ISRAEL v. SMITH et al

Filing 100

MEMORANDUM AND ORDER that Defendants' 71 Motion for Summary Judgment is granted in part and denied in part. Signed by Judge Peter G. Sheridan on 11/27/2017. (mps)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

BARSOUM S. ISRAEL,
Plaintiff,
v.
LIEUTENANT DEAN R. SMITH, et al.,
Defendants.

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Civil Action No:
13-cv-0097 (PGS)(LHG)

MEMORANDUM
AND
ORDER

This matter comes before the Court on Defendants Lieutenant Dean R. Smith, Earnest
Schriefer, Freehold Township, and Freehold Township Police Department’s (collectively,
“Defendants”) Motion for Summary Judgment pursuant Federal Rule of Civil Procedure 56(c)
(ECF No. 71).

Plaintiff asserts federal civil rights claims under 42 U.S.C. § 1983 for general

deprivations of constitutional rights, false arrest, failure to implement appropriate polices and
adequately train officers, and excessive force, as well as common law tort claims of assault,
battery, intentional infliction of emotional distress, false imprisonment, negligence, and negligent
supervision. For the reasons set forth below, Defendants’ summary judgment will be granted in
part and denied in part.
On December 30, 2010, at approximately 4:52 p.m, Lieutenant Dean R. Smith, who was
operating a patrol car, and Plaintiff Barsoum Israel were stopped next to each other at a traffic
signal on Route 9 South, in Freehold, New Jersey, waiting to turn onto Route 537. (Plaintiff’s
Statement of Material Facts at ¶¶ 1-6). Plaintiff’s wife, Isis Korashy, was also in his vehicle. As
the light turned green, Plaintiff abruptly turned into Smith’s lane without using his turn signal,
forcing Smith to quickly hit his breaks to avoid a collision. (Defendants’ Statement of Material

Facts at ¶ 1). Smith then pulled Plaintiff over in the right lane of Route 537 West. (Id.). Plaintiff
claims that he was avoiding a large pile of snow stacked on the roadway, when he turned into
Smith’s lane. (Plaintiff’s Statement of Material Facts at ¶¶ 11-13).
After Smith requested Plaintiff’s license and other documentation, Korashy asked Smith
why he had pulled them over. (Defendants’ Statement of Material Facts at ¶¶ 2-3). Smith
explained that Plaintiff had switched lanes without using a signal, that he would be issued a
summons, and that both of them should remain in their car. (Id.). As Smith returned to his patrol
car to write the summons, Korashy exited the car and proceeded towards Smith. (Id. at ¶¶ 4-5).
Smith then exited his patrol car and ordered her to return to the car; despite his repeated directions,
she did not comply. (Id. at ¶¶ 5-6).
Because Korashy was giving Smith a “hard time out there,” he called for backup and
warned her that he would arrest her if she did not return to her car. (Id. at ¶¶ 7, 11). According to
Smith, she challenged him to arrest her. (Id. at ¶ 8). At this point, Plaintiff exited the car and
approached Smith; Smith then advised Plaintiff he would be arrested if he did not return to his car.
(Id. at ¶¶ 12, 14). Plaintiff claims that he exited his car because Smith had an aggressive tone
towards his wife, and he wished to calm the situation and have his wife return to the car. (Plaintiff’s
Statement of Material Facts at ¶ 32). According to Plaintiff, Smith then left his car and ran toward
Plaintiff, ordering Plaintiff to sit inside of his car. (Id. at ¶¶ 33-36). As Smith approached Plaintiff,
Plaintiff took his cellular phone from his pocket and purportedly asked Smith, “would you please
give me your boss’ phone number.” (Id. at ¶¶ 38-40). According to Plaintiff, Smith became irate
and charged at Plaintiff, and placed both Plaintiff’s hands on top of the car by the driver’s side.
(Id. at ¶¶ 40-41). While pinned against the car, Plaintiff claims that he informed Smith that he was
a handicap, and said “I am in pain right now.” (Id. at ¶ 41). Smith then allegedly placed Plaintiff

