LOPEZ v. CITY OF PLAINFIELD et al
OPINION. Signed by Judge Stanley R. Chesler on 1/25/17. (DD, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JAMES G. LOPEZ,
CITY OF PLAINFIELD, PLAINFIELD
POLICE DEPARTMENT, JOSEPH
MULLIGAN, KEVIN O’BRIEN,
MARTIN HELLWIG, JOHN DOE 1-20
(OFFICERS OF PLAINFIELD POLICE
DEPARTMENT) fictitious names
representing a series of individuals having
actual identities unknown to Plaintiff at this
Civil Action No. 12-cv-4976 (SRC)(CLW)
CHESLER, District Judge
This matter comes before the Court on two motions by Defendants: (1) the partial motion
for summary judgment filed by Defendants City of Plainfield, Kevin O’Brien (“O’Brien”), and
Martin Helwig (“Helwig”) [Docket Entry 66]; and (2) the motion for judgment on the pleadings
and/or partial motion for summary judgment filed by Defendant Joseph Mulligan (“Mulligan”)
[Docket Entry 69]. James G. Lopez (“Plaintiff”) opposes the motions [Docket Entry 107] and
moves for leave to amend his Complaint if the motion for judgment on the pleadings is granted
[Docket Entry 88]. The Court has considered the papers filed by the parties and proceeds to rule
on the motions without oral argument, pursuant to Federal Rule of Civil Procedure 78. For the
reasons stated below, the Court will grant Defendant Mulligan’s motion for judgment on the
pleadings, grant Plaintiff’s motion for leave to amend, and grant in part and deny in part
Defendants’ motions for summary judgment.
This case arises from two motor vehicle stops of Plaintiff Lopez: one on April 8, 2011
and the other on August 20, 2013. Based on these interactions, Plaintiff brings ten 1 counts
against three Plainfield police officers – Kevin O’Brien, Martin Helwig, and Joseph Mulligan –
and against the City of Plainfield itself. Plaintiff claims that Defendants violated 42 U.S.C. §
1983 (including Monell claims against the City of Plainfield), 42 U.S.C. § 1985, the United
States Constitution, the New Jersey State Constitution, the New Jersey Tort Claims Act, and the
New Jersey Civil Rights Act. (Supplemental Compl. ¶¶ 16-75 [hereinafter Compl.].)
a. APRIL 8, 2011 INCIDENT
The first incident occurred on April 8, 2011, when Defendant O’Brien stopped Plaintiff’s
vehicle at or near the intersection of Kensington and Putnam Avenues in Plainfield, New Jersey.
(Statement of Material Facts of Defendants City of Plainfield, Kevin O’Brien, and Martin
Helwig [hereinafter SMF], ¶ 1). Plaintiff claims the officer stopped the car only because he
observed a known drug dealer, Lathel Sutton, also known as Paco, get into the car. (SMF, ¶ 42;
Plaintiff’s Statement of Material Facts [hereinafter PSMF], ¶4; Plaintiff’s Supplemental
Statement of Material Facts [hereinafter PSSMF], ¶¶ 2, 4-6, 8). Defendants, on the other hand,
argue that O’Brien pulled Plaintiff over for failing to use a turn signal. (SMF, ¶ 4). The
Municipal Court later found him guilty of failing to use a turn signal. (SMF, ¶ 42; PSMF, ¶ 42).
Once O’Brien stopped Plaintiff, he asked Plaintiff for his driver’s license, registration and
insurance. (SMF, ¶ 5; PSMF, ¶ 5). Plaintiff could produce his registration and insurance, but
not his driver’s license. (SMF, ¶ 7; PSMF, ¶ 7). Defendants allege that while asking Plaintiff for
Plaintiff improperly numbers the Counts in the Supplemental Complaint. For purposes of this
Opinion, the Court has renumbered the Counts in the order that they appear in the Supplemental
his license, O’Brien noticed that the vehicle smelled of marijuana. (SMF, ¶ 6). Plaintiff
adamantly contests this fact, arguing that O’Brien fabricated the smell of marijuana. (PSMF, ¶
After Detective Mulligan and another officer arrived on the scene as back up, O’Brien
told Plaintiff to exit his vehicle. (SMF, ¶¶ 10-11; PSMF, ¶¶ 10-11). Plaintiff alleges that
O’Brien pulled him out of the car, grabbed his arms, and handcuffed him. (SMF, ¶¶ 13-14;
PSMF, ¶¶ 12-14; PSSMF, ¶ 10). Plaintiff claims that he told O’Brien that he was in pain from
the handcuffs, but that O’Brien grabbed the middle of the handcuffs and grabbed his shirt by the
neck, and threw Plaintiff in the back of the police vehicle. (SMF, ¶ 15; PSMF, ¶¶ 15, 18, 22;
PSSMF, ¶¶ 12, 14). Plaintiff alleges that he sustained injuries to his right shoulder and left hand.
(PSMF, ¶¶ 45-46).
O’Brien proceeded to search Plaintiff and Plaintiff’s car, but no marijuana or
paraphernalia was found. (SMF, ¶¶ 19-20; PSMF, ¶ 6). The car was towed from the scene and
Detective Adam Green prepared a Vehicle Report. (SMF, ¶ 25). Plaintiff claims that the car was
searched after it was towed, and he argues that he has evidence for this because the car was torn
apart when he retrieved it the next day. (SMF, ¶ 36; PSMF, ¶¶ 27, 36, PSSMF, ¶ 20).
Defendants, on the other hand, argue that there was extensive damage to the car prior to the
towing, which was listed in the Vehicle Report. (SMF, ¶ 27; Supplemental Statement of Facts of
Defendants City of Plainfield, Kevin O’Brien, and Martin Helwig [hereinafter SSMF], ¶ 20).
In the Complaint, Plaintiff also states broadly that he was subjected to a strip search that
same day. (Compl. ¶ 66). Later at his deposition, Plaintiff alleged that O’Brien ordered
Mulligan to conduct the strip search and Mulligan did so. (SMF, ¶ 28-29; PSMF, ¶¶ 28-29;
PSSMF, ¶ 17). After the search, Plaintiff was placed in a jail cell for about two hours, before he
was released. (SMF, ¶¶ 30-33; PSMF, ¶¶ 30-33).
On April 12, 2011, four days later, Plaintiff filed a complaint with the Plainfield Police
Division of Internal Affairs. (SMF, ¶ 38; PSMF, ¶ 38). Internal Affairs notified Plaintiff on
January 18, 2012, that the investigation failed to disclose sufficient evidence to clearly prove or
disprove his allegations. (SMF, ¶ 38; PSMF, ¶ 38). Later, Plaintiff filed a Notice of Tort Claim.
(PSSMF, ¶18). Plaintiff claims that he sent the notice on July 5, 2011, through certified mail
receipt requested, and that the City of Plainfield stamped Plaintiff’s Notice of Tort Claim as
being received on July 12, 2011. (PSMF, ¶¶ 43-44). Defendants claim that the Notice of Tort
Claim was not received by the City of Plainfield until October 23, 2013. (SMF, ¶ 44). Now,
Plaintiff brings suit, claiming that on April 8, 2011, Defendants illegally stopped him, used
excessive force, illegally searched his car, and conducted an illegal strip search.
b. AUGUST 20, 2013 INCIDENT
The second incident occurred on August 20, 2013. According to Defendants, in early
August 2013, a reliable confidential informant advised the police department that “[P]laintiff was
distributing quantities of Heroin and Cocaine within the City of Plainfield, Somerset and Union
County” and that “Plaintiff’s source of supply for CDS was in Newark.” (SMF, ¶¶ 54, 60). In
response to the tip, members of the Narcotic and Vice Section of the Plainfield Police
Department set up surveillances and observed Plaintiff participating in suspected narcotics
transactions throughout August. (SMF, ¶¶ 55-56). At some point in August, they conducted a
controlled narcotic purchase, in which the confidential informant purchased suspected CDS in a
hand-to-hand exchange from Plaintiff. (SMF, ¶ 57). There were no charges brought based on
this exchange. (SMF, ¶ 59).
On August 20, 2013, after the controlled buy, the Narcotics Unit again set up surveillance
of Plaintiff. (SMF, ¶ 61). They followed him from his home to Newark, where he picked up an
individual and drove to a sneaker store to meet with two other individuals. (SMF, ¶ 62).
Detective Mulligan claims that he saw one of the individuals hand Plaintiff a small item, which
Plaintiff put in his trunk. (SMF, ¶ 62). Then Plaintiff drove to another location and the people in
his car got out. (SMF, ¶ 62). Shortly thereafter, Officer Steven Jones of the Union County
Police Department pulled Plaintiff over in Watchung, New Jersey. (SMF, ¶ 66). An officer from
the Union County Sheriff’s Office K-9 squad also came to the scene. (SMF, ¶ 67). Plaintiff
consented to a search of his vehicle by signing a Permission to Search Form. (SMF, ¶ 69).
Neither the K-9 unit nor the officers found contraband in the vehicle. (SMF, ¶ 71-72). Plaintiff
was permitted to leave. (SMF, ¶ 75).
Plaintiff claims that he has never distributed drugs and that the investigation was initiated
by Defendants Mulligan and O’Brien in retaliation for the lawsuit that Plaintiff had filed.
(PSMF, ¶ 55). Thus, Plaintiff argues that both the stop and the search of his vehicle were illegal.
