KUGLER, United State District Judge:
This civil rights suit arises from a series of disputes between Plaintiff John Panarello ("Panarello") and his wife, Plaintiff Sheri Panarello
Presently before the Court are the Municipal Defendants' Motion for Summary Judgment ("Municipal Defendants' Motion" or "Muni. Defs.' Mot.") [Dkt. No. 163f], the Officer Defendants' Motion for Summary Judgment ("Officer Defendants' Motion" or "Off. Defs.' Mot.") [Dkt. No. 164]; and Plaintiffs' Cross Motion for Summary Judgment ("Plaintiffs' Cross Motion" or "Pls.' Cross Mot.") [Dkt. No. 166]. For the reasons that follow, the Municipal Defendants' Motion is
The basic background facts of the events leading up to Panarello's arrest on July 7, 2010 are undisputed, as are the events until any police officer crossed the property line onto Plaintiffs' property. These facts are recited concisely by the Officer Defendants and have been adopted by the Plaintiffs. (See Pls.' Responsive SMF [Dkt. No. 166-1] at 2 ("Specifically, Plaintiffs agree with the following initial paragraphs and statements ....").)
(Pls.' Responsive SMF at 2-3 (quoting Off. Defs.' Mot. Br. [Dkt. No. 164-1] at 1-2).)
Officers Laielli and Shaw then proceeded to the Plaintiffs property to try and locate Panarello, and walked up Plaintiffs' driveway. (Off. Defs.' SMF [Dkt. No. 164-3] ¶ 56.) While on the driveway, Officer Laielli spotted Panarello in his backyard, and called out to him, "Yo, I need to talk to you." (Off. Defs.' SMF ¶¶ 59-60; Pls.' Cross Mot. SMF [Dkt. No. 166-1] ¶¶ 27-28.) At this point, Panarello turned and moved away from the officers. (Off. Defs.' SMF ¶ 61; Pls.' Responsive SMF ¶ 61.) Officers Laielli and Shaw both believed that Panarello may be retreating into his home to obtain a weapon, and also believed that Panarello was at that moment committing the crime of obstruction, and so went into the backyard to detain and arrest Panarello. (Off. Defs.' SMF ¶¶ 63-64, 68, 76-80, 99, 104-05.) Officer Laielli grabbed Planarello around the waist right around the threshold to the back door of the house, and the two tumbled into the house. (Off. Defs.' SMF ¶ 86; Pls.' Responsive SMF ¶ 86.) Officer Shaw followed Officer Laielli and assisted in placing Panarello under arrest. (Off. Defs.' SMF ¶¶ 90, 108.)
The parties disagree entirely as to what happened within the house beyond the fact that Panarello was arrested and was struck by Officers Laielli and Shaw. The Officer Defendants submit that Panarello was fighting with Officers Laielli and Shaw, and that they both struck him because of his acts of resisting arrest. (Off. Defs.' SMF ¶¶ 109-14.) Plaintiffs counter that the Officer Defendants purposely struck him while he was restrained in order to beat him. (Pls.' Responsive SMF at 12-13.) Plaintiffs also submit that the Vineland Police Department ("VPD"), under the direction of Sergeant Riggione, failed to adequately preserve video evidence of the incident. (See Pls.' Cross Mot. SMF ¶¶ 59-69). The Municipal Defendants and Officer Defendants dispute this.
Upon arrival at the police station, Officer Day met Panarello and Officer Armstrong. (Off. Defs.' SMF ¶¶ 121-22.) The parties agree that while in the police station, Officer Day used oleoresin capcisum ("OC") spray, also known as pepper spray, on Panarello. (Off. Defs.' SMF ¶ 127; Pls.' Responsive SMF at 15.) The parties dispute everything else pertaining to the circumstances leading up to the use of the OC spray and the subsequent remedial actions the police officers may or may not have taken. At a certain point, an EMS worker tried to assist Panarello, and Panarello spit blood on her. (Off. Defs.' SMF ¶ 133.)
Multiple criminal charges were filed against Panarello as a result of the July 7, 2010 incident — two counts of assault on a police officer, one count of assault on an EMS worker, one count of aggravated assault, one count of resisting arrest, one count of obstruction, and two weapons possession counts. (Off. Defs.' SMF ¶¶ 134-40.) Panarello subsequently filed two criminal complaints against Officers Laielli and Shaw for assaulting him. (Off. Defs.' SMF ¶ 141.)
A trial was held on the charges against all three defendants — Panarello, Officer Laielli, and Officer Shaw — and the Honorable William J. Golden, J.M.C., entered judgment convicting Panarello of resisting arrest in violation of N.J.S.A. 2C:29-2a and assault on the EMT who came to treat him in violation of N.J.S.A. 2C:12-1b(5)(c). See Trial Decision Tr., State v. Panarello (Glassboro Muni. Ct. Sept. 26, 2013) (Muni. Defs.' Ex. K; Off. Defs.' Ex. R). Panarello appealed his conviction for resisting arrest to the New Jersey Superior Court, Law Division. (Off. Defs.' SMF ¶ 179.) The Honorable Kevin T. Smith, J.S.C., entered judgment affirming the conviction. See Order Aff'g Conviction, State v. Panarello, Muni. Appeal No. A-28-13 (N.J.Super.Ct. Law Div. June 24, 2014) (Muni. Defs.' Ex. L; Off. Defs.' Ex. S).
Plaintiffs filed a tort claims notice on or about September 30, 2010. (Off. Defs.' SMF ¶ 183.) Plaintiffs subsequently filed this action on July 9, 2012, [Dkt. No. 1], and then filed their First Amended Complaint (the "FAC") [Dkt. No. 79] on November 17, 2014. Plaintiffs allege violations of the Constitution under 42 U.S.C. §§ 1983, 1985, and 1986, as well as state law torts and violations of the New Jersey constitution. The Municipal Defendants and Officer Defendants now move for summary judgment on all claims asserted in
Plaintiffs bring claims under 42 U.S.C. §§ 1983, 1985, and 1986 as well as under the state constitution and state common law.
Summary judgment is appropriate where the Court is satisfied that "there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A genuine dispute of material fact exists only if the evidence is such that a reasonable jury could find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). When the Court weighs the evidence presented by the parties, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255, 106 S.Ct. 2505.
The moving party bears the burden of establishing that no genuine issue of material fact remains. See Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548. A fact is material only if it will affect the outcome of a lawsuit under the applicable law, and a dispute of a material fact is genuine if the evidence is such that a reasonable fact finder could return a verdict for the non-moving party. See Anderson, 477 U.S. at 252, 106 S.Ct. 2505. Even if the facts are undisputed, a disagreement over what inferences may be drawn from the facts precludes a grant of summary judgment. Ideal Dairy Farms, Inc. v. John Labatt, Ltd., 90 F.3d 737, 744 (3d Cir.1996).
The nonmoving party must present "more than a scintilla of evidence showing that there is a genuine issue for trial." Woloszyn v. Cty. of Lawrence, 396 F.3d 314, 319 (3d Cir.2005). Further, the non-moving party must come forth with affidavits and evidence in support of their position; merely relying on the pleadings and the assertions therein is insufficient to demonstrate a genuine issue of material of fact on a motion for summary judgment. Celotex, 477 U.S. at 324, 106 S.Ct. 2548; see also Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir.2001) (citing Fed. R. Civ. P. 56(e) and Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). The court's role in deciding the merits of a summary judgment motion is to determine whether there is a genuine issue for trial, not to determine the credibility of the evidence or the truth of the matter. Anderson, 477 U.S. at 249, 106 S.Ct. 2505.
As an initial matter, all defendants at some point argue that Plaintiffs have failed to comply with the provisions of the New Jersey Tort Claims Act, N.J.S.A.
New Jersey state law requires that prior to filing a complaint against a public entity or public employee, the plaintiff must submit a notice of claim to the public entity within ninety days of the claim accruing. See N.J.S.A. 59:8-8a. If a plaintiff fails to comply with this requirement, he is "forever barred from recovering against a public entity or public employee." See N.J.S.A. 59:8-8. The notice must state "[t]he date, place and other circumstances of the occurrence or transaction which gave rise to the claim asserted" and provide "[a] general description of the injury, damage or loss incurred so far as it may be known at the time of presentation of the claim." N.J.S.A. 59:8-4c & d. As both the New Jersey Supreme Court and courts of this district have recognized, failure to provide notice under the NJTCA waives a claim, even if the officer would not be entitled to immunity otherwise. See, e.g., Velez v. City of Jersey City, 180 N.J. 284, 294-95, 850 A.2d 1238 (2004); Evans v. Gloucester Twp., 124 F.Supp.3d 340, 353-54, Civ. No. 14-7160 (JBS/JS), 2015 WL 5012593, at *10 (D.N.J. Aug. 21, 2015).
