JOHNSON v. PROVENZANO et al

Filing 40

OPINION filed. Signed by Judge Freda L. Wolfson on 12/10/2014. (kas, )

*NOT FOR PUBLICATION*
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
______________________________
JAMES JOHNSON,
:
:
Civil Action No.: 12-1253(FLW)
Plaintiff,
:
:
v.
:
OPINION
:
FRANK PROVENZANO, et al.,
:
:
Defendants.
:
______________________________:
WOLFSON, United States District Judge:
Plaintiff James Johnson (“Johnson” or “Plaintiff”) was issued
three traffic-related summonses and complaints by defendant Frank
Provenzano (“Officer Provenzano”), employed by defendant Ewing
Township
connection

Police
with

Department
an

alleged

(the

“Police

hit-and-run

Department”),

automobile

in

accident.

Because Plaintiff failed to appear in municipal court to answer
the summonses, a warrant was issued for his arrest.

Plaintiff

brings this civil rights action alleging that Officer Provenzano
did not have probable cause to issue the summonses, and by doing
so, he violated Plaintiff’s constitutional rights. In that regard,
Plaintiff asserts various § 1983 and state claims against Officer
Provenzano, as well as § 1983 claims against both the Police
Department and Ewing Township (the “Township”). 1
1

Pending before

The Court will collectively refer to Officer Provenzano, the
Police Department and the Township as “Defendants.”

the Court is Defendants’ motion for summary judgment, which is
opposed by Plaintiff.

For the reasons set forth below, the Court

GRANTS the motion for summary judgment in its entirety.
BACKGROUND
To resolve this motion for summary judgment, facts recounted
here are largely undisputed.

On August 14, 2010, a white Ford

Explorer, owned by Plaintiff, was involved in a hit-and-run car
accident in a parking lot in Ewing, New Jersey.

See Defendants’

Statement of Undisputed Facts (“Def. Facts”), ¶ 5. After a witness
reported

the

accident,

investigate the accident.

Officer

Provenzano

was

assigned

to

See Plaintiff’s Statement of Undisputed

Facts (“Pl. Facts”), ¶ 1.

Upon his arrival, Officer Provenzano

interviewed the witness, and the witness stated that while she was
in a store nearby, she saw a white Ford Explorer back into her
vehicle.

Id.

The witness also provided Officer Provenzano with

the Pennsylvania license plate of the Ford vehicle, which plate
the Officer instructed a dispatcher to run.

Def. Facts, ¶ 7.

The

witness, however, was unable to provide a description of the
driver.
The

Id. at ¶ 8; Pl. Facts, ¶ 2.
police
the

dispatch

informed

registered

owner

Officer

Plaintiff

was

of

question.

Def. Facts, ¶ 9; Pl. Facts, ¶ 1.

the

Provenzano
Ford

that

Explorer

in

Based on the witness’

statements and the information gathered from the license plate,
Officer Provenzano issued three citations to Plaintiff, which

2

included N.J.S.A. 39:4-129 (Leaving the Scene of an Accident);
N.J.S.A.

39:4-97

(Careless

(Failure to Report).

Driving);

and

N.J.S.A.

39:4-130

See Summonses dated August 14, 2010.

These

summonses were allegedly mailed to Plaintiff and according to
Defendants, the summonses were not returned by the post office to
the Police Department as “undeliverable” or “returned to sender.”
Def. Facts, ¶ 17.

Based on the summonses, Plaintiff was required

to appear in municipal court on September 13, 2010.
disputes

that

he

was

served

with

the

summonses

by

Plaintiff
mail

or

otherwise.
At the time the summonses were issued, Plaintiff was employed
by the Philadelphia Police Department.

On September 9, 2010,

Plaintiff received a phone call from SafeAuto Insurance Company
and was notified that Plaintiff’s Ford Explorer was involved in a
car accident. Pl. Dep., T23:11-14. Thereafter, Plaintiff examined
the vehicle and observed that tail lens was cracked.
T26:22.
of

Id. at

Apparently, on the date of the car accident, a relative

Plaintiff’s

wife

used

Plaintiff’s permission.

Plaintiff’s

Ford

vehicle

without

See Def. Facts, ¶ 19; Pl. Dep., T21:4-8.

Without Plaintiff’s knowledge, the relative drove the vehicle to
New Jersey.

See Pl. Dep., T23:11-14.

On September 11, 2010, Plaintiff’s wife picked up a copy of
the police report.
police

report

around

Id. at T30:17-23.
September

3

12,

Plaintiff reviewed the

2010.

