GONZALEZ v. ELIZABETH POLICE DEPTARTMENT et al

Filing 44

OPINION. Signed by Judge John Michael Vazquez on 4/13/2021. (lag, )

Not for Publication
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CARLOS GONZALEZ,
Plaintiff,
v.

Civil Action No. 18-3765
(JMV) (ESK)
OPINION

ELIZABETH POLICE DEPARTMENT,
JORGE HIDALGO, JOHN DOES 1-5, and
JANE DOES 1-5,
Defendants.
John Michael Vazquez, U.S.D.J.
Plaintiff was arrested and charged with driving while intoxicated after police found him in
his vehicle. Plaintiff, however, was not under the influence; he was in diabetic shock.1 Plaintiff
alleges that the Elizabeth Police Department and individual officers violated his civil rights and
committed other wrongs during his arrest and detention. Presently before the Court are Defendant
City of Elizabeth (“City” or “Elizabeth”)2 and Defendant Jorge Hidalgo’s motions for summary

1

Diabetic shock is used by Plaintiff, but it does not appear to be an actual medical term. Instead,
the condition is referred to as hypoglycemia (low blood sugar). Diabetic Coma, Mayo Clinic,
https://www.mayoclinic.org/diseases-conditions/diabetic-coma/symptoms-causes/syc-20371475
(last accessed April 8, 2021). The signs and symptoms of hypoglycemia may include shakiness
or nervousness, anxiety, fatigue, weakness, sweating, hunger, nausea, dizziness or
lightheadedness, difficulty speaking, and confusion. Id.
2

Plaintiff’s Complaint improperly named the Elizabeth Police Department instead of the City of
Elizabeth as a Defendant. Although the case caption names “Elizabeth Police Department,” the
Court will refer to this Defendant as the City of Elizabeth.

judgment. D.E. 35, 36. The Court reviewed all submissions3 made in support and opposition of
the motions and considered the motions without oral argument pursuant to Fed. R. Civ. P. 78(b)
and L. Civ. R. 78.1(b). For the reasons that follow, Defendant Hidalgo’s motion is GRANTED
in part and DENIED in part, and Defendant City of Elizbeth’s motion is DENIED.
I.

FACTUAL BACKGROUND4 AND PROCEDURAL HISTORY
On October 16, 2016, Defendant Hidalgo, an officer with the Elizabeth Police Department,

was working a patrol shift when he was flagged down by a couple who alerted him to a vehicle
pointing in the wrong direction and leaning up against another car; the driver was in the driver’s
seat. DSOMF ¶¶ 1, 3. Hidalgo approached the car and observed Plaintiff “slumped over to the
passenger seat.” Id. ¶ 5. Hidalgo asked Plaintiff if he was alright, but Plaintiff was unable to
answer. Id. Plaintiff was not wearing any medical alert bracelet or necklace. Id. Plaintiff’s car
was still running and in gear, but his foot was on the break. Id. ¶ 6. Hidalgo opened the driver’s
side door of the car and “noticed a strong smell of alcohol in the vehicle and also on . . . Plaintiff’s
breath.” Id. ¶ 6. Plaintiff was mumbling and unable to communicate or respond to Hidalgo’s

3

The parties’ briefs are as follows: (1) Plaintiff’s Consolidated Opposition to Defendants’ Motions
for Summary Judgment, D.E. 40, will be referred to as “Pl. Opp.”; (2) Defendant Jorge Hidalgo’s
Brief in Support of His Motion for Summary Judgment, D.E. 36-1, will be referred to as “Hidalgo
Br.”; (3) Defendant City of Elizabeth’s Brief in Support of its Motion for Summary Judgment,
D.E. 35-6, will be referred to as “City Br.”; (4) Defendant Hidalgo’s Reply Brief, D.E. 42, will be
referred to as “Hidalgo Reply”; and (5) Defendant City of Elizabeth’s Reply Brief, D.E. 41, will
be referred to as “City Reply.”
4

The factual background is taken from Defendant Hidalgo’s Statement of Undisputed Material
Facts (“DSOMF”), D.E. 31-1, and Plaintiff’s Response and Supplemental Material Disputed Facts
(“PSOMF”), D.E. 32-1. The City of Elizabeth also submitted a Statement of Undisputed Material
Facts, D.E. 35-5, which was identical to that submitted by Hidalgo. The City of Elizabeth states
that it “adopts, incorporates and relies upon” Hidalgo’s Rule 56 Statements of Undisputed Facts
and Exhibits. D.E. 35-5 at ¶ 26. Additionally, Plaintiff’s response to the City’s Statement of
Undisputed Material Facts, D.E. 33-1, is identical to its responsive submission to Hidalgo’s
submissions.
2

questions. Id. ¶ 8. Hidalgo “determined Plaintiff was possibly drunk due to the odor of alcohol
and the way Plaintiff was acting.” Id. ¶ 10. Officer Flatley arrived at the scene as backup, and
Flatley and Hidalgo attempted to remove Plaintiff from his vehicle to arrest him for driving while
intoxicated. Id. ¶ 11.
The parties dispute the circumstances surrounding Plaintiff’s removal from the car.
According to Defendants, the officers struggled to remove Plaintiff from the car because he
“visibly resisted and hit the officers’ hands.” Id. ¶ 13. Hidalgo continues that he and Flatley had
to physically remove Plaintiff by lifting his legs out of the car because Plaintiff refused to get out
of the vehicle. Id. ¶14. Hidalgo further recounts that his body recorder was knocked to the ground
during the struggle. Id. ¶ 15. Because Plaintiff was “mumbling, groaning, fighting, and unable to
stand on his own,” the officers say that they were unable to perform field sobriety tests. Id. ¶ 16.
Plaintiff offers a different view. First, Plaintiff notes that Hidalgo testified in his deposition
that Plaintiff did not resist arrest. PSOMF at ¶ 13. Second, Plaintiff submits that he did not refuse
to exit the vehicle – he was in diabetic shock. Id. ¶ 14. Next, Plaintiff disputes that he “struggled
with the police officers,” and knocked off Hidalgo’s body camera. Id. ¶ 15. Plaintiff highlights
that Hidalgo testified that his body worn recorder “fell off.” Id. Finally, Plaintiff disputes that
Hidalgo was “unable to issue any field sobriety tests” and asserts that he did not fight with Hidalgo;
instead, Plaintiff submits that Hidalgo did not attempt to administer any tests. Id. ¶ 16.
Officer Hidalgo provided a copy of his body cam recording, which the Court reviewed.5
Hidalgo and Plaintiff converse, for the most part, in Spanish. Neither party has provided the Court

