ROGERS v. BOROUGH OF POINT PLEASANT et al

Filing 96

OPINION filed. Signed by Judge Anne E. Thompson on 9/5/2017. (mps)

R E ·C E I V E D
NOT FOR PUBLICATION

SEP 0 5 2017
AT 8:30

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UNITED STAjfES DISTRICT COURT
DISTRIClf OF NEW JERSEY

WIL~LIA~M-T -W-AL_S_H_
......

CLERK

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B.R., A MINOR, BY SUSAN ROGERS, ~IS
PARENT AND GUARDIAN AD LITEM,
and SUSAN ROGERS,
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Civ. No. 14-8029

Plaintiffs,
OPINION

v.
BOROUGH OF POINT PLEASANT;
BOROUGH OF POINT PLEASANT
POLICE DEPARTMENT; MATTHEW F./
NICKERSON; ROBERT WELLS; JEFFREY
JOHNSON; LOREN MACIVER; LEON II
DOWNS; DAVID RADSNIAK;
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CHRISTOPHER PHILLIPS; AND
RICHARD LARSEN,
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Defendants.

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THOMPSON, U.S.D.J.

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INTRODUCTION

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This matter is before the Court upon multiple motions. Defendants Matthew Nickerson

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("Nickerson"), Jeffrey Johnson ("Johnson"O, Loren Maciver ("Maciver"), and Robert Wells

lrs") filed a motion for summary judgment. (ECF

("Wells") (collectively, "the arresting offic

No. 52). Plaintiffs Susan Rogers and B.R.,1 a minor, 1 (collectively "Plaintiffs") oppose the
motion. (ECF No. 92). Defendants BorJgh of Point Pleasant ("Point Pleasant") and Borough
of Point Pleasant Police Department ("PoJt Pleasant Police") also filed a separate summary

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At oral argument, Plaintiffs' counsel repiesented that B.R. turned eighteen years old since the
filing of the Complaint. As a result, Plain I iffs' counsel indicated that he would be filing an
amended complaint to reflect this change in status. To date, no amended complaint has been
filed, however the Court will not consider this dispositive in ruling on the instant motions.
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judgment motion on that same date, as did Defendants Downs, Larsen, Phillips, and Radsniak.
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(EC~ Nos. 54, 55). Pl~tiffs have .no~ oppjbsed thes~ motions.2 ~e Court has decided the
motions based on the wntten subm1ss1ons ?fthe parties and a hearing held on June 7, 2017. For
the reasons stated herein, all three of the

D~fendants' motions will be granted.

B~CKGROUND

This case arises out of a domestic Jispute that occurred between Plaintiff Susan Rogers
and non-party Kenneth Martyn on DecemJer 29, 2012 at 2308 River Road in Point Pleasant,
New Jersey. The following facts are undisbuted. B.R. is the son of Susan Rogers and Kenneth
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Martyn. On December 29, 2012, Susan Rogers and Kenneth Martyn got into an argument.
(Joint Defense Statement of Material FaJ ("JDSOMF"), ECF No. 52-4 'If 6; Pl.'s Response to

Joint Defense Statement of Material Facts, ("Pl.'s Resp. SOMF"), ECF No. 77, 6). At
approximately 11 :20 A.M. on that same date, Kenneth Martyn called the Point Pleasant Police
Department to report an act of domestic villence. (JDSOMF 'If 7; Pl. 's Resp. JDSOMF 'If 7).
Defendants Nickerson, Maciver, Wells,

an~ Johnson-officers of the Point Pleasant Police
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Department-responded to the call. (JDSOMF if 8; Pl.'s Resp. JDSOMF, 8). On December 29,
2012, Officer Wells was the most senior
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o~cer on the shift and therefore acted as the Officer in
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Charge. (JDSOMF 'If 157; Pl.'s Resp. JDSIOMF 'If 157). On December 29, 2012, Officer
Nickerson was a Class II special law enforement officer who was being trained by Officer

Maciver (JDSOMF, 159; Pl.'s Resp. JDSOMF if 159).

