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Young v. Cortune

United States District Court, D. New Jersey

June 26, 2019

STEVE YOUNG, Plaintiff,
v.
AL CORTUNE, ANTHONY DESIDERIO, DAVE SIEROTOWICZ, AND JOHN DOES 1-10 IN THEIR INDIVIDUAL AND OFFICIAL CAPACITIES, Defendants.

          ALLAN E. RICHARDSON, JACQUELINE M. VIGILANTE THE VIGILANTE LAW FIRM Attorney for Plaintiff Steve Young.

          MATTHEW JON LYNCH, MICHAEL EZRA VOMACKA STATE OF NEW JERSEY OFFICE OF THE ATTORNEY GENERAL Attorneys for Defendants Al Cortune, Anthony Desiderio.

          OPINION

          NOEL L. HILLMAN, U.S.D.J.

         This is a 42 U.S.C. § 1983 and New Jersey Civil Rights Act (“NJCRA”) case concerning First Amendment, First Amendment retaliation, false arrest, and false imprisonment claims arising from an incident at the New Jersey State House. Presently before the Court is Defendants' Motion for Summary Judgment. For the reasons expressed below, this Court will grant Defendants' Motion for Summary Judgment and dismiss this action.

         BACKGROUND

         This Court takes its facts from the statements of material facts presented by the parties. This Court will note disagreement where relevant. Plaintiff Steven Young is the president and founder of the South Jersey chapter of the National Action Network (“NAN”). On March 10, 2016, Plaintiff attended a hearing (the “Hearing”) held by the State Senate Budget and Appropriations Committee (the “Committee”) on the topic of the potential takeover of Atlantic City by the State of New Jersey. The Committee was chaired by New Jersey State Senator Teresa Ruiz. The Hearing was held in the State House Annex (the “SHA”). The SHA is open to the public, subject to some restrictions found in the New Jersey Senate's rules. Plaintiff signed up to speak during the public comment period at the Hearing.

         At the Hearing, Defendant Al Cartine[1] served as a Sergeant-at-Arms, [2] Defendant Anthony Desiderio served as a New Jersey State Trooper, and Defendant David Sierotowicz served as New Jersey State Trooper and supervisor of the SHA complex security unit. In her opening remarks on the issue of the proposed takeover of Atlantic City in relation to the Municipal Stabilization and Recovery Act (the “Act”), Senator Ruiz both noted that many individuals had submitted testimony and that people must be mindful and respectful of differences in opinion.

         Jim Walsh was the first individual to give testimony. Walsh raised concerns about the legislation, compared the takeover to that of Flint, Michigan, and argued the legislation would stifle democracy and democratic control in municipalities. The crowd applauded and Senator Ruiz asked the individuals present to refrain from applause or other overt noises. Walsh was told to finish his statement by Senator Ruiz approximately five minutes into his testimony and finished his testimony about two minutes later. Thereafter, Senator Stephen M. Sweeney provided statements in support of the legislation. Next, Bob McDevitt testified in favor the legislation for approximately two minutes and fifteen seconds and was asked questions by various New Jersey State Senators. Finally, the New Jersey State Senators discussed the bill.

         Afterwards, Plaintiff was called to testify. Plaintiff testified that they were at war, that the state government “stabbed us too many times, ” that Plaintiff's group knows “how to fight, ” and that if the state government thought “they would stab them in their back and take their money and nothing would happen, that was not going to happen.” (Defs.' SOMF ¶¶ 28-30.) After Plaintiff had spoken for approximately six minutes and thirty seconds, Senator Ruiz said “[t]hank you, Mr. Young.” (Defs.' SOMF ¶ 31.)[3] In response, Plaintiff stated he was not finished, and then stated “we don't have no justice, there won't be no peace, and you can take that any way you want to take it.” (Defs.' SOMF ¶ 32.)

         Senator Ruiz stated to Plaintiff that this was an emotional topic, reminded him “there was no room for disrespect, ” and asked him to wrap up his comments. (Defs.' SOMF ¶ 33.) Plaintiff continued to speak, spoke over Senator Ruiz, and said he was not finished.[4] Senator Ruiz called for a recess after Plaintiff had testified for approximately seven minutes and forty seconds. As she was calling for a recess, Plaintiff stated: “I'm not leaving. So what's next?”

