CELESTIN et al v. WEST DEPTFORD TOWNSHIP et al

Filing 73

OPINION. Signed by Judge Noel L. Hillman on 9/29/2016. (TH, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

JEAN L. CELESTIN, J.C. #1 and
J.C. #2, by and through their
mother and guardian, JESSIE
CLAIRVIL,

Civil No. 15-7608 (NLH/KMW)

OPINION

Plaintiffs,
v.

WEST DEPTFORD TOWNSHIP, et
al.
Defendants.

APPEARANCES:
Robert Nathaniel Agre
4 Kings Highway East
Haddonfield, NJ 08033
Attorney for Plaintiffs
Deborah Beth Rosenthal
Gebhardt & Kiefer, PC
1318 Route 31
PO Box 4001
Clinton, NJ 08809-4001
Attorney for Defendants West Deptford Township, Corporal
Steven C. Shirey, Patrolman James Greco, Sergeant Mark D.
White, Police Chief Samuel DiSimone, and Patrolman Joseph
LaMalfa
Matthew Christian Weng
Chance & McCann
201 West Commerce Street
Bridgeton, NJ 08302
Attorney for Defendant Gloucester County

David Andrew Tuason
State of New Jersey
Office of the Attorney General
25 Market Street
Trenton, NJ 08625
Attorney for Defendant Asst. Prosecutor Vincent Malfitano,
Prosecutor Sean Dalton and Agent William Donovan
James Douglas Young
Steven J. Daroci
Fox Rothschild LLP
997 Lenox Drive
Building 3
Lawrenceville, NJ 08543-5231
Attorneys for Defendant Solvey Solexis, Inc., Russell
Cundy, Joseph Auletto, and Charles Jones
Kurt E. Kramer
Capehart Scatchard
8000 Midlantic Drive
Suite 300S
Mount Laurel, NJ 08054
Attorney for Defendant Thomas Marscholwitz

HILLMAN, District Judge
This case concerns an alleged accidental trespass into
property owned by Solvay Specialty Polymers USA (“Solvay”) in
West Deptford, New Jersey.

Plaintiff Jean Celestin alleges that

on February 9, 2014, while driving his children to a birthday
party, his GPS system rerouted him to Solvay’s property, which
is a restricted chemical plant.

Celestin alleges he was

arrested and charged with criminal trespass, and his two
children were detained.

Plaintiffs bring constitutional claims

against five groups of Defendants: (1) Gloucester County [Doc.
No. 34]; (2) Gloucester County Prosecutor Sean Dalton, former
2

Gloucester County Assistant Prosecutor Vincent Malfitano,
Gloucester County Agent William Donovan (collectively, “the
prosecutor Defendants”) [Doc. No. 35]; (3) Solvay, and Solvay
employees, Joseph Auletto, Russell Cundy and Charles Jones
(collectively, the “Solvay Defendants”) [Doc. No. 36]; (4)
Solvay security guard Thomas Marschlowitz [Doc. No. 43]; and (5)
Police Chief Samuel DiSimone, Patrolman James Greco, Patrolman
Joseph LaMalfa, Corporal Steven C. Shirey, Sergeant Mark D.
White and West Deptford Township (the “West Deptford
Defendants”).
I.

JURISDICTION
The Court has jurisdiction over Plaintiffs’ federal claims

under 28 U.S.C. § 1331, and supplemental jurisdiction over
Plaintiffs’ state law claims under 28 U.S.C. § 1367(a), which
provides in relevant part, “[I]n any civil action of which the
district courts have original jurisdiction, the district courts
shall have supplemental jurisdiction over all other claims that
are so related to claims in the action within such original
jurisdiction that they form part of the same case or controversy
under Article III of the United States Constitution.”
II.

STANDARDS OF LAW

A. Motion to Dismiss
When considering a motion to dismiss a complaint for
failure to state a claim upon which relief can be granted
3

pursuant to Federal Rule of Civil Procedure 12(b)(6), a court
must accept all well-pleaded allegations in the complaint as
true and view them in the light most favorable to the plaintiff.
Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005).

It is well

settled that a pleading is sufficient if it contains “a short
and plain statement of the claim showing that the pleader is
entitled to relief.”

Fed. R. Civ. P. 8(a)(2).

Under the liberal federal pleading rules, it is not
necessary to plead evidence, and it is not necessary to plead
all the facts that serve as a basis for the claim.
Gulf Oil Corp., 562 F.2d 434, 446 (3d Cir. 1977).

Bogosian v.
However,

“[a]lthough the Federal Rules of Civil Procedure do not require
a claimant to set forth an intricately detailed description of
the asserted basis for relief, they do require that the
pleadings give defendant fair notice of what the plaintiff’s
claim is and the grounds upon which it rests.”

Baldwin Cnty.

Welcome Ctr. v. Brown, 466 U.S. 147, 149-50 n.3 (1984)
(quotation and citation omitted).
A district court, in weighing a motion to dismiss, asks
“‘not whether a plaintiff will ultimately prevail but whether
the claimant is entitled to offer evidence to support the
claim.’”

Bell Atlantic v. Twombly, 550 U.S. 544, 563 n.8 (2007)

(quoting Scheuer v. Rhoades, 416 U.S. 232, 236 (1974)); see also
Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (“Our decision in
4

Twombly expounded the pleading standard for ‘all civil actions’
. . . .”); Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir.
2009) (“Iqbal . . . provides the final nail-in-the-coffin for
the ‘no set of facts’ standard that applied to federal
complaints before Twombly.”).
Following the Twombly/Iqbal standard, the Third Circuit has
provided a three-part analysis in reviewing a complaint under
Rule 12(b)(6).

First, the Court must take note of the elements

needed for plaintiff to state a claim.

Santiago v. Warminster

Tp., 629 F.3d 121, 130 (3d Cir. 2010).

Second, the factual and

legal elements of a claim should be separated; a district court
must accept all of the complaint's well-pleaded facts as true,
but may disregard any legal conclusions.
at 210 (citing Iqbal, 129 S. Ct. at 1950).

Id.; Fowler, 578 F.3d
Third, a district

court must then determine whether the facts alleged in the
complaint are sufficient to show that the plaintiff has a
plausible claim for relief.

Id.

A complaint must do more than

allege the plaintiff's entitlement to relief.

Fowler, 578 F.3d

at 210; see also Phillips v. Cnty. of Allegheny, 515 F.3d 224,
234 (3d Cir. 2008) (stating that the “Supreme Court’s Twombly
formulation of the pleading standard can be summed up thus:
‘stating . . . a claim requires a complaint with enough factual
matter (taken as true) to suggest’ the required element.
‘does not impose a probability requirement at the pleading

This

5

stage,’ but instead ‘simply calls for enough facts to raise a
reasonable expectation that discovery will reveal evidence of’
the necessary element.”).
A court need not credit either “bald assertions” or “legal
conclusions” in a complaint when deciding a motion to dismiss.
In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 142930 (3d Cir. 1997).

The defendant bears the burden of showing

that no claim has been presented.

Hedges v. United States, 404

F.3d 744, 750 (3d Cir. 2005) (citing Kehr Packages, Inc. v.
Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991)).
Finally, a court in reviewing a Rule 12(b)(6) motion must only
consider the facts alleged in the pleadings, the documents
attached thereto as exhibits, and matters of judicial notice.
S. Cross Overseas Agencies, Inc. v. Kwong Shipping Grp. Ltd.,
181 F.3d 410, 426 (3d Cir. 1999).

A court may consider,

however, “an undisputedly authentic document that a defendant
attaches as an exhibit to a motion to dismiss if the plaintiff’s
claims are based on the document.”

Pension Benefit Guar. Corp.

v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.
1993).
B. Summary Judgment Standard
Summary judgment is appropriate where the Court is
satisfied that “‘the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
6

affidavits, if any,’ . . . demonstrate the absence of a genuine
issue of material fact” and that the moving party is entitled to
a judgment as a matter of law.

