CORDIAL v. ATLANTIC CITY et al

Filing 85

OPINION. Signed by Judge Renee Marie Bumb on 6/2/2014. (dmr)

NOT FOR PUBLICATION

[Dkt. Ent. 73]

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. Mallon
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

1

Bumb, UNITED STATES DISTRICT JUDGE:
This matter comes before the Court upon a motion for
reconsideration filed by Defendant Chief of Police John J.
Mooney III (“Mooney”), requesting that the Court reconsider its
partial denial of Mooney’s Motion for Summary Judgment.
PROCEDURAL HISTORY
On March 15, 2011, Plaintiff Jason Cordial (“Plaintiff”)
filed a complaint alleging claims pursuant to 42 U.S.C. § 1983
against several defendants. 1 In relevant part, the Complaint
alleged that Mooney, as Chief of Police, was responsible for
promulgating an unlawful custom, policy, or practice of
conducting superficial Internal Affairs investigations into
civilian complaints, which created an atmosphere of tolerance of
police misconduct. (See Dkt. Ent. 1 (“Compl.”) at 9; Dkt. Ent.
54 (“Pl.’s Br.”) at 19-20.) On August 23, 2013, Mooney filed a
Motion for Summary Judgment on all claims against him. (Dkt.
Ent. 49.) Thereafter, on March 19, 2014, this Court entered an
Opinion and Order denying Mooney’s motion in part and granting
it in part. (Dkt. Ents. 68, 69.) Specifically, the Court granted
summary judgment as to all claims against Mooney in his official
capacity, but denied summary judgment as to the individual
capacity claims based on unlawful custom, practice, or policy
1

For a complete overview of the facts underlying this
litigation, see Cordial v. Atlantic City, No. 11-1457, 2014 WL
1095584, at *1-2 (D.N.J. March 19, 2014).
2

and failure to train. Cordial v. Atlantic City, No. 11-1457,
2014 WL 1095584, at *9-11 (D.N.J. March 19, 2014). On April 2,
2014, Mooney filed the instant Motion for Reconsideration. (Dkt.
Ent. 73.)
LEGAL STANDARD
Motions for reconsideration are governed by Local Civil
Rule 7.1(i) and are considered “extremely limited procedural
vehicle(s).” U.S. v. Pechiney Plastics Packaging, Inc., No. 095692, 2012 WL 3527721, at *3 (D.N.J. Aug. 14, 2012) (quoting
Resorts Int’l v. Greate Bay Hotel & Casino, Inc., 830 F. Supp.
826, 831 (D.N.J. 1992)). The purpose is to correct manifest
errors of law or fact or to present newly discovered evidence.
Max’s Seafood Café v. Quinteros, 176 F.3d 669, 677 (3d Cir.
1999) (internal quotations omitted). A party seeking
reconsideration must show at least one of the following grounds:
(1) an intervening change in the controlling law; (2) the
availability of new evidence that was not available when the
court granted the motion for summary judgment; or (3) the need
to correct a clear error of law or fact or to prevent manifest
injustice. Id. (citing North River Ins. Co. v. CIGNA Reinsurance
Co., 52 F.3d 1194, 1218 (3d Cir. 1995)). Rule 7.1(i) states:
Unless otherwise provided by statute or rule ...,
a motion for reconsideration shall be served and
filed within 14 days after the entry of the order
or judgment on the original motion by the Judge
or Magistrate Judge. A brief setting forth
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concisely
which the
Judge has
Notice of

the matter or controlling decisions
party believes the Judge or Magistrate
overlooked shall be filed with the
Motion.

The Rule is clear that the Court need not look to matters
which were not originally presented, only those that may have
been “overlooked.” See Florham Park Chevron, Inc. v. Cheron
U.S.A., Inc., 680 F.Supp. 159, 162 (D.N.J. 1988). As such,
“except in cases where there is a need to correct a clear error
or manifest injustice, ‘[o]nly dispositive factual matters and
controlling decisions of law which were presented to the court
but not considered on the original motion may be the subject of
a motion for reconsideration.” Pechiney, 2012 WL 3527721, at *3
(quoting Guinta v. Accenture, LLP, No. 08-3776, 2009 WL 301920,
at *5 (D.N.J. Jan. 23, 2009)).
ANALYSIS
Mooney argues that reconsideration is necessary to correct
the Court’s clear error of law or fact and to prevent manifest
injustice. (Dkt. Ent. 73 (“Mooney’s Br.”) at 3.) Specifically,
Mooney argues: (1) Plaintiff’s Complaint fails to state a claim
against him; (2) as a matter of law, Mooney cannot be deemed a
policymaker; (3) the legal precedent relied upon by the Court is
questionable in light of Ashcroft v. Iqbal, 556 U.S. 662 (2009);
and (4) even if he can be held liable, he is entitled to
qualified immunity. The Court will address each point in turn.

