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Matthew Warner v. Township of South Harrison

June 26, 2012

MATTHEW WARNER, PLAINTIFF,
v.
TOWNSHIP OF SOUTH HARRISON, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Hon. Jerome B. Simandle

OPINION

SIMANDLE, Chief Judge:

I. INTRODUCTION

This matter is before the Court on the motion of Defendants Colleen Bianco, Warren Mabey, James McCall, Gary Spinner and Township of South Harrison (collectively the "Defendants") for summary judgment. [Docket Item 38.] Plaintiff Matthew Warner filed opposition. [Docket Item 44.] For the reasons stated herein, the court will grant in part and deny in part Defendants' motion for summary judgment.

II. BACKGROUND

A. Statement of the Facts and Procedural History

The instant action arises out of an incident on April 16, 2008 when Plaintiff Matthew Warner ("Plaintiff") performed a port scan on the Township of South Harrison's computer network at the request of Deputy Mayor Robert Campbell. Plaintiff is a computer IT professional and served as a member on the Township Planning and Zoning Board in 2008. In addition, as a result of his IT background, the Plaintiff was appointed to the Resident Task Force in 2007 by the Township Committee. The purpose of the Resident Task Force was "to review the needs of the Township regarding IT architecture, data storage, hardware, software and disaster recovery requirements."*fn1 (Pl.'s Ex. A, Minutes of the Township Committee meeting held on June 27, 2007.)

On April 16, 2008, Deputy Mayor Campbell invited the Plaintiff to attend the Township Committee meeting that night to discuss the Township's needs for IT services and asked the Plaintiff to run a port scan on the Township network prior to the meeting to assess the security of the Township's computers. (Defs.' Ex. 3, Deposition of Matthew Warner, February 22, 2011 ("Warner Dep.") at 102: 25-103:9; 134:12-134:18). The Plaintiff agreed and on April 16, 2008, Plaintiff entered an open door to the South Harrison Township Clerk's Office during a closed session part of the Township Committee meeting. He unplugged the Cat 5 cable from a computer and inserted it into his personal laptop in an effort to obtain an IP address to connect to the internet and check his company email. (Warner Dep. at 53:1-4; 58:16-23; 61:17-20; 62:17-19; 69:5-9.) When checking his email, Plaintiff conducted the port scan which had been requested by Deputy Mayor Campbell. (Warner Dep. at 70:24-71:1-9.) During the network scan, Plaintiff observed open ports that were susceptible to viruses. Id.

While Plaintiff was in the Clerk's Office, Deputy Clerk Celeste Keen discovered the Plaintiff in the office, shutting down his computer. (Warner Dep. at 74:10-25.) The Plaintiff then exited the building and met with Deputy Mayor Campbell in the parking lot and advised Campbell that he had run a port scan and that what he had seen was "ugly." (Warner Dep. at 75:23-76:8.)

After the closed session meeting on April 16, 2008, the Deputy Clerk Celeste Keen relayed to the Township Administrator Colleen Bianco ("Bianco") that she had observed the Plaintiff unattended in the Clerk's office and that the Plaintiff was connected to the computer network. (Defs.' Ex. 7, Deposition of Colleen Bianco, March 16, 2011 ("Bianco Dep.") at 42:17-43:7.) The next morning on April 17, 2008, Bianco circulated an e-mail to the Township Committee members and administrative employees of the Township, as well as Police Chief Warren Mabey, about the situation. (Defs. Ex. 8.)

Aside from Deputy Mayor Campbell, other members of the Township Committee and Township Administrator Bianco did not know that the Plaintiff was authorized to access the Township computer network and were alarmed to find the Plaintiff using the computer in the Clerk's office unsupervised. (Defs.' Ex. 9, Emails from Committee Members, S Harrison, 14-27).

Bianco contacted members of the Township Committee as well as Chief of Police Warren Mabey ("Mabey") to determine why the Plaintiff was accessing the Township's computer network without authorization. (Defs. Ex. 8.) Deputy Mayor Campbell did not disclose to the other members of the Township Committee that he had authorized the Plaintiff to perform the port scan on the network. (Defs.' Ex. 9, Emails from Committee Members, S Harrison, 16-18).

Chief Mabey then contacted the Plaintiff to set up a meeting to speak with him about the incident on April 16, 2008. (Pl.'s Ex. 11.) Prior to meeting with Chief Mabey, the Plaintiff spoke with Deputy Mayor Campbell. (Warner Dep. 87:19-90:7). The Plaintiff and Deputy Mayor Campbell agreed that the Plaintiff should tell Chief Mabey that Plaintiff was using the Clerk's Office computer to check his email. (Warner Dep. 89:25-90:7.) In fact, Plaintiff did check his email on the Clerk's office computer; however, Plaintiff then proceeded to do a port scan of the Township's network to check for security issues. (Warner Dep. 89:12-18.) When the Plaintiff was asked by Chief Mabey about his reason for accessing the Clerk's office computer, Plaintiff maintained that he was checking his email and did not disclose to Chief Mabey that he also ran a port scan on the Township's network. (Warner Dep. at 92:4-92:21.)

