ALVAREZ et al v. TROPICANA HOTEL AND CASINO et al
Filing
24
OPINION FILED. Signed by Judge Noel L. Hillman on 12/17/15. (js)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
NORMA ALVAREZ, et al.,
Plaintiffs,
Civil No. 15-2061 (NLH)
v.
TROPICANA
al.,
HOTEL
&
CASINO,
et
OPINION
Defendants.
APPEARANCES:
DAVID R. CASTELLANI
450 Tilton Road, Suite 245
Northfield, NJ 08225
Attorney for Plaintiffs Norma Alvarez, Tiffany Baez
BARBARA ANN JOHNSON-STOKES
LAW OFFICE OF MICHAEL A. ARMSTRONG
79 Mainbridge Lane
Willingboro, NJ 08046
Attorney for Defendant City of Atlantic City
TRACY RILEY
Law Offices of Riley & Riley
100 High Street
Mt. Holly, NJ 08060
Attorney for Defendant Jose Gonzalez
HILLMAN, District Judge:
Norma Alvarez and Tiffany Baez filed a Complaint against
the City of Atlantic City, Atlantic City Police Officer Jose
Gonzalez, and several John Does claiming violation of their
rights under 42 U.S.C. 1983.1
Plaintiffs assert that on March
24, 2013, while at the Providence Night Club in the Tropicana
Hotel and Casino in Atlantic City, Officer Gonzalez used
excessive force against both Plaintiffs, arrested them without
probable cause for aggravated assault on a police officer and
resisting arrest, and caused them to be detained in a holding
cell at the police station for between six and 12 hours.
Presently before the Court is a motion to dismiss the
Complaint pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure filed by Officer Gonzalez.
Gonzalez argues that
Plaintiffs’ claims are barred by collateral estoppel and the
favorable termination rule of Heck v. Humphrey, 512 U.S. 477
(1994).
Although the City of Atlantic City filed an Answer, the
City thereafter filed a letter seeking to join in the motion to
dismiss on the ground that the federal claims against the City
1
The Complaint also asserts a federal conspiracy claim, claims
under New Jersey law, and claims against Tropicana Hotel and
Casino.
Plaintiffs and Tropicana Hotel and Casino filed a
stipulation dismissing the claims against Tropicana without
prejudice. (ECF No. 13.) Plaintiffs, the City of Atlantic City
and Jose Gonzalez filed a stipulation dismissing the conspiracy to
violate civil rights claims (Count Three) and the claims arising
under New Jersey law (Count Five) with prejudice as against the
City of Atlantic City and Jose Gonzalez. (ECF No. 17.)
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“will fall automatically when the Motion to Dismiss
Plaintiffs[’] Complaint is granted as to Codefendant Gonzalez.”
(ECF No. 16.)
Plaintiff argues that the motion to dismiss
should be denied because the acquittal of Gonzalez on charges
that he assaulted Plaintiffs does not collaterally estop their
claims against Gonzalez and because Heck does not bar their
claims.
The Court agrees with Plaintiffs and will deny the
motion to dismiss.
I.
BACKGROUND
In this Complaint, Alvarez and Baez assert that on March
24, 2013, they were celebrating Baez’s 24th birthday at the
Providence Night Club located in the Tropicana Hotel and Casino
in Atlantic City.
Plaintiffs allege that they left the building
with a woman named Jennifer, who would be giving them a ride
home, after Jennifer and other women involved in an incident in
the ladies room were asked by the bouncers to leave.
Plaintiffs
assert that the bouncers permitted them to go back into the
night club and while they were at the bar Defendant Officer
Gonzalez flashed his flashlight in Baez’s face, violently
grabbed Alvarez, pushed Baez into Alvarez, and punched her in
the face.
Plaintiffs assert that Gonzalez “delivered a series
of strikes to the plaintiff Tiffany Baez while she lay on the
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ground,” and he also “punched plaintiff Norma Alvarez in the
face causing her to fall to the floor as well.”
(ECF No. 1 at
3.)
Plaintiffs assert that Gonzalez improperly arrested them
for aggravated assault on a police officer and resisting arrest
and they were taken to the police station where they were
detained in a holding cell for six to 12 hours before being
released.
Plaintiffs allege that they were each indicted on
these criminal charges, but the charges were dismissed after
they successfully completed New Jersey’s Pre-Trial Intervention
Program.
Plaintiffs further allege that Officer Gonzalez and
Defendants John Doe 1-4 have a history of civilian excessive
force complaints.
