MAKBOUL v. PORT AUTHORITY OF NEW YORK AND NEW JERSEY et al
Filing
25
OPINION fld. Signed by Judge Katharine S. Hayden on 9/29/11. (sr, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
GEHAD R. MAKBOUL,
Plaintiff,
v.
Civ. Action No. 09-3540 (KSH)
PORT AUTHORITY OF NEW YORK and
NEW JERSEY, a Public Corporation/Joint or
Common Agency, POLICE OFFICER P.
PADILLA, POLICE OFFICER G. NELSON,
PORT AUTHORITY DIRECTOR/POLICE
COMMISSIONER CHIEF OF POLICE,
JOHN DOE, a fictitious name, the real identity
presently unknown,
Defendants.
OPINION
Katharine S. Hayden, U.S.D.J.
Plaintiff, Gehad Makboul, proceeding pro se, brings this action alleging that the Port
Authority, Port Authority supervisory officials, and two Port Authority Police Officers, Grace
Nelson and Peter Padilla, violated his Fourteenth and Fourth Amendment rights when he was
selected for a baggage inspection, asked to leave the train station, and ultimately was arrested for
failing to comply with the officers‟ order that he leave. Makboul asserts § 1983 claims of racial
profiling, false arrest, and malicious prosecution against Officer Padilla; claims of racial
profiling against Officer Nelson; claims of racial profiling, malicious prosecution, and a failure
to adequately train against the Port Authority Director/Police Commissioner and Chief of Police;
and claims of racial profiling, false arrest, malicious prosecution and failure to adequately train
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against Port Authority. After conducting discovery, all defendants now collectively move for
summary judgment, arguing that Makboul‟s claims lack factual basis. For the following reasons,
defendants‟ motion for summary judgment is granted.
I.
Statement of Facts
New Jersey Local Civil Rule 56.1 requires the moving party on a motion for summary
judgment to furnish a statement of material facts not in dispute, and the nonmoving party to
furnish “a responsive statement of material facts, addressing each paragraph of the movant‟s
statement, indicating agreement or disagreement.” L. Civ. R. 56(1)(a). “[A]ny material fact not
disputed shall be deemed undisputed for the purposes of the summary judgment motion.” Id.
Makboul failed to file a 56.1 Statement with his Opposition to this motion.
When as here a pro se litigant fails to comply with Rule 56.1, courts have relaxed the rule
and drawn the facts from available sources, including the pleadings and discovery materials.
Jordan v. Allengroup Wheaton, 218 F. Supp. 2d 643, 646 (D.N.J. 2002), aff’d 95 Fed. App‟x 462
(3d Cir. 2004); Folsom v. Superior Ct., 2008 U.S. Dist. LEXIS 31994 (D.N.J. Apr. 17, 2008)
(using facts drawn from various submissions of pro se litigant). Therefore, the below recitation
of the facts is drawn from defendants‟ 56.1 Statement and supporting documentation. Those
facts that Makboul disputes through his complaint and discovery materials are deemed denied;
all other facts offered by defendants and supported by the evidence are deemed undisputed.
Defendant, Port Authority, is an organization created by an interstate compact between
the states of New Jersey and New York. (Defs‟ Statement of Undisputed Material Facts
(“SUMF”) ¶ 1.)
Port Authority operates the Port Authority Trans-Hudson (“PATH”)
Corporation, which provides the PATH train service between New Jersey and New York. (Id. at
¶¶ 3–4.) At approximately 4:30pm, on June 22, 2008, Makboul, arrived at the Journal Square
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PATH station to ride the train to New York City to begin his 5:00pm shift as a taxi driver. (Id. at
¶ 11; Watson Decl., Ex. B, Makboul Dep. 18:5–18.) Makboul was carrying a small black plastic
shopping bag that contained a box of tissues he had purchased for use in his taxi. (Compl. p. 2, ¶
5; Watson Decl., Ex. B, Makboul Dep. 28:7–22.)
After he got off the escalator and entered the concourse level of the Journal Square
PATH station, Makboul was selected by Officer Padilla for a bag inspection. (Watson Decl., Ex.
B, Makboul Dep. 27:14–24; SUMF ¶ 12.) In the aftermath of the September 11, 2001 terrorist
attacks, the Port Authority Police Department (the “Department”) had begun conducting random
baggage inspections.
