BAKER v. CITY OF ELIZABETH et al

Filing 179

OPINION. Signed by Judge John Michael Vazquez on 9/22/17. (sr, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

JAMES BAKER,
Civil Action No. 11-360 (JMV)
Plaint
OPINION

v.
CITY OF ELIZABETH, et at.,
Defendants.

John Michael Vazguez. U.S.D.J.
In this case, Plaintiff accuses four former members of the Elizabeth Police Department of
various violations of his rights in two separate incidents. Specifically, Plaintiff alleges violations
of his constitutional rights pursuant to 42 U.S.C. §1983. This matter comes before the Court on
motions for summary judgment filed by Defendant Christopher Flatley, D.E. 163, Defendant
James Diorio, D.E. 165, Defendant Paul Pastemak, D.E. 167, and Defendant Kevin McDonough,
D.E. 170. Plaintiff James Baker filed a brief in opposition to Defendants’ motions, D.E. 171, to
which all four Defendants filed briefs in reply,’ D.E. 172, 173, 174, 175. The Court reviewed

‘The parties’ briefs are as follows: (1) Plaintiffs brief in opposition to Defendants’ motions for
summary judgment (“Plfs Opp. Brief), D.E. 171; (2) Defendant Flatley’s brief in support of his
motion for summary judgment (“Def. Flatley Br.”), D.E. 163; (3) Defendant Diorio’s brief in
support of his motion for summary judgment (“Def. Diorio Br.”), D.E. 165; (4) Defendant
Pastemak’s brief in support of his motion for summary judgment (“Def. Pastemak Br.”), D.E.
167; (5) Defendant McDonough’s brief in support of his motion for summary judgment (“Def.
McDonough Br.”), D.E. 170; (6) Defendant Pastemak’s reply brief in support of his motion for
summary judgment (“Def. Pastemak’s reply”), D.E. 172; (7) Defendant McDonough’s reply
brief in support of his motion for summary judgment (“Def. McDonough’s reply”), D.E. 173; (8)
Defendant Flatley’s reply brief in support of his motion for summary judgment (“Def Flatley’s
reply”), D.E. 174; and (9) Defendant Diorio’s reply brief in support of his motion for summary
judgment (“Def. Diorio’s reply”), D.E. 175.

submissions2 made in support of the motions and considered the motions without oral argument
pursuant to Fed. R. Civ. P. 78(b) and L. Civ. R. 78.1(b). for the reasons that follow, Defendants’
motions are GRANTED.
I.

FACTS AND PROCEDURAL HISTORY
A. Factual Background3
i. First Arrest and Vehicle Impounding

On October 2, 2009, Plaintiff James Baker was arrested in Elizabeth, New Jersey,
following a vehicle pursuit by police. Defendant Flatley’s Statement of Undisputed Material Facts
at ¶ 1 (“Def. Flatley’s $OMF”). The Plaintiff was charged with two crimes and issued a summons.
Defendant Pasternak’s Statement of Undisputed Material F acts at ¶ 4 (“Def. Pastemak’s SOMF”).
Plaintiffs vehicle, a Cadillac Escalade, was impounded and towed at the time of Plaintiffs arrest.
Def. Pastemak’s $OMf at ¶5.
There is no dispute that Plaintiffs vehicle was impounded based on his October 2, 2009
arrest and that Plaintiff ultimately retrieved the Escalade sometime later. Defendant Pastemak
was the Elizabeth Police Department Detective assigned to the investigation on October 5, 2009.
Def. Pastemak’s $OMF at ¶ 6. However, Plaintiff alleges that Defendant Pastemak was in
control of Plaintiffs vehicle at Highway Towing from October 2, 2009 until January 14, 2010 in

2

Plaintiff submitted a letter brief in response to Defendant Diorio ‘5 reply, D .E. 176, and a letter
brief in response to Defendant Pasternak’s reply. However, Local Civil Rule 7.1(d)(6) specifies
that “[n]o sur-replies are permitted without permission of the Judge or Magistrate Judge to whom
the case is assigned.” Plaintiff has not sought nor received leave to file a sur-reply. In addition,
Plaintiffs sur-replies are substantively deficient as they do not address any new argument raised
in the reply submissions. Therefore this Court will not consider these sur-replies. See, e.g.,
Roofers’Pension Fund v. Perrigo Co., PLC, 2017 WL 3579208, at *3 (D.N.J. Aug. 18, 2017).
The facts herein come from the evidence in the record.

2

order to obtain $3,011 from Plaintiff and to illegally wiretap Plaintiffs vehicle or have someone
else illegally wiretap Plaintiffs vehicle. Plfs Second Amended Complaint at ¶ 5 (“Plfs SAC”);
Plfs

Opp Br. Material Facts That Are In Dispute at ¶ 1-3.

