ABBOTT v. CITY OF ATLANTIC CITY et al
OPINION. Signed by Judge Joseph H. Rodriguez on 3/27/2017. (tf, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Hon. Joseph H. Rodriguez
Civil Action No. 11-4851
Atlantic City, et. al.
_______________________ __ :
This matter comes before the court Defendants’ Motion for Summary Judgment.
The Court has considered the written submissions of the parties and the arguments
advanced orally at the February 26, 2015 hearing in this matter. During that hearing,
counsel for Plaintiff made several concessions that counsel attempted to retract by way
of letter dated March 11, 2015. Plaintiff has filed additional submissions, including one
on May 13, 2015 which have been considered.
Plaintiff Rhonda Abbott, who is hearing impaired, alleges that the City of Atlantic
City, several Atlantic City police officers, and the Director of Gardner’s Basin, violated
her rights under the American with Disabilities Act (“ADA”), the New Jersey Law
Against Discrimination (“NJLAD”), and the Fourth and Fourteenth Amendment of the
United States Constitution.
On August 26, 2009, Plaintiff claims she attempted to visit the Gardner’s Basin
area of Atlantic City New Jersey. Plaintiff utilizes a service dog.1 She claims she was
There is a dispute over whether Plaintiff is hearing impaired and whether her service dog has qualifying
paperwork. For purposes of this Opinion, the Court assumes Plaintiff qualifies as disabled and that her service dog
meets the requirements.
denied access to the Atlantic City Aquarium and the police were called. Then, Plaintiff
went to the Back Bay Ale House where she claims that she was harassed by the staff.
Again, the police were called and Plaintiff was arrested by Officers Herrerias and
Clayton and charged with disorderly conduct and resisting arrest. Ex. C.
During Plaintiff’s arrest and transport, Officer Herrerias claims that Plaintiff
purposefully spit phlegm on him. Herrerias Dep. 13-15. As a result, he placed a seethrough mesh mask over Plaintiff’s face to curtail the spitting. Plaintiff claims that the
mask was not see through and was fastened around her neck with the strings tied in an
overly tight manner, precluding her from using her sight. In addition, she argues that
she did not voluntarily spit on Herrerias, but that the expelled phlegm was the product
of a summer cold, over which she had no control. See Abbott Dep., p. 182; Pl. Answer to
Interrogatories. Plaintiff also claims that, once at the police station, she was struck by
several police officers, forcibly handled, and made to walk without assistance with the
Plaintiff’s Complaint is unclear as to which claims she asserts against each of the
Defendants and it fails to detail the nature of the violation as to each defendant. Listed
in the caption of the Complaint as Defendants are the City of Atlantic City (“City”),
Atlantic City Police Department (“Police Department”), Police Officer Heidi Clayton
(“Clayton”), Police Officer R. Bouffard (“Bouffard”), Police Officer William Herrerias
(“Herrerias”), Police Officer H. Stanton (“Stanton”), Chief of Police John Mooney III
“Mooney”), Jack Keith, as the Executive Director Atlantic City Historic Waterfront
Foundation (“Keith”), and John Does A-Z. See Complaint, generally. The Complaint
itself, never identifies Officer Stanton as a Defendant in the “Parties” section, but refers
to him as an actor, but not a defendant, in Count VIII. Id.
The Complaint alleges eight counts, each with vague description. Count I alleges
claims under the NJLAD, the “federal Americans with Disabilities Act[,]” and
Rehabilitation Act against the City, the Police Department, Keith, Clayton, Bouffard, and
Herrerias. Id., ¶¶8-12. Count II alleges that the City, the Police Department and
Clayton, Bouffard, and Herrerias deprived Plaintiff “of her freedom and liberty without
proper justification” in violation of the NJLAD, “Federal Rehabilitation Act, 42 U.S.C.
§1983,” and the ADA. Id. at ¶¶13-15. Count III alleges that the City, the Police
Department and “aforementioned police officers” deprived Plaintiff of her rights under
the Federal and State Constitutions, “including but not limited to the LAD, federal
Americans with Disabilities Act, Rehabilitation Act, and 42 U.S.C. sec. 1983.” Id. at 17.
Count IV alleges violations of the “NJ LAD, federal ADA, Rehabilitation Act, and 42 sec.
1983.” Id. at 21. Count IV claims that the City, the Police Department, Officer Herrerias
and “others” placed a mask over Plaintiff’s face causing physical and mental injury. Id.
¶¶19-21. Count V appears to allege a failure to train claim; in it Plaintiff states that the
City, the Police Department and Mooney “in his official capacity, are responsible for the
aforementioned civil rights violations that the employees of Gardner’s Basin and officers
of the Atlantic City Police Department were not properly trained in how to interact with
the hearing impaired, the use of service dogs, and the rights of the disabled.” Id. at ¶23.
Count VI alleges claims against the John Doe police officers as plead in Counts I through
IV. Id. at ¶¶24-25. Count VII appears to allege a claim under the ADA, Rehabilitation
Act and/or Violations of the Fourth and/or Fourteenth Amendment(s) pursuant to
§1983, stating the City, the Police Department, “and its Officers gave no effective
communication despite Plaintiff’s disability.” Id. at ¶27. Finally, Count VIII
incorporates the preceding counts and claims that “Officer Stanton and or John Doe(s)
fictitious names of Defendants A-Z physically struck Plaintiff.” Id. at ¶ 30.
During oral argument, the Court noted the confusion caused by the poorly
drafted Complaint and engaged Plaintiff’s counsel in a discussion of the relevant claims
as to each Defendant. The Court incorporates that discussion and counsel’s explanation
here. In addition, the Court directed Plaintiff to provide additional briefing as to the
concessions made on the record. (See Dkt. No. 86).
Counsel filed a supplemental brief and appends a chart to his brief, to further
illustrate the nature of the claim(s) alleged as to each defendant. (See Dkt. No. 88).
According to Plaintiff’s chart, she alleges claims under Section 504 of the Rehabilitation
Act of 1973, 29 U.S.C. § 791, Title II of the Americans with Disabilities Act, 42 U.S.C. §
12131 (“ADA”), and the New Jersey Law Against Discrimination, N.J. Stat. Ann. § 10:5-1
(“NJLAD”), violations of the Civil Rights Act of 1871, and 42 U.S.C. § 1983, against the
City, the Police Department, the “Aquarium,” Keith, Clayton, Bouffard, Herrerias, and
Mooney. In addition, Plaintiff alleges claims of False Arrest and Imprisonment,
Malicious Prosecution, violations of the Fourth and Fourteenth Amendments and 42
U.S.C. §1983 against Defendants Clayton, Bouffard, Herrerias. Plaintiff alleges a claim
of Excessive Force against Herrerias and a Failure to Train claim against the City, the
Police Department, and the “Aquarium.”
Summary Judgment Standard
A court will grant a motion for summary judgment if there is no genuine issue of
material fact and if, viewing the facts in the light most favorable to the non-moving party,
the moving party is entitled to judgment as a matter of law. Pearson v. Component Tech.
Corp., 247 F.3d 471, 482 n.1 (3d Cir. 2001) (citing Celotex Corp. v. Catrett, 477 U.S. 317,
322, 106 S. Ct. 2548, 91 L.Ed.2d 265 (1986)); accord Fed. R. Civ. P. 56 (c). Thus, this
Court will enter summary judgment only when “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
judgment as a matter of law.” Fed. R. Civ. P. 56 (c).
An issue is “genuine” if supported by evidence such that a reasonable jury could
return a verdict in the nonmoving party’s favor. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248, 106 S. Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is “material” if, under the
governing substantive law, a dispute about the fact might affect the outcome of the suit.
