MURPHY v. PALMER et al

Filing 29

OPINION filed. Signed by Judge Freda L. Wolfson on 5/31/2017. (mmh)

*NOT FOR PUBLICATION*
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
____________________________________
:
JEFFREY R. MURPHY,
:
:
Plaintiff,
:
:
Civ. Action No.: 14-cv-6896 (FLW) (DEA)
v.
:
:
OPINION
MICHAEL W. PALMER, JR., RYAN
:
REIFF, EMMETT SMITH, DAVID
:
BOWEN, “OFFICERS DOES 1-20,” and :
BOROUGH OF SPRING LAKE
:
POLICE DEPARTMENT,
:
:
Defendants.
:
____________________________________:
WOLFSON, United States District Judge:
In this case, plaintiff Jeffery R. Murphy (“Plaintiff”) asserts that he was unlawfully
arrested and subjected to excessive force by defendants Michael W. Palmer, Jr. (“Officer
Palmer”), Ryan Reiff (“Officer Reiff”), Emmett Smith (“Officer Smith”), David Bowen
(“Officer Bowen”) (collectively, the “Officers”) and the Borough of Spring Lake Police
Department (the “Department”) (collectively, “Defendants”) in violation of his constitutional
rights, as well as various state claims under New Jersey law. Presently before the Court is a
motion for summary judgment filed by the Department and Officer Palmer, as well as a separate
motion for summary judgment filed by Officers Reiff, Smith and Bowen. Additionally, Plaintiff
has filed a cross-motion for partial summary judgment.
For the reasons set forth below, Defendants’ respective motions for summary judgment
are GRANTED, and the First Count (excessive force), Second Count (unreasonable arrest and
detention) and Third Court (conspiracy to violate Plaintiff’s constitutional rights) are dismissed
1

as to all Defendants. Plaintiff’s cross-motion for partial summary judgment is DENIED.
Finally, this Court declines to exercise supplemental jurisdiction over Plaintiff’s remaining state
law claims. Thus, those claims are dismissed without prejudice and the applicable statutes of
limitations are tolled; Plaintiff may refile his state law claims in State court within thirty (30)
days from the date of the Order accompanying this Opinion. See 28 U.S.C.S. § 1367(c)-(d).
I.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On October 27, 2012, Governor Chris Christie declared a State of Emergency in New

Jersey, since Hurricane Sandy (also referred to as “Superstorm Sandy”) was expected to make
landfall the following day. See Declaration of Jeffrey R. Murphy (“Murphy Decl.”), Ex. O,
Executive Order No. 104. After the storm made landfall, the Borough of Spring Lake (“Spring
Lake” or the “Borough”) promulgated several emergency proclamations imposing a curfew and
various travel restrictions. See Declaration of Andrew T. Walsh, Esq. (“Walsh Decl.”), Ex. C,
Spring Lake Emergency Proclamations. Relevant here, on October 30, 2012, the Borough issued
an emergency proclamation that declared that the “[e]ntire town [was] closed to anyone except
residents,” and established a checkpoint where “[e]ntry [to the Borough was] only open at
Warrant & Ludlow Avenues.” 1 Id. That proclamation imposed such restrictions “by reason of
the conditions which currently exists [sic] in certain areas of the Borough of Spring Lake, which
may affect the health, safety and welfare of the people of the Borough of Spring Lake.” Id. In
addition, the proclamation stated that “certain measures must be taken in order to insure that the
authorities will be unhampered in their efforts to maintain law and order[,] as well as maintain an

1

All emergency proclamations were signed by James Mullen, the Borough’s Emergency
Management Coordinator, and Jennifer Naughton, the Mayor. Id.
2

orderly flow of traffic, and further in order to protect the persons and property of the residents
affected by the conditions” caused by Hurricane Sandy. Id.
At the checkpoint, Spring Lake police officers required any person attempting to enter the
Borough to produce identification, so an officer could verify residence. Walsh Decl., Ex. E,
Deposition of Michael W. Palmer, Jr. (“Palmer Dep.”) at 33:17-34:1. Officer Palmer, who was
working on the night Plaintiff was arrested, stated that, “[i]f your driver’s license didn’t indicate
that you lived there, an out-of-state license, something like that, and you had a sewer bill, water
bill, tax bill that had your name and address in Spring Lake on it, then we would allow you to go
through.” Id. Officer Palmer explained that the checkpoint was setup because of health and
safety concerns, including “debris on the ground, the boardwalk was completely dismantled...
[and] sand [was] everywhere.” Id. at 32:25-33:6. The officer also stated that “there was talk
about people looting in surrounding towns,” and that the Department “wanted to keep... [that] out
of our town as much as we could.” Id.
It is undisputed that, at all relevant times, Plaintiff was not a resident of Spring Lake, and
that he lived at 372 West Farms Road, Farmingdale, New Jersey – the address listed on his
driver’s license. Walsh Decl., Ex. D, Deposition of Jeffrey R. Murphy (“Murphy Dep.”) at 7:1320, 40:3-5. However, Plaintiff explained that his father lived at 415 Essex Avenue, Spring Lake,
New Jersey. Id. at 29:23-30:19. Although his permanent residence was in Farmingdale, Plaintiff
maintained an apartment at his father’s house, and he “spent a lot of time there.” Id. Plaintiff
testified that, during Hurricane Sandy, he stayed with his father in Spring Lake, and that he was
responsible for making “sure that [they] had provisions and gasoline” for the generator, since the
Borough experienced significant electrical power outages. Id. at 34:17-35:17. Because he had to

3

travel to other municipalities to procure provisions, Plaintiff stated that he went through the
checkpoint at issue on approximately 18 to 21 occasions. Id. at 38:1-7.
Plaintiff testified that, each time he arrived at the checkpoint, a police officer would ask
for identification, such as a driver’s license, and Plaintiff would explain that he was staying at his
father’s residence in Spring Lake. Id. at 38:25-40:24. According to Plaintiff, “it was hit or miss
depending on [which officer] was [at the checkpoint],” because the process would “go smooth”
with some officers, but other officers would “put [you] through your paces.” Id. at 56:18-22.
For instance, Plaintiff stated that his brother experienced trouble entering the Borough because
“[h]e’s got the Ocean Grove address and [the officer] did not allow him in.” Id. at 49:1-17.
Plaintiff explained that his brother decided to “park[] down by the train station... and [that he]
went across the tracks and walked home.” Id. Plaintiff stated that his brother was “furious.” Id.
On November 4, 2012, because the electrical power had not been restored in Spring
Lake, Plaintiff decided to go to the Shark Anglers Fishing Club in Brick Township, New Jersey
with his friend to watch a football game. Id. at 44:21-24, 48:4-11, 51:23-24. Plaintiff testified
that, while he was at the bar, he had “[f]our Heineken beers,” and that he left the bar at “about
eight.” Id. at 53:16-54:9. Plaintiff called a cab to bring him back to his father’s house. Id. at
55:1-21. John Streppone, a cab driver for Briggs Transportation, stated that he drove Plaintiff
from Brick Township to Spring Lake. Walsh Decl., Ex. F, Deposition of John Streppone
(“Streppone Dep.”) at 10:9-15, 13:5-23.
Upon arriving at the checkpoint, Sergeant Ploskonka (“Sgt. Ploskonka”), a police officer
with the Department, asked both the cab driver and Plaintiff to produce identification, and they
complied. Murphy Dep. at 56:13-22; see Streppone Dep. at 23:13-23; Palmer Dep. at 13:10-11.
Streppone recalled that Sgt. Ploskonka questioned Plaintiff about his driver’s license because

