GEISSLER v. CITY OF ATLANTIC CITY et al
Filing
33
OPINION. Signed by Chief Judge Jerome B. Simandle on 3/28/2017. (tf,)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
LISA GEISSLER,
Plaintiff,
v.
HONORABLE JEROME B. SIMANDLE
CITY OF ATLANTIC CITY, ATLANTIC
CITY POLICE DEPARTMENT,
ATLANTIC CITY POLICE OFFICER
DARRELL CATANIO, MARINA
DISTRICT FINANCE COMPANY, LLC
d/b/a BORGATA HOTEL CASINO &
SPA
Civil No. 16-792 (JBS/AMD)
OPINION
Defendants.
APPEARANCES:
Jon R. Skolnick, Esq.
Jenntyng Chern, Esq.
LAW OFFICES OF JON RORY SKOLNICK
100 Morris Avenue, Suite 101
Springfield, NJ 07081
Attorneys for Plaintiff
Tracy L. Riley, Esq.
LAW OFFICES OF RILEY & RILEY
The Washington House
100 High Street, Suite 302
Mount Holly, NJ 08060
Attorney for Defendants City of Atlantic City, Atlantic
City Police Department, and Atlantic City Police Officer
Darrell Catanio
SIMANDLE, Chief Judge:
I.
INTRODUCTION
Plaintiff Lisa Geissler alleges in this action that while
she was a registered guest of the Borgata Hotel and Casino & Spa
in Atlantic City in October of 2014, she was “wrongfully and
falsely” accused by Borgata employees of stealing bottles of
wine and subsequently “wrongfully and falsely arrested and
charged” with defiant trespass by a police officer with the
Atlantic City Police Department (“ACPD”). Plaintiff directs this
suit against Atlantic City Police Officer Darrell Catanio
(“Officer Catanio”) and the Marina District Finance Company, LLC
d/b/a Borgata Hotel Casino and Spa (“Borgata”), and alleges
constitutional violations under 42 U.S.C. § 1983, the New Jersey
State Constitution, and the New Jersey Civil Rights Act, in
addition to several state tort claims.
Presently before the Court are two motions: Plaintiff’s
motion for leave to file an amended complaint, under Federal
Rule of Civil Procedure 15(a)(2), and a cross-motion to dismiss
with prejudice by the City of Atlantic City, the ACPD and
Officer Catanio (collectively, the “City Defendants”), under
Federal Rule of Civil Procedure 12(b)(6). For the reasons set
forth below, the Court will grant Plaintiff’s motion, deny
Defendants’ motion as to Officer Catanio, and grant Plaintiff
ten days to clarify and file the amended complaint in accordance
with the Court’s instructions below, including eliminating the
City of Atlantic City and the Atlantic City Police Department as
defendants.
2
II.
BACKGROUND
A. Procedural Background
The City Defendants previously filed a motion to dismiss in
this case, which the Court granted. Counts One (claims under
§ 1983) and Two (claims under the New Jersey Constitution and
the New Jersey Civil Rights Act) were dismissed as to the
Atlantic City Police Department and the City of Atlantic City.
[Docket Item 20 at 9 and 12.] The Court held that the Atlantic
City Police Department was not a proper defendant and dismissed
all counts against it with prejudice on that basis, and also
ruled that Plaintiff had not sufficiently alleged a custom or
policy of the City of Atlantic City to allow her to sustain
Counts One and Two as to the City. [Id. at 29, 11-12.] Although
Counts One and Two against the City of Atlantic City were
dismissed without prejudice, Plaintiff does not here seek to
revive them. [Docket Item 26.] The Court also dismissed without
prejudice Counts One and Two as to Officer Catanio. [Docket Item
20 at 20.]
The Court also addressed Plaintiff’s state tort claims. The
Court dismissed with prejudice Plaintiff’s state tort claims of
negligence, intentional infliction of emotional distress, and
negligent infliction of emotional distress as untimely. [Docket
Item 20 at 26.] Plaintiff’s state tort claim of malicious
3
prosecution against the City Defendants was dismissed without
prejudice. [Id. at 29.]
Plaintiff avers that she does not seek to revive all of her
claims, nor even all those that were dismissed without prejudice
(namely, Counts One and Two as to the City of Atlantic City and
Officer Catanio and the state tort claim of malicious
prosecution against the same). Rather, Plaintiff seeks only to
revive her dismissed constitutional claims of false imprisonment
and malicious prosecution (namely, Counts One and Two) against
Officer Catanio. [Docket Item 26.] Nonetheless, inexplicably,
Plaintiff’s counsel lists these dismissed and time-barred claims
against the City Defendants in the proposed Amended Complaint,
even while disclaiming the intention to proceed against any City
Defendants other than Officer Catanio. [Docket Item 22-4 at 59.] This Opinion seeks to untangle this example of deficient
practice.
