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Pomykacz v. Borough of West Wildwood

July 20, 2006


The opinion of the court was delivered by: Irenas, Senior District Judge


Plaintiff Maureen Pomykacz ("Pomykacz") brings claims pursuant to 42 U.S.C. §§ 1983 and 1985 asserting that Defendants violated her constitutional rights by arresting and prosecuting her for stalking Defendants Jacqueline Ferentz and Christopher Fox. Pomykacz also asserts state common law claims of false arrest, malicious prosecution and civil conspiracy. Before the Court are the Motion for Summary Judgment of Defendants Borough of West Wildwood (the "Borough") and Fox and the Motion for Summary Judgment of Defendant Ferentz.*fn1


Pomykacz considers herself a "citizen activist." As such, she has taken it upon herself to monitor the activities of the police force and the mayor of West Wildwood, the borough in which she has lived for over ten years.*fn2 During 2002, Pomykacz became concerned about two issues involving Ferentz, a West Wildwood police officer and Fox, the mayor of West Wildwood. First, Pomykacz and others in the community believed that Officer Ferentz and Mayor Fox were having a romantic relationship, which raised concerns in Pomykacz's mind about nepotism, conflict of interest, and preferential treatment of Ferentz with respect to the terms of her employment.*fn3 Second, Borough police officers were engaging in volunteer work by helping to make renovations to the Borough's municipal building, but Pomykacz and others became concerned that the officers, including Officer Ferentz, were helping with the renovations during their patrol shifts and being paid overtime for their work without the public's knowledge. The municipal building houses the police headquarters and is located around the corner from Pomykacz's home.

These concerns prompted Pomykacz to begin monitoring Officer Ferentz and Mayor Fox. Pomykacz's "monitoring" activities included taking photographs of Officer Ferentz with a disposable camera, although the parties dispute how frequently and under what circumstances the pictures were taken. According to Pomykacz, she only took a picture of Officer Ferentz or her patrol vehicle on three separate occasions and all three times Pomykacz believed that she was documenting Officer Ferentz's activities while on duty. She threw away the camera without developing the pictures.

Defendants' version of the story is that Pomykacz drove past and stopped in front of the house in which Mayor Fox and Officer Ferentz both live*fn4 at least a dozen times*fn5 at all hours of the day and night, and sometimes followed Officer Ferentz during times when she was on and off duty. In particular, Officer Ferentz asserts that Pomykacz once followed her to the house of Officer Ferentz's father and stopped several times in front of the house while Officer Ferentz was off duty and visiting her father. On another occasion, Officer Ferentz asserts that, while in her home, she observed Pomykacz on her property taking photographs around the dumpster. Pomykacz specifically denies each aspect of the Defendants' version of events.*fn6

It is against this backdrop that the events immediately giving rise to the present suit occurred. On the night of October 7, 2002, on her way to Wildwood, Pomykacz drove past the borough municipal building and observed Officer Ferentz working on renovations while she was on duty. Later that night, after Pomykacz had returned from Wildwood, she photographed Officer Ferentz in the police headquarters.*fn7 Another police officer and Mayor Fox were also present in the police station at the time. According to Pomykacz, Mayor Fox came out of the building and began yelling at her. Pomykacz walked home without responding.

That same night, Mayor Fox and Officer Ferentz called Cape May County Assistant Prosecutor Michelle DeWeese to consult with her about the incident that had just occurred and possibly filing stalking charges against Pomykacz. DeWeese advised officer Ferentz about the necessary facts to support a stalking charge. By the end of the conversation, it was decided that a judge should be contacted about obtaining a warrant for Pomykacz's arrest. Accordingly, Officer Ferentz called West Wildwood Municipal Court Judge Louis Belasco.

The record is somewhat unclear about what happened next. A criminal complaint against Pomykacz was drafted and delivered to Judge Belasco at his home in the early morning hours of October 8, 2002. The complaint alleged that Pomykacz stalked both Officer Ferentz and Mayor Fox. It is unclear whether the judge held a formal hearing to determine whether probable cause for Pomykacz's arrest existed. In any event, Officer Ferentz told Judge Belasco her version of prior events as described above, including the facts that Pomykacz had followed Officer Ferentz to her father's house and had entered onto Officer Ferentz's property to take pictures. The record does not indicate what, if any, specific information was given about Pomykacz's actions with respect to Mayor Fox. Based on this information, Judge Belasco determined that there was probable cause to believe that Pomykacz had committed the crime of stalking Officer Ferentz and Mayor Fox and signed the warrant for Pomykacz's arrest. A restraining order was also issued against Pomykacz.