2

Plaintiffs originally failed to timely opp9se all of Defendants' motions. Despite this failure, on
multiple occasions, the Court afforded Plaintiffs leave to file opposition to all of Defendants'
motions. Plaintiffs did file a response to Defendants' Statement of Material Facts, and Plaintiffs'
counsel appeared at the hearing held by thb Court on June 7, 2017. (ECF No. 77). However,
Plaintiffs subsequently filed an opposition! brief, which was explicitly only directed at the motion
of Defendants Nickerson, Maciver, Wells, and Johnson.
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Officers Nickerson and Maciver were

~e first police officers to arrive at the scene.

(JDSOMF 'If 30; Pl. 's Resp. SOMF 'If 30). Offi4er Nickerson was the first to enter the house, and
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he was let into the house by Susan Rogers. (JrlSOMF W32, 42; Pl.'s Resp. JDSOMF ifif 32,
42). Officer Nickerson spoke with Kenneth M b on the second floor of the house. (JDSOMF

'If 44; Pl.'s Resp. JDSOMF 'If 44). Officer JohnLn later arrived and spoke with B.R. in B.R.'s
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second floor bedroom. (JDSOMF if 224; Pl. 's Resp. JDSOMF if 224).
When Officer Nickerson went to speak with Kenneth Martyn, he immediately saw that
there was a large cut or scratch on Kenneth Mftyn's face. (JDSOMF if 57; Pl.'s Resp. JDSOMF

ir 57).

The signs of injury that Officer Nickersbn observed on Kenneth Martyn's face were

obvious and visible. (JDSOMF 'If 74; Pl. 's RJp. JDSOMF 'If 74). Officer Nickerson also
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observed a broken porcelain fish statue on the .floor of the room where he was speaking with
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Kenneth Martyn. (JDSOMF if 62, Pl. 's Resp. JDSOMF if 62). Officers Maciver and Johnson
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took photographs of the broken porcelain fish statue and of Martyn's face. (JDSOMF irif63-65;
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Pl.' s Resp. JDSOMF mf 63-65). Kenneth Maftyn explained to

Office~ W_ells that Susan Rogers

threw the porcelain fish statue that struck him in the face and showed Officer Wells where he
was standing when it happened. (JDSOMF if [92; Pl.'s Resp. JDSOMF if 192). Officer Maciver
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also observed a visible injury on Kenneth M r ' s face and when Officer Maciver first saw

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Kenneth Martyn, he appeared visibly upset. (lfDSOMF W116, 118; Pl.'s Resp. JDSOMF W
116, 118). When the officers were speaking

ith Kenneth Martyn, he told them that he had

grabbed Susan Rogers' cell phone from her hand. (JDSOMF if 128, Pl.'s Resp. JDSOMF ir 128).
When speaking with Officer Nickerson, Susj Rogers described feeling either pain or discomfort
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in her wrist. (JDSOMF 'If 51; Pl.' s Resp. JDS IMF 'If 51 ). Susan Rogers admits that she could
not hear what Kenneth Martyn was saying to the police officers and that she has no idea what he

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said to them. (JDSOMF if 61; Pl.'s Resp. JDSOMF if 61).

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After speaking with both Susan RogjI and Kenneth Martyn, Officer Nickerson made a
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determination as to who was the aggres~or an1 who was the victim. (JDSOMF 'lf 54; Pl. 's Resp.

JDSOMF ~ 54). In short, after separating the parties, the police officers conducted their
investigation, interviewed both parties, obsJed damage to the bedroom door, observed visible

signs of injury on Kenneth Martyn's face, and reached the conclusion that Susan Rogers was the
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aggressor and that Susan Rogers would be arrested. (JDSOMF ~ 193; Pl.'s Resp. JDSOMF ~

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193).

Subsequently at the police station, Defendant Radsniak arrived for his shift and was
informed that Susan Rogers was in the holdink cell. (JDSOMF 'lf 239; Pl. 's Resp. JDSOMF 'lf

239). Defendant Radsniak along with a Detelive Scalabrini explained to Susan Rogers that a
judge made a determination to grant custody 1f B.R. to Kenneth Martyn. (JDSOMF 'lf 248; Pl. 's
Resp. JDSOMF 'l[ 248). Defendant Radsniak lever received any evidence that Kenneth Martyn
had abused B.R. in the past; never received 1y specific information as to why Kenneth Martyn

was dangerous; and never received any histoey of abuse by Kenneth Martyn of B.R. (JDSOMF ~
272; Pl. 's Resp. JDSOMF 'lf 272). Defendan1 Radsniak advised B.R. that, based upon the judge's
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decision, B.R. had to go with his father. (JDSOMF ~ 278; Pl. 's Resp. JDSOMF ~ 278).