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in a “full nelson,” lifted him up and slammed him to the ground. (Id. at ¶¶ 55-56). In his police
report, Smith noted that Plaintiff complained that he had a bad back and medical problems; but
also that Plaintiff then tried to break away from him. (ECF No. 85-7, “Exhibit G” at 3). After
allegedly throwing Plaintiff to the ground, Smith then knelt on top of Plaintiff’s lower back and
buttocks and handcuffed him. (Plaintiff’s Statement of Material Facts at ¶ 61).
Several witnesses observed the incident and have conflicting descriptions of what took
place. Plaintiff relies upon a motorist who called 911 saying, there is “an old man, and a cop
stopped him, and old man and an old woman…the cop stopped him and he’s harassing the
man…he’s pushing the man down, he’s pushing the old lady and he’s throwing him…the old
woman is screaming something . . . police brutality.” (Id. at ¶ 69). However, Defendants refer to
several other witnesses, who claim that Plaintiff was the aggressor during the incident and that
Smith needed a bystander’s assistance to subdue him. (Defendants’ Statement of Material Facts at
¶¶ 20-34).
Plaintiff claims that Smith, after handcuffing him, allegedly dragged him to the police car,
threw him into the back seat, slammed the door on his foot, and drove him to the police station.
(Plaintiff’s Statement of Material Facts at ¶ 77). Once at the police station, Plaintiff claims that
Smith refused to allow him to sit down and dragged him around the station. (Complaint at ¶ 32).1
Plaintiff was ultimately charged with “(1) failure to use a turn signal in violation of N.J.S.A.
39:4-126, (2) unsafe lane change in violation of N.J.S.A. 39:4-88(b), (3) resisting arrest in violation

1

It should be noted that Plaintiff sought to amend his Complaint, in part, to allege “[a]t the
police station, two other police officers joined Officer Smith in battering Mr. Israel; they shoved
him violently against the wall, causing his head and his body to collide with the wall several times,
then forcibly removed Mr. Israel’s belt and shoes.” However, this amendment to the Complaint
was denied. (ECF No. 23 at 15). At the present time, this assertion is presented as a fact to be
presented at trial. In the final pretrial order, Plaintiff is arguing that it is included within the claim
that he was dragged around the police station. The parties should consider a motion in limine to
clarify whether this “shoving” incident is admissible at trial.
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of N.J.S.A. 2C:29-2A, and (4) obstruction of the administration of law in violation of N.J.S.A.
2C:29-1A.” (Defendants’ Statement of Material Facts at ¶ 65). Plaintiff eventually pled guilty, in
a New Jersey municipal court, to: (1) obstruction of the administration of law, N.J.S.A. 2C:291(a), and (2) failure to use a turn signal, N.J.S.A. 39:4-126. (Id. at ¶ 66). Plaintiff later sought
criminal charges against Smith for bodily assault, contrary to N.J.S.A. 2C:12-1A; however, a New
Jersey municipal court judge dismissed the complaint, finding “no probable cause for the issuance
of Plaintiff’s complaint.” (Id. at ¶ 67). Plaintiff appealed and it was dismissed by a New Jersey
Superior Court judge. (Id. at ¶ 68). Thereafter, Plaintiff filed a complaint with the Monmouth
County Prosecutor’s Office, Professional Responsibility and Bias Crimes Bureau, alleging that
Smith used excessive force. (Id. at ¶ 69). After investigating the merits of Plaintiff’s complaint,
the Bureau concluded that Plaintiff’s claim was unfounded. (Id. at 70).
Plaintiff commenced this lawsuit against the Township of Freehold, the Freehold Township
Police Department, Chief Ernest Schriefer, and Lieutenant Dean Smith claiming violations of the
First, Fourth, and Fourteenth Amendments, seeking remedies pursuant to 42 U.S.C. § 1983, and
various state law claims. Defendants move for summary judgment on all counts.
LEGAL STANDARD
Summary judgment is appropriate under Fed. R. Civ. P. 56(c) when the moving party
demonstrates that there is no genuine issue of material fact and the evidence establishes the moving
party’s entitlement to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986). A factual dispute is genuine if a reasonable jury could return a verdict for the non-movant,
and it is material if, under the substantive law, it would affect the outcome of the suit. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In considering a motion for summary judgment,
a district court may not make credibility determinations or engage in any weighing of the evidence;