Id.

at

T32:7-25.

According to Plaintiff, he was unaware of the court date, i.e.,
September 13, 2010, contained on the summonses, and therefore, he
did not appear in court on that date.

As a result, on Friday,

September 17, 2010, Plaintiff received a bench warrant for his
arrest.

On Monday, September 20, 2010, because of the outstanding

warrant, Plaintiff turned himself in to the Ewing Police Department
at approximately 5:50 a.m.

Id. at T57:1-4.

Officer Nicolas Muscente, who is not named as a defendant in
this lawsuit, detained and processed Plaintiff at the police
station.

According to Defendants, Plaintiff was detained on a

bench and handcuffed by one hand.

See Def. Facts, ¶ 33.

After

contacting the court administrator, Officer Muscente determined
that Plaintiff could be released on his own recognizance.
¶ 37.

Id. at

In that regard, Plaintiff was in the police station for a

total of one hour and twelve minutes.

Id. at ¶ 39.

given a new court date of October 6, 2010 to appear.

He was also
During his

court proceeding, Plaintiff proved that he was not the driver who
caused the accident, and therefore, all of the summonses against
Plaintiff were dismissed.
In

the

instant

suit,

Plaintiff

violating his constitutional rights.

accuses

Defendants

of

More specifically, in Count

One of the Complaint, Plaintiff alleges that Officer Provenzano
falsely arrested and imprisoned Plaintiff in violation of 42 U.S.C.
§ 1983. In Count Two, Plaintiff asserts identical state law claims

4

for false arrest and illegal imprisonment.

Counts Three and Four

are lodged against the Police Department and the Township for
failure to train, investigate and supervise/discipline under 42
U.S.C. § 1983 and state law claims of negligent hiring, training,
supervision,

respectively.

It

appears

that

in

Count

Five,

Plaintiff brings common law claims for malicious prosecution and
malicious abuse of process.
complains

that

Defendants

Finally, in Count Six, Plaintiff
have

negligently

or

intentionally

inflicted emotional distress upon him.
Presently, Defendants move for summary judgment on all counts
of the Complaint.
DISCUSSION
I.

Standard of Review
Summary judgment is appropriate where the Court is satisfied

that “there is no genuine issue as to any material fact and that
the

movant

is

entitled

to

a

judgment

as

a

matter

of

law.”

Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). A factual dispute is genuine only if there is “a sufficient
evidentiary basis on which a reasonable jury could find for the
non-moving party,” and it is material only if it has the ability
to “affect the outcome of the suit under governing law.” Kaucher
v. County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006); see also
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Disputes
over irrelevant or unnecessary facts will not preclude a grant of

5

summary judgment. Anderson, 477 U.S. at 248. “In considering a
motion

for

credibility

summary

judgment,

determinations

or

a

district

engage

in

court
any

may

not

weighing

of

make
the

evidence; instead, the non-moving party's evidence ‘is to be
believed and all justifiable inferences are to be drawn in his
favor.’” Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir.
2004) (quoting Anderson, 447 U.S. at 255)); see 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).
The burden of establishing that no “genuine issue” exists is
on the party moving for summary judgment. Celotex, 477 U.S. at
330. “A nonmoving party has created a genuine issue of material
fact if it has provided sufficient evidence to allow a jury to
find in its favor at trial.” Gleason v. Norwest Mortg., Inc., 243
F.3d 130, 138 (3d Cir. 2001). 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)

(quotations

omitted).

Under

Anderson,

Plaintiffs' proffered evidence must be sufficient to meet the
substantive evidentiary standard the jury would have to use at
trial. 477 U.S. at 255. To do so, the non-moving party must “go
beyond

the

pleadings

and

by

her

own

affidavits,

or

by

the

depositions, answers to interrogatories, and admissions on file,
designate specific facts showing that there is a genuine issue for

6

trial.” Celotex, 477 U.S. at 324 (quotations omitted); see also
Matsushita, 475 U.S. at 586; Ridgewood Bd. of Ed. v. Stokley, 172
F.3d 238, 252 (3d Cir.1999). In deciding the 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.

Credibility

determinations

are

the

province

of

the

factfinder. Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d
1358, 1363 (3d Cir. 1992).
There can be “no genuine issue as to any material fact,”
however,

if

a

party

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, 477 U.S. at 322–23. “[A] complete failure of proof
concerning an essential element of the nonmoving party's case
necessarily renders all other facts immaterial.” Id. at 323; Katz
v. Aetna Cas. & Sur. Co., 972 F.2d 53, 55 (3d Cir. 1992).
II.

