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Geissler v. Catanio

United States District Court, D. New Jersey

June 26, 2018



          Jon R. Skolnick, Esq. Jenntyng Chern, Esq. LAW OFFICES OF JON RORY SKOLNICK Attorneys for Plaintiff

          Tracy L. Riley, Esq. LAW OFFICES OF RILEY & RILEY Attorney for Defendant Atlantic City Police Officer Darrell Catanio

          Russell L. Lichtenstein, Esq. Justin A. Britton, Esq. COOPER LEVENSON, PA Attorneys for Marina District Finance Company, LLC d/b/a Borgata Hotel Casino & Spa


          JEROME B. SIMANDLE U.S. District Judge


         Plaintiff Lisa Geissler (“Plaintiff” or “Geissler”) alleges in this tort action that while she was a registered guest of the Borgata Hotel and Casino & Spa in Atlantic City in October of 2014, she was falsely accused by Borgata employees of stealing alcohol and subsequently wrongfully arrested and charged with defiant trespass by a police officer with the Atlantic City Police Department (“ACPD”), Darrell Catanio. Plaintiff pleads claims against Officer Darrell Catanio (“Officer Catanio” or “Catanio”) and the Marina District Finance Company, LLC d/b/a Borgata Hotel Casino and Spa (“Borgata”). She alleges a number of constitutional claims as well as common law tort claims against both Defendants Catanio and Borgata.

         Presently before the Court are three motions: Borgata's Motion for Summary Judgment [Docket Item 43]; Catanio's Motion for Summary Judgment [Docket Item 44]; and Plaintiff's Cross-Motion for Summary Judgment [Docket Item 48]. For the reasons set forth below, the Court will grant in part and deny in part Borgata's motion; deny Officer Catanio's motion; and deny Plaintiff's cross-motion.


         A. Procedural Background

         The Court previously dismissed former Defendants City of Atlantic City and Atlantic City Police Department from this action [Docket Items 20 & 21], and directed Plaintiff to submit a Revised Amended Complaint [Docket Item 33 at 20], which Plaintiff did [Docket Item 36, “Revised First Amended Complaint” or “RFAC”].

         The RFAC pleads a violation of 42 U.S.C. § 1983 against Catanio based on false arrest and malicious prosecution (First Count) [id. ¶¶ 22-26]; violation of the New Jersey State Constitution and the New Jersey Civil Rights Act against Catanio (Second Count) [id. ¶¶ 27-28]; a common law claim of malicious prosecution against Borgata (Third Count) [id. ¶¶ 29-33]; defamation against Borgata (Fourth Count) [id. ¶¶ 34-36]; negligence against Borgata (Fifth Count) [id. ¶¶ 37-38]; intentional infliction of emotional distress (“IIED”) against Borgata (Sixth Count) [id. ¶¶ 39-41]; and negligent infliction of emotional distress (“NIED”) against Borgata (Seventh Count) [id. ¶¶ 42-44].

         Borgata moves for summary judgment as to the malicious prosecution claim [Docket Item 43-2 at 12-25]; the defamation claim [id. at 25-28]; the negligence claim [id. at 28-32]; the IIED claim [id. at 32-38]; and the NIED claim [id. at 32-38]. Plaintiff's Cross-Motion opposes summary judgment (and in fact moves for summary judgment in her favor with regard to liability) as to each claim asserted against Borgata, with the exception of her defamation claim, which she concedes is barred by the statute of limitations. [Docket Item 48-5 at 2.] Borgata filed a Reply [Docket Item 51] that also serves as its Response in Opposition to Plaintiff's Cross-Motion.

         Catanio moves for summary judgment as to both the first and second counts, which allege federal and state constitutional violations, respectively. [Docket Item 44-4 at 3.] Again, Plaintiff opposes this motion and requests that summary judgment be granted in her favor as to Catanio's liability. [Docket Item 48-5 at 2.] Catanio filed a Reply [Docket Item 50] that also serves as his Response in Opposition to Plaintiff's Cross-Motion.[1] The Court decides the motions without oral argument pursuant to Rule 78, Fed. R. Civ. P.

         B. Factual Background [2]

         The Court looks to Statements of Undisputed Material Fact and responses thereto, the exhibits, and other evidence as appropriate in order to describe the factual background of this case, and notes disputes as they arise. Where not otherwise noted, a fact is undisputed. For purposes of Borgata's and Catanio's motions, the Court takes all facts in the light most favorable to Plaintiff; for purposes of Plaintiff's Motion, the Court takes all facts in the light most favorable to the Defendant against whom each claim is asserted.

