ESPOSITO et al v. LITTLE EGG HARBOR TOWNSHIP et al
Filing
42
OPINION. Signed by Judge Freda L. Wolfson on 4/27/2012. (gxh)
*NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
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Plaintiffs,
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v.
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LITTLE EGG HARBOR TOWNSHIP, et al. :
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Defendants.
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CIRO ESPOSITO and
CONSIGLIA ESPOSITO, his wife
Civil Action No. 08-3725 (FLW)
OPINION
WOLFSON, United States District Judge:
Presently before the Court are three motions. Defendants Little Egg Harbor and Mark
Siino (collectively the “Little Egg Harbor Defendants”) move for summary judgment, and
Defendant Police Officer Eric Nelson (“Nelson”) and Defendant Police Officer Kevin Hogan
(“Hogan”) each separately move for partial summary judgment, but on identical grounds.1 These
motions stem from Plaintiff Cino Esposito’s (“Plaintiff” or “Esposito”) arrest by Officers Nelson
and Hogan in Little Egg Harbor Township on December 28, 2007. Plaintiff brings federal
causes of action under 42 U.S.C. § 1983 and parallel state law claims. In particular, Plaintiff
alleges that the officers (1) used excessive force in violation of § 1983 and committed assault and
battery in violation of state law (Counts One and Seven); (2) falsely arrested and imprisoned
Plaintiff in violation of § 1983 and state law (Counts Two and Eight); (3) committed malicious
1
For the sake of convenience, the Court will refer to the motions made by Defendants Nelson
and Hogan as one motion. Even though each defendant filed a separate motion, the motions are
nearly mirror copies of each other. Also, only Nelson filed a reply. But the arguments presented
therein are made on behalf of both defendants and will be considered to be filed on behalf of
both Nelson and Hogan.
1
abuse of process in violation of § 1983 and state law (Counts Three and Nine); (4) committed
malicious prosecution in violation of § 1983 and state law (Counts Four and Ten); and (5)
committed negligent and intentional infliction of emotional distress in violation of state law
(Count Eleven). Plaintiff also alleges that (1) Little Egg Harbor had an unlawful custom,
practice, policy, or inadequate training which subjects it to liability under § 1983 (Count Six) and
(2) is liable under a state law agency theory for any wrongdoing of Officers Nelson and Hogan
(Count Twelve).2 Plaintiff has filed an omnibus opposition (“Pl. Opp.”) to all parties’ motions.
The Little Egg Harbor Defendants have moved for summary judgment on Counts Six and
Twelve, the only counts alleged against them. Plaintiff does not oppose Little Egg Harbor
Defendants’ motion. Pl. Opp., at iii. Therefore, summary judgment is granted on those counts in
favor of the Little Egg Harbor Defendants, and because no counts remain against the Little Egg
Harbor Defendants, they will be dismissed from the case. The remaining defendants, Officers
Nelson and Hogan (collectively “Defendants” or “Officers”), move for summary judgment on
Counts Two through Four and Seven through Eleven. Defendants have not moved on Plaintiff’s
claims for excessive force and assault and battery (Counts One and Seven); those claims will
remain. Plaintiff does not oppose the Defendants’ motion with respect to the false arrest and
malicious prosecution causes of action (Counts Two, Four, Eight, and Ten); those claims will be
dismissed. Id. Plaintiff does oppose Defendants’ motion with respect to the abuse of process
and intentional infliction of emotional distress causes of action (Counts Three, Nine, and
Eleven), so it is only those claims that are before the Court today. For the reasons that follow,
Defendants’ motion as to Count Three, Nine, and Eleven are granted.
2
Plaintiff also brings a claim for supervisory liability (Count Five) against “John Does 2 and/or
John Does 6-10” and a claim for prospective injunctive relief (Count Thirteen) against all
defendants based on the underlying claims. These counts are not at issue for purposes of the
present motions.
2
I.
BACKGROUND
The Court only recounts the facts necessary to resolve Defendants’ motion. The
following facts are undisputed by the parties unless otherwise indicated. On December 28, 2007,
Plaintiff Esposito went to a Rite Aid in Little Egg Harbor Township to pick up medications.
Esposito and the pharmacist, Ehan Nhan, had a verbal dispute about Plaintiff’s prescriptions.
