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MAYER v. GOTTHEINER

August 11, 2005.

KENNETH MAYER, Plaintiff,
v.
KEVIN GOTTHEINER, BRYAN SMITH, MAYOR AND COUNCIL OF THE BOROUGH OF HALEDON, STEVE VAN HOOK, BOROUGH OF HALEDON, HALEDON POLICE DEPARTMENT, Defendants.



The opinion of the court was delivered by: PATTY SHWARTZ, Magistrate Judge

OPINION

This matter is presently before the Court on motion by defendants, Kevin Gottheiner, Bryan Smith, and Steve Van Hook (the "Police Defendants"), and the Mayor and Council of the Borough of Haledon (the "Municipal Defendants"), for summary judgment pursuant to Fed.R.Civ.P. 56 on plaintiff Kenneth Mayer's claims for (i) violations of his rights under the First, Fourth and Fourteenth Amendments of the United States Constitution,*fn1 brought pursuant to 42 U.S.C. § 1983; (ii) violations of his rights under paragraphs four and six of the New Jersey Constitution; (iii) gross negligence; (iv) negligent infliction of emotional distress; (v) intentional infliction of emotional distress; and (vi) civil conspiracy. For the reasons set forth below, the Court grants summary judgment in favor of the defendants and against the plaintiff as to his First, Fourth and Fourteenth Amendment claims and dismisses his state law claims without prejudice for lack of subject matter jurisdiction.

FACTS

  Plaintiff is a resident of the Borough of Haledon, New Jersey. (Final Pretrial Order at 6, Stip. Fact No. 1.) Defendants Gottheiner, Smith, and Van Hook are police officers employed by the Borough of Haledon Police Department. (Id., Stip. Fact No. 2.) Defendant Pengitore has been the Mayor of the Borough of Haledon since 1999. (Id., Stip. Fact No. 3.) The plaintiff's claims arise from a series of encounters with the defendant police officers. The defendants contend that summary judgment should be entered in their favor on each claim. In deciding a summary judgment motion, the Court must view the evidence in the light most favorable to the non-moving party. See Peters v. Delaware River Port Auth., 16 F.3d 1346, 1349 (3d Cir. 1994). The Court views the facts underlying plaintiff's claims through this lens.

  A. The July 1, 2001 Incident

  The first incident involves a dispute between plaintiff and other Haledon residents. On July 1, 2001, at approximately 10:00 p.m., plaintiff was walking on the street in front of his neighbor's house. A white car, occupied by a female driver and two teenage male passengers, approached him. (Mayer Dep., 71:18-72:11, 75:19-76:2.) Plaintiff states that the passengers exited their car, chased him, and threatened to kill him. (Id. at 76:3-78:10.) Plaintiff claims after the teenagers stopped chasing him, he stopped to catch his breath and began walking back toward his house. (Id. at 78:1-7.) Thereafter, a green car occupied by two male teenagers drove slowly by him. (Id. at 78:14-79:20.) Plaintiff did not know whether or not the occupants of the green car were the same as the occupants of the white car. (Id. at 92:6-9.) Plaintiff claims the green car's occupants verbally harassed him, and one of the teenagers threatened to use a "glock"*fn2 on him. (Id.) Specifically, plaintiff said the occupant stated "I've got a glock. Come back to my house I want to use it on you." (Id. at 79:7-9.) While plaintiff attributed these statements to an occupant of the green car, nothing in the record indicates if he conveyed the occupant's statements to the police. After this incident, plaintiff returned to his house and called the police.*fn3 (Id. at 83:15-84:14.)

  Defendants Gottheiner and Smith responded to plaintiff's call. (Id. at 86:23-87:7.) When the officers arrived on the scene, plaintiff ran out of his house, yelling that he had been threatened. (Final Pretrial Order at 8, Stip. Fact No. 22.) Plaintiff told Defendant Gottheiner that he was chased and threatened by the occupants of the green car, which was then parked near plaintiff's home. (Mayer Dep. at 87:23-88:24.) Plaintiff appeared angry and flustered. (Final Pretrial Order at 8, Stip Fact No. 22.)

