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Abbott v. Atlantic City

United States District Court, D. New Jersey

March 27, 2017

Rhonda Abbott, Plaintiff,
v.
Atlantic City, et. al. Defendants.

          ORDER

          HON. JOSEPH H. RODRIGUEZ, United States District Judge

         This matter comes before the court Defendants' Motion for Summary Judgment. The Court has considered the written submissions of the parties and the arguments advanced orally at the February 26, 2015 hearing in this matter. During that hearing, counsel for Plaintiff made several concessions that counsel attempted to retract by way of letter dated March 11, 2015. Plaintiff has filed additional submissions, including one on May 13, 2015 which have been considered.

         I. Background

         Plaintiff Rhonda Abbott, who is hearing impaired, alleges that the City of Atlantic City, several Atlantic City police officers, and the Director of Gardner's Basin, violated her rights under the American with Disabilities Act (“ADA”), the New Jersey Law Against Discrimination (“NJLAD”), and the Fourth and Fourteenth Amendment of the United States Constitution.

         On August 26, 2009, Plaintiff claims she attempted to visit the Gardner's Basin area of Atlantic City New Jersey. Plaintiff utilizes a service dog.[1] She claims she was denied access to the Atlantic City Aquarium and the police were called. Then, Plaintiff went to the Back Bay Ale House where she claims that she was harassed by the staff. Again, the police were called and Plaintiff was arrested by Officers Herrerias and Clayton and charged with disorderly conduct and resisting arrest. Ex. C.

         During Plaintiff's arrest and transport, Officer Herrerias claims that Plaintiff purposefully spit phlegm on him. Herrerias Dep. 13-15. As a result, he placed a see-through mesh mask over Plaintiff's face to curtail the spitting. Plaintiff claims that the mask was not see through and was fastened around her neck with the strings tied in an overly tight manner, precluding her from using her sight. In addition, she argues that she did not voluntarily spit on Herrerias, but that the expelled phlegm was the product of a summer cold, over which she had no control. See Abbott Dep., p. 182; Pl. Answer to Interrogatories. Plaintiff also claims that, once at the police station, she was struck by several police officers, forcibly handled, and made to walk without assistance with the mask on.

         Plaintiff's Complaint is unclear as to which claims she asserts against each of the Defendants and it fails to detail the nature of the violation as to each defendant. Listed in the caption of the Complaint as Defendants are the City of Atlantic City (“City”), Atlantic City Police Department (“Police Department”), Police Officer Heidi Clayton (“Clayton”), Police Officer R. Bouffard (“Bouffard”), Police Officer William Herrerias (“Herrerias”), Police Officer H. Stanton (“Stanton”), Chief of Police John Mooney III “Mooney”), Jack Keith, as the Executive Director Atlantic City Historic Waterfront Foundation (“Keith”), and John Does A-Z. See Complaint, generally. The Complaint itself, never identifies Officer Stanton as a Defendant in the “Parties” section, but refers to him as an actor, but not a defendant, in Count VIII. Id.

         The Complaint alleges eight counts, each with vague description. Count I alleges claims under the NJLAD, the “federal Americans with Disabilities Act[, ]” and Rehabilitation Act against the City, the Police Department, Keith, Clayton, Bouffard, and Herrerias. Id., ¶¶8-12. Count II alleges that the City, the Police Department and Clayton, Bouffard, and Herrerias deprived Plaintiff “of her freedom and liberty without proper justification” in violation of the NJLAD, “Federal Rehabilitation Act, 42 U.S.C. §1983, ” and the ADA. Id. at ¶¶13-15. Count III alleges that the City, the Police Department and “aforementioned police officers” deprived Plaintiff of her rights under the Federal and State Constitutions, “including but not limited to the LAD, federal Americans with Disabilities Act, Rehabilitation Act, and 42 U.S.C. sec. 1983.” Id. at 17. Count IV alleges violations of the “NJ LAD, federal ADA, Rehabilitation Act, and 42 sec. 1983.” Id. at 21. Count IV claims that the City, the Police Department, Officer Herrerias and “others” placed a mask over Plaintiff's face causing physical and mental injury. Id. ¶¶19-21. Count V appears to allege a failure to train claim; in it Plaintiff states that the City, the Police Department and Mooney “in his official capacity, are responsible for the aforementioned civil rights violations that the employees of Gardner's Basin and officers of the Atlantic City Police Department were not properly trained in how to interact with the hearing impaired, the use of service dogs, and the rights of the disabled.” Id. at ¶23. Count VI alleges claims against the John Doe police officers as plead in Counts I through IV. Id. at ¶¶24-25. Count VII appears to allege a claim under the ADA, Rehabilitation Act and/or Violations of the Fourth and/or Fourteenth Amendment(s) pursuant to §1983, stating the City, the Police Department, “and its Officers gave no effective communication despite Plaintiff's disability.” Id. at ¶27. Finally, Count VIII incorporates the preceding counts and claims that “Officer Stanton and or John Doe(s) fictitious names of Defendants A-Z physically struck Plaintiff.” Id. at ¶ 30.