(SUMF ¶¶ 6–7.)
The Department‟s baggage inspection procedure
requires officers to randomly select patrons for inspection. (Watson Decl., Ex. A, Port Authority
Police Department Memorandum.)
The Department procedure permits patrons to refuse
inspection, but a refusal results in being denied entry to the PATH train. (Id.)
Following Officer Padilla‟s instruction, Makboul walked over to the table where Officer
Nelson was conducting bag inspections. (SUMF ¶ 13.) The parties dispute whether Makboul
“threw his bag” on the table angrily or simply placed it in front of Officer Nelson. (Id.; Watson
Decl., Ex. B, Makboul Dep. 38:4–9.) After waiting briefly for the bag inspection to begin,
Makboul left the table, without speaking to Officer Nelson, to fill his MetroCard at the ticket
machine. (SUMF ¶14; Watson Decl., Ex. B, Makboul Dep. 30:15–19; 34:7–12.) The ticket
machine was located behind the table where Officer Nelson was completing the bag inspections.
(Watson Decl., Ex. B, Makboul Dep. 34:13–35:9.) When Makboul returned to the table, Officer
Nelson admonished him for leaving his bag and walking away. (SUMF ¶15.) According to
Nelson and Padilla, Makboul “responded by yelling” and “hurling accusations in a combative
manner.” (SUMF ¶ 16; Watson Decl., Ex. E, Answers to Interrogatories.)
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Makboul, in his
deposition, contends that he never yelled at the officers and that he is soft spoken. (Watson Decl.,
Ex. B, Makboul Dep. 37:16–23; 65:2–10.)
The entire incident took place on the concourse level of the Journal Square Station and
impeded the flow of travelers. (SUMF ¶ 20.) Because the officers were concerned about the
effect Makboul‟s behavior had “on the peace and safety of the members of the traveling public,”
they asked him to leave the station. (SUMF ¶ 21.) Makboul refused to leave, and the officers
contend he continued to “speak in a loud voice.” (SUMF ¶¶ 19, 22; Watson Decl., Ex. B,
Makboul Dep. 36:23–37:11; 40:5–19.)
Because Makboul refused to cooperate with their
repeated orders to leave the station, the officers placed him under arrest and filed charges against
him for defiant trespass, obstructing administration of law or other governmental function, and
disorderly conduct. (SUMF ¶ 24.)
When the officers arrested Makboul, they handcuffed him and led him to a holding cell at
the PATH Police Command in the Journal Square station. (Id. at ¶ 25.) Later that evening, he
was transported to the Jersey City Police Department Crime Information Bureau to be
fingerprinted and photographed. (Id. at ¶ 26.) Makboul was shortly thereafter released on his
own recognizance and given a Summons and Complaint to appear in Jersey City Municipal
Court. (Id. at ¶ 27; Watson Decl., Ex. E, Answers to Interrogatories.) No bail was required.
(Watson Decl., Ex. E, Answers to Interrogatories.) The record is undisputed that Officers
Nelson and Padilla did not receive notice of the dates Makboul‟s case was scheduled for trial
from the Port Authority liaison to the municipal court. (Id. at ¶ 28.) After about six months, the
criminal complaints against Makboul were dismissed for lack of prosecution because the officers
failed to appear. (Id. at ¶ 29; Watson Decl., Ex. B, Makboul Dep. 61: 7–10.)
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Makboul subsequently filed this action in New Jersey Superior Court alleging the Port
Authority, Port Authority Director/Police Commissioner, Port Authority Chief of Police, and
Officers Padilla and Nelson violated his constitutional rights during the incident, resulting in
pecuniary harm and emotional distress. Defendants removed the case to this Court.
II.
Standard of Review
Summary judgment may be granted “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.” Fed. R. Civ. P. 56(c). The role of the court is not to “weigh the evidence 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).
A factual dispute is genuine if a
reasonable jury could find in favor of the nonmoving party and it is material only if it bears on an
essential element of the plaintiff„s claim. Fakete v. Aetna, Inc., 308 F.3d 335, 337 (3d Cir.
2002).
