CORDIAL v. ATLANTIC CITY et al
Filing
67
OPINION. Signed by Judge Renee Marie Bumb on 3/19/2014. (dmr)
NOT FOR PUBLICATION
[Dkt. Ents. 48, 49, 52]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
JASON CORDIAL,
Plaintiff,
Civil No. 1:11-cv-01457
(RMB/AMD)
v.
OPINION
ATLANTIC CITY, et al.,
Defendants.
Appearances
Thomas J. Mellon
86 Court Street
Freehold, NJ 07728
Attorney for Plaintiff Jason Cordial
Michael E. Riley
Law Offices of Riley & Riley
The Washington House
100 High Street, Suite 302
Mount Holly, NJ 08060
Attorney for Defendants Atlantic City, Franco Sydnor, &
Michelle Clark
Patrick J. Wolf & Sharleen E. Pratt
Zarwin, Baum, DeVito, Kaplan, Schaer & Toddy, P.C.
1818 Market Street, 13th Floor
Philadelphia, PA 19103
Attorneys for Defendant John J. Mooney III
Cristopher C. Mauro
Camacho Mauro Mulholland, LLP
20 Nassau Street, Suite 308
Princeton, NJ 08542
Attorney for Defendants Harrah’s Atlantic City Propco, LLC,
d/b/a Harrah’s Resort Atlantic City & Kolongi Watford
Bumb, UNITED STATES DISTRICT JUDGE:
1
This action arises out of a March 29, 2009 incident in
which Plaintiff Jason Cordial (“Plaintiff”) was forcibly removed
from Harrah’s Hotel and Casino (“Harrah’s”) in Atlantic City and
arrested by Atlantic City Police Officers Franco Sydnor
(“Sydnor”) and Michelle Clark (“Clark”). Plaintiff brings claims
against the City of Atlantic City (“Atlantic City”), Atlantic
City Police Department Chief of Police John J. Mooney
(“Mooney”), Officers Sydnor and Clark, Harrah’s, Security
Officer Kolongi Watford (“Watford”) (collectively,
“Defendants”), and numerous other named and fictitious
individuals or entities.1
Before the Court are three motions for summary judgment
filed by 1) Defendants Atlantic City, Sydnor, and Clark;
2) Defendant Mooney; and 3) Defendants Harrah’s and Watford. For
the reasons that follow, these motions for summary judgment will
be granted in part and denied in part.
I.
FACTUAL BACKGROUND
The following facts are taken from the Rule 56.1 Statements
submitted by Plaintiff and Defendants. Although the parties
present similar descriptions of the events leading to this
litigation, where their accounts differ, the Court adopts
1
The Complaint names several other Harrah’s employees: Marcus
Corbit, Eric Crewe, Shaun Paisley, Rivera, Greg Reichenbach,
and Cahill. (Compl. at 1.) The docket reflects no evidence that
these individuals were served with the Complaint and none of
them have appeared in this action.
2
Plaintiff’s version of events for purposes of deciding these
motions.2
On March 29, 2009, Plaintiff was attending a friend’s
bachelor party at Harrah’s. (Mooney’s Statement of Undisputed
Material Facts (“Mooney’s SUMF”), Dkt. Ent. 49, ¶¶ 2-3;
Plaintiff’s Response to Mooney’s Statement of Facts (“Pl.’s Res.
Mooney”), Dkt. Ent. 54, ¶¶ 2-3.) At approximately 1:00 or 2:00
a.m., one of Plaintiff’s friends became involved in an
altercation with another patron while at “the Pool” Nightclub,
and the other members of Plaintiff’s party intervened. (Mooney’s
SUMF ¶ 8; Pl.’s Resp. Mooney ¶ 8.) Security approached and asked
Plaintiff’s party to leave. (Mooney’s SUMF ¶ 9; Pl.’s Resp.
Mooney ¶ 9.) Plaintiff and two of his friends then became
involved in a second confrontation, in the Waterfront Hallway,
with another unidentified patron, who threw some type of liquid
at Plaintiff. (Mooney’s SUMF ¶ 10; Pl.’s Resp. Mooney ¶ 10.)
Harrah’s security personnel Watford, Corbit, and Paisley
responded to this second incident and began to escort
Plaintiff’s friend, Scott Rayburg (“Rayburg”), through the
hallway. (Harrah’s Statement of Undisputed Material Facts
(“Harrah’s SUMF”), Dkt. Ent. 52, ¶¶ 8-9; Plaintiff’s Response to
2
Where there are significant factual disputes between the
parties, the facts should be construed in favor of the nonmoving party. See Kopec v. Tate, 361 F.3d 772, 775 (3d Cir.
2004), cert. denied, 543 U.S. 956 (2004).
3
Harrah’s Statement of Facts (“Pl.’s Resp. Harrah’s”), Dkt. Ent.
64, ¶¶ 8-9.) Plaintiff claims that he attempted to assist
Rayburg, who suffers gait instability due to his prior back
surgery. (Pl.’s Resp. Harrah’s ¶¶ 5-6.) Rayburg, however, lost
his balance and fell into a female passerby, knocking her to the
ground. (Pl.’s Resp. Harrah’s ¶ 8.) In the resulting fuss,
Corbit, Watford, and Paisley grabbed Plaintiff in an attempt to
physically restrain him, and took him to the ground. (Harrah’s
SUMF ¶ 8; Pl.’s Resp. Harrah’s ¶¶ 11-13.)
Plaintiff and Rayburg were then escorted to a holding cell
located on Harrah’s property. (Harrah’s SUMF ¶ 9; Pl.’s Resp.
Harrah’s ¶ 14.) Shortly thereafter, Officers Sydnor and Clark
arrived at the holding cell. (Atlantic City’s Statement of
Undisputed Material Facts (“AC’s SUMF”), Dkt. Ent. 48, ¶ 12;
Plaintiff’s Response to Atlantic City’s Statement of Facts
(“Pl.’s Resp. AC”), Dkt. Ent. 54, ¶ 12.) At that point,
Plaintiff began using and directing foul language at the
officers. (AC’s SUMF ¶ 13; Pl.’s Resp. AC ¶ 13.) Plaintiff
claims that, while he was in the holding cell, Harrah’s security
personnel and Officers Sydnor and Clark assaulted him, which
Defendants dispute. (Pl.’s Resp. AC ¶ 16.)