5

At the summary judgment stage, the Court may consider a videotape that is not alleged to be
altered in any way, nor alleged to depict something different than what actually happened. Scott
v. Harris, 550 U.S. 372, 378 (2007). When such a recording exists, the Court views the facts in
light of their depiction in the recording. Id. at 380-81.
3

with a certified translation of the conversation, so the Court does not consider the substance of the
communications unless they are in English. In addition, it does not appear from the footage that
Plaintiff’s vehicle (which appears to be a pickup truck) is abutting another vehicle. As will be
discussed, there is physical contact, but at no point during the interaction did the Court observe the
officers or Plaintiff acting in a violent manner in the sense of throwing punches or attempting to
hurt one another.
The footage and accompanying audio reflect the following (the noted times are from the
recording itself, rather than the actual time of day of the interaction):
0:01-0:11 – Plaintiff is sitting back, somewhat slouched down, in the driver’s seat.
0:14 – Hidalgo begins questioning Plaintiff. Plaintiff responds but his voice is low and
difficult to hear. Plaintiff has his seat belt on, and his left hand initially rests on his stomach. The
officer’s questioning and Plaintiff’s responses (for the most part in a low almost mumbling,
muttering manner although, on a few occasions, Plaintiff speaks louder) continue intermittently
throughout the interaction.
1:05 – After answering Hidalgo, Plaintiff rests his head on his right hand, appearing as if
he is going to sleep.
1:11 – Hidalgo throws an object on the roof of the vehicle, which creates a loud noise, to
which Plaintiff responds by moving his head.
1:24 – Hidalgo opens the driver’s side door. Hidalgo is giving an instruction to Plaintiff.
Plaintiff raises his right arm in response but then puts his head down again.
1:34 – Hidalgo reaches in and seems to touch Plaintiff’s left arm and seatbelt. Plaintiff
puts his hands on top of Hidalgo’s hands (seemingly in an attempt to not be removed from the
vehicle). Hidalgo then attempts to physically move Plaintiff. Plaintiff resists in the sense that he
does not want to be moved.
1:47 – Plaintiff’s hands are crossed against his chest, and Hidalgo attempts to move
Plaintiff, which results in Plaintiff’s shirt being pulled down below his left shoulder.
1:50 – Another officer (presumably Flatley) joins Hidalgo in attempting to move Plaintiff.
Plaintiff resists in that he tries to stay put and places his hands on the officers’ hands.
1:57 – The officers are attempting to separate Plaintiff’s arms. Again, Plaintiff resists in
the sense that he tries to stay put and hold onto the officers’ hands.

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2:05 – The other officer notes (in English) that Plaintiff is “all sweaty.”
2:14 – Hidalgo has two hands on Plaintiff’s right wrist.
2:21 – Hidalgo attempts to pull Plaintiff’s left leg out of the car.
2:30 – Hidalgo reaches over the steering column and indicates (in English) that he took the
key out (apparently in reference to the ignition key).
2:45 – One officer has hold of Plaintiff’s right arm, and Hidalgo pulls Plaintiff’s legs out
of the vehicle.
3:00 – The officers remove Plaintiff from the vehicle, and Hidalgo handcuffs Plaintiff’s
right wrist.
3:02 – While standing in an unsteady manner, Plaintiff’s right hand and shoulder come
toward Hidalgo’s body cam. It is not clear from the footage whether Plaintiff intentionally made
the move or stumbled. Hidalgo’s body cam falls to the ground.
3:16 – Hidalgo picks up the body cam and places it back on his person.
3:29 – Plaintiff is handcuffed (behind his back) and is near the bed portion of his vehicle.
Plaintiff may be hunched over forward.
3:45 – Hidalgo tells Plaintiff (in English) that he needs to stand up.
4:08 – Plaintiff is placed into the back of a police vehicle.
Once Plaintiff was removed from his car, the officers transported him to the Elizabeth
Police Department for processing. DSOMF ¶ 17. A medically trained police officer working in
the cellblock believed that Plaintiff might be in diabetic shock and called for medical assistance.
Id. ¶ 18. Two other officers – Arias and Blanco – assisted Hidalgo with Plaintiff’s arrest. Id. ¶
19.6

6

The parties’ statements of undisputed facts do not provide the first names of Officers Arias and
Blanco.

5

Arias performed an Alcotest on Plaintiff, which showed that Plaintiff had a blood alcohol
concentration (“BAC”) of 0.0; there was no alcohol in Plaintiff’s system. Id. ¶ 20. After learning
of the 0.0 Alcotest reading, Hidalgo consulted with his supervisor, Sergeant Vazquez, about
charging Plaintiff for driving while intoxicated (“DWI”). Id. ¶¶ 21-22. Vazquez instructed
Hidalgo to proceed with the DWI charge and explained that the court would dismiss the charge if
appropriate. Id. ¶ 23. A municipal court ultimately dismissed Plaintiff’s DWI charge. Id. ¶ 24.
On or around December 12, 2016, Plaintiff filed a Notice of Tort Claim, which indicated
that while he was suffering a medical emergency, he was arrested and prosecuted for no legitimate
reason. Id. ¶ 25. The Notice of Tort Claim did not name Officer Hidalgo, however, it named the
“Officers on Case No. 16-095357.” Id.; PSOMF ¶ 26.
Plaintiff filed a Complaint against Elizabeth and Hidalgo, John Does 1 through 5, and Jane
Does 1 through 5 (collectively the “PO Defendants”) on March 19, 2018. D.E. 1. The Complaint
contains fourteen counts: (1) violation of 42 U.S.C. § 1983 (“Deprivation of Rights”); (2) violation
of 42 U.S.C. § 1981 (“Violation of Equal Rights Under the Law”); (3) violation of 42 U.S.C. §
1985 (“Conspiracy to Violate Civil Rights”); (4) violation of 42 U.S.C. § 1986 (“Failure to Prevent
Violations of Civil Rights”); (5) violation of 42 U.S.C. § 1983 (“Negligent Screening, Hiring,
Training, Supervision and Retention of Dangerous Discriminatory Police Officers”); (6) “New
Jersey State Civil Rights Action/State Constitutional Claim” (N.J.S.A. 10:6-1 et seq.); (7) willful
disregard; (8) assault and battery; (9) abuse of process; (10) false arrest; (11) false imprisonment;
(12) malicious prosecution; (13) negligence; and (14) vicarious liability. Id. ¶¶ 44-110. Elizabeth
and Hidalgo each filed Answers. D.E. 6, 7. On June 16, 2020, Defendants were granted leave to
file motions for summary judgment. D.E. 34.

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II.

SUMMARY JUDGMENT STANDARD
A moving party is entitled to summary judgment where “the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). A fact in dispute is material when it “might affect the outcome of the suit
under the governing law” and is genuine “if the evidence is such that a reasonable jury could return
a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Disputes over irrelevant or unnecessary facts will not preclude granting a motion for summary
judgment. Id. “In considering a motion for summary judgment, a district court may not make
credibility determinations or engage in any weighing of the evidence; instead, the nonmoving
party’s evidence ‘is to be believed and all justifiable inferences are to be drawn in his favor.’”
Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at
255)). A court’s role in deciding a motion for summary judgment is not to evaluate the evidence
and decide the truth of the matter but rather “to determine whether there is a genuine issue for
trial.” Anderson, 477 U.S. at 249.
A party moving for summary judgment has the initial burden of showing the basis for its
motion and must demonstrate that there is an absence of a genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). After the moving party adequately supports its motion,
the burden shifts to the nonmoving party to “go beyond the pleadings and by [his] own affidavits,
or by the depositions, answers to interrogatories, and admissions on file, designate specific facts
showing that there is a genuine issue for trial.” Id. at 324 (internal quotation marks omitted). To
withstand a properly supported motion for summary judgment, the nonmoving party must identify
specific facts and affirmative evidence that contradict the moving party. Anderson, 477 U.S. at
250. “[I]f the non-movant’s evidence is merely ‘colorable’ or is ‘not significantly probative,’ the

7

court may grant summary judgment.” Messa v. Omaha Prop. & Cas. Ins. Co., 122 F. Supp. 2d
523, 528 (D.N.J. 2000) (quoting Anderson, 477 U.S. at 249-50)).
Ultimately, there is “no genuine issue as to any material fact” if a party “fails to make a
showing sufficient to establish the existence of an element essential to that party’s case.” Celotex,
477 U.S. at 322. “If reasonable minds could differ as to the import of the evidence,” however,
summary judgment is not appropriate. See Anderson, 477 U.S. at 250-51.
III.