This was at least the second such confrontation between Esposito and Nahn. In response to the
altercation, Mr. Nahn called the police. Officers Nelson and Hogan arrived and spoke with
Plaintiff and the pharmacist separately and then spoke with everyone together. This interaction
was recorded by Rite Aid surveillance. The Defendants then led Plaintiff out of the store,
holding his arm, where Plaintiff was then arrested for disorderly conduct and resisting arrest.
Plaintiff argues he never resisted, but was needlessly manhandled by the Defendants during his
arrest and allegedly suffered significant injuries. Defendants dispute this and argue they acted
properly in response to Esposito’s angry demeanor and threatening conduct. Plaintiff was tried
in Little Egg Harbor Municipal Court and found guilty of resisting arrest, but not guilty of
disorderly conduct. Plaintiff appealed to the superior court. Following a trial de novo, he was
again found guilty of resisting arrest. Plaintiff then filed this action alleging that Defendants
violated his constitutional rights and a number of analogous state law claims.
II.
LEGAL STANDARD
“Summary judgment is proper if there is no genuine issue of material fact and if, viewing
the facts in the light most favorable to the non-moving party, the moving party is entitled to
judgment as a matter of law.” Pearson v. Component Tech. Corp., 247 F.3d 471, 482 n.1 (3d
Cir. 2001) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)); accord Fed. R. Civ. P.
56(c). For an issue to be genuine, there must be “a sufficient evidentiary basis on which a
3
reasonable jury could find for the non-moving party.” Kaucher v. County of Bucks, 455 F.3d
418, 423 (3d Cir. 2006); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91
L. Ed. 2d 202 (1986). In determining whether a genuine issue of material fact exists, the court
must view the facts and all reasonable inferences drawn from those facts in the light most
favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986); Curley v. Klem, 298 F.3d 271, 276-77 (3d Cir. 2002). For a fact to be material,
it must have the ability to “affect the outcome of the suit under governing law.” Kaucher, 455
F.3d at 423. Disputes over irrelevant or unnecessary facts will not preclude a grant of summary
judgment.
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.; Monroe v. Beard, 536 F.3d 198, 206-07 (3d Cir. 2008). Thus, to
withstand a properly supported 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. The nonmoving party “must do more than simply show that there
is some metaphysical doubt as to material facts.” Id. at 206 (quoting Matsushita, 475 U.S. at
586). Moreover, the non-moving party must present “more than a scintilla of evidence showing
that there is a genuine issue for trial.” Woloszyn v. County of Lawrence, 396 F.3d 314, 319 (3d
Cir. 2005). Indeed, the plain language of Rule 56(c) mandates the entry of summary judgment,
after adequate time for discovery and upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential to that party's case, and on which that
party will bear the burden of proof at trial. Celotex Corp., 477 U.S. at 322. In deciding the
4
merits of a party’s motion for summary judgment, the court’s role is not to evaluate the evidence
and decide the truth of the matter, but to determine whether there is a genuine issue for trial.
Anderson, 477 U.S. at 249.
III.
DISCUSSION
a. Abuse of Process
“A section 1983 claim for malicious abuse of process lies where prosecution is initiated
legitimately and thereafter is used for a purpose other than that intended by the law.” Rose v.
Bartle, 871 F.2d 331 (3d Cir. 1989) (internal citations and quotations omitted); Ference v. Twp.
of Hamilton, 538 F. Supp. 2d 785, 798 (D.N.J. 2008). In analyzing a § 1983 claim, a court may
look to analogous common law torts. See Heck v. Humphrey, 512 U.S. 477, 483 (1994). To
prevail on his § 1983 claim and state law claim Plaintiff must prove two elements. Voytko v.