Count One – False Arrest and Imprisonment
Plaintiff claims that because Officer Provenzano did not have

the requisite probable cause to issue the summonses, Plaintiff’s
subsequent

detention

at

arrest and imprisonment.

the

police

station

constituted

false

In order to establish a claim for false

imprisonment, a plaintiff must prove: (1) that he was detained;
and (2) that the detention was unlawful. See Wallace v. Kato, 549

7

U.S. 384, 389 (2007) (“The sort of unlawful detention remediable
by the tort of false imprisonment is detention without legal
process.” (citations omitted) (emphasis deleted)). As for false
arrest under § 1983, a plaintiff must prove that the officers
arrested and charged him without probable cause. Groman v. Twp. of
Manalapan, 47 F.3d 628, 634 (3d. Cir. 1995) (citation omitted).
The proper inquiry on this type of claim is not whether the person
arrested in fact committed the offense but whether the arresting
officers had probable cause to believe the person arrested had
committed the offense.
2014

U.S.

App.

LEXIS

Paszkowski v. Roxbury Twp. Police Dep't,
17767,

at

*7

(3d

Cir.

Sep.

16,

2014)(quotations and citations omitted).
Indeed, to prevail on the claims of false arrest and false
imprisonment, a plaintiff must demonstrate that the police lacked
probable cause. 2 The existence of probable cause is determined by
looking at the totality of the circumstances. Illinois v. Gates,
462 U.S. 213, 238 (1983) ("[W]e reaffirm the totality-of-thecircumstances analysis that traditionally has informed probable
cause determinations."). Probable cause does not require that the
prosecution have sufficient evidence to prove guilt beyond a
reasonable

doubt.

Rather,

probable

2

cause

requires

only

“a

Generally, the existence of probable cause is a factual issue.
Deary v. Three Un-Named Police Officers, 746 F.2d 185, 191 (3d
Cir. 1984). Summary judgment can be granted, however, in an
appropriate case on probable cause grounds. Id. at 192.
8

probability or substantial chance of criminal activity, not an
actual showing of such activity." U.S. v. Miknevich, 638 F.3d 178,
185 (3d Cir. 2011) (internal quotation marks omitted). Worded
differently,

“[p]robable

cause

exists

whenever

reasonably

trustworthy information or circumstances within a police officer's
knowledge are sufficient to warrant a person of reasonable caution
to conclude that an offense has been committed by the person being
arrested.” United States v. Myers, 308 F.3d 251, 255 (3d Cir.
2002).

A police officer may be liable for an arrest if no

reasonable competent officer would conclude that probable cause
exists.

Paszkowski, 2014 U.S. App. LEXIS 17767 at *7 (citations

omitted).

Importantly, the validity of an arrest is determined by

the law of the state where the arrest occurred.

Bergdoll v. City

of York, 515 Fed. Appx. 165, 169 (3d Cir. 2013).
Here, I note that there is no dispute that Plaintiff was
briefly

detained

at

the

police

station

after

he

voluntarily

surrendered, pursuant to an arrest warrant for failure to appear
at the municipal court to answer his traffic summonses.

Rather

than basing his claims on the arrest warrant, Plaintiff’s claims
stem from the allegation that Officer Provenzano lacked probable
cause to issue the summonses in the first place.

In other words,

it is Plaintiff’s position that had Officer Provenzano not issued
the summonses, the resulting warrant would not have been executed.

9

However, based on these facts, Plaintiff’s claims of false arrest
and imprisonment cannot stand.
For
pursuant
municipal

one,
to

Plaintiff

was

arrest

warrant

an

court;

this

was

properly

detained

because

the

he

did

basis

for

and
not

the

processed
appear

arrest.

in
The

distinction is important: Plaintiff was not arrested pursuant to
the

traffic

summonses. 3

unconstitutional

when

In

Officer

that

regard,

Muscente

there

processed

was
and

nothing
detained

Plaintiff pursuant a warrant issued by a municipal court judge.