ANALYSIS
A. Claims Plaintiff Dismisses Voluntarily
Plaintiff indicates in his opposition brief that he “is electing not to proceed” with his claims

arising under 42 U.S.C. § 1985 (Count Three); 42 U.S.C. § 1986 (Count Four); willful disregard
(Count Seven) assault and battery (Count Eight); and abuse of process (Count Nine). Pl. Opp. at
5. As a result, this Court dismisses Counts Three, Four, Seven, Eight, and Nine.
B. Hidalgo’s Motion for Summary Judgment
Of Plaintiff’s remaining claims, Counts One, Two, Six, Seven, Ten, Eleven, Twelve, and
Thirteen appear to be asserted against Defendant Hidalgo. Hidalgo’s motion for summary
judgment does not precisely identify the counts on which he seeks summary judgment. His brief
does not explicitly reference many of Plaintiff’s claims but includes sweeping references to
“constitutional claims,” Hidalgo Br. at 3, and “tort claims,” id. at 4. Separately from “tort claims,”
Hidalgo also discusses “common law claims,” which apparently includes false arrest, false
imprisonment, and malicious prosecution. Id. at 7. Based on these statements, and the specific
claims referenced in the moving papers, the Court interprets Hidalgo’s motion as seeking summary
judgment on Counts One, Six, Seven, Ten, Eleven, and Twelve – all the claims raised against

8

Hidalgo except for Counts Two and Thirteen.7 The Court also notes that Hidalgo’s brief indicates
that he seeks summary judgment on “Plaintiff’s claim for intentional infliction of emotional
distress,” but Plaintiff asserts no such claim. Hidalgo Br. at 9.
1. Constitutional Claims Arising Under § 1983 and the New
Jersey Civil Rights Act (Counts One, Six, and Twelve)
Plaintiff brings several § 1983 claims against Hidalgo. Section 1983, in relevant part,
provides as follows:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of
Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding for redress.
Section 1983 does not provide substantive rights; rather, it provides a vehicle for vindicating
violations of other federal rights. Graham v. Connor, 490 U.S. 386, 393-94 (1989). To state a §
1983 claim, a plaintiff must demonstrate that “(1) a person deprived him of a federal right; and (2)
the person who deprived him of that right acted under color of state or territorial law.” Burt v.
CFG Health Sys., No. 15-2279, 2015 WL 1646849, at *2 (D.N.J. Apr. 14, 2015).
Plaintiff also alleges a violation of the New Jersey Civil Rights Act (“NJCRA”), N.J. Stat.
Ann. § 10:6-1, et seq. Like Section 1983, the NJCRA affords a private cause of action to
[a]ny person who has been deprived of any substantive due process or equal
protection rights, privileges or immunities secured by the Constitution or
laws of the United States, or any substantive rights, privileges or immunities
secured by the Constitution or laws of this State, or whose exercise or
enjoyment of those substantive rights, privileges or immunities has been
7

Although Count Thirteen, negligence, would appear to fit within the “tort claims” category
Hidalgo identifies, his brief only discusses intentional torts, and the Court therefore construes his
motion to apply to willful disregard, assault and battery, abuse of process, false arrest, false
imprisonment, and malicious prosecution. Hidalgo certainly does not discuss the elements of
negligence or why he would be entitled to summary judgment on the count.
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interfered with or attempted to be interfered with, by threats, intimidation
or coercion by a person acting under color of law.
N.J. Stat. Ann. § 10:6-2. The NJCRA “was intended to provide New Jersey citizens with a state
analogue to Section 1983 actions.” Perez v. Zagami, LLC, 94 A.3d 869, 877 (N.J. 2014). Courts
look to § 1983 when analyzing claims arising under the NJCRA. Tumpson v. Farina, 95 A.3d
210, 225 (N.J. 2014). As a result, this Court will consider Plaintiff’s §1983 and NJCRA claims
together.
Hidalgo argues that he is entitled to qualified immunity. The doctrine of qualified
immunity provides that “government officials performing discretionary functions . . . are shielded
from liability for civil damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person should have known.” Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). Thus, government officials are immune from suit in their
individual capacities unless, “taken in the light most favorable to the party asserting the injury, . .
. the facts alleged show the officer’s conduct violated a constitutional right” and “the right was
clearly established” at the time of the objectionable conduct. Saucier v. Katz, 533 U.S. 194, 201
(2001). Courts may first address either of the two prongs – constitutional violation or clearly
established. Pearson v. Callahan, 555 U.S. 223, 236 (2009). “If the plaintiff fails to make out a
constitutional violation, the qualified immunity inquiry is at an end; the officer is entitled to
immunity.” Bennett v. Murphy, 274 F.3d 133, 136 (3d Cir. 2002).
Qualified immunity “balances two important interests – the need to hold public officials
accountable when they exercise power irresponsibly and the need to shield officials from
harassment, distraction, and liability when they perform their duties reasonably” and it “applies
regardless of whether the government official’s error is a mistake of law, a mistake of fact, or a
mistake based on mixed questions of law and fact.” Id. (internal quotation omitted). Properly

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applied, qualified immunity “protects ‘all but the plainly incompetent or those who knowingly
violate the law.’” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011) (quoting Malley v. Briggs, 475
U.S. 335, 341 (1986)).
For a right to be clearly established, “[t]he contours of the right must be sufficiently clear
that a reasonable official would understand that what he is doing violates that right.” Saucier, 533
U.S. at 202 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). That is, “[t]he relevant,
dispositive inquiry in determining whether a right is clearly established is whether it would be
clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Couden
v. Duffy, 446 F.3d 483, 492 (2006). “If the officer’s mistake as to what the law requires is
reasonable,” the officer is entitled to qualified immunity. Id. (internal citations omitted). Further,
“[i]f officers of reasonable competence could disagree on th[e] issue, immunity should be
recognized.” Malley, 475 U.S. at 341 (1986); see also Brosseau v. Haugen, 543 U.S. 194, 198
(2004) (the general touchstone is whether the conduct of the official was reasonable at the time it
occurred). Finally, because qualified immunity is an affirmative defense, the burden of proving
its applicability rests with the defendant. See Beers-Capitol v. Whetzel, 256 F.3d 120, 142, n.15
(3d Cir. 2001).
Count One of the Complaint alleges § 1983 violations for a multitude of actions that
Plaintiff argues violated his constitutional rights:
(a) stopping and detaining Plaintiff without reasonable and
articulable suspicion; (b) falsely arresting Plaintiff without probable
cause; (c) illegally searching Plaintiff’s person without probable
cause; (d) using excessive and unreasonable force when arresting
Plaintiff; (e) falsely imprisoning and/or detaining Plaintiff; (f)
improperly denying Plaintiff’s right to privacy; (g) denying Plaintiff
his right to freedom of travel; (h) depriving Plaintiff of his right to
due process; (i) depriving Plaintiff of his right to equal protection of
the laws; (j) subjecting Plaintiff to involuntary servitude; and (k)
subjecting Plaintiff to cruel and unusual punishment.