In his deposition, Plaintiff claimed

that he observed “several wires wrapped around green tape, white wires wrapped around green
tape” underneath the glove box. Def. Pastemak Br., Ex. D (Baker Feb. 16, 2016 Deposition).
Plaintiff also described that he saw “little mikes4 [sic] in my speakers. I seen [sic] some other
piece up under my car, which I had pictures of, which my lawyer had pictures of Up under the
car, like I had some wires running through my back lights, and the panels of my doors was loose
with the cloth hanging out.” Id. Additionally, Plaintiff described that when he received his
Escalade, “it wouldn’t start up at first and the interior lights would not come on. Then when I
turned the car off, I could hear ticking up in the dash, just ticking, tick tick tick. It wouldn’t
stop.” Id. Plaintiff further stated in his deposition testimony that he did not have copies of these
pictures, only that he had been attempting to obtain them from his previous trial counsel. Id.
Plaintiff also stated that he never reported what he observed in his vehicle to any law
enforcement. Id.
ii. Second Arrest

The bulk of Plaintiffs allegations stem from a separate set of events that occurred on
November 12, 2009. Defendant Diorio, Defendant, Flatley, and Defendant McDonough were on
duty for the Elizabeth Police Department.

Defendant McDonough claims that he received

information from a confidential informant that Plaintiff was coming to Elizabeth to deliver heroin.
Def Flatley’s $OMF at

‘

¶ 4. Plaintiff disputes that Defendant McDonough received such a call.5

The Court assumes that “mikes” refers to microphones.

In a section of his Ph’s Opp. Br. labeled “Material Facts That Are In Dispute” Plaintiff states
that “[i]t is a matter of dispute as to whether McDonough received a phone call from an
3

The three officers then waited at Plaintiffs residence until he arrived. Def. Flatley’s SOMf at

¶

5. Defendant Flatley, Defedant Diorio, and Defendant McDonough followed Plaintiffs vehicle,

a Lexus, in their police vehicle. Defendant McDonough was driving the vehicle, while Defendant
Diorio and Defendant Flatley were passengers. Def F latley’s SOMF at ¶ 8-10; DefDiorio SOMF
at ¶ 11. Plaintiff does not dispute these facts. Plaintiff states that he picked up two individuals to
bring them to the hospital and it is at this point that Plaintiff claims he and his two passengers first
noticed and recognized a black SUV vehicle following them. P1? s SAC at

¶ 8. Plaintiff then

dropped off the two passengers at a hospital on Broad Street in Elizabeth. P1? s SAC at ¶ 8.
The above is largely not in dispute.

However, it is at this point that Plaintiff and

Defendants’ accounts begin to differ significantly. Plaintiff claims that he pulled over to the side
of East Broad Street and exited his vehicle, Pl?s SAC, at

¶ 8, while he was on the way to get

breakfast before his Social Security appointment, P1? s Opp. Br. at 10. Plaintiff alleges that afler
exiting his vehicle, the unmarked SUV that was following him “came at plaintiff full speed as if
to hit him which caused plaintiff to jump back into his vehicle and pull off of fear of being
attacked.” P1? s SAC at

¶ 8. Plaintiff claims that his Lexus was then rammed by Defendants’

vehicle without any reason, and Defendants attempted to run Plaintiff off of the road. P1? s SAC
at

¶ 8. Plaintiff further alleges that Defendants had not, at this point, identified themselves as

police officers or used any emergency lights. Pl?s SAC at ¶ 8. Plaintiff continues that Defendants
informant that [Plaintiff] was going to meet several people to deliver drugs to on [sic] Broad
Street in Elizabeth, N.J.
At no time was [Plaintiff] meeting anyone for such drug sell [sic].”
P1? s Opp. Br. Statement of Material Facts that are in Dispute at ¶ 4. Plaintiff further claims that
Defendants “fabricated a story of receiving a call from an informant who’s [sic] reliability has
not been established about a drug sell that was never corroborated, and this lady that don’t exist
who was mysteriously at [Plaintiffs] car door when officers were at his door and did not arrest
her, but then again, she was not at his car door and neither were they.” Pl?s Opp. Br. at 7.
However, other than his opinion, Plaintiff has not provided any evidence that support his claim
that Defendant McDonough did not receive a tip from an informant.
.

.

.

4

continued to ram into his Lexus as he traveled through residential areas and onto the highway
during rush hour. Id. at ¶ 9. Plaintiff claims that once he was on the highway, he noticed flashing
emergency lights and began to pull his vehicle over to the side of the road. P1? s

Opp. Br. at 8.

It

is at this point that Plaintiff claims Defendants ran Plaintiff off of the road in Linden, New Jersey,
resulting in Plaintiff crashing into two parked cards and a pole.6 P1? s SAC at

¶ 9. Plaintiff

indicates that the crash totaled the Lexus and that he also sustained injuries to his leg, neck, and
back. Id. atJ 10.
Defendants have a different version. Defendants claim that Plaintiff pulled over to the side
of East Broad Street next to a woman standing on the sidewalk. Def. Flately’s SOMF at

¶ 6.