3

Plaintiff further argues that the warrant for failure to
appear was not properly executed because he did not have notice of
the summonses.
In that regard, Plaintiff points to New Jersey
Court Rule 7:2-2 which states that if a defendant does not appear
in municipal court to answer a summons that was served by mail,
the first appearance must be rescheduled and the complaint and
summons to be served again by the municipal court. See N.J. Ct.
R. 7:2-4(b)(1). Plaintiff insists that the procedures set forth
by these court rules were not followed, and therefore, Officer
Provenzano is liable for false arrest and imprisonment. I do not
agree. The arrest warrant was issued by a municipal judge. See
N.J. Ct. R. 7:2-2(b). And, Plaintiff was arrested based on that
warrant. In that regard, the judge’s decision – regardless whether
it is sound -- to issue such a warrant clearly cannot be the basis
for asserting liability against Officer Provenzano. Indeed, the
error, if any, in issuing the warrant relates to the decision of
the municipal judge, not Officer Provenzano. Furthermore, even if
the municipal judge committed an error in issuing the arrest
warrant, the judge may enjoy judicial immunity on any potential
constitutional violations. Mireles v. Waco, 502 U.S. 9, 11 (1991);
Figueroa v. Blackburn, 208 F.3d 435 (3d Cir. 2000)(finding that
New Jersey municipal court judges are afforded absolute immunity
for their judicial acts).
Thus, Plaintiff’s factual allegation
that the arrest warrant was defective cannot be the basis for his
claims of false arrest and imprisonment against Officer
Provenzano.

10

See Fiore v. City of Bethlehem, 510 Fed. Appx. 215, 220 (3d Cir.
2013) ("[T]he fact that a [judge] has issued a warrant is the
clearest indication that the officers acted in an objectively
reasonable manner . . . .").

Thus, there are no facts showing

that Plaintiff’s arrest and detention resulted from a lack of
probable cause. 4
To the extent that Plaintiff’s § 1983 claims, here, can be
predicated upon the lack of probable cause for the issuance of the
summonses by Officer Provenzano in the first instance, Plaintiff’s
claims

also

fail.

Officer

Provenzano

issued

three

separate

summonses to Plaintiff for the alleged hit-and-run incident, which
included (1) N.J.S.A. 39:4-97 (careless driving); (2) N.J.S.A.
39:4-129 (leaving the scene of an accident); and (3) N.J.S.A. 39:4130 (failure to report an accident).
In relevant part, N.J.S.A. 39:4-129 provides:
(a) The driver of any vehicle which knowingly collides
with or is knowingly involved in an accident with any
vehicle or other property which is unattended resulting
4

Plaintiff’s claims of false arrest and imprisonment fail for
another reason. There is no dispute that Plaintiff was processed
by Officer Muscente at the police station when Plaintiff
voluntarily surrendered, not Officer Provenzano.
Thus, the
conduct of detaining and arresting Plaintiff in connection with
the arrest warrant was not on the part of Officer Provenzano.
Indeed, Officer Muscente’s conduct cannot be imputed to Officer
Provenzano for the purposes of § 1983 liability.
See Ruiz v.
McDonnell, 299 F.3d 1173, 1182 (10th Cir. 2002) (“Generally, state
actors may only be held liable under § 1983 for their own acts. .
."); Bistrian v. Levi, 696 F.3d 352, 366 (3d Cir. 2012)(finding
that state actors are liable only for their own unconstitutional
conduct).
11

in any damage to such vehicle or other property shall
immediately stop and shall then and there locate and
notify the operator or owner of such vehicle or other
property of the name and address of the driver and owner
of the vehicle striking the unattended vehicle or other
property or, in the event an unattended vehicle is struck
and the driver or owner thereof cannot be immediately
located, shall attach securely in a conspicuous place in
or on such vehicle a written notice giving the name and
address of the driver and owner of the vehicle doing the
striking or, in the event other property is struck and
the owner thereof cannot be immediately located, shall
notify the nearest office of the local police department
or of the county police of the county or of the State
Police and in addition shall notify the owner of the
property as soon as the owner can be identified and
located.
* * *
(e) There shall be a permissive inference that the driver
of any motor vehicle
involved in an accident resulting
in injury or death to any person or damage in the amount
of $ 250.00 or more to any vehicle or property has
knowledge that he was involved in such accident.
For purposes of this section, it shall not be a defense
that the operator of the motor vehicle was unaware of
the existence or extent of personal injury or property
damage caused by the accident as long as the operator
was aware that he was involved in an accident.
There shall be a permissive inference that the
registered owner of the vehicle which was involved in an
accident subject to the provisions of this section was
the person involved in the accident . . . .
Similarly, N.J.S.A. 39:4-130 provides in relevant parts:
The driver of a vehicle or street car involved in an
accident resulting in injury to or death of any person,
or damage to property of any one person in excess of $
500.00 shall by the quickest means of communication give
notice of such accident to the local police department
or to the nearest office of the county police of the
county or of the State Police, and in addition shall
within 10 days after such accident forward a written