Id. In determining whether a genuine issue of material fact exists, the court must view
the facts and all reasonable inferences drawn from those facts in the light most favorable
to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587, 106 S. Ct. 1348, 89 L.Ed.2d 538 (1986).
Initially, the moving party has the burden of demonstrating the absence of a
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct.
2548, 91 L.Ed.2d 265 (1986). Once the moving party has met this burden, the
nonmoving party must identify, by affidavits or otherwise, specific facts showing that
there is a genuine issue for trial. Id.; Maidenbaum v. Bally’s Park Place, Inc., 870 F.
Supp. 1254, 1258 (D.N.J. 1994). Thus, to withstand a properly supported motion for
summary judgment, the nonmoving party must identify specific facts and affirmative
evidence that contradict those offered by the moving party. Andersen, 477 U.S. at 25657. Indeed, the plain language of Rule 56(c) mandates the entry of summary judgment,
after adequate time for discovery and upon motion, against a party who fails to make a
showing sufficient to establish the existence of an element essential to that party’s case,
and on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322.
In deciding the merits of a party’s motion for summary judgment, the court’s role
is not to evaluate the evidence and decide the truth of the matter, but to determine
whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. Credibility
determinations are the province of the finder of fact. Big Apple BMW, Inc. v. BMW of
N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).
As a preliminary matter, summary judgment is granted as to the claims against
unnamed John Does A-Z because they have not been identified and discovery is
complete.2 Summary judgment is also granted as to as the claims pursuant to §1983
alleged against Mooney, Clayton, Herrerias, Stanton, and Bouffard in their official
capacity. It is well established that “neither a State nor its officials acting under their
official capacities are ‘persons’ under § 1983.” Will v. Michigan Dep’t of State Police, 491
“Courts will allow claims based upon ‘fictitious' defendants because they may be found and named later through
the discovery process.” K.J. ex rel. Lowry v. Div. of Youth & Family Servs., 363 F.Supp.2d 728, 740 (D.N.J. 2005)
(citing Alston v. Parker, 363 F.3d 229, 233 n. 6 (3d Cir. 2004)). Where “it is clear that, if after a reasonable period of
discovery a plaintiff has not identified the fictitious defendant, the court may dismiss the fictitious defendant.”
Martin v. Comunale, Civ. 03–06793, 2006 WL 208645, at *13 (E.D. Pa. Jan. 18, 2006); see also Atlantic Used Auto
Parts v. City of Philadelphia, 957 F. Supp. 622, 625 (E.D. Pa. 1997) (holding “fictitious party names may be used ‘at
least until reasonable discovery permits the actual defendants to assume their places ...,’ however, ... ‘[f]ictitious
names must eventually be dismissed, if discovery yields no identities.’ ”)); Fed. R. Civ. P. 21.
U.S. 58, 71 (1989). As such, an employee of the state named as a defendant in a civil
rights action may be held liable only if that person has personal involvement in the
alleged wrongs and is sued in their personal capacity. See Hafer v. Melo, 502 U.S. 21, 31
(1991) (“state officials, sued in their individual capacities, are ‘persons’ within the
meaning of § 1983”). Although the Complaint is silent as to the capacity in which these
defendants are being sued, the Court will construe the Complaint broadly and consider
the claims against these defendants in their individual capacities. Because Mooney is
specifically alleged to have acted in his official capacity as to the claims in Count V, the
Court will not construe these allegations, having been specifically plead, against Mooney
in his individual/personal capacity. See Compl. ¶23. As a result, summary judgment is
granted as to Mooney as to the claims plead in Count V.
Summary judgment is granted as to Defendant Police Department with respect to
allegations arising under §1983. The Police Department is a division of the City and the
claims against it merge with the claims against the City. Generally, public entities that
are not separate legal entities, but rather subunits of a local government or municipality,
cannot be sued under § 1983. See, e.g., Peppers v. Booker, Civ. No. 11-3207, 2012 WL
1806170 (D.N.J. May 17, 2012) (noting that “[i]n a Section 1983 claim, police
departments may not be named defendants in conjunction with municipalities because
police departments are merely instruments of municipalities); Adams v. City of Camden,
461 F. Supp. 2d 263, 266 (D.N.J. 2006); Bonenberger v. Plymouth Twp., 132 F.3d 20, 25
(3d Cir. 1997) (holding police department and municipality same for § 1983); N.J. Stat.
Ann. § 40A:14-118 (municipal police department is “an executive and enforcement
function of municipal government”). Thus, insofar as the Police Department is not a
separate legal entity, but a division of the City, Plaintiff cannot sustain a separate §1983
claim against it and summary judgment is granted.
In her chart, Plaintiff makes reference to claims against the “Aquarium[.]” No
such entity is identified in the Complaint; however Plaintiff’s Complaint asserts a claim
in Count I against “Defendant City of Atlantic City’s Gardner’s Basin and its Ocean Life
Center.” See Compl. ¶8. To the extent Plaintiff seeks to include this entity as a
defendant, despite not listing it in the caption, identifying its relationship to the other
parties in the Complaint, and/or revealing its corporate structure (see ¶¶ 1-7), the Court
is without any facts in the Complaint to consider the nature of the “Aquarium’s”
enterprise or its relationship to the City.3 In addition, neither the “Aquarium” nor the
Ocean Life Center were served with a Summons.4 As a result, neither the “Aquarium”
nor the Ocean Life Center are defendants to this action.
Two deponents, Jack Keith and Surita Ducote-Stroud, testified that the City owns the land on which the Aquarium
sits, but the Aquarium is managed by a foundation and other space is leased to private businesses. Jack Keith, the
Executive Director of the Foundation that manages the Aquarium, testified that the Foundation manages the
Aquarium and that the Aquarium is owned by Atlantic City. Keith Dep., Ex. F., 7:22-25-8:1-5, 9:1-13. Keith works
for both the Foundation and the City. Id. The City owns the land and the Foundation is the tenant. Keith Dep., Ex. J.
19:1-4. The Court will consider the nature of Plaintiff’s claims to the extent that the City owns the Aquarium, but
does not manage it.
Federal Rule of Civil Procedure 10(a) requires that every party to an action be named in the complaint's caption.
Fed. R. Civ. P. 10 (a). However, failure to list a party in the caption is not fatal, as long as other indicia provide
actual notice of the identity of the parties. See Prisco v. State of New York, 804 F. Supp. 518, 521 (S.D.N.Y.1992);
5 C. Wright & A. Miller, Federal Practice and Procedure § 1321 (2d ed. 1990). Courts look to the “pleadings,
service of process and other indications of the intent of the pleader” to determine whether a party is a proper
defendant. E.E.O. C. v. Int'l Ass'n of Bridge, Structural, & Ornamental Ironworkers, Local 580, 139 F.Supp.2d 512,
525 (S.D.N.Y. 2001)); see also Dolphin v. Waterbury Police Dep't, No. 3:05CV426 (HBF), 2008 WL 2568667, at
*4 (D. Conn. June 24, 2008) (“When a plaintiff omits the name of a defendant from the caption, but accurately
identifies the defendant and includes allegations against it, him or her in the body of the complaint, such an omission
is viewed as a ‘technical defect.’”). Here, Jack Keith, the Executive Director of the Atlantic City Waterfront
Foundation, is named in the Caption, was served with a Summons, and was present during some of the events
described in Plaintiff’s Complaint. It is only in Count I where the Ocean Life Center appears as the scene of events
on August 26, 2009. See Compl., ¶9 (“Plaintiff . . . attempted to be a patron at Defendant City of Atlantic City’s
Gardner Basin and its Ocean Life Center.” In Count I, Plaintiff identifies the Defendant as the City of Atlantic City.