11

Compl. ¶ 46.
As discussed, § 1983 does not provide substantive rights and cannot function as a
standalone claim – it is a mechanism for vindicating violations of constitutional rights. Each
alleged constitutional violation should have been set forth in a separate count. However, because
Defendants did not object to the form of the pleading, the Court addresses the litany of alleged
violations here. Similarly, Plaintiff alleges a variety of violations of the NJCRA and New Jersey
Constitution, including that Defendants “discriminate[d], use[d] unlawful force, falsely stop[ped],
arrest[ed] and detain[ed], and illegally search[ed] and assault[ed]” him, and denied him his rights
to travel, equal protection, and privacy. Id. ¶ 67. The Complaint states that Plaintiff’s rights under
“Article I, Section 1; Article I, Section 5; Article I, Section 7” of the New Jersey Constitution were
violated.8 Id.
As to Counts One and Six, Hidalgo argues that “Plaintiff’s claims are barred as there are
no underlying constitutional claims” but provides no further explanation or analysis of any specific
constitutional claims; that “Plaintiff’s claim for malicious prosecution under, § 1983 fails, as a
matter of law”; and that he is entitled to qualified immunity. Hidalgo Br. at 3, 10, 12. In
opposition, Plaintiff state that he suffered three types of § 1983 violations: false arrest and
imprisonment, falsification of evidence, and malicious prosecution. Pl. Opp. at 6. While this list
arguably eliminates many of the Count One subparts pled in the Complaint, Plaintiff fails to
expressly indicate that he “is electing not to proceed” with any subpart of Count One. See id. at 5.
And, as noted, Plaintiff did expressly indicate that he was not proceeding with Counts Three, Four,
Seven, Eight, and Nine. As a result, the Court will address each subpart raised in the Complaint.

8

Article I of the New Jersey Constitution is not divided by sections; rather, it is divided by
numbered paragraphs. The Court construes Plaintiff’s allegations to reference paragraphs 1, 5,
and 7 of Article I.
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1. Subparts of Counts One and Six that Hidalgo Does Not
Analyze
At the outset, the Court notes that there are several claims raised in the Complaint against
Hidalgo that Hidalgo fails to analyze or otherwise address in his moving papers. As previously
noted, Plaintiff’s § 1983 claim (Count One) and NJCRA claim (Count Six) allege that many of his
rights under the United States and New Jersey constitutions were violated. Hidalgo’s briefing in
support of his motion for summary judgment fails to reference or otherwise discuss many of these
alleged deprivations of Plaintiff’s rights. With respect to Count One, Hidalgo does not analyze
the following claims: “(c) illegally searching Plaintiff’s person without probable cause”; (d)
“using excessive and unreasonable force when arresting Plaintiff”’; (f) “improperly denying
Plaintiff’s right to privacy”; (g) “denying Plaintiff his right to freedom of travel”; (h) “depriving
Plaintiff of his right to due process”; (i) “depriving Plaintiff of his right to equal protection of the
laws”; (j) “subjecting Plaintiff to involuntary servitude”; and (k) “subjecting Plaintiff to cruel and
unusual punishment.”

As to Count Six, Hidalgo does not address the following alleged

deprivations: discrimination; unlawful search; use of unlawful force; assault; and violations of
Plaintiff’s rights to travel, privacy, and equal protection.
While Hidalgo may have been entitled to summary judgment on these claims, he has
provided nothing more than the conclusory argument that “there are no underlying constitutional
claims.” Hidalgo Br. 3-4. Hidalgo fails to discuss the law or the facts with respect to these claims
– his moving papers do not even provide the elements of these alleged deprivations of rights. As
a result, the Court does not grant summary judgment on these claims.
2. Stop and Detention
The Court next considers Plaintiff’s claim that Hidalgo stopped and detained him without
reasonable and articulable suspicion, alleged in subpart a of Count One and in Count Six. An

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investigatory traffic stop requires only a “minimal level of objective justification.” United States
v. Delfin-Colina, 464 F.3d 392, 396 (3d. Cir. 2006). “Consistent with the Fourth Amendment of
the United States Constitution and its analog, Article I, paragraph 7 of the New Jersey Constitution,
‘a police officer is justified in stopping a motor vehicle when he has an articulable and reasonable
suspicion that the driver has committed a motor vehicle offense.’” State v. Golotta, 837 A.2d 359,
363 (N.J. 2003) (quoting State v. Locurto, 724 A.2d 234, 238 (1999)). “Reasonable, articulable
suspicion is a ‘less demanding standard than probable cause and requires a showing considerably
less than preponderance of the evidence.’” Id. (quoting Illinois v. Wardlow, 528 U.S. 119, 123
(2000)).
The undisputed facts demonstrate that prior to approaching Plaintiff’s car, Hidalgo was
flagged down by a couple who alerted him that a vehicle was facing the wrong way and leaning
up against another car, and that the driver was in the driver’s seat. DSOMF ¶ 3. When Hidalgo
approached the vehicle, he saw Plaintiff “slumped over” the passenger’s seat. Id. ¶ 5. Plaintiff’s
car was still running, and his foot was on the break. Id. ¶ 6. Plaintiff was unresponsive and unable
to answer Hidalgo’s questions. Id. ¶ 5. While the undisputed facts demonstrate that Hidalgo had
reasonable articulable suspicion that Plaintiff committed a motor vehicle offense, the Court need
not reach the issue because Plaintiff was in Hidalgo’s plain view. Here, the undisputed facts, as
well as the body cam recording, show that Hidalgo was on a public street – a place where he was
legally entitled to be. See DSOMF ¶¶ 1-4. As he approached the car, Hidalgo was able to readily
observe Plaintiff and his demeanor. Id. ¶ 5. Because Plaintiff’s potentially unlawful conduct was
in Hidalgo’s plain view, Hidalgo’s observation and seizure of Plaintiff’s car did not violate
Plaintiff’s privacy rights. As a result, the Court finds that Hidalgo did not violate Plaintiff’s Fourth
Amendment (or New Jersey Constitutional) rights with respect to the initial stop and detention.

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Because Plaintiff’s rights were not violated, Hidalgo is entitled to qualified immunity on the initial
stop and detention. The Court therefore grants summary judgment for Hidalgo on subpart a of
Count One and on Count Six insofar as it challenges the stop and detention.
3. False Arrest and False Imprisonment
With respect to Plaintiff’s claims for false arrest, Hidalgo argues that he is entitled to the
defense of qualified immunity because the facts available to him at the time of Plaintiff’s arrest
provided “a more than objectively reasonable belief that Plaintiff was intoxicated and should be
arrested.” Hidalgo Br. at 16. Whether Hidalgo violated Plaintiff’s constitutional rights by
arresting, searching, imprisoning, and/or detaining him hinges on whether Hidalgo had probable
cause to arrest Plaintiff. See Harvard v. Cesnalis, 973 F.3d 190, 199 (3d Cir. 2020) (explaining
that “summary judgment for false arrest . . . is proper only if no reasonable juror could find a lack
of probable cause for any of the charged crimes”). “To bring a claim for false arrest, a plaintiff
must establish ‘(1) that there was an arrest; and (2) that the arrest was made without probable
cause.’” Id. at 199 (quoting James v. City of Wilkes-Barre, 700 F.3d 675, 680 (3d Cir. 2012)).
“The determination of whether there was probable cause to arrest requires a ‘common sense
approach’ based on ‘the totality of the circumstances.’” Slippi-Mensah v. Mills, No. 15-7750,
2020 WL 3468039, at *6 (D.N.J. June 25, 2020) (quoting Sharrar v. Felsing, 128 F.3d 810, 818
(3d Cir. 1997)). Under New Jersey law, a person is guilty of driving while intoxicated if he
“operates a motor vehicle while under the influence of intoxicating liquor, narcotic, hallucinogenic
or habit-producing drug, or operates a motor vehicle with a blood alcohol concentration of 0.08%
or more[.]” N.J. Stat. Ann. § 39:4-50.
Hidalgo argues he had probable cause to investigate based on the following: Plaintiff’s
vehicle was “going the wrong way on a one way street”; Plaintiff refused to answer questions and