B. Factual Background
The Court recites the allegations as they are laid out in
Plaintiff’s Complaint and Plaintiff’s Proposed First Amended
Complaint (“Amended Complaint”). [Docket Items 22-2 and 22-4.]1
1
The facts alleged are drawn from Plaintiff’s Complaint,
Plaintiff’s Proposed First Amended Complaint, and from
undisputedly authentic documents upon which Plaintiff explicitly
relies in her Complaint. See In re Rockefeller Ctr. Props.,
Inc., Sec. Litig., 184 F.3d 280, 287 (3d Cir. 1999). Because
4
For purposes of this motion, the Court must accept Plaintiff’s
allegations as true.
On October 17, 2014,2 Plaintiff Lisa Geissler was a
registered guest of the Borgata Hotel Casino and Spa. (Am.
Compl. ¶ 9.) That evening, Plaintiff was in the Borgata’s Lounge
when, according to Plaintiff, Borgata employees wrongfully and
falsely accused Plaintiff of stealing bottles of wine and
demanded that she leave the Borgata’s premises. (Id. ¶ 10.)
While forcibly escorting Plaintiff to her room in the
Borgata to gather her belongings, Borgata employees reported to
ACPD that Plaintiff was trespassing on the Borgata’s premises.
(Id. ¶¶ 11-12.) Defendant Officer Catanio of the ACPD responded
to the Borgata employees’ report and proceeded to the Borgata.
(Id. ¶ 13.)
Plaintiff’s Complaint explicitly refers to the summons issued by
Officer Catanio, documents related to that matter submitted by
Defendants are properly considered in connection with the
pending motion to dismiss. Pension Ben. Guar. Corp. v. White
Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993)) (“[A]
court may consider 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.”).
2 According to the Complaint, the incident at issue occurred “on
or about October 17, 2015.” (Prop. First Am. Compl. ¶¶ 9-10.)
However, the Court will consider October 17, 2014 the proper
date of incident, as evidenced by the police report, which was
attached as an exhibit to Defendants’ previous Motion to
Dismiss. [Docket Item 5.] The Court also refers to the fact that
the Complaint states that all charges against Plaintiff were
dismissed on April 7, 2015, a date prior to October 17, 2015.
(Compl. ¶ 23.)
5
Plaintiff alleges in the Amended Complaint that, upon his
arrival, Officer Catanio investigated the alleged theft and
trespass “and was aware that Plaintiff and her friend, Barbara
Sancilardi, were registered guests at the Borgata and had
subsequently paid for the alleged stolen bottles of wine.” (Id.
¶ 14.) Officer Catanio assisted escorting Plaintiff and Ms.
Sancilardi to their room. (Id. ¶ 15.) While he was doing so,
Plaintiff began recording the incident using the videorecorder
function on her cell phone. (Id. ¶ 16.) Plaintiff and Officer
Catanio subsequently argued about Plaintiff recording Officer
Catanio, with Officer Catanio demanding Plaintiff stop
recording, Plaintiff refusing, and Officer Catanio threatening
to arrest her if she did not stop. (Id. ¶ 17-19.)
Borgata told Officer Catanio that Borgata would not be
pressing charges for theft against Plaintiff because Ms.
Sancilardi had already paid for the allegedly stolen bottles of
wine. (Id. ¶ 20.)
Nevertheless, as he was physically escorting Plaintiff to
her hotel room, Officer Catanio arrested and charged Plaintiff
with defiant trespass allegedly without any probable cause, in
retaliation for her refusal to stop recording the incident on
video. (Id. ¶ 21.) Plaintiff was allegedly unlawfully detained
for nearly ten hours before being released, and the criminal
6
complaint against her was dismissed on April 7, 2015 because “it
lacked any legal bases.” (Id. ¶ 22-23.)
C. The Instant Motions
In substance if not in form in the Amended Complaint,
Plaintiff seeks to assert solely against Officer Catanio
constitutional claims under 42 U.S.C. § 1983 (Count One) and the
New Jersey Civil Rights Act (Count Two). (Am. Compl. ¶¶ 24-30.)