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instead, the non-moving party’s evidence “is to be believed and all justifiable inferences are to be
drawn in his favor.” Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting
Anderson, 477 U.S. at 255).
Once the moving party has satisfied its initial burden, the party opposing the motion must
establish that a genuine issue as to a material fact exists. Jersey Cent. Power & Light Co. v. Lacey
Twp., 772 F.2d 1103, 1109 (3d Cir. 1985). The party opposing the motion for summary judgment
cannot rest on mere allegations and instead must present actual evidence that creates a genuine
issue as to a material fact for trial. Anderson, 477 U.S. at 248; Siegel Transfer, Inc. v. Carrier
Express, Inc., 54 F.3d 1125, 1130-31 (3d Cir. 1995). “[U]nsupported allegations . . . and pleadings
are insufficient to repel summary judgment.” Schoch v. First Fid. Bancorp., 912 F.2d 654, 657
(3d Cir. 1990); see also Fed. R. Civ. P. 56(e) (requiring nonmoving party to “set forth specific
facts showing that there is a genuine issue for trial”).
Moreover, only disputes over facts that might affect the outcome of the lawsuit under
governing law will preclude the entry of summary judgment. Anderson, 477 U.S. at 247-48. If a
court determines, “after drawing all inferences in favor of [the non-moving party], and making all
credibility determinations in his favor…that no reasonable jury could find for him, summary
judgment is appropriate.” Alevras v. Tacopina, 226 F. App’x 222, 227 (3d Cir. 2007).

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ANALYSIS
I.

Federal Civil Rights Claims Under 42 U.S.C. § 1983
1.

Monell Liability 2

In Count III of the Complaint, Plaintiff alleges that Defendants maintained unlawful
policies and customs or, in the alternative, failed to adequately train and supervise Smith. Section
1983 states:
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. . .
Id. To sustain a claim under Section 1983, a plaintiff must demonstrate: (1) “that they have been
deprived of a right ‘secured by the Constitution and the laws’ of the United States”; and (2) that
the defendant “deprived them of this right acting ‘under color of any statute’” or state law. Flagg
Bros, Inc. v. Brooks, 436 U.S. 149, 155 (1978).
Here, Plaintiff’s Section 1983 claims against Freehold Township, Freehold Township
Police Department, and Chief Schriefer are misplaced for several reasons. First, under New Jersey
law, a municipal police department is not treated as a separate entity from the municipality. See
N.J.S.A. 40A:14-118 (municipal police department is “an executive and enforcement function of
municipal government”).

Since police departments are administrative components of local

municipalities, and not distinct entities, they cannot be sued along with municipalities. See Padilla

2

In Count One, Plaintiff presents “General Allegations” under Section 1983, wherein he
alleges violations under Fourth, Fifth, and Fourteenth Amendment. Because this claim does not
allege any facts as to particular defendants or the basis for his purported cause of action, Count I
is dismissed.
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v. Twp. of Cherry Hill, 110 F. App’x 272, 278 (3d Cir. 2004). As such, summary judgment will
granted to Freehold Township Police Department on the Section 1983 claims.
Second, a municipality cannot be held liable under Section 1983 based on a respondeat
superior theory. Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 691 (1978). It is
hornbook law that “a municipality cannot be held liable solely because it employs a tortfeasor –
or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior
theory.” Id. However, a municipality can be sued directly if the constitutional tort was caused by
a municipal custom or policy. Id. at 690-91. A government entity may be held liable for a
constitutional violation if the plaintiff can “identify a policy or custom of the entity that caused the
constitutional violation.” A.M. ex rel. J.M.K v. Luzerne Cty. Juvenile Det. Ctr., 372 F.3d 572, 580
(3d Cir. 2004). The policy must be “officially adopted and promulgated by that body’s officers”
or made by “those whose edicts or acts may fairly be said to represent official policy.” Monell,
436 U.S. at 690, 694. A custom can be demonstrated through “a given course of conduct, although
not specifically endorsed or authorized by law . . . [that] is so well-settled and permanent as
virtually to constitute law.” Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990). However, a
single isolated incident will not suffice, unless the custom can be demonstrated by other means
like “proof of knowledge and acquiescence.” Fletcher v. O’Donnell, 867 F.2d 791, 793 (3d Cir.
1989). “Proof only of the existence of an unlawful policy or custom is not sufficient, however, to
impose municipal liability under section 1983. A plaintiff must also establish that the government
policy or custom was the proximate cause of the injuries sustained.” See Kneipp v. Tedder, 95 F.3d
1199, 1213 (3d Cir. 1996) (citation omitted); see also Carswell v. Borough of Homestead, 381
F.3d 235, 244 (3d Cir. 2004).

