FAIRVIEW RITZ CORPORATION v. BOROUGH OF FAIRVIEW et al
Filing
130
OPINION. Signed by Judge Jose L. Linares on 11/1/13. (jd, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
FAIRVIEW RITZ CORPORATION cl/b/a
FAIRVIEW FITNESS CENTER/RITZ DAY
SPA,
Civil Action No. 9-875 (JLL)
OPINION
Plaintiff,
V.
BOROUGH OF FAIRVIEW, BOROUGH OF
FAIRVIEW POLICE DEPARTMENT,
ANTHONY ANARI, JR., et al.,
Defendants.
LINARES, District Judge.
This matter comes before the Court by way of Defendan
ts Borough of Fairview (“Borough”),
Borough of Fairview Police Department (“Police Depa
rtment”), and Lieutenant Anthony F.
Anari, Jr.’s (“Lt. Anari”) (collectively “Defendants”) moti
on for summary judgment and Plaintiff
Fairview Ritz Corporation’s (“Plaintiff’) motion for
partial summary judgment pursuant to
Federal Rule of Civil Procedure 56. The Court has cons
idered the submissions made in support
of and in opposition to Defendants’ and Plaintiffs moti
ons, and decides this matter without oral
argument pursuant to Federal Rule of Civil Procedur
e 78.
For the reasons set forth below,
Defendants’ motion is granted in part and denied in part
and Plaintiffs motion is denied.
1. BACKGROUND
Plaintiff brings this action pursuant to 42 U.S.C.
§ 1983, alleging that police, on several
occasions, unconstitutionally searched its business—a
fitness center and day spa—on suspicion of
1
prostitution activities, and unlawfully revoked its business license.
(Compl.
¶
15.) Plaintiff
alleges that Defendants unlawfully targeted its business as being a cover
for prostitution. (Id. at
¶ 22.)
Plaintiff further alleges that as a result of Defendants’ actions, Plaintiff was
forced to shut
down the business, which has not reopened. (Id. at 22, 24.) The Compl
aint, filed on February
¶f
25, 2009, asserts claims for damages against all Defendants for (1) wrongful
search and seizure
under the New Jersey Civil Rights Act; (2) state law torts of trespass and invasio
n of privacy; (4)
Fourth and Fourteenth Amendment violations pursuant to 42 U.S.C.
§
1983, namely (a) wrongful
search and seizure; (b) trespass and invasion of privacy; and (c) denial of
due process. On
January 14, 2011, Plaintiff voluntarily dismissed with prejudice the
Third Count of the
Complaint in which it alleged that Fairview Ordinance 4-17.1, which was
passed in October
2003 and requires massage operators to be licensed, was unconstitutional facially
and as applied
to Plaintiff. (CM/ECF No. 20.)
On September 13, 2013, Plaintiff moved for summary judgment on its Fourth Amend
ment
claims arising out of a January 17, 2008 search by Lt. Anari and membe
rs of the Fort Lee
department of its premises and seizure of its property. (CMIECF No. 81.)
Defendants moved
for summary judgment as to all claims asserted in the Complaint. (CMJECF
No. 85.)
a.
Fairview Ritz Corporation
Plaintiff is a New Jersey corporation licensed by the Borough under its
Ordinances to
conduct business at Vanick Plaza in Fairview, New Jersey under the name
of “The Ritz Day
Spa,” and has been in operation since March 27, 2000. (Def. Statement
of Undisputed Material
Facts (“SUMF”) at
¶
1.) Joseph Urgo (“Urgo’) is the President of Fairview Ritz. (Id. at
¶ 2.)
Urgo was unable to produce a lease for occupancy of the commercial premis
es at Vanick Plaza
in his name or in the name of Fairview Ritz. (Id. at
2
¶
3.) Ron Stone was Plaintiff’s “business
and advertising consultant” who had maintained an office at The
Ritz, and acted as a third-party
liaison between Plaintiff and its attorneys Scott Finckena
uer, Esq. and Dennis Oury, Esq. (Id. at
¶ 17.)
The business certificate issued by the Borough to The Ritz
Day Spa on March 27, 2000
stated that the Ritz would provide “holistic services,” inclu
ding aromatherapy, magnetic therapy,
and massage therapy. (Id. at
¶
4.) Urgo worked primarily from home and another offic
e in
Mount Vernon, New Jersey and was not involved in the
daily operations of The Ritz Spa. (Id. at
¶ 5.) He did not know whether massages or other “holistic services” were being performed at all
times on the premises of the spa by its employees. (Id.
at ¶ 6.)
The Borough Ordinances in effect in 2000 required a busi
ness to obtain a new certificate of
occupancy from the Borough if its owner or the nature
of its business changed. (Id. at ¶ 7.) The
Ordinance required the business to obtain a new certi
ficate for each new type of business it
conducted. (Id.) The business would not be eligible for
a certificate “unless the condition of the
[dwelling unit] complie[d] with all statutes of the
State of New Jersey, [and] the rules and
regulations issued thereunder....” (Def. SUMF Exhibit
B, Ord. No. 11.44.)
At his deposition, Urgo recalled operating the following
businesses out of the commercial
premises at Vanick Plaza: The Ritz Day Spa, No Nam
e Club, and Amanda’s Tickets. (Id. at 9.)
¶
Urgo stated that he did not recall a business by the
name of Fairview Fitness Center, when
Fairview Fitness Center began operating out of the prem
ises associated with The Ritz, or if he
had ever obtained a business certificate for Fairview
Fitness Center. (Def. SUMF Exhibit C,
Urgo Dep. 83:9-15, 104:8-22, 145:17-146:4; Def. SUMF
Exhibit D, Urgo Dep. 176:1-12.)
Amanda’s Tickets was a resale ticket business. (Id.
at ¶ 13.) No Name Club was a bachelor
party service that operated out of the premises of
The Ritz Day Spa and allowed patrons to hire
3
dancers, who would perform on a stage and using a pole located in the middle
of the room, and
play pool. (Id. at ¶ 14.) Both of these activities took place on the premises
registered to The Ritz
Day Spa. (Id.) Urgo could not recall obtaining business occupancy
certificates for Amanda’s
Tickets or the No Name Club. (Def. SUMF Exhibit C, Urgo Dep.
38;1 1-21, 44:19-21, 47:5-8,
50:5-18, 53:7-54:5, 55:15-17, 134:25-135:12, 151:14-153:12.)
On March 2, 2005, Plaintiff
applied for a new business certificate for The Ritz Spa to expand its
massage services to include
hydrotherapy, personal training, and athletic training, but made
no mention of Amanda’s Tickets
or the No Name Club in its application. (Id. at 16.)
¶
From 2001 through 2006, police made several arrests for solicita
tion and promotion of
prostitution at The Ritz Spa.
(Id. at
¶ 18.) On three of these occasions, August 8, 2001,
September 27, 2005, and October 4, 2006, police arrested
Ron Stone, Plaintiffs business
consultant, for prostitution-related offenses. (Id.) Stone’s 2005
arrest resulted in an indictment
by the Grand Jury for Maintaining a House of Prostitution. (Id.
at
¶ 19.) Stone pled guilty to a
reduced charge of Maintaining a Nuisance on April 17, 2006.
(Id.) During this time, and
through at least 2007, Plaintiff continued to use Stone as a busine
ss and advertising consultant
for its unlicensed “No Name Club.” (Id. at 20.)
¶
b.
Plaintiffs Interactions with Police and the Building Department
from 2002-2005’
On September 17, 2002, after arrests for prostitution were made
on the premises of the Ritz,
Fairview’s Construction Official, Gary Ippolito, informed
Lt. Anari that the Ritz’s business
The Court notes that any incidents that occurred prior to Februa
ry 25, 2007 cannot give rise to a claim under 42
U.S.C. § 1983, as they are time-barred. See Vickers v. Childs
, 2013 U.S. App. LEXIS 13768 (3d Cir. July 3, 2013)
(“[A] § 1983 claim arising in New Jersey will be time-barred
if more than two years has passed since its accrual.”)
This Court does not consider whether such incidents can be
considered as part of a “continuing violation” because
Plaintiff does not address this argument. See Larsen v. State
Employee’s Ret. Sys, 553 F. Supp. 2d 403, 417 (M.D.
Pa. 2008) (“The burden is on the plaintiff to demonstrate
that the continuing violations docthne applies to toll the
statute of limitations.”) (citing Cowell v. Palmer Twp., 263
F.3d 286, 292 (3d Cir. 2001)); see also Heilman v. T. W.
Ponessa & Assoc., 2009 U.S. App. LEXIS 609, at *1041
(3d Cir. 2009). The Court summarizes those facts here for
background information only.
4
certificate had “been revoked based on the fact that the owners were
running a business that was
not specified on the Business Certificate.” (P1. Supp. SUMF Exhi
bit B.) On September 18,
2002, Plaintiff received a letter from the Fairview Building Depa
rtment stating that it had been
notified by the police that the Ritz had been shut down due
to illegal activity. (Id.) “Due to this
situation, the Construction Official. .revoked their Business Cert
ificate.” (Id.)
.
On July 16, 2003, Lt. Anari and members of the Bergen Cou
nty Prosecutors Office visited
The Ritz Spa to “respond on a business in operation without
a Certificate of Occupancy.” (Def.
SUMF Exhibit L, Fairview Police Department Gene
ral Report.)
Lt. Anari issued two
summonses for operating without a proper certificate of
occupancy and wrote in the report that
Urgo, who was present on the day in question, agreed to volu
ntarily vacate the premises. (Id.)
2
Anari wrote in the police report that he requested iden
tification from employees as they were
exiting and that the prosecutors spoke with the patro
ns. (Id.) Anari stated that several patrons
admitted to the prosecutors “that the women were willi
ng to perform sexual acts for money.”
(Id. )3 In the police report, Lt. Anari suggested that,
since several arrests for prostitution had
occurred at The Ritz Spa and no ordinance was in
place regulating massage businesses, the
Borough establish an ordinance requiring all mass
age therapists working out of such
establishments to be licensed. (Id.) On September
16, 2003, the Borough enacted Ordinance 417 regulating the business of providing massage servi
ces and requiring all persons performing
non-therapeutic massage to be licensed yearly. (Def
. SUMF ¶ 21-22.) Employers were
responsible for obtaining said licenses. (Id.)
2
Defendants assert that Urgo voluntarily closed the
premises; Plaintiff claims that the premises were shut
down by
Lt. Anari. (See P1. Supp. SUMF 1(b); Def. Resp.
to P1. Supp. SUMF ¶ 1(b).)
¶
Plaintiff alleges in its Supplemental Response to
Defendants Statement of Undisputed Facts that each
of these
entries by U. Anari, the license revocations, and the
closures were illegal. (P1. Resp. SUMF at 1.) The Court
will
¶
ignore legal conclusions expressed in both parties’ Rule
56.1 statements. See Rule 56.1(a).