The “Aquarium” and/or Ocean Life Center are not named in the Caption and neither entity was served with a
Summons. Thus, the Complaint’s only reference to the “Aquarium” in Count I is insufficient to give the actual
notice that the Ocean Life Center and/or “Aquarium” is a party to this action.
A. Plaintiff’s Constitutional Claims: False Arrest, False
Imprisonment, Excessive Force, Malicious Prosecution,
Failure to Train in Violation of the Fourth and Fourteenth
Amendments and the New Jersey Civil Rights Act
Plaintiff’s constitutional claims are governed by Title 42 U.S.C. § 1983, which
provides a civil remedy against any person who, under color of state law, deprives
another of rights protected by the United States Constitution. See Collins v. City of
Harker Heights, 503 U.S. 115, 120 (1992). Any analysis of 42 U.S.C. § 1983 should begin
with the language of the statute:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in equity, or other proper
proceeding for redress.
42 U.S.C. § 1983. As the above language makes clear, Section 1983 is a remedial statute
designed to redress deprivations of rights secured by the Constitution and its
subordinate federal laws. See Baker v. McCollan, 443 U.S. 137, 145 n.3 (1979). By its
own words, therefore, Section 1983 “does not . . . create substantive rights.” Kaucher v.
County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006) (citing Baker, 443 U.S. at 145, n.3).
To state a cognizable claim under Section 1983, a plaintiff must allege a
“deprivation of a constitutional right and that the constitutional deprivation was caused
by a person acting under the color of state law.” Phillips v. County of Allegheny, 515
F.3d 224, 235 (3d Cir. 2008) (citing Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir.
1996)). Thus, a plaintiff must demonstrate two essential elements to maintain a claim
under § 1983: (1) that the plaintiff was deprived of a “right or privileges secured by the
Constitution or the laws of the United States” and (2) that the plaintiff was deprived of
his rights by a person acting under the color of state law. Williams v. Borough of West
Chester, Pa., 891 F.2d 458, 464 (3d Cir. 1989).
A similar analysis may be made regarding any claim under the New Jersey Civil
Rights Act. See Armstrong v. Sherman, No. 09 CV 716, 2010 WL 2483911, *5 (D.N.J.
Jun. 4, 2010) (“[T]he language of the New Jersey Civil Rights Act, like the language of
42 U.S.C. § 1983, appears to grant a cause of action only to those persons whose rights
have been personally violated.”)5
The doctrine of qualified immunity provides that “government officials
performing discretionary functions . . . are shielded from liability for civil damages
insofar as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person should have known.” Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982). Thus, government officials are immune from suit in their individual
capacities unless, “taken in the light most favorable to the party asserting the injury, . . .
the facts alleged show the officer’s conduct violated a constitutional right” and “the right
was clearly established” at the time of the objectionable conduct. Saucier v. Katz, 533
U.S. 194, 201 (2001). Courts may exercise discretion in deciding which of the two
prongs of the qualified immunity analysis should be addressed first in light of the
circumstances in the particular case at hand. Pearson v. Callahan, 555 U.S. 223, 236
This doctrine “balances two important interests—the need to hold public officials
For this reason, the Court will not undertake separate analysis of Plaintiff’s claims under the New Jersey Civil
Rights Act, to the extent such a claim is alleged in the poorly drafted Complaint. “This district has repeatedly
interpreted NJCRA analogously to § 1983.” Pettit v. New Jersey, 2011 WL 1325614, at *3 (D.N.J. Mar. 30, 2011).
“[W]hen pled together, [the NJCRA and § 1983] are analyzed under the same standard[.]” Id., 2011 WL 1325614 at
*4; see also Hottenstein v. Sea Isle City, 793 F.Supp.2d 688, 695 (D.N.J. 2011).
accountable when they exercise power irresponsibly and the need to shield officials from
harassment, distraction, and liability when they perform their duties reasonably” and it
“applies regardless of whether the government official’s error is a mistake of law, a
mistake of fact, or a mistake based on mixed questions of law and fact.” Id. (internal
quotation omitted). Properly applied, qualified immunity “protects ‘all but the plainly
incompetent or those who knowingly violate the law.’” Ashcroft v. al-Kidd, 131 S. Ct.
2074, 2085 (2011) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).
For a right 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.” Saucier, 533 U.S. at 202 (quoting Anderson v. Creighton, 483 U.S.
635, 640 (1987)). That is, “[t]he relevant, dispositive inquiry in determining whether a
right is clearly established is whether it would be clear to a reasonable officer that his
conduct was unlawful in the situation he confronted.” Couden v. Duffy, 446 F.3d 483,
492 (2006). “If the officer’s mistake as to what the law requires is reasonable,” the
officer is entitled to qualified immunity. Couden, 446 F.3d at 492 (internal citations
omitted). Further, “[i]f officers of reasonable competence could disagree on th[e] issue,
immunity should be recognized.” Malley, 475 U.S. at 341 (1986). See also Brosseau v.
Haugen, 543 U.S. 194, 198 (2004) (The general touchstone is whether the conduct of the
official was reasonable at the time it occurred.) Finally, because qualified immunity is
an affirmative defense, the burden of proving its applicability rests with the defendant.
See Beers-Capital v. Whetzel, 256 F.3d 120, 142, n.15 (3d Cir. 2001).
Here, Plaintiff alleges violations of her Fourth and Fourteenth Amendment rights
and there is no dispute that the individual officers were acting under the color of state
law. Specifically, Plaintiff claims false imprisonment, false arrest, malicious
prosecution, and excessive force against the individual police officer defendants Clayton,
Bouffard, Herrerias, and Stanton6.
1. Constitutional Claims7
a. False Imprisonment/False Arrest
To the extent that Plaintiff makes claims of false arrest and false imprisonment
against the individual officers, the Fourth Amendment prohibits seizures in the absence
of probable cause.8 Orsatti v. New Jersey State Police, 71 F.3d. 480, 482 (3d Cir. 1995).
Under the Fourth Amendment, a person is seized “only if, in view of all the
circumstances surrounding the incident, a reasonable person would have believed that
he was not free to leave.” Michigan v. Chesternut, 486 U.S. 567, 574 (1988) (quoting
United States v. Mendenhall, 446 U.S. 544, 554 (1980)). Seizure occurs only when a
person is detained by “means intentionally applied” to terminate his freedom of
movement by means of physical force or by show of authority. Brower v. County of
Inyo, 489 U.S. 593, 597-98 (1989). No seizure occurs when a reasonable person would
feel free to “disregard the police and go about his business” or where “a reasonable
While Stanton’s only mention in the Complaint comes as an actor in Count VIII, he is notably left off of Plaintiff’s
chart. In addition, Plaintiff states that she “misidentified” Stanton as the Officer who struck her, and believes that
the police officer who struck her is Herrierias. See Pl. Opp. Br. and Reply to Def. Stat. Material Facts, ¶ 8. In
addition, Officer Herriereas testified that there is no Atlantic City Police Officer named Stanton. Herrerias Dep., Ex.
F., 17:13-16. Summary judgment as to this claim against Officer Stanton, to the extent he is considered as an
appropriate defendant, is granted.