Celotex Corp. v. Catrett, 477

U.S. 317, 322-23 (1986) (citing Fed. R. Civ. P. 56).
An issue is “genuine” if it is supported by evidence such
that a reasonable jury could return a verdict in the nonmoving
party’s favor.
248 (1986).

Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

A fact is “material” if, under the governing

substantive law, a dispute about the fact might affect the
outcome of the suit.

Id.

“In considering a motion for summary

judgment, a district court may not make credibility
determinations or engage in any weighing of the evidence;
instead, the non-moving party’s evidence ‘is to be believed and
all justifiable inferences are to be drawn in his favor.’”
Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004)
(citing Anderson, 477 U.S. at 255).
Initially, the moving party bears the burden of
demonstrating the absence of a genuine issue of material fact.
Celotex, 477 U.S. at 323 (“[A] party seeking summary judgment
always bears the initial responsibility of informing the
district court of the basis for its motion, and identifying
those portions of ‘the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any,’ which it believes demonstrate the absence
7

of a genuine issue of material fact.”); see also Singletary v.
Pa. Dept. of Corr., 266 F.3d 186, 192 n.2 (3d Cir. 2001)
(“Although the initial burden is on the summary judgment movant
to show the absence of a genuine issue of material fact, ‘the
burden on the moving party may be discharged by ‘showing’ -that is, pointing out to the district court -- that there is an
absence of evidence to support the nonmoving party’s case’ when
the nonmoving party bears the ultimate burden of proof.”)
(citing Celotex, 477 U.S. at 325).
Once the moving party has met this burden, the nonmoving
party must identify, by affidavits or otherwise, specific facts
showing that there is a genuine issue for trial.
U.S. at 324.

Celotex, 477

A “party opposing summary judgment ‘may not rest

upon the mere allegations or denials of the . . . pleading[s.]’”
Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001).

For

“the non-moving party[ ] to prevail, [that party] must ‘make a
showing sufficient to establish the existence of [every] element
essential to that party’s case, and on which that party will
bear the burden of proof at trial.’”

Cooper v. Sniezek, 418 F.

App’x 56, 58 (3d Cir. 2011) (citing Celotex, 477 U.S. at 322).
Thus, to withstand a properly supported motion for summary
judgment, the nonmoving party must identify specific facts and
affirmative evidence that contradict those offered by the moving
party.

Anderson, 477 U.S. at 257.
8

III. DISCUSSION
In his amended complaint, Celestin alleges that on February
9, 2014 at approximately 2:45 p.m. he “accidently entered”
Solvay’s chemical plant located at 10 Leonard Lane in West
Deptford Township, New Jersey, with his two minor children in
the back seat of the car.

(Am. Compl. ¶¶ 24-25.)

Celestin was

able to enter the restricted facility because the front gate was
open to let out an authorized contractor.

The Solvay security

officers then notified West Deptford police who arrived at the
plant.

At the request of Solvay, West Deptford officers charged

Celestin with criminal trespass in violation of N.J.S.A. 2C:183a, which provides, in pertinent part:
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, or in the sterile
area or operational area of an airport.

N.J. Stat. Ann. § 2C:18-3.

In sum and substance, Celestin

argues there was no probable cause to charge him with criminal
trespass because he explained to Solvay security and police
officers he was merely lost and therefore did not knowingly
trespass onto Solvay’s property.

Celestin further alleges in

his amended complaint that his minor children witnessed his
arrest and experienced severe emotional distress as a result.

9

(Am. Compl. ¶ 117.)
Plaintiffs’ amended complaint contains 15 counts: Counts IV: deprivation of the Plaintiffs’ civil rights in violation of
42 U.S.C. § 1983 against the state actor Defendants; Count VI:
negligence as to Defendant, Township of West Deptford; Count
VII: negligence as to Gloucester County; Counts VIII and IX:
negligence as to private actor Defendants; Count X: intentional
infliction of emotional distress as to all Defendants; Count XI:
negligent infliction of emotional distress as to all Defendants;
Count XII: civil conspiracy as to all Defendants; Count XIII:
all causes of action against fictitiously-identified Defendants;
Count XIV: malicious prosecution as to Defendants, Shirey, Jones
and Malfitano; and Count XV: false imprisonment as to Cundy and
Auletto, two of the Solvay Defendants.
Gloucester County seeks to dismiss all claims against it.
The prosecutor Defendants seek to dismiss all the federal
claims, and seek summary judgment as to the state claims for
failure to comply with the New Jersey Tort Claims notice
requirement.
against them.

The Solvay Defendants seek to dismiss all claims
Solvay security guard Thomas Marschlowitz seeks

to dismiss all the claims asserted against him.

The West

Deptford Defendants seek to dismiss all the claims against them,
and also seek summary judgment on the basis of qualified
immunity.

For the reasons that follow, the Court will dismiss
10

all of Plaintiffs’ claims without prejudice.

Plaintiffs will

have thirty (30) days to submit an amended complaint if they can
cure the deficiencies noted herein.

Summary judgment will be

granted to the West Deptford Defendants on Counts I and IV on
the basis of qualified immunity.
Count I: 42 U.S.C. § 1983 Against all State Actor Defendants
(Fourth Amendment)
In the amended complaint, Plaintiffs claim that the “State
Actor Defendants,” West Deptford Township, Corporal Steven C.
Shirey, Patrolman James Greco, Patrolman Joseph LaMalfa,
Sergeant Mark D. White, Police Chief Samuel DiSimone, Gloucester
County, Prosecutor Sean Dalton, Agent William Donovan, and
Assistant Prosecutor Vincent Malfitano, unlawfully detained and
arrested Plaintiffs without probable cause “in violation of
their rights to liberty and freedom from unlawful detention and
seizure, which rights are guaranteed by the Fourth and
Fourteenth Amendments to the United States Constitution, and
Article One, Paragraphs One and Seven of the New Jersey.”

(Am.

Compl. 26.)
The Fourth Amendment guarantees an individual's right to be
free from “unreasonable searches and seizures.”
amend. IV.

U.S. Const.

Correspondingly, the Fourth Amendment “prohibits a

police officer from arresting a citizen except upon probable
cause.”

Orsatti v. N.J. State Police, 71 F.3d 480, 482 (3d Cir.

11

1995).

Thus, to prevail on a claim for false arrest, a

plaintiff must prove that the officer defendants lacked probable
cause to arrest him.

See Groman v. Township of Manalapan, 47

F.3d 628, 634 (3d Cir. 1995).

Thus, “[t]he proper inquiry in a

Section 1983 claim based on false arrest ... is not whether the
person arrested in fact committed the offense but whether the
arresting officers had probable cause to believe the person
arrested had committed the offense.”

Dowling v. City of Phila.,

855 F.2d 136, 141 (3d Cir. 1988). “[W]hen an officer has
probable cause to believe a person committed even a minor crime
in his presence, the balancing of private and public interests
is not in doubt.

The arrest is constitutionally reasonable.”

Virginia v. Moore, 553 U.S. 164, 171 (2008).

Thus, a plaintiff

must state “the facts [showing that, under the] circumstances
within [the officer's] knowledge, a reasonable officer could not
have believed that an offense had been or was being committed by
the person to be arrested.”
(3d Cir. 1996).

Mosley v. Wilson, 102 F.3d 85, 94–5

A claim for false imprisonment based on the

underlying false arrest also requires a plaintiff to prove lack
of probable cause.

Groman, 47 F.3d at 636.

Local governments, however, cannot be held liable for the
actions of their employees solely based on the doctrine of
respondeat superior.

Monell v. Dep't of Soc. Servs. of City of

New York, 436 U.S. 658, 659 (1978); Bielevicz v. Dubinon, 915
12

F.2d 845, 849–50 (3d Cir. 1990).