The Amended Complaint additionally asserts state law claims
against the Borgata for malicious prosecution (Count Three),
defamation (Count Four), negligence (Count Five), intentional
infliction of emotional distress (Count Six) and negligent
infliction of emotional distress (Count Seven). (Id. ¶¶ 31-46.)3
Plaintiff’s original claims against the City Defendants
were dismissed for various reasons, including (as to Counts One
and Two) failure to state a claim upon which relief can be
granted. [Docket Item 20 at 12-20.] The Court ordered that
Plaintiff was permitted to file within thirty days a motion for
leave to file an Amended Complaint curing the deficiencies noted
3
While the Amended Complaint styles Count Three against “Borgata
and the City Defendants” and Counts Five, Six, and Seven against
“the Defendants,” the Court previously dismissed Counts Five,
Six, and Seven as against the City Defendants as time-barred and
Count Three against the City Defendants for failure to state a
claim. [Docket Item 20 at 26, 29.] Plaintiff does not add
additional facts or allegations to support reviving Count Three
as against the City Defendants and does not claim that she
wishes to do so. [Docket Item 26.]
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in the Court’s Opinion. (Id. at 32.) Plaintiff timely filed the
instant Motion to Amend, arguing that she had cured the
deficiencies the Court noted in the original Complaint. [Docket
Item 22.] Specifically, Plaintiff added factual allegations
that, she alleges, tend to show that Officer Catanio lacked
probable cause to arrest and charge her. [Docket Item 22-5 at
3.]
As their substantive response to Plaintiff’s motion, the
City Defendants filed their Cross Motion to Dismiss with
Prejudice. [Docket Item 23.] They argue, first, that Plaintiff
has not cured the relevant deficiencies, rendering the Amended
Complaint futile; and, second, that the claims against the City
Defendants should be dismissed with prejudice because Plaintiff
should not be given a third bite at the apple. [Docket Item 23-2
at 6-8.]
III. STANDARD OF REVIEW
Under Fed. R. Civ. P. 15(a)(2), a party may amend its
pleading with the court’s leave, and “[t]he court should freely
give leave when justice so requires.” However, a district court
may deny leave to amend when amendment would be futile. Smith v.
Nat’l Collegiate Athletic Ass’n, 139 F.3d 180, 190 (3d Cir.
1998), rev’d on other grounds, 525 U.S. 459 (1999). An amendment
8
is futile if the amended complaint would not survive a motion to
dismiss for failure to state a claim upon which relief could be
granted. Id.; see also Alvin v. Suzuki, 227 F.3d 107, 121 (3d
Cir. 2000). The decision to grant or deny leave to amend is
largely within the discretion of the Court. Smith, 139 F.3d at
190.
In assessing “futility,” the court applies the same
standard of legal sufficiency as applies under Fed. R. Civ. P.
12(b)(6). Shane, 213 F.3d at 115. In other words, the amended
complaint must be dismissed if, accepting all well-pleaded
allegations in the complaint as true and viewing them in the
light most favorable to the plaintiff, a court concludes that
the plaintiff has failed to set forth sufficient facts to state
a claim for relief that is plausible on its face. Bell Atlantic
Corp. v. Twombly, 550 U.S. 544 (2007); Fleisher v. Standard Ins.
Co., 679 F.3d 116, 120 (3d Cir. 2012).
IV.
DISCUSSION
The original complaint in this case claimed that Officer
Catanio falsely imprisoned and maliciously prosecuted Plaintiff
when he arrested and charged her with defiant trespass. [Docket
Item 1 ¶¶ 16-22.] The Court previously dismissed these claims
against Officer Catanio because the Complaint failed to make
9
sufficient allegations that Officer Catanio lacked probable
cause to arrest Plaintiff, which is a necessary element of both
claims. [Docket Item 20 at 12-20.]4 Plaintiff contends that the
Amended Complaint’s additional factual allegations supply
grounds for her claim that Officer Catanio lacked probable cause
to arrest Plaintiff. The Court agrees.
Officer Catanio charged Plaintiff with violating N.J.S.A.
§ 2C:18-3b(1), which states that “[a] person commits a petty
disorderly persons offense if, knowing that he is not licensed
or privileged to do so, he enters or remains in any place as to
which notice against trespass is given by . . . actual
communication to the actor . . . .” The statute also provides:
“It is an affirmative defense to prosecution under this section
that . . . [t]he structure was at the time open to members of
the public and the actor complied with all lawful conditions
imposed on access to or remaining in the structure; or . . .
