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Lisa Cress, On Behalf of Herself, and As Guardian For Minor K.C. v. Ventnor City

December 20, 2012

LISA CRESS, ON BEHALF OF HERSELF, AND AS GUARDIAN FOR MINOR K.C. AND AS GUARDIAN FOR MINOR C.C., AND DANIEL LOMBARDI, PLAINTIFFS/COUNTER-DEFENDANTS,
v.
VENTNOR CITY, THEODORE BERGMAN, DOUGLAS BIAGI, MICHAEL MILLER, SCHALLUS, JOHN DOE #1-10(MASKED MEN IN BLACK), JAMES DONALDSON, JOSEPH BONSALL, JAY WOODS, JASON RZEMYK, DAVE DRUDING, STEVEN SWANKOSKI, AND TIM COLELLA, DEFENDANTS/CROSS-CLAIMANTS/CROSS-DEFENDANTS.



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

OPINION

This case involves allegations of constitutional and state law violations by defendant police officers in connection with the execution of a "no-knock" search warrant executed at night upon plaintiffs at their home. Presently before the Court are the following motions: a) Motion to seal confidential materials and for summary judgment by defendants Ventnor City, Theordore Bergman, Michael Miller, and Jason Rzemyk ("Ventnor defendants")*fn1 ; b) Motion for summary judgment by defendants Joseph Bonsall, Tim Colella, James Donaldson, Dave Druding, Steven Swankoski, and Jay Woods (Egg Harbor Township police department officers who are members of the Atlantic County Emergency Response Team ("ACERT")); c) Motion for sanctions against the Ventnor defendant by plaintiffs Lisa Cress and Daniel Lombardi; and d) Cross-motion for sanctions by the Ventnor defendants. For the reasons expressed below, the parties' motions will be granted in part and denied in part.

BACKGROUND

According to plaintiffs*fn2 , on March 15, 2008, at approximately 10:00 p.m., Lisa Cress ("Cress"), Daniel Lombardi ("Lombardi"), eleven-year-old C.C., and twelve-year-old K.C., were asleep in their home when they were awakened by the defendants' execution of a no-knock search warrant. During the course of the entry and apprehension of Lombardi, the target of the warrant, plaintiffs claim that defendants: (1) used flash sound diversionary devices (NFDs); (2) shattered glass; (3) stormed their home with masks and carrying assault rifles; (4) struck Cress in the forehead with a metal object, trampled over her, and dragged her down the stairs; (5) apprehended Lombardi by throwing him into a glass table, beating and kicking him, and rubbing his face and head into broken glass; and (6) kept the traumatized children separated from their parents for 90 minutes. Plaintiffs contend that this conduct, among other alleged actions of defendants, constitutes excessive force in violation of their Fourth Amendment rights, and violates various state laws.

In addition to the claims based on the execution of the search warrant, plaintiffs claim that the search warrant itself was invalid because it was not based on probable cause. According to the search warrant affidavit, probable cause was based on a drug investigation that used two confidential informants. The search warrant affidavit claims that CI-1 purchased drugs from Lombardi on two occasions, and that CI-1 and CI-2 provided information that Lombardi was currently in possession of a firearm. Plaintiffs contend that the purported drug buys were fabricated, and the use of confidential informants was fabricated.

During the course of discovery in this case, plaintiffs requested that the identities of the two confidential informants be revealed. After briefing and oral argument, the Court granted plaintiffs' request, and permitted plaintiffs' counsel to take the depositions of the two CIs. The Court also ordered that the names of the CIs would remain under seal, and that the transcripts of the depositions would be redacted, until the Court subsequently addressed the continued propriety of keeping the identities of the CIs protected.

Presently before the Court are the motions by the two groups of defendants for summary judgment in their favor on all of plaintiffs' claims against them. Also pending are cross-motions for sanctions by plaintiffs and the Ventnor defendants. On November 15, 2012, oral argument was held on these motions, and the following analysis supplements the Court's rulings made on the record.

DISCUSSION

A. Jurisdiction

Jurisdiction is proper pursuant to federal question jurisdiction, 28 U.S.C. § 1331, 28 U.S.C. § 1343(a)(3)(4), and 42 U.S.C. § 1983. Plaintiffs further invoke the pendent and supplemental jurisdiction of this Court to hear and decide claims arising under state law pursuant to 28 U.S.C. § 1367.

B. Summary Judgment Standard

Summary judgment is appropriate where the Court is satisfied that the materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations, admissions, or interrogatory answers, demonstrate 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(a).

C. Analysis

1. Sanctions ...


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