The opinion of the court was delivered by: Simandle, District Judge
This action arises out of the tragic deaths of three young boys, including Anibal Cruz, the son of Plaintiff Elba Cruz, who disappeared while playing outside of Anibal's home in Camden, New Jersey. Various law enforcement agencies and officers, including Officer Gary Cundiff of the Cherry Hill Police Department, searched for the missing children. Approximately two days after they disappeared, a relative discovered the boys in the trunk of a car parked in the yard at Anibal's home. The boys were dead on discovery.
The matter is presently before the Court on an unopposed*fn1 motion filed by Defendants Cherry Hill Township and Officer Gary Cundiff of the Bloodhound Tracking Unit, seeking summary judgment on Plaintiff's federal civil rights claims and state law tort claims [Docket Item 175]. Discovery has concluded and this motion is unopposed. The Court, taking the undisputed facts as true and for the reasons discussed below, concludes that no reasonable fact-finder could find that Officer Cundiff's conduct was negligent or shocks the conscience. Therefore, the Court will grant summary judgment in favor of both Cherry Hill and Officer Cundiff on Plaintiff's claims under 42 U.S.C. § 1983 and her state law tort claims. Defendants Cherry Hill and Officer Cundiff have not sought summary judgment on Plaintiff's claims under the New Jersey Constitution and the New Jersey Civil Rights Act, N.J. Stat. Ann. §§ 10:6-1, 6-2 and so the Court will not grant summary judgment on those claims at this time.
On June 22, 2005 at approximately 8:25 p.m., the Camden Police Department received a 911 emergency call reporting the disappearance of Anibal Cruz, age 11, Daniel Agosto, age 6, and Jesstin Pagan, age 5, at 957 Bergen Avenue in Camden, New Jersey. (Defs. Statement of Uncontested Fact ¶ 1.) Camden Police Department officers arrived on the scene shortly thereafter and learned that the boys had been missing for up to three hours. (Id. ¶¶ 2-3.) The first two arriving Camden Police Department officers, Lt. Martin and Officer Pimental, performed the initial search of the house and grounds of 957 Bergen Avenue, including the Toyota Camry parked in the yard. (Id. ¶¶ 4-5.) Officer Pimental told Detective Tyree Nobles of the Camden Police Department that the Toyota was "clear." (Id. ¶¶ 6-8.) Later that night the Camden Police Department performed a second search of the house and grounds at 957 Bergen Avenue, during which search a police officer looked in the Toyota and banged on the trunk, but did not open the trunk. (Id. ¶¶ 9-10.)
On the morning of June 23, 2005, Officer Cundiff, at the request of the Camden Police Department, volunteered the services of himself and his bloodhound, Daisy, to assist in the search for the missing boys. (Id. ¶ 12.) Officer Cundiff and Daisy were certified as a Canine Tracking Team in October, 2002 after successfully completing a required course. (Id. ¶ 25.) They subsequently were successfully re-evaluated in 2003, and engaged in 40 hours of continuing education each year from 2003 through 2005. (Id.) At approximately 10:30 a.m. Officer Cundiff arrived at 957 Bergen Avenue and then reported to the command post headed by Captain Cassandra Smith. (Id. ¶¶ 12-14.) Captain Smith told Officer Cundiff that the boys had last been seen at between approximately 5:00 p.m. and 5:30 p.m. (Id. ¶ 14.) Officer Cundiff explained that "the presence of persons in the search area could have the effect of contaminating the scene and adversely affect the ability of Daisy to track a scent of the missing boys." (Id. ¶ 16.) Plaintiff's law enforcement experts, Ken Katsaris and James Williams, similarly opined that appropriate control of the crime scene and limiting people who access the scene at an early stage is important to the success of a K-9 tracking mission. (Id. ¶¶ 26-27, 30-31.)
After being briefed by Captain Smith, Officer Cundiff returned to 957 Bergen Avenue to get a clothing item with Anibal Cruz' scent to give to Daisy. (Id. ¶ 20.) Officer Cundiff obtained a pair of urine soaked pants, scented Daisy in front of 957 Bergen Avenue and began a search following Daisy. (Id. ¶ 22.) Officer Cundiff and Daisy engaged in several unsuccessful searches over the next two days, in which Daisy attempted unsuccessfully to track the boys' scents. (Id. ¶ 23.) Plaintiff's expert Mr. Katsaris opined that "[t]his failure was probably due to the lack of sealing the perimeter of the area where the kids were last seen by the Camden Police officers." (Id. ¶ 27.) Neither of Plaintiff's two experts criticized any aspect of Officer Cundiff's conduct during the search for the missing boys nor do they criticize the Township of Cherry Hill. (Id. ¶¶ 24, 28, 29.)
On March 24, 2006, Plaintiff filed a complaint in the Superior Court of New Jersey, Camden County, alleging violations of the United States Constitution, pursuant to 42 U.S.C. § 1983, the New Jersey Constitution, pursuant to N.J. Stat. Ann. §§ 10:6-1, 6-2, and various negligence and intentional torts under the New Jersey Tort Claims Act, N.J. Stat. Ann. §§ 59:1-1 to 12-3, and the New Jersey Wrongful Death Act, N.J. Stat. Ann. §§ 2A:31-1 to - 6. On April 19, 2006, Defendants removed the action to this Court. After over three years of discovery and non-dispositive motion practice, all defendants filed motions for summary judgment and Plaintiff filed a motion for partial summary judgment against Defendants Lt. Nicole Martin, the City of Camden, the City of Camden Police Department, the County of Camden, and Camden County's Prosecutor's Office. Plaintiff opposed all defense motions for summary judgment except the present motion filed by Defendants Cherry Hill Township and Officer Cundiff. The Court will now turn its attention to this unopposed motion.
Summary judgment is appropriate when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the non-moving party." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" only if it might affect the outcome of the suit under the applicable rule of law. Id. Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. Id.
"[T]he nonmoving party may not, in the face of a showing of a lack of a genuine issue, withstand summary judgment by resting on mere allegations or denials in the pleadings; rather, that party must set forth 'specific facts showing that there is a genuine issue for trial,' else summary judgment, 'if appropriate,' will be entered." U.S. v. Premises Known as 717 S. Woodward Street, ...