15

was uncooperative; Plaintiff was rambling and incoherent; Plaintiff was unable to perform field
sobriety tests; and Hidalgo “smelled the odor of alcohol emanating from” Plaintiff. Hidalgo Br.
at 16. Based on the body cam footage, there is no genuine dispute that that Plaintiff’s vehicle was
facing the wrong direction; that Plaintiff was leaning back the passenger’s seat; that at certain
times Plaintiff looked like he was dozing off; that Plaintiff at times did not respond to Hidalgo’s
questioning; and that when Plaintiff did respond to questioning, he often did so in a mumbling
and muttering manner. See D.E. 36-2. Nevertheless, other material facts upon which Hidalgo
relies for probable cause are in dispute. Most importantly, Plaintiff disputes Hidalgo’s assertion
that he “noticed a strong smell of alcohol in the vehicle and also on the Plaintiff’s breath.” Id. ¶
7. Plaintiff argues that Hidalgo either lied about smelling alcohol or that he made an unreasonable
mistake in believing he smelled it. Pl. Opp. at 10-11.9 In support of this position, Plaintiff notes
that no alcohol was found in the car, the Alcotest showed that there was no alcohol in Plaintiff’s
system, and no other officers who interacted with Plaintiff smelled alcohol. Id. at 10, 13. Hidalgo
does not present evidence explaining why he may have otherwise smelled what seemed to be
alcohol. Additionally, the parties appear to dispute the reason why Plaintiff did not complete field
sobriety tests. Hidalgo suggests that Plaintiff refused to perform the tests and cites to New Jersey
case law demonstrating that refusal to perform these tests permits the inference of guilt on a DWI
charge. Hidalgo Br. at 8. Alternatively, Plaintiff posits that Hidalgo “made no attempts to
administer any field sobriety tests before arresting” him. Pl. Opp. at 2. The relevant portion of
Hidalgo’s body cam does not reveal which position is accurate because, at the time, Hidalgo’s

9

Plaintiff also seems to raise a new § 1983 claim in his opposition, alleging fabricated evidence.
Because “new claims cannot be raised in a summary judgment brief,” this claim is not properly
before the Court. Fanor v. Univ. Hospital-UMDNJ, No. 16-320, 2020 WL 6938381, at *8, n.12
(D.N.J. Nov. 25, 2020).

16

body cam had fallen to the ground. These disputed facts are material to the probable cause
analysis.10
“[T]he right to be free from arrest without probable cause . . . is a bedrock constitutional
principle and a clearly established right.” Mazuka v. Rice Twp. Police Dep’t, 655 Fed. App’x 892,
894 (3d Cir. 2016). Because the right is clearly established, and because there are genuine disputes
of material fact as to whether Hidalgo had probable cause, the Court denies Hidalgo’s motion for
summary judgment as to the portions of Counts One and Six alleging unlawful arrest. As for the
false imprisonment claim, when “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.” Id. at
202 (quoting Groman v. Township of Manalapan, 47 F.3d 628, 636 (3d Cir. 1995)). As a result,
with respect to subparts b and e of Count One, as well as the portions of Count Six alleging an
unlawful arrest and false imprisonment, Hidalgo’s motion for summary judgment is denied.
4. Malicious Prosecution
In Count Twelve of the Complaint, Plaintiff alleges malicious prosecution, which the
parties have construed as arising under § 1983 as well as the common law. Hidalgo Br. at 10; Pl.
Opp. at 15.

With respect to the § 1983 charge, Hidalgo argues that Plaintiff’s malicious

prosecution claim fails as a matter of law because there was probable cause to arrest Plaintiff.
Hidalgo Br. at 10.
To prevail on a malicious prosecution claim under the Fourth Amendment,
a plaintiff must show: “(1) the defendant initiated a criminal
proceeding; (2) the criminal proceeding ended in his favor; (3) the
defendant initiated the proceeding without probable cause; (4) the
defendant acted maliciously or for a purpose other than bringing the
10

Hidalgo does not argue that even if certain facts are discounted (such as the alleged smell of
alcohol on Plaintiff’s breath and stemming from the vehicle), he nevertheless had probable cause
to arrest Plaintiff. As a result, the Court does not conduct this analysis.
17

plaintiff to justice; and (5) the plaintiff suffered deprivation of
liberty consistent with the concept of seizure as a consequence of a
legal proceeding.”
Black v. Montgomery Cty., 835 F.3d 358, 364 (3d Cir. 2016) (quoting Johnson v. Knorr, 477 F.3d
75, 82 (3d Cir. 2007)).
As discussed above, there is a genuine dispute of material fact as to whether Hidalgo had
probable cause to arrest Plaintiff. Moreover, even if Hidalgo had probable cause at the time he
made the arrest, the undisputed facts in the record demonstrate that before Hidalgo charged
Plaintiff, he learned that Plaintiff might be in diabetic shock and that the result of the Alcotest was
a BAC of 0.0. DSOMF ¶¶ 18, 20. Nonetheless, Hidalgo was instructed to, and did, charge Plaintiff
with DWI. Additionally, it is undisputed that the municipal court dismissed the charges against
Plaintiff. Id. ¶¶ 20-24. As genuine disputes of material fact exist, the Court denies Hidalgo’s
summary judgment as to malicious prosecution.
Insofar as Hidalgo intended his qualified immunity argument to apply to this Count, the
Court finds it premature to make such a finding because probable cause is an essential component
to the first part of the analysis – whether Hidalgo violated Plaintiff’s constitutional right. Pursuant
to the second prong of the analysis, the right to be free from malicious prosecution is clearly
established. James v. Price, 602 F. Supp. 843, 846-47 (D.N.J. 1985).
5. Tort Claims (Counts Ten, Eleven, and Twelve)
Hidalgo argues that Plaintiffs Claims for false arrest (Count Ten), false imprisonment
(Count Eleven) and malicious prosecution (Count Twelve) fail for three reasons: (1) they are
barred by the new Jersey Tort Claims Act (NJTCA) for failure to comply with the law’s notice
requirements; (2) they are barred by the NCTCA for failing to meet the verbal threshold; and (3)
they are substantively barred by the existence of probable cause. Hidalgo Br. at 4-9. The Court
has already rejected Hidalgo’s argument as to probable cause. And Hidalgo’s second argument is
18

not properly before the court.11 The analysis below addresses Hidalgo’s remaining argument
concerning the NJTCA compliance requirements.
Hidalgo contends that Plaintiff did not comply with the notice provision of the NJTCA
because Hidalgo was not named in Plaintiff’s Notice of Tort Claim form. Hidalgo Br. at 4-6. A
party that asserts a tort claim seeking damages from a public entity or employee must comply with
the NJTCA, which “establishes the procedures by which [such] claims may be brought.” D.D. v.
Univ. of Med. & Dentistry of N.J., 61 A.3d 906, 917 (N.J. 2013) (quoting Beauchamp v. Amedio,
751 A.2d 1047, 1049 (N.J. 2000)). One requirement is that a plaintiff must file a notice of claim
that, among other things, provides “the date, place and other circumstances of the occurrence or
transaction which gave rise to the claim asserted”; “[a] general description of the injury, damage
or loss incurred so far as it may be known at the time of presentation of the claim”; and “[t]he
name or names of the public entity, employee or employees causing the injury, damage or loss, if
known.” N.J. Stat. Ann. § 59:8-4. The TCA notice requirement, however, “is not intended as ‘a
trap for the unwary.’” Lebron v. Sanchez, 970 A.2d 399, (N.J. Super. Ct. App. Div. 2009) (quoting
Lowe v. Zarghami, 731 A.2d 14, 27 (N.J. 1999)). Therefore, “substantial rather than strict
compliance with the notice requirements of the Act may satisfactorily meet the statute’s
mandates.” Id.

