WILLIAMS v. VANDERUD

Filing 31

OPINION filed. Signed by Judge Brian R. Martinotti on 9/26/2017. (mmh)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
____________________________________
PAUL C. WILLIAMS,
:
:
Civil Action No. 16-1245-BRM-DEA
Plaintiff,
:
:
v.
:
ERIC J. VANDERUD, individually and
:
OPINION
in his official capacity,
:
:
Defendant.
:
____________________________________:
MARTINOTTI, DISTRICT JUDGE
Before this Court is Defendant Eric J. Vanderud’s (“Officer Vanderud”) Motion for
Summary Judgment. (ECF No. 19.) Plaintiff Paul C. Williams (“Plaintiff”) opposes the Motion.
(ECF No. 26.) Pursuant to Federal Rule of Civil Procedure 78(b), the Court did not hear oral
argument. For the reasons set forth below, Officer Vanderud’s Motion for Summary Judgment is
GRANTED.
I.

BACKGROUND
On March 6, 2014, Plaintiff reported to the New Jersey Superior Court, New Brunswick,

third floor, in response to a pending temporary restraining order (“TRO”) pursuant to the New
Jersey Prevention of Domestic Violence laws filed by A.J. 1 before the Honorable Marcia L. Silva,
J.S.C. (Pl.’s Statement of Facts (ECF No. 19-2) ¶ 3 and Pl.’s Decl. (ECF No. 26) ¶¶ 2-3.) At all
times relevant, Officer Vanderud and Officer Smith, another court officer, remained on duty in
Judge Silva’s courtroom while she was on the bench. (ECF No. 19-2 ¶ 5 and Def.’s Opp. to Pl.’s

1

The Court uses initials to describe two individuals in this case to protect their identities, since
one was a plaintiff in a domestic violence matter and the other was a witness in that same matter.
1

Statement of Facts (ECF No. 26-2) ¶ 5.) Officer Vanderud, a sheriff’s officer assigned to the
Family Court,
is responsible for security of the Court, its supporting judicial
facilities, and the persons who take part in the court proceedings. He
is tasked with the responsibility for the safety of judges, lawyers,
litigants, witnesses and the judicial staff. His obligations include
deterring violent or disruptive episodes for the area around the
courtrooms and the entire court house.
(ECF No. 19-2 ¶ 2 and ECF No. 26-2 ¶ 2.) Plaintiff and A.J. waited in the hallway of the courthouse
on the third floor for their TRO proceeding. (DVD of Pl.’s Arrest (ECF No. 19-8).)
Plaintiff alleges he was sitting most of the day waiting for the TRO proceeding until he
stood up and “made a comment directed toward [M.P.] 2 – ‘knock it off.’” (ECF No. 19-2 ¶ 6 and
ECF No. 26-2 ¶ 6.) Plaintiff’s comment to “knock it off” was actually about A.J.’s activities. (ECF
No. 19-2 ¶ 7 and ECF No. 26-2 ¶ 7.) Plaintiff alleges A.J. approached “a complete stranger,” who
was “distraught” from her domestic violence proceedings and
started talking to her as she had done throughout the day and I have
been ignoring her throughout the day, walking up to this strange
woman and putting on this show about how she – making comments
that she was more directing towards me to this women to the effect
of I know exactly what you are going through, I am here for
something just like that and this person is not standing too far from
us, you know. Making these bizarre type of scene [sic].
(Pl.’s Dep. (Ex. D to ECF No. 19-5) at 65:11-20.) Plaintiff alleges it had been a long day and
therefore he decided to
finally stand up and just in a joking, sarcastic way of making
conversation with [M.P.], whom I do not have a restraining with, I
cannot address [A.J.] because had I addressed [A.J.] and told her to
knock it off or anything like that, that would be a criminal offense
for violating the domestic violence order. So I did not address [A.J.].
But I finally felt the need to, you know, I am there all day by myself.

2

M.P. was A.J.’s witness is the TRO proceeding. (ECF No. 19-2 ¶ 9 and ECF No. 26-2 ¶ 9.)
2

[A.J.] has, you know, at the time, [M.P.] and I were estranged
friends, if you will, and so I engaged in conversation with [M.P.].
(Id. at 65:23-66:10.) In addition to his “knock it off” comment, Plaintiff stated, “see what happens
when you support psycho,” also referring to A.J. (Id. at 66:11-12 and Pl.’s Decl. (ECF No. 26) ¶
5.) Plaintiff admits he could not directly address A.J., and thus decided to make the comments to
M.P. (ECF No. 19-2 ¶ 6; Pl.’s Decl. (ECF No. 26) ¶ 6.)
Immediately after Plaintiff’s “psycho” comment, A.J. stated she would have to let the
“bailiff” know and walked into the courtroom. (ECF No. 19-2 ¶ 8; Pl.’s Decl. (ECF No. 26) ¶ 6;
ECF No. 26-2 ¶ 8.) A.J. entered Judge Silva’s courtroom, motioned for Officer Vanderud to come
to the door, identified herself as a plaintiff in a domestic violence complaint with a pending TRO
before Judge Silva, and stated Plaintiff, the defendant in her TRO proceeding, was bothering her
witness in the lobby. (ECF No. 19-2 ¶ 9 and ECF No. 26-2 ¶ 9.) Plaintiff admits A.J. told Officer
Vanderud she was “worried.” (Ex. D to ECF No. 19-5 at 71:15-20.) Upon exiting the courtroom,
Officer Vanderud saw five people in the hallway, one being Plaintiff. (ECF No. 19-2 ¶ 10 and ECF
No. 26-2 ¶ 10.)
Officer Vanderud alleges Plaintiff was “arguing loudly with a woman who was standing
against the back wall.” (Def.’s Certif. (Ex. J to ECF No. 19-7) ¶ 6.) Therefore, he approached
Plaintiff, asked him to quiet down, and to relocate to the other end of the hallway. (Id.) Officer
Vanderud contends Plaintiff refused to relocate and began arguing with him by stating “he had a
right to stand, a right to talk to . . . [M.P.], and claiming his first amendment rights were infringed.”
(Id. ¶ 7.) Officer Vanderud asserts Plaintiff then made pointing gestures toward him and M.P, and
Officer Vanderud again told him he was being loud and disorderly and asked him to relocate to
the other end of the hallway. (Id. ¶ 9.) Again, Plaintiff refused. (Id.) Thereafter, Plaintiff allegedly
turned away from Officer Vanderud and “in a loud voice that everyone heard” stated, “where do