4

“there was some type of discrepancy [and] the address on the license was different from the one
that [they] were going to.” Streppone Dep. at 23:13-23. However, Streppone stated that Sgt.
Ploskonka “handed [Plaintiff] his license and said [they] could go and started walking away,
[but] the passenger mumbled something that got the officer’s attention.” Id. at 25:1-8. Plaintiff
testified that he “just made a suggestion that it would be nice if [the Department] could set up
some kind of registry,” presumably to catalog persons that were permitted to enter the Borough.
Murphy Dep. at 56:18-22.
Based on his comments, Sgt. Ploskonka walked back to the cab and Plaintiff and the
officer continued their conversation. Streppone Dep. at 34:12-17. While the content of the
conversation is not in the record, Streppone testified that “the officer... acted professionally.” Id.
at 34:18-20. Plaintiff explained that “it may have appeared that [he raised his voice to the
officer] because [he] was sitting across from [Streppone], so [he] had to talk kind of loud.”
Murphy Dep. at 59:6-11. Plaintiff clarified that he “wasn’t being nasty about anything.” Id.
Ultimately, Sgt. Ploskonka permitted Streppone and Plaintiff to pass the checkpoint and enter the
Borough. Id. at 61:4-11.
On November 4, 2012, Officer Palmer was assisting Sgt. Ploskonka at the checkpoint. 2
Specifically, Officer Palmer testified that, at “approximately eight o’clock at night,” he checked
on Sgt. Ploskonka to ask “if he needed anything; coffee, use the bathroom, anything.” Palmer
Dep. at 13:1-11. Officer Palmer testified that, while walking to Sgt. Ploskonka, he heard a

2

In his brief, Plaintiff states that, while he “maintains that the majority of Defendant Palmer’s
‘version’ of the facts… are a fabrication and lie concocted to cover up and mitigate the illegal
and unjustified and excessive assault on Plaintiff, for the purposes of this motion[,] Plaintiff will
nevertheless rely upon Defendant Palmer’s version of the facts….” Pl.’s Br. in Supp. of CrossMotion at p. 12.
5

verbal altercation between Plaintiff and his fellow officer. Id. at 13:1-14:6. According to Officer
Palmer, when the cab left the checkpoint, Sgt. Ploskonka instructed him to follow the cab “to just
check and make sure that is where [Plaintiff] was supposed to be.” Id. Officer Palmer explained
that he followed Plaintiff to ensure that “[h]e wasn’t going to get out of the cab, walk to another
house, walk into a backyard, try to steal something, try to burglarize a house.” Id.
Officer Palmer then “proceeded to follow behind the cab on to Essex Avenue.” Id.
Streppone testified that, while he was driving, he “noticed an unmarked police car following
[them] with the lights flashing.” 3 Streppone Dep. at 36:11-13. Similarly, Plaintiff noticed that a
police vehicle had followed him back to his father’s residence. Murphy Dep. at 61:4-11.
Streppone stated that, “[w]hen [Plaintiff] found out that there was a police officer following
[them], he got a little angry about that.” Streppone Dep. at 40:1-4. Approximately two minutes
after they left the checkpoint, both the cab and Officer Palmer arrived at 415 Essex Avenue.
Palmer Dep. at 14:7-18; see Streppone Dep. at 62:11-19. Officer Palmer proceeded to park his
patrol vehicle behind the cab on the street. Palmer Dep. at 17:19-24; see Murphy Dep. at 62:311; Streppone Dep. at 39:11-20.
Plaintiff testified that he paid Streppone for the ride, and that he exited the vehicle after
about “[a] minute and a half.” Murphy Dep. at 62:15-24; see Palmer Dep. at 36:7-9. According
to Officer Palmer, Plaintiff exited the cab and started walking “toward the side of the driveway.”
Palmer Dep. at 37:1-4; see Murphy Dep. at 127:10-23. Officer Palmer explained that “[he]
became suspicious and [] got out and asked [Plaintiff] what is going on,” but Plaintiff started
yelling, “[f]uck you, fuck you. You’re harassing me. This is bullshit.” Palmer at 14:7-18; see

3

Palmer testified that he had his lights on because the Department issued “a standing order that
our emergency lights had to be activated,” and that he was not pulling over the cab in which
Plaintiff was riding. Palmer Dep. at 35:10-19.
6

Streppone Dep. at 41:11:14. Plaintiff admitted that he said “[f]uck you… [p]robably two or
three times,” as well as “bullshit.” Murphy Dep. at 63:3-67:6. Officer Palmer testified that he
told Plaintiff to “just go inside” on multiple occasions, but Plaintiff continued to yell obscenities
at the officer. Palmer Dep. at 37:25-38:9. Streppone confirmed that Officer Palmer told Plaintiff
to go inside, since it was late at night and Plaintiff was “yelling for no apparent reason.”
Streppone Dep. at 43:8-18, 45:22-46:2. According to Streppone, Officer Palmer “was
professional and spoke in an authoritative way,” and that the officer told Plaintiff to go inside
approximately five different times. Id. at 44:23-45:2, 45:22-26:2.
Streppone stated that, approximately two or three minutes after Officer Palmer exited his
vehicle, he asked Plaintiff for his identification. Id. at 49:24-50:16. Indeed, Officer Palmer
testified that he provided Plaintiff “a couple of minutes [to] let him vent,” but he proceeded to
walk up the driveway to request Plaintiff’s identification in order to issue him a breach of peace
violation. Palmer Dep. at 14:7-15:5. Officer Palmer testified that he decided to charge Plaintiff
with breach of peace based on “[h]is demeanor, his yelling and screaming [and] cursing” in front
of Streppone, which he believed was “enough under our ordinance... to issue a summons for
breach of peace.” Id. at 19:18-25.
Officer Palmer testified that Plaintiff refused to provide his identification, and that he
continued to yell obscenities and “point[] his fingers in [the officer’s] face.” Id. at 14:7-15:5.
Officer Palmer decided to arrest Plaintiff for obstruction of justice because:
[w]hen I asked him for his driver’s license to issue him the breach of peace, “the
fuck you, no, I am not giving it to you,” falls under obstruction [of justice]. That
is when I advised [Plaintiff] that if he didn’t give it to me, and I gave him
numerous time for him to give me his driver’s license, so that I [could] issue the
summons and we both could move on with our nights. He decided not to and [he]
proceeded [not to give me] his driver’s license and that was my ultimate – my
ultimate decision to lock him up was for [] obstruction [of justice]….
7

Id. at 21:10-25. In addition to refusing to provide his identification, Officer Palmer testified that
Plaintiff started to walk up the driveway to the back of his father’s residence, where it was
completely dark because of the power outages. Id. at 15:6-16, 70:6-12.
Officer Palmer stated, at that time, his “backup arrive[d],” namely Officers Reiff, Smith
and Bowen. Id. at 15:6-16. Officers Reiff and Smith were out on patrol together, when Officer
Palmer requested assistance. See Walsh Decl., Ex. H, Deposition of Ryan Reiff (“Reiff Dep.”)
at 17:1-8. Officer Reiff testified that, when they arrived, Plaintiff and Officer Palmer “were on
the side of the residence and [Plaintiff] kept walking toward the back of the residence.” Id. at
16:25-17; see Walsh Decl., Ex. J, Deposition of Emmett Smith (“Smith Dep.”) at 8:1-13. Officer
Bowen testified that he was the only officer in his police vehicle, and that he heard “Palmer
requesting back-up over the radio.” Walsh Decl., Ex. I, Deposition of David Bowen (“Bowen
Dep.”) at 6:17-7:16. After arriving at the scene, Officer Bowen stated that he witnessed Officer
Palmer following Plaintiff as he “walk[ed] down the driveway into the rear of the residence.”
Id. at 8:8:11. Officers Reiff, Smith and Bowen stated that they heard Plaintiff screaming
obscenities, as well as refusing to provide his driver’s license to Officer Palmer. See Reiff Dep.
at 17:9-18:1; Smith Dep. at 9:10-10:1; Bowen Dep. at 8:1-9:2. Those officer proceeded to
follow Plaintiff and Officer Palmer to the back of the residence. Plaintiff testified that he walked
down the driveway to the back of the residence, and made a left and walked “down three steps to
the back door.” Murphy Dep. at 68:22-69:13.
While at the back door, Officer Palmer allegedly told Plaintiff that he was under arrest,
and instructed him to place his hands behind his back, but Plaintiff “tried to get into the house.”
Palmer Dep. at 15:6-16. Plaintiff stated that he heard Officer Palmer “mention that he was going
to place [him] under arrest” before he attempted to enter the residence. Murphy Dep. at 71:18-