Ramada Inn of Atlantic City, 445 F. Supp. 315, 325 (D.N.J. 1978). First, he must show that
Defendants had a desire to effect some ulterior, harmful end separate from the legitimate aim of
the process. See Heck, 512 U.S. at 486 (“The gravamen of [an abuse of process claim] is not the
wrongfulness of the prosecution, but some extortionate perversion of lawfully initiated process to
illegitimate ends.”); Ference, 538 F. Supp. 2d at 798 (“To establish such a claim, there must be
some proof of a definite act or threat not authorized by the process, or aimed at an objective not
legitimate in the use of [the] process.”). Second, Plaintiff must show Defendants committed
some unauthorized or improper act in furtherance of their iniquitous motive. “Consequently,
basic to the tort of malicious abuse of process is the requirement that the defendant perform
‘further acts’ after issuance of process which represent the perversion or abuse of the legitimate
purposes of that process.” Baglini v. Lauletta, 338 N.J. Super. 282, 293-94 (App. Div. 2001)
(internal quotations and citations omitted). Unlike a malicious prosecution claim, which
5
concerns the motives for initiating process, an abuse of process claim must arise from conduct
that occurred after process was initiated. The New Jersey Supreme Court has explained the
distinction between these two conceptually similar causes of action:
An action for malicious abuse of process is distinguished from an action for
malicious use of process in that the action for abuse of process lies for the
improper, unwarranted and perverted use of process after it has been issued while
that for the malicious use of it lies for causing process to issue maliciously and
without reasonable or probable cause. Thus it is said, in substance, that the
distinction between malicious use and malicious abuse of process is that the
malicious use is the employment of process for its ostensible purpose, although
without reasonable or probable cause, whereas the malicious abuse is the
employment of a process in a manner not contemplated by law.
Ash v. Cohn, 119 N.J.L. 54, 58 (1937); Nieves v. Ortiz, No. 06-5206, 2008 U.S. Dist. LEXIS
63623, 28-30 (D.N.J. Aug. 20, 2008) (“An abuse of process claim does not turn on whether the
process was legitimately or illegitimately initiated, but rather on whether after the initiation, it
was used for some improper purpose.”).
Plaintiff leaves the contours of his allegations vague. From what I can glean from
Plaintiff’s opposition and complaint, Plaintiff believes the Defendants contrived allegations of
Esposito resisting arrest to conceal their allegedly abusive actions, and to support their artificial
charge, the Officers made false statements in their reports, at their depositions, and during their
testimony. Defendants argue that no evidence exists to support these allegations. Instead,
Defendants say that after Plaintiff’s arrest, they prepared charges and reports in the normal
course and provided sworn testimony consistent with their reports and recollections as they
would for any other matter. Def. Reply, at 3-4. Plaintiff raises serious charges, ones the Court
does not take lightly, but Plaintiff has failed to present even a “scintilla of evidence” in support
of his claim, let alone material issues of fact.
According to Plaintiff, the Officers committed “further acts” by allegedly making “false
6
representations of fact in their reports, again under oath during municipal court testimony, and
again under oath during their deposition testimony in order to justify the arrest and assault of the
plaintiff.” Pl. Opp., at 10. These are not “further acts” as understood in the context of an abuse
of process claim. Anything that occurred before Esposito was charged is irrelevant to my
analysis of malicious abuse of process. While it is true that the Officers testified after charges
were brought against Esposito, the testimony referenced by Plaintiff focuses entirely on whether
the Officers had grounds to arrest Esposito and their conduct in arresting him. These allegations
could potentially form the basis for a false arrest or malicious prosecution claim, both of which
Plaintiff correctly recognizes are untenable here. Plaintiff cannot now bootstrap those
allegations to manufacture an abuse of process claim. Even if I were to consider the Officers’
municipal court testimony properly cognizable as “further acts” for purposes of bringing an
abuse of process claim, Plaintiff has not attached the court transcript or cited to any actual
testimony the Officers gave at Plaintiff’s trial. Indeed, Plaintiff does not give any specific,
meaningful examples of any actual false statements or perjured testimony made in connection
with Plaintiff’s underlying case. Instead, Plaintiff cites to deposition testimony the Officers
provided in connection with this case. See Exhibits G and H attached to Mallon Certification.
Whatever the Officers have done or said in relation to this case cannot, by definition, constitute
“further acts” for an abuse of process in another case. “Process is not abused unless after its
issuance the defendant reveals an ulterior purpose he had in securing it by committing further
acts whereby he demonstrably uses the process as a means to coerce or oppress the plaintiff.”
Ruberton v. Gabage, 280 N.J. Super. 125, 130 (App. Div. 1995) (emphasis added) (internal
quotations omitted). The Defendants could not and were not using process in Plaintiff’s criminal
trial by giving testimony in this civil case.