In order to successfully state

a claim for municipal liability, a plaintiff must allege that
the employees' actions were pursuant to a policy or custom of
the local government.

Monell, 436 U.S. at 694; Watson v.

Abington, 478 F.3d 144, 155 (3d Cir. 2007).

A policy is made

when a decision maker possessing final authority to establish
municipal policy with respect to the action issues a final
proclamation, policy or edict, while a custom is an act that has
not been formally approved by a decision maker, but is so
widespread as to have the force of law. Natale v. Camden Cty.
Corr. Facility, 318 F.3d 575, 584 (3d Cir. 2003) (further
citations omitted).

“A policy or custom can be established in

three ways: (1) the entity or supervisor promulgates an
applicable policy statement and the act the plaintiff complains
of is the implementation of that policy; (2) the policymaker,
without a formally announced policy, violates federal law
itself; or (3) the ‘the policymaker has failed to act
affirmatively at all, [though] the need to take some action to
control the agents of the government is so obvious, and the
inadequacy of existing practice so likely to result in the
violation of constitutional rights, that the policymaker can
reasonably be said to have been deliberately indifferent to the
need.’” Defreitas v. Montgomery Cty. Corr. Facility, 525 F.
App'x 170, 177 (3d Cir. 2013) (citing Natale, 318 F.3d at 584).
13

Three sets of Defendants seek to have Count I dismissed.
1. Gloucester County
The claim against Gloucester County will be dismissed.
Plaintiffs allege Gloucester County “failed to establish the
appropriate standards for the detention and/or arrest of
individuals, as a result of which Plaintiffs in this case were
deprived of their constitutional rights.”

(Am. Compl. ¶ 30.)

Plaintiff further alleges Gloucester County “implemented
official polices that were the moving force that resulted in the
violation of Plaintiff’s constitutional rights.”
36.)

(Am. Compl. ¶

This is insufficient to state a claim against Gloucester

County because Plaintiff fails to allege what official policy or
custom of Gloucester County caused a constitutional deprivation.
Hildebrand v. Allegheny County, 757 F.3d 99, 110–11 (3d Cir.
2014) (complaint must plead facts to support Monell liability);
McTernan v. City of York, Pa., 564 F.3d 636, 658 (3d Cir. 2009)
(stating to satisfy pleading standard for Monell claim,
complaint “must identify a custom or policy, and specify what
exactly that custom or policy was”).

Accordingly, Count I

against Gloucester City will be dismissed without prejudice.
2. Dalton, Malfitano and Donovan
Claim I as asserted against Prosecutor Dalton, former
Assistant prosecutor Malfitano and Agent Donovan will also be
dismissed.
14

Dalton and Malfitano argue they are immune from suit in
their official capacities pursuant to the Eleventh Amendment.
The Eleventh Amendment to the United States Constitution
provides that, “[t]he Judicial power of the United States shall
not be construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United States by
citizens of another State, or by Citizens or Subjects of any
Foreign State.”

U.S. Const. amend. XI.

As a general

proposition, a suit by private parties seeking to impose
liability which must be paid from public funds in a state
treasury is barred from federal court by the Eleventh Amendment,
unless Eleventh Amendment immunity is waived by the state itself
or by federal statute.
651, 663 (1974).

See, e.g., Edelman v. Jordan, 415 U.S.

The Eleventh Amendment protects states and

their agencies and departments from suit in federal court
regardless of the type of relief sought.

Pennhurst State Sch. &

Hosp. v. Halderman, 465 U.S. 89, 100 (1984).

Section 1983 does

not override a state's Eleventh Amendment immunity.

Quern v.

Jordan, 440 U.S. 332, 345 (1979).
To determine whether Eleventh Amendment immunity applies to
a state agency, a court must consider three factors: (1) the
source of the agency's funding — i.e., whether payment of any
judgment would come from the state's treasury; (2) the status of
the agency under state law; and (3) the degree of autonomy from
15

state regulation.

See Fitchik v. New Jersey Transit Rail

Operations, Inc., 873 F.2d 655, 659 (3d Cir.) (en banc), cert.
denied, 493 U.S. 850 (1989).

In Coleman v. Kaye, 87 F.3d 1491,

1500–02 (3d Cir. 1996), cert. denied, 519 U.S. 1084 (1997), the
Third Circuit considered these factors and recognized that “when
[New Jersey county] prosecutors engage in classic law
enforcement and investigative functions, they act as officers of
the state.”

Id. at 1505; Beightler v. Office of Essex Cty.

Prosecutor, 342 F. App'x 829, 832 (3d Cir. 2009) (county
prosecutors acted as arms of the state when they performed the
classic law enforcement and investigative functions for which
they are chiefly responsible).

None of Plaintiffs’ claims

against Dalton and Malfitano contained in Count I encompass any
activity other than classic law enforcement and investigative
functions.

Thus, they are shielded by the Eleventh Amendment.

Accordingly, the Court finds that the claims against Dalton and
Malfitano in their official capacities will be dismissed without
prejudice.
Dalton and Malfitano also argue that the claims asserted
against them in their individual capacities in Count I should
also be dismissed because they are barred by the doctrine of
prosecutorial immunity under § 1983.
Where a suit is brought against a state official in his
individual capacity, the State is not the real party in interest
16

because the recovery, if any, would come from the personal
assets of the individual.

Melo v. Hafer, 912 F.2d 628, 635 (3d

Cir. 1990), aff'd, 502 U.S. 21 (1991).

Although the Eleventh

Amendment does not provide sovereign immunity to state officials
for claims brought against them in their individual capacity,
prosecutors are entitled to absolute immunity under Section 1983
if he or acts within the scope of his duties in initiating and
pursuing a criminal prosecution.
409, 410 (1976).

Imbler v. Pachtman, 424 U.S.

Thus, “acts undertaken by a prosecutor in

preparing for the initiation of judicial proceedings or for
trial, and which occur in the course of his role as an advocate
for the State, are entitled to the protections of absolute
immunity.”

Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993).

Courts have upheld prosecutorial immunity in cases
involving the initiation of a prosecution, the indictment or
filing of charges against an individual and the failure to
properly investigate before initiating a prosecution.

Schrob v.

Catterson, 948 F.2d 1402, 1410–11 (3d Cir. 1991) (citing Rose v.
Bartle, 871 F.2d 331, 345 n.12 (3d Cir. 1989) (absolute immunity
from allegation of instituting grand jury proceedings without
investigation and without good faith belief that any wrongdoing
occurred); Henzel v. Gerstein, 608 F.2d 654, 657 (5th Cir. 1979)
(alleged failure to investigate prior to filing information
protected by absolute immunity)).
17

A prosecutor is not entitled to absolute immunity, however,
for actions undertaken in some other function.

See Kalina v.

Fletcher, 522 U.S. 118 (1997) (prosecutor is protected only by
qualified immunity for attesting to the truth of facts contained
in certification in support of arrest warrant, as in her
provision of such testimony she functioned as a complaining
witness rather than a prosecutorial advocate for the state);
Burns v. Reed, 500 U.S. 478 (1991) (prosecutor absolutely immune
from liability for participation in probable cause hearing, but
only entitled to qualified immunity for giving legal advice to
police).

Immunity attaches to actions “intimately associated

with the judicial phases of litigation,” but not to
administrative or investigatory actions unrelated to initiating
and conducting judicial proceedings.

Giuffre v. Bissell, 31

F.3d 1241, 1251 (3d Cir. 1994) (quoting Imbler, 424 U.S. at 430,
96 S.Ct. 984).

“[T]he official seeking absolute immunity bears

the burden of showing that such immunity is justified for the
function in question.’”

Yarris v. County of Delaware, 465 F.3d

129, 135 (3d Cir. 2006) (quoting Burns v. Reed, 500 U.S. 478,
786 (1991)).