  Defendant Gottheiner spoke to the green car's occupants while plaintiff waited across the street. (Id. at 89:13-24.) Defendant Gottheiner testified the car's occupants advised him they had seen plaintiff looking in their windows. (Gottheiner Dep. at 62:6-14.) A white car occupied by two females subsequently arrived and the occupants spoke to Defendant Gottheiner. (Mayer Dep. at 92:18-94:7.) While the plaintiff does not dispute the officers interviewed the vehicle occupants, he asserts that neither Defendant Gottheiner nor Smith searched the car or its occupants. (Mayer Aff. at ¶ 7.) Although Defendant Gottheiner testified that he searched the entire car and the occupants' persons (Gottheiner Dep. at 71:11-72:9), no search is reflected in his report of the incident and no consent to search forms were signed (Final Pretrial Order at 8, Stip. Fact No. 23-24). Moreover, neither officer checked to determine if the car's occupants had a lawful permit to carry a weapon in the State of New Jersey. (Id. at 7, Stip. Fact No. 20.)

  Defendant Gottheiner returned to the plaintiff and advised him that the vehicles' occupants claimed he was looking in their windows and stated that they wanted to press charges if the plaintiff pressed charges. (Plaintiff's Response to Interrogatory No. 9; Mayer Dep. at 94:25-95:2.) Defendant Gottheiner stated he

 
felt that the charges against [the plaintiff] would be much worse for him than by him saying that these guys threatened to kill me with terrorist threats, and I was basically trying to tell Mr. Mayer that he doesn't want this kind of problem and I think we should — he can do whatever he wants, but I think it would be in his best interest to just kind of let this thing go, just trying to avoid any type of arrest or any type of record of this for him.
(Gottheiner Dep. at 84:17-24.) Plaintiff stated that Defendant Gottheiner told him he could pursue charges against the individuals for threatening him if he wanted, and did not discourage him in any way from following through with such a complaint. (Mayer Dep. at 110:19-111:4.) Plaintiff stated that, because it was his word against the three or four occupants of the green and white cars, he decided to "just drop the incident" and not file charges. (Id. at 95:7-18.) Despite his decision not to purse a complaint, plaintiff stated he became angry because he thought Defendant Gottheiner did not believe him and he told the officer to "[g]o write [his] f***ing report." (Id. at 95:20-23.)

  During this exchange, Defendant Gottheiner pointed at the plaintiff (Smith Dep. at 59:23-60:2) and, while the plaintiff stood with his arms folded, plaintiff claims the defendant put his belly against the plaintiff's left elbow and pushed him three times*fn4 (Mayer Dep. at 97:7-15; 99:11-100:14). During the pushing, plaintiff claims he asked why Defendant Gottheiner was pushing him, and again told him to "go write the report." (Plaintiff's Response to Interrogatory No. 9; Mayer Dep. at 101:23-24, 102:23-25.) Plaintiff claims Defendant Gottheiner stopped when plaintiff stumbled and caught himself, taking a half-step back.*fn5 (Plaintiff's Response to Interrogatory No. 9; Mayer Dep. at 103:5-15.) Plaintiff claims Defendant Smith observed the pushing and did nothing. (Plaintiff's Response to Interrogatory No. 9; Mayer Dep. at 104:1-5.) After the pushing, plaintiff claims Defendant Gottheiner went back across the street to the green car. (Plaintiff's Response to Interrogatory No. 9; Mayer Dep. at 105:6-21.) Plaintiff stated that he felt pain down his down his right leg and sat on the curb. (Plaintiff's Response to Interrogatory No. 9, Mayer Dep. at 105:6-21.) Defendant Gottheiner returned to the plaintiff before he left, asked if he was feeling okay and, when the plaintiff replied "no", offered to call an ambulance, which the plaintiff declined. (Final Pretrial Order at 7, Stip Fact No. 21; Mayer Dep. at 107:2-12.) Plaintiff contends that Gottheiner's push caused him to twist his back and suffer permanent injury and constant pain.*fn6 (Mayer Aff. at ¶ 4.) Plaintiff claims he had no back problems before this injury but has since sought extensive medical treatment. (Mayer Aff. at ¶ 9; Mayer Dep. at 112:7-15; 118:2-132:11.)

