CASTORAN v. POLLAK et al

Filing 72

OPINION. Signed by Judge Jerome B. Simandle on 10/25/2017. (tf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

F. PAULA CASTORAN,

HONORABLE JEROME B. SIMANDLE

Plaintiff,

Civil Action No.
14-2531 (JBS/AMD)

v.
OPINION
SGT. SCOTT M. POLLAK, et al.,
Defendants.

APPEARANCES:
F. Paula Castoran, Pro Se Plaintiff
635 West Street, Apt. #511
Ocean City, NJ 08226
Robert Merenich, Esq.
Gemmel, Todd & Merenich, P.A.
767 Shore Road
P.O. Box 296
Linwood, NJ 08221
Attorney for Defendants Sgt. Scott Pollak, Chief Robert
James, Northfield Police Department and the City of
Northfield, NJ.
Anne B. Taylor, Esq.
Assistant United States Attorney
401 Market Street, P.O. Box 2098
Camden, NJ 08101
Attorney for Defendants Kelly Hutchinson and the United
States Postal Service
SIMANDLE, District Judge:
I.

INTRODUCTION
This is an action by Plaintiff F. Paula Castoran seeking to

hold various federal and municipal defendants liable for a variety
of constitutional and common law tort claims1 arising out of a

1

The Court notes that Plaintiff’s Complaint [Docket Item 1] is
rather obscure as to indicating the particular causes of action in
which she seeks relief. However, pursuant to its duty to construe

series of police encounters that Plaintiff experienced in the City
of Northfield, NJ on September 21, 2012.
Presently before the Court are two distinct motions for
summary judgment, one submitted by “Federal Defendants” Postmaster
Kelly Hutchinson and the United States Postal Service, and the
other submitted by “Municipal Defendants” Sgt. Scott Pollak, Chief
Robert James, Northfield Police Department and the City of
Northfield.
The principal issues to be addressed include (1) whether
Plaintiff’s § 1983 claims challenging her arrest and prosecution
are barred by her underlying conviction; (2) whether Federal
Defendants have waived Sovereign Immunity; (2) whether Plaintiff
has exhausted the prerequisite administrative remedies in order to
hold Defendant United States Postal Service liable under the
Federal Tort Claims Act; (3) whether Defendant Northfield Police
Department can be sued separate from Defendant City of Northfield;
(4) whether Defendant Chief Robert James can be held liable under
the theory of respondeat superior; (5) whether the summary
judgment record contains sufficient facts that would allow a
reasonable fact finder to find that Defendant City of Northfield
had a custom or policy of discrimination that contributed to the

pro se Plaintiff’s pleadings liberally, the Court finds that
Plaintiff’s pleadings were sufficient to avoid sua sponte
dismissal. See Haines v. Kerner, 404 U.S. 519, 520-21, 92 S. Ct.
594, 30 L. Ed. 2d 652 (1972); United States v. Day, 969 F.2d 39,
42 (3d Cir. 1992)(In determining the sufficiency of a pro se
complaint, the Court must be mindful to construe it liberally in
favor of the plaintiff.).
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deprivation of Plaintiff’s constitutional rights; (6) whether the
summary judgment record contains sufficient facts that would allow
a reasonable fact finder to find that Plaintiff’s injury was a
highly predictable consequence of Defendant City of Northfield’s
failure to train; (7) whether Plaintiff filed a timely Notice of
Tort Claim in accordance to the provisions of the New Jersey Tort
Claims Act; (8) whether Defendant Pollak is entitled to qualified
immunity with respect to Plaintiff’s Fourth Amendment claims.
For the reasons set forth below, both, Federal Defendants’
and Municipal Defendants’ motion for summary judgment will be
granted.
II.

BACKGROUND
A. Factual Background2
On September 21, 2012, at approximately 11:00 AM, Defendant

Kelly Hutchinson, acting postmaster of the Northfield Post Office,
went outside the post office to investigate reports and complaints
of a person laying down on the ground outside of the post office.
[Docket Item 62-1 at ¶ 9.] After observing Plaintiff, outside,

2

The Court distills this undisputed version of events from the
parties’ statements of material facts, affidavits, and exhibits,
and recounts them in the manner most favorable to Plaintiff, as
the party opposing summary judgment. The Court disregards, as it
must, those portions of the parties’ statements of material facts
that lack citation to relevant record evidence (unless admitted by
the opponent), contain improper legal argument or conclusions, or
recite factual irrelevancies. See generally L. CIV. R. 56.1(a);
see also Kemly v. Werner Co., 151 F. Supp. 3d. 496, 499 n. 2
(D.N.J. 2015) (disregarding portions of the parties’ statements of
material facts on these grounds); Jones v. Sanko Steamship Co.,
Ltd., 148 F. Supp. 3d 374, 379 n. 9 (D.N.J. 2015) (same).
3

Defendant Hutchinson called the Northfield police to request that
they send officers over to ask Plaintiff to leave. (Id. at ¶ 10.)
Shortly thereafter, officers arrived, spoke to Plaintiff and
advised Defendant Hutchinson that Plaintiff was going to leave the
premises. (Id. at ¶ 11.) After the officers indicated that
Plaintiff was going to leave, Plaintiff entered the post office
and requested to speak to a supervisor. (Id. at ¶ 12.) Concerned
about Plaintiff’s behavior, Defendant Hutchinson went outside to
request additional assistance from the officers who had not yet
left the property. (Id. at ¶ 13.) The officers went back inside
the post office and asked Plaintiff to leave, yet Plaintiff
refused. (Id. at ¶ 16.) Plaintiff believed that she had a right to
take a nap on the premises of the Northfield Post Office because
it was “Federal property [that] [was] open to the public.” [Docket
Item 66 at 2.] According to the police report prepared by Sgt.
Pollak (Defendant Pollak), when he went back inside the post
office, he observed Plaintiff yelling at Defendant Hutchinson.
[Docket Item 63-3] However, Plaintiff denies this. [Docket Item 69
at ¶ 19.] Defendant Pollak’s police report also indicates that he
observed that “there were customers waiting to do business with
the post office, and [Plaintiff] was interfering with the
business.” [Docket Item 63-3 at 17.] Plaintiff was told that she
would be arrested if she did not leave. Because she did not leave,
the officers arrested Plaintiff. [Docket Item 62-1 at ¶ 22.]
Plaintiff was transported to the Northfield Police Department

