United States District Court, D. New Jersey
MICHAEL A. CARONTE, Plaintiff,
LT. ALBERT CHIUMENTO and LT. DAVID D'AMICO, Defendants.
MEMORANDUM OPINION & ORDER
RENÉE MARIE BUMB UNITED STATES DISTRICT JUDGE
MATTER comes before the Court upon the Motion for Summary
Judgment by Defendants Lieutenant Albert Chiumento
(“Lt. Chiumento”) and Lieutenant David
D'Amico (“Lt. D'Amico” and together with
Lt. Chiumento, the “Defendants”) [Docket No. 26],
seeking the dismissal of all claims asserted against them by
Plaintiff Michael A. Caronte (the “Plaintiff”).
For the reasons set forth herein, the Court administratively
terminates Defendants' Motion for Summary Judgment,
pending further Order of the Court, and orders Plaintiff to
file a supplemental submission identifying the causes of
action he intends to pursue and against which Defendants he
asserts those claims, as well as which causes of action, if
any, he concedes.
initiated this action pro se on September 5, 2014 in
the Superior Court of New Jersey, Law Division, Camden County
[Docket No. 1-5]. Plaintiff's original Complaint
identified only Lt. Chiumento as a defendant and alleges, in
its entirety, that Lt. Chiumento arrested Plaintiff on May 3,
2013 and “extra tightened the handcuffs during the
arrest and in the processing room and [Plaintiff] suffered
with an injury on [his] wrist, M.R.I. verifies I had torn
ligaments on my left wrist.” Compl. ¶ 1.
December 5, 2014, Plaintiff, proceeding pro se,
filed an Amended Complaint in state court, naming only Lt.
D'Amico as a defendant. Am. Compl. [Docket 11-4, Ex. B].
The Amended Complaint alleges as follows:
Between 5/3/13 - 5/3/14 Lt. David D'Amico/Internal
affairs refused to show a line of all the police officers
working the day shift so I can identify the two officers who
slided [sic] up and down the side of my torso and make it
look like I was resisting arrest and the officer on the right
side of me who was bald headed flicked his finger on the side
of my head calling me a bonehead. Lt. David D'Amico
obstructed justice, derelict [sic] of duty, tappering [sic],
incompetence = Corruption!
Am. Compl. ¶ 1.
March 11, 2015, Defendants timely removed the action to
federal court on the basis of federal question jurisdiction,
construing Plaintiff's pro se allegations as
asserting an excessive force claim under 42 U.S.C. §
1983 in violation of the Fourth Amendment to the United
States Constitution. Notice of Removal [Docket No. 1].
on April 23, 2015, Daniel B. Zonies, Esq. entered a notice of
appearance on behalf of Plaintiff [Docket No. 6]. Over three
months later, on July 30, 2015, Plaintiff, now represented by
counsel, moved to amend the pleadings and add Waterford
Township, Waterford Township Police Department, and several
John Does as defendants, in addition to Lt. Chiumento and Lt.
D'Amico [Docket No. 11]. In the Proposed Amended
Complaint, Plaintiff alleges:
8. On or about May 3, 2013, plaintiff was wrongfully taken
into custody, physically arrested, and searched by defendants
without probable cause and without warrant.
9. On or about May 3, 2013, when plaintiff was complying with
Daniel Chiumento's order to get out of his vehicle, he
was assaulted and battered by defendants Daniel Chiumento and
John Does of the WTPD before, during, and after his arrest.
Daniel Chiumento tightened the hand cuff on plaintiff's
left wrists [sic] to the maximum such that plaintiff injured
his left wrist and continued to tighten the handcuffs on
plaintiff's wrist after the arrest in the processing room
of the WTPD.
10. After the arrest on or about May 3, 2013, David
D'Amico violated plaintiff's due process and civil
rights when he refused to show a line of all the police
officers working the day shift so that the plaintiff could
identify the two officers who rubbed the plaintiff's
torso up and down and made it appear as if the plaintiff was
resisting arrest. The officer standing on the right side of
the plaintiff flicked his finger on the side of
plaintiff's head calling plaintiff a “bone
Am. Compl. ¶¶ 8-10. The Proposed Second Amended
Complaint then sets forth two counts. In Count I, Plaintiff
appears to assert an assault and battery claim against all
named defendants. Generously read, Count II seems to set
forth claims under 42 U.S.C. § 1983 for excessive force,
false arrest and imprisonment, and procedural due process
violations against all named defendants.
January 22, 2016, Magistrate Judge Williams denied
Plaintiff's motion to amend, finding that the amendment
would be futile as time-barred against the newly added
defendants [Docket No. 20]. Magistrate Judge Williams,
however, recognized that Plaintiff, now represented by
counsel, may have wished “to amend his pleading as to
the existing Defendants to replace same with a more
streamlined pleading since the previously filed pleading was
filed when Plaintiff was acting pro se.” Jan.
22, 2016 Order at 6. As a result, Plaintiff was permitted to
file an amended complaint, if he secured Defendants'
consent, or, alternatively, to file a renewed motion to
amend. Plaintiff did neither. As a result, the operative
pleadings in this action appear to be some combination of the
original pro se Complaint against Lt. Chiumento only
and the pro se Amended Complaint against Lt.
on October 19, 2016, Defendants moved for summary judgment on
all claims asserted against them by Plaintiff [Docket No.
26]. Defendants set forth several arguments in support of
their motion, including that the undisputed evidence
establishes that Defendants acted lawfully and with probable
cause. Defendants also argue that they are immune from suit
on the basis of qualified immunity, good faith immunity
pursuant to N.J.S.A. 59:3-3, and immunity pursuant to
N.J.S.A. 59:3-2(b). Additionally, Defendants argue that
Plaintiff cannot satisfy the damages threshold required by
the New Jersey Tort Claims Act, pursuant to N.J.S.A.
59:9-2(d). Among other arguments, Defendants also contend
that Plaintiff's claims are barred by the Heck
doctrine, as Plaintiff pled guilty to and was convicted of
violating the Waterford Township municipal ...