  Plaintiff stated he served the Clerk of the Borough of Haledon with a Notice of Claim within 90 days of the July 1, 2001 incident. (Mayer Aff. at ¶ 8.) Other than filing a notice of tort claim with the Borough, plaintiff did not complain to any official within the Borough of Haledon or the police department about the events of July 1, 2001 nor did he swear out a complaint against Defendant Gottheiner or the occupants of the green or white cars. (Mayer Dep. at 132:14-136:13; see also Gottheiner Dep. at 87.) No internal affairs investigation was conducted about this incident. (Final Pretrial Order at 6-7, Stip. Fact No. 8.)

  B. The January 8, 2002 DMV Checkpoint

  The second set of events involved a New Jersey Department of Motor Vehicles ("DMV") Checkpoint at which plaintiff received tickets. On January 8, 2002, law enforcement officials, including Defendants Van Hook and Gottheiner, were conducting roadside inspections in conjunction with the DMV. (Mayer Dep. 136:13-137:3; Final Pretrial Order at 8, Stip. Fact No. 25.) Officer Antulio Negron observed the plaintiff driving and directed him to pull into the roadside inspection checkpoint. (Mayer Dep. at 136:13-137:3.) Plaintiff stated that while he was waiting in line for the DMV inspection, he saw Defendant Van Hook conferring with Defendant Gottheiner and Defendant Gottheiner was "chuckling and looking over in [his] direction." (Id. at 242:15-243:9.) Plaintiff stated he got the sense Defendant Gottheiner was telling Defendant Van Hook to "stick it to [him]." (Id. at 226:9-14.)

  Defendant Van Hook requested identification and plaintiff tendered his driver's license, registration, and insurance card. (Id. at 143:15-144:145:6.) At the time of the stop, plaintiff's car*fn7 in fact had a rejected inspection sticker (id., 139:5-19), no valid proof of registration (id. at 144:6-23) or insurance (id. at 144:24-145:2), and his car had a broken tailpipe (id. at 145:17-146:13). As a result, Defendant Van Hook issued plaintiff tickets for failure to tender a valid registration card, failure to have valid insurance documents, driving with a broken tailpipe, and driving the vehicle after having failed inspection. (Id. at 145:3-147:3.) Defendant Van Hook then directed the plaintiff to park his vehicle and call someone to obtain proof of insurance. (Id. at 151:10-20.) Defendant Gottheiner stated it is the Haledon Police Department's normal practice to tell drivers without proof of insurance that they cannot drive their car and to impound them. (Id. at 113:11-21; 120:4-6.) If the driver is a Haledon resident, however, they allow the driver to obtain proof of insurance and, upon obtaining such proof, to drive the vehicle away rather than having it towed. (Id. at 112:21-113:13.)

  Plaintiff walked home to obtain his insurance information. During his walk, plaintiff fell twice: once in the street when he stepped on a rock hidden in the snow (Mayer Dep. at 154:21-155:7; Mayer Aff. at ¶ 11), and once in his own driveway, causing soreness (Mayer Dep. at 156:14-157:5). Plaintiff claims these falls exacerbated the back injury he sustained from the pushing incident with Defendant Gottheiner on July 1, 2001, and that his left knee felt sore and wobbly. (Mayer Aff. at ¶ 11.) Plaintiff went in his house, found his insurance policy, walked back to the DMV checkpoint, showed it to Defendant Van Hook, and drove away. (Id. at 157:7-158:3.) Plaintiff stated he served the Clerk of the Borough of Haledon with a Notice of Claim within 90 days of falling on January 8, 2002. (Mayer Aff. at ¶ 12.)