Plaintiffs complied with this requirement by filing a notice of claim with the City of Vineland. (Notice of Claim (Municipal Defs.' Mot. Ex. M; Off. Defs.' Mot. Ex. T).) However, the notice only claims causes of action related to an "accident or occurrence" where "Vineland police entered claimant's residence without an arrest warrant and assaulted him by tackling him to the floor and while one officer held him down, the other officer repeatedly punched the claimant in and about his face and head, bruising his head, blackening his eyes, and fracturing his nose in the presence of Sherie Panarello, his wife, and their 2 year old daughter." (Notice of Claim at 1-2.) Panarello further wrote that the "negligence or wrongful acts of the City agency and City employees which caused [his] damages" were that "Vineland Police unlawfully entered claimant's residence at 59 Yelkca Avenue,
The Notice of Claim never refers to anything other than unlawful entry into Plaintiffs' home and excessive force at the time of Panarello's arrest. Nowhere does the Notice of Claim mention transport to the police station, anything that occurred at the police station, spoliated evidence, or anything related to Panarello's criminal prosecution, either explicitly or implicitly. Plaintiffs' argue that their notice is sufficient because everything arose out of Panarello's arrest, but that if they have not literally complied with the Notice requirement as to claims arising from events occurring after the arrest, they have substantially complied. (Pls.' Cross Mot. Br. at 21-24; Pls.' Opp. to Muni. Defs.' Mot. at 32-35.)
Plaintiffs have shown a series of steps taken to comply with the statute, as they literally complied with the NJTCA for Plaintiffs' claims for damages relating to the act of arresting Panarello and the entry onto Plaintiffs' property. The notice was timely and in writing, making the issue whether the VPD and the officers were provided the effective notice for claims subsequent to Panarello's arrest. In this instance, Plaintiffs' specificity regarding claims for the warrantless entry and excessive force are at the detriment to their arguments that the VPD and the Officer Defendants should have been on notice that they would also be making claims regarding actions subsequent to Panarello's arrest. Plaintiffs also fail to present any affirmative support for their position that they have substantially complied with the notice requirements of the NJTCA. The description of the incident they provide fails to put the City of Vineland on notice that it would be defending against claims relevant to conduct taking place after the arrest and warrantless entry into Plaintiffs' home. Plaintiffs have made no showing towards satisfying the other components a party seeking safe harbor under the doctrine of substantial compliance must prove, and so the doctrine of substantial compliance does not save their failure to literally comply with the NJTCA.
Notice under the NJTCA is not required for either NJCRA claims or § 1983 claims, but is required for common law tort claims. See Velez, 180 N.J. at 295-96, 850 A.2d 1238. Accordingly, the Municipal Defendants' Motion and the Officer Defendants' Motion will be granted with respect to the state law tort claims for assault and battery dealing with transport of Panarello from Plaintiffs' property to the police station, for assault and battery for the use of the OC spray on Panarello at the police station, for spoliation or concealment of evidence, for abuse of process, and for malicious prosecution.
Plaintiffs have alleged violations of their constitutional rights under both the United States Constitution and the New Jersey Constitution. The analysis under § 1983 for alleged violations of the United States Constitution is the same as the analysis under the NJCRA for alleged violations of the New Jersey Constitution. See Hottenstein v. City of Sea Isle City, 977 F.Supp.2d 353, 365 (D.N.J.2013); Rezem Family Assocs., LP v. Borough of Millstone, 423 N.J.Super. 103, 115, 30 A.3d 1061 (2011). Accordingly, Plaintiffs claims under § 1983 and the NJCRA will be discussed concurrently.
"To state a claim under 42 U.S.C. § 1983, a plaintiff must allege a person acting under color of state law engaged in conduct that violated a right protected by the Constitution or laws of the United States." Morrow v. Balaski, 719 F.3d 160, 165-66 (3d Cir.2013) (citing Nicini v. Morra, 212 F.3d 798, 806 (3d Cir.2000) (en banc)). There can be no dispute that the named defendants were acting under the color of state law, as they were sworn officers responding to a report of an alleged assault and investigating the crime at the time. (See Pls.' Responsive SMF at 2; Off. Defs.' Mot. Br. at 7.) Therefore, the Court must only determine if there is undisputed evidence that their conduct violated a constitutional right.
Regarding the constitutional claims, the Municipal Defendants and the Officer Defendants have moved for summary judgment to dismiss all constitutional claims against them,
Plaintiffs concede that they have failed to satisfy their evidentiary burden for any conspiracy claims under 42 U.S.C. § 1985 and any failure to prevent a § 1985 conspiracy under 42 U.S.C. § 1986 as to the moving defendants. (Pls.' Cross Mot. Br. at 27; Pls.' Opp. to Muni. Defs.' Mot. Br. at 26.) Accordingly, the Municipal Defendants' Motion and the Officer Defendants' Motion are granted in this respect.
However, Plaintiffs still maintain that a conspiracy existed both under § 1983 and under state common law to unlawfully prosecute Panarello. (Pls.' Cross Mot. Br. at 27; Pls.' Opp. to Muni. Defs.' Mot. Br. at 25-27.) Specifically, the conspiracy alleged is one "to violate Plaintiffs' constitutional rights, and evidence of the same is the Defendants' failure to properly investigate the crime scene and their failure to secure video surveillance of the incident." (Pls.' Cross Mot. Br. at 27; Pls' Opp. to Muni. Defs.' Mot. at 25-27.) Plaintiffs point to no affirmative evidence of a conspiracy, merely incorporating by
At this procedural juncture, Plaintiffs must do more than rely on the bare pleadings to support their position and must put forth and point to evidence in support of their claims. See Celotex, 477 U.S. at 324, 106 S.Ct. 2548 ("Rule 56[] therefore requires the nonmoving party to go beyond the pleadings and ... designate specific facts showing that there is a genuine issue for trial." (emphasis added) (internal quotations omitted)). Plaintiffs have failed to put forth any evidence, and the evidence submitted by the Municipal Defendants and adopted by the Officer Defendants defeats any claim of a conspiracy made by Plaintiffs. Plaintiffs' own expert, Mr. Mickie McComb testified at deposition:
(McComb Dep. Tr. (Muni. Defs.' Ex. R) at 288:5-289:2) (emphasis added). Mr. McComb clearly believes there were issues with the investigatory procedures, but he repeats at least twice more in his testimony that there was no conspiracy. (See McComb Dep. Tr. at 295:16-17 ("I am not saying it was a conspiracy. I am saying [certain investigatory procedures were] conveniently left out."); 295:25-296:4 ("I'm not saying it's conspiracy. It's for the purpose of covering up the investigation and charging Mr. Panarello based on the totality of the circumstances.").) Plaintiffs provide nothing to rebut these assertions, and seemingly cannot as Mr. McComb is their own expert on whom they have relied in this case.
Without affirmative evidence from Plaintiffs and evidence from their own expert asserting repeatedly that no conspiracy existed, the claims for a conspiracy to deprive Panarello of rights under § 1983 fail, and so does the claim for a common law conspiracy. Accordingly, the Municipal Defendants' Motion and the Officer Defendants' Motion will be granted in this respect, and the § 1983 claim as it pertains to a conspiracy will be dismissed, as will the common law conspiracy claim.
Plaintiffs complain of three distinct Fourth Amendment issues here: (1) whether the officers unlawfully entered the driveway on Plaintiffs' property before arresting Panarello; (2) whether the officers unlawfully entered Plaintiffs' backyard to arrest Panarello; and (3) whether the officers unlawfully arrested Panarello. The FAC alleges that Officer Laielli, Officer Shaw, Officer Armstrong, and Detective Riggione all unlawfully entered the
"[W]hen it comes to the Fourth Amendment, the home is first among equals." Florida v. Jardines, ___ U.S. ___, 133 S.Ct. 1409, 1414, 185 L.Ed.2d 495 (2013). "Fourth Amendment protections extend not only to a person's home, but also to the curtilage surrounding the property." Estate of Smith v. Marasco, 318 F.3d 497, 518-19 (3d Cir.2003) (citing United States v. Dunn, 480 U.S. 294, 300-01, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987)). The Supreme Court has explained that the curtilage is the "area around the home [that] is `intimately linked to the home, both physically and psychologically,' and is where `privacy expectations are most heightened.'" Jardines, 133 S.Ct. at 1415 (quoting California v. Ciraolo, 476 U.S. 207, 213, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986)). However, Fourth Amendment protection must turn on a reasonable expectation of privacy and not adhere strictly to concepts of property. United States v. Correa, 653 F.3d 187, 191 (3d Cir.2011).