5
On March 2, 2005, Plaintiff applied for a new business certificate for The Ritz
Spa. (Id. at ¶
16.) On September 27, 2005, after the arrest of Ron Stone for prostituti
on-related offenses, the
Building Department revoked the Ritz’s business certificate beca
use the Department had been
“informed that the State and County police. .performed a raid
on the Ritz Day Spa for possible
.
illegal activity.” (P1. Opp. SUMF Exhibit E.) The certificat
e was allegedly reinstated after
Plaintiffs attorney became involved and wrote the Building
Department that such a “unilateral
action” was “null and void.” (See P1. Supp. SUMF 1(c); P1.
Supp. SUMF Exhibit F.)
¶
From March 23, 2005 through January 9, 2008, Plaintiff recei
ved four letters notifying it of
its obligations under the Ordinance regarding establishments
offering non-therapeutic massage.
(Id. at
¶ 23.) Despite these letters, Plaintiff never obtained massage licenses for its employees
who had been performing non-therapeutic massage. (Id.
4
at
¶
24.)
Plaintiff was unable to
provide the names and qualifications for any of its employe
es who performed massage therapy at
The Ritz Spa. (Id. at
¶ 25.) The Ritz Spa continued to offer massage services through January
17, 2008. (Id. atJ26.)
c. Lt. Anari’s July 8, 2007 Search of the Premises
5
On January 25, 2006 and July 3, 2007, police made arrests
for cocaine possession on the
premises of the Ritz. (Id. at
¶J 27-28.) Upon further investigation, Lt. Anari learned that
Plaintiff had been advertising the premises licensed to
the Ritz as the No Name Club, a private
bachelor party service, and Texas, a service whereby patro
ns could play poker for a fee. (Id. at
¶
29.)
Plaintiff does not deny that it failed to obtain license
s for its employees performing massage therapy as require
d by
the Ordinance: rather, it claims that the relevant Ordina
nce had no legal effect on its operati
¶1J 24-26.) The Court will ignore legal conclusions expressed in both parties’ Rule 56.1 ons. (P1. Resp. SUMF at
Statements and interpret
same as admissions in the absence of cited support in
the record to the contrary. See Rule 56.1(a).
The Court notes that it did not receive Plaintiff’s exhibit
s I through M
summary judgment. As such, it did not consider the content contained to its opposition to Defendant’s motion for
therein for the purposes of this motion.
6
On July 8, 2007, Lt. Anari visited Plaintiff’s premises. (Def
. SUMF
¶ 30.)
Lt. Anari found
the door to the business locked in violation of its Business
Certificate. (Id. at ¶ 31.) Defendants
claim that Lt. Anari then obtained the consent of Plain
tiff’s registered corporate agent and
attorney, Scott Finckenauer, to enter the premises occu
pied by the Ritz and was shown around by
another employee. (Id. at
¶ 30.)
Plaintiff disputes that consent was given. (P1. Resp. SUM
F
¶
30.) After he entered the Ritz, Lt. Anari observed two othe
r businesses operating out of the
Ritz’s premises: No Name Club and Texas. (Def. SUM
F
¶
30.) Lt. Anari wrote that he then
“conducted a search of the premises to ensure that ever
yone was out of the building and as a
safety measure.” (Def. SUMF Exhibit U, Narrative Repo
rt for Det. Lt. Anari.) The Building
Department notified Plaintiff on July 9, 2007 that its prem
ises were being closed because of the
two unlicensed businesses and the locked front door in viola
tion of its business license. (Def.
SUMFJ31.)
On July 17, 2007, Lt. Anari sent letters to several mass
age businesses in Fairview that had
been providing massage services without a license, in viola
tion of Ordinance 4-17. (Id. at ¶ 32.)
Lt. Anari gave the businesses until July 30 of that
year to comply with the Ordinance by
submitting proof of employee certification for all emp
loyees performing massage services. (Id.)
Plaintiff submitted no proof that it complied with this requ
est or of having ever complied with
the requirements of the Ordinance. (Id. at 33.)
¶
d. Lt. Anari’s July 31, 2007 Search of the Premises
On July 31, 2007, Lt. Anari visited the Ritz during norm
al business hours with two other
officers in order to issue summonses to the business and any
unlicensed employees for violations
of the Ordinance. (id. at ¶ 34.) Urgo was not present at
the Ritz on July 31. (Id. at ¶ 35.) When
he entered the Ritz, Lt. Anari first encountered recep
tionist Maria Velasquez at the front desk.
7
(Id.) Defendants claim that Lt. Anari did not enter any non-public areas of the Ritz
at this point.
(Id. at
¶ 36.)
According to Lt. Anari’s report, Velazquez called Daniel Swilenberg, a lawyer at
the Law Offices of Dennis Oury, who said Lt. Anari could not access the spa
to serve summons
without a warrant. (Def. SUMF Exhibit Y, Narrative of Lt. Anari.)
Lt. Anari reached out to the Health Department and Building Department. (Id.)
He also
called the Police Department’s legal advisor, Mark Thonus, for “advice
on how to obtain an
administrative search warrant,” and Magistrate Judge Keith Roberts.
unavailable.
(Id.)
Thonus was
(Id.) Magistrate Judge Roberts said he needed further information “befor
e he
[would] rule on the request.” (Id.) Lt. Anari then called the Borough Admin
istrator, Diane
Testa, and asked if she could locate a provision within the Borough Ordina
nces related to
obtaining an administrative warrant. (Id.) Testa responded that providing
testimony over the
phone to Magistrate Judge Roberts along with a copy of the letter sent
to massage parlors
requesting compliance with the Ordinance should suffice. (Id.) Magistrate
Judge Roberts was
still hesitant to issue the warrant. (Id.)
While he was on the phone with the judge, the health inspector arrived
at the Ritz. (Id.)
The inspector inquired as to whether the business had a tub on the
premises.
(Id.)
After
confirming that it did, the inspector stated that the business had not been
inspected and that she
would walk through to determine if there were any violations. (Id.) Two
6
officers, not including
Lt. Anari, accompanied the health inspector on her inspection. (Id.)
Among the people on the
premises was a handyman who was pulling copper piping in order
to move the facility’s soda
fountain. (Id.) Lt. Anari wrote that this was an “obvious plumbing
job in a commercial building
that was being conducted by an unlicensed contractor without permit
s.” (Id.) A call was placed
6
In his certification, Lt. Anari claims that attorney Scott Fincke
nauer gave the inspector pennission to conduct an
inspection of the hot tubs. (Def. SUMF Exhibit V, Anari Certification
at 9.)
¶
8
to the Building Department to investigate. (Id.) At this point, Deputy
Chief DelVecchio arrived
at the scene. (Id.) The officers let several workers leave the premises
without questioning. (Id.)
The Deputy Chief advised Lt. Anari to issue the summonses
to the business instead of to
individual workers. (Id.)
The health inspector continued her compliance check. (Id.) The
Building Department
official then arrived at the scene and asked the health inspector
to show him the plumbing work.
(Id.) “After determining that there were violations of the buildin
g enforcement code[,j he red
tagged the building and ordered the business shut.”
(Id.)
An officer went to the Building
Department to pick up the red tags and place them on the doors.
(id.) At this point, attorney
Scott Finckenauer arrived and took the summonses. (Id.)
Plaintiff disputes that the Building Department shut down its premis
es, and claims that it was
Lt. Anari who shut down the business. (P1. Supp. SUMF
¶ 1(f).) Defendants assert that it is Lt.
Anari’ s “understanding that the business was ordered to be closed
after the Health Inspector and
Construction Code Official found violations constituting a danger
to public health, safety, and
welfare.” (Def. Resp. to P1. Supp. SUMF 1(f).) There is also
a dispute about the content of Lt.
¶
Anari ‘s call to the judge while on the premises. Defendants claim
that Lt. Anari called the judge
for “advice as to whether a warrant was needed under ordinance
4-17 to issue summonses.” (Id.)
Lt. Anari’ s narrative report, however, supports Plaintiffs claim
that Lt. Anari called the judge to
obtain an administrative warrant. (Def. SUMF Exhibit Y, Narrat
ive of Lt. Anari.)
On August 1, 2007, the Ritz was found to be open again for
business by Fairview police
officers. (Def. SUMF
Prostitution.
¶
45.) The police arrested a male patron on that day for Engag
ing in
(Id.) Also on August 1, one female employee found
on the premises gave a
statement to police that she had worked for the Ritz giving
massages and as a dancer for its
9
bachelor party services. (Id.) Velazquez also gave a statement to
police on August 1. (Def.
SUMF
¶ 46.) She stated that her duties included answering the phone and collecting a flat $80
fee for massage services. (Id.)
On August 12, 2007, police officers, not including Lt. Anari, again found
the Ritz open for
business and observed several men playing cards at one of the Ritz’s poker
tables. (Id. at
¶ 47.)
The police told all parties to leave and the premises were locked.
(Def. SUMF Exhibit FF,
Police Report.)
e. Lt. Anari’s August 23, 2007 Search and Closure of the Premises
On August 23, 2007, Lt. Anari received a call from another officer inform
ing him that the
Ritz was again open for business. (Def. SUMF Exhibit GG, Narrative Report
of Lt. Anari.) Lt.
Anari and two other officers visited the Ritz and found it open for
business during normal
business hours. (Def. SUMF
¶ 48.)
Lt. Anari’s incident report states that the officers
encountered Velasquez and several other females inside the premises.
(Id. at
¶ 49.) Urgo was
not present at the Ritz during this visit. (Id. at 54.)
¶
Defendants claim that at no time during this visit did Lt. Anari enter any
non-public portions
of the premises prior to receiving consent over the phone from Steve Russo,
who had been called
by Velazquez and identified himself as Vice President of the Ritz. (Id. at
Exhibit GO.) Plaintiff disputes that consent was given. (P1. Opp. SUMF
¶J 50-53; Def. SUMF
¶J 50-53.) Defendants
also claim that Russo agreed to shut down the business until any confus
ion surrounding the
construction and fire code violations could be resolved. (Def. SUMF
¶ 52.) Plaintiffs dispute
that the closure was voluntary. (P1. Resp. SUMF 52.)
¶
Defendants state that Russo then gave Lt. Anari consent to walk throug
h the premises to
make sure no one remained in the business after it was closed. (Def. SUMF
10
¶ 53.) Plaintiffs
dispute that the search was consensual. (P1. Resp. SUMF
¶ 52.) Lt. Anari walked through the
premises and found several rooms, some without working light occu
s,
pied by a single female
sitting at a table. (Def. SUMF ¶ 55.)
On November 20, 2007, Ordinance 4-17 was revised to requ
ire that additional information be
submitted to the Borough in order for massage, bodywork
, and somatic therapy businesses to
receive annual permits. (Id. at ¶ 57.) The Borough sent Plain
tiff a copy of the revised Ordinance
and told it to comply with the new requirements. (Id. at
¶
57.) On January 13, 2008, the New
Jersey legislature passed a law making licensing for all
persons engaged in non-therapeutic
massage mandatory throughout the state. (Id. at
¶
58.) Plaintiff did not provide evidence of
having complied with either law. (Id.)
f.