12

report of such accident to the commission on forms
furnished by it.
* * *
In those cases where a driver knowingly violates the
provisions of this section by failing to make a written
report of an accident, there shall be a permissive
inference that the registered owner of the vehicle which
was involved in that accident was the person involved in
the accident . . . .
* * *
A written report of an accident shall not be required by
this section if a law enforcement officer submits a
written report of the accident to the commission
pursuant to [N.J.S.A.] 39:4-131. 5
Finally, N.J.S.A. 39:4-97 provides:
A person who drives a vehicle carelessly, or without due
caution and circumspection, in a manner so as to
endanger, or be likely to endanger, a person or property,
shall be guilty of careless driving.
In

this

case,

Officer

Provenzano

testified

that

he

had

“probable cause to believe that the owner of the vehicle was the
driver of the striking vehicle,” based upon “[t]he information
that [he] got from the witness, [and] the vehicle information.”
Def. Dep., T16:12-18.

Indeed, there is no dispute that the Ewing

Police Department received a call from a witness to the accident
who reported the license plate number of the fleeing white Ford
Explorer.

Officer Provenzano was dispatched to the scene of the

incident.

Upon his arrival, Officer Provenzano spoke to the

5

N.J.S.A. 39:4-131 governs police accident reports.
13

witness and confirmed the license plate number.
13.

See Id. at T14:6-

Subsequently, the Officer asked the dispatcher to run the

plate number and found that Plaintiff was the registered owner of
the vehicle.

Id.

Based on that information, Officer Provenzano

issued three summonses which, according to Defendants, were mailed
to Plaintiff.
Plaintiff maintains that because Officer Provenzano did not
know the identity of the driver of the Ford vehicle, he lacked
probable

cause

to

issue

any

of

the

summonses.

Plaintiff’s

argument, distilled, is that 1) the witness at the scene of the
accident did not provide Officer Provenzano with any information
on who was driving the vehicle; and 2) the personal information
gathered from the license plate number did not reveal the identity
of the driver.

Since Officer Provenzano had no evidence that

Plaintiff was the driver at the time of the hit-and-run accident,
Plaintiff contends that the Officer lacked probable cause to
believe Plaintiff caused the accident.

The Court disagrees.

Indeed, Defendants do not dispute that Officer Provenzano had
no concrete evidence that Plaintiff was the driver who caused the
accident.

Clearly,

from

the

witness

statements,

Officer

Provenzano had no basis to determine that Plaintiff was driving
the Ford vehicle at the night of the accident.

However, Officer

Provenzano properly relied on the statutory inference provided by
the various New Jersey traffic statues, as set forth above, in

14

issuing the summonses to Plaintiff.

To begin, N.J.S.A. 39:4-130

governs the crime of failure to report an accident.
this

provision,

a

driver

is

mandated

to

report

According to
“an

accident

resulting in injury to or death of any person in excess of $500.00
. . . within 10 days after such accident . . . .”
130.

Furthermore,

“where

a

driver

knowingly

N.J.S.A. 39:4violates

the

provisions of this section by failing to make a written report .
. . there shall be a permissive inference that the registered owner
of the vehicle which was involved in that accident was the person
involved in the accident . . . .”

Id.

Plaintiff argues that no

such inference should have applied in this case because Officer
Provenzano did not wait 10 days for Plaintiff to submit a written
report before issuing the summonses.

Moreover, Plaintiff argues

that Officer Provenzano did not make the requisite determination
that the accident caused damages in excess of $500.
I do not agree with Plaintiff’s reading of the statute; it is
both hypertechnical and inaccurate.

First, under N.J.S.A. 39:4-

130, Officer Provenzano was not obligated to wait the ten day
period before he could issue the summons to Plaintiff for failure
to report an accident.

While a driver has ten days to report an

accident, a written report is not required by this section “if a
law enforcement officer submits a written report of the accident
to the commission . . . . .”

Id.

There is no dispute that Officer

Provenzano submitted a police report in accordance with N.J.S.A.

15

39:4-131, see Police Report dated August 14, 2010, and based on
that fact, the waiting period was not necessary before Officer
Provenzano issued the summons.
Furthermore, as to damages, Officer Provenzano testified in
his deposition that he determined the damage to the vehicle was in
excess of $500, and in that regard, the Officer submitted his
police report as a reportable accident.
T15; T25:16-21.

See Provenzano Dep., T14-

However, Plaintiff argues that in assessing

probable cause, Officer Provenzano was required to obtain an
estimate of the damages.

This is not accurate.

