OFFICER PAUL S. MASLOW v. CITY OF ATLANTIC CITY et al

Filing 71

OPINION. Signed by Judge Joseph E. Irenas on 6/30/2011. (dmr)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

PAUL MASLOW,

HONORABLE JOSEPH E. IRENAS

Plaintiff,

CIVIL ACTION NO. 08-3618
(JEI/AMD)

v.
CITY OF ATLANTIC CITY and JOHN
MOONEY,

OPINION

Defendants.
APPEARANCES:
O’BRIEN, BELLAND & BUSHINSKY, LLC
By: Mark E. Belland and Jeffrey Robert Caccese
1526 Haddonfield-Berlin Road
Cherry Hill, NJ 08003
Counsel for Plaintiff
DECOTIIS, FITZPATRICK, COLE & WISLER, LLP
By: Steven C. Mannion
Glenpointe Centre West
500 Frank W. Burr Boulevard
Suite 31
Teaneck, NJ 07666
Counsel for Defendant City of Atlantic City
LEVINE STALLER SKLAR CHAN BROWN & DONNELLY PA
By: David John Azotea
3030 Atlantic Avenue
Atlantic City, NJ 08401
Counsel for Defendant John Mooney
IRENAS, Senior District Judge:
This matter comes before the Court on the First Motion for
Judgment as a Matter of Law of the Defendant City of Atlantic
City (“Atlantic City”).

For the reasons set forth below, the

Motion will be granted in part and denied in part.1
I.
Plaintiff Paul Maslow has been a police officer with
Atlantic City since 1988.

(City of Atlantic City’s Statement of

Undisputed Material Facts ¶ 2) Plaintiff was injured while on
duty in 2006.

(Id. at 3) Plaintiff was put on sick leave, and

remained out of work until May 2007. (Id. at 4) Upon returning to
work, Plaintiff was assigned to the Charlie Platoon, which works
from midnight until eight a.m.

(Id. at 8)

Plaintiff had trouble adjusting to the new schedule.

(Id.

at 12) He began with the Charlie Platoon on May 10, 2007, and
called in sick on May 13, 2007 because he was tired.
Plaintiff met with a private psychiatrist.

(Id. at 11)

(Id. at 13) The

psychiatrist provided Plaintiff a note that said Plaintiff was
“not able to work.”

(Id.)

Despite his psychiatric problems, Plaintiff attended a
Police Benevolent Association meeting on May 30, 2007.
15)

(Id. at

There, he ran into Lt. James Pasquale and told him that he

was missing work because of stress.

(Id.)

Upon hearing this

news, Lt. Pasquale advised Plaintiff that the police department
would be revoking his duty weapon.

(Id. at 16)

Defendant Mooney, the chief of the Atlantic City Police
Department, was also at that meeting.

1

(Id. at 17)

Lt. Pasquale

The Court has subject matter jurisdiction pursuant to 28
U.S.C. § 1331 and 28 U.S.C. § 1367(a).

and Defendant Mooney spoke about the Plaintiff’s issues.

(Id.)

Defendant Mooney advised Pasquale that he should ask Plaintiff
for his personal fire arm and his firearms purchaser
identification card.

(Id.)

Defendant Mooney further advised

Pasquale that if Plaintiff did not voluntarily relinquish his
firearm and identification card, then appropriate legal actions
would be taken.

(Id. at 18)

After the meeting, a sergeant with the police department
approached Plaintiff and requested his duty weapon.

(Id. at 23)

The sergeant also requested Plaintiff’s personal weapon, but
Plaintiff would not relinquish that weapon.

(Id. at 24) On June

1, 2007, Defendant Mooney spoke with an attorney in the office of
the City Solicitor of Atlantic City about the situation.
28)

(Id. at

The attorney advised Defendant Mooney that the police

department could not force Plaintiff to relinquish his weapon.
(Id. at 30).

The attorney further advised Defendant that the

county prosecutor was empowered to file an action in superior
court to seize Plaintiff’s weapon.

(Id.)

Defendant Mooney arranged for the city solicitor’s office to
call Plaintiff’s attorney and discuss the possibility of
Plaintiff relinquishing his weapon in order to avoid a legal
action against Plaintiff.

(Id. at 35) Plaintiff’s attorney asked

for a copy of the policy pursuant to which the police department
was requesting his weapon, and the city solicitor’s office
advised the attorney that there was no such written policy.

(Id.

at 36) Plaintiff’s attorney finally agreed that Plaintiff would
surrender his weapon if he received “something in writing.” (Id.
at 38)
Defendant Mooney then issued a written order compelling
Plaintiff to surrender his weapon.

(Id. at 41) Following receipt

of this order, Plaintiff surrendered his personal weapons.

(Id.

at 46) Plaintiff made no effort to have his personal firearms
returned until the commencement of the present action.

(Id. at

55)
Plaintiff filed his Complaint in this Court on July 18,
2008.

Count I of the Complaint, brought against both Defendants,

alleges discrimination and harassment based on a perceived
disability in violation of the New Jersey Law Against
Discrimination.

Count II of the Complaint, brought under 42

U.S.C. § 1983, alleges violations of the Second Amendment and
Fourteenth Amendment of the United States Constitution by both
Defendants.