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you want me to go sit and is your mother going to be there to f[***] me?” (Id. ¶ 10 and Ex. D to
ECF No. 19-5 at 74:12-16.) Plaintiff admits he intentionally tried “to get under [Officer
Vanderud’s] skin” by making that comment. (Ex. D to ECF No. 19-5 at 90:25-91:2.) As a result,
Officer Vanderud placed Plaintiff under arrest. (Ex. J to ECF No. 19-7 ¶ 11.)
In contrast, Plaintiff alleges that once Officer Vanderud exited the courtroom, Officer
Vanderud approached him from behind, demanded he not talk to anyone, leave the area, and
relocate to another area of the hallway. (Pl.’s Decl. (ECF No. 26) ¶ 7.) He contends Officer
Vanderud pointed aggressively at the other end of the hallway. (Id.) Plaintiff denies that he was
arguing loudly with M.P. (ECF No. 26-2 ¶ 10.) He admits, however, he did not comply with Officer
Vanderud’s demands to relocate, but instead “stood with [his] hands in [his] pockets and calmly
asked Officer Vanderud why he was making such demands and attempted to explain that I was not
bothering [M.P.].” (Id. ¶ 8 and Ex. D to ECF No. 19-5 at 71:2-4.) Plaintiff alleges in response to
his comments, Officer Vanderud insisted Plaintiff not talk to anyone, leave the area, and pointed
aggressively. (Pl.’s Decl. (ECF No. 26) ¶ 9.) Again, Plaintiff refused to relocate and “calmly asked
[Officer Vanderud] if he understood that he was violating my [First] Amendment rights under the
United States Constitution to exercises free speech and association.” (Id. ¶ 10.) Plaintiff alleges
Officer Vanderud responded by “more aggressively” persisting in his demands to have him not
talk to anyone, leave the area, and relocate down the hall. (Id. ¶ 11.) Plaintiff asserts “[i]n response
to [Officer Vanderud’s] persistence . . . [he] smiled, laughed, reluctantly acquiesced, and
proceeded to comply and walk in the direction that [Officer Vanderud] demanded.” (Id. ¶ 12.)
While allegedly complying, Plaintiff admits he made the above comment about Officer

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Vanderud’s mother. (Id. ¶ 13 and Ex. D to ECF No. 19-5 at 74:12-16.) As a result, Officer
Vanderud placed Plaintiff under arrest. (Pl.’s Decl. (ECF No. 26) ¶ 14.) 3
Within moments of the arrest, Officer Vanderud was joined by another sheriff’s officer to
help escort Plaintiff downstairs to the holding cells for processing and detaining purposes. (ECF
No. 19-2 ¶ 15; Ex. D to ECF No. 19-5 at 91; Pl.’s Decl. (ECF No. 26) ¶ 16.) Plaintiff alleges that
on his way to be processed and detained, Officer Vanderud was physically aggressive and verbally
berated him. (Pl.’s Decl. (ECF No. 26) ¶ 17.) He alleges there was some pushing, tugging, and
brushing up against the wall on the way to the processing room. (Ex. D to ECF No. 19-5 at 92-93.)
He further contends Officer Vanderud stated he “doesn’t give a shit about my f[******]
constitution and that I was lucky he didn’t kill me down there.” (Id. at 93:21-24.) He also asserts
Officer Vanderud made other comments to the other sheriff’s officer that were “not necessarily
directed” at him, but were for his “benefit.” (Id. at 94:3-7.) Officer Vanderud alleges he did not
berate Plaintiff or say anything about his constitutional rights, there was no pushing and tugging,
and there was no brushing up against the wall. (Ex. J to ECF No. 19-7 ¶¶ 15-16.)

