TORRES v. BOROUGH OF BARRINGTON et al
OPINION FILED. Signed by Judge Noel L. Hillman on 7/27/17. (js)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
BOROUGH OF BARRINGTON, et
RANDY P. CATALANO
401 KINGS HIGHWAY SOUTH
CHERRY HILL, NJ 08034
On behalf of Plaintiff
TIMOTHY R. BIEG
MADDEN & MADDEN
108 KINGS HIGHWAY EAST, SUITE 200
P.O. BOX 210
HADDONFIELD, NJ 08033-0389
On behalf of Defendants Borough of Barrington and Chief
LINDA A. GALELLA
PARKER MCCAY P.A.
9000 MIDLANTIC DRIVE
MOUNT LAUREL, NJ 08054
On behalf of Defendants Sergeant Michael Minardi and
Patrolman Patrick D'Ascenzo
HILLMAN, District Judge
This case involves claims of Fourth Amendment violations by
two Borough of Barrington police officers, and claims of
municipal liability against Barrington and its police chief for
having a policy and custom of condoning such violations,
particularly where the individual is of Hispanic descent.
Presently before the Court are the motions of all the Defendants
for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c)
for Plaintiff’s claims of false arrest, false imprisonment,
malicious prosecution, and conspiracy. 1
For the reasons
expressed below, Defendants’ motions will be granted in part and
denied in part.
According to his complaint, on October 1, 2014, Plaintiff,
Arsenio Torres, who is of Hispanic descent, was sitting in a car
with his girlfriend, Tiffany Vitale, in the parking lot of his
apartment complex in Barrington, New Jersey.
Barrington police sergeant Michael Minardi and patrolman Patrick
D’Ascenzo, approached Plaintiff’s car.
Plaintiff claims that
even though they had no reason to suspect him of engaging in any
illegal activity, the officers ordered him out of the car.
Plaintiff claims that the officers used excessive force to seize
him and lacked probable cause to arrest him for aggravated
assault, resisting arrest, obstruction of law, violent behavior,
and offensive language.
Plaintiff claims that he was
transported to the hospital for treatment of his injuries prior
Defendants have not moved to dismiss Plaintiff’s claims
relating to his allegations of excessive force.
to being remanded to the Camden County Correctional Facility.
Plaintiff claims that all the criminal charges against him were
ultimately dismissed except for one of the charges. 2
Based on those events, Plaintiff claims that Minardi and
D’Ascenzo violated his Fourth Amendment rights and his rights
under the New Jersey Civil Rights Act (“NJCRA”) by stopping and
arresting him without probable cause, by using excessive force
to effect his arrest, and for malicious prosecution.
claims that the two officers were negligence, committed assault
and battery, and conspired in violation of New Jersey state law.
Plaintiff further claims that the Borough of Barrington, and the
Chief of Police, David Roberts, are liable for constitutional
and NJCRA violations because they had a policy and custom of
failing to investigate police misconduct and failed to train its
officers on the proper use of force and the concept of probable
cause, particularly with regard to minorities.
All the defendants filed answers to Plaintiff’s complaint,
and they now move for judgment in their favor, pursuant to Fed.
R. Civ. P. 12(c), on all of his claims except those relating to
As discussed below, the complaint does not contain any detail
as to what type of force was allegedly used on Plaintiff, what
his injuries were, which criminal charge was not dismissed, or
what the disposition was of that remaining charge. The
Complaint is similarly lacking in any factual allegations that
would make plausible a claim that Plaintiff was mistreated
because of his ethnicity.
his claims of excessive force.
Plaintiff has opposed
Subject matter jurisdiction
Plaintiff has brought his claims pursuant to 42 U.S.C. §
1983 and New Jersey state law.
This Court has jurisdiction over
Plaintiff’s federal claims under 28 U.S.C. § 1331, and
supplemental jurisdiction of Plaintiff’s state law claims under
28 U.S.C. § 1367.
Standard for Judgment on the Pleadings
A Rule 12(c) motion for judgment on the pleadings may be
filed after the pleadings are closed.
Fed. R. Civ. P. 12(c);
Turbe v. Gov't of V.I., 938 F.2d 427, 428 (3d Cir. 1991).
analyzing a Rule 12(c) motion, a court applies the same legal
standards as applicable to a motion filed pursuant to Rule
Turbe, 938 F.2d at 428.
Thus, a court must accept
all well-pleaded allegations in the complaint as true and view
them in the light most favorable to the plaintiff.
Fisher, 423 F.3d 347, 351 (3d Cir. 2005).
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
Bell Atlantic v. Twombly, 127 S. Ct. 1955, 1969 n.8
(2007) (quoting Scheuer v. Rhoades, 416 U.S. 232, 236 (1974));
see also Phillips v. County 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
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, 1429-30 (3d Cir. 1997).