MOTION FOR JUDGMENT ON THE PLEADINGS
Plaintiff alleges that in the Complaint that on April 8, 2011, Defendants “subjected him to
humiliating strip searches”. (Compl. ¶ 66). Defendant Mulligan moves for judgment on the
pleadings with regard to any strip search claim. (Def. Mulligan’s Mov. Br. at 2-4).
1. LEGAL STANDARD
A Rule 12(c) motion permits a party to move for judgment on the pleadings “after the
pleadings are closed—but early enough not to delay trial.” FED. R. CIV. P. 12(c). Though
procedurally it applies later in a case than a Rule 12(b) motion, which may be filed in lieu of a
responsive pleading, a motion brought under 12(c) for failure to state a claim upon which relief
may be granted is governed by the same standard applicable to Rule 12(b)(6) motions. Turbe v.
Gov't of the V.I., 938 F.2d 427, 428 (3d Cir. 1991).
In deciding a motion to dismiss pursuant to Rule 12(b)(6), courts must “accept all factual
allegations as true, construe the complaint in the light most favorable to the plaintiff, and
determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled
to relief.” Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (quoting Pinker v.
Roche Holdings, Ltd., 292 F.3d 361, 374 n. 7 (3d Cir. 2002)). A Rule 12(b)(6) motion to dismiss
should be granted only if the plaintiff is unable to articulate “enough facts to state a claim to
relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). “The
defendant bears the burden of showing that no claim has been presented.” Hedges v. United
States, 404 F.3d 744, 750 (3d Cir. 2005).
“Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the
claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of
what the . . . claim is and the grounds upon which it rests.’” Twombly, 550 U.S. at 555 (quoting
Conley v. Gibson, 355 U.S. 41, 47 (1957)). “While a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to provide
the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555
(internal citations omitted); see also FED. R. CIV. P. 8(a)(2). “Factual allegations must be enough
to raise a right to relief above the speculative level on the assumption that all the allegations in
the complaint are true (even if doubtful in fact).” Id. (internal citations omitted). “The pleader is
required to ‘set forth sufficient information to outline the elements of his claim or to permit
inferences to be drawn that these elements exist.’” Kost v. Kozakewicz, 1 F.3d 176, 183 (3d Cir.
1993) (quoting 5A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure,
Civil 2d § 1357, at 340 (2d ed. 1990)). While a court will accept well-pled allegations as true for
the purposes of the motion, it will not credit bald assertions or legal conclusions. Morse v.
Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997).
In reviewing a motion to dismiss, pursuant to Rule 12(b)(6), a court may only consider
the allegations of the complaint, as well as documents attached to or specifically referenced in
the complaint, and matters of public record. Pittsburgh v. W. Penn Power Co., 147 F.3d 256,
259 (3d Cir. 1998); see also 5B Charles Alan Wright & Arthur R. Miller, Federal Practice &
Procedure, Civil 3d § 1357 (3d ed. 2007).
Plaintiff mentions the strip search in Count Nine, which is a claim for false arrest and
false imprisonment, and nowhere else in the Complaint. But, Plaintiff fails to allege why the
strip search raises a right to relief as part of a false arrest and false imprisonment claim.
Moreover, Plaintiff asks the Court to construe his civil rights claims as including the strip search
claim because he discussed the strip search in his answers to interrogatories, at his deposition,
and in the internal affairs report. Nevertheless, the Court may not consider these documents
because they were not attached to the Complaint and they are not matters of public record. See
Simmons v. City of Paterson, No. 11-640, 2012 WL 2878077, at *1 n.1 (D.N.J. July 13, 2012)
(finding that the Court could not properly consider an internal investigation report on a motion to
dismiss). As Defendant Mulligan correctly states, his fair notice of the claims must come from
the confines of the complaint. (Def. Mulligan’s Rep. Br. at 3). This Court therefore grants
Defendant Mulligan’s motion for judgment on the pleadings on the strip search claim in Count
MOTION FOR LEAVE TO AMEND
Plaintiff asks for leave to amend his Complaint to allege specific facts regarding the strip
search claim, arguing that “the illegal strip search has been central to Plaintiff’s claim of civil
rights violations . . .”. (Pl.’s Br. in Opp. at 4). Defendant Mulligan opposes this motion.
a. LEGAL STANDARD
Federal Rule of Civil Procedure 15(a)(2) provides that “[t]he court should freely give
leave [to file an amended complaint] when justice so requires.” Nevertheless, “justice does not
so require” if an amended pleading would be futile because the statute of limitations has expired.
Solomon v. Passaic Sch. Educ. Servs. Comm'n, No. 04-5879, 2005 WL 2237632, at *5 (D.N.J.
Sept. 13, 2005) (citing In re NAHC, Inc. Securities Litigation, 306 F.3d 1314, 1332 (3d Cir.
2002) (holding that it is futile to allow amendments on time-barred claims).
The Supreme Court has held that “the statute of limitations to be applied in all cases
brought under § 1983 is the statute of limitations of the state involved which applies to actions
for personal injuries.” Brown v. Foley, 810 F.2d 55, 56 (3d Cir. 1987); Cito v. Bridgewater Twp.
Police Dep't, 892 F.2d 23 (3d Cir. 1989) (holding that New Jersey’s two-year statute of
limitations for personal injury actions applies to § 1983 claim arising out of incident occurring in
New Jersey). The applicable New Jersey statute sets a two-year limitations period. See N.J.S.A.
2A:14–2. This two-year statute of limitations also applies to claims brought under the New
Jersey Constitution. Roper v. Van Mater, No. 10-2229, 2011 WL 5557527, at *4 (D.N.J. Nov.
15, 2011) (citing Freeman v. State, 347 N.J. Super. 11, 20-22, n. 3 (App. Div. 2002) (affirming
application of two-year statute of limitations to claims brought for violations of rights under New
Jersey Constitution). See also Kirkland v. Morgievich, 2008 WL 5272028, at *10 (D.N.J. Dec.
16, 2008) (dismissing claims under NJ Constitution as time-barred where allegations were
analogous to § 1983 claim).
Nevertheless, a proposed amended Complaint filed after the statute of limitations period
is not barred if it “relates back” to a date prior to the end of the limitations period under Federal
Rule of Civil Procedure 15(c). Under Rule 15(c)(1)(B), “[a]n amendment of a pleading relates
back to the date of the original pleading when: . . . the amendment asserts a claim or defense that
arose out of the conduct, transaction, or occurrence set out-or attempted to be set out-in the
original pleading.” FED. R. CIV. P. 15(c)(1). In other words, even claims that were not set forth
in the initial pleading may be deemed to have been filed as of the date of the original pleading, so
long as the original pleading provided the opposing party with sufficient notice of the “general
fact situation and legal theory upon which the amending party proceeds.” Bensel v. Allied Pilots
Ass’n, 387 F.3d 298, 310 (2004) (“In essence, application of Rule 15(c) involves a search for a
common core of operative facts in the two pleadings.”). Additionally, “amendments that restate
the original claim with greater particularity or amplify the factual circumstances surrounding the
pertinent conduct, transaction or occurrence in the preceding pleading fall within Rule 15(c).”
Id. at 310.
“If the amendment relates back to the date of the filing of the original complaint, the
amended complaint is treated, for statute of limitations purposes, as if it had been filed at that
time.” Garvin v. City of Philadelphia, 354 F.3d 215, 220 (3d Cir. 2003). The Third Circuit has
held that the rule is intended to “ameliorate the harsh result of the strict application of the statute
of limitations.” Id.
Any § 1983 or New Jersey constitutional claim that Plaintiff might assert regarding the
strip search accrued on the date of harm, April 8, 2011. Large v. Cty. of Montgomery, 307 F.
App'x 606, 607 (3d Cir. 2009) (“The limitations period begins when the plaintiff knows or had
reason to know of the injury forming the basis for the federal civil rights action . . . [as to]
Appellant’s excessive force claim, it is apparent that [Appellant] was aware of his alleged
mistreatment as it occurred on the date of his arrest. . . .”); see also Mujaddid v. Wehling, No. 161220, 2016 WL 5929638, at *2-3 (3d Cir. Oct. 12, 2016) (finding that an arrestee’s claims of
both unlawful search and excessive force, which were based on an alleged strip search, accrued
on the date of the strip-search because that was the date he knew of the injury as the basis for the
civil rights action). Thus, if Plaintiff were to file an amended Complaint now, over five years
after the date on which his civil rights actions accrued, his strip search claims would be barred by
the statute of limitations unless the claim relates back to conduct discussed in the original
The Court finds that the proposed amended pleading is not barred because it relates back
to the original, timely complaint under Federal Rule of Civil Procedure 15(c)(1)(B). Plaintiff did
not explicitly mention the strip search in the state or federal constitutional claims in the original
complaint, but Plaintiff included the strip search allegation within the false arrest and false
imprisonment claim. There, Plaintiff claimed that on April 8, 2011, Defendants “subjected
[Plaintiff] to humiliating strip searches.” Defendant Mulligan thus had fair notice of the general
fact situation of a strip search and the legal theory of § 1983.
In the proposed amended Complaint, Plaintiff adds five words to Count One, which
alleges violations of § 1983. He states that “Plaintiff was subjected to an unreasonable and
excessive force, unlawful search and seizure” and adds the phrase “including an unlawful strip
search.” (Patti Cert. Ex. T, ¶ 20). Because the original complaint attempted to assert federal and
state constitutional claims based on the events of April 8, 2011 and the proposed amended
Complaint’s connects the strip search incident that same day to the § 1983 claim, the Court can
interpret the original Complaint as attempting to set forth the April 8, 2011 strip search as part of
the constitutional claims. Acknowledging that it is taking a very generous approach to the
original Complaint to avoid a harsh result from a strict application of the statute of limitations,
the Court finds that the amended petition therefore relates back under 15(c)(1)(B) and thus is not
time-barred by the statute of limitations. Therefore, the Court grants Plaintiff’s request for leave
to file an amended Complaint.