         At his deposition, Sierotowicz did not recall what Plaintiff said at the hearing, whether Plaintiff said anything threatening, whether Plaintiff encouraged others to take action, or whether anyone else in the Hearing made threats or threatened to take action. At some point, Desiderio showed up to the Hearing because he was told things “started to get a little hostile with the different speakers and the committee chair.” (Def's Resp. SOMF ¶ 11.) Desiderio did not recall at his deposition whether Plaintiff made any threats or used threatening language, but remembered Plaintiff was loud because he spoke into a microphone. Desiderio did not believe Plaintiff's language was offensive. Cartine remembered that Plaintiff was “unruly . . . screaming at the chair” during his testimony, but could not recall the substance of Plaintiff's statements when asked at his deposition. (Pl.'s SOMF ¶ 17.)

         Following the call for a recess, Cartine went to get Sierotowicz and Desiderio (the “Troopers”) and told Sierotowicz that Plaintiff had to leave. Sierotowicz told Plaintiff he had to leave. The Troopers escorted Plaintiff out of the Hearing. There is no evidence that Senator Ruiz specifically requested Cartine to involve the Troopers. Cartine does not recall receiving a verbal or non-verbal request from Senator Ruiz, or anyone else, to remove Plaintiff from the Hearing.[5] Sierotowicz believed that Senator Ruiz banging her gavel signaled her intention to have Plaintiff stop his testimony and leave the Hearing. Desiderio admits he received no verbal or non-verbal instructions to remove Plaintiff from the Hearing.

         Outside of the hearing room, Plaintiff spoke with the Troopers. Sierotowicz told Plaintiff that Cartine had asked for Plaintiff's removal from the Hearing. Sierotowicz decided Plaintiff could not re-enter the hearing room and told Plaintiff that once someone is removed, they could not re-enter. Either Desiderio or Sierotowicz told Plaintiff (1) he could not return to the hearing room and (2) he would be arrested if he returned to the hearing room. Plaintiff asked the Troopers why he could not return to the hearing room, who said he was not allowed to do so, and informed them they were violating his rights to freedom of speech and assembly. (Defs.' Mot. for Summ. J., Ex. A 102:14-104:3.) Then he turned to go back into the hearing room[6] and he was arrested by Desiderio, handcuffed by the Troopers, and escorted to the entrance of the SHA. Plaintiff did not re-enter the hearing room.

         Afterwards, Plaintiff was brought to a police car, driven to a processing unit, and fingerprinted. He waited for approximately one or two hours, was released, and told he would be sent a summons in the mail. Plaintiff was charged under N.J. Stat. Ann. § 2C:29-1(a) (obstructing the administration of law or other governmental function) and N.J. Stat. Ann. § 2C:18-3(b) (trespass). Defendants did not know what defiant trespass was at the time of Plaintiff's arrest. These charges were later dismissed. Since the Hearing, Plaintiff has observed another hearing and attended the vote on the Act. Both were without incident.

         After the Committee was reconvened, Senator Ruiz stated “that they had a lot of testimony and that she was not trying to hamper anyone's comments, but that she did have to stick to a timeframe.” (Defs.' SOMF ¶ 50.) Senator Ruiz heard testimony from Don Guardian, the Mayor of Atlantic City, Keith Bennet, George Borrick, Linda Steele, a Mr. Abdul, and a Ms. Bawker with some supporting and others opposing the bill.

         On January 17, 2017 Plaintiff filed this case. The Complaint contains four counts. These counts fall generally under the First and Fourth Amendment. Under Count I, Plaintiff alleges Defendants violated his First Amendment right to free speech and assembly. Under Count II, Plaintiff alleges Defendants violated his First Amendment right by arresting him in retaliation for his exercise of those rights. Under Count III, Plaintiff alleges Defendants violated his Fourth Amendment right by committing a false arrest and forcing his false imprisonment. These counts are all asserted under 42 U.S.C. § 1983. In Count IV, [7] Plaintiff alleges a violation of the same rights under the New Jersey Constitution by asserting a NJCRA claim.