Where an amendment provides explicit protection against a particular kind of government action, that amendment
is the source of the Court’s evaluation of a §1983 claim rather than the general rights granted by the Fourteenth
Amendment. County of Sacramento v. Lewis, 523 U.S. 833, 841 (1998) (citing Albright v. Oliver, 510 U.S. 266,
273 (1994)). Thus, allegations of false arrest or false imprisonment are evaluated under the Fourth Amendment
rather than the Fourteenth Amendment. See, e.g., United States v. Lanier, 520 U.S. 259, 272 (1997); Berg v. County
of Allegheny, 219 F.3d 261, 268-69 (3d Cir. 2000).
Again, Plaintiff never identifies either Amendment in her Complaint, but lists both the Fourth and Fourteenth
Amendments as causes of action in her chart. The Court does not glean the existence of a due process violation
from the Complaint and Plaintiff makes no argument suggesting that such a claim exists. For the reasons set forth in
note 7, the Court will analyze the claim under the fourth Amendment.
person would feel free to decline the officers’ requests or otherwise terminate the
encounter.” United States v. Kim, 27 F.3d 947, 951 (3d Cir. 1994) (quoting Florida v.
Bostick, 501 U.S. 429, 434 (1991)).
Under New Jersey common law, the tort of false imprisonment is defined as when an
actor improperly constrains a person’s freedom of movement by force or by threats of
force communicated through conduct or words. Maietta v. USPS, 749 F. Supp. 1344,
1366 (D.N.J. 1990). New Jersey requires two elements for false imprisonment: (1)
detention of the person against his or her will, and (2) a lack of proper legal authority or
“legal justification.” Mesgleski v. Oraboni, 748 A.2d 1130, 1138 (N.J. Super. Ct. App.
Under the Fourth Amendment, a claim of false arrest requires a showing “(1) that
there was an arrest; and (2) that the arrest was made without probable cause.” James v.
City of Wilkes-Barre, 700 F.3d 675, 680 (3d Cir. 2012). Probable cause exists when
there are “facts and circumstances sufficient to warrant a prudent man in believing that
the suspect had committed or was committing an offense.” Gerstein v. Pugh, 420 U.S.
103, 111 (1975) (internal citations omitted). Taking the facts in a light most favorable to
the Plaintiff Rhonda Abbott, she was both seized, arrested and/or imprisoned under
either of the above standards.
The question of whether probable cause existed to arrest and detain Plaintiff is
called into question only by Plaintiff’s testimony. The overwhelming evidence suggests
that Ms. Abbott was acting in a manic and disturbing manner at both the Aquarium and
Back Bay Restaurant. Police Officer Herrierias and Jack Keith both testify that at the
Back Bay Ale House, Abbott was spitting, yelling, and causing a disturbance. See Keith
Dep., Ex. J. 23:6-13 (characterizing Abbott as “out of control”), 24: 7-8 (stating he
observed Abbot purposefully spit at police); Herrerias Dep., Ex. F. 11:13-19 (stating
Abbott spat at him), 7:1-24 (Abbott was screaming and using profanity as she argued
with restaurant staff). Officer Clayton claims that Abbott engaged in manic behavior at
the Ale House and was kicking, screaming and spitting that as they tried to talk to her.
Clayton Dep., Ex. G, 17:1-25. Clayton also noted Abbott continued to spit and that the
plexi-glass divider in the police car was covered in her spit. Id., 17:14-23.
At the Aquarium, Sarita Stroud claims that she wasn’t clear that Abbott’s dog was
service dog and asked Abbott to step aside. Stroud Dep., Ex. E. 14:1-22. Stroud claims
that Abbott began screaming that she was going to call her lawyer and would not move
aside. Id. Abbott’s behavior and screaming escalated, preventing Stroud from having
any further conversation with Abbott to get more information about the dog. Id. Jack
Keith was called and he testifies that Abbott would not move to the side and she was
screaming. He states that Abbott said she was hearing impaired and asked Keith to
write his questions out on paper; he attempted to communicate with her in that manner,
but she was not cooperative and continued to create a disturbance. Keith Dep., Ex. J.,
38:16-25. Stroud testified that during the ten or so minutes it took police to arrive,
Abbott yelled the entire time and refused to move to the side to let other patrons gain
access. Stroud Dep., Ex. G, 5:1-25. Officer Bouffard testified that as they approached
the Aquarium, they could hear Abbott screaming before they visually observed her.
Bouffard Dep., 8:18-25-9:1-8 (Abbott was screaming “fuck you, I’m suing”). Bouffard
observed Abbott acting in an obnoxious and loud manner toward an Aquarium
employee. Id. at 7:4-18.
Clayton elaborated on their interaction with Abbott as they escorted her out of the
Aquarium. Clayton testifies that she tried to ask Abbott what the problem was, but
Abbott refused to answer. Clayton Dep., Ex. G. 11:18-25. Instead, Abbott continued to
scream that she was going to sue, took her phone out and claimed she was calling her
lawyer. Id. at 12:1-4. At some point, Clayton learned from the Aquarium staff that
Abbott’s dog was a service dog, but Abbott wouldn’t engage in any conversation and
continued to yell. Id. Clayton got the impression that Abbott could hear some of the
police officers’ conversations with each other because Abbott would interject with
relevant responses, even when the officers talked out of Abbott’s vision. Id. at 12:11-2513:1-16. When Clayton discussed with Herrerias whether to shackle Abbott to curtail the
kicking, Abbott responded “Fuck you, you’re not going to shackle me.” Id. 17:23-2518:1-4.
However, Abbott’s markedly contradictory account of the events of the day create a
genuine issue of material fact. Abbott claims that she was unable to communicate with
the staff at the Aquarium and that she was asked to leave because of her dog. She claims
that she did not refuse to pay, because she was harassed before she could discuss
payment. Then, she claims that when she went to the Back Bay Ale House, she informed
the hostess that she wished to speak with a manager, so as to preempt any problems that
might arise because of her service dog. While she sat quietly at a table waiting, for some
time, for the arrival of the manager, Officer Herrerias came out of nowhere and arrested
her. Abbott Dep., 154:1-25-155:1-25.
Abbott’s version of events includes the police officers’ refusal to communicate with
her in writing, even after she showed them her hearing aid. With these key facts in
dispute, summary judgment is denied as to the claims against Hererrias, Clayton, and
Bouffard as they relate to the activity at the Ale House. Summary judgment is granted
as to Clayton and Bouffard in so far as the Complaint, which is unclear, alleges wrongful
arrest at the Aquarium. For the same reasons, summary judgment is denied on the
qualified immunity argument on the issue of probable cause. Giving Plaintiff the benefit
of every inference, the Officers, in responding to claims that she was acting irrationally
and in a disorderly manner, came upon a quiet Plaintiff who was minding her own
business as she waited for the manager. As a result, based on those facts, there are
questions of fact as to whether probable cause to arrest Plaintiff existed and whether she
b. Excessive Force9
The Fourth Amendment provides:
The right of the people to be secure in their persons, houses, papers and
effects, against unreasonable searches and seizures, shall not be violated,
and no Warrants shall issue, but upon probable cause, supported by Oath
or affirmation, and particularly describing the place to be searched, and
persons or things to be seized.
A Fourth Amendment excessive force claim calls for an evaluation of whether police
officers’ actions are objectively reasonable in light of the facts and circumstances
confronting him. Graham v. Conner, 490 U.S. 386, 397 (1989). While the question of
reasonableness is objective, the court may consider the severity of the crime at issue,
Graham v. Connor appears to foreclose a claim of excessive force as arising under the Fourteenth Amendment. 490
U.S. 386, 388 (1989) (“This case requires us to decide what constitutional standard governs a free citizen’s claim
that law enforcement officials used excessive force in the course of making an arrest, investigatory stop, or other
‘seizure’ of his person. We hold that such claims are properly analyzed under the Fourth Amendment’s ‘objective
reasonableness’ standard, rather than under a substantive due process standard.” Accord Abraham, 183 F.3d at 288
(“excessive force in the course of an arrest is properly analyzed under the Fourth Amendment, not under substantive
due process”) (citing Graham, 490 U.S. at 393-94).
whether the suspect poses an immediate threat to the safety of the officers or others, and
whether the suspect is actively resisting arrest or attempting to evade arrest by flight.