Upon Harrah’s request, Sydnor and Clark escorted Plaintiff,
un-handcuffed, through the lobby and out the front doors, where
they attempted to place him in a taxicab. (AC’s SUMF ¶ 14; Pl.’s
4
Resp. AC ¶ 14.) Defendants allege that Plaintiff was becoming
increasingly agitated and verbally abusive towards the officers
as he was escorted out of the casino. (AC’s SUMF ¶ 15.) Once
outside, Plaintiff claims to have told the officers that he did
not want to enter the cab and had no money to pay for the fare.
(AC’s SUMF ¶ 16; Pl.’s Resp. AC ¶ 16.) Throughout this time
Plaintiff continued to curse at the officers, was verbally
abusive and combative towards them, and allegedly verbally
threatened the officers with physical harm. (AC’s SUMF ¶ 16;
Mooney’s SUMF ¶ 17; Pl.’s Resp. Mooney ¶ 17.) An altercation
involving Plaintiff, Sydnor, and Clark followed, which led to
Plaintiff being arrested and ultimately charged with terroristic
threats, aggravated assault on a police officer, resisting
arrest, and disorderly conduct. (Mooney’s SUMF ¶ 18; Pl.’s Resp.
Mooney ¶ 18.)3 Plaintiff alleges that during this altercation
Defendants Sydnor and Clark, as well as Harrah’s security
officers, assaulted him without justification and with excessive
force causing him to suffer injuries. (Pl.’s Resp. Harrah’s
¶ 1.)
In this action, Plaintiff brings claims under § 1983
against Sydnor and Clark, as well as John Does 1-5, for
excessive force (Count One), failure to intervene in the
3
Plaintiff’s charges were dismissed through his participation in
New Jersey’s Pre Trial Intervention (“PTI”) Program. (AC’s SUMF
¶ 19; Pl.’s Resp. AC ¶ 19.)
5
unjustified assault and arrest of Plaintiff (Count Two), and
malicious abuse of process (Count Three). Plaintiff asserts §
1983 claims against John Does 2, and 6-10 for supervisory
liability (Count Four), and against Atlantic City, Chief Mooney,
and John Does 6-10 for constitutional deprivations due to
unlawful customs, practices, or policies and inadequate training
(Count Five). The Complaint separately asserts a claim for
prospective injunctive relief against Atlantic City, Mooney,
Sydnor, Clark, and John Does 1-10 (Count Six). In addition,
Plaintiff asserts several state law claims: assault and battery
(Count Seven) and negligent or intentional infliction of
emotional distress (Count Eight) against Corbit, Crewe, Paisley,
Rivera, Watford, Reichenbach, Cahill, Sydnor, Clark, and John
Does 1-20; as well as negligent hiring, training and supervision
(Count Nine) and agency (Count Ten) against Corbit, Crewe,
Paisley, Rivera, Watford, Reichenbach, Cahill, John Does 11-25,
Harrah’s, and ABC Corporations 1-10.
II.
LEGAL STANDARD
Summary judgment shall be granted if “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed. R.
Civ. P. 56(a). A fact is “material” if it will “affect the
outcome of the suit under the governing law . . . .” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is
6
“genuine” if it could lead a “reasonable jury [to] return a
verdict for the nonmoving party.”
Id.
When deciding the
existence of a genuine dispute of material fact, a court’s role
is not to weigh the evidence; all reasonable “inferences,
doubts, and issues of credibility should be resolved against the
moving party.”
Meyer v. Riegel Prods. Corp., 720 F.2d 303, 307
n.2 (3d Cir. 1983). However, a mere “scintilla of evidence,”
without more, will not give rise to a genuine dispute for trial.
Anderson, 477 U.S. at 252. Further, a court does not have to
adopt the version of facts asserted by the nonmoving party if
those facts are “utterly discredited by the record [so] that no
reasonable jury” could believe them.
Scott v. Harris, 550 U.S.
373, 380 (2007). In the face of such evidence, summary judgment
is still appropriate “where the record . . . could not lead a
rational trier of fact to find for the nonmoving party . . . .”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986).
The movant “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.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P.
7
56(c)). Then, “when a properly supported motion for summary
judgment [has been] made, the adverse party ‘must set forth
specific facts showing that there is a genuine issue for
trial.’” Anderson, 477 U.S. at 250 (quoting Fed. R. Civ. P.
56(e)). The non-movant’s burden is rigorous: it “must point to
concrete evidence in the record”; mere allegations, conclusions,
conjecture, and speculation will not defeat summary judgment.
Orsatte v. N.J. State Police, 71 F.3d 480, 484 (3d Cir. 1995);
Jackson v. Danberg, 594 F.3d 210, 227 (3d Cir. 2010) (citing
Acumed LLC v. Advanced Surgical Servs., Inc., 561 F.3d 199, 228
(3d Cir. 2009)) (“[S]peculation and conjecture may not defeat
summary judgment.”).
III.
CLAIMS AGAINST FICTITIOUS PARTIES
As an initial matter, Plaintiff has brought numerous causes of
action against several John Does, who are purportedly employees
of Atlantic City or Harrah’s, as well as several ABC
Corporations that are allegedly agents, servants and/or
employees of Harrah’s. Although “[u]se of John Doe defendants is
permissible in certain situations until reasonable discovery
permits the true defendants to be identified,” these parties
must be dismissed if such discovery does not reveal their proper
identities. See Blakeslee v. Clinton Cnty., 336 F. App’x 248,
250 (3d Cir. 2009) (affirming district court’s sua sponte
dismissal of fictitious parties that were not identified after
8
discovery) (citing Klingler v. Yamaha Motor Corp., U.S.A., 738
F. Supp. 898, 910 (E.D. Pa. 1990)); Scheetz v. Morning Call,
Inc., 130 F.R.D. 34, 37 (E.D. Pa 1990) (dismissing Doe
defendants after discovery yielded no identities). This may be
done upon motion of a party or the Court. Fed. R. Civ. P. 21
(“On motion or on its own, the court may at any time, on just
terms, add or drop a party.”). Here, Plaintiff has failed to
amend the Complaint or otherwise identify any of these
fictitious defendants despite the fact that discovery has now
closed. Nor does he contest that dismissal of these unnamed
parties is appropriate. (See Plaintiff’s Brief in Opposition to
Atlantic City (“Pl.’s Br. Opp. AC”), Dkt. Ent. 54, at 1.)