As I have stated

earlier, “[p]robable cause exists whenever reasonably trustworthy
information or circumstances within a police officer's knowledge
are

sufficient

to

warrant

a

person

of

reasonable

caution

to

conclude that an offense has been committed by the person being
arrested.” Myers, 308 F.3d at 255.
it

would

severely

undermine

Under the circumstances here,

Officer

Provenzano’s

ability

to

administer justice if the statute impose such a requirement in
finding probable cause.

Indeed, I do not find such a requirement

suggested by Plaintiff consistent with the probable cause inquiry.
Rather, there are sufficient indications at the scene of the
accident to support a finding that the damages were in excess of
$500.

Tellingly, the insurance company estimated the cost of

repairs to be well over one thousand dollars, albeit after the
accident.

Other than his say-so, Plaintiff has not presented any

16

evidence to support his contention that Officer Provenzano could
have not determined that the damages were over the statutory
requirement. 6

Accordingly, I find that Officer Provenzano had

probable cause to issue a summons for failure to report an accident
pursuant to N.J.S.A. 39:4-130.
For the same reasons, I find that Officer Provenzano had
probable

cause

to

issue

a

summons

under

N.J.S.A.

39:4-129.

Pursuant to this statute, a driver is required to stop at the scene
of an accident if he was knowingly involved in that accident.
N.J.S.A. 39:4-129.

See

There is “a permissive inference that the

registered owner of the vehicle which was involved in an accident
subject to the provisions of this section was the person involved
in the accident . . . .”
the

same

reasons

as

set

See N.J.S.A. 39:4-129.
forth

6

above,

I

find

Therefore, for
that

Officer

Plaintiff points to Officer Provenzano’s deposition wherein
the Officer testified that he did not observe any broken glass or
plastic and that he did not make a determination as to the
exact amount of the damages to the vehicle. See Provenzano Dep.,
T25:22-T28:5.
Based on those statements, Plaintiff argues that
Officer Provenzano’s assessment of the damages was inadequate and
therefore, no probable cause existed.
I reject this argument.
While there was no broken glass or plastic, the damages could still
be significant, particular since the cost of the repairs in this
case amounted to more than $1000. Moreover, as I have determined,
Plaintiff was not required, for the purposes of finding probable
cause, to ascertain the exact amount of damages.
So long as
Officer Provenzano had sufficient cause to believe that the amount
of damages was in excess of $500 – which I have found that he did
-- probable cause was obtained.
In this case, I find Officer
Provenzano’s probable cause determination reasonable.

17

Provenzano, under this statutory inference, had the requisite
probable cause to believe that Plaintiff was the driver of the
Ford vehicle, and therefore, it was not an error to issue the
summons. 7
Finally, I further find that Officer Provenzano had probable
cause

to

issue

Plaintiff

careless driving.

summons

under

N.J.S.A.

39:4-97

for

Plaintiff repeats his argument that because

Officer Provenzano did not have any evidence as to the identity of
the driver, the Officer did not have probable cause to issue a
summons

against

Plaintiff

for

careless

driving.

First

and

foremost, Officer Provenzano relied on the witness’ statement that
a Ford vehicle hit a car while backing out of a parking spot; the
Officer

also

Provenzano

observed

Dep.,

damage

T26:12-14.

to
The

the

victim’s

witness’

vehicle,

statement

and

see
the

physical damage were sufficient support in finding probable cause
for careless driving.

I stress that a finding a probable cause

does not mean, as suggested by Plaintiff, that the driver committed
a particular crime, but rather, an officer has a reasonable belief

7

Plaintiff cites the New Jersey appellate court decision in
State v. Walten, 241 N.J. Super. 529 (App. Div. 1990), for the
proposition that the threshold element to an offense for the crime
of fleeing the scene of an accident is knowledge. Id. Plaintiff
argues that because Plaintiff was not the driver of the Ford
vehicle, he did not have the requisite knowledge under this
statute. This argument is misplaced. Walten dealt only with issue
of the government’s burden of proof at trial. The decision does
not address the statute’s permissive inference in the context of
finding probable cause for issuance of a summons.
18

that a crime has been committed.

While the careless driving

statute does not provide a similar permissive inference, I find
that it was appropriate for Officer Provenzano to have issued the
summons for careless driving against Plaintiff in connection with
the other two summonses.