January 17, 2008 Undercover Operation and Search of the
Premises
On January 17, 2008, Lt. Anari, along with detectives from
the Fairview Police Department,
coordinated with five detectives from the Fort Lee Polic
e Department to conduct an undercover
sting operation at the Ritz. (Id. at
¶
59.) Plaintiff claims that Lt. Anari was the superviso
r in
control of this operation, while Defendants claim that
Lt. Anari did not discuss the details of the
operation with the other officers and instead acted at
the direction of the Chief of Police. (Id. at
¶J 59-60.)
Wearing a wire, a Fort Lee officer posed as a customer
and entered the Ritz. (Id. at ¶ 64.)
On the surveillance video submitted in support of the
instant motions, Maria Velazquez, seen at
the reception desk, can be heard answering the phon
e and identifying the business as “Fairview
Fitness Center,” not “The Ritz Spa.” (Id. at 61.)
The undercover officer can be seen entering
¶
the premises, giving Velasquez money, and choo
sing between two women who came to the
reception area. (Def. SUMF Exhibit KK.) Whi
le inside a room with a Ritz employee, the
11
employee offered him a sex act in exchange for money. (Def
. SUMF
¶ 64.) After the four Fort
Lee officers waiting outside heard the undercover officer say
a pre-arranged key word over the
wire, they entered the Ritz premises through the front door
. (Def. SUMF Exhibit U, Narrative
Report of Lt. Anari.) As they walked past the reception
desk, Velazquez asked them if they were
allowed to go “back there.” (Id. at
¶ 64.) One of the officers replied, “We’re the police, what
you think.” (Id.).
A few seconds later, Lt. Anari entered the reception
area. Lt. Anari asked Velazquez
how she was doing and passed the reception desk into
the back of the premises. (Id. at 65.)
¶
Defendants claim that this initial entry was for the
purpose of arresting the employee who
propositioned the undercover officer. (Id. at
¶ 66.) Defendants states that this initial entry to
arrest the employee who had propositioned the officer
lasted approximately seven minutes. (Id.
at ¶ 66.) The officers arrested two female employees
of the Ritz pursuant to the initial entry. (Id.
at ¶ 72.)
Defendants claim that subsequent to these arrests,
the officers conducted a protective
sweep of the rooms adjoining the rooms in which
the employees were located. (Id.) The officers
also opened a door to another room with a key that
Velazquez provided. (Id.) The officers
allegedly opened this room “to ensure that no othe
r persons were hiding ready to launch an
attack on the police or who were being kept
against their will in any locked areas of the
premises.” (Id.) Plaintiff maintains that these
actions constituted a “general search of the
premises for the purpose of seizing the entire busi
ness.” (P1. Opp. SUMF ¶ 72.)
Defendants state that Lt. Anari then arrested
Velazquez for maintaining a house of
prostitution. (Def. SUMF 74.) Defendants claim
¶
that Lt. Anari’s search of the reception desk
drawer was to retrieve the $80 paid to Velasque
z by the undercover and was not for the purpose
12
of finding evidence for the crime of maintaining a house of prostitution.
(Id. at
¶ 75.)
Plaintiffs
dispute this and assert that Lt. Anari’s search of the desk drawer and cash
register were part of a
general search “for the purpose of seizing the entire business.”
(P1.
Opp.
SUMF
¶
75.)
Plaintiff’s expert stated during his deposition that a search of the desk
drawer, where Velasquez
had been seated and standing prior to her arrest, subsequent to Velasquez’s
arrest would have
been proper as a search incident to arrest. (Def. SUMF 76.)
¶
The crux of the factual dispute between Plaintiff and Defendants surrou
nding the 2008
search is the scope of the search undertaken by the officers. Plainti
ff claims that during the
search, which lasted nearly an hour, officers broke into a locked closet
and rooms that were not
open to the public. (P1. SUMF
¶ 9.)
Defendants, on the other hand, deny that any officers broke
open locked doors or entered areas not open to customers. (Def. SUMF
¶
83.) Because the
surveillance footage is of the reception area only, its probative value
is limited. The video does
not reach the back rooms of the premises, where the contested aspects
of the search are alleged to
have occurred.
In support of their position that the officers did not break into any
locked areas of the
premises, Defendants point to a blueprint of the Ritz premises.
(Def. SUMF Exhibit NN,
Architectural Plans for the Ritz.) Specifically, they assert that officer
s never broke into Ron
Stone’s private office, located off the reception area. (Def. SUMF
at ¶ 77.) The blueprint shows
that the only two offices on the premises were accessible only throug
h a door off the reception
area. (Id. at
¶ 77;
Def. SUMF Exhibit NN, Architectural Plans for the Ritz.) Defend
ants claim
that since the video shows that officers did not enter any door off
the reception area, they could
not have searched either of the two offices on the premises.
(Def. SUMF
¶
77.) Plaintiff
disputes this and claims that the surveillance video shows
officers seizing everything and
13
searching everywhere. (P1.
Opp.
SUMF
¶
77.) Plaintiff does not dispute the accuracy of the
blueprint. (Id.)
Underlying Plaintiff’s claim that the officers broke into lock
ed areas are loud bangs heard
on the surveillance footage and officers’ discussions relat
ed to locked areas. The loud banging
noise can be heard on the video on two occasions. (P1. SUMF
¶
17a-17y.) Plaintiff claims that
these bangs were the noises that resulted from officers tryin
g to break into locked areas of the
premises, including a locked room and a locked costu
me closet. (P1. SUMF
¶
17.) Defendants
claim that one set of bangs occurred prior to officers findi
ng a second female employee, Jessica
Srygley, naked with a male customer in a room. (Def. SUMF
¶ 78.)
Defendants also claim that
the bangs heard on the video were the result of officers remo
ving a safe from its floor bolts in
order to transport it to the station, where it remains unop
ened. (Id. at ¶f 87, 95)7 Lt. Anari
stated while on the scene that the officers would be able
to take the safe for forfeiture but “to
open it, [they would] need a warrant.” (Id. at
¶J 88; Def. SUMF Exhibit KK, Surveillance Video
at 2:47.)
Plaintiff also points to several officers’ comments that can
be heard on the video, and that
are allegedly related to breaking into locked areas. Whe
n the first set of banging occurs, Lt.
Anari can be heard referencing the noise and saying
that the officers did not need a warrant.
(Def. SUMF Exhibit KK, Surveillance Video at 1:59.)
At another point in the video, the
officers can be heard discussing keys for one or more locked
areas with the female employees.
(Id. at 2:08.) Lt. Anari was involved in this discussion
. (Id.) One officer can be heard saying
that it was “too late,” possibly referencing using a key
to open something and implying that it
Plaintiff cites Exhibit E, photographs of its premises
after the search, as evidence that officers broke into locked
areas. (P1. SUMF at ¶ 9.) Defendants object to the
inclusion of such photographs in the record. (Def. Opp. SUMF
at ¶ 9.) The Court notes that it did not receive the photog
raphs at issue. As such, they will not be considered for the
purpose of this motion.
14
was “too late” because officers broke in already. (Id.)
At another point, an officer, not Lt.
Anari, can be heard asking about the costume closet and sayin
g something about a key. (Id. at
2:13.) Two officers then discuss the difficulty of getting
through a lock that “you could not get
through with two sledge hammers.” (Id.) It’s unclear if
the officer was referencing the lock on
one of his closets at home, however, and not the costume
closet at issue. (Id.)
Later in the video, Lt. Anari can be heard saying that
the officers would be taking
everything. (Id. at 2:27.) Other officers can also be
heard saying they were going to “clean the
joint out” and “take everything.” (P1. SUMF ¶1 7o-p.) Late
r in the video, some officers discuss
a costume closet and a closet for cleaning supplies, but the
rest of their statements are inaudible.
(Def SUMF Exhibit KK, Surveillance Video at 2:42
.) Defendants also note that, during the
search, a call came in over an officer’s police radio
from the officer stationed at the back
entrance of the Ritz. (Def. SUMF 79.) As a result,
the officer opened the parking lot, allegedly
¶
to prevent anyone else from sneaking out. (Id.)
After the initial entry and arrests, Lt. Anari orde
red the officers to seize “money,
equipment, and other property.” (Def. SUMF
¶ 80.) Defendants claim Lt. Anari ordered the
seizure pursuant to a directive from Mark Thonus
at the Bergen County Prosecutor’s Office.
(Id.) Plaintiffs dispute this. Lt. Anari can be observed
on the video talking on his cell phone and
stating, “We are taking away everything, alright,”
and later telling another officer that they were
“doing the state a favor. [and] taking everything....”
But Plaintiff disputes that Lt. Anari was
speaking with Thonus. (P1. Opp. SUMF 80.)
Plaintiff states that Defendants submitted no
¶
evidence, aside from the certification of Lt. Anari,
of who was on the other end of the call. (Id.)
During the operation, the officers arrested three fema
le employees of the Ritz, logged all
items to be seized from the premises and incident
to the arrests of the three employees, and
. .
15
removed those items from the premises. (Def. SUMF Exhibit KK, Surveillance Video.
) The
seized items included computer equipment, printers, a fax machine, monitors, televis
ions,
massage tables, a credit card machine, a DVD player, exercise machines
and equipment,
surround sound speakers, autographed boxing gloves, a surveillance
camera, a poker table,
clothing, business records, and a safe. (P1. SUMF 13.)
¶
g. Forfeiture Proceedings
Subsequent to the search and seizure, the Bergen County Prosecutor’s
Office instituted
forfeiture proceedings against Plaintiff for all property taken from
the premises and the
individuals arrested, but not for other property taken as evidence
of the crime of prostitution.
(DeL SUMF
¶ 96.) Plaintiff herein (defendant/claimant in the forfeiture proceeding) did not
contest the forfeiture and instead voluntarily withdrew its answer
and submitted to default
judgment. (Id. at
¶ 97.) The voluntary withdrawal stated that Fairview Fitness Center “does
hereby withdraw said Answer with no liability or admission of
wrong doing on the part of
Claimant, rand] further waive[s] any and all claims to the return of
the Defendant property and
consent[s] to the entry of a Default Judgment against said Defend
ant property.” (Def. SUMF
Exhibit RR, Voluntary Withdrawal of Answer.)
IL. LEGAL STANDARD
A court shall grant summary judgment under Rule 59(c) of
the Federal Rules of Civil
Procedure “if the pleadings, the discovery and disclosure materi
als on file, and any affidavits
show that there is no genuine issue as to any material fact
and that the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(c). The movin
g party first must show that no
genuine issue of material fact exists. Celotex Corp. v. Catrett
, 477 U.s. 317, 323 (1986). The
burden then shifts to the non-moving party to present eviden
ce that a genuine issue of material
16
fact compels a trial. Id. at 324. The non-moving party mus
t offer specific facts that establish a
genuine issue of material fact and may not simply rely on
unsupported assertions, bare
allegations, or speculation. See Ridgewood Bd. ofEd
uc. v. NE. ex rel. ME., 172 F.3d 238, 252
(3d Cir. 1999). In making its determination, the Court
must consider all facts presented and the
reasonable inferences drawn from them in the light mos
t favorable to the non-moving party. See
Pa. Coal Ass’n v. Babbitt, 63 F.3d 231, 236 (3d Cir. 1995
).