Id. In a claim for excessive force, “the central question is ‘whether force was applied in a
good faith effort to maintain or restore discipline, or maliciously and sadistically to
cause harm.’” Brooks v. Kyler, 204 F.3d 102, 106 (3d Cir. 2000) (quoting Hudson v.
McMillian, 503 U.S. 1, 7 (1992)).
Furthermore, appropriate attention should be given “to the circumstances of the
police action, which are often ‘tense, uncertain, and rapidly evolving.’” Groman v.
Township of Manalapan, 47 F.3d 628, 634 (3d Cir. 1995) (quoting Graham, 490 U.S. at
396). See also Graham, 490 U.S. at 396 (“Not every push or shove, even if it may later
seem unnecessary,” violates the constitution.).
Plaintiff appears to claim that Herrerias violated her right to be free from excessive
force and argues that the use of the mask to curtail her involuntary spitting is the basis
for this claim. In regards to the use of the mask, Officer Herrerias is entitled to qualified
immunity as its use was objectively reasonable in light of the circumstances. At the very
least, Plaintiff admits that phlegm was caused to exit her mouth as a result of a summer
cold over which she had no control. See Pl. Ex. B, Pl. Verified Answer; Abbott Dep., Ex.
D., 182:14-25-183:1-5. Thus, to the extent that Plaintiff herself admits that she was
spewing bodily fluids, under these circumstanced no jury could reasonably find that
Herrerias acted “maliciously and sadistically to cause harm.’” Brooks, 204 F.3d at 106
(quoting Hudson, 503 U.S. at 7). In addition, even if the use of the mask was not in line
with ADA standards, “[w]hile the purpose of the ADA is to prevent the discrimination of
disabled individuals, we do not think Congress intended that the fulfillment of that
objective be attained at the expense of the safety of the general public.” Hainze v.
Richards, 207 F.3d 795, 801 (5th Cir. 2000). Whether Abbott’s spitting was intentional
or involuntary, Herrerias’ use of a device to curtail the transmission of bodily fluid is
objectively reasonable. Abbott puts forth no evidence that another method could have
been used. Thus, the conduct of Herrerias was objectively reasonable at the time, under
the circumstances, and he is entitled to qualified immunity on the excessive force
Plaintiff’s argument that the mask was not “see-through” and that its use, coupled
with the fact that she is hearing impaired, caused her to lose the additional sensory
function of vision and is therefore excessive does not save her claim. Plaintiff admits
that she tried to get a mask similar to that used by the police when she was arrested but
failed. There is no evidence in the record, but for Plaintiff’s statements, that Atlantic
City has ever used a different mask. Likewise, there is no case law on point to suggest
that the use of an opaque mask is under the circumstances excessive. Id. Given that
Plaintiff admits to spewing fluids out of her mouth and that she could not control it, the
use of the mask is not unreasonable and summary judgment is granted.11
Although the Court should not weigh evidence or make credibility determinations on summary judgment, it is
worth noting that on the point of Abbott’s spitting, several other witnesses observed purposeful spitting and the
hospital records also indicate that Abbott was uncooperative, combative that she spat, yelled and was agitated. See
Atlantic Care Hospital Records, Ex. N. thus, under the circumstances, coupled with Abbott’s admission that she
involuntarily spit, Herrerias’s conclusion that the mask was necessary is objectively reasonable.
Plaintiff’s Count VIII asserts that she was “physically struck” by Officer Stanton and other John Doe Defendants.
Since Plaintiff acknowledged that no officer Stanton exists and summary judgment has been granted to the “John
Does”, the Court will not address this claim. Plaintiff states in her brief that she believes it was Herrerias, however,
a believe or a speculation is insufficient on summary judgment.
c. Malicious Prosecution
To establish malicious prosecution under § 1983, a plaintiff must establish that: (1)
the defendant initiated a criminal proceeding; (2) the plaintiff suffered a deprivation of
liberty consistent with the concept of seizure as a consequence of a legal proceeding; (3)
the criminal prosecution resulted in plaintiff's favor; (4) the proceeding was initiated
without probable cause; and (5) the defendant acted maliciously or for a purpose other
than bringing the plaintiff to justice. Halsey v. Pfeiffer, 750 F.3d 273, 296-97 (3d Cir.
2014); DiBella v. Borough of Beachwood, 407 F.3d 599, 601 (3d Cir. 2005); Santiago v.
City of Vineland, 107 F. Supp. 2d 512, 566 (D.N.J. 2000).
Here, given the questions of fact related to probable cause, summary judgment on
this claim is denied.
2. Monell Claims
A municipality is not liable under 42 U.S.C. § 1983 on a respondeat superior
theory. Monell v. Dept. Soc. Servs. of New York, 436 U.S. 658, 691 (1978). However, a
government entity may be liable for its agent’s actions upon a demonstration that a
policy or custom of the municipality caused, or was a “moving force” behind, the alleged
violation of Plaintiff’s rights. Kentucky v. Graham, 473 U.S. 159, 166 (1985) (quoting
Polk County v. Dodson, 454 U.S. 312, 326 (1981)); Beck v. City of Pittsburgh, 89 F.3d
966, 971 (3d Cir. 1996). Policy or custom may be established in two ways. “Policy is
made when a ‘decisionmaker possess[ing] final authority to establish municipal policy
with respect to the action’ issues an official proclamation, policy, or edict.” Andrews v.
City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990) (citations omitted). “A course of
conduct is considered to be a ‘custom’ when, though not authorized by law, ‘such
practices of state officials [are] so permanent and well settled’ as to virtually constitute
law.” Id. (citations omitted). Custom requires proof of knowledge and acquiescence by
the decisionmaker. McTernan v. City of York, PA, 564 F.3d 636, 657 -658 (3d Cir.
2009). Moreover, supervisors can be liable if they “established and maintained a policy,
practice or custom which directly caused [the] constitutional harm,” or if they
“participated in violating plaintiff's rights, directed others to violate them, or, as the
person[s] in charge, had knowledge of and acquiesced in [their] subordinates'
violations.” Santiago v. Warminster Twp., 629 F.3d 121, 129 (3d Cir. 2010) (citations
omitted). Thus, in order to prevail against the government entity, “[a] plaintiff must
identify the challenged policy, attribute it to the city itself, and show a causal link
between execution of the policy and the injury suffered.” Losch v. Parkesburg, 736 F.2d
903, 910 (3d Cir. 1984). Further, a plaintiff must show that the municipality acted with
“deliberate indifference” to the known policy or custom. Canton v. Harris, 489 U.S. 378,
388 (1989). “A showing of simple or even heightened negligence will not suffice.”
Board of County Comm’rs of Bryan County, Okl. v. Brown, 520 U.S. at 397, 407 (1997).
