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John Kleinberg v. Albert Clements

March 23, 2012


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


Before the Court are defendants' motions for summary judgment,*fn1 and plaintiff's motion to file a sur-reply. For reasons set forth below, defendants' motions will be granted in part and denied in part. Plaintiff's motion will be denied.


Plaintiff has alleged that defendants violated his rights under the First, Fourth and Fourteenth Amendments and, therefore, this Court exercises subject matter jurisdiction pursuant to 28 U.S.C. § 1331 (federal question jurisdiction).


A. Factual Background

On September 8, 2009, plaintiff John Kleinberg was alone at his house drinking beer. Between 1:00 p.m. and 2:00 p.m., he went outside and approached his next door neighbor, Elvira Lomonaco. Mrs. Lomonaco testified that plaintiff was staggering and that his speech was slurred. Although plaintiff admits he was drinking alcohol, he denies that he was staggering or slurring his speech because, as an alcoholic, he has a high tolerance for alcohol. Plaintiff describes the encounter as "neighborly small talk." Mrs. Lomonaco describes a different conversation. She testified that Plaintiff asked her three times to retrieve her husband's guns because he wanted to kill himself. Plaintiff eventually returned to his home.

By 6:00 p.m., plaintiff had consumed approximately twelve beers. At that time, he left his home again and approached Darren Lomonaco, a police officer and Elvria Lomonaco's husband, and asked if he could borrow his gun to put himself "out his misery." Plaintiff does not deny the conversation but says that not only was he joking when he made this statement but that Officer Lomonaco knew he was joking. Officer Lomonaco, on the other hand, testified that plaintiff became more assertive and insistent and went so far as to ask Officer Lomonaco several times to shoot him. Plaintiff then went back inside the house and consumed approximately five or six more beers.

Officer Lomonaco then spoke with his wife about the incident and she told him that plaintiff had also told her that he wanted Officer Lomonaco's guns to shoot himself. Based on his conversations with plaintiff and with his wife, Officer Lomonaco contacted the Berlin Police Department to make them aware of plaintiff's behavior and apparent desire to kill himself.

Defendant Officer Albert Clements responded to the call. He spoke with Officer Lomonaco who advised him of his conversation with the Plaintiff and some aspects of his wife's encounter and conversation with plaintiff.*fn2 Officer Clements, joined by other officers, proceeded to plaintiff's residence and knocked on the door.

Here, once again, the parties differ somewhat as to details. Officer Clements testified that when Plaintiff came to the door he asked him to come outside to speak to him, plaintiff replied with a definitive "fuck, no" and "slammed the door shut on us." Although he could not smell alcohol because of a glass door between them, Clements described plaintiff as visibly intoxicated.

Plaintiff describes a somewhat more benign encounter. He says he asked the officers twice what they wanted and when he received no response told them "to go and leave him alone." He then closed and locked his front door and went back to watching television and speaking on the telephone to his friend Craig Rini.

After failing to get plaintiff outside at the front door, defendant Officer Clements, Officer Edmond Shields and Officer Michael Kernan walked into plaintiff's garage, which was open, and proceeded towards a door at the back of the garage that led inside into a laundry/mud room. Plaintiff says the door was closed. Defendants say it was ajar. The defendant officers entered the house and started to go through a second closed door between the laundry room and the kitchen. Plaintiff states that he attempted to barricade the door to the kitchen to prevent the officers from entering, but that the officers shoved the door open, tackled him to ground, and put him in handcuffs. Although his testimony has differed at times, Plaintiff now says that defendants also punched him and kneed him in the back while arresting him. Plaintiff states as a result of defendants' use of excessive force, he suffered bruising on his torso and arm and broken ribs.

The defendant officers state that they entered the house due to an "elevated" concern for the plaintiff's safety and because of the statements of their fellow police officer and his wife, also plaintiff's neighbors, that he wanted to commit suicide. The defendant officers did not have a warrant to enter plaintiff's home. Clements testified that he was familiar with previous calls to the police involving plaintiff and that each time plaintiff was intoxicated. Clements states that upon entering the home he observed an unknown object in plaintiff's hand and that after he "controlled" plaintiff's hand, he realized that plaintiff was holding a telephone. Defendants state that plaintiff was handcuffed and an ambulance was called. Clements testified that an ambulance is standard procedure for "suicide-type calls." There is no allegation or evidence that defendants used excessive force after placing plaintiff in handcuffs.

Plaintiff was put into the ambulance and taken to the hospital. He was treated for back pain and admitted for alcohol withdrawal symptoms. A suicide risk assessment was performed. Almost a month later, on October 2, 2008, plaintiff was seen at the emergency room at Virtua Hospital where x-rays revealed two rib fractures on his left side.

Plaintiff brings his claims pursuant to 42 U.S.C. § 1983*fn3 alleging that defendants Clements, Shields and Kernan violated his rights under the First, Fourth and Fourteenth Amendments of the United States Constitution, as well as corresponding provisions New Jersey Constitution.*fn4 Defendants move for summary judgment. For reasons explained below, their motion is granted in part and denied in part.


A. Defendants Berlin Borough and Robert L. Carrarra

As an initial matter, plaintiff voluntarily withdraws, with prejudice, all claims against defendants Berlin Borough and Robert L. Carrarra. Therefore, defendants' motions for summary judgment will be granted as to these ...

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