11

Pursuant to the Court’s June 16, 2020 Order, D.E. 34, Defendants were instructed that their
motions for summary judgment would be limited to the issues raised in their respective letters
requesting leave to file motions for summary judgment. The Court cautioned that if Defendants
raised additional issues in their motions, they would be disregarded. Hidalgo’s letter requesting
leave to file for summary judgment, D.E. 31, argued that “Plaintiff’s tort claims are barred by N.J.
Tort Claims Act,” but only raised the insufficient notice argument, not the verbal threshold
argument. Hidalgo did not seek leave to raise additional arguments, nor has he shown good cause
for failing to raise the issue in his letter requesting leave to file a motion for summary judgment.
As a result, the Court declines to consider Hidalgo’s new argument that Plaintiff failed to meet the
NJTCA’s verbal threshold.
19

New Jersey courts have held that “when the identity of the employee or employees was
nearly as clear from the designation or description provided as it would have been by the inclusion
of his or her name,” a claimant cannot be barred from suit. Henderson v. Herman, 862 A.2d 1217
(N.J. Super. Ct. App. Div. 2004). In Henderson, the Appellate Division overruled a trial court’s
order barring a plaintiff’s tort claims against individual defendants because the plaintiff’s notice
of tort claim did not specifically name them, and they were not served. Id. at 1219, 1221. The
court reasoned that it could not “accept that it was the intention of the Legislature that a claimant
be barred from suit for such a slight omission.” Id. at 1222. Further, the court rejected the
defendants’ argument to literally construe N.J. Stat. Ann. 59:8-4(e)’s language that the claim shall
include “[t]he name or names of the public . . . employee . . . if known,” finding that such a
construction would be “inconsistent with the overall purpose” of the NJTCA. Id. at 1223. The
Appellate Division explained that
we do not consider it fatal to a claimants’ right to proceed that the
claimants identified the public employees in a descriptive manner,
rather than by reciting to the public entity the names disclosed in
materials provided to them by that public entity pursuant to the court
order. The description provided, together with the disclosed time
and place of the occurrence, leave no room for mistake or confusion
as to the identity of the involved employees.
Id.
The parties do not dispute that Plaintiff filed a Notice of Tort Claim on or around December
12, 2016, which was received by Elizabeth on or around December 15, 2016. DSOMF ¶ 25. The
form indicates that Plaintiff was suffering a medical emergency and was arrested and prosecuted
for no legitimate reason. Id. The form does not name Hidalgo, id., however, in response to
Question 5, which asks for “[t]he name(s) of the public entity/entities and/or employee(s) causing
the alleged injury, damage or loss if known,” Plaintiff listed: “EPD; Officers on Case No. 16-

20

095357.” PSOMF ¶ 26; D.E. 36-2 at 34. The form also includes the date of the incident. D.E.
36-2 at 34.
The parties dispute whether this description on the form was sufficient to clearly indicate
that tort claims were alleged against Hidalgo. Hidalgo argues that this description “leaves room
for confusion” because Plaintiff could be complaining about the officer who operated the Alcotest,
or other individuals at the scene of the arrest or at police headquarters. Hidalgo Br. at 6. Plaintiff
contends that this description is specific enough to be valid under the NJTCA’s requirements. Pl.
Opp. at 21-22. The Court concludes that under Henderson, the notice of tort claims form was
sufficient. Hidalgo was clearly an Officer on Plaintiff’s case and, therefore, Plaintiff’s description
adequately identified him. In fact, Hidalgo appears to have been the primary officer involved in
Plaintiff’s arrest. Summary judgment is denied with respect to Plaintiff’s alleged failure to comply
with the NJTCA’s notice requirement.
C. City of Elizabeth’s Motion for Summary Judgment
Of the remaining claims that Plaintiff has not voluntarily dismissed, Counts Two, Five,
Six, Thirteen, and Fourteen appear to be brought against Elizabeth. Like Hidalgo’s motion, the
City’s moving papers do not specifically articulate upon which claims the City seeks summary
judgment; however, the City’s request for leave to file a motion for summary judgment referred
only to Counts Five, Six, and Fourteen. The Court therefore interprets the City to seek summary
judgment on these counts.
1. Plaintiff’s Civil Rights Claims (Counts Five, Six)
Plaintiff brings both a § 1983 and a NJCRA claim against Elizabeth, alleging that it was
“negligent in screening, hiring, training, supervision, disciplining, and/or retaining the PO
Defendants” because the City “knew or should have known [these Defendants] were dangerous

21

and/or acted in a racially discriminatory manner.” Compl. ¶ 64. For the reasons discussed above,
the § 1983 and NJCRA claims will be analyzed together.
The City first argues that if the Court grants Hidalgo’s motion and finds that there were no
underlying constitutional violations, then it must also grant Elizabeth’s motion. City Br. at 3.
Without finding an underlying constitutional violation, Elizabeth argues that it cannot be held
liable under Monell v. Dept. of Social Services, 436 U.S. 658 (1978). Id. at 4. In the alternative,
the City asserts that Plaintiff’s civil rights claims must be dismissed as a matter of law because
Plaintiff has failed to prove a policy or custom that amounted to a violation of Plaintiff’s
constitutional rights and, relatedly, Plaintiff has failed to demonstrate a failure to train and/or
supervise Hidalgo. Id. at 7-10.
The Court has concluded that Plaintiff did not suffer a violation of his constitutional rights
with respect to his stop and detention; as a result, that alleged deprivation cannot serve as the basis
for a § 1983 or NJCRA claim against the City. However, the Court also denied Hidalgo’s motion
for summary judgement with respect to the § 1983 claims for: false arrest, illegal search; use of
excessive force; false imprisonment; deprivation of rights to privacy, travel, due process, and equal
protection; involuntary servitude; cruel and unusual punishment; and malicious prosecution. The
Court also denied summary judgment for Plaintiff’s NJCRA claims implicating unlawful arrest
and detention; an illegal search; use of unlawful force; assault; discrimination, and violations of
Plaintiff’s rights to travel, privacy, and equal protection. Because the Court failed to determine
that Plaintiff suffered no violations of these rights, these alleged deprivations could be bases to
hold the City liable under § 1983 or the NJCRA.
While a municipality may be liable under § 1983, it cannot be held liable under a theory of
respondeat superior. Monell, 436 U.S. at 691. “A municipality may only be held liable under §

22

1983 if the plaintiff identifies a municipal ‘policy’ or ‘custom’ that was the ‘moving force’ behind
the injury.” Jewell v. Ridley Twp., 497 Fed. App’x 182, 185 (3d Cir. 2012) (quoting Monell, 436
U.S. at 694). “In other words, the plaintiff must show that the municipality, through one of its
policymakers, affirmatively proclaimed the policy, or acquiesced in the widespread custom, that
caused the violation.” Noble v. City of Camden, 112 F. Supp. 3d 208, 221 (D.N.J. 2015). “A
plaintiff may show the existence of a policy when a decision-maker with final authority issues an
official proclamation, policy, or edict.” Id. (emphasis added). And “a custom may be established
by showing that a given course of conduct, ‘although not specifically endorsed or authorized by
law, is so well-settled and permanent as virtually to constitute law.’” Id. (emphasis added) (quoting
Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990)). “In either instance, a plaintiff must show
that an official who has the power to make policy is responsible for either the affirmative
proclamation of a policy or acquiescence in a well-settled custom.” Bielevicz v. Dubinon, 915
F.2d 845, 850 (3d Cir. 1990).
As to law enforcement training, “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, 38889 (1989). “Deliberate indifference is a stringent standard of fault, requiring proof that a municipal
actor disregarded a known or obvious consequence of his action. Ordinarily, a pattern of similar
constitutional violations by untrained employees is necessary to demonstrate deliberate
indifference for purposes of failure to train.” Thomas v. Cumberland Cty., 749 F.3d 217, 223 (3d
Cir. 2014) (internal quotations, citations, and brackets omitted).