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The Court has reviewed the video recording of the incident leading up to Plaintiff’s arrest. (ECF
No. 19-8.) While the video has no audio, a quick description of the Court’s observations is
pertinent. Upon exiting the courtroom, Officer Vanderud approached Plaintiff from behind and
began to point towards another direction in the hallway of the courthouse. (Id.) At this time,
Plaintiff was facing the back of a waiting area with his hands in his pockets. (Id.) Plaintiff turned
his head around to look at Officer Vanderud, pointed at an unknown direction and back at Officer
Vanderud, and then continued to talk to Officer Vanderud. (Id.) Officer Vanderud again pointed
down the hallway. (Id.) The parties engaged in a discussion for approximately fifty seconds before
Plaintiff picked up a brief case and began walking towards the area in which Officer Vanderud
was pointing. (Id.) However, in route to that area, he paused, turned around and said something to
Officer Vanderud. (Id.) Officer Vanderud then placed him under arrest. (Id.) Two other sheriff’s
officer’s appeared, one who then disappeared again, and another who helped escort Plaintiff
through a door. (Id.) Officer Vanderud held Plaintiff’s arm as he escorted him through the door.
(Id.)
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Plaintiff alleges that once he arrived for processing, he “was chained to a bench” and then
“locked in a cell.” (Ex. D to ECF No. 19-5 at 95:1-3.) He admits the time between processing and
his release was approximately two hours. (Id. at 96.) Officer Vanderud recalls the time from “arrest
to release” to be approximately one and one-half hours. (Ex. J to ECF No. 19-7 ¶ 17.) As a result
of the events, Officer Vanderud issued Plaintiff a summons charging him with violation of N.J.S.A.
§ 2C:33-2(a)(1), disorderly conduct. (Complaint and Summons (Ex. I to ECF No. 19-7).) Plaintiff
alleges the summons was dismissed with prejudice because video footage was not provided. (Pl.’s
Decl. (ECF No. 26) ¶ 31.)
On March 4, 2016, Plaintiff filed a Complaint against Officer Vanderud in both his
individual and official capacity alleging: (1) Officer Vanderud violated his First Amendment rights
of the United States Constitution (Count I); (2) Officer Vanderud violated his Fourth Amendment
rights of the United States Constitution (Count II); (3) Officer Vanderud violated the New Jersey
Civil Rights Act (“NJCRA”) by falsely arresting/imprisoning him, unreasonably seizing him,
using excessive force during the arrest, and maliciously prosecuted him (Count III); and (4) Officer
Vanderud committed assault and battery upon him (Count IV). (Compl. (ECF No. 1).) On February
22, 2017, Officer Vanderud filed a Motion for Summary Judgment. (ECF No. 19.) Plaintiff
opposes the motion. (ECF No. 26.)
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

6

has the ability to “affect the outcome of the suit under governing law.” Kaucher v. Cty. 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 evaluate the evidence

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and decide the truth of the matter, but to determine whether there is a genuine issue for trial.
Anderson, 477 U.S. at 249. Credibility determinations are the province of the factfinder. Big Apple
BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).
There can be “no genuine issue as to any material fact,” however, if a party fails “to make
a showing sufficient to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322-23. “[A] complete
failure of proof concerning an essential element of the nonmoving party’s case necessarily renders
all other facts immaterial.” Id. at 323; Katz v. Aetna Cas. & Sur. Co., 972 F.2d 53, 55 (3d Cir.
1992).
III.

DECISION
Plaintiff brings claims against Officer Vanderud under 42 U.S.C. § 1983, alleging Officer

Vanderud violated his First Amendment right to exercise free speech and association and violated
his Fourth Amendment right by falsely arresting/imprisoning him, using excessive force when
effectuating the arrest, unreasonably seizing him, and maliciously prosecuting him. 4 (Compl. (ECF
No. 1) ¶¶ 24-35.) He also brings claims under the NJCRA, alleging Officer Vanderud falsely
arrested/imprisoned him, used excessive force when effectuating the arrest, unreasonably seized
him, and maliciously prosecuted him. (Id. ¶¶ 36-39.) Lastly, he argues Officer Vanderud
committed an assault and battery upon him (“state tort claims”). (Id. ¶¶ 39-43.) Officer Vanderud
moves for summary judgment as to Plaintiff’s Fourth Amendment, NJCRA, First Amendment,

4

Although Count II of Plaintiff’s Complaint, alleging violations of the Fourth Amendment, does
not articulate the specific Fourth Amendment violations, the Court construes Plaintiff’s Complaint
to assert Officer Vanderud falsely arrested/imprisoned him, used excessive force when
effectuating the arrest, unreasonably seized him, and maliciously prosecuted him since those are
the exact violations Plaintiff asserts under his NJCRA claim.

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and state tort claims. He also invokes qualified immunity as to Plaintiff’s Fourth Amendment, First
Amendment, and NJCRA claims, arguing there was probable cause to arrest Plaintiff and that
Officer Vanderud did not use excessive force. (See Pl.’s Motion for Summary Judgment (ECF No.
19-3 at 18-20).) The Court will address Plaintiff’s Fourth Amendment, NJCRA, First Amendment,
and state tort claims in turn, turning first to the question of qualified immunity.
A. Immunity and Qualified Immunity
Officer Vanderud argues he is entitled to the protection of qualified immunity as to
Plaintiff’s Fourth Amendment claims because his actions were objectively reasonable. (ECF No.
19-3 at 18-20.) Specifically, he argues he did not violate any clearly established federal statutory
or constitutional rights and that Plaintiff cannot show Officer Vanderud knew or should have
known his acts would violate Plaintiff’s constitutional rights. (Id. at 20.) Plaintiff argues there are
material issues of fact as to whether Officer Vanderud’s actions where objectively reasonable, and
thus Officer Vanderud’s Motion must be denied. (ECF No. 26 at 10.)
Section 1983 provides:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State ... subjects, or causes to be subjected,
any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to
the party injured in an action at law, suit in equity, or other proper
proceeding for redress . . . .
42 U.S.C. § 1983. To state a claim under § 1983, a plaintiff must establish that (1) the conduct
deprived him of his rights, privileges, or immunities secured by the Constitution or laws of the
United States and (2) the conduct challenged was committed by a person acting under color of
state law. Gomez v. Toledo, 446 U.S. 635, 640 (1980); Shuman ex rel. Shertzer v. Penn Manor
Sch. Dist., 422 F.3d 141, 146 (3d Cir. 2005).