Even if Officer Provenzano could not

have relied on the permissive inference of the other two statutes
in issuing the careless driving summons, a court appearance by
Plaintiff would still have been necessary based on the other
summonses.
Having

found

that

Officer

Provenzano

had

the

requisite

probable cause to issue summonses to Plaintiff under N.J.S.A. 39:4129, N.J.S.A. 39:4-130 and N.J.S.A. 39:4-97, Plaintiff’s claims
for false arrest and imprisonment for failure to appear on these
summonses cannot withstand summary judgment.
III. Count Two – State Law Claim of False Arrest and Imprisonment
Correspondingly, Count Two fails for the same reasons as
Plaintiff’s § 1983 claim for false arrest and imprisonment; that
is 1) Plaintiff was arrested pursuant to an arrest warrant for
failure to appear in municipal court; 2) Officer Provenzano was
not the arresting officer who detained Plaintiff at the time
Plaintiff surrendered himself at the Ewing Police Department; and
more importantly, 3) Officer Provenzano had probable cause in
issuing

the

three

traffic-related

summonses.

Indeed,

for

Plaintiff to prevail on New Jersey’s common law claims of false

19

arrest and imprisonment, there must be a lack of probable cause
for the arrest and detention.
162 N.J. 375, 377 (2000).

See Wildoner v. Borough of Ramsey,

Because I find, among other reasons,

that Officer Provenzano had an adequate basis to find probable
cause, and that the arrest warrant issued based on Plaintiff’s
failure to appear on the summonses, Plaintiff’s common law claims
of false arrest and imprisonment are dismissed.
IV.

Count Three – § 1983 Claim against Ewing Township and Police
Department
In Count Three, Plaintiff asserts a § 1983 claim of failure

to train, investigate and supervise claim against both the Township
and the Police Department.

I need not exhaustively analyze this

claim for the simple reason that because I have dismissed the
underlying

constitutional

claim

against

Officer

Provenzano,

Plaintiff’s Monell claims here against the Township and the Police
Department must be dismissed.
At the outset, I note that the Ewing Police Department cannot
be

liable

under

Monell.

It

is

well-settled

that

a

police

department is not a “person” amenable to suit under § 1983 pursuant
to Monell. PBA Local No. 38 v. Woodbridge Police Dept., 832 F.
Supp. 808, 826 (D.N.J. 1993); Ayala v. Randolph Township, No. 127809, 2014 U.S. Dist. LEXIS 154213, at *18-19 (D.N.J. Oct. 30,
2014).

The Third Circuit has recognized that a municipal police

department

is

“merely

an

administrative

20

arm

of

the

local

municipality, and is not a separate judicial entity.” Padilla v.
Twp. of Cherry Hill, 110 F. App'x 272, 278 (3d Cir. 2004) (quoting
DeBellis v. Kulp, 166 F. Supp. 2d 255, 264 (E.D. Pa. 2001)); see
also

N.J.S.A.

departments

40A:14-118

are

"an

(providing

executive

municipal government.").

and

that

New

Jersey

enforcement

police

function

of

Accordingly, Plaintiff’s §1983 claim

against the Police Department is dismissed.
Briefly, under § 1983, municipal defendants cannot be held
liable under a theory of respondeat superior; municipal liability
only arises when a constitutional deprivation results from an
official custom or policy. Monell v. Department of Social Servs.
of City of New York, 436 U.S. 658, 691-94 (1978).

That being said,

however, if a municipal employee “inflicted no constitutional
injury ..., it is inconceivable that [the municipality] could be
liable.”

Mulholland v. Gov't County of Berks, 706 F.3d 227, 244

n. 24 (3d Cir. 2013) (quoting Los Angeles v. Heller, 475 U.S. 796,
799 (1986)); Baez v. Lancaster County, 487 Fed. Appx. 30, 32 (3d
Cir. 2012)(“Plaintiff must establish an underlying constitutional
violation to attribute liability to the County pursuant to Monell
. . . ”) In other words, since there was no violation committed by
Officer Provenzano in the first place, there can be no claims
against the municipality for deprivation.
Three is dismissed.

21

Accordingly, Count

V.

Count Four – State Law Claim of Negligent Hiring, Training,
Supervision against Ewing Township and Police Department
In

order

to

succeed

on

a

claim

of

negligent

hiring

or

negligent supervision, “Plaintiff must prove: (1) the employer
knew

or

had

reason

to

know

of

the

particular

unfitness,

incompetence or dangerous attributes of the employee and could
reasonable have foreseen that such qualities created a risk of
harm to other persons, and (2) the employer’s negligence in hiring
[or supervision] the employee resulted in the dangerous attribute
proximately causing plaintiff’s injury.”
N.J.

