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LABO v. BORGER

August 15, 2005.

ROSALIE LABO, as Administratrix Ad Prosequendum and as General Administratix of the Estate of MICHAEL DIVIGENZE, deceased, Plaintiff,
v.
ROBERT BORGER, et al. Defendants.



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

OPINION

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 Borger.

  I.

  A.

  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.

  II.

  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 ...


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