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“Section 1983 provides a federal forum to remedy many deprivations of civil liberties, but
it does not provide a federal forum for litigants who seek a remedy against a State . . . . The
Eleventh Amendment bars such suits unless the State has waived its immunity.” Will v. Michigan
Dep’t of State Police, 491 U.S. 58, 66 (1989). Generally, a suit by private parties seeking to impose
a liability, which must be paid from public funds in a state treasury, is barred from federal court
by the Eleventh Amendment, unless Eleventh Amendment immunity is waived by the state or by
a federal statute. See, e.g., Edelman v. Jordan, 415 U.S. 651, 663 (1974). The Eleventh
Amendment also bars suits against state officials, in their official capacity. See Melo v. Hafer, 912
F.2d 628, 635 (3d Cir. 1990), aff’d, 502 U.S. 21 (1991) (citing Kentucky v. Graham, 473 U.S. 159,
165–68 (1985)). The Eleventh Amendment does not, however, bar suits for damages against state
officials in their individual or personal capacity, as such actions seek recovery against the personal
assets of the defendant and the state is not the real party in interest. Melo, 912 F.2d at 635 (citation
omitted). In addition, the Eleventh Amendment does not bar suits against state officials for
declaratory or injunctive relief. See Melo, 912 F.2d at 635 n.5 (citing Ex Parte Young, 209 U.S.
123 (1908)).
Here, Plaintiff seeks a declaratory judgment and damages against Officer Vanderud in his
official and individual capacity. (See ECF No. 1 at 9-10.) Because the Eleventh Amendment bars
suits against state officials in their official capacity for damages, Plaintiff is only entitled to proceed
against Officer Vanderud in his official capacity for declaratory relief and against him in his
individual capacity for damages and declaratory relief. Accordingly, Officer Vanderud’s Motion
is GRANTED as to Plaintiff’s claim for damages against Officer Vanderud in his official capacity.
Government officials, however, may assert a defense of qualified immunity. “The doctrine
of qualified immunity protects government officials from liability for civil damages insofar as their

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conduct does not violate clearly established statutory or constitutional rights of which a reasonable
person would have known.” Montanez v. Thompson, 603 F.3d 243, 249–50 (3d Cir. 2010) (quoting
Pearson v. Callahan, 555 U.S. 223, 231 (2009)). “Qualified immunity balances two important
interests—the need to hold public officials accountable when they exercise power irresponsibly
and the need to shield officials from harassment, distraction, and liability when they perform their
duties reasonably.” Pearson, 555 U.S. at 231. This doctrine provides a government official
immunity from suit rather than a mere defense from liability. Id. Qualified immunity will not,
however, act as a shield for “the official who knows or should know he is acting outside the law.”
Butz v. Economou, 438 U.S. 478, 506–07 (1978).
To determine whether Officer Vanderud is entitled to qualified immunity, the Court must
undertake a two-step inquiry to determine the applicability of qualified immunity:
First, a court must decide whether the facts that a plaintiff has
alleged or shown make out a violation of a constitutional right.
Second, if the plaintiff has satisfied this first step, the court must
decide whether the right at issue was clearly established at the time
of a defendant’s alleged misconduct. Qualified immunity is
applicable unless the official’s conduct violated a clearly established
constitutional right.
Pearson, 555 U.S. at 232 (citations omitted). “Where a defendant asserts a qualified immunity
defense in a motion for summary judgment, the plaintiff bears the initial burden of showing that
the defendant’s conduct violated some clearly established statutory or constitutional right.”
Sherwood v. Mulvihill, 113 F.3d 396, 399 (3d Cir. 1997). “Only if the plaintiff carries this initial
burden must the defendant then demonstrate that no genuine issue of material fact remains as to
the ‘objective reasonableness’ of the defendant’s belief in the lawfulness of his actions.” Id. In
determining whether a defendant is entitled to qualified immunity, the court is “permitted to
exercise their sound discretion in deciding which of the two prongs of the qualified immunity

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analysis should be addressed first in light of the circumstances in the particular case at hand.”
Pearson, 555 U.S. at 236. If the answer to either question is “no,” the analysis ends there. See id.
at 245 (finding that because the unlawfulness of the officers’ conduct was not clearly established,
the officers were entitled to qualified immunity, without having to answer the question of whether
the officers violated the Plaintiff’s constitutional rights).
The Court now turns to Plaintiff’s Fourth Amendment claims to determine the applicability
of qualified immunity.
B. False Arrest
Officer Vanderud argues he had probable cause to arrest Plaintiff. (ECF No. 19-3 at 7-13.)
Specifically, he argues he had probable cause to arrest Plaintiff for violation of N.J.S.A. § 2C:332(a)(1) because Plaintiff violated a TRO he had against him, called A.J. a “psycho,” and repeatedly
refused to obey the reasonable instruction to lower his voice and move away from A.J. (Id. at 1213.) Plaintiff argues there are genuine issues of fact as to whether Officer Vanderud had probable
cause to arrest him. (ECF No. 26 at 8-9.) Specifically, he argues he was not loud, engaged in
protected speech, and was calm during his interaction with Officer Vanderud. (Id. at 9.)
“An arrest without probable cause is a Fourth Amendment violation actionable under
Section 1983.” Lane v. City of Camden, No. 11-5584, 2015 WL 5603039, at *4 (D.N.J. Sept. 23,
2015). To establish a false arrest claim, a plaintiff must prove: “(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). Here, there is no dispute that Officer Vanderud arrested Plaintiff.
Regarding, the second element, the inquiry “is not whether the person arrested in fact committed
the offense but whether the arresting officers had probable cause to believe the person arrested had
committed the offense.” Dowling v. City of Phila., 855 F.2d 136, 141 (3d Cir. 1988); see also