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Here, Plaintiff presents two theories that allegedly demonstrate Monell liability. First,
Plaintiff alleges that the police department’s failure to preserve video surveillance, which
purportedly revealed Plaintiff’s “beating at the detention center,” demonstrates an unconstitutional
policy or culture. (Plaintiff’s Brief in Opp. at 25-28). Such spoliation is not alleged in the
Complaint, and the spoliation allegation is not a proximate cause of his injuries. “To establish the
necessary causation, a plaintiff must demonstrate a ‘plausible nexus’ or ‘affirmative link’ between
the municipality's custom and the specific deprivation of constitutional rights at issue.” See Kneipp,
95 F.3d at 1213.
Alternatively, Plaintiff argues that Lt. George Baumann’s failure to conduct an internal
affairs investigation into use of force complaints establishes an “unwritten policy or culture” of
refusing to investigate excessive use of force complaints. This is dismissed for several reasons.
First, “not every decision by municipal officers automatically subjects the municipality to § 1983
liability. Municipal liability attaches only where the decision maker possesses final authority to
establish municipal policy with respect to the action ordered.” Pembaur v. City of Cincinnati, 475
U.S. 469, 481 (1986). Here, discretionary conduct, by itself, is insufficient to establish municipal
liability. Ordinarily, exercise of discretionary authority does not impute municipal liability. See
Jeffes v. Barnes, 208 F.3d 49, 57 (2d Cir. 2000). Second, Plaintiff fails to present any expert
testimony or a practice within the police department that demonstrates that it is a common policy,
within the field of police procedures, to conduct an investigation into every traffic stop incident.
And lastly, the failure to conduct an investigation is not causally related to Plaintiff’s injuries.
Finally, Plaintiff asserts inadequate training as the basis for Section 1983 liability against
the municipality. In order to show same, plaintiff must demonstrate that “the failure to train
amounts to deliberate indifference to the rights of persons with whom the police come into

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contact.” Canton v. Harris, 489 U.S. 378, 388 (1989). “‘[D]eliberate indifference’ is a stringent
standard of fault, requiring proof that a municipal actor disregarded a known or obvious
consequence of his action.” Bd. of Cty. Comm’rs v. Brown, 520 U.S. 397, 410 (1997). “[A]
plaintiff must show specific training deficiencies and either (1) a pattern of constitutional
violations of which policy-making officials can be charged with knowledge, or (2) that training is
obviously necessary to avoid constitutional violations.” Gaymon v. Esposito, No. 11-4170, 2012
U.S. Dist. LEXIS 44310, at *23 (D.N.J. Mar. 29, 2012) (citing Canton, 489 U.S. at 390).
Here, Plaintiff falls woefully short of establishing facts sufficient to support his municipal
liability claims. The only evidence that Plaintiff produces are five unrelated matters where
plaintiffs sued Freehold Township under Section 1983 for alleged police brutality. However,
Plaintiff does not present the underlying facts of those cases and there is no corroboration of
whether the claims had merit. This, alone, is insufficient to satisfy the Plaintiff’s burden.
Summary judgment is granted on Count III in its entirety.
Finally, with regard to Chief Schriefer, besides his capacity as Chief of Police and
purported supervisory and training responsibilities, Plaintiff fails to identify any specific conduct
committed by Chief Schriefer that allegedly deprived Plaintiff of his rights. As such, Plaintiff has
failed to meet his burden as it relates to Chief Schriefer; therefore, summary judgment is granted
to him on Counts I and III.
2.