Here, Plaintiffs make the following claims in the

amended complaint:
•

Malfitano and Donovan “authorized the arrest of Plaintiff,
Jean L. Celestin” (Am. Compl. ¶ 29.)

•

Dalton supervised Donovan and Malfitano (Am. Compl. ¶ 58.)
18

•

Dalton “tacitly authorized the unlawful acts of Defendants”
(Am. Compl. ¶ 59.)

•

Defendants’ decision to charge Plaintiff was made without
probable cause (Am. Compl. ¶ 79.)
Dalton and Malfitano have met their burden of showing that

absolute immunity is justified because Plaintiff has pled no
facts showing Defendants acted outside their role as advocates
for the State.

As stated in the amended complaint, Plaintiffs’

allegations against Dalton and Malfitano concern “the initiation
of a prosecution, or the indictment or filing of charges against
an individual.” Schrob, 948 F.2d at 1410–11.

As such,

Plaintiff’s individual capacity claim against Dalton and
Malfitano contained in Count I will be dismissed without
prejudice.

Plaintiffs may amend their complaint if they can

plead facts which show Defendants engaged in administrative or
investigatory actions unrelated to initiating and conducting
judicial proceedings.
As to Agent Donovan, Plaintiffs fail to state a claim
against him in Count I.

In the amended complaint, Donovan is

described as an agent of the prosecutor’s office, and is alleged
to have “authorized the arrest of Plaintiff, Jean L. Celestin.”
(Am. Compl. ¶ 29.)

However, Celestin has plead no facts showing

Dalton’s involvement in his arrest, or what actions Dalton took
which violated his constitutional rights.
19

“Threadbare recitals

of the elements of a cause of action, supported by mere
conclusory statements” are insufficient to state a plausible
claim. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Accordingly, the claims against Dalton contained in Count I will
be dismissed without prejudice for failure to state a claim.
3. West Deptford Township, Corporal Steven C. Shirley,
Patrolman James Greco, Sergeant Mark D. White, Patrolman
Joseph LaMalfa and Police Chief Samuel DiSimone
The West Deptford Defendants seek summary judgment as to
Count I on the basis of qualified immunity.

In the amended

complaint, Celestin claims these Defendants arrested and charged
him with criminal trespass without probable cause.
¶¶ 27, 30, 32.)

(Am. Compl.

The Court will grant summary judgment to the

West Deptford Defendants on Count I because based on the
undisputed facts, no reasonable jury could find a lack of
probable cause and thus no constitutional right was violated.
“[G]overnment officials performing discretionary functions
generally are shielded from liability for civil damages insofar
as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have
known.”

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

“When

properly applied, [qualified immunity] protects ‘all but the
plainly incompetent or those who knowingly violate the law.’”
Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011) (quoting Malley v.
Briggs, 475 U.S. 335, 341 (1992)).
20

In determining qualified immunity, the first question is
whether “the facts alleged, viewed in the light most favorable
to the party asserting the injury, show that the officer's
conduct violated a constitutional right[.]”

Curley v. Klem, 298

F.3d 271, 277 (3d Cir. 2002) (citing Saucier v. Katz, 533 U.S.
194, 201 (2001)).

Second, a court must decide whether the right

at issue was “clearly established” at the time of defendant's
alleged misconduct.

See Pearson v. Callahan, 555 U.S. 223, 232,

129 S. Ct. 808, 816, 172 L. Ed. 2d 565 (2009).
their consideration with either prong.

Courts may begin

Id. at 236.

The failure of the arresting officer to have probable cause
is a required element in both false arrest and malicious
prosecution.

“The elements of a false-arrest claim are (a) that

an arrest occurred; and (b) that the arrest was made without
probable cause.”
Cir. 2016).

Brown v. Makofka, 644 F. App'x 139, 143 (3d

To prove malicious prosecution, a plaintiff must

show that: (1) the defendant initiated a criminal proceeding;
(2) the criminal proceeding ended in his favor; (3) the
defendant initiated the proceeding without probable cause; (4)
the defendant acted maliciously or for a purpose other than
bringing the plaintiff to justice; and (5) the plaintiff
suffered deprivation of liberty consistent with the concept of
seizure as a consequence of a legal proceeding.

Johnson v.

Knorr, 477 F.3d 75, 81–82 (3d Cir. 2007) (footnote omitted).
21

To determine whether probable cause exists depends upon the
reasonable conclusion to be drawn from the facts known to the
arresting officer at the time of the arrest.

Devenpeck v.

Alford, 543 U.S. 146, 152, 125 S. Ct. 588, 593, 160 L. Ed. 2d
537 (2004).

“Probable cause to arrest requires more than mere

suspicion; however, it does not require that the officer have
evidence sufficient to prove guilt beyond a reasonable doubt.”
Orsatti v. New Jersey State Police, 71 F.3d 480, 482–83 (3d Cir.
1995) (citations omitted).

Rather, probable cause to arrest

“exists when the facts and circumstances within the arresting
officer's knowledge are sufficient in themselves to warrant a
reasonable person to believe that an offense has been or is
being committed by the person to be arrested.”

Id.

“In other

words, the constitutional validity of the arrest does not depend
on whether the suspect actually committed any crime.”

Wright v.

City of Philadelphia, 409 F.3d 595, 602 (3d Cir. 2005).
In evaluating the sufficiency of probable cause, the Third
Circuit has directed that the question of probable cause is one
for the jury, unless, when accepting all of a plaintiff's
allegations as true, no reasonable jury could find a lack of
probable cause.

Montgomery v. De Simone, PTL, 159 F.3d 120, 124

(3d Cir. 1998) (citations omitted).
In Wright v. City of Philadelphia, 409 F.3d 595, 602 (3d
Cir. 2005), a woman was charged with trespassing under
22

Pennsylvania law after breaking into a home to gather evidence
that she had been assaulted in the home.

She argued that the

officers did not have probable cause to arrest her because she
explained she had no criminal intent and the statute required
that she “knowingly” enter the building.

Id. at 602.

The Third

Circuit found that her explanation in entering the residence was
one factor to be considered, but not “dispositive.”

Id.

Rather, the Third Circuit found that analysis must center
on whether the totality of the circumstances justified a
reasonable belief on the part of the officers that Wright
committed a crime.

Id. at 603.

The court explained that, “the

standard does not require that officers correctly resolve
conflicting evidence or that their determinations of
credibility, were, in retrospect, accurate.

The officers did

not believe Wright's explanation for her entry.

Although they

may have made a mistake, their belief was not unreasonable in
light of the information the officers possessed at the time.”
Id. at 603.

The Third Circuit reversed the district court and

determined there was no constitutional violation and therefore
the arresting officers were entitled to qualified immunity.
Here, the following facts are undisputed.

Id.

Corporal Steven

Shirey of the West Deptford Police Department responded to
Solvay’s report of an unauthorized vehicle entry.

Corporal

Shirey knew Solvay to be a “critical infrastructure” because it
23

contained hazardous chemicals.
(“SMF”) ¶ 2.)

(Statement of Material Facts

When Corporal Shirey arrived, Celestin’s vehicle

was “deep inside the facility.”

(SMF ¶ 4.)

Solvay employees

were told by the security guard, Thomas Marshlowitz, that a
vehicle breached the front gate without stopping.

(SMF ¶ 7.)

Celestin made several turns and was far inside the facility
before Marshlowitz was able to catch up with the vehicle.
¶ 16.)

(SMF

Marsholowtiz began yelling at Celestin that was he was

trespassing.

(SMF ¶ 17).

Celestin told Corporal Shirey that he

followed his GPS into the facility, and once inside, realized he
was not at his destination.

(SMF ¶¶ 24-25.)