When deciding a summary judgment motion, a court must “„view the record and draw
inferences in a light most favorable to the non-moving party.‟” Knopick v. Connelly, 639 F.3d
600, 606 (3d Cir. 2011) (quoting In re IKON Office Solutions, Inc., 277 F.3d 658, 666 (3d Cir.
However, “the nonmoving party may not, in the face of a showing of a lack of a
2002)).
genuine issue, withstand summary judgment by resting on mere allegations or denials in the
pleadings; rather, that party must set forth specific facts showing that there is a genuine issue for
trial. United States v. 717 S. Woodward St., 2 F.3d 529, 533 (3d Cir. 1993) (internal quotations
omitted).
III.
Analysis
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Makboul makes numerous claims that his constitutional rights were violated pursuant to
42 U.S.C. § 1983, which provides in relevant part:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory . . . subjects,
or causes to be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation 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 . . . .
To state a claim for relief under § 1983, Makboul must first allege a violation of a right secured
by the Constitution or laws of the United States and, second, that the alleged violation was
caused by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988);
Piecknick v. Pennsylvania, 36 F.3d 1250, 1255–56 (3d Cir. 1994).
A.
Unlawful Discrimination and Racial Profiling on the part of Officers‟ Padilla and
Nelson
Makboul alleges in Counts I, II, IV, and VIII of his complaint that Officers Padilla and
Nelson violated his Fourteenth Amendment right to Equal Protection by engaging in racial
profiling when selecting him for a random bag search. (Compl. 2, ¶ 7; 3, ¶ 2; 4, ¶ 2.) To state an
Equal Protection claim based on racial profiling, Makboul must demonstrate that the officers‟
actions “(1) had a discriminatory effect and (2) were motivated by a discriminatory purpose.”
Bradley v. United States, 299 F.3d 197, 206 (3d Cir. 2002). Viewing the facts in the light most
favorable to Makboul, his claims lack evidentiary support.
To establish discriminatory effect, there must be evidence that the plaintiff is a member
of a protected class and was treated differently than similarly situated individuals of an
unprotected class. Id. Accepting that Makboul is a member of a protected class due to his
Middle-Eastern descent, the Court has examined the record and determined that the evidence
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Makboul has adduced fails to demonstrate that Officers Padilla and Nelson treated him
differently than similarly situated people of an unprotected class at the PATH station.
In Martin v. Monroe Twp., Judge Cooper dismissed plaintiff‟s claim of racial profiling
because he “had not identified any comparator” to demonstrate he was treated differently from
similarly situated persons.
2011 U.S. Dist. LEXIS 6996 at * 23 (D.N.J. Jan., 25, 2011).
Makboul has also failed to identify any “comparator.” Makboul could not recall any other
persons being selected for bag checks because “there were too many people going around.”
(Watson Decl., Ex. B, Makboul Dep. 30:20–31:2.)
When asked whether he thought he was
selected for a bag search as a result of ethnic or racial profiling, Makboul simply responded, “I
don‟t know.” (Id. 52:20–53:7.) Makboul also admitted that at the time of the incident it had not
occurred to him that he may have been selected as a result of racial or ethnic profiling. (Id.
55:2–17.)
Additionally, the record does not reflect evidence to suggest either officer was motivated
by racial animus. Officer Padilla‟s Investigation Report states that Makboul was “randomly
selected to have his bag inspected” and there is no evidence putting that in dispute. (Watson
Decl., Ex. C, p. 4) The report makes no references to Makboul‟s Middle-Eastern descent. In
fact, in the race box on the Criminal Complaint Report Officer Padilla entered a “W” for
“white.” (Id.)
Absent evidence of both discriminatory effect and discriminatory purpose,
Makboul‟s Equal Protection claims against the officers must fail.
B.
