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Regina S. Bailey v. Joseph Gibbons

September 12, 2011


The opinion of the court was delivered by: Katharine S. Hayden, U.S.D.J.



I. Introduction

This case touches on several areas of law and involves numerous players. The central actor is plaintiff Regina Bailey, who sold her home in Englewood, New Jersey as part of the resolution of her divorce. Kelly Burton Rocco served as her attorney in connection with the court action that resulted in the forced sale of the house. The house was listed by Russo Realty, whose agent, Pat Priant, obtained the eventual buyers, Joseph Gibbons and Tanya Wood. Gibbons and Wood were represented by David Watkins during the sale. As explained in more detail below, Bailey remained on the property after the closing to clear her possessions out of the house, and Gibbons subsequently called the police to have her removed. City of Englewood police officers Thornton White and Anthony Gonzalez, as well as Lieutenant Kevin Barrett, responded to the call and briefly detained Bailey before letting her go.

Bailey instituted an action in New Jersey state court on January 13, 2009, asserting various state law causes of action against all of the above-named individuals and entities. Judge Menelaos W. Toskos granted summary judgment to the City of Englewood and its police officers ("the Englewood defendants"), but allowed Bailey to file an amended complaint. She did so on July 17, 2009, this time alleging federal and state constitutional claims against the Englewood defendants and asserting state law claims against the remaining defendants. With the permission of the other defendants, the Englewood defendants removed the case to this Court, asserting federal question jurisdiction under 28 U.S.C. § 1331. [D.E. 1.]

After discovery had been completed, all of the defendants moved for summary judgment [D.E. 77, 78, 79, 80, 95], and Bailey moved for summary judgment against all of the defendants [D.E. 83]. In addition, Rocco, who had unsuccessfully moved before Magistrate Judge Patty Shwartz to disqualify Bailey's counsel, James Marks, and for leave to amend her answer to file a third-party complaint against Marks, appealed Judge Shwartz's decision. [D.E. 94.]

The only federal claims stated in Bailey's amended complaint are those asserted against the Englewood defendants. As discussed below, those claims must be dismissed because the Englewood defendants are entitled to immunity, and the Court declines to exercise supplemental jurisdiction over the remainder of Bailey's claims. Parker v. NutriSystem, Inc., 620 F.3d 274, 276 n.2 (3d Cir. 2010) (citing 28 U.S.C. § 1367(c)(3)). Because the Court opts not to exercise jurisdiction over Bailey's state law claims, this opinion relates only to her federal claims and to Rocco's appeal. Accordingly, the following statement of facts relates only to the police incident.

The Court bases its analysis of Rocco's appeal on the statement of facts in Judge Shwartz's opinion [D.E. 92], and will review those findings of fact for clear error. See Lithuanian Commerce Corp., Ltd. v. Sara Lee Hosiery, 177 F.R.D. 205, 213 (D.N.J. 1997).

II. Summary of Facts*fn1

As a result of a contentious divorce, Bailey was court-ordered to sell the home she lived in for 25 years, which was located at 166 Belmont Street in Englewood, New Jersey. (Bailey Dep. 130:2--10.) The closing occurred on December 27, 2008, and pursuant to an escrow agreement the parties executed, Bailey was given from the closing until January 4, 2008, to remove all of her possessions from the property. (Bailey Dep. 19:19--21; Escrow Agreement, attached to Mory Certif. as Ex. I.) The agreement provided that if she failed to do so by that date, the buyers, Gibbons and Wood, would have the right to employ a moving and cleaning company "to effectuate the house being delivered in a broom clean condition." (Escrow Agreement) The agreement also provided that the buyers could deduct from the amount held in escrow the pro-rata monthly interest they were obligated to pay under their mortgage from the closing date until such time as the property could be delivered in broom-clean condition. (Id.) These deductions cost Bailey approximately $50 per day.

Bailey did not remove her property from the house by January 4. (Bailey Dep. 30:21--25.) On January 7, Gibbons came to the property, and Bailey called the police "for help." (Bailey Reply Certif. of Facts ¶ 66--68.) Officer Jamie Gillert, who is not a defendant in this action, responded. (Gillert Dep. 8:2--4.) She told Bailey that she needed to be out of the house by the next morning, and she told Gibbons that he would need a court order to have Bailey removed, in light of the fact that at the time he did not have documents proving his ownership of the house.*fn2 (Gillert Dep. 11:8--21; Bailey Dep. 49:1--3; Bailey Reply Certif. of Facts ¶ 72.) Though movers came the next morning, Bailey did not have them remove all of her possessions from the property. (Bailey Dep. 52:23--53:6, 56:5--23.)

On January 10, Bailey, who was 64 years old at the time, was admitted to the hospital; she stayed there until January 13 for treatment of diabetes and high blood pressure. (Bailey Reply Certif. of Facts ¶ 85.)