False Arrest

Under Count II, Plaintiff asserts a claim of false arrest against Defendants. Ordinarily,
police may arrest an individual based upon probable cause. See O’Connor v. City of Philadelphia,
233 F. App’x 161, 164 (3d Cir. 2007). To sustain a claim for false arrest, a plaintiff must show
that he or she was arrested by a state actor without probable cause. Santiago v. City of Vineland,

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107 F. Supp. 2d 512, 561 (D.N.J 2000). “[P]robable cause to arrest exists when the facts and
circumstances within the arresting officer’s knowledge are sufficient in themselves to warrant a
reasonable person to believe that an offense has been or is being committed by the person to be
arrested.” Orsatti v. New Jersey State Police, 71 F.3d 480, 482-83 (3d Cir. 1995). In the context
of a Section 1983 false arrest claim, the inquiry is “not whether the person arrested in fact
committed the offense but whether the arresting officers had probable cause to believe the person
arrested had committed the offense.” Dowling v. City of Philadelphia, 855 F.2d 136, 141 (3d Cir.
1988).
However, a plaintiff may not prevail on a Section 1983 false arrest claim if the plaintiff’s
conviction or sentence still stands. Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). In Heck, the
Supreme Court held:
in order to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by actions
whose unlawfulness would render a conviction or sentence invalid,
a § 1983 plaintiff must prove that the conviction or sentence has
been reversed on direct appeal, expunged by executive order,
declared invalid by a state tribunal authorized to make such
determination, or called into question by a federal court's issuance
of a writ of habeas corpus, 28 U.S.C. § 2254.
Id. Here, it is undisputed that Plaintiff pled guilty to obstruction of the administration of law,
N.J.S.A. 2C:29-1(a). Since Plaintiff was convicted of the very offense that triggered his arrest,
Plaintiff’s false arrest claim is barred by Heck. See Nelson v. Jashurek, 109 F.3d 142, 145 (3d Cir.
1997) (holding that Heck would bar “a civil suit for an unreasonable seizure predicated on a false
arrest” where the underlying “conviction for resisting the same arrest remained unimpaired”). For
that reason, summary judgment on Count II is granted.

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3.

Excessive Force

Count IV of Plaintiff’s Complaint accuses Chief Schriefer and Smith of using excessive
force in making their arrest. Under Section 1983, excessive force exists “when a law enforcement
officer uses force so excessive that if violates the Fourth and Fourteenth Amendments.” Groman
v. Twp. of Manalapan, 47 F.3d 628, 633-34 (3d Cir. 1995). A police officer must use reasonable
force in order to effectuate an arrest. Graham v. Connor, 490 U.S. 386, 395-397 (1989). To
determine reasonableness, courts should consider the severity of the crime at issue, the threat posed
to the officers or others, and whether the person being arrested is actively resisting arrest or
attempting to flee. Id. at 396. The inquiry should be objective, viewed from the perspective of a
reasonable officer at the scene. Id.; see also Terry v. Ohio, 392 U.S. 1, 20-22 (1968). Additionally,
the plaintiff must demonstrate that the injury was so egregious as to go beyond the boundaries of
tort law and rob the victim of his constitutional rights. Skevofilax v. Quigley, 586 F. Supp. 532,
543 (D.N.J. 1984).
Here, Plaintiff’s excessive force claim against Chief Schriefer is baseless. Not only did he
not effectuate the arrest, but he was not even at the traffic stop. Moreover, Plaintiff does not allege
that Chief Schriefer engaged in any abusive behavior towards him at the police station.3 As such,
since Plaintiff fails to identify any purported episode wherein Chief Schriefer used excessive force,
summary judgment will be granted to Chief Schriefer on Count IV.
With regards to Smith, however, the facts are not as clear. According to Smith, Plaintiff
repeatedly ignored his commands to return to the car, charged at him, resisted arrest, and created
a dangerous situation that spilled into traffic, all while Israel’s wife was also out of the car and

3

See footnote 1, supra.
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creating a scene. However, from Plaintiff’s perspective, he was simply attempting to mitigate the
situation between his wife and Smith. It appears Smith reacted when Plaintiff took out his cell
phone and asked to speak to Smith’s supervisors. At that point, Smith pushed Plaintiff against the
car, placed him in a full nelson, threw him to the ground, and knelt on top of his back to handcuff
him. Plaintiff also claims there was another use of excessive force at the police station, when
Plaintiff was dragged around the station, if it is admissible. Both incidents may constitute
excessive force and such a cause of action survives Defendants’ motion.
4.

