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Wade v. Colaner

March 19, 2009


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


Presently before the Court is a Motion for Summary Judgment by Defendants Gerald M. Turning and the Borough of Tinton Falls (collectively "Tinton Falls Defendants") to dismiss pro se Plaintiff Gary S. Wade's ("Plaintiff") Complaint. Tinton Falls also moves for Summary Judgment on its counterclaim against Plaintiff for reimbursement of wages paid while Plaintiff was suspended from his employment as a Tinton Falls police officer. In addition, Defendants Michael Colaner and David Ryan (collectively "State Defendants") move to dismiss Plaintiff's Complaint pursuant to Fed. R. Civ. P. 12(b)(6). Plaintiff alleges that State Defendants violated his Fourth and Fourteenth Amendment rights when they used excessive force in effecting his arrest and subsequently refusing to call for an ambulance to treat his injuries. Additionally, Plaintiff alleges that Tinton Falls Defendants violated his Loudermill rights under the Fourteenth Amendment when they did not offer him a pre-suspension hearing.*fn1 For the reasons that follow, the Court denies State Defendants' Motion to Dismiss Plaintiff's excessive force claim but dismisses Plaintiff's deliberate indifference claim. Further, the Court grants the Tinton Falls Defendants' Motion for Summary Judgment on Plaintiff's claims. In addition, the Court grants the Tinton Falls' Motion for Summary Judgment as to its counterclaim against Plaintiff.


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

Since State Defendants move pursuant to Fed. R. Civ. P. 12(b)(6), the Court must take the allegations as set forth in Plaintiff's Complaint as true. Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). However, the disputed incident which gives rise to Plaintiff's claims against State Defendants, Plaintiff's arrest, and subsequent criminal charges, have been the subject of criminal proceedings before a municipal court, whose decision was later affirmed by both the New Jersey State Superior Court and the Appellate Division. At the municipal court and New Jersey Superior Court proceedings, a videotape of the incident was reviewed, and findings were made as to what actually occurred. As a result, this Court must resolve the inherent tension in construing the record of the previous court proceedings together with Plaintiff's Complaint in the context of the general standard of review on a 12(b)(6) motion.

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). Second, in accordance with Heck v. Humphrey, 512 U.S. 477 (1994), see infra, the Court will not draw inferences in Plaintiff's favor that would necessarily negate the findings of the municipal court, the affirmance of the New Jersey Superior Court and the Appellate Division. See Ference v. Township of Hamilton, 538 F. Supp. 2d 785 (D.N.J. 2008). The Court will construe the allegations in Plaintiff's Complaint as true only insofar as they do not undermine the basis of the municipal court's findings.

Third, although not argued by the parties, Heck is applicable to Plaintiff's underlying convictions. This Court and others, have applied Heck to §1983 claims that would impugn the validity of a conviction under a municipal ordinance. See Ference, 538 F. Supp. 2d at 790; Cordova v. City of Reno, 920 F.Supp. 135, 137 (D. Nev. 1996) (plaintiff's §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, at *3 (E.D. Mo. May 24, 2007) (applying Heck to bar plaintiff's claims based upon violations of a municipal ordinance).

Thus, while this Court is generally required to take Plaintiff's allegations as true on a motion to dismiss, the Court will construe Plaintiff' Complaint in a manner consistent with the prior court proceedings and Plaintiff's criminal conviction.

B. Factual Background

From January 4, 1999 through November 8, 2006, Plaintiff was employed as a police officer for the Borough of Tinton Falls. Tinton Falls Defendants' Statement of Undisputed Material Facts ("Tinton Falls SOF") ¶1. On the morning of August 17, 2004, Plaintiff was driving an unmarked police car on his way to work. Id. ¶¶ 5-6. As Plaintiff was proceeding northbound on the Garden State Parkway, he was pulled over by State Defendants Michael Colaner and David Ryan, both New Jersey State Troopers. Id. ¶7. Colaner later testified that he pulled Plaintiff over because Plaintiff was driving over 90 miles per hour. Id. ¶8. After approaching Plaintiff's car and initiating contact, State Defendants claim Plaintiff was bellicose and unresponsive, unwilling to answer their questions and provide proper identification. Id. ¶9. Specifically, Plaintiff refused to tell State Defendants whether he was a police officer or whether he was in possession of a firearm. Id. In addition, Plaintiff demanded that a supervisor be called to the scene because the State Defendants had pulled Plaintiff over within the municipal limits of Tinton Falls. Certification of Arthur Thibault ("Thibault Certif."), Exh. E, New Jersey State Police Investigative Report.*fn2