         During oral argument, the Court noted the confusion caused by the poorly drafted Complaint and engaged Plaintiff's counsel in a discussion of the relevant claims as to each Defendant. The Court incorporates that discussion and counsel's explanation here. In addition, the Court directed Plaintiff to provide additional briefing as to the concessions made on the record. (See Dkt. No. 86).

         Counsel filed a supplemental brief and appends a chart to his brief, to further illustrate the nature of the claim(s) alleged as to each defendant. (See Dkt. No. 88). According to Plaintiff's chart, she alleges claims under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 791, Title II of the Americans with Disabilities Act, 42 U.S.C. § 12131 (“ADA”), and the New Jersey Law Against Discrimination, N.J. Stat. Ann. § 10:5-1 (“NJLAD”), violations of the Civil Rights Act of 1871, and 42 U.S.C. § 1983, against the City, the Police Department, the “Aquarium, ” Keith, Clayton, Bouffard, Herrerias, and Mooney. In addition, Plaintiff alleges claims of False Arrest and Imprisonment, Malicious Prosecution, violations of the Fourth and Fourteenth Amendments and 42 U.S.C. §1983 against Defendants Clayton, Bouffard, Herrerias. Plaintiff alleges a claim of Excessive Force against Herrerias and a Failure to Train claim against the City, the Police Department, and the “Aquarium.”

         II. Summary Judgment Standard

         A court will grant a motion for summary judgment 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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)); accord Fed.R.Civ.P. 56 (c). Thus, this Court will enter summary judgment only when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56 (c).

         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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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, 106 S.Ct. 1348, 89 L.Ed.2d 538 (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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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. 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.

         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, 477 U.S. at 249. Credibility determinations are the province of the finder of fact. Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).

         III. Analysis

         As a preliminary matter, summary judgment is granted as to the claims against unnamed John Does A-Z because they have not been identified and discovery is complete.[2] Summary judgment is also granted as to as the claims pursuant to §1983 alleged against Mooney, Clayton, Herrerias, Stanton, and Bouffard in their official capacity. It is well established that “neither a State nor its officials acting under their official capacities are ‘persons' under § 1983.” Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989). As such, an employee of the state named as a defendant in a civil rights action may be held liable only if that person has personal involvement in the alleged wrongs and is sued in their personal capacity. See Hafer v. Melo, 502 U.S. 21, 31 (1991) (“state officials, sued in their individual capacities, are ‘persons' within the meaning of § 1983”). Although the Complaint is silent as to the capacity in which these defendants are being sued, the Court will construe the Complaint broadly and consider the claims against these defendants in their individual capacities. Because Mooney is specifically alleged to have acted in his official capacity as to the claims in Count V, the Court will not construe these allegations, having been specifically plead, against Mooney in his individual/personal capacity. See Compl. ¶23. As a result, summary judgment is granted as to Mooney as to the claims plead in Count V.

         Summary judgment is granted as to Defendant Police Department with respect to allegations arising under §1983. The Police Department is a division of the City and the claims against it merge with the claims against the City. Generally, public entities that are not separate legal entities, but rather subunits of a local government or municipality, cannot be sued under § 1983. See, e.g., Peppers v. Booker, Civ. No. 11-3207, 2012 WL 1806170 (D.N.J. May 17, 2012) (noting that “[i]n a Section 1983 claim, police departments may not be named defendants in conjunction with municipalities because police departments are merely instruments of municipalities); Adams v. City of Camden, 461 F.Supp.2d 263, 266 (D.N.J. 2006); Bonenberger v. Plymouth Twp., 132 F.3d 20, 25 (3d Cir. 1997) (holding police department and municipality same for § 1983); N.J. Stat. Ann. § 40A:14-118 (municipal police department is “an executive and enforcement function of municipal government”). Thus, insofar as the Police Department is not a separate legal entity, but a division of the City, Plaintiff cannot sustain a separate §1983 claim against it and summary judgment is granted.

         In her chart, Plaintiff makes reference to claims against the “Aquarium[.]” No such entity is identified in the Complaint; however Plaintiff's Complaint asserts a claim in Count I against “Defendant City of Atlantic City's Gardner's Basin and its Ocean Life Center.” See Compl. ¶8. To the extent Plaintiff seeks to include this entity as a defendant, despite not listing it in the caption, identifying its relationship to the other parties in the Complaint, and/or revealing its corporate structure (see ¶¶ 1-7), the Court is without any facts in the Complaint to consider the nature of the “Aquarium's” enterprise or its relationship to the City.[3] In addition, neither the “Aquarium” nor the Ocean Life Center were served with a Summons.[4] As a result, neither the “Aquarium” nor the Ocean Life Center are defendants to this action.

