The opinion of the court was delivered by: Pisano, District Judge.
On March 3, 2003, Omayra Soberal ("Soberal") was shot and killed by Julio Reyes ("Reyes"), a Jersey City police officer. Plaintiffs, the Estate of Omayra Soberal, Rafael Soberal, Giovanni Alberto Germosen, and William Gonzalez (collectively, "Plaintiffs") bring this action pursuant to 42 U.S.C. § 1983 against Defendants, City of Jersey City ("Jersey City"), Jersey City Police Department ("Jersey City PD"), Police Director James Carter ("Director Carter"), Chief of Police Peter Behrens ("Chief Behrens"), Lieutenant James Blake ("Lt. Blake"), Lieutenant Pat Nalbach ("Lt. Nalbach"), Inspector Paul Wolleon ("Insp. Wolleon"), Sergeant Fred Younger ("Sgt. Younger"), and Officer John Bacigalupo ("Officer Bacigalupo") (collectively, "Defendants"). The Defendants filed motions for summary judgment pursuant to Fed. R. Civ. P. Rule 56. Plaintiffs oppose the Defendants' motions.
The Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1391(b). Having considered all arguments presented, the Court grants summary judgment as to Defendants, Jersey City, Jersey City PD, Director Behrens, and Chief Carter, but denies summary judgment as to Defendants, Lt. Nalbach, Insp. Wolleon, and Sgt. Younger.*fn1
Counsel have created a protracted procedural saga by the dismissal of some parties, substitution of others, two amended complaints, and various voluntary dismissals of claims. Plaintiffs initially brought the instant lawsuit on June 14, 2004, alleging that the Defendants, in their individual and official capacities, deprived Soberal of her Fifth and Fourteenth Amendment substantive due process rights resulting from negligence (Count I), failure to train or supervise Reyes (Count II), and failure to train or supervise the Jersey City police officers (Count III) in violation of 42 U.S.C. § 1983; malice, willful, and wanton conduct in violation of 42 U.S.C. §13981 (Count IV); homicide and assault (Count V); negligence (VI); and, loss of companionship (Count VII). Plaintiffs sought compensatory and punitive damages pursuant to 42 U.S.C. §§ 1983 and 13981, and sought attorneys' fees and costs pursuant to 42 U.S.C. § 1988. On August 5, 2005, Plaintiffs filed an amended complaint naming additional Plaintiffs, William Gonzalez and Giovanni Alberto Germosen. Plaintiffs also added Defendants, Lt. Blake, Lt. Nalbach, Insp. Wolleon, Sergeant William Cullinane ("Sgt. Cullinane"), Detective Kevin Guy ("Det. Guy"), Officer Charles Levine ("Officer Levine"), Officer Bacigalupo, Officer Michael Gullace ("Officer Gullace"), Peter Stoma, Assistant Hudson County Prosecutor ("Stoma"), John Does 1-25, and Jane Does 1-5.
A second amended complaint was filed on November 21, 2005. Plaintiffs allege that the Defendants, in their individual and official capacities, deprived Soberal of her Fifth and Fourteenth Amendment substantive due process rights (Count I), failure to properly train and supervise Reyes (Count II), failure to properly train and supervise the Jersey City police officers (Count III), and negligence (Count IV) in violation of § 1983; facilitated Reyes' intentional homicide of Soberal (Count V); caused Soberal conscious pain and suffering (Count VI); and, contributed to Soberal's wrongful death (Count VII).*fn2 Plaintiffs seek compensatory and punitive damages pursuant only to § 1983 and attorneys' fees and costs pursuant to 42 U.S.C. § 1988.
On November 30, 2005, Defendants, DeFazio, Stoma, and the HCPO filed a motion to dismiss for lack of jurisdiction. Plaintiffs opposed the motion.
On May 22, 2006, Plaintiffs dismissed various claims asserted in the second amended complaint. Count III as to Defendants, DeFazio and Stoma was dismissed. Plaintiffs also dismissed Defendants, DeFazio, Stoma, John Does 1-25, and Jane Does 1-5 acting as agents, employees, or servants of the HCPO, in their official capacity only.
On July 24, 2006, the Court granted Defendants, DeFazio, Stoma, and the HCPO's motion to dismiss for lack of jurisdiction and terminated those Defendants as parties from the action.
On December 26, 2006, the parties executed a consent order dismissing Defendants, Officer Joseph Walsh ("Officer Walsh"), Officer Larry Quish ("Officer Quish"), Det. Guy, Officer Levine, Sgt. Cullinane, and Officer Gullace.
The Defendants, Sgt. Younger, Lt. Nalbach, and Insp. Wolleon (collectively, "Defendant officers") filed the instant motion for summary judgment on March 29, 2007. The Defendants, Jersey City, Jersey City PD, Director Carter, and Chief Behrens (collectively, "Defendant municipality") filed their motion for summary judgment on March 30, 2007. In their opposition, Plaintiffs consented to the entry of summary judgment in favor of the Jersey City PD as to all counts, dismissed the claims against Director Behrens and Chief Carter, individually, and limited punitive damages as to the individual defendants only.