8

21. Nevertheless, Plaintiff testified that he proceeded to “open[] the [glass] storm door to gain
entrance… into the kitchen and Officer Palmer was to my right and he pushed the door shut on
me.” Id. at 70:13-16. Officer Palmer acknowledged that, when Plaintiff attempted to enter the
residence, he closed the door. Palmer Dep. at 15:6-16. Officer Bowen similarly stated that
“[Officer] Palmer told [Plaintiff] that he was going to be placed under arrest,” but Plaintiff “tried
to open the back door” and Officer Palmer “just held the door closed.” Bowen Dep. at 8:18-9:2.
Officer Palmer, again, asked Plaintiff for his identification, but he repeatedly screamed “fuck
you” and “put his finger in [the officer’s] face.” Palmer Dep. at 15:6-16; see Smith Dep. at 11:717. Officer Reiff stated that Plaintiff was shouting obscenities and shoving his finger into
Officer Palmer’s face, and that the officer instructed Plaintiff to stop, but he continued to put his
finger in the officer’s face. Reiff Dep. at 18:2-18.
At that point, the Officers proceeded to effectuate the arrest. Palmer Dep. at 15:6-16:4;
see Reiff Dep. at 18:2-18; Smith Dep. at 11:7-17; Bowen Dep. at 9:17-10:3. According to
Plaintiff, “no sooner was [the door] shut closed on [him] when the ambush began.” Murphy
Dep. at 72:10-12. Plaintiff testified that he “was tackled to the ground.” Id. at 74:10-11. Officer
Palmer stated that “[the officers] took him to the ground.” Palmer Dep. at 15:6-16:4. Officer
Palmer explained that Plaintiff would not place his hands behind his back, so it was necessary to
take Plaintiff to the ground to “gain control of him and try to arrest him, try to get handcuffs on
him.” Id. at 22:12-20. According to Officer Palmer, it was not difficult to take Plaintiff to the
ground because he was intoxicated. 4 Id. at 24:3-12.

4

There is a dispute over whether Plaintiff was intoxicated on the night of his arrest. Plaintiff
states that he was not intoxicated. See Murphy Dep. at 53:16-55:7. John Streppone, the cab
driver, noted that Plaintiff did not seem intoxicated, because he was coherent and “didn’t seem to
be slurring his speech.” Streppone Dep. at 17:10-19, 21:9-18. However, Officer Palmer testified
that Plaintiff was clearly intoxicated, and that he stumbled while walking. Palmer Dep. at 37:19

Nevertheless, while Plaintiff was on the ground, both Officers Palmer and Bowen stated
that they tried to gain control of the left arm. See id. at 25:3-9; Bowen Dep. at 10:1-14. Officer
Smith stated that he tried to gain control of the other arm, and Officer Reiff held down the legs.
See Smith Dep. at 12:2-7; Reiff Dep. at 22:4-6. Officer Reiff testified that Plaintiff was
“turtling,” which means that he kept his hands underneath his body so the Officers “could not get
his arms out to be placed in handcuffs.” Reiff Dep. at 23:10-15; see Palmer Dep. at 25:3-9.
Officer Smith similarly stated that Plaintiff “just kept resisting,” and that he was “told to stop
resisting and he just wouldn’t free his arms from under his body in an attempt to avoid us from
handcuffing him.” Smith Dep. at 12:17-22.
However, Plaintiff testified that, while Officer Palmer told him to stop resisting, he had
landed on his hands, and that “[t]here was no resistance at all. I was dazed. I hit my head.”
Murphy Dep. at 75:8-14, 78:2-5. Plaintiff also stated that he could not get his hands out from
under his body “[b]ecause there was somebody on [his] back.” Id. at 75:20-24. Officer Palmer
stated that is possible that he put his knee on his back. Palmer Dep. at 25:20-25. Plaintiff
explained that, although he was only on the ground for approximately one minute, the Officers
were “wrestling [him] around, they pulled my hair, kneed me in the back, got [his] hand out and
they cuffed me.” Murphy Dep. at 77:7-14. Plaintiff later clarified that one of the officers pulled
both his hair and his collar while “helping [him] up.” Id. at 78:17-22, 80:2-6.
After Plaintiff was placed in handcuffs, he was escorted to a patrol vehicle. Palmer Dep.
at 15:6-16. Plaintiff testified that “[the Officers] put him in the back of the police car,” but

4, 24:3-12. Officer Reiff stated that he could “smell alcohol odor coming off of [Plaintiff], [and
that his] eyes were very glassy and bloodshot.” Reiff Dep. at 19:13-18. Nevertheless, that
dispute is immaterial to analysis on the federal constitutional claims.
10

“[t]here was minimal amount of room between the back of the front seat and the lower cushion
on the back seat; less than a foot.” Murphy Dep. at 81:14-22. Plaintiff continued, “I have pretty
long legs,” but “[the Officers] were trying to squeeze me in there.” Id. Plaintiff claims that,
while he was being placed in the patrol vehicle, one or more of the Officers “shut the door and
[his] knee got caught in the jamb.” Id. at 81:23-82:10. Plaintiff stated that, as a result of the
door hitting his knee, he “let out a scream,” and then the Officers “gave [him] a little more time
to get situated.” Id. at 83:7-11.
Officer Palmer noticed that Plaintiff had blood on his nose, so the officer called an
ambulance, but Plaintiff decided not to go to the hospital. Palmer Dep. at 15:17-16:4; see
Murphy Dep. at 86:11-15. Plaintiff stated that he thinks his bloody nose was caused when he
was placed on the ground, but he experienced “no serious pain.” Murphy Dep. at 86:18-85:14.
Plaintiff was then transported to the Department, where he was booked and processed. Palmer
Dep. at 15:17-16:4. While he was at the police station, Plaintiff stated that he experienced chest
pains. Murphy Dep. at 88:16-89:23. Officer Palmer called an ambulance, and Plaintiff was
taken to the Jersey Shore Medical Center. Palmer Dep. at 15:17-16:4. After being released from
the hospital, Plaintiff did not go back to the police station, but rather, “[his] dad came and got
[him].” Murphey Dep. at 94:17-21. After the incident, two summons were issued: (i) a
disorderly conduct charge under N.J.S.A. § 2C:33-2(a)(2); and (ii) an obstruction of justice
charge under N.J.S.A. § 2C:29-1(a). See Walsh Decl., Ex. G, Criminal Citations. However, the

11

parties do not dispute that those charges were ultimately dismissed, since the State apparently
failed to timely proceed within the applicable statute of limitations. 5 Murphy Dep. at 104:6-23.
On November 3, 2014, Plaintiff filed his Complaint, asserting the following claims
against Defendants: (i) First Count – an excessive force claim under the Fourth Amendment; (ii)
Second Count – an unreasonable arrest and detention claim under the Fourth and Fourteenth
Amendments; (iii) Third Count – conspiracy to violate Plaintiff’s constitutional rights under the
Fourth and Fourteenth Amendments; (iv) Fourth Count – malicious prosecution under New
Jersey common law; (v) Fifth Count – false imprisonment under New Jersey common law; (iv)
Sixth Count – assault and battery under New Jersey common law; and (vii) Seventh Count –
negligence under New Jersey common law. In connection with the federal constitutional claims,
it appears that Plaintiff also asserts municipal liability claims, pursuant to Monell v. New York
City Dep’t of Social Servs., 436 U.S. 658 (1978), against the Department for unconstitutional
policies or customs.
On October 5, 2016, the Department and Officer Palmer filed a motion for summary
judgment and, on the following day, the remaining Officers filed a separate motion for summary
judgment. Later that month, on October 24, 2016, Plaintiff filed a cross-motion for partial
summary judgment on the Second Count (unreasonable arrest and detention claim) and the
Fourth Count (malicious prosecution), as well as a “Cross-Motion to Dismiss Defendants’
Motions for Summary Judgment” because Defendants failed to comply with the procedural
Rules, including filing a statement of undisputed material facts as part of their respective moving