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where she was processed, charged with Defiant Trespass and
Disorderly Conduct and released on the same day. [Docket Item 63-1
at ¶ 6-7.]
Not too long after Plaintiff was released, the Northfield
Police received a call/complaint regarding a claim that Plaintiff
was hitchhiking on Shore Road in Northfield, NJ. (Id. at ¶ 12.)
Defendant Pollak sent Officer Geiger to move Plaintiff along.
(Id.) Later that day, at approximately 2:17 PM, dispatch received
a call regarding a person sleeping along the Northfield bike path.
(Id. at ¶ 13.) Evidently, this person was thought to be ill or
dead. (Id.) Defendant Pollak responded to this call and went to
the scene to find Plaintiff sleeping along the bike path. (Id. at
¶ 18.) Defendant Pollak did not want Plaintiff to remain on the
bike path. (Id. at ¶ 20.) After a discussion with Plaintiff,
Defendant Pollak offered Plaintiff a ride. Once at the
Pleasantville Bus Terminal, Plaintiff refused to exit Pollak’s
patrol car. (Id. at 28). Plaintiff alleges that Defendant Pollak
said that he would rip her from the car, but Plaintiff was never
physically removed from the vehicle. According to the Detail for
Call Service, the entire incident, from the time of Pollak’s
response to the call at 2:20 PM, to clearing the call at the
Pleasantville Bus Terminal at 2:33 PM, lasted only thirteen
minutes. (Id. at 31.) Plaintiff filed criminal charges against
Defendant Pollak related to this event, and those charges were
dismissed for lack of probable cause. (Id. at 32.)

5

At the subsequent trial of Plaintiff on the Disorderly
Conduct and Defiant Trespass charges in Northfield Municipal
Court, Judge Louis J. Belasco heard three days of testimony about
the events at the Northfield Post Office on September 21, 2012, on
May 27, 2015, June 24, 2015 and August 7, 2015. [Docket Item 62-1
at ¶ 6.) Judge Belasco found the testimony of the officers to be
more credible and believable than Plaintiff’s testimony. (Id. at ¶
29.) The Judge found that the first contact between Plaintiff and
the police happened outside of the post office when police arrived
in response to a call from Postmaster Hutchinson and that
Plaintiff got upset because she believed she had a right to rest
on postal property because she paid taxes. (Id. at ¶ 30.) The
Judge further found that the officers determined Plaintiff should
be removed from the premises, to which she responded that she
wanted to buy a stamp. (Id. at ¶ 31.) The Judge found that the
officers permitted Plaintiff to go inside and that they then
entered the building, and observed Plaintiff speaking with a
raised voice, demanding to speak to a supervisor. (Id. at ¶ 32.)
Moreover, the Judge found that Plaintiff was instructed to leave
several times and disregarded those instructions, up to and
including the final warning that she would be arrested unless she
vacated the building. (Id. at ¶ 34.) The Judge concluded that
“while Plaintiff may have been obstreperous, she did not engage in
disorderly conduct.” (Id. at ¶ 35.) The Judge also concluded that
Plaintiff had been given a limited privilege to enter the post

6

office and buy a stamp, which she did not do. Consequently, the
Judge found her guilty of Defiant Trespass. (Id.)
On April 27, 2016, the Superior Court of New Jersey, Atlantic
County, upheld Plaintiff’s conviction of defiant trespass. [Docket
Item 62-8.] Currently, Plaintiff’s appeal from the Superior Court
disposition is pending before the Appellate Division of New
Jersey. (Pl. Dep. 53:7-54:18.)
B. Procedural History
On April 17, 2014, Plaintiff commenced a civil action against
various federal and municipal Defendants, contending that her
constitutional rights were violated when she was arrested on or
around September 21, 2012. [Docket Item 1.] Particularly,
Plaintiff has characterized her claims as seeking to hold the
federal and municipal Defendants liable for malicious prosecution,
slander and filing false police reports with law enforcement.
[Docket Item 66 at ¶ 4.] On April 27, 2016, Plaintiff consented to
the dismissal of her claims against the Municipal Court
Administrator for the City of Northfield, Donna Clark. [Docket
Item 46.]
On February 13, 2017, Federal Defendants Postmaster Kelly
Hutchinson and the United States Postal Service filed a Motion for
Summary Judgment pursuant to Fed. R. Civ. P. 56(c). [Docket Item
62.] On February 14, 2017, “Municipal Defendants,” Sgt. Scott
Pollak, Chief Robert James, Northfield Police Department and the
City of Northfield, filed a separate Motion for Summary Judgment

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pursuant to Fed. R. Civ. P. 56(c). [Docket Item 63.] Plaintiff
opposed both Motions for Summary Judgment. [Docket Items 65-66,
69.]
III. DISCUSSION
A. Summary Judgment Standard
At summary judgment, the moving party bears the initial
burden of demonstrating that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter
of law. Fed. R. Civ. P. 56(a); accord Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). Once a properly supported motion for
summary judgment is made, the burden shifts to the non-moving
party, who must set forth specific facts showing that there is a
genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250 (1986). In reviewing a motion for summary judgment, the
court is required to examine the evidence in light most favorable
to the non-moving party, and resolve all reasonable inferences in
that party's favor. Hunt v. Cromartie, 526 U.S. 541, 552 (1999);
Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir. 2007). Credibility
determinations are not appropriate for the court to make at the
summary judgment stage. Davis v. Portline Transportes Maritime
Internacional, 16 F.3d 532, 536 n.3 (3d Cir. 1994).
A factual dispute is material when it “might affect the
outcome of the suit under the governing law,” and genuine when
“the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson, 477 U.S. at 248. The

8

non-moving party “’need not match, item for item, each piece of
evidence proffered by the movant,’” but must simply present more
than a “mere scintilla” of evidence on which a jury could
reasonably find for the non-moving party. Boyle v. Cnty. of
Allegheny Pennsylvania, 139 F.3d 386, 393 (3d Cir. 1998)(quoting
Anderson, 477 U.S. at 252).
B. Plaintiff’s Claims Against Federal Defendants
Plaintiff seeks to hold Federal Defendants liable for alleged
malicious prosecution, slander and filing false police reports
with law enforcement . [Docket Item 66 at 4.] The Court has
construed Plaintiff’s pleadings and subsequent arguments as claims
under the Civil Rights Act at 42 U.S.C. § 1983 and the Federal
Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671 et seq..
1. Constitutional Claims Against Postmaster Hutchinson
As to any constitutional claims against Postmaster
Hutchinson, Federal Defendants argue that judgment should be
entered for Defendant Hutchinson for the following reasons:
“(1) Plaintiff remains convicted and thus has not
stated, and further is barred from seeking for, a
claim of constitutional harm allegedly resulting
from her arrest; (2) the factual basis of
Plaintiff’s conviction was the testimony of the
arresting police officers regarding Plaintiff’s
actions after the officers arrived at the [p]ost
[o]ffice, breaking the chain of causation between
any action by Defendant Hutchinson and Plaintiff’s
conviction; and (3) Defendant Hutchinson is
entitled to qualified immunity.”
[Docket Item 62-2 at 4.]
In order to establish a constitutional claim for malicious