[t]he actor reasonably believed that the owner of the structure,
or other person empowered to license access thereto, would have
4
Plaintiff’s false imprisonment claim was also dismissed by this
Court because she did not allege that she had been detained or
confined without legal authority. [Docket Item 20 at 13-14.]
However, Plaintiff now alleges that she “was unlawfully detained
for nearly ten (10) hours before being released.” (Am. Compl.
¶ 22.) This allegation is enough to support this element of the
false imprisonment claim.
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licensed him to enter or remain . . . .” N.J.S.A. § 2C:18-3d(2)
to (3).
A. False Imprisonment
The Court previously ruled that Plaintiff’s claim of false
imprisonment did not state a claim for which relief could be
granted because, by her recitation of the facts, Officer Catanio
had probable cause to arrest her. The Court now finds that the
claim for false imprisonment, as amended, may proceed.
As the Court stated previously:
Under federal and New Jersey law, a plaintiff states a
claim for false imprisonment by demonstrating that (1)
she was detained and (2) the detention was unlawful.
Accordingly, “‘where the police lack probable cause to
make an arrest, the arrestee has a claim under § 1983
for false imprisonment based on a detention pursuant
to that arrest.’” . . . Probable cause exists when,
based on the factual circumstances, a prudent person
could believe that a particular suspect has committed
or is committing an offense.
[Docket Item 20 at 13-14] (internal citations omitted).
Plaintiff alleges that Officer Catanio lacked probable
cause to arrest her for defiant trespass because a reasonable
officer in Officer Catanio’s position would not have had a
reasonable belief that Plaintiff was committing the offense of
defiant trespass.
While the first Complaint stated, in effect, that Officer
Catanio arrived at the Borgata, took the Borgata employees’
complaint that Plaintiff was trespassing, and arrested her based
11
on that report, the Amended Complaint presents a different
picture of what information was available to Officer Catanio at
the time he arrested Plaintiff. Specifically, Plaintiff alleges
that Officer Catanio investigated the employees’ complaint and
determined that Plaintiff and her friend were registered guests
and that the allegedly stolen bottles of wine had been paid for.
(Am. Compl. ¶ 14.) Officer Catanio then escorted Plaintiff and
her friend to their room to gather their belongings, presumably
so that Plaintiff and her friend could leave the Borgata as the
Borgata employees were telling them to do. (Am. Compl. ¶ 15.)
Borgata employees also informed Officer Catanio that Plaintiff’s
friend had paid for the wine and that the Borgata would not be
pressing charges for theft. (Am. Compl. ¶ 20.)5
In light of these additional facts, the Court finds
Plaintiff has pled that a reasonable officer in Officer
Catanio’s position would not have had probable cause to arrest
Plaintiff for defiant trespass or another offense and supplied
5
The Amended Complaint also states that Officer Catanio arrested
Plaintiff because she would not stop recording him with her cell
phone, and, in effect, that his arrest for Defiant Trespass was
pretext. (Am. Compl. ¶¶ 16-19, 21.) Because the test for
probable cause is an objective test that looks to what a
reasonable officer in the same position would have been
permitted to do and not what the actual arresting officer’s
subjective motivations were, Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982), the Court cannot consider these allegations when
determining whether Officer Catanio had probable cause to arrest
Plaintiff.
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factual grounds that would make this claim plausible for
purposes of surviving this Rule 12(b)(6) motion.
Defendants adopt the view that the additional factual
allegations in the Amended Complaint do not change the fact that
“Officer Catanio had a reasonable belief that probable cause
existed to arrest Plaintiff for violating 2C:18-3b[,]” because
“‘the Borgata’s employees . . . reported to Atlantic City Police
Department that Plaintiff had committed theft and was
trespassing.’” [Docket Item 23-2 at 6, citing Am. Compl. ¶ 12.]
The Defendants seem to take the view, then, that once probable
cause has been established, there is nothing that can erase it.
This is contrary to common sense as well as precedent. If
an officer learns through investigation or happenstance that the
premises upon which probable cause was based are not, in fact,
true,6 the officer no longer has probable cause. “[I]t is
‘possible that following an arrest based on sufficient probable
cause, circumstances might ensue or facts might become known . .
. which would so undermine the reasonableness of an initial
6
E.g., that what appeared to be crack cocaine in a baggie
wasn’t, see People v. Smith, 734 N.E.2d 1039, 1041 (App. Ct.
Ill. 4th Dist. 2000); that a witness was bribed to implicate the
defendant and has since recanted, see Pitman v. Ottehberg, No.