Defendants assert that Defendant Diorio and Defendant Flatley then exited their vehicle and
observed Plaintiff attempt a drug transaction with the woman on the sidewalk.7 Id at

¶ 7.

Defendants then claim that the Defendants instructed Plaintiff to open his car door, but that
Plaintiff disregarded these instructions and drove away at a high rate of speed.

Id at

¶ 8.

Defendants state that Plaintiff ignored the Defendants’ emergency lights and sirens and continued
to flee at a high rate of speed. Id at ¶ 10. Defendants claim that they followed Defendant in their
vehicle and that Defendant lost control of his Lexus and crashed into a utility pole. Id at ¶ 10-1 1.
Plaintiff was then arrested and later plead guilty to second degree eluding in violation of
N.J.S.A.

§ 2C:29—2(b). Id; Def. Flatley’s Br., Ex. B (transcript of Plaintiffs plea). Plaintiffs

conviction has not been overturned or otherwise vacated.

Plaintiff described in his deposition that “I see a police car with sirens. That’s when I slowed
down. When I slowed down, the black truck came and hit me. When he hit me in the back, I hit
two parked cars on the curb and hit a telephone pole.” Def. Pasternak Br., Ex. D (Baker Feb. 16,
2016 Deposition).
6

Plaintiff claims that that ‘[a]t no time did defendants approach [Plaintiffi’s car until he started
to drive away.” P1? s Opp. Br. Statement of Material Facts in Dispute at ¶ 20.

5

B. Procedural History

On January 20, 2011, Plaintiff filed his initial Complaint. D.E. 1. On February 2, 2011
Plaintiff filed an Amended Complaint. D.E. 2, 3. On July 27, 2011 Plaintiffs request to proceed
in forma pauperis was denied and the Amended Complaint was administratively terminated for

failure to pay the required filing fee. D.E. 9. On August 19, 2011, Plaintiff requested an extension
to pay the filing fee, D.E. 11, and then paid the fee on February 13, 2013, D.E. 14. On March 1,
2013 Plaintiff filed another Amended Complaint. D.E. 15. On September 20, 2013 all but four
claims were dismissed. D.E. 25.
On August 22, 2014, Plaintiff again filed another Amended Complaint. D.E. 36. This
Amended Complaint included previously dismissed claims. See D.E. 25 (dismissing some claims
with prejudice). On September 3, 2014, then-Magistrate Judge Madeline C. Arleo ordered Plaintiff
to refile his Amended Complaint without the dismissed claims. D.E. 37.
On September 26, 2014, Plaintiff refiled a Second Amended Complaint (“Plfs SAC”).8
D.E. 39.

On February 6, 2015, Defendants moved to dismiss Plaintiffs Second Amended

Complaint. D.E. 54. On July 8, 2015 Judge Wigenton granted Defendants’ motion in part, but
denied Defendants’ motion to dismiss some claims. D.E. 60, 61. Remaining are Plaintiffs claims
for illegal search against Defendant Pastemak; for excessive force against Defendant Diorio,
Defendant Flatley, and Defendant McDonough; and for harassing, intimidating, and planting

8

This Opinion will refer to this complaint, D.E. 36, as Plaintiffs Second Amended Complaint
(“Plfs SAC”) because Judge Wigenton, who was previously assigned to this action, and
Defendants refer to it as Plaintiffs Second Amended Complaint. However, as noted, this was
actually Plaintiffs Third Amended Complaint.

6

evidence on a witness by Defendant McDonough.9 As noted, currently pending before the Court
are Defendants’ motions for summary judgment.
II.

SUMMARY JUDGMENT STANDARD

A moving party is entitled to summary judgment where “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
fed. R. Civ. P. 56(a). A fact in dispute is material when it “might affect the outcome of the suit
under the governing law” and is genuine “if the evidence is such that a reasonable jury could return
a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Disputes over irrelevant or unnecessary facts will not preclude granting a motion for summary
judgment. Id. “In considering a motion for summary judgment, a district court may not make
credibility determinations or engage in any weighing of the evidence; instead, the nonmoving
party’s evidence ‘is to be believed and all justifiable inferences are to be drawn in his favor.”
Marino v. Indtts. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at
255)). A court’s role in deciding a motion for summary judgment is not to evaluate the evidence

and decide the truth of the matter but rather “to determine whether there is a genuine issue for
trial.” Anderson, 477 U.S. at 249.
A party moving for summary judgment has the initial burden of showing the basis for its
motion and must demonstrate that there is an absence of a genuine issue of material fact. Celotex
Coip. v. Catrett, 477 U.S. 317, 323 (1986). After the moving party adequately supports its motion,

As Judge Wigenton noted in her July 8, 2015 opinion, “[t]he status of [the harassment and
intimidation] claim as to Defendant McDonough [was] not entirely clear” because this claim
against Defendant McDonough was never formally dismissed. D.E. 52, 53. Defendant
McDonough’s brief in support of his motion for summary judgment does address this claim
briefly in its Preliminary Statement. D.E. 170 at 1-2. However, Plaintiff does not include any
mention of this claim in P1? s Opp. Br.