Before reaching the merits of the claims, the Court must be certain that it is permitted to entertain these Fourth Amendment claims in light of Panarello's arrest and subsequent conviction. This Court is bound by the determination of the Glassboro Municipal Court as affirmed by the New Jersey Superior Court that Panarello was indeed resisting arrest. "[I]n a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated." Heck v. Humphrey, 512 U.S. 477, 487, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). If the § 1983 suit necessarily constitutes a collateral attack on Panarello's conviction, then the claim must be dismissed as a matter of law. See id. at 486-87, 114 S.Ct. 2364. Judge Smith of the Superior Court determined that Panarello "was told he was under arrest, and that [Panarello] continued to kick and flail in spite of being told he was under arrest. Because [Panarello] was told he was under arrest and continued to resist, there were sufficient facts on which to base a resisting arrest conviction." Order Aff'g Conviction ¶ 5a, State v. Panarello, Muni. Appeal No. A-28-13 (N.J.Super.Ct. Law Div. June 24, 2014).
The Court in Heck specifically addressed, in dicta, what would happen if a criminal defendant were convicted of resisting a lawful arrest and then brought a suit under § 1983 seeking damages under his Fourth Amendment right to be free from unreasonable seizures. Heck, 512 U.S. at 486 n. 6, 114 S.Ct. 2364. The Court said that this action would not lie. Id. However, this turned on the definition of resisting arrest as "intentionally preventing a peace officer from effecting a lawful arrest." Id. (emphasis in original).
Additionally, none of Panarello's convictions preclude a finding of an unlawful search under the Heck doctrine. The Court in Heck also addressed this issue in dicta, noting that "a suit for damages attributable to an allegedly unreasonable search may lie even if the challenged search produced evidence that was introduced in a state criminal trial resulting in the § 1983 plaintiff's still-outstanding conviction." Heck, 512 U.S. at 487 n. 7, 114 S.Ct. 2364. This type of suit may only lie if it "will not demonstrate the invalidity of any outstanding criminal judgment." Id. at 487, 114 S.Ct. 2364 (emphasis in original). Because Panarello's arrest need not be lawful under the resisting arrest statute, it does not matter whether the police were lawfully on his property in the process of effecting the arrest. Thus, any finding of unlawful entry would not invalidate his conviction for resisting arrest. The Court will now consider the merits of the claims.
The parties dispute whether the driveway constitutes the curtilage. Officers Laielli and Shaw argue that at the time they entered Plaintiffs' property, they were in his driveway, and preparing to approach the front door in order to contact Panarello to conduct their investigation. (Off. Defs.' Mot. Br. at 11; Off. Defs.' SMF ¶¶ 55-60.) Plaintiffs contend that any entry onto the property, including the driveway, was unlawful. (Pls.' Cross Mot. Br. at 40-41.) The Officers counter that they are permitted to be on the driveway as it a place of usual ingress and egress. (Off. Defs.' Reply Br. at 3.)
Of relevance to the Court's analysis is an understanding of the property. Plaintiffs explain that their property was fenced in and that the driveway leading to the back of the property was "not open and inviting to the public." (Pls.' Cross Mot. SMF ¶ 38.) Plaintiffs also explain that "the public is only invited onto the property via the walkway to the front door." (Id. ¶ 41.) Looking at the photograph of Plaintiffs' property submitted by Plaintiffs, it is obvious that the walkway to the front door connects to the driveway. (Pls.' Cross Mot. Ex. A.)
The Court next turns to the entry into the backyard which is apparently predicated upon the subsequent arrest of Panarello. From the driveway, where he was lawfully permitted to be, Officer Laielli spotted Panarello in the backyard and called out "Yo, I need to talk to you." (See Off. Defs.' SMF ¶¶ 59-60; Pls.' Cross Mot. SMF ¶ 28.) In response, Panarello moved away from the officers and toward his home. (Off Defs.' SMF ¶ 62; Pls.' Cross Mot. SMF ¶¶ 26-28.)
"It is a basic principle of Fourth Amendment law that searches and seizures inside a home without a warrant are presumptively unreasonable." Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) (internal quotation marks omitted). However, exceptions to this presumption do exist, though there are only "a few specifically established and well-delineated exceptions." Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1980) (internal quotation marks omitted). This same principle extends to the curtilage, as explained above. Thus, this Court must presume that the warrantless search of the curtilage was unreasonable.
It is undisputed by the parties that the Plaintiffs' backyard constitutes the curtilage of Plaintiffs' home. (See Off. Defs.' Mot. Br. at 10-11; Pls.' Cross Mot. Br. at 38-41.) Plaintiffs' argument is simply that any entry into his backyard was unjustified. (Pls.' Cross Mot. Br. at 29-30.) The Officer Defendants put forth two primary theories to justify their conduct: (1) the backyard led to the back door, which they believed was used by visitors, so their entry was permitted in the same way access to the front door is permitted (Off. Defs.' Mot. Br. at 10-11); and (2) Panarello was exposed to public view at the time he committed the crime of obstruction, so the officers were permitted to follow him as he retreated in order to effect an arrest that would have been lawful had he stayed put. (Off. Defs.' Reply Br. at 3-6).
There is no evidence to suggest that the officers believed the back door was the common route of entry to the home, nor is there evidence to support that the back door was publicly accessible. The Supreme Court has explicitly reserved judgment on the issue of whether a "knock and talk" is permitted at any entrance open to visitors. See Carroll v. Carman, ___ U.S. ___, 135 S.Ct. 348, 352, 190 L.Ed.2d 311 (2014) (per curiam). However, the Court in Carroll explained, without approving or disapproving, that other lower courts had found the Fourth Amendment not implicated when officers believe the door to be readily accessible to the public. See id. (gathering cases). The Officer Defendants submit no evidence regarding the path from the driveway to the back door. The only evidence on this point comes from Plaintiffs who submit that there was no walkway on the side or along the back of the Panarello residence. (Pls.' Resp. to Off. Defs.' SMF at 3.) The back door is not visible to the public from the roadway, only the front door and the path to the front door. (See Pls.' Cross Mot. Ex. A; see also Off. Defs.' Ex. W, X.) The Officer Defendants also fail to argue that they had a reasonable belief the back door was used by visitors, merely stating the legal proposition that a law enforcement officer may approach a back door when they have such a reasonable belief without explaining how this proposition applies here. (See Off. Defs.' Mot. Br. at 11.)
The cases cited to by the Officer Defendants in support of their position are distinguishable.
For the theory of entry into the backyard to effect an arrest, the facts are intertwined with the facts surrounding the warrantless arrest of Panarello. The Officer Defendants argue that once they saw
The officers had probable cause to arrest Panarello for obstruction based on his retreat from the officers during an investigation of an alleged assault. "Probable cause does not require the same type of specific evidence of each element of the offense as would be needed to support a conviction." Wright v. City of Phila., 409 F.3d 595, 602 (3d Cir.2005) (quoting Adams v. Williams, 407 U.S. 143, 149, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972)). "Therefore, the evidentiary standard for probable cause is significantly lower than the standard which is required for conviction." Id. (citing Michigan v. DeFillippo, 443 U.S. 31, 36, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979)). The offense of obstruction, as defined by N.J.S.A. 2C:29-1a, is committed when one "purposely ... prevents or attempts to prevent a public servant from lawfully performing an official function by means of flight...." Here, Officers Laielli and Shaw were attempting to investigate an alleged assault, which constituted "lawfully performing an official function" under the statute. See Reece, 222 N.J. at 171, 117 A.3d 1235 (citing Crawley, 187 N.J. at 460-61, 901 A.2d 924). Panarello's moving away from the officer, even if not running away, still provides the necessary probable cause to believe that obstruction has occurred. See Crawley, 187 N.J. at 460-61 & n. 7, 901 A.2d 924 ("[A]ny flight from police detention is fraught with the potential for violence because flight will incite a pursuit...."). Thus, even viewing the facts in the light most favorable to the Plaintiffs, the low threshold of probable cause existed for Officers Laielli and Shaw to find that Panarello committed the offense of obstruction.
