KAILIE v. SWEET et al

Filing 77

OPINION. Signed by Judge Robert B. Kugler on 5/2/2017. (tf, n.m.)

NOT FOR PUBLICATION

(Doc. No. 69)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
___________________________________
:
James KAILIE,
:
:
Plaintiff,
:
Civil No. 13-4792 (RBK/AMD)
:
v.
:
Opinion
:
Joseph E. SWEET, et al.,
:
:
Defendant(s). :
___________________________________ :
KUGLER, United States District Judge:
This matter comes before the Court on Plaintiff James Kailie’s (“Plaintiff”) Complaint
against Defendants Joseph E. Sweet and City of Brigantine (“Defendants”) asserting claims of
illegal search and seizure, excessive force, First Amendment retaliation, and Monell liability
(Doc. No. 1). Currently before the Court is Defendants’ Motion for Summary Judgment (Doc.
No. 69). For the reasons expressed below, Defendants’ Motion is GRANTED IN PART.
I.

BACKGROUND
A.

Factual Background

Plaintiff is an African-American who was traveling with a passenger, Corey Redfern,
from Maryland to New Jersey on December 3, 2012. Def.’s Statement of Undisputed Material
Facts (“SMF”) ¶¶ 1, 14.1 Plaintiff was driving a truck. Id. ¶ 31. At 11:08 p.m., Defendant Sweet
stopped Plaintiff in Brigantine, New Jersey, Defendant Sweet claims for speeding. Def.’s Motion

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To the extent the parties agree on particular facts, the Court will cite Defendant’s Statement of
Undisputed Material Facts and Plaintiffs’ Counter Statement of Undisputed Material Facts.
Otherwise, the Court will rely on the record for disputed facts.

for Summary Judgment (“MSJ”) Ex. A, at 7. Defendants claim that Brigantine at the time
maintained a “high visibility” police presence to prevent thefts and crime; many residents had
evacuated following Hurricane Sandy, there had been break-ins, and people entering the City in
trucks had stolen property. Def.’s MSJ Ex. B, at 96; Ex. E; Ex. D, at 33.
Upon being pulled over, Plaintiff asked the reason for the stop but claims Defendant
Sweet did not answer. Pl.’s Opp’n, Kailie Cert. ¶¶ 12–14. He then presented a Maryland driver’s
license and Pennsylvania registration. Def.’s SMF ¶ 15. Defendant Sweet checked the license
and did not find any infractions, suspensions, or warrants. Pl.’s SMF ¶ 11. Defendant Sweet then
requested an insurance card. While Defendant claims Plaintiff was not carrying proof of
insurance, Def.’s MSJ Ex. A, at 8, Plaintiff asserts he did not have time to locate it because
Defendant Sweet demanded he exit the car, Pl.’s Opp’n Ex. A, at 82, 85, 90. According to
Plaintiff, he offered to show a copy of the card on his mobile phone, offered to retrieve his
destination address from the GPS, and called the car seller to corroborate his story, but
Defendant Sweet refused to listen. Id. at 85, 90.
When Plaintiff asked Defendant Sweet why he needed to exit the vehicle, Defendant
Sweet supposedly refused to answer. Pl.’s Opp’n Ex. B, at 26–27. Defendant Sweet did not see a
weapon or perceive danger in the stop. Pl.’s Opp’n Ex. C, at 54. However, he nonetheless
decided to conduct a patdown because he found Plaintiff’s story suspicious. Def.’s MSJ Ex. A, at
14. Plaintiff’s license was from a different state than the registration, he claimed to be purchasing
a car late at night, he did not know the seller’s name, and he said he was leaving the country the
following morning. Id. Furthermore, Defendant Sweet was alone. Id.
The parties dispute the scope of the patdown. Defendant Sweet claims he checked the
outside of Plaintiff’s front and rear pockets as well as the waistband. Id. at 35. At no point did he