Qualified Immunity4

Defendants also move for summary judgment of Plaintiff’s claims, since they are entitled
to qualified immunity; since Plaintiff has failed to allege any unlawful conduct by Chief Schriefer
that would subject him to liability, the Court limits its discussion here to Smith. Qualified
immunity shields government officials “from liability for civil damages insofar as their conduct
does not violate clearly established statutory or constitutional rights which a reasonable person
would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The principle applies if 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.” Groh v. Ramirez, 540 U.S. 551, 567 (2004) (citing Butz v. Economou,
438 U.S. 478, 507 (1978)).

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Defendants also seek to invoke the doctrine of issue preclusion as a basis for summary
judgment, contending that the municipal judge’s prior determination that Plaintiff lacked probable
cause to charge Smith with criminal assault precludes Plaintiff from asserting his present claims.
“Under collateral estoppel, once a court has decided an issue of fact or law necessary to its
judgment, that decision may preclude relitigation of the issue in a suit on a different cause of action
involving a party to the first case.” Allen v. McCurry, 449 U.S. 90, 94 (1980). Here, the Court sees
no reason why this doctrine should apply. In the prior adjudication, the trial court was not
presented with Section 1983 claims or allegations of excessive force. As such, since the present
issues are notably different than those presented at the probable cause hearing, the Court concludes
that collateral estoppel is inapplicable.
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In determining whether qualified immunity applies, courts must engage in a two-step
inquiry: (1) “do the facts alleged show the officer’s conduct violated a constitutional right”; and
(2) was this right “clearly established” at the time of the alleged misconduct. See Saucier v. Katz,
533 U.S. 194, 201 (2001). Courts may address the elements in whichever order they see fit. See
Pearson v. Callahan, 555 U.S. 223, 235 (2009). For purposes of the present motion, this Court
will first consider whether the officers violated a constitutional right. First, courts analyze an
officer’s conduct “under the Fourth Amendment’s ‘objective reasonableness’ standard.” Graham,
490 U.S. at 388.

Through this “objective reasonableness” lens, courts must consider the

circumstances from the officer’s “on-scene perspective,” not “20/20 vision of hindsight.” Saucier,
533 U.S. at 205. Second, the Court must decide whether the violated right was clearly established,
or “whether it would be clear to a reasonable officer that his conduct was unlawful in the situation
he confronted.” Id. at 202. Again, “this inquiry . . . must be undertaken in light of the specific
context of the case, not as a broad general proposition.” Id. at 201. At the summary judgment
stage, the burden remains on the party claiming the qualified immunity defense, here being Smith.
Halsey v. Pfeiffer, 750 F.3d 273, 288 (3d Cir. 2014); see also, Reedy v. Evanson, 615 F.3d 197,
223 (3d Cir. 2010) (“The burden of establishing entitlement to qualified immunity is on [the
defendant-movant].”).
As discussed above, when viewing the evidence in the light most favorable to Plaintiff,
there has been sufficient evidence presented establishing that Smith used excessive force against
Plaintiff. A reasonable factfinder, accepting Plaintiff’s version of events, could conclude that
Plaintiff did not pose a threat to Smith, and Smith’s slamming of Plaintiff to the ground and
standing on top of his back, despite knowing his condition, were unreasonable, especially when
considering that these events arose from a traffic stop involving an elderly couple. Moreover, if

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admitted into evidence, a reasonable jury would surely find that Smith’s alleged “dragging” of
Plaintiff at the station was unreasonable, given that Plaintiff was already in custody and no longer
posed a threat. Second, an individual’s right to be free from excessive force from law enforcement
has long been established under both the Fourth and Fourteenth Amendments. Therefore, under
Saucier’s two-step test, Smith is not entitled to qualified immunity.
II.

State Law Claims
1.

