United States District Court, D. New Jersey
JOSEPH H. RODRIGUEZ, United States District Judge
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.
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.
August 26, 2009, Plaintiff claims she attempted to visit the
Gardner's Basin area of Atlantic City New Jersey.
Plaintiff utilizes a service dog. 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.
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.
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.
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.
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).
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
Summary Judgment Standard
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).
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
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
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).
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. 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.
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
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. In addition,
neither the “Aquarium” nor the Ocean Life Center
were served with a Summons. As a result, neither the
“Aquarium” nor the Ocean Life Center are
defendants to this action.
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
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
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
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).
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
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).
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)).
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).
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.
False Imprisonment/False Arrest
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.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 ...