Accordingly, these parties shall be dismissed.
IV.
CLAIMS AGAINST ATLANTIC CITY, SYDNOR AND CLARK
Atlantic City and Officers Sydnor and Clark seek summary
judgment on Plaintiff’s § 1983 claims for municipal liability,
as well as the state law claims for malicious abuse of process,
assault and battery, and negligent or intentional infliction of
emotional distress.4 Plaintiff concedes that summary judgment as
to the state claims is appropriate (see Pl.’s Br. Opp. AC at 1),
and therefore Defendants’ motion is granted as to these claims.
4
These Defendants also moved with respect to Count Four against
the unnamed supervisory employees, which is dismissed in
accordance with the above. Defendants Sydnor and Clark do not
move for summary judgment on the excessive force and failure to
intervene claims (Counts One and Two).
9
With respect to the municipal liability claims, Defendants
argue that Plaintiff cannot demonstrate the existence of an
unconstitutional policy or custom, or that any such policy or
custom proximately caused Plaintiff’s injury. Atlantic City
further argues that Plaintiff has not produced any evidence of
any training deficiencies or that the City had knowledge that
officer training was inadequate.
1. Municipal Liability
Plaintiff seeks to hold Atlantic City liable under § 1983
pursuant to Monell v. Dep’t of Soc. Servs. of New York, 436 U.S.
658 (1978). Specifically, Plaintiff argues that Atlantic City
maintained an unlawful custom, practice, or policy of tolerating
its officers’ use of excessive force and failed to adequately
train its officers. It is axiomatic that a municipal entity
cannot be held liable under § 1983 on a theory of respondeat
superior solely because it employs a tortfeasor. Katzenmoyer v.
Camden Police Dep’t, No. 08-1995, 2012 WL 6691746, at *3 (D.N.J.
Dec. 21, 2012) (citing Monell, 436 U.S. at 691). Rather,
municipalities may only be held liable for injuries inflicted
pursuant to a government policy or custom. Beck v. City of
Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996). Policy is made when
a decisionmaker with final authority to establish municipal
policy with respect to the action issues an official
proclamation, policy, or edict. Andrews v. City of Phila., 895
10
F.2d 1469, 1480 (3d Cir. 1990). A course of conduct or practice
is considered custom when, though not authorized by law, such
practices are “so permanent and well-settled as to virtually
constitute law.” Id. Custom can also be established through
evidence of knowledge and acquiescence. Groark v. Timek, No. 121984, 2013 WL 6199187, at *17 (D.N.J. Nov. 27, 2013).
To impose municipal liability pursuant to a custom, a
plaintiff must show that the municipal action was taken with
deliberate indifference to its known or obvious consequences.
Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 398
(1997). This can be shown if it is obvious that a custom would
lead to constitutional violations. Berg v. Cnty. of Allegheny,
219 F.3d 261, 277 (3d Cir. 2000). A pattern or continued
adherence to an action that the municipality knows or should
know has failed to prevent tortious conduct by its police
officers can establish the requisite conscious disregard for the
consequences of its actions such that a municipality may be held
liable. Groark, 2013 WL 6199187, at *6 (citing Brown, 520 U.S.
at 407).
Plaintiff alleges that Atlantic City should be held liable
due to its custom of acquiescing in its officers’ use of
excessive force as demonstrated by its failure to conduct
adequate Internal Affairs (“IA”) investigations into excessive
force complaints against police officers. This is a recognized
11
theory of municipal liability. See Beck, 89 F.3d 966. In Beck,
the plaintiff offered evidence that the officer in question had
five prior complaints filed against him within five years, all
of which alleged similar misconduct by the officer. Id. at 973.
The plaintiff also presented annual reports showing a high rate
of excessive force complaints throughout the police department
and produced evidence that the internal investigation process
was shallow and flawed. Id. at 973-74. The Third Circuit
determined that the plaintiff had presented sufficient evidence
to permit a jury to infer that the City “knew about and
acquiesced in a custom tolerating the tacit use of excessive
force by its police officers.” Id. at 976.
Similarly, Plaintiff here has presented sufficient evidence
to demonstrate genuine issues of material fact regarding whether
Atlantic City has a custom of acquiescing in the use of
excessive force by its officers. Specifically, Plaintiff
presented evidence that from 2005 to 2009,5 426 excessive force
complaints were lodged with IA, but only 4 were sustained. (Ex.
5
Plaintiff also offers statistics for 2010, showing that only 1
of the 166 excessive force complaints was sustained. (Ex. H to
Pl.’s Br. Opp.) While subsequent complaints or violations
cannot be used to demonstrate knowledge of an unconstitutional
policy at the time of plaintiff’s incident, they are relevant
to show a continuous pattern to support a finding of custom or
policy. See Groark 2013 WL 6199187, at *17 (citing Beck, 89
F.3d at 972).
12
H to Pl.’s Br. Opp. AC.)6 There were seven excessive force
complaints against Sydnor and two against Clark during the same
period. (Ex. L to Pl.’s Br. Opp. AC.)7 The written complaints and
subsequent IA investigation reports demonstrate that many of the
complaints are similar in nature to the instant matter in that
the complainants allege being grabbed by Sydnor, thrown or taken
to the ground, and then assaulted or punched while on the
ground.8 (Ex. M to Pl.’s Br. Opp. AC); cf. Troso v. Atlantic
City, No. 10-1566, 2013 WL 6070028, at
*1 (D.N.J. Nov. 15,
2013) (granting motion in limine barring the use of IA reports
because Plaintiff did not offer “the additional evidence needed
to properly bolster or contextualize the [IA] Summary Reports
and Summaries of the Use of Force Reports” and provided “no
6
The court notes that statistical evidence alone, “isolated and
without further context,” generally “may not justify a finding
that a municipal policy or custom authorizes or condones the
unconstitutional acts of police officers.” Katzenmoyer, 2012 WL
6691746, at *4 (quoting Merman v. City of Camden, 824 F. Supp.