4

A.

Plaintiff’s Complaint Fails to Allege a Claim
The claims for relief in the Complaint as to Mooney are

1) promulgation of unlawful policy, practice, or custom; and
2) failure to train. Mooney asserts that the Court, in deciding
the motion for summary judgment, overlooked the deficient
factual allegations in the Complaint itself, stating “[a]s a
preliminary matter, Plaintiff’s Complaint does not allege
sufficient facts against Mooney to support the apparent Monell
supervisor claim against him . . . .” (Mooney’s Br. at 4.)
Mooney further states that the Complaint does not allege that
Mooney was the final policymaker for the City, which makes the
claim against him deficient. (Id.)
While a lack of factual allegations in the complaint may be
an issue on a motion to dismiss, which Mooney did not file, a
court deciding a motion for summary judgment looks beyond the
pleadings to the entire record for factual support for a
plaintiff’s claims. See Fed. R. Civ. P. 56(c) (a party asserting
a fact is disputed must support the assertion by “citing to
particular parts of materials in the record, including
depositions, documents, electronically stored information,
affidavits or declarations, stipulations . . . admissions,
interrogatory answers, or other materials . . .”). As discussed
in the initial Opinion, the record as a whole contains
sufficient evidence to sustain the claims against Mooney. See
5

Cordial, 2014 WL 1095584, at *5-6, 10-11. Accordingly, this
argument does not provide a basis for reconsideration of the
Court’s initial decision.
B.

Mooney Was Not a Policymaker
Mooney also moves for reconsideration on the basis that, as

a matter of law, he cannot be deemed a policymaker for Atlantic
City. To be considered a policymaker for purposes of § 1983, the
official must have final discretion to make a decision or take
an action. Andrews v. Philadelphia, 895 F.2d 1649, 1481 (3d Cir.
1990). This is determined by looking to state law. St. Louis v.
Praprotnik, 485 U.S. 112, 124 (1988). The official does not need
complete municipal policymaking authority, only final discretion
as to the action or decision in question. See Andrews, 895 F.2d
at 1481 (finding police commissioner was a policymaker as he
promulgated and disseminated training manuals regarding
harassment, established a division to manage discrimination
issues, and reviewed the relevant Internal Affairs report);
Santiago v. Vineland, 107 F. Supp. 2d 512, 540 (D.N.J. 2000)
(examining whether police chief had final authority to hire and
fire in case challenging discriminatory hiring practices).
In support of his argument, Mooney once again refers the
Court to N.J. Stat. Ann. § 40A:14-118, which governs the
establishment of a municipal police force. In pertinent part,
the statute reads:
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Any such ordinance, or rules and regulations,
shall provide that the chief of police, if such
position is established, shall be the head of the
police force and that he shall be directly
responsible to the appropriate authority for the
efficiency and routine day to day operations
thereof . . .
As used in this section, “appropriate authority”
means the mayor, manager, or such other
appropriate executive or administrative officer,
such as a full-time director of public safety, or
the governing body or any designated committee or
member thereof, or any municipal board or
commission established by ordinance for such
purposes . . .
N.J. Stat. Ann. § 40A:14-118 (West 1981) (emphasis added).
Because the statute provides that the chief of police is
“directly responsible to the appropriate authority,” Mooney
argues that he does not have final decision-making authority and
therefore cannot be a policymaker. Plaintiff’s reading of this
language is too narrow.
While Mooney states that the statute could not more clearly
establish that Mooney is not the final authority, federal courts
have disagreed. See Hernandez v. Borough of Palisades Park Pol.
Dept., 58 F. App’x 909, 913 (3d Cir. 2003) (“In this case, both
New Jersey statutes [N.J. Stat. Ann. § 40A:14-118] and the
Borough’s own Police Manual establish that the Chief of Police
was the relevant policymaker.”); Merman v. Camden, 824 F.Supp.
2d 581, 596 n.30 (D.N.J. 2010) (“the Court agrees that a
reasonable fact-finder could conclude that the Chief of Police