In Count One, Plaintiffs claim that Officer Gonzalez and
the John Doe defendants violated their rights under § 1983 by
using excessive force, arresting them without probable cause,
and detaining them for up to 12 hours.
In Count Two, Plaintiffs
claim that the City of Atlantic City violated their rights under
§ 1983, inter alia, through a pattern, practice and custom of
permitting, encouraging and knowingly acquiescing in the
violation of citizens’ constitutional rights by police officers,
including Gonzalez and the John Does.
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II.
STANDARD OF REVIEW
To recover under 42 U.S.C. § 1983 against an individual, a
plaintiff must show:
(1) a person deprived him or caused him to
be deprived of a right secured by the Constitution or laws of
the United States, and (2) the deprivation was done under color
of state law.
See West v. Atkins, 487 U.S. 42, 48 (1988);
Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970).
To survive dismissal for failure to state a claim upon
which relief may be granted under Rule 12(b)(6), “a complaint
must contain sufficient factual matter, accepted as true, to
‘state a claim for relief that is plausible on its face.’
A
claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(citations omitted).
Although for the purposes of Rule 12(b)(6) a court must take
factual allegations in the complaint as true, a court is “not
bound to accept as true a legal conclusion couched as a factual
allegation.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007) (internal quotation marks omitted).
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III.
A.
DISCUSSION
Collateral Estoppel
Gonzalez argues that collateral estoppel bars Plaintiffs’ §
1983 excessive force claims against Gonzalez because on December
17, 2014, Municipal Court Judge Mary Siracusa acquitted Gonzalez
of committing assault against Norma Alvarez and Tiffany Baez.
Arguing that the Court should take judicial notice of State v.
Gonzalez, Summons Nos. 0102-S-2013-1589, 0102-S-2013-1590,
Gonzalez attaches the cover sheet and a portion of the trial
transcript to the certification of his attorney.
at 3-8.)
(ECF No. 5-4
The transcript shows that at the close of the
prosecution’s criminal case against Gonzalez, Judge Siracusa
granted Gonzalez’s motion for acquittal.
Id.
Relying on
Kauffman v. Moss, 420 F.2d 1270, 1274 (3d Cir. 1970), Gonzalez
contends that the doctrine of collateral estoppel applies when
plaintiffs in a § 1983 case “attempt[] to relitigate in federal
court issues decided against them in state criminal
proceedings.”
(ECF No. 5-2 at 6.)
Gonzalez further argues that
this case “is clearly an instance where Plaintiffs are
attempting to raise issues they previously raised in criminal
proceedings – specially the allegations of assault against
Officer Gonzalez that resulted in the December 17, 2014 trial.
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Because it has already been determined that Officer Gonzalez did
not assault either Plaintiff, the claims for excessive force
must be dismissed pursuant to Collateral and Judicial Estoppel.”
Id.
Plaintiffs argue that they are not collaterally estopped
from pursuing their § 1983 excessive force claims against
Gonzalez because the standard of proof in the criminal case
(beyond a reasonable doubt) is greater than the standard of
proof in this action (preponderance of the evidence).
Relying
on Dowling v. United States, 493 U.S. 342, 349 (1990), and other
state and federal cases, as well as the Restatement (Second) of
Judgments § 28, Plaintiffs argue that Gonzalez’s acquittal on
assault charges does not negate the possibility that a
preponderance of the evidence could show that he used excessive
force when he arrested them.
Officer Gonzalez relies on Kauffman v. Moss, but that case
does not compel dismissal of Plaintiff’s excessive force and
other § 1983 claims.
After he was convicted of several crimes
in state court, the plaintiff in Kauffman filed a § 1983 case
against police officers alleging that they had conspired to
secure his convictions by the knowing use of perjured testimony.
The District Court dismissed the complaint on the ground that
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plaintiff was collaterally estopped from bringing a civil damage
suit based on the alleged use of perjured testimony and the
Third Circuit reversed:
“While the case may be appropriate for
summary judgment upon consideration of the criminal trial
record, it was error to dispose of the complaint by a motion to
dismiss on the ground of estoppel.”
Kauffman, 420 F.2d at 1275
(footnote omitted).
Kauffman does not govern this case, since it involved the
question of whether a conviction of a person bars that person’s
civil action against the police for conspiring to improperly
obtain that conviction, and this case concerns whether a police
officer’s acquittal for assaulting Plaintiffs bars their civil
action against that officer for the alleged use of excessive
force during arrest.
The Court agrees with Plaintiffs and rejects the notion
that collateral estoppel bars their § 1983 claims against
Gonzalez.