On the morning of January 14, 2008, Bailey went to her former home and discovered a dumpster outside the house, filled with construction debris and some of her possessions. (Id. ¶¶ 96--97.) The door to the house was open, and Bailey could see workers inside breaking her dishes. (Id.) She began to take some of her possessions from the house and place them on a neighbor's lawn. (Id. ¶ 99.) She believed that the Escrow Agreement gave her the right to be on the property and reclaim her possessions. (Id. ¶¶ 101--102.)

One of the workers called Gibbons, who in turn called the police, gathered all of the documents he thought he would need to prove his ownership of the property, and then drove to the property to meet the police there, with the intention of having Bailey removed. (Gibbons Dep. 89:18--91:6, 115:5--13.) Police officers Thornton White and Anthony Gonzalez responded in separate vehicles, arriving simultaneously at 9:50 a.m. (White Dep. 9:19--22.) White proceeded to talk to Gibbons, who showed the officer his deed to the property and his driver's license and told the officer that he had bought the house three weeks earlier and that, while Bailey was allowed on the premises for a certain period after the closing, at that time she was trespassing. (Gibbons Dep. 92:16--20, 92:24--93:1; White Dep. 15:4--6, 23:16--19.) For her part,Bailey testified that although she did not see Gibbons show any documentation, it is possible that he did. (Bailey Dep. 100:1--17.) Gonzalez stated in his answers to interrogatories that during most of the officers' visit, Bailey was walking around the property, occasionally carrying some of her personal possessions. (Gonzalez Interrogs. ¶ 7.)

After speaking to Gibbons, White attempted to talk to Bailey, but she ignored his questions. (White Dep. 28:16--19, 28:23--25; Gonzalez Dep. 12:24--13:1, 13:6--8.) She also did not show him any documentation, such as a lease agreement, that would establish her right to be on the property, and White unsuccessfully told her she needed to leave the property. (White 65:22--24, 66:4--6; Gonzalez Dep. 9:17--22.) White called Lieutenant Kevin Barrett and asked him to come to the property, hoping a higher-ranking officer could be more effective, but Bailey ignored Barrett, as well. (Barrett Dep. 12:12--23, 32:13--19.) After Barrett arrived, White filled him in on everything that had happened; Barrett subsequently asked Gibbons if he wanted to file a complaint against Bailey, and Gibbons responded that he did. (Gibbons Dep. 119:18--120--5; Barrett Dep. 21:19--22.) Barrett instructed White to arrest Bailey, and White took his handcuffs off of his belt, told Bailey to put her hands behind her back, and took hold of her wrists in order to put the handcuffs on her. (Barrett Dep. 33:2--6, 33:14--18; Gibbons Dep. 121:3--10; Bailey Dep. 135:17--19.) However, when Gibbons realized that filing a complaint meant Bailey would be handcuffed and taken to jail, he immediately told the officers that he did not want her arrested, but merely wanted her removed from the property. (Gibbons Dep. 100:18--22, 101:8-- 14; Bailey Dep. 105:12--15.) The police then let her go with a warning that she should not return to the property without first calling the police, and they also suggested that she seek legal counsel if she needed it. (Bailey Dep. 109:24--110:4; Barrett Interrogs. ¶ 7.)

Bailey conceded in her deposition that only a few seconds elapsed from the time White removed the handcuffs from his belt to the time he released her. (Bailey Dep. 135:2--136:7.) While she initially testified that her excessive force claims are premised on White's conduct in putting her hands behind her back and grabbing her wrists, she immediately corrected herself and stated that she moved her hands behind her back on her own. (Id. 135:2--136:7.) She also testified that White did not squeeze or punch her wrists, did not injure her, and never actually placed the handcuffs on her. (Id. 105:5--8, 105:12--15, 135:2--136:7, 154:6--7.) Indeed, she testified that she was never arrested. (Id. 116:13--14.) She also confirmed that the police did not take any of her possessions from the house. (Id. 130:21--23.) She added that "[m]aybe it was only a couple of seconds, but it was a scary couple of seconds." (Id. 109:7--8, 135:2--136:7.)

Ten to fifteen minutes after the first incident, Bailey returned to the property, believing she had left her car keys behind. (Bailey Dep. 110:19--25, 111:1--112:15.) Remembering the police officers' advice, she called the police for assistance. (Id. 32:6--9, 109:24--110:4.) This time, White and Officer Johnson responded, and Johnson helped Bailey find her keys, which were hanging from her neck, underneath her sweater. (Bailey Dep. 112:1--15.)