“With respect to an issue on which the non-moving
party bears the burden of proof, the
burden on the moving party may be discharged by ‘sho
wing’ that is, pointing out to the district
court that there is an absence of evidence to support the
nonmoving party’s case.” Conoshenti
v. Public Serv. Elec. & Gas, 364 F.3d 135, 145-46 (3d
Cir. 2004) (quoting Celotex, 477 U.S. at
323). The role of the Court is not “to weigh the evid
ence and determine the truth of the matter,
but to determine whether there is a genuine issue for trial.
” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 249 (1986). “Only disputes over facts that
might affect the outcome of the suit under
the governing law will properly preclude the entry of
summary judgment.” Id. at 249.
—
-
III. DISCUSSION
a. State Law Claims
i.
New Jersey Civil Rights Act Claims
Defendant moves for summary judgment as to Plain
tiffs claims under the New Jersey Civil
Rights ACT (“NJCA”) on the basis that Plaintiff faile
d to serve notice upon the relevant public
entity as required by the New Jersey Tort Claims
Act, discussed below. Because it is well settled
that the New Jersey Tort Claims Act does not appl
y to bar claims under the civil rights act, the
Court declines to grant summary judgment as to
Plaintiff’s NJCA claim for lack of notice. See
Owens v. Feigin, 194 N.J. 607, 6 13-614 (N.J. 2008
).
17
ii. Tort Claims of Trespass and Invasion of Privacy
Plaintiff brings two tort claims under New Jersey law: tresp
ass and invasion of privacy. The
New Jersey Tort Claims Act (“NJTCA”), N.J. Stat.
§ 59:1-1 et seq., governs tort claims brought
against public entities in the state. “To bring an actio
n in tort against a ‘public entity or public
employee’ in New Jersey, the claimant must file a notice
of claim with the entity within ninety
days of the accrual of the claim or else be ‘forever barre
d’ from asserting that cause of action.”
Cnty. Concrete Corp. v. Tp. ofRoxbury, 442 F.3d 159,
174 (3d Cir. 2006) (quoting N.J. Stat.
§
59:8-3 and -8). The NJTCA provides: “No action shall
be brought against a public entity or
public employee under this act unless the claim upon whic
h it is based shall have been presented
in accordance with the procedure set forth in this chapter.”
N.J. Stat.
§ 59:8-3. Notice is
required so that the public entity can engage in administ
rative review, settle meritorious claims,
and adequately investigate to prepare a defense. Id.
forth the required contents of the notice,
§ 59:8-4 cmt. (a)-(b). Section 59:8-3 sets
§ 59:8-6 sets forth additional notice requirements, and §
59:8-7 sets forth the locations at which the claims mus
t be filed. Section 59:8-8 sets forth the
timing requirements.
Plaintiff does not dispute that it did not file a notice of
tort claims in the instant matter;
rather, it alleges that Defendants waived a defense prem
ised on the NJTA notice requirement.
(See CM/ECF No. 118, p. 1.) The Court disagrees.
Defendants did not waive this defense
because they specifically plead the notice requirements
of the NJTA as an affirmative defense.
(CM/ECF No. 6 at ¶ 19). Plaintiffs reliance on Hill
v. Board of Education is off base. There,
referencing the rule that a defendant must plead the notic
e requirement defense with specificity,
the Court stated, “Defendant failed to comply with
this rule since its affirmative defense did not
set forth a statement of facts sufficient to show that
it was the notice provisions of the Tort
18
Claims Act with which plaintiffs had not complied and which therefore acted
as a bar to suit.”
Hill v. Board of Education, 183 N.J. Super. 36, 41 (App. Div. 1982).
In the instant matter,
Defendants pleaded this defense with specificity and the notice require
ment serves to bar
Plaintiffs tort claims. Accordingly, the Court grants summary judgment
as to Plaintiff’s state
law tort claims of trespass and invasion of privacy.
b. Section 1983 Claims
Plaintiff brings several claims pursuant to 42 U.S.C.
§ 1983. Section 1983 provides as
follows:
Every person who, under color of any statute, ordinance, regulation, custom
, or usage, of any
State or Territory or the District of Columbia, subjects, or causes to be subjec
ted, any citizen
of the United States or other person within the jurisdiction thereof to the depriv
ation of any
rights, privileges or immunities secured by the Constitution and laws,
shall be liable to the
party injured in an action at law, suit in equity, or other proper proceeding
for redress.
42 U.S.C.
§ 1983. To recover under § 1983, a plaintiff must show two elements: (1) the
defendants acted under color of state law, and (2) their actions deprived
the plaintiff of a right
secured by the Constitution or federal statutes. Am. Mfrs. Mitt. Ins. Co. v.
Sullivan, 526 U.S. 40,
49-50 (1999).
Since Defendant does not dispute that the conduct at the root of Plainti
ff s
constitutional claims constituted state action, the Court’s opinion will focus
on the second prong
of the inquiry.
i.
Trespass and Invasion of Privacy Under the Fourth or Fourteenth Amend
ments
Plaintiff brings separate claims for trespass and invasion of privacy
under the Fourth and
Fourteenth Amendments, in addition to its unreasonable search and
seizure and due process
claims. Trespass and invasion of privacy are common law torts. “Tradi
tional common law
causes of action, standing alone, are not actionable under
§ 1983.”
Adelung v. Township of
Jackson, 1982 U.S. Dist. LEXIS 18173, at *2O.21 (D.N.J. Oct. 18, 1982)
(citing Paul v. Davis,
19
424 U.S. 693, 712-13 (1976)).
“[T]he Fourteenth Amendment [is not] a font of tort law to be
superimposed upon whatever systems may already be administered by the
States.” Paul, 424
U.S. at 701; see also Bivens v. Six Unknown Named Agents of Fed. Bureau
of Narcotics, 403
U.S. 388, 393-394 (1971) (explaining that state laws regulating trespas
s and invasion of privacy
and the Fourth Amendment’s “guarantee against unreasonable searches
and seizures[
] may be
inconsistent or even hostile”). To the extent that Plaintiff believes
that its asserted trespass and
privacy claims go beyond the common law, and are based upon the
same grounds as Plaintiffs
unreasonable search and seizure and due process claims, the Court
will address those claims
below.
ii.
Fourteenth Amendment Due Process Claim
The Court now turns to whether Plaintiff can survive summary judgm
ent as to the alleged
deprivation of its Fourteenth Amendment rights. Neither the Compl
aint nor Plaintiff’s response
to Defendant’s motion for summary judgment specifies whether Plainti
ff is alleging a violation
of its substantive or procedural due process rights. Therefore, the
Court will address both claims
in turn.
I.
Substantive Due Process
The due process clause of the Fourteenth Amendment protect
s an individual from
arbitrary government action. See County of Sacramento v. Lewis,
523 U.S. 833, 845 (1998). A
substantive due process violation is the deprivation of a protected
interest involving an abuse of
official power that “shocks the conscience.” United Artists
Theatre Circuit, Inc. v. Township of
Warrington, 316 F.3d 392, 399 (3d Cir. 2003). Thus, to succee
d on a “substantive due process
claim, Plaintiff must (1) allege and substantiate a property
interest protected by due process, and
20
(2) prove that the government’s deprivation of that property interest
shocks the conscience.”
Cherry Hill Towers, L.L.C. v. Township of Cherry Hill, 407 F. Supp. 2d 648,
654 (D.N.J. 2006).
In the context of a violation of substantive due process, the property interes
t at issue must
be of a “particular quality.” DeBlasio v. Zoning Bd. of Adjustment,
53 F.3d 592, 598 (3d Cir.
1995). The determination of whether a particular property interest constit
utes this “particular
quality” depends on whether the interest is “fundamental” under the
Constitution. See, e.g., id.
Plaintiff states that the property interest at issue is Plaintiff’s
interest in its business
certificate, also possibly construed as Plaintiff’s right to engage in
business. The Third Circuit
has been hesitant to extend the protections of substantive due proces
s beyond the realm of real
property, however, and has previously held that the right to engage
in business is not
fundamental under the Constitution. See Wrench Transp. Sys. v. Bradle
y, 340 Fed. App’x. 812,
8 15-16 (3d Cir. 2009); see also Nicholas v. Pa. State. Univ., 227
F.3d 133, 141 (3d Cir. 2000).
This Court finds that there is no meaningful distinction betwee the
n
right to engage in business
and the right to a business certificate, and Plaintiff does not
set forth any such distinction.
Therefore, the Court finds that Plaintiff has failed to meet its
burden of demonstrating that its
right to a business certificate, much like the right to engage
in business or make a living, is
fundamental. See Wrench, 340 Fed App’x at 816; see also, e.g.,
Medeiros v. Vincent, 431 F.3d
25, 32 (1st Cir. 2005) (stating that the “right to ‘make a living’
is not a ‘fundamental right,’ for
either equal protection or substantive due process purposes”).
2.
Procedural Due Process
Procedural due process involves notice and the right to
be heard before any significant
deprivation of a protected property right. Abbott v. Latshaw,
164 F.3d 141, 146 (3d Cir. 1998).
To state such a claim under
§ 1983, “a plaintiff must allege that (1) he was deprived of an
21
individual interest that is encompassed within the Fourteenth Amendment’s protect
ion of ‘life,
liberty, or property,’ and (2) the procedures available to him did not provide
‘due process of
law.” Hill v. Borough ofKutztown, 455 F.3d 225, 233-34 (3d Cir. 2006). “The
deprivation by
state action of a constitutionally protected interest in ‘life, liberty, or proper
ty,’ is not itself
unconstitutional; what is unconstitutional is the deprivation of such an
interest without due
process of the law.” Zinermon v. Burch, 494 U.S. 113, 125 (1990).
The Third Circuit has explained that to “establish a cause of action
for a violation of
Procedural Due Process, a plaintiff [must prove] that a person acting
under color of state law
deprived [him] of a protected interest [and] that the state procedure
for challenging the
deprivation does not satisfy the requirements of procedural due process.”
H&R Grenville Fine
Dining, Inc. v. Borough of Bay Head, 2011 U.S. Dist. LEXIS 145447, at *54
(D.N.J. Dec. 19,
2011) (quoting Midnight Sessions, Ltd., v. City of Philadelphia, 945
F.2d 667, 680 (3d Cir.
1991)). “Thus, in the present context, the Court must determine: (1) whethe
r there is a liberty or
property interest that has been interfered with by Defendants, and,
if so: (2) whether the
‘procedures attendant upon that deprivation were constitutionally suffici
ent.” H&R Grenville
Fine Dining, Inc., 2011 U.S. Dist. LEXIS 145447, at *54 (quotin
g Kentucky Dep ‘t of
Corrections v. Thompson, 490 U.S. 454, 460 (1989)).
The Court finds that a business license is a property interest worthy
of procedural due
process protection.
8
Cleveland Rd. ofEduc. v. Loudermill, 470 U.S. 532, 543 (1985) (“We
have
frequently recognized the severity of depriving a person of the
means of livelihood.”). Once
issued, a license or permit “may become essential in the pursuit of
a livelihood.” Bell v. Burson,
402 U.S. 535, 539 (1971); see also, e.g., H&R Grenville Fine
Dining, Inc., 2011 U.S. Dist.
