BROOKMAN et al v. TOWNSHIP OF HILLSIDE et al
OPINION. Signed by Judge William J. Martini on 10/24/17. (gh, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civ. No. 2:09-cv-2178 (WJM)
BARBARA BROOKMAN, et al.,
TOWNSHIP OF HILLSIDE, et al.,
WILLIAM J. MARTINI, U.S.D.J.:
This civil rights action arose from the May 2007 arrest of Barbara Brookman and
her two sons, Howard and Jeffrey, for elder neglect. Because Barbara’s claims for false
arrest and malicious prosecution require that criminal proceedings against her are decided
in her favor, the Court previously stayed the entire action in December 2009. The Court’s
August 2012 continuance of the stay directed Plaintiffs to notify the Court when Barbara’s
criminal appeal was decided. On August 14, 2017, after being notified by Defendants that
Barbara’s appeal was denied in July 2014, the Court dismissed the entire action with
prejudice. The action now comes before the Court on Plaintiffs’ motion for reconsideration.
See Fed. R. Civ. P. 4(a)(4). Because Plaintiffs are pro se and did not have an opportunity
to object to dismissal with prejudice, the motion for reconsideration is GRANTED in part.
According to the complaint, Plaintiffs were arrested without probable cause in
Barbara’s home by the Hillside Police Department on May 9, 2007. Barbara was charged
and ultimately convicted of elder neglect. Howard was arrested for attempting to physically
interfere with the arrest of his mother. He entered a pre-trial intervention program. Charges
against Jeffrey for elder neglect were filed but later dismissed.
All three Plaintiffs bring claims for false arrest and malicious prosecution. Barbara
alleges that the officer who drove her home from the police station used excessive force by
subjecting her to a “Freddie-Gray style ‘rough ride.’” In addition, Plaintiffs invoke a New
Jersey discrimination statute and claim that officers made anti-Semitic comments and
ripped Mezuzahs1 from the doorposts of Barbara’s home. Compl. ¶ 6.
In its initial assessment of the action, the Court noted that Plaintiffs claims for false
arrest and malicious prosecution could succeed only if the criminal prosecution against
them failed. This case was therefore stayed on December 4, 2009, pending the outcome of
Barbara’s criminal action. The stay applied to all claims—even those which did not depend
on the outcome of Barbara’s trial—because of the “substantial factual overlap between
Barbara’s criminal conviction and Howard, Barbara, and Jeffrey’s civil claims.” Order of
Aug. 14, 2012, ¶ 13. Barbara was convicted of elder neglect and resisting arrest in February
2012. The Court nonetheless granted a continuance of the stay pending the outcome of
Barbara’s appeal of her conviction. The Order directed Plaintiffs to notify the Court within
thirty days of the resolution of Barbara’s appeal.
The case remained inactive until August 9, 2017, when counsel for Defendants
requested by an electronically-filed letter that the Court dismiss the action with prejudice.
The letter explained, “[w]e have learned that on July 14, 2014, over three years ago,
Barbara Brookman’s appeal was dismissed.” ECF No. 36. In short, Plaintiffs failed to
comply with the terms of the August 14, 2012, Order requiring them to notify the Court
when Barbara’s appeal was resolved. The Court dismissed the entire action with prejudice
by Order of August 15, 2017. On September 12, 2017, Plaintiffs filed the instant motion
On August 9, 2017, Defendants filed a letter advising the Court that Barbara
Brookman’s criminal appeal had been dismissed on July 14, 2014, and requesting that the
entire action be dismissed with prejudice for failure to prosecute. The Court dismissed the
complaint in its entirety with prejudice on August 15, 2017. 3 Plaintiffs move for
reconsideration on the following grounds. See Fed. R. Civ. P. 4(a)(4). Although Barbara’s
claims for false arrest and malicious prosecution were appropriately dismissed with
prejudice, the Court now vacates the dismissal for the claims that did not depend on the
resolution of criminal proceedings against Barbara.
Mezuzahs are small cases containing religious scripture that are traditionally fastened to
doorframes of Jewish homes.
Defendants did not file an opposition to the motion for reconsideration. On September 15,
2017, Plaintiffs filed a notice of appeal as to the August 15 Order. On September 26, 2017, the
Third Circuit ordered that the appeal be stayed pending the resolution of Plaintiffs’ motion for
Rule 41(b) provides that a court may dismiss an action for failure to prosecute or to comply
with a court order. Fed R. Civ. P. 41(b).
A. Barbara’s Claims for False Arrest and Malicious Prosecution
This action was stayed in 2009 because the claims for false arrest and malicious
prosecution require termination of criminal proceedings in favor of the accused. Heck v.
Humphrey, 512 U.S. 477, 485 (1994). Plaintiffs argue that Barbara’s appeal has not been
disposed of within the meaning of the Court’s August 14, 2012 Order, because following
the denial of her direct appeal Barbara filed a post-conviction challenge that is still pending
in state court. Plaintiffs’ interpretation of the Order is misguided. By ordering that Plaintiffs
notify the Court “within thirty (30) days of the resolution of Barbara’s appeal of her
criminal conviction,” the Court was specifically referring to Barbara’s then-pending direct
appeal. The Court plainly did not intend to stay prosecution of the federal action until
Plaintiffs exhausted all conceivable state court channels for post-conviction relief. By
failing to notify the Court within 30 days of the Superior Court’s July 10, 2014, Order
dismissing the appeal of Barbara’s criminal conviction, Plaintiffs defied this Court’s
August 14, 2012, Order. Because Barbara’s conviction stands, her claims for false arrest
and malicious prosecution fail as a matter of law. By the terms of the August 14, 2012,
Order, the stay has been lifted and Barbara’s claims for false arrest and malicious
prosecution were appropriately dismissed with prejudice. There is no reason at this time to
disturb that holding.
B. All Other Claims
Plaintiffs have a more compelling argument with respect to those claims unaffected
by the resolution of criminal proceedings against Barbara. Plaintiffs explain that, as pro se
litigants, they lack access to the Court’s electronic filing system and thus were not notified
that the Court was considering dismissal with prejudice of the entire complaint. Plaintiffs
insist that they would have opposed dismissal had they been given the opportunity.
Although the Court has broad discretion to dismiss claims that are not diligently
prosecuted, parties are usually given notice that a court is preparing to dismiss an action
with prejudice. See Briscoe v. Klaus, 538 F.3d 252, 258-59 (3d Cir. 2008). Noble v. U.S.
Postal Service, 71 Fed. Appx. 69 (D.C. Cir. 2003). At the time of the August 15, 2017
Order, the Court was unaware that Plaintiffs had not been notified of Defendants’ motion.
Plaintiffs are permitted to prosecute the remaining claims, which include Barbara’s
excessive force claim, Howard’s claim for false arrest and hindering prosecution, Jeffrey’s
claim for false arrest, and Plaintiffs’ state discrimination claims.4
For the foregoing reasons, Plaintiffs’ motion for reconsideration of the Court’s
dismissal with prejudice of the complaint is GRANTED in part. The motion is DENIED
with respect to Barbara Brookman’s claims for malicious prosecution and false arrest. The
Plaintiffs, of course, must show that criminal proceedings against Howard and Jeffrey were
resolved in their favor before bringing claims for false arrest or malicious prosecution.
motion is GRANTED with respect to all other claims, which are reinstated pursuant to the
order accompanying this opinion.
/s/ William J. Martini
WILLIAM J. MARTINI, U.S.D.J.
October 24, 2017
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