5

It appears that Plaintiff filed an Internal Affairs complaint against the Officers, but the
Monmouth County Prosecutor’s Office (the “MCPO”) subsequently dismissed the complaint on
September 23, 2013. Murphy Decl., Exs. D and E. In addition, Plaintiff filed a criminal
complaint against each of the Officers, asserting claims of official misconduct. Id. at Ex. F.
However, those claims were later dismissed, as well. Id. at G and K.
12

briefs. Plaintiff refused to substantively address Defendants’ motions until they complied with
the Rules.
On November 2, 2016, the Department and Officer Palmer filed a response to the crossmotion to dismiss its motion for summary judgment on procedural grounds, and they also filed
an opposition to the cross-motion for partial summary judgment. The following day, the
remaining Officers adopted and incorporated by reference the responsive brief filed by the
Department and Officer Palmer. On November 29, 2016, this Court denied the cross-motion to
dismiss Defendants’ motions for summary judgment, and directed Plaintiff to file his substantive
opposition to Defendants’ motions, including responses to Defendants’ statements of undisputed
facts, on or before December 9, 2016. However, the Court specifically reserved judgment on the
merits of the cross-motion for partial summary judgment.
On December 9, 2016, Plaintiff filed his opposition to Defendants’ motions and response
to the statement of undisputed material facts. On December 28, 2016, Officers Reiff, Smith and
Bowen filed a reply in opposition to Plaintiff’s cross-motion for partial summary judgment. The
following day, the Department and Officer Palmer adopted and incorporated by reference the
responsive brief filed by the other defendants.
II.

LEGAL STANDARD
Summary judgment is appropriate “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.” Fed. R. Civ. P. 56(c). 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.”

13

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 summary judgment. Anderson, 477 U.S. at 248. “In considering a motion
for summary judgment, a district court may not make credibility determinations or engage in any
weighing of the evidence; instead, the 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); see also 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 party moving for summary judgment has the initial burden of showing the basis for
its motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “If the moving party will bear
the burden of persuasion at trial, that party must support its motion with credible evidence . . .
that would entitle it to a directed verdict if not controverted at trial.” Id. at 331. On the other
hand, if the burden of persuasion at trial would be on the nonmoving party, the party moving for
summary judgment may satisfy Rule 56’s burden of production by either (1) “submit[ting]
affirmative evidence that negates an essential element of the nonmoving party’s claim” or (2)
demonstrating “that the nonmoving party’s evidence is insufficient to establish an essential
element of the nonmoving party’s claim.” Id. Once the movant adequately supports its motion
pursuant to Rule 56(c), the burden shifts to the nonmoving party to “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 trial.” Id. at 324; 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

14

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; see Katz v. Aetna Cas. & Sur. Co.,
972 F.2d 53, 55 (3d Cir. 1992).
III.

DISCUSSION

a.

Qualified Immunity
Defendants argue that the Officers are entitled to the protections of qualified immunity in

connection with Plaintiff’s claims for excessive force, unreasonable arrest and detention and
conspiracy to violate Plaintiff’s constitutional rights. “Police officers, embodying the authority
of the state, are liable under § 1983 when they violate someone’s constitutional rights, unless
they are protected by qualified immunity.” Santini v. Fuentes, 795 F.3d 410, 416-17 (3d Cir.
2015) (internal quotation marks and citation omitted). Qualified immunity operates “to ensure
that before they are subjected to suit, officers are on notice their conduct is unlawful.” Hope v.
Pelzer, 536 U.S. 730, 739 (2002) (internal quotation marks omitted); see Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982) (stating that the qualified immunity standard is one of “objective legal
reasonableness.”); Carswell v. Borough of Homestead, 381 F.3d 235, 242-43 (3d Cir. 2004)
(stating that “qualified immunity is an objective question to be decided by the court as a matter

15

of law.”). This protection exists “regardless of whether the government official’s error is a
mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.”
Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal quotation marks and citation omitted);
see Malley v. Briggs, 475 U.S. 335, 341 (1986) (stating that qualified immunity “protects all but
the plainly incompetent”).
In deciding whether a police officer is entitled to qualified immunity, a court examines:
(i) whether the facts alleged make out a violation of a constitutional right; and (ii) if so, whether
the right at issue was clearly established at the time of the defendant’s alleged misconduct. See
Pearson, 555 U.S. at 232; see also Kelly v. Borough of Carlisle, 544 Fed. Appx. 129, 133-34 (3d
Cir. 2013). In order to be clearly established, a right must be sufficiently clear that a reasonable
police officer would have known that his or her conduct was unlawful. Reichle v. Howards, 132
S. Ct. 2088, 2093 (2012); see Coles v. Carlini, 162 F. Supp. 3d 380, 399-400 (D.N.J. 2015).
However, courts are permitted to address either prong of the analysis first in light of the
circumstances at hand. See Pearson, 555 U.S. at 236. Finally, the officer bears the burden to
prove qualified immunity. See Thomas v. Independence Twp., 463 F.3d 285, 292 (3d Cir.
2006); Hicks v. Feeney, 850 F.2d 152, 159 (3d Cir. 1988).
1.

The Checkpoint

In opposition to Defendants’ motions, and in support of his cross-motion, Plaintiff
contends that Defendants violated his Fourth Amendment rights by requiring him to stop at the

16

checkpoint. 6 Specifically, Plaintiff maintains that “Super-Storm Sandy resulted in a ‘temporary
State of Emergency,’ not a ‘temporary Police State….’” Pl.’s Br. in Supp. of Cross-Motion at p.
8. In response, Defendants argue that the checkpoint was reasonable, especially considering that
the Governor declared a State of Emergency because of the storm, and that the Borough
determined that the Department needed to protect the health, safety and welfare of the residents
of Spring Lake. 7 To be clear, Plaintiff was not arrested at the checkpoint, but rather, he was
allowed to pass through the checkpoint, and was subsequently arrested for his actions after he
arrived at his father’s residence. As such, this inquiry focuses solely on the stop that occurred at
the checkpoint.

6

The Court notes that it is unclear, from both the pleadings and the moving papers, against
whom this claim is asserted. Plaintiff has not named Sgt. Ploskonka, the officer who stopped
Plaintiff at the checkpoint, as a named defendant, nor is there any evidence that Officers Reiff,
Smith and Bowen participated in the checkpoint on the night of the arrest. Thus, the only
remaining defendants are Officer Palmer and the Department. To the extent that Plaintiff asserts
this particular claim against Officer Palmer, as discussed infra, the Court concludes that Officer
Palmer is entitled to qualified immunity for his participation in the checkpoint, since the
checkpoint was reasonable under the circumstances. With respect to the municipal liability
claims against the Department, as discussed infra, the Court holds that the Department is not a
proper party, but rather, the Borough is the legal entity amenable to suit for claims concerning
unconstitutional policies or customs. Furthermore, assuming that it is a proper party, the
Department cannot be held liable, because the Court has found that Officer Palmer did not
violate any Plaintiff’s constitutional rights.
7

In response to that argument, Plaintiff argues that neither the New Jersey motor vehicle
statutes, nor the Executive Order authorized the Borough and/or the Department to setup a
checkpoint in the wake of Hurricane Sandy. However, it appears that Plaintiff misconstrues
Defendants’ argument, which is simply that the checkpoint was reasonable because the Governor
had declared a State of Emergency, and the Borough expressed, through its emergency
proclamations, an intention to maintain law and order through certain restrictions, including
traffic diversions. Additionally, Plaintiff does not cite any legal authority to support the position
that a municipality requires express authorization to impose traffic restrictions. Thus, Plaintiff’s
argument is rejected.
17

