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Ference v. Township of Hamilton

February 6, 2008

FERENCE, ET AL., PLAINTIFFS,
v.
TOWNSHIP OF HAMILTON, ET AL., DEFENDANTS.



The opinion of the court was delivered by: WOLFSON,United States District Judge

For Publication

Opinion

Presently before the Court is a motion for summary judgment by defendants, the Township of Hamilton, the Hamilton Police Department (collectively the "Municipal Defendants") and Officer Robert Bilobran ("Bilobran"), with respect to the 42 U.S.C. § 1983 claims of Plaintiff Louis Ference ("Plaintiff" or "Mr. Ference").*fn1 This action arises out of the actions allegedly taken by Bilobran and other police officers after the breakout of an argument in the lobby of the Hamilton Township police station over the relinquishment of Plaintiff's granddaughter, T.A.F., from her paternal grandparents to her mother, Alicia Tazza ("Tazza"). Plaintiff's section 1983 claims are based on malicious prosecution, retaliatory prosecution, abuse of process, false arrest, false imprisonment and excessive force.

For the following reasons, the Municipal Defendants are entitled to summary judgment on all of Plaintiff's claims. Further, Bilobran is entitled to summary judgment on all of Plaintiff's claims except his section 1983 claim of excessive force.

I. Construing the Record for Purposes of Evaluating Defendants' Motions

Since defendants move for summary judgment, the Court will construe the record in the light most favorable to Plaintiff.*fn2 Green v. New Jersey State Police, 246 Fed. Appx. 158, 159 (3d Cir. 2007). The incident at issue in this case was the subject of proceedings before the Hamilton Township Municipal Court, and thus testimony given before that court and its findings are an important part of the record.*fn3 Further, a videotape of the incident was used in the municipal court trial, and the video is repeatedly referenced in the trial transcripts submitted by Plaintiff. See Krasny Certification, Exhibits A-D. Indeed, Plaintiff argues that "with a video tape of the incident available . . . the facts in dispute can be judged by the jury." Plaintiff's Opposition Brief, 14. The videotape is also likely the best available evidence of the events at issue in this case. Thus, the videotape will be considered as part of the record.*fn4

The above requires the Court to make two caveats to the usual rule that, on a summary judgment motion, the Court must construe the record in the light most favorable to the non-moving party. First, the Court will not draw inferences in Plaintiff's favor that are inconsistent with the events depicted in the videotape of the incident. See Scott v. Harris, 127 S.Ct. 1769, 1776 (2007) ("When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment . . . [and thus,] the Court of Appeals should not have relied on such visible fiction; it should have viewed the facts in the light depicted by the videotape").

Second, in accordance with Heck v. Humphrey, 512 U.S. 477 (1994), the Court will not draw inferences in Plaintiff's favor that would necessarily negate the municipal court's judgment that Plaintiff was guilty of violating section 86-3 of the Hamilton Code. The Court will draw inferences in Plaintiff's favor only insofar as they do not undermine the basis of the municipal court's findings. Plaintiff argues that Heck should not apply and that the Court should not consider the municipal judgment against him based on the doctrine of res judicata and limitations imposed by the Federal Rules of Evidence. However, the Court must consider Plaintiff's conviction in accordance with the Third Circuit's interpretation of Heck in Gilles v. Davis, 427 F.3d 197 (3d Cir. 2005). In Gilles, the court affirmed the principle that "[u]nder Heck, a § 1983 action that impugns the validity of the plaintiff's underlying conviction cannot be maintained unless the conviction has been reversed on direct appeal or impaired by collateral proceedings." Gilles, 427 F.3d at 209. The court recognized "that concurring and dissenting opinions in Spencer v. Kemna, 523 U.S. 1 (1998), question the applicability of Heck to an individual, such as [plaintiff], who has no recourse under the habeas statute." Id. at 209-10 (citations omitted). Notwithstanding the fact that the plaintiff had no recourse under habeas corpus, the court concluded that "these opinions do not affect our conclusion that Heck applies to [plaintiff's] claims." Id. at 210. I note, however, that other circuits are not in accord. See, e.g., Powers v. Hamilton County Defender Com'n, 501 F.3d 592, 603 (6th Cir. 2007) ("We are persuaded by the logic of those circuits that have held that Heck's favorable-termination requirement cannot be imposed against § 1983 plaintiffs who lack a habeas option for the vindication of their federal rights").