The police came to Pomykacz's home that morning and advised her that a warrant for her arrest had been issued. They asked her to come down to the police station. She voluntarily came to the police station a few hours later, as she was not properly dressed at the time the police arrived at the house. Upon arriving at the police station, Pomykacz was given the arrest warrant and booked.

The Cape May County Prosecutor later downgraded the charges against Pomykacz to harassment. A bench trial was held in Upper Township Municipal Court on April 30, May 28, and July 2, 2003. Municipal Court Judge Gilbert Gilbertson found Pomykacz guilty of harassing Officer Ferentz and not guilty of harassing Mayor Fox. Pomykacz was fined $250.00. She appealed her conviction. On appeal, the Cape May County Prosecutor conceded that the evidence did not support the requisite state of mind for the offense of harassment and Pomykacz was found not guilty of harassing Officer Ferentz.

Based on these events, Pomykacz asserts the following claims: retaliation for her monitoring activities in violation of the First Amendment, violations of her Fourth Amendment rights, violations of her Fourteenth Amendment procedural and substantive due process rights, and state common law claims of false arrest and malicious prosecution. She also asserts that Officer Ferentz and Mayor Fox conspired to commit those torts, in violation of 42 U.S.C. § 1985(3) and state common law.

Pomykacz sues Officer Ferentz and Mayor Fox in both their individual and official capacities. She also sues the Borough of West Wildwood on the theory that the Borough's policy, practice or custom violated her constitutional rights and that the Borough is vicariously liable for the acts of Officer Ferentz and Mayor Fox with respect to the state common law claims.


"[S]ummary judgment is proper 'if 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.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed. R. Civ. P. 56(c)). 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). "'With respect to an issue on which the non-moving party bears the burden of proof, the burden on the moving party may be discharged by 'showing'-- that is, pointing out to the district court -- that there is an absence of evidence to support the nonmoving party's case.'" Conoshenti v. Public Serv. Elec. & Gas, 364 F.3d 135, 145-46 (3d Cir. 2004) (quoting Celotex). 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).


The Court will first address Officer Ferentz's and Mayor Fox's arguments in favor of summary judgment and then turn to the issue of municipal liability.


Officer Ferentz and Mayor Fox assert that they are not subject to Section 1983 liability because they were not acting under the color of state law when they made the criminal complaint against Pomykacz. They assert that they were the victims of Pomykacz's alleged stalking and that they made their complaint as private citizens.

Section 1983 provides: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." 42 U.S.C. § 1983. A person acts "under color of state law" when he or she "exercise[s] power 'possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.'" Bonenberger v. Plymouth Twp., 132 F.3d 20, 24 (3d Cir. 1997) (quoting West v. Atkins, 487 U.S. 42, 49 (1988)).

The undisputed facts present a close question as to whether Officer Ferentz and Mayor Fox were acting as state actors when they initiated criminal proceedings against Pomykacz. Officer Ferentz and Mayor Fox contacted Cape May County Assistant Prosecutor DeWeese, who was the prosecutor on call for the night, to consult with her about possible charges against Pomykacz. Then, in the middle of the night, Officer Ferentz and Mayor Fox managed to have their criminal complaint delivered to Judge Belasco's home and a warrant issued for Pomykacz's arrest.

Private citizens do not have such ease of access to the County Prosecutor's Office or judges at any time, and certainly not after-hours. In the normal course of a citizen's complaint of stalking or harassment, a private citizen makes a complaint to law enforcement officers who may thereafter contact the county prosecutor. In this case, Officer Ferentz and Mayor Fox used their authority as law enforcement officials to contact the county prosecutor directly. At the very least, they were acting simultaneously as private citizens and law enforcement officials at that time. Given Officer Ferentz's and Mayor Fox's unusual access to the local criminal process and the factual subtleties implicated in this case, the Court will assume for the ...

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