2d 581, 591 (D.N.J. 2010)). However, a showing that the officer
whom a plaintiff accuses of using excessive force has been the
subject of multiple similar complaints, as the Plaintiff here
has done, can be sufficient. Groark 2013 WL 6199187, at *6
(citing Katzenmoyer, 2012 WL 6691746, at *4).
7
See Worrall v. City of Atlantic City, No. 11-3750, 2013 WL
4500583, at *4 (D.N.J. Aug. 20, 2013) (“Indeed, relevant Third
Circuit precedent indicates multiple complaints against just
one officer may suffice to establish a custom.”).
8
Plaintiff also points to a complaint made by another police
officer against Officer Sydnor for aggravated sexual assault.
As the circumstances surrounding that incident are dissimilar
to the allegations here, the Court does not consider that
complaint.
13
details regarding [the incident in question] or the incidents
reflected in the Use of Force Reports”). None of these
complaints, however, were sustained. (Ex. L to Pl.’s Br. Opp.
AC.) Chief Mooney reviewed many of the investigative reports
involving Officer Sydnor before forwarding them to the
prosecutor’s office. (See Ex. M to Pl.’s Br. Opp. AC at RR
IA220, 765, 1041.) In addition, Chief Mooney received annual
Early Warning System memoranda reporting which officers received
three or more IA complaints during a calendar year. (Ex. O. to
Pl.’s Br. Opp. AC.) Several of these reports cited Officer
Sydnor. (Id.)9 As in Beck, a reasonable jury could infer from the
narrow time period and similar allegations “that the Chief of
Police knew, or should have known, of [Officer Sydnor’s]
propensity for violence when making arrests.” Beck, 89 F.3d at
973; Garcia v. City of Newark, No. 08-1725, 2011 WL 689616, at
*4 (D.N.J. Feb. 16, 2011) (denying summary judgment for police
department based on evidence of written civilian complaints
against individual defendant police officers).
9
The Early Warning System reviews all IA complaints made against
an officer, not just excessive force complaints. (Ex. O to Pl.’s
Br. Opp. AC.) As such, Sydnor triggered the Early Warning System
review for IA complaints that did not involve the use of
excessive force. Also of note, while Mooney testified that, at
some point, he thought the reports were issued quarterly (Ex. E
(“Mooney Dep.”) to Pl.’s Br. Opp. AC at 51:24-54:10), the
reports in the record indicate the system tracked complaints
filed in a calendar year. (Ex. O to Pl.’s Br. Opp. AC.)
14
Additionally, Plaintiff presented evidence from which a
reasonable jury could infer that the IA investigation process is
designed to insulate the accused officers from penalty. Captain
Timothy J. Friel, a former IA investigator, admitted that it is
not “regular practice” for investigators to review an officer’s
prior and subsequent history when evaluating civilian
complaints, despite the Attorney General (“AG”) guidelines. (Ex.
G (“Friel Dep.”) to Pl.’s Br. Opp. AC at 19:11-20:16); see Beck
89 F.3d at 973 (finding issue of fact as to the sufficiency of
investigations when complaints were “insulated from other prior
and similar complaints and treated in a vacuum”). A review of
the IA investigation reports supports Friel’s testimony.
Furthermore, these reports reflect that the complainant was not
always interviewed, officers were asked only to provide written
statements (which appear to be copied verbatim from their police
reports), and officer statements seem to be given much greater
weight than civilian statements. (Ex. M to Pl.’s Br. Opp. AC.)10
From this evidence, a reasonable jury could find that the IA
investigations were insufficient or inadequate and that Atlantic
City exhibited deliberate indifference to the risk that its
10
In the sampling of investigation reports, a complainant who
used a phone to take pictures of the events was described as
“idiotic” for doing so. (Ex. M to Pl.’s Br. Opp. AC at RR
IA764-22.) Another complainant was discredited in part for
stating he was struck in the head while the medical reports
indicated an injury to his eye. (Id. at RR IA1040-4.)
15
officers would use excessive force in a manner similar to that
alleged here. Merman, 824 F. Supp. 2d at 592 (finding a genuine
issue of fact regarding the sufficiency of IA investigations
pursuant to Beck); Monaco v. City of Camden, No. 04-2406, 2008
WL 408423, at *14 (D.N.J. Feb. 13, 2008) (finding IA
investigations were suspect due to reliance only on written
statements and conclusions of “not sustained” rather than
following up on indeterminate information). Moreover, “[t]he
evidence presented is sufficient to establish that Atlantic City
was the ‘moving force’ behind Plaintiff's injuries due to its
failure to act despite prior notice.” Worrall, 2013 WL 4500583,
at *5.
Atlantic City’s attempts to distinguish this case from Beck
and its progeny are unpersuasive. Atlantic City first argues
that “Plaintiff’s involvement with law enforcement was a result
of his intoxication and aggressive behavior” and therefore any
purported custom cannot as a matter of law be the proximate
cause of Plaintiff’s injury. (Atlantic City’s Brief (“AC’s
Br.”), Dkt. Ent. 49, at 15.) This position—for which Atlantic
City cites no authority—is without merit at this stage of the
proceedings. Although a jury may readily find that Plaintiff’s
conduct was the proximate cause of his injuries and not a policy
or custom of Atlantic City, that is a question for the jury as
discussed herein.
16
Atlantic City next argues that there is no evidence that
any written IA policies were violated. Even if this were a
prerequisite,11 Plaintiff has pointed to sufficient evidence from
which a juror could infer the IA process was inadequate. For
instance, the AG Guidelines require review of an employee’s
complaint history each time a new complaint is made, but Captain
Friel testified that the department was not following that
guideline “on a regular basis.” (Friel Dep. at 20:9-16.)
