ZAMPETIS v. CITY OF ATLANTIC CITY et al

Filing 41

OPINION. Signed by Judge Noel L. Hillman on 6/29/17. (dd, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
NICHOLAS J. ZAMPETIS,
Plaintiffs,

1:15-cv-01231-NLH-AMD

v.
CITY OF ATLANTIC CITY, et al.,

OPINION

Defendants.

APPEARANCES:
DAVID R. CASTELLANI
450 Tilton Road, Suite 245
Northfield, NJ 08225
Attorney for Plaintiff Nicholas J. Zampetis
A. MICHAEL BARKER
VANESSA ELAINE JAMES
Barker, Gelfand & James
210 New Road
Linwood, NJ 08221
Attorney for Defendant City of Atlantic City
MICHAEL E. RILEY
TRACY RILEY
Law Offices of Riley & Riley
100 High Street
Mt. Holly, NJ 08060
Attorney for Defendants Ivan Lopez, Anthony Alosi, Jr., and
Mike Auble
HILLMAN, District Judge
Plaintiff, Nicholas J. Zampetis, filed a complaint against
Defendants, the City of Atlantic City, Atlantic City Police
Officers Ivan Lopez, Anthony Alosi, Jr., Mike Auble, and several
John Doe police officers claiming violation of his rights under
42 U.S.C. § 1983 and New Jersey law.

Plaintiff claims that at

about 2:00 to 3:00 a.m. on February 17, 2013 (early Sunday
morning), while celebrating a friend’s birthday at the Tropicana
Hotel and Casino in Atlantic City, Defendants Lopez, Alosi,
Auble and John Doe officers arrested him without probable cause.
He claims that these Defendants also beat him and falsely
charged him with criminal charges to cover up their wrongdoing.
Plaintiff contends that the individual police officers violated
his constitutional rights to freedom from unlawful arrest, false
imprisonment, deprivation of liberty, and excessive force.
Plaintiff also claims that Atlantic City had knowledge of these
officers’ propensity to violate a person’s constitutional
rights, as well as had policies and customs that fostered and
condoned such actions by the department’s police officers, and
are therefore liable for plaintiff’s injuries under Monell.

See

Monell v. Dept. of Social Services of City of New York, 436 U.S.
658, 694 (1978) (“[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.”).
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Twice before, Atlantic City moved to dismiss Plaintiff’s
original complaint and his subsequent amended complaint.

The

Court granted both motions, finding that Plaintiff had not
adequately pleaded his municipal liability claims against
Atlantic City.

(Docket No. 6, 25.)

After each Opinion, the

Court had permitted Plaintiff to file an amended pleading within
30 days, which he did.

(Docket No. 14, 27.)

In granting

Atlantic City’s second motion to dismiss, the Court summarized
its review of Plaintiff’s amended complaint, finding that the
essential problem with the amended complaint was that it did not
set forth non-conclusory facts showing that Chief Jubilee was
aware, prior to February 2013, that Alosi, Lopez and Auble
required closer supervision or additional training to avoid
their arresting people without probable cause and using
excessive force during arrest, and absent such notice, the
amended complaint did not assert sufficiently that Chief
Jubilee’s deliberate indifference caused these officers to
violate Plaintiff’s Fourth Amendment rights.
21.)

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(Docket No. 25 at

Plaintiff filed his third complaint, and Atlantic City has
filed its third motion to dismiss. 1

During the pendency of

Atlantic City’s motion, the Court has opined on the viability of
municipal liability claims in the context of a plaintiff’s §
1983 claims and other similarly related claims against police
officers in two other cases at the summary judgment stage.

One

of those cases includes a Monell claim against Atlantic City and
involves one of the same officers in this matter.

See Harrison

v. Alosi and the City of Atlantic City, et al., 1:14-cv-6292;
Norman v. Haddon Township, et al., 1:14-cv-6034.
In both of those cases, the Court denied summary judgment
as to the individual officers, finding that a jury was required
to resolve disputed historical facts before the Court could
determine whether the officers were entitled to qualified
immunity for their actions.

The Court also denied summary

judgment, without prejudice, on the plaintiffs’ claims against
the municipalities until after the jury answered special
interrogatories related to the police officers’ actions and the

1

The individual officers answered
complaint. (Docket No. 40.)
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Plaintiff’s

second

amended

Court made the qualified immunity determination.

At that point

in the trial, the Court would then consider the viability of the
plaintiffs’ Monell claims.
In consideration of the Court’s procedure to assess the
municipal liability claims in Harrison and Norman, and upon
review of Plaintiff’s second amended complaint, the Court finds
that Plaintiff’s third complaint sufficiently pleads Monell
claims against Atlantic City.

Plaintiff’s newest complaint

contains additional allegations that resolve the problems the
Court had identified in Plaintiff’s first amended complaint, and
it has sufficiently pleaded plausible claims where discovery
could reasonably reveal evidence to support Plaintiff’s
municipal liability claims against Atlantic City.

(See Docket

No. 27 at 4, 8-9, 10-11, 12, 14, 15-16, 20.)
For example, the second amended complaint specifies that
Chief Jubilee was acting police chief as of May 2010 and
thereafter chief until December 2013, which encompasses the time
frame when Plaintiff claims that he should have been aware of
Alosi, Lopez and Auble’s actions.

(Docket No. 27 at 4.)

Plaintiff has also included allegations that Chief Jubilee
reviewed internal affairs complaints, and that he therefore
would have known that Alosi was the subject of one excessive
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force complaint in 2010 and three citizens’ complaints for
excessive force and improper arrest in 2012, and those
complaints should have triggered Atlantic City’s early warning
system that required review, monitoring, and remedial training.
(Id. at 10-11.)

The seconded amended complaint also relates

that Lopez was the subject of an excessive force complaint in
April 2009, and Auble was the subject of an internal affairs
complaint for excessive force in March 2013, and that none of
these complaints, as well as the other excessive force
complaints - 140 in total - filed against Atlantic City officers
during Chief Jubilee’s tenure as chief were found to be
sustained, which evidences the lack of meaningful investigation
into citizens’ complaints and the failure to track and monitor
police misconduct, creating and perpetuating a custom of
exonerating rogue police officers.

(Id. at 11-12.)

Plaintiff

further alleges that Chief Jubilee knew of the 509 excessive
force complaints filed with the internal affairs between 2005
and 2010, but failed to take any action going forward, including
matter involving the three officer defendants in 2010, 2012, and
2013.

(Id. at 16.)

The Court concludes that Plaintiff’s second

amended complaint meets the Rule 8 and Twombly/Iqbal pleading
standards and will proceed past the motion to dismiss stage.
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Consequently, Atlantic City’s third motion to dismiss
Plaintiff’s claims against it must be denied.

An appropriate

Order will be entered.

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
Date:
June 29, 2017
At Camden, New Jersey

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