Panarello committed the act of obstruction in front of the officers, making it permissible for them to arrest Panarello without a warrant if he was in a public place. See Atwater v. City of Lago Vista, 532 U.S. 318, 354, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001) ("If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender."); State v. Dangerfield, 171 N.J. 446, 460, 795 A.2d 250 (2002) (finding that N.J.S.A. 40A:14-152 permits officers to perform warrantless arrests for "disorderly and petty disorderly persons offenses that occurred in their presence").
If a person is in a public place when the officers went to effect the arrest, he cannot avoid the arrest by retreating to a place of safety. See United States v. Santana, 427 U.S. 38, 42, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976) ("The only remaining question is whether [the defendant's] act of retreating into her house could thwart an otherwise proper arrest. We hold that it could not."). Thus, the issue becomes if Panarello was in a public place at the time he acted in a manner that gave the officers probable cause to arrest him, then the warrantless entry into the yard and subsequently the house in effecting his arrest as well as the arrest itself are proper under the Fourth Amendment.
The Officer Defendants rely heavily on the decision of the New Jersey Superior Court, Appellate Division in State v. Nikola, 359 N.J.Super. 573, 821 A.2d 110 (2003), and that court's interpretation of the Supreme Court's decision in United States v.
However, following the decision in Santana, the Court held in Welsh v. Wisconsin, 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984), that "[w]hen the government's interest is only to arrest for a minor offense, that presumption of unreasonableness [for a warrantless home entry] is difficult to rebut, and the government usually should be allowed to make such arrests only with a warrant issued upon probable cause by a neutral and detached magistrate." 466 U.S. at 750, 104 S.Ct. 2091. Here, the officers arrested Panarello based on what they believed to be his commission of the offense of obstruction, which Officer Laielli filed as a disorderly persons offense. (See Off. Defs.' Ex. N, Compl. 2010-3105.) This is precisely the kind of minor offense that the Court in Welsh contemplated.
The Court is not persuaded that a person standing in the front door threshold with evidence of a felony or a person standing in the threshold of her garage at the end of her front driveway suspected of driving under the influence are sufficiently factually similar to a person in his backyard suspected of a disorderly persons crime of obstruction. Looking at the facts, analysis, and reasoning in Santana and Nikola, the issue to the Court appears to be whether a public passerby would have been able to see Panarello in the backyard from the street. If Panarello were visible from a public passerby, then the warrantless entry into the backyard is justified to effect the arrest. Otherwise, both the warrantless entry into the backyard and the warrantless arrest within the curtilage are unlawful under the Constitution.
The parties have cross moved for summary judgment on this issue, meaning neither movant benefits from any inferences. Looking at the undisputed facts, no one has identified to this Court where precisely in the backyard Panarello was standing. All that can be agreed upon is that Panarello was somewhere in the backyard visible to the police from somewhere on the driveway. (Pls.' Cross Mot. SMF ¶¶ 27-28; Off. Defs.' SMF ¶¶ 59-60.) It is unclear whether Panarello could have been observed by a public passerby when seen by the officers committing what they believed to be obstruction. Because this is an issue of fact, summary judgment cannot be granted on this issue. Accordingly, both motions will be denied with respect to the warrantless entry and arrest due to the presence of a genuine issue of material fact.
Plaintiffs complain of three distinct instances of excessive force: (1) the force used during Panarello's initial arrest to subdue him and handcuff him; (2) the conduct of the officer who drove him from his house to the police station; and (3) the use of the OC spray while Panarello was in the booking room at the police station. (See generally FAC Counts I, II.) The Officer Defendants move for summary judgment on the grounds that (1) their use of force was neither unlawful nor excessive at any time (Off. Defs.' Mot. Br. at 7-14); and (2)
The force used by the Officer Defendants at the time of arrest must be analyzed under the Fourth Amendment. See Rivas v. City of Passaic, 365 F.3d 181, 198 (3d Cir.2004) ("[A]ll claims of excessive force by police officers, in the context of an arrest, investigatory stop, or other `seizure,' should be analyzed under the Fourth Amendment.") (citing Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). However, it is not clear what standard applies to the use of force during Panarello's transportation to the police station and the use of force at the police station.
The Third Circuit has also not clarified the issue, but has found that the use of force by a police officer in the station house garage occurred during an arrest, and so would be analyzed under the Fourth Amendment, "[w]ithout deciding where an arrest ends and pretrial detention begins." United States v. Johnstone, 107 F.3d 200, 205-06 (3d Cir.1997).
For a Fourth Amendment excessive force analysis, "whether there is a constitutional violation is properly analyzed under the Fourth Amendments' objective reasonableness standard." Curley v. Klem, 499 F.3d 199, 206 (3d Cir.2007) (quoting Graham, 490 U.S. at 388, 109 S.Ct. 1865) (internal quotation marks omitted). "The test of reasonableness under the Fourth Amendment is whether under the totality of the circumstances, `the officers' actions are "objectively reasonable" in light of the facts and circumstances confronting them, without regard to their underlying intent or motivations.'" Kopec v. Tate, 361 F.3d 772, 776 (3d Cir.2004) (quoting Graham, 490 U.S. at 397, 109 S.Ct. 1865). "[T]he `reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene; Monday morning quarterbacking is not allowed." Lamont v. New Jersey, 637 F.3d 177, 183 (3d Cir.2011) (quoting Graham, 490 U.S. at 396, 109 S.Ct. 1865) (internal quotation marks omitted). A court must consider "all of the relevant facts and circumstances leading up to the time that the officers allegedly used excessive force." Rivas, 365 F.3d at 198 (citing Abraham v. Raso, 183 F.3d 279, 291 (3d Cir.1999)). "Even where an officer is initially justified in using force, he may not continue to use such force after it has become evident that the threat justifying the force has vanished." Id. at 184 (citations omitted). However, "[t]he reasonableness of the use of force is normally an issue for the jury." Id. (citing Abraham, 183 F.3d at 290).
The Officer Defendants argue that the Heck doctrine bars any claim by Panarello for excessive force at the time of his arrest. (See Off. Defs.' Mot. Br. at 15-16.) Their argument is that the New Jersey court entered a finding rejecting Panarello's argument that he was entitled to use self-defense,
The Heck doctrine does not automatically bar a § 1983 claim for excessive force for effecting an arrest when the § 1983 plaintiff has been previously convicted of resisting the same arrest. See Lora-Pena v. F.B.I., 529 F.3d 503, 506 (3d Cir.2008) (per curiam); Nelson v. Jashurek, 109 F.3d 142, 145-46 (3d Cir.1997). However, the relevant Third Circuit cases are distinguishable from the instant case. In Nelson, the plaintiff had been convicted of resisting arrest under Pennsylvania law that only required the jury to find that the officer "was justified in using `substantial force.'" 109 F.3d at 145. The Third Circuit held that "the fact that [the officer] was justified in using `substantial force' to arrest [the plaintiff] does not mean that he was justified in using an excessive amount of force, and thus does not mean that his actions in effectuating the arrest necessarily were objectively unreasonable." Id. Thus, the court reasoned that Heck would not bar the claim. Id. at 145-46. Similarly, in Lora-Pena, "[t]he trial judge instructed the jury in [the plaintiff]'s criminal case that in order to find [the plaintiff] guilty of assaulting a federal officer, they had to determine that the officer was acting in the performance of his official duties." 529 F.3d at 505. The Third Circuit determined that "the question of whether the officers used excessive force was not put before the jury.... Nowhere in the jury instructions did the trial judge state that the jury must determine whether the officers used excessive force against [the plaintiff]." Id. at 506. Accordingly, the court concluded that "the rationale of Heck does not present an absolute bar." Id.
In contrast to the plaintiffs in both Nelson and Lora-Pena, there is a specific finding from the New Jersey Superior Court that Panarello's self-defense claim failed when Judge Smith affirmed Panarello's conviction for resisting arrest. Order Aff'g Conviction ¶ 5b, State v. Panarello, Muni. Appeal No. A-28-13 (N.J.Super.Ct. Law Div. June 24, 2014). Additionally, the New Jersey Superior Court, Appellate Division, has held under the same rationale advanced by the Officer Defendants that where a plaintiff has pleaded guilty to resisting arrest, he has "forfeited any claim that defendants used excessive force in effecting his arrest" and his claims "are barred because a favorable outcome in the civil action would be inconsistent with the admissions he made by pleading guilty." Bustamante v. Borough of Paramus, 413 N.J.Super. 276, 295, 994 A.2d 573 (2010) (citations omitted). Although Panarello did not plead guilty and thereby admit he was not entitled to use force, the explicit finding of the Superior Court in his criminal case provides the same.