As explained below, Plaintiff was convicted of violating a municipal ordinance of the Township of Hamilton and assessed a minimal fine and court costs. Adezio Certification, Exhibit D. He did not appeal his conviction. Adezio Certification, Exhibit A, 70:1-2. Similar to the plaintiff in Gilles, who entered into Pennsylvania's Accelerated Rehabilitative Disposition program, whereby, after a probationary period his conviction was expunged, Plaintiff here had no recourse to habeas corpus; there was no detention to contest. Nonetheless, pursuant to Gilles, Heck still applies to Plaintiff's section 1983 claims.

Further, the fact that Plaintiff was found guilty of violating a municipal ordinance does not affect the analysis under Heck. First, under New Jersey law, "prosecutions for violations of municipal ordinances are criminal in nature." State v. DeAngelo, 396 N.J. Super. 23, 40 (App. Div. 2007) (citation omitted); see also State, Tp. Of Pennsauken v. Schad, 160 N.J. 156, 171 (1999) ("[M]unicipal court proceedings to prosecute violations of ordinances are essentially criminal in nature") (citation omitted). Moreover, to find Plaintiff guilty, the municipal court was required to find beyond a reasonable doubt that Plaintiff violated section 86-3. Krasny Certification, Exhibit D, 60 ("[T]here must be a proof beyond a reasonable doubt [,] these are criminal matters, and therefore, any lesser standard of proof provided by the State should and would result in an acquittal on the charges pending"). Further, a court in this district has recently applied Heck to bar a constitutional claim based on a conviction of a New Jersey disorderly persons offense, which, like a conviction for a municipal ordinance violation, is not a "crime" within the meaning of the New Jersey Constitution. N.J.S.A. 2C:1-4.a. In Garrison v. Porch, Docket No. 04-1114, 2007 WL 776799, * 3 n. 4 (D.N.J. Mar. 9, 2007), the court explained: "[Plaintiff] argues that Heck does not bar his constitutional claims because his guilty pleas were for disorderly persons offenses, which are not 'crimes' in the State of New Jersey. (Pl.'s Br. at 5-6.) [Plaintiff's] argument is untenable. The Third Circuit has held that pleading guilty to a disorderly persons conduct charge is sufficient to bar a subsequent § 1983 claim." (citing Gilles, 427 F.3d at 209 n. 8.) Thus, by analogy, Heck's rule, that a section 1983 claim that would necessarily impugn an underlying conviction will be barred unless there is "termination of the prior criminal proceeding in favor of the accused," Gilles, 427 F.3d at 210 (quoting Heck, 512 U.S. at 485), applies to Plaintiff's conviction for violating a municipal ordinance.

Second, the purposes that the Gilles court describes as underpinning Heck, "to avoid parallel litigation of probable cause and guilt" and to prevent "the claimant from succeeding in a tort action after having been convicted in the underlying criminal prosecution, which would run counter to the judicial policy against creating two conflicting resolutions arising from the same transaction," are applicable here. Id. at 209 (citing Heck, 512 U.S. at 484). If Heck did not apply to the case at bar, the Court would have to essentially retry the charge against Plaintiff for violating section 86-3 of the Hamilton Code in the course of evaluating his section 1983 claims.

Third, although they did not specifically discuss the matter, other federal courts, assessing its applicability, have applied Heck to section 1983 claims that would impugn the validity of a conviction under a municipal ordinance. See Swiecicki v. Delgado, 463 F.3d 489, 495 (6th Cir. 2006) (applying the Heck rule for tolling the statute of limitations where plaintiff was convicted of violating the Cleveland Codified Ordinance, and stating "if [plaintiff] had brought his excessive-force claim before such reversal [of his conviction], the district court would have had to dismiss it as Heck-barred")*fn5 (citing Heck); Cordova v. City of Reno, 920 F.Supp. 135, 137 (D. Nev. 1996) (plaintiff's section 1983 claim barred by Heck because it would "necessarily imply the invalidity of [plaintiff's] conviction under th[e] ordinance"); Acevedo v. City of O'Fallon, Docket No. 07-859, 2007 WL 1541881, *3 (E.D. Mo. May 24, 2007) (applying Heck to bar plaintiff's claims based upon violations of a municipal ordinance).

