The opinion of the court was delivered by: Hon. Jerome B. Simandle
This matter comes before the Court upon the motion of Defendants City of Pleasantville, Patrolman Herbert Simons and Patrolman Matthew Hartmen (the "Defendants") for summary judgment pursuant to Fed. R. Civ. P. 56. Plaintiff Ivory Johnson, individually and on behalf of Natavian Johnson (a minor) brought this cause of action against Defendants claiming the following:
(1) a 42 U.S.C. § 1983 ("Section 1983") claim in which Ivory Johnson claims false arrest, excessive force and malicious prosecution in violation of her Fourth and Fourteenth Amendment rights against Patrolman Herbert Simons ("Patrolman Simons") (Counts 1 and 4 of the Complaint); (2) a Section 1983 claim in which Plaintiff Natavian Johnson claims excessive force in violation of his Fourth and Fourteenth Amendments against Defendant Patrolman Matthew Hartman ("Patrolman Hartman") (Count 5); (3) a common law tort claim for intentional and/or negligent infliction of emotional distress brought by Ivory Johnson against Patrolman Simons (Count 3); (4) a failure to train Patrolman Simons claim by Plaintiff Ivory Hartman and claims of respondeat superior against the City of Pleasantville (Counts 2, 4 and 6); and (5) a claim for the "loss of services" of her son Natavian Johnson brought by Ivory Johnson against Patrolman Simons (mistakenly captioned as "Simmons"), Patrolman Hartman and the City of Pleasantville (Count 7). Defendants' motion for summary judgment is unopposed and for the following reasons, it will be granted.*fn1
The Court finds as follows:
1. On Sunday, April 25, 2004 at approximately 12:30 a.m., Patrolman Simons, a patrolman with the City of Pleasantville Police Department, responded to a call of physical domestic violence at an apartment complex in Pleasantville, New Jersey. (Def.'s Statement of Facts as to Ivory Johnson ¶ 2.) While en route, Patrolman Simons was notified that the accused, James Spruill, had returned to his residence and was possibly in possession of a weapon. (Id. ¶ 3.) When Patrolman Simons arrived at the parking lot between two apartment buildings, he saw a large group of people fighting (some physically and others verbally) at which point he called for assistance. (Id. ¶ 5, 7.)
2. Patrolman Simons first performed a pat-down of Spruill and determined that he had no weapons in his possession. Simons reported that, as he patted down Spruill, the surrounding crowd moved towards him in a gesture he believed to be threatening to Spruill and himself. (Id. ¶ 9-11.) Simons testified that he ordered the members of the crowd to move back several times, but they were generally non-compliant. (Id. ¶ 12-14.) One member of the crowd was Ivory Johnson, who, in her deposition, admits to being told numerous times to step away from Patrolman Simons and Spruill. (Id. ¶ 19.) According to her deposition, Ivory Johnson, along with a Dorothy Lewis, was in the crowd and began speaking with Patrolman Simons about the events of the fight. (Id. ¶ 22-24.) Patrolman Simons reports that he then told Dorothy Lewis to step away from him and Spruill numerous times without compliance. After Lewis failed to comply with his numerous commands to step back, Patrolman Simons arrested her. (Id. ¶ 25.) The crowd, including Ivory Johnson, responded by "continu[ing] to push on Simons" with the crowd coming so close to him that he had to physically push them back. (Id. ¶ 27.) After Ivory Johnson came "close enough [to Simons] to push her back while he was arresting Dorothy Lewis and because she was not compliant with his orders to step back," Simons arrested Ivory Johnson charging her with obstruction of justice. (Id. ¶ 30.) She was taken to the Pleasantville Police Department for processing and later released on her own recognizance. (Id. ¶ 31-32.)*fn2
3. Patrolman Hartman responded to Patrolman Simons' call for additional units to handle a large fight in progress. (Def.'s Statement of Facts as to Natavian Johnson ¶ 5.) Once on the scene, Patrolman Hartman testified that he observed, in addition to the yelling back and forth between the Spruill family and the Johnson family, two male juveniles running around the scene "screaming and yelling" at Patrolman Simons. (Id. ¶ 9.) One of the juveniles, twelve-year-old Natavian Johnson, was attempting to reach his mother Ivory Johnson who had been arrested earlier by Patrolman Johnson and placed in a police car. (Id. ¶ 10.)