7
To the extent Plaintiff implies that Defendants’ deposition testimony reflects the
testimony they gave it trial, the Court still finds there is no genuine issue of material fact that
Defendants gave any false statements.3 See, e.g., Pl. Opp., at 7 (stating what “Defendant Nelson
admitted at trial…” and quoting Nelson’s deposition transcript). The only evidence Plaintiff
alleges that shows Defendants made false representations or committed perjury rests on footage
from the surveillance video. Since Plaintiff relies on the surveillance video and indeed attaches
it to his motion, I have carefully reviewed this video.4 It shows Plaintiff’s dispute with the
pharmacist, the pharmacist calling the police, Plaintiff waiting several minutes with his arms
folded until the Officers arrive, Plaintiff and the pharmacist speaking with the Officers,
separately and together, then Defendants removing Plaintiff from the store holding his arm. Pl.
Opp., 10; Exhibit I to Mallon Certification (“Surveillance Video”). The Defendants made
statements during their depositions and allegedly during Plaintiff’s municipal criminal trial that
Plaintiff was “flailing his arms,” “arguing with [the pharmacist],” “angry,” and “yelling.” Pl.
Opp., 4; Exhibits G and H to Mallon Certification. Plaintiff argues that the surveillance video
contradicts this testimony and instead shows Plaintiff calmly waiting with his arms folded. This
is the proof, says Plaintiff, that Defendants are lying. Plaintiff argues this is only one of “many,
many examples” of such inconsistencies, but this is the only one that he details and the only one
upon which he premises his argument.
I find nothing in the video to support Plaintiff’s allegations. At times, Plaintiff appears
3
Plaintiff never actually makes such an argument and rather refers to the Defendants’ deposition
testimony given in this matter at times as Defendants’ trial testimony given in Plaintiff’s criminal
case. This is improper. It is Plaintiff’s obligation to show a genuine issue of fact by bringing
forth requisite evidence, not by referring to it obliquely and implying what that evidence may
represent. Plaintiff should have provided the Court with excerpts from the actual municipal
court transcript if he intended to rely on it.
4
The Court notes that while it resolves all factual disputes in favor of Plaintiff, the Court will not
draw inferences that contradict the events depicted in the video. See Scott v. Harris, 550 U.S.
372, 380-81 (2007); Ference v. Twp. of Hamilton, 538 F. Supp. 2d 785, 790 (D.N.J. 2008).
8
very calm, waiting patiently; at other times, he is quite agitated, both when talking to the
pharmacist and when talking to the Officers. For example, from time 18:28 to 20:44 of the
surveillance video, Esposito is talking to the Officers and is almost continuously moving his
arms about, at times vigorously, and pointing to what appears to be his prescription and then at
the pharmacist. Whether this was “flailing his arms” about or merely gesticulating for effect is
an issue of semantics, but it is not a genuine issue of fact.5 Plaintiff also refers to the police
report, albeit generally, and attaches it to his opposition. Exhibit K to Mallon Certification. I
have reviewed the report and find no inconsistencies between the report and the Officers’
testimony given in this matter or the surveillance video. No reasonable juror could find for
Plaintiff on the evidence Plaintiff offers because it fails to demonstrate that Defendants made
misrepresentations.
Second, even if the Defendants gave testimony inconsistent with the video, Plaintiff has
not brought forth any evidence of the Defendants’ illegitimate motivation, beyond an amorphous
and inadequate allegation that the Defendants intended to protect their own interests. Pl. Opp., at
10. Plaintiff does not explain what interest the Officers hoped to protect or how they intended to
protect it through their alleged perjury. Without such improper motivation, there can be no
abuse of process. “The gist of the tort of malicious abuse of process…is the misuse, or
‘misapplying process justified in itself for an end other than that which it was designed to
accomplish. The purpose for which the process is used, once it is issued, is the only thing of
importance.’” Baglini v. Lauletta, 338 N.J. Super. 282, 293-94 (App. Div. 2001) (quoting Prosser
5
The Court has reviewed the record provided and notes that the Officers also testified in their
depositions that Plaintiff’s actions in the store made them concerned for the safety of everyone,
including other customers. Exhibit G and H to Mallon Certification. But the surveillance video
shows a number of other patrons coming in and out of the frame apparently unphased by
Esposito’s discussion with the Officers and the pharmacist. Nevertheless, Plaintiff does not base
his argument on this nor would it alter my holding for the reasons discussed infra if he had.