The defendant bears the
burden of showing that no claim has been presented.
U.S., 404 F.3d 744, 750 (3d Cir. 2005) (citing Kehr Packages,
Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991)).
All the defendants have moved for judgment in their favor
on Plaintiff’s claims arising out of his allegation that he was
detained and arrested without probable cause and faced malicious
prosecution, arguing that those claims are barred by Heck v.
Humphrey, 512 U.S. 477 (1994).
In Heck v. Humphrey, the Supreme
Court held that a § 1983 claim for damages premised on a civil
rights violation is barred if the suit is inconsistent with or
would undermine the lawfulness of a state conviction or
The Supreme Court explained:
[I]n order to recover damages for allegedly
unconstitutional conviction or imprisonment, or for other
harm caused by actions whose unlawfulness would render a
conviction or sentence invalid, a § 1983 plaintiff must
prove that the conviction or sentence has been reversed on
direct appeal, expunged by executive order, declared
invalid by a state tribunal authorized to make such
determination, or called into question by a federal court's
issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A
claim for damages bearing that relationship to a conviction
or sentence that has not been so invalidated is not
cognizable under § 1983. Thus, when a state prisoner seeks
damages in a § 1983 suit, the district court must consider
whether a judgment in favor of the plaintiff would
necessarily imply the invalidity of his conviction or
sentence; if it would, the complaint must be dismissed
unless the plaintiff can demonstrate that the conviction or
sentence has already been invalidated. But if the district
court determines that the plaintiff's action, even if
successful, will not demonstrate the invalidity of any
outstanding criminal judgment against the plaintiff, the
action should be allowed to proceed, in the absence of some
other bar to the suit.
Heck, 512 U.S. at 486 (footnotes omitted).
Defendants relate in their briefs that Plaintiff pleaded
guilty to N.J.S.A. 2C:33-2(b), which provides:
“Offensive language. A person is guilty of a petty
disorderly persons offense if, in a public place,
and with purpose to offend the sensibilities of a hearer
or in reckless disregard of the probability of so doing,
he addresses unreasonably loud and offensively coarse or
abusive language, given the circumstances of the person
present and the setting of the utterance, to any person
In order to maintain his false imprisonment, false arrest,
and malicious prosecution claims, Plaintiff must show that he
was seized, arrested, and prosecuted without probable cause.
See James v. City of Wilkes-Barre, 700 F.3d 675, 680 (3d Cir.
2012) (citations omitted) (“To state a claim for false arrest
under the Fourth Amendment, a plaintiff must establish: (1) that
there was an arrest; and (2) that the arrest was made without
probable cause.”); Wright v. City of Philadelphia, 409 F.3d 595,
602 (3d Cir. 2005) (quoting Beck v. Ohio, 379 U.S. 89, 91 (1964)
(citations omitted)) (just like with a false arrest claim, a
claim for false imprisonment is that a seizure is made without
probable cause); Johnson v. Bingnear, 441 F. App'x 848, 851 (3d
Cir. 2011) (quoting McKenna v. City of Philadelphia, 582 F.3d
447, 461 (3d Cir. 2009)) (“In order to prevail on a
Constitutional claim of malicious prosecution, a plaintiff must
demonstrate that: (1) the defendants initiated a criminal
proceeding; (2) the criminal proceeding ended in the plaintiff's
favor; (3) the proceeding was initiated without probable cause;
(4) the defendants 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.”).
An officer has probable cause to arrest 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.”
Wilson v. Russo, 212 F.3d 781, 789 (3d
Defendants argue that because Plaintiff was arrested for
using offensive language and he pleaded guilty to using
offensive language, he cannot demonstrate that Defendants lacked
probable cause to seize, arrest, and prosecute him for violating
the New Jersey law prohibiting the use of offensive language.
Defendants argue that a finding in Plaintiff’s favor on his
false imprisonment, false arrest, and malicious prosecution
claims would impermissibly imply the invalidity of his
conviction, and those claims are therefore barred.
In opposition to Defendants’ motions, Plaintiff argues that
his claims arising from his allegations of excessive force are
not barred by Heck.
He also argues that Defendants did not have
probable cause to make the initial stop, and his guilty plea to
the “offensive language” offense does not bar any claims based
on that unlawful seizure.
As Defendants point out in their reply briefs, they have
not moved for judgment on Plaintiff’s excessive force claims. 3
Although the issue is not before the Court, Heck does not
usually bar excessive force claims. See, e.g., Garrison v.