Finally, Atlantic City argues that Plaintiff’s failure to
provide an expert report on police procedure or statistical
analysis of IA complaints is fatal to his claims. However, while
expert testimony can be required in some cases, the issues
presented here are not beyond the ken of an average juror “to
assess what a reasonable municipal policymaker would have done
with the information in this case”. Worrall, 2013 WL 4500583, at
*5 n.4 (citing Beck, 89 F.3d at 975-76).
Plaintiff also asserts a failure to train claim. A
municipality can be liable in limited circumstances for failing
to train employees. City of Canton v. Harris, 489 U.S. 378, 388
(1989). The failure to train must amount to “deliberate
11
See St. Louis v. Praprotnik, 485 U.S. 112, 130-31 (1988)
(discussing that a persistent custom can exist even if it is
contrary to other regulations); see also Merman, 824 F. Supp.
2d at 592 (evidence that IA investigation insulated officers
from liability was enough to defeat summary judgment without
evidence of written policy violations).
17
indifference to the rights of persons with whom those employees
will come into contact.” Connick v. Thompson, 131 S.Ct. 1350,
1359 (2011). Deliberate indifference requires that the defendant
was on notice that, absent additional specific training, it was
highly predictable that the individual offices would use
excessive force. Troso v. City of Atlantic City, No. 10-1566,
2013 WL 1314738, at *9 (D.N.J. March 28, 2013) (internal
quotations omitted). This can be demonstrated through a pattern
of similar violations that would establish that the “policy of
inaction was the functional equivalent of a decision [by the
municipality] to violate the Constitution.” May v. Sanna, No.
09-3253, 2012 WL 1067686, at *12 (D.N.J. March 29, 2012)
(quoting Connick, 131 S.Ct. at 1365).
As discussed above, there is a pattern of complaints
against Sydnor alleging similar misconduct in similar
circumstances, as well as a high number of excessive force
complaints against the Department as a whole. Mooney stated that
he was in charge of all IA investigations, was in charge of
setting IA procedures, and signed off on a number of the reports
including many reports involving Officer Sydnor. (Mooney Dep. at
12:17-13:19, 32:5-24, 63:10-20.) Yet, despite the number of
excessive force complaints asserted against Sydnor, he testified
that no one from the Police Department has spoken to him about
the complaints, suggested additional training, or sent him for
18
re-training. (Ex. P (“Sydnor Dep.”) to Pl. Br. Opp. AC at 88:1289:2.) From this evidence, it is reasonable to infer that
Atlantic City was on notice that without additional training, it
was highly predictable that officers would continue to use
excessive force. See Troso, 2013 WL 1314738, at *9 n.10.
For these reasons, Defendants’ motion for summary judgment
on Plaintiff’s Monell claims will be denied.
2. Prospective Relief
In addition to seeking damages, Plaintiff also seeks
prospective injunctive relief against Atlantic City and its
officers. He has styled this request as a separate count of the
Complaint. Atlantic City has moved for summary judgment on this
separate count on grounds that it is rendered moot due to
Plaintiff’s failure to produce sufficient evidence in support of
his Monell claim. This argument must be rejected in light of the
Court’s decision above.
Although the parties did not raise this argument, Plaintiff
must demonstrate standing for each form of relief sought.
Friends of the Earth, Inc. v. Laidlaw Envt’l Servs. (TOC), Inc.,
528 U.S. 167, 185 (2000). Equitable remedies are unavailable
absent a showing of irreparable harm, which cannot be met
without a showing of a real or immediate threat that the
plaintiff will be wronged again. City of Los Angeles v. Lyons,
461 U.S. 95, 111 (1983).
19
Here, Plaintiff’s claims for injunctive relief are based
entirely on past harm. He has made no showing of any likelihood
of harm in the future. This alleged harm lacks the “high degree
of immediacy required to constitute injury in fact and provide
Article III standing” for prospective relief. Pa. Prison Soc. v.
Cortes, 508 F.3d 156, 166 (3d Cir. 2007) (citing Defenders of
Wildlife v. Lujan, 504 U.S. 555 (1992)). Without a showing of
likelihood that he himself would be harmed again by Defendants
in the near future, Plaintiff is “no more entitled to an
injunction that any other citizen.” Lundy v. Hochberg, 91
F. Appx. 739, 743 (3d Cir. 2003). Accordingly, all claims for
injunctive relief must be dismissed.12 See Blakeney v. Marsico,
340 F. App’x 778 (3d Cir. 2009) (affirming District Court’s sua
sponte dismissal of complaint for lack of Article III standing
for prospective injunctive relief); Pa. Prison Soc., 508 F.3d at
169 (remanding for determination of standing for injunctive
relief because issue was not raised below).
V.
CLAIMS AGAINST MOONEY
Defendant Mooney also moves for summary judgment on Count
Five, which seeks to hold Mooney liable for implementing a
policy, practice or custom of tolerating excessive force by the
police officers and, inter alia, implementing and/or conducting
12
Additionally, the alleged injury will not go unrecompensed, as
there is an adequate remedy at law in the form of damages. See
Lyons, 461 U.S. at 111.
20
superficial and shallow IA processes, failing to employ
corrective or disciplinary measures despite knowledge of officer
misconduct, and otherwise failing to train, supervise, control
and discipline officers. (Compl. at Count Five.) Defendant
Mooney first argues that it is entirely unclear from the
Complaint whether Plaintiff is asserting official or individual
capacity claims against him. He further contends that the claims
should be treated only as official capacity claims because they
are based upon allegations of “policy making conduct which can
only be described as occurring in Chief Mooney’s official
capacity.” (Mooney’s Br., Dkt. Ent. 49, at 11). But this is not
the correct standard. See Cincerella v. Egg Harbor Twp. Police
Dep’t, No. 06-1183, 2009 WL 792489, at *12 n.4 (D.N.J. March 23,
2009). It has long been recognized that State officials may be
sued in their individual capacity for their official conduct.