9

prosecution pursuant to § 1983, a plaintiff must show the
following: 1) that the defendant initiated a criminal proceeding;
2) that the criminal proceeding ended in the plaintiff's favor; 3)
that the proceeding was initiated without probable cause; 4) that
the defendant acted maliciously or for a purpose other than
bringing the plaintiff to justice; and 5) that the plaintiff
suffered a deprivation of liberty consistent with the concept of
seizure as a consequence of a legal proceeding. McKenna v. City of
Philadelphia, 582 F.3d 447, 461 (3d Cir. 2009) (citing Estate of
Smith v. Marasco, 318 F.3d 497, 521 (3d Cir. 2003))
In the present case, Plaintiff’s malicious prosecution claim
fails on the second prong of the above-listed five-prong test, as
Plaintiff remains convicted of one of the two crimes with which
she was charged. [Docket Item 62-4 at 3.] (Pl. Dep. 53:7-54:18.)
Although Plaintiff is appealing her conviction to the New Jersey
Appellate Division, at this juncture, Plaintiff’s conviction
remains valid. Thus, Plaintiff’s malicious prosecution claim must
be dismissed. See also Heck v. Humphrey, 512 U.S. 477, 486-87
(1994)(imposing a universal favorable termination requirement on
all § 1983 plaintiffs attacking the validity of their conviction
or sentence); Deemer v. Beard, 557 F. App’x 162, 166 (3d Cir.
2014).
2. Constitutional Claims Against United States Postal
Service
Federal Defendants argue that, to the extent that Plaintiff
seeks to bring constitutional claims against the United States
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Post Office, any such claim fails as a matter of law. citing
Meirzwa v. United States, 282 F. App’x 973, 976-77 (3d Cir. 2008).
As Federal Defendants correctly point out, the United States
Post Service has not waived sovereign immunity for constitutional
claims. The doctrine of sovereign immunity bars all suits against
the United States except where such immunity is explicitly waived
by Congress. United States v. Mitchell, 445 U.S. 535, 538 (1980).
In Meirzwa, the Third Circuit affirmed the dismissal of the
plaintiff’s § 1983 claims against the United States “because the
United States sovereign immunity [had] not been waived in a case
such . . . where the [plaintiffs] [sought] damages for decisions
of the District Court in prior actions.” 282 F. App’x at 976. The
Court further clarified that the plaintiff’s claims could not be
maintained as a constitutional claim under Bivens v. Six Unknown
Named Agents, 403 U.S. 388 (1971). Id. at 977; See also Corr.
Servs. Corp. v. Malesko, 534 U.S. 61, 72 (2001)(a plaintiff may
not use Bivens to pursue constitutional claims against the United
States or its agencies); F.D.I.C. v. Meyer, 510 U.S. 471, 486
(1994)(declining to recognize a direct action for damages against
federal agencies).
Because the United States Postal Service, a federal agency,
has not waived its sovereign immunity, Plaintiff’s constitutional
claims against the United States Postal Service must be dismissed.
3. Tort Claims Against Postmaster Hutchison
Federal Defendants further aver that Plaintiff cannot pursue

11

a tort claim against Hutchinson, in her individual capacity,
because Hutchinson was acting within her scope of federal
employment at the time of the alleged tort occurred. [Docket Item
62-2 at 4, n. 2.] Thus, Federal Defendants argue that Plaintiff’s
tort claim can only proceed against the United States. (Id.)
28 U.S.C. § 2679(d) provides that, upon the certification of
the Attorney General that a federal employee was acting within the
scope of her employment at the time of the conduct from which the
tort claim arises, the claim “shall be deemed to be an action
against the United States, and “the United States shall be
substituted as the party defendant.” Such certification authority
has been delegated to the individual United States Attorneys. See
28 C.F.R. § 15.4.
In the present case, the Chief of the Civil Division of the
United States Attorney’s Office for the District of New Jersey
certified that Defendant Postmaster Hutchinson was acting within
the scope of her employment at the time of the conduct alleged in
the Complaint. [Docket Item 62-10.] Therefore, the Court finds
that Plaintiff’s tort claims against Defendant Hutchinson may only
proceed against the United States. See 28 U.S.C. § 2679(d); PerezBarron v. United States, 480 F. App’x 688, 691 (3d Cir. 2012)
(“[t]he FTCA delineates that a plaintiff may only sue the United
States . . .”); 39 U.S.C. § 409(c).

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4. Tort Claims Against United States Postal Service

3

As to any tort claims against the United States Postal
Service, Federal Defendants argue that judgment should be entered
for the United States Postal Service because (1) sovereign
immunity has not been waived for intentional torts; and (2)
Plaintiff did not exhaust her administrative remedies. Again,
Plaintiff has characterized her claims as seeking to hold the
federal and municipal Defendants liable for malicious prosecution,
slander and filing false police reports with law enforcement.
[Docket Item 66.]
Although the FTCA operates as a limited, qualified waiver of
the sovereign immunity that otherwise deprives courts of subject
matter jurisdiction over claims against the federal government and
its agencies, Section 2680(h) of the Act specifically excludes a
list of intentional torts. Those torts specifically excluded are
claims arising out of assault, battery, false imprisonment, false
arrest, malicious prosecution, abuse of process, libel, slander,
misrepresentation, deceit, and interference with contract rights.
This section has been read to explicitly prohibit suits for
intentional torts. See Millbrook v. United States, 569 U.S. 50, 52

