Presently before the Court is Defendants' motion for summary judgment filed by Gloucester City Police Department, Gloucester City Chief of Police William G. Crothers (Crothers), City of Gloucester, Gloucester City Prosecutor's Officer, Deputy Chief Michael Kaye (Kaye), Jason Flood (Flood), Carlos Depoder (Depoder), James Little (Little), and Lieutenant George Berglund (Berglund).*fn1
Plaintiff, Reginal Gaines (Plaintiff or Gaines) filed this action alleging violations of his constitutional rights arising out of the July 7, 2006 traffic stop and arrest in Gloucester City, New Jersey.*fn2 The Court heard oral argument on January 19, 2010. For the reasons stated on the record that day as well as those stated below, Defendants' motion [Doc. No. 15] will be granted in-part and denied in-part.
FACTUAL &PROCEDURAL BACKGROUND
On July 7, 2006 at approximately 10:00 pm, Gaines, a forty-five year old African American male was driving in Gloucester City and saw a police car on his left. (Def.'s Statement of Undisputed Material Facts at ¶ 7.) That police car, driven by Officer Little, turned to follow Gaines. Officer Little testified that Gaines was not speeding, his lights were on, and there was nothing suspicious about him. (Pl.'s Responsive Statement of Material Facts at ¶ 8.) However, when Gaines turned right without using his turn signal, the overhead lights of the trailing police car illuminated. (Def.'s Statement of Undisputed Material Facts at ¶ 9.) While Little was checking Plaintiff's information and writing a ticket inside the police car, Plaintiff got out of his car. Plaintiff does not dispute that he got out of his car, but explains that he did so in order to check his car lights after Little told him he had been pulled over because his tag light was out. (Pl.'s Responsive Statement of Material Facts at ¶ 10.) Officer Little ordered Plaintiff to get back in his car and when Plaintiff did not immediately obey, Little advised him that he was under arrest. (Def.'s Statement of Undisputed Material Facts at ¶¶ 11, 12.) Plaintiff denies that he was told he was under arrest, but agrees that when the officer grabbed his wrist he pulled away. (Pl.'s Responsive Statement of Material Facts at ¶¶ 12, 13.) Gaines then got back into his car refusing to allow Little to handcuff him. Officer Little called for police assistance and then advised Gaines he was going to spray him with Oleoresin Capsicum (OC) spray, which he did.
Officers Flood and Depoder responded to Little's call for assistance. When Flood and Depoder arrived, Plaintiff stepped out of his car with his hands on his sides. (Def.'s Statement of Undisputed Material Facts at ¶ 17.) Plaintiff and Officer Little testified that no verbal or physical altercation was taking place when the other officers arrived. Plaintiff testified that an officer who he described as white came toward him with a dog. (Id. at ¶ 19.) That officer was Officer Flood, who allegedly stated, "Police, you're under arrest, stop resisting or I'll send my dog." (Pl.'s Responsive Statement of Material Facts at ¶ 21 (citing Flood Dep. at 23:3-7.)) Officer Flood never released his dog.
The actions taken by Officer Depoder are in dispute. Defendants claim that he used no force against the plaintiff. However, Plaintiff denies that statement and alleges that Depoder ran toward Plaintiff, took him to the ground, and handcuffed him. (Id. at ¶ 23.) In his deposition, Depoder testified that he saw a "push/pull back and forth in between the door and the car" between Officer Little and Gaines. (Depoder Dep. at 53:1-5.) Depoder then testified that he jumped out the of the passenger seat, ran towards Gaines, grabbed Gaines by the arm and shoulder and directed him to the ground. (Id. at 54:8-12.)
Gaines alleges that the officers "jumped" him and one officer put his foot into Gaines's neck. Gaines was then placed in the back of the police car. Parties agree that Plaintiff suffered no permanent physical injuries, but Plaintiff claims that he suffers from lack of sleep "among other injuries" due to the trauma caused by the event. (Pl.'s Responsive Statement of Material Facts at ¶ 24.)
Gloucester City police cars are equipped with mobile video cameras. However, according to Lieutenant Berglund's Internal Affairs Report, Officer Little's mobile videotape ran out prior to this incident. (Pl.'s Supplemental Statement of Material Facts at ¶ 5.) Little testified that he realized the tape was full when he returned to his vehicle after placing Gaines in the back of the patrol vehicle. (Little Dep. at 56:16-20.) The event was also not recorded on Flood's car's camera due to the way he parked his vehicle. Officer Flood testified that his camera had not worked in some time and that nothing had been done to repair it despite the fact that he told a superior it was broken. (Flood Dep. at 21:6-7 - 22:8-15.)
Following his arrest, Gaines was found guilty of failure to maintain lanes and failing to use a turn signal. (Def.'s Statement of Undisputed Material Facts at ¶ 34.) In addition to the traffic violations, Plaintiff was charged with disorderly conduct, resisting arrest, obstruction and aggravated assault. (Pl.'s Supplemental Statement of Material Facts at ¶ 3.) After a trial in Audubon Municipal Court, Plaintiff was found not guilty of those offenses.