After his interview with the Plaintiff, Chief Mabey contacted the New Jersey State Police Cyber Crimes Unit on April 18, 2008, and the state police subsequently took over the investigation. (Defs.'s Ex. 10, Deposition of Chief of Police Warren Mabey, May 9, 2011 ("Mabey Dep.") at 52:15-53:12.) The state police and an attorney from the Gloucester County Prosecutor's office interviewed the Plaintiff and concluded that there was no criminal activity involved in this incident and that the Plaintiff "was asked to scan the network and believed he had the proper authority to do so." (Defs.' Ex. 13, Investigation Report by the New Jersey State Police, June 24, 2008 ("Investigation Report") at S Harrison 105, 107.) The state police drafted an internal investigatory report on the incident and recommended that any further action on the matter be handled on the administrative level. (Investigation Report at S Harrison 107.)

Chief Mabey then informed the South Harrison Township Committee that as a result of the State Police cyber crimes unit investigation, there would be no criminal charges filed, that the investigation was closed and that it was recommended the matter be handled on an administrative level. (Deposition of James McCall, June 29, 2011 ("McCall Dep.") at 40:15-41:9). As a result, the Township Committee voted to authorize the formation of a Special Investigative Subcommittee to investigate the incident further. (Defs.' Ex. 17, First Investigative Subcommittee Report.) Defendants James McCall and Gary Spinner were appointed as the two exclusive members of the Investigative Subcommittee. Id.

The Investigative Subcommittee subpoenaed the testimony of the Plaintiff. (Defs.' Ex. 21.) The Plaintiff asserted his Fifth Amendment privilege as to any questioning and declined to testify per the advice of his counsel. (Defs.' Ex. 22.)

The Investigative Subcommittee also attempted to obtain a copy of the State Investigatory Report by submitting a request pursuant to the Open Public Records Act, N.J.S.A. 47:1A-1, et seq. This request was denied by the State Police who advised the Investigative Subcommittee that criminal investigatory records were exempt from release under OPRA absent a court order. (Pl.'s Ex. AA.)

Defendants McCall and Spinner then issued a subpoena to the New Jersey State Police requesting the production of the State Police investigation report of the April 16, 2008 incident. (Pl.'s Ex. CC.) The state police responded by letter and advised Defendant McCall that the investigation reports are not public record. However, the state police could provide the case status of the report as Unfounded/Closed for a fee of $16.00. (Pl.'s Ex. DD.) A money order for $16.00 was submitted to the New Jersey State Police. (Defs.' Ex. 25.)

Defendant McCall testified at his deposition that Defendant Spinner actually received the State Police investigation report under OPRA. (Pl. Ex. D, McCall Deposition, at 106:9-17; 109:20-25; 110:1-2.). Defendant Spinner testified at his deposition that McCall was the one to receive the copy of the New Jersey State Police investigation report and Spinner further averred that McCall provided him with a copy. (Pl. Ex. E, Deposition of Gary Spinner, March 16, 2011 ("Spinner Dep.")

Despite this inconsistency, it is undisputed that the Investigative Subcommittee received an unredacted copy of the state investigatory report on or about December 3, 2008, though it is unclear how Defendants Spinner and McCall gained access to this document. (Defs.' Ex. 17, "Special Investigatory SubCommittee Report" at S Harrison 47.) It may have been furnished to them by Chief Mabey, as now discussed.

It is also undisputed that Defendant Mabey obtained an unredacted copy of the State Police investigation report in early July 2008. (Mabey Dep., 120:22-23; Ex. FF.) The Plaintiff argues in its brief that Defendant Mabey provided a copy of the unredacted report to Defendants Spinner and McCall since their OPRA requests were denied and they were unable to obtain the report through subpoena. Defendants McCall and Spinner maintain that they received a copy of the unredacted report from the State Police after submitting the $16.00 money order. Defendant Mabey was later advised by the Township Solicitor on December 18, 2008, that any criminal investigation reports in connection with the April 16, 2008 incident were not subject to release and were confidential. (Pl.'s Exs. O and P.) On December 29, 2008, the Investigative Subcommittee consisting of Defendants McCall and Spinner issued a report setting forth its efforts and findings. (Defs.' Ex. 17, Investigative Subcommittee Report.) The unredacted State Police investigation report was attached as an exhibit to the Subcommittee report. (Defs.' Ex. 17.) The unredacted State Police investigation report included Plaintiff's social security number, home address, date of birth, driver's license number and personal telephone numbers. (Defs.' Ex. 17.)