4. According to Natavian's testimony, he was "hysterical" "because [he] was mad, trying to get to [his] mom, because [he] did not understand why she was being arrested." (Id. ¶ 11.) Patrolman Simons reports having to push Natavian away "on several occasions," that Natavian continued to return to the location after an adult had taken him away, and continued to use curse words and swing his arms in a violent manner in an attempt to free his mother despite being instructed by Simons to step back. (Id. ¶ 12-13.) After being advised on several occasions to get back, Natavian continued to come at Patrolman Hartman. Patrolman Hartman proceeded to take physical control over Natavian by grabbing him by his shirt and escorting him away from the police car. (Id. ¶ 18.) Upon releasing Natavian, Natavian cursed at and threatened Patrolman Hartman at which point Hartman regained control of Natavian, utilized a leg sweep to take Johnson to the ground and placed Natavian's left arm in an arm bar in an attempt to gain control of him. (Id. ¶ 21.) Hartman then requested that adults in the area (which appeared to Hartman to be Natavian's friends and family) take control of Natavian, which they did. (Id. ¶ 23.)*fn3
5. According to Johnson, he arose without assistance, had no scratches or red marks on his neck and had only had a very small amount of blood coming out one of his arms. (Id. ¶ 25.) Natavian would later go to the hospital and was diagnosed with a cervical sprain. (Id. ¶ 27.) After he was released from the hospital, Natavian reports going to his family doctor only one time and admits to having full use of his neck and arms. (Id. ¶ 28-29.)
6. Plaintiffs filed their complaint (the "Complaint") in New Jersey Superior Court, Law Division, Atlantic County on July 20, 2005. In the Complaint, Plaintiffs allege claims under 42 U.S.C. § 1983,*fn4 the New Jersey Tort Claims Act and for Ivory Johnson's loss of the services of her son, Natavian. Defendants removed this matter to this Court on August 30, 2005. The matter was then referred to arbitration and the arbitrator filed an arbitration award on January 19, 2007. In mid-February, 2007, both Plaintiffs and Defendants filed requests for a trial de novo on February 12, 2007. [Docket Item No. 13]. Defendants filed this motion for summary judgment on March 14, 2007. [Docket Item No. 14.] The motion is unopposed.
7. On a motion for summary judgment, the court must determine whether "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Abraham v. Raso, 183 F.3d 279, 287 (3d Cir. 1999)(citing Fed. R. Civ. P. 56(c)). A party opposing summary judgment "must do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). If the nonmoving party fails to oppose the motion by evidence such as written objection, memorandum, or affidavits, the court "will accept as true all material facts set forth by the moving party with appropriate record support." Anchorage Assocs. v. Virgin Islands Bd. of Tax Rev., 922 F.2d 168, 175 (3d Cir. 1990)(quoting Jaroma v. Massey, 873 F.2d 17, 21 (1st Cir. 1989)). If the nonmoving party has failed to establish a triable issue of fact, summary judgment will not be granted unless "appropriate," and only if movants are entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(e); see Anchorage Assocs., 922 F.2d at 175.
8. The Court will first address Defendants' motion for summary judgment with respect to Plaintiff's Section 1983 claims against defendant City of Pleasantville (Counts 2,3 and 6).
Here, the Court holds that summary judgment in favor of the City is appropriate because the City is entitled to qualified immunity. Local governing bodies can be sued directly under 42 U.S.C. § 1983 for "monetary, declaratory, or injunctive relief where . . . the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers." Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 690 (1978). Municipal liability attaches only where execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury. See id. at 694. In the case of either policy or custom, a plaintiff must show that an ...