RODRIGUEZ v. MILLER et al
OPINION. Signed by Judge Renee Marie Bumb on 1/29/2016. (TH, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Jean Emmanuel Rodriguez,
John J. Miller, et al.
Civ. Action No. 14-6290 (RMB)
Jean Emmanuel Rodriguez
100 New Road
Somers Point, NJ 08244
Plaintiff pro se
Thomas B. Reynolds, Esq.
Reynolds & Horn, P.C.
750 Route 73 South
Marlton, New Jersey 08053
Counsel for Defendants Detective John J. Miller, Detective
Sargeant John G. Barbieri, Patrolman Shawn G. McKelvey, and
Patrolman Mark G. McElwee, Jr.
BUMB, District Judge
This matter comes before this Court upon the motion for
summary judgment of Defendants John J. Miller, John G. Barbieri,
Shawn G. McKelvey and Mark G. McElwee, Jr. [Mot. for S.J., ECF
No. 24.]1 Plaintiff Jean Emmanuel Rodriguez filed this action in
Atlantic County Superior Court on September 10, 2014. (Compl.,
ECF. No. 1-1 at 3-5.) Defendants removed the action to this
Court on October 9, 2014. (Notice of Removal, ECF No. 1 at 2.)2
Discovery was conducted. Defendants brought the present
motion for summary judgment on October 9, 2015. Plaintiff
opposed the motion on the basis that he needed additional
discovery to respond. (Response to S.J. Mot. (“Pl’s Resp.”) ECF
No. 26.) Defendants filed a reply. [Brief in Supp. of Reply to
Response to Mot. for S.J. (“Def’s Reply”), ECF No. 27.)
This Court has considered the pleadings, motions, briefs
and supporting documents, and will decide the motion on the
papers, pursuant to Federal Rule of Civil Procedure 78(b). For
Defendant S.T. has not been served. A summons was reissued on
December 10, 2015, but has not been returned as executed. (ECF
No. 31.) Because the Complaint was initially removed and filed
in this Court on October 9, 2014, it is well beyond the 120 day
period for service of the Complaint under Federal Rule of Civil
Procedure 4(m), in effect at the time the Complaint was filed.
Therefore, the Court will dismiss the claims against S.T.
without prejudice pursuant to Fed.R.Civ.P. 4(m).
Prior to filing the present complaint in the Atlantic County
Superior Court in New Jersey, Plaintiff filed a similar civil
rights complaint in this Court on October 17, 2013. See
Rodriguez v. Thews, 13cv6178(RMB) (D.N.J.) The case was
administratively terminated when Plaintiff could not be
contacted and did not provide the Court with his forwarding
address. (ECF No. 10.)
Plaintiff filed another nearly identical Complaint in this Court
on December 2, 2013. Rodriguez v. Thews(RMB), 13cv7217 (D.N.J.)
The case was terminated on June 27, 2014, because it was
duplicative of Civil Action No. 13-6178. Id., ECF No. 2.
the reasons explained below, the Court will grant Defendants’
motion for summary judgment
In his Complaint, Plaintiff alleged the following. On
August 12, 2013, Defendants:
Conceived of a false statement(s) to have
Plaintiff incarcerated on false allegation
of burglary. The five defendants created
events that did not occur and pressed
criminal charges they knew to be false. The
defendants conspired to operate under color
of law to deny Plaintiff of State and
Federal Constitutional Rights.
Defamation. They created a lie to portray me
as a scoundrel. They told their lie in order
to convict me of a crime I did not commit.
False imprisonment. Their actions took 18
months of my life. Their actions put me in a
vile place where I was deprived of my civil
Psychological/Emotional, Social Distress.
The actions of John J. Miller, Shawn
McKelvey, John G. Barbieri, Mark G. McElwee,
Jr. and S.T. has created hatred, mistrust,
and apathy within my being. I feel that
corruption is everywhere and my optimism is
(ECF No. 1-1 at 3-4.)
In support of their motion for summary judgment, Defendants
submitted a Statement of Material Facts with attached exhibits.
(ECF No. 24-4.) In summary, Plaintiff was arrested by officers
of the Somers Point Police Department on August 12, 2013. (Id.,
¶9, and Arrest Report, Ex. C.) Patrolman Mark G. McElwee, Jr.
wrote the arrest report, indicating that he responded to a
dispatch call about a subject trying to gain entry into an
apartment. (Id., ¶10, Ex. C.) The Patrol spoke to the victim,
located the accused, who was highly intoxicated, and took the
accused into custody. (Id.) As a result of the incident,
Plaintiff was charged with Criminal Attempt, N.J.S.A. 2C:51a(1); Burglary, N.J.S.A. 2C:18-2; and Disorderly Conduct,
N.J.S.A. 2C:33-2 under Criminal Warrant W-2013-000569. (Id.,
¶12, Ex. C.)
Patrolman Shawn G. McKelvey, who also responded to the
dispatch call, wrote an Investigation Report on August 12, 2013.
(Id., ¶13, Ex. C.) He interviewed the victim, who stated that
the accused asked to enter her apartment, and when she refused,
he tried to push his way in. (Id., ¶¶14-15, Ex. C.) The victim
identified the accused before he was taken into custody. (Id.
¶16, Ex. C.)
Detective Sergeant John Barbieri wrote a Supplementary
Investigation Report on August 12, 2013. (Id., ¶17, Ex. C.)
Detective John Miller contacted Barbieri about the case, and
asked him to interview the victim at the station later in the
day on August 12, 2013. (Id.) Barbieri conducted the interview.
(Id.) The victim said the accused had approached her while she
was on her back porch with a friend earlier that night. (Id.,
¶18.) After she left her apartment to take her friend home and
returned, Plaintiff knocked on her door and asked to be let in.
(Id., ¶ 19.) She refused and tried to close the door, but he
attempted to push his way in. (Id.) She was able to secure the
door using the chain lock. (Id., ¶20, Ex. C.) The accused
remained outside her apartment, peering through the front
window. (Id.) She then contacted the police. (Id.)
When Plaintiff was arrested by the patrol, he was charged
by summons complaint for Disorderly Conduct. (Id., ¶21, Ex. C.)
Court Administrator Margy Wismer authorized a warrant after the
victim was interviewed. (Id.) Detective Barbieri contacted Judge
Howard Freed, who set bail at $25,000.00 (Id.)
Detective John J. Miller wrote a Supplementary
Investigation Report. (Id., ¶22, Ex. C.) He was the detective on
call, and was contacted by Sergeant Denan about the incident
leading to Plaintiff’s arrest. (Id.) The victim gave Sergeant
Denan a voluntary statement at the scene and wished to give a
taped statement later in the morning. (Id., ¶23, Ex. C.) The
accused was too intoxicated to interview at the scene. (Id.)
Miller requested that Barbieri complete the statements and
prepare the complaints for the matter. (Id. ¶24, Ex. C.)
Plaintiff appeared before Judge DeLury on a Superseding
Indictment on January 15, 2014. (Id., ¶25, Transcript of
Arraignment, Motion and Retraxit Plea, Ex. D.) The prosecutor
offered to accept a plea to fourth degree criminal trespass.
(Id., ¶26, Ex. D at 3:12-23.) Plaintiff stated that he would not
admit to breaching the victim’s doorway. (Id., ¶29, Ex. D at
14:24 to 16:11.) He agreed that he entered the victim’s porch,
and the Judge responded that if Plaintiff was in “the facility,”
he would accept a plea for criminal trespass. (Id.) The Public
Defender indicated that Plaintiff would plead guilty to fourth
degree criminal trespass, and that the Court had represented it
would impose an 18-month suspended imposition of sentence. (Id.,
Plaintiff engaged in a plea allocution. He admitted that he
did not have permission to enter the porch of the victim’s
apartment. (Id., ¶35, Ex. D at 27:16-18.) Plaintiff agreed that
his behavior was unlawful, and the Judge accepted his plea.
(Id., ¶¶36-37, Ex. D at 27:16-18 and 28:14-16.) Plaintiff was
released and returned for sentencing on February 21, 2014. (Id.,
In support of their motion for summary judgment, Defendants
assert there is no genuine issue of material fact that the
Complaint is barred by the Heck doctrine and the doctrine of
claim preclusion, qualified immunity and state law immunities,
and that there are no facts upon which a reasonable jury could
hold Defendants liable. (Brief in Supp. of Mot. for S.J. (“Def’s
Brief”), ECF No. 24-5 at 7.) In response, Plaintiff argued that
he needed additional discovery to respond to the summary
judgment motion. (Pl’s Resp., ECF No. 26.) He sought the grand
jury transcript to show the “inconsistency of the reports, the
voluntary statement, the interview, and the charges filed.”
(Id.) He also sought to locate a witness, and to serve the
remaining defendant, S.T. (Id.)
Plaintiff relied on the video statement of S.T. to show
that “Sgt. Barbieri was not in charge of the Somers Point police
at the time of the interview.” (Id.) He asserted that S.T.
completed a voluntary statement, not a complaint, which was not
within the personal knowledge of Sgt. John. J. Miller. (Id.)
Near the end of the video statement, S.T. said she was told by
an officer that Plaintiff kicked in someone’s door and there
were more victims. (Id.) Plaintiff requested discovery of S.T.’s
dispatch call and a video of the holding cell where Plaintiff
was kept for twelve hours. (Id.) Plaintiff also wanted to know
which officer told S.T. that Plaintiff kicked in someone’s door,
and the names of the other victims. (Id.)
In response, Defendants noted that Plaintiff’s opposition
was untimely and he did not show good cause based on his
expectation that he would present his case at oral argument.
(ECF No. 27 at 3.) Additionally, Defendants asserted that if
Plaintiff wanted to show that additional discovery was necessary
to respond to the summary judgment motion, he failed to provide
the required affidavit, pursuant to Federal Rule of Civil
Procedure 56(f), explaining how the evidence sought would
preclude summary judgment. (Id.) Even accepting Plaintiff’s
explanation of why he needed additional discovery, Defendants
assert none of the evidence sought would establish an essential
fact precluding summary judgment. (Id. at 4.)
Defendants also refute Plaintiff’s assertion that Sergeant
Barbieri was not in charge of Somers Point police station at the
time of S.T.’s interview. In any event, Defendants submitted
evidence that a warrant was authorized by Court Administrator
Margy Wismer, not Sergeant Barbieri. (Id. at 4, citing Exhibit
C.) Therefore, Wismer was the person who placed Officer McKelvey
under oath for purposes of preparing the warrant. (Id. at 4-5.)
Finally, Defendants contend the victim’s statement was
sufficient to support a finding of probable cause. (Id. at 5.)
S.T.’s statement that an officer had told her Plaintiff kicked
someone’s door does not detract from her statement concerning
the crime, which Plaintiff admitted to in his guilty plea. (Id.
The Court will consider Plaintiff’s untimely opposition to
Defendant’s motion for summary judgment. However, the Court
finds that none of the evidence sought or assertions made in
Plaintiff’s opposition would establish an essential fact to
preclude summary judgment, for the reasons described in the
Summary Judgment Standard
Summary Judgment is proper where the moving party “shows
there is no genuine dispute as to any material fact,” and the
moving party is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(a); Abraham v. Raso, 183 F.3d 279, 287 (3d Cir.
1999). The moving party has the burden to show there is an
absence of evidence to support the nonmoving party’s case.
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
A party asserting that a fact is genuinely disputed must
support the assertion by citing materials in the record,
including depositions, documents, affidavits or declarations or
other materials. Fed. R. Civ. P. 56(c)(1). “An affidavit or
declaration used to support or oppose a motion must be based on
personal knowledge, set out facts that would be admissible in
evidence, and show that the affiant or declarant is competent to
testify on the matters stated.” Fed. R. Civ. P. 56(c)(4). “If a
party fails to properly support an assertion of fact . . . the
court may . . . grant summary judgment . . .” Fed. R. Civ. P.
In determining whether there is a genuine dispute of a
material fact, the court must view the facts in the light most
favorable to the non-moving party and make all reasonable
inferences from those facts. Matsushita Elec. Indus. Co. Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986). A fact raises a
genuine issue “if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
Heck v. Humphrey
Defendants contend the Complaint is barred by the doctrine
of Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). In Heck, the
Supreme Court held that:
[I]n order to recover damages for allegedly
unconstitutional conviction or imprisonment,
or for other harm caused by actions whose
unlawfulness would render a conviction or
sentence invalid, a § 1983 Plaintiff must
prove that the conviction or sentence had
been reversed on direct appeal, expunged by
executive order, declared invalid by a state
tribunal authorized to make such
determination, or called into question by a
federal court’s issuance of a writ of habeas
corpus, 28 U.S.C. § 2254.
(Def’s Brief, ECF No. 24-5 at 8.) This doctrine rests on the
principle that “civil tort actions are not appropriate vehicles
for challenging the validity of outstanding criminal judgments.”
Wallace v Kato, 549 U.S. 384, 392 (2007) (quoting Heck, 512 U.S.
The Heck-bar applies “even if the door to federal habeas is
shut and regardless of the reason why . . .” Deemer v. Beard,
557 F. App’x 162, 167 (3d Cir. 2014). Dismissal under Heck
“should be without prejudice” because a § 1983 claim based on an
allegedly unconstitutional conviction or sentence does not
accrue until the invalidation of the conviction or sentence.
Brown v. City of Philadelphia, 339 F. App’x 143, 145 (3d Cir.
2009) (quoting Fottler v. United States, 73 F.3d 1064, 1065-66
(10th Cir. 1996)).
In support of summary judgment on the Heck-bar, Defendants
submit that Plaintiff pled guilty to fourth degree criminal
trespass on January 15, 2014. (Def’s Brief, ECF No. 24-5 at 78.) Plaintiff did not respond to Defendants’ argument that the
Complaint is Heck-barred. Significantly, Plaintiff did not
provide evidence that his conviction or sentence for criminal
trespass has been reversed on direct appeal, expunged by
executive order, declared invalid by a state tribunal, or called
into question by a federal court’s issuance of a writ of habeas
Liberally construing Plaintiff’s Complaint, the Court finds
that the Complaint contains claims for false arrest and false
imprisonment under 42 U.S.C. § 1983,3 arising under the Fourth
42 U.S.C. § 1983 provides, in pertinent part:
Every person who, under color of any
statute, ordinance, regulation, custom, or
usage, of any State . . . subjects . . . any
citizen of the United States . . . to the
deprivation of any rights . . . secured by
the Constitution and laws, shall be liable
to the party injury in an action at law,
Amendment right to be free from unlawful seizure; and violation
of the similar provision in Article I, ¶7 of the New Jersey
Constitution; malicious prosecution; conspiracy under 42 U.S.C.
§§ 1985, 1986; and defamation under New Jersey law. This Court
finds, as discussed below, that each of Plaintiff’s federal
claims, if proven, would render Plaintiff’s conviction and
sentence for criminal trespass invalid.
Fourth Amendment claims for false arrest and false
imprisonment require the plaintiff to prove the arrest was made
without probable cause. James v. City of Wilkes-Barre, 700 F.3d
675, 682-83 (3d Cir. 2012). In his Complaint, Plaintiff asserts
that Defendants lied about the victim’s statements concerning
Plaintiff’s behavior on August 12, 2013, or they coerced the
victim into making false statements so they could prosecute him.
If Plaintiff proved the victim’s statements were untrue, his
conviction for criminal trespass would be invalid. See Wells v.
King, 232 F. App’x 148, 149 (3d Cir. 2007) (the success of a
false imprisonment claim may not necessarily invalidate a
conviction, but if “review of the complaint reveals that the
actual claim . . . is the challenge to his conviction” the claim
is Heck-barred); Wallace v. Kato, 549 U.S. 384, 394 (2007) (“if
the plaintiff [who brings a false arrest claim] is ultimately
suit in equity, or other proper proceeding
for redress . . .
convicted, and if the . . . civil suit would impugn that
conviction, Heck will require dismissal . . . .”)
Plaintiff’s federal malicious prosecution claim is likewise
barred by Heck. To establish a malicious prosecution claim under
§ 1983, a Plaintiff must prove (1) the defendants initiated a
criminal proceeding; (2) the criminal proceeding ended in
plaintiff’s favor; (3) the proceeding was initiated without
probable cause; (4) the defendants acted maliciously or for a
purpose other than bringing plaintiff to justice; and (5) the
plaintiff suffered a deprivation of liberty consistent with the
concept of a seizure as a consequence of the legal proceeding.
Kossler v. Crisanti, 564 F.3d 181, 186 (3d Cir. 2009). As with
false arrest and false imprisonment, Plaintiff’s malicious
prosecution claim is Heck-barred because if he proved Defendants
had no probable cause to arrest him because they lied about or
coerced the victim’s false statements, his conviction for
Criminal Trespass would be invalid. See Marable v. West
Pottsgrove Tp., 176 F. App’x
275, 281 (3d Cir. 2006) (false
arrest and malicious prosecution claims would necessarily imply
state court conviction and sentence were invalid because the
claims would require a finding that the plaintiff was unlawfully
arrested, and the state proceedings ended favorably to the
Plaintiff also alleged Defendants conspired to falsely
arrest, imprison and prosecute him, which this Court construes
as conspiracy claims under 42 U.S.C. §§ 19854 and 1986.5 When
conspiracy claims under §§ 1985 and 1986 are based on Heckbarred claims that defendants conspired to bring false charges,
the conspiracy claims are also barred by Heck. Zhai v. Cedar
Grove Municipality, 183 F. App’x 253, 255 (3d Cir. 2006).
Therefore, the Court will dismiss Plaintiff’s §§ 1983, 1985
and 1986 claims without prejudice because they are barred by the
Heck doctrine. Because Heck does not explicitly apply to state
law claims, the Court will address Defendants’ alternative bases
for summary judgment on Plaintiff’s state law claims.
False Arrest and False Imprisonment under New Jersey
Defendants contend that false arrest and false imprisonment
claims under the New Jersey Constitution require proof that the
plaintiff was arrested without probable cause. (Def’s Brief, ECF
No. 24-5 at 13.) Defendants assert there is no genuine issue of
material fact that the Defendants had probable cause to arrest
Plaintiff based on the victim’s statement on the scene. (Id. at
42 U.S.C. § 1985 creates liability for certain conspiracies to
interfere with civil rights.
42 U.S.C. § 1986 creates liability for neglecting to prevent
conspiracies to interfere with civil rights.
False arrest and false imprisonment claims under the New
Jersey Constitution are analyzed under the same standard as §
1983 claims. See Hedge v. Musco, 204 F.3d 109, 121 n. 12 (3d
Cir. 2000) (“[having established that there was no federal
constitutional violation, defendants must also prevail on
plaintiffs’ claims under Article I, paragraph 7 of the New
Jersey Constitution”) (citing Desilets v. Clearview Regional Bd.
of Educ., 265 N.J. Super. 370, 382 (N.J. Super. Ct. App. Div.
1993)) (“the New Jersey Supreme Court analyzed the search and
seizure issue under the Fourth Amendment to the United States
Constitution and did not suggest that New Jersey’s organic law
imposed more stringent standards.”)
Defendants are not liable for false arrest if “̔[p]robable
cause . . . exist[ed] as to any offense that could be charged
under the circumstances.’” Johnson v. Knorr, 477 F.3d 75, 84-85
(3d Cir. 2007) (quoting Barna v. City of Perth Amboy, 42 F.3d
809, 819 (3d Cir. 1994)) (emphasis added); see Lucia v. Carroll,
Civ. Action No. 12-3787(SDW), 2014 WL 1767527, at *3-5 (D.N.J.
May 2, 2014) (granting summary judgment on U.S. and N.J.
constitutional claims of false arrest and malicious prosecution
on grounds that officer had probable cause to arrest.)
The undisputed record evidence shows the victim, S.T., told
the patrol officers at the scene that after she refused to let
Plaintiff enter her apartment, he tried to push his way in while
she attempted to close the door. (Arrest and Investigation
Reports, ECF No. 24-9.) S.T.’s on-scene statement provided
probable cause to arrest Plaintiff for Disorderly Conduct, the
charge upon his arrest. (Id.)
N.J.S.A. 2C:33-2 Disorderly Conduct provides:
a. Improper behavior. A person is
guilty of a petty disorderly offense, if
with purpose to cause public inconvenience,
annoyance or alarm, or recklessly creating a
risk thereof he
(1) Engages in fighting or threatening,
or in violent or tumultuous behavior
. . .
Defendants had probable cause to believe, based on the
victim’s statement, that Plaintiff’s purpose was to cause public
alarm, or recklessly created a risk thereof, by engaging in the
threatening behavior of trying to enter the victim’s apartment
against her will.
Furthermore, under the Superseding Indictment, Plaintiff
pled guilty to fourth degree Criminal Trespass. (Statement of
Material Facts, ECF No. 24-4, ¶¶25, 26, Ex. D, ECF No. 24-10.)
Criminal Trespass is defined in N.J.S.A. 2C:18-3(a) (effective
January 17, 2010 through August 13, 2013):
Unlicensed entry of structures. A person
commits an offense if, knowing that he is
not licensed or privileged to do so, he
enters or surreptitiously remains in any
research facility, structure, or separately
secured or occupied portion thereof, or in
or upon utility company property . . . The
offense is a crime of the fourth degree if
it is committed in a dwelling.
S.T.’s on-scene statement provided Defendants with
sufficient probable cause to arrest and prosecute Plaintiff for
Criminal Trespass in the fourth degree because Plaintiff,
knowing he did not have permission to enter S.T.’s property,
occupied her porch and attempted to gain entrance through her
front door. Plaintiff pled guilty to this offense, although he
would not admit breaching the doorway. Therefore, Defendants are
entitled to summary judgment on Plaintiff’s false arrest and
false imprisonment claims under the New Jersey Constitution.6
Malicious Prosecution under New Jersey Law
The Court construes the Complaint to allege a claim of
malicious prosecution under New Jersey law. See Peper v.
Princeton Univ. Bd. of Trustees, 77 N.J. 55, 76-80 (1978) (“The
New Jersey Supreme Court has held that the Constitution of the
State of New Jersey may provide a private cause of action
premised upon alleged violations of the State Constitution”).
Under New Jersey law, “[m]alicious prosecution requires the
plaintiff to prove four elements: (1) a criminal action was
Although Heck-barred § 1983 claims are not cognizable and the
Court does not reach the merits of Plaintiff’s federal claims,
see Heck, 512 U.S. at 487, the same analysis would apply to the
merits of Plaintiff’s federal claims of false arrest and false
instituted by this defendant against this plaintiff; (2) the
action was motivated by malice; (3) there was an absence of
probable cause to prosecute; (4) and the action was terminated
favorably to the plaintiff.” LoBiondo v. Schwartz, 199 N.J. 62,
89 (2009). The absence of any one element is fatal to the claim.
The essence of a malicious prosecution claim under New
Jersey law is lack of probable cause, and the burden of proof
rests on the plaintiff. Lind v. Schmid, 67 N.J. 255, 262-63
(1975). “The plaintiff must demonstrate that at the time when
the defendant put the proceedings in motion the circumstances
were such as not to warrant an ordinarily prudent individual in
believing that an offense has been committed.” Id. As discussed
above, based on the undisputed record evidence Defendants had
probable to cause arrest Plaintiff for Disorderly Conduct and
Criminal Trespass at the time of his arrest. Therefore,
Plaintiff cannot meet the elements of a malicious prosecution
claim, and Defendants are entitled to summary judgment.
New Jersey Tort Claims Act
Plaintiff alleged a state law defamation claim.7 In New
Jersey, defamation claims fall under the New Jersey Tort Claims
It is possible that Plaintiff’s allegation of psychological,
emotional and social distress was an attempt to state a personal
injury claim for intentional infliction of emotional and
psychological distress under New Jersey law. The notice
Act. See e.g., Brown v. Township of Neptune, Civ. Action No. 117162(FLW), 2014 WL 3517776, at *7 (D.N.J. July 15, 2014). The
New Jersey Tort Claims Act, N.J.S.A. 59:8-8 provides in relevant
A claim relating to a cause of action for
death or injury or damage to person or to
property shall be presented as provided in
this chapter not later than the 90th day
after accrual of the cause of action. After
the expiration of six months from the date
of notice of claim is received, the claimant
may file suit in an appropriate court of
law. The claimant shall be forever barred
from recovering against a public entity or
public employee if:
a. The claimant failed to file the claim
with the public entity within 90 days of
accrual of the claim except as otherwise
provided in N.J.S. 59:8-9 . . .
Under limited circumstances, a claimant who fails to file
the notice within 90 days may, at the discretion of a judge of
the Superior Court, be permitted to file the notice at any time
within one year after the accrual of the claim, if the public
employee has not been substantially prejudiced. N.J.S.A. 59:8-9.
Defendants assert that Plaintiff failed to serve notice of
his tort claim(s) on Somers Point, the public entity employing
requirement of the New Jersey Tort Claims Act applies to common
law intentional tort claims as well as negligence claims.
Ptaszynski v. Uwaneme, 371 N.J. Super. 333, 343 (N.J. Super. Ct.
App. Div. 2004). Assuming that Plaintiff intended to allege such
a claim, it is also barred by his failure to file a notice of
claim under the New Jersey Tort Claims Act.
Defendants. Plaintiff does not dispute this assertion. The
incident giving rise to the claims occurred on or about August
12, 2013, and more than two years have passed without Plaintiff
filing a notice of tort claim or seeking permission to file a
late notice. Therefore, Plaintiff’s defamation claim is barred
under the New Jersey Tort Claims Act. See Brown, 2014 WL
3517776, at *7 (barring defamation claim where plaintiff failed
to submit a tort claim notice to the defendants.)
For the reasons discussed above, in the accompanying
Opinion filed herewith, the Court will dismiss Plaintiff’s
federal claims without prejudice as Heck-barred and will grant
summary judgment to Defendants on Plaintiff’s state law claims.
s/Renée Marie Bumb
Renée Marie Bumb
United States District Judge
Dated: January 29, 2016
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