Therefore, this Court must agree with the Officer Defendants. Permitting this claim to go forth presents the possibility that if the jury were to find for Panarello on this issue, this would be a finding that directly contravenes the conclusions of the fact-finder from the criminal proceeding, which Heck does not permit. Accordingly,
The accounts of the parties differ on the issue of what occurred during the transportation of Panarello to the police station. It is not in dispute that Officer Armstrong was the one who transported Panarello. (Off. Defs.' SMF ¶ 118; Pls.' Resp. to Off. Defs.' SMF at 14.) It is also apparently not in dispute that Panarello sustained additional injuries during the transport from Plaintiffs' property to the police station — the dispute is as to whose fault it is. (See Pls.' Resp. to Off. Defs.' SMF at 14-15.) Officer Armstrong argues that he merely transported Panarello, and that during the transport, he called for an EMT to meet them at the police station due to the injuries sustained during his arrest. (Off. Defs.' SMF ¶¶ 117-19; Armstrong Dep. Tr. at 47:25-48:9, 49:23-51:2.) Officer Armstrong also testified at the state criminal proceedings that Panarello was yelling and screaming in the back of the patrol car and was banging his head and upper body against the plexiglass. (Trial Tr. vol. 2 (Off. Defs.' Ex. Q [Dkt. No. 164-20]) at 24:13-26:13.) Plaintiffs, on the other hand, claim that Panarello was placed unrestrained into the back of the police vehicle following his arrest, and that Officer Armstrong purposefully accelerated and braked abruptly in order to cause him further injury. (Pls.' Resp. to Off. Defs.' SMF at 14-15; Panarello Aff. ¶¶ 8-9.)
This constitutes a genuine issue of material fact, as the parties dispute the responsibility for Panarello's additional injuries. This dispute only be resolved by weighing the credibility of the witnesses, which the Court cannot and must not do at this procedural juncture. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. Accordingly, the Officer Defendants' Motion with respect to this issue will be denied.
Again, the accounts of the parties differ on what led up to the use of the OC spray in the booking room. Not in dispute is the fact that Officers Armstrong and Day were present, and Officer Day is the one who deployed the OC spray. (Off. Defs.' SMF ¶¶ 121-27; Pls.' Resp. to Off. Defs.' SMF at 15-16.) Officers Armstrong and Day submit that after Officer Armstrong took Panarello into the police station, Panarello was yelling his name and Social Security number, but that Officer Armstrong removed Panarello's handcuffs, and then instructed him to sit down on a bench to be secured by handcuffs to the wall. (Off. Defs.' SMF ¶¶ 124-26; Armstrong Dep. Tr. at 51:13-53:16, 55:9-25; Day Dep. Tr. at 52:23-54:9, 57:18-62:19.) They claim that Panarello "raised his fists and took an aggressive posture" and refused to follow orders to sit down on the bench after being instructed to do so repeatedly. (Off. Defs.' SMF ¶¶ 125-27; Armstrong Dep. Tr. at 56:1-13; Day Dep. Tr. at 62:8-19.) Officers Armstrong and Day then claim Officer Day decided to use OC spray to obtain compliance from Panarello rather than engage in a physical altercation. (Off. Defs.' SMF ¶¶ 127-28; Armstrong Dep. Tr. at 56:14-17; Day Dep. Tr. at 62:20-63:3.) Officer Armstrong further submits that he gave Panarello paper towels to wipe his face, but that Panarello refused and instead yelled his name and Social Security number over and over. (Off. Defs.' SMF ¶¶ 131-32; Armstrong Dep. Tr. at 60:17-62:7.) Plaintiffs conversely claim that the OC spray was administered after Panarello was already secured by handcuffs to the wall and while we was in a semi-conscious state. (Pls.' Resp. to
This too constitutes genuine issues of material fact, regarding both the timing of the use of the OC spray and the events leading up to its use. Again, the dispute can only be resolved by judging the credibility of the witnesses, and accordingly the Officer Defendants' Motion with respect to this issue will be denied.
Plaintiffs advance as a theory of liability under § 1983 the fact that all of the Officer Defendants as well as Sergeant Riggione filed false police reports with the purpose of retaliating against Panarello for filing complaints against Ramos in violation of his First, Fourth, and Fourteenth Amendment rights. (FAC Count II ¶¶ 5-6.) The Officer Defendants and Municipal Defendants move for summary judgment on the entirety of Count II of the FAC. The Officer Defendants appear to argue that this allegation would fall within the claims for malicious prosecution and abuse of process. (See Off. Defs.' Mot. Br. at 21-24.) The Municipal Defendants argue that Sergeant Riggione was not involved in the process of arresting or charging Panarello, the claim must be dismissed as to Sergeant Riggione. (Muni. Defs.' Mot. Br. at 37.) They also argue that because the FAC include an allegation of a conspiracy in these paragraphs, that this theory of liability must be dismissed for failure of proof of a conspiracy. (Muni. Defs.' Mot. Br. at 37-38.)
As an initial matter, as will be explained below, Sergeant Riggione was explicitly involved in the process of charging Panarello, so the Municipal Defendants' argument on this point is incorrect. With respect to construing the claim, the Court agrees with the Officer Defendants, and will construe this theory of liability to encompass malicious prosecution and abuse of process in violation of the Constitution. Further, to the extent this allegation presents a theory of liability for retaliation under the First Amendment against the defendants who authored criminal complaints based on Panarello's earlier internal affairs complaint against Ramos, no party has briefed this issue or has made an application for relief on this theory. Therefore, any such claim survives summary judgment.
In this circuit, a claim for malicious prosecution under § 1983 must establish "(1) the defendants initiated a criminal proceeding; (2) the criminal proceeding ended in plaintiff's favor; (3) the proceeding was initiated without probable cause; (4) the defendants acted maliciously or for a purpose other than bringing the plaintiff to justice; and (5) the plaintiff suffered deprivation of liberty consistent with the concept of seizure as a consequence of a legal proceeding." Kossler v. Crisanti, 564 F.3d 181, 186 (3d Cir.2009) (quoting Estate of Smith, 318 F.3d at 521) (internal quotations omitted).
The crux of the dispute over this claim between the parties appears to be whether the criminal proceedings terminated in Panarello's favor. In order to find that the criminal proceeding ended in plaintiff's favor in the situation where plaintiff has been charged with multiple crimes and convicted of some and acquitted of others, "upon examination of the entire criminal proceeding, the judgment must indicate the plaintiff's innocence of the alleged misconduct underlying the offenses charged." Id. at 188. The Third Circuit has counseled that "district courts need not reach the probable cause element unless they first make a finding of favorable termination after examining whether the proceeding as a whole indicates the innocence of the accused
The parties do not, and cannot, dispute the record from the trial court. As noted above, Panarello was convicted of resisting arrest in violation of N.J.S.A. 2C:29-2a and assault on the EMT who came to treat him in violation of N.J.S.A. 2C:12-1b(5)(c). See Trial Decision Tr., State v. Panarello, (Glassboro Muni. Ct. Sept. 26, 2013); Order Aff'g Conviction, State v. Panarello, Muni. Appeal No. A-28-13 (N.J.Super.Ct. Law Div. June 24, 2014). Officer Armstrong only authored the criminal complaint against Panarello for assault on the EMT. (Off. Defs.' SMF ¶ 136; Off. Defs.' Ex. N, Compl. 2010-3102.) Officer Laielli authored the criminal complaint for resisting arrest. (Off. Defs.' SMF ¶ 138; Off. Defs.' Ex. N, Compl. 2010-3104.) Where Panarello was actually convicted of the crime, it is clear that no liability for malicious prosecution can lie. Accordingly, Officer Armstrong can have no liability for malicious prosecution, having authored no other criminal complaints,
The remaining five criminal complaints were authored by Officers Laielli and Shaw and Sergeant Riggione.
Pursuant to Kossler, the analysis of favorable termination must begin with the elements of the crimes under New Jersey law. See Kossler, 564 F.3d at 189; see also Wiggins v. Robinson, Civ. No. 07-2805 (KM/MCA), 2014 WL 3058466, at *6-7 (D.N.J. July 7, 2014). The elements of the crimes for which Panarello acquitted must be compared with the crimes for which Panarello was convicted. This Court will only compare the acquitted charges with the conviction for resisting, as the conviction
A person is guilty of resisting arrest in New Jersey "if he purposely prevents or attempts to prevent a law enforcement officer from effecting an arrest." N.J.S.A. 2C:29-2a.