7

[as municipal decision maker] knew or should have known of the
inadequate investigations . . .”); see also Figueroa v. Camden,
No. 09-4343, 2012 U.S. Dist. LEXIS 121963, at *30-33 (D.N.J.
Aug. 28, 2012) (finding that “the record contains at least a
dispute of fact over whether Defendant [police commissioner] had
primary responsibility for training and discipline” where
defendant was appointed by Camden County Prosecutor’s Office to
manage police department pursuant to contract); Holloway v.
Whaley, No. 86-3710, 1989 WL 22365, at *4 (D.N.J. Feb. 15, 1989)
(“Both the Mayor and Police Chief of Freehold are ‘policymakers’
to the extent that they have the statutory authority to propose
borough policies and to administer certain rules and
regulations.” (citing N.J. Stat. Ann. § 40A:14-118)). Indeed,
the statute seems to leave open the exact contours of the police
chief’s decision-making authority. Here, Mooney testified that
he was responsible for Internal Affairs (“IA”) investigations
and had the authority to create policies addressing procedures
of these investigations. (Ex. E (“Mooney Dep.”)to Pl.’s Br. Opp.
AC, at 12:17-22, 54:21-56:16, 31:23-32:24, 63:6-20.)
Specifically, he testified that as Chief of Police he issued,
and was “ultimately responsible” for issuing, “departmental
general order[s] regarding Internal Affairs function.” (Id. at
32:5-24, 32:15-18.) Additionally, Mooney also had “the authority
to make changes with respect to the procedure to be followed”
8

regarding Internal Affairs investigations. (Id. at 63:16-18.) As
such, the Court finds that the record contains sufficient
evidence demonstrating that Mooney was a policymaker for
purposes of Plaintiff’s claims. 2
C.

Supervisory Liability Post-Iqbal
Mooney argues that Third Circuit precedent relied upon by

the Court in its denial of summary judgment has been called into
question after Ashcroft v. Iqbal, 566 U.S. 662 (2009). In Iqbal,
the Court stated, “[r]espondent believes a supervisor’s mere
knowledge of his subordinate’s discriminatory purpose amounts to
the supervisor’s violating the Constitution. We reject this
argument.” Iqbal, 556 U.S. at 667. Mooney is correct that the
Third Circuit has acknowledged that this language constitutes a
potential alteration of the standard for supervisory liability.
See, e.g., Santiago v. Warminster Twp., 629 F.3d 121, 130 n.8
(3d Cir. 2010) (noting the possible effect of Iqbal but

2

Defendant also contends that the determination of whether
Mooney is a policymaker is a question of law, not a question of
fact as Defendant understood the Court to be indicating in its
Opinion. See City of St. Louis v. Praprotnik, 485 U.S. 112, 124
(1988) (the Supreme Court held that “the identification of
policymaking officials is not a question of federal law, and it
is not a question of fact in the usual sense”); Santiago v.
Warminster, 629 F.3d 121, 135 (3d Cir. 2010) (“[W]hether Chief
Murphy is a final policymaker is ultimately a legal rather than
a factual question . . . .”). But, here, the Court found that as
a matter of law, Chief Mooney is a policymaker and the record
contains sufficient evidence to hold him liable as such. It is
now up to the jury to determine liability.
9

ultimately dismissing case under the “existing supervisory
liability test”). To date, however, the Third Circuit has not
directly addressed the continued viability of its tests for
supervisory liability in the wake of Iqbal. Id. Accordingly,
district courts within the Third Circuit have continued to apply
the traditional supervisory liability standard in this Circuit,
as this Court did in the instant matter. See Campbell v. Gibb,
No. 10-6584, 2012 WL 603204, at *10, n.6 (D.N.J. Feb. 21, 2012)
(continuing to apply Third Circuit’s traditional supervisory
liability analysis); Young v. Beard, No. 07-2266, 2009 WL
3111736, at *2 (E.D. Pa. Sept. 23, 2009) (reversing magistrate
judge’s recommendation to adopt new supervisory liability
standard in light of Iqbal). Thus, the Court will not reconsider
its decision on this ground.
D.