Corporal Shirey

wrote in his report that even when the front gate is open, there
is a stop sign posted at the gate which states: “Stop, check
with guard before entering plant.”

(SMF ¶ 36.)

Corporal Shirey

also wrote in his report that about forty yards past the gate
there is a security post and the same sign: “Stop, check with
guard before entering plant.”

(SMF ¶ 37.)

When Charles Jones,

head of Health, Safety, and Environment at Solvay was advised of
the situation he stated he wanted charges to be filed against
Celestin for trespassing.

(SMF ¶¶ 38-39.)

The prosecutor’s

office thereafter determined that Celestin could be charged with
criminal trespass, and Corporal Shirey placed Celestin under
arrest and transported him to the West Deptford Police Station.
(SMF ¶¶ 48-50.)

He was released that day.
24

Viewing the evidence in the most favorable light to
Plaintiffs, as the Court must do in deciding a motion for
summary judgment, the Court finds that no reasonable juror could
find that the facts and circumstances within arresting officer's
knowledge were insufficient to warrant a reasonable person to
believe that Celestin was trespassing onto Solvay’s property.
In other words, there was probable cause for the officers to
believe that Plaintiff knowingly entered the prohibited premises
knowing he was not licensed or privileged to do so in violation
of N.J.S.A. 2C:18-3.

Two factors the New Jersey Supreme Court

considers in determining whether a person has violated the
trespass statute are notice to the trespasser and the duration
of incursion.
116 (2014).

State v. Gibson, 218 N.J. 277, 288, 95 A.3d 110,
Here, Celestin had sufficient notice against

trespass, including a gate, two signs which instructed him to
stop and check in with security, and the fact that he was in an
industrial complex.

Further, he drove far into the facility.

Id. at 288 (State could not prove it had probable cause to charge
a person with trespassing where it could not prove the degree of
encroachment or how long the encroachment lasted, “whether
seconds or longer”).

The encroachment here was not fleeting or

momentary, and there is no dispute that Celestin was “deep” into
the facility before he finally stopped his vehicle.
Celestin argues he did not see any trespassing signs
25

because he was focused on his GPS, in other words, that he did
not trespass “knowingly,” as the statute requires.

While

Celestin has perhaps stated a plausible defense to his trespass
charge (which was dismissed), it does not affect the analysis of
whether the officers lacked probable cause.

The analysis must

center on whether, under the facts and circumstances of the
case, a reasonable person would believe that an offense has been
or is being committed by the person to be arrested.

Orsatti v.

New Jersey State Police, 71 F.3d 480, 482–83 (3d Cir. 1995)
(further citations omitted).

The Court finds the undisputed

facts show probable cause existed to arrest Plaintiff with
trespassing as a matter of law.

Plaintiffs failed to establish

that a constitutional right was violated.

The West Deptford

Defendants are entitled to qualified immunity as to Count I. 1
Count II: Supervisory Liability Against Police Chief DiSimone
In the amended complaint, Plaintiffs allege Police Chief

1

For the same reasons, the Court finds an unlawful seizure did
not occur. “[A] person has been ‘seized’ within the meaning of
the Fourth Amendment only if, in view of all of the
circumstances surrounding the incident, a reasonable person
would have believed that he was not free to leave. Examples of
circumstances that might indicate a seizure, even where the
person did not attempt to leave, would be the threatening
presence of several officers, the display of a weapon by an
officer, some physical touching of the person of the citizen, or
the use of language or tone of voice indicating that compliance
with the officer's request might be compelled.” United States
v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 1877, 64 L.
Ed. 2d 497 (1980). Here, there are no allegations of this kind.
26

DiSimone is the “highest ranking policy maker for the West
Deptford Township Police Department” (Am. Compl. ¶ 45.), held a
supervisory position over Greco, Shirey, LaMalfa and White (id.
¶ 47.) and “tacitly authorized” their unlawful acts (id. ¶ 48.).
Because the Court has determined as a matter of law that the
West Deptford Defendants are entitled to qualified immunity on
Count I because there is no constitutional violation, the claim
contained against Police Chief DiSimone for supervisor liability
fails as a matter of law.
Count III: Prosecutor Sean Dalton
In Count III, Plaintiffs allege Prosecutor Sean Dalton
deprived them of their constitutional rights in overseeing the
agents of the Gloucester County Prosecutor’s Office and
authorizing the unlawful detention and arrest of Plaintiffs.
(Am. Compl. ¶¶ 57, 58, 61.)

For the same reasons analyzed in

Count I, supra, the official and individual capacity claims
against Dalton will be dismissed without prejudice.
Count IV: State-Created Danger/Substantive Due Process Against
All State Actor Defendants
Plaintiffs allege in Count IV that their “substantive due
process rights to be free from state-created dangers were
clearly established constructional rights at the time of
Defendants’ acts and omissions, and a reasonable individual
would have known that their acts and omissions would violate

27

these clearly established constitutional rights.”
73.)

(Am. Compl. ¶

Plaintiffs further allege that Defendants violated this

right by “taking the affirmative steps of detaining and/or
arresting the Plaintiffs without reasonable suspicion and/or
probable cause.”

(Am. Compl. ¶ 69.)

This claim is asserted

against West Deptford Township, Shirey, Greco, LaMalfa, White,
DiSimone, Gloucester County, Prosecutor Sean Dalton, Agent
Donovan, and former prosecutor Malfitano.
As a preliminary matter, the Fourth Amendment, not
substantive due process, should guide the analysis.

Albright v.

Oliver, 510 U.S. 266 (1994) (arrest without probable cause did
not violate substantive due process rights; violation, if any,
implicated Fourth Amendment).

The Court has discussed

Plaintiff’s Fourth Amendment claim in section I, supra, and for
the same reasons, this claim fails.
To the extent Plaintiffs claim Defendants are liable under
a theory of state-created danger this claim also fails.

Even

though the due process clause generally does not confer an
affirmative right to governmental aid, a person may have a cause
of action against the state or governmental actor if “state
authority is affirmatively employed in a manner that injures a
citizen or renders him ‘more vulnerable to injury from another
source than he or she would have been in the absence of state
intervention.’”

Bright v. Westmoreland County, 443 F.3d 276,
28

280 (3d Cir. 2006) (citing DeShaney v. Winnebago Cty. Soc.
Servs. Dept., 489 U.S. 189 (1989) and quoting Schieber v. City
of Philadelphia, 320 F.3d 409, 416 (3d Cir. 2003)).

To state a

meritorious “state-created danger” claim, a plaintiff must
prove: (1) the harm ultimately caused was foreseeable and fairly
direct; (2) a state actor acted with a degree of culpability
that shocks the conscience; (3) a relationship between the state
and the plaintiff existed such that the plaintiff was a
foreseeable victim of the defendant's acts, or a member of a
discrete class of persons subjected to the potential harm
brought about by the state's actions, as opposed to a member of
the public in general; and (4) a state actor affirmatively used
his or her authority in a way that created a danger to the
citizen or that rendered the citizen more vulnerable to danger
than had the state not acted at all.

Id. (citations omitted).

Here, most obviously, there are no allegations of conduct
by the state actors which “shocks the conscience.”

Taking

Plaintiffs’ allegations as true, there are no facts to support
this cause of action.

The Court will therefore dismiss this

claim without prejudice as to all Defendants.
Count V: 42 U.S.C. 1983 Claims Against Shirey, Greco,
LaMalfa, White, Donovan and Malfitano in their
Individual Capacities
Count V is a claim against Shirey, Greco, LaMalfa, White,
Donovan and Malfitano in their individual capacities pursuant to
29

42 U.S.C. § 1983 for their decision to “detain, arrest and/or
file a criminal charge against the Plaintiffs . . . without
reasonable suspicious and/or probable cause.”
79.)