MOTION FOR SUMMARY JUDGMENT
Defendants City of Plainfield, O’Brien, and Helwig, as well as Defendant Mulligan move
for partial summary judgment on the Complaint.
a. LEGAL STANDARD
Summary judgment is appropriate under Federal Rule of Civil Procedure 56(c) when the
moving party demonstrates that there is no genuine issue of material fact and the evidence
establishes the moving party’s entitlement to judgment as a matter of law. Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). A factual dispute is genuine if a reasonable jury could
return a verdict for the non-movant, and it is material if, under the substantive law, it would
affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “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 non-moving party’s
evidence ‘is to be believed and all justifiable inferences are to be drawn in his favor.’” Marino v.
Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at 255).
“When the moving party has the burden of proof at trial, that party must show
affirmatively the absence of a genuine issue of material fact: it must show that, on all the
essential elements of its case on which it bears the burden of proof at trial, no reasonable jury
could find for the non-moving party.” In re Bressman, 327 F.3d 229, 238 (3d Cir. 2003)
(quoting United States v. Four Parcels of Real Prop., 941 F.2d 1428, 1438 (11th Cir. 1991)).
“[W]ith respect to an issue on which the nonmoving party bears the burden of proof . . . the
burden on the moving party may be discharged by ‘showing’—that is, pointing out to the district
court—that there is an absence of evidence to support the nonmoving party’s case.” Celotex,
477 U.S. at 325.
Once the moving party has satisfied its initial burden, the party opposing the motion must
establish that a genuine issue as to a material fact exists. Jersey Cent. Power & Light Co. v.
Lacey Twp., 772 F.2d 1103, 1109 (3d Cir. 1985). The party opposing the motion for summary
judgment cannot rest on mere allegations and instead must present actual evidence that creates a
genuine issue as to a material fact for trial. Anderson, 477 U.S. at 248; Siegel Transfer, Inc. v.
Carrier Express, Inc., 54 F.3d 1125, 1130-31 (3d Cir. 1995). “[U]nsupported allegations . . . and
pleadings are insufficient to repel summary judgment.” Schoch v. First Fid. Bancorporation,
912 F.2d 654, 657 (3d Cir. 1990); see also FED. R. CIV. P. 56(e) (requiring the nonmoving party
to “set out specific facts showing a genuine issue for trial”). “A nonmoving party has created a
genuine issue of material fact if it has provided sufficient evidence to allow a jury to find in its
favor at trial.” Gleason v. Norwest Mortg., Inc., 243 F.3d 130, 138 (3d Cir. 2001).
If the nonmoving party has failed “to make a showing sufficient to establish the existence
of an element essential to that party’s case, and on which that party will bear the burden of proof
at trial, . . . there can be ‘no genuine issue of material fact,’ since a complete failure of proof
concerning an essential element of the nonmoving party’s case necessarily renders all other facts
immaterial.” Katz v. Aetna Cas. & Sur. Co., 972 F.2d 53, 55 (3d Cir. 1992) (quoting Celotex,
477 U.S. at 322-23).
i. COUNT ONE
Plaintiff’s first Count is that Defendants violated 42 U.S.C. § 1983 by subjecting Plaintiff
to “unreasonable and excessive force, unlawful search and seizure, and false imprisonment” in
violation of the United States Constitution during the April 8, 2011 incident. (Compl. § 20). A
plaintiff may have a cause of action under 42 U.S.C. § 1983 for certain violations of his
constitutional rights. 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 . . . .
Thus, to state a claim for relief under § 1983, a plaintiff must allege, first, the violation of a right
secured by the Constitution or laws of the United States and, second, that the alleged deprivation
was committed or 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). Plaintiff’s
constitutional claims fall under the Fourth Amendment to the United States Constitution. The
Fourth Amendment provides that “The right of the people to be secure in their persons . . .
against unreasonable searches and seizures, shall not be violated.”
Defendants City of Plainfield, O’Brien, and Helwig move for summary judgment on the
§ 1983 claim. They do not contest that they were acting under the color of state law, but they
argue that they did not violate Plaintiff’s constitutional rights.
1. UNLAWFUL SEIZURE CLAIM
First, Plaintiff claims that Defendants violated his Fourth Amendment rights by
unlawfully stopping his car on April 8, 2011. A seizure triggering Fourth Amendment protection
occurs when a government actor “by means of physical force or show of authority, has in some
way restrained the liberty of a citizen.” Terry v. Ohio, 392 U.S. 1, 19 n. 16 (1968). To
determine the reasonableness of a seizure, a court “must balance the nature and quality of the
intrusion on the individual’s Fourth Amendment interests against the importance of the
governmental interests alleged to justify the intrusion.” United States v. Place, 462 U.S. 696,
703 (1983), quoted in Tennessee v. Garner, 471 U.S. 1, 8 (1985) and Graham v. Connor, 490
U.S. 386, 396 (1989). “[T]he decision to stop an automobile is reasonable where the police have
probable cause to believe that a traffic violation has occurred.” Whren v. United States, 517 U.S.
806, 810 (1996). Moreover, law enforcement officers are entitled, under the Fourth Amendment,
to make a traffic stop on a minor traffic infraction regardless of their subjective intentions.
United States v. Mosley, 454 F.3d 249, 252 (3d Cir. 2006) (“any technical violation of a traffic
code legitimizes a stop, even if the stop is merely pretext for an investigation of some other
Plaintiff’s argument is that the traffic stop was a pretext to investigate and thus, his
seizure and subsequent arrest were unlawful. He argues that O’Brien made the traffic stop not
because of Plaintiff’s failure to use a turn signal, but because O’Brien was suspicious of Paco, a
known drug-dealer who was a passenger in the car. This argument fails because the subjective
intentions of an officer effectuating a stop do not matter under the Fourth Amendment
reasonableness analysis. Thus, the motion for summary judgment by Defendants City of
Plainfield, O’Brien, and Helwig on Plaintiff’s unlawful seizure claim under § 1983 is granted.
2. FALSE ARREST AND FALSE IMPRISONMENT CLAIM
Next, Plaintiff claims in Count One that Defendants violated the Fourth Amendment by
falsely arresting him. It is well established in the Third Circuit that an arrest without probable
cause is a constitutional violation actionable under § 1983. See Walmsley v. Philadelphia, 872
F.2d 546 (3d Cir. 1989); see also, Albright v. Oliver, 510 U.S. 266, 274 (1994) (a section 1983
claim for false arrest may be based upon an individual’s Fourth Amendment right to be free from
To state a claim for false arrest, a plaintiff must allege two elements: (1) that there was an
arrest; and (2) that the arrest was made without probable cause. Dowling v. City of Philadelphia,
855 F.2d 136, 141 (3d Cir. 1988). Moreover “where the police lack probable cause to make an
arrest, the arrestee has a claim under § 1983 for false imprisonment based on a detention
pursuant to that arrest.” Groman v. Manalapan, 47 F.3d 628, 636 (3d Cir. 1995); Palma v.
Atlantic County, 53 F.Supp.2d 743, 755 (D.N.J. 1999). See also Anela v. City of Wildwood, 595
F.Supp. 511, 512 (D.N.J. 1984) (holding a person for any length of time without legal
justification may be a violation of the right to liberty under the Fourteenth Amendment and thus
states a claim of false imprisonment under § 1983). 2 In contrast, an arrest based upon probable
cause does not give rise to claims for false imprisonment or false arrest. Id.
While “[a] false imprisonment claim under 42 U.S.C. § 1983 is based on the Fourteenth
Amendment protection against deprivations of liberty without due process of law[,]” Baker v.
McCollan, 443 U.S. 137, 142 (1979), the claim is derivative of a Fourth Amendment violation
for arrest without probable cause. See Groman, 47 F.3d at 636.
In this case there was probable cause to make the arrest, and thus Defendants succeed in
moving for summary judgment on the false arrest claim. While the existence of probable cause
is often a question for the jury, where the Defendants’ asserted probable cause is such that no
reasonable jury could find that the police lacked probable cause, summary judgment is
appropriate. Crock v. Pennsylvania, 397 F. App'x 747, 749 (3d Cir. 2010) (internal citations
“The proper inquiry in a [S]ection 1983 claim based on false arrest ... is not whether the
person arrested in fact committed the offense but whether the arresting officers had probable
cause to believe the person arrested had committed the offense.” Dowling, 855 F.2d at 141
(emphasis added). Probable cause exists where “the facts and circumstances within [an officer’s]
knowledge and of which [that officer] had reasonably trustworthy information [are] sufficient as
of themselves to warrant a man of reasonable caution in the belief that an offense has been or is
being committed.” Edwards v. City of Philadelphia, 860 F.2d 568, 571 (3d Cir. 1988) (citing
Brinegar v. United States, 338 U.S. 160, 175-76 (1949)).
New Jersey statutes authorize police officers to arrest motorists who commit traffic
offenses in their presence. N.J.S.A. 39:5-25. But, the New Jersey Supreme Court has cautioned
that warrantless arrests are not appropriate for all minor traffic offenses. State v. Pierce, 136 N.J.