8
To the extent Plaintiff is also alleging a violation of procedural due
process regarding the forfeiture of its property,
the Court finds that Plaintiff does not have standing to bring such a claim,
discussed below.
22
LEXIS 145447, at *56 (finding a liquor license to be a property interest); Sea Girt
Restaurant &
Tavern Owners Asso., v. Borough of Sea Girt, New Jersey, 625 F. Supp. 1482,
1488 (D.N.J.
1986) (same); Spinelli v. New York, 579 F.3d 160, 169 (2d Cir. 2009) (holding
business license,
once granted, to be property interest for purposes of procedural due proces
s); Wells Fargo
Armored Serv. Corp. v. Ga. Pub. Serv. Comm’n, 547 F.2d 938, 941
(5th Cir. 1977)
(“[Pjrivileges, licenses, certificates, and franchises... qualify as property interes
ts for purposes of
procedural due process.”).
Plaintiff alleges that the closures of its business and revocations of its busine
ss certificate
without notice and a pre-deprivation hearing violated due process. Defendants
rely on several
Third Circuit cases to allege that the post-deprivation remedies available to Plainti
ff after the
revocation of its business license were sufficient to comply with due
process.
Underlying
Defendants’ argument is the premise that a state “provides constitutionally
adequate procedural
due process when it provides reasonable remedies to rectify a legal
error by a local
administrative body.” DeBlasio, 53 F.3d at 597. Thus, “when a state
affords a full judicial
mechanism with which to challenge the administrative decision in questio
n, the state provides
adequate procedural due process. .whether or not the plaintiff avails him
or herself of the
.
provided appeal mechanism.” Id. (citations and internal quotations omitte
d). Defendants detail
the various appellate mechanisms available to Plaintiff after the revoca
tions of its license to
demonstrate that full judicial mechanisms were in place to allow Plainti
ff to challenge the
administrative decision at issue. See, e.g., Midnight Sessions, 945 F.2d
at 680 (finding that a full
judicial mechanism was available and thus rejecting a procedural due
process challenge); MFS,
Inc. v. Dilazaro, 771 F. Supp. 2d 382 (E.D. Pa. 2011).
23
Defendants ignore a key distinguishing fact between the cases
it cites and the one at hand.
Midnight Sessions, DiBlasio, and progeny analyzed the appe
llate mechanisms available to those
denied certain land use permits by administrative bodies; the
Court in each case found no due
process violations when a state “affords a full judicial mech
anism with which to challenge the
administrative decision to deny an application for a.. .permi
t.” Bello v. Walker, 840 F.2d at
1128; see also DiBlasio, 53 F.3d at 597 (state provided
adequate procedure for challenging
adverse zoning provisions); Midnight Sessions, 945 F.2d
at 680 (finding due process in appellate
avenues available subsequent to the denial of a dance license
). In the instant matter, Plaintiff had
already been granted a business certificate. To be sure,
the due process requirements attendant
upon the denial of an application for a property right not yet gran
ted where an appellate process
was available but the plaintiff did not take advantage of it,
on the one hand, and the revocation of
a previously granted certificate without notice or a pre-d
eprivation hearing, on the other, require
a different analysis.
To determine whether a pre-deprivation hearing is
required to afford due process,
a court
must balance the factors set forth in Matthews v. Eldr
idge, which are “the private interest that
will be affected by the official action,” “the risk of
an erroneous deprivation of such interest
through the procedures used,” “the probable value, if
any, of additional or substitute procedural
safeguards,” and “the Government’s interest, including
the function involved and the fiscal and
administrative burdens that the additional or subs
titute procedural requirement would entail.”
424 U.S. 319, 334-35 (1976). Since Defendants do
not address how the Matthews v. Eldridge
factors would apply in the face of a previously gran
ted property interest or include convincing
analysis as to why the normal notice and pre-depriv
ation hearing requirements of due process
24
would not have been necessary in this instance, the Court finds that Defendants have failed to
meet their burden on the procedural due process claim.
The Court now turns to whether the municipality or Lt. Anari individually can be held liable
for any violations of procedural due process under
a.
§ 1983.
Municipal Liability
“Claims against individual officials [like Lt. Anari] in their official capacity are the
equivalent of a claim against the municipality that employs him [sic].” Okocci v. Klein, 270
F.
Supp. 2d 603, 613 (E.D. Pa. 2003) (citing Kentucky v. Graham, 473 U.S. 159, 165-66 (1985)
).
Thus, to the extent that Plaintiff has asserted a municipal liability claim against Lt. Anari,
the
Court construes said claim as brought only against the Borough of Fairview. See Okocci v.
Klein, 270 F. Supp. 2d at 613.
It is well settled that “a municipality may be held liable under a
limited circumstances.”
§ 1983 action only in
Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 688-89 (1978).
Specifically, a municipality “may not be held liable under
§ 1983 for the constitutional torts of
its employees by virtue of respondeat superior.” Hill i’. Borough ofKutztown, 455 F.3d 225,
245
(3d Cir. 2006). Rather, “a municipality may be held liable for the conduct of an individ
ual
employee or officer only when that conduct implements an official policy or practic
e.” Id.
(citing Monell, 436 U.S. at 690). Thus, to prevail on a
§ 1983 claim against Fairview, Plaintiff
“must prove the existence of a policy or custom that has resulted in a constitutional violati
on in
order to make.
.
.
[Fairview] liable under
§ 1983.” See Groman v. Township ofManalapan, 47
F.3d 628, 637 (3d Cir. 1995) (citing Monell, 436 U.S. at 694-95). Additionally, Plainti
ff must
establish “a plausible nexus or affirmative link between.
25
.
.
[Fairview’s] custom [or policy] and
the specific deprivation of constitutional rights at issue.” See Bielevicz v.
Dubinon, 915 F.2d
845, 850 (3d Cir. 1990) (internal quotation marks omitted).
Plaintiff puts forward no argument as to why Fairview should be held liable
for any
potential violations of procedural due process.
Plaintiff points to no policy or custom of
revoking business certificates or closing businesses without due process of
law. Plaintiff also
does not argue that the city should be held liable for procedural due proces
s violations based on a
failure to train theory. “A
§ 1983 plaintiff pressing a claim of this kind must identify a failure to
provide specific training that has a causal nexus with his or her injury and
must demonstrate that
the failure to provide that specific training can reasonably be said to
reflect a deliberate
indifference to whether constitutional deprivations of the kind alleged occur.”
Coiburn v. Upper
Darby TMp., 946 F.2d 1017, 1030 (3d Cir. 1991).
In light of this, the Court finds that the
municipal defendants cannot be held liable for any potential violations of
procedural due process
attendant upon the revocation of Plaintiff’s business license or closure of its
business.
b.
Individual Liability of Lt. Anari
Section 1983 provides a cause of action to any person who has been depriv
ed of their
federal rights by a person acting under color of state law. However, “[wjhe
n an officer’s actions
give rise to a
§ 1983 claim, the privilege of qualified immunity, in certain circumstances,
can
serve as a shield from suit.” Wright v. City of Philadelphia, 409 F.3d
595, 599 (3d Cir. 2005).
“Qualified immunity is a complete immunity from suit
325 (3d Cir. 2009).
.
.
.
.“
Giles v. Kearney, 571 F.3d 318,
Under this doctrine, “{g]overnment officials performing discretionary
functions are immune ‘from liability for civil damages insofar as their
conduct does not violate
clearly established statutory or constitutional rights of which a reason
able person would have
known.”
Lamont v. New Jersey, 637 F.3d 177, 182 (3d Cir. 2011) (quotin
g Harlow v.
26
Fitzgerald, 457 U.S. 800, 818 (1982)). The appropriate inquiry is
two-pronged and asks (1)
whether the official’s conduct violated a constitutional right, and (2)
whether that right was
clearly established such that “a reasonable official would understand
that what he is doing
violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987) Lamon
;
t, 637 F.3d at 182.
Because police officers in the field must make “split-second judgments—
in circumstances that
are tense, uncertain, and rapidly evolving,” Saucier v. Katz, 533 U.S. 194,
205 (2001), overruled
on other grounds by Pearson v. Callahan, 555 U.S. 223 (2009), they are
entitled to some leeway
for the decisions they make.
Gilles v. Davis, 427 F.3d 197, 207 (3d Cir. 2005).
In short,
qualified immunity excuses an officer’s reasonable mistake as to what
the law requires. Saucier,
533 U.S. at 206. “If officers of reasonable competence could disagree on th[e]
issue, immunity
should be recognized.” Giles, 571 F.3d at 325 (quoting Malley v. Briggs
, 475 U.S. 335, 341
(1986)).
Because material issues of fact remain as to the nature of the proced
ural due process
violations, if any, that occurred at the direction of Lt. Anari, the Court
declines to grant qualified
immunity to Lt. Anari for his actions related to the license revocations
and business shut-downs
at this time.
There are disputed issues of fact as to who was responsible for
each of the
revocations and closures and whether some of the closures were
consensual. On at least one
occasion, Defendants claim the closure was “voluntary” while Plainti
ffs assert that Lt. Anari
forcibly shut down its business. (Def. SUMF
¶J 50-53; P1. Opp. SUMF ¶J 50-53.) On another,
Defendants claim that the decision to shut down the premises
was entirely that of the Building
Department official while Plaintiff claims that Lt. Anari was again
ultimately responsible for the
closure. (P1. Supp. SUMF ¶1(f); Def. Resp. SUMF
¶ 1(f).) While the Court is mindful of the
Supreme Court’s instruction that decisions on qualified immunity
should be determined as early
27
as possible in litigation, the Court finds that issues of fact remain that affect
both the
determination of whether Lt. Anari was responsible for the closures and license
revocations and,
if so, whether he violated clearly established law. See Thomas v. Independence
Twp., 463 F.3d
285, 291 (3d Cir. 2006) (“Because qualified immunity bestows immunity from
suit, the Supreme
Court ‘repeatedly ha[s] stressed the importance of resolving immunity questio
ns at the earliest
possible stage in litigation.”) (citing Hunter v. Bryant, 502 U.S. 224, 227
(1991)); but see, e.g.,
Giles, 571 F.3d at 327 n.4 (“Denying summary judgment on the basis
of [a] factual dispute.. .is
not.. .improper.”); Manasco v. Rogers, 337 Fed. App’x. 145 (3d Cir. 2009)
(declining to grant
qualified immunity on summary judgment due to issues of fact).
iii.
Fourth Amendment Illegal Search and Seizure Claims
a. Res Judicata and Standing
Plaintiff and Defendants each move for summary judgment on Plainti
ffs illegal search
and seizure claims. Plaintiff moves for summary judgment on its Fourth
Amendment claim as it
relates to Defendants’ 2008 search of its premises only.
Defendants move for summary
judgment as to Plaintiffs Fourth Amendment claims arising out of all
searches at issue.