See, e.g., Hafer v. Melo, 502 U.S. 21, 25 (1991). The cause of
action as alleged is identical to the Monell claim against
Atlantic City. (Compl. at Count Five). In fact, in response to
Defendant’s arguments, Plaintiff states only that there is
sufficient evidence “to visit Monell liability on Defendants
Atlantic City and Chief of Police Mooney” and provides no
clarification as to the nature of his claims.13 (Pl.’s Br. Opp.
13
The Court also notes that Defendant Mooney failed to submit a
reply in support of his motion for summary judgment.
21
AC at 21.) Looking to the Complaint, however, Plaintiff alleges
that “[a]ll Defendants are named in their individual and
official capacities.” (See Compl. at 5, ¶ 16.) As such, the
Court will address both types of claims.
1. Official Capacity Claims
To the extent that Plaintiff brings suit against Defendant
Mooney in his official capacity as the Chief of Police, summary
judgment must be granted and the claims dismissed. In addressing
the distinction between official capacity and individual
capacity suits, the Supreme Court explained that “officialcapacity suits generally represent only another way of pleading
an action against an entity of which an officer is an agent.”
See Hafer, 502 U.S. at 25. A suit against the Chief of Police in
his official capacity is really a claim against the police
department and, in turn, the municipality. A municipal
department and the municipality itself are not deemed separate
legal entities under the law, and therefore cannot both be named
as parties to an action. See, e.g., Bonenburger v. Plymouth
Twp., 132 F.3d 20, 25 n.4 (3d Cir. 1997); Adams v. City of
Camden, No. 98-5186, 2006 WL 42236, at *7 n.4 (D.N.J. Jan. 6,
2006) (“...police departments cannot be sued in conjunction with
municipalities, because the police department is merely an
administrative arm of the local municipality, and is not a
separate judicial entity.”). For this reason, courts have held
22
that an officer sued in an official capacity cannot be a named
party in an action asserting identical claims against the
municipality. See, e.g., Duran v. Warner, No. 07-5994, 2013 WL
4483518, at *6 (D.N.J. Aug. 20, 2013) (dismissing official
capacity claims against Chief of Police where identical claims
were asserted against the municipality); Owens v. City of
Atlantic City, No. 05-3132, 2008 U.S. Dist. LEXIS 47584, at *3940 (D.N.J. June 6, 2008) (same).
Because Plaintiff asserts identical § 1983 claims against
Atlantic City, summary judgment is appropriate as to any
official-capacity claims against Defendant Mooney.
2. Individual Capacity Claims
It is clear that “‘[g]overnment officials may not be held
liable for the unconstitutional conduct of their subordinates
under a theory of respondeat superior.’” Cruz v. Cnty. of
Bergen, No. 10-3322, 2011 WL 1211396, at *2 (D.N.J. March 29,
2011) (citation omitted). Rather, a government official may only
be liable for his own misconduct. Id. Thus, a supervisor may be
liable in his individual capacity if (1) as a policymaker, he
“with deliberate indifference to the consequences, established
and maintained a policy, practice or custom which directly
caused [the] constitutional harm,” A.M. ex rel. J.M.K. v.
Luzerne Cnty. Juvenile Detention Ctr., 372 F. 3d 572, 586 (3d
Cir. 2004) (quoting Stoneking v. Bradford Area Sch. Dist., 882
23
F.2d 720, 725 (3d Cir. 1989)), or (2) he “participated in
violating the plaintiff’s rights, directed others to violate
them, or, as the person in charge, had knowledge of and
acquiesced in his subordinates’ violations.” Id. (citing Baker
v. Monroe Twp., 50 F.3d 1186, 1190–91 (3d Cir. 1995)). Moreover,
to impose liability under the knowledge and acquiescence theory,
there must be “both (1) contemporaneous knowledge of the
offending incident or knowledge of a prior pattern of similar
incidents, and (2) circumstances under which the supervisor's
assertion could be found to have communicated a message of
approval to the offending subordinate.” Chinchello v. Fenton,
805 F.2d 126, 133 (3d Cir. 1986); Moriarty v. de LaSalle, No.
12–3013 (RMB), 2012 WL 5199211, at *5, *6 (D.N.J. Oct. 19,
2012). “Particularly after Iqbal, the connection between the
supervisor’s directions and the constitutional deprivation must
be sufficient to demonstrate a plausible nexus or affirmative
link between the directions and the specific deprivation of
constitutional rights at issue.” Dare v. Twp. of Hamilton, No.
13-1636, 2013 WL 6080440, at *7 (D.N.J. Nov. 18, 2013) (quoting
Santiago v. Warminster Twp., 629 F.3d 121, 127 n.5 (3d Cir.
2010)).
Plaintiff appears to argue that Mooney should be held
individually liable under a similar theory as Atlantic City for
Mooney’s role as a policymaker. Defendant, on the other hand,
24
suggests that Mooney cannot be held liable as a policymaker
because “[p]ursuant to N.J.S.A. § 40A:14-118, at all times Chief
Mooney was directly responsible and answered to the ‘appropriate
authority’ for the day to day operations of the police
department and his operation thereof was made pursuant to
policies established by the ‘appropriate authority.’” (Mooney’s
Br. at 18.) However, Defendant Mooney testified that he oversaw
and was responsible for IA investigations, received early
warning reports of repeated IA complaints, and, as Chief of
Police, had the authority to create policies addressing the
procedures applicable to IA investigations. (Mooney Dep. at
12:17-22, 54:21-56:16, 31:23-32:24, 63:6-20.) In addition,
Mooney clearly had knowledge of the number of excessive force
complaints against Officer Sydnor as he reviewed several reports
before he forwarded them to the prosecutor’s office. (See Ex. M
to Pl.’s Br. Opp. AC at RR IA220, 765, 1041) As discussed above,
a juror could find the evidence sufficient to show that the IA
investigative process was designed to shield officers from
liability and therefore created an atmosphere in which the use
of excessive force was tolerated, and knowledge as to the number
of complaints could permit an inference of deliberate
indifference. Thus, the evidence presents a question of fact as
to whether or not Defendant Mooney can be held liable as a
25
policymaker for the police department’s purported custom of
tacitly approving the use of excessive force.