184, 208 (1994). Nevertheless, even if an officer violates state law in making a warrantless
arrest, he does not necessarily violate the Fourth Amendment. Virginia v. Moore, 553 U.S. 164,
176 (2008). In Virginia v. Moore, the United States Supreme Court held that officers had
probable cause under the Fourth Amendment to make an arrest when they had probable cause to
believe an individual was violating a misdemeanor offense of driving with a suspended license in
front of them, even though under state law they should not have arrested the motorist for this
offense. Id. The Court concluded that “while States are free to regulate such arrests however
they desire, state restrictions do not alter the Fourth Amendment’s protections.” Id. at 176.
Here, law enforcement officers were entitled to arrest Plaintiff because they observed him
committing a traffic offense in their presence and then Plaintiff failed to produce his driver’s
license. Plaintiff does not contest that he did not have a driver’s license and thus there was
probable cause that Plaintiff committed a violation of N.J.S.A. 39:3-29 in O’Brien’s presence. In
turn, this Court grants summary judgment in favor of Defendants City of Plainfield, O’Brien, and
Helwig on Plaintiff’s false arrest and false imprisonment claim. 3
3. UNLAWFUL SEARCH CLAIM
Next, Plaintiff claims that Defendants violated the Constitution by unlawfully searching
Plaintiff’s vehicle on April 8, 2011. Plaintiff claims that there were two unlawful searches: the
first occurred at the traffic stop and the second occurred after the car was towed. “The Fourth
Amendment generally requires police to secure a warrant before conducting a search.”
Maryland v. Dyson, 527 U.S. 465, 466 (1999). But, “[t]here are, of course, exceptions to the
general rule that a warrant must be secured before a search is undertaken.” California v. Carney,
471 U.S. 386, 390 (1985).
“The automobile exception to the warrant requirement permits law enforcement to seize
and search an automobile without a warrant if ‘probable cause exists to believe it contains
contraband.’” United States v. Burton, 288 F. 3d 91, 100 (3d Cir. 2002). The odor of marijuana
coming from a vehicle provides probable cause to search the automobile during a traffic stop.
United States v. Ushery, 400 F. App'x 674, 676 (3d Cir. 2010).
Because the Court has determined that there was probable cause for the arrest, the Court does
not consider the Defendants’ argument that Heck v. Humphrey, 512 U.S. 477 (1994), bars
Plaintiff’s claim of false arrest.
As to the first search, Defendants City of Plainfield, O’Brien, and Helwig argue that they
were entitled to search Plaintiff’s vehicle because O’Brien smelled marijuana. (Def. City of
Plainfield, O’Brien, and Helwig’s Mov. Br. [hereinafter Defs.’s Mov. Br.] at 8). Plaintiff,
however, contests that O’Brien smelled marijuana. (PSMF, ¶ 6). He argues that O’Brien
fabricated that he smelled marijuana as an “after the fact basis for probable cause to search
Plaintiff’s vehicle.” (PSMF, ¶ 6). Indeed, no drugs or paraphernalia were found in the car.
(PSMF, ¶ 6). Because whether or not the car smelled of marijuana is a genuine contested issue
of material fact, this Court denies the motion for summary judgment by Defendants City of
Plainfield, O’Brien, and Helwig on Plaintiff’s unlawful search claim.
As to the second search, the Court also denies Defendants’ motion for summary judgment
on Plaintiff’s claim. (PSSMF, ¶ 20). Defendants argue that there was no second search of the
vehicle and the damage to the car occurred before the impoundment. (Defs.’s Mov. Br. at 9;
SSMF, ¶ 20). Plaintiff, however, argues that the damage to the car was a result of the second
search after the vehicle was towed. (PSMF, ¶¶ 27, 36). Plaintiff points to interviews from the
internal affairs investigation, in which officers suggested that there was nothing out of the
ordinary about the car’s condition prior to the towing. (PSMF, ¶ 27; Patti Cert. Ex. A, G).
Because there is a genuine contested issue of material fact, this Court denies summary judgment
on whether there was a second unlawful search.
4. EXCESSIVE FORCE CLAIM
Finally, Defendants City of Plainfield, O’Brien, and Helwig argue that Plaintiff cannot
maintain his excessive force claims within Count One. The U.S. Supreme Court has held that
Section 1983 claims for excessive force arising “in the context of an arrest or investigatory stop
of a free citizen” are most properly analyzed under the Fourth Amendment’s guarantee that
individuals be free from “unreasonable searches and seizures.” Graham v. Connor, 490 U.S. at
394. To establish a claim of excessive force under the Fourth Amendment, a plaintiff must
demonstrate that, under the totality of the circumstances, the officer’s actions were not
objectively reasonable in light of the facts and circumstances confronting the officer. Id. at 397.
For claims of excessive force based on a handcuffing, “a severe injury from handcuffs can
support a finding of excessive force, and in the absence of an injury, some other evidence, such
as ‘obvious visible indicators of pain,’ will be required.” Velius v. Twp. of Hamilton, 754 F.
Supp. 2d 689, 694 (D.N.J. 2010), aff'd, 466 F. App'x 133 (3d Cir. 2012) (citing Kopec v. Tate,
361 F.3d 772 (3d Cir. 2004); Gilles v. Davis, 427 F.3d 197 (3d Cir. 2005)).
In this case, whether Defendants used excessive force in handcuffing Plaintiff is an issue
of fact. Defendants contend that Plaintiff has failed to show that Defendants were the cause of
Plaintiff’s hand and shoulder injuries. They also suggest that Plaintiff fails to show that he
suffered a permanent injury. Defendants argue that Plaintiff’s expert, who examined Plaintiff’s
injuries three years after the April 8, 2011 incident, said it was an “exacerbation of ‘plaintiff’s
pre-existing arthritis.’” (Miller Cert. Ex. M). Thus, they argue that there is no evidence that the
alleged injuries were connected to the handcuffing incident.
Plaintiff, on the other hand, argues that O’Brien clearly caused the injuries because he
“forcefully yanked [Plaintiff] out of the car and handcuffed him” and “forcefully dragged
Plaintiff to the back of the car.” (Pl.’s Br. in Opp. at 19-20). Plaintiff claims that he verbalized
that the handcuffs were too tight and expressed that he was in serious pain. (Pl.’s Br. in Opp. at
19-20). He further argues that he required surgery and extensive physical therapy as a result of
his injuries. (Pl.’s Br. in Opp. at 20). Plaintiff presents a letter from his doctor to show that there
was an injury to his thumb and that he has elected to have surgery for it. (Miller Cert. Ex. M).
Although the letter does suggest that there was a pre-existing injury, it also states that the
encounter could have exacerbated the condition. (Miller Cert. Ex. M). Because the cause of the
injuries is a genuine contested issue of fact, this Court denies summary judgment on the
excessive force claim. 4
ii. COUNT TWO
Plaintiff’s next claim is that Defendants, as Officers of the Plainfield Police Department,
assaulted and battered Plaintiff, or failed to intercede to prevent the assault, in violation of 42
U.S.C. § 1983. 5 Defendants City of Plainfield, O’Brien, and Helwig, as well as Defendant
Mulligan, move for summary judgment, arguing that Plaintiff failed to timely file the required
notice of tort claim. The New Jersey Supreme Court has held that the notice of claim provisions
of the NJTCA do not apply to federal civil rights claims brought under 42 U.S.C. § 1983.
Fuchilla v. Layman, 109 N.J. 319, 330-31 (1988); Goodwin v. New Jersey, No. 12-1040, 2014
WL 1225335, at *5 (D.N.J. Mar. 25, 2014) (citing Harris v. Latamore, Civ No. 07–5299, 2008
WL 2937185, at *2 (D.N.J. July 29, 2008) (“[T]his Court finds that New Jersey has long
recognized that § 1983 actions cannot be barred by the Tort Claims Act notice provision . . . .”).
Thus, with regard to Plaintiff’s § 1983 claims in Count Two, Defendants’ argument fails.
Defendants’ motions for summary judgment on Count Two are denied.
iii. COUNT THREE
Count Three in the Complaint relates to the August 20, 2013 stop. There, Plaintiff claims
that Defendants violated 42 U.S.C. § 1983 by subjecting Plaintiff to an unlawful search and
Plaintiff does not include his allegation that he was illegally strip searched within Count One in
the Supplemental Complaint. Although he adds this claim within his proposed amended
Complaint, it is not included in the Complaint at issue. Therefore, the Court does not address it.
The Court interprets this claim as an excessive force claim under § 1983.
seizure of his person and his vehicle. 6 Plaintiff argues that Defendants had no reasonable
suspicion to make the August 20, 2013 stop; he argues that the stop was retaliation because
Plaintiff had instituted a civil rights action against Defendants in June 2012. (Pl.’s Br. in Opp. at
24). Defendants City of Plainfield, O’Brien, and Helwig, on the other hand, argue that they had
enough reasonable suspicion to stop Plaintiff and that Plaintiff gave consent for the search, and
thus they move for summary judgment on Count Three.
“[A]n officer may conduct an investigatory stop of a moving vehicle if he has reasonable
suspicion that its passengers are engaged in criminal activity.” United States v. Mathurin, 561
F.3d 170, 174 (3d Cir. 2009). “Reasonable suspicion is just that: suspicion that is reasonably
based on the totality of the facts and circumstances. It is a belief that has been defined as ‘a
particularized and objective basis’ for suspecting the person stopped of criminal activity.”