The report was issued during the course of a public Township Committee meeting on December 28, 2009. Defendant Spinner handed out copies of the report with the incorporated exhibits, including the unredacted state police investigatory report, to the Township Committee Members and the Municipal Clerk. (Warner Dep. at 32:10-12. The Municipal Clerk then handed a copy of the report with the incorporated exhibits to Robert Diaz, who had been elected to the Township Committee but was not yet serving. (Defs.' Ex. 26, Deposition of Matthew Warner, Day 2, May 20, 2011 ("Day 2 Warner Dep.") at 21:19-22:1.)

Defendant McCall presented the findings of the Subcommittee report at the meeting in open session by reading the contents of the Subcommittee report. (Defs.' Ex. 32, Plaintiff's certified responses to interrogatories propounded by Defendant James McCall at Interrogatory No. 3.) Defendant McCall did not read the Plaintiff's social security number or driver's license number out loud, but the Plaintiff testified in his deposition that Defendants Spinner and McCall did advise the public on how to obtain the report pursuant to an OPRA request. (Warner Dep. at 144:23-145:6.)

Following the December 29, 2008 meeting, Plaintiff made a request for the Investigative Subcommittee report on December 30, 2008. (Defs.' Ex. 27, Warner OPRA request.) Defendant Jeannine Campbell also submitted an OPRA request for the Subcommittee report on December 30, 2008. (Defs.' Ex. 29, Receipt issued to Jeannine Campbell for OPRA request.) The Municipal Clerk provided a copy of the Subcommittee Report and incorporated exhibits to Plaintiff and Jeannine Campbell. (Defs.' Ex. 28 and 29.) These copies included a copy of the unredacted state investigatory report as said report was incorporated as an exhibit to the Subcommittee Report. Defendant Jeannine Campbell then made copies of the Subcommittee Report with the incorporated exhibits and gave these copies to members of the public. (Day 2 Warner Dep. at 4:22; Deposition of Jeannine Campbell, February 14, 2011 ("Jeannine Campbell Dep.") at 67:18-25; 68:1-16; 84:4-5.) Consequently, the unredacted state investigatory report with the Plaintiff's personal identifying information was distributed to members of the public.

The Plaintiff objected to the First Investigatory Subcommittee's failure to redact his social security and driver's license numbers on the state police investigation report when attaching the document to the Subcommittee Investigation Report at the next meeting of the Township Committee on January 5, 2009. The Plaintiff memorialized his objection by way of letter to the Township that same day. (Pl.'s Ex. M and GG.)

On January 8, 2009, the Municipal Clerk wrote to the Government Records Council acknowledging that the Township's failure to redact Plaintiff's private information on the State Police Investigation Report prior to its dissemination violated the Open Public Records Act. (Pl.'s Ex. N.)

During this incident and investigation, Plaintiff testified that Defendants McCall, Spinner and Bianco referred to the Plaintiff as a "hacker" and a "liar." Plaintiff has also testified that Defendant McCall referred to the Plaintiff as "corrupt" in a public Township meeting in November, 2008. Plaintiff also avers that Defendant Mabey has referred to this incident as a "hacking incident."

After the Investigative Subcommittee report was made public, the Plaintiff was asked not to renew his term with the Township Planning and Zoning Board. It is unclear who in the Township made the decision to terminate the Plaintiff from the Planning and Zoning Board. At the time Plaintiff was asked not to renew his position, Charles Tyson was the Mayor of the Township and as Mayor, had the authority to make an appointment to the Planning and Zoning Board by way of resolution. (Pl. Ex. E, Deposition of Gary Spinner, March 16, 2011 ("Spinner Dep.") at 15:12-20; 16:23-25; 17:1-4; 17:24-25; 18:1.) Tyson testified that Defendant Spinner contacted him to arrange a meeting for the purpose of having Plaintiff resign from the Planning and Zoning Board. (Pl.'s Ex. I, Deposition of Charles Tyson, June 10, 2011 ("Tyson Dep.") at 85:6-89:17.) Tyson also indicated the purpose of the meeting with Defendant Spinner and a concurrent meeting with Chief Mabey was to discuss the "Matt Warner Situation" and Plaintiff's position on the Planning and Zoning Board. (Pl.'s Ex. J.) However, in his deposition, Tyson denied having anything to do with Plaintiff's removal from the Planning and Zoning Board and denied having any knowledge as to who made the decision not to renew Plaintiff's position. (Tyson Dep. at 25:3-25:23.)

The Plaintiff then filed the instant action against the Defendants Township of South Harrison, Jeannine Campbell, Colleen Bianco, Gary Spinner, James McCall and Warren Mabey. In the First Amended Complaint, the Plaintiff alleges Defendants violated his right to privacy under both the Federal and State Constitutions. The Plaintiff also brings a Fourteenth Amendment defamation claim against the Defendants. Lastly, the Plaintiff brings a Monell claim for violation of federal rights against the Township of South Harrison and maintains that the municipality failed to train, supervise and/or discipline the individual defendants.

The Defendants filed an answer to the First Amended Complaint and discovery has been completed. All the Defendants with the exception of Jeannine ...


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