It is undisputed that Plaintiff was subjected to a “seizure,” within the meaning of the
Fourth Amendment, when he was at the checkpoint, and that Plaintiff was stopped without
individualized suspicion. See United States v. Pollard, 326 F.3d 397, 410 (3d Cir. 2003); see
also United States v. Hartwell, 436 F.3d 174, 177 (3d Cir. 2006). Thus, the question before this
Court is whether Defendants were excused from having individualized suspicion in order to
detain Plaintiff at the checkpoint. See Pollard, 326 F.3d at 410.
The Fourth Amendment protects “[t]he right of the people to be secure in their persons…
against unreasonable searches and seizures.” U.S. Const. amend. IV. “The touchstone of Fourth
Amendment analysis is reasonableness.” Pollard, 326 F.3d at 410; see United States v. Ortiz,
422 U.S. 891, 895 (1975). While “searches and seizures undertaken without a warrant and
probable cause or reasonable suspicion are unreasonable,” courts have recognized limited
exceptions to the general rule, including certain suspicionless searches at checkpoints. Pollard,
326 F.3d at 410-11; see Hartwell, 436 F.3d at 178-79. For instance, the Supreme Court upheld
the constitutionality of a sobriety checkpoint, established along a state road, at which police
officers stopped every vehicle in order to question the driver and look for signs of intoxication.
See Michigan Dep’t of State Police v. Sitz, 496 U.S. 444, 451-55 (1990). The Supreme Court
has similarly held that “a vehicle may be stopped at a fixed checkpoint [away from the border
with Mexico] for brief questioning of its occupants [as to whether the vehicle contained any
illegal aliens] even though there is no reason to believe the particular vehicle contains illegal
aliens.” United States v. Martinez-Fuerte, 428 U.S. 543, 545 (1976).
Although Plaintiff acknowledges that courts have “permit[ed] some temporary check
points and roadblocks for certain specific reasons,” he argues that “research reveals no
recognized exception that could possibly apply to the instant set of facts.” Pl.’s Br. in Supp. of

18

Cross-Motion at p. 9-10. However, a checkpoint may be constitutional even though “there is no
case law on point.” Pollard, 326 F.3d at 411. Instead, to determine whether a checkpoint is
reasonable, courts must “apply a balancing test to the facts presented.” Id. The Third Circuit has
specifically held that “[s]uspicionless checkpoint searches are permissible under the Fourth
Amendment when a court finds a favorable balance between the gravity of the public concerns
served by the seizure, the degree to which the seizure advances the public interest, and the
severity of the interference with individual liberty.” Hartwell, 436 F.3d at 178-79 (internal
quotation marks and citations omitted). “Where the balance tilts in favor of the government,” the
court must consider the suspicionless search to be reasonable. Pollard, 326 F.3d at 411.
Since the parties have not presented any legal authority on point, i.e., cases in which a
municipality established a checkpoint, in response to a severe storm, to verify the residence of
persons attempting to enter the municipality such that the police officers could maintain law and
order within its territorial boundaries, the Court must balance the facts and circumstances in this
case to determine whether the checkpoint was reasonable. See Pollard, 326 F.3d at 411.
With respect to the severity of the interference with individual liberty, checkpoints
“intrude to a limited extent on a motorists’ right to free passage without interruption… and
arguably on their right to personal security.” Martinez-Fuerte, 428 U.S. at 557-58 (internal
quotation marks and citation omitted). However, similar to the checkpoint stops in both
Martinez-Fuerte and Sitz, where the Supreme Court found the checkpoints to be constitutional,
Plaintiff was only briefly detained, and “[n]either the vehicle nor its occupants [were] searched,
and visual inspection of the vehicle [was] limited to what can be seen without a search.” 8 Id. at

8

Tellingly, the checkpoint at issue only operated for a finite period of time. Once the power had
been restored to the Borough, and the State of Emergency dissolved, the Department disbanded
the checkpoint.
19

558; see Sitz, 496 U.S. at 451 (stating that “the measure of the intrusion on motorists stopped
briefly at sobriety checkpoints... is slight.”). Officer Palmer testified that, at the checkpoint, he
and other officers asked the occupants of the vehicle for identification, such as a driver’s license,
but explained that officers allowed individuals to enter the Borough with “a sewer bill, water bill,
tax bill that had your name and address in Spring Lake on it….” Palmer Dep. at 33:17-34:1.
Furthermore, it is clear that at least some of the officers allowed individuals, including Plaintiff,
to enter the Borough without the required paperwork, so long as they provided the officer with a
reasonable explanation. Murphy Dep. at 49:1-17, 56:18-22. Plaintiff testified that he traveled
through the checkpoint on approximately 18 to 21 occasions. Id. at 38:1-7. In total, the Court
concludes that, at the checkpoint, the interference with Plaintiff’s individual liberty was
relatively minor.
Balancing that slight intrusion with the public interest in imposing the checkpoint, the
Court finds that, when considering the unique circumstances caused by the storm, there was a
strong interest in maintaining the health, safety and welfare of its citizens, as well as preserving
law and order. The checkpoint at issue was established after Hurricane Sandy made landfall,
“caus[ing] widespread and severe damage and destruction in New Jersey.” Gilliam v. Liberty
Mut. Fire Ins. Co., No. 14-361, 2014 U.S. Dist. LEXIS 184510, at *2 (D.N.J. Sept. 25, 2014). It
is undisputed that, at the time, the Governor had declared a State of Emergency. Courts have
concluded that, during a state of emergency, governmental entities may impose more onerous
restrictions upon its citizens, as long as such restrictions are reasonably necessary for the
preservation of order. See United States v. Chalk, 441 F.2d 1277, 1280-81 (4th Cir. 1971); see
also Moorhead v. Farrelly, 723 F. Supp. 1109, 1113 (D.V.I. 1989). Although not directly
analogous, courts have upheld the constitutionality of nighttime, citywide curfews as necessary

20

to preserve order in a state of emergency. 9 See id. For example, the court in Moorhead
concluded that the imposition of a curfew was permissible, since it was imposed “at a time of
grave emergency; the aftermath of Hurricane Hugo,” which caused severe damage and power
outages, and that “[t]he curfew was enacted [] to curtail looting and further damage to persons
and property.” Moorhead, 723 F. Supp. at 1113.
In the instant matter, Hurricane Sandy had strewn debris and sand across the roadways in
Spring Lake, as well as caused significant damage to the boardwalk along the beach. Palmer
Dep. at 32:25-33:6. In addition to physical damage, the storm caused ongoing electrical power
outages in the Borough, which continued through the date that Plaintiff was arrested. Murphy
Dep. at 69:22-24. Officer Palmer testified that the Department was fearful of looting, and the
corresponding property damage, because “there was talk about people looting in surrounding
town.” Palmer Dep. at 32:25-33:6. Based on those circumstances, the Borough and/or the
Department decided to implement a proactive approach in an area of great public concern, i.e.,
public safety, and it implemented certain traffic restrictions, which served a legitimate public
interest in preventing persons from driving down roadways that may not be safe, and keeping the
roadways clear for emergency personnel and maintenance crews. In addition, the checkpoint
arguably helped isolate the Borough from looting and destruction of property that had been
reported in other adjacent municipalities. Weighing those concerns with the slight intrusion on
Plaintiff’s liberty, I find that this case tilts in favor of Defendants. See Pollard, 326 F.3d at 411.
Accordingly, the Court holds that the suspicionless search performed on Plaintiff at the

9

Plaintiff does not challenge the Borough’s implementation of a curfew.
21

checkpoint was reasonable, given the extenuating circumstances, and that Officer Palmer is
entitled to qualified immunity in regard to the claim for an unlawful stop in the Second Count. 10
2.