Panarello was charged with and acquitted of two different types of aggravated assault — under N.J.S.A. 2C:12-1b(5)(a) against the officers and under N.J.S.A. 2C:12-1b(2) against Ramos. The offense of aggravated assault as charged under N.J.S.A. 2C:12-1b(5)(a) is committed when a person commits an act of simple assault against "[a]ny law enforcement officer acting in the performance of his duties while in uniform or exhibiting evidence of his authority or because of his status as a law enforcement officer." The underlying simple assault offense is committed when one "(1) [a]ttempts to cause or purposely, knowingly or recklessly causes bodily injury to another; (2) [n]egligently causes bodily injury to another with a deadly weapon; or (3) [a]ttempts by physical menace to put another in fear of imminent or serious bodily injury." N.J.S.A. 2C:12-1a. The offense of aggravated assault as charged under N.J.S.A. 2C:12-1b(2) is committed when one "[a]ttempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon." Further, Panarello was charged with obstruction, the elements of which have been detailed in Section IV.B.2.ii.b, supra.
Panarello was also charged with two different weapons offenses related to possessing the wooden board. A person is guilty of possession of weapons for unlawful purposes under N.J.S.A. 2C:39-4d when he "has in his possession any weapon, except a firearm, with a purpose to use it unlawfully against the person or property of another." A person is guilty of unlawful possession of weapons under N.J.S.A. 2C:39-5d when he "knowingly has in his possession any other weapon under circumstances not manifestly appropriate for such lawful uses as it may have."
The convicted offense does not share elements with any of the acquitted offenses, nor is the convicted offense a lesser included offense of any of the acquitted offenses. However, the inquiry proceeds to look at the "underlying conduct that the charges sought to punish." See Kossler, 564 F.3d at 189. Here, the resisting arrest charge and charges for aggravated assault against Officers Laielli and Shaw were meant to punish Panarello's conduct during the course of effecting his arrest. Even viewing the evidence in the light most favorable to the Plaintiffs, they cannot maintain their claim for malicious prosecution as it relates to charges for aggravated assault against Officers Laielli and Shaw, as Plaintiffs cannot prove that there was a favorable termination of the proceedings with respect to these charges.
Regarding the obstruction charge, this Court cannot accept the argument from the Officer Defendants that "Judge Golden essentially merged the obstruction charge with the resisting arrest charge" to conclude that the obstruction charge was aimed at the same culpable conduct as the resisting arrest charge. (Off. Defs.' Mot. Br. at 23 n.7.) However, it was the alleged act of obstruction that led Officers Laielli and Shaw to determine to arrest Panarello, thus setting in motion the course of events
The remaining charges — aggravated assault against Ramos and the two weapons offenses — relate solely to Panarello's conduct in relation to Ramos, and the criminal complaints were authored by Sergeant Riggione. This is distinct from the conviction of resisting arrest, even though investigation of the crime is what led the officers to Plaintiffs' property. Therefore, viewing the evidence in the light most favorable to the Plaintiffs, the Court cannot find that the proceedings did not terminate in Panarello's favor. The Court must move on to assessing probable cause for these three offenses.
At the time the criminal complaints were authored, the Officer Defendants had probable cause to believe that Panarello had committed aggravated assault against Ramos and had committed the two weapons offenses. Taking the facts as admitted by Plaintiffs, the officers heard from Ramos, the victim, and his wife that Panarello had attempted to strike Ramos with a wooden board, but had failed to make contact. (See Pls.' Resp. to Off. Defs.' SMF at 2-3.) The board qualified as a deadly weapon, under the statutory definition of a deadly weapon. See N.J.S.A. 2C:11-1c ("`Deadly weapon' means any ... other weapon, device, instrument, material or substance ... which in the manner it is used ... is known to be capable of producing death or serious bodily injury....") Even viewing the evidence in the light most favorable to the Plaintiffs, it is clear that a wooden board swung at someone in an attempt to strike them can be considered a deadly weapon under the broad statutory definition. This information provided police with probable cause to believe that aggravated assault as charged under N.J.S.A. 2C:12-1b(2) had been committed because Panarello had "[a]ttempt[ed] to cause ... bodily injury to another with a deadly weapon." It is of no moment that there was no actual contact between the wooden board and Ramos; the act of swinging the board at Ramos is sufficient under the statute.
Turning to the weapons offenses, these too are supported by probable cause. Based on the information available to Sergeant Riggione, Panarello "ha[d] in his possession any weapon, except a firearm, with a purpose to use it unlawfully against the person ... of another." N.J.S.A. 2C:39-4d. Similarly, based on the information available to Sergeant Riggione, Panarello "knowingly ha[d] in his possession any other weapon under circumstances not manifestly appropriate for such lawful uses as it may have." N.J.S.A. 2C:39-5d. Having a board in one's possession to use to strike another is to use it unlawfully and to use it in circumstance not manifestly appropriate for its lawful use. Thus, probable cause existed for all three offenses related to Ramos, and no malicious prosecution claim can lie. Based on the foregoing, the Officer Defendants' Motion and the Municipal Defendants' Motion
"[A] section 1983 claim for malicious abuse of process lies where `prosecution is initiated legitimately and thereafter is used for a purpose other than that intended by the law.'" Rose v. Bartle, 871 F.2d 331, 350 n. 17 (3d Cir.1989) (quoting Jennings v. Shuman, 567 F.2d 1213, 1217 (3d Cir.1977)). The Officer Defendants argue that Plaintiffs have failed to put forth any evidence that the criminal complaints were used for any ulterior motive. (See Off. Defs.' Mot. Br. at 23-24.) Plaintiffs, rather than come forth with evidence to counter this argument simply argue that "[g]enuine issues of material facts exist as to what role, if any, did the [Vineland Police Department] play in determining in which court ... the charges were going to be tried." (Pls.' Cross Mot. Br. at 26.) The determination of what court — Municipal Court or Superior Court — had jurisdiction over the criminal complaints cannot support a claim for abuse of process as to any of the Officer Defendants or Municipal Defendants. Accordingly, the Officer Defendants' Motion and the Municipal Defendants' Motion will be granted, and any constitutional claim for abuse of process will be dismissed.
Plaintiffs have also alleged liability against both the City of Vineland and Chief Codispotti in his capacity as Chief of Police of the Vineland Police Department. To hold the City liable under § 1983, Plaintiffs must demonstrate that their rights were violated by a policy or custom of the City of Vineland. See Monell v. Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); see also Watson v. Abington Twp., 478 F.3d 144, 155 (3d Cir.2007) ("Thus, there are two ways that a plaintiff can establish municipal liability under § 1983: policy or custom."). "A municipality cannot be held liable for the unconstitutional acts of its employees on a theory of respondeat superior." Thomas v. Cumberland Cty., 749 F.3d 217, 222 (3d Cir.2014) (citing Monell, 436 U.S. at 691, 98 S.Ct. 2018).
Additionally, municipal liability under § 1983 requires an underlying constitutional violation. See Monell, 436 U.S. at 690-91, 98 S.Ct. 2018. "[I]f there is no violation in the first place, there can be no derivative municipal claim." Mulholland v. Gov't Cty. of Berks, Pa., 706 F.3d 227, 238 n. 15 (3d Cir.2013) (citing Los Angeles v. Heller, 475 U.S. 796, 799, 106 S.Ct. 1571, 89 L.Ed.2d 806 (1986)). With this in mind, the only potential constitutional violations that have survived summary judgment are allegations of excessive force during Panarello's transport to the police station and for the use of OC spray against him while in the booking room, allegations of unlawful entry into his backyard to effect an arrest, and allegations of effecting a warrantless arrest in the backyard of Plaintiffs' home. Therefore, the policies or customs must relate to these alleged constitutional violations.
This Court understands Count I of the FAC to allege liability under three different theories: (1) a policy or custom of effecting unconstitutional arrests and searches; (2) a failure to train or supervise; and (3) an unconstitutional municipal ordinance regarding arrests. These will be analyzed in turn.