(Am. Compl. ¶

Plaintiff claims these actions violated the Fourth and

Fourteenth Amendments and Article One, Paragraph Seven of the
New Jersey Constitution.
For the reasons described in Section I, supra, the claims
against Donovan and Malfitano will be dismissed and the West
Deptford Defendants are entitled to qualified immunity.
Count VI: Negligence, Negligent Hiring, Negligent
Supervision/Training Retention against West Deptford
In the amended complaint, Plaintiff alleges West Deptford
“maintained a duty to the Plaintiffs, through common law,
statutory law and regulatory law, to exercise reasonable care
compatible with the standards of professionalism in law
enforcement.”

(Am. Compl. ¶ 87.)

Plaintiffs further allege

that West Deptford breached this duty by failing to exercising
reasonable care in hiring, supervising and training Defendants
Shirey, Greco, LaMalfa, and White.

(Am. Compl. ¶ 88.)

As an initial matter, it is unclear whether Plaintiff
asserts this claim pursuant to § 1983 or state law.

In cases

arising under § 1983, municipalities cannot be held liable on a
respondeat superior theory.

Monell, 436 U.S. at 691.

Rather,

municipalities are only liable “for their own illegal acts.”

30

Connick v. Thompson, 131 S. Ct. 1350, 1359 (2011) (quoting
Pembaur v. Cincinnati, 475 U.S. 469, 479 (1986)).

As explained

by the Third Circuit, courts have created a “two-path track to
municipal liability under § 1983, depending on whether the
allegation is based on municipal policy or custom.”

Mulholland

v. Gov't Cnty. of Berks, 706 F.3d 227, 237 (3d Cir. 2013)
(quoting Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir.
1996)).

“A plaintiff must identify the challenged policy,

attribute it to the city itself, and show a causal link between
execution of the policy and the injury suffered.”

Losch v.

Borough of Parkesburg, Pa., 736 F.2d 903, 910 (3d Cir. 1984).
“Further, in order to succeed on claims related to the City's
supervision, training or hiring [an officer] Plaintiff would
have to prove that the City acted with deliberate indifference
to the known or obvious consequences of its acts or its failure
to act.”

Adams v. City of Camden, 461 F. Supp. 2d 263, 267

(D.N.J. 2006) (citing Canton v. Harris, 489 U.S. 378, 388, 109
S. Ct. 1197 (1989)). “A showing of simple or even heightened
negligence will not suffice.” Id. (further citation omitted).
To the extent the negligent hiring claim rests on a theory
that West Deptford had a “policy” or “custom” of negligent
hiring, it fails for lack of specificity.
Iqbal, supra.

See Twombly, supra;

To the extent Plaintiffs claim a violation of the

New Jersey Tort Claims Act, West Deptford argues Plaintiffs fail
31

to state a claim.

The Court agrees.

Plaintiffs assert a sundry

of negligence claims against West Deptford for its hiring,
supervision, training, and retention of four individuals.
Plaintiffs fail to plead any facts to support these allegations.
Plaintiffs’ amended complaint contains only conclusory
allegations and legal conclusions of negligence.

See, e.g., Di

Cosala v. Kay, 91 N.J. 159, 450 A.2d 508 (1982) (tort of
negligent hiring requires a plaintiff to show knowledge of
employer, foreseeability of harm to third persons, and that
through negligence of employer in hiring employee, the
employee’s incompetence, unfitness or dangerous characteristics
proximately caused the injury); Polzo v. Cnty. of Essex, 196
N.J. 569, 960 A.2d 375, 384 (N.J. 2008) (under New Jersey law,
to succeed on a negligence claim, a plaintiff must establish a
duty of care, a breach of that duty, proximate cause, and actual
damages).

Accordingly, this claim will be dismissed without

prejudice. 2
Count VII: Negligence, Negligent Hiring, Negligent
Supervision/Training/Retention Against
Gloucester County
In Count VII, Plaintiffs allege that Gloucester County
“breached its duty of care to Plaintiff[s] by failing to
exercise reasonable care in the hiring, supervision, training

2

If Plaintiffs re-plead this claim, they should show compliance
with the notice requirements of the New Jersey Tort Claims Act.
32

and/or retention of Defendants, Donovan and/or Malfitano and in
the decision of those employees to detain, arrest, and/or file a
criminal charge against Plaintiffs.”

(Am. Compl. ¶ 95.)

Plaintiffs further allege Gloucester County is liable pursuant
to N.J.S.A. 59:2-2 et seq. and a notice of claim has been filed
in accordance with N.J.S.A. 59:8-6.

(Am. Compl. ¶¶ 96-96.)

The NJTCA provides, “No action shall be brought against a
public entity or public employee under this Act unless the claim
upon which it is based shall have been presented in accordance
with the procedures set forth in this chapter.”
3.

N.J.S.A. 59:8–

A tort claim notice “must be served upon the public entity

within 90 days of the accrual of the claim, and failure to do so
will forever bar the claimant from recovering against a public
entity or public employee.”

N.J.S.A. 59:8–8.

The accrual date

under the NJTCA is generally the date on which the alleged tort
is committed.

Beauchamp v. Amedio, 164 N.J. 111, 751 A.2d 1047,

1050 (2000).
From the face of the amended complaint, Celestin does not
allege facts, only conclusory statements, that he complied with
the notice requirements of the NJTCA and for this reason, Count
VII will be dismissed as to Plaintiff Celestin.

Additionally,

Plaintiffs’ claims against Gloucester County fail to state a
claim for the same reasons discussed in Count VI, supra, namely
that Plaintiffs’ amended complaint contains only conclusory
33

allegations and legal conclusions of negligence.
Counts VIII and IX: Negligence as to Defendants
Marschlowitz, Cundy, Auletto and
Jones and Solvay
In Count VIII, Plaintiffs allege Defendants Marschlowitz,
Cundy, Auletto and Jones owed a duty to each of the Plaintiffs
“through common law, statutory law and regulatory law to
exercise reasonable care.”

(Am. Compl. ¶ 106.)

Plaintiffs

further allege these Defendants breached this duty “by failing
to exercise reasonable care in securing the property, detaining
Plaintiffs, contacting the police and requesting that a criminal
charges be filed against Plaintiff, Jean L. Celestin.”
Compl. ¶ 107.)

(Am.

In Count IX, Plaintiffs allege Solvay is liable

for the negligent acts of its employees on a theory of
respondeat superior.

(Am. Compl. ¶ 112.)

Again, it is unclear from the complaint whether Plaintiffs
are asserting these claims pursuant to § 1983.

However,

Plaintiffs do not allege these Defendants are state actors.
Bailey v. Harleysville Nat'l Bank & Trust, 188 F. App’x 66, 68
(3d Cir. July 18, 2006) (“[I]n the absence of a conspiracy with
the police to violate constitutional rights, a business’s
summons of a police officer to deal with a possible disturbance,
does not make it a state actor.”).

Accordingly, to the extent a

§ 1983 claim is asserted in Counts VIII and IX those claims will

34

be dismissed. 3

The Court now turns to whether Plaintiff Celestin

has stated a claim in Counts VIII and IX against Defendants
Marschlowitz, Cundy, Auletto and Jones under New Jersey law.
Celestin argues that the Defendants had a duty to secure
their property from entry by unauthorized parties. (Opp. Br. at
12 [Doc. No. 47].)

Whether or not Defendants had such a duty

turns on foreseeability.

“Negligence is tested by whether the

reasonably prudent person at the time and place should recognize
and foresee an unreasonable risk or likelihood of harm or danger
to others.

If the reasonably prudent person would foresee

danger resulting from another's voluntary, criminal acts, the
fact that another’s actions are beyond defendant's control does
not preclude liability.”