At this point, State Defendants determined that Plaintiff's behavior warranted that he be arrested for obstruction of the administration of law and resisting arrest. Tinton Falls SOF ¶ 12. Plaintiff, however, refused to cooperate when State Defendants asked Plaintiff to lay on the ground, at which point State Defendants both wrestled Plaintiff to the ground. Thibault Certif., Exh. E. In addition, State Defendants administered pepper spray to the right side of Plaintiff's head. Id. After his arrest, Plaintiff was transported to the Holmdel State Police barracks, where he was met by Defendant Chief Turning and the president of the Police Benevolent Association ("PBA") President for Local 251, Chris Camillieri. Tinton Falls SOF ¶ 11. As a result of his arrest, Plaintiff was charged with obstruction of administration of law and resisting arrest.

Tinton Falls SOF ¶12. Plaintiff was also issued a motor vehicle violation for careless driving. Plaintiff was subsequently released from custody on August 17, 2004. Id. ¶13. Upon his release, Plaintiff was informed by Turning that effective immediately, Plaintiff was being suspended with pay. Id.

Plaintiff made no attempt to contact Turning or any other official with the Borough of Tinton Falls between August 17 and September 16, 2004. Id. ¶16. By memo dated September 16, 2004, Turning informed Plaintiff that effective September 18, 2004, Plaintiff was to be suspended without pay as a result of his August 17th arrest. Id. ¶17. The memo stated "The Borough of Tinton Falls is changing your status from suspended with pay to suspended without pay effective September 18, 2004. A copy of a Preliminary Notice of Discipline is attached along with the specifications to the Departmental Charges that will be addressed immediately following the presentation to the Jury or trial." Id. Importantly, the Preliminary Notice of Discipline accompanying the memo gave Plaintiff ten days within which Plaintiff could request a hearing to contest his changed status. Id. ¶18. However, Plaintiff admitted that he never contacted Turning to schedule a hearing. Id. ¶19; Thibault Certif., Exh. G, Deposition of Gary S. Wade 300:21-22.

On October 19, 2004, the Monmouth County Prosecutor's Office presented a proposed agreement regarding the pending charges against Plaintiff. In sum, the State would dismiss the charges if Plaintiff acquiesced to a psychological fitness for duty examination and accepted a six month suspension without pay, retroactive to his August 17th suspension. Tinton Falls SOF ¶ 21. Although Turning was open to such an offer, Plaintiff rejected the proposed agreement. Id. ¶ ¶ 22-23. On April 12, 2005, a grand jury chose not to indict Plaintiff for felony resisting arrest and the obstruction of administration of law charges. Id. ¶24. The charges were ultimately downgraded to disorderly persons offenses, obstruction of administration of law and careless driving, and sent to the Freehold Borough Municipal Court. Id. As a result of the grand jury's actions, Plaintiff was informed by memo dated April 14, 2005 that his suspension status was changed again, from without pay to pay effective April 12, 2005. Id. ¶ ¶25-26. However, the memo informed Plaintiff that he would only be permitted to return to work after he reported for a psychological fitness for duty examination. Id.

On May 5, 2005, Dr. Betty McLendon examined Plaintiff and determined that he was unfit for duty. Id. ¶28. Upon receiving the results of McLendon's examination, Tinton Falls informed Plaintiff by a letter dated June 15, 2005, that he would be placed on unpaid Family and Medical Leave. Id. ¶29. The letter urged Plaintiff to use his fourteen weeks of accrued time to retain pay status during this imposed hiatus. Id. Plaintiff agreed, and beginning on July 3, 2005, Plaintiff began utilizing his accrued time in order to continue receiving pay. Id. ¶30. On December 8, 2005, Plaintiff was informed that he would remain on medical leave until he was determined to be fit for duty through a subsequent fitness for duty examination. Id. ¶35.

