 asserts a claim of malicious prosecution against all named defendants. (Id. at ¶¶ 72-82.) Counts 5 through 7 allege that defendants were aware of a pattern of excessive force and failed to adequately train, supervise, and discipline Lakewood Township police officers and members of the SCU and NSF regarding the use of force. (Id. at 14-22.)*fn4 Counts 8 through 13 assert state law claims under the NJTCA and the New Jersey Constitution. (Id. at 22-28.)*fn5 Plaintiff seeks money damages and injunctive relief. (Id. at 29-30.)

  The moving defendants, on March 18, 2005, moved for summary judgment and, in the alternative, for leave to file a third party complaint against the State of New Jersey seeking to compel defense and indemnification for plaintiff's claims against them, pursuant to the NJTCA. It is this motion that we now consider, but only in the limited context of Eleventh Amendment Immunity. (See 3-23-05 Order limiting moving defendants' summary judgment motion to claims relating to the Eleventh Amendment.)

  The moving defendants, after filing this motion, filed a third-party complaint against the State of New Jersey and Peter Harvey, in his official capacity as Attorney General for the State, seeking to compel the third-party defendants to defend and indemnify Millard and the OCPO for all claims asserted by plaintiff, on June 20, 2005. (Ans. & 3d Party Compl., at 18-19.)


  I. Standard for Summary Judgment

  Rule 56(c) provides that summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." The party moving for summary judgment bears the initial burden of showing that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the summary judgment movant has met this prima facie burden, the nonmovant "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). A nonmovant must present actual evidence that raises a genuine issue of material fact and may not rely on mere allegations. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The Court must view the evidence in the light most favorable to the nonmovant when deciding a summary judgment motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). At the summary judgment stage, the Court's role is "not . . . to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249. Under this standard the "mere existence of a scintilla of evidence in support of the [nonmovant's] position will be insufficient [to defeat a Rule 56(c) motion]; there must be evidence on which the jury could reasonably find for the [nonmovant]." Id. at 252. "By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Id. at 247-48 (emphasis in original). A fact is material only if it might affect the action's outcome under governing law. Id. at 248. "[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-250 (citations omitted).*fn6 II. Eleventh Amendment Immunity and Vicarious Liability

  The Eleventh Amendment provides that "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const. amend. XI. The Eleventh Amendment bars suits against any state or its agencies in federal court by that state's own citizens as well as by citizens of other states. Edelman v. Jordan, 415 U.S. 651, 6626-3 (1974). Absent a clear waiver by a state of its sovereign immunity under the Eleventh Amendment or a congressional abrogation of that immunity, a federal court lacks jurisdiction to hear claims brought by an individual against a state. Pennhurst ...

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