9
& Keeton on Torts § 121 at 897 (5th ed.1984)); see also Tedards v. Auty, 232 N.J. Super. 541,
549 (App. Div. 1989) (explaining process is not abused unless “after its issuance the defendant
reveals an ulterior purpose he had in securing it by committing ‘further acts’ whereby he
demonstrably uses the process as a means to coerce or oppress the plaintiff.”); Ruberton, 232
N.J. Super., at 130-31 (“In the absence of some coercive or illegitimate use of the judicial
process there can be no claim for its abuse.”). Plaintiff’s conclusions rely entirely on his own
speculation. Such unsupported allegations, by themselves, are not enough to prevent summary
judgment from being granted. Podobnik v. United States Postal Serv., 409 F.3d 584, 594 (3d
Cir. Pa. 2005) (“To survive summary judgment, a party must present more than just "bare
assertions, conclusory allegations or suspicions….”) (internal citations and quotations omitted);
Hickson v. Marina Assocs., 743 F. Supp. 2d 362, 373 (D.N.J. 2010).
Moreover, Plaintiffs’ allegations that Defendants committed perjury at their municipal
court trial, even if true, cannot form the basis of an abuse of process claim as the Officers are
immune from civil liability for giving testimony.6 The United States Supreme Court, in Briscoe
v. LaHue, explained:
It is equally clear that § 1983 does not authorize a damages claim against private
witnesses on the one hand, or against judges or prosecutors in the performance of
their respective duties on the other. When a police officer appears as a witness, he
may reasonably be viewed as acting like any other witness sworn to tell the truth
– in which event he can make a strong claim to witness immunity; alternatively,
he may be regarded as an official performing a critical role in the judicial process,
in which event he may seek the benefit afforded to other governmental
participants in the same proceeding. Nothing in the language of the statute
suggests that such a witness belongs in a narrow, special category lacking
protection against damages suits.
Briscoe v. LaHue, 460 U.S. 325, 335-36 (1983); Blacknall v. Citarella, 168 Fed. Appx. 489, 492
6
This is not to say that police officers can escape liability for falsifying or omitting evidence or
tampering with the judicial process in other ways. But the only support Plaintiff relies on is that
allegedly perjurious statements made by the Officers conflict with the surveillance video.
10
(3d Cir. 2006) (“Moreover, it is well-settled that police officers are absolutely immune from §
1983 suits for damages for giving allegedly perjured testimony at a criminal trial.”).7 This district
has applied Briscoe’s holding to matters involving similar allegations of an abuse of process.
Dunne v. Twp. of Springfield, No. 08-5605, 2011 U.S. Dist. LEXIS 9705, *26-27 (D.N.J. Jan.
31, 2011) (“The Court is not persuaded that an officer’s [allegedly false] testimony about what
he believed he heard during a traffic encounter constitutes ‘further acts’ that would support a
malicious abuse of process claim.”); Mosley v. Del. River Port Auth., No. 99-4147, 2000 U.S.
Dist. LEXIS 22402 (D.N.J. Aug. 7, 2000) (“For the purposes of an abuse of process claim,
‘process’ does not include false testimony…The tort of abuse of process does not arise where a
person simply makes comments that may have themselves been defamatory or unethical within a
process legitimately conceived in the hopes of succeeding in obtaining the very thing for which
the person brought the process in the first place.”).
The Supreme Court, in Briscoe, recognized the potential harm arising from its holding,
but struck the balance firmly in favor of insulating police officers from civil liability in such
situations:
There is, of course, the possibility that, despite the truthfinding safeguards of the
judicial process, some defendants might indeed be unjustly convicted on the basis
of knowingly false testimony by police officers. The absolute immunity for
prosecutors recognized in Imbler bars one possible avenue of redress for such
defendants. Similarly, in this case, the absolute witness immunity bars another
possible path to recovery for these defendants. But we have recognized, again
and again, that in some situations, the alternative of limiting the official’s
immunity would disserve the broader public interest. As Judge Learned Hand
7
The New Jersey State Supreme Court has reached the same result. “A statement made in the
course of judicial, administrative, or legislative proceedings is absolutely privileged and wholly
immune from liability. That immunity is predicated on the need for unfettered expression critical
to advancing the underlying government interest at stake in those settings.” Erickson v. Marsh &
McLennan Co., 117 N.J. 539, 563 (1990); see also Ruberton, 232 N.J. Super. at 132) (finding
that even if defendant's attorney’s “conduct or statements during the conference [were] otherwise
tortious or violated ethical standards, [that] does not mean that he misused ‘process’ for a corrupt
purpose”).