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The next day, Officers Maciver and Wells responded to the same address to investigate a

reported act of criminal mischief. (JDSOMFl'l[ 139; Pl.'s Resp. JDSOMF 'l[ 139). After

responding to the December 30, 2012 call, obcers Maciver and Wells called Susan Rogers to
advise her that some items in her home had

~een damaged. (JDSOMF 'l[ 142; P.'s Resp.

JDSOMF ~ 142). As to this second call, Officer Maciver advised Susan Rogers that the police
had made the determination that she was the /victim of domestic violence. (JDSOMF 'l[ 143; Pl.' s

Resp. JDSOMF ~ 143). Susan Rogers indic~ted that she wanted to seek a temporary restraining
order against Kenneth Martyn, and a temporb restraining order was eventually issued.

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(JDSOMF W 145, 150; Pl.'s Resp. JDSOMF W 145, 150). On July 30, 2013, Kenneth Martyn
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was indicted by the Ocean County

Prosecutor'~ Office on one court of criminal mischief as a

result of damages he caused to the home of Pl1ntiffSusan Rogers on December 30, 2012, the

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day after the arrest of Susan Rogers. (JDSOMF ~ 369; Pl. 's Resp. JDSOMF ~ 369).
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Plaintiffs filed a motion for partial sunbaryjudgment on April 21, 2017. (ECF No. 57).
On April 21, 2017, Defendants Nickerson, Mlciver, Wells, and Johnson filed a motion for
summary judgment. (ECF No. 52). Defendits Borough of Point Pleasant and Borough of Point
Pleasant Police Department also filed a separate summary judgment motion on that same date, as

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did Defendants Downs, Larsen Phillips, and R.adsniak. (ECF Nos. 54, 55). The Court held oral
argument on all four motions on June 7, 201

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At oral argument, the Court denied Plaintiffs'

motion for summary judgment. (ECF Nos. 89, 90). Additionally, at oral argument, Plaintiffs
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voluntarily dismissed all claims against Defehdants Downs, Phillips, Larsen, and the Borough of

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Point Pleasant Police Department. (Id.). Plaintiff also voluntarily dismissed their claims based
on an alleged conspiracy. (Id.). 3 Therefore, le three summary judgment motions filed by
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remaining Defendants (ECF Nos. 52, 54, 55j are presently before the Court.

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LEGAL STANDARD
Summary judgment is appropriate if/the record shows ''that there is no genuine issue as to
any material fact and that the movant is entitled to judgment as a matter oflaw." Fed. R. Civ. P.
56(c); Celotex Corp. v. Catrett, 4 77 U.S. 3

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3 22 ( 1986). In deciding a motion for summary

judgment, a district court considers the facts drawn from "the pleadings, the discovery and

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disclosure materials, and any affidavits" ancd must ''view the inferences to be drawn from the
underlying facts in the light most favorable to the party opposing the motion." Fed. R. Civ. P.

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As a result, the Court dismissed these clairis. (ECF No. 89).
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56(c); Curley v. Klem, 298 F.3d 271, 276-f/7 (3d Cir. 2002) (internal quotations omitted). In
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resolving a motion for summary judgmentJ the Court must determine ''whether the evidence
presents a sufficient disagreement to reql submission to a jury or whether it is so one-sided
that one party must prevail as a matter ofltw." Anderson v. Liberty Lobby, 477 U.S. 242, 251-

52 (1986).
1'\NALYSIS
The Complaint in this case is a thiJr-eight page, single spaced document that includes
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eight counts. (See Comp!., ECF No. I). ,owever, the eight Counts do not include separate
headings identifying the nature of each Cort, and many of the Counts contain largely repetitive

language. (Id.). As previously discussed, Plaintiffs voluntarily dismissed their claims based on
an alleged conspiracy (which the Court

int~ets as Count IID, as well as all cl~ against

Defendants Downs, Phillips, Larsen, and the Borough of Point Pleasant Police Department.
Therefore, the Court interprets the Complit to include remaining claims for: (Count One) 42
U.S.C. § 1983 claim for false arrest/false iprisonment; (Count Two) malicious prosecution;
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(Count Four) 42 U .S.C. § 1983 claim for srte-created danger with respect to B.R. on December

29-30, 2012; (Count Five) 42 U.S.C. § 1983 claim for municipal liability against Defendant
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Point Pleasant Borough for failure to trainAsupervise that deprived Plaintiff of a Constitutional

right; (Count Six) vicarious liability clai~ against Defendant Point Pleasant Borough with
respect to malicious prosecution claim; (C~unt Seven) municipal liability claim against
Defendant Point Pleasant Borough for a cJstom, policy, or practice that deprived Plaintiff of a
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Constitutional right; (Count Eight) vicariobs liability claim with respect to state-created danger
claim.