As a preliminary matter, Defendants allege that Plaintiffs claims
for damages based
upon the January 17, 2008 search and seizure are barred by res judicat
a and New Jersey’s entire
controversy doctrine. The Court disagrees. The prior forfeiture
9
action was in rem and “[t]he
effect of a judgment [in rem or quasi in rem]. is limited to
the property that supports
. .
jurisdiction....” Shaffer v. Heitner, 433 U.S. 186 (1977). Tn additio
n, “[r]es judicata generally
applies to parties in privity with those named in a prior action.”
See Abulkhair v. Page-Hawkins,
448 Fed. App’x. 291, 293 (3d Cir. 2011). Lt. Anari in his individ
ual capacity was not a party to
The Entire Controversy Rule is embodied in New Jersey Rule
of Court 4:30A and provides that “[njon-joinder of
claims required to be joined by the entire controversy doctrine shall
result in the preclusion of the omitted claims to
the extent required by the entire controversy doctrine.”
28
the forfeiture. See Id. (stating that while defendant might have been
in privity with the state in
her official capacity, res judicata and the entire controversy doctrine
would not apply to bar
claims against her in her individual capacity) (citing Gregory v.
Chehi, 843 F.2d 111, 120-21 (3d
Cir. 1988)). Moreover, “the entire controversy doctrine requ
ires the joinder of related claims but
not related parties.” See Abulkhair, 448 Fed. App’x. at 293 (citin
g Paramount Aviation Corp. v.
Agusta, 178 F.3d 132, 135 n.1 (3d Cir. 1999)). Neither the
entire controversy doctrine nor res
judicata bars subsequent claims tied to the 2008 search.
However, the Court finds that Plaintiff waived its interest in
the seized property when it
withdrew its answer to the forfeiture complaint and agreed
to default judgment.
Plaintiffs
voluntary withdrawal stated that it “waive[d] any and all claims
to the return of the Defendant
property and consent[ed] to the entry of a Default Judgmen
t against said Defendant property.”
(Def. SUMF Exhibit RR.) As a result, Plaintiff lacks stand
ing to contest the seizure of said
property.
See United States v. Raspino, 295 Fed. App’x. 486 (3d
Cir. 2008) (finding that
plaintiff lacked standing to challenge the District Court’
s forfeiture order because the order
determined her interest in the property and she failed
to appeal); United States v. Pelullo, 178
F.3d 196, 202 (3d Cir. 1999) (noting that “a forfeiture orde
r entered at sentencing conclusively
determines all of the defendant’s interest in the forfe
ited property and is final for purposes of
appeal.”). The Court declines to wade into the implicati
ons of this finding on the issue of the
amount of damages that may ultimately be appropriate
at this time, and will now address the
propriety of the 2007 and 2008 searches.
b. Propriety of the Searches
Plaintiff alleges that Defendants’ warrantless searches
of its premises violated the Fourth
Amendment. In particular, Plaintiff alleges that on the
following dates members of the Fairview
29
Police Department and Lt. Anari in particular conducted illegal searches of
its premises: July 31,
2007 (stated in the Complaint as the “July 17, 2007” search, but the facts
Plaintiff describes
appear to be referencing the July 31, 2007 search); August 23, 2007;
and January 17, 2008.
(CM/ECF No. 1.) Because the Court finds that issues of material
fact remain as to the scope of
the January 17, 2008 search of the Ritz premises, it denies Plaintiff and
Defendants’ motions for
summary judgment on Plaintiff’s Fourth Amendment illegal search
claims.
The Court will
address each incident in turn.
The Fourth Amendment provides:
The right of the people to be secure in their persons, houses, papers,
and effects, against
unreasonable searches and seizures, shall not be violated, and no Warran
ts shall issue, but
upon probable cause, supported by Oath or affirmation, and particularly
describing the
place to be searched, and the persons or things to be seized.
U.S. Const. amend. IV. It is well settled that “[w]arrantless search
es [of areas in which there is a
reasonable expectation of property]. are presumptively unreas
onable and are therefore
. .
prohibited under the Fourth Amendment unless an exception applies
.” United States v. Mundy,
621 F.3d 283, 287 (3d Cir. 2010).
Businesses have a lesser expectation of privacy in their
commercial premises than do individuals in their homes becaus
e a “business operator has a
reasonable expectation of privacy only in those areas from which
the public has been excluded.”
United States v. Dunn, 480 U.S. 294, 316 (1987); see also, e.g.,
Lewis v. United States, 385 U.S.
206, 211 (1966). This “does not mean that, whenever entry is
obtained by invitation and the
locus is characterized as a place of business, an agent is author
ized to conduct a general search
for incriminating materials,” however. Lewis, 385 U.S.
at 211. “The reasonableness of the
expectation depends on such factors as whether [there is]
a possessory or property interest in the
premises,” United States v. Conley, 813 F. Supp. 372, 377
(W.D. Pa. 1993), rev’d on other
grounds, 4 F.3d 1200 (3d Cir. 1993), and “whether [the busine
ss] has taken the additional step of
30
barring the public from the area....” United States v. Dunn,
480 U.S. at 316. Moreover, that a
business operating out of certain premises is of an illegal nature
does not “negate the legitimate
expectation of privacy..
.“
therein. United States v. Savage, 2013 U.S. Dist. LEXIS 9360, *15
at
16 (E.D. Pa. Jan. 23, 2013).
1. July31 and August 23, 2007 Searches
A search conducted pursuant to voluntary consent does
not violate the Fourth
Amendment. See Ohio v. Robinette, 519 U.S. 33, 40 (1996);
Schneckloth v. Bustamonte, 412
U.S. 218 (1973).
Defendants allege that the search of Plaintiffs premises on
July 31 was
consensual. Plaintiff asserts that the July 31 search by the two officer
s who accompanied the
health inspector on her inspection was “pretextual.” (PT. Supp. SUMF
at
¶
1(f).) Although the
parties agree that on that date, Lt. Anari did not search the premises,
Plaintiff alleges that he “had
two officers conduct a pretextual search by accompanying the Bergen
County Department of
Health Services on its inspection the same date.” (Id.) However,
no criminal summonses were
issued on July 31. (Def SUMF at
¶ 42.)
Moreover, the health inspector’s report states that the
officers accompanied her on the inspection because of “some dark
areas” on the premises. (Def.
SUMF Exhibit Z, General Inspection Report.) Plaintiff does not
dispute that its attorney, Scott
Finckenauer, accompanied the inspector and officers on the July
31 search, but claims that
Finckenauer gave permission only to the health inspector to enter the
premises. (P1. Opp. SUMF
at
¶ 38.)
Plaintiff has submitted no evidence to rebut Defendants’ assertions
that the search by
the health inspector and officers was consensual and that Lt.
Anari did not accompany the
inspector on her search. (Id. at
¶J
3 8-40.) Plaintiff has therefore failed to meet its burden of
showing that there is a genuine issue of fact as to whether police
impermissibly searched areas
31
from which the public was barred or in which it had a reasonable
expectation of privacy on July
31, 2007.
Defendants also allege that the August 23, 2007 search was
consensual. Plaintiff again
disputes this, but points to no evidence that contradicts
Lt. Anari’s report or affidavit. In his
narrative report, Lt. Anari wrote that, “[a]fter a ten minute
wait [Steve Russo] called the
attendant and said that it was ok for us to walk through.”
(Def. SUMF Exhibit GG, Narrative
Report of Lt. Anari.) In his certification, Lt. Anari wrote
that Russo “granted [him] permission
to clear the building of any persons who had remained
inside.”
(Def. SUMF Exhibit V,
Certification of Lt. Anari.) Plaintiff denies that Lt. Anari
received consent from Russo, but cites
no record evidence in support of this contention. (P1. Opp. SUMF
at ¶ 53.)
The only evidence Plaintiff submits as proof that the search
es on July 31 and August 23,
2007 were non-consensual is the certification of Joseph
Urgo. (P1. Supp. SUMF Exhibit A,
Certification of Joseph Urgo.) Despite Plaintiff’s acknowledgm
ent that Urgo was not present at
the Ritz on either occasion, Urgo’s certification states that
on July 31, 2007, despite being told
that he could not search the premises by one of Plaintiff’s
lawyers, Lt. Anari “had two officers
conduct a pretextual search.” (Id. at
¶
6.)
As for the search on August 23, 2007, Urgo’s
certification states that Lt. Anari and other police officer
s searched Plaintiff’s premises without a
warrant, “unlawfully detained and questioned various employ
ees,” and “refused to leave despite
being requested to do so.” (Id. at 7.)
¶
Federal Rule of Civil Procedure 56(c)(4) states that “an
affidavit or declaration used to
support or oppose a motion must be made on person
al knowledge
.
.
.
.“
The Rule’s
“requirement that affidavits be made on personal knowle
dge is not satisfied by assertions made
‘on information and belief.” Olivares v. United States,
447 Fed. App’x. 347, 351 n.6 (3d Cir.
32
2011) (citing Patterson v. Cnly. of Oneida, NY., 375 F.3d 206, 219 (2d Cir.
2004)). The Third
Circuit has explained:
It is true that “conclusory, self-serving affidavits are insufficient to withsta
nd a motion
for summary judgment.” Blair v. Scott Specialty Gases, 283 F.3d 595,
608 (3d Cir. Pa.
2002). Instead, the affiant must set forth specific facts that reveal
a genuine issue of
material fact. Id. (collecting cases); Maldonado v. Ramirez, 757
F.2d 48, 51 (3d Cir.
1985); see also FED. R. CIV. P. 56(e)(2) (“When a motion for summa
ry judgment is
properly made and supported, an opposing party may not rely merely
on allegations or
denials in its own pleading; rather, its response must
set out specific facts showing a
genuine issue for trial.”).
.
.
.
Kirleis v. Dickie, McCamey & Chilcote, P.c., 560 F.3d 156,
161 (3d Cir. 2009).
Because
Plaintiff’s assertions that the July 31 and August 23, 2007
searches violated the Fourth
Amendment are based on “conclusory, self-serving allegations”
contained in an affidavit
submitted by someone without personal knowledge of the events
at issue, id., the Court grants
Defendant’s motion for summary judgment as to Plaintiff’s Fourth
Amendment claims arising
from the 2007 searches of the premises.’°
2. January 17,2008
Plaintiff and Defendants both move for summary judgment as to
Plaintiff’s claim that
the officers’ January 17, 2008 search of the Ritz violated the
Fourth Amendment.
Plaintiff
alleges that officers impermissibly searched locked and private areas
on the premises, including a
costume closet, office, and locked room. Plaintiff points to the
officers’ comments as well as the
loud banging noise captured by the surveillance video. Underl
ying Plaintiff’s claim that the
officers broke into locked areas are loud bangs heard on the
surveillance footage and officers’
discussions related to locked areas. (P1. SUMF
¶
°
I 7a-1 ‘7y.)
Plaintiff claims that the bangs heard
To the extent Plaintiff also claims that the search on July
8, 2007 violated the Fourth Amendment, the Court
disagrees. Lt. Anari’s police report and certification state
that he obtained the consent of Plaintiff’s registered
corporate agent and attorney, Scott Finckenauer, to enter
the premises occupied by the Ritz and was shown around
by another employee. (Def. SUMF 30.) Again, the only eviden
¶
ce Plaintiff provides to dispute that consent was
given is Urgo’s certification. (P1. Opp. SUMF 30.)
