RICHARD M. GORDON, Plaintiff-Appellant,
TOWNSHIP OF TOMS RIVER, TOMS RIVER POLICE DEPARTMENT, TOMS RIVER POLICE OFFICER ANTHONY SCALI #334, TOMS RIVER POLICE OFFICER S. EUBANKS #318, and TOMS RIVER POLICE OFFICER MALONEY #359, Defendants-Respondents, and BOROUGH OF LAVALLETTE and LAVALLETTE POLICE DEPARTMENT, Defendants.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 11, 2013
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-3840-10.
Robert B. Woods argued the cause for appellant.
Jared J. Monaco argued the cause for respondents (Gilmore & Monahan, P.A., attorneys; Mr. Monaco, on the brief).
Before Judges Sabatino, Fasciale and Maven.
Plaintiff Richard Gordon appeals from a May 25, 2012 order granting summary judgment and dismissing his complaint against various defendants, including the Township of Toms River, Toms River Police Department and several officers, based upon injuries he incurred from a K-9 officer bite. We affirm.
These are the most pertinent facts. On September 27, 2009, after consuming a few drinks that evening on the Seaside Heights Boardwalk, plaintiff decided to sleep on the couch at his ex-girlfriend's home a few miles away. Upon arrival, he discovered that she was not home and called her cell phone approximately fourteen times. After receiving no response, it is undisputed that plaintiff entered his ex-girlfriend's home through a bedroom window.
Plaintiff's ex-girlfriend arrived home and noticed his parked vehicle. She immediately contacted the Toms River Police Department. Toms River police officers arrived at the scene with their K-9 officer, Boris, and went inside the home. Borough of Lavallette police officers also responded. According to defendants, Toms River Officer Eubanks made the "Standard K-9 Announcement." Receiving no response after what he described as "a reasonable amount of time, " Officer Eubanks released the K-9 officer to locate plaintiff. According to the Toms River K-9 Patrol Report, "K-9 Boris made the initial apprehension on the . . . suspect's buttocks, [and] as he resisted, K-9 Boris re-apprehended the suspect on his left calf." The K-9 officer bit plaintiff on the right shoulder, buttocks, and twice on his left leg.
Plaintiff was later charged with burglary, harassment, stalking and trespassing. He ultimately pled guilty to criminal trespassing.
In the Notice of Claim served pursuant to the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to -12-3, plaintiff alleged, among other things, that the police
use[d] excessive force upon the . . . claimant, including being repeatedly bitten and attacked by a police dog during the claimant's detainment, arrest, and continued detainment and, further, . . . the Toms River Police Department was negligent in the training, ...