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Defendants Nickerson, Maciver, Wells, and Johnson Summary Judgment
Motion
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It appears that Plaintiffs' Ston 1983 claims for false arrest/false incarceration,

malicious prosecution, and state-cre~ted dang~ are directed at Defendants Nickerson, Maciver,
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Wells, and Johnson. (See Compl., tcF No. 1). Defendants argue that they are entitled to
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summary judgment on all claims abnst them.

a. Probable Cause

Defendants argue that they are entitled to summary judgment because probable cause
existed to arrest Susan Rogers on tjecember 29, 2012. An arrest without probable cause is a
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Fourth Amendment violation actiobable under§ 1983. See Walmsley v. Philadelphia, 872 F.2d
546 (3d Cir. 1989). To state a

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two elements: (1) that there was

Amendment claim for false arrest, a plaintiff must allege

j arrest; and (2) that the arrest was made without probable
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cause. Dowling v. City ofPhiladelphia, 855 F.2d 136, 141 (3d Cir. 1988); see also James v. City

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of Wilkes-Barre, 700 F.3d 675, 68j0 (3d Cir. 2012). A claim for false imprisonment arises when

a person is arrested without proba&le cause and is subsequently detained pursuant to that
unlawful arrest. See Adams v. Qffiter Eric Selhorst, 449 F. App'x 198, 201 (3d Cir. 2011) (per
curiam) (citation omitted). Thus,

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claim of false imprisonment in this context is derivative of a

claim for arrest without probable bause. See Johnson v. Camden Cnty. Prosecutors' Office, 2012
WL 273887, at *4 n.2 (D.N.J. JJ. 31, 2012) (citation omitted).
"The proper inquiry in a Jection 1983 claim based on false arrest ... is not whether the
person arrested in fact committool the offence but whether the arresting officers had probable
cause to believe the person arrestL had committed the offense." Campbell v. Moore, 92 F.
App'x 29, 32 (3d Cir. 2004) (citilgDowling, 855 F.2d at 141). "[P]robable cause to arrest exists
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when the facts and circumstanceJ within the arresting officer's knowledge are sufficient in
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themselves to warrant a reasonable persod to believe that an offense has been or is being
committed by the person to be arrested." /orsatti v. N.J. State Police, 71F.3d480, 483 (3d Cir.
1995). Thus, the arresting officer must /Inly reasonably believe at the time of the arrest that an
offense has been or is being committed, .k significantly lower burden than proving guilt at trial.
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See Wright v. City ofPhiladelphia, 409 F.3d 595, 602 (3d Cir. 2005).

The Third Circuit has "held

tha~a victim's identification, even without any other

evidence, will 'usually be sufficient to /~stablish probable cause."' Cooper v. City of

Philadelphia, 2016 WL 210459, at *1 pd Cir. Jan. 19, 2016) (citing Wilson v. Russo, 212 F.3d
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781, 790 (3d Cir. 2000)). This rule, while not absolute, is subject only to limited exceptions for

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cases where the officer is aware of"[~]ndependent exculpatory evidence or substantial evidence

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of the witness's own unreliability."

"Generally, the question of probable cause in a Section

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1983 damage suit is one for the juryr Campbell, 92 F. App'x at 32 (citation omitted). However,
in the context of a motion for summ~ judgment, "a district court may conclude that probable
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cause exists as a matter of law if the evidence, viewed most favorably to Plaintiff, reasonably

would not support a contrary facJ finding, and may enter summary judgment accordingly."

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Merkle v. Upper Dublin Sch. Dist.) 211 F .3d 782, 788-89 (3d Cir. 2000) (internal quotation

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marks omitted).

