The opinion of the court was delivered by: Cooper, District Judge
The plaintiffs, Heather Lea Goldenbaum ("Goldenbaum") and Carol Junz ("Junz") (collectively "plaintiffs") commenced this action against several defendants, including the Borough of Surf City, County of Ocean, State of New Jersey ("Surf City"), and members of its police force, Chief W. Collins ("Collins"), Sergeant John Casella ("Casella"), and Patrolman William Robinson ("Robinson") (collectively, "Surf City defendants"). The plaintiffs assert claims for, inter alia, negligence, false arrest and imprisonment, and violations of their rights under the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution under 42 U.S.C. § 1983 ("Section 1983"). (Dkt. entry no. 16, Am. Compl.) The Surf City defendants now move for summary judgment in their favor, pursuant to Federal Rule of Civil Procedure ("Rule") 56(c). (Dkt. entry no. 48, Mot. for Summ. J.) The two other defendants in this action, Robert DeLorenzo and Kathy DeLorenzo ("DeLorenzos"), are not parties to the motion.*fn1 The Court determines the motion on the briefs without oral argument, pursuant to Rule 78(b). The Court will grant the motion in part and deny the motion in part, as explained below.
Goldenbaum's father, William Goldenbaum ("decedent"), died on March 6, 2006. (Am. Compl. at ¶ 13.) Before his death, the decedent leased an apartment from the DeLorenzos. (Id. at ¶ 11.) The express terms of the lease made the agreement binding on the tenant, the landlord, and on "all parties who lawfully succeeded to their rights and responsibilities." (Dkt. entry no. 51, Ex. C, Goldenbaum Lease at ¶ 31.)
Goldenbaum is the principal beneficiary of the decedent's will and was appointed executrix of the decedent's estate. (Dkt. entry no. 51, Pl. Opp'n at 1.) Junz married the decedent in 1982 and is Goldenbaum's mother. (Dkt. entry no. 32, DeLorenzo Br. at 1.) Junz and the decedent divorced in 2003. (Dkt. entry no. 32, Ex. B, Final J. of Divorce.) Junz was originally the primary beneficiary, but lost her interest in the estate as a result of their divorce. (Dkt. entry no. 48, Ex. B, Goldenbaum Will.)
The plaintiffs went to the decedent's apartment on March 7, 2006 in order to retrieve certain personal items. (Pl. Opp'n at 7-8.) They allege they were seeking the clothing specified in the decedent's will, as well as the documentation required to provide him with a military funeral. (Id. at 8.) They were met there by Collins, who told them DeLorenzo did not want them on the property. (Id. at 7.) The plaintiffs showed Collins a will designating Goldenbaum and Junz as beneficiaries and executrices. (Id. at 8; dkt. entry no. 48, Ex. D, Collins Rpt. at 9-10.) This was not the will that was eventually probated. (Dkt. entry no. 48, Def. Br. at 3.) Collins then either requested or ordered the plaintiffs to go with him to the police station, and then to a restaurant to await DeLorenzo's arrival. (Pl. Opp'n at 7-8, Def. Br. at 3-4.) Eventually Goldenbaum was permitted to enter the apartment to gather some of the decedent's clothing for the funeral. (Pl. Opp'n at 8-9.) She did not find the military papers. (Id.)
Shortly after leaving, the plaintiffs were contacted by DeLorenzo and were told they could come back to the apartment and take additional items. (Id. at 9.) The plaintiffs claim that when they returned, boxes had been opened and things had been moved. (Id.) The plaintiffs then collected and removed some of the decedent's belongings, but claim that they left much of the decedent's property in the apartment. (Id.)
The plaintiffs returned to the apartment on March 9, 2006 and entered with an extra key and without the knowledge of the DeLorenzos. (Id. at 10.) The plaintiffs summoned the police when they discovered further items missing. (Id. at 10, Def. Br. at 5.) Casella came to the apartment with another officer to investigate. When he contacted Collins, he learned that the DeLorenzos did not want the plaintiffs in the apartment. (Def. Br. at 6.) Casella next called DeLorenzo, who demanded that the plaintiffs be arrested for trespass and burglary. (Id.) The plaintiffs claim that Casella told them that the "Big Cheese" did not want them there. (Dkt. entry no. 51, Ex. A, Interrog. Ans. at 7.) Casella ordered the plaintiffs out of the apartment and either requested or ordered them to accompany him to the police station. (Id. at 7, Pl. Opp'n at 10-11.) The plaintiffs were not handcuffed and they were not taken in a squad car. (Def. Br. at 7; dkt. entry no. 48, Ex. O, 6-4-09 Junz Dep. at 47.)
The plaintiffs went to the police station, in part, to file a
complaint for theft; meanwhile Casella asked the on-call Ocean County
Assistant Prosecutor ("AP") as to whether he should arrest the
plaintiffs as DeLorenzo requested. (Def. Br. at 8.) The AP recommended
no further action. (Id.) The plaintiffs allege their complaint was not
taken seriously and that they were kept at the station for some time.
(Dkt. entry no. 48, Ex. N, 4-30-09 Goldenbaum Dep. at 59-61, 120-22.)
