CARONTE v. CHIUMENTO et al
MEMORANDUM OPINION AND ORDER administratively terminating 26 Motion for Summary Judgment, etc; ORDERED that on or before 5/30/2017, Plaintiff shall file a letter regarding causes of action, etc. Signed by Judge Renee Marie Bumb on 5/17/2017. (dmr)
[Docket No. 26]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
MICHAEL A. CARONTE,
Civil No. 15-1828 (RMB/KMW)
MEMORANDUM OPINION & ORDER
LT. ALBERT CHIUMENTO and
LT. DAVID D’AMICO,
THIS MATTER comes before the Court upon the Motion for
Summary Judgment by Defendants Lieutenant Albert Chiumento
(“Lt. Chiumento”) and Lieutenant David D’Amico (“Lt. D’Amico”
and together with Lt. Chiumento, the “Defendants”) [Docket
No. 26], seeking the dismissal of all claims asserted against
them by Plaintiff Michael A. Caronte (the “Plaintiff”).
reasons set forth herein, the Court administratively terminates
Defendants’ Motion for Summary Judgment, pending further Order
of the Court, and orders Plaintiff to file a supplemental
submission identifying the causes of action he intends to pursue
and against which Defendants he asserts those claims, as well as
which causes of action, if any, he concedes.
Plaintiff initiated this action pro se on September 5, 2014
in the Superior Court of New Jersey, Law Division, Camden County
[Docket No. 1-5].
Plaintiff’s original Complaint identified
only Lt. Chiumento as a defendant and alleges, in its entirety,
that Lt. Chiumento arrested Plaintiff on May 3, 2013 and “extra
tightened the handcuffs during the arrest and in the processing
room and [Plaintiff] suffered with an injury on [his] wrist,
M.R.I. verifies I had torn ligaments on my left wrist.”
On December 5, 2014, Plaintiff, proceeding pro se, filed an
Amended Complaint in state court, naming only Lt. D’Amico as a
Am. Compl. [Docket 11-4, Ex. B].
Complaint alleges as follows:
Between 5/3/13 – 5/3/14 Lt. David D’Amico/Internal
affairs refused to show a line of all the police officers
working the day shift so I can identify the two officers
who slided [sic] up and down the side of my torso and
make it look like I was resisting arrest and the officer
on the right side of me who was bald headed flicked his
finger on the side of my head calling me a bonehead.
Lt. David D’Amico obstructed justice, derelict [sic] of
duty, tappering [sic], incompetence = Corruption!
Am. Compl. ¶ 1.
On March 11, 2015, Defendants timely removed the action to
federal court on the basis of federal question jurisdiction,
construing Plaintiff’s pro se allegations as asserting an
excessive force claim under 42 U.S.C. § 1983 in violation of the
Fourth Amendment to the United States Constitution.
Removal [Docket No. 1].
Thereafter, on April 23, 2015, Daniel B. Zonies, Esq.
entered a notice of appearance on behalf of Plaintiff [Docket
Over three months later, on July 30, 2015, Plaintiff,
now represented by counsel, moved to amend the pleadings and add
Waterford Township, Waterford Township Police Department, and
several John Does as defendants, in addition to Lt. Chiumento
and Lt. D’Amico [Docket No. 11].
In the Proposed Amended
Complaint, Plaintiff alleges:
8. On or about May 3, 2013, plaintiff was wrongfully
taken into custody, physically arrested, and searched by
defendants without probable cause and without warrant.
9. On or about May 3, 2013, when plaintiff was complying
with Daniel Chiumento’s order to get out of his vehicle,
he was assaulted and battered by defendants Daniel
Chiumento and John Does of the WTPD before, during, and
after his arrest. Daniel Chiumento tightened the hand
cuff on plaintiff’s left wrists [sic] to the maximum
such that plaintiff injured his left wrist and continued
to tighten the handcuffs on plaintiff’s wrist after the
arrest in the processing room of the WTPD.
After the arrest on or about May 3, 2013, David
D’Amico violated plaintiff’s due process and civil
rights when he refused to show a line of all the police
officers working the day shift so that the plaintiff
could identify the two officers who rubbed the
plaintiff’s torso up and down and made it appear as if
the plaintiff was resisting arrest.
standing on the right side of the plaintiff flicked his
finger on the side of plaintiff’s head calling plaintiff
a “bone head.”
Proposed Am. Compl. ¶¶ 8-10.
The Proposed Second Amended
Complaint then sets forth two counts.
In Count I, Plaintiff
appears to assert an assault and battery claim against all named
Generously read, Count II seems to set forth claims
under 42 U.S.C. § 1983 for excessive force, false arrest and
imprisonment, and procedural due process violations against all
On January 22, 2016, Magistrate Judge Williams denied
Plaintiff’s motion to amend, finding that the amendment would be
futile as time-barred against the newly added defendants [Docket
No. 20]. 1
Magistrate Judge Williams, however, recognized that
Plaintiff, now represented by counsel, may have wished “to amend
his pleading as to the existing Defendants to replace same with
a more streamlined pleading since the previously filed pleading
was filed when Plaintiff was acting pro se.”
Order at 6.
Jan. 22, 2016
As a result, Plaintiff was permitted to file an
amended complaint, if he secured Defendants’ consent, or,
alternatively, to file a renewed motion to amend.
As a result, the operative pleadings in this action
appear to be some combination of the original pro se Complaint
against Lt. Chiumento only and the pro se Amended Complaint
against Lt. D’Amico only.
Remarkably, Plaintiff’s counsel certified that he filed an
entry of appearance and an amended complaint in state court on
March 12, 2015, the day after the case had been removed to
federal court. Zonies Cert. ¶ 5 [Docket No. 11-2]. As
Magistrate Judge Williams noted, however, the state court docket
does not corroborate counsel’s certification [Docket No. 12-5].
Subsequently, on October 19, 2016, Defendants moved for
summary judgment on all claims asserted against them by
Plaintiff [Docket No. 26].
Defendants set forth several
arguments in support of their motion, including that the
undisputed evidence establishes that Defendants acted lawfully
and with probable cause.
Defendants also argue that they are
immune from suit on the basis of qualified immunity, good faith
immunity pursuant to N.J.S.A. 59:3-3, and immunity pursuant to
Additionally, Defendants argue that
Plaintiff cannot satisfy the damages threshold required by the
New Jersey Tort Claims Act, pursuant to N.J.S.A. 59:9-2(d).
Among other arguments, Defendants also contend that Plaintiff’s
claims are barred by the Heck doctrine, as Plaintiff pled guilty
to and was convicted of violating the Waterford Township
municipal ordinance of peace and good order § 195-1.
Defendants’ brief is thirty pages long and is accompanied by a
155-paragraph statement of material facts, submitted pursuant to
District of New Jersey Local Civil Rule 56.1.
In response, Plaintiff submitted a half-page “letter brief”
[Docket No. 28], stating that “there exists a genuine issue of
material fact as to whether plaintiff suffered unlawful arrest,
false imprisonment, and was subjected to excessive force in
violation of his Fourth Amendment rights under the United States
Plaintiff also claimed that “defendants’ motion
for summary judgment relies on documents that are hearsay, as a
proper foundation has not been established.”
Plaintiff’s opposition was patently deficient and did not
comply with the Federal Rules of Civil Procedure or the Local
As a result, this Court ordered Plaintiff to
submit an opposition brief and responsive statement of material
facts, in compliance with Federal Rule of Civil Procedure 56(c)
and Local Civil Rule 56.1(a) [Docket No. 29].
In response, Plaintiff submitted an opposition brief and a
response to Defendants’ statement of material facts [Docket
No. 30], which remain unquestionably and woefully inadequate.
First, Plaintiff’s brief is only two pages long.
importantly, it does not address the vast majority of
Indeed, it does not even mention
Instead, Plaintiff, once again, baldly argues that
there are genuine disputes of material fact as to whether
Plaintiff suffered unlawful arrest, false imprisonment, and
excessive force, and that Defendants rely upon hearsay in their
statement of material facts.
Additionally, Plaintiff admits
137 of the 155 paragraphs set forth in Defendants’ statement of
Plaintiff objects to the remaining
18 paragraphs on the basis of hearsay.
Pl. Response to Defs.
SOMF ¶¶ 37-46, 49-54, 120, 123 [Docket No. 30].
As a preliminary matter, the Court notes that, even
assuming that the disputed factual statements are hearsay as
currently presented, the Court may consider them in resolving
“[T]he rule in this circuit is that hearsay
statements can be considered on a motion for summary judgment if
they are capable of being admissible at trial.”
of Police, Lodge 1 v. City of Camden, 842 F.3d 231, 238 (3d Cir.
2016) (emphasis in original) (quoting Stelwagon Mfg. Co. v.
Tarmac Roofing Sys., 63 F.3d 1267, 1275 n. 17 (3d Cir. 1995)).
The proponent of the disputed evidence “need only ‘explain the
admissible form that is anticipated.’”
Id. (quoting Fed. R.
Civ. P. 56 advisory committee’s note to 2010 amendment).
Defendants have identified the declarants of the purported
hearsay statements and noted their availability to testify at
Defendants have also identified relevant hearsay
exceptions that may apply to this evidence.
sufficiently established that the evidence set forth in their
statement of material facts is capable of being admissible at
Thus, the Court may properly consider such evidence in
resolving the motion for summary judgment.
At this juncture, however, the Court is unable to resolve
the instant motion in light of the deficiencies and ambiguities
in Plaintiff’s submissions.
The Court cannot determine which
claims are properly pending against which Defendants or which
claims Plaintiff wishes to defend against summary judgment. 2
Plaintiff’s opposition brief does not even mention Lt. D’Amico,
it is unclear whether Plaintiff seeks to pursue any claims
against him or whether Plaintiff has conceded all claims against
Moreover, Plaintiff has not even acknowledged, let alone
substantively responded to, Defendants’ myriad arguments in
support of their motion for summary judgment, many of which
appear to have merit.
For example, Plaintiff has not addressed
qualified immunity, the Heck doctrine, immunity under N.J.S.A.
59:3-2(b) and N.J.S.A. 59:3-3, or the tort claims threshold set
forth in N.J.S.A. 59:9-2(d).
This Court will not devote its limited time and resources
to resolving claims that may not be properly before it in the
first instance or may have already been conceded by Plaintiff.
Likewise, the Court cannot properly and effectively address
Defendants’ numerous arguments without the benefit of a response
This Court cannot be required to guess how
Plaintiff would respond to Defendants’ arguments or craft
defenses on Plaintiff’s behalf.
In light of Plaintiff’s
inadequate briefing, the Court orders Plaintiff to submit
It appears that Defendants share the Court’s uncertainty.
See Defs. MSJ at 1 (“Because the Complaint  and the Amended
Complaint  are pro se filings, Moving Defendants will also
address the claims made in the proposed Third Amended Complaint
out of an abundance of caution . . . .”).
Plaintiff shall submit a letter
identifying the causes of action properly pending before this
Court and against which particular Defendant(s) those causes of
action are asserted.
The letter shall also identify which of
those causes of action he intends to defend against summary
judgment and which causes of action, if any, he concedes.
Court may then require the parties to submit supplemental
briefing in light of Plaintiff’s response.
for summary judgment is administratively terminated pending the
completion of all supplemental briefing and further Order of the
Any failure by Plaintiff to abide by this Court’s Orders
will be deemed by this Court to be a failure to prosecute and
will subject the action to dismissal in its entirety.
ACCORDINGLY, IT IS HEREBY, on this 17th day of May 2017,
ORDERED that, on or before May 30, 2017, Plaintiff shall
file a letter specifically identifying (1) the causes of action
properly pending before this Court and against which particular
Defendant(s) those causes of action are asserted; (2) the causes
of action Plaintiff intends to defend against summary judgment;
(3) the causes of action, if any, that have been conceded by
Plaintiff; and (4) the Defendant(s), if any, who should be
dismissed in light of those concessions; and it is further
ORDERED that Defendants’ Motion for Summary Judgment
[Docket No. 26] is ADMINISTRATIVELY TERMINATED pending the
completion of supplemental briefing and further Order of the
s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE
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