10-2538, 2015 WL 6445872, at *2, *7 (D.N.J. Oct. 23, 2015); or
that an alleged burglar was actually the legal tenant’s live-in
boyfriend, see People v. Quarles, 410 N.E.2d 497, 498 (Ill. App.
Ct. 3d Dist. 1980).
13
belief in the p[erson]’s guilt’ underpinning probable cause for
arrest as to make continued detention unjustified.” Martinez v.
Cnty. of Burlington, No. L-2890-11, 2014 WL 8580958, at *7 (Sup.
Ct. App. Div. N.J. Apr. 15, 2015) (quoting Carollo v.
Supermarkets General Corp., 597 A.2d 1105, 1108 (Sup. Ct. N.J.
App. Div. 1991)). This is equally true before the arrest is
actually carried out. See Baptiste v. J.C. Penney Co., 147 F.3d
1252 (10th Cir. 1998) (officer lacked probable cause and
qualified immunity after arresting plaintiff for shoplifting
where, despite allegations of store security guards, officer
viewed videotape which supported plaintiff’s denial of
shoplifting); BeVier v. Hucal, 806 F.2d 123, 128 (7th Cir. 1986)
(“A police officer may not close her or his eyes to facts that
would help clarify the circumstances of an arrest”); Romero v.
Fay, 45 F.3d 1472 (10th Cir. 1995) (probable cause standard of
Fourth Amendment does not require investigating defendant’s
alleged alibi witnesses but does require “officers to reasonable
interview witnesses readily available at the scene, investigate
basic evidence, or otherwise inquire if a crime has been
committed at all before invoking the power of warrantless arrest
and detention”).
While Officer Catanio may have had probable cause to arrest
Plaintiff for defiant trespass when he arrived at the Borgata,
14
based on the report of the employees there, Plaintiff now
alleges that he did not do so. Instead, he investigated the
situation, and, importantly, helped escort Plaintiff and her
friend “to their room to gather their belongings” as part of the
eviction for defiant trespass. Reading the Amended Complaint in
the light most favorable to the Plaintiff, the Amended Complaint
alleges that Officer Catanio knew and had reason to know, before
he arrested Plaintiff, that Plaintiff was a registered guest
with a rented room at the Borgata and that Plaintiff was
complying with the Borgata employees’ directive to leave the
hotel (inasmuch as she was going to that room to “gather [her]
belongings”).
Given those allegations, the Court is inclined to find that
Plaintiff has sufficiently alleged a lack of probable cause to
arrest her for defiant trespass. Sustaining the charge of
defiant trespass requires that “notice against trespass” is
given by “[a]ctual communication to the actor[]” who “enters or
remains” in the place where such notice was given. N.J.S.A.
2C:18-3(b)(1). “[U]nder the ‘remains’ portion of the statute, a
person who is privileged or licensed to enter onto property may
be prosecuted for defiant trespass if he refuses to leave after
he is told to do so. There, the duration of the incursion--how
long he ‘remains’ unwelcome on the property--is a factor.” State
15
v. Gibson, 218 N.J. 277, 288 (2014). Here, the available
information alleged by Plaintiff to have been clear to Officer
Catanio (and to any reasonable officer in his position) was that
Plaintiff had been a lawful entrant to and occupant of the
Borgata, because she had a rented room there, to which Officer
Catanio was escorting her. Therefore, it was the “remains”
portion of the statute that was applicable to her situation.
Reading the Amended Complaint in the light most favorable
to Plaintiff, it is plausible that Plaintiff was not refusing to
leave the Borgata, but rather was acquiescing to being escorted
upstairs to gather her belongings and depart. There was not
evidence before Officer Catanio at the time he arrested
Plaintiff, based on the allegations in the Amended Complaint,
that Plaintiff had refused or was refusing to leave.
Accordingly, the Amended Complaint sufficiently alleges that
Officer Catanio lacked probable cause to arrest Plaintiff for
defiant trespass. Unlike the plaintiff in Feldman v. Comm’y
Coll. of Allegheny, 85 F. App’x 821, 826 (3d Cir. 2004), it is
plausible that Plaintiff here did not resemble a “defiant
trespasser who refused to obey repeated requests by the owner’s
agents to leave.” Unlike in the original Complaint, there are
now sufficient facts in the Amended Complaint “concerning
Officer Catanio’s knowledge to infer a basis for Officer Catanio
16
to doubt the hotel employees’ account that she was a trespasser
refusing to leave the hotel upon demand.” [Docket Item 20 at
18.]