11
wrote years ago:
As is so often the case, the answer must be found in a balance
between the evils inevitable in either alternative. In this instance it
has been thought in the end better to leave unredressed the wrongs
done by dishonest officers than to subject those who try to do their
duty to the constant dread of retaliation. Gregoire v. Biddle, 177
F.2d 579, 581 (CA2 1949), cert. denied, 339 U.S. 949 (1950).
Briscoe, 460 U.S. at 344. Thus, even if Plaintiff was subjected to an artificial charge of resisting
arrest, improperly supported by false statements and perjured testimony, Plaintiff cannot recover
via a claim of abuse of process.8 Plaintiff relies on Groman v. Township of Manalapan, 47 F.3d
628 (3d Cir. 1995), to argue that “conflicting testimony” can give rise to a genuine issue of
material fact. That is true as a general matter, but conflicting testimony is wholly separate from
the issue of perjury. In Groman, the court merely held that there was a material issue of fact,
based on the differing testimony between the police officer and the plaintiff, about whether the
officer’s reaction was reasonable or constituted excessive force and therefore summary judgment
was inappropriate. Id. at 634. Groman is inapposite both on the law and on its facts.
Defendants also argue that Plaintiff’s abuse of process claim should be dismissed based
on the Officers’ qualified immunity. Having decided that no genuine issues of material fact exist
to support Plaintiff’s abuse of process charge, the Court need not reach the issue of whether
qualified immunity applies.
After review of the parties’ briefs and the relevant record, and viewing all facts and
reasonable inferences in light most favorable to Plaintiff, this Court concludes that there are no
8
While this result may seem harsh or likely to work an injustice, there are other avenues for
redress and other factors that prevent officers from taking unfair advantage of their absolute civil
immunity. For example, a criminal conviction likely will not stand if it is based on an officer’s
perjured testimony. And any officer who chooses to commit perjury because he can escape civil
liability, still exposes himself to severe criminal penalties and professional ruin. Our adversarial
system, despite its purported flaws, manages to do a worthy job of eliciting truth and preventing
perjury from any witness.
12
genuine issues of material facts regarding Plaintiff’s federal and state law claims for malicious
abuse of process. Accordingly, summary judgment is granted on Counts Three and Nine.
b. Intentional Infliction of Emotional Distress
Defendants also argue there is no issue of fact regarding Plaintiff’s claim that the Officers
intentionally inflicted emotional distress. To prevail on such a claim: “(1) the conduct must be
extreme and outrageous; (2) the conduct must be intentional or reckless; (3) it must cause
emotional distress; and (4) the distress must be severe.” Chuy v. Philadelphia Eagles Football
Club, 595 F.2d 1265, 1273 (3d Cir. 1979). Police officers are not immune from claims of
intentional infliction of emotional distress under New Jersey law. N.J. Stat. Ann. § 59:3-3
(public employees are only exempt from liability for the good faith execution or enforcement of
any law); Gattas v. City of Jersey City, No. 07-4242, 2010 U.S. Dist. LEXIS 20590 (D.N.J. Mar.
5, 2010).
Defendants have not moved for summary judgment on Plaintiff’s claims of excessive
force or assault and battery, which allege that Defendants engaged in intentional and extreme
conduct. Plaintiff has put forth evidence that he sustained injuries and required medical care due
to his arrest. Exhibits C, D, and L to Mallon Certification. Defendants do not refute this
evidence as it pertains to Plaintiff’s excessive force and assault and battery charges, which are
not at issue here. Based on this and viewing the facts and their associated inferences in a light
most favorable to Plaintiff, there could be material issues of fact regarding (1) whether
Defendants intended to inflict emotional distress on Plaintiff; (2) whether Defendants’ conduct
was “extreme and outrageous;” and (3) whether Defendants’ actions were the cause of Plaintiff’s
distress. But because Plaintiff has failed to demonstrate that a genuine issue of material fact
exists with respect to the fourth element—whether Esposito suffered “severe” emotional distress
13
as defined by New Jersey law—summary judgment is appropriate.
Plaintiff’s complaint alleges that “Plaintiff sustained severe emotional distress.” Compl.