In addition, “[a] supervising authority may be liable under
§ 1983 for failing to train police officers when the failure to
train demonstrates deliberate indifference to the constitutional
rights of those with whom the officers may come into contact.”
Gilles v. Davis, 427 F.3d 197, 207 n. 7 (3d Cir.2005) (citing
City of Canton v. Harris, 489 U.S. 378, 388, 109 S.Ct. 1197, 103
L.Ed.2d 412 (1989)). A plaintiff must (1) identify failures to
provide specific training that have a causal nexus to the
alleged injury; and (2) demonstrate that the absence of this
training can reasonably be said to reflect deliberate
indifference to whether constitutional deprivations occur.
Blacknail v. Citarella, 168 F. App’x 489, 492 (3d Cir. 2006).
As discussed above, Mooney was ultimately responsible for
IA investigations and personally reviewed and approved many of
the IA reports in the record. As such, he had actual knowledge
of the number of excessive force complaints, those against
Sydnor in particular. The number of complaints was never
discussed with Sydnor nor was additional training on the use of
force suggested. From this, it is reasonable to conclude that
Mooney knew of training deficiencies in the use of force and was
deliberately indifferent as to whether any constitutional
26
deprivations continued to occur. Thus, summary judgment will be
denied.
Defendant also argues that even if Plaintiff has stated a
claim against Defendant Mooney in his individual capacity,
Defendant is entitled to qualified immunity. “The doctrine of
qualified immunity protects government officials from liability
for civil damages insofar as 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 (2009) (internal quotations omitted).
“The Supreme Court has established a two-part analysis
that governs whether a government official is entitled
to qualified immunity. . . . The first question in the
Saucier analysis asks whether the official's conduct
violated a constitutional or federal right. . . . The
second question asks whether the right at issue was
“clearly established.” . . . To be clearly
established, “[t]he contours of the right must be
sufficiently clear that a reasonable official would
understand that what he is doing violates that right.”
Ray v. Twp. of Warren, 626 F.3d 170, 173-74 (3d Cir. 2010)
(citations omitted). Defendant cites several dated cases, which
he contends “stand for the proposition that, under the context
of police action, an official’s mere inaction in the face of
subordinate officers [sic] unconstitutional actions clearly does
not suffice to render the official individually liable.”
(Mooney’s Br. at 20 (citing inter alia Rizzo v. Goode, 423 U.S.
362 (1976)).) It is unclear to this Court how these cases would
27
support a finding of qualified immunity here. To the extent that
Defendant wishes to proceed on such a theory, he shall submit
supplemental briefing on this issue within thirty (30) days of
this Opinion.
VI.
CLAIMS AGAINST HARRAH’S AND WATFORD
Defendants Harrah’s and Watford move for summary judgment
on claims for assault and battery (Count Seven), negligent
infliction of emotional distress (Count Eight),14 negligent
hiring, training, and supervision (Count Nine), and agency
(Count Ten). Plaintiff failed to respond to Defendants’
arguments regarding negligent infliction of emotional distress
or negligent hiring. As such, the Court will grant summary
judgment as unopposed as to those claims. The remaining counts
are addressed in turn.
1. Negligent Supervision and Training (Count Nine)
To defeat summary judgment of a negligent supervision
claim, a plaintiff must present evidence to support three
14
Plaintiff has titled this Count “negligent/intentional
infliction of emotional distress.” (Compl. at Count Eight.)
Defendants, however, appear to have interpreted this as
asserting only a negligent infliction of emotional distress
claim, which Plaintiff does not contest. In any event, the
record does not appear to support an intentional infliction of
emotional distress claim. See Taylor v. Metzger, 706 A.2d 685,
703 (N.J. 1998) (discussing elements of an intentional
infliction of emotional distress claim and requiring conduct to
be “so outrageous in character, and so extreme in degree, as to
go beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community”).
28
fundamental requirements. First, the employer must have known or
had reason to know that the employee exhibited dangerous
characteristics. Carmichael v. Carmichael, No. 13-2409, 2014 WL
347804, at *4 (D.N.J. Jan. 31, 2014) (citing Smith v. Harrah’s
Casino Resort of Atlantic City, No. L-0827-11, 2013 WL 6508406,
at *3 (N.J. Super. Ct. App. Div. Dec. 13, 2013)). Second, there
must be a reasonable foreseeability of harm to others. Brijall
v. Harrah’s Atlantic City, 905 F. Supp. 2d 617, 620 (D.N.J.
2012). Third, the negligent supervision must be the proximate
cause of the alleged injury. Id.
In addition, liability can be imposed on an employer who
fails to properly train its employees. Tobia v. Cooper Hosp.
Univ. Med. Ctr., 643 A.2d 1, 6 (N.J. 1994). Rooted in
negligence, it is a separate and distinct claim from respondeat
superior and covers acts outside the scope of employment. Hoag
v. Brown, 935 A.2d 1218, 1230 (N.J. Super. Ct. App. Div. 2007).
A plaintiff must demonstrate that (1) an employer had a duty to
train its employees; (2) the employer failed to properly train
its employees; and, (3) this failure was the proximate cause of
the injury. Stoby v. Egg Harbor Twp., 754 F. Supp. 2d 716, 721
(D.N.J. 2010).
Here, Plaintiff has produced no evidence beyond the
incident in question to support a theory of negligent
supervision. That Harrah’s employees were violent on this date,
29
however is not sufficient to show that Harrah’s knew or should
have known of any “unfitness or dangerous characteristics” prior
to this incident. See Di Cosala v. Kay, 450 A.2d 508, 516 (N.J.
1982). Plaintiff has provided no criminal histories, personnel
files, employment records, or other evidence to support this
claim. Plaintiff points only to one prior incident that involved
only one of the Harrah’s employees named herein (Rivera), which
led to a separate lawsuit filed by a different plaintiff. This
one other action, which has since been sent to mediation and
dismissed, is insufficient to show knowledge of violent
propensities of these employees. Absent any facts in the record
that indicate Harrah’s knew or should have known about any
violent proclivities of the employees involved in the March 29,
2009 incident, summary judgment must be granted on the negligent
supervision claim.