  Plaintiff contested the January 8, 2002 tickets.*fn8 The case was transferred from Haledon to the Bloomingdale Municipal Court and hearings were held on May 8, 2002 and June 12, 2002.*fn9 The municipal court found plaintiff guilty of violating N.J.S.A. 39:8-4 (rejected inspection sticker) and N.J.S.A. 39:3-29 (no valid insurance card in possession), and not guilty as to N.J.S.A. 39:3-29 (no valid registration) and N.J.S.A. 39:3-70 (broken tailpipe). (Certification of Richard A. Grodeck, Esq., dated April 13, 2005, Ex. H at bates no. 000088-000089.) Plaintiff appealed the rulings to the New Jersey Superior Court, which upheld the municipal court's guilty verdict as to N.J.S.A. 39:3-29 (no valid insurance card in possession) but reversed the guilty verdict as to N.J.S.A. 39:8-4 (rejected inspection sticker). (Id., Ex. H at bates no. 000090-000091.) Plaintiff admitted during his deposition that he did not have proof of valid insurance during the stop (Mayer Dep. at 144:24-145:2) and acknowledged that the resulting ticket was not frivolous*fn10 (id. at 153:17-154:6).*fn11

  C. The January 3, 2003 Tickets

  On January 3, 2003, Defendant Smith issued plaintiff a littering ticket for parking two unregistered vehicles on his grass*fn12 and a ticket for violating the "48 hour rule," which makes it unlawful to park vehicles on Borough streets for more than 48 hours.*fn13 (Final Pretrial Order at 8, Stip. Fact No. 27; Smith Dep. at 78:2-4.)*fn14 At the time Defendant Smith issued the tickets, he took a videotape of plaintiff's yard with his patrol car's mobile video recording unit but was unable to obtain a camera to take photographs of plaintiff's vehicles. (Final Pretrial Order at 8, Stip. Fact Nos. 28-29.)

  Plaintiff also contested the January 3, 2003 tickets. The 48 hour rule parking ticket was transferred to the Bloomingdale Municipal Court and the littering ticket was transferred to Pompton Lakes Municipal Court.*fn15 (Plaintiff's Appendix, Exh. 13 at 3:10-4:1.) With respect to the littering ticket, a hearing was held in the Pompton Lakes Municipal Court on April 8, 2003, but the proceedings were adjourned because Defendant Smith failed to appear. (Plaintiff's Appendix, Exh. 13 at 2:1-8, 7:6-8:5.)

  With respect to the 48 hour rule parking ticket, proceedings commenced on October 8, 2003 in the Bloomingdale Municipal Court. (Plaintiff's Appendix, Exh. 5.) On that day, then-Chief Harold Engold, Lieutenant Mercuro, and Officer Negron and Defendant Smith appeared pursuant to the plaintiff's subpoenas, which the Court found to be deficient and it quashed them. (Id. at 4:2-6:12.) The prosecutor then called Defendant Smith who testified about the 48 hour rule parking ticket. (Id. at 8:5-13:10.) On cross-examination, Defendant Smith testified that he never created an audio or video recording in connection with his issuance of the January, 2003 tickets.*fn16 (Id. at 14:10-19.) At his April 27, 2005 deposition, however, Defendant Smith stated that he had created a video recording of the vehicles on the day he issued the tickets.*fn17 (Smith Dep. at 209:3-18.) Defendant Smith further testified he did not disclose the tape to the municipal prosecutor because he believed that he was not required to video tape the issuance of a parking ticket, and that he alone could decide whether or not the tape was worthy of being exchanged in discovery. (Id. at 193:16-195:2.)