Finally, to prevail on a failure to train, discipline or control claim, a plaintiff must
“show both contemporaneous knowledge of the offending incident or knowledge of a
prior pattern of similar incidents and circumstances under which the supervisor’s
actions or inaction could be found to have communicated a message of approval to the
offending subordinate.” Montgomery v. De Simone, 159 F.3d 120, 127 (3d Cir. 1998)
(citations omitted). The Supreme Court notes that in “limited circumstances, a local
government's decision not to train certain employees about their legal duty to avoid
violating citizens' rights may rise to the level of an official government policy for
purposes of § 1983.” Connick v. Thompson, 131 S. Ct. 1350, 1359 (2011).
To sustain a failure-to-train claim under § 1983, a plaintiff “must (1) identify the
deficiency; (2) prove that the deficiency caused the alleged constitutional violation; and
(3) prove that the failure to remedy the deficiency reflected deliberate indifference on
the part of the municipality.” Lapella v. City of Atlantic City, 10-2454, 2012 WL
2952411, at *6 (D.N.J. July 18, 2012) (citing Malignaggi v. County of Gloucester, 855
F.Supp. 74, 77 (D.N.J. 1994)). Only when a plaintiff demonstrates deliberate
indifference to the rights of persons with whom the untrained employees come into
contact “can such a shortcoming be properly thought of as a city ‘policy or custom’ that
is actionable under § 1983.” Connick, 131 S. Ct. at 1359-60 (internal citation omitted).
Deliberate indifference is “a stringent standard of fault” that requires proof that a
municipal actor disregarded a known or obvious consequence. Id. (citing Board of Cty
Comm’rs of Bryan Cty., Okl. v. Brown, 520 U.S. 397, 410 (1997)). Thus, for purposes of
a failure to train claim, it is “ordinarily necessary” for a plaintiff to show “[a] pattern of
similar constitutional violations by untrained employees.” Connick, 131 S.Ct. at 1360
(internal citation omitted). The Third Circuit has noted that:
[A] municipality's deliberately indifferent failure to train is not established
by (1) presenting evidence of the shortcomings of an individual; (2)
proving that an otherwise sound training program occasionally was
negligently administered; or (3) showing, without more, that better
training would have enabled an officer to avoid the injury-causing
Simmons v. City of Philadelphia, 947 F.2d 1042, 1060 (3d Cir. 1991) (citing City of
Canton v. Ohio, 489 U.S. 378, 391 (1989) (emphasis in original)). A “single-incident”
theory of liability can proceed only upon demonstration that the constitutional violation
was the “obvious” consequence of inadequate training. Connick, 131 S.Ct. at 1360–61
(citations omitted); see also, City of Canton, 489 U.S. at 390, n. 10. However, such a
“single incident” theory of liability only arises “in a narrow range of circumstances.” Id.
Here, although Plaintiff highlights the existence of a potential training deficiency
in dealing with the hearing-impaired population, she has failed to prove that these
alleged deficiencies constitute a pattern or practice and/or that the deficiency caused a
constitutional violation in this case. See, e.g., McTernan v. City of York, Pa., 564 F.3d
636 (3d Cir. 2009) (“[A plaintiff] must identify a custom or policy, and specify what
exactly that custom or policy was.”). The record does not support the allegation that the
municipality’s deliberate indifference or failure to train in dealing with the hearing
impaired population encouraged or caused the unlawful conduct of its officers.
Connick, 131 S. Ct. at 1359-60.
If Plaintiff is to be believed, she was arrested while sitting quietly at the Back Bay
Ale House. Plaintiff makes a scant connection to the events at the Aquarium when she
testifies that a random stranger told her to “get out of here” because the police were
looking for her. See Pl. Ans. To Interrogatories, ¶1, pp 26-7; Pl. Amended Ans. To
Interrogatories, ¶1, p. 32. Plaintiff testifies that she was sitting quietly and not arguing
with anyone when she was approached by Herrerias and Clayton. Abbott Dep., Ex. D.,
158:8-25. She states that she had to “struggle” to communicate, she took out her
hearing aid, and then “Officer Herrerias jumped me and arrested me.” Id. at 159:1-25160:1-5.
Plaintiff cannot show that this single incident is the “obvious” consequence of
inadequate training and falls into the “narrow range of circumstances” where liability
may attach. Here, Plaintiff admits that she was able to verbally communicate and
receive some verbal communications and that her dog lacked identification that he was
a service dog. Connick, 131 S.Ct. at 1360–61 (citations omitted); see also, City of Canton,
489 U.S. at 390, n. 10. Plaintiff points to no evidence of what training would have
prevented the arrest in her case. Plaintiff’s only evidence in support of her claim is the
testimony of the police officers stating that they cannot recall if they received training on
dealing with the hearing impaired. She provides no evidence of the type of training that
would have prevented her encounter. Summary judgment is granted in favor of the City
on these claims.
B. Violation of Section 504 of the Rehabilitation Act and the
Like the majority of the Complaint, Plaintiff’s claims under the ADA and Section
504 are generically made without specific reference to the offense and the offending
parties. Counts I, II, II, IV, and VIII reference violations of the ADA and Section 504.
The Complaint makes no distinction as to which Title of the ADA Plaintiff moves with
respect to the myriad of defendants Plaintiff claims violated her rights under these
statutes. Adding to the confusion is Plaintiff’s claims chart, which references only Title
II of the ADA. Plaintiff’s Answer to Interrogatories states that she is making both Title
II and Title III claims, but fails to delineate the nature of each claim as to each
1. Claims under Title II of the ADA and Section 504 of the Rehabilitation Act
Title II of the ADA provides that “no qualified individual with a disability shall, by
reason of such disability, be excluded from participation in or be denied the benefits of
services, programs or activities of a public entity, or be subjected to discrimination by
any such entity.” 42 U.S.C.A. § 12132. Title II prohibits discrimination by, and imposes
liability on, “public entities.” See 42 U.S.C. ¶ 2132. A public entity is defined in the
statute as “any State or local government; ... department, agency special purpose
district, or other instrumentality of a State....” 42 U.S.C. § 12131(1).
Section 504 of the Rehabilitation Act prohibits programs that receive federal
funds from discriminating against an individual based on disability: “No otherwise
qualified individual with a disability in the United States . . . shall, solely by reason of
her or his disability, be excluded from the participation in, be denied the benefits of, or
be subjected to discrimination under any program or activity receiving Federal financial
assistance or under any program or activity conducted by any Executive agency . . . .” 29
U.S.C. § 794(a); see Bowers v. National Collegiate Athletic Ass'n, 118 F.Supp.2d 494, 525
(D.N.J. 2000) (quoting 29 U.S.C. § 794(a)).
There is no reference in Title II or Section 504 to liability against individuals for
violation of the act. See Doe v. Div. of Youth & Family Servs., 148 F. Supp. 2d 462, 489
(D.N.J. 2001); Yeskey v. Pennsylvania, 76 F. Supp. 2d 572, 575 (M.D. Pa. 1999). Indeed,
neither Section 504 nor Title II of the ADA provides a cause of action against
government employees in their individual capacities. See Americans with Disabilities
Act of 1990, §§ 201(1), 202, 42 U.S.C.A. §§ 12131(1), 12132. Therefore, there is no
individual liability under these statutes for public employees. See A.W. v. Jersey City
Pub. Sch., 486 F.3d 791, 804 (3d Cir. 2007) (“Suits may be brought pursuant to Section
504 against recipients of federal financial assistance, but not against individuals.”)
