STEPHENS et al V. CITY OF ENGLEWOOD, ET AL
Filing
82
OPINION. Signed by Judge William J. Martini on 11/3/15. (gh, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civ. No. 2:14-05362 (WJM)
MARC AND TYRONE STEPHENS,
Plaintiffs,
OPINION
v.
CITY OF ENGLEWOOD, et al.,
Defendants.
WILLIAM J. MARTINI, U.S.D.J.:
Proceeding pro se, Plaintiffs Marc and Tyrone Stephens have filed a 20-count
complaint against an attorney, the City of Englewood, the Englewood Police Department,
and a number of individual police officers. Those Defendants have all moved for summary
judgment. There was no oral argument. Fed. R. Civ. P. 78(b). For the reasons set forth
below, the motions for summary judgment are GRANTED.
I.
BACKGROUND
Tyrone Stephens, and his older brother, Marc Stephens, bring this action against
numerous Defendants. 1 For the purposes of this opinion, the action can divided into two
parts: (1) legal malpractice claims against Defendant Nina Remson, and (2) various claims
against the City of Englewood, the Englewood Police Department, and some of
Englewood’s police officers. Unless otherwise noted, the following facts are undisputed.
A. Nina Remson’s Representation of Tyrone
In 2012, juvenile complaints were filed against Tyrone in the Superior Court of New
Jersey, Bergen County. Remson Decl. at ¶¶ 3-7. In March 2012, Remson and her law
firm, Nina C. Remson Attorney at Law, LLC, were retained to represent Tyrone, who was
then a minor, in connection with those complaints. Id. Marc paid a portion of the retainer
1
For the sake of brevity and the avoidance of confusion, the Court will refer to Plaintiffs by their
first names only.
1
fees required for Remson’s services. In June 2012, Plaintiffs’ mother, Viola, retained
Remson to represent Tyrone in a separate matter. Id. at ¶ 8.
According to Remson, communications between her and Marc became unworkable,
which culminated in Marc informing her that he was taking over the representation of
Tyrone. Remson further states that her difficulties in communicating with Tyrone caused
her to file a motion to be relieved as counsel, which was unsuccessful. In connection with
her motion, Remson also turned over her entire case file on Tyrone to Marc and Viola.
According to Plaintiffs, Marc entered into an agreement with Remson providing that
Remson would not have Tyrone take a plea deal in connection with the juvenile complaints.
Complt. at ¶ 131. Marc further contends that Remson violated this agreement by having
Marc take a plea agreement with the Bergen County Prosecutor’s Office (“BCPO”). Id.
Remson admits that she appeared in court with Tyrone and Viola and that Tyrone plead
guilty in accordance with the plea offer. Remson Decl. at ¶¶ 14-16.
Plaintiffs then filed this lawsuit against Remson on August 26, 2014. The complaint
as against Remson alleges legal malpractice, breach of contract, and ineffective assistance
of counsel. Complt. at ¶¶ 124-138. On October 22, 2014 Marc emailed discovery requests
to Remson’s attorneys. Remson Statement of Material Facts (Remson SUMF) at ¶13. Four
days later, on October 26, 2014, Remson filed her answer to Plaintiffs’ complaint. ECF
No. 16. The answer’s Nineteenth Separate Defense contends that “Plaintiffs’ claims should
be dismissed for failure to timely secure and serve an appropriate Affidavit of Merit.”
Remson Answer at 31. Remson has yet to receive an Affidavit of Merit from Plaintiffs.
Remson SUMF at ¶19.