7

the burden shifts to the nonmoving party to “go beyond the pleadings and by her own affidavits,
or by the depositions, answers to interrogatories, and admissions on file, designate specific facts
showing that there is a genuine issue for trial.” Id. at 324 (internal quotation marks omitted). To
withstand a properly supported motion for summary judgment, the nonmoving party must identify
specific facts and affirmative evidence that contradict the moving party. Anderson, 477 U.S. at
250. “[I]f the non-movant’s evidence is merely ‘colorable’ or is ‘not significantly probative,’ the
court may grant summary judgment.” Messa v. Omaha Prop. & Cas. Ins. Co., 122 F. Supp. 2d
523, 52$ (D.N.J. 2000) (quoting Anderson, 477 U.S. at 249-50)).

Ultimately, there is “no genuine issue as to any material fact” if a party “fails to make a
showing sufficient to establish the existence of an element essential to that party’s case.” Celotex
Corp., 477 U.S. at 322. “If reasonable minds could differ as to the import of the evidence,”
however, summary judgment is not appropriate. See Anderson, 477 U.S. at 250-5 1.
III.

ANALYSIS

Plaintiff brings his claims pursuant to 42 U.S.C

§ 1983. Section 1983 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[.]
.

.

Section 1983 does not provide substantive rights; rather, Section 1983 provides a vehicle
for vindicating violations of other federal rights. Graham v. Connor, 490 U.S. 386, 393-94 (1989).
In order to state a valid claim for relief under Section 1983, a plaintiff must first allege a violation
of a right secured by the Constitution or laws of the United States and, second, a plaintiff must

8

allege that the violation was caused or committed by a person acting under color of state law. West
v. Atkins, 487 U.S. 42, 48 (1988).
A. Illegal Wiretap (Count I against Defendant Pasternak)

Count I claims an illegal wiretap, in violation of the Fourth Amendment, against Defendant
Pastemak pursuant to Section 1983. Defendant Pastemak first argues that “the record is absolutely
devoid of anything connecting defendant Pastemak” to the alleged wiretapping of Plaintiffs
vehicle. Def. Pasternak Br. at 8. Defendant Pastemak also argues that Plaintiff has not presented
any evidence that supports his claim that Plaintiffs car was in fact wiretapped. Def. Pastemak Br.
at 8. Plaintiff counters that Defendant Pastemak held Plaintiffs vehicle for three months in order
for the wiretap to be installed. P1? s Reply Br. at 3. Plaintiff asserts that Defendant Pastemak “did
make attempts to monitor [Plaintiffs] conversations and movement in the course of his everyday
life” in violation of the Fourth Amendment. Plfs Reply Br. at 4.
The Fourth Amendment to the United States Constitution provides “[t]he 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 Warrant 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. A plaintiff states a claim for relief under Section 1983 and
the Fourth Amendment where he adequately pleads that a state actor performed a search of his
person, home, or possessions without a warrant or probable cause. See Castro v. Perth Amboy
Pol. Dep’t, 2014 WL 2299301, at *2 (D.N.J. Jan. 21, 2014) (citing Reedy v. Evanson, 615 F.3d
197 (3d Cir. 2010)).
“It is beyond dispute that a vehicle is an ‘effect’ as that term is used in the Amendment.”
United States v. Jones, 565 U.S. 400, 404 (2012) (citing United States v. Chadwick, 433 U.S. 1,

9

12 (1977). In addition, physical intrusions into a vehicle by the Government may constitute a
“search” under the fourth Amendment. Jones, 565 U.S. at 404-05 (finding that “[t]he government
physically occupied private property for the purpose of obtaining information [when it placed a
GPS tracking-device on a person’s car and that the Court had] no doubt that such a physical
intrusion would have been considered a “search” within the meaning of the Fourth Amendment
when it was adopted.”).
However, the Fourth Amendment does not protect against all “searches,” rather the fourth
Amendment protects against unreasonable searches. Vernonia Sch. Dist. 47J v. Acton, 515 U.S.

646, 652 (1995). “[S]earches conducted outside the judicial process, without prior approval by a
judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few
specifically established and well-delineated exceptions.”

10

Katz v. United States, 389 U.S. 347,

357 (1967). Judicial approval of warrants require probable cause. See Skinner v. Ry. Labor Execs.’
Ass’n, 489 U.S. 602 (1989) (“Except in certain well-defined circumstances, a search or seizure in
such a case is not reasonable unless it is accomplished pursuant to a judicial warrant issued upon
probable cause.”). Title III also requires that any government official obtain judicial authorization
before conducting and intercepting “wire, oral, and electronic” communications.