(citing Emerson v. Thiel Coll., 296 F.3d 184, 190 (3d Cir. 2002)); see also K.J. v. Greater
Egg Harbor Reg'l High Sch. Dist. Bd. of Educ., No. 14-CV-145, 2015 WL 1816353, at *7
(D.N.J. Apr. 21, 2015) (citing Calloway v. Boro of Glassboro Dep't of Police, 89
F.Supp.2d 543, 557 (D.N.J. 2000) (citing cases from other districts and circuits for the
proposition that “individual defendants cannot be held liable for violations of Title II of
the Disability Act”); see also Emerson, 296 F.3d at 189 (citing Walker v. Snyder, 213
F.3d 344, 346 (7th Cir. 2000) (finding that “the ADA addresses its rules to employers,
places of public accommodation, and other organizations, not to the employees or
managers of these organizations”), and Garcia v. S.U.N.Y. Health Sciences Ctr., 280
F.3d 98, 107 (2d Cir. 2001) (holding that individuals are not liable under Title II),
approvingly, and noting that the Rehabilitation Act and the ADA are “generally ...
To prove a violation of Title II of the ADA, a plaintiff must show:
(1) he [is] a “qualified individual with a disability”; (2) he was either
excluded from participation in, or denied the benefits of, ... [defendant]'s
services, programs, or activities, or was otherwise discriminated against by
... [defendant]; and (3) such exclusion, denial of benefits, or discrimination
was by reason of his disability.
Calloway v. Boro of Glassboro Dept. of Police, 89 F.Supp.2d 543, 552 (D.N.J. 2000); see
also Douris v. Dougherty, 192 F. Supp. 2d 358, 368 (E.D. Pa. 2002).
To the extent that Plaintiff is a “qualified individual,” liability under these
statutes may be sought against any defendant who owns and maintains the park as a
“public entity” which receives federal funds. 42 U.S.C.A. §§ 12131(1), (2). Thus, the City
of Atlantic City is the only potential defendant to this claim, as there is no viable claim
against individuals under these statutes.
With respect to the Section 504 claim, Plaintiff puts forth no evidence to suggest,
and does not allege, that the City receives federal funds. For this reason, her Section 504
claim against the City fails. Likewise, her Title II claim is tenuous at best, even if
Plaintiff could prove she has Article III standing: on this record there is no evidence that
Plaintiff has standing and summary judgment is granted.
The party invoking federal jurisdiction bears the burden of establishing standing
“in the same way as any other matter on which the plaintiff bears the burden of proof,
i.e., with the matter and degree of evidence required at successive stages of the
litigation.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d
351 (1992) (internal citations omitted); see Focus v. Allegheny County Ct. of Common
Pleas, 75 F.3d 834, 838 (3d Cir. 1996). At the summary judgment stage, Plaintiff cannot
rest on mere allegations to establish standing, “but must ‘set forth’ by affidavit or other
evidence, ‘specific facts,’ which for purposes of the summary judgment motion will be
taken to be true.” Lujan, 504 U.S. at 561 (citing Fed. R. Civ. P. 56(e)). Thus, to defeat
summary judgment, the plaintiff must raise a genuine issue of material fact as to
whether the requisite standing elements are satisfied. Celotex, 477 U.S. at 322.
The general requirements of standing are also applicable in ADA cases where, as
here, Plaintiff brings suit seeking injunctive relief for violations of Titles II and III. See
Transport Workers Union of America, Local 100, AFL-CIO v. New York City Transit
Authority, 342 F. Supp. 2d 160, 165-66 (S.D.N.Y. 2004) (Article III standing required in
Title II cases); Doe v. Natl. Bd. of Med. Examr's, 199 F.3d 146, 153 (3d Cir. 1999) (Article
III standing applies in Title III cases). To satisfy the Constitutional standing
requirements Plaintiff must show: she has suffered an “injury in fact” that is (a) concrete
and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the
injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as
opposed to merely speculative, that the injury will be redressed by a favorable decision.
Friends of the Earth, Inc., 528 U.S. at 180–81.
A party seeking prospective injunctive relief must demonstrate a real and
immediate, i.e., not speculative, threat of future harm. City of Los Angeles v. Lyons, 461
U.S. 95, 111, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). A plaintiff seeking injunctive relief
must also show continuing, adverse effects from the illegal conduct. O'Shea v. Littleton,
414 U.S. 488, 495–96, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974). A plaintiff's “some day”
intentions to return to the source of the illegal conduct, without any description of
concrete plans, does not support a finding of “actual or imminent” injury. Lujan, 504
U.S. 564; see also Dempsey v. Pistol Pete's Beef N Beer, LLC, Civ. No. 08–5454, 2009
WL 3584597 at *4 (D.N.J. Oct. 26, 2009) (“[I]ntentions to return to the source of the
illegal conduct ‘some day'-without any description of concrete plans, or indeed even any
specification of when the some day will be-do not support a finding of the requisite
actual or imminent injury.”).
Although there is no Third Circuit precedent directly addressing the contours of
the “injury in fact” analysis in ADA cases, several courts in this district have recognized
that, it in other contexts, the Third Circuit requires that “a [p]laintiff must suffer a
palpable and distinct harm that must affect the plaintiff in a personal and individual
way.” Brown v. Showboat Atlantic City Propco, LLC, Civ. No. 08–5145, 2010 WL
5237855, at *7 (D.N.J. Dec.16, 2010) (quoting Toll Bros., Inc. v. Twp. of Readington, 555
F.3d 131, 137 (3d Cir. 2009)); see also Louisiana Counseling and Family Services Inc. v.
Mt. Fuji Japanese Restaurant, No. 08-CV-6143, 2014 WL 94135 (D.N.J. Mar. 11, 2014).
As a result, the standing analysis in ADA cases focuses on whether the plaintiff suffered
an actual injury rather than whether the statute was violated by the defendants. See
Doe, 199 F.3d at 153.
As this Court recognized in Louisiana Counseling, courts in New Jersey have
applied the following four-factor test to determine whether a future injury is concrete
and particularized: (1) the plaintiff's proximity to the defendant's place of public
accommodation; (2) the plaintiff's past patronage; (3) the plaintiff's frequency of nearby
travel; and (4) the definiteness of the plaintiff's plan to return. Brown, Civ. No. 08–5145,
2010 WL 5237855, at *8. With respect to the definiteness to return, the Court in Lujan
found that “someday” intentions without any description of concrete plans, or even any
speculation of when the someday will be-do not support a finding of actual or imminent
injury. Id. (citing Lujan, 504 U.S. at 564). On a summary judgment motion the burden is
higher than on a motion to dismiss where “general factual allegations of injury resulting
from the defendant's conduct may suffice ... on a motion to dismiss [as] we ‘presum[e]
that general allegations embrace those specific facts that are necessary to support the
claim.’” Lujan, 497 U.S. at 889.
Here, one of the many bases for Defendants’ summary judgment motion is the
lack of any evidence that Plaintiff intends to return to the City or to Gardner’s Basin. In
its statement of Material Facts, Defendants claim that Plaintiff has declared that she has
no intent to return to the City, undermining her standing to bring these claims. In
support of this “fact,” Defendants cite to an email exchange regarding the location of the
depositions in which Defendants’ counsel summarizes Plaintiff’s counsel’s alleged
unwritten assertion that Ms. Abbott refuses to return to Atlantic City, even to be
deposed, because she is fearful. See Polis Cert., Ex O. Defendants’ counsel’s
recapitulation of a possible verbal conversation with Plaintiff’s counsel is unavailing
evidence of Plaintiff’s intent- or lack thereof- to return. However, Plaintiff’s response is
at most an unsubstantiated “general allegation” that fails to satisfy the standing
Here, Plaintiff states that she resided in Willingboro, New Jersey and that she is
currently in between residences. See Abbott Dep., Ex. C., 13:3-25-14:1-25. Willingboro
is approximately forty-five minutes to an hour away from the City. Plaintiff claims that
she had been to Gardner’s Basin at least once before but there is no testimony that she
intends to return. The only mention of Plaintiff’s intent to return comes from her
attorney in response to Defendants’ Statement of Material Facts:
11. Denied. Plaintiff would like to return to Atlantic City and Gardner’s Basin
after her lawsuit is resolved.