B. The October 31 Incident
Detectives Desmond Singh, Marc McDonald, Nathaniel Kinlaw, and Detective
Lieutenant Claudia Cubillos are police officers employed by the Englewood Police
Department. Detective Santiago Incle, Jr. formerly served as a police officer for
Englewood. Englewood Statement of Material Facts (“Englewood SUMF”) at ¶¶1-5. The
Court will refer to those individuals collectively as, “the Englewood Detectives.” On
October 31 at or around 10:12 pm, three individuals, Kristian Perdomo, Santiago Cortes,
and Jeisson Duque were assaulted outside a 7-Eleven. The Court will refer to this event as
“the October 31 Incident.” The next day, an Englewood Police Officer (who is not named
as a Defendant) was dispatched to the Englewood Hospital and Medical Center emergency
room to speak with the victims of the assault. Id. at ¶12. According to the officer’s report,
Perdomo stated that he and the two other victims were approached by a group of 20-30
teenage black males who demanded the victims’ possessions. When Duque refused, the
group kicked, punched, and stomped him. When Perdomo and Cortes attempted to
intervene on Duque’s behalf, they were also attacked. The attackers then fled in various
directions. Witness bystanders contacted the police, and the victims were treated for
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various injuries. Id. at ¶¶14-15. This resulted in the Englewood Police Department
launching an investigation into who was responsible for the October 31 Incident.
In line with its investigation, Detectives McDonald and Singh reported to the
hospital to meet with the victims. Id. at ¶19. Duque testified that he could not identify any
of the attackers, but that one of them was on a bicycle and was wearing a mask. Id. at 25.
Perdomo provided similar testimony, but also noted that “Derek” – a boy whom Perdomo
recognized from the soccer team – was one of the attackers. Id. at ¶27.
Detectives Singh and McDonald also interviewed Cortes’ sister, Natalia. According
to a police report, Natalia identified the photos of the attackers from a photo ID book. Id.
at 31-33. Specifically, Natalia identified the photos of the following three individuals:
Justin Evans, Derrick Gaddy, and Tyrone Stephens. Id. at. ¶32.
On November 5, 2012, Detective McDonald received an anonymous tip that Kirk
McIntosh Jr. and Jahquan Graham were involved in the October 31 Incident. After being
read his Miranda rights and swearing to tell the truth, McIntosh admitted that he was
involved in the October 31 Incident, but made no mention of Tyrone. Id. at ¶41; see also
Stephens’ Resp. to Englewood SUMF at ¶42. Shortly thereafter, McIntosh was taken into
custody and charged with several offenses. Id.
That same day, Detectives McDonald and Singh brought in Justin Evans – who
Natalia Cortes identified from a photo ID book – for questioning. Id at ¶43. 2 After being
Mirandized, Evans ultimately admitted under oath to striking one of the victims during the
October 31 Incident. He also testified that Tyrone was involved in the attack. Specifically,
Evans testified that Tyrone was the architect of the attack and was the first to start punching
the victims at the scene. Id. at ¶47.
On November 8, 2012, Detectives McDonald and Singh interviewed Tyrone at the
Englewood Police Station, all while in the presence of Marc. After being Mirandized,
Tyrone denied any involvement in the October 31 Incident. Id. at 51. Marc claimed that
Tyrone was home at the time of the October 31 Incident, and Tyrone agreed with his
brother’s recollection. Id. at ¶¶53-54. After the interview, Tyrone was taken into custody
and charged with several offenses. Id. at 57.
According to a Supplementary Investigation Report prepared by Detective Kinlaw
(hereinafter “the Kinlaw Report”), on November 9, 2012, Tyrone had a conversation with
Jaquan Graham, who was also charged in connection with the October 31 Incident, from a
nearby holding cell. According to the Kinlaw Report, when Graham expressed confusion
as to why he was in a holding cell, Tyrone stated: “I know why we are here, that f**cking
rat Derek told.” Englewood SUMF at ¶¶62-63 (citing Pakrul Decl., Ex. 18, Kinlaw Report,
prepared November 9, 2012). Tyrone denies ever having this conversation. Id. at ¶65.
2
When questioned by the police, McIntosh also identified Evans as one of the attackers. Pakrul
Decl., Ex. 9, McIntosh Transcript, 31:7-18.
3
After arresting Tyrone, the Englewood Police Department continued its
investigation into the October 31 Incident. With respect to the investigation into Tyrone,
suspect Jacquire Roberts told police that he was in a car with Tyrone when the October 31
Incident took place. Englewood SUMF at ¶¶74-76. According to the Englewood
Detectives, Roberts’ recollection conflicted with the alibi given by Marc, which stated that
Tyrone was home at the time of the October 31 Incident. Id. After interviewing other
suspects and witnesses, the Englewood Police Department administratively closed the case
and turned it over to the BCPO. Id. at ¶81.