23

Additionally, a plaintiff must show that the unlawful policy or custom was the proximate
cause of the plaintiff’s injuries. On this point, the United States Supreme Court has observed the
following:
As our § 1983 municipal liability jurisprudence illustrates, however,
it is not enough for a § 1983 plaintiff merely to identify conduct
properly attributable to the municipality. The plaintiff must also
demonstrate that, through its deliberate conduct, the municipality
was the ‘moving force’ behind the injury alleged. That is, a plaintiff
must show that the municipal action was taken with the requisite
degree of culpability and must demonstrate a direct causal link
between the municipal action and the deprivation of federal rights.
Board of the County Comm’rs v. Brown, 520 U.S. 397, 404 (1997); see also Watson v. Abington
Twp., 478 F.3d 144, 156 (3d Cir. 2007); Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990).
A police department may have an adequate policy or practice, or a sufficient training
program, but may nevertheless still fall constitutionally short if it fails to recognize the deficiencies
of a particular officer. A department and its superiors are generally charged with notice of an
individual officer’s shortcomings based on the officer’s “pattern of similar constitutional
violations[.]” Thomas, 749 F.3d at 223. For example, in Beck v. City of Pittsburgh, 89 F.3d 966
(3d Cir. 1996), the Third Circuit noted five excessive force complaints in five years against one
officer. Because those five complaints were “in a narrow period of time and . . . of similar nature,
a reasonable jury could have inferred that the Chief of Police knew, or should have known, of [the
officer’s] propensity for violence when making arrests.” Id. at 974. Similarly, in Worrall v. City
of Atl. City, No. 11-3750, 2013 WL 4500583 (D.N.J. Aug. 20, 2013), an officer “was the subject
of twenty-one complaints. . . . Of the twenty-one, fifteen complaints are characterized as having
involved either excessive force or some level of assault.” 2013 WL 4500583, at *3. The number
of complaints and the similarity of the allegation sufficiently put the department on notice of the
officer’s potentially unconstitutional behavior. Id. at *4. Similarly, in Noble, the court denied

24

summary judgment when the plaintiff presented evidence that two officer defendants who had
accumulated 19 excessive force complaints, “had been flagged for monitoring and supervision[,]”
and “that past complaints against the officers had not been timely or properly investigated.” 112
F. Supp. 3d at 224.
Here, Plaintiff asserts two distinct theories of Monell liability: (1) whether the City
maintained a custom or policy of charging arrested individuals with a crime, even if probable cause
was lacking; and (2) whether the City’s failure to properly train and supervise officers resulted in
a violation of Plaintiff’s rights.
a. Custom or Policy
The City argues that “Plaintiff has not provided any evidence of any particular policy,
custom, or practice that resulted in the alleged violation of his constitutional rights” and has
therefore failed to establish the existence of a government policy or custom. City Br. at 9. Plaintiff
responds that the City maintained an “illegal ongoing custom of charging arrested individuals with
a crime, regardless of probable cause,” which resulted in a violation of his rights. Pl. Opp. at 25.
In support, Plaintiff points to Hidalgo’s testimony that in the Elizabeth Police Department, once
an individual is arrested, an officer is “not allowed to stop moving ahead with a criminal
prosecution.” D.E. 35-4, 67:1-7. Hidalgo acknowledged that even with irrefutable evidence that
a suspect is not guilty of the crime for which he was arrested, the officer must file the charges. Id.
at 67:13 to 68:11. Plaintiff further emphasizes that two of Hidalgo’s supervisors, Sergeant Ralph

25

Vazquez and “Mike Lewinski,”12 “ratified” the decision to charge Plaintiff based on the Elizabeth
Police Department’s custom. Id. at 69:12-24, 102:6-18.13
It is undisputed that Hidalgo charged Plaintiff after obtaining the Alcotest results, which
showed that Plaintiff did not have any alcohol in his system. Hidalgo’s testimony supports a
finding that the Elizabeth Police Department has a custom of charging persons, once an arrest has
been made, even when officers determine that the charges lack merit. As a result, there are genuine
issues of material fact on the issue, and the Court denies summary judgment on Counts Five and
Six with respect to Plaintiff’s theory of Monell liability based on a custom or policy.
b. Failure to Train
The City also argues that it is entitled to summary judgment on the failure to train and/or
supervise theory of Monell liability because “the Complaint contains only brief and vague
conclusory assertions14 that Elizabeth Police officers have not been properly trained,” and that
“discovery in this matter has revealed absolutely no evidence that the City of Elizabeth’s training
program is inadequate or in any way deficient.” Id. at 13. In response, Plaintiff submits that the

12

Based on Hialgo’s testimony and Lieutenant Niewinski’s testimony, the Court understands
“Mike Lewinski” to be Lieutenant Michael Niewinski.

13

There is also other evidence in the record that speaks to this issue. Elizabeth Police Department
Lieutenant Michael Niewinski testified that there is no such policy – if an individual was arrested
but it was later learned that he or she was not involved in criminal activity, that person should be
released with no charges. D.E. 40-5, 54:7-16. Niewinski stated that it was “not accurate” that he
told Hidalgo to charge Plaintiff, despite the 0.0 Alcotest, because it was not possible to “un-arrest”
Plaintiff. Id. at 56:3 to 58:16. Further, Niewinski does not recall Sergeant Vasquez telling Hidalgo
that he had to charge Plaintiff. Id. Niewinski testified that it is possible to “un-arrest” someone
and that he has done it before. Id. at 109:5-12. For reasons unknown, the City does not rely on
this evidence in its motion, so the Court does not consider it. However, even if the Court did
consider the information, Hidalgo’s testimony would nevertheless create a genuine dispute of
material fact on the issue.
14

This is an argument in support of a motion to dismiss for failing to plausibly plead a claim. It
is not an appropriate at the summary judgment stage.
26

City failed to train Hidalgo properly because he received no training for identifying the smell of
alcohol, he received no training in distinguishing between an intoxicated person and a person in
medical distress, and he believed that he was required to charge anyone arrested with a crime, even
if he later believed that person to be innocent. Pl. Opp. at 30-31. Plaintiff continues that Hidalgo
was not properly supervised because his supervisors instructed him to charge Plaintiff “despite a
clear lack of probable cause.” Id. at 31.
In this type § 1983 claim, a plaintiff must “(1) identify the deficiency in training; (2) prove
that the deficiency caused the alleged constitutional violation; and (3) prove that the failure to
remedy the deficiency constituted deliberate indifference on the part of the municipality.” Wheeler
v. City of Jersey City, No. 12-7528, 2016 WL 1029271, at *4 (D.N.J. Mar. 14, 2016) (quoting
Lapella v. City of Atl. City, No. 10-2454, 2012 WL 2952411, at *6 (D.N.J. July 18, 2012).
“Deliberate indifference is a stringent standard of fault, requiring proof that a municipal actor
disregarded a known or obvious consequence of his action. Ordinarily, a pattern of similar
constitutional violations by untrained employees is necessary to demonstrate deliberate
indifference for purposes of failure to train.” Thomas v. Cumberland Cty., 749 F.3d 217, 223 (3d
Cir. 2014) (internal quotations, citations, and brackets omitted).
Here, there is sufficient evidence in the record from which a reasonable factfinder could
determine that the City’s training and supervision was constitutionally deficient. Hidalgo’s
testimony indicates he did not receive training on the smell of alcohol. D.E. 35-4, 16:3-5. It seems
obvious that Hidalgo, and other officers who make DWI arrests, would need training on detecting
the odor of alcohol. They would also require training on how to distinguish between an intoxicated
person and a person in medical distress. The City’s “DWI Questionnaire” includes the following
questions: “Do you have diabetes?” and “Are you taking insulin?” D.E. 40-2. A reasonable