  Because of time constraints, Defendant Smith's examination was not concluded and the October 8, 2003 trial was adjourned. The trial reconvened on January 28, 2004. (Plaintiff's Appendix, Exh. 14.) Defendant Smith failed to appear at the January 28, 2004 hearing and the plaintiff proceeded to question Chief Engold (id. at 7:5-12:9) and Lieutenant Franco of the Haledon Police Department (id. at 14:3-19:15) about discovery issues. The Municipal Court interrupted the testimony and discussed (1) a hearing that it held regarding plaintiff's contention that the police department and prosecutor committed discovery violations and (2) a previous ruling that required the prosecutor to turn over everything he would present in his case, which he stated he did. (Id. at 17:1-18:13.) For this reason, the municipal judge declined to allow the plaintiff to question Chief Engold or Officer Franco regarding discovery issues at the trial and allowed them to leave the stand. (Id. at 8:8-12:20; 18:6-19:15.)

  The final trial day with respect to the January 3, 2003 48 hour rule parking ticket commenced on April 14, 2004. (Pl.'s Appendix, Exh. 15 at 1:12.) While not entirely clear from the transcripts, the littering ticket appears to have been transferred from Pompton Lakes and consolidated before the Bloomingdale Municipal Court. At the conclusion of the April 14, 2004 hearing, the Court dismissed both the 48 hour rule parking ticket on the grounds that the local ordinance under which it was written had been superceded by state statute (Plaintiff's Appendix, Exh. 15 at 4:9-19) and the littering ticket for failure to prosecute because Defendant Smith did not appear to complete his examination (id. at 7:1-12).

  D. Other Claims Against the Police Defendants

  Plaintiff claims the Borough of Haledon Police Department conducted a continuing "campaign of harassment" against him. (Mayer Aff. at ¶ 18.) In addition to the three specific incidents discussed above, plaintiff claims he has received parking tickets for violating handicap parking restrictions despite the police department's knowledge, stemming from the dismissal of two earlier summonses, that there was an illegal sign. (Id.) The record is otherwise devoid of any reference to a handicap parking sign, its alleged illegality, the dates of the incidents, disposition of handicap parking-related tickets, or the officers involved.

  Plaintiff further claims he has repeatedly been issued summonses for littering, and has repeatedly been found not guilty. (Id.) For example, plaintiff claims that, on October 8, 2003, Officer Negron wrote him two littering summonses in retaliation for plaintiff having subpoenaed him for the Bloomingdale Municipal Court proceedings. (Id. at ¶ 20.) While the plaintiff asserts he has been acquitted of other littering violations, the record lacks any details regarding the October 8, 2003 ticket and other littering tickets he claimed to have received.

  Plaintiff also claims that, on January 3, 2005, Officer Negron ticketed and towed his 1989 Dodge Ram Charger for allegedly being parked on the street with an expired registration, despite the vehicle's registration being valid through December, 2005.*fn18 (Id. at ¶ 21) Plaintiff stated he served the Clerk of the Borough of Haledon with a Notice of Claim within 90 days of the January 3, 2005 incident. (Mayer Aff. at ¶ 22.) There is no evidence before the Court regarding the status of this ticket.

  E. Actions of Borough Officials

  Plaintiff appears to further argue that these instances are indicative of a larger, systemic problem that he claims has lead to a "frightening state of affairs" in the Borough of Haledon. (Plaintiff's Br. at 7.) Plaintiff draws this conclusion from the testimony of Mayor Kenneth Pengitore, former Police Chief Harold Engold, Jr., and Police Chief Louis Mercuro, Jr.

  i. Mayor Kenneth Pengitore

  Plaintiff claims Mayor Pengitore "is unaware of his responsibilities and of [B]orough [O]rdinances." (Plaintiff's Br. at 2.) To support this assertion, he cites Mayor Pengitore's testimony that he has not taken municipal management, public service, sensitivity, or anti-harassment courses since becoming Mayor in 1999. (Pengitore Dep. at 7:6-8:10.) Mayor Pengitore served as acting Police Commissioner of the Borough of Haledon from the Summer of 2004 through January, 2005 (Final Pretrial Order at 6, Stip. Fact No. 4) but he testified that the position was "just a title" and he did not have responsibilities for the day-to-day oversight of the police department. (Pengitore Dep. at 16:5-19.) He stated only the police chief was involved with the discipline of the police officers, (id. at 18:24-19:7), ...


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