Porch, 376 F. App'x 274, 278 (3d Cir. 2010) (finding that Heck
did not bar Plaintiff’s excessive force claim even though he
pleaded guilty to simple assault on a police officer, explaining
that even though “the fact that Garrison was acting in an unruly
and threatening manner certainly factors into the totality of
the circumstances and may have justified a greater use of force
Defendants also point out that Plaintiff provides no argument to
refute that his conviction for one of the offenses he was
arrested for demonstrates that the officers had probable cause
for his arrest, which defeats his false imprisonment, false
arrest, and malicious prosecution claims.
argue that they are entitled to judgment on all of Plaintiff’s
claims except those that concern the officers’ use of force.
The Court agrees that Plaintiff’s false arrest 4 and
malicious prosecution claims are barred by Heck because
Plaintiff’s conviction for N.J.S.A. 2C:33-2(b) shows that
Defendants had probable cause to arrest and charge Plaintiff for
using offensive language in a manner prohibited by the statute. 5
than would have been reasonable had Garrison been peaceful and
cooperative, it certainly did not dispense with the
reasonableness requirement altogether”).
The constitutional tort of false imprisonment overlaps with
false arrest. See Wallace v. Kato, 549 U.S. 384, 388 (2007).
When a person is arrested without probable cause, the
constitutional tort of “false imprisonment ends once the victim
becomes held pursuant to [legal] process – when, for example, he
is bound over by a magistrate or arraigned on charges. . . . If
there is a false arrest claim damages for that claim covers the
time of detention up until issuance of process or arraignment,
but not more. From that point on, any damages recoverable must
be based on a malicious prosecution claim and on the wrongful
use of judicial process rather than detention itself.” Id. at
389-90 (citations and internal quotation marks omitted).
As noted above, Plaintiff’s complaint does not indicate which
charge was not dismissed, but he admits in his opposition brief
that he pleaded guilty to N.J.S.A. 2C:33-2(b) for “offensive
A finding in favor of Plaintiff on his false arrest and
malicious prosecution claims would impermissibly undermine his
guilty plea to the offensive language charge.
Marable v. West Pottsgrove Tp., 176 F. App'x 275, 279, 281 (3d
Cir. 2006) (affirming the dismissal of the plaintiff's false
arrest claims under Heck where the plaintiff was arrested for
aggravated assault on a police officer and pleaded guilty to a
disorderly persons offense, finding that an award of damages
pursuant to the false arrest claim would require a finding that
the plaintiff had been unlawfully detained, and such a finding
would be sharply at odds with the fact of the plaintiff's
conviction of the disorderly persons offense); Menke v. Baker,
2012 WL 2339825, at *8 (D.N.J. 2012) (citing Atwater v. City of
Lago Vista, 532 U.S. 318, 354 (2001)) (where a plaintiff was
arrested for disorderly conduct and possession of a controlled
dangerous substance and pleaded guilty only to a violation of a
municipal ordinance, because an officer may make an arrest where
he has probable cause to believe an individual has committed
even a very minor offense in his presence, and because the
plaintiff admitted to misconduct in violation of the ordinance,
a finding that there was no probable cause would imply the
invalidity of the plaintiff's admission of guilt and his
conviction, and the plaintiff's unlawful arrest claim must
therefore be dismissed in accordance with Heck); Johnson v. De
Prospo, 2010 WL 5466255, at *2 (D.N.J. 2010) (where the
plaintiff was arrested and indicted for 17 counts and he pleaded
guilty to only one of those counts, holding that the plaintiff's
false arrest claim was barred by Heck because a finding that he
was arrested without probable cause would necessarily suggest
the invalidity of plaintiff's plea and sentence).
Defendants are entitled to judgment in their favor on those
claims, including Plaintiff’s conspiracy claim arising from his
false arrest and malicious prosecution claims.
However, we do not construe Defendants’ motion to assert
that Heck alone bars any claim based on the invalidity of the
initial stop and its scope.
Plaintiff’s complaint, which is
rather bare-bones and inartfully pled, 6 does not relate whether
The Court queries whether Plaintiff’s complaint would have
survived a motion to dismiss pursuant to Rule 12(b)(6), or a
Rule 12(c) motion on all of Plaintiff’s claims, due to its
dearth of facts, but because Defendants filed an answer to
Plaintiff’s complaint and have only moved for judgment on some
of Plaintiff’s claims, the Court need not resolve that question.
We do note that the analysis of Defendants’ motions is
complicated by the lack of clarity and organization in
Plaintiff’s complaint. For example, Counts One through Three
are not Counts at all in the sense they do not assert legal
claims but allege jurisdiction, venue, parties and overall
facts. The substantive claims begin with Count Four and extend
through Count 10 but often conflate legal theories. For
example, Court Four lumps together numerous Fourth Amendment
theories including the distinct theories of false arrest and
excessive force. While this does not technically violate Fed.