Thus, while resolving all factual disputes in favor of Plaintiff, the Court will not draw inferences that contradict the events depicted in the video of the incident or, pursuant to Heck, the basis of Plaintiff's conviction in municipal court.

II. Factual Background

Plaintiff's claims arise out of an incident on December 29, 2003, at the Hamilton Township Police Department, where Plaintiff had arranged to deliver T.A.F. to Tazza, following weekend visitation. Because some of Plaintiff's claims are very fact specific and must be considered in light of the totality of the circumstances, it is necessary to explain the incident at the police station in detail. When considering the facts of this case, it should be noted that the incident took place very quickly; less than a minute passed between the time Plaintiff entered the lobby and the time he was arrested. Krasny Certification, Exhibit D, 72.

Due to the strained nature of the relationship between Plaintiff's son, the father of Plaintiff's granddaughter, and Tazza, Plaintiff was used to effectuate communication between T.A.F.'s parents with respect to child visitation issues. Adezio Certification, Exhibit A, 23: 14-17. Plaintiff alleges that he had reached an agreement with Tazza that his family would keep T.A.F. through the weekend until the night of Monday, December 29, 2003. Over the course of the weekend, two disputes developed between Plaintiff's family and Tazza. First, there was a dispute between Plaintiff's son and Tazza over the payment of medical expenses. Id. at 24:1-9. Second, and more importantly, there was a dispute regarding the entitlement of Plaintiff and his family to keep T.A.F. through Monday. Krasny Certification, Exhibit D, 66-67. During the afternoon of December 29, Plaintiff claims that he left a message with the boyfriend of Tazza's mother, indicating that Plaintiff would deliver T.A.F. to the Hamilton police station that night at seven. Plaintiff received a call from the Hamilton police department around five-thirty or six, asking if Plaintiff could drop off T.A.F. earlier, but Plaintiff explained that by the time T.A.F. was packed up, they could not get there before seven. Adezio Certification, Exhibit A, 27:24- 28:17.

The upshot of these disputes follows. In the twenty four hours before Plaintiff was to bring T.A.F. to the police station, he had received three phone calls from the police and a call from Tazza accusing him of lying to the police about his entitlement to keep T.A.F. through the weekend. Krasny Certification, Exhibit D, 66. The Honorable Louis Sancinito, J.M.C., of the Hamilton Township Municipal Court found that Tazza "was making phone calls for the better part of 24 hours to the police [and] had already signed a complaint against Mr. Ference's son, a warrant complaint so a warrant had been issued for his son's arrest." Id. at 62. In short, when Plaintiff and his wife came to drop off T.A.F at the police station, as the municipal court indicated, "this was an emotionally charged evening." Id. Judge Sancinito also found that "Officer Bilobran got involved in the emotions that evening too, and I think in large part, as a result of the phone calls that were coming in and out, the fact that the Mrs. Tazzas were sitting there in the lobby for a significant period of time over this issue of custody." Id. at 63.

When Plaintiff and his wife entered the police station lobby with T.A.F., Tazza and her mother were already sitting in the lobby. Plaintiff started walking straight to the police desk where, presumably, he intended to drop off T.A.F. Tazza's mother came over and reached out to take T.A.F. away from Plaintiff, but Plaintiff just walked right by as if she were not there. Krasny Certification, Exhibit C, 114-15; Exhibit D, 69. The Municipal Court Judge found that "clearly, if simply the child was to be turned over or simply if the child was going to get a kiss goodbye, it could have been turned over to the grandmother at that point, and this incident would have been over." Krasny Certification, Exhibit D, 69. Next, Tazza got up, approached Plaintiff and reached for her daughter. In response, Plaintiff turned away with the child. The court found "that Mr. Ference, by his turning away, didn't intend to assault Ms. Tazza . . . I believe it was his intent that he was going to make this presentation of the child at the police bubble [(police desk)], for what actual purpose I don't know." Id. at 70. Further: "I find that clearly he was going to do whatever was necessary to make this exchange as difficult as possible for her. If his intent had been any different, he would have simply handed over the child to the grandmother five seconds after he entered that police station lobby." Id. at 73.