¶
33
on the video were the noises that resulted from officers trying to break into locked
areas of the
premises. (P1. SUMF at
¶
17.) Plaintiff also highlights several comments made by officers at
the scene. For example, when the first set of banging occurs, Lt. Anari can
be heard referencing
the noise and saying that the officers did not need a warrant. (Def. SUMF
Exhibit KK at 1:59.)
At another point in the video, the officers can be heard discussing keys
for one or more locked
areas with the female employees. (Id. at 2:08.) Lt. Anari was involv
ed in this discussion. (Id.)
One officer can be heard saying that it was “too late,” possibly referen
cing using a key to open
something and implying that it was “too late” because officers broke
in already. (Id.) Later, an
officer, not Lt. Anari, can be heard asking about the costume closet and
saying something about
a key. (id. at 2:13.) Some officers again discuss a costume closet and
a closet for cleaning
supplies later in the video, but the rest of their statements are inaudible.
(Id. at 2:42.)
Defendants dispute that officers searched any locked or private
areas.
Defendants
specifically deny that officers broke into any private offices on the premis
es. (Def. SUMF
Def. SUMF Exhibit NN, Architectural Plans for the Ritz.)
¶ 77;
Although Plaintiff disputes this
contention, Plaintiff does not contest the accuracy of the bluepr
int provided by the Defendants.
As such, it is clear to the Court from the surveillance footage and
blueprint of the premises that
no officer entered an office located directly adjacent to the front recepti
on area.
As for the banging noises, Defendants claim that one set of
bangs occurred prior to
officers finding a second female employee, Jessica Srygley, naked
with a male customer in a
room. (Def SUMF at
¶ 78.)
Defendants imply that the bangs were the result of officers trying
to open the room where this female was discovered. Defendants
claim that the second set of
bangs heard on the video was the result of officers removing
a safe from its floor bolts. (Id. at ¶J
34
87,
95)hl
The safe remains unopened. (Id.) Lt. Anari stated while on the
scene that the officers
would be able to take the safe for forfeiture but “to open it, [they would
] need a warrant.” (Id. at
¶J 88; Def. SUMF Exhibit KK, Surveillance Video at 2:47.) Although Defendants have
demonstrated that officers did not break into to any front offic
es and did not open the safe, they
have failed to convince the Court that no genuine issues of fact
remain as to whether officers
broke into the costume closet or other locked areas of the
premises.
Defendants claim that even if the officers searched locked
or private areas, their actions
were justified by one or more exceptions to the warrant requ
irement and summary judgment
should be granted in their favor. Defendants allege that such
a search would have been justified
because (1) Plaintiff did not have a reasonable expectation
of privacy in its premises; (2) the
officers’ search fell within the bounds of a search incident
to the arrests of Plaintiff’s employees;
(3) the search was conducted for the purpose of a prote
ctive sweep; and (4) “the search was
conducted for the protection of vulnerable persons who may
have been present at The Ritz Spa
during its normal operating hours.” (CM/ECF No. 114,
p. 53.) The Court declines to grant
summary judgment on Plaintiff’s Fourth Amendment claim,
however, as Defendants provide
scant support for these arguments and the Court disag
rees that the officers’ search of private
areas would necessarily be justified by a recognized exce
ption to the warrant requirement.
First, Defendants claim that Plaintiff did not have a reaso
nable expectation of privacy in
its premises. Defendants correctly state that business
es enjoy a lesser expectation of privacy in
their premises than do individuals in their homes. This
is because businesses are open to the
public and law enforcement officers, being members
of the public, may enter those areas without
“Plaintiff cites Exhibit E, photographs of its premises after
the search, as evidence that officers broke into locked
areas. (P1. SUMF at ¶ 9.) Defendants object to the inclusi
on of such photographs in the record. (Def. Opp. SUMF
at ¶ 9.) The Court notes that it did not receive the photographs at issue.
As such, they will not be considered for the
purpose of this motion.
35
a warrant. See, e.g. Lewis, 385 U.S. at 211. What Defendants miss is
that businesses maintain
an expectation of privacy in those areas closed to the public. See id.
“A government agent, in
the same manner as a private person, may accept an invitation to
do business and may enter upon
the premises for the very purposes contemplated by the occu
pant. Of course, this does not mean
that, whenever entry is obtained by invitation and the locu
s is characterized as a place of
business, an agent is authorized to conduct a general searc
h for incriminating materials.” Id.
Thus, Defendants have not demonstrated that Plaintiff lacke
d a reasonable expectation of privacy
in locked areas closed to the public.
Defendants make two related arguments: there is no expe
ctation of privacy in premises
used to conduct illegal activity and Plaintiff lacked any expectati
on of privacy in premises it did
not validly possess. The first, that Plaintiff has no reaso
nable expectation of privacy in premises
used to conduct illegal activity, is plainly incorrect. In
support of this notion, Defendants cite
Lewis. (EMIECF 114, p. 30.) As described above, the
Lewis Court did not find that defendants
had no expectation of privacy in premises used to cond
uct illegal activity; rather, the Court found
that the zone of privacy did not extend into areas
into which an officer was invited for the
purpose of conducting illegal activity. See Lewis, 385
U.S. at 211. Because that area was open
to customers and the undercover officer was invited
in as a customer, the defendant in Lewis
could not claim an expectation of privacy in that area
of his home. See id. Defendants have
failed to demonstrate that Plaintiff lacked a reasonabl
e expectation of privacy in those areas into
which customers were allegedly not invited for business
purposes.
Defendants related claim, that Plaintiff lacked a reaso
nable expectation of privacy in
premises it did not validly possess, is unsuppor
ted. For this premise, Defendants cite Rakas v.
Illinois, 439 U.S. 128 (1978). The Rakas Court
found that a person with “neither a property nor
36
a possessory interest in the [property searched], nor an interest in the proper
ty seized” lacks
standing to contest the search of that property. Id. at 148 (“[T]he fact
that [someone was]
legitimately on the premises in the sense that they were in the car with the
permission of its
owner is not determinative of whether they had a legitimate expectation
of privacy in the
particular areas of the automobile searched.”) (internal quotations and citatio
ns omitted). This
premise is easily distinguishable from the case at hand, in which there is no
indication that
Plaintiff occupied the premises without the permission of the landlord or
otherwise lacked a
reasonable expectation of privacy in certain areas therein.
Second, Defendants allege that any search of private areas was justified inciden
t to the
arrests of Plaintiffs employees. Searches incident to arrest are for the purpose of protect
ing the
arresting officers and where it is reasonable to believe that evidence relevan
t to the crime of
arrest may be found. Arizona v. Gant, 556 U.S. 332 (2009). The scope of
such a search is
limited to “the area from within which [the arrestee] might gain possession
of a weapon or
destructible evidence,” Chimel v. Ca1fornia, 395 U.S. 752, 763 (1969). Issues
of fact remain as
to whether the scope of the officers’ search exceeded a proper search incident to
arrest.
Third, Defendants claim that if officers searched private areas, it was to conduc
t a
protective sweep of the premises. in support of this argument, Defendants cite
to State v. Lane, a
New Jersey state case that extended the protective sweep doctrine beyond
searches incident to
arrest. See State v. Lane, 393 N.J. Super. 132, 153 (App. Div. 2007). But
with this citation
Defendants miss the key factor underlying proper protective sweeps. The Court
in Lane stated,
“we agree with the logic of those federal decisions that have determined
that the validity of the
warrantless sweep.. .tums. .on the officer’s right to be in a location that
generates a reasonable
.
37
articulable suspicion that the area to be swept ‘harbors an individual posing
a danger’ to those
on the scene.” Id. (quoting Maryland v. Buie, 494 U.S. 325, 337 (1990))
(emphasis added).
The Fifth Circuit has summarized three variations ofjustifiable protective sweeps
:
First, incident to an arrest, law enforcement officers may contemporaneously
search areas
within the arrestee’ s immediate control to prevent the destruction
of evidence or
procurement of a weapon. Second, officers may search areas immediately adjoin
ing the
place of arrest, such as closets and other spaces, from which a surprise attack
could occur.
Probable cause or reasonable suspicion is not necessary for these first
two variations.
Third, officers may also perform cursory protective sweeps of larger areas
if they have
articulable facts plus rational inferences that allow a reasonable officer
to suspect that an
individual dangerous to the officers is within the area to be searched.
United States v. Mata, 517 F.3d 279, 285 (5th Cir. 2008) (internal quotat
ions omitted). In the
instant matter, material issues of fact remain as to whether the scope
of the search exceeded
those areas immediately adjoining those rooms where the arrest took place,
and as to whether the
officers had reason to believe that any private areas they searched housed
an individual posing
danger to those on the scene.
Defendants also allege that Plaintiff failed “to identify] specifically which
private areas
had been invaded where officers would not have been permitted to
search for purposes of
inventorying items for forfeiture.” (CM/ECF 114,
p. 48.) Defendants cite United States v.
Castellano, 610 F. Supp. 1359 (S.D.N.Y. 1985), for the proposition that
because Plaintiff failed
to identify any areas the officers were not permitted to search to invento
ry items for forfeiture,
Plaintiff’s Fourth Amendment claim must fail. (CM/ECF 114, 48.)
Defendants’ reliance on
p.
Castellano is misleading, however.
In Castellano, the officers entered a spa pursuant to a
forfeiture complaint and judicial forfeiture order based on a finding that
there was probable cause
to believe the spa “was being operated, on a continuing basis, as
a house of prostitution.” 610 F.
Supp. at 1436. In the instant matter, the issue is whether the officer
s could search certain areas
for forfeiture without judicial process and a forfeiture order.
38
Since genuine issues of material fact exist as to whether officers broke into locked
areas
of the Ritz premises, and, if so, which areas they broke into and what their justific
ations were for
entering private spaces, the Court denies both motions for summary judgm
ent on the Fourth
Amendment illegal search claim arising out of the January 17, 2008 inciden
t.
The Court now turns to whether the municipality or Lt. Anari individually
can be held liable
for any violations of the Fourth Amendment under
§ 1983.
a. Municipal Liability for the Fourth Amendment Claim
Plaintiff claims that the municipal defendants should be held liable
for the alleged Fourth
Amendment violation because “through [the Borough’s] failure
to train its officers and the
repeated illegal closures of [Plaintiff’s] business, the Township of Fairvie
w has exhibited a
deliberate indifference to the rights of its inhabitants in regard
to their Fourth Amendment
Rights.
. . .“
(CM/ECF No. 118, p. 6.) Thus, Plaintiff’s argument that the munic
ipal defendants
should be held liable is premised on two theories: (1) the mainte
nance of an unconstitutional
policy, custom, or practice; and (2) Fairview’s alleged failure to
train Lt. Anari on search and
seizure laws and practices. (Id. at p. 2.) Defendants assert that
summary judgment should be
granted in their favor on Plaintiff’s Fourth Amendment claims
with respect to the municipal
defendants because Plaintiff has not “identified any official policy,
practice or custom adopted or
implemented by the Borough as supportive of its claims” and
has not “identified the specific
training it contends would have avoided the alleged violation....”