Plaintiffs in opposing summary judgment argue that the City and the Chief have a "policy and custom of making
The City and the Chief move for summary judgment on the basis that none of the evidence adduced through discovery can support a finding of a policy or custom. Plaintiffs' expert, Mr. McComb, provided a supplemental report wherein he summarizes twelve internal affairs complaints that pertain to the Officer Defendants as well as six further complaints pertaining specifically to Ramos, which span a time period of 1990 to 2013, and states that they "provide further support to [his] opinion that the defendant officers of the VPD are either untrained, or intentionally disregarding lawful arrest procedures, and lawful search and seizure procedures." (McComb Supp. Rep. (Muni. Defs.' Ex. T) at 1-2.)
Plaintiffs here have failed to tie the prior complaints to the current conduct, and further have failed to submit the actual complaints into the evidentiary record. The only internal affairs complaint submitted by Plaintiffs is the one complaint against Ramos made by Panarello and Sherie Panarello in February 2010. (See Pls.' Opp. to Muni. Defs.' Mot. Ex. H [Dkt. No. 180-9].)
When Plaintiffs allege that a policy "concerns a failure to train or supervise municipal employees, liability under section 1983 requires a showing that the
Plaintiffs have come forth with evidence from their expert, Mr. McComb, in support of their claim. However, Mr. McComb notes in his report that at the time of his report he did not have the opportunity to review multiple lesson plans or manuals from the Vineland Police Department regarding use of force, use of OC spray, and search and seizure, and so his opinion does not include any information that may have been obtained from those documents. (See McComb Rep. (Muni. Defs.' Ex. G) at 6.) Plaintiffs have pointed to nothing to indicate that the training or supervision were actually deficient. (See References are made to the internal affairs complaints regarding a failure to supervise (see Pls.' Opp. to Muni. Defs.' Mot. at 22-23)), but as explained in Section IV.C.1, supra, Plaintiffs have failed to submit the actual complaints into the evidentiary record. Further, as explained in Section IV. C.1, supra, the alleged pattern of constitutional violations as demonstrated through internal affairs complaints is insufficiently supported by the evidence. Therefore, the alleged pattern cannot possibly rise to the level of deliberate indifference needed for a failure to train or supervise claim. With this absence of proof from Plaintiffs, the Municipal Defendants' Motion will be granted with respect to this claim.
Finally, Plaintiffs argue that the City and the Chief should be held liable under § 1983 based on an ordinance that they allege condones and mandates unconstitutional arrests. "There must be a `direct causal link between a municipal policy or custom and the alleged constitutional deprivation.'" Carswell v. Borough of Homestead, 381 F.3d 235, 244 (3d Cir. 2004) (quoting Brown v. Muhlenberg Twp., 269 F.3d 205, 214 (3d Cir.2001)). Plaintiffs in a § 1983 suit also "must prove that `action pursuant to official municipal policy' caused their injury." Connick, 563 U.S. at 60, 131 S.Ct. 1350 (quoting Monell, 436 U.S. at 691, 98 S.Ct. 2018) (emphasis added); see also Bryan Cty., 520 U.S. at 404, 117 S.Ct. 1382 ("The plaintiff must also demonstrate that, through its deliberate conduct, the municipality was the "moving force" behind the injury alleged.").
Plaintiffs point to an ordinance of the City of Vineland that states in relevant part:
Code of the City of Vineland art. I, ch. 123, § 123-4 (emphasis added). Plaintiffs argue that this ordinance is facially unconstitutional, on the grounds that a constitutionally valid arrest requires probable cause, which is a higher standard than merely "suspicious circumstances." (Pls.' Opp. to Muni. Defs.' Mot. at 19-20 (citing Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964)).)
The Municipal Defendants counter that Plaintiffs cannot show that Panarello's arrest was an action pursuant to this ordinance, and that the City does not train or inform its officers of this policy, nor does it encourage officers to act in an unconstitutional manner. (Muni. Defs.' Mot. Br. at 35-36; Muni. Defs.' SMF ¶¶ 39-40.) The Municipal Defendants point to the testimony of Chief Codispoti in support of their position. At deposition, Chief Codispoti testified regarding the ordinance that "[t]his language is fifty years old. It's never been used as a part of our training. I doubt that there's ten of the officers in the department that even know this exists, and it's not something that we follow, train on, use, post, et cetera." (Codispoti Dep. Tr. (Muni. Defs.' Ex. N) at 69:25-70:4.) He further testified, "I have myself, since I've been chief and before that, we have brought that up to the city fathers, asked for language updates. We're aware of it, that this is language that is not part of anything to anything. The previous chief brought this up. You're very much right. This language is from days gone by." (Codispoti Dep. Tr. at 70:12-18.)
Plaintiffs fail to attempt to tie the ordinance here to his arrest, and they fail to rebut the Municipal Defendants' evidence with anything other than conjecture and rhetoric to demonstrate that the officers are in fact trained on this policy or instructed pursuant to this ordinance to effect arrests under "suspicious circumstances" and without probable cause. Additionally, this Court has already determined, as explained in Section IV. B.2.ii.b, supra, that at the time of Panarello's arrest, Officers Laielli and Shaw had probable cause to arrest him for obstruction. Thus, even if Plaintiffs could prove that the officers were trained on this ordinance, it would have no bearing on Panarello's own arrest, because his arrest was made with probable cause. The potential constitutional violation involved in Panarello's arrest is that it was a warrantless arrest within the curtilage. See Section IV.B.2.ii.b, supra. The ordinance here speaks not at all to that issue, and so cannot be tied to the underlying constitutional violation. This theory of liability cannot be sustained, and the Municipal Defendants' Motion will be granted in this respect.
Plaintiffs allege two counts of intentional tort in the FAC. First, Plaintiffs allege liability for the City, the Officer Defendants, and Ramos for assault and battery. (See FAC Count VI.) Second, Plaintiffs allege liability for the City and Officers Laielli, Shaw, and Armstrong for false arrest. (See FAC Count VII.) For the reasons that follow, the only claim that survives summary judgment is the claim against Ramos for assault and battery because Ramos has failed to challenge that claim. All other intentional tort claims will be dismissed.
The City moves for summary judgment on the intentional torts on the grounds that holding it liable would in effect be holding the City vicariously liable for the conduct of the individual officers.
The FAC is rife with allegations of actual malice and willful misconduct, all of which are incorporated by reference into the counts that allege intentional torts. (See FAC Count VI ¶ 1; Count VII ¶ 1.) As another court of this district has reasoned, "if Plaintiff's evidence merely established that the officers acted negligently, then his claims [of intentional tort] would fail on the merits, irrespective of whether the City is immune, but if Plaintiff established that the officers acted willfully, then N.J.S.A. 59:2-10 would immunize the City from liability on these claims." Monaco v. City of Camden, Civ. No. 04-2406 (JBS), 2008 WL 408423, at *15 (D.N.J. Feb. 13, 2008). The Court agrees with this reasoning, and Plaintiffs have made no significant argument as to why the NJTCA does not bar the claims against the City. Accordingly, the Municipal Defendants' Motion will be granted in this respect, and the claims for assault and battery and false arrest against the City will be dismissed.
As noted by the court in Section IV.A, supra, Plaintiffs' failure to comply with the NJTCA mandates dismissal of the claims against Officers Armstrong and Day for assault and battery based on transport to the police station and use of the OC spray at the police station. Therefore, the only possible assault and battery would be the one in effecting Panarello's arrest. The Officer Defendants move for summary judgment on the state law claim of assault and battery for the same reasons they have moved for summary judgment on the § 1983 claim. (Off. Defs.' Mot. Br. at 16-17.)
In New Jersey, "[a] person is subject to liability for the common law tort of assault if: (a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such contact, and (b) the other is thereby put in such immediate apprehension." Leang v. Jersey City Bd. of Educ., 198 N.J. 557, 591, 969 A.2d 1097 (2009) (quoting Wigginton v. Servidio, 324 N.J.Super. 114, 129, 734 A.2d 798 (1999)) (internal quotations omitted). "The tort of battery rests upon a nonconsensual touching." Id. (citing Perna v. Pirozzi, 92 N.J. 446, 461, 457 A.2d 431 (1983)). A police officer may use such force as is reasonably necessary to effect an arrest, but once the force becomes excessive, the officer may be liable for assault and battery. Hill v. Algor, 85 F.Supp.2d 391, 411 (D.N.J.2000); see also State v. Williams, 29 N.J. 27, 39-40, 148 A.2d 22 (1959).
