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Hickson v. Marina Associates

September 27, 2010


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


Plaintiff, Earl Hickson, has brought suit against defendants, Marina Associates, doing business as Harrah's Casino Hotel Atlantic City (or, "Harrah's Hotel and Casino" or the "Casino"), Alexander Lovas, Vance Thompson, and Anne Haag (collectively, "Casino defendants"),*fn1 and the New Jersey Division of Gaming Enforcement (or, the "DGE"), Josh Lichtblau, Mark Kosko, and George Morton (collectively, "State defendants"). Among other things, Hickson alleges several violations of his civil rights pursuant to federal and state law. Presently, Hickson has moved for summary judgment. The Casino defendants and the State defendants, in turn, have cross-moved for summary judgment, respectively.

For the reasons expressed below, the State defendants' Motion for Summary Judgment is granted in part and denied in part. The Casino defendants' Motion for Summary Judgment is also granted in part and denied in part. Conversely, Hickson's Motion for Summary Judgment and "Renewed/Supplemental" Motion for Summary Judgment are both denied. Lastly, the Court orders Hickson to show cause why it should continue to exercise supplemental jurisdiction over his remaining state law claims.


Plaintiff has brought federal constitutional claims pursuant to 42 U.S.C. § 1983, as well as claims under New Jersey law. This Court has jurisdiction over plaintiff's federal claims under 28 U.S.C. § 1331, and may exercise supplemental jurisdiction over plaintiff's related state law claims under 28 U.S.C. § 1367.


On May 15, 2006, Hickson visited and gambled at the Harrah's Hotel and Casino. During the afternoon, he approached a slot machine which appeared to be unoccupied but had credits remaining on it. Hickson inserted his money voucher and played the machine several times before cashing out and leaving it. As he walked away, Sharon Fedaczynsky, another casino patron, asked him if he had taken her money that she had been using at the same slot machine. Hickson showed Fedaczynsky his two vouchers, one of which was blank and the other worth fifteen cents. Fedaczynsky claimed that she had been playing with about $140 at the slot machine. Hickson told her to find a casino attendant while he went to call his friend.*fn2

While near one of the casino's telephones, Hickson was approached by casino security personnel. Two of the security personnel, Alexander Lovas, a security shift manager, and Vance Thompson, a security officer, instructed Hickson to get off the phone and reported that a camera captured him stealing Fedaczynsky's money. They demanded that Hickson turn over the voucher. Hickson denied the allegation and asked for the security guards' names, which they refused to provide. At no point did Hickson tell the officials that he found the credits on an unoccupied slot machine and deemed them to be abandoned. Instead, he requested that they contact the police to help resolve the matter. Thereafter, Officer Mark Kosko of the DGE arrived and reiterated to Hickson that whatever occurred is on a surveillance tape. Again, Hickson denied any wrongdoing.

The group of men proceeded to a room where Hickson and several security guards waited while Kosko went to speak with Fedaczynsky and view the surveillance tape as provided by Anna Haag, a casino surveillance officer. According to the complaint, after Kosko left the room, Hickson was surrounded by security guards who recounted to one another physical confrontations they had had with black people. Upon returning to the room, Kosko asked Hickson to turn over the ticket. In response, Hickson displayed the blank voucher he had previously shown Fedaczynsky. Against Hickson's wishes, Kosko then searched Hickson's bag but found nothing.

Soon thereafter, Kosko informed Hickson that there was a warrant for his arrest for violation of probation. Hickson denied that he was ever on probation or that a valid warrant was issued for his arrest.*fn3 Nevertheless, Kosko handcuffed Hickson, placed him under arrest, and escorted him to the county custodial facility. Hickson was detained for eleven days before being released.

Hickson was charged with the theft of another casino patron's slot voucher. On or around July 27, 2007, Hickson appeared before the Atlantic City Municipal Court. The prosecution, however, was unprepared to proceed with the trial as scheduled. Hickson asked that the case against him be dismissed. The municipal judge granted Hickson's request.