At this point, Tazza complained to the officers behind the police desk, and the officers repeatedly directed Plaintiff to turn over his granddaughter to Tazza. The Municipal Court Judge indicated that Plaintiff did not comply with the officers' instructions to turn over the child for at least sixteen seconds: "There is a course of time then from the point where Ms. Tazza basically addresses the bubble asking for help . . . a period of 16 seconds, during which time the testimony from Officer Bilobran and the other officers, and I don't really believe it's much disputed, even by Mr. Ference, that there was some discussion going on in terms of [asking Mr. Ference to, '] turn over the child, turn over the child,['] where Mr. Ference was kind of responding as well. That's a period of . . . 16 seconds until Officer Bilobran actually leaves the bubble area and enters into the lobby area." Id. at 70-71. In his deposition, Plaintiff claims that "the police are telling me, ['get the hell out. Get out of this lobby. Get your ass out of here,'] and they are pointing. I handed the baby to my wife. I immediately turned around to leave." Adezio Certification, Exhibit A, 38:12-16. Plaintiff's wife handed the child to the Tazzas who immediately left down a hallway leading to an exit different from the one that Plaintiff had used to enter the lobby. Adezio Certification, Exhibit A, 38:17-22.

The municipal court only made findings of fact until this point.*fn6 Plaintiff was convicted of violating Township Ordinance 86-3, titled "Interference with police officer." Adezio Certification, Exhibit C. The ordinance states: "No person shall resist, obstruct or interfere with any police officer of the township in the performance of his duty, nor shall any person disobey the lawful and reasonable order or instructions of any such officer." Id. In finding Plaintiff guilty beyond a reasonable doubt, the court reasoned as follows:

I don't find it appropriate in this case for Mr. Ference to have made a decision that I'm going to leave kind of when I want to leave, and I'm going to have my say and argue the situation, even if he believed that Officer Bilobran was coming from left field . . . And I find here very simply that Mr. Ference had a couple different opportunities to diffuse the situation . . . On the charge . . . filed by Officer Bilobran, I do find that Mr. Ference violated that ordinance of the Township [for failing to follow the reasonable and lawful directions of a police officer.] And I find that based very simply on the fact that he did have an opportunity. . . to diffuse the situation, to make the situation end. He had the control . . . He had the ability to terminate this problem by simply, one, turning over the child at any point in the course of, really, 30 seconds from the time he could have handed the child to the grandmother until Officer Bilobran actually exited the bubble area . . . Mr. Ference did not want to give up his chance to have kind of a final say before he did turn over the child, and it was only after his wife basically said give me the child that the situation ended and the Tazzas left. Krasny Certification, Exhibit D, 71-75.

After finally complying with the directions of the police, Plaintiff turned around and walked toward the exit of the lobby. As he walked, he claims there was an officer screaming behind him, "Get your ass out of here" and "You're moving too slow." Krasny Certification, Exhibit C, 122-123. Within a couple of feet of the front door, Id. at 123, Plaintiff claims that he was "forcibly shoved" from behind. Adezio Certification, Exhibit A, 40:9-11. Though Plaintiff claims it was a two-handed shove right below his neckline, Id. at 41:8-13, the video of the incident indicates that Bilobran used only one hand. Plaintiff claims that it "was a violent enough shove to push me through and into the glass of the door. You know, a couple of steps forward." Krasny Certification, Exhibit C, 124-25. Plaintiff contends that the shove caused his contact lenses to roll back into his eyes, Id. at 125, and his outstretched hand touched the glass of the door. Id.

Though the video does not indicate the force of the shove, it does indicate the surrounding circumstances. At the time of 19:51:49, Bilobran came out from behind the front desk with his finger indicating that Plaintiff should leave. Mrs. Ference was walking towards Tazza and her mother with T.A.F. At 19:51:51, Bilobran was walking towards Plaintiff, with Plaintiff turning around towards the exit. Mrs. Ference was in the process of handing T.A.F. over to Tazza and her mother. At 19:51:53, Plaintiff had turned around and started walking toward the exit. T.A.F. was in the arms of Tazza, and Tazza, her mother and Mrs. Ference were still in the lobby. Finally, at 19:51:55, Bilobran shoved Plaintiff with one hand. While Mrs. Ference is still in the lobby, Tazza and her mother are off screen, presumably having started walking down the hallway to exit the police station. This sequence captures the last six seconds of Plaintiff's standoff with Tazza and the police officers in the lobby. It clearly indicates that Bilobran shoved Plaintiff when T.A.F. had been returned to Tazza for at most a few seconds. In short, it shows that Plaintiff was shoved, not after, but during a disturbance in the police station lobby; a disturbance the municipal court found to be caused by Plaintiff's failure to follow police instructions.