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Andrews v. Scuilli, 853 F.3d 690, 697 (3d Cir. 2017) (noting that because a false arrest claim
“hinge[s] on probable cause, the constitutional violation question . . . turns on whether a reasonable
officer could have believed that probable cause existed to arrest the plaintiff at that time” (citations
omitted)).
The law is well settled in the Third Circuit, “in analyzing false arrest claims, a court to
insulate a defendant from liability need only find that probable cause . . . existed as to any offense
that could be charged under the circumstances.” Johnson v. Knorr, 477 F.3d 75, 84–85 (3d Cir.
2007) (quoting Barna v. City of Perth Amboy, 42 F.3d 809, 819 (3d Cir. 1994)). The Court has
defined probable cause as “facts and circumstances sufficient to warrant a prudent man in believing
that the (suspect) had committed or was committing an offense.” Gerstein v. Pugh, 420 U.S. 103,
111 (1975) (quoting Beck v. Ohio, 379 U.S. 89, 91 (1964)); see Illinois v. Gates, 462 U.S. 213,
232 (1983) (stating that probable cause “is a fluid concept-turning on the assessment of
probabilities in particular factual context-not readily, or even usually, reduced to a neat set of legal
rules”); Orsatti v. N.J. State Police, 71 F.3d 480, 483 (3d Cir. 1995) (“[P]robable cause to arrest
exists when the facts and circumstances within the arresting officer’s knowledge are sufficient in
themselves to warrant a reasonable person to believe that an offense has been or is being committed
by the person to be arrested.”). Probable cause “is a factual analysis from which the officers on the
scene must make an immediate determination.” La v. Hayducka, 269 F. Supp. 2d 566, 576 (D.N.J.
2003).
Although probable cause “requires more than mere suspicion, the law recognizes that
probable cause determinations have to be made on the spot under pressure and do not require the
fine resolution of conflicting evidence that a reasonable doubt . . . standard demands.” Paff v.
Kaltenbach, 204 F.3d 425, 436 (3d Cir. 2000) (citation omitted). To determine whether a law

13

enforcement officer possessed sufficient probable cause to effectuate an arrest, courts analyze the
totality of the circumstances. Kaltenbach, 204 F.3d at 436 (citing Sharrar v. Felsing, 128 F.3d
810, 818 (3d Cir. 1997)). Typically, the existence of probable cause is a factual issue for the jury.
See Halsey v. Pfeiffer, 750 F.3d 273, 300 (3d Cir. 2014). “However, a court may grant summary
judgment if ‘no genuine issue of material fact exists as to whether’ there was probable cause.”
Anderson v. Perez, 677 F. App’x 49, 52 (3d Cir. 2017) (citing Sherwood, 113 F.3d at 401).
In this case, the evidence proffered by Officer Vanderud confirms he had probable cause
to arrest Plaintiff as a matter of law. The record clearly establishes that at the time of Plaintiff’s
arrest, the facts and circumstances within Officer Vanderud’s knowledge were “sufficient in
themselves to warrant a reasonable person to believe that an offense had been or was being
committed by the person to be arrested.” Orsatti, 71 F.3d at 483.
Specifically, Plaintiff admits that on March 6, 2014, immediately after he made the
“psycho” comment, A.J. stated she would have to let the “bailiff” know and walked into the
courtroom. (ECF No. 19-2 ¶ 8; Pl.’s Decl. (ECF No. 26) ¶ 6; ECF No. 26-2 ¶ 8.) A.J. entered Judge
Silva’s courtroom, motioned for Officer Vanderud to come to the door, identified herself as a
plaintiff in a domestic violence complaint with a pending TRO before Judge Silva, and stated
Plaintiff, the defendant in her TRO proceeding, was bothering her witness in the lobby and that
she was “worried.” (ECF No. 19-2 ¶ 9; ECF No. 26-2 ¶ 9; Ex. D to ECF No. 19-5 at 71:15-20.)
For that reason alone, Officer Vanderud had probable cause to arrest Plaintiff for a violation of
N.J.S.A. § 2C:33-2(a)(1), disorderly conduct. N.J.S.A. § 2C:33-2(a)(1) states “[a] person is guilty
of a petty disorderly persons offense, if with purpose to cause public inconvenience, annoyance or
alarm, or recklessly creating a risk thereof he . . . [e]ngages in fighting or threatening, or in violent
or tumultuous behavior.” Plaintiff admits A.J. told Officer Vanderud Plaintiff was “bothering her

14

witness” and that she was “worried.” This was sufficient for Officer Vanderud to believe Plaintiff
committed the offense of disorderly conduct because it satisfied the annoyance element and
threatening element, especially taking into consideration that Plaintiff was at the courthouse to
defend a TRO. Orsatti, 71 F.3d at 483 (“[P]robable cause to arrest exists when the facts and
circumstances within the arresting officer’s knowledge are sufficient in themselves to warrant a
reasonable person to believe that an offense has been or is being committed by the person to be
arrested.”).
Furthermore, Plaintiff also admits Officer Vanderud was
responsible for security of the Court, its supporting judicial
facilities, and the persons who take part in the court proceedings. He
is tasked with the responsibility for the safety of judges, lawyers,
litigants, witnesses and the judicial staff. His obligations includes
deterring violent or disruptive episodes for the area around the
courtrooms and the entire court house.
(ECF No. 19-2 ¶ 2 and ECF No. 26-2 ¶ 2.) Indeed, N.J.S.A. § 2B:6-1(d) establishes that: “The
sheriff of each county shall provide the security for the Law and Chancery Divisions of the
Superior Court sitting in that county in the manner established by the assignment judge in the
county.”