In May 2008, Hickson filed his original complaint in this Court. Subsequently, he amended his complaint multiple times. Hickson finally filed his third amended complaint in December 2009. That same month, he filed his Motion for Summary Judgment. In March 2010, he submitted a "Renewed/Supplemental" Motion for Summary Judgment. The Casino defendants and the State defendants cross-moved for summary judgment in April 2010, respectively.*fn4


A. Standard for Summary Judgment

Summary judgment is appropriate where the Court is satisfied that "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 a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986); Fed. R. Civ. P. 56(c).

An issue is "genuine" if it is 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 considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the nonmoving party's evidence "is to be believed and all justifiable inferences are to be drawn in his favor." Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at 255).

Initially, the moving party has the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp., 477 U.S. at 323; see Singletary v. Pa. Dept. of Corr., 266 F.3d 186, 192 n.2 (3d Cir. 2001) ("Although the initial burden is on the summary judgment movant to show the absence of a genuine issue of material fact, 'the burden on the moving party may be discharged by 'showing' --- that is, pointing out to the district court --- that there is an absence of evidence to support the nonmoving party's case' when the nonmoving party bears the ultimate burden of proof." (citing Celotex, 477 U.S. at 325)). 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. 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. Anderson, 477 U.S. at 256-57. A party opposing summary judgment must do more than just rest upon mere allegations, general denials, or vague statements. Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001).

B. Defendants' Motions for Summary Judgment

1. Sovereign Immunity

The State argues that this Court lacks jurisdiction to hear any claims against the New Jersey Division of Gaming Enforcement by virtue of the doctrine of sovereign immunity. In addition, the State contends that a state and its agencies do not fall within the purview of Section 1983. Hickson does not proffer any reasoned argument in response to the State's position.*fn5

"Under the Eleventh Amendment, 'an unconsenting State is immune from suits brought in federal courts by her own citizens.'"*fn6 Hyatt v. County of Passaic, 340 F. App'x 833, 836 (3d Cir. 2009) (quoting Edelman v. Jordan, 415 U.S. 651, 663 (1974)). This proscription extends to related state law claims as well. Raygor v. Regents of the Univ. of Minn., 534 U.S. 533, 540-41 (2002) (stating that "the Eleventh Amendment bars the adjudication of pendent state law claims against non-consenting state defendants in federal court").

It appears undisputed that the DGE is an arm or alter ego of the State of New Jersey and, thus, may invoke the principles of sovereign immunity. See Rudolph v. Adamar of N.J., Inc., 153 F. Supp. 2d 528, 548, 551 (D.N.J. 2001) (holding that the New Jersey Casino Control Commission, a "sister agency" of the DGE, "is an alter ego of the State of New Jersey and is therefore entitled to Eleventh Amendment immunity"); Stillman v. N.J., 1989 U.S. Dist. LEXIS 854, at *6 (D.N.J. Jan. 24, 1989) (holding that, "[w]ithout question, the New Jersey Department of Law and Public Safety is nothing more than the alter ego of the state" and is shielded by sovereign immunity).*fn7 Further, there is no suggestion that the State has waived its sovereign immunity or that any law implicated in this case has expressly abrogated that immunity.

In fact, neither Section 1983 or 1981 presents a cause of action against a state or its officials who act in their official capacities. See Hyatt, 340 F. App'x at 836 ("'[N]either a State nor its officials acting in their official capacities' may be sued for monetary relief under § 1983." (quoting Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989))); Dianese, Inc. v. Pennsylvania, 2001 U.S. Dist. LEXIS 11491, at **3-4 (E.D. Pa. Apr. 17, 2001) ("And Congress did not abrogate states' sovereign immunity when it passed 42 U.S.C. § 1981.").

Therefore, because of the principles of sovereign immunity, Hickson's claims against the DGE and any claims against Lichtblau, Kosko, or Morton in ...

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