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reach into Plaintiff’s pockets, although he may have momentarily placed his hands on Plaintiff’s
buttocks. Id. By contrast, Plaintiff claims that Defendant Sweet forced Plaintiff to turn around,
slammed him into the side of the car, shoved his head against the door jamb, and asked if he
wanted to be hurt. Pl.’s Opp’n Ex. A, at 87, 90–91. Plaintiff also accuses Defendant Sweet of
touching his scrotum, buttocks, anus, and inside and outside of his thighs. Id. at 87, 93. The frisk
lasted ten seconds. Def.’s SMF ¶ 41.
Defendant Sweet did not discover any weapons or contraband. Pl.’s SMF ¶ 19. However,
Plaintiff contends that Defendant Sweet nonetheless proceeded to search him two or three more
times. Pl.’s Opp’n Ex. A, at 94–95. Defendant Sweet eventually directed Plaintiff to sit on the
curb between his vehicle and the police vehicle, Def.’s SMF ¶¶ 45–46, Plaintiff claims by
physically forcing him down by his shoulders and then pulling him back up, several times, Pl.’s
Opp’n Ex. A, at 82, 99–100. Throughout the encounter, Defendant Sweet also allegedly reached
for his weapon on multiple occasions, which made Plaintiff fear for his life. Id. at 109. Defendant
Sweet, by contrast, claims he simply told Plaintiff to sit on the curb and never pushed or pulled
him. Def.’s MSJ Ex. D, at 31–32. Plaintiff sat for about two to three minutes. Id.
Defendant Sweet then placed Plaintiff in the backseat of the police vehicle while he
questioned Mr. Redfern. See Def.’s SMF ¶ 66. Defendant Sweet asserts he did this to protect
Plaintiff from incoming cars. Def.’s SMJ Ex. A, at 15, 20–21. On his way into the car, Plaintiff
bumped his head. While Defendants claim the bump was accidental, Def.’s SMJ Ex. D, at 42–43,
Plaintiff states that Defendant Sweet shoved his head into the door while threatening, “I am
going to arrest you and lock you up,” Pl.’s Opp’n Ex. A, at 82, 101. Plaintiff estimates he was in
the car for about ten minutes. Id. at 103. During this time, Defendant Sweet questioned Mr.

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Redfern, who confirmed that he and Plaintiff were in Brigantine to purchase a car. Def.’s MSJ
Ex. A, at 21; Ex. D, at 35.
While Plaintiff was in the back of Officer Sweet’s vehicle, Officer William Stroby
arrived at the scene. Def.’s SMF ¶¶ 73, 80. According to Plaintiff, Defendant Sweet stopped
reaching for his weapon and handling him with violence upon the other officer’s arrival. Pl.’s
Opp’n Ex. A, at 107. Officer Stroby supposedly told Plaintiff that Defendant Sweet had been
robbed two days prior, which is why he was behaving aggressively. Id. at 96, 104. At this point,
Plaintiff received a citation, returned to his truck, and drove away. Pl.’s SMF ¶ 38. The entire
encounter with Defendant Sweet lasted 31 minutes. Def.’s SMF ¶ 18.
Plaintiff claims several injuries as a result of the incident. He alleges bruises and swelling
on his head. Pl.’s Opp’n Ex. A, at 102–04. Although he did not seek medical assistance that
night, he later went to a doctor in Sierra Leone. Def.’s SMF ¶ 63; Pl.’s Opp’n Ex. A, at 101–03.
In addition, his preexisting condition of post-traumatic stress disorder worsened. Pl.’s Opp’n Ex.
A, at 145, 154. He has trouble sleeping, does not trust others, experiences physical anxiety
around police cars, and avoids going outside. Id. at 145, 157–59. Plaintiff regularly attends
therapy, as often as twice a week. Id. at 163.
B.

Procedural History

Plaintiff brought a Complaint, pro se, on August 9, 2013 (Doc. No. 1). On March 16,
2015, Plaintiff filed a Substitution of Attorney indicating that he had procured representation
(Doc. No. 32). Defendants brought their first Motion for Summary Judgment on February 29,
2016 (Doc. No. 57). On July 27, 2016, the Court issued an Order denying the Motion for
Summary Judgment without prejudice and instructing Plaintiff to amend the Complaint now that
he had representation (Doc. No. 65). On August 5, 2016, Plaintiff filed an Amended Complaint

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(Doc. No. 66), and on September 2, 2016, Defendants brought the present Motion for Summary
Judgement (Doc. No. 69).
II.