In December 2012, Detective McDonald filed criminal complaints against Tyrone
for first degree robbery, second degree aggravated assault, and fourth degree riot.
Englewood SUMF at ¶82. At a probable cause hearing held before the Honorable Gary N.
Wilcox, Detective McDonald testified regarding the investigation into Tyrone. He
specifically noted that Natalia Cortes identified Tyrone in a photo ID book, that coDefendant Justin Evans named Tyrone as the architect behind the attack, and that Tyrone
made incriminating statements to another suspect in a holding cell. Id. at ¶¶83-86.
Tyrone’s attorney, Jordan Comet, then presented a defense on behalf of his client.
He called Tyron Roy, who testified that on the night of the October 31 Incident, Tyrone
Stephens joined him for a car ride, accompanied him to McDonalds, and then was dropped
off at home. Id. at ¶88. Tyrone’s attorney also pointed out that the alleged identification
made by Natalia Cortes was nowhere to be heard on the audio recording of her interview.
Pakrul Decl., Ex. 26, Transcript of 12/20/12 Probable Cause Hearing at 22:23-23:1.
Throughout the course of the hearing, Tyrone’s attorney attempted to poke other holes in
the prosecution’s case. Id. at 23:1-56:21.
After hearing the evidence, Judge Wilcox noted that the prosecution may have some
difficulty proving that Tyrone was guilty beyond a reasonable doubt. However, he noted
that a probable cause hearing does not involve such a stringent burden of proof, and that
the State demonstrated a well-grounded suspicion that Tyrone committed the alleged
offense. Id. at 96:16-97:4.
On February 26, 2013, Judge Wilcox held another hearing to, among other things,
hear additional evidence from Tyrone challenging the State’s case against him. Englewood
SUMF at 90. Of particular note was the testimony of Natalia Cortes, which was at times
confusing and inconsistent. Ms. Cortes first seemed to testify that she recalled identifying
Tyrone as one of the persons responsible for the October 31 Incident. However, just
minutes later she testified that she did not identify Tyrone Stephens whatsoever.
Englewood SUMF at ¶¶91-95. Notwithstanding Ms. Cortes’ testimony, Judge Wilcox
concluded that there was probable cause for the issuance of a criminal complaint against
Tyrone. Englewood SUMF at ¶¶97-99. A Grand Jury then indicted Tyrone later that year.
Id. at ¶100.
After Tyrone was indicted, his co-defendant, Justin Evans, took a plea deal in which
he plead guilty to the charges arising out of the October 31 Incident. Id. at ¶101. Evans
admitted to the charged offenses and stated that he falsely implicated Tyrone as an
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accomplice. Evans believed that Tyrone implicated him as a person involved in charged
offenses, so he decided to falsely accuse Tyrone as revenge. Id. at ¶¶101-14. Defendants
point out, however, that Evans never claimed that the police forced him to implicate
Tyrone. Id at. ¶105. After Evans recanted his accusations, prosecutors dismissed the
indictment against Tyrone, who was released from jail shortly thereafter. Id. at ¶107.
Tyrone’s claims in connection with this incident are against the Englewood
Detectives, the Englewood Police Department, and the City of Englewood. Like Remson,
all of those Defendants have moved for summary judgment.
II.
LEGAL STANDARD
Federal Rule of Civil Procedure 56 provides for summary judgment “if the
pleadings, the discovery [including, depositions, answers to interrogatories, and
admissions on file] and disclosure materials on file, and any affidavits show that there is
no genuine issue as to any material fact and that the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 32223 (1986); Turner v. Schering-Plough Corp., 901 F.2d 335, 340 (3d Cir. 1990). A factual
dispute is genuine if a reasonable jury could find for the non-moving party, and is material
if it will affect the outcome of the trial under governing substantive law. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court considers all evidence and
inferences drawn therefrom in the light most favorable to the non-moving party. Andreoli
v. Gates, 482 F.3d 641, 647 (3d Cir. 2007).