Mathurin, 561 F.3d at 174 (citing Ornelas v. United States, 517 U.S. 690, 696 (1996)) (quoting
United States v. Cortez, 449 U.S. 411, 417–18 (1981) (overruled on other grounds)). Reasonable
suspicion must be more than a mere hunch, but it requires less of a showing than probable cause.
Id. at 174.
“[A]n informant’s “veracity,” “reliability,” and “basis of knowledge” are “relevant in
determining the value of his report . . . if a tip has a relatively low degree of reliability, more
information will be required to establish the requisite quantum of suspicion than would be
required if the tip were more reliable . . . . [The] independent corroboration by police of
significant aspects of the informer’s predictions impart[s] some degree of reliability . . . .”
In the Complaint, Plaintiff also states that Defendants violated § 1983 by subjecting Plaintiff to
an unlawful arrest. But, Plaintiff does not provide any support for his claim that an unlawful
arrest took place on August 20, 2013. Rather, Plaintiff concedes in his responsive statement of
material facts that after the search of his vehicle, Plaintiff was permitted to leave. (SMF, ¶ 74;
PSMF ¶ 74).
Alabama v. White, 496 U.S. 325, 328-332 (1990). The content of the tip must provide “a
particularized and objective basis for suspecting (1) the particular persons stopped (2) of criminal
activity.” United States v. Goodrich, 450 F.3d 552, 559-60 (3d Cir. 2006). Police do not have
reasonable suspicion for an investigative stop when they receive a fleshless anonymous tip of
drug dealing that provides only readily observable information, and they themselves observe no
suspicious behavior. United States v. Roberson, 90 F.3d 75, 80-81 (3d Cir. 1996). But, if the
officers set up surveillance or engage in previous controlled buys from the suspect, and then
observe suspicious behavior, they have appropriate cause to stop a defendant. Id.; United States
v. Fleetwood, 235 F. App'x 892, 897-98 (3d Cir. 2007).
Here, a reliable confidential informant advised the police department in early August
2013 that “[P]laintiff was distributing quantities of Heroin and Cocaine within the City of
Plainfield, Somerset and Union County” and that “Plaintiff’s source of supply for CDS was in
Newark.” (SMF, ¶¶ 54, 60). Although this at first seems a “fleshless tip of drug-dealing,” it was
corroborated when law enforcement set up surveillance and when the informant participated in a
controlled buy. (SMF, ¶¶ 57-58). Because of the controlled buy, officers had good reason to
believe that the informant was accurate. Thus, when, on August 20, 2013, the Narcotics Unit set
up surveillance of Plaintiff, and observed him drive to Newark, pick up unidentified persons, and
engage in suspected transactions, they had a reasonable and articulable suspicion of criminal
wrongdoing in order to stop Plaintiff and seek consent to search. (SMF, ¶¶ 61-62, 69). Plaintiff
makes mere allegations that Defendants’ actions were retaliation against Plaintiff because
Plaintiff had filed a civil rights suit against them. He denies ever distributing drugs. (PSMF, ¶¶
54-62). Nevertheless, Plaintiff admits that Defendants established surveillance on August 20,
2013 and provides no actual evidence to refute Defendants’ observations. (PSMF, ¶ 61). Thus,
this Court finds that there was reasonable suspicion to make the motor vehicle stop.
Furthermore, the ensuing search was constitutional because “[c]onsent is an exception to
the ‘requirements of both a warrant and probable cause.’” United States v. Stabile, 633 F.3d 219,
230 (3d Cir. 2011) (internal citations omitted). An individual giving consent must possess the
authority to do so and must do so voluntarily. United States v. Morales, 861 F.2d 396, 399 (3d
Cir. 1988) (citing United States v. Matlock, 415 U.S. 164, 171 (1974)). A driver of a vehicle has
the authority to consent to a search of that vehicle. Id.
Plaintiff does not contest that he gave consent for the search of his vehicle and signed a
Permission to Search Form. (Miller Cert Ex. T). He does not argue that the consent was not
voluntary. Therefore, Defendants successfully show that they had consent to search the vehicle.
Thus, this Court grants summary judgment on Count Three because there was reasonable
suspicion to make the motor vehicle stop and consent to search the car.
iv. COUNT FOUR
Count Four of the Complaint alleges that Defendants engaged in a civil conspiracy under
42 U.S.C. § 1985. Plaintiff argues that Defendants fabricated that there was a confidential
informant and a controlled buy because they were racially motivated to target Defendant, a
Hispanic male who appears black. (Pl.’s Br. in Opp. at 27).
Under 42 U.S.C. § 1985(3), a plaintiff has a cause of action if: (1) two or more persons
conspire to deprive any person of the equal protection of the law; (2) one or more of the
conspirators performs or causes to be performed any overt act in furtherance of the conspiracy;
and (3) that overt act injures the plaintiff in his person or property or deprives the plaintiff of any
right or privilege of a citizen of the United States. Barnes Found. v. Twshp. of Lower Merion,
242 F.3d 151, 162 (3d Cir. 2001) (citing Griffin v. Breckenridge, 403 U.S. 88, 102 (1971)).
Section 1985(3) “was not intended to provide a federal remedy for ‘all tortious, conspiratorial
interferences with the rights of others,’” but was intended to reach only those conspiracies
motivated by “class-based invidiously discriminatory animus.” Id. at 135 (quoting and citing
Griffin, 403 U.S. at 100-02).
Here, Defendants City of Plainfield, O’Brien, and Helwig along with Defendant Mulligan
move for summary judgment, arguing that Plaintiff fails to show discriminatory animus or the
existence of a conspiracy. Defendants argue that there is no evidence in the record that the
Defendants conspired against Plaintiff or that they were motivated by discriminatory animus.
The only proof Plaintiff proffers of Defendants’ purported discriminatory animus is the fact that
he is a Hispanic male who appears black. Defendants point out that the record is devoid of
evidence indicating that Defendants were motivated to stop and search Plaintiff based on his race
or any evidence that Defendants ever acted on racial discrimination in the past. Moreover,
central to Plaintiff’s § 1985 claim is that the Defendants were retaliating against Plaintiff for his
filing of a civil rights action against them. This motivation is not equivalent to discriminatory
animus. Because Plaintiff points to no facts from which a reasonable fact finder could infer that
this was a conspiracy motivated by racial discrimination, Defendants’ motions for summary
judgment on Count Four will be granted.
v. COUNT FIVE
Next, Plaintiff brings a Monell claim, arguing that Defendants “systematically ignored
complaints and reports concerning improper actions by patrol officers and narcotics detectives in
general, and the Defendants named above in particular, endorsed and ratified the improper
conduct of said individual Defendants and otherwise created a police practice or custom within
the department of Civil Rights violations.” (Compl. ¶ 42).
Local government units and supervisors are not liable under § 1983 solely on a theory of
respondeat superior. See City of Oklahoma City v. Tuttle, 471 U.S. 808, 824 n. 8 (1985); Monell
v. New York City Department of Social Services, 436 U.S. 658, 690-91, 694 (1978) (municipal
liability attaches only “when 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” complained of); Natale v. Camden County Correctional Facility, 318 F.3d 575, 58384 (3d Cir. 2003). “A defendant in a civil rights action must have personal involvement in the
alleged wrongs, liability cannot be predicated solely on the operation of respondeat superior.
Personal involvement can be shown through allegations of personal direction or of actual
knowledge and acquiescence.” Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)
The Court’s reasoning in Monell has created a “two-path track to municipal liability,”
based on either a municipal policy or custom that resulted in a constitutional violation. A policy
is made “when a decisionmaker possess[ing] final authority to establish municipal policy with
respect to the action issues a final proclamation, policy or edict.” Kneipp v. Tedder, 95 F.3d
1199, 1212 (3d Cir. 1996) (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986)
(plurality opinion)). A custom is an act “that has not been formally approved by an appropriate
decisionmaker,” but that is “so widespread as to have the force of law.” Bd. of County Comm'rs
of Bryan County, Oklahoma v. Brown, 520 U.S. 397, 404 (1997). Custom may also be
established by evidence of “knowledge and acquiescence.” Beck v. Pittsburgh, 89 F.3d 966, 971
(3d. Cir. 1996).
In addition, plaintiff bears the burden of proving that the municipal practice was the
proximate cause of the injuries suffered. Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d. Cir.
1990). In order to do this, “plaintiff must demonstrate a ‘plausible nexus’ or ‘affirmative link’
between the municipality’s custom and the specific deprivation of constitutional rights at issue.”
Id. at 851.
The Third Circuit has noted:
There are three situations where acts of a government employee may be deemed to be
the result of a policy or custom of the governmental entity for whom the employee
works, thereby rendering the entity liable under § 1983. The first is where “the
appropriate officer or entity promulgates a generally applicable statement of policy
and the subsequent act complained of is simply an implementation of that policy.”
The second occurs where “no rule has been announced as policy but federal law has
been violated by an act of the policymaker itself.” Finally, a policy or custom may
also exist where “the policymaker has failed to act affirmatively at all, [though] the
need to take some action to control the agents of the government ‘is so obvious, and
the inadequacy of existing practice so likely to result in the violation of constitutional
rights, that the policymaker can reasonably be said to have been deliberately
indifferent to the need.”
Natale, 318 F.3d at 584 (footnote and citations omitted).
1. POLICY AUTHORIZING ILLEGAL SEARCH AND SEIZURE
Plaintiff first argues that O’Brien was a “source sufficiently high” that when he
conducted the stop, search, seizure, and strip search of Plaintiff, he created an official policy
statement. (Pl.’s Br. in Opp. at 28-29). To determine whether an official has final decisionmaking authority in a Monell claim, a court assesses (1) whether the official is responsible under
state law for policy-making in the specific area of municipal business at issue, and (2) whether
the official’s authority in that area is “final and unreviewable.” Hill v. Borough of Kutztown, 455
F.3d 225, 245–46 (3d Cir. 2006).