3

"The United States is the only proper defendant in a suit for
personal injuries arising out of the negligence of Federal
employees. Individual agencies . . . may not be sued in their own
name in such a case." Quoting Dilg v. United States Postal
Service, 635 F. Supp. 406, 407 (D.N.J. 1986). The Court will,
accordingly, treat the claims asserted against the United States
Post Office as though they were asserted against the United
States.
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(2013); Prybyszewski v. Philadelphia, Civil Action No. 89-7024,
1990 U.S. Dist. LEXIS 354, at *7 (E.D. Pa. Jan. 16, 1990)
(dismissing Plaintiff’s slander and intentional infliction of
emotional distress claims under FTCA).
Plaintiff’s claims against the Federal Defendants for
malicious prosecution, slander and filing false police reports
with law enforcement must be dismissed pursuant to Section 2680(h)
of the FTCA, as the United States has not waived its sovereign
immunity with respect to intentional torts. Nevertheless, even if
these claims were not excluded, Plaintiff’s FTCA claims against
the United States Postal Service must fail because Plaintiff
failed to exhaust the prerequisite administrative remedies.
28 U.S.C. § 2675(a) mandates that an FTCA action "shall not
be instituted upon a claim against the United States for money
damages . . . unless the claimant shall have first presented the
claim to the appropriate Federal agency . . . ." Subsection (b) of
28 U.S.C. § 2675 further requires that an FTCA action "shall not
be instituted for any sum in excess of the amount of the claim
presented to the federal agency . . . ." Id. “Because the
requirements of presentation and a demand for a sum certain are
among the terms defining the United States' consent to be sued,
they are jurisdictional.” quoting United States v. Sherwood, 312
U.S. 584, 586 (1941). In other words, in order for this Court to
have jurisdiction over any of Plaintiff’s tort claims against the
United States, Plaintiff must have previously exhausted the

14

administrative remedies by timely presenting an administrative
claim containing a sum certain to the United States Postal
Service.
In the present case, Plaintiff did submit a “Notice of Tort
and Civil Rights Violation Claim,” dated December 20, 2012, to the
Northfield Post Office. However, this claim did not include a sum
certain. In an attempt to explain or excuse this void, Plaintiff
states that she did not include a sum certain because “at the time
[,] the damages were accruing and no sum certain existed.” The
Court finds that this is precisely the same argument proffered by
the plaintiff and rejected by the Court of Appeals in White-Squire
v. United States Postal Serv., 592 F.3d 453, 458 (3d Cir. 2010),
reasoning that “neither the FTCA nor the regulations promulgated
thereunder contain an exception to this sum certain requirement
when a claimant's damages continue to accrue through the two years
following accrual of a claim.” Id. The Third Circuit further
stated that “[c]reating an exception to the sum certain
requirement would constitute a judicial expansion of the waiver of
sovereign immunity embodied in the FTCA, something which only
Congress can effectuate.” Id.; See also Suarez v. United States,
22 F.3d 1064, 1065-66 (11th Cir. 1994)(refusing to create an
exception to the sum certain requirement where the claimant's
damages were unliquidated); Kokotis v. United States Postal Serv.,
223 F.3d 275, 279-80 (4th Cir. 2000)( declining to create an
exception to the sum certain requirement because of the claimant's

15

ongoing treatment and uncertainty regarding the extent of her
damages).
This Court is guided by the well-established precedent on
this issue. Because of Plaintiff’s failure to adhere to the
jurisdictional obligation to present a claim for a sum certain to
the United States Postal Service, this Court lacks jurisdiction
over Plaintiff’s FTCA tort claims against the United States Postal
Service. Thus, Plaintiff’s FTCA tort claims against the United
States Post Service shall be dismissed.
C. Plaintiff’s Claims Against Municipal Defendants
Plaintiff seeks to hold Municipal Defendants, Northfield
Police Department, Chief Robert James, Sgt. Scott Pollak and the
City of Northfield liable for various constitutional and common
law torts including malicious prosecution, slander and filing
false police reports with law enforcement.
1. Claims Against the Northfield Police Department
First, Municipal Defendants aver that the Northfield Police
Department cannot be sued in conjunction with the City of
Northfield because the Police Department is merely an
administrative arm of the City itself. [Docket Item 63-2 at 2.]
citing Bonenberger v. Plymouth Twp., 132 F.3d 20, 25 n.4 (3d Cir.
1997).
"In New Jersey a municipal police department is not an entity
separate from the municipality, N.J.S.A. § 40A:14-118 (municipal
police department is 'an executive and enforcement function of

16

municipal government'); therefore, the Northfield Police
Department is not a proper defendant in this action." Adams v.
City of Camden, 461 F. Supp. 2d 263, 266 (D.N.J. 2006); see also
Padilla v. Twp. of Cherry Hill, 110 Fed. Appx. 272, 278 (3d Cir.
2004) (unpublished opinion); DeBellis v. Kulp, 166 F. Supp. 2d
255, 264 (E.D. Pa. 2001)("In Section 1983 actions, police
departments cannot be sued in conjunction with municipalities,
because the police department is merely an administrative arm of
the local municipality, and is not a separate judicial entity.")..
Because the Department "is not an entity separate from the
municipality," Adams, 461 F. Supp. 2d at 266, it cannot be sued in
conjunction with the municipality, irrespective of the nature of
the plaintiff's claims. The Court will thus dismiss the Northfield
Police Department from the suit.
2. Constitutional Claims Against Chief Robert James
Next, Municipal Defendants argue that Plaintiff’s claims
against Chief James should be dismissed as a matter of law because
Plaintiff has not identified any “personal involvement” rising to
a constitutional violation that Chief James has had with her case.
Plaintiff contends that Chief Robert James was the top supervisor
of the Northfield Police Department during the time in question,
yet “[Chief Robert James] did nothing to stop defendants from
maliciously prosecuting plaintiff, nor to discipline them,
especially Defendant Pollak.” Plaintiff further argues that her
action against Chief James “is based upon Respondeat Superior.”

17

[Docket Item 69 at 1.]
“Both the NJCRA [New Jersey Civil Rights Act] and § 1983
premise liability [for supervisory liability] on personal
involvement in the alleged misconduct, and neither allow claims
premised solely on respondeat superior." quoting Baklayan v.
Ortiz, 2012 U.S. Dist. LEXIS 48705, 2012 WL 1150842, at *6 (D.N.J.
Apr. 5, 2012); see also Didiano v. Balicki, No. 10-4483, 2011 U.S.
Dist. LEXIS 41785, 2011 WL 1466131, at *6 (D.N.J. Apr. 18, 2011)
(stating that “[c]ourts have repeatedly construed the NJCRA in
terms nearly identical to its federal counterpart: Section 1983”
and holding that neither § 1983 nor the NJCRA “provide a remedy
for alleged constitutional violations committed by the State of
New Jersey” because the state and a state prison are not
"person[s]" within the meaning of the NJCRA.).
The Court cannot identify, nor has Plaintiff provided, any
citations to any New Jersey court decisions that permit a finding
of municipal liability based on respondeat superior for claims
brought under the New Jersey Constitution and the NJCRA.
Therefore, because respondeat superior liability is not permitted
under § 1983, and because New Jersey courts interpret the NJCRA as
analogous to § 1983, the Court holds that respondeat superior
liability is not permitted for claims under the New Jersey
Constitution and the NJCRA. See, e.g., Collins v. City of Harker
Heights, 503 U.S. 115, 122 (1992)(holding that a "city is not
vicariously liable under § 1983 for the constitutional torts of