LEGAL STANDARD
The Court should grant a motion for summary judgment when the moving party “shows

that there is no genuine dispute as to any material fact and that the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). An issue is “material” to the dispute if it could alter the
outcome, and a dispute of a material fact is “genuine” if “a reasonable jury could return a verdict
for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986);
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting First
Nat’l Bank of Az. v. Cities Serv. Co., 391 U.S. 253, 289 (1968)) (“Where the record taken as a
whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine
issue for trial.’”). In deciding whether there is any genuine issue for trial, the court is not to
weigh evidence or decide issues of fact. Anderson, 477 U.S. at 248. Because fact and credibility
determinations are for the jury, the non-moving party’s evidence is to be believed and
ambiguities construed in its favor. Id. at 255; Matsushita, 475 U.S. at 587. However, the court
should not adopt a version of the facts that is “blatantly contradicted by the record, so that no
reasonable jury could believe it.” Blaylock v. City of Phila., 504 F.3d 405, 413 (3d Cir. 2007).
Although the movant bears the burden of demonstrating that there is no genuine issue of
material fact, the non-movant likewise must present more than mere allegations or denials to
successfully oppose summary judgment. Anderson, 477 U.S. at 256. The non-moving party must
at least present probative evidence from which the jury might return a verdict in his favor. Id. at
257. Where the non-moving party 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

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at trial,” the movant is entitled to summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986).
III.

DISCUSSION
A.

Amendment of the Complaint

Defendants ask the Court to reconsider its Order issued July 27, 2016 directing Plaintiff
to amend the Complaint. Local Civil Rule 7.1(i) requires that motions for reconsideration be
served and filed within 14 days of the order in question being entered. Here, more than 30
elapsed between the Order and Defendants’ request for reconsideration. Defendants’ request is
untimely and the Court will not strike the Amended Complaint.
B.

Qualified Immunity

Defendants argue that Defendant Sweet has qualified immunity against the claims of
illegal search and seizure and excessive force. Qualified immunity protects officers from liability
“insofar as their conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
To determine whether qualified immunity applies, “the [C]ourt must consider whether the facts
alleged, taken in the light most favorable to the plaintiff, show that the officer’s conduct violated
a constitutional right.” Kopec v. Tate, 361 F.3d 772, 776 (3d Cir. 2004). Then, “if a violation
could be made out on a favorable view of the parties’ submissions, the [Court must] ask whether
the right was clearly established.” Saucier v. Katz, 533 U.S. 194, 201 (2001). A right is clearly
established when “it would be clear to a reasonable officer that his conduct was unlawful in the
situation he confronted.” Id. A district court enjoys flexibility in deciding which of the two
prongs of the qualified immunity analysis to address first. Pearson v. Callahan, 555 U.S. 223,
236 (2000). The defendant bears the burden to prove qualified immunity. See Thomas v.

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Independence Twp., 463 F.3d 285, 293 (3d Cir. 2006). The Court proceeds to analyze the
qualified immunity defense in the below sections on illegal search and seizure and excessive
force.
C.

Illegal Search and Seizure

The Fourth Amendment of the United States Constitution prohibits “unreasonable
searches and seizures.” U.S. Const. amend. IV. “To establish an unlawful search and seizure
under the Fourth Amendment, a plaintiff must show that the defendant’s actions: (1) constituted
a “search” or “seizure” within the meaning of the Fourth Amendment, and (2) were
“unreasonable” in light of the surrounding circumstances.” Williams v. Temple Univ., No. 04831, 2011 WL 2516234, at *3 (E.D. Pa. June 21, 2011) (citing Browner v. Cty. of Inyo, 489 U.S.
593, 595–600 (1989)). Plaintiff here alleges that Defendant Sweet executed both an illegal search
and seizure.
1.

Search
a.