III. Summary Judgment Standard

Summary judgment may be granted "if 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." Fed. R. Civ. P. 56(c). A fact is material if, under the applicable law, it could affect the outcome of the suit, and an issue of fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Id. The mere existence of some disputed facts is insufficient to defeat a motion for summary judgment. Id. When considering a summary judgment motion, a court must view the facts in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. Knopick v. Connelly, 639 F.3d 600, 606 (3d Cir. 2011). However, in opposing a motion for summary judgment, a party cannot rest on the pleadings, but must set forth specific facts demonstrating the existence of a genuine issue of fact. United States v. 717 S. Woodward St., 2 F.3d 529, 533 (3d Cir. 1993) (quoting Fed. R. Civ. P. 56(e)). The district 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, 477 U.S. at 249.

IV. Claims Against the City of Englewood

The City of Englewood contends that, under the rule set out in Monell v. Department of Social Services, it is immune from suit. Monell, the seminal case on municipal liability, held that a municipality can be sued under 42 U.S.C. § 1983 only if the official conduct that caused the plaintiff's injury was the result of the municipality's policy or custom. 436 U.S. 658, 690 (1978). A policy is defined as a "policy statement, ordinance, regulation, or decision officially adopted and promulgated by" the municipality, id., while a custom is defined as a course of conduct that, while not officially adopted, is so permanent and well settled "‗as to virtually constitute law.'" Hansell v. City of Atlantic City,152 F. Supp. 2d 589, 609 (D.N.J. 2001) (quoting Andrews v. City of Philadelphia, 895 F. 2d 1469, 1480 (3d Cir. 1990)). In addition to establishing the existence of a policy or custom, a plaintiff must establish a causal connection between the policy or custom and the injury suffered. Talbert v. Kelly, 799 F.2d 62, 67 (3d Cir. 1986). "[A] single incident of police misbehavior by a single policeman is insufficient as sole support for an inference that a municipal policy or custom caused the incident." City of Oklahoma City v. Tuttle, 471 U.S. 808, 832 (1985).

The City of Englewood argues, in support of its motion for summary judgment, that Bailey "has not identified any policy, practice or custom implemented by a policymaker which existed on the date of [Bailey's] arrest," and that she has failed to establish a causal link between the policy and her injury. (Englewood Defs.' Moving Br. at 31--32.) Bailey responds with a host of counterarguments, none of which are sufficient to forestall a grant of summary judgment to the City of Englewood.

First, Bailey contends that the City of Englewood has a policy of inadequately training its officers to deal with landlord/tenant issues. However, she provides no evidence of how the City of Englewood trains its officers, no indication of the specific training it failed to provide, and no suggestion of how providing that training could have reasonably prevented her injury. "A § 1983 plaintiff pressing a claim of this kind must identify a failure to provide specific training that has a causal nexus with his or her injury and must demonstrate that the failure to provide that specific training can reasonably be said to reflect a deliberate indifference to whether constitutional deprivations of the kind alleged occur." Colburn v. Upper Darby Twp., 946 F.2d 1017, 1030 (3d Cir. 1991). Simply showing that police officers could have been better trained is insufficient, id. at 1029--30, but that is all Bailey does here. She thus cannot establish a Monell claim for failure to train.

Second, Bailey contends that in his police report, White (1) misstated the title of the statute pursuant to which Bailey was arrested, and (2) failed to include any mention of the documents he reviewed at the scene. Her argument regarding the title of the statute-that it was changed when the statute was amended in 2005 and that White should have been aware of the change-is absurd. The substance of the law was not changed in any way relevant to this case, 2005 N.J. Sess. Law Serv. Ch. 100 (West),*fn3 and even if White's error were more than a typo, Bailey cannot base a Monell claim on a single policeman's mistake. See Tuttle, 471 U.S. at 832. The second argument is just as flimsy; Bailey contends that "[b]oth Lieutenant Barrett and Chief O'Keefe admit this omission [of the documents White reviewed] was not proper policy." (Opp'n Br. to Englewood Defs. at 37 (quoting Pls.' Expert Report).) This is tantamount to an acknowledgment that whatever errors White made on his police report, they were not made pursuant to a City of Englewood policy or custom and therefore cannot expose the City of Englewood to liability.

Third, Bailey asserts that because White knew that Gillert had been called to the scene previously, he should have called in to the station to review what had occurred at that prior incident. She suggests that his failure to do so was the result of a department-wide policy not to radio back to the station. Setting aside whether there is a causal connection between White's failure to call back to the station and Bailey's alleged injury,*fn4 Bailey's assertion that the City of Englewood has a policy of not calling back to the police station, made through her expert witness, is incorrect. What Englewood police Chief Arthur O'Keefe actually stated in his deposition was that the fact that there had been a previous incident at the same location would not necessarily be relevant to an officer on the scene, and that the officer would make the decision whether to gather information about the previous incident "based upon the circumstances and facts in front of him." (O'Keefe Dep. 45:3--15, 46:9--23.) He added that a call back to the ...

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