18 U.S.C.

Section 2511. A judge may issue a warrant authorizing a wiretap, upon a showing of “probable

10

The established exceptions to the Fourth Amendment’s warrant requirement include searches
taken after gaining consent, Schneckloth v. Bttstamonte, 412, U.S. 218 (1973), searches incident
to a lawful arrest, Arizona v. Gant, 395 U.S. 752 (1969), inventory searches. Maiyland v. King,
133 S.Ct. 1958 (2013), searches pursuant to the “plain view” doctrine, Horton v. Catfornia, 496
U.S. 128 (1990), and searches under exigent circumstances, Mincey v. Arizona, 437 U.S. 385
(1978). An additional exception is commonly called the “automobile exception,” under which a
car “may be stopped and searched on facts giving rise to probable cause that the vehicle contains
contraband, without the protection afforded by a magistrate’s prior evaluation of those facts.
United States v. Ross, 456 U.S. 798, 806 n.$ (1982). None of these exceptions are relevant here.

10

cause for belief that an individual is committing, has committed, or is about to commit a particular
offense enumerated in [18 U.S.C. Section 2516].” 18 U.S.C. Section 2518.
If Defendant Pastemak wiretapped Plaintiffs vehicle without judicial authorization, then
Plaintiffs Section 1983 claim would have merit. However, the Court finds that there are no
genuine issues of material fact and that Defendant Pastemak is entitled to judgment as a matter of
law. First, assuming that there was in fact a wiretap, Plaintiff has provided no credible evidence
other than his speculation that Defendant Pasternak was responsible for it. Instead, Plaintiff relies
solely on the fact that Defendant Pasternak was the investigating officer and saw Pasternak at the
police station. Plaintiff presents no credible evidence demonstrating, or from which a reasonable
inference could be drawn, that Defendant Pasternak entered Plaintiffs vehicle much less placed a
wiretap inside.
Second, Plaintiff fails to provide any credible evidence that his Escalade was actually
wiretapped. Instead, Plaintiff claims that he saw wires, saw microphones, and heard an unusual
noise when he attempted to start his car.11 Assuming the truth of such evidence, it is nevertheless
insufficient to show that a wiretap in fact occurred. Plaintiff has presented absolutely no evidence
that the wires or microphones were in fact in operation or capable of capturing conversations in
the vehicle. Summary judgment is appropriate “against a party who fails to make a showing
sufficient to establish the existence of an element essential to that party’s case, and on which that

Defendants claim that Plaintiffs testimony concerning this evidence is insufficient because
Plaintiff did not, for example, take photographs of the wires and microphones and the vehicle is
no longer available for inspection. The Court disagrees. Plaintiffs testimony alone can be
sufficient to establish a genuine issue of material fact. That being said, Defendants were
certainly free to bring a motion for spoliation because Plaintiff failed to preserve the evidence
that is the basis of his claim. Such a motion, if successful, could potentially result in a variety of
remedies, including preclusion in severe cases. Defendants, however, have not made such a
motion.

11

party will bear the burden of proof at trial.” Celotex Corp., 477 U.S. at 322. “[A] plaintiff cannot
resist a properly supported motion for summary judgment merely by restating the allegations of
his complaint, but must point to concrete evidence in the record that supports each and every
essential element of his claim.” Orsatti v. New Jersey State Police, 71 f.3d 480,484 (3d Cir. 1995)
(citing Celotex Corp., 477 U.S. at 322).

Here, the record is devoid of necessary evidence

demonstrating that Defendant Pastemak illegally wiretapped Plaintiffs vehicle or that the
Escalade was in fact wiretapped.
It is for these reasons that Defendant Pastemak’s motion for summary judgment on Count
I, alleging a Fourth Amendment violation pursuant to Section 1983, is granted.
B. Excessive Force (Count II against Defendant Diorlo, Defendant Flatley, and
Defendant McDonough)

Count II pleads excessive force claims, in violation of the Fourth Amendment, against
Defendant Diorio, Defendant Flatley, and Defendant McDonough pursuant to Section 1983. Plfs
SAC at

¶ 19. Plaintiff claims that his fourth Amendment rights were violated when the

Defendants’ police vehicle intentionally made contact with Plaintiffs Lexus. resulting in
Plaintiffs vehicle crashing—totaling the Lexus and physically injuring Plaintiff. Defendants
argue that Plaintiffs claims do not rise to the level of excessive force, that Plaintiffs claims are
barred by Heck v. Hzimplzrey, and that Defendants are entitled to qualified immunity.
“A cause of action exists under

§ 1983 when a law enforcement officer uses force so

excessive that it violates” the Fourth Amendment’s protection from unreasonable search and
seizure. Groman v. Twp. ofManatapan, 47 F.3d 628, 633-34 (3d Cir. 1995). “Police officers are
privileged to commit a battery pursuant to a lawful arrest, but the privilege is negated by the use
of excessive force.” Groman, 47 F.3d at 634 (citing Edwards v. City of Philadelphia, 860 F.2d
56$, 572 (3d Cir. 198$)). “A claim for excessive force under the fourth Amendment requires a