Initially, the moving party has the burden of demonstrating the absence of a genuine
issue of material fact. Celotex Corp., 477 U.S. at 323. Once the moving party has met this
burden, the nonmoving party must identify, by affidavits or otherwise, specific facts
showing that there is a genuine issue for trial. Id. The opposing party must do more than
just rest upon mere allegations, general denials, or vague statements. Saldana v. Kmart
Corp., 260 F.3d 228, 232 (3d Cir. 2001). Rather, to withstand a proper motion for summary
judgment, the nonmoving party must identify specific facts and affirmative evidence that
contradict those offered by the moving party. Anderson, 477 U.S. at 256–57.
III.
CLAIMS AGAINST NINA REMSON
Remson is entitled to summary judgment because Plaintiffs failed to comply with New
Jersey’s affidavit of merit statute, N.J.S.A. 2A:53A-27. New Jersey’s affidavit of merit
statute requires that a plaintiff show “that the complaint is meritorious by obtaining an
affidavit from an appropriate licensed expert attesting to the ‘reasonable probability’ of
professional negligence.” Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144, 149-50
(2003) (citing N.J.S.A. 2A:53A-27). The plaintiff must provide the affidavit within sixty
days of the filing of the answer or, for good cause shown, within an additional sixty-day
period. Id. at 150. Where a plaintiff fails to serve the affidavit within 120 days of the filing
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of the answer, the complaint is subject to dismissal with prejudice. Id. Regardless of how
a claim is labeled, it will be subject to the affidavit of merit requirement if it is based on
the allegation that an attorney deviated from the acceptable standard of care. See New
Hampshire Ins. Co. v. Diller, 678 F. Supp.2d 288 (D.N.J. 2009); Nagim v. N.J. Transit,
369 Super 103, 116 (N.J. Super. Ct. Law. Div. 2003).
Plaintiffs admit that they never served Remson with an affidavit of merit. However,
they put forth a number of arguments for why they were not required to comply with the
affidavit of merit statute. The Court rejects these arguments and will enter summary
judgment in Remson’s favor.
Plaintiffs first argue that the statute does not apply because the Court did not hold a
Ferreira conference. However, the failure to hold a Ferreira conference does not toll the
affidavit of merit statute’s 120-day deadline. Paragon Contractors, Inc. v. Peachtree
Condominium Ass’n, 202 N.J. 415, 425-26 (2010). Plaintiffs also contend that Remson
failed to provide them with the discovery needed to complete an affidavit of merit.
Therefore, Plaintiffs argue that N.J.S.A. § 2A:53A-28 allows them to file a sworn statement
in lieu of an affidavit of merit. In order to avail themselves of that exception to the
requirement, however, Plaintiffs were required to notify Remson that they needed certain
information for the preparation of an affidavit of merit. Scaffidi v. Horvitz, 343 N.J. Super
552, 554 (N.J. Super. Ct. App. Div. 2001). The record shows that Plaintiffs did not provide
Remson with any notification of that sort. Therefore, Plaintiffs’ argument is without merit.
Moreover, the record shows that Plaintiffs were in possession of Remson’s entire case file
on Tyrone at the time they filed this lawsuit. Plaintiffs have not explained why that
information was insufficient to comply with the statute, especially considering that the
affidavit of merit requirement “is not concerned with the ability to prove the allegation
contained in the complaint….” See Hubbard v. Reed, 168 N.J. 387, 394 (2001). For those
reasons, the Court also rejects Plaintiffs’ argument that Remson is equitably estopped from
raising an affidavit of merit defense. Cf. Stoecker v. Echevarria, 408 N.J. Super. 597 (N.J.
Super. Ct. App. Div. 2009).
Plaintiffs further argue that under the “common knowledge exception,” the affidavit of
merit requirement does not apply in this case. The common knowledge exception provides
that an affidavit of merit is not required where the alleged careless acts are “quite obvious”
so that “‘jurors’ common knowledge as lay persons is sufficient to enable them, using
ordinary understanding and experience, to determine a defendant’s negligence without the
benefit of the specialized knowledge of experts.’” Palanque v. Lambert-Woolley, 168 N.J.
