United States District Court, D. New Jersey
BARSOUM S. ISRAEL, Plaintiff,
LIEUTENANT DEAN R. SMITH, et al., Defendants.
MEMORANDUM AND ORDER
G. SHERIDAN, U.S.D.J.
matter comes before the Court on Defendants Lieutenant Dean
R. Smith, Earnest Schriefer, Freehold Township, and Freehold
Township Police Department's (collectively,
“Defendants”) Motion for Summary Judgment
pursuant Federal Rule of Civil Procedure 56(c) (ECF No. 71).
Plaintiff asserts federal civil rights claims under 42 U.S.C.
§ 1983 for general deprivations of constitutional
rights, false arrest, failure to implement appropriate
polices and adequately train officers, and excessive force,
as well as common law tort claims of assault, battery,
intentional infliction of emotional distress, false
imprisonment, negligence, and negligent supervision. For the
reasons set forth below, Defendants' summary judgment
will be granted in part and denied in part.
December 30, 2010, at approximately 4:52 p.m, Lieutenant Dean
R. Smith, who was operating a patrol car, and Plaintiff
Barsoum Israel were stopped next to each other at a traffic
signal on Route 9 South, in Freehold, New Jersey, waiting to
turn onto Route 537. (Plaintiff's Statement of Material
Facts at ¶¶ 1-6). Plaintiff's wife, Isis
Korashy, was also in his vehicle. As the light turned green,
Plaintiff abruptly turned into Smith's lane without using
his turn signal, forcing Smith to quickly hit his breaks to
avoid a collision. (Defendants' Statement of Material
Facts at ¶ 1). Smith then pulled Plaintiff over in the
right lane of Route 537 West. (Id.). Plaintiff
claims that he was avoiding a large pile of snow stacked on
the roadway, when he turned into Smith's lane.
(Plaintiff's Statement of Material Facts at ¶¶
Smith requested Plaintiff's license and other
documentation, Korashy asked Smith why he had pulled them
over. (Defendants' Statement of Material Facts at
¶¶ 2-3). Smith explained that Plaintiff had
switched lanes without using a signal, that he would be
issued a summons, and that both of them should remain in
their car. (Id.). As Smith returned to his patrol
car to write the summons, Korashy exited the car and
proceeded towards Smith. (Id. at ¶¶ 4-5).
Smith then exited his patrol car and ordered her to return to
the car; despite his repeated directions, she did not comply.
(Id. at ¶¶ 5-6).
Korashy was giving Smith a “hard time out there,
” he called for backup and warned her that he would
arrest her if she did not return to her car. (Id. at
¶¶ 7, 11). According to Smith, she challenged him
to arrest her. (Id. at ¶ 8). At this point,
Plaintiff exited the car and approached Smith; Smith then
advised Plaintiff he would be arrested if he did not return
to his car. (Id. at ¶¶ 12, 14). Plaintiff
claims that he exited his car because Smith had an aggressive
tone towards his wife, and he wished to calm the situation
and have his wife return to the car. (Plaintiff's
Statement of Material Facts at ¶ 32). According to
Plaintiff, Smith then left his car and ran toward Plaintiff,
ordering Plaintiff to sit inside of his car. (Id. at
¶¶ 33-36). As Smith approached Plaintiff, Plaintiff
took his cellular phone from his pocket and purportedly asked
Smith, “would you please give me your boss' phone
number.” (Id. at ¶¶ 38-40).
According to Plaintiff, Smith became irate and charged at
Plaintiff, and placed both Plaintiff's hands on top of
the car by the driver's side. (Id. at
¶¶ 40-41). While pinned against the car, Plaintiff
claims that he informed Smith that he was a handicap, and
said “I am in pain right now.” (Id. at
¶ 41). Smith then allegedly placed Plaintiff in a
“full nelson, ” lifted him up and slammed him to
the ground. (Id. at ¶¶ 55-56). In his
police report, Smith noted that Plaintiff complained that he
had a bad back and medical problems; but also that Plaintiff
then tried to break away from him. (ECF No. 85-7,
“Exhibit G” at 3). After allegedly throwing
Plaintiff to the ground, Smith then knelt on top of Plaintiff
s lower back and buttocks and handcuffed him. (Plaintiffs
Statement of Material Facts at ¶ 61).
witnesses observed the incident and have conflicting
descriptions of what took place. Plaintiff relies upon a
motorist who called 911 saying, there is “an old man,
and a cop stopped him, and old man and an old
woman…the cop stopped him and he's harassing the
man…he's pushing the man down, he's pushing
the old lady and he's throwing him…the old woman
is screaming something . . . police brutality.”
(Id. at ¶ 69). However, Defendants refer to
several other witnesses, who claim that Plaintiff was the
aggressor during the incident and that Smith needed a
bystander's assistance to subdue him. (Defendants'
Statement of Material Facts at ¶¶ 20-34).
claims that Smith, after handcuffing him, allegedly dragged
him to the police car, threw him into the back seat, slammed
the door on his foot, and drove him to the police station.