18

its agents"); Monell v. Dep't of Social Svcs. of City of New
York,436 U.S. 658, 663 n.7 (1978)(upholding Monroe v. Pape,
"insofar as it holds the doctrine of respondeat superior is not a
basis for rendering municipalities liable under § 1983 for the
constitutional torts of their employees"); C.P. v. Twp. Of
Piscataway Bd. of Educ., 293 N.J. Super. 421, 681 A.2d 105, 112
(N.J. Super. Ct. App. Div. 1996) ("a municipality will not be held
liable for federal civil rights claims based solely on respondeat
superior.").
In the present case, Plaintiff explicitly states that her
action against Chief James “is based upon Respondeat Superior.”
[Docket Item 69 at 1.] Further, Plaintiff fails to allege any
conduct that would allow a reasonable fact finder to conclude that
Chief Robert James had actual knowledge or personal involvement in
any violation of Plaintiff’s constitutional rights. See Rode v.
Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)(”A defendant in
a civil rights action must have personal involvement in the
alleged wrongs; liability cannot be predicated solely on the
operation of respondeat superior.”). Pursuant to the wellestablished case law on the issue of respondeat superior liability
for claims under NJCRA [New Jersey Civil Rights Act] and § 1983,
the Court will dismiss all state and federal constitutional claims
against Chief Robert James.
3.

Constitutional Claims Against the City of Northfield

Municipal Defendants argue that all of Plaintiff’s

19

constitutional claims against the City of Northfield should be
dismissed because Plaintiff “has not plead any specific challenged
policy; nor has she set forth any case that Northfield had any
policy or custom which was the moving force in the alleged
deprivation of her constitutional rights.” [Docket Item 62-2 at 35.] In response to these assertions, Plaintiff argues that the
City of Northfield “maintained an indirect bias against any nonresident who appear[ed] to be very poor and homeless. . .” [Docket
Item 69 at 4.] Plaintiff further argues that the City of
Northfield should also be held liable for their failure to train
their policeman as to “how to deal with homeless folks.” Id. The
Court will address Plaintiff’s two-fold argument on this issue
separately.
i. Alleged Custom of Discriminating Against
Poor/Homeless
In Monell, the Supreme Court established the rule for
imposing liability against a municipality under § 1983. The Court
held:
"[A] local government may not be sued under § 1983
for an injury inflicted solely by its employees or
agents. Instead, it is when execution of a
government's policy or custom, whether made by its
lawmakers or by those whose edicts or acts may
fairly be said to represent official policy,
inflicts the injury that the government as an
entity is responsible under § 1983."
Monell v. Dep't of Soc. Servs., 436 U.S. 658(1978).
To prevail on a Monell claim asserting municipal liability, a
plaintiff must first establish that the municipality had a policy

20

or custom that contributed to the deprivation of her
constitutional rights. See McTernan v. City of York, 564 F.3d 636,
657 (3d Cir. 2009) (recognizing that there is a “two-path track to
municipal liability under § 1983,” either through government
policy or custom); Mattern v. City of Sea Isle, 131 F. Supp. 3d
305, 318 (D.N.J. 2015). “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 [sic].” Andrews v. City of Philadelphia, 895 F. 2d 1469,
1480 (3d Cir. 1990) (citation 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. (quoting Monell, 436
U.S. at 698).
Once a policy or custom has been shown to exist, it must be
shown that the allegedly unconstitutional conduct causally
resulted from that policy or custom. Lapella v. City of Atlantic
City, No. 10-2454, 2012 U.S. Dist. LEXIS 100327, 2012 WL 2952411,
at *4 (D.N.J. July 18, 2012).
In Pembaur v. City of Cincinnati, the Supreme Court held
that, for purposes of section 1983, a single decision by a final
policymaker could, under appropriate circumstances, establish
municipal liability. 475 U.S. 469 (1986). Moreover, the United
States Court of Appeals for the Third Circuit has instructed that
"a plaintiff must show that an official who has the power to make

21

policy is responsible for either the affirmative proclamation of a
policy or acquiescence in a well-settled custom." Bielevicz v.
Dubinon, 915 F.2d 845, 850 (3d Cir. 1990)(citing Andrews v. City
of Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990)); accord
Woodwind Estates, Ltd. v. W.J. Gretkowski, 205 F.3d 118, 126 (3d
Cir. 2000). “In order to identify who has policymaking
responsibility, ‘a court must determine which official has final,
unreviewable discretion to make a decision or take an action.’”
Bielevicz, 915 F.2d at 850 (quoting Andrews, 895 F.2d at 1481);
accord Blanche Road Corp. v. Bensalem Township, 57 F.3d 253, 269
n. 16 (3d Cir. 1995). This determination is based upon state law.
See City of St. Louis v. Praprotnik, 485 U.S. 112, 124 (1988);
Andrews, 895 F.2d at 1481.
In New Jersey, the head of police acts pursuant to the
policies promulgated by the "appropriate authority," which is
defined by statute as "the mayor, manager, or such other
appropriate executive or administrative officer, such as a fulltime director of public safety . . . ." See N.J.S.A. 40A:14-118;
Santiago v. City of Vineland, 107 F. Supp. 2d 512, 540 (D.N.J.
2000).
In the present case, the Court finds that Plaintiff arguably
identifies an alleged custom of discrimination against poor and
homeless people maintained by the City of Northfield. To support
this argument, Plaintiff directs the Court’s attention to the
incidents that took place on September 21, 2012, arguing that

22

Defendant Pollak’s decision to drop her off in Pleasantville,
which she characterizes as “a community full of hard drug users,
drug addicts, welfare mothers, felons, thieves, racial bigots,
etc., a dangerous place for a White woman,” was meant to send her
a message that “you don’t belong in upper middle class towns – you
belong with the other decadent members of society![sic]” [Docket
Item 69 at 4.] Though Plaintiff identifies an alleged custom of
arguably unlawful discrimination against the poor or homeless
population, the Court finds that Plaintiff fails to produce any
evidence to show that a City of Northfield official who had the
power to make policy is responsible for either the affirmative
proclamation of a policy or acquiescence in a well-settled custom
of discrimination against the poor or homeless population.
Bielevicz, 915 F.2d at 850. Further, to the extent that Plaintiff
avers that Defendant Pollak or Chief James were responsible for
either the affirmative proclamation of a policy or acquiescence in
a well-settled custom of discrimination, the Court rejects this
argument because Plaintiff has failed to produce any evidence in
the summary judgment record which could lead a reasonable
factfinder to conclude that Defendant Pollak or Chief James was a
final policymaker for the City of Northfield. See Santiago, supra,
107 F. Supp. 2d at 540(dismissing plaintiff’s racial
discrimination claims under § 1983 claims because plaintiff failed
to produce evidence that the Chief of Police was a final policy
maker for the City of Vineland).