False Arrest Claims Against Officer Padilla
In Counts V, VI, and VIII Makboul alleges that Officer Padilla falsely arrested him and
unlawfully charged him with violating three New Jersey Criminal Statutes. To establish a Fourth
Amendment claim for false arrest, Makboul must demonstrate that Officer Padilla lacked
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probable cause to arrest him. Dowling v. City of Phila., 855 F.2d 136, 141 (3d Cir. 1988);
Pollock v. City of Phila., 403 Fed. App‟x 664, 669 (3d Cir. 2010). “Probable cause exists
whenever reasonably trustworthy information or circumstances within a police officer's
knowledge are sufficient to warrant a person of reasonable caution to conclude that an offense
has been committed by the person being arrested.” United States v. Myers, 308 F.3d 251, 255 (3d
Cir. 2002). At the heart of the inquiry is the reasonableness of the officer‟s actions in light of
the circumstances known at the time of the incident. “[I]n analyzing false arrest claims, a court to
insulate a defendant from liability need find only that „[p]robable cause . . . exist[ed] as to any
offense that could be charged under the circumstances.‟” Johnson v. Knorr, 477 F.3d 75, 85 (3d
Cir. 2007) (quoting Barna v. City of Perth Amboy, 42 F.3d 809, 819 (3d Cir. 1994)). Therefore,
provided Officer Padilla had probable cause to arrest Makboul for any one of the three offenses,
Makboul‟s false arrest claim must fail.
“The validity of an arrest is determined by the law of the state where the arrest occurred.”
Myers, 308 F.3d at 255. Officer Padilla issued a criminal complaint against Makboul for: (1)
defiant trespassing, N.J.S.A. 2C:18–3(b); (2) obstructing administration of law or other
government function, N.J.S.A. 2C:29–1(a); and (3) disorderly conduct, N.J.S.A. 2C:33–2(a).
Pursuant to N.J.S.A. 2C:18–3(b), defiant trespass is defined as follows:
A person commits a petty disorderly persons offense if, knowing
that he is not licensed or privileged to do so, he enters or remains
in ay place as to which notice against trespass is given by: (1)
Actual communication to the actor; or (2) Posting in a manner
prescribed by law or reasonably likely to come to the attention of
intruders; or (3) Fencing or other enclosure manifestly designed to
exclude intruders.
Id. It is undisputed that Officers Padilla and Nelson told Makboul that he was not permitted to
ride the train and had to leave the station. (SUMF ¶ 22; Watson Decl., Ex. B., Makboul Dep.
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36:23–37:11, 40:5–19.) According to the officers, they were concerned about the effect of
Makboul‟s behavior on the peace and safety of those traveling through the station because the
incident unfolded over the course of several minutes on the busy concourse level. (SUMF ¶¶ 20,
21.) Viewing the facts in the light most favorable to Makboul, and accepting as true his assertion
that he did not yell at the officers, it remains undisputed that he did not leave the station when the
officers told him to. Makboul‟s testimony further makes clear that the officers did not arrest him
until after he had been repeatedly told to leave and failed to comply. (Makboul Dep. 37–40.)
The officers‟ repeated directive that Makboul leave the station constituted an “actual
communication” under the defiant trespass statute. State v. Brennan, 344 N.J. Super. 136 (App.
Div. 2001), cert. denied, 171 N.J. 43 (2002) (upholding a conviction for defiant trespass where
the actor failed to comply with officers‟ directive because “[a]lthough defendant had been
lawfully on the premises, when the police officers asked him to leave, that privilege was
revoked. The notice to leave was clearly and repeatedly given.”). Makboul‟s failure to leave the
station after repeatedly being told to do so amounts to disorderly trespass, and Officer Padilla
therefore had probable cause to arrest him.
As indicated, it is unnecessary to examine the other statutes upon which the arrest was
made, because the record easily establishes that Makboul‟s conduct was such that the officers
had probable cause to charge defiant trespass, and thus the false arrest claim fails.
C.
Malicious Prosecution Claims Against Officer Padilla
Counts VI and VIII of Makboul‟s complaint allege that Officer Padilla maliciously
prosecuted him in violation of his Fourth Amendment rights. “To prevail on a malicious
prosecution claim under section 1983, a plaintiff must show that: (1) the defendants initiated a
criminal proceeding; (2) the criminal proceeding ended in the plaintiff's favor; (3) the proceeding
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was initiated without probable cause; (4) the defendants acted maliciously or for a purpose other
than bringing the plaintiff to justice; and (5) the plaintiff suffered deprivation of liberty
consistent with the concept of seizure as a consequence of a legal proceeding.” McKenna v. City
of Phila., 582 F.3d 447, 461 (3d Cir. 2009); White v. Brown, 408 Fed. App‟x 595, 599, (3d Cir.