Trentacost v. Brussel, 82 N.J. 214,

222, 412 A.2d 436, 440 (1980) (internal citations and quotations
omitted).
The case Foreign Auto Preparation Serv. Inc. v. Vicon
Const. Co., 193 N.J. Super. 420, 423, 474 A.2d 1088, 1090 (App.
Div. 1984) concerned vandals who hotwired a bulldozer and
damaged adjacent property.

The superior court found that

because the harm was not foreseeable the plaintiff failed to
state a negligence claim.

The appellate division reversed,

3

To the extent Counts VIII and IX are asserted by the minor
Plaintiffs, these claims have been resolved by way of settlement
agreement.
35

holding that there was enough evidence regarding the
accessibility of the bulldozer and of recent past experiences of
trespassers in its vicinity to state a prima facie negligence
claim.

Id. at 424.

In Ocasio v. Amtrak, 299 N.J. Super. 139, 150, 690 A.2d
682, 687 (App. Div. 1997), the appellate division found that a
railroad owed a duty of reasonable care to block access to an
abandoned train station where a trespasser was injured.

The

court found that a trier of fact could find that the railroad
should have foreseen trespassers were using the abandoned
station as a shortcut given that it had 24 incident reports in
two years that train operators had to make emergency stops on
the tracks due to trespassers.

Id. at 151.

The Court found

that the recognition of a duty of reasonable care was
appropriate under all the surrounding circumstances.

Id.

Celestin’s theory appears to be that Defendants were
negligent because in opening the main gate for a contractor,
Plaintiff was able to enter the premises without authorization,
which led to him being charged with trespassing.

Plaintiff has

pled no facts showing this chain of events was foreseeable, and
that a duty should be imposed on Defendants.

Unlike Foreign

Auto, Celestin pleads no facts regarding recent trespassers in
the vicinity.

And unlike Ocasio, there are no facts

36

demonstrating that the risk to him should or could have been
anticipated.
Additionally, the amended complaint does not plausibly
plead that Defendants’ alleged negligence in leaving the gate
open proximately caused Celestin’s arrest.

“Proximate cause

consists of any cause which in the natural and continuous
sequence, unbroken by an efficient intervening cause, produces
the result complained of and without which the result would not
have occurred.” Townsend v. Pierre, 221 N.J. 36, 51
(2015)(internal citations and quotations omitted).

Stated

another way, when a defendant’s alleged negligence was not “a
cause of the accident, but simply presents the condition under
which the injury was received,” there is no proximate causation.
Fleuhr v. City of Cape May, 159 N.J. 532, 544 (1999).
Fleuhr is instructive.

In that case, a surfer sued a

municipality for the alleged negligent supervision of its
lifeguards after the surfer was injured in rough surf resulting
from an off-shore hurricane. 159 N.J. at 535.

While the surfer

asserted that the lifeguards were negligent in failing to warn
swimmers of the rough conditions, or failing to evacuate the
water, id. at 536, the New Jersey Supreme Court held that the
asserted negligence was not the proximate cause of the surfer’s
injuries, rather “the surfer’s conduct and the natural
conditions of the ocean were the legal causes of the accident.”
37

Id. at 534.

The Court reasoned that the lifeguards’ alleged

negligence was “too remotely or insignificantly related to
plaintiff’s accident.” Id. at 544.
Similarly in this case, it appears that Celestin alleges
that by leaving the gate open, Defendants Marschlowitz, Cundy,
Auletto, and Jones merely presented the condition under which
his injury was received.

Based on the current allegations, the

only plausible conclusion to be drawn is that Celestin’s own
actions were the legal cause of his arrest.
Thus, the Court finds that Celestin fails to state a claim
for negligence.

In light of our decision to allow Plaintiff

leave to re-plead certain other claims he will be given the
opportunity to amend his negligence claim as well in the
unlikely event 4 he can cure the deficiencies noted above.
Additionally, Celestin’s claim against Solvay under a theory of
respondeat superior in Count IX is derivative of the alleged

4

We note that our rulings on certain defendants’ summary
judgments motions and findings of immunity may have significant,
if not preclusive, effect on other claims we have granted leave
to re-plead. Rather than to parse out ourselves each of
Plaintiff’s claims to determine those for which re-pleading
would be futile, we leave it to Plaintiff, if he chooses to file
a new complaint, to file only those claims that remain viable
taking into consideration the totality of this Opinion and the
law of the case. Similarly and conversely, we leave it to the
relevant defendant to move to dismiss or if appropriate for
summary judgment on any re-plead claims barred as a consequence
of this Opinion.
38

negligence against its employees and thus Count IX also fails to
state a claim.
Count X and XI: Intentional Infliction of Emotional
Distress and Negligent Infliction of
Emotional Distress Against All Defendants
Plaintiffs make the following allegations in their amended
complaint regarding emotional distress:
•

Defendant Marschlowitz was “overly aggressive and harsh in
communicating with the Plaintiffs, in detaining the
Plaintiffs and refusing to permit them to leave the
premises and in requested that a criminal charged be filed
against the Plaintiff, Jean L. Celestin, in the absence of
probable cause” (Am. Compl. ¶ 115.)

•

Defendants Cundy and Auletto “detained and/or imprisoned
Plaintiffs and refused to permit them to leave the
premises” (Am. Compl. ¶ 116.)

•

The minor Plaintiffs were “caused to witness the detention
and arrest of their father [and] were caused to experience
shock, fear and severe emotional distress as a result of
seeing their father confronted by police and arrested” (Am.
Compl. ¶ 117.)

•

The conduct of each of the Defendants was “outrageous and
extreme and it was foreseeable that emotional distress
would result therefrom” (Am. Compl. ¶ 119.)

39

•

Defendants’ conduct was committed “recklessly in deliberate
disregard of a high degree of probability that emotional
distress to the Plaintiffs would follow” (Am. Compl. ¶
120.)

•

“[N]o reasonable person could be expected to endure it,
[and Plaintiffs] have been prevented from attending to
their usual and ordinary activities, have sustained damages
of both an economic and non-economic nature, were
humiliated and embarrassed, and were caused to suffer
injury to their reputation” (Am. Compl. ¶ 123.)
From the face of the amended complaint, and for the reasons

set forth supra, Celestin does not plead facts which show
compliance with the notice requirements of the NJTCA and for
this reason, Counts X and XI will be dismissed as to Plaintiff
Celestin to the extent they are asserted against the public
entities and employees.

The claims asserted by the minor

Plaintiffs against Solvay have been resolved by way of
settlement agreement.

The following analysis thus pertains to

the remaining claims against the Defendants as asserted by
Celestin.
To state a claim for intentional infliction of emotional
distress:
[T]he plaintiff must establish intentional and
outrageous conduct by the defendant, proximate cause,
and distress that is severe. Initially, the plaintiff
40

must prove that the defendant acted intentionally or
recklessly. For an intentional act to result in
liability, the defendant must intend both to do the
act and to produce emotional distress. Liability will
also attach when the defendant acts recklessly in
deliberate disregard of a high degree of probability
that emotional distress will follow.
Second, the defendant's conduct must be extreme and
outrageous. The conduct must be “so outrageous in
character, and so extreme in degree, as to go beyond
all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized
community.” Third, the defendant's actions must have
been the proximate cause of the plaintiff's emotional
distress. Fourth, the emotional distress suffered by
the plaintiff must be “so severe that no reasonable
[person] could be expected to endure it.”

Segal v. Lynch, 413 N.J. Super. 171, 186–87, 993 A.2d 1229, 1239
(App. Div. 2010) (citing Buckley v. Trenton Saving Fund Soc.,
111 N.J. 355, 366, 544 A.2d 857 (1988)).

New Jersey courts find

this “elevated threshold” to be satisfied “only in extreme
cases.”

Griffin v. Tops Appliance City, Inc., 337 N.J. Super.

15, 23, 766 A.2d 292, 296–97 (App. Div. 2001).