Plaintiff argues that O’Brien was a final policymaker at the time of Plaintiff’s stops
because he was the narcotics division supervisor and that the narcotics division was an
independent division of the Plainfield Police Department, with no oversight. (Pl.’s Br. in Opp. at
28-29). Yet, Plaintiff fails to present actual evidence showing that O’Brien was responsible
under state law for making specific municipal policy. In fact, O’Brien testified at his deposition
that he did not create or develop any policy, procedures, or rules for the city. (Miller Cert Ex. C,
16:17-17-2). Plaintiff has failed to bring any proof otherwise and rests on mere allegations.
Moreover, Plaintiff’s claim fails because independent decisions of one officer do not prove that
there was an official policy. Therefore, Plaintiff’s first theory of Monell liability fails. 7
2. CUSTOM OF NOT INVESTIGATING INTERNAL AFFAIRS
Next, Plaintiff argues that Defendants failed to investigate Plaintiff’s internal affairs
complaint, showing that policymakers were deliberately indifferent to constitutional violations.
“A custom of failing to investigate citizen complaints may provide a basis for municipal liability
if a policy-maker (1) had notice that a constitutional violation was likely to occur, and (2) acted
with deliberate indifference to the risk.” Jackson v. Hamilton Twp., No. 10-3989, 2014 WL
1217662, at *3 (D.N.J. Mar. 24, 2014) (citing Hernandez v. Borough of Palisades Park Police
Dep't, 58 Fed. Appx. 909, 912 (3d Cir. 2003)). The Third Circuit considers actual written
civilian complaints that specifically show a repeated constitutional violation to be evidence of a
custom. Beck v. Pittsburgh, 89 F.3d at 973-75. Nevertheless, “mere statistics of the number of
complaints” does not justify that there were a custom authorizing unconstitutional practices
among law enforcement officers. Id. at 973-75; Merman v. City of Camden, 824 F. Supp. 2d
Plaintiff also suggests that “strip search was violative [sic] of the City of Plainfield’s own
policy and procedures regarding the same.” (Pl.’s Br. in Opp. at 29). Nevertheless, this
statement, in and of itself, is an admission that policies were in place to prevent the type of strip
search that Plaintiff claims violated his constitutional rights. Because the policy itself was not
the problem, Plaintiff fails in his Monell argument on this point.
581, 591 (D.N.J. 2010) (citing Strauss v. City of Chicago, 760 F.2d 765, 768–69 (7th Cir. 1985)).
“Rather than reciting a number of complaints or offenses, a Plaintiff must show why those prior
incidents deserved discipline and how the misconduct in those situations was similar to the
present one.” Merman, 824 F. Supp. 2d at 59 (citations omitted).
Here, Plaintiff argues that there was a custom of not investigating complaints because
Plaintiff’s internal affairs complaint was the sixth complaint brought against O’Brien in a
twelve-month period. (Pl.’s Br. in Opp. at 30). Plaintiff additionally argues that the internal
affairs procedure was a “sham” and that there was no substantive investigation. (Pl.’s Br. in
Opp. at 30-31). He argues that there was no performance review and there were no interviews of
certain officers that were on the scene. (Pl.’s Br. in Opp. at 30-31). Defendants, on the other
hand, argue that Plaintiff presents no evidence of the procedure being a sham, and that the
internal investigation process at the Plainfield Police Department actually comprised of a “full
investigation, written report and final outcome.” (Defs.’s Mov. Br. at 15).
Even when the Court accepts Plaintiff’s facts that there was no performance review and
no interviews of certain officers, Plaintiff does not succeed in showing that the Plainfield Police
Department had a custom of not investigating complaints against its officers. Although the
internal affairs investigation may not have been as comprehensive as it could have been in this
case, he does not show that this was the norm. Plaintiff merely states that there were six
complaints against O’Brien, but does not provide any information showing that those incidents
of misconduct were similar to the present one or that the investigations were handled in the same
way. In sum, Plaintiff here has failed to show evidence from which a reasonable jury can
conclude that the City of Plainfield had a custom that caused Plaintiff’s injury.
3. CUSTOM OF SUBSTANDARD POLICE TRAINING
Plaintiff additionally contends in the Complaint that Defendants were “responsible for
training, control and discipline” of other named Defendants. (Compl. ¶ 41). Construing the
Complaint liberally, Plaintiff implies that Defendants may be liable based on their failure to
properly train officers in the Plainfield Police Department.
The inadequacy of police training may serve as the basis for § 1983 liability “only where
the failure to train amounts to deliberate indifference to the rights of persons with whom the
police come into contact.” City of Canton v. Harris, 489 U.S. 378, 388 (1988). “Only where a
municipality’s failure to train its employees in a relevant respect evidences a ‘deliberate
indifference’ to the rights of its inhabitants can such a shortcoming be properly thought of as a
city ‘policy or custom’ that is actionable under § 1983.” Id. at 3 89. That a particular officer
may be unsatisfactorily trained will not alone suffice to fasten liability on the city, nor will it
suffice to prove that an injury or accident could have been avoided if an officer had better or
more training. Id. at 390–91. “Adequately trained officers occasionally make mistakes; the fact
that they do says little about the training program or the legal basis for holding the city liable.”
Id. at 391. For liability to attach, the identified deficiency in a city’s training program must be
closely related to the ultimate injury. Id. “To adopt lesser standards of fault and causation
would open municipalities to unprecedented liability under § 1983.” Id.
In his opposition papers, Plaintiff has not submitted any evidence as to why the training
was inadequate. As such, summary judgment will be granted in favor of Defendants on the claim
that the City of Plainfield inadequately trains its police officers. In conclusion, none of
Plaintiff’s theories of Monell liability succeed, and the motion for summary judgment on Count
Five by Defendant City of Plainfield, O’Brien, and Helwig is granted.
vi. COUNT SIX
All of the Defendants move for summary judgment on Plaintiff’s allegations in Count Six
of the Complaint that Defendants interfered with Plaintiff’s substantive due process and equal
protection rights under the federal and New Jersey constitutions. Plaintiff fails to respond to this
argument in his opposition brief.
Plaintiff’s lack of opposition does not necessarily indicate
that the motion will be granted, however, as the Court must assess whether the summary
judgment motion has been properly made and supported, and if granting summary judgment is
“appropriate.” See Anchorage Assocs. v. Virgin Islands Bd. of Tax Review, 922 F.2d 168, 175
(3d Cir. 1990); Robbins v. U.S. Foodservice, No. 11-4599, 2012 WL 3781258, at *3 (D.N.J.
Aug. 30, 2012).
1. SUBSTANTIVE DUE PROCESS CLAIM
In Graham v. Connor, the Supreme Court explained that where “the Fourth Amendment
provides an explicit textual source of constitutional protection against this sort of physically
intrusive governmental conduct, that Amendment, not the more generalized notion of substantive
due process must be the guide for analyzing these claims.” 490 U.S. at 395.
Here, the Fourth Amendment provides a basis for Plaintiff’s claims. Because the Fourth
Amendment is an explicit textual source of constitutional protection for the conduct that Plaintiff
alleges, Plaintiff’s substantive due process claims cannot proceed. Therefore, Defendants’
motions for summary judgment on Plaintiff’s substantive due process claim are granted.
2. EQUAL PROTECTION CLAIM
“The state standard for equal protection is the same standard that is used under the federal
constitution.” Feriozzi Co., Inc. v. City of Alt. City, 266 N.J. Super. 124, 138 n. 2 (1993) (citing
Levine v. Institutions & Agencies Dep. of N.J., 84 N.J. 234, 257 (1980)). To establish a
successful § 1983 claim, a plaintiff must prove that a defendant’s discriminatory action was
purposeful, and that the plaintiff was treated differently than other similarly situated individuals.
Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 273 (3d Cir. 2014) (citing Andrews v. City of
Philadelphia, 895 F.2d 1469, 1478 (3d Cir. 1990)). “[D]isparate impact alone is insufficient and
a plaintiff must show that discriminatory intent was a motivating factor, although it need not be
the sole motivating factor.” Novellino v. New Jersey Dep't of Corr. Mountainview Youth Corr.
Facility, No. 10-4542, 2011 WL 3418201, at *6 (D.N.J. Aug. 3, 2011) (citing Vill. of Arlington
Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264–66 (1977)).
Plaintiff here does not specify how he was treated differently than similarly situated
individuals and he does not bring any evidence to show that Defendants’ actions were motivated
by discrimination. Plaintiff relies on mere allegations. Thus, Defendants’ motions for summary
judgment on the equal protection claim are granted.
vii. COUNT SEVEN
In Count Seven, Plaintiff claims that Defendants violated the New Jersey constitution by
“falsely arresting Plaintiff, illegally searching and seizing the person of Plaintiff, maliciously
prosecuting Plaintiff, and conspiring to commit the acts aforesaid.” (Compl. ¶ 50). Defendants
City of Plainfield, O’Brien, and Helwig, as well as Defendant Mulligan move for summary
judgment on the malicious prosecution section of the claim.
“Although the prosecution of traffic offenses is regarded as quasi-criminal in nature, New
Jersey courts have treated this type of claim under the civil standards for malicious use of
process and malicious abuse of process, as opposed to the criminal standard for malicious
prosecution.” Dunne v. Twp. of Springfield, No. CIV. 08-5605, 2011 WL 2269963, at *4 (D.N.J.