2010). Under New Jersey law, “[a] malicious prosecution action arising out of a criminal
prosecution requires proof: (1) that the criminal action was instituted by the defendant against the
plaintiff, (2) that it was actuated by malice, (3) that there was an absence of probable cause for
the proceeding, and (4) that it was terminated favorably to the plaintiff.” Campanello v. Port
Authority of New York & New Jersey, 2010 WL 3429571 at *2 (D.N.J. August 27, 2010) (citing
Lind v. Schmid, 67 N.J. 255 (1975)). The plaintiff must establish each element of the cause of
action; if plaintiff fails to prove any one element, the cause of action must fail. Brunson v.
Affinity Federal Credit Union, 199 N.J. 381, 394 (2009).
It is undisputed that Officer Padilla initiated the criminal proceedings against Makboul;
therefore, the first element of the malicious prosecution claim is not at issue. The second
element, favorable termination, is evaluated based upon “whether the termination was or was not
dispositive as to the accused‟s innocence of the crime for which he was charged.” Rubin v.
Nowak, 248 N.J. Super. 80, 82 (App. Div. 1991).
In Rubin, the court found that an
administrative dismissal of charges, prior to presentation to the grand jury, was a favorable
termination of a criminal proceeding for purposes of a malicious prosecution claim. Rubin, 248
N.J. Super. at 84. The Court reasoned that there was “nothing in the record to suggest that the
prosecutor [dismissed the charges] for any reason other than a careful determination of plaintiff's
innocence.” Id. The present case is distinguishable because the charges against Makboul were
dismissed by the Jersey City Municipal Court for lack of prosecution. There is nothing in the
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record to suggest that the charges were dismissed because the court or the prosecutor determined
Makboul was innocent of the crimes. See Hilton v. Whitman, 2008 U.S. Dist. LEXIS 102157, at
*37 (D.N.J. Dec. 15, 2008). The record demonstrates that the charges were dismissed after
Officers Nelson and Padilla failed to appear, and Makboul does not dispute that the officers
failure to attend was due to the fact that they were not made aware of the trial date. Because the
manner in which the charges were dismissed was not dispositive of Makboul‟s innocence, the
favorable termination element of the malicious prosecution claim cannot be satisfied.
Makboul has also failed to adduce evidence that establishes a want of probable cause.
Unlike a false arrest claim, which will fail when probable cause is found with respect to at least
one of the charged offenses, “a defendant initiating criminal proceedings on multiple charges is
not necessarily insulated in a malicious prosecution case merely because the prosecution of one
of the charges was justified.” Knorr, 477 F.3d at 85. When evaluating the probable cause
element of a malicious prosecution claim, courts must analyze each charge separately. Id. (citing
Posr v. Doherty, 944 F.2d 91, 100 (2d Cir. 1991)).
As previously stated, the undisputed facts demonstrate Officer Padilla had probable cause
to arrest Makboul for defiant trespass; therefore, the malicious prosecution claim as to the defiant
trespass offense fails. Officer Padilla also arrested Makboul for obstructing administration of law
or other government function, N.J.S.A. 2C:29–1(a), and disorderly conduct, N.J.S.A. 2C:33–
2(a).
A person commits obstruction “if he purposely obstructs, impairs or perverts the
administration of law or other governmental function or prevents or attempts to prevent a public
servant from lawfully performing an official function by means of flight, intimidation, force,
violence, or physical interference or obstacle, or by means of any independently unlawful act.”
N.J.S.A. 2C:29-1(a)(2011). “Under New Jersey‟s obstruction statute, when a police officer
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commands a person to stop, [ . . . ] that person has no right to take flight or otherwise obstruct the
officer in the performance of his duty.” State v. Williams, 192 N.J. 1, 11 (2007).
“A person is guilty of a petty disorderly persons offense, if with purpose to cause public
inconvenience, annoyance or alarm, or recklessly creating a risk thereof he (1) Engages in
fighting or threatening, or in violent or tumultuous behavior; or (2) Creates a hazardous or
physically dangerous condition by any act which serves no legitimate purpose of the actor.”
N.J.S.A. 2C:33–2(a). Under New Jersey law, disorderly conduct is not limited to incidents that
rise to the level of violence. Tarus v. Borough of Pine Hill, 105 Fed. App‟x 357, 359–60 (3d Cir.