Because conviction in the criminal case against
Gonzalez required proof beyond a reasonable doubt and a judgment
in Plaintiffs’ favor in this case will require only proof by a
preponderance of the evidence, Gonzalez’s acquittal on charges
that he assaulted Plaintiffs does not collaterally estop their
civil action against Gonzalez for the alleged use of excessive
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force during arrest.
See United States v. Watts, 519 U.S. 148
(1997) (“[A]n acquittal is not a finding of any fact.
An
acquittal can only be an acknowledgement that the government
failed to prove an essential element of the offense beyond a
reasonable doubt.”)(citation omitted); Dowling v. United States,
493 U.S. 342, 349 (1990) (“[A]n acquittal in a criminal case
does not preclude the Government from relitigating an issue when
it is presented in a subsequent action governed by a lower
standard of proof.”); United States v. One Assortment of 89
Firearms, 465 U.S. 354, 361, 362 (1984) (holding that a gun
owner’s acquittal on criminal charges that he had knowingly
engaged in the business of dealing in firearms without a license
does not preclude a subsequent in rem civil action for
forfeiture of those same firearms because “an acquittal on
criminal charges does not prove that the defendant is innocent;
it merely proves the existence of a reasonable doubt as to his
guilt” and “the jury verdict in the criminal action did not
negate the possibility that a preponderance of the evidence
could show that Mulcahey was engaged in an unlicensed firearms
business.”); One Lot Emerald Cut Stones v. United States, 409
U.S. 232, 235 (1972) (holding that the Double Jeopardy Clause
did not bar a forfeiture action subsequent to acquittal on the
9
underlying offense because “the difference in the burden of
proof in criminal a civil cases precludes application of the
doctrine of collateral estoppel.”)
B.
Favorable Termination Rule
Gonzalez argues that the favorable termination rule of Heck
v. Humphrey bars Plaintiffs’ § 1983 excessive force, unlawful
arrest, and unlawful detention pursuant to arrest claims.2
Specifically, he argues that the dismissal of the aggravated
assault on a police officer and resisting arrest charges against
Plaintiffs based on Plaintiffs’ successful completion of New
Jersey’s Pre-Trial Intervention Program does not constitute a
favorable termination under Heck.
Heck only applies after a conviction.
See Wallace v. Kato,
549 U.S. 384, 393 (2007) (“[T]he Heck rule for deferred accrual
is called into play only when there exists a conviction or
2
The constitutional tort of “false imprisonment ends once the
victim becomes held pursuant to [legal] process – when, for
example, he is bound over by a magistrate or arraigned on charges
. . . If there is a false arrest claim damages for that claim
covers the time of detention up until issuance of process or
arraignment, but not more.
From that point on, any damages
recoverable must be based on a malicious prosecution claim and on
the wrongful use of judicial process rather than detention itself.”
Wallace v. Kato, 549 U.S. 384, 389-90 (2007) (citations and
internal quotation marks omitted).
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sentence that has not been ... invalidated, that is to say, an
outstanding criminal judgment.”)
Because nothing alleged in the
Complaint shows that Plaintiffs were convicted, Heck does not
bar their § 1983 claims.
Id.
In any event, Heck does not bar §
1983 claims for false arrest and detention pursuant to arrest,
see id. at 397; Montgomery v. DeSimone, 159 F.3d 120, 126 n.5
(3d Cir. 1998) ("Because a conviction and sentence may be upheld
even in the absence of probable cause for the initial stop and
arrest, we find that Montgomery’s claims for false arrest and
false imprisonment are not the type of claims contemplated by
the Court in Heck which necessarily implicate the validity of a
conviction or sentence"), or excessive force.
See Lora-Pena v.
FBI, 529 F.3d 503, 506 (3d Cir. 2008) (“Lora–Pena's convictions
for resisting arrest and assaulting officers would not be
inconsistent with a holding that the officers, during a lawful
arrest, used excessive (or unlawful) force in response to his
own unlawful actions”); Nelson v. Jashurek, 109 F.3d 142, 145–
146 (3d. Cir. 1997) (holding that resisting arrest conviction
does not bar an excessive force claim under Heck).
Plaintiffs’ § 1983 claims against Gonzalez and the City of
Atlantic City are not barred by collateral estoppel or Heck v.
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Humphrey.
The Court will, therefore, deny Gonzalez’s motion to
dismiss the Complaint pursuant to Rule 12(b)(6).
IV.
CONCLUSION
The Court denies the motion to dismiss the Complaint for
failure to state a claim under Rule 12(b)(6).
/s/Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
DATED:
December 17, 2015
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