         A. Plaintiff's Constitutional Claims: False Arrest, False Imprisonment, Excessive Force, Malicious Prosecution, Failure to Train in Violation of the Fourth and Fourteenth Amendments and the New Jersey Civil Rights Act

         Plaintiff's constitutional claims are governed by Title 42 U.S.C. § 1983, which provides a civil remedy against any person who, under color of state law, deprives another of rights protected by the United States Constitution. See Collins v. City of Harker Heights, 503 U.S. 115');">503 U.S. 115, 120 (1992). Any analysis of 42 U.S.C. § 1983 should begin with the language of the statute:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

42 U.S.C. § 1983. As the above language makes clear, Section 1983 is a remedial statute designed to redress deprivations of rights secured by the Constitution and its subordinate federal laws. See Baker v. McCollan, 443 U.S. 137, 145 n.3 (1979). By its own words, therefore, Section 1983 “does not . . . create substantive rights.” Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006) (citing Baker, 443 U.S. at 145, n.3).

         To state a cognizable claim under Section 1983, a plaintiff must allege a “deprivation of a constitutional right and that the constitutional deprivation was caused by a person acting under the color of state law.” Phillips v. County of Allegheny, 515 F.3d 224, 235 (3d Cir. 2008) (citing Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996)). Thus, a plaintiff must demonstrate two essential elements to maintain a claim under § 1983: (1) that the plaintiff was deprived of a “right or privileges secured by the Constitution or the laws of the United States” and (2) that the plaintiff was deprived of his rights by a person acting under the color of state law. Williams v. Borough of West Chester, Pa., 891 F.2d 458, 464 (3d Cir. 1989).

         A similar analysis may be made regarding any claim under the New Jersey Civil Rights Act. See Armstrong v. Sherman, No. 09 CV 716, 2010 WL 2483911, *5 (D.N.J. Jun. 4, 2010) (“[T]he language of the New Jersey Civil Rights Act, like the language of 42 U.S.C. § 1983, appears to grant a cause of action only to those persons whose rights have been personally violated.”)[5]

         The doctrine of qualified immunity provides that “government officials performing discretionary functions . . . are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person should have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Thus, government officials are immune from suit in their individual capacities unless, “taken in the light most favorable to the party asserting the injury, . . . the facts alleged show the officer's conduct violated a constitutional right” and “the right was clearly established” at the time of the objectionable conduct. Saucier v. Katz, 533 U.S. 194, 201 (2001). Courts may exercise discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand. Pearson v. Callahan, 555 U.S. 223, 236 (2009).

         This doctrine “balances two important interests-the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably” and it “applies regardless of whether the government official's error is a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.” Id. (internal quotation omitted). Properly applied, qualified immunity “protects ‘all but the plainly incompetent or those who knowingly violate the law.'” Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2085 (2011) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).

         For a right to be clearly established, “[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Saucier, 533 U.S. at 202 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). That is, “[t]he relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Couden v. Duffy, 446 F.3d 483, 492 (2006). “If the officer's mistake as to what the law requires is reasonable, ” the officer is entitled to qualified immunity. Couden, 446 F.3d at 492 (internal citations omitted). Further, “[i]f officers of reasonable competence could disagree on th[e] issue, immunity should be recognized.” Malley, 475 U.S. at 341 (1986). See also Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (The general touchstone is whether the conduct of the official was reasonable at the time it occurred.) Finally, because qualified immunity is an affirmative defense, the burden of proving its applicability rests with the defendant. See Beers-Capital v. Whetzel, 256 F.3d 120, 142, n.15 (3d Cir. 2001).

         Here, Plaintiff alleges violations of her Fourth and Fourteenth Amendment rights and there is no dispute that the individual officers were acting under the color of state law. Specifically, Plaintiff claims false imprisonment, false arrest, malicious prosecution, and excessive force against the individual police officer defendants Clayton, Bouffard, Herrerias, and Stanton[6].

         1. Constitutional Claims[7]

         a. False Imprisonment/False Arrest

         To the extent that Plaintiff makes claims of false arrest and false imprisonment against the individual officers, the Fourth Amendment prohibits seizures in the absence of probable cause.[8]Orsatti v. New Jersey State Police, 71 F.3d. 480, 482 (3d Cir. 1995). Under the Fourth Amendment, a person is seized “only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” Michigan v. Chesternut, 486 U.S. 567, 574 (1988) (quoting United States v. Mendenhall, 446 U.S. 544, 554 (1980)). Seizure occurs only when a person is detained by “means intentionally applied” to terminate his freedom of movement by means of physical force or by show of authority. Brower v. County of Inyo, 489 U.S. 593, 597-98 (1989). No seizure occurs when a reasonable person would feel free to “disregard the police and go about his business” or ...


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