23

ii. Failure to Train
Where the plaintiff alleges that the municipality failed to
train law enforcement personnel, it may be held liable “if the
failure to train amounts to a deliberate indifference to the
rights of persons with whom the police come in contact.” Id.
(citing City of Canton v. Harris, 489 U.S. 378, 388 (1989)). To
succeed on such a claim, a plaintiff must (1) identify the
deficiency in training, (2) prove that the deficiency caused the
constitutional violation, and (3) prove that the failure to remedy
the deficiency reflected deliberate indifference on the part of
the municipality. Malignaggi v. County of Gloucester, 855 F. Supp.
74, 77 (D.N.J. 1994). While a claim asserting municipal liability
under Monell is ordinarily established by showing a pattern of
constitutional violations, see Bd. of Cnty. Comm'rs of Bryan Cnty.
v. Brown, 520 U.S. 397, 403-407 (1997), the Supreme Court has
recognized that where a violation of federal rights is a "highly
predictable consequence" of an inadequate municipal policy or
custom in a situation that is likely to recur, municipal liability
may attach upon a single application of that custom. Id. at 409-10
(citing Canton, 489 U.S. at 390); see also Connick v. Thompson,
563 U.S. 51 (2011) (a single incident may trigger municipal
liability where unconstitutional consequences for failure to train
are "patently obvious"). The Third Circuit has applied this
"single-incident liability" theory to failure-to-train claims, but
has recognized that it also applies "to other claims of

24

[municipal] liability through inaction." Berg v. Cnty. of
Allegheny, 219 F.3d 261, 276 (3d Cir. 2000). To find deliberate
indifference from a single-incident violation, the risk of
Plaintiff's injury must be a "highly predictable consequence" of
the City of Northfield’s failure to provide training as to how to
encounter the poor/homeless population as a part of training for
its police officers. Brown, supra, 520 U.S. at 403-407.
The Court finds that, at best, Plaintiff’s failure-to-train
claim is of the “single-incident liability” theory, as Plaintiff
fails to produce evidence of a pattern of alleged constitutional
violations involving the Northfield Police Department and the
poor/homeless population. Moreover, the Court finds that Plaintiff
fails to allege facts that would allow a reasonable fact finder to
find that Plaintiff's injury was a “highly predictable consequence”
of the City of Northfield’s failure to provide training as to how
to encounter the poor or homeless population. In fact, Plaintiff’s
Complaint does not mention a failure to train at all.4 [See Docket
Item 1.] The only mention of a failure to train is in Plaintiff’s
Response Brief, wherein Plaintiff states that, “a look at
Defendant Pollak’s training record shows nothing of how to deal
with homeless folks in general.” [Docket Item 69 at 4.] The Court
finds that this is insufficient to permit the inference of
"deliberate indifference" from a single-incident violation for the

4

"Stating . . . a claim requires a complaint with enough factual
matter (taken as true) to suggest" the required element. Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 545 (2007).
25

purposes of a § 1983 claim for failure to train. See Moriarty v.
DiBuonaventura, Civil Action No. 14-cv-2492 (JBS/AMD), 2014 U.S.
Dist. LEXIS 104361, at *25 (D.N.J. July 30, 2014); but see Thomas
v. Cumberland Cty., 749 F.3d 217, 225 (3d Cir. 2014)(reversing the
grant of defendant’s motion for summary judgment as to plaintiff’s
§ 1983 claims against County where plaintiff produced evidence
that fights regularly occurred in the prison and expert opinion
evidence that the failure to provide conflict de-escalation and
intervention training was a careless and dangerous practice not
aligned with prevailing standards). Moreover, there are no facts
in the Complaint or the entire record to suggest that Defendant
Pollak’s actions were the result of a lack of training, as opposed
to the Defendant Pollak’s individual actions.
For the reasons listed above, the constitutional claims
against the City of Northfield will be dismissed.
4.

Constitutional Claims Against Defendant Pollak

Plaintiff appears to bring two § 1983 claims against
Defendant Pollak for a variety of alleged Fourth Amendment
violations related to the events that took place on September 21,
2012. [Docket Items 1, 69.] Specifically, it appears that the
Plaintiff seeks to hold Defendant Pollak liable for malicious
prosecution, based on his role in the aforementioned incident at
the Northfield Post Office that ultimately led to Plaintiff being
convicted of Defiant Trespass. [Docket Item 1, ¶ 23.] It also
appears that Plaintiff seeks to hold Defendant Pollak liable for

26

allegedly “kidnapping” Plaintiff by “lock[ing] Plaintiff in the
back of [Defendant Pollack’s] squad car” and dropping her off at
an undesired location. [Docket Item 1, ¶17.] Municipal Defendants
principally contend that Plaintiff’s constitutional claims against
Defendant Pollack must fail because 1) Plaintiff has not suffered
a sufficient deprivation of liberty to establish a § 1983
malicious prosecution action; and, 2) Defendant Pollak is entitled
to qualified immunity. [Docket Item 62-2 at 6-10.]
i. Plaintiff’s § 1983 Malicious prosecution Claim
The Court notes that Plaintiff’s § 1983 malicious prosecution
claim against Defendant Pollak must fail for the same reasons that
Plaintiff’s § 1983 malicious prosecution claim against Federal
Defendants fails – Plaintiff remains convicted of one of the two
crimes in which she was charged. See Heck v. Humphrey, 512 U.S.
477, 486-87 (1994)(imposing a universal favorable termination
requirement on all § 1983 plaintiffs attacking the validity of
their conviction or sentence); Deemer v. Beard, 557 F. App’x 162,
166 (3d Cir. 2014). Thus, Plaintiff’s § 1983 malicious prosecution
claim against Defendant Pollak must be dismissed.
The Court will now turn its attention to whether Defendant
Pollack is entitled to qualified immunity with respect to
Plaintiff’s Fourth Amendment claim.
ii. Qualified Immunity
The doctrine of qualified immunity "balances two important
interests — the need to hold public officials accountable when