In a subsequent phone call
placed by Casella, Delorenzo admitted to removing pieces of the
decedent's property from the apartment. (Dkt. entry no. 48, Ex. F,
Casella Rpt. at 3.) DeLorenzo said he removed the safe from a closet
and was holding it and other items for "safekeeping." (Id.)*fn2
Casella did not attempt to recover this property. (Dkt. entry
no. 48, Ex. E, 6-23-09 Casella Dep. at 49-50.)
On March 11, the decedent's funeral was held without military honors because the plaintiffs never found the necessary paperwork. (Pl. Opp'n at 11.) Afterwards, the plaintiffs and others proceeded to the apartment to again attempt to retrieve some belongings. (Id.) At this point, the Surf City Police Department was on notice from Collins that the plaintiffs were not permitted on the property until they presented the proper paperwork. (Def. Br. at 9.) DeLorenzo had also asked the police to keep an eye on his property. (Id.) It was at this time that Robinson stopped to investigate when he noticed cars at the apartment. (Id.) He attempted to prevent Junz from entering, and threatened her with arrest for trespass. (Id. at 10.)
Junz's husband, Richard Junz, told Robinson that there was a valid lease on the property and thus his action constituted an "improper lock-out." (Id.) Robinson did not ask to see the lease and the plaintiffs did not proffer one. (Dkt. entry no. 48, Ex. G, 6-23-09 Robinson Dep. at 14.)
The DeLorenzos arrived at this point and a verbal altercation occurred. (Id.) Robinson threatened everyone with arrest for disorderly conduct if they did not stop arguing, although no one was charged. (Id.) An hour later, Robinson was once again summoned to the apartment by DeLorenzo, who showed him a cut screen and entry made through a rear door to the apartment. (Id. at 10-11.) Despite DeLorenzo's request, Robinson declined to make any arrests at that time. (Id. at 11.)
The plaintiffs brought this action against the DeLorenzos and the Surf City defendants on March 3, 2008. (Dkt. entry no. 1, Compl.) They then filed an Amended Complaint on July 30, 2008. (Am. Compl.) On April 15, 2010, the DeLorenzos moved for summary judgment as against both Goldenbaum and Junz on the negligence claim only. (Dkt. entry no. 32, DeLorenzo Mot.) The Court granted summary judgment as to Junz, but denied the motion as to Goldenbaum. (Dkt. entry no. 46, 7-16-10 Order.) The Surf City defendants, the movants here, have moved for summary judgment once before. (Dkt. entry no. 33, 4-25-10 Def. Mot.) However, the Court denied the motion without prejudice and with leave to move again on the proper papers, ruling that the Surf City defendants had failed to present sufficient law to demonstrate an entitlement to qualified immunity. (Dkt. entry no. 43, 5-28-10 Order at 3.)
I. Summary Judgment Standard
The standard for a motion for summary judgment is well-settled and will be briefly summarized here. Rule 56 provides that summary judgment is proper if there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. In making this determination, the Court must "view the record in the light most favorable to the non-moving party and draw all inferences in that party's favor." United States ex rel. Josenske v. Carlisle HMA, Inc., 554 F.3d 88, 94 (3d Cir. 2009) (citing Abramson v. William Patterson Coll., 260 F.3d 265, 276 (3d Cir. 2001)).
The movant has the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant may satisfy this burden by showing "that there is an absence of evidence to support the nonmoving party's case" when the nonmoving party bears the ultimate burden of proof at trial. Id. at 325. Once the movant has met this burden, the non-moving party must set forth specific facts showing that there is a genuine issue for trial. Id. at 324.
A plaintiff asserting civil rights violations under Section 1983 must establish that the defendant acted under color of state law to deprive him or her of a right secured by the United States Constitution or the laws of the United States. Groman v. Twp. of Manalapan, 47 F.3d 628, 633 (3d Cir. 1995). Section 1983 does not create substantive rights, but instead provides a remedy for the violation of rights created by other federal laws. Id.; Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996).
For a plaintiff's Section 1983 claims to survive a motion for summary judgment there must be a genuine issue of fact as to whether the defendant (1) acted under color of state law, or (2) deprived the plaintiff of a federal right. Groman, 47 F.3d at 633. "The color of state law element is a threshold issue; there is no liability under [Section] 1983 for those not acting under color of law." Id. at 638. Police officers are considered state actors. Gale v. Storti, 608 F.Supp.2d 629, 634 (E.D. Pa. 2009).
The doctrine of qualified immunity protects government officials "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity is "an entitlement not to stand trial or face the other burdens of litigation." Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). The privilege is "an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial." Id.
A two-step test examines whether, "[t]aken in the light most favorable to the party asserting the injury," an officer's conduct violated a constitutional right and if so, whether that right was clearly established. Saucier v. Katz, 533 U.S. 194, 201 (2001). Courts have the discretion to address the two inquiries in either order. Pearson v. Callahan, 129 S.Ct. 808, 818 (2009). The answers for both of these questions must be in the affirmative for the suit to go forward; if a constitutional right was not violated, or even if it appears it was, if that right was not clearly established, the defendant is entitled to summary judgment. See id. at 820 ("There will be cases in which a court will rather quickly and ...