The claims which remain are: municipal liability against Jersey City and Defendants, Director Carter and Chief Behrens under § 1983; violations of Soberal's Fifth and Fourteenth Amendment substantive due process rights against Lt. Nalbach, Sgt. Younger, and Insp. Wolleon under § 1983; and, pendent state law torts claims against all of the Defendants. The Court heard oral argument on November 5, 2007, and now decides the motion.
The facts of this case are undeniably tragic. Soberal and Reyes began a romantic relationship in October 2002, and eventually lived together with Soberal's two sons, Giovanni Germosen and William Gonzalez. On August 24, 2002, an alleged domestic violence dispute occurred between Reyes and Soberal at their house. As described in the police report, an argument between the two escalated into physical contact where Soberal allegedly pushed Reyes and, according to Soberal, Reyes slapped her, which he denied. Ultimately, neither party filed a formal complaint nor were there any criminal charges brought against them.
At the time of the incident, the responding Jersey City police officer, Sergeant Reynolds ("Sgt. Reynolds"), was informed by Soberal that Reyes was also a Jersey City police officer, which Reyes confirmed. Reyes had been a member of the Jersey City PD since March 9, 1994 and was stationed out of the West District. The Jersey City PD had a policy, General Order #11-96 ("Order 11-96"), that required police officers responding to domestic violence calls involving another police officer to assess the scene and determine whether a seizure of weapons was warranted. Sgt. Reynolds did not observe any objective, physical signs of violence in the apartment, and because Reyes' weapons were already secured at the West District, Sgt. Reynolds determined that a seizure of Reyes' weapons was not necessary. Soberal and Reyes were each given a victim's rights sheet.
After this first incident, Soberal and Reyes continued to cohabit together. On October 16, 2002, Soberal called emergency services to respond to their apartment because Reyes was harassing her in an attempt to reconcile, which she did not want to do. Sgt. Reynolds, again, responded to the call. Soberal's allegations against Reyes were not physically violent in nature and Sgt. Reynolds did not observe any signs of physical injury or property damage. Soberal did not want to file a formal criminal complaint against Reyes. Sgt. Reynolds ordered Reyes to report to the West District while he escorted Soberal to the South District to complete the application for a temporary restraining order ("TRO"). At the South District, Soberal spoke with a municipal court judge via telephone, and after the interview was completed, the municipal judge issued a TRO with weapons restriction. The TRO was served upon Soberal and Reyes, whose weapons were also confiscated. Reyes was suspended from duty pursuant to N.J.A.C. 4A:2-2.3.
On October 25, 2002, the return date for entry of a Final Restraining Order ("FRO"), Soberal and Reyes appeared before the Honorable Hector Vasquez in the Superior Court of New Jersey, Chancery Division, Family Part. Soberal opted to forgo seeking a FRO and consented to the dismissal of the action. Soberal also executed an Affidavit for Dissolution/Modification of Order in which she requested the dissolution of the TRO. The affidavit acknowledged that Soberal's request was voluntary and that she had reconsidered her request. The court entered an Order of Dismissal.
Because Reyes was an officer involved in domestic violence, the Jersey City PD Internal Affairs Unit ("JCPD-IAU") became involved in the investigation. The JCPD-IAU is responsible for determining whether to recommend to the County Prosecutor the return of a weapon to a police officer. Lt. Blake of the JCPD-IAU interviewed Soberal to determine whether she had any concerns about the return of Reyes' weapons, which Soberal consented to on October 29, 2002. On October 30, 2002, Lieutenant Donahue forwarded a request to Stoma that Reyes should have his weapons returned so he could return to duty.
Reyes was also scheduled for a fitness for duty psychological examination at the Institute for Forensic Psychology on November 5, 2002. Reyes was examined by Amie Wolf-Mehlman, Ph.D. Dr. Wolf-Mehlman's report concluded that:
(1) Officer Reyes is basically fit for duty. He demonstrates no mental disorders or significant clinical symptoms at this time, although there are problems with stress with regard to relationships.
(2) Officer Reyes is experiencing some anxiety and would certainly benefit from, and should be required to attend therapy sessions and stress management sessions in order to stabilize himself with regard to his anxiety and relationship difficulties.
(3) Officer Reyes is not considered a danger to self or others at this time.
(4) Officer Reyes should continue in counseling, as well as stress management, for at least three to six months. He should have his treating professional send regular reports to his department signifying that: (a) he is coming to sessions; (b) that he is, or is not serious about treatment; (c) that he is, or is not making progress; and (d) whether or not any changes have occurred which would constitute danger to self or others.
(5) Officer Reyes should not terminate treatment until it is mutually agreed upon between himself and the treating physician.
(6) On conclusion of treatment, Officer Reyes should submit a letter from his treating physician certifying that he is fit to return to full duty.