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In this case, after the officers arrived on the scene, Kenneth Martyn explained to Officer

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Wells that Susan Rogers threw th¢ porcelain fish statue that struck him in the face and showed

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Officer Wells where he was stancling when it happened. (JDSOMF ~ 192; Pl.'s Resp. JDSOMF

if 192).

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It is undisputed that the fficers observed obvious and visible injury to Kenneth

Martyn's face. (JDSOMF irir 571, 74, 116, 118; Pl.'s Resp. JDSOMF ifif 57, 74, 116, 118). It is
undisputed that, after separatinJ the parties, the police officers conducted their investigation,
interviewed both parties, obsJed damage to the bedroom door, observed visible signs of injury

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on Kenneth Martyn's face, and reached the conclusion that Susan Rogers was the aggressor and
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that Susan Rogers would be arrested.

(JDSO~ ~ 193; Pl.'s Resp. JDSOMF ~ 193).
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In short, it

is undisputed that Kenneth Martyn identified Plaintiff as having committed an act of domestic

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violence against him, the officers observed anJ obvious and visible injury to Kenneth Martyn's

~e victim and that Plaintiff was the aggressor, and
arrested Plaintiff Susan Rogers. Plain,tiffs do/ allege that Susan Rogers' ~st was red and

face, the officers concluded that Martyn was

swollen when she spoke with the officers (JISOMF ~ 6; Pl.'s Resp. JDSOMF ~ 76). Officer
Nickerson, in a Narrative Report written after the incident, asserted that officers looked at her
wrist, but observed no visible injury to Susj Rogers. (Pl.' s Ex. 10, ECF No. 57-4 at 107-116;

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Def. 's Ex. 1(3), ECF No. 52; JDSOMF ~ 75) [ Even viewing assertions such as these in the light
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most favorable to Plaintiffs, the Court is per~uaded that the arresting officers had probable cause

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to arrest Susan Rogers.

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Plaintiffs' opposition brief mainly Jgues that Defendants lacked probable cause.
Specifically, Plaintiffs argue that the arresJg officers were aware of previous incidents
involving arrests, mental health issues, and

1~omestic

violence with respect to Kenneth Martyn.

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However, Plaintiff fails to support the vast tnajority of these assertions with citations to evidence
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in the record in this case. 4 To the extent thJt Plaintiff does cite evidence in the record, the Court
is not persuaded that the evidence reflects

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level of independent exculpatory evidence or .

substantial evidence of the witness's own 4meliability within the knowledge of the arresting
officer at the time of the arrest that would bhange the outcome of the Court's probable cause

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Plaintiffs' opposition brief contains a recitation of the facts that is fifteen pages long, with only
four apparent citations to evidence in the Jecord in this case. Plaintiffs opposition brief also lists
27 "facts" which they argue stand for the proposition that Defendants did not have probable
cause to arrest Susan Rogers on Decembe~ 29, 2012, with no citation to evidence in the record.
(See ECF No. 92).
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analysis. For example, Plaintiffs cite Plaihtiffs' Exhibits 7 and 8 (ECF No. 57-4 at 75-103) to
stand for the proposition that Kenneth

M~ had multiple restraining orders entered against

him at the time of the incident, and that KLeth Martyn was previously involved in multiple
incidents involving Point Pleasant

Borou~ Police. However, Defendant Maciver is the only one

of the four officers who responded to the becember 29, 2012 incident that is mentioned in any of
these docwnents, and he apparently

resp~nded to a previous incident involving Susan Rogers and

Kenneth Martyn in 2009. (See Ex. 7, ECF No. 57-4). Plaintiffs have not brought to this Court's
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attention evidence sufficient to demonstr~te that the arresting officers had independent
exculpatory evidence or substantial evidLce of the witness's own unreliability at the time of the

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arrest. Therefore, when construing the facts in the light most favorable to Plaintiffs, the Court is
persuaded that there is no dispute of a mlterial fact that the arresting officers had probable cause

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to arrest Susan Rogers. 5 As a result, the ourt grants Defendants Nickerson, Maciver, Wells,
and Johnson's summary judgment motioµ on Plaintiffs' claims for false arrest/false
imprisonment.
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Additionally, as Defendants Nickerson!, Maciver, Wells, and Johnson point out in their brief,
and as the Court found in Signorile v. C~ty ofPerth Amboy, 523 F. Supp. 2d 428, 433-34 (D.N.J.
2007), because the victim here exhibited physical signs of injury allegedly caused by an act of
domestic violence, the arrest here may ~ave been required under the New Jersey Prevention of
Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 et seq, which in relevant part, provides:

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[w ]hen a person claims to be a victim of domestic violence, and where a law
enforcement officer responding to the incident finds probable cause to believe that
domestic violence has occurred, /the law enforcement officer shall arrest the
person who is alleged to be the person who subjected the victim to domestic
violence and shall sign a criminal complaint if [t]he victim exhibits signs of injury
caused by an act of domestic vidlence[.]