Jan. 31, 2011), aff'd, 500 F. App'x 136 (3d Cir. 2012) (citing Vickey v. Nessler, 230 N.J. Super.
141, 148–49 (App.Div.1989)). Malicious use of process and malicious abuse of process are two
separate and distinct causes of action. Id. at *8.
To successfully bring a claim for malicious use of process, the plaintiff must show: “(1)
an action was instituted by the defendant against the plaintiff; (2) the action was motivated by
malice; (3) there was an absence of probable cause to prosecute; (4) the action was terminated
favorably to plaintiff; and (5) the plaintiff has suffered a special grievance.” Id. at *4 (citing
LoBiondo v. Schwartz, 199 N.J. 62, 90 (2009)). In contrast, “[t]o establish a claim for malicious
abuse of process, a plaintiff must show (1) the defendant has set legal process in motion for an
improper ulterior purpose, and (2) the defendant has committed a willful act in the use of process
which perverts the regular conduct of the proceeding to accomplish the improper purpose.” Id.
at *8 (citing Voytko v. Ramada Inn of Atlantic City, 445 F.Supp. 315, 325 (D.N.J. 1978)).
“[B]asic to the tort of malicious abuse of process is the requirement that the defendant perform
‘further acts’ after issuance of process ‘which represent the perversion or abuse of the legitimate
purposes of that process.’” Id. (quoting Baglini v. Lauletta, 338 N.J. Super. 282, 294 (App. Div.
Here, Defendants argue and Plaintiff concedes that the municipal proceeding was not
terminated favorably for him because he was found guilty of failing to use a turn signal.
Therefore, Plaintiff fails to show one of the elements required to bring a claim for malicious use
of process. But, Plaintiff argues that “while Defendant is technically correct in that the charge of
failure to use a turn signal was not terminated favorably to the Plaintiff, we are confronted here
with a unique set of facts and circumstances.” (Pl.’s Br. in Opp. at 31). Plaintiff explains that
there are unique circumstances here because the stop was pretextual and O’Brien lied in
municipal court about the true reason for the stop. Yet, this Court has already explained that a
pretextual stop is not unconstitutional. Just like in federal law, under New Jersey law “the fact
that the justification for the stop [is] pretextual is irrelevant.” State v. Barrow, 408 N.J. Super.
509, 518 (App. Div. 2009). Thus, Plaintiff’s argument that there are unique circumstances in this
case fails. These alleged unique circumstances are irrelevant to the favorable termination
analysis and do not show that the Defendants committed “further acts” to pervert the legal
process, because their acts were wholly acceptable. Plaintiff does not provide any other actual
evidence that Defendants commenced the litigation for an ulterior motive or committed acts to
pervert the legal process. Ultimately, because Plaintiff has failed to allege a favorable
termination of the underlying municipal proceeding and because Plaintiff has failed to provide
any evidence whatsoever that Defendants commenced the litigation for an ulterior motive or
committed acts to pervert the legal process, this Court grants summary judgment in favor of
Defendants on the malicious use of process and malicious abuse of process claims. 8
viii. COUNT EIGHT
Plaintiff also claims that “Defendants entered into an agreement to subject Plaintiff to
false arrest, unlawful search and seizure, false imprisonment, and unlawful retaliation in
violation of the New Jersey Constitution and the New Jersey Civil Rights Act, N.J.S.A. 10:6-2.”
“In New Jersey, a civil conspiracy is ‘a combination of two or more persons acting in concert to
commit an unlawful act, or to commit a lawful act by unlawful means, the principal element of
which is an agreement between the parties to inflict a wrong against or injury upon another, and
an overt act that results in damage.’” Banco Popular N. Am. v. Gandi, 184 N.J. 161, 179, 876
Defendants City of Plainfield, O’Brien, Helwig, as well as Defendant Mulligan argue that
Plaintiff is barred from bringing a malicious prosecution claim because he failed to file a Notice
of Tort Claim within 90 days of when the claim accrued. Because the Court grants summary
judgment on Plaintiff’s malicious prosecution claim on other grounds, the Court need not reach
A.2d 253 (2005) (quoting Morgan v. Union County Bd. of Chosen Freeholders, 268 N.J. Super.
337, 364 (App. Div. 1993)), certif. denied, 135 N.J. 468 (1994).
All of the Defendants move for summary judgment on the claim and Plaintiff does not
respond to Defendants’ argument. Plaintiff does not present any proof in the Complaint, in his
brief, or in the record to show that Defendants conspired and agreed to falsely arrest or
unlawfully search and seize Plaintiff. In turn, this Court grants summary judgment on Count
Eight of the Complaint.
ix. COUNT NINE
Next, Plaintiff brings claims under state law, alleging that “[o]n April 8, 2011,
Defendants wrongfully, unlawfully, maliciously, and without any warrant or pretense of legal
process, detained, confined, and falsely imprisoned Plaintiff and subjected him to humiliating
strip searches.” (Compl. ¶ 66). The Court has already addressed Defendant Mulligan’s motion
for judgment on the pleadings with regard to the strip search claim. But, this Court must also
address the motion for summary judgment by Defendant City of Plainfield, O’Brien, and Helwig
on Plaintiff’s false arrest and false imprisonment claim.
Under New Jersey law, false arrest has been defined as “the constraint of the person
without legal justification.” Ramirez v. United States, 998 F.Supp. 425, 434 (D.N.J. 1998)
(quoting Fleming v. United Postal Service, Inc., 255 N.J. Super. 108 (N.J. Law Div. 1992)).
New Jersey courts treat false arrest and false imprisonment as the same tort. Id. (citing Price v.
Phillips, 90 N.J. Super. 480, 484 (App. Div. 1966). To succeed with either a false arrest or false
imprisonment claim, a plaintiff must show two elements: “(1) an arrest or detention of the person
against his will; (2) done without proper legal authority or ‘legal justification.’” Id. (citing
Fleming, 255 N.J. Super. at 155). Probable cause is a legal justification for an arrest. Id.
To determine whether there is probable cause, courts look at the totality of the
circumstances. State v. Moore, 181 N.J. 40, 46 (2004). “The factors to be considered in
applying that test include a police officer’s common and specialized experience, and evidence
concerning the high-crime reputation of an area.” Id. (internal citations omitted). “Although
several factors considered in isolation may not be enough, cumulatively these pieces of
information may ‘become sufficient to demonstrate probable cause.’ Id. (internal citation
New Jersey statutes authorize police officers to arrest motorists who commit traffic
offenses in their presence. N.J.S.A. 39:5-25. The New Jersey Supreme Court has warned,
however, that warrantless arrests “cannot arbitrarily and unreasonably infringe on ‘the
fundamental constitutional rights guaranteed to all citizens.’” Pierce, 136 N.J. at 208. Thus,
“driving without a license, without more, would not constitute sufficient grounds for a custodial
arrest.” State v. Lark, 163 N.J. 294, 296 (2000). On the other hand, when a defendant acts
suspiciously in a way that makes officers believe that the defendant is engaging in some form of
criminal activity and fails to produce his driving credentials once he is stopped, officers may
have probable cause to arrest him. State v. Campbell, 53 N.J. 230, 237 (1969); State v. Gray, 59
N.J. 563, 568 (1971).
Here, law enforcement had probable cause to arrest Plaintiff because not only was he
unable to produce his license when he was pulled over for failing to use a signal, but he was also
driving with a known drug-dealer, Paco, just outside of the place where Paco was suspected to be
dealing drugs. Plaintiff admits that the officers were in the area following up on a complaint
about Paco drug dealing at 1108 Putnam Avenue in Plainfield and that O’Brien and Mulligan
personally knew Paco to be a drug dealer through their experiences in the narcotics unit. (PSMF,
4; PSSMF, 4-6). Therefore, because Plaintiff failed to use a turn signal, could not produce his
license, and was acting in a suspicious manner by picking up a drug dealer in an area believed to
be the location of the drug-dealing, Defendants cumulatively had enough information to
demonstrate probable cause to make the arrest. Defendants’ motion for summary judgment on
the state law false arrest claim is thus granted.
x. COUNT TEN
Plaintiff’s final claim is that Defendants were acting as Officers of the City of Plainfield
Police Division and in furtherance of Defendant City of Plainfield’s interest, and thus the City of
Plainfield is liable pursuant to the New Jersey Tort Claims Act. (Compl. ¶¶ 72-73). Under the
New Jersey Tort Claims Act, N.J.S.A. 59:2–2, a “public entity is liable for injury proximately
caused by an act or omission of a public employee within the scope of his employment.”
Defendant Mulligan moves for summary judgment, arguing that Plaintiff failed to comply
with other provisions of the New Jersey Tort Claims Act. The New Jersey Tort Claims Act,
N.J.S.A. § 59:8–3, bars suit on a claim “relating to a cause of action for death or for injury or
damage to person or to property” if the claimant fails to present his notice of claim to the entity
within 90 days of accrual of his claim. N.J.S.A. 59:8-8. “The filing of a late notice of claim with
an entity without leave of court is a nullity and does not constitute substantial compliance with
the terms of N.J.S.A. 59:8–9.” Rogers v. Cape May Cty. Office of Pub. Def., 208 N.J. 414, 427
The are two options for a plaintiff to “present” a notice of claim to the public entity:
either by delivery or certified mail. N.J.S.A. 59:8-10. “The claim shall be deemed to have been
presented and received at the time of the deposit. Proof of mailing may be made in the manner
prescribed by the Rules of Court.” N.J.S.A. 59:8-11. The New Jersey Court of Appeals, in
Guzman v. City of Perth Amboy, 214 N.J. Super. 167 (App. Div. 1986), has interpreted the “time
of deposit” to be the time of mailing, holding that “the Legislature thereby intended that the
giving of notice by certified mail was complete and deemed received within time upon deposit or
mailing, with the appropriate postage prepaid, within 90 days of the accrual of the claim.” Id. at
174. The Guzman Court thus explained that “even though receipt by the public entity may be
after the 90 days, the actual date of mailing of the certified mail notice is controlling under the
Act.” Id. at 176.