Although the Court in Heck was speaking specifically about a § 1983 case, the Court stated explicitly that it was relying on "the hoary principle that civil tort actions are not appropriate vehicles for challenging the validity of outstanding criminal judgments." Heck, 512 U.S. at 486, 114 S.Ct. 2364 (emphasis added). The New
Accordingly, the Court will grant the Officer Defendants' Motion with respect to this claim. Ramos has not moved this Court for relief, and so the claim will remain as it pertains to him.
Under federal and New Jersey law, an officer may effect a warrantless arrest for minor offenses. See Dangerfield, 171 N.J. at 460, 795 A.2d 250 (finding that N.J.S.A. 40A:14-152 permits officers to perform warrantless arrests for "disorderly and petty disorderly persons offenses that occurred in their presence"); see also Section IV.B.2.ii.b, supra. The existence of probable cause at the time of arrest is an absolute defense to the common law tort claim of false arrest. Tarus v. Borough of Pine Hill, 189 N.J. 497, 521, 916 A.2d 1036 (2007) (citing Wildoner v. Borough of Ramsey, 162 N.J. 375, 389, 744 A.2d 1146 (2000)). This Court has already determined that Officers Laielli and Shaw had probable cause to arrest Panarello at the time of his arrest. See Section IV.B.2.ii.b, supra. This is an absolute defense to his claim of false arrest. Further, Officer Armstrong was not involved in the act of arresting Panarello. Accordingly, the Officer Defendants' Motion will be granted with respect to the false arrest claim.
Plaintiffs further allege liability for the City and the Officer Defendants for negligent personal injury. (See FAC Count X.) The basis for this negligence claim by the language of the FAC is that "[t]he aforesaid unlawful battery against the Plaintiff was negligent.... [and/or] grossly negligent." (FAC Count X ¶¶ 2-3 (emphasis added).) As a matter of law, liability for the tort of battery cannot sound in negligence, gross or otherwise. See Caldwell v. KFC Corp., 958 F.Supp. 962, 970 (D.N.J.1997) ("Common-law battery is an intentional tort....") (emphasis added); Dan B. Dobbs, et al., Law of Torts, § 33 n.4 (2d ed. 2015) ("By definition, there is no such thing as a negligent battery."); Restatement (Second) of Torts, § 16 (1965) (requiring an intentional act for the tort of battery). The Municipal Defendants and the Officer Defendants argue that this count should be treated merely as a recasting of the battery claim, and treated the same as the separately pled count for assault and battery. (See Muni. Defs.' Mot. Br. at 53-54; Off. Defs.' Mot. Br. at 16.) Again, Plaintiffs only oppose on the basis of disputed facts. (See Pls.' Opp. to Muni. Defs.' Mot. at 29; Pls.' Cross Mot. Br. at 21.) The Court agrees with the moving defendants that this is a repleading of the earlier battery claim, and thus the Court will similarly grant the Municipal Defendants' Motion and the Officer Defendants' Motion in this respect, and dismiss the claim for negligent personal injury against all defendants.
Plaintiffs allege liability for the City and the Chief for negligent training and supervision — two separate torts in New Jersey. (See FAC Count IX.) In New Jersey, to sustain a claim of negligent training, "a plaintiff must show that (1) the defendant owed a duty of care to the plaintiff to properly train its employees, (2) defendant breached that duty of care, (3) defendant's breach was the proximate cause of plaintiff's injury, and (4) defendant's breach caused actual damages to plaintiff." Brijall v. Harrah's Atl. City, 905 F.Supp.2d 617, 621 (D.N.J.2012) (citing
Plaintiffs do not point to any additional evidence beyond what was argued in support of the failure to train or supervise claims under § 1983. (See Pls.' Opp. to Muni. Defs.' Mot. at 28-29.) For the same reasons this Court was unpersuaded of the existence of a constitutional violation, see Section IV.C.2, supra, this Court does not believe Plaintiffs have brought forth sufficient evidence, even viewed in the light most favorable to Plaintiffs, to support a claim for the common law torts of negligent training and negligent supervision. Accordingly, the Municipal Defendants' Motion will be granted in this respect.
Finally, plaintiffs include a "per quod" claim for loss of consortium by Sheri Panarello against the City and Officers Laielli and Shaw based only on the negligent infliction of personal injuries to Panarello during his arrest. (See FAC Count XIII.) "A loss of consortium, or per quod, claim is intended to compensate a person for the loss of a spouse's `society, companionship and services due to the fault of another.'" Kibble v. Weeks Dredging & Const. Co., 161 N.J. 178, 190, 735 A.2d 1142 (1999) (quoting Wolfe v. State Farm Ins. Co., 224 N.J.Super. 348, 350, 540 A.2d 871 (1988)). The per quod claim is "derivative of the injured spouse's personal injury cause of action" but has distinct damages from the injured party's damages. Id. (citations omitted). The Municipal Defendants and Officer Defendants move to dismiss the per quod claim by Sheri Panarello on the basis that no claim of Panarello should survive summary judgment. (See Muni. Defs.' Mot. Br. at 57; Off. Defs.' Mot. Br. at 28.) Plaintiffs oppose on the basis that Panarello's claims do survive summary judgment. (See Pls.' Opp. to Muni. Defs.' Mot. at 30; Pls.' Cross Mot. Br. at 27-28.)
The Court has determined that certain of Panarello's § 1983 claims are viable, but none that relate to any injuries he sustained during his arrest. The FAC specifically limits Sheri Panarello's per quod claim to the alleged negligent conduct she witnessed. (See FAC Count XIII ¶ 2.) Plaintiffs have chosen to plead the per quod claim narrowly, and the consequence of that action is that Sheri Panarello's per quod claim cannot survive summary judgment, as there is no claim of Panarello relating to his arrest from which her per quod claim can derive. Accordingly, the Municipal Defendants' Motion and the Officer Defendants' Motion is granted in this respect.
Plaintiffs also allege a claim for negligent infliction of emotional distress by Sheri Panarello, also against the City and Officers Laielli and Shaw, similarly based on her observation of injuries inflicted on Panarello during his arrest. (See FAC Count XV.) In New Jersey, this type of bystander claim for negligent infliction of emotional distress — a so-called Portee claim — requires the plaintiff to prove "(1) the death or serious physical injury of another caused by defendant's negligence; (2) a marital or intimate, familial relationship between plaintiff and the injured person; (3) observation of the death or injury at the scene of the accident; and (4) resulting severe emotional distress." Abouzaid v. Mansard Gardens Assocs., LLC, 207 N.J. 67, 78, 23 A.3d 338
To prove a Portee claim, Plaintiffs need to come forth with evidence that the emotional distress was "sufficiently palpable, severe, or enduring to justify the imposition of liability." Decker v. Princeton Packet, Inc., 116 N.J. 418, 431, 561 A.2d 1122 (1989). Plaintiffs have provided absolutely no evidence in the record that Sheri Panarello suffered any emotional distress at all, much less severe emotional distress.
The Court will take this opportunity to dismiss on its own initiative the unnamed John Doe defendants and Defendant Timothy Delouise pursuant to Federal Rule of Civil Procedure 21. Rule 21 provides that "[o]n motion or on its own, the court may at any time, on just terms, add or drop a party." Plaintiffs may pursue an action against fictitious parties until plaintiff has had an opportunity to conduct discovery. Hindes v. FDIC, 137 F.3d 148, 155 (3d Cir.1998). "[F]ictitious parties must eventually be dismissed if discovery yields no identities...." Id. (quoting Scheetz v. Morning Call, Inc., 130 F.R.D. 34, 36 (E.D.Pa.1990)) (internal quotation marks omitted).
Discovery in this case closed on June 15, 2015. (Amend. Sched. Ord. (May 22, 2015) [Dkt. No. 153].) At no point since have Plaintiffs attempted to identify the John Doe defendants to this Court. Therefore, as other courts of this district have held, "[i]t is appropriate, before proceeding to trial, to eliminate these fictitious defendants from this action under [Rule] 21." Adams v. City of Camden, 461 F.Supp.2d 263 (D.N.J.2006). The FAC also contains absolutely no allegations regarding the conduct of Officer Timothy Delouise, despite him being named as a defendant in the case caption.
For the foregoing reasons, the Municipal Defendants' Motion and the Officer Defendants'
The Court believes it helpful to elucidate clearly what claims remain in the case following this partial grant of summary judgment. The remaining claims are:
All other claims, as explained above, will be dismissed.
Consistent with this opinion, there are now no claims pending against the City or Chief Codispotti or on behalf of Sheri Panarello. These parties will be dismissed from the action. An appropriate order accompanies this opinion.