(7) It would be very important to consider removing this individual's weapons and consider him unfit for duty if, in the future, there is any evidence of any problems between himself and others that involve anger or aggression.
Def. Ex. R. Dr. Wolf-Mehlman did not recommend that Reyes complete his counseling before returning to duty.
Following Dr. Wolf-Mehlman's findings, Sergeant Alexander Forsythe ("Sgt. Forsythe") of the JCPD-IAU investigated the charges against Reyes and "sustained" them. He noted the "murkiness" of Dr. Wolf-Mehlman's findings and "the many caveats she included" regarding Reyes' return to duty. Def. Ex. S., pg. 000141. Sgt. Forsythe also recommended Reyes could be given his weapon back upon approval by HCPO, which Stoma granted on December 3, 2002, conditioned upon Reyes obtaining psychiatric counseling as suggested by Dr. Wolf-Mehlman.
Reyes was then referred to the Jersey City Employee Assistance Program ("JCEAP") for an initial evaluation and referral to counseling. On December 4, 2002, Lila White of the JCEAP advised the Jersey City PD that, based on Reyes' evaluation, he would receive three months of weekly counseling - the equivalent of twelve weeks or twelve sessions - from Tod Bergman ("Bergman"), a licensed clinical social worker, beginning December 11, 2002. Reyes attended his regular sessions with the therapist and Bergman reported to the Jersey City PD that Reyes was in compliance with his required counseling and was making progress. Reyes' final session with Bergman was scheduled for March 5, 2003.
During the course of his treatment, Reyes continued a relationship with Soberal. Reyes' divorce from his first wife, Nilsa Reyes, was also finalized during the week of February 16, 2003. In the week leading up to the tragic events of March 3, 2003, Reyes left several messages on Soberal's voice mail at work, which were discovered during a post-incident investigation conducted by Hudson County detectives. The post-incident investigation also revealed what appeared to be a suicide note written by Reyes, although it is unclear when or how Soberal received the note. On or about March 1, 2003, Reyes learned that Soberal had been dating an old boyfriend during his relationship with her and started harassing her. According to Soberal's brother, Raphael Soberal, Soberal intended to file a restraining order against Reyes on March 2, 2003. Soberal called the South District, but did not go to the police station that night.
The following day, on March 3, 2003, Soberal went to the West District on her way home from work and asked to speak with Reyes' supervisor. Lt. Nalbach was brought to speak with Soberal, and she informed him that she was having problems with Reyes, Reyes was making harassing phone calls to her, and she wanted a restraining order against Reyes. Lt. Nalbach then called the Jersey City PD Central Control Room looking for the Commander in Charge, who was Insp. Wolleon that evening. At some point, Soberal left a message on Reyes' beeper at 6:00 p.m., which he retrieved at 6:05 p.m. Insp. Wolleon, who was not at the station, was contacted by Lt. Nalbach and told about Soberal's complaints against Reyes. Pursuant to procedure, around 7:30 p.m., Insp. Wolleon contacted Lt. Blake of the JCPD-IAU and when the two spoke, Lt. Blake asked to be kept informed about the situation, and if a restraining order were to be issued, Insp. Wolleon was to bring Reyes into the JCPD-IAU.
When Insp. Wolleon arrived at the West District, he found Lt. Nalbach with Soberal. After speaking with Soberal, Insp. Wolleon instructed Sgt. Younger to interview Soberal and process her application for a TRO. Reyes was not present at the time. Sgt. Younger escorted Soberal to an office on the second floor of the building and began his interview of Soberal. While the interview was being conducted, Reyes called the West District at approximately 7:40 p.m. At the time of the call, Officer Bacigalupo was at the Sergeant's desk and asked to answer it. The following thirty-second conversation took place:
Bacigalupo: "West District, Officer Bacigalupo."
R: Hey Bac, it's Julio Reyes, is the maniac one there for me?"*fn4
B: Don't know, she's upstairs.
B: Yeah, uh. I don't really want to talk on this phone, you know what I mean?
B: The only thing...you want to swing by?
R: Yeah, I'm gonna swing by.
Def. Ex. GG, pg. 000259. Sgt. Younger continued to conduct his interview of Soberal to obtain the factual basis for the TRO. Soberal declined to file criminal charges against Reyes and advised Sgt. Younger that there had been a previous TRO, but that she voluntarily dismissed it. Soberal did not tell Sgt. Younger about any other incidents prior to the October 2002 TRO or that she intended to file a TRO the night of March 2, 2002. She also did not tell Sgt. Younger about Reyes' suicide note that the investigators later found.
While the interview was being conducted, Reyes arrived at the West District, entered the interview room, and attempted to speak with Soberal. Sgt. Younger ordered Reyes to go downstairs and called Lt. Nalbach around 7:45 p.m. to tell him about what happened. While on hold, Sgt. Younger continued to interview Soberal, which was recorded:
Officer Gullace: "West District, Officer Gullace."
Sgt. Younger: Hey, how you doing? Is the Lt. around, it's ...