After he was shoved, Plaintiff claims that he turned around and saw that it was Bilobran who had shoved him. Adezio Certification, Exhibit A, 40:16-19. Then Bilobran "was trying to get me to raise my fists. He had his fists in the air in a boxing stance."*fn7 Id. at 42:10-12. When Plaintiff asked Bilobran why he pushed Plaintiff, Bilobran allegedly responded that "[Plaintiff] was walking too F--ing slow." Id. at 43:4-7.

Next, with the assistance of another officer, Bilobran placed Plaintiff under arrest. The officers grabbed Plaintiff's arms and put them behind his back. Id. at 44:21-25; 45:1. Plaintiff claims that they "forcibly pushed me across the lobby. I mean, I was trying to walk, but they were like running with me with my hands behind my back to the door that goes into the back area of the police station." Id. at 43:15-19. They took Plaintiff back into the lobby where he claims they "ran [him] into the closed door face first."*fn8 Id. at 45:22-23. This is confirmed by Mrs. Ference. Krasny Certification, Exhibit D, 21. They twisted his arms to the point of causing severe pain in his left arm; it was shoved towards his head.*fn9 Krasny Certification, Exhibit C, 128. While his face was "scrunched into the door,"Adezio Certification, Exhibit A, 46:3, the door to the holding room was opened. Plaintiff was then handcuffed to a bar in a backroom for what he estimates to be fifteen to twenty minutes before he was released. Id. at 47:17-19; 50:20-21.

Bilobran exited the holding room to speak to another officer, and when he returned, Plaintiff alleges Bilobran said something like the following: "I don't know what happened here tonight. Everything got out of hand . . . You have to realize that these women have been driving me nuts . . . It wasn't handled properly but, you know, I want to apologize . . . you have every right to file charges if you think anything here was handled wrong." Id. at 49:21-25; 50:5-9.

After Plaintiff got in the car, he claims to have experienced chest pains and felt ill. Adezio Certification, Exhibit A, 51:3-5. His arm felt "like it was wrenched out of the socket." Id. at 52:15-17.Plaintiff went to the hospital, was given X-rays, was allegedly told that the prognosis was that he had "some soft tissue damage," and he "just took the hot compresses or Tylenol or whatever they recommended" for the pain. Id. at 53:6; 92:15-17. He did not stay overnight. Id. at 55:18. He used heat wraps for the next week or so. Id. at 76:1-3. Plaintiff provides no further evidence of physical injuries stemming from the incident and no documentation of his injuries.

Within a few days of the incident, Plaintiff claims that he contacted the Internal Affairs office of the police department to complain about the incident. Id. at 57:1-7. Plaintiff alleges that he received an envelope with a ticket and a summons that was postmarked on March 8, 2004, charging him with a violation of section 86-3 of the Hamilton Code, over two months after the incident. Krasny Certification, Exhibit C, 134.Bilobran claims that he wrote out and submitted the ticket for mailing within a few days of the incident. Krasny Certification, Exhibit A, 149. In any event, Plaintiff was mailed a court notice of the charge dated January 21, 2004. Adezio Certification attached to Municipal Defendants' Reply Brief, Exhibit A. Further, Plaintiff's defense counsel in the municipal court trial wrote a letter to the municipal prosecutor dated February 9, 2007, requesting a copy of the videotape. Id., Exhibit B. This indicates that Plaintiff was aware of the charge before March 8, 2004.

III. Procedural History

As a result of the above incident, Bilobran charged Plaintiff with violating Hamilton Township Ordinance 86-3. Adezio Certification, Exhibit C. Further, Tazza filed a complaint against Plaintiff, alleging that he had harassed her in violation of N.J.S.A. 2C:33-4B.*fn10 Adezio Certification, Exhibit B. On October 13, 2004, the municipal court found Plaintiff guilty of violating section 86-3 of the Hamilton Code and not guilty with respect to the charge of harassing Tazza. Krasny Certification, Exhibit D, 73-75. Plaintiff did not appeal his conviction. Adezio Certification, Exhibit A, 70:1-2.

Plaintiff filed the present lawsuit on December 29, 2005. Discovery ended on December ...


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