12

plaintiff to show that a seizure occurred and that it was unreasonable.” Curley v. Kiem, 29$ F.3d
271, 279 (3d Cir. 2002); see Graham, 490 U.s at 396. The reasonableness inquiry is objective and
is measured by “careful attention to the facts and circumstances of each particular case, including
the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of
the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by
flight.” Groman, 47 f.3d at 634 (quoting Graham, 490 U.S. at 396): see also Sharrar v. felsing,
128 F.3d 810, $22 (3d Cir. 1997). Moreover, a court must consider whether a seizure was
reasonable “from the perspective of a reasonable officer on the scene, rather than with the 20/20
vision of hindsight.” Velez v. fuentes, 2016 WL 4107689, at *4 (D.N.J. July 29, 2016) (quoting
Graham, 490 U.S. at 396-97). As a result, a court must consider whether the officers’ actions were
“objectively reasonable in light of the facts and circumstances confronting them, without regard
to the officers’ underlying intent or motivation.” Norcross v. Town of Hammonton, 200$ WL
9027248, at *4 (D.N.J. Feb. 5, 2008) (quoting Graham, 490 U.S. at 397).
Under the Supreme Court’s holding in Heck v. Humphrey, 512 U.S. 477 (1994), if a
successful Section 1983 claim “would render a conviction or sentence invalid, a [Section] 1983
plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged
by executive order, declared invalid by a state tribunal authorized to make such determination, or
called into question by a federal court’s issuance of a writ of habeas corpus.” 512 U.S. at 48687; see also Giles v. Davis, 427 F.3d 197, 208-09 (3d Cir. 2005) (“Under Heck, a [Section] 1983
action that impugns the validity of the plaintiffs underlying conviction cannot be maintained
unless the conviction has been reversed on direct appeal, or impaired by collateral
proceedings.”).

13

1. Count II against Defendant Diorio and Defendant Flatley

As a threshold matter, Plaintiffs claim cannot stand against Defendant Diorio and
Defendant Flatley because both were merely passengers in the police vehicle. “A[n individual
government] defendant in a civil rights action must have personal involvement in the alleged
wrongdoing.... Personal involvement can be shown through allegations of personal direction or
of actual knowledge and acquiescence.” Evancho v. Fisher, 423 f.3d 347, 353 (3d Cir. 2005).
Here, Plaintiff does not challenge the fact that Defendant Diorio and Defendant Flatley were
passengers in the police vehicle.12 There is no evidence that either Defendant Diorio or Defendant
Flatley were in a supervisory role or instructing the driver, Defendant McDonough, during the
pursuit of Plaintiffs vehicle. See McKenna v. City of Philadelphia, 582 F.3d 447, 460 (3d Cir.
2009) (“[A] supervisor must have been involved personally, meaning through personal direction
or actual knowledge and acquiescence, in the wrongs alleged” to be liable under a theory of
supervisory liability). While it is true that an officer may be liable under Section 1983 if he refuses
to intervene when a constitutional violation takes place in his presence, “an officer is only liable if
there is a realistic and reasonable opportunity to intervene.” Smith v. Mesinger, 293 F.3d 641, 651
(3d Cir. 2002) (internal quotation marks and citations omitted). Here, Plaintiff has not provided
any evidence to illustrate that Defendant Diorio or Defendant Flatley were in a position to stop
any allegedly unconstitutional conduct by Defendant McDonough, the driver. See Torres v.
Borough of Lindenwold, 2015 WL 3949076, at *5 (D.N.J. June 29, 2015) (dismissing Fourth

12

As discussed in note 2 sttpra, Plaintiff submitted a letter brief in response to Defendant
Diorio’s reply. D.E. 176. The sur-reply raises an aiding and abetting theory of liability. For the
reasons stated in note 2, the Court is not considering the sur-reply. Even if the Court were to
consider Plaintiffs aiding and abetting theory of liability, Plaintiff presents no evidence
supporting his theory except for the mere conclusory allegation that the Defendants aided and
abetted each other.

14

Amendment excessive force claims against a police officer who was a passenger in a police vehicle
that allegedly struck a plaintiff while allowing claims against the driver to proceed). Because
Plaintiff has not produced evidence demonstrating that Defendant Diorio or Defendant Flatley had
any personal involvement in the alleged constitutional violations or were in the position to stop
any alleged constitutional violations, Plaintiffs claims cannot stand as to either Diorio or Flatley.
It is for these reasons that Defendant Diorio and Defendant Flatley’s summary judgment
motion on Count II, alleging Fourth and Fourteenth Amendment violations, is granted.’3
2. Count II Against Defendant McDonough

a. Plaintiffs Fourth Amendment Claim
Plaintiff McDonough first argues that based on the Supreme Court’s decision in Scott v.
Harris, 550 U.S. 372 (2007), there was no constitutional right violated. Def. McDonough Br. at
6. Plaintiff counters, in part, that Defendants “used their vehicle to ram [Plaintiff] and chase him
through a residential neighborhood before running him off the road.” Plfs Opp. Br. at 6.
In Scott, the Supreme Court held that “[a] police officer’s attempt to terminate a dangerous
high-speed car chase that threatens the lives of innocent bystanders does not violate the fourth
Amendment, even when it places the fleeing motorist at risk of serious injury or death.”4 550
U.S. at 386. In Scott, a high-speed chase began when a police officer attempted to pull over the