Violation of A Right

Plaintiff asserts that Defendant Sweet conducted an illegal search by frisking Plaintiff,
searching his pockets, touching his genital area, and searching him multiple times. A Terry stop
requires two inquiries: (1) whether the officer had reasonable articulable suspicion to stop the
person; and (2) whether the officer had reasonable and articulable suspicion to frisk the person.
United States v. Focareta, 283 F. App’x. 78, 83 (3d Cir. 2008). Reasonable suspicion is an
objective standard requiring “particularized justification.” United States v. Crandell, 554 F.3d
79, 84 (3d Cir. 2009). “Reasonable suspicion [required for a Terry stop] is a less demanding
standard than probable cause [necessary for an arrest] and requires a showing considerably less

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than preponderance of the evidence. . . . [R]easonable suspicion can arise from information that
is less reliable than that required to show probable cause.” Id. (citations omitted).
“A traffic stop requires only reasonable suspicion to believe that a traffic violation has
been committed.” United States v. Mosley, 454 F.3d 249, 255 n.9 (3d Cir. 2006). A protective
frisk must be limited to discovering whether the person is armed; it is not a general search for
evidence of crime. Adams v. Williams, 407 U.S. 143, 146 (1972). Thus, the frisk must generally
be confined to the outer clothing, and a further intrusion under the surface of the clothing (e.g.,
into a pocket) must be limited to where the officer discovers evidence of a weapon upon the
initial patdown. See Terry, 392 U.S. at 29–30. However, an officer can forgo the general
patdown and can reach directly into the area where the officer has a reasonable suspicion that a
weapon is stored. See Adams, 407 U.S. at 147–48 (permitting reach into waistband for gun);
Focareta, 283 F. App’x. at 132 (permitting reach into pocket for gun).
In this case, Defendant Sweet pulled over Plaintiff because the radar unit indicated he
was driving above the speed limit. There was clearly reasonable suspicion. As for whether
Defendant Sweet had reasonable suspicion to conduct a frisk, Plaintiff argues that Defendant
Sweet testified that he did not spot any weapons or otherwise perceive Plaintiff as a danger.
Defendant Sweet claims that he nonetheless undertook a frisk because Plaintiff’s story was
suspicious. Plaintiff does not dispute that he claimed he was in the area late at night to purchase a
vehicle, he was accompanied by another passenger, and the officer was alone. The Court finds
that these circumstances are enough to create reasonable suspicion. Thus, the decision to pat
down Plaintiff was not an unreasonable search.
Plaintiff additionally asserts that Defendant Sweet exceeded the scope of a frisk by
reaching into his pant pockets, touching his private areas, and searching Plaintiff multiple times.

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Defendant Sweet claims that he only conducted a standard patdown once. Defendants urge the
Court to adopt Defendant Sweet’s account because Plaintiff did not mention in his original
Complaint or conversations with an investigative website that multiple searches took place. This
is a potential incongruence for the factfinder to resolve and does not permit the Court at this
juncture to adopt Defendants’ version as a matter of law. Viewing the facts in the light most
favorable to Plaintiff, the Court finds that a frisk where Defendant Sweet supposedly searched
Plaintiff’s pockets would constitute a violation of the Fourth Amendment right. Thus, the Court
proceeds to analyze whether the right was clearly established.
b.

Clearly Established Law

The Supreme Court in 1968 stated that a police officer can only reach under the surface
of clothing if she finds evidence of a weapon after an initial patdown. See Terry, 392 U.S. at 29–
30. Thus, it would have been unreasonable for Defendant Sweet to believe it lawful to search
Plaintiff’s pockets. Qualified immunity is not a defense available to Defendant Sweet, and the
claim of an unreasonable search proceeds past summary judgment.
2.

Seizure
a.

Clearly Established Law

Plaintiff also alleges that Defendant Sweet executed an illegal seizure in locking Plaintiff
in the backseat of his police vehicle. Under the Fourth Amendment, a seizure occurs “when [a
police officer], by means of physical force or show of authority, has in some way restrained the
liberty of a citizen.” Terry, 392 U.S. at 19–20 n.16. The “show of authority” test “is an objective
one: Not whether the citizen perceived that he was being ordered to restrict his movement, but
whether the officer’s words and actions would have conveyed that to a reasonable person” in
light of all the surrounding circumstances. California v. Hodari D., 499 U.S. 621, 628 (1991).