¶ 84. And in his opposition, Plaintiff states that he “clearly suffered distress, both physically and
mentally as a result.” Pl. Opp., 14. But Esposito never explains what emotional distress he
actually suffered. Mere allegations are not enough to create a triable issue of fact. See Mardini
v. Viking Freight, Inc., 92 F. Supp. 2d 378, 385 (D.N.J. 1999) (dismissing intentional infliction
of emotional distress claim because plaintiff had not alleged what “specific ailments afflicted
her”). Moreover, I have reviewed the record presented by the parties, their certifications and
exhibits attached, and their respective statement and counter statements of facts, and I find
nothing that even discusses any emotional or mental distress suffered by Plaintiff let alone any
evidence that supports such an affliction.9 Rather, Plaintiff’s evidence focuses on the physical
injuries he suffered immediately after his arrest, which he documents with photographs, medical
records, and reports. This evidence may be relevant to his remaining claims of excessive force
and assault and battery, but it is not relevant to his claim for intentional infliction of emotional
distress.
The New Jersey Supreme Court has said that “the emotional distress suffered by the
plaintiff must be so severe that no reasonable man could be expected to endure it.” Buckley v.
Trenton Sav. Fund Soc., 111 N.J. 355, 366 (N.J. 1988). In Buckley, the Court found that a
plaintiff suffering from “aggravation, embarrassment, an unspecified number of headaches, and
the loss of sleep” had not shown sufficient distress, as a matter of law, to rise to the necessary
level of severity. Id. In Gattas v. City of Jersey City, the plaintiff brought a claim for intentional
9
Plaintiff states in his opposition that he “is now mistrustful of police.” Pl. Opp., at 3. It is not
clear if he means this to be a form of emotional distress. This by itself is does not rise to the
level of severe emotional distress. If it were, then a significant portion of the population would
be suffering from severe emotional distress.
14
infliction of emotional distress due to a police officer’s allegedly aggressive conduct in arresting
him. Gattas, 2010 U.S. Dist. LEXIS 20590, *6-7. The district court granted summary judgment
because plaintiff offered no evidence in support of his statements that he was “distressed,
anguished, humiliated, and troubled by the officer’s actions.” Id. at *23-24 (“Gattas offers no
evidence of his emotional distress, other than the mere statements….”); see also Iglesia v. City of
Glassboro, No. 04-3034, 2007 U.S. Dist. LEXIS 42758, 16-18 (D.N.J. June 13, 2007) (granting
summary judgment on plaintiff’s intentional infliction claim because even if police conduct
amounted to excessive force, he “provided no compelling evidence that [his] ailments rise to the
level of severity recognized under New Jersey law”). Here, too, Plaintiff only offers mere
statements and allegations. This is not to say that Esposito’s claim fails because he has not
brought forward medical evidence. “[N]either medical treatment, nor expert testimony is
necessary in order for a plaintiff to prevail on an [intentional infliction of emotional distress]
claim.” Kounelis v. Sherrer, 529 F. Supp. 2d 503, 532 (D.N.J. 2008). Rather, Esposito’s claim
fails because he has not provided the court with any evidence from which a reasonable jury could
find severe emotional distress.10 Therefore, viewing all facts and reasonable inferences in a light
most favorable to Plaintiff, this Court concludes that there is no genuine issue of material fact
regarding Plaintiff’s claim for intentional infliction of emotional distress. Accordingly, summary
judgment is granted on Count Eleven.
10
Nor do Plaintiff’s allegations meet the requirements of the New Jersey Tort Claims Act,
N.J.S.A. 59:1-1 et seq. In particular, N.J.S.A. 59:9-2(d) prohibits an award “against a public
entity or public employee for pain and suffering resulting from any injury,” unless the injury
results in “permanent loss of a bodily function, permanent disfigurement or dismemberment
where the medical treatment expenses are in excess of $ 1,000.00.” There is further question,
too, whether Plaintiff has complied with the applicable notice requirements of the Act. N.J.S.A.
59:8-3 (“No action shall be brought against a public entity or public employee under this act
unless the claim upon which it is based shall have been presented in accordance with the
procedure set forth in this chapter.”).
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IV.
CONCLUSION
Little Egg Harbor Defendants motion for summary judgment on Counts Six and Twelve
is granted as Plaintiff does not oppose that motion. Defendants Nelson and Hogan’s motion for
partial summary judgment on Counts Two, Four, Eight, and Ten is granted as Plaintiff does not
oppose those aspects of Defendants motion. Defendants’ Motion for summary judgment on
Counts Three, Nine, and Eleven is granted for the reasons above. An order will be entered
consistent with this Opinion.
Dated: April 27, 2012
/s/ Freda L. Wolfson
Honorable Freda L. Wolfson
United States District Judge
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