The

website

for

the

Middlesex

County

Sheriff’s

Department,

http://www.middlesexcountynj.gov/Government/Departments/PSH/Pages/Court-Security.aspx,
acknowledges this responsibility, stating that among the duties of its Court Security Division is
the “protection to everyone throughout the Family and Criminal Courthouses. This includes judges
and court personnel as well as the general public.” Therefore, when A.J. entered Judge Silva’s
courtroom on March 6, 2014, motioned for Officer Vanderud to come to the door, identified herself
as a complainant in a domestic violence complaint with a pending TRO before Judge Silva, and
stated Plaintiff, the defendant in her TRO proceeding, was bothering her witness in the lobby and
that she was “worried,” Officer Vanderud was required to at a minimum investigate and insure

15

A.J.’s and her witness were safe and would remain safe. (ECF No. 19-2 ¶ 9; ECF No. 26-2 ¶ 9;
Ex. D to ECF No. 19-5 at 71:15-20.)
In order to ensure the safety of all, Officer Vanderud asked Plaintiff to relocate to another
area of the hallway. Plaintiff admits, however, he did not comply with Officer Vanderud’s
demands to relocate, but instead “stood with [his] hands in [his] pockets and calmly asked [Officer
Vanderud] why he was making such demands and attempted to explain that I was not bothering
[M.P.].” (Pl.’s Decl. (ECF No. 26) ¶ 8 and Ex. D to ECF No. 19-5 at 71:2-4.) Plaintiff alleges in
response to his comments, Officer Vanderud insisted Plaintiff not talk to anyone, leave the area,
and pointed aggressively. (ECF No. 26 ¶ 9.) Again, Plaintiff refused to relocate and “calmly asked
[Officer Vanderud] if he understood that he was violating my [First] Amendment rights under the
United States Constitution to exercises free speech and association.” (Id. ¶ 10.) Plaintiff alleges
Officer Vanderud responded by “more aggressively” persisting in his demands to have him not
talk to anyone, leave the area, and relocate down the hall. (Id. ¶ 11.) Plaintiff asserts “[i]n response
to [Officer Vanderud’s] persistence . . . [he] smiled, laughed, reluctantly acquiesced, and
proceeded to comply and walk in the direction that [Officer Vanderud] demanded.” (Id. ¶ 12.)
While allegedly about to comply, Plaintiff admits he turned around and asked Officer Vanderud
“where do you want me to go sit and is your mother going to be there to f[***] me?” (Id. ¶ 13 and
Ex. D to ECF No. 19-5 at 74:12-16.)
These facts and circumstances encountered by Officer Vanderud were “sufficient in
themselves to warrant a reasonable person to believe that an offense had been or was being
committed by the person to be arrested.” Orsatti, 71 F.3d at 483. Plaintiff refusing to relocate on
two separate occasions and then beginning to relocate, but making obnoxious comments to “get
under [Officer Vanderud’s] skin” could be reasonably perceived as being done with the purpose

16

to cause “public inconvenience, annoyance or alarm” in violation of N.J.S.A. § 2C:33-2(a)(1). (See
Ex. D to ECF No. 19-5 at 90:25-91:2.) Moreover, Plaintiff’s comments about Officer Vanderud’s
mother to get under his skin, combined with A.J.’s worry and the fact that Plaintiff was at the
courthouse to defend a TRO satisfy the “threatening” element of N.J.S.A. § 2C:33-2(a)(1).
Because no genuine issue of material fact exists as to whether there was probable cause to arrest
Plaintiff, the Officer Vanderud’s Motion to Dismiss Plaintiff’s false arrest claim is GRANTED.
A finding that Officer Vanderud did not violate Plaintiff’s Fourth Amendment right ends the
qualified immunity inquiry; Plaintiff cannot make out a claim for false arrest and therefore cannot
allege a violation of a constitutional right. See Pearson, 555 U.S. at 232; Trafton v. City of
Woodbury, 799 F. Supp. 2d 417, 439 (D.N.J. 2011).
C. False Imprisonment
Although Plaintiff’s Complaint does not specifically articulate a claim for false
imprisonment pursuant to the Fourth Amendment, the Court construes Plaintiff’s Complaint to
assert Officer Vanderud falsely imprisoned him. Since Plaintiff’s Complaint did not specifically
articulate a claim for false imprisonment, Officer Vanderud does not directly seek to dismiss that
claim in his Motion. However, Officer Vanderud does argue “Plaintiff fails to establish any claim
for relief under 42 U.S.C. § 1983 for violation of both his Federal or State of New Jersey
constitutional rights.” (ECF No. 19-3 at 17 (emphasis added).) Further, Officer Vanderud argues
he had probable cause to arrest Plaintiff. (Id. at 7-13.) Because an arrest based on probable cause
cannot be the basis for a false imprisonment claim, the Court construes Officer Vanderud’s Motion
to seek dismissal of Plaintiff’s false imprisonment claim.
If there is a false arrest, “the arrestee has a claim under § 1983 for false imprisonment based
on a detention pursuant to that arrest.” Groman v. Township of Manalapan, 47 F.3d 628, 636 (3d