Assault and Battery

Under Counts V and VI of his Complaint, Plaintiff alleges that Smith “knowingly and
intentionally” committed assault and battery against him. Smith contends he is entitled to
immunity from these claims, under the New Jersey Tort Claims Act. Under N.J.S.A. 59:3-3, “[a]
public employee is not liable if he acts in good faith in the execution or enforcement of any law.”
In determining whether an employee has acted in good faith, courts employ “[t]he same standard
of objective reasonableness that applies in Section 1983 actions.” Wildoner v. Borough of Ramsey,
744 A.2d 1146, 1153 (N.J. Sup. Ct. 2000). Therefore, since this Court has already determined
that, at this stage, Smith is not entitled to qualified immunity from Plaintiff’s Section 1983 claims,
it follows that the Torts Claims Act does not shield Smith from liability for allegedly assaulting
and battering Plaintiff.
2.

Intentional Infliction of Emotional Distress

In Count VII, Plaintiff maintains that Smith intentionally inflicted emotional distress. “To
properly allege an intentional infliction of emotional distress claim under New Jersey law, a
plaintiff must claim that (1) the defendant intended to cause emotional distress; (2) the conduct
was extreme and outrageous; (3) the actions proximately caused emotional distress; and (4) the
emotional distress was severe.” Acevedo v. Monsignor Donovan High Sch., 420 F. Supp. 2d 337,

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348 (D.N.J. 2006). Plaintiff must also allege that the defendant’s conduct was “so outrageous in
character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be
regarded as atrocious, and utterly intolerable in a civilized community.” Id. (quoting Buckley v.
Trenton Sav. Fund Soc., 544 A.2d 857, 864 (N.J. Sup. Ct. 1988) (internal quotation marks
omitted)). In general, there must be proof that the emotional stress is “so severe that no reasonable
person could be expected to endure it.” Tarr v. Ciasulli, 853 A.2d 921, 924 (N.J. Sup. Ct. 2004)
(internal quotation marks and citation omitted). In determining the severity of the emotional
distress, New Jersey courts say that “aggravation, embarrassment, an unspecified number of
headaches, and the loss of sleep” are insufficient to make an IIED claim. Buckley, 544 A.2d at 864.
However, emotional distress has been considered sufficiently severe where it interferes with “dayto-day activities” or requires psychiatric counseling. Harris v. Middlesex Cty. College, 801 A.2d
397, 406 (N.J. Super. App. Div. 2002).
Here, the motion record fails to demonstrate the severity of Plaintiff’s emotional distress.
Although a psychiatrist, Dr. Grigory Rasin, concluded that Plaintiff suffers from Post-Traumatic
Stress Disorder that requires “vigorous psychiatric treatment,” Plaintiff does not claim to have
availed himself of these treatments or allege how this condition has otherwise affected him. (Pl’s
Brief in Opp. at ¶ 105). In fact, when reviewing the Complaint and Plaintiff’s supplemental
statement of material facts, the record is bereft of any evidence demonstrating that Plaintiff has
received any medical treatment or therapy to address this alleged condition. Since Plaintiff has an
expert, this claim survives summary judgment; however, it may be appropriate to review this cause
of action by way of a motion in limine where the Court can review the medical opinion of the
psychiatrist against the minimal treatment undertaken by Plaintiff.

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3.