‘

To be clear, Plaintiffs Count II against Diorio and Flatley would also fail for the reasons that
are applicable to McDonough.
The Supreme Court further elaborated on its reasoning, explaining “we are loath to lay down a
rule requiring the police to allow fleeing suspects to get away whenever they drive so recklessly
that they put other people’s lives in danger. It is obvious the perverse incentives such a rule
would create: Every fleeing motorist would know that escape is within his grasp, if only he
accelerates to 90 miles per hour, crosses the double-yellow line a few times, and runs a few red
lights. The Constitution assuredly does not impose this invitation to impunity-earned-by
recklessness.” Scott v. Harris, 550 U.S. 372, 3 85—86 (2007).
“

15

plaintiff who was traveling 73 miles per hour in a 55 mile-per-hour zone. Id. at 375. Instead of
pulling over, the plaintiff sped away. Id. The chase ended when police used a Pursuit Intervention
Technique (“PIT”) maneuver to stop the plaintiffs vehicle, with the plaintiff sustaining serious
injuries. Id. The Supreme Court held that that the officer’s attempt to end the chase was reasonable
and therefore not a violation of the fourth Amendment. Id. at 384.
In this case, Plaintiff was convicted of second degree eluding in violation of N.J.S.A.

§

2C:29—2(b). The statute provides that any person who
while operating a motor vehicle on any street or highway in [New
Jersey,]
knowingly flees or attempts to elude any police or law
enforcement officer after having received any signal from such
is guilty of a crime
officer to bring the vehicle. to a full stop
of the second degree if the flight or attempt to elude creates a risk
ofdeath or injury to any person.
.

.

.

.

N.J.S.A.

.

.

.

.

§ 2C:29—2(b) (emphasis added); see also State v. Thomas, 187 N.J. 119 (N.J. 2006).

Plaintiff pled guilty to the charge. In his plea colloquy,’5 Plaintiff responded to a number
of questions under oath. After admitting that the police officers directed him to stop and that he
failed to do so, Plaintiff was asked whether he “drove at a high rate of speed?” Plaintiff responded,
“Yes.” Def. McDonough Br., Ex. 8 (Plaintiffs Plea). Plaintiff was then asked whether he “drove

5

Statements made during a plea colloquy are permitted to be considered in a court’s analysis of
a motion for summary judgment. Commodity futures Trading Comm ‘n v. Am. Metals Exch.
Corp., 991 F.2d 71, 82 (3d Cir. 1993) (finding that “admissions made at the plea colloquy...
viewed together with the other uncontested evidence in the record” supported summary
judgment); Desrivieres v. United States, 2013 WL 3285235, at *2 (D.N.J. June 27, 2013)
(“{W]hen an individual pleads guilty to a crime, courts take as true the operative facts underlying
the plea, and view other contested facts in the light most favorable to [the non-moving party].”)
(internal quotation marks and citations omitted); see S. Cross Overseas Agencies, Inc. v. Wah
Kwong S/i tiping Grp. Ltd., 181 F.3d 410, 427 (3d Cir. 1999) (“[The Third Circuit has] held that
a court that examines a transcript of a prior proceeding to find facts converts a motion to dismiss
into a motion for summary judgment.”).

16

in a maimer that created a risk of death or injury to yourself and others?” Id. Plaintiff again
replied, “Yes.” Id. In the SAC, Plaintiff also describes that part of the chase happened “while
traveling through a residential neighborhood onto the highway during rush hour,” Pit’s SAC at

¶

9, and in his opposition brief Plaintiff describes Defendants chasing him “though a residential
neighborhood,” Pit’s Opp. Br. at 6.
In light of the Supreme Court’s holding in Scott that a “police officer’s attempt to
terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does
not violate the Fourth Amendment,” 550 U.S. at 386, and Plaintiffs own admissions that he
drove at a high speed in a maimer that created a risk of death or injury to himself and others,
there is no genuine issue of material fact that Defendant McDonough’s conduct did not violate
the Fourth Amendment. Although Plaintiff now offers testimony at odds with his guilty plea
colloquy, his attempt to do so is precluded by Heck. And Plaintiff has not shown that his
conviction “has been reversed on direct appeal, expunged by executive order, declared invalid by
a state tribunal authorized to make such determination, or called into question by a federal
court’s issuance of a writ of habeas corpus.” 512 U.S. at 486-87. In light of Scott’s holding, if
this Court were to find that Plaintiffs Fourth Amendment rights were violated in this case, it
would invalidate Plaintiffs plea to second-degree eluding because it would necessitate a finding
that Plaintiff was not creating a risk of death or physical injury to any person—which is a
necessary element of second-degree eluding. To the extent Plaintiffs colloquy left any room for
doubt, Plaintiff has removed it with his own admissions in this case, specifically, that the chase
occurred through a residential and neighborhood and then onto a highway during rush hour.