The Arrest

In his Complaint, Plaintiff asserts a claim against Officer Palmer for “unreasonable arrest
and detention” under the Fourth and Fourteenth Amendment, which this Court construes as a
claim for false arrest, since Plaintiff claims that he was unlawfully arrested without probable
cause. 11 Defendant contends that Officer Palmer acted reasonably, and that he properly decided
to issue Plaintiff a citation for breach of peace. Defendants argue that, when Plaintiff refused to
provide his driver’s license and attempted to retreat, Officer Palmer decided to arrest Plaintiff for
obstruction of justice under N.J.S.A. § 2C:29-1.
In analyzing the qualified immunity defense on a false arrest claim, the court must
determine whether the plaintiff has established a deprivation of a constitutional right. See Noble
v. City of Camden, 112 F. Supp. 3d 208, 229-30 (D.N.J. 2015). To state a claim for false arrest,
a plaintiff must establish: “(1) that there was an arrest; and (2) that the arrest was made without
probable cause.” James v. City of Wilkes-Barre, 700 F.3d 675, 680 (3d Cir. 2012); see Pollock
v. City of Philadelphia, 403 Fed. Appx. 664, 669 (3d Cir. 2010); O’Connor v. City of

10

Nonetheless, assuming that the checkpoint was not reasonable, the Court finds that the right to
be free from such a checkpoint was not clearly established at the time Plaintiff was stopped. See
Reichle, 132 S. Ct. at 2093; see Coles, 162 F. Supp. 3d at 399-400. Indeed, both parties agree
that there is no case on point that addresses whether a municipality may implement a checkpoint
in an effort to maintain the welfare of its citizens and to prevent against looting and destruction.
Thus, Plaintiff cannot maintain that Defendants should have known that their actions were
impermissible. See Harlow, 457 U.S. at 818.
11

Notably, Plaintiff does not assert a false imprisonment claim under Section 1983, nor does
Plaintiff argue that he was falsely imprisoned in his briefing. Rather, he only asserts a false
imprisonment claim under New Jersey state law.
22

Philadelphia, 233 Fed. Appx. 161, 164 (3d Cir. 2007). “Whether probable cause exists depends
upon the reasonable conclusion to be drawn from the facts known to the arresting officer at the
time of the arrest.” Devenpeck v. Alford, 543 U.S. 146, 153 (2004); see United States v. Myers,
308 F.3d 251, 255 (3d Cir. 2002) (“Probable 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.”). The Third Circuit has explained that courts must apply a “common sense approach”
and that a determination as to probable cause must be based on “the totality of the
circumstances.” Paff v. Kaltenbach, 204 F.3d 425, 436 (3d Cir. 2000). Stated differently, “a
defendant officer violates an individual’s Fourth Amendment right to be free from false arrest if
it was not objectively reasonable for the officer to believe that probable cause existed at the time
of the arrest.” Noble, 112 F. Supp. 3d at 230.
Here, while he was arrested for obstruction of justice, under N.J.S.A. § 2C:29-1(a),
Plaintiff contends that Officer Palmer should never have asked for his identification, since the
officer lacked probable cause to issue a citation for breach of peace under the municipal
ordinance. In that regard, Plaintiff argues that he can curse at Officer Palmer without breaching
the peace. Plaintiff is correct in his assertion that, under the First Amendment, a person can
direct curse words at a police officer without fear of reprisal. See Johnson v. Campbell, 332 F.3d
199, 213 (3d Cir. 2003); see also City of Houston v. Hill, 482 U.S. 451, 461 (1987). However,
there is no evidence in the record that Officer Palmer intended to issue a citation because
Plaintiff was cursing at the officer. Instead, Officer Palmer testified that he decided to issue a
citation, under the breach of peace ordinance, because Plaintiff was loudly shouting obscenities

23

within the presence of Streppone and other persons in the neighborhood. See Palmer Dep. at
14:7-15:5, 19:18-25.
The Spring Lake ordinance for breach of peace reads: “No person shall make, aid or
assist in making any disturbance, riot or breach of the peace in the streets or elsewhere within the
limits of this Borough.” Although no court has addressed the specific ordinance at issue, New
Jersey courts have advised that a person commits breach of peace when he speaks loudly in a
public place, and that his words are of such a nature “to be likely, in the light of the gender and
age of the listener and the setting of the utterance, to affect the sensibilities of a hearer.” State v.
Profaci, 56 N.J. 346, 353 (1970). In the instant matter, it is undisputed that Plaintiff was loudly
cursing in a public place, and that Streppone heard Plaintiff “yelling for no apparent reason.”
Streppone Dep. at 43:8-18. While it is unknown whether such course language actually affected
the hearer’s sensibilities, that finding is irrelevant. Rather, Officer Palmer had probable cause to
cite Plaintiff under the breach of peace ordinance, since it is reasonable that Officer Palmer
believed that Streppone, as well as others in the neighborhood, could have been offended. See
Wright v. City of Philadelphia, 409 F.3d 595, 602 (3d Cir. 2005) (stating that “the evidentiary
standard for probable cause is significantly lower than the standard which is required for
conviction.”); see Devenpeck, 543 U.S. at 153. Because Officer Palmer had probable cause to

24

issue a citation for beach of peace, the question then becomes whether Officer Palmer had
probable cause to arrest Plaintiff for obstruction of justice. 12 James, 700 F.3d at 680.
Under N.J.S.A. § 2C:29-1(a), the offense of obstruction of justice is committed when one
“purposely obstructs, impairs or perverts the administration of law or other governmental
function or prevents or attempts to prevent a public servant from lawfully performing an official
function by means of flight, intimidation, force, violence, or physical interference or obstacle, or
by means of any independently unlawful act.” As a preliminary matter, Officer Palmer was
authorized to arrest Plaintiff without a warrant as long as the offense occurred in his presence.
See Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001) (“If an officer has probable cause to
believe that an individual has committed even a very minor criminal offense in his presence, he
may, without violating the Fourth Amendment, arrest the offender.”); see also State v.
Dangerfield, 171 N.J. 446, 460 (2002) (concluding that N.J.S.A. § 40A:14-152 permits officers
to perform warrantless arrests for “disorderly and petty disorderly persons offenses that occurred
in their presence”). Here, it is clear that Officer Palmer personally witnessed Plaintiff: (i) refuse
to provide his identification to the officer, and (ii) walk into the backyard and attempt to enter his
father’s residence after being instructed that Plaintiff was under arrest.

12

Plaintiff was ultimately charged with: (i) a disorderly conduct charge under N.J.S.A. § 2C:332(a)(2); and (ii) an obstruction of justice charge under N.J.S.A. § 2C:29-1(a). At his deposition,
Plaintiff testified that the charges against him were dismissed. To be clear, “[t]he validity of the
arrest does not depend on whether the suspect actually committed a crime; the mere fact that the
suspect is later acquitted of the offense for which he is arrested is irrelevant to the validity of the
arrest.” Michigan v. DeFillippo, 443 U.S. 31, 36 (1979); see Johnson, 332 F.3d at 211. Rather,
the operative inquiry “is whether, looking at the totality of the circumstances at the time of the
arrest, the objective facts available to the officers... were sufficient to justify a reasonable belief
that an offense was being committed.” Johnson, 332 F.3d at 211 (alteration in original) (internal
quotation marks and citation omitted).
25