Qualified Immunity
Mooney also moves for reconsideration because he is

entitled to qualified immunity from suit. In its opinion, the
Court permitted Mooney to file supplemental briefing on the
qualified immunity issue to clarify his arguments. Cordial, 2014
WL 1095584, at *11. As such, while Mooney’s motion could be
viewed as raising new arguments not explicitly addressed in his
motion for summary judgment, the Court will consider them here.
“The doctrine of qualified immunity protects government
officials from liability for civil damages insofar as their
10

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 first question in the qualified
immunity analysis is whether the official’s conduct violated a
constitutional or federal right. Ray v. Twp. of Warren, 626 F.3d
170, 174 (3d Cir. 2010). The second question is whether the
right was clearly established. Id. 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.” Id. (quoting Anderson v. Creighton, 483
U.S. 635, 640 (1987)). The underlying right at issue here is
Plaintiff’s Fourth Amendment’s right to be free from the use of
excessive force during an arrest, which was clearly established
at the time. May v. Sanna, No. 09-3253, 2012 WL 1067686, at *8
(D.N.J. March 29, 2012) (regarding the use of excessive force
during an arrest, “[t]his is not a case where the law was in
controversy at the relevant time.”).
Mooney argues that the right was not clearly established
because the case law was “far from settled that a supervisor or
‘policymaker’. . . may be liable to the same extent and under
the same standards as against the municipality, based on a mere
failure to act.” (Mooney’s Br. at 19.) This argument does not
directly address qualified immunity, as “it is [Plaintiff’s]
11

right that must be clearly established (or shown not to be
clearly established by the Supervisor Defendants), not the
standard to impose supervisory liability.” Rosenburg v. Vangelo,
93 F. App’x 373, 378 (3d Cir. 2004). Mooney has pointed to no
authority that suggests Plaintiff’s right to be free from
excessive force in an arrest was not clearly established.
Along the same lines, Mooney contends that he acted
reasonably because a reasonable person in his position would not
have known that his conduct was violating a clearly established
right. To the extent Mooney argues he was not on notice of his
potential liability individually, the deliberate indifference
standard of liability for municipal supervisors was well
established at the time of the incident. See id. at 379
(concluding “the deliberate indifference standard had been
clearly established prior to 1999 and no reasonable official
could claim a higher showing would be required to establish
supervisory liability”); Sample v. Diecks, 885 F.2d 1099, 111718 (3d Cir. 1989) (applying deliberate indifference standard to
individual municipal supervisors because “we are confident that,
absent official immunity, the standard of individual liability
for supervisory public officials will be found to be no less
stringent than the standard of liability for the public entities
that they serve”); Figueroa, 2012 WL 3756974, at *11 (rejecting
chief of police’s argument of “a reasonable supervisor in
12

Defendant’s position would not have believed that he was being
deliberately indifferent to the risk of the Defendant Officers’
use of excessive force” as basis for qualified immunity). 3
Additionally, the Court stated in its opinion that there
was sufficient evidence to present a genuine issue of fact as to
whether Mooney was deliberately indifferent to the
constitutional rights of citizens. In terms of supervisory
liability, this issue of fact precludes Mooney’s assertion of
qualified immunity because being deliberately indifferent to
constitutional rights cannot be objectively reasonable. BeersCapitol v. Whetzel, 256 F.3d 120, 142 n.15 (3d Cir. 2001)
(“[b]ecause there is a genuine issue of fact as to whether [the
defendant] was deliberately indifferent, she has not carried her
burden to establish that she is entitled to [qualified]
immunity.”); Carter v. Philadelphia, 181 F.3d 339, 356 (3d Cir.
1999) (stating that a showing of deliberate indifference to
constitutional rights would preclude qualified immunity because
the conduct could not be objectively reasonable).
CONCLUSION
3

Mooney also argues that in light of Iqbal and subsequent
decisions that have called supervisory liability into question,
the right was not clearly established and he should be entitled
to qualified immunity. This argument is not persuasive,
however, as the incident giving rise to this litigation
occurred before Iqbal. Because any question of the exact
contours of supervisory liability came after this incident,
Mooney cannot rely upon these cases to argue the right was not
clearly established in March 2009.
13

For the foregoing reasons, the Court will deny Mooney’s
Motion for Reconsideration. An appropriate order will follow.

Date:

June 2, 2014
s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE

14