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Richard R. Kreimer v. City of Newark

March 30, 2011


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


Before the Court are Defendants‟, New Jersey Transit employees ("NJT Defendants") and City of Newark, motions for summary judgment pursuant to Federal Rule of Civil Procedure 56 and Defendant Eliezer Rosa‟s motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). This Court has jurisdiction pursuant to 28 U.S.C. § 1331. Venue is proper pursuant to 28 U.S.C. § 1391(b). This Court, having considered the parties‟ submissions, decides this matter without oral argument pursuant to Federal Rule of Civil Procedure 78. For the reasons stated below, this Court GRANTS Defendants‟ motions.


Plaintiff is a homeless resident of the State of New Jersey. On October 31, 2007, Plaintiff was a ticketed passenger at Pennsylvania Station in Newark, New Jersey when he was approached by Defendant Officer Robert Scott. Officer Scott advised Plaintiff that Plaintiff‟s presence in Pennsylvania Station was in violation of the City of Newark Code 20-2-14-4 ("the Newark ordinance"). Officer Scott informed Plaintiff that "he was not using Penn Station for its intended purpose, and ordered Plaintiff to leave the location under threat of arrest for said violation." Plaintiff was not given a citation for violating the Newark ordinance*fn1 . It is undisputed that the Newark ordinance is unconstitutional pursuant to the New Jersey Supreme Court decision in State v. Crawley, 90 N.J. 241 (1982). Said ordinance was never repealed by the City of Newark.

On June 9, 2009, Plaintiff attempted to board another train operated by New Jersey Transit, Inc. ("NJT"). According to Plaintiff, he was not permitted to board the train by Defendant Rosa, a NJT employee. Plaintiff alleges that Defendant Rosa identified him as "the guy who was suing New Jersey Transit"; accused him of never having a ticket; and "gave Plaintiff the finger" as the train pulled away.

Plaintiff filed his initial complaint, pro-se, on May 13, 2008. Two months later, attorneys joined the case on behalf of Plaintiff; and thereafter, filed amended complaints. The following defendants filed a motion to dismiss the complaint on November 9, 2009: NJT; NJT Police Department; NJT Police Chief Joseph Bober; NJT Police Captain Alphonsus Stiehler; NJT Police Administrative Sergeant DiBennetto; NJT Director Richard Sarles; and NJT Lieutenant Dawes. Oral argument regarding that motion was held on April 16, 2010.

At the April 16, 2010 proceeding, Plaintiff‟s attorney stated that he did not oppose the motion as to NJT, NJT Police Department, Sergeant DiBennetto, or Lieutenant Dawes. Plaintiff‟s attorney stated that he did oppose the motion as to Defendants Stiehler, Bober, and Sarles. Plaintiff‟s attorney further stated that he would file an amended complaint as to those individuals. The Third Amended Complaint ("Complaint") was filed on July 23, 2010.

The latest complaint has not cured the defects of the Second Amended Complaint against Defendants Bober, Sarles, and Stiehler because the claims in the Third Amended Complaint are almost identical to those of the previous complaint, and do not put forth any additional information. Based on the April 16, 2010 oral argument and corresponding order and Plaintiff‟s Third Amended Complaint, the remaining Defendants are the City of Newark, Eliezer Rosa, Officer Scott, Captain Imperiale, and several John Does.


Summary judgment shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A factual dispute is genuine if a reasonable jury could return a verdict for the non-movant, and it is material if, under the substantive law, it would affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party must show that if the evidentiary material of record were reduced to admissible evidence in court, it would be insufficient to permit the nonmoving party to carry its burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

Once the moving party meets the initial burden, the burden then shifts to the non-movant who must set forth specific facts showing a genuine issue for trial and may not rest upon the mere allegations or denials of its pleadings. Shields v. Zuccarini, 254 F.3d 476, 481 (3d Cir. 2001). The court may not weigh the evidence and determine the truth of the matter but rather determine whether there is a genuine issue as to a material fact. Anderson, 477 U.S. at 249. In doing so, the court must construe the facts and inferences in a light most favorable to the nonmoving party. Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 520 (1991). The nonmoving party "must present more than just "bare assertions, conclusory allegations or suspicions‟ to show the existence of a genuine issue." Podobnik v. United States Postal Serv.,409 F.3d 584, 594(3d Cir. 2005). If the nonmoving party "fail[s] to make a sufficient showing on an essential element of [its] case with respect to which [it] has the burden of proof," then the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. at 323. In addition, the Court may "grant the motion on grounds not raised by a party," after proper notice and a "reasonable time to respond." Fed. R. Civ. P. 56(f).

New Jersey Transit Defendants

Unless they are protected by qualified immunity, police officers working under color of state law are liable pursuant to 42 U.S.C. § 1983 ("Section 1983") for violations of an individual‟s constitutional rights. Curley v. Klem, 499 F.3d 199, 206 (3d Cir. 2007). The Supreme Court set forth a two-step process for determining if an official is entitled to qualified immunity. Id. First, "a court must address whether "the officer‟s conduct violated a constitutional right.‟" Id. (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)) (alteration in original).

In the second step, the court must examine "whether the right that was violated was clearly established, or, in other words, "whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.‟" Id. at 207 (quoting Saucier v. Katz, 533 U.S. at 202). The Supreme Court has stated on various occasions that "[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640 (1987). Official action is not per-se protected by qualified immunity on the basis that ...

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