398, 406 (2001) (citing Hubbard, 168 N.J. at 394). This is not one of those cases.
Plaintiffs’ claims implicate a thicket of complicated legal issues surrounding Remson’s
relationship with her client. While Remson apparently believed that taking a plea deal
would be in Tyrone’s best interest, Marc adamantly contends that he instructed her to take
the case to trial. Remson was therefore faced with a conundrum; she had to balance what
she believed to be the best interests of her client, who at the time was a minor, with the
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wishes of an older brother who paid a portion of the retainer fee and claimed to be Tyrone’s
guardian. See Restatement (Third) of Law Governing Lawyers §24A, cmt. b (in cases
where interests of minor client conflict with wishes of legal guardian, attorney must
exercise informed professional judgment). 3 Whether Remson acted negligently in this
unique scenario is not the type of question that a lay person could answer without the
benefit of specialized experts. Consequently, the common knowledge exception does not
apply and summary judgment will be entered in Remson’s favor.
IV.
CLAIMS AGAINST THE ENGLEWOOD DETECTIVES
A. 42 U.S.C. § 1983 Claims: False Arrest, “False Evidence,” Malicious Prosecution,
False Imprisonment, Conspiracy
Plaintiffs assert a number of different Section 1983 claims against the Englewood
Detectives. First is Tyrone’s Section 1983 claim accusing the Englewood Detectives of
false arrest. In order to prevail on his false arrest claim, Tyrone must show that the
Englewood Detectives arrested him without probable cause. Groman v. Township of
Manalapan, 47 F.3d 628, 634 (3d Cir. 1995). Indeed, “[t]he proper inquiry in a section
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.” Id. (citing Dowling v. City of Phila., 855 F.2d 136,
141 (3d Cir. 1988)). While probable cause requires more than mere suspicion, it does not
require the type of evidence needed to support a conviction. See Reedy v. Evanson, 615
F.3d at 197, 212 (3d Cir. 2010) (quotations and citations omitted). Probable cause to arrest
exists where the arresting officer possesses sufficient knowledge to form a reasonable
belief that the person being arrested is committing or has committed the charged offense.
Id. (citing Orsatti v. N.J. State Police, 71 F.3d 480, 482 (3d Cir. 1995)). Put simply, the
relevant inquiry is whether, after considering the totality of the circumstances, there was a
“fair probability” that the arrestee committed the crime at issue. Id. (citing Wilson v. Russo,
212 F.3d 781, 789 (3d Cir. 2000). See also Illinois v. Gates, 462 U.S. 213, 230 (1983).
Viewing the evidence in a light most favorable to the non-movants, the Court concludes
that the Englewood Detectives had probable cause to arrest Tyrone. The Englewood
Detectives had four main pieces of evidence implicating Tyrone in the October 31 Incident:
(1) the alleged photo identification by Natalia Cortes; (2) the statements made by Justin
Evans; (3) inconsistencies in testimony regarding Tyrone’s alibi; and (4) the statement
Tyrone allegedly made to Jaquan Graham while in a holding cell. In opposing summary
judgment, Tyrone focuses on the fact that the alleged photo identification made by Ms.
3
Plaintiffs also argue that the affidavit of merit statute is “facially unconstitutional” because it
imposes excessive cost on litigants defendants. This argument is without merit. See Porter v.
Dept. of Treasury, 564 F.3d 176, 180 (3d Cir. 2009) (litigants who are granted in forma pauperis
status must bear the costs of expert witness fees)
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Cortes was not recorded. He further emphasizes that at a probable cause hearing, Ms.
Cortes (arguably) testified that the identification never took place. However, even if the
Court were to disregard the photo identification, it would not change the fact that Justin
Evans informed the Englewood Detectives that Tyrone was one of his accomplices in the
October 31 Incident. 4 See, e.g., Green v. City of Paterson, 971 F.Supp. 891, 907 (D.N.J.