First, a person obstructs justice by failing to provide a police officer with his
identification, including a driver’s license, upon request. See Dawson v. Twp. of Ocean, No. 096274, 2012 WL 1964543, at *4 (D.N.J. May 30, 2012) (dismissing the plaintiff’s claim for false
arrest, since “a reasonable person would believe that [the plaintiff] was guilty of obstructing
justice” because he did not produce his identification when asked repeatedly by the police
officer); see also State v. Perlstein, 206 N.J. Super. 246, 253 (App. Div. 1985) (concluding that a
person’s refusal to produce his driver’s license constituted obstruction of justice). In the instant
matter, Officer Palmer asked Plaintiff for his driver’s license, since he was going to issue a
citation for breach of peace, but Plaintiff refused. Palmer Dep. at 14:7-15:5. Officer Palmer
asked Plaintiff for his driver’s license on numerous occasions, but Plaintiff allegedly stated “fuck
you, no, I am not giving it to you.” Id. at 21:10-25. Similarly, Officers, Reiff, Smith and Bowen
witnessed Plaintiff refuse to provide Officer Palmer with his driver’s license. See Reiff Dep. at
17:9-18:1; Smith Dep. at 9:10-10:1; Bowen Dep. at 8:1-9:2. Finally, Plaintiff does not dispute
that he refused to produce his driver’s license; rather, Plaintiff stated that he decided to walk to
the back of the residence. See Murphy Dep. at 70:13-16, 71:18-21. Therefore, Officer Palmer
had probable cause to arrest Plaintiff for obstruction of justice, pursuant to state law.
In addition, a person commits an obstruction of justice when he attempts to retreat to a
place of safety. See Panarello v. City of Vineland, 160 F. Supp. 3d 734, 753 (D.N.J. 2016)
(holding that the defendant’s “moving away from the officer, even if not running away, still
provides the necessary probable cause to believe that obstruction has occurred.”); see also United
States v. Santana, 427 U.S. 38, 42 (1976) (“The only remaining question is whether [the
defendant’s] act of retreating into her house could thwart an otherwise proper arrest. We hold
that it could not.”). It is undisputed that, after Officer Palmer informed Plaintiff that he was

26

under arrest, Plaintiff attempted to retreat into his father’s residence. Palmer Dep. at 15:6-16; see
Bowen Dep. at 8:18-9:2. Indeed, Plaintiff stated that he knew he was under arrest, but he
proceeded to open the backdoor. Murphy Dep. at 70:13-16, 71:18-21. Thus, Defendants have
provided substantial grounds for Officer Palmer to have concluded that he had legitimate
justification to arrest Plaintiff for obstruction of justice. Accordingly, qualified immunity is
appropriate because Officer Palmer had probable cause to arrest Plaintiff for obstruction of
justice, pursuant to N.J.S.A. § 2C:29-1(a).
3.

Excessive Force

Defendants argue that Officer Palmer decided to effectuate the arrest when Plaintiff
attempted to flee into the residence, and that the Officers only used the force necessary to subdue
Plaintiff, since he refused to present his arms to be handcuffed. However, other than
conclusorily stating that he was subjected to an “unlawful beating,” Plaintiff does not advance
any substantive arguments in response Defendants’ contention that the Officers are entitled to
qualified immunity on the excessive force claim. This excessive force claim arises from the
manner in which Plaintiff was taken to the ground and subdued during the arrest. 13

13

Although he does not assert any argument in support of his excessive force claim, Plaintiff
claimed, at his deposition, that he sustained various injuries as a result of being arrested,
including a broken nose, rib and foot. See Murphy Dep. at 93:24-98:12. However, Plaintiff does
not attach any medical records to his opposition to Defendants’ motions or his cross-motion for
partial summary judgment. Therefore, Plaintiff has failed to meet his burden of proof that he
actually sustained injuries. See Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 922
(9th Cir. 2001) (dismissing the excessive force claim, in part, because the claim of injury was
“unsupported as [the plaintiff did] not provide any medical records to support her claim that she
suffered injury as a result of [the force used].”); see also LaFrenier v. Kinirey, 478 F. Supp. 2d
126, 139 (D. Mass. 2007) (dismissing the excessive force claim, since “allegations of injury,
unsupported by medical records or other evidence, are insufficient to avoid summary
judgment.”).
27

In excessive force cases, courts in this circuit determine whether a constitutional violation
has occurred using the Fourth Amendment’s objective reasonableness test as set forth in Graham
v. Connor, 490 U.S. 386, 395 (1989). See Curley v. Klem, 499 F.3d 199, 206-07 (3d Cir. 2007).
To determine objective reasonableness, courts must balance the “nature and quality of the
intrusion on the individual’s Fourth Amendment interests against the countervailing
governmental interests at stake.” Graham, 490 U.S. at 396 (internal quotation marks and citation
omitted). While the objective reasonableness inquiry is individualized and fact specific, courts
must consider three factors: “(1) the severity of the crime at issue, (2) whether the suspect poses
an imminent threat to the safety of the police or others in the vicinity, and (3) whether the
suspect attempts to resist arrest or flee the scene.” Santini, 795 F.3d at 417 (quoting Graham,
490 U.S. at 396). Other relevant factors include “the possibility that the persons subject to the
police action are themselves violent or dangerous, the duration of the action, whether the action
takes place in the context of effecting an arrest, the possibility that the suspect may be armed,
and the number of persons with whom the police officers must contend at one time.” Sharrar v.
Felsing, 128 F.3d 810, 822 (3d Cir. 1997). Finally, objective reasonableness is evaluated “from
the perspective of the officer at the time of the incident and not with the benefit of hindsight,”
and court must employ a “totality of the circumstances” approach. Santini, 795 F.3d at 417
(citing Curley, 499 F.3d at 207).
Even viewing the evidence in the light most favorable to Plaintiff, there is sufficient
evidence from which a factfinder could reasonably conclude that the Officers’ use of force
during the arrest was objectively reasonable under the circumstances. Thomas v. City of Erie,
236 Fed. Appx. 772, 776 (3d Cir. 2007). Addressing the Graham factors, the crimes at issue
were not particularly severe. Officer Palmer initially intended to issue a citation to Plaintiff for

28

beach of peace because he was shouting obscenities in a public place, but Plaintiff was
subsequently arrested for obstruction of justice, since he failed to produce his identification when
asked repeatedly by Officer Palmer. Although his crimes were not necessarily severe, Plaintiff
was belligerent and noncompliant. Instead of complying with Officer Palmer’s commands,
Plaintiff decided to walk into the backyard of his father’s residence, which was completely dark
because of the power outages caused by Hurricane Sandy. The Officers proceeded to follow
Plaintiff into the dark backyard, where they confronted Plaintiff attempting to enter the
residence. Plaintiff admitted that Officer Palmer said he was under arrest, but he still attempted
to retreat into the residence to avoid being arrested. At that point, it was unclear whether
Plaintiff posed an imminent threat to the safety of the Officers. Officer Palmer specifically
stated, “I don’t know what is inside of that house. I wasn’t going to let [Plaintiff] go in there and
let the situation end up in the house where there [are]… possibly weapons….” Murphy Dep. at
23:22-24:2.
Turning now to the additional Sharrar factors, there is no evidence in the record to
suggest that Plaintiff was armed, but it is reasonable that the Officers thought that Plaintiff might
pose a threat, especially since Plaintiff was screaming and repeatedly shoving his finger into
Officer Palmer’s face. The circumstances were tense and rapidly escalating. Although the
Officers only had to contend with one person, Plaintiff acted uncooperatively throughout his
interaction with Officer Palmer at his father’s residence, as well as during the arrest.
Nevertheless, the Officers only used force while effectuating the arrest, specifically in the
context of the takedown maneuver and handcuffing of Plaintiff. Finally, according to Plaintiff,
the use of force lasted approximately one minute, which is a relatively short period of time, but

29

the majority of the time was spent attempting to free his arms from underneath his body, so the
Officers could place Plaintiff in handcuffs.
While there is a dispute whether Plaintiff actively resisted arrest by failing to present his
arms to the Officers for handcuffing, or whether Plaintiff was not physically capable of
presenting his arms, that does not change the fact that the Officers were allowed to use some
force when effectuating the arrest. The Supreme Court has explained that effectuating an arrest
“necessarily carries with it the right to use some degree of physical coercion or threat thereof to
effect it.” Graham, 490 U.S. at 396; see Ference v. Twp. of Hamilton, 538 F. Supp. 2d 785, 809
(D.N.J. 2008) (holding that some physical contact, alone, is insufficient to show excessive force
because “[w]ere it otherwise, police officers might have to rely on verbal instructions alone to
effect an arrest for fear of section 1983 liability”). Stated differently, not every push, shove or
grab constitutes excessive force. See Graham, 490 U.S. at 396; see also Cruz v. City of
Wilmington, 814 F. Supp. 405, 413 (D. Del. 1993) (holding that, where a suspect repeated failed
to follow the officers’ directions, the alleged conduct of the officers in pulling him from the car
and twisting his arm in order to handcuff him was not excessive force). Furthermore, the force
used against Plaintiff in this case pales in comparison to other cases in which courts have
determined the use of force to be excessive. See, e.g., Rivas v. City of Passaic, 365 F.3d 181,
198-200 (concluding that beating a suspect who was in the midst of a seizure constitutes
excessive force); Green v. New Jersey State Police, 246 Fed. Appx. 158, 161-62 (3d Cir. 2007)
(holding that an officer used excessive force when he “violently grabbed” the suspect’s neck and
struck “him on the head twice with a flashlight.”). Based on the totality of the circumstances,
and in light of both the Graham and Sharrar factors, this Court concludes that the Officers have

30

demonstrated that the force used to arrest Plaintiff was objectively reasonable, and thus, the
Officers are entitled to qualified immunity and summary judgment on the First Count.
4.

