The opinion of the court was delivered by: JOSEPH IRENAS, District Judge
Presently before the Court is a Motion for Summary Judgment by
Defendants City of Camden, Camden City Police Department
("C.C.P.D."),*fn1 and Police Chief Robert Allenbach*fn2
(collectively "Defendants").*fn3 Plaintiff alleges that
Defendants violated 42 U.S.C. § 1983, and are additionally liable
for common law negligence. The § 1983 charge consists of two
independent allegations: (1) that Defendants implemented a poorly
conceived, unconstitutional policy and (2) that Defendants failed
to train Robert Borger, a C.C.P.D. Officer, resulting in the
deprivation of Michael DiVigenze's constitutional rights. This
Court's jurisdiction is based on 28 U.S.C. § 1331.
Summary judgment will be granted in part and denied in part.
Plaintiff has failed to demonstrate that § 1983 liability is
warranted, and so Defendants cannot be held liable for the
alleged constitutional violations committed by an employee,
Officer Borger. In addition, Plaintiff has not raised any issues
of material fact as to her state law claims for failure to train
and negligent hiring. However, Plaintiff has raised a triable issue of fact as to vicarious liability of Defendants City of
Camden and C.C.P.D. for the alleged negligent acts of Officer
This lawsuit stems from a bar fight that occurred at Villari's
Lakeside Inn ("Villari's") the night of September 1, 2000.
Villari's is a bar and restaurant complex located on Sicklerville
Road in Sicklerville, Gloucester Township, New Jersey. During the
altercation, Robert Borger ("Borger"), an off-duty police
officer, fatally shot Michael DiVigenze ("DiVigenze").
DiVigenze's mother, Rosalie Labo ("Plaintiff"), as
Administratrix ad Prosequendum and as General Administratrix for
the Estate of DiVigenze, filed suit in federal court on August
16, 2002. The 12-count complaint named the City of Camden, the
C.C.P.D. and its police chief, Robert Allenbach ("Allenbach"), as
Defendants, along with the Somerdale Police Department ("S.P.D"),
the S.P.D. Police Chief Charles Pope, Borger, Chris Campbell
(another off-duty police officer who was at Villari's on
September 1, 2000), Joseph Villari and Roe Corporations, d/b/a Villari's Lakeside Inn.*fn4
Plaintiff alleges that the City of Camden, the C.C.P.D. and
Allenbach violated the Civil Rights Act of 1871, codified at
42 U.S.C. § 1983, and are also liable for common law negligence.
Plaintiff claims that as a result of Defendants' failure to
implement a proper police policy and train municipal employees,
DiVigenze was unlawfully denied his constitutionally protected
rights under the First, Fifth and Fourteenth Amendments, as well
as forced to endure extreme pain, suffering and mental anguish
before his death.
The Court will not repeat in full the long and heavily
contested account of the bar brawl at Villari's on September 1,
2000. The events are explained in our recent opinion, dated July
27, 2005, in which we granted summary judgement in favor of
Joseph Villari and Roe Corporations. (Docket Entry No. 45.) Two
points of fact relevant to the instant motion, however, will be
noted. First, pursuant to N.J.S.A. § 40A:14-118 (1971), the City of
Camden established a police department and promulgated rules of
conduct to be followed by the police force. One such rule,
located in Chapter 3, Section 6, paragraph 8, of the Law
Enforcement Code of Ethics, requires all off-duty police
officers, except those in specific circumstances not relevant
here, to carry a department-issued firearm. (Def. Br. App. F,
50.) The language and intent of this paragraph closely resembles
the language of Chapter 3, Section 6, paragraph 4, the rule that
requires police officers to carry firearms while on duty. Id.
Neither rule prohibits the use of firearms while consuming
alcohol; however, Chapter 3, Section 6, paragraph 1, requires
police officers to exercise "caution and the utmost care in
handling firearms on and off duty." (Id. at 49).
Second, Borger went through an extensive hiring process before
joining the police force, and then continued to receive training
thereafter. The screening process entailed, among other things,
psychological, background, and personality tests. Borger was
offered a position as a police officer with the Camden County
Police Department on July 10, 1998. Borger attended the Camden
County Police Academy and received training while on the force.
His disciplinary record indicates that no citizen or departmental
complaints were upheld against him from his date of hire through
September, 2000. III.
The test for summary judgement is stated in Rule 56 of the
Federal Rules. Summary judgment is appropriate where "the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law."
Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). In deciding a motion for summary judgment,
the court must construe the facts and inferences in a light most
favorable to the non-moving party. Pollock v. Am. Tel. & Tel.
Long Lines, 794 F.2d 860, 864 (3d Cir. 1986).
The role of the court 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 v. Liberty Lobby, Inc.,
477 U.S. 242, 249 (1986). However, "a party opposing a properly
supported motion for summary judgment may not rest upon the mere
allegations or denials of his pleading, but . . . must set ...