Conduct has been

found sufficiently outrageous to support a claim for intentional
infliction of emotional distress when a landlord failed to
provide central heating, running water and reasonable security
in a rent controlled building in an effort to induce the tenants
to vacate, 49 Prospect St. Tenants Ass'n v. Sheva Gardens, Inc.,
227 N.J. Super. 449, 455-57, 466, 471-75, 547 A.2d 1134 (App.
Div. 1988); when a doctor allegedly told a child's parents that
he was “suffering from a rare disease which may be cancerous
41

knowing that the child has nothing more than a mildly infected
appendix,” Hume v. Bayer, 178 N.J. Super. 310, 319, 428 A.2d 966
(Law Div. 1981); and when an employer referred to an African
American employee as a “jungle bunny,” Taylor v. Metzger, 152
N.J. 490, 508-21, 706 A.2d 685 (1998)); see also, Williams v.
City of Millville, No. 12-7540, 2013 WL 6175538, at *5 (D.N.J.
Nov. 22, 2013) (embarrassment in front of one's children is
insufficient to be so severe that no reasonable person could be
expected to endure it).

The facts as stated in the amended

complaint do not state a prima facie case of intentional
infliction of emotional distress because Plaintiffs allege no
conduct which is extreme or outrageous.
The Court comes to the same conclusion regarding
Plaintiffs’ claims for negligent infliction of emotional
distress.

“This tort is intended to compensate those who

witness ‘shocking events that do not occur in the daily lives of
most people.’”

Soliman v. Kushner Companies, Inc., 433 N.J.

Super. 153, 177, 77 A.3d 1214, 1229 (App. Div. 2013) (citing
Frame v. Kothari, 115 N.J. 638, 644, 560 A.2d 675 (1989)).
Events or circumstances that have been found to present
cognizable claims under this tort include a mother who
discovered her eight-year-old son lying crumpled in the street
minutes after he was struck by a bus, Mercado v. Transport of
New Jersey, 176 N.J. Super. 234, 422 A.2d 800 (Law Div.1980).
42

or cases involving loss of a corpse, Muniz v. United Hospitals
Medical Center Presbyterian Hospital, 153 N.J. Super. 79, 379
A.2d 57 (App. Div. 1977).”

Id.

“Negligent infliction of

emotional distress requires proof of the traditional elements of
negligence, and also evidence that it was ‘reasonably
foreseeable that the tortious conduct [would] cause genuine and
substantial emotional distress or mental harm to average
persons.’”

Smith v. Harrah's Casino Resort of Atl. City, No. A-

0855-12T2, 2013 WL 6508406, at *4 (N.J. Super. Ct. App. Div.
Dec. 13, 2013) (quoting Decker v. Princeton Packet, Inc., 116
N.J. 418, 429–30, 561 A.2d 1122 (1989)).

As the Court found

supra, Plaintiff has not sufficiently pled a claim of
negligence, and for this reason, Plaintiff’s negligent
infliction of emotional distress claim fails.
Count VII: Civil Conspiracy Against All Defendants 5
“To make out a § 1983 conspiracy claim, the plaintiff must
make specific factual allegations of a combination, agreement,
or understanding among all or between any of the defendants to
plot, plan, or conspire to carry out the alleged chain of events
in order to deprive plaintiff of a federally protected right.”
Fioriglio v. City of Atl. City, 996 F. Supp. 379, 385 (D.N.J.
1998), aff'd, 185 F.3d 861 (3d Cir. 1999) (citing Darr v. Wolfe,

5

The Court assumes this claim is brought pursuant to § 1983.
43

767 F.2d 79, 80 (3d Cir. 1985)); Ammlung v. City of Chester, 494
F.2d 811, 814 (3d Cir. 1974)).

Having concluded that

Plaintiffs’ constitutional claims fail, Plaintiffs’ conspiracy
claim under § 1983 fails because of the absence of an underlying
constitutional violation.

Green v. City of Paterson, 971 F.

Supp. 891, 909 (D.N.J. 1997) (“Without a constitutional
violation, a conspiracy to violate a constitutional right cannot
stand.”); PBA Local No. 38 v. Woodbridge Police Dep't, 832 F.
Supp. 808, 832 n.23 (D.N.J. 1993) (“a § 1983 conspiracy claim is
not actionable without an actual violation of § 1983”).

This

claim will be dismissed without prejudice.
Count XIV: Malicious Prosecution Against Shirey,
Jones and Malfitano
Celestin alleges that Defendant Jones requested that
Defendant Shirey charge Celestin with trespassing.
¶¶ 144, 145.)

(Am. Compl.

Plaintiff further alleges Defendant Malfitano

authorized the request.

(Am. Compl. ¶ 145.)

Plaintiff alleges

there was no probable cause for his charge and that the charge
was dismissed in his favor.

(Am. Compl. ¶¶ 148, 149.)

“Malicious prosecution requires the plaintiff to prove four
elements: (1) a criminal action was instituted by this defendant
against this plaintiff; (2) the action was motivated by malice;
(3) there was an absence of probable cause to prosecute; and (4)
the action was terminated favorably to the plaintiff.”

44

LoBiondo

v. Schwartz, 199 N.J. 62, 90, 970 A.2d 1007, 1022 (2009)
(further citation omitted).

The absence of any of these

elements if fatal to the successful prosecution of the claim.
Id.

“The essence of the cause of action is lack of probable

cause, and the burden of proof rests on the plaintiff.”

Lind v.

Schmid, 67 N.J. 255, 262, 337 A.2d 365 (1975).
On the face of the amended complaint, Celestin has not
sufficiently pled facts plausibly showing that Defendants lacked
probable cause to charge him with trespassing.

Plaintiff

alleges he accidently entered Solvay’s restricted property which
“contained hazardous chemicals.”

(Am. Compl. ¶¶ 102-103.)

While it may be the case that Celestin did not have the
“knowingly” requirement to be convicted, on the face of the
complaint, Plaintiff does not plead facts which show a
reasonable officer would not have reasonably believed a crime of
trespass was committed.

Accordingly, Celestin’s malicious

prosecution claim fails and will be dismissed.

Land v. Helmer,

843 F. Supp. 2d 547, 550 (D.N.J. 2012) (dismissing malicious
prosecution claim where plaintiff did not sufficiently allege an
absence of probable cause because a reasonably prudent person
could suspect the plaintiff was criminally liable).
Count XV: False Imprisonment Against Cundy and Auletto
Plaintiffs allege that Defendants Cundy and Auletto falsely
imprisoned and detained Plaintiffs without legal process and
45

without probable cause or reasonable suspicion for the
detention.

(Am. Compl. ¶¶ 152-154.)

“False imprisonment is the constraint of the person without
legal justification.”

Leang v. Jersey City Bd. of Educ., 198

N.J. 557, 591, 969 A.2d 1097, 1117 (2009) (quoting Mesgleski v.
Oraboni, 330 N.J. Super. 10, 24, 748 A.2d 1130 (App. Div.
2000)).

The tort of false imprisonment has two elements: (1)

“an arrest or detention of the person against his or her will”
and (2) “lack of proper legal authority or legal justification.”
Id.

“A plaintiff need not prove the lack of probable cause, but

the existence of probable cause will nevertheless defeat the
action.”

Mesgleski v. Oraboni, 330 N.J. Super. 10, 24–25, 748

A.2d 1130, 1139 (App. Div. 2000).

Here, the Court has

determined that Plaintiff Celestin has not sufficiently alleged
he was arrested without probable cause.

Accordingly, Count XV

will be dismissed without prejudice.
XI.

CONCLUSION

Defendants’ motions to dismiss will be granted.

The West

Deptford Defendants’ motion for summary judgment also will be
granted.

An appropriate Order follows.

__s/ Noel L. Hillman_____
NOEL L. HILLMAN, U.S.D.J.
Dated: September 29, 2016
At Camden, New Jersey
46