Similarly, with respect to the negligent training claim,
Plaintiff has provided no evidence of training insufficiencies
or established a causal link between the training and his
injuries. Harrah’s has provided evidence of its training program
which teaches the use of defensive techniques and testimony
which supports that all officers underwent this training
program. (Exs. E & F to Harrah’s Br.) Plaintiff points only to
the security footage of the March 29, 2009 incident, which he
alleges shows Harrah’s employees using excessive force contrary
30
to Harrah’s training manuals. In the absence of any additional
evidence such as expert testimony on the inadequacy of Harrah’s
training programs or causation, this incident cannot sustain a
claim of negligent training. See Brijall, 905 F. Supp. 2d at 621
(noting a lack of expert testimony and stating video
surveillance, without more, cannot sustain claim for negligent
training or supervision). As such, summary judgment will be
granted.
2. Assault and Battery Against Watford (Count Seven)
Under New Jersey law, a person is subject to liability for
battery if “he acts intending to cause a harmful or offensive
contact . . . or an imminent apprehension of such contact’ and a
‘harmful’ or ‘offensive’ contact ‘directly or indirectly’
results.” Russo v. Ryerson, No. 01-4458, 2006 WL 477006, at *36
(D.N.J. Feb. 28, 2006) (quoting Restatement (Second) of Torts §§
13, 18 (1965)). An assault can occur in the absence of actual
contact if the victim is placed in imminent apprehension of
harmful contact. Id. (citing Restatement (Second) of Torts § 21
(1965)). Self-defense and defense of others are affirmative
defenses that can shield a defendant from liability if proven.
See N.J. Model Civil Jury Charge § 3.10 (1984).
Both parties acknowledge that Harrah’s security officers
did in fact restrain Plaintiff and the video surveillance bears
this out. (Ex. H to Harrah’s Br., Dkt. Ent. 52.) Harrah’s and
31
Watford argue that this contact was justified both in selfdefense and for the defense of other Harrah’s patrons because
Plaintiff was agitated and unruly. Plaintiff maintains this
force was unnecessary and relies heavily on the security
surveillance footage. While the video surveillance is not as
favorable to Plaintiff as he portrays, whether or not the
employees were justified in restraining Plaintiff in the manner
in which they did presents a factual issue to be resolved by the
jury.15
Watford also argues there is insufficient evidence to show
his involvement in the alleged assault and battery, but he is
mentioned by name in Harrah’s Incident Report as being forced to
restrain Plaintiff. (See, e.g., Ex. D (“Incident Report”) to
Harrah’s Br.) Therefore, viewing the facts in a light most
favorable to Plaintiff, there is an issue of fact as to
Watford’s involvement.
3. Agency Against Harrah’s (Count Ten)
Plaintiff seeks to hold Harrah’s liable for the alleged
assault and battery by its employees. An employer is liable
under a theory of respondeat superior for torts committed by
employees within the scope of their employment. New Jersey
15
Furthermore, courts have recognized that a casino may exclude
disorderly patrons from its premises. Simone v. Golden Nugget
Hotel & Casino, 844 F.2d 1031, 1035 (3d Cir. 1988) (quoting
Uston v. Resorts Int’l Hotel, Inc., 445 A.2d 370, 375 (N.J.
1982)).
32
courts consider four factors in determining whether an
employee’s conduct is within the scope of his employment:
(1) whether the act is of a kind the employee is employed to
perform; (2) whether the act occurs substantially within the
authorized time limits; (3) whether the act is actuated, at
least in part, by a purpose to serve the master; and (4) if
force is intentionally used by the servant against another,
whether the use of force is not “unexpectable” by the master.
Davis v. Devereux Found., 37 A.3d 469, 489-90 (N.J. 2012)
(citing Restatement (Second) of Agency § 228 (1958)). Moreover,
while intentional torts generally fall outside the scope of
employment, courts have found employees’ acts to “be within the
scope of their employment when their attempts to enforce their
employer’s rules instigated violence.” Brijall, 905 F. Supp. 2d
at 622. Thus, when an employee’s responsibilities include the
enforcement of the employer’s rules, the conduct is generally
attributable, in whole or in part, to the employee’s attempt to
serve the employer. Davis, 37 A.3d at 469.
Here, Harrah’s argues that if its security personnel
committed an assault and battery, the employees must have been
acting outside the scope of their employment because they were
authorized only to use appropriate defensive techniques in
carrying out their duties. However, even if the alleged level of
force was strictly unauthorized by Harrah’s policies, these
33
employees were responsible for the enforcement of the employer’s
rules and the removal of unruly patrons. Brijall, 905 F. Supp.
2d at 623 (genuine issue of fact remained as to whether casino
security officer was within scope of employment in committing
battery). The employees’ attempts to perform these duties seem
to have prompted the altercation. Id. Therefore, “the fight ‘was
certainly related to’ [the security officers’] employment and a
jury question is presented as to whether the act was within the
scope of [the security officers’] employment.” Id.; Schisano v.
Brickseal Refactory Co., 162 A.2d 904 (N.J. Super. Ct. 1960)
(finding issue of fact as to whether a battery committed by the
employee during a parking dispute with a customer was within the
scope of employment where employee was responsible for keeping
unauthorized cars out of the lot). Accordingly, Harrah’s motion
for summary judgment on Count Ten must be denied.
VI. CONCLUSION
For the reasons outlined above, summary judgment will be
GRANTED as to Counts Three, Four, Six, Eight, and Nine in their
entirety, and DENIED as to Counts Five and Ten. In addition,
summary judgment is GRANTED as unopposed with respect to the
Count Seven claims against Defendants Sydnor and Clark but
DENIED with respect to the Count Seven claim against Defendant
Watford. All fictitious parties are hereby DISMISSED. An
appropriate order will be issued herewith.
34
Date: March 19, 2014
s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE
35
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