2004). “[W]here an officer's instructions are obviously reasonable, in furtherance of his duties,
an individual toward whom such instructions are directed has a correlative duty to obey them. If
his refusal to respond results in an obstruction of the performance of the officer's proper tasks,
this will constitute a violation of the disorderly persons statute.” Brennan, 344 N.J. Super. at
144. “„Failure to obey a police order to “move on” can be justified only where the circumstances
show conclusively that the order was purely arbitrary and was not calculated in any way to
promote the public order.‟” Id. (quoting State v. Taylor, 38 N.J. Super. 6, 30 (App. Div. 1955)).
In this case, defendants contend that Makboul‟s refusal to leave the station “after repeated
warnings to do so, interfered with the efforts of officers Padilla and Nelson to conduct random
baggage inspections at the station.” (Defs‟ Br. p. 14.) Accepting as true Makboul‟s assertion
that “yelling is not [his] language,” it is undisputed that his “refusal to leave the area took place
over the course of several minutes” and occurred on the concourse level of the station and thus
“impeded the flow of travelers.” (Watson Decl., Ex E, Answers to Interrogatories; Defs‟ Br. p.
3.)
By failing to respond to the officers‟ reasonable order to leave, Makboul effectively
obstructed the performance of the officers‟ duties, and thereby also violated the disorderly
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persons statute. See Brennan, 344 N.J. Super. at 144. Makboul has not directed the Court to any
evidence in the record to support a finding that the officers‟ request that he leave the station was
arbitrary and “not calculated in any way to promote the public order.” Because the undisputed
facts suggest the officers acted reasonably under the circumstances, probable cause existed to
arrest Makboul on the obstruction and disorderly conduct charges.
Makboul has also failed to demonstrate that Officer Padilla acted with malice in arresting
him and charging him with the three offenses. “Malice . . . is defined as the „intentional doing
of a wrongful act without just cause or excuse.‟” LoBiondo v. Schwartz, 199 N.J. 62, 93–94
(N.J. 2009) (citing Jobes v. Evangelista, 369 N.J. Super. 384, 398 (App. Div. 2004)). “Actual
malice in the context of malicious prosecution is defined as either ill will in the sense of spite,
lack of belief by the actor himself in the propriety of the prosecution, or its use for an extraneous
improper purpose.” Morales v. Busbee, 972 F. Supp. 254, 261 (D.N.J. 1997). Where a plaintiff
lacks direct proof that a defendant intentionally instituted an action against plaintiff without
merit, “malice may be inferred from want of probable cause.” Brunson, 119 N.J. 381, 395.
However, a plaintiff cannot merely point to a lack of probable cause to prove malice, and “it is
not unreasonable to require that plaintiff, on a defendant's motion for summary judgment,
produce at least some extrinsic evidence of malice, rather than relying only upon inference.” Id.
(citation omitted); see also Pittman v. Metuchen Police Dept., 2010 WL 4025692, at *8 (D.N.J.
Oct. 13, 2010).
In this case, Makboul has failed to point to any extrinsic evidence in the record to support
an inference of malice, or that Officer Padilla acted out of spite, ill will, or other improper motive
in instituting the prosecution.
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Because Makboul has failed to present evidence to substantiate the favorable termination,
lack of probable cause, and malice elements of the malicious prosecution claim, it is dismissed.
D.
§ 1983 Claims Against the Port Authority, Port Authority Director/Police
Commissioner, and Chief of Police
In addition to his claims against the individual officers, in Counts I, III, V, VII, and VIII,
Makboul alleges that Port Authority and various supervisory officials violated his rights through
the alleged unconstitutional actions of Officers Nelson and Padilla. Under § 1983, government
entities cannot be held liable solely for the actions of agents or employees on a respondeat
superior theory. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948 (2009); Monell v. Dept. of Social
Servs., 436 U.S. 658, 694 (1978).