17

Cir.1995). But an arrest based on probable cause cannot be the basis for a false imprisonment
claim. Id. This Court has concluded Officer Vanderud had probable cause to arrest Plaintiff, so the
subsequent detention of Plaintiff did not violate his constitutional rights. Accordingly, Officer
Vanderud’s Motion to Dismiss Plaintiff’s false imprisonment claim is GRANTED. A finding that
Officer Vanderud did not violated Plaintiff’s Fourth Amendment right ends the qualified immunity
inquiry; Plaintiff cannot make out a claim for false imprisonment and therefore cannot allege a
violation of a constitutional right. See Pearson, 555 U.S. at 232; Trafton, 799 F. Supp. 2d at 439.
D. Malicious Prosecution
Although Plaintiff’s Complaint does not specifically articulate a claim for malicious
prosecution pursuant to the Fourth Amendment, the Court construes Plaintiff’s Complaint to assert
Officer Vanderud maliciously prosecuted him. Since Plaintiff’s Complaint did not specifically
articulate a claim for malicious prosecution, Officer Vanderud does not directly seek to dismiss
that claim in his Motion. However, Officer Vanderud does argue “Plaintiff fails to establish any
claim for relief under 42 U.S.C. § 1983 for violation of both his Federal or State of New Jersey
constitutional rights.” (ECF No. 19-3 at 17 (emphasis added).) Further, Officer Vanderud argues
he had probable cause to arrest Plaintiff. (Id. at 7-13.) Because an arrest based on probable cause
cannot be the basis for a malicious prosecution claim, the Court also construes Officer Vanderud’s
Motion to seek dismissal of Plaintiff’s malicious prosecution claim.
To prove malicious prosecution under § 1983 when the claim is under the Fourth
Amendment, a plaintiff must demonstrate:
(1) the defendant initiated a criminal proceeding; (2) the criminal
proceeding ended in his favor; (3) the defendant initiated the
proceeding without probable cause; (4) the defendant acted
maliciously or for a purpose other than bringing the plaintiff to
justice; and (5) the plaintiff suffered deprivation of liberty consistent
with the concept of seizure as a consequence of a legal proceeding.

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Johnson, 477 F.3d at 81-82 (citing Estate of Smith v. Marasco, 318 F.3d 497, 521 (3d Cir.2003)).
A claim for malicious prosecution will fail if it has been determined that probable cause existed in
considering a false arrest claim. See id. at 86. Officer Vanderud had probable cause to arrest
Plaintiff, so the subsequent prosecution of Plaintiff did not violate his constitutional rights.
Accordingly, Officer Vanderud’s Motion to Dismiss Plaintiff’s malicious prosecution claim is
GRANTED. A finding that Officer Vanderud did not violated Plaintiff’s Fourth Amendment right
ends the qualified immunity inquiry; Plaintiff cannot make out a violation of malicious prosecution
and therefore cannot allege a violation of a constitutional right. See Pearson, 555 U.S. at 232;
Trafton, 799 F. Supp. 2d at 439.
E. Excessive Force/Unreasonable Seizure
Officer Vanderud argues he did not use an unreasonable force in arresting Plaintiff. (ECF
No. 19-3 at 14-17.) Specifically, he argues the video shows no force was used during the arrest
and “the Court should draw no inference that is inconsistent with the video evidence.” (Id. at 15.)
He further argues Plaintiff admits he sustained no injuries due to the alleged “force.” (Id. at 16.)
Plaintiff argues there is an issue of fact as to whether or not Officer Vanderud used excessive force.
(ECF No. 26 at 9-10.)
“To state a claim for excessive force as an unreasonable seizure under the Fourth
Amendment, a plaintiff must show that a ‘seizure’ occurred and that it was unreasonable.” Brower
v. Cty. of Inyo, 489 U.S. 593, 599 (1989); see also Graham v. Connor, 490 U.S. 386, 395 (1989)
(“[A]ll claims that law enforcement officers have used excessive force—deadly or not—in the
course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under
the Fourth Amendment and its ‘reasonableness’ standard”). “The use of excessive force is itself

19

an unlawful ‘seizure’ under the Fourth Amendment.” Couden v. Duffy, 446 F.3d 483, 496 (3d Cir.
2006).
“To determine the reasonableness of a seizure, the court asks whether the officer’s conduct
was ‘objectively reasonable’ in light of the totality of the circumstances, without regard to the
underlying intent or motivation.” Noble v. City of Camden, 112 F. Supp. 3d 208, 227 (D.N.J. 2015)
(citing Graham, 490 U.S. at 397); Kopec v. Tate, 361 F.3d 772, 776 (3d Cir. 2004). The “objective
reasonableness” inquiry requires an examination of the “facts and circumstances of each particular
case, including the severity of the crime at issue, whether the suspect poses an immediate threat to
the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade
arrest by flight.” Graham, 490 U.S. at 396. The Court should not apply “the 20/20 vision of
hindsight,” but should instead consider the “perspective of a reasonable officer on the scene.” Id.
The Supreme Court has provided that “[n]ot every push or shove, even if it may later seem
unnecessary in the peace of a judge’s chambers, violates the Fourth Amendment.” Id. (citation
omitted). Rather, “[t]he calculus of reasonableness must embody allowance for the fact that police
officers are often forced to make split-second judgments—in circumstances that are tense,
uncertain, and rapidly evolving—about the amount of force that is necessary in a particular
situation.” Id.
In Cincerella v. Egg Harbor Tp. Police Dep’t, No. 06–1183, 2009 WL 792489 (D.N.J.
March 23, 2009), this Court noted several factors the Third Circuit found relevant in determining
whether a plaintiff’s treatment after arrest constituted excessive force. These factors included:
the intensity of the plaintiff’s pain, the officer’s awareness of the
plaintiff’s pain, whether the plaintiff asked to have the handcuffs
removed and how long after those requests the handcuffs are
removed, whether there were circumstances justifying a delay in
removing the handcuffs, and the severity of the injury the plaintiff
suffered.