On March 9, 2006, Plaintiff was convicted in municipal court of obstruction of the administration of law*fn3 and careless driving charges. Id. ¶38. Plaintiff appealed this conviction to the New Jersey Superior Court. Sometime in October 2006, Tinton Falls initiated an internal investigation into Plaintiff's alleged conduct during the August 17th incident. Id. ¶39. The investigation yielded disciplinary charges, which sought Plaintiff's termination from his employment. Id. ¶40. Plaintiff was served with notice of these disciplinary charges that also informed him that he could request a hearing by November 10, 2006. The New Jersey Superior Court, Monmouth County Vicinage, affirmed the lower court conviction on November 8, 2006. Id. ¶41. In doing so, the Superior Court Judge accepted the testimony of State Defendants as a more accurate representation of what transpired before Plaintiff's arrest. Thibault Certif., Exh. X, New Jersey Superior Court Ruling. In accordance with N.J.S.A. 2C:59-2, the Superior Court ordered that Plaintiff forfeit his public employment with Tinton Falls, thereby rendering Tinton Fall's disciplinary charges moot. Tinton Falls SOF ¶41.

On August 1, 2006, Plaintiff initiated this action in the United States District Court for the District of New Jersey. On October 25, 2007, Defendants Tinton Falls and Turning filed a Motion for Summary Judgment. However, soon after the filing of these motions, Plaintiff's counsel sought withdrawal from the case at bar. In an Order dated November 5, 2007, United States District Magistrate Judge, the Honorable Tonianne J. Bongiovanni, ordered that "[p]laintiff shall retain new counsel on or before November 30, 2007 or else Plaintiff will be deemed pro se." The Letter Order further stated that "the Court [would] reset the summary judgment schedule once [the] new counsel issue [was] resolved." However, Plaintiff never retained new counsel and consistent with the November 5th order, Judge Bongiovanni ordered that Plaintiff be deemed pro se on December 3, 2007. In addition, Chief Judge Brown reset the motion schedule, requiring Plaintiff to file an opposition by January 8, 2008 to both motions for summary judgment. Plaintiff never filed an opposition to either motion. On May 27, 2008, Judge Bongiovanni held an in-person conference with all parties. At this conference, Plaintiff informed the Court of a change of residence and provided his new address. Notwithstanding, by Order dated June 13, 2008, United States District Judge, the Honorable Garrett E. Brown transferred the matter to this Court. Subsequently, this Court administratively terminated the pending motions. On June 23, 2008, Tinton Fall Defendants reinstated their Motion for Summary Judgment, relying on the moving papers and exhibits previously submitted. State Defendants too, reinstated their Motion to Dismiss, on June 24, 2008. However, Plaintiff never filed any opposition to this motion and on January 23, 2009, this Court notified Plaintiff that it would consider the Motions unopposed. For the reasons that follow, State Defendants' Motion to Dismiss is granted with respect to Plaintiff's deliberate indifference claim and denied with respect to Plaintiff's excessive force claim. Further, Tinton Falls Defendants' Motion for Summary Judgment is granted and Plaintiff's Loudermill claim is dismissed. Finally, Tinton Falls' Motion for Summary Judgment on its counterclaim is granted.

As of May 27, 2008, Plaintiff has responded to no letters or inquiries from this Court. The Court notes that Plaintiff bears the responsibility to inform this Court if he has again changed his address. See L. Civ. R. 10.1. As such, the Court assumes that Plaintiff has received the motion papers and this Court's letters; no correspondences have been returned to the Court as undeliverable. It has been almost a year since Plaintiff has contacted or filed papers with this Court. Consequently, the Court questions whether Plaintiff remains interested in prosecuting this case. If he is so interested, the Court directs Plaintiff to inform the Court of his intention to do so in twenty days, as well as provide the Court with his proper address; otherwise, his remaining claim will be dismissed.


A. Standard of Review for Tinton Falls Defendants' Motion for ...

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