159,

173-74

(1982);

Smith

v.

Di Cosala v. Kay, 91

Harrah’s

Casino

Resort

of

Atlantic City, No. A-0855-12T2, 2013 N.J. Super. Unpub. LEXIS 2928,
at *7 (App. Div. Dec. 13, 2013).
Here,

Plaintiff

argues

that

because

Officer

Provenzano’s

illegal conduct of issuing the summonses, the Township is liable
for the failure to train or supervise the Officer.

However, as I

have found, supra, Plaintiff cannot prove that Officer Provenzano
was unfit or incompetent for issuing the summonses since he had
probable cause to do so.

It follows that because Plaintiff cannot

prove the first element of the claim, Plaintiff’s state law claim
of

negligent

hiring

or

supervision

judgment.

22

cannot

survive

summary

VI.

Count Five – State Law Claim of Malicious Prosecution and
Abuse of Process against Officer Provenzano
In Count Five of his Complaint, Plaintiff asserts a claim for

malicious

prosecution

Provenzano.

and

According

abuse
to

of

process

Plaintiff,

against

Officer

Officer

Provenzano

maliciously, without any legal justification or probable cause,
charged Plaintiff with three traffic-related offenses.

Again,

Plaintiff’s claim in this context has no merit since the Court has
found that Officer Provenzano had probable cause to issue the
summonses.
In order to establish a claim for malicious prosecution under
state law, a plaintiff must satisfy the following elements:
1) a criminal action was instituted by this defendant against
this plaintiff;
2) the action was motivated by malice;
3) there was an absence of probable cause to prosecute; and
4) the action was terminated favorably to the plaintiff.
Lind v. Schmid, 67 N.J. 255, 262 (1975).

Indeed, existence of

probable cause is an express element of the claim for malicious
prosecution.

See Brunson v. Affinity Federal Credit Union, 199

N.J. 381, 394 (2009) ("[t]he plaintiff must establish a negative,
namely, that probable cause did not exist” in order to sustain a
claim

for

omitted)).

malicious

prosecution

(quotations

and

citations

Here, because Officer Provenzano had probable cause to

issue the summonses, Plaintiff’s claim for malicious prosecution
fails, and therefore, it is dismissed.

23

In distinguishing between malicious prosecution and malicious
abuse of process, the Appellate Division in Tedards v. Auty, 232
N.J. Super. 541, 549 (App. Div. 1998), recognized that the two
torts

require

the

plaintiff

to

prove

different

elements.

"[P]rocess has not been 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.”

Id. at 550.

Stated differently, abuse of process “lies not for commencing an
improper action, but for misusing or misapplying process after it
is used.”

Hoffman v. Asseenontv.com, Inc., 404 N.J. Super. 415,

431 (App. Div. 2009).

Indeed, to prevail in an abuse of process

claim, plaintiff must show that the defendant committed a further
wrongful act beyond merely filing an unmeritorious complaint.

See

Baglini v. Lauletta, 338 N.J. Super. 282, 294 (App. Div. 2001).
Here, tellingly, Plaintiff did not oppose summary judgment on the
claim for abuse of process.
whatsoever,

let

alone

Indeed, there is no allegation

evidence,

in

the

record

that

Officer

Provenzano took any improper, illegal or abusive actions after
process was issued.

In fact, there is no evidence that the Officer

took any steps after process was issued.
dismissed.

24

Thus, this claim is

VII. Count Six – Negligent/Intentional Infliction of Emotional
Distress against Officer Provenzano
Having determined that Officer Provenzano did not violate any
constitutional rights of Plaintiff, Plaintiff has not established
any conduct on the part of the Officer that would rise to level
intentional or negligent infliction of emotional distress.

In

order for a plaintiff to succeed on a negligent or intentional
infliction of emotional distress, he must prove that the defendant
either committed an outrageous intentional act, see Buckley v.
Trenton Saving Fund Soc., 111 N.J. 355, 366 (1988), or negligent
conduct that is the proximate cause of emotional distress, see
Decker v. Princeton Packet, Inc., 116 N.J. 418, 429-30 (1989).
Here,

because

Plaintiff

cannot

show

that

Officer

Provenzano

committed any act -- negligent or intentional -- that was wrongful,
see, supra, Count Six must be dismissed.
Accordingly, for the reasons set forth above, the Court GRANTS
summary judgment in favor of Defendants.

All claims in the

Complaint are dismissed.

DATE:

December 10, 2014

/s/
Freda L. Wolfson
Freda L. Wolfson
United State District Judge

25