27

they exercise power irresponsibly and the need to shield officials
from harassment, distraction, and liability when they perform
their duties reasonably." Pearson v. Callahan, 555 U.S. 223, 231
(2009). Under this doctrine, government officials are immune from
liability for civil damages as long 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); Kelly v. Borough of Carlisle, 622 F.3d
248, 253 (3d Cir. 2010). The doctrine “gives ample room for
mistaken judgments” and “protect[s] all but the plainly
incompetent or those who knowingly violate the law.” See Kelly,
622 F.3d at 254 (internal quotation marks and citations omitted).
Qualified immunity will not, however, act as a shield for “the
official who knows or should know he is acting outside the law.”
Butz v. Economou, 438 U.S. 478, 506-07 (1978). In each case, the
government's interests must be balanced against the citizens’
interest in vindicating their constitutional rights, as well as
the public interest in holding officials accountable “when they
exercise power irresponsibly.” Pearson, 555 U.S. at 231.
The qualified immunity defense is traditionally analyzed in
two steps. First, the court must decide whether the facts alleged,
taken in a light most favorable to the plaintiff, make out the
violation of a constitutional right. Saucier v. Katz, 533 U.S. 194
(2001). Next, the court must examine whether the right at issue
was "clearly established" at the time of the challenged conduct.

28

To be "clearly established," a right must be sufficiently clear
such that a reasonable official would have known that his conduct
was unlawful. Reichle v. Howards, 566 U.S. 658 (2012). More
recently, the Supreme Court emphasized again that while a case
directly on point is not required to show that a right was
“clearly established,” “’existing precedent must have placed the
statutory or constitutional question beyond debate.’” Mullenix v.
Luna, 136 S. Ct. 305, 308 (2015)(citation omitted). The two prongs
to the qualified immunity inquiry need not be analyzed in
sequential order; courts have discretion to decide which of the
two prongs to tackle first. Ashcroft v. al-Kidd, 563 U.S. 731, 735
(2011); Pearson, 555 U.S. at 236.
At summary judgment, courts are required to view the facts
and draw reasonable inferences in the light most favorable to the
party opposing the summary judgment motion. United States v.
Diebold, Inc., 369 U.S. 654 (1962)(per curiam); Saucier, 533 U.S.
at 201. "In qualified immunity cases, this usually means adopting
. . . the plaintiff's version of the facts." Scott, 550 U.S. at
378. In other words, the inquiry is the following: "Taken in the
light most favorable to the party asserting the injury, do the
facts alleged show the officer's conduct violated a constitutional
right", and that the right was clearly established? Saucier, 533
U.S. at 201.
Although the question of qualified immunity is generally a
question of law, "a genuine issue of material fact will preclude

29

summary judgment on qualified immunity." Giles v. Kearney, 571
F.3d 318, 326 (3d Cir. 2009); see also Curley v. Klem, 298 F.3d
271, 278 (3d Cir. 2002) (noting that "a decision on qualified
immunity will be premature when there are unresolved disputes of
historical fact relevant to the immunity analysis."). The court
must deny summary judgment if, on the plaintiff's version of the
facts, defendants violated the plaintiff's clearly established
constitutional rights. Giles, 571 F.3d at 327 (finding that the
district court was wrong to dismiss Eighth Amendment claims on
qualified immunity grounds because there was a factual dispute as
to whether plaintiff had ceased resisting when he was kicked by
officers, and that the court “must accept [the plaintiff's]
version of the facts.”).
iii. Fourth Amendment – Reasonableness of the Seizure
To determine the reasonableness of a seizure, the court asks
whether the officer's conduct was "objectively reasonable" in
light of the totality of the circumstances, without regard to the
underlying intent or motivation. Graham, 490 U.S. at 397 (citing
Terry v. Ohio, 392 U.S. 1, 21 (1968)); Kopec v. Tate, 361 F.3d
772, 776 (3d Cir. 2004). The "objective reasonableness" inquiry
requires an examination of 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." Graham v. Connor, 490 U.S.

30

386 (1989). Additional factors include "the possibility that the
persons subject to the police action are themselves violent or
dangerous, the duration of the 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
police officers must contend at one time." Rivas v. City of
Passaic, 365 F.3d 181, 198 (3d Cir. 2004)(quoting Sharrar v.
Felsing, 128 F.3d 810, 822 (3d Cir. 1997)). The Court should not
apply “the 20/20 vision of hindsight,” but should instead consider
the "perspective of a reasonable officer on the scene." Id.; see
also Kopec, 361 F.3d at 777.
According to Plaintiff, following her release from the
Northfield Police Department on September 12, 2012, she decided to
lay down in a Northfield public park. [Docket Item 1 at ¶15.]
Plaintiff was not blocking any bike path or causing any other
disturbance. [Docket Item 69 at 2.] Nevertheless, at approximately
2:17 PM, dispatch received a call regarding a person sleeping
along the Northfield bike path. [Docket Item 62-1 at ¶ 13.]
Evidently, Plaintiff was thought to be ill or dead. (Id.)
Defendant Pollak responded to this call and went to the scene to
find Plaintiff sleeping along the bike path. (Id. at ¶ 18.)
Defendant Pollak did not want Plaintiff to remain on the bike
path. (Id. at ¶ 20.) When Plaintiff started to walk away,
Defendant Pollak asked where she going. [Docket Item 1 at ¶16.]
Plaintiff informed Defendant Pollack that she was walking to Shore

31

Road in Northfield in order to take the bus to Somers Point. (Id.)
Defendant Pollak offered Plaintiff a ride. However, according to
Plaintiff, once Plaintiff entered Defendant Pollack’s patrol
vehicle, Defendant Pollak locked the car door and drove Plaintiff
to a Pleasantville bus terminal, as opposed to the Shore Road bus
stop. (Id. at ¶17.) Plaintiff tried to open the door of the
vehicle and banged on the glass of the windows of the vehicle
while insisting that she did not want to go to Pleasantville.
(Id.) Once at the Pleasantville Bus Terminal, Plaintiff refused to
exit Pollak’s patrol car. [Docket Item 62-1 at ¶ 28.) Plaintiff
alleges that Defendant Pollak said that he would “rip her” from
the vehicle, but Plaintiff was never physically removed from the
vehicle. [Docket Item 1 at ¶ 19.] Plaintiff demanded that she be
taken back to Northfield, and Defendant Pollak refused. [Docket
Item 1 at ¶ 17.] According to the Detail for Call Service, the
entire incident, from the time of Pollak’s response to the call at
2:20 PM, to clearing the call at the Pleasantville Bus Terminal at
2:33 PM, lasted only thirteen minutes. [Docket Item 63-5 at 17.]
Essentially, Plaintiff argues that Defendant Pollack’s decision to
drive her to the bus in Pleasantville, as opposed to the bus stop
for Somers Point where she states that she wanted to go,
constitutes an unreasonable seizure of her person.
The Court rejects this argument. The Court finds that,
considering totality of the circumstances, Defendant Pollak’s
conduct was objectively reasonable. This is not a case where