1997) (citing United States v. Harris, 956 F.2d 177, 180 (8th Cir. 1992)). Moreover, the
record shows that a grand jury indicted Tyrone on some of the charges for which he was
arrested. Under Third Circuit precedent, the indictment provides an independent basis for
concluding that the Englewood Detectives had probable cause to arrest Tyrone. See, e.g.,
Trabal v. Wells Fargo Armored Serv. Corp., 269 F.3d 243, 251 (3d Cir. 2001) (grand jury
indictment “establishes probable cause by definition”).
For the same reasons, the Englewood Detectives are entitled to summary judgment on
Tyrone’s malicious prosecution claims. Estate of Smith v. Marasco, 318 F.3d 497, 521 (3d
Cir. 2003) (malicious prosecution claim requires showing that defendants acted
maliciously and for reasons other than bringing plaintiff to justice). Moreover, the above
analysis requires that the Court also enter judgment in favor of the Englewood Detectives
on Tyrone’s false imprisonment claim. Groman, 47 F.3d at 636 (an arrest without probable
cause cannot be the source of a false imprisonment claim) (citing Baker v. McCollan, 443
U.S. 137, 142 (1979)).
Tyrone also brings a claim for “false evidence” under Section 1983. This claim arises
out of Plaintiffs’ allegation that Detective Kinlaw lied in his police report by falsely
claiming that Tyrone made incriminating comments to Jaquan Graham while in a holding
cell. This claim fails for two primary reasons. First, aside from his own self-serving claim
that he never made incriminating statements to Graham, Tyrone has not offered a shred of
evidence undermining the credibility of the Kinlaw Report. Kirleis v. Dickie, McCamey &
Chilcote, P.C., 560 F.3d 156, 161 (3d Cir. 2009). Second, even if Tyrone did offer such
evidence, “[i]t is well settled that police officers are absolutely immune from § 1983 suits
for damages for giving allegedly perjured testimony…” Blacknall v. Citarella, 168
Fed.Appx. 489, 492 (3d Cir. 2006) (citing Briscoe v. LaHue, 460 U.S. 325 (1983)).
Therefore, the Englewood Detectives are entitled to summary judgment on Tyrone’s false
evidence claim. Moreover, the Englewood Detectives are entitled to summary judgment
on Tyrone’s conspiracy claim because without an actual deprivation, there can no liability
for conspiracy under Section 1983. See Holt Cargo Sys. V. De. River Port Auth., 20
4
Tyrone argues that the identification did not establish probable cause because Evans made it only
after police misleadingly told him that Tyrone implicated him in the October 31 Incident.
However, the Supreme Court has held that “[p]loys to mislead a suspect or lull him into a false
sense of security” do not raise constitutional concerns so long as they do not rise to the level of
coercion. Illinois v. Perkins, 496 U.S. 292, 297 (1990). Because there is nothing on the record
indicating that the Englewood Detectives coerced Evans into identifying Tyrone, Evans’
identification was sufficient to establish probable cause for Tyrone’s arrest.
8
F.Supp.2d 803,843 (E.D.Pa. 1998) (citing Andree v. Ashland County, 818 F.2d 1306, 1308
(7th Cir. 1987).
B. State Law Claims: Intentional Infliction of Emotional Distress, Negligence,
N.J.S.A. 10:6-1
The Englewood Detectives are also entitled to summary judgment on Plaintiffs’ state
law claims. With respect to Tyrone’s New Jersey Civil Rights Act (“NJCRA”) claim,
judges in this district have repeatedly interpreted the NJCRA analogously to Section 1983.
See, e.g., Chapman v. New Jersey, No. 08-4130, 2009 WL 2634888, *3 (D.N.J. August 25,
2009). Moreover, the provisions of the New Jersey Constitution that are relevant to this
case do not afford more protection than their federal counterparts. See Sebastian v. Vorhees
Tp., No. 08—6097, 2011 WL 540301, *7 n.11 (D.N.J. Feb. 8, 2011) (citing Desilets on
behalf of Desilets v. Clearview Regional Bd. of Educ., 627 A.2d 667, 673 (N.J. Super. Ct.
App. Div. 1993). Having found that the Englewood Detectives did not violate Section
1983, it therefore follows that those individuals did not violate the NJCRA.