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Next, the plaintiff must also show that the seizure was unreasonable in light of the surrounding
circumstances. The Supreme Court has stated that the warrantless seizure of a person for a brief
investigatory detention is reasonable absent a warrant, provided the officer had “a reasonable,
articulable suspicion that criminal activity is afoot.” Illinois v. Wardlow, 528 U.S. 119, 123
(2000). However, the police cannot “verify their suspicions by means that approach the
conditions of arrest.” Florida v. Royer, 460 U.S. 491, 499 (1983).
For example, there is a Fourth Amendment violation where the person is taken to a police
car, transported to the police station, and placed in an interrogation room with no indication he is
free to go. Dunaway v. New York, 442 U.S. 200, 212 (1979); Kaupp v. Texas, 538 U.S. 626, 631
(2003). There was also an unreasonable seizure where detectives at an airport took a person’s
ticket and identification before asking him to enter a room for fifteen minutes and searching his
luggage. Florida v. Royer, 460 U.S. 491, 502–06 (1983). Furthermore, a police officer cannot
detain the occupant of a residence beyond the immediate vicinity of the premises being searched.
Bailey v. United States, 568 U.S. 186 (2013).
The parties do not dispute that Defendant Sweet conduct a patdown of Plaintiff, found no
weapons, instructed him to sit on the curb, and then placed him in the back of the police car with
the doors locked. Defendant Sweet claims that he moved Plaintiff so he could be safe from
incoming cars while Defendant Sweet asked questions of Mr. Redfern. The Court is aware of no
clearly established law that states it is unconstitutional for an officer to place a person in a
vehicle for safety purposes. As the Court reviewed, the line of cases involving Terry stops
prohibits officers from transporting a person to a separate interrogation location; none pronounce
it unconstitutional for an officer to place someone in a car near the scene for his safety while
completing the rest of the stop. Plaintiff likewise points to no such precedent. Thus, the Court

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finds that Defendant Sweet could reasonably have thought his course of conduct was
permissible. The claim for illegal seizure is barred by qualified immunity, and the Court grants
summary judgment as to this claim.
D.

First Count — Excessive Force
1.

Violation of A Right

For a Fourth Amendment excessive force analysis, “whether there is a constitutional
violation is properly analyzed under the Fourth Amendments’ objective reasonableness
standard.” Curley v. Klem, 499 F.3d 199, 206 (3d Cir. 2007) (quoting Graham v. Connor, 490
U.S. 386, 388 (1989)) (internal quotation marks omitted). “The test of reasonableness under the
Fourth Amendment is whether under the totality of the circumstances, the officers’ actions are
‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard
to their underlying intent or motivations.” Kopec v. Tate, 361 F.3d 772, 776 (3d Cir. 2004)
(quoting Graham, 490 U.S. at 397) (internal quotation marks omitted). “[T]he ‘reasonableness’
of a particular use of force must be judged from the perspective of a reasonable officer on the
scene; Monday morning quarterbacking is not allowed.” Lamont v. New Jersey, 637 F.3d 177,
183 (3d Cir. 2011) (quoting Graham, 490 U.S. at 396) (internal quotation marks omitted).
In Graham, the Supreme Court expounded on the reasonableness inquiry, stating that it
“requires careful attention to the facts and circumstances of each particular case, including the
severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the
officers or others, and whether he is actively resisting arrest or attempting to evade arrest by
flight.” 490 U.S. at 396. The Third Circuit has noted other relevant factors including “the
duration of the [officer’s] action, whether the action takes place in the context of effecting an
arrest, the possibility that the suspect may be armed, and the number of persons with whom the