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N.J.S.A. 2C:25-21a(l) (emphasis added).
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b. Malicious Prosecution

Plaintiffs assert that they are bringing both federal and state law claims for malicious

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prosecution. To state a malicious prosecution claim under Section 1983 and the New Jersey
Civil Rights Act, Plaintiff must establish Jat: (1) Defendants initiated a criminal proceeding; (2)
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the criminal proceeding ended in Plaintiff' favor; (3) the proceeding was initiated without
probable cause; (4) Defendants acted mali,iously or for a purpose other than bringing Plaintiff to

justice; and (5) Plaintiff suffered deprivation of liberty consistent with the concept of seizure as a
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consequence of the legal proceeding. Hal,ey v. Pfeiffer, 750 F.3d 273, 297 (3d Cir. 2014). The

elements of the common law tort of malici9us prosecution under New Jersey law are the same,
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except no deprivation of liberty need be shbwn. Harris v. Zyskowski, 2013 WL 6669186, at *6
(D.N.J. Dec. 18, 2013). Therefore, to

stat~ a claim for malicious prosecution under both federal

and state law, a Plaintiff is required to derrionstrate a lack of probable cause. Given the Court's
findings regarding probable cause just distsed, Plaintiffs cannot prevail on their claims for

malicious prosecution. Therefore, the CoUrt enters summary judgment in favor of Defendants
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Nickerson, Maciver, Wells, and Johnson oh this claim as well.
c. State-Created Danger
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It appears that Plaintiffs additionally bring a claim for state-created danger. In Kneipp v.

Tedder, 95 F.3d 1199, 1201 (3d Cir. 19961 the Third Circuit first adopted the state-created
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danger theory as a mechanism by which plaintiffs may establish constitutional violations under
42 U.S.C. § 1983. Sanford v. Stiles, 4561.3d 298, 304 (3d Cir. 2006)(citing Kneipp, 95 F .3d at

1201). To prevail on a state-created danger claim in the Third Circuit, a plaintiff must prove the
following four elements:
(1) the harm ultimately caused was foreseeable and fairly direct;
(2) a state actor acted with a degreb of culpability that shocks the conscience;
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statl

(3) a relationship between the
and the plaintiff existed such that the plaintiff
was a foreseeable victim of the defendant's acts, or a member of a discrete class
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of persons subjected to the potential harm brought about by the state's actions, as
opposed to a member of the publip in general; and
(4) a state actor affirmatively used his or her authority in a way that created a
danger to the citizen or that rendJred the citizen more vulnerable to danger than
had the state not acted at all.
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Sanford, 456 F.3d at 304-05 (citations

o~itted).
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In this case, Plaintiffs' oppositiob brief did not address the state-created danger claim.
That being said, it appears that Plaintiffj allege that Defendants knew that releasing B.R. into the

~.R. to a high risk of violence and B.R. has suffered

custody of Kenneth Martyn subjected

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psychological and emotional damages a'.s a result.
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The Court is not persuaded that/the first factor can be satisfied because Plaintiffs have not
set forth evidence reflecting any direct) foreseeable harm that was caused by releasing B.R. into
the custody of Kenneth Martyn. FurthL, with respect to the second factor, "[w]hat is required to

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meet the conscience-shocking level wi:ll depend on the circumstances of each case, particularly

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the extent to which deliberation is pos~ible. In some circumstances, deliberate indifference will

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be sufficient. In others, it will not." Sanford, 456 F.3d at 310. "[I]n a state-created danger case,

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when a state actor is not confronted ~ith a 'hyperpressurized environment' but nonetheless does

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not have the luxury of proceeding in adeliberate fashion, the relevant question is whether the
officer consciously disregarded a grelt risk ofhann." Id.
In this case it is undisputed Jat on December 29, 2012, Defendant Radsniak had in his

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possession a Court order indicating that B.R. was to be placed in the custody of his father,

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Kenneth Martyn. (JDSOMF, 277; Pl's Resp. JDSOMF, 277). It is also undisputed that
Defendant Radsniak along with a Diective Scalabrini explained to Susan Rogers that a judge
made a determination to grant

custo/~y of B.R. to Kenneth Martyn. (JDSOMF if 248; Pl.'s Resp.