         Discovery ensued, culminating in Defendants' Motion for Summary Judgment filed on September 14, 2018. This was opposed by Plaintiff in November 2018 and Defendants' reply followed shortly thereafter. Thus, Defendants' Motion for Summary Judgment is fully briefed and ripe for adjudication.

         ANALYSIS

         A. Subject Matter Jurisdiction

         This Court has subject matter jurisdiction over this case pursuant to 28 U.S.C. §§ 1332 and 1367.

         B. Motion for Summary Judgment Standard

         Summary judgment is appropriate where the Court is satisfied that “‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits if any,' . . . demonstrate the absence of a genuine issue of material fact” and that the moving party is entitled to a judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986) (citing Fed.R.Civ.P. 56).

         An issue is “genuine” if it is 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 (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 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) (citing Anderson, 477 U.S. at 255).

         Initially, the moving party bears the burden of demonstrating the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323 (“[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact.”); see Singletary v. Pa. Dep't of Corr., 266 F.3d 186, 192 n.2 (3d Cir. 2001) (“Although the initial burden is on the summary judgment movant to show the absence of a genuine issue of material fact, ‘the burden on the moving party may be discharged by “showing”-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case' when the nonmoving party bears the ultimate burden of proof.” (citing Celotex, 477 U.S. at 325)).

         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. Celotex, 477 U.S. at 324. A “party opposing summary judgment ‘may not rest upon the mere allegations or denials of the . . . pleading[s].'” Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001). For “the non-moving party[] to prevail, [that party] must ‘make a showing sufficient to establish the existence of [every] element essential to that party's case, and on which that party will bear the burden of proof at trial.'” Cooper v. Sniezek, 418 Fed.Appx. 56, 58 (3d Cir. 2011) (citing Celotex, 477 U.S. at 322). 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. Anderson, 477 U.S. at 257.

         C. Motion for Summary Judgment

         Defendants present one overall issue for the Court to decide on their Motion for Summary Judgment: whether the doctrine of qualified immunity should be applied to them on all claims.[8] The doctrine of qualified immunity is meant to protect government officials from suit when “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The Court is tasked with balancing two 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.” Id.

         To determine whether a government official is entitled to qualified immunity at the summary judgment stage, a court should address two questions: (1) has the plaintiff alleged or shown a violation of a constitutional right, and (2) is the right at issue “clearly established” at the time of the defendant's alleged misconduct? Pearson, 555 U.S. at 236. Courts are “permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first.” Id. The Court will address the prongs in order for each claim.

         a. Whether Young's Ejection from the New Jersey State House Hearing Room was a Violation of the First Amendment

         Defendants argue that there was no violation of Plaintiff's First Amendment rights in removing him from the Hearing. Defendants assert Plaintiff's behavior and the fact that the Hearing was a limited public forum allowed them to remove him. Plaintiff argues his removal was a violation of his First Amendment rights because, among other things, Senator Ruiz did not indicate to Defendants that Plaintiff must be removed and Plaintiff did not threaten anyone.

         In cases concerning alleged First Amendment violations, the level of protection afforded by the First Amendment hinges on the classification of the forum. Galena v. Leone, 638 F.3d 186, 197 (3d Cir. 2011) (“When a First Amendment free speech challenge arises from a restriction on speech on government owned or controlled property . . . the classification of the forum determines the contours of the First Amendment rights that a court recognizes when reviewing the challenged governmental action.”). There are three types of public forums: “(1) the traditional public forum; (2) the designated public forum; and (3) the limited public forum.” Id.

         A traditional public forum includes locations such as “public streets, parks, and other public areas traditionally devoted to assembly and debate.” Id. at 198 (citing Ark. Educ. Television Comm'n v. Forbes, 523 U.S. 666, 677 (1998)). A “government entity creates a designated public forum when it intentionally designates property that traditionally has not been regarded as a public forum for use as a public forum.” Id. (citing Christian Legal Soc'y Chapter of the Univ. of Cal., Hastings Coll. of Law v. Martinez, 561 U.S. 661, 679 n.11 (2010)). Finally, a “governmental entity creates a limited public forum when it provides for ‘a forum ...


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