32

Plaintiff is alleging that the officer used excessive force. But
see Marshall v. Keansburg Borough, No. 13-533, 2013 U.S. Dist.
LEXIS 164968, 2013 WL 6095475, at *7 (D.N.J. Nov. 20, 2013) ("[N]o
reasonable officer in the Defendant Officers' positions would have
believed that throwing Plaintiff into their police vehicle,
kicking Plaintiff's legs out from him, tackling Plaintiff to the
ground, kneeing Plaintiff in his ribs and back, and choking
Plaintiff was a lawful, reasonable amount of force to use under
the circumstances."); Troso v. City of Atl. City, No. 10-1566,
2013 U.S. Dist. LEXIS 44460, 2013 WL 1314738, at *9 (D.N.J. Mar.
28, 2013) (finding that slamming plaintiff against a police car,
and "pummeling" him in the head, neck, and shoulder area by the
officers' fist and arms was objectively unreasonable); Brown v.
Camden Cty. Counsel, No. 06-6095, 2007 U.S. Dist. LEXIS 8351, 2007
WL 433326, at *3 (D.N.J. Feb. 2, 2007) (holding that plaintiff may
be able to establish that defendant is liable for using excessive
force in violation of the Fourth Amendment where he asserts that
defendant savagely beat plaintiff, even though plaintiff did not
possess a weapon, resist arrest, or attempt to flee). Plaintiff
was not arrested, nor was she assaulted in any manner. Rather,
this is a case where, according to Plaintiff, Defendant Pollak
merely offered to give Plaintiff a ride to one location, yet took
Plaintiff to another location, another bus stop that would allow
Plaintiff to reach her ultimate destination. The Court notes that
Plaintiff stated that she initially “wanted to go to Shore Road to

33

get the (507) bus to Somers Point.” [Docket Item 1 at ¶16.]
However, Plaintiff was observed hitchhiking on Shore Road two
hours prior. [Docket Item 63-3 at 15.] Thus, the Court finds that
it was objectively reasonable for Defendant Pollak to drive
Plaintiff to another bus stop that would allow Plaintiff to reach
her ultimate destination, without placing Plaintiff in the exact
location where the Northfield Police Department received
complaints of Plaintiff hitchhiking. The Court further notes that
the involved locations in Northfield and Pleasantville are within
a few minutes of each other.
For this reason, the Court finds that Defendant Pollak did
not violate an established Fourth Amendment right of Plaintiff’s.
A reasonable police officer in Defendant Pollak’s position could
believe, in the circumstances he confronted, that escorting
Plaintiff to the security of the Pleasantville bus station for her
intended trip to Somers Point, rather than to the Shore Road bus
stop, considering Plaintiff had earlier been hitchhiking along
Shore Road and sleeping along the bike path, was a reasonable
exercise of temporary police restraint to protect Plaintiff from
harm and to assist her planned journey. Therefore, the Court finds
that qualified immunity shields Defendant Pollak from liability
with respect to Plaintiff’s Fourth Amendment claim. Such claim
against Defendant Pollak will be dismissed.
5.

Common Law Tort Claims Against Municipal Defendants

Municipal Defendants initially averred that Plaintiff’s state

34

law negligence claims (Slander, Filing False Police Reports, etc.)
must be dismissed with prejudice because Plaintiff had not filed a
timely New Jersey Tort Claims Act Notice. [Docket Item 63-2 at 5.]
In response, Plaintiff submitted what she claims to be a timely
filed Notice of Tort Claim, stamped with a “PAID” stamp indicating
a date of December 21, 2012. [Docket Item 69 at 5.]
When it enacted N.J.S.A. 59:8-8 (the New Jersey Tort Claims
Act), the New Jersey Legislature imposed a strict constraint on
public entity liability. Jones v. Morey's Pier, Inc., 230 N.J. 142,
154 (2017). That provision mandates that “[a] claim relating to a
cause of action for death or for injury or damage to person or to
property shall be presented . . . not later than the 90th day
after accrual of the cause of action.” N.J.S.A. 59:8-8. If notice
is not timely served in accordance with the statute, "[t]he
claimant shall be forever barred from recovering against a public
entity." See D.D. v. Univ. of Med. & Dentistry of N.J., 213 N.J.
130, 134, 61 A.3d 906 (2013)(explaining consequences of party's
failure to meet ninety-day deadline); Rogers v. Cape May Cty.
Office of Pub. Defs., 208 N.J. 414, 420, 31 A.3d 934 (2011)
(noting that Tort Claims Act establishes procedures for bringing
claims, which "include filing of a timely notice").
Although the Court is skeptical as to the authenticity of
Plaintiff’s New Jersey Tort Claims Act Notice, the Court declines
to speculate in that regard. Rather, the Court assumes that the
document stamped “PAID” is authentic, and the Court simply finds

35

that Plaintiff’s purported Notice of Tort Claim was not timely.
The alleged torts took place on Friday, September 21, 2012, yet
the Notice of Tort Claim that Plaintiff produced is dated for
Friday, December 21, 2012, ninety-one days following the accrual
of the cause of action. Additionally, Plaintiff does not claim
that any of the few exceptions to the ninety day time limit are
applicable. See N.J.S.A. 59:8-9 (providing exception to the
ninety-day time limit if extraordinary circumstances are present);
Beauchamp v. Amedio, 164 N.J. 111, 117 (2000)(recognizing
exceptions where “the victim either is unaware that he has been
injured or, although aware of an injury, does not know that a
third party is responsible”).
For this reason, the Court finds that Plaintiff’s state law
claims are barred by the New Jersey Tort Claims Act due to
untimeliness. Such will be dismissed.
IV. CONCLUSION
For the aforementioned reasons, Federal Defendants’ motion
for summary judgment will be granted. Additionally, Municipal
Defendants’ motion for summary judgment will be granted. An
appropriate order follows.

October 25, 2017
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge

36