The Englewood Detectives are also entitled to summary judgment on Tyrone’s
Intentional Infliction of Emotional Distress (“IIED”) claim. To make out a claim for IIED,
a plaintiff “must establish intentional and outrageous conduct by the defendant, proximate
cause, and distress that is severe.” Tarr v. Ciasulli, 181 N.J. 70, 77 (2004) (citing Buckley
v. Trenton Saving Fund Soc’y, 111 N.J. 355, 366 (1988)). Conduct will be deemed
“outrageous” for the purposes of a Section 1983 claim only where it is “‘so extreme in
degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious,
and utterly intolerable in a civilized community.’” Buckley v. Trenton Sav. Fund Soc’y,
111 N.J. 355, 365-67 (1988) (quoting Restatement (Second) of Torts § 46 cmt. d). Even
construing the evidence in a light most favorable to Plaintiffs, nothing on the record
indicates that the Englewood Detectives committed outrageous conduct. At the very least,
the Englewood Detectives received a statement from a suspect implicating Tyrone as the
architect of the October 31 Incident. Moreover, Tyrone has produced no evidence refuting
the fact that the Englewood Detectives received inconsistent statements regarding Tyrone’s
whereabouts during the relevant time period. 5 Therefore, the Englewood Detectives did
not commit outrageous conduct, and they are entitled to summary judgment on Tyrone’s
IIED claim.
Similarly, there is no evidence supporting Tyrone’s negligence and defamation
claims. To make out a negligence claim, a plaintiff must prove the following four elements:
(1) a duty of care owed to plaintiff by defendant, (2) a breach of that duty by defendant, (3)
5
Similarly, with the exception of self-serving denials made by Tyrone himself, Plaintiffs have
not put forth a scintilla of evidence casting doubt on the legitimacy of the Kinlaw Report, which
stated that Tyrone made incriminating statements to another suspect.
9
proximate cause, and (4) actual damages. Brunson v. Affinity Fed. Cred. Union, 199 N.J.
381, 400 (2009). To make out a defamation claim, a plaintiff must prove the following
three elements: “(1) the assertion of a false and defamatory statement concerning another;
(2) the unprivileged publication of that statement to a third party; and (3) fault amounting
to at least negligence.” DeAngelis v. Hill, 180 N.J. 1, 13 (2004). Tyrone has not presented
any evidence indicating that the Englewood Detectives acted negligently. Based on
witness statements, the Englewood Detectives reasonably identified Tyrone as a suspect in
the October 31 Incident and decided to charge him. The fact that the BCPO ultimately
dropped its case against Tyrone does not change that result.
V.
CLAIMS AGAINST THE CITY OF ENGLEWOOD AND THE
ENGLEWOOD POLICE DEPARTMENT
As explained in the foregoing section, the Englewood Detectives are entitled to
summary judgment on all claims against them. For the reasons stated below, the same goes
for the City of Englewood and the Englewood Police Department. It is well settled that
“[w]ithout a constitutional violation by the individual officers, there can be no § 1983 or
Monell … liability.” Phillips ex rel. Estate of Phillips v. Northwest Regional
Communications, 391 Fed. Appx. 160, 168 n. 7 (3d Cir. 2010) (citing Sanders v. City of
Minneapolis, 474 F.3d 523, 527 (8th Cir. 2007)). In light of that rule, the City of
Englewood and the Englewood Police Department are also entitled to summary judgment
on Plaintiffs’ Section 1983 claims, including the claim for “[f]ailure to [i]mplement
[a]ppropriate [p]olicies, [c]ustoms, and [p]ractices.” For the same reason, those
Defendants are entitled to summary judgment on Plaintiffs’ state law claims. See, e.g.,
Hart v. City of Jersey City, 308 N.J. Super. 487, 493 (N.J. Super. Ct. App. Div. 1998)
(police department cannot be liable on respondeat superior theory where individual police
officers were not liable).
VI.
CONCLUSION
For the foregoing reasons, all three motions for summary judgment are GRANTED.
An appropriate order accompanies this decision.
/s/ William J. Martini
WILLIAM J. MARTINI, U.S.D.J.
Date: November 3, 2015
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