JDSOMF , 248). Defendant Radsnfak never received any evidence that Kenneth Martyn had
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abused B.R. in the past; never received

specific information as to why Kenneth Martyn was

dangerous; and never received any histo& of abuse by Kenneth Martyn of B.R. (IDSOMF
Pl. 's Resp. IDSOMF at 272).

~ 272;

Defendan~ Radsniak advised B.R. that, based upon the judge's

decision, B.R. had to go with his father. (JDSOMF -U 278; Pl.'s Resp. JDSOMF 4U 278).
Plaintiffs have not introduced evidence
consciously disregarded a great risk of

~at Defendant Radsniak or any of the other Defendants

larm, or even acted with deliberate indifference, by

following a valid Court order from a jjge and releasing B.R. into the custody of his father.

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d. Conclusion

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For the reasons discussed abovt the Court grants Defendant Nickerson, Maciver, Wells,
and Johnson's summary judgment molon on all remaining claims against them.

II.

Defendants Downs, Larsl. Phillips, and Radsniak Summary Judgment Motion

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Plaintiffs previously voluntarily dismissed their claims against Defendants Downs,

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Larsen, and Phillips. Therefore, Defehdant Radsniak is the only remaining Defendant relevant to
this motion. Defendant Radsniak arJes that he is entitled to summary judgment on all

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remaining claims against him. Plaintrffs have failed to oppose this motion. Nonetheless, the

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Court finds that Defendant Radsniak ras meritorious arguments such that his summary judgment
motion should be granted. The Col's discussion regarding probable cause entitles Defendant

Radsniak to summary judgment on any false arrest/false imprisonment claim and any malicious

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prosecution claim against him. 6 Additionally, as discussed above, the Court is persuaded that
Plaintiffs' state-created danger cljs fail against all Defendants, including Defendant Radsniak.
Therefore, Defendant Radsniak' s mbtion for summary judgment will be granted on all remaining

claims against him.

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Additionally, it appears that Defep.dant Radsniak was not at the scene of the arrest.
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III.

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Defendants Borough of Pontt Pleasant and Point Pleasant Borough Police

Department Summary Jud~ent Motion

It appears that four municipal liaiility counts remain against Defendant Point Pleasant
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Borough-(Count Five) 42 U.S.C. § 1983 claim for municipal liability against Defendant Point
Pleasant Borough for failure to train/suJervise that deprived Plaintiff of a Constitutional right;
(Count Six) vicarious liability claim

a~t Defendant Point Pleasant Borough with respect to
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the malicious prosecution claim;

(Coun~ Seven) 42 U.S.C. § 1983 claim for municipal liability

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against Defendant Point Pleasant Borotlgh for custom, policy ,or practice that deprived Plaintiff ·
of a Constitutional right; (Count Eight) vicarious liability with respect to the state-created danger
claim.

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Point Pleasant Borough argues /that it is entitled to summary judgment on these claims
and Plaintiffs have not opposed the m6tion. Initially, the Court notes that Plaintiffs cannot
prevail on Counts 6 and 8-the claimj relating to vicarious liability-because "a municipality
cannot be held liable under § 1983 fJ the constitutional torts of its employees by virtue of
respondeat superior." McGreevy v. slump, 413 F.3d 359, 367 (3d Cir. 2005); see also Monell v.