17

b. Plaintiffs fourteenth Amendment Claim
Plaintiff also briefly argues in his brief in opposition that Defendants’ conduct violated the
fourteenth Amendment because the Defendants “had ill will intent [sic] for the very purpose of
depriving [sic] and intended to injure [Plaintiffj.” Plfs Opp. Br. at 10.
However, the Supreme Court has held that when examining whether a police officer has
violated the fourteenth Amendment, “high-speed chases with no intent to harm suspects physically
or to worsen their legal plight do not give rise to liability under the Fourteenth Amendment,
redressible by an action under [Section] 1983.” C. of Sacramento v. Lewis, 523 U.S. 833, 854
(1998). “[I]n the absence of evidence from which a jury could infer a purpose to cause harm
unrelated to the legitimate object of the chase, the evidence does not satisfi the requisite element
of arbitrary conduct shocking the conscience.” Davis v. TMp. ofHillside, 190 f.3d 167, 169 (3d
Cir. 1999).
In the absence of any evidence of improper motive, summary judgment is appropriate. See
Davis, 190 F.3d at 171 (holding that officers “faced with lawless behavior—the flight from their
investigation—for which they were not to blame” acted with the “intent.

.

.

to do their job as law

enforcement officers, not to cause injury.”); see also Errico v. Tp. ofHowell, 200$ WL 2559355,
at *5 (D.N.J. June 26, 2008) (granting a motion for summary judgment against a Fourteenth
Amendment Section 1983 claim because a police officer’s conduct in a car collision that resulted
in the death of a suspect was not demonstrative of arbitrary conduct that shocks the conscience).
In this case, Plaintiff has not presented any evidence to show that Defendant McDonough intended
to cause harm to Plaintiff unrelated to the legitimate object of arrest.
McDonough’s actions do not rise to a Fourteenth Amendment violation.

18

Therefore, Defendant

For the foregoing reasons, Defendant McDonough’s motion for summary judgment on
Count II, alleging Fourth and fourteenth Amendment violations, is granted.’6
C. Harassment and Intimidation of a Witness (Count IV Against Defendant
McDonough)

Plaintiff originally alleged that three members of the Elizabeth Police Department,
including Defendant McDonough, “knowingly harassed and intimidated plaintiffs witness over a
period of time.” Plfs SAC J 20. These actions against two former defendants for harassment and
intimidation of “Ms. Torrado”’7 were dismissed “following a telephone conference in which
Plaintiffs [withdrew] his claims against Mikros and Smith on the record.” D.E. 60. However,
Judge Wigenton noted in her opinion granting in part and denying in part motions to dismiss
Plaintiffs original claims that “Defendants [did not move] to dismiss the claim as to Officer
McDonough.”

D.E. 60.

Therefore, Plaintiffs claim against Defendant McDonough for

harassment and intimidation of Ms. Torrado remains.
Plaintiff alleges, in part, that “McDonough on or about August of 2011, planted (3) bags
of heroin on [Ms. Torrado] to discredit her testimony. Because of these acts, Ms. Torrado has not
been seen to testify for [the Plaintiffj.” Plfs SAC at

¶ 14. Defendant McDonough argues that

“the record is devoid of any evidence” of Defendant McDonough planting evidence on Ms.
Torrado or intimidating Ms. Torrado to prevent her from testifying on Plaintiffs behalf Def.
McDonoughBr. at3.

16

This Court need not address any qualified immunity defenses because the Court finds that no
genuine issue of material fact demonstrates that a constitutional violation occurred in the first
instance. Of note, since Scott holds that no constitutional right exists in the circumstances
presented here, it also follows that the right was not clearly established for purposes of qualified
immunity.
Plaintiff never included Ms. Torrado’s full name in any of his papers.

19

Other than his accusations, Plaintiff fails to provide any evidence to support his claim and
has failed to contest or even address Defendant McDonough’s arguments in Plaintiffs opposition
brief for example, Plaintiff has not produced an affidavit from Ms. Torrado, or any other witness,
to substantiate his allegation. in short, Plaintiff has failed to “identify specific facts and affirmative
evidence that contradict the moving party,” Anderson, 477 U.S. at 250, and has failed to make a
showing sufficient to establish his claim that Defendant McDonough harassed or intimidated Ms.
Torrado, see Celotex Corp., 477 U.S. at 322.
Therefore, Defendant McDonough’s motion for summary judgment on Count IV, alleging
Fourth and fourteenth Amendment violations, is granted.
IV.

CONCLUSION
for the reasons set forth above, Defendants’ motions for summary judgment (D.E. 163,

165, 167, 170) are GRANTED. An appropriate Order accompanies this Opinion.
Dated:

September 22, 2017

\J -7

John Michael Vazquez[J.S..J.

20