27

factfinder could conclude that the inclusion of these questions shows the City’s awareness that
diabetes can be mistaken as DWI. Hidalgo further testified that he was trained to file charges for
anyone he arrested, even if he discovered evidence that the suspect did not commit the crime. D.E.
35-4, 68:8-21. Based on Hidalgo’s testimony, a reasonable factfinder could conclude that “in light
of the duties assigned to specific officers or employees the need for more or different training is
so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the
policymakers of the city can reasonably be said to have been deliberately indifferent to the need.”
(quoting Harvey v. County of Hudson, No. 14-3670, 2015 WL 9687862, at *14 (D.N.J. Nov. 25,
2015) (quoting City of Canton, 489 U.S. at 390). As a result, the Court denies the City’s motion
for summary judgment with respect to Plaintiff’s failure to train and/or supervise theory of Monell
liability in Counts Five and Six.
2. Plaintiff’s Tort Claims (Count Fourteen)
Count Fourteen alleges that the City is vicariously liable for the Police Officer Defendants’
wrongful acts. Compl. ¶¶ 105-110. The City argues that it cannot be held vicariously liable for
Hidalgo’s alleged willful disregard, assault and battery, abuse of process, false arrest, false
imprisonment, and malicious prosecution claims. City Br. at 15. As noted, Plaintiff does not
intend to pursue claims for willful disregard, assault and battery, and abuse of process. Pl. Opp.
at 5. As a result, the Court will consider the City’s alleged vicarious liability only with respect to
false arrest, false imprisonment, and malicious prosecution. The City raises two arguments for
why it cannot be held liable for Plaintiff’s tort claims: (1) a public entity is immune from liability
for intentional torts; and (2) Plaintiff fails to meet the NJTCA’s verbal threshold.
a. Immunity from Liability for Intentional Torts

28

The City first argues that Plaintiff’s tort claims fail as a matter of law because a public
entity cannot commit an intentional tort and is not liable for intentional torts committed by is
employees. City. Br. at 15-16. In response, Plaintiff contends that the NJTCA does not prohibit
a public entity from liability for its employee’s intentional torts and, instead, “only prohibits
vicarious liability for ‘acts or omissions of a public employee constituting a crime, actual fraud,
actual malice, or willful misconduct.’” Pl. Br. at 34 (quoting N.J. Stat. Ann. § 59:2-10). Plaintiff
continues that, although courts have used the phrase “intentional tort” when discussing the statute,
that phrase is misleading because it is not used in the statute, and not every intentional tort would
necessarily be covered by the statute.
The NJTCA provides that “[a] public entity is not liable for the acts or omissions of a public
employee constituting a crime, actual fraud, actual malice, or willful misconduct.” N.J. Stat. Ann.
§ 59:2-10. As a result, the City’s potential liability in this case depends on whether Hidalgo’s
challenged actions could be viewed as willful misconduct. See Kelly v. County of Monmouth, 883
A.2d 411, 414 (N.J. Super. Ct. App. Div. 2005). “[W]illful misconduct requires much more than
mere negligence”; it falls “somewhere on the continuum between simple negligence and the
intentional infliction of harm.” Alston v. City of Camden, 7763 A.3d 693, 702 (N.J. 2001) (internal
quotation omitted).
A genuine dispute of material fact exists which precludes the Court from determining
whether Hidalgo’s acts constituted willful misconduct. The parties dispute whether Hidalgo
actually smelled alcohol; this fact is critical to the willful misconduct inquiry. If Hidalgo lied
about smelling alcohol, then his actions underpinning the torts of false arrest, false imprisonment,
and malicious prosecution could be considered willful misconduct. However, if Hidalgo was
mistaken about smelling alcohol, then his actions would not amount to willful misconduct. As a

29

result of this disputed material fact, the Court declines to grant the City’s motion for summary
judgment on Count Fourteen on the grounds of the City’s immunity for liability from intentional
torts.
b. NJTCA Verbal Threshold
The City next argues that Plaintiff’s tort claims are barred because they fail to satisfy the
$3,600 threshold for his medical treatment expenses, pursuant to N.J. Stat. Ann. § 59:9-2(d). City
Br. at 17. Plaintiff argues that his failure to meet this threshold “is not an automatic bar to all of
Plaintiff’s tort claims” because (1) this statutory limitation on damages does not protect an
employee for conduct which amounts to a crime, actual fraud, actual malice or willful
misconduct”; and (2) this limitation only changes the type of damages Plaintiff can recover. Pl.
Opp. at 36, 22-23.
The NJTCA “limits certain damages available to a Plaintiff who brings a claim for injury,”
including N.J. Stat. Ann. § 59:9-2(d), which “addresses awards for pain and suffering.” Nieves v.
Adolf, 230 A.3d 227, 235 (N.J. 2020). This provision – known as the “verbal threshold” – provides,
in relevant part:
[n]o damages shall be awarded against a public entity or public
employee for pain and suffering resulting from any injury; provided,
however, that this limitation on the recovery of damages for pain
and suffering shall not apply in cases of permanent loss of a bodily
function, permanent disfigurement or dismemberment where the
medical treatment expenses are in excess of $3,600.00.
Id. (quoting N.J. Stat. Ann. § 59:9-2(d)). “The verbal threshold by its terms applies to pain and
suffering claims and not to economic damages.” Id. at 236.
The parties’ respective statements of material facts not in dispute do not address the type
of damages Plaintiff seeks, however, the Complaint details that Plaintiff seeks an award of
compensatory and punitive damages for: “his personal injuries; pain and suffering; past, present,

30

and future medical expenses; attorneys’ fees; mental anguish; loss of earning capacity; and loss of
capacity to enjoy life; as well as his costs, and all other relief the Court deems just and proper.”
Compl. ¶ 11. Plaintiff also seeks a declaratory judgment on certain issues and injunctive relief.
Id. ¶¶ 112-13. While the record is void of evidence that Plaintiff meets the NJTCA’s verbal
threshold requirement, this only limits his recovery of pain and suffering damages – the other relief
Plaintiff seeks is not subject to this statutory bar. As a result, the Court denies the City’s motion
for summary judgment for Count Fourteen based on the NJTCA’s verbal threshold.
IV.

CONCLUSION
For the reasons set forth above, Defendant Hidalgo’s motion for summary judgment is

GRANTED in part and DENIED in part. Defendant Hidalgo is granted summary judgment on
Count One subpart a (stopping and detaining Plaintiff without reasonable and articulable
suspicion; and Count Six insofar as it pertains to allegations of use of an unlawful stop. Hidalgo’s
motion for summary judgment is denied on all other grounds. Defendant City of Elizabeth’s
motion for summary judgment is DENIED. An appropriate Order accompanies this Opinion.

Dated: April 13, 2021

_____________________________
John Michael Vazquez, U.S.D.J.

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