Here, the claim accrued on April 8, 2011, the day that Plaintiff was injured by
Defendants’ alleged acts. See Beauchamp v. Amedio, 164 N.J. 111, 117 (2000) (holding, in case
governed by the TCA, that cause of action generally accrues on date when wrongful conduct
results in injury). Therefore, Plaintiff needed to file the Notice of Claim by July 7, 2011.
Plaintiff points to a letter he wrote, which indicates that “[i]n accordance with N.J.S.A. 59:8-4,
this letter shall serve as formal notice of tort claim.” (Patti Cert. Ex. K). That letter is dated July
5, 2011. (Patti Cert. Ex. K). Plaintiff thus argues that the letter was sent on July 5, 2011. (Pl.’s
Br. in Opp. at 22). Plaintiff presents proof that the letter was stamped as delivered on the
certified mail receipt on July 12, 2011. (Patti Cert. Ex. K). Defendants argue that, even when
this evidence is taken by the Court as true, it still does not show that Plaintiff complied with the
New Jersey Tort Claims Act because July 12, 2011 is still five days after the 90-day period. The
date written on the letter does not mean that it was mailed in on that date, and there is no
evidence that the letter was mailed on July 5, 2011. Because there is a genuine issue of material
fact as to when the notice of tort claim was mailed, this Court denies Defendant Mulligan’s
motion for summary judgment on the ground that Plaintiff failed to file a notice of tort claim on
time. See Guzman, 214 N.J. Super 167, 176 (“If there is any factual dispute with respect to the
date on which the [ . . .] letter was actually mailed, then a hearing is required at which testimony
and evidence is to be presented. The inquiry should include an examination of the envelope, if
available, determination of the place of mailing and where there is a dispute as to sufficiency of
postage on the envelope.”). 9
In the alternative, Defendant Mulligan argues that he is entitled to immunity for claims
under the New Jersey Tort Claims Act. N.J.S.A. 59:3-3 states that: “a public employee is not
liable if he acts in good faith in the execution of enforcement of any law.” In determining good
faith under the Tort Claims Act, courts ask whether the public employee acted with objective
reasonableness, the same standard used in Section 1983 actions. Wildoner v. Borough of
Ramsey, 162 N.J. 375, 38 (N.J. 2000). Defendant Mulligan asserts a conclusory statement that
he acted in an objectively reasonable manner, with no support for this statement. (Def.
Mulligan’s Mov. Br. at 11). As discussed with regard to qualified immunity below, there are
genuine issues of material historical fact here as to whether Defendant Mulligan acted with
objective reasonableness under the circumstances. Therefore, the Court denies Defendant
Mulligan’s motion for summary judgment on this ground.
xi. QUALIFIED IMMUNITY
All of the Defendants finally move for summary judgment on the grounds that they are
entitled to qualified immunity for each of the claims that Plaintiff alleges against them. 10 Under
Additionally, Defendants point to a different letter that Plaintiff submitted, entitled “Notice of
Claim Pursuant To Title 59.” (Miller Cert. Ex. I). That letter is dated October 17, 2013, well
after the 90-day period expired. Defendants claim that the notice was not filed with the City of
Plainfield until October 23, 2013. (Def. Mulligan’s Mov. Br. at 10; Defs.’s Mov. Br. at 18). The
parties are free to argue about which letter served as the notice of claim at trial.
Because the Court has granted summary judgment in favor of Defendants on Plaintiff’s April
8, 2011 false arrest and unreasonable seizure claims, his August 20, 2013 unlawful search and
seizure claims, and his substantive due process and equal protection claims, the Court need not
address whether any of the Defendants are entitled to qualified immunity on those claims.
the doctrine of qualified immunity, law enforcement officers, like other public officials,
performing discretionary duties within the scope of their employment, are “shielded from
liability for civil damages insofaras their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982). In determining whether a police officer is entitled to qualified
immunity, both the existence of a clearly established right and the objective reasonableness of
the officer’s actions are questions of law for the Court to decide, but any disputed issues of
historical fact relevant to the Court’s determination must be submitted to the jury. See Curley v.
Klem, 298 F.3d 271, 278 (3d Cir. 2002) (“while we have recognized that it is for the court to
decide whether an officer’s conduct violated a clearly established right, we have also
acknowledged that the existence of disputed historical facts material to the objective
reasonableness of an officer’s conduct will give rise to a jury issue.”).
“Unless [a] plaintiff’s allegations state a claim of violation of clearly established law, a
defendant pleading qualified immunity is entitled to dismissal before the commencement of
discovery.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Qualified immunity offers a
defendant the “entitlement not to stand trial or face the other burdens of litigation” and, “like an
absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.” Id.
Claims of qualified immunity are to be evaluated using a two-step process. First, the court must
determine whether the facts, taken in the light most favorable to the plaintiff, show a
constitutional violation. Bennett v. Murphy, 274 F.3d 133, 135 (3d Cir. 2002). If the plaintiff
fails to make out a constitutional violation, the qualified immunity inquiry is at an end; the
officer is entitled to immunity.
For the reasons noted above, however, the Plaintiff's submissions in this case, when
viewed in the light most favorable to him, do make out Fourth Amendment constitutional
violations for unlawful search and excessive force. The Court, therefore, must proceed to the
second step of the analysis to determine whether the constitutional rights at issue were clearly
established at the time of the alleged violation. This requires the Court to ask the question of
whether, “in the factual scenario established by the plaintiff, would a reasonable officer have
understood that his actions were prohibited?” Id.
“This court has adopted a broad view of what constitutes an established right of which a
reasonable person would have known.” Burns v. County of Cambria, 971 F.2d 1015, 1024 (3d
Cir. 1992) (citations and quotation marks omitted). Thus, in People of Three Mile Island v.
Nuclear Regulatory Comm'rs, 747 F.2d 139, 144-45 (3d Cir. 1984), we held that there does not
have to be “precise factual correspondence” between the case at issue and a previous case in
order for a right to be “clearly established,” and we would not be “faithful to the purposes of
immunity by permitting ... officials one liability-free violation of a constitutional or statutory
With respect to the excessive force claim, a reasonable fact finder, taking all inferences in
favor of the Plaintiff, could find that Defendants’ use of force during the conduct of the arrest
was excessive. Plaintiff alleges that the handcuffing caused him severe injury and that he was in
obvious pain. A reasonable police officer would have known that use of excessive force in the
course of handcuffing, when it causes a severe injury or there are obvious signs of pain, is
prohibited under the Fourth Amendment. Velius, 754 F. Supp. 2d at 694 (citing Kopec v. Tate,
361 F.3d 772; Gilles v. Davis, 427 F.3d 197).
As for the unlawful search claims, if the Court draws all inferences in favor of the
Plaintiff as it must, and thus assumes that O’Brien fabricated the smell of marijuana during his
stop of Plaintiff, a reasonable fact finder could find that Defendants’ search of Plaintiff’s car was
unlawful. A reasonable police officer would have known that a search of a motor vehicle,
without probable cause and without an exception to the warrant requirement, was prohibited
under the Fourth Amendment. The only valid exception to the warrant requirement that
Defendants put forth is the “automobile exception.” This exception, however, can only be
invoked when law enforcement has probable cause to believe that the vehicle contains
contraband. Burton, 288 F. 3d at 100. If the smell of marijuana was indeed fabricated, officers
had no basis to invoke the automobile exception. In turn, they would have known that the search
of Plaintiff’s vehicle violated the Fourth Amendment. 11
This Court, therefore, denies summary judgment to the Defendants based on qualified
immunity because disputed issues of material fact exist relevant to the Court’s determination of
Defendants “objective reasonableness” and the right of Plaintiff to be free of excessive force and
unlawful searches in these particular circumstances were clearly established rights.
Additionally, the Court denies Defendant Mulligan’s individual motion for summary judgment
based on qualified immunity on this claim. In that motion, Defendant Mulligan admits that he
was “at the scene of the motor vehicle stop,” but denies that he participated in the stop, arrest,
and search of Plaintiff. (Def. Mulligan’s Mov. Br. at 6). Plaintiff responds that Defendant
Mulligan did participate, and points to Mulligan’s own statements implicating that he
participated. (Patti Cert. Ex. G). The Court must take Plaintiff’s evidence as true for purposes of
this motion. Thus, because there are genuine issues of material fact as to Defendants’
involvement and the reasonableness of the search and force used, this Court therefore denies
Defendant Mulligan’s motion for summary judgment.
For the foregoing reasons, the Court will grant Defendant Mulligan’s motion for
judgment on the pleadings, grant Plaintiff’s motion for leave to amend, and grant in part and
deny in part Defendants’ motions for summary judgment. An appropriate Order will be filed
s/ Stanley R. Chesler
STANLEY R. CHESLER
United States District Judge
Dated: January 25, 2017
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