United States District Court, D. New Jersey
August 15, 2005.
ROSALIE LABO, as Administratrix Ad Prosequendum and as General Administratix of the Estate of MICHAEL DIVIGENZE, deceased, Plaintiff,
ROBERT BORGER, et al. Defendants.
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 forth
specific facts showing that there is a genuine issue for trial."
Id. at 248 (citation omitted).
Section 1983 creates a private cause of action for plaintiffs to seek redress for the deprivation of constitutional
rights by state employees acting under color of state law. The
Supreme Court held that in a § 1983 case, a court must determine
"(1) whether the conduct complained of was committed by a person
acting under color of state law and (2) whether the conduct
deprived a person of rights privileges, or immunities secured by
the Constitution or laws of the United States." Parratt v.
Taylor, 451 U.S. 572, 575 (1981) (overruled in part on other
grounds). Viewing questions of fact in the light most favorable
to the non-moving party, this Court will accept for the purposes
of evaluating the instant motion that the actions of Officer
Borger were committed under color of law and that these actions
deprived DiVigenze of rights secured by the Constitution.
The inquiry, however, does not end there. By charging the City
of Camden, the C.C.P.D. and Police Chief Allenbach*fn5 with
violating § 1983, Plaintiff's claim seeks to hold the
municipality liable for the actions committed by an employee. The
Supreme Court struck down municipal liability based on the theory
of respondeat superior. Monell v. New York City Dept. of Social
Serv., 436 U.S. 658, 691 (1978). A municipality cannot be held
liable simply because an employee is a tortfeasor.
Municipalities may only be held liable if they act in one of the following three ways: (1) adopt an official policy that
deprives citizens of their constitutional rights, Monnell,
436 U.S. at 694; (2) tolerate or adopt an unofficial custom that
results in the unlawful stripping of constitutional rights,
Natale v. Camden County Correctional Facility, 318 F.3d 575 (3d
Cir. 2003); or (3) fail to "train, supervise, or discipline"
their employees so as to prevent them from unlawfully depriving
citizen of their constitutional rights, City of Oklahoma v.
Tuttle, 471 U.S. 808 (1985). See also Karen M. Blum and
Kathryn R. Urboyna, Federal Judicial Center, Section 1983
Litigation 58-59 (1998).
Plaintiff's claim that Defendants violated § 1983 by depriving
DiVigenze of his constitutionally protected rights falls under
the first and third types of liability: (1) that the C.C.P.D.,
under the direction of Allenbach, implemented a policy that
deprived citizens of their constitutionally protected rights, and
(2) that Defendants failed to adequately train, instruct,
counsel, supervise and discipline officers, and acted with
deliberate indifference as this lack of supervision resulted in
the deprivation of decedent's rights.*fn6 V.
A municipality may be held liable when it implements a policy
that is unconstitutional. But first, the evidence must show that
the municipality had constructive knowledge of the adoption of
the unconstitutional policy to be held liable. Board of County
Commissioners of Bryan County, Oklahoma v. Brown, 520 U.S. 397,
403 (1997); see also Monell, 436 U.S. at 691 (Congress intended
§ 1983 to impose liability only when municipalities actively
encouraged or tolerated the unconstitutional deprivation of
In addition, to succeed on a § 1983 claim, a plaintiff must
show that there is a "affirmative link" between the policy and
the deprivation. Kneipp v. Tedder, 95 F.3d 1199, 1213 (3d Cir.
1996). The simple act of choosing one policy over another is not
enough to make the municipality or its employees liable for
resultant harms. City of Canton, 489 U.S. at 392. The policy
must be the "moving force" behind the deprivation in order for
liability to attach. Id. at 390.
Plaintiff alleges that by requiring off-duty officers to carry
firearms, Defendants deprived DiVigenze of constitutional rights.
Plaintiff argues that Defendants' policy exposes citizens to
dangerous situations, because no attempt is made to curtail the
use of guns when police officers use alcohol.
In support of her claims, Plaintiff presents the report of expert witness Dr. R. Paul McCauley. McCauley explains that
Defendants did not employ the best practice available because
there was no provision restricting the carrying of guns when
off-duty officers consume alcohol. (App. H, 7).*fn7
Even when viewing all questions of fact in a light most
favorable to the Plaintiff, the evidence fails to demonstrate how
the official policy is unconstitutional. The mere requirement
that police officers carry their guns while off-duty does not, by
itself, deprive citizens of their constitutional rights.*fn8
Plaintiff does not provide any evidence that adherence to this
policy has caused the unconstitutional deprivation of rights in
this or other instances.
Plaintiff has failed to show that a different policy, such as a
requirement that off-duty officers abstain from drinking alcohol
while carrying firearms, would have prevented the harm that
befell DiVigenze. The policy was not the "moving force" behind
the deprivation of rights. McCauley's report notes that Defendants employed an imperfect
policy when other policies were readily available. In City of
Canton, the Court rejected liability based on the municipality's
decision to not to implement an alternative policy.