R. Civ. P. 8, it renders a Rule 12 analysis of such claims more
difficult. For present purposes, it should be clear to the
parties that the Court’s dismissal of Plaintiff’s false
arrest/false imprisonment and malicious prosecution claims, as
the officers informed Plaintiff of the reason they “confronted”
him and “ordered him out of the vehicle.”
(Compl. ¶ 16.)
Plaintiff’s brief in opposition to Defendants’ motions contains
more detail about the encounter than his complaint, including
the time of the incident (9:30 a.m.), that he was sprayed with
mace repeatedly even after he was secured in the police vehicle,
the specific five offenses for which he was charged, and the
fact that he pleaded guilty to N.J.S.A. 2C:33-2(b).
28 at 4-6.)
Plaintiff’s brief also states that he was forcibly
removed from his parked vehicle because he refused to present
identification when requested.
(Id. at 4.)
Under the Fourth Amendment, the nature of an investigatory
stop is different from an arrest.
See Black v. Montgomery
County, 835 F.3d 358, 364 (3d Cir. 2016) (explaining that the
Supreme Court in Terry v. Ohio, 392 U.S. 1, 19 n.16, forged a
general definition of the meaning of seizure: “when [an]
officer, by means of physical force or show of authority, has in
some way restrained the liberty of a citizen,” and that “while
an officer merely asking a citizen questions may not be a
seizure, circumstances indicating a seizure might include the
threatening presence of several officers, the display of a
well as any conspiracy claim based on those legal theories,
applies to any and all of Counts Four through Ten which could be
fairly read to assert such claims.
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”)
(citing Brendlin v. California, 551 U.S. 249, 255 (2007) (“The
law is settled that in Fourth Amendment terms a traffic stop
entails a seizure of the driver even though the purpose of the
stop is limited and the resulting detention quite brief.”);
United States v. Mendenhall, 446 U.S. 544, 554 (1980) (holding
that no seizure occurred when agents approached a person to ask
questions in a public place, and the agents identified
themselves but did not display weapons, did not place demands
upon the person, and were not wearing uniforms)) (other
citations omitted); United States v. Rosales, --- F. App’x ---,
2017 WL 1400460, at *2 (3d Cir. April 19, 2017) (citing Illinois
v. Wardlow, 528 U.S. 119, 123 (2000) (citing Terry, 392 U.S. at
30)) (internal quotations omitted) (“Where  authorities
conduct a brief investigatory stop without a warrant, the
seizure is permissible under the Fourth Amendment if the
officers acted with reasonable, articulable suspicion that
criminal activity is afoot.
Reasonable suspicion is a less
demanding standard than probable cause, but requires at least a
minimal level of objective justification; the officer must be
able to articulate more than an inchoate and unparticularized
suspicion or hunch of criminal activity.”).
Additionally, an officer’s “subjective reason for making
the arrest need not be the criminal offense as to which the
known facts provide probable cause,” because “the fact that the
officer does not have the state of mind which is hypothecated by
the reasons which provide the legal justification for the
officer's action does not invalidate the action taken as long as
the circumstances, viewed objectively, justify that action.”
Devenpeck v. Alford, 543 U.S. 146, 152–53 (2004) (citations
Here, it is implied in Plaintiff’s complaint, and stated in
Plaintiff’s opposition brief, that his “offensive language” did
not occur until he was “made angry by the confrontation and
violation of his civil rights.”
(Id. at 8.)
But it is not
clear whether Plaintiff’s initial stop constitutes a Fourth
Amendment seizure, and it is not clear whether the basis for
that stop or seizure was related to Plaintiff’s use of offensive
language, for which he was arrested and convicted.
As the Third Circuit has instructed, not all constitutional
claims arising from an arrest and prosecution are subject to the
Heck bar, and a determination as to whether Heck applies to a
Fourth Amendment claim requires a case-by-case fact-based
Flood v. Schaefer, 240 F. App’x 474, 476 (3d Cir.
2007) (citing Gibson v. Superintendent, 411 F.3d 427, 447–49 (3d
Thus, because the circumstances of Plaintiff’s
initial encounter with Defendants cannot be determined on the
pleadings alone, the Court cannot determine at this time whether
Heck bars Plaintiff’s Fourth Amendment violation claim arising
from the initial encounter.
Because it is clear from the pleadings that Plaintiff’s
claims arising from his arrest and prosecution would imply the
invalidity of his guilty plea to N.J.S.A. 2C:33-2(b), Defendants
are entitled to judgment on all of Plaintiff’s claims, including
his conspiracy claims, that pertain to his arrest and
The remainder of Plaintiff’s claims against
Defendants arising from his initial encounter with the defendant
officers, as well as his claims relating to the defendant
officers’ alleged use of excessive force, may proceed.
An appropriate Order will be entered.
July 27, 2017
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
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