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Forero v. Atlantic City

United States District Court, D. New Jersey

March 31, 2014

GLEN FORERO, JR., Plaintiff,
v.
ATLANTIC CITY, MARK A. PINCUS, JR., JERARD INGENITO, and CHRISTINE M. PETERSEN, (former) Atlantic City Director of Public Safety, Defendants.

MEMORANDUM OPINION & ORDER

JOSEPH H. RODRIGUEZ, District Judge.

This matter is before the Court on Defendants' Motion for Summary Judgment on Counts Three, Four, Five, and Six [Docket No. 38]. The Court has considered the submissions of the parties and has decided the motion pursuant to Federal Rule of Civil Procedure 78(b). For the reasons set forth below, the motion will be granted in part and denied in part.

Background & Procedural History

After the police were summoned due to a disturbance, on November 12, 2010, Plaintiff Glen Forero and his girlfriend essentially were evicted from the Showboat Hotel and Casino in Atlantic City. Plaintiff has alleged that he was subjected to excessive force in the process. On March 24, 2011, he filed a Complaint in this Court as a result of the occurrence.

Defendant has moved for summary judgment on Count Three for malicious abuse of process, Count Four for Supervisory Liability against John Does who were never named, Count Five for unlawful custom, practice, policy/inadequate training against the Atlantic City Police Department and the former Director of Public Safety, and Count Six, a demand for prospective injunctive relief. Plaintiff does not contest the motion as regarding Counts Three and Four.[1] Nor does Plaintiff address the motion as to the request for summary judgment regarding any demand for prospective injunctive relief.[2] Accordingly, the defense motion will be granted as to Counts Three, Four, and Six.

Regarding Count Five, Plaintiff contends that the quantity of Internal Affairs complaints against Defendants Pincus, Ingenito, and other Atlantic City police officers, as well as other lawsuits filed against them, reveals that police supervisors are well aware of and deliberately indifferent to a pattern, policy, and practice of police abuse and misconduct against citizens sufficient to visit municipal liability on Atlantic City and Petersen.

Defendants argue that Plaintiff has failed to establish that Defendants employed an offending policy or custom that was the proximate cause of Plaintiff's injury, as there is no expert report to support this claim for municipal liability. Defendants also argue that the lawsuits cited by Plaintiff lack relevance here.

Summary Judgment Standard

"Summary judgment is proper if there is no genuine issue of material fact and if, viewing the facts in the light most favorable to the non-moving party, the moving party is entitled to judgment as a matter of law." Pearson v. Component Tech. Corp., 247 F.3d 471, 482 n.1 (3d Cir. 2001) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)); accord Fed.R.Civ.P. 56 (a). The Court will enter summary judgment in favor of a movant who shows that it is entitled to judgment as a matter of law, and supports the showing that there is no genuine dispute as to any material fact by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations... admissions, interrogatory answers, or other materials." Fed.R.Civ.P. 56 (c)(1)(A).

An issue is "genuine" if supported by evidence such that a reasonable jury could return a verdict in the nonmoving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" if, under the governing substantive law, a dispute about the fact might affect the outcome of the suit. Id . In determining whether a genuine issue of material fact exists, the court must view the facts and all reasonable inferences drawn from those facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

Initially, the moving party has the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met this burden, the nonmoving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id .; Maidenbaum v. Bally's Park Place, Inc., 870 F.Supp. 1254, 1258 (D.N.J. 1994). Thus, to withstand a properly supported motion for summary judgment, the nonmoving party must identify specific facts and affirmative evidence that contradict those offered by the moving party. Andersen, 477 U.S. at 256-57. "A nonmoving party may not rest upon mere allegations, general denials or... vague statements....'" Trap Rock Indus., Inc. v. Local 825, Int'l Union of Operating Eng'rs, 982 F.2d 884, 890 (3d Cir. 1992) (quoting Quiroga v. Hasbro, Inc., 934 F.2d 497, 500 (3d Cir. 1991)). Indeed,

the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.

Celotex, 477 U.S. at 322. That is, the movant can support the assertion that a fact cannot be genuinely disputed by showing that "an adverse party cannot produce admissible evidence to support the [alleged dispute of] fact." Fed.R.Civ.P. 56(c)(1)(B); accord Fed.R.Civ.P. 56(c)(2).

In deciding the merits of a party's motion for summary judgment, the 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 v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Credibility determinations are the province of the ...


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