(CM/ECF No. 114, pp. 20,
25.)
Monet! held that a municipality can be sued under
§ 1983 only if the official conduct that
caused the plaintiff’s injury was the result of the municipality’
s policy or custom. 436 U.S. at
690. A policy is defined as a “policy statement, ordina
nce, regulation, or decision officially
39
adopted and promulgated by” the municipality, id., while a custo
m is defined as a course of
conduct that, while not officially adopted, is so permanent and
well settled “as to virtually
constitute law.” Hansell v. City of Atlantic City, 152 F.
Supp. 2d 589, 609 (D.N.J. 2001)
(quoting Andrews, 895 F. 2d at 1480). In addition to estab
lishing the existence of a policy or
custom, a plaintiff must establish a causal connection betw
een the policy or custom and the
injury suffered. Talbert v. Kelly, 799 F.2d 62, 67 (3d Cir.
1986). “[A] single incident of police
misbehavior by a single policeman is insufficient as
sole support for an inference that a
municipal policy or custom caused the incident.” City of
Oklahoma City v. Tuttle, 471 U.S. 808,
832 (1985).
Plaintiff points to no official policy that would give rise to
Monell liability.
Instead,
Plaintiff states, “The Borough of Fairview, through
its police department and building
department, engaged in a series of unlawful closures,
searches, summonses and patterns of
harassment of the Plaintiffs lawful business” and throu
gh this custom demonstrated deliberate
indifference to its constitutional rights. (CM!ECF No.
118, p. 2, 6.) To succeed on a claim,
however, a plaintiff must demonstrate that the prac
tice is “so permanent and well settled as to
constitute a ‘custom or usage’ with the force of law.”
Monell, 436 U.S. at 691.
Plaintiffs allegations in the instant matter fall short of
the burden set forth in Monell. See
id. at 690-91. Plaintiff does not provide any evid
ence of a “permanent and well settled” custom
of illegally searching business premises. See id.
at 691. Further, under a theory of deliberate
indifference, “[P]laintiff must ‘ simply establish a
municipal custom coupled with causation—
i.e., that policymakers were aware of similar unla
wful conduct in the past, but failed to take
precautions against future violations, and that this
failure, at least in part, led to [its] injury.”
See Beck v. City of Pittsburgh, 89 F.3d 966, 972
(3d Cir. 1996) (quoting Bielevicz, 915 F.2d at
40
851).
As discussed above, Plaintiff has not established any prior illegal search
es that would
constitute a custom or policy of illegally searching business premises and
that would have put
policymakers on notice of the alleged violations. Accordingly, the Borou
gh cannot be held liable
for a custom or practice exhibiting deliberate indifference to Plainti
ff’s Fourth Amendment
rights.
To establish
§ 1983 liability for failure to train, a plaintiff must show specific training
deficiencies and either (1) a pattern of constitutional violations of which
policy-making officials
can be charged with knowledge, or (2) that training is obviously necessary
to avoid constitutional
violations. City of Canton v. Harris, 489 U.S. 378, 390 (1989). A
municipality may be held
liable for its failure to train employees only where that failure amoun
ts to “deliberate
indifference to the [constitutional] rights of persons with whom the police
come in contact.” Id.,
at 388. There are two means of finding such deliberate indifference
in a failure to train claim:
(1) through a pattern of similar constitutional violations providing a
municipal actor with notice;
and (2) “single-incident” liability as developed doctrinally in the Suprem
e Court’s decisions in
City of Canton
i’.
Harris and Connick v. Thompson.
In general, a plaintiff must establish deliberate indifference in accord
ance with the first
means—a pattern of similar constitutional violations—in order
to establish a failure to train
claim: “A pattern of similar constitutional violations by untrain
ed employees is ‘ordinarily
necessary’ to demonstrate deliberate indifference for purposes
of failure to train.
.
.
.
Without
notice that a course of training is deficient in a particular respec
t, decisionmakers can hardly be
said to have deliberately chosen a training program that will cause
violations of constitutional
rights.” Connick v. Thompson, 131 S. Ct. 1350, 1360 (2011)
(citing Bryan Cnty., 520 U.S. at
409). In the instant matter, as explained above, Plaintiff has
put forth no evidence demonstrating
41
that Fairview was “on actual or constructive notice that a particular
omission in [its] training
program cause[d] city employees to violate citizens’ constitutiona
l rights,” and thus that the
Borough can be found to have been “deliberately indiffe
rent. .by choos[ing] to retain that
.
program.” Connick, 131 S. Ct. at 1360.
In “a narrow range of circumstances,’ a pattern of similar
violations might not be
necessary to show deliberate indifference.
.
.
.
[For] example [if] a city that arms its police force
with firearms and deploys the armed officers into the public
to capture fleeing felons without
training the officers in the constitutional limitation on the
use of deadly force.” Connick, 131 S.
Ct. at 1361 (citing Canton, 489 U.S. at 390 n. 10). In such
circumstances, deliberate indifference
may be established through “single-incident” liability. Id. To
show deliberate indifference in
this narrow range of circumstances, a plaintiff would have
to show that, “in light of the duties
assigned to specific officers or employees[,] the need for more
or different training is so obvious
and the inadequacy so likely to result in the violation
of constitutional rights, that the
policymakers of the city can reasonably be said to have been
deliberately indifferent to the need.
In that event, the failure to provide proper training may
fairly be said to represent a policy for
which the city is responsible, and for which the city
may be held liable if it actually causes
injury.” Canton, 489 U.S. at 390.
The Court finds that Plaintiff fails to allege liability for
the Borough’s failure to train Lt.
Anari since it fails to state facts supporting their deliber
ate indifference based on a “single
incident” liability theory. Plaintiff cites to no facts
detailing specific deficiencies in training
programs provided by the police department. Plain
tiff points out that the Borough had no written
policies as to a supervisor’s role in executing a search
warrant, that Lt. Anari misunderstood the
warrant requirements pursuant to seizing property
for forfeiture, that Lt. Anari’s deposition
42
testimony revealed that it might not have he known what an administrativ
e search warrant was,
and that Lt. Anari could not recall any search and seizure training outside
of the police academy.
(CM/ECF No. 118, p. 2.)
It is insufficient for Plaintiff to allege that an injury could have
been avoided if the
Borough had been provided more or better training. As the Court in Connic
k stated, “[S]howing
merely that additional training would have been helpful in makin
g difficult decisions does not
establish municipal liability. ‘[P]rov[ingj that an injury or accident
could have been avoided if an
[employee] had had better or more training, sufficient to equip him
to avoid the particular injurycausing conduct” will not suffice.”
131 S.Ct. 1363-64 (citing Canton, 489 U.S. at 391)
(bracketed language in original). Given that a municipality’s culpab
ility for a deprivation of
rights “is at its most tenuous where a claim turns on a failure to
train,” this Court finds that,
given the limited factual support for Plaintiffs’ failure to train claim,
it cannot survive a motion
summary judgment. See Gaymon v. Esposito, 2013 U.S. Dist. LEXIS
116159, at *52 (D.N.J.
Aug. 16, 2013)
(finding allegation of failure to train inadequate where “the
nature of the
deficiencies of said program, for example in light of comparators
such as training given by other
municipalities or counties.. .or recognized standards for trainin
g police officers in such areas”);
Connick, 131 S. Ct. 1350, 1359 (citing Oklahoma City, 471 U.S.
at 822-23) (plurality opinion)
(“
[A] ‘policy’ of ‘inadequate training;” is “far more nebulous,
and a good deal further removed
from the constitutional violation, than was the policy in Monel
l.”). For the foregoing reasons,
the Court finds municipal liability inappropriate for Plaintiffs
Fourth Amendment claim.
b. Lt. Anari’s Individual Liability
Defendants assert Lt. Anari should be granted qualified immun
ity from suit on Plaintiffs
illegal search claim because he himself did not break into
any locked or private areas of the
43
premises and did not direct others to do so. Even if he did not himself break
into locked areas of
the Ritz premises, Lt. Anari, as a supervisor of the operation, may be
personally liable under
§
1983 if he participated in violating the Plaintiff’s rights or directe
d others to violate them. A.M.,
372 F.3d at 586; see also Brown v. Grabowski, 922 F.2d
1097, 1120 (3d Cir. 1990) (reversing
denial of summary judgment as to Chief of Police in his individual
capacity where “Plaintiff.
supplied no evidence [that he]
.
.
.
directed or affirmatively participated in any of the actions
claimed to have deprived Evans of her constitutional rights
and, ultimately, her life.”). “A
defendant who supervised a malfeasor but did not actually inflict
the malfeasance is not liable
under
§ 1983 on a theory of respondeat superior unless he personally directed in the
deprivation.” Young v. Beard, 2009 U.S. Dist. LEXIS 87249,
at *10 (M.D. Pa. May 29, 2009)
(citing Robinson v. City ofPittsburgh, 120 F.3d 1286, 1294 (3d
Cir. 1997)); see also Asheroft v.
Iqbal, 556 U.S. 662, 677 (2009) (“[P]urpose rather than knowl
edge is required to impose
liability on the subordinate for unconstitutional discrimination;
the same holds true for an official
charged with violations arising from his or her superintendent
responsibilities.”)
As explained above, while the Court is mindful of the Suprem
e Court’s instruction that
decisions on qualified immunity should be determined as early
as possible in litigation, the Court
finds that issues of fact remain that affect both the determination
of whether the officers broke
into locked and private areas and thereby violated clearly
established law, and whether Lt. Anari
possessed the requisite purpose required to hold him respon
sible for any violations. See, e.g.,
Giles, 571 F.3d at (“Denying summary judgment on
the basis of [a] factual dispute. .is
not. .improper.”). There is also an issue of fuct as to whethe
r Lt. Anari relied on advice from the
Bergen County Prosecutor in conducting the search.
(Def. SUMF ¶ 80; CM/ECF No. 144,
p.
69.) Because questions of material fact remain as
to whether Lt. Anari violated clearly
.
.
44
established Fourth Amendment law and as to whether he can be held liable
for any such
violations, the Court declines to grant qualified immunity to Lt. Anari at this
time.
IV.
CONCLUSION
For the foregoing reasons, Defendants’ motion for summary judgment
is granted as to:
(1) Plaintiffs claims for invasion of privacy and trespass under New
Jersey law: (2) all of
Plaintiffs municipal liability claims; and (3) Plaintiffs illegal seizure
claims.
Defendants’
motion is denied as to: (1) Plaintiffs procedural due process claim
against Lt. Anari; and (2)
Plaintiffs illegal search claims against Lt. Anari stemming from
the January 17, 2008 search
under the Fourth Amendment and New Jersey Civil Rights Law. Plainti
ffs motion for summary
judgment is denied. An appropriate order follows.
Dated:
St
1
of November, 2013.
Is/Jose Linares
JOSE L. L1NARES
U.S. DISTRICT JUDGE
45
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