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Dep 't ofSoc. Servs. ofNew York, 431 U.S. 658, 663-64 n. 7 ( 1978). Additionally, as previously

discussed, the Court previously founcl that Plaintiffs cannot prevail on the underlying claims for
malicious prosecution and state

creat~ danger.
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Next, Counts 5 and 7 appear ~o be brought pursuant to Monell v. Dep't ofSoc. Servs. of
New York, 436 U.S. 658 (1978). To prevail on a Monell claim, a plaintiff must first establish that

the municipality had a policy or custom that deprived him of his constitutional rights. McTernan

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v. City of York, 564 F.3d 636, 657 (3d Cir. 2009) (quotingBeckv. City ofPittsburgh, 89 F.3d

966, 971 (3d Cir. 1996)). In other fords, the plaintiff must show that the municipality, through
one of its policymakers, affirmativJly proclaimed the policy, or acquiesced in the widespread
. 14

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custom, that caused the violation. Watsoh v. Abington Twp., 478 F.3d 144, 155-56 (3d Cir,
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2007). A plaintiff may show the existenbe of a policy when a decision-maker with final
authority issues an official proclamation! policy, or edict. Bielevicz v. Dubinon, 915 F.2d 845,
850 (3d Cir. 1990). Custom may be

es~blished by showing that a given course of conduct,
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"although not specifically endorsed or authorized by law, is so well-settled and permanent as

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virtually to constitute law." Id. Once a§ 1983 plaintiff identifies a municipal policy or custom,

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he must "demonstrate that, through its deliberate conduct, the municipality was the 'moving

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force' behind the injury alleged." Bd. oJCnty. Comm 'rs. ofBryan Cnty. v. Brown, 520 U.S. 397,
404 (1997). Additionally, in order to sJcceed on a claim for failure to train or supervise,

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Plaintiffs must show that the Borough Jcted with deliberate indifference to the known or obvious

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consequences of its acts or its failure t, act. Canton v. Harris, 489 U.S. 378, 388 (1989). "A
showing of simple or even heightened negligence will not suffice." Brown, 520 U.S. at 407.

Delib~te indifference may be demo~trated by showing a pattern of violations which puts the
municipal employee on notice that a nlw program is necessary; or a single violation where the
need for training Was patently obvious! Thomas v. Cumberland Cnty., 749 F.3d 217, 222 (3d
Cir. 2014).

/

Further, a plaintiff cannot

m~Jtain a Monell claim for damages against a municipality

under § 1983 when no constitutional

f

jury has occurred. Accumed LLC v. Advanced Surgical

Servs., Inc., 561F.3d199, 217 n.12 (3d Cir. 2009); see Marable v. West Pottsgrove Twp., 176 F.
App'x 275, 283 (3d Cir. 2006) ("[A] Lunicipality may not incur Monell liability as a result of

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the actions of its officers when its officers have inflicted no constitutional injury."); Williams v.
Borough of West Chester, 891 F .2d

4~8, 467 (3d Cir. 1989) ("[A municipal defendant] cannot be

vicariously liable under Monell unlesl one of [its] employees is primarily liable under section

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1983 itself."); Mattern v. City ofSea IJsle, 131 F. Supp. 3d 305, 381 (D.N.J. 2015).
.

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In this case, Plaintiffs have failed

provide the Court with any opposition brief on the

Monell claims. However, it appears that Je basis for both Counts 5 and 7 is an alleged failure to
train, as Plaintiffs have not presented evidLce that any of the defendants were acting pursuant to
an official proclamation, policy, or edict

Jr that Defendants acted pursuant to a well-settled,
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permanent, or widespread custom that vidlated Plaintiffs' constitutional rights. Plaintiffs also

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have not presented any evidence that any/ of these Defendants was a policymaker for the
Borough. 7 Further, with respect to Plaintiffs' failure to train/supervise claim, the Court is not
persuaded that Plaintiffs have presented bdence that the Borough acted with deliberate

1

indifference to the known or obvious consequences of its acts or its failure to act. Even if

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Plaintiffs had presented evidence of deliberate indifference, as previously discussed, Plaintiffs

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have not'demonstrated a constitutional injury. Therefore, to the extent that Plaintiffs bring
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claims against the Borough of Point Pllasant for the failure to train/supervise which resulted in

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the deprivation of a Constitutional ri~t and for the existence of a custom, policy, or practice that
resulted in the deprivation of a ConstiLtional right, the Court enters swnmary judgment in favor
of the Borough of Point Pleasant on Jese claims.

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CONCLUSION

For the reasons discussed abore, all three of the Defendants' motions for swnmary

judgment will be granted. An appropriate order will follow.
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Dated: September 5. 2017 I

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It is undisputed that Lawrence W~illiams-Chief of Police of Point Pleasant Borough at the time
of the incident-is not a defendant:here. (JDSOMF ifif 348-49; Pl.'s Resp. JDSOMF ifif 34849).
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