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police officers must contend at one time.” Sharrar v. Felsing, 128 F.3d 810, 822 (3d Cir. 1997),
abrogated on other grounds by Curley v. Klem, 499 F.3d 199 (3d Cir. 2007).
It is also important to consider whether “the physical force applied was of such an extent
as to lead to injury.” Mellott v. Heemer, 161 F.3d 117, 122 (3d Cir. 1998) (quoting Sharrar, 128
F.3d at 822). Appropriate attention should be given “to the circumstances of the police action,
which are often ‘tense, uncertain, and rapidly evolving.’” Groman v. Twp. of Manalapan, 47
F.3d 628, 634 (3d Cir. 1995) (quoting Graham, 490 U.S. at 396) (“Not every push or shove, even
if it may later seem unnecessary,” violates the constitution.). However, “[e]ven where an officer
is initially justified in using force, he may not continue to use such force after it has become
evident that the threat justifying the force has vanished.” Lamont, 637 F.3d at 184. “The
reasonableness of the use of force is normally an issue for the jury.” Rivas v. City of Passaic, 365
F.3d 181, 198 (3d Cir. 2004).
In accordance with the Graham and Sharrar factors, the Supreme Court and Third Circuit
have found that the force exerted was reasonable in situations where the civilian posed some
threat, resisted the officers, or took off on flight. See Estate of Smith, 430 F.3d 140, 150 (3d Cir.
2005) (officers believed person was armed with a laser-sighted weapon); Sharrar, 128 F.3d at
815–16, 822 (officers were attempting to arrest four men, one of whom may have been armed);
Carswell v. Borough of Homestead, 381 F.3d 235, 243 (3d Cir. 2004) (officer faced person who
had charged at police cruiser); Brosseau v. Haugen, 543 U.S. 194, 200–01 (2004) (officers were
pursuing person who fled in car). The Third Circuit has found that there is a potential excessive
force claim where the officer, during a traffic stop, grabbed the plaintiff’s neck and struck him
twice with a flashlight, where the man was agitated but unarmed. Green v. N.J. State Police, 246
F. App’x 158, 161–62 (3d Cir. 2007).

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Plaintiff asserts that Defendant Sweet slammed him into the side of his car, shoved his
head against the door jamb, pushed and pulled him on and off the curb, and shoved his head into
the door as he was placed in the police car. It is undisputed that Plaintiff was unarmed, complied
with Defendant Sweet’s instructions, and showed no intention of fleeing: Defendant Sweet did
not uncover any weapons upon an initial patdown, and Plaintiff followed directions to exit the
car, sit on the curb, and enter the police vehicle. Furthermore, Plaintiff was detained for a
nonviolent offense, a traffic stop, and not placed under arrest. Viewing the facts in the light most
favorable to Plaintiff, Plaintiff did not exhibit any of the uncooperative or threatening conduct
present in cases where courts justified the use of force. As such, the Court finds that a reasonable
factfinder could conclude that Defendant Sweet used excessive force during the December 3,
2012 stop and violated Plaintiff’s constitutional rights.
2.

Clearly Established Law

Having determined that a reasonable jury could conclude that Defendant violated
Plaintiff’s constitutional rights, the Court must decide whether those rights were clearly
established at the time Defendant Sweet engaged in the allegedly unconstitutional conduct. The
inquiry into whether a constitutional right is clearly established “must be undertaken in light of
the specific context of the case.” Saucier, 533 U.S. at 201. A right is clearly established when “it
would be clear to a reasonable officer that his conduct was unlawful in the situation he
confronted.” Id. at 202. The Court must assess whether the right was clearly established at the
time the officers acted. Anderson v. Creighton, 483 U.S. 635, 639 (1987). The Third Circuit has
held that “[a] reasonable officer would be guided by the Sharrar factors in determining whether
to use overwhelming force in a given situation” and is not entitled qualified immunity if he
unreasonably applied the factors. Estate of Smith v. Marasco, 430 F.3d 140, 150 (3d Cir. 2005).