However, a government entity may be liable “when [the]
execution of a government‟s policy or custom, whether made by its lawmakers or by those
whose edicts or acts may fairly be said to represent official policy, inflicts the injury.” Monell,
436 U.S. at 694. To be successful “a plaintiff must „identify conduct properly attributable to the
[government entity]‟ and „demonstrate that, through its deliberate conduct, the [entity] was the
„moving force‟ behind the injury alleged.‟” Knight v. Carmike Cinemas, 2011 U.S. Dist. LEXIS
93460, at *31 (D. Del. Aug. 22, 2011) (quoting Bd. of Cnty. Comm'rs v. Brown, 520 U.S. 397,
404 (1997)). Makboul must therefore allege both that Port Authority and its supervisory officials
were culpable and that there is a direct causal link between their actions and the alleged
deprivation of constitutional rights. Brown, 520 U.S. at 404.
In Counts I, III and V Makboul‟s complaint does nothing more than demand judgment
against Port Authority and supervisory officials “as result of the unlawful conduct of its agents,
servants, and employees.” Makboul has failed to allege any policy1 or custom on the part of Port
1
With respect to the racial profiling claims, Port Authority has proffered evidence, undisputed by Makboul, that it
has an explicit policy prohibiting the use of racial profiling when conducting random baggage inspections. (Watson
Decl., Ex. A, Port Authority Police Department Memorandum.)
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Authority or its supervisory officials that has directly resulted in a violation of his constitutional
rights. Moreover, because Makboul has failed to establish an underlying violation of his
constitutional rights by Officers Nelson and Padilla with respect to his racial profiling, false
arrest, and malicious prosecution claims, he has no basis upon which to premise his § 1983
claims against Port Authority and its officials. See Holman v. City of York, 564 F.3d 225, 23
n.12 (3d Cir. 2009) (noting that plaintiff‟s “municipal liability claims would have inevitably
failed at the summary judgment stage, since we conclude that no constitutional deprivation
occurred.”); see also Knight v. Carmike Cinemas, 2011 U.S. Dist. LEXIS 93460, at *30–31 (D.
Del. Aug. 22, 2011) (“Plaintiff has not alleged an underlying constitutional violation, much less
deliberate conduct by the City of Dover or any causal link. Therefore, Plaintiff has not stated a
Monell claim against the City.”).
Count VII of the complaint alleges that Port Authority and supervising officials failed in
their duty “in training, supervising, overseeing and instilling in the officers the respect of
citizen‟s rights.” (Compl. 7, ¶ 8.)
Government entities and supervisory officials may be held
liable for the constitutional violations of their employees under § 1983 where plaintiff
demonstrates a failure to properly supervise or train employees that “amounts to deliberate
indifference to the rights of the persons with whom the [officials] come into contact.” Cty. of
Canton v. Harris, 489 U.S. 378, 388 (1989).
The Supreme Court has made clear that
“„deliberate indifference‟ is a stringent standard of fault, requiring proof that a municipal actor
disregarded a known or obvious consequence of his action.” Brown, 520 U.S. at 410.
Makboul does not allege specific facts, let alone support them with proofs, respecting his
claim that the officers were improperly trained, and he cannot meet the stringent “deliberate
indifference” standard.
More importantly, as discussed above, Makboul has failed to
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demonstrate the officers violated his constitutional rights. Because there is no underlying
constitutional violation upon which to premise § 1983 liability for failure to train, Makboul‟s
claims in count VII must fail. See Holman, 564 F.3d at 23 n.12.
E.
Emotional Distress Claims Against all Defendants
In Count IX, as well is II, III and IV Makboul seeks damages for emotional distress
caused by the officers‟ alleged violation of his constitutional rights. A § 1983 “plaintiff may
recover not only out-of-pocket expenses, but also compensation for emotional and mental
distress caused by a constitutional violation.” Pica v. Sarno, 907 F. Supp. 795, 803 (D.N.J.
1995). (citing Carey v. Piphus, 435 U.S. 247, 255–56 (1978)) (emphasis added). As discussed
above, Makboul has failed to establish that the defendants violated his constitutional rights.
Therefore, he cannot collect damages for emotional distress pursuant to § 1983.
IV.
Conclusion
For the reasons stated above, the Court grants defendants‟ motion for summary judgment
[D.E. 22] as to all claims in plaintiff‟s complaint. An appropriate order will be entered.
September 29, 2011
/s/ Katharine S. Hayden
Katharine S. Hayden, U.S.D.J.
16
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