Conspiracy

Defendants contend that the claim for conspiracy should also be dismissed, since Plaintiff
has failed to present any evidence that the Officers entered into a meeting of the minds to violate
his constitutional rights. To demonstrate conspiracy under Section 1983, “a plaintiff must show
that two or more conspirators reached an agreement to deprive him or her of her constitutional
rights under the color or law.” Parkway Garage, Inc. v. City of Philadelphia, 5 F.3d 685, 700 (3d
Cir. 1993), overruled on other grounds, UA Theater Circuit v. Twp. of Warrington, 316 F.3d 392
(3d Cir. 2003). Critically, a plaintiff must present evidence that there is “a meeting of the minds”
to violate a plaintiff’s rights. Startzell v. City of Philadelphia, 533 F.3d 183, 205 (3d Cir. 2008)
(internal quotation marks and citation omitted); see Estate of Martin v. U.S. Marshals Serv.
Agents, 649 Fed. Appx. 239, 244 (3d Cir. 2016). In order to satisfy this requirement, “[a]
plaintiff must rely on more than his or her own suspicion and speculation....” Estate of Martin,
649 Fed. Appx. at 244. Here, Plaintiff has failed to point to any evidence that the Officers
entered into a “meeting of the minds.” In fact, Plaintiff does not even advance any suspicion or
speculation as to how the Officers conspired to violate his rights. More importantly, however,
this Court has already determined that Plaintiff has not shown an actual deprivation of any
federally protected rights, thus his conspiracy claim under Section 1983 must fail. See Perano v.
Twp. of Tilden, 423 Fed. Appx. 234, 239 (3d Cir. 2011) (stating that “a § 1983 conspiracy claim
only arises when there has been an actual deprivation of a right.”).
b.

Claims against the Department

31

While it is unclear, it appears that Plaintiff also asserts federal constitutional claims
against the Department. For example, in connection with his claim for excessive force, Plaintiff
alleges that “[t]he use of excessive force was used by the collective Defendants in accordance
with and pursuant to a custom or policy.” Pl.’s Compl., ¶ 24. Nonetheless, the claims against
the Department must fail for two separate reasons.
First, Plaintiff was required to assert his municipal liability claims against the Borough,
not the Department. See Monell, 436 U.S. at 690-94. It is well settled that, “[u]nlike
unincorporated police departments, municipalities are legal entities amenable to suit for their
unconstitutional policies or customs.” Padilla v. Twp. of Cherry Hill, 110 Fed. Appx. 272, 278
(3d Cir. 2004); see Fitzgerald v. Kother, No. 15-7773, 2017 U.S. Dist. LEXIS 1897, at *7
(D.N.J. Jan. 6, 2017) (internal quotation marks and citation omitted) (“Police departments cannot
be sued in § 1983 actions because the police department is merely an administrative arm of the
local municipality, and is not a separate judicial entity.”). Accordingly, the Department is not a
proper party.
Second, assuming that Plaintiff was allowed to assert his municipal liability claims
against the Department, those claims must be dismissed because this Court has already
determined that the Officers did not violate his constitutional rights. See Grazier v. City of
Philadelphia, 328 F.3d 120, 124 (3d Cir. 2003) (alteration in original) (citation omitted) (“There
cannot be an ‘award of damages against a municipal corporation based on the actions of… its
officer when in face… the officer[s] inflicted no constitutional harm.’”); see also Breakwell v.
Allegheny County Department of Human Servs., 406 Fed. Appx. 593, 600 (3d Cir. 2010)
(holding that, “[a]bsent any constitutional violation, the Breakwell’s Monell claim against
Allegheny County necessarily fails.”); Marable v. West Pottsgrove Twp., 176 Fed. Appx. 275,

32

283 (3d Cir. 2006) (stating that “a municipality may not incur Monell liability as a result of the
actions of its officers when its officers have inflicted no constitutional injury.”). Accordingly,
Plaintiff’s municipal liability claims against the Department must be dismissed.
c.

The State Law Claims
With the dismissal of the federal constitutional claims, the remaining claims are as

follows: (i) malicious prosecution under New Jersey common law (Fourth Count); (ii) false
imprisonment under New Jersey common law (Fifth Count); (iii) assault and battery under New
Jersey common law (Sixth Count); and (iv) negligence under New Jersey common law (Seventh
Count). Although Plaintiff seeks partial summary judgment on his malicious prosecution claim,
he does not make any arguments in regard to his other state law claims. Indeed, the contours of
those claims remain unclear.
Under 28 U.S.C.S. § 1367, a district court may decline to exercise supplemental
jurisdiction over a claim if the court “has dismissed all claims over which it has original
jurisdiction.” 28 U.S.C.S. § 1367(c)(3). The Third Circuit has recognized that, when all federal
claims are disposed of on a motion for summary judgment, “the district court must decline to
decide the pendent state claims” unless extraordinary circumstances exist. Borough of West
Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir. 1995); see Tully v. Mott Supermarkets, Inc., 540
F.2d 187, 196 (3d Cir. 1976) (stating that “court[s] should ordinarily refrain from exercising
jurisdiction in the absence of extraordinary circumstances.”); Simmerman v. Corino, 804 F.
Supp. 644, 658 (D.N.J. 1992) (“[W]here a party’s federal claims are disposed of on a summary
judgment motion, the court should generally refrain from exercising supplemental jurisdiction
over the remaining state claims.”), aff’d, 16 F.3d 405 (3d Cir. 1993).

33

In the instant matter, while the Court is cognizant that this case was filed approximately
two and a half years ago, the remaining claims are purely state law based, and the Court finds
that it is best left to the state court to decide those claims. Therefore, the Court declines to
exercise supplemental jurisdiction. See Growth Horizons, Inc. v. Delaware County,
Pennsylvania, 983 F.2d 1277, 1284-1285 (3d Cir. 1993). Accordingly, the state law claims are
dismissed without prejudice and the statute of limitations tolled, and Plaintiff may refile his
remaining state law claims in State court within thirty (30) days from the date of the Order
accompanying this Opinion, pursuant to 28 U.S.C.S. § 1367(c)-(d).
IV.

CONCLUSION
For the reasons set forth above, Defendants’ respective motions for summary judgment

are GRANTED, and the First Count (excessive force), Second Count (false arrest) and Third
Court (conspiracy to violate Plaintiff’s constitutional rights) are dismissed as to all Defendants.
Plaintiff’s cross-motion for partial summary judgment is DENIED. In addition, this Court
declines to exercise supplemental jurisdiction over Plaintiff’s remaining state law claims. Thus,
those claims are dismissed without prejudice and the applicable statutes of limitations are tolled;
Plaintiffs may refile his state law claims in State court within thirty (30) days from the date of the
Order accompanying this Opinion. See 28 U.S.C.S. § 1367(c)-(d).

DATE: May 31, 2017

/s/ Freda L. Wolfson
The Honorable Freda L. Wolfson
United States District Judge

34