(Plaintiffs Statement of Material Facts at ¶ 77). Once
at the police station, Plaintiff claims that Smith refused to
allow him to sit down and dragged him around the station.
(Complaint at ¶ 32).
was ultimately charged with “(1) failure to use a turn
signal in violation of N.J.S.A. 39:4-126, (2) unsafe lane
change in violation of N.J.S.A. 39:4-88(b), (3) resisting
arrest in violation of N.J.S.A. 2C:29-2A, and (4) obstruction
of the administration of law in violation of N.J.S.A.
2C:29-1A.” (Defendants' Statement of Material Facts
at ¶ 65). Plaintiff eventually pled guilty, in a New
Jersey municipal court, to: (1) obstruction of the
administration of law, N.J.S.A. 2C:29-1(a), and (2) failure
to use a turn signal, N.J.S.A. 39:4-126. (Id. at
¶ 66). Plaintiff later sought criminal charges against
Smith for bodily assault, contrary to N.J.S.A. 2C:12-1A;
however, a New Jersey municipal court judge dismissed the
complaint, finding “no probable cause for the issuance
of Plaintiff's complaint.” (Id. at ¶
67). Plaintiff appealed and it was dismissed by a New Jersey
Superior Court judge. (Id. at ¶ 68).
Thereafter, Plaintiff filed a complaint with the Monmouth
County Prosecutor's Office, Professional Responsibility
and Bias Crimes Bureau, alleging that Smith used excessive
force. (Id. at ¶ 69). After investigating the
merits of Plaintiff's complaint, the Bureau concluded
that Plaintiff's claim was unfounded. (Id. at
commenced this lawsuit against the Township of Freehold, the
Freehold Township Police Department, Chief Ernest Schriefer,
and Lieutenant Dean Smith claiming violations of the First,
Fourth, and Fourteenth Amendments, seeking remedies pursuant
to 42 U.S.C. § 1983, and various state law claims.
Defendants move for summary judgment on all counts.
judgment is appropriate under Fed.R.Civ.P. 56(c) when the
moving party demonstrates that there is no genuine issue of
material fact and the evidence establishes the moving
party's entitlement to judgment as a matter of law.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986). A factual dispute is genuine if a reasonable jury
could return a verdict for the non-movant, and it is material
if, under the substantive law, it would affect the outcome of
the suit. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). In considering a motion for summary
judgment, a district court may not make credibility
determinations or engage in any weighing of the evidence;
instead, the non-moving party's evidence “is to be
believed and all justifiable inferences are to be drawn in
his favor.” Marino v. Indus. Crating Co., 358
F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477
U.S. at 255).
the moving party has satisfied its initial burden, the party
opposing the motion must establish that a genuine issue as to
a material fact exists. Jersey Cent. Power & Light
Co. v. Lacey Twp., 772 F.2d 1103, 1109 (3d Cir. 1985).
The party opposing the motion for summary judgment cannot
rest on mere allegations and instead must present actual
evidence that creates a genuine issue as to a material fact
for trial. Anderson, 477 U.S. at 248; Siegel
Transfer, Inc. v. Carrier Express, Inc., 54 F.3d 1125,
1130-31 (3d Cir. 1995). “[U]nsupported allegations . .
. and pleadings are insufficient to repel summary
judgment.” Schoch v. First Fid. Bancorp., 912
F.2d 654, 657 (3d Cir. 1990); see also Fed. R. Civ.
P. 56(e) (requiring nonmoving party to “set forth
specific facts showing that there is a genuine issue for
only disputes over facts that might affect the outcome of the
lawsuit under governing law will preclude the entry of
summary judgment. Anderson, 477 U.S. at 247-48. If a
court determines, “after drawing all inferences in
favor of [the non-moving party], and making all credibility
determinations in his favor…that no reasonable jury
could find for him, summary judgment is appropriate.”
Alevras v. Tacopina, 226 F. App'x 222, 227 (3d
Federal Civil Rights Claims Under 42 U.S.C. §
Monell Liability 
Count III of the Complaint, Plaintiff alleges that Defendants
maintained unlawful policies and customs or, in the
alternative, failed to adequately train and supervise Smith.
Section 1983 states:
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.
Id. To sustain a claim under Section 1983, a
plaintiff must demonstrate: (1) “that they have been
deprived of a right ‘secured by the Constitution and
the laws' of the United States”; and (2) that the
defendant “deprived them of this right acting
‘under color of any statute'” or state law.
Flagg Bros, Inc. v. Brooks, 436 U.S. 149,
Plaintiffs Section 1983 claims against Freehold Township,
Freehold Township Police Department, and Chief Schriefer are
misplaced for several reasons. First, under New Jersey law, a
municipal police department is not treated as a separate
entity from the municipality. See N.J.S.A.
40A:14-118 (municipal police department is “an
executive and enforcement function of municipal
government”). Since police departments are
administrative components of local municipalities, and not
distinct entities, they cannot be sued along with
municipalities. See Padillav. Twp. of ...