489 U.S. at 397. The Court explained that to allow lawsuits to succeed based
on pure speculation that an alternative policy could have yielded
different results would create a policy of "de facto respondeat
superior" and engage courts in "the endless exercise of
second-guessing municipal employee-training programs." Id. We
reject any argument that liability could attach merely because
the municipal actors had other alternative policies to choose
from, and adopted the one that was in place on September 1,
Another variation of § 1983 liability exists when a
municipality fails to train, instruct, counsel, supervise and
discipline officers. City of Canton, 489 U.S. at 387 (finding
municipal liability under § 1983 where supervisors failed to properly train employees and this failure resulted in the
unconstitutional deprivation of rights). This type of liability,
referred to as "failure to train," is reserved only for those
instances where the municipality acted with "deliberate
indifference to the rights of persons with whom the police come
into contact." Id. at 388.
Findings of deliberate indifference, as a matter of law,
require that there be a history of unconstitutional behavior by
municipal employees. The Supreme Court has found that municipal
liability for failure to train under § 1983 cannot be inferred
from a single instance of police misconduct by a non-policy
making employee. City of Oklahoma v. Tuttle, 471 U.S. 808, 813
(1985); City of Canton, 489 U.S. at 397 (a jury cannot infer
"deliberate indifference" on the part of the trainer or
supervisor from a single incident of police misconduct).
Plaintiff's failure to train claim cannot stand. Plaintiff
cannot point to any actual inadequate training,*fn10 let
alone any manifestation of deliberate indifference. The evidence
presented reveals no previous incidents of a similar nature
involving any police officers to which the Defendants were
indifferent. Nor could the City have had any reason to know or
believe that Borger (or any other police officer) was being inadequately supervised.
Borger had an exemplary work history, and at the time of the
night in question, there were no departmental or citizen
grievances lodged against him.
Deliberate indifference on the part of the Defendants cannot be
established based solely on one incident, and so Plaintiff's §
1983 claim cannot proceed under a theory of failure to train,
instruct, counsel, supervise or discipline officers.
Plaintiff has also asserted a state law based negligent hiring
and failure to train or supervise claim in Count X of the
Complaint and a vicarious liability claim, based on the
negligence of Borger, as alleged in Count VIII of the Complaint.
To sustain a negligent hiring claim, Plaintiff must demonstrate
that the Defendant knew or had reason to know of the particular
incompetence or dangerous attributes of Borger, and could have
reasonably foreseen that such qualities created a risk of harm to
others. DiCosala v. Kay, 91 N.J. 159, 173-74 (1982). In
addition, there is a required causation element Plaintiff must
show that through the negligence of the Defendants in hiring
Borger, Borger's incompetence or dangerous qualities proximately caused the complained of injuries.
The record is devoid of any evidence that would suggest that
Defendants had knowledge, or reason to know, that Borger had any
dangerous characteristics or attributes. Borger underwent a
pre-employment background check, which included criminal history.
He passed all other screening procedures, which included a
pre-employment psychological evaluation, and supplied positive
character references. The record is simply devoid of any evidence
that would allow a reasonable fact finder to conclude that
Defendants were negligent in hiring Borger.
For the reasons set forth, supra, in the disucssion in
Section VI, Plaintiff has also not submitted to the Court
sufficient evidence to demonstrate that any triable issues of
fact exist as to her common law failure to train or supervise
With respect to its state law vicarious liability claim,
Plaintiff has set forth the elements of a negligence claim
against Borger in Count VIII of the Complaint. Specifically, she
alleges that he owed a duty of care to DiVigenze to perform his
police duties in a safe and reasonable manner and that he breached those duties, causing injury and death. Pursuant to
N.J.S.A. 59:2-2, public entities, such as the City of Camden and
the C.C.P.D., may be held vicariously liable for the negligent
acts of public employees.
Since neither party has briefed the issue of whether some form
of immunity which would bar the applicability of N.J.S.A.
59:2-2,*fn11 we will deny summary judgement as to Count
VIII, but do so without ruling on the merits of Plaintiff's claim
of negligence against Borger or on any immunity issue. The Court
notes that if in the future it is determined that Borger was not
negligent or that he is immune from liability,*fn12 the City
of Camden and C.C.P.D. would not be held liable. See, e.g.,
Ernst v. Borough of Ft. Lee, 739 F. Supp. 220 (D.N.J. 1990);
Dlugosz v. Fred S. James & Co., 212 N.J. Super. 175 (Law Div.
1986); Evans v. Elizabeth Police Dept., 190 N.J. Super. 633
(Law Div. 1983).
For the reasons set forth above, this Court will grant in part
and deny in part Defendants' Motion for Summary Judgment. The federal claims under § 1983, Count IV, and the state law
claims for negligent hiring and failure to train or supervise in
Count X against the City of Camden, the C.C.P.D. and Allenbach
will be dismissed with prejudice. However, the state law claim
against the City of Camden and C.C.P.D. in Count VIII will
remain, as well as all claims against Defendant, Robert Borger,
individually. An appropriate order will follow.