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Cincerella, 2009 WL 792489, at *10 (D.N.J. March 23, 2009) (citations omitted); see Gilles v.
Davis, 427 F.3d 197, 207-08 (3d Cir. 2005) (finding insufficient evidence of excessive force where
plaintiff claimed his singing should have alerted police to his pain, there were no “obvious visible
indicators” of plaintiff’s pain, plaintiff did not express discomfort when handcuffed, and plaintiff
did not “seek or receive medical treatment after the fact”). “While the absence of physical injury
does not necessarily signify that the force was not excessive, excessive force claims must be so
egregious as to be constitutionally excessive, and the presence of some physical injury is relevant
to that determination.” White v. City of Trenton, No. 06-5177, 2011 WL 6779595, at *5 (D.N.J.
Dec. 27, 2011), on reconsideration in part, 848 F. Supp. 2d 497 (D.N.J. 2012) (citing Sharrar,
128 F.3d at 822); see also Gulley v. Elizabeth City Police Dep’t, 340 F. App’x. 108, 110 n.2 (3d
Cir. 2009) (“[T]he absence of physical injury does not necessarily signify that the force has not
been excessive. Rather, it is simply one of the circumstances to be considered under the objective
reasonableness standard . . . .”) (citation omitted).
There is no dispute that Plaintiff was seized. Therefore, this Court need only determine
whether Officer Vanderud’s use of force in seizing Plaintiff was objectively reasonably. In his
Complaint, Plaintiff asserts while on his way to be processed and detained, Officer Vanderud was
physically aggressive and verbally berated him. (ECF No. 1 ¶ 17.) In his deposition, he clarifies
that Officer Vanderud had a “hand on” his arm the entire time as he walked him down to
processing. (Ex. D to ECF No. 19-5 at 92:8-16.) He further alleges there was some “pushing and
tugging” conducted by Officer Vanderud on his way to the processing area and that he “brushed
up against the wall.” (Id. at 92:17-93:9.) However, he admits he did not fall, hit a door, injure
himself, or sustain any bruising. (Id. at 93:5-15.)

21

Based on the record, no reasonable jury could determine Officer Vanderud subjected
Plaintiff to excessive force. First, Plaintiff admits he sustained no injuries. White, 2011 WL
6779595, at *5 (“While the absence of physical injury does not necessarily signify that the force
was not excessive, excessive force claims must be so egregious as to be constitutionally excessive,
and the presence of some physical injury is relevant to that determination.”). Second, “pushing and
tugging” and brushing up against, but not hitting or banging Plaintiff against the wall, is not
excessive force. Graham, 490 U.S. at 396 (finding “[n]ot every push or shove, even if it may later
seem unnecessary in the peace of a judge’s chambers, violates the Fourth Amendment”). Officer
Vanderud used appropriate force in a good faith effort to escort and direct Plaintiff to the
processing area, by “pushing” and “tugging” on him as needed for direction. Indeed, the video
reveals Officer Vanderud held Plaintiff’s arm to escort him through the door and to guide him to
the processing area. (ECF No. 8.) No force is displayed in the video, but a slight “tug” or abrupt
pause to prevent Plaintiff from walking as Officer Vanderud stopped to talk to another sheriff’s
officer. (Id.) Accordingly, Officer Vanderud’s Motion for Summary Judgment as to Plaintiff’s
excessive force and unreasonable seizure claim is GRANTED. A finding that Officer Vanderud
did not violated Plaintiff’s Fourth Amendment right ends the qualified immunity inquiry, since
Plaintiff cannot make out a violation of excessive force. See Pearson, 555 U.S. at 232; Trafton,
799 F. Supp. 2d at 439.
F. NJCRA
Officer Vanderud argues Plaintiff fails to establish any claim under the NJCRA. (ECF No.
19-3 at 17.) Plaintiff argues his NJCRA claims cannot be dismissed because the New Jersey Torts
Claims Act (“NJTCA”) notice requirement does not apply to Plaintiff’s NJCRA claims. (ECF No.
26 at 10-11.) While Plaintiff is correct, Plaintiff misconstrues Officer Vanderud’s argument. See

22

Owens v. Feigin, 194 N.J. 607, 614 (2008) (holding the notice requirements of the NJTCA do not
apply to the NJCRA). Officer Vanderud does not argue Plaintiff’s NJCRA claims are barred by
the NJTCA, but instead that Plaintiff has failed to establish a claim for relief for his NJCRA claims.
(ECF No. 19-3 at 17.) Officer Vanderud’s does, however, argue Plaintiff’s state tort claims should
be dismissed for failure to comply with the NJTCA notice requirements. (Id. at 21.) Plaintiff’s
state tort claims will be addressed in Section H below.
The NJCRA provides, in pertinent part, a private cause of action to
[a]ny person who has been deprived of any substantive due process
or equal protection rights, privileges or immunities secured by the
Constitution or laws of the United States, