CARONTE v. CHIUMENTO et al

Filing 45

OPINION. Signed by Judge Renee Marie Bumb on 3/2/2018. (dmr)

[Docket No. 44]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

MICHAEL A. CARONTE,
Plaintiff,

Civil No. 15-1828 (RMB/KMW)
OPINION

v.
LT. DANIEL CHIUMENTO and
LT. DAVID D’AMICO,
Defendants.

APPEARANCES:
DANIEL B. ZONIES, ESQ.
1011 Evesham Road, Suite A
Voorhees, New Jersey 08043
Attorney for Plaintiff
REYNOLDS & HORN, P.C.
By: Thomas B. Reynolds, Esq.
750 Route 73 South, Suite 202A
Marlton, New Jersey 08053
Attorney for Defendants
BUMB, UNITED STATES DISTRICT JUDGE:
This § 1983 suit arises out of Plaintiff Michael Caronte’s
arrest for obstruction of justice and resisting arrest following a
high speed vehicle chase. 1

Defendants, police officers Lieutenant

Daniel Chiumento and Lieutenant David D’Amico, sued in their
individual capacities, move for summary judgment.

1

Caronte has

The Court exercises federal question subject matter
jurisdiction pursuant to 28 U.S.C. § 1331 and supplemental
jurisdiction pursuant to 28 U.S.C. § 1367.
1

filed no opposition to the motion. 2

For the reasons stated herein,

the motion will be granted.
I.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY
In the evening of May 3, 2013, Plaintiff Caronte, while

driving his four door black Ford Taurus, cut-off another driver
who happened to be an off-duty police officer.
Statement of Material Facts 3, “SMF,” ¶ 1)

(Defendants’

The situation quickly

escalated into a “road rage incident,” (Id.) involving the other
driver repeatedly honking his horn and Caronte “giv[ing] the
middle finger [] numerous times to the driver.”

(Id. ¶ 3).

2

Discovery was closed on September 30, 2016. (Dkt No. 24)
The instant “Second Motion for Summary Judgment” was filed on July
31, 2017. The Court administratively terminated Defendants’ first
motion for summary judgment upon the Court’s determination that
“Plaintiff’s opposition [to the first motion] was patently
deficient and did not comply with the Federal Rules of Civil
Procedure or the Local Rules.” (Dkt. No. 32, p. 6)
After administratively terminating the first motion for
summary judgment, the Court attempted to hold a telephonic status
conference with the parties to facilitate and streamline the new
round of briefing on the anticipated second motion for summary
judgment. (Dkt No. 36) Plaintiff’s counsel failed to appear for
that conference. (Dkt No. 37) A rescheduled telephone conference
was held on June 29, 2017, with counsel for both sides appearing.
(Dkt No. 41) Based upon the parties’ discussion during the
telephone conference, and with the agreement of the parties, the
Court directed that a more focused Motion for Summary Judgment be
filed. The instant Second Motion for Summary Judgment is the
result of the June 29th telephone conference. Thus, Plaintiff was
aware that a Second Motion for Summary Judgment would be filed,
yet Plaintiff did not file opposition.
3

Defendants’ Statement of Material Facts has not been
opposed because Caronte has filed no opposition at all to the
instant motion. Accordingly, facts contained in the Statement of
Material Facts are “deemed undisputed for purposes of the summary
judgment motion.” L. Civ. R. 56.1(a).
2

On-duty police officers were dispatched and “Plaintiff was
reported to be eluding law enforcement personnel from at least the
time period between 5:24 p.m. and 5:35 p.m.”

(Id. ¶ 2)

Plaintiff

was driving dangerously through Berlin Township and Borough and
Waterford Township; “traveling in excess of 75 miles per hour”
“throughout numerous highways, intersections, and streets,”
cutting off two vehicles, and “blowing a stop sign.”

(Id.)

Plaintiff eventually stopped in a parking lot in Waterford
Township whereupon his “vehicle was surrounded by five to six
marked patrol police vehicles.”

(Id. ¶ 3)

Defendant Chiumento “approached, on foot, the Plaintiff’s
vehicle, and attempted to calm down Plaintiff Caronte . . . but
Plaintiff Caronte was yelling and irate.”

(SMF ¶ 4)

Caronte

refused Chiumento’s “commands to exit [the] vehicle” “at least two
or three [times]” (Id.), stated that he “‘doesn’t deal with police
. . . doesn’t like them . . . they are assholes,’” and at one
point Chiumento observed Caronte “reaching under his seat.”
¶ 5)

(Id.

Then Chiumento “removed Caronte from his vehicle” and

“advised” Chiumento that he “was under arrest for obstruction of
the administration of the law.”

(Id.)

Caronte was still

noncompliant, attempting “to physically pull away from Lieutenant
Chiumento and a brief struggle ensued before Chiumento was able to
handcuff Caronte and place Caronte in to the rear of [a patrol
car] for transport to the Waterford Township Police Department,

3

where Lieutenant Chiumento issued formal charges against Caronte
for obstruction of justice and resisting arrest.”

(Id. ¶ 6)

Approximately six months later, Caronte met with Defendant
D’Amico at the Waterford Township Police Department in order “to
file criminal Complaints against Lieutenant Chiumento for
harassment and simple assault.”

(SMF ¶ 8)

Caronte also inquired

as to the identities of two other officers whom he believed had
assaulted him during the arrest.

(Id. ¶ 10)

Defendant D’Amico

stated that neither of the two other officers on duty with
Defendant Chiumento at the relevant time were the officers who
allegedly assaulted Caronte; D’Amico suggested that the officers
may have been from either Berlin, Winslow, or Chesilhurst
Departments.

(Id.)

In January, 2014, a municipal court judge

found an absence of probable cause to support the charges against
Chiumento and the Complaints were dismissed.

(Id. ¶ 8)

On June 21, 2014, Caronte pled guilty to a violation of the
“Waterford Township Municipal Ordinance of peace and good order,
Section 195-1” in exchange for the dismissal of the criminal
charges of obstruction of justice and resisting arrest charges.
(SMF ¶ 7 and Defs’ Ex. E, Municipal Court Transcript)

The

Municipal Court imposed a $2000.00 stipulated fine plus costs.
(Id.)

4

The Court assumes, for purposes of this motion only, that the
following claims remain in this suit at this time 4; four claims

4

The tortured procedural history of this case, only a
portion of which is discussed here, has created numerous obstacles
to reaching a comprehensive decision on the merits of this suit.
The parties appear to have assumed that the operative pleading is
at least a combination of two separate three-page handwritten pro
se form complaints filed in Camden County Superior Court on
September 5, 2014 and December 5, 2014 respectively. (Notice of
Removal ¶ 1) The first complaint names only Defendant Chiumento
as a Defendant and alleges in its entirety, “Lt. Chiumento
arrested me on 5/3/13 he extra tightened the handcuffs during the
arrest and in the processing room and I suffered with an injury on
my wrist, M.R.I. verifies I had a torn ligament on my left wrist.”
(Dkt No. 1-5) The second complaint (discussed by the Notice of
Removal but not actually attached to the Notice itself) names
Defendant D’Amico as the sole defendant. That complaint
substantively alleges, “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 [assaulted me during
my arrest]. Lt. David D’Amico obstructed justice, dereliction of
duty, tappering [sic], incompetence = Corruption!” (Dkt No. 11-4)
Rather than treating the second complaint as superseding the
first, the parties, and this Court, have treated the second
complaint as adding an additional claim and defendant to the
original complaint filed against Defendant Chiumento.
The Notice of Removal was filed in this Court on March 11,
2015. The next day, Caronte’s counsel entered an appearance in
Superior Court and simultaneously filed a “Third Amended
Complaint” in Superior Court. (Dkt No. 11-4, p. 12, 14-17) That
pleading appears to combine the factual allegations of the
previous two pro se complaints into one, more legible, typed
document, and adds new legal theories of recovery, including false
arrest and false imprisonment pursuant to § 1983. (Id.)
More than four months after the case was removed, Plaintiff
filed in this Court, a “Motion to Amend / Correct Pleading and Add
New Parties.” (Dkt No. 11) That motion was denied, but Plaintiff
was granted leave to file a motion to amend the pleadings as to
the existing Defendants Chiumento and D’Amico. (Dkt No. 20)
Plaintiff never filed another motion to amend. Thus, there is a
colorable argument that, at the very least, the § 1983 false
arrest and false imprisonment claims are not actually in this
case. However, even if those claims are properly before the
Court, for the reasons set forth herein, Defendants are entitled
to summary judgment.
5

against Defendant Chiumento: (1) § 1983 excessive force; (2) §
1983 false arrest; (3) § 1983 false imprisonment; and (4) common
law assault and battery; and one claim against Defendant D’Amico:
(1) “violation of procedural due process” pursuant to § 1983.
(Dkt No. 35) 5
II.

SUMMARY JUDGMENT STANDARD
Summary judgment shall be granted if “the movant shows that

there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
56(a).

Fed. R. Civ. P.

A fact is “material” if it will “affect the outcome of the

suit under the governing law[.]”
477 U.S. 242, 248 (1986).

Anderson v. Liberty Lobby, Inc.,

A dispute is “genuine” if it could lead

a “reasonable jury [to] return a verdict for the nonmoving party.”
Id.
“[W]hen a properly supported motion for summary judgment [has
been] made, the adverse party ‘must set forth specific facts
showing that there is a genuine issue for trial.’”
U.S. at 250 (citing Fed. R. Civ. P. 56(e)).

Anderson, 477

In the face of a

properly supported motion for summary judgment, the nonmovant’s
burden is rigorous: he “must point to concrete evidence in the
record”; mere allegations, conclusions, conjecture, and
speculation will not defeat summary judgment.

5

Orsatti v. New

Caronte also “concedes” his assault and battery claim
against Defendant D’Amico. (Dkt No. 35) Accordingly, summary
judgment will be granted to Defendant D’Amico on this claim.
6

Jersey State Police, 71 F.3d 480, 484 (3d Cir. 1995); accord,
Jackson v. Danberg, 594 F.3d 210, 227 (3d Cir. 2010) (citing
Acumed LLC v. Advanced Surgical Servs., Inc., 561 F.3d 199, 228
(3d Cir. 2009) (“[S]peculation and conjecture may not defeat
summary judgment.”)).

Failure to sustain this burden will result

in entry of judgment for the moving party.
The same basic legal analysis applies when a summary judgment
motion is unopposed, Anchorage Associates v. Virgin Islands Board
of Tax Review, 922 F.2d 168 (3d Cir. 1990), however, the material
facts put forth by the movant are deemed undisputed pursuant to L.
Civ. R. 56.1(a) (“any material fact not disputed shall be deemed
undisputed for purposes of the summary judgment motion.”).
III. ANALYSIS
A.

§ 1983 false arrest and false imprisonment against
Defendant Chiumento
The absence of probable cause is a necessary element of both

a false arrest and a false imprisonment claim under § 1983.

Berry

v. Kabacinski, 704 F. App’x 71, 73 (3d Cir. 2017) (citing Groman
v. Twp. of Manalapan, 47 F.3d 628, 634, 636 (3d Cir. 1995)).

In

determining whether probable cause existed at the time of the
arrest, courts must objectively assess whether, at the time of the
arrest and based upon the facts known to the officer, probable
cause existed “as to any offense that could be charged under the
circumstances.”

Wright v. City of Philadelphia, 409 F.3d 595, 602

(3d Cir. 2005) (quoting Barna v. City of Perth Amboy, 42 F.3d 809,
819 (3d Cir. 1994)).
7

Defendants’ facts, which are deemed undisputed for the
purposes of this motion, establish that Defendant Chiumento had
probable cause to believe that Caronte had committed the offense
of obstruction of justice.

Under New Jersey law, “[a] person

commits an offense if he purposely obstructs, impairs or perverts
the administration of law or other governmental function or
prevents or attempts to prevent a public servant from lawfully
performing an official function by means of flight, intimidation,
force, violence, or physical interference or obstacle, or by means
of any independently unlawful act.”

N.J.S.A. 2C:29-1.

This Court

has previously held that, to support an obstruction of justice
charge, “defendant must have affirmatively done something to
physically interfere or place an obstacle to prevent the police
from performing an official function.”