Count VIII: False Imprisonment

Plaintiff next asserts a claim for false imprisonment. “A person is falsely imprisoned when
that person’s freedom of movement is constrained. . . . by force or by threats of force
communicated through conduct or words.” Maietta v. United Parcel Serv., 749 F. Supp. 1344,
1367 (D.N.J. 1990). In New Jersey, in order to sustain a claim for false imprisonment, a plaintiff
must demonstrate: (1) “an arrest or detention of the person against his or her will;” and (2) “lack
of proper legal authority or ‘legal justification.’” Mesgleski v. Oraboni, 748 A.2d 1130, 1138 (N.J.
Super. Ct. App. Div. 2000) (quoting Barletta v. Golden Nugget Hotel Casino, 580 F. Supp. 614,
617 (D.N.J. 1984)). Here, Plaintiff fails to satisfy the second element for a false imprisonment
claim. As discussed above, Plaintiff pleaded guilty to obstruction of the administration of law in
municipal court; as such, he cannot argue there was not proper legal authority for the arrest.
Therefore, summary judgment on Count VIII will be granted in its entirety.
4. Counts IX and X: Negligence and Negligent Supervision
Plaintiff’s last two claims allege negligence and negligent supervision. In New Jersey,
“[t]o sustain a cause of action for negligence, a plaintiff must establish four elements: (1) a duty
of care, (2) a breach of that duty, (3) proximate cause, and (4) actual damages.” Townsend v.
Pierre, 110 A.3d 52, 61 (N.J. Sup. Ct. 2015) (internal quotation marks and citation omitted).
Plaintiff asserts that Chief Schriefer, the Police Department, and the Township had a “duty to use
due care to adopt and implement careful polices, customs, or practices with regard to Freehold
Township Police Officers’ traffic stops, decisions to arrest, and use of force.” (Complaint at ¶ 91).
According to Plaintiff, Defendants allegedly breached this duty to by “implicitly or explicitly,
adopting and implementing careless and reckless policies . . . allowing employees . . . to falsely
arrest individuals.” (Id. at ¶ 92). However, as discussed above, Plaintiff fails to identify any

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purportedly unlawful polices and, more importantly, how these policies caused his injuries. See
supra pages 5-9.
Finally, Plaintiff asserts a claim of negligent supervision. To defeat Defendant’s summary
judgment motion on the negligent supervision claim, Plaintiff must demonstrate: “(1) that the
employer knew or had reason to know of the ‘particular unfitness, incompetence or dangerous
attributes of the employee and could reasonably have foreseen that such qualities created a risk of
harm to other persons,’ and (2) that through the employer’s negligence, the employee’s
‘incompetence, unfitness, or dangerous characteristics proximately caused the injury.’” Maddox v.
City of Newark, 50 F. Supp. 3d 606, 636 (D.N.J. 2014) (quoting Di Cosala v. Kay, 450 A.2d 508,
514 (N.J. Sup. Ct. 1982)). Here, Plaintiff asserts that “Defendants knew or had reason to know of
Officer Smith’s unfitness.” (Complaint at ¶ 96). However, Plaintiff provides no facts or evidence
to support this assertion. There is nothing in the record to indicate that there was information about
Smith’s past that should have put Chief Schriefer or the Police Department on notice about his
“dangerous tendencies.” Nor has Plaintiff offered any evidence suggesting that the Police
Department’s training, or lack of training, facilitated the type of activity that allegedly occurred
here. Therefore, summary judgment is granted on Counts XI and X.
ORDER
This matter having come before the Court on Defendants Lieutenant Dean R. Smith,
Earnest Schriefer, Freehold Township, and Freehold Township Police Department’s Motion for
Summary Judgment pursuant Federal Rule of Civil Procedure 56(c) (ECF No. 71); and the Court
having carefully reviewed and taken into consideration the submissions of the parties, as well as
the arguments and exhibits therein presented, and for good cause shown, and for all of the
foregoing reasons,

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IT IS on this 27th day of November, 2017,
ORDERED that Defendants’ Motion for Summary Judgment is GRANTED in part and
DENIED in part, as follows:
1.

Count I (1983 General Allegations) is GRANTED in its entirety;

2.

Count II (1983 False Arrest) is GRANTED in its entirety;

3.

Count III (1983 Failure to Implement Policies) is GRANTED in its entirety;

4.

Count IV (1983 Excessive Force) is GRANTED as to the Police Department,

Freehold Township, and Chief Schriefer; and DENIED as to Smith;
5.

Count V (N.J.T.C.A. Assault) is DENIED;

6.

Count VI (N.J.T.C.A. Battery) is DENIED;

7.

Count VII (N.J.T.C.A. IIED) is GRANTED in its entirety;

8.

Count VIII (N.J.T.C.A. False Imprisonment) is GRANTED in its entirety;

9.

Count IX (N.J.T.C.A. Negligence) is GRANTED in its entirety; and

10.

Count X (N.J.T.C.A. Negligent Supervision) is GRANTED in its entirety.

s/Peter G. Sheridan
PETER G. SHERIDAN, U.S.D.J.

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