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Defendant Sweet stopped Plaintiff on December 3, 2012. In 2012, the Sharrar factors, as
well as the Supreme Court and Third Circuit cases cited above, see supra Section III.D.1, clearly
established that shoving a person’s head and body against a vehicle multiple times constitutes
excessive force, where the person was detained for a nonviolent offense, determined to be
unarmed, and cooperated. Thus, Defendant Sweet should have known that such actions were
unlawful. Defendant Sweet is not entitled to qualified immunity, and the Court denies the motion
for summary judgment against the First Count.
E.

Second Count — Race Discrimination

The Equal Protection Clause provides that no state shall “deny to any person within its
jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV. This is not a command
that all persons be treated alike, but rather a direction that all persons similarly situated be treated
alike. See City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). “The central
purpose of the Equal Protection Clause of the Fourteenth Amendment is the prevention of
official conduct discriminating on the basis of race.” Washington v. Davis, 426 U.S. 229, 239
(1976), or any other suspect classification. To make a claim of selective enforcement under the
Equal Protection Clause, a plaintiff must prove that the defendants’ actions (1) had a
discriminatory effect and (2) were motivated by a discriminatory purpose. Vill. of Arlington
Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264–66 (1977). A showing of discriminatory
effect requires a showing that the plaintiff was a member of a protected class, and that he was
treated differently from those similarly situated who were not in that protected class. Bradley v.
United States, 299 F.3d 197, 205–06 (3d Cir. 2002). In racial profiling cases, where
discriminatory purpose may be hard to prove, “statistical evidence of discrimination may be the
only means of proving a discriminatory effect.” Id. at 206.

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In this matter, Plaintiff provides no evidence speaking to the treatment of members
outside his class or statistical evidence of discrimination. He thus fails to meet the burden of
proffering some evidence from which a jury could find a discriminatory effect. As a result, the
Court grants the Motion for Summary Judgment as to the claim under the Equal Protection
Clause.
F.

Third Count — Retaliation

Plaintiff also brings a retaliation claim under the First Amendment. However, he presents
no evidence supporting the claim beyond the allegations in the pleadings, neither in the
Statement of Undisputed Material Facts nor its Opposition Brief. Because Plaintiff bears the
burden of proving the First Amendment claim at trial and has presented no evidentiary support,
the claim cannot survive summary judgment. The Court grants Defendants’ Motion as to the
Third Count.
G.

Fourth Count — Monell

To hold a city liable under section 1983, the plaintiff must demonstrate that her rights
were violated by a policy or custom of the city and that such policy or custom has been “the
moving force” behind the deprivation of her constitutional rights. See Monell v. Dep’t of Soc.
Servs. of City of N.Y., 436 U.S. 658, 694 (1978). Municipal policy generally involves a
“statement, ordinance, regulation, or decision officially adopted and promulgated by [a local
governing] body’s officers.” Id. at 690. A municipal custom, although lacking the formal
approval of a policy, refers to those official practices which are “so permanent and well settled as
to constitute . . . the force of law.” Id. at 691. Under certain circumstances, a municipality’s
failure to properly train its employees and officers can amount to a “custom” that will trigger
liability under section 1983. See City of Canton v. Harris, 489 U.S. 378, 388 (1989). When a

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plaintiff alleges that a policy “concerns a failure to train or supervise municipal employees,
liability under section 1983 requires a showing that the failure amounts to ‘deliberate
indifference’ to the rights of persons with whom those employees will come into contact.”
Thomas v. Cumberland Cty., 749 F.3d 217, 222 (3d Cir. 2014) (citations omitted). “A pattern of
similar constitutional violations by untrained employees is ‘ordinarily necessary’ to demonstrate
deliberate indifference for purposes of failure to train.” Connick v. Thompson, 563 U.S. 51, 61
(2011) (citations omitted). In general, a municipality may be liable under section 1983 if it
tolerates known illegal conduct by its employees. Id. In such circumstances, it can be said to
have a custom that evidences deliberate indifference to the rights of its inhabitants if: (1)
policymakers were aware that municipal employees had deprived others of certain constitutional
rights; (2) it failed to take precautions against future violations; and (3) this failure led, at least in
part, to the plaintiff’s suffering the same deprivation of rights. See id. (citing Bielevicz v.
Dubinon, 915 F.2d 845, 851 (3d Cir. 1990)).
1.