Counts III and IV of the Complaint also allege

violations of the Fourteenth Amendment and Second Amendment.2
Presently before the Court is Atlantic City’s First Motion
for Judgment as a Matter of Law, filed on February 22, 2011.

2

The only distinction between Counts III and IV and Count
II is that Count II is brought under § 1983 while Count III and
IV are brought directly under the United States Constitution.
Section 1983 creates a statutory right of action for violations
of the United States Constitution. Therefore, all of these
claims will considered together and treated as if brought under
§ 1983.

II.
“[S]ummary judgment is proper ‘if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any 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 (1986) (quoting Fed. R. Civ. P.
56(c)).

In deciding a motion for summary judgment, the Court

must construe the facts and inferences in a light most favorable
to the non-moving party.

Pollock v. Am. Tel. & Tel. Long Lines,

794 F.2d 860, 864 (3d Cir. 1986).

“‘With respect to an issue on

which the non-moving party bears the burden of proof, 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.’”

Conoshenti v.

Public Serv. Elec. & Gas, 364 F.3d 135, 145-46 (3d Cir. 2004)
(quoting Celotex, 477 U.S. at 323).

The role of the Court is not

“to weigh the evidence and determine the truth of the matter, but
to determine whether there is a genuine issue for trial.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
III.
Atlantic City moves for summary judgment on all of
Plaintiff’s claims against it.

The Court will first analyze

Plaintiff’s claims under § 1983, and then Plaintiff’s state law
claims.

A.
Counts II, III and IV are claims that Atlantic City violated
Plaintiff’s Second Amendment right to bear arms and Fourteenth
Amendment due process rights.
In Monell v. Dep’t of Soc. Servs., the Supreme Court held
that a municipality cannot be liable under § 1983 under the
principle of respondeat superior.

Monell v. Dep't of Soc.

Servs., 436 U.S. 658, 695 (1978).

Instead, a municipality can

only be held liable under § 1983 “when execution of a
government's policy or custom, whether made by its lawmakers or
by those whose edicts or acts may fairly be said to represent
official policy, inflicts the injury....”

Id.

The Third Circuit has held that there are three instances
when such liability is possible:
First, the municipality will be liable if its
employee acted pursuant to a formal government
policy or a standard operating procedure long
accepted within the government entity, Jett v.
Dallas Independent School District, 491 U.S. 701,
737 (1989); second, liability will attach when the
individual has policy making authority rendering his
or her behavior an act of official government
policy, Pembaur v. City of Cincinnati, 475 U.S.
469, 480-81 (1986); third, the municipality will be
liable if an official with authority has ratified
the unconstitutional actions of a subordinate,
rendering such behavior official for liability
purposes, City of St. Louis v. Praprotnik, 485 U.S.
112, 127 (1988).
McGreevy v. Stroup, 413 F.3d 359, 367 (3d Cir. 2005).
Plaintiff argues that it was Atlantic City’s formal
government policy to confiscate the weapons of police officers

without due process.

The only evidence in support of this

argument, though, is Defendant Mooney’s testimony.

Defendant

Mooney testified that such a policy existed, but he was not aware
of the source of the policy or any instances in which the policy
was applied.
For purposes of Monell, a government policy is an official
proclamation, policy or edict issued by a decision maker with
final authority as to the policy and a custom.
Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990)

Andrews v.
A government

custom is a practice of state officials that is so “permanent and
well settled” as to “virtually constitute law.”

Id.(internal

quotations omitted).
Even when taken in the light most favorable to Plaintiff,
Defendant Mooney’s testimony does not show that Atlantic City
ever issued a proclamation, policy or edict that the weapons of
police officers should be confiscated without due process, or
that Atlantic City had a permanent and well settled custom to
that effect.
Because Plaintiff has not presented any evidence of a policy
or custom of Atlantic City to confiscate weapons without due
process, then summary judgment will be granted in favor of
Atlantic City on Counts II, III and IV.
B.
Atlantic City argues that this Court should exercise its
discretion to decline supplemental jurisdiction over Plaintiff’s

state law claims against it.3

In actions in which a district

court has original jurisdiction, 42 U.S.C. § 1367(a) grants the
court supplemental jurisdiction over related claims that are part
of the same case and controversy.

While the federal claims

against Atlantic City will be dismissed hereby, the federal
claims against Defendant Mooney remain.

Since the state law

claims against Atlantic City and the federal claims against
Defendant Mooney arise out of a common nucleus of operative fact,
this Court will properly exercise supplemental jurisdiction over
the state law claims.

Accordingly, Atlantic City’s Motion as to

Count I will be denied.

IV.
For the reasons set forth above, the Court will deny
Atlantic City’s Motion for Judgment as a Matter of Law as to the
state law claims set forth in Count I, and the Court will grant
the Motion as to the federal claims set forth in Counts II, III
and IV.

An appropriate Order accompanies this Opinion.

Dated: June 30, 2011
s/ Joseph E. Irenas
JOSEPH E. IRENAS, S.U.S.D.J.

3

Because Defendant Atlantic City did not assert substantive
grounds for summary judgment on Plaintiff’s state law claims, the
Court makes no holding on the merits of those claims.