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Susan E. Pettit, et al v. State of New Jersey

March 30, 2011

SUSAN E. PETTIT, ET AL., PLAINTIFFS,
v.
STATE OF NEW JERSEY, ET AL., DEFENDANTS.



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

OPINION

Plaintiffs, Susan E. Pettit (hereinafter "Pettit") and George R. Lopez (hereinafter "Lopez"), allege Defendants, State of New Jersey, New Jersey State Police, Ernest Lucarini (hereinafter "Lucarini"), City of Estell Manor and Mayor of Estell Manor Joseph Venezia, violated their constitutional rights. In response to Plaintiffs' claims, Defendants move for Summary Judgment [Docs. 25 & 26]. For the reasons expressed below, Defendants' Motions for Summary Judgment will be granted.*fn1

I. BACKGROUND*fn2

This case involves very tragic facts and events. On February 13, 2007, Plaintiffs' son, fifteen-year-old Raymond Lopez, was stuck and killed by a vehicle as he walked along Cumberland Avenue in Estell Manor, New Jersey. Shortly after his death, his friends and parents erected a roadside memorial on Cumberland Avenue in the area where Raymond died. On July 1, 2008, public safety concerns prompted Estell Manor Mayor Venezia to order the memorial's removal. Upon learning of the memorial's removal, Lopez went to the Estell Manor public works building and demanded the memorial's reinstatement. After a heated discussion, an employee of Estell Manor assisted Lopez with setting the memorial back where it was previously located on Cumberland Avenue.

When he arrived for work the following day, July 2, 2008, an employee of Estell Manor discovered roofing nails scattered in the parking lot and street in front of the public works garage and municipal building. The employee informed the mayor who, subsequently, called the New Jersey State Police. At approximately 5:56 a.m., New Jersey State Trooper Lucarini*fn3 arrived to investigate the complaint of criminal mischief. During the course of his investigation, Lucarini spoke with both the employee and the Mayor of Estell Manor. He learned "that there had been a problem with the Lopez family the day before over removal of the memorial and they had come to the public works garage demanding it be returned." (Doc. 28, ¶ 13). In furtherance of his investigation into the criminal mischief complaint, Lucarini drove to Plaintiffs' residence to determine whether they had any information regarding the nails thrown in the roadway.

Upon Lucarini's arrival at Plaintiffs' residence, he followed a split-rail fence to an open driveway entrance and parked his car at the end of the driveway. Despite Plaintiffs' contentions, Lucarini did not observe any "no trespassing" signs posted along the fence line of Plaintiffs' property.*fn4 Lucarini subsequently exited his patrol car and called for the homeowner. He received no answer. After this failed attempt to contact Plaintiffs, Lucarini walked up the driveway until he observed a brown Doberman Pincher on the house porch. Upon seeing Lucarini, the dog "began barking" at him and moved "off the porch" in his direction. Id. at ¶ 16. As the dog continued to bark, Lucarini called out again for the homeowner while he backed down the driveway toward his patrol car. Prior to reaching his vehicle, Lucarini observed a German Shepherd "running" along the tree line toward him. Id. at ¶ 17. Lucarini "commanded" the dog to "heel" and "stop." Id. Despite these calls, the dog, ironically named Trooper, continued to run toward him. Trooper then "leaped aggressively" at Lucarini and landed approximately five feet in front of him. Id. Fearful for his safety, Lucarini drew his service weapon and "fired three rounds from the hip-retention position as the dog was about to spring" on him. Id. Lucarini's shots hit Trooper. Both Trooper and the Doberman Pincher ran into the woods.

Shortly after the shots were fired, Lopez came out of the house and observed Lucarini "with his gun drawn demanding" that Lopez speak with him. (Doc. 34-2, ¶ 3). Disregarding this command, Lopez reentered his house and phoned the police because he was unsure why Lucarini discharged his firearm on Plaintiffs' property. After phoning the police, Lopez reemerged from his house and screamed "why did you shoot my fucking dog" at Lucarini. (Doc. 28, ¶ 18). The aforementioned comment and Lopez's return to his house promoted Lucarini to conduct a pat-down frisk of Lopez's outer layer of clothing before initiating questioning. The two individuals then discussed the shooting of Trooper and the incident involving the roofing nails at the Estell Manor public works garage and municipal building. Lopez denied any involvement and did not provide any information regarding the scattered nails in the parking lots. During the conversation Lopez and Pettit*fn5 expressed their displeasure regarding the removal of their son's memorial. After Lucarini concluded his questioning, he departed Plaintiffs' residence and left the care of Trooper, the wounded dog, to Plaintiffs.

Plaintiffs subsequently took Trooper to the Animal Hospital of Millville and the Veterinary Hospital of the University of Pennsylvania, where emergency surgery was performed. Trooper, perhaps true to his name, survived the surgery and recovered from the gunshot wounds.

On July 7, 2008, Plaintiffs filed a complaint with the New Jersey State Police concerning Lucarini's actions. An internal investigation occurred. At the conclusion of the investigation, New Jersey State Police Major Daniel Cosgrove (hereinafter "Cosgrove") concluded that "the shooting of the dog is unfortunate," but Lucarini "was lawfully conducting an investigation when he was about to be attacked by a dog" and "used his duty weapon in self defense to prevent serious injury to himself." (Doc. 34-4, Exhibit 4). Cosgrove also determined Lucarini's frisk of Lopez was "reasonable" based upon the "circumstances" of the incident. Id. Approximately one year later, on June 25, 2009, Plaintiffs filed their Complaint in the Superior Court of New Jersey, Atlantic County. On July 28, 2009, Defendants removed this action to federal court. Plaintiffs amended their Complaint and moved for remand, which was denied. Several months later, Defendants moved for summary judgment. Plaintiffs oppose entry of summary judgment.

III. DISCUSSION

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. 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. New Jersey Civil Rights Act Claims*fn6

The New Jersey Civil Rights Act (hereinafter "NJCRA") was modeled after 42 U.S.C. ยง 1983, and creates a private cause of action for violations of civil rights secured under either the United States or New Jersey Constitutions. Slinger v. New Jersey, No. 07-5561, 2008 WL 4126181, * 5-6 (D.N.J. September 4, 2008), rev'd on other grounds 366 Fed. Appx. 357 (3d Cir. 2010); Armstrong v. Sherman, No. 09-716, 2010 WL 2483911, * 5 (D.N.J. June 4, 2010). NJCRA provides, in pertinent part, a private cause of action to [a]ny person who has been deprived of any substantive due process or equal protection rights, privileges or immunities secured by the Constitution or laws of the United States, or any substantive rights, privileges or immunities secured by the Constitution or laws of this State, or whose ...


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