The Court also finds that Plaintiff has sufficiently
alleged facts tending to show that Officer Catanio (or a
reasonable officer in his position) lacked probable cause to
arrest her for a theft offense. The existence of probable cause
is not offense-specific; if Officer Catanio had probable cause
to arrest Plaintiff for some offense, even one he did not charge
her with, he cannot be liable for false imprisonment. See
Devenpeck v. Alford, 543 U.S. 146 (2004). Whether probable cause
existed to arrest for some other offense remains to be explored
during discovery.
The Court finds, however, that the Amended Complaint
adequately alleges Officer Catanio’s lack of probable cause to
arrest Plaintiff for theft. While the Borgata’s decision whether
or not to press charges does not have an effect on an officer’s
reason to believe a crime has been committed, a reasonable
officer does not have probable cause to think a theft offense
has been committed where (1) as alleged here, it is undisputed
that the property in question has been paid for to the
satisfaction of the vendor, and (2), reading the Amended
Complaint in the light most favorable to Plaintiff, the
17
allegation of theft was made and then recanted to the arresting
officer before the arrest was made. Cf. Lusby v. T.G.& Y.
Stores, Inc., 749 F.2d 1423 (10th Cir. 1984) (officers lacked
probable cause to arrest shoplifting suspects where, contrary to
store security guard’s allegation, independent investigation-namely, asking cashier--would have shown that suspect paid for
the item), rev’d on other grounds by City of Lawton v. Lusby,
474 U.S. 805 (1985).
Because the Amended Complaint sufficiently alleges that
Officer Catanio lacked probable cause to arrest Plaintiff, the
Court will grant Plaintiff’s request to amend the complaint as
to the claim of false imprisonment against Officer Catanio
because such amendment would not be futile.
B. Malicious Prosecution
Plaintiff has also sufficiently alleged a claim against
Officer Catanio for malicious prosecution in violation of the
Fourth Amendment. To prove a Fourth Amendment malicious
prosecution claim, the plaintiff must show that
(1) the defendant initiated a criminal proceeding; (2)
the criminal proceeding ended in [plaintiff’s] 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.
18
Johnson v. Knorr, 477 F.3d 75, 81-82 (3d Cir. 2007); see also
Jeffreys v. McDonnell, No. 08–4681, 2009 WL 3756681, at *2
(D.N.J. Nov. 6, 2009).
“[I]n an appropriate case, malice may be inferred from a
lack of probable cause.” LoBiondo v. Schwartz, 970 A.2d 1007,
1025 (N.J. 2009).
Here, Plaintiff has cured the defect in the previous
complaint with regard to probable cause, as discussed supra.
Furthermore, the allegations that Officer Catanio became upset
with her for recording him on her cell phone, threatened to
arrest her for that reason, and in fact arrested her for that
reason, also sufficiently allege that Officer Catanio acted
maliciously or for a purpose other than bringing Plaintiff to
justice. Plaintiff has also alleged that her criminal proceeding
ended in her favor by dismissal and that she was deprived of her
liberty for nearly ten hours.
In light of these facts as alleged in the Amended
Complaint, the Court will grant leave to amend the Complaint to
claim malicious prosecution by Officer Catanio, on the grounds
that such an amendment would not be futile.
V.
CONCLUSION
For the foregoing reasons, the Court will grant Plaintiff’s
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Motion to Amend the Complaint and deny Defendants’ Cross Motion
to Dismiss with Prejudice. Because of the lack of clarity in the
Proposed Amended Complaint about the date of the incident and
which claims are currently active and being pursued by
Plaintiff, Plaintiff is directed to prepare and file a Revised
Amended Complaint within ten (10) days of the date of this
Opinion and Order. Such Revised Amended Complaint shall recite
the factual allegations included in the Proposed Amended
Complaint upon which this Opinion was based; it shall be
consistent with the directives of this Opinion and Order; and
Plaintiff is further directed to check that the date of the
incident is correct in the Amended Complaint to be filed and to
include only those claims Plaintiff is currently pursuing and
that have not been dismissed with prejudice previously by this
Court. The Revised Amended Complaint shall not list the Atlantic
City Police Department or the City of Atlantic City as
defendants, as all claims against them were dismissed in the
Opinion and Order of July 28, 2016 [Docket Items 20 and 21] and
the proposed Amended Complaint does not assert new claims
against them. The accompanying Order will be entered.
March 28, 2017
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
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