Plaintiff lodged a citizen's complaint against Officer Little with the Gloucester City Police Department. Accordingly, Lieutenant Berglund opened an internal affairs investigation. Defendants allege that Plaintiff refused to participate in the investigation and that as a result Berglund concluded that the allegations were unsubstantiated. (Def.'s Statement of Undisputed Material Facts at ¶¶ 28,29.) Plaintiff alleges that his criminal attorney advised Berglund that while the criminal matter was pending, Plaintiff would be unable to give any statements.
The Camden County Prosecutor's Office also initiated an investigation of the incident following a complaint filed by Gaines against Officer Little. (Id. at ¶ 30.) The Prosecutor found insufficient evidence to bring a criminal prosecution and declined to pursue the matter. A copy of those findings was sent to Gaines. Gaines also filed a municipal complaint against Officer Little alleging simple assault. Officer Little was found not guilty. (Id. at ¶ 36.)
Gaines initiated this Section 1983 action against Defendants seeking damages, reasonable attorney's fees, and costs of court. Count I of the Complaint alleges that Defendants' acts constitute a violation of his individual civil and constitutional rights, as he claims he was subjected to excessive force and false imprisonment and was deprived of his right to due process.*fn3 Plaintiff further alleges that the Defendants failed to train and supervise law enforcement officers and failed to correct the unconstitutional practices of subordinates. Count I further alleges that Defendants continually condoned and ratified a history of unconstitutional practices despite allegations over the years of excessive force; implicitly taught or encouraged a pattern, practice and policy of excessive force; and improperly screened, hired, trained, supervised, disciplined, and retained dangerous law enforcement officers. Count II alleges the same except that it asserts those claims against Defendants in their individual capacity and as to the municipal defendants.
Count III alleges a claim for failure to train and/or supervise under 42 U.S.C. § 1983. This failure, the plaintiff asserts, shows that the Defendants were deliberately indifferent to the rights of the plaintiff, and that the failure to train reflects a deliberate choice by the municipality to have such policies become custom, practice, or policy.
The remainder of the Complaint asserts State Law claims brought pursuant to the New Jersey Tort Claims Act. Count IV alleges force used against Plaintiff constitutes a violation of the New Jersey Constitution. Count V asserts claims for negligent hiring, supervision, disciplining, and retention, as well as false entering, false imprisonment, excessive force and abuse of process. Count VI specifically asserts claims for false imprisonment and invasion of privacy. Furthermore, in Count VI Plaintiff alleges that Defendants Gloucester City Policy Department, Chief Crothers, Gloucester City Prosecutors Office, Borough of Audubon, Audubon Prosecutors office, and Robert Gleaner are all liable under the doctrine of respondeat superior for permitting such conditions to exist that facilitated and encouraged such conduct. Finally, in County VII Plaintiff alleges that the acts of Defendants Little, Flood, and Depoder constituted an assault against Gaines.
The Gloucester City Defendants filed this motion for partial summary judgment seeking to narrow the claims at issue. Defendants contend that Plaintiff's claims for excessive force against Flood and Depoder are not sustainable because there is no evidence in the record to corroborate Plaintiff's allegations.*fn4 Defendants further contend that the City of Gloucester and its subdivisions cannot be held liable because there is no evidence of a custom or policy encouraging unconstitutional conduct. Finally, Defendants assert that the state law torts claims are not cognizable because Plaintiff cannot overcome the Torts Claims Act's verbal threshold.
I. Summary Judgment Standard of Review
"Summary judgment is proper if there is no genuine issue of material fact and if, viewing the facts in the light most favorable to the non-moving party, the moving party is entitled to judgment as a matter of law." Pearson v. Component Tech. Corp., 247 F.3d 471, 482 n.1 (3d Cir. 2001) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)); accord Fed. R. Civ. P. 56 (c). Thus, this Court will enter summary judgment only when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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).
An issue is "genuine" if supported by evidence such that a reasonable jury could return a verdict in the nonmoving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" if, under the governing substantive law, a dispute about the fact might affect the outcome of the suit. Id. In determining whether a genuine issue of material fact exists, the court must view the facts and all reasonable inferences drawn from those facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Initially, the moving party has the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met this burden, the nonmoving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id.; Maidenbaum v. Bally's Park Place, Inc., 870 F. Supp. 1254, 1258 (D.N.J. 1994). Thus, to withstand a properly supported motion for summary judgment, the nonmoving party must identify specific facts and affirmative evidence that contradict those offered by the moving party. Andersen, 477 U.S. at 256-57. "A nonmoving party may not 'rest upon mere allegations, general denials or . . . vague statements . . . .'" Trap Rock Indus., Inc. v. Local 825, Int'l Union of Operating Eng'rs, 982 F.2d 884, 890 (3d Cir. 1992) (quoting Quiroga v. Hasbro, Inc., 934 F.2d 497, 500 (3d Cir. 1991)). Indeed, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.
Celotex, 477 U.S. at 322.
In deciding the merits of a party's motion for summary judgment, the court's role is not to evaluate the evidence and decide the truth of the matter, but to determine whether there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Credibility determinations are the province of the ...