Failure to Train

Plaintiff alleges that Defendant Brigantine failed to properly train its officers. However,
he furnishes no support that Defendant Brigantine was aware of a pattern of similar
constitutional violations committed by its untrained employees. He relies solely on portions of
the expert report authored by Rivera that summarily conclude that inadequate training was a
cause of Defendant Sweet’s decision to detain Plaintiff for an unreasonable duration of time.
Such statements do not constitute evidence of previous, similar incidents based on which
Defendant Brigantine knew or should have known that its course of training was inadequate.
Thus, no reasonable factfinder could find Defendant Brigantine liable under Monell for a failure
to train.

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2.

Failure to Investigate

In Beck v. City of Pittsburgh, the Third Circuit recognized that a section 1983 claim for
damages against a municipality could survive summary disposition where the plaintiff offered
evidence suggesting that the municipality’s chief law enforcement policymaker knew about and
acquiesced in a custom that tolerated the use of excessive force by city police officers. 89 F.3d
966 (3d Cir. 1996). Specifically, the plaintiff offered into evidence a series of detailed excessive
force complaints against the defendant police officer who had allegedly injured plaintiff. The
Court found the introduction of these records sufficient “for a reasonable jury to infer that the
Chief of Police of Pittsburgh . . . knew, or should have known, of [the defendant officer’s]
violent behavior in arresting citizens.” Id. at 973. That is, because the officer had allegedly used
excessive force on numerous occasions in the past before allegedly using such force against the
plaintiff in Beck, there arose disputed issues of fact whether an informal policy of acquiescence
existed and whether it had caused the plaintiff’s alleged injuries. Accordingly, the Third Circuit
panel reversed the trial court’s grant of judgment as a matter of law in favor of the defendant
municipality. Id. at 976.
Since the Beck decision, trial courts in this Circuit have grappled with the issue of what
type of evidence a plaintiff must adduce in support of a Monell municipal liability claim under
section 1983 in order to survive summary judgment. For instance, 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.” Merman v.
City of Camden, 824 F. Supp. 2d 581, 591 (D.N.J. 2010) (citing Strauss v. City of Chicago, 760
F.2d 765, 768–69 (7th Cir. 1985)). Instead, if a plaintiff wishes to rely principally on statistics
showing the frequency of excessive force complaints and the rate at which those complaints are

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sustained, she must show why those prior incidents were wrongly decided and “how the
misconduct in those cases is similar to that involved in the present action.” See Franks v. Cape
May Cty., No. Civ. 07-6005, 2010 WL 3614193, at *12 (D.N.J. Sept. 8, 2010). One way to do
this would be to show, as was done in the Beck case, that the officer whom a plaintiff accuses of
using excessive force has been the subject of multiple similar complaints in the past. See Beck,
89 F.3d at 975; see also Garcia v. City of Newark, No. Civ. 08-1725 (SRC), 2011 WL 689616, at
**3–5 (D.N.J. Feb. 16, 2011) (denying defendant municipality’s motion for summary judgment
on plaintiff’s section 1983 claim when plaintiff presented evidence that the six individual
defendants together accounted for more than 55 complaints for excessive force and false arrest in
the 11 years prior to the incidents at issue in that case).
Plaintiff asserts that expert Rivera found multiple errors in how Defendant Brigantine
investigated Plaintiff’s complaint. Plaintiff, however, provides no facts regarding how the City
handled past complaints regarding Defendant Sweet. Nor does Plaintiff show that the city failed
to institute a formal system for tracking complaints. In absence of any indication that Defendant
Brigantine knew of similar past incidents, a reasonable jury could not find that the City had an
informal policy of authorizing or condoning Defendant Sweet’s actions. Accordingly, the Court
grants Defendants’ Motion for Summary Judgment on the failure to investigate claim under
Monell.
IV.

CONCLUSION
For the reasons expressed above, Defendants’ Motion for Summary Judgment is

GRANTED IN PART.

Dated:

5/2/2017

s/ Robert B. Kugler
ROBERT B. KUGLER
United State District Judge
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