Batiz v. Detullio, No. CV

12-581 (RMB/AMD), 2016 WL 299198, at *2 (D.N.J. Jan. 25, 2016)
(citing State v. Camillo, 382 N.J. Super. 113, 121-22 (App. Div.
2005); State v. Berlow, 284 N.J. Super. 356, 360 (App. Div.
1995)). 6

The physical act may include “failure to follow

instructions of an officer,” or “fail[ing] to engage in some
physical conduct that causes interference;” “physical contact” is
not required.

Id. at *2-3.

The undisputed facts state that

Caronte refused Chiumento’s “commands to exit [the] vehicle” “at

6

Aff’d on other grounds by Batiz v. Brown, 676 F. App’x 138
(3d Cir. 2017).
8

least two or three [times]” during the course of Chiumento’s
attempts to investigate a reported road rage incident.

(SMF ¶ 4)

Such failures to follow Defendant Chuimento’s instructions
established probable cause for obstruction of justice.
Caronte, having filed no opposition, of course, has put forth
no facts from which a jury could find otherwise. 7

Accordingly, the

Court holds that Caronte has failed to demonstrate a
constitutional violation as to the § 1983 false arrest and false
imprisonment claims, and therefore Defendant Chiumento is entitled
to summary judgment on those claims.

See Pearson v. Callahan, 555

U.S. 223, 232 (2009) (The qualified immunity analysis first
considers whether there was a constitutional violation and, if so,
whether the right violated was clearly established at the time of
the misconduct.).

The Second Motion for Summary Judgment will be

granted as to those claims.
B. § 1983 excessive force / common law assault and battery
against Defendant Chiumento
The Fourth Amendment permits the use of “reasonable” force.
Graham v. Connor, 490 U.S. 386, 396 (1989).

“[E]ach case alleging

excessive force must be evaluated under the totality of the

7

Indeed, Caronte testified at his deposition, portions of
which transcript are attached to Defendants’ motion, “[Chiumento]
says where do you work at? I go, it’s none of your concern. He
says get out of the car. I go, for what? Then I say okay, I’ll
tell you where I work at. Then he says get out of the car, raised
his voice. After two or three times, I get out of the car.”
(Defs’ Ex. C, Caronte Dep. p. 24)
9

circumstances.”

Sharrar v. Felsing, 128 F.3d 810, 822 (3d Cir.

1997).
Caronte’s excessive force claim is based on the allegation
that during Caronte’s arrest Chiumento “extra tightened the
handcuffs” causing a “torn ligament” in Caronte’s left wrist.
(Dkt No. 1-5, Compl. p. 1)

However, the summary judgment record

before the Court contains no evidence supporting these allegations
because Caronte has filed no opposition.

Thus, Caronte has not

sustained his summary judgment burden to “point to concrete
evidence in the record” and his mere allegations do not suffice at
this stage of the case.

Orsatti, 71 F.3d at 484.

Accordingly, the Court holds that Caronte has failed to
demonstrate a constitutional violation as to the § 1983 excessive
force claim, and therefore Defendant Chiumento is entitled to
summary judgment as to that claim.

The Second Motion for Summary

Judgment will be granted as to that claim.
Additionally, summary judgment will be granted as to the
assault and battery claim because that claim is based on the same
unsupported factual allegations.

(Dkt No. 11-4, “Third Amended

Complaint” 8, ¶ 9)
C. § 1983 due process claim against Defendant D’Amico
Caronte’s due process claim is based on the allegation that

8

See supra note 4.
10

Defendant D’Amico “refused to show a line [sic] of all the police
officers working the day shift so that [Caronte] c[ould] identify”
the other two officers who allegedly participated with Chiumento
in effectuating Caronte’s arrest.

(Dkt No. 11-4, p. 8).

Like the claims discussed supra at section B, this claim has
no evidentiary support in the summary judgment record before the
Court because Caronte has failed to file opposition.

Accordingly,

the Court holds that Caronte has failed to demonstrate a
constitutional violation as to the § 1983 due process claim, and
therefore Defendant D’Amico is entitled to summary judgment as to
that claim.

The Second Motion for Summary Judgment will be

granted as to that claim.
IV.

CONCLUSION
For the foregoing reasons, Defendants’ Second Motion for

Summary Judgment will be granted.

An appropriate Order shall

issue on this date.

s/ Renée Marie Bumb
__________________________
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE

Dated: March 2, 2018

11