Plaintiff’s Response to Def. Stat. of Material Facts, ¶11. Plaintiff’s response fails to cite
to any testimony, affidavit, or other certification to corroborate the generalized
statement that Plaintiff “would like to” return to the City. Such a statement is not
evidence on summary judgment and, alternatively, fails to vault the “someday
intentions” standing hurdle described in Lujan. See Whitmore v. Arkansas, 495 U.S.
149, 158 (1990) (“Allegations of possible future injury do not satisfy the requirements of
Art. III. A threatened injury must be certainly impeding to constitute injury in fact”);
Access 4 All v. Oak Spring, Inc., No. 504CV75OCGRJ, 2005 WL 1212663, * 5 (M.D.Fl.
May 20, 2005) (noting that absent a specific intent to return, a general statement
expressing an intent to return is not sufficient to establish standing). As a result,
summary judgment is granted as to the Title II claim under the ADA.
Even if Plaintiff could satisfy standing, summary judgment is granted because
there is no evidence that the City discriminated against her because of her disability.
The Aquarium and Back Bay Ale Houses are located on City property, but are managed,
owned or leased to private entities, which have not been named as defendants in this
lawsuit. In addition, under the circumstances here, it is not clear that the officers were
not able to communicate with plaintiff, and even if the method was not in line with ADA
standards, in responding to several sources of information from the different
establishments indicating that Plaintiff was acting out of control, the police officers
alleged failure to provide effective written communiation under the circumstances did
not violate the ADA. See Hainze v. Richards, 207 F.3d at 801. As a result, summary
judgment is granted as a matter of law as to Plaintiff’s claims against the City with
respect to the actions of Defendants Keith, Clayton, Bouffard, and Herrerias on
Plaintiff’s Title II and Section 504 claims.
2. Title III of the ADA and the NJLAD
Title III of the ADA prescribes, as a “[g]eneral rule”:
“No individual shall be discriminated against on the basis of disability in the
full and equal enjoyment of the goods, services, facilities, privileges,
advantages, or accommodations of any place of public accommodation by
any person who owns, leases (or leases to), or operates a place of public
42 U.S.C. § 12182(a).
For the same reasons stated above with respect to Plaintiff’s Title II and Section
504 claims, Plaintiff fails to satisfy her burden of proving standing and summary
judgment is granted in favor of the Defendants as to the Title III claims. In addition,
Plaintiff fails to name a place of public accommodation as a defendant in this matter.
However, she names Jack Keith, who is the Executive Director of the Foundation which
operates the Aquarium. Although the Ale House sits on Garner’s Basin, there is no
evidence suggesting that Keith has any function with respect to the operation of that
restaurant. As a result, her only potential claim under Tile III comes against Keith.
Because the Court finds that Plaintiff lacks standing to bring this claim, summary
judgment is granted.
3. NJLAD Claims
The NJLAD, N.J.S.A. § 10:5, prohibits discrimination against disabled persons.
Any qualified individual possesses standing to assert claims under the NJLAD. Like
Title III claims, the NJLAD provides that “[a]ll persons shall have the opportunity ... to
obtain all the accommodations, advantages, facilities, and privileges of any place of
public accommodation” without discrimination on the basis of disability. To that end,
N.J.S.A. 10:5–12 provides, in relevant part:
It shall be ... an unlawful discrimination:
f. (1) For any owner, lessee, proprietor, manager, superintendent, agent, or
employee of any place of public accommodation directly or indirectly to
refuse, withhold from or deny to any person any of the accommodations,
advantages, facilities or privileges thereof, or to discriminate against any
person in the furnishing thereof....
Courts consistently look to federal law for guidance in interpreting claims under
the NJLAD. Borngesser v. Jersey Shore Med. Ctr., 340 N.J.Super. 369, 380, 774 A.2d
615 (App. Div. 2001) (applying federal law under Section 504 of the Rehabilitation Act
of 1973, 29 U.S.C.A. §§ 701–796, as guidance on a LAD claim) (citing Leshner v.
McCollister's Transp. Sys., Inc., 113 F.Supp.2d 689, 691–92 n. 1 (D.N.J. 2000); Ensslin
v. Twp. of N. Bergen, 275 N.J.Super. 352, 363–64, 646 A.2d 452 (App. Div. 1994), certif.
denied, 142 N.J. 446, 663 A.2d 1354 (1995)); see also Chisolm v. McManimon, 275 F.3d
315, 324 n. 9 (3d Cir. 2001) (confining discussion to ADA Title II “with the
understanding that the principles will apply equally to the Rehabilitation Act and
NJLAD claims”). Most often, courts refer to the provisions of the ADA or § 504 of the
Federal Rehabilitation Act (“RA”) of 1973. See Chisolm, 275 F.3d at 325 n. 9 (looking to
the ADA for guidance); Borngesser v. Jersey Shore Med. Ctr., 340 N.J. Super. 369, 774
A.2d 615, 621 (N.J. Super. 2001) (relying on § 504 of the RA); Hall, 777 A.2d at 1009
(“For the purpose of this analysis, there are no significant distinctions between the RA
and LAD claims.”). Federal law requires that places of public accommodation furnish
members of the deaf community with an “appropriate auxiliary aid.” Chisolm, 275 F.3d
at 326 (citing 28 C.F.R. § 35.160(a)) (discussing Federal Regulations with respect to the
Plaintiff lacks standing to bring this claim for the same reasons that are fatal to
her ADA claim because there is no evidence in the record to support a prima facie case
of discrimination under the NJLAD. Plaintiff has failed to put forth evidence that she
faces a “real and immediate threat of future harm necessary for standing for prospective
relief-the only relief[.]” Cottrell v. Bobs Little Sport Shop, Inc., No. 09-CV-1987, 2010
WL 936212, at *3 (D.N.J. Mar. 11, 2010) (citing 42 U.S.C. §§ 12203(c), 12188; Cottrell v.
Zagami, LLC, No. 08-3340, 2009 WL 1416044, at *3 n. 1 (D.N.J. May 20, 2009))(other
citations omitted); see also Brown v. Fauver, 819 F.2d 395, 400 (1987). As a result, for
the same reasons Plaintiff lacks standing to assert a claim under the ADA, Plaintiff
cannot establish standing under the NJLAD and summary judgment is granted in favor
of Defendants. Id.
For the reasons stated herein, summary judgment is granted as to all claims
against Jack Keith and the Atlantic City Police Department, Police Officers Herrerias,
Bouffard, and Clayton in their official capacities, and Chief Mooney under §1983.
Summary judgment is granted as to the City of Atlantic City as to all claims under §1983
for municipal liability and the claims under the American with Disabilities Act, Section
504 of the Rehabilitation Act, and the New Jersey Law Against Discrimination.
Summary Judgment is denied as to the claims against Police Officers Herrerias,
Bouffard, and Clayton, in their individual capacities, pursuant to §1983 as to the claims
of false imprisonment and false arrest and malicious prosecution. Summary judgment
is granted with respect to Plaintiff’s claims under the Fourteenth Amendment and
Fourth Amendment Excessive Force Claim.
An appropriate Order shall issue.
Date: March 27, 2017
s/ Joseph H. Rodriguez
HON. JOSEPH H. RODRIGUEZ,
United States District Judge
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