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Scattergood v. Kenney

March 18, 2008

ELAINE E. SCATTERGOOD, PLAINTIFF,
v.
LAWRENCE KENNEY AND AVALON POLICE, DEFENDANTS.



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

OPINION

Pro se plaintiff, Elaine Scattergood, filed a complaint against Police Officer Lawrence Kenney and the Avalon Police Department in Avalon, New Jersey pursuant to 42 U.S.C. §§ 1983, 1985 and 1986. She alleges that defendants conspired against her to deprive her of her civil rights through harassment, intimidation and false arrest and requests damages in the amount of four million dollars. Because Officer Lawrence Kenney is entitled to qualified immunity, his motion for summary judgment is granted. Also, because the "Avalon Police" is not a proper defendant and there is not a cognizable cause of action against any municipality, "Avalon Police" is dismissed. Finally, since there is no determination that plaintiff filed a frivolous or groundless complaint, defendants' motion for an award of counsel fees under 42 U.S.C. § 1988 is denied.

I. JURISDICTION

This Court exercises jurisdiction over plaintiff's federal claims pursuant to 28 U.S.C. § 1331.

II. BACKGROUND

This matter arises out of a dispute between plaintiff and her tenant, Ms. Katrina Shuptar. Ms. Shuptar and Ms. Scattergood entered into an agreement for the rental of Ms. Scattergood's residential property located in Avalon, New Jersey ("the rental property"). Ms. Shuptar rented the property during the summer of 2004 for the Fourth of July holiday and for three weeks in August. The relationship between Ms. Scattergood and her tenant deteriorated quickly and resulted in both women ultimately filing criminal complaints against the other.

Ms. Scattergood alleges in her complaint that she notified Ms. Shuptar that she would be entering the rental property in order to allow workmen to level a new refrigerator and remove the old refrigerator and place it in the garage. She states that Officer Kenney along with another police officer walked up to her and threatened her with arrest if she set foot on the rental property. This appears to have occurred on August 16, 2004. She also alleges that she attempted to speak to her tenant on that day about furniture that had been repaired and that she was charged with harassment. She states that as a result of the actions of Officer Kenney she has suffered "humiliation, consternation and distress."

According to the affidavit filed by Officer Kenney, and not disputed by plaintiff, earlier that day on August 16, 2004, both women contacted the police about their concerns over each other. Officer Kenney states he first met with Ms. Scattergood and she made a number of complaints about Ms. Shuptar. He states that Ms. Scattergood stated that she had the right to stay in the garage at the rental property because it was not included in the lease, and that she had the right to enter the rental property at any time. Officer Kenney further states that after meeting with Ms. Scattergood, Ms. Shuptar came into police headquarters to complain about Ms. Scattergood walking into the rental property unannounced, removing outside light bulbs and occupying the garage at the rental property. He states that Ms. Shuptar told him her family was afraid to stay at the property because of Ms. Scattergood's actions. Officer Kenney states that he told Ms. Shuptar she could file a criminal complaint but that Ms. Shuptar did not want to do so at that time and instead requested that Officer Kenney try to reason with Ms. Scattergood.

After meeting with Ms. Shuptar, Officer Kenney states he received a phone call from her advising him that Ms. Scattergood was again in the garage at the rental property. Officer Kenney went to the rental property with Paul Short, a Construction Code official employed by the Borough of Avalon. He states he told Ms. Scattergood that Ms. Shuptar had the right to file a complaint against her for trespass. According to Officer Kenney, Ms. Scattergood maintained that she had a right to be in the garage and that she wanted to clean the refrigerator located in the garage. Officer Kenney states that he mediated an agreement between the two women to allow Ms. Scattergood to stay in the garage to finish cleaning the refrigerator as long as Ms. Scattergood left within two hours or sooner.

The next day, on August 17, 2004, Ms. Shuptar filed an incident report with the Avalon Police Department. This report was filled out by Patrolman J. Gaughan. According to the report, Ms. Shuptar came into the station to provide an update on her previous report of a wallet missing from the rental property.

Ms. Shuptar also recounted several incidents that she described as "strange and unusual" involving Ms. Scattergood, including an allegation that Ms. Scattergood had been letting herself into the home at will since there were no locks on the doors.*fn1

According to Officer Kenney's affidavit, Ms. Shuptar returned to the police department on August 20, 2004, and was "visibly shaking." Ms. Shuptar complained that Ms. Scattergood was watching and circling the rental property with her automobile, and that Ms. Scattergood had followed her to a pizza parlor in Avalon. Ms. Shuptar filed a complaint at that time against Ms. Scattergood charging her with harassment, a petty disorderly persons offense in violation of N.J.S.A. 2C:33-4c. The complaint states that probable cause was found for the issuance of the complaint and was signed by the Court Administrator, Mary Monks.

Although Ms. Scattergood denies Ms. Shuptar's allegations regarding her "watching and circling" the rental property, she states in her opposition to defendants' motion for summary judgment that she would have knocked on her tenants' door but for the "threat" of Officer Kenney to have her arrested if she set foot on the property. She also states in her opposition that Mary Monk told her that "she did not want to take [Shuptar's] complaint, but that Kenney insisted."

On September 24, 2004, Ms. Scattergood filed a complaint against Ms. Shuptar for harassment in violation of N.J.S.A. 2C:33-4c, signed by Mary Monk ...


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