         On October 17, 2014, Plaintiff Lisa Geissler was a guest of the Borgata Hotel Casino and Spa. Plaintiff and her friend, Barbara Sancilardi, planned to spend Sancilardi's birthday at the Borgata. Plaintiff and Sancilardi had dinner reservations for a restaurant in the Borgata sometime between 6:00 PM and 7:00 PM. After dinner and between 8:00 PM and 9:00 PM, Plaintiff and Sancilardi attended a comedy show at the Music Box, another venue in the Borgata. After attending the show, the two women went to one or two other bars in the Borgata and then went to the Bobby Flay Steak restaurant, also in the Borgata.

         The parties dispute what happened next. Borgata contends that restaurant staff refused to serve Plaintiff alcohol “due to her high level of intoxication” [Docket Item 43-1 ¶ 6], but Plaintiff denies that she was intoxicated [Docket Item 48-7 ¶ 6]. Plaintiff admits that “a big ruckus” ensued when she and Sancilardi sat down at Bobby Flay Steak. Borgata contends that restaurant staff contacted Borgata Security officials because the women “appeared to be intoxicated, were disorderly, and were disrupting the restaurant”; it alleges that they also verbally abused the restaurant manager, Keith Jones. [Docket Item 43-1 ¶ 8.] Plaintiff admits that she caused a commotion at the restaurant but denies that this was because she was intoxicated and states that it resulted from restaurant staff refusing to serve Plaintiff after Plaintiff fell from a stool. [Docket Item 48-7 ¶¶ 8-9.]

         Borgata security staff (Jacqueline Previti and Beatriz Flanagan[3]) responded to the restaurant; while they spoke to Plaintiff and Sancilardi, they were notified over the radio that the two women were suspected of having stolen alcohol from the bar in the comedy club earlier that night. [Docket Item 43-1 ¶ 11.] Plaintiff disputes this and denies that she stole anything. [Docket Item 48-7 ¶ 11.][4] Security Supervisor Muhammad Iddinn prepared a statement reflecting that when the women were informed that they were suspected of stealing alcohol, they “became irate and said they were leaving” whereupon Iddinn “informed Geissler that she could not depart until this matter was resolved.” Id. at 53. Iddinn stated that Sancilardi cursed and said, “We are leaving” but Iddinn “explained that Geissler had taken some alcohol from the Music Box and needed to make restitution. Geissler declined stating ‘I didn't take anything' and ‘I'm going to sue Borgata.'” Id. Iddinn stated that “[b]oth females continued to act disorderly at which point Security Control was notified to call ACPD.” Id. Geissler denies, again, that she stole any alcohol and states that she became irate because she was being wrongfully accused of theft. [Docket Item 48-7 ¶¶ 13-15.]

         The ACPD's police report regarding this incident records a comment at 11:04:39 PM stating, “FCC RING ROUND .. MEET SEC REF TO A FML THAT STOLE A BOTTLE OF WINE .. AND REF[US]ING TO PAY FOR IT. .. SEC IS HOLDING THE FML[.]” [Docket Item 44-8 at 4.] Less than eight minutes later, at 11:12:33, the report records a comment stating “PER SEC DISRG THE FEMALES PAYED.” Id. The Court reads these comments to reflect that Borgata security called for an ACPD officer to meet security staff in reference to a female that stole a bottle of wine and refused to pay for it, and that they were holding the female; and subsequently requested that ACPD disregard the request for help as the females paid for the wine.

         Next, per Flanagan's affidavit, Previti and Flanagan “escorted [Sancilardi and Geissler] to Borgata's Security Office to await the arrival of the Atlantic City Police Department” as a result of their “refusal” to pay for the stolen alcohol. [Docket Item 43-4 at 66 ¶ 7.] Flanagan states that they continued to be “irate and unruly including yelling and cursing at” Flanagan, Previti, “and other Borgata Security Department personnel.” Id. ¶ 8. Plaintiff disputes this and states that she did not “curse, yell, or swear at the Borgata security officers[.]” [Docket Item 52 ¶ 28.]

         Ultimately, at the Borgata security office, Sancilardi either “gave” [Docket Item 43-4 at 54] or threw a $50 bill at security officers in order to cover the cost of the allegedly stolen alcohol (valued at $23), while both Geissler and Sancilardi continued to deny that they had stolen it. [Docket Items 43-1 ¶ 18; 52 ¶ 15.] Iddinn states that the $27 in change due to Sancilardi was refused by her and placed in Lost & Found. [Docket Item 43-4 at 54.]

         Borgata security personnel informed Geissler and Sancilardi that, per Flanagan's affidavit, “they were being evicted from the property” [Docket Item 43-4 at 67 ¶ 10]; however, per Iddinn's report, while “[b]oth Geissler and Sancilardi were advised that they were being formally evicted for being disorderly towards Security[, ]” “[b]oth females were advised that they were permitted to stay in room 2488 because they were intoxicated[;] they were allowed to stay until check out time.” [Docket Item 43-4 at 54.] Catanio admits this as well. [Docket Item 50-1 ¶ 14.] Although no party states this, the Court understands this (construing the facts, here, in the light most favorable to Plaintiff) to have meant that Iddinn allowed (or would have allowed) the women to stay in room 2488 until mid-morning the next day, October 18.

         Borgata security officers then took Sancilardi and Geissler toward the 24th floor of the Water Club, where that room was located. While en route to that location, the group encountered Officer Catanio.

         Officer Catanio's own narrative of the events in the police report states that he responded “to the Borgata for the report of a theft” at approximately 11:07 PM. Id. at 8. This time appears to be between when ACPD was first called and when Security instructed ACPD to “disregard” as “the females paid.” [Docket Item 44-8 at 4.] When he arrived, he met Iddinn, who

stated that a female, later identified as Lisa Geissler, stole two unopened bottles of wine and a beer from the bar at the Music Box. Ms. Geissler and her friend Barbara Sancilardi were both still on scene. Mr. Iddin [sic] indicated that the theft was recorded by video surveillance. Mr. Iddin, however, also stated that he was not sure at this time whether Borgata still intended to pursue criminal charges. Mr. Iddin stated that both females were formally evicted and due to their disruptive behavior and disorderly conduct he requested that I accompany him as he escorted the women to their hotel room. Both females appeared to be intoxicated, slurring their speech and staggering when they walked. . . .
I contacted police communications and requested that the back-up officer meet me at the Water Club elevators. Communications responded that the back-up officer was disregarded because communications received a telephone call from another security manager who had indicated that the Casino was no longer going to sign a complaint. At this time I confirmed with security that Borgata no longer intended to pursue criminal charges against Ms. Geissler because Ms. Sancilardi had reluctantly agreed to pay for the alcohol Ms. Geissler stole. Despite the fact that Borgata no longer intended to pursue theft charges, Mr. Iddin still requested that I accompany them while they escorted the women to their hotel room due to their disruptive behavior.

Id. at 8. Iddinn's report states: “After leaving the Security Office both females continued being disorderly. ACPD Officer Catanio arrived at the top of the Security Escalator and was informed of the situation and advised by Specialist Previti that Security Control had called ACPD Dispatch to recall him. Catanio stayed with the escort to room 2488.” [Docket Item 43-4 at 54.]

         The record before the Court does not reflect whether or not Iddinn informed Catanio that Plaintiff and Sancilardi, despite their “formal eviction, ” were being escorted to their room where they had Iddinn's permission to stay “until check out time.”

         From the time he joined the escort until well after Plaintiff was arrested, Catanio was informed multiple times that Sancilardi had paid $50.00 and that the Borgata was not pressing charges. [Docket Item 43-4 at 60, 62.] Flanagan's statement states that “Previti notified the ACPD officer [Catanio] that one of the females had made restitution of $50.00 to security and that they were being escorted to their room. ACPD officer followed Security to the tower. Once on the 24th floor Security Specialist Previti again advised the ACPD officer [Catanio] that the females had pa[id] Security for the items that were taken.” [Docket Item 43-4 at 62.] Previti's statement also reflects that she told Catanio about the money Sancilardi had tendered to Borgata security staff. Id. at 59. She stated: “ACPD Officer Catanio responded to property after Security control recalled him. Catanio was informed from the beginning that he was no[] longer needed for the theft that occur[r]ed because Sancilardi paid the money that was the value for the 2 small bottles of wine and beer ($23.00) that Geissler took from the Music [B]ox. Catanio followed us as we escorted the females to their room 2488. Multiple times en route to the room Ca[]tanio was told that we were no longer going to file charges for theft. It seemed like Catanio was not understanding what we were saying to him. At one point Catanio stated to this writer that even though Geissler paid[] for the drinks she still needed to be charged for the crime she committed.” Id.

         Borgata and Plaintiff agree that at some point while Plaintiff was being escorted to the room, she began to videotape the interaction on her cell phone. [Docket Items 48-4 ¶¶ 21-23; 51-2 ¶ 21.] Catanio disputes this. [Docket Item 50-1 ¶¶ 21-23.]

         When Plaintiff, Sancilardi, Catanio, and Borgata personnel arrived at the room, the parties dispute what happened next. Some evidence in the record reflects that Sancilardi and Plaintiff refused to go into their room and that Sancilardi struck Officer Catanio in the chest while cursing at him. Catanio immediately arrested Sancilardi for assaulting an officer and resisting arrest. [Docket Item 43-1 ¶¶ 30-31.] Sancilardi and Plaintiff deny that Sancilardi struck Catanio. [Docket Item 52 ¶¶ 23-24.] Generally, the parties dispute the demeanor of Plaintiff and Sancilardi throughout their interaction with Borgata staff and Catanio.

         The parties also dispute what happened after Catanio arrested Sancilardi. Borgata and Plaintiff appear to agree that Plaintiff continued to tape Catanio, Catanio repeatedly instructed her to stop taping, and Plaintiff refused. [Docket Items 43-1 ¶¶ 32-34; 48-7 ¶¶ 32-34.] Borgata and Plaintiff dispute whether Plaintiff refused to enter her hotel room. [Docket Item 48-7 ¶ 33.] Again, Borgata and Plaintiff agree that Catanio told Plaintiff that if she didn't put her phone away, he would arrest her. [Docket Item 43-1 ¶ 32.] Shortly thereafter, as admitted by Borgata and Plaintiff, Catanio arrested Plaintiff for “obstruction.” [Docket Item 51-2 ¶ 26.]

         Catanio recites this sequence of events slightly differently, stating that “Plaintiff refused to cooperate. Plaintiff refused to gather her belongings. . . . Plaintiff was charged with defiant trespass.” [Docket Item 44-12 ¶¶ 20-21.] His police report states: “Ms. Geissler refused medical attention [that she had previously requested] and refused to sign the medical refusal form. She continued waving her cell phone, yelling and would not enter her room. At this time I informed Ms. Geissler that she was under arrest.” [Docket Item 44-8 at 9.]

         Borgata and Plaintiff agree that Catanio repeatedly sought to have a member of Borgata staff sign a complaint against Plaintiff for theft, both before and after she was arrested; however, due to Sancilardi having given Borgata staff $50, no one from Borgata was willing to sign such a complaint. Security Officer David Ruch wrote in his statement that at approximately 1:35 AM he was working Security Control and received a call from a male ACPD operator “who stated, ‘The officer that responded to your property is waiting for you to send somebody down to sign a complaint.' Security Specialist Flanagan was sitting next to this writer who advised that there is no complaint, the officer was told that the other female made restitution for the other female. This writer informed the ACPD dispatcher of this who said ‘Ooook', and that he would relay this to the officer.” [Docket Item 43-4 at 60.] Indeed, no one from Borgata signed a complaint against Plaintiff for theft, and Plaintiff was not arrested for or charged with a theft offense. Sancilardi testified at her deposition that, as she was being put in the police car, she heard a female officer discussing whether Plaintiff could be charged with theft: the female officer “said, we can't do that, she said, because she paid for them, pointing to [] me, and they said, well, we'll charge her with trespassing.” [Docket Item 51-2 ¶ 30.][5]

         Plaintiff was, in fact, subsequently charged with “defiant trespass”; after Catanio arrested her, she was transported to the jail in downtown Atlantic City [Docket Item 43-5 at 110], where she was held from approximately 11 p.m. to around 2 or 3 a.m. [Docket Item 52 ¶ 29.] Plaintiff avers that the ACPD did not return her belongings after her release, and she waited outside the Police Department until 8 a.m., when Sancilardi was released. Id. ¶ 31.

         The charge of defiant trespass was dismissed against Plaintiff for lack of prosecution. [Id. ¶ 34; Docket Item 43-5 at 23.] Sancilardi pled guilty to resisting arrest, and the charge of assaulting an officer was dismissed. [Docket Items 44-12 ¶ 24; 51-2 ¶ 36.] The record reflects Sancilardi's plea (to No. S 2014 5106) and the dismissal of her summons (No. S 2014 5105) “pursuant to a plea agreement” [Docket Item 43-5 at 25-47]. As to the dismissal of the charge against Plaintiff (which was No. S 2014 5108 [Docket Item 43-5 at 22]), the minutes from the Municipal Court state, after the conclusion of Sancilardi's plea allocution and statement that she was “free to go up to the window to take care of your payment”:

THE PROSECUTOR: And the co-defendant is going to be dismissed, then, as well.
THE COURT: I dismissed that already.
THE COURT: Already dismissed. Okay.
THE PROSECUTOR: Thank you, Your Honor.

[Docket Item 43-5 at 48.]

         Plaintiff states in her declaration that she was extremely humiliated due to this incident and that it traumatized her and her family. [Docket Item 52 ¶¶ 27, 30, 32-33.] Defendants note that Plaintiff was not physically injured, did not receive medical attention, and, while she saw a counselor, it was the same counselor she saw before the incident occurred; they generally contest the degree to which this incident affected Plaintiff. [Docket Items 43-1 ¶¶ 52-53; 51-2 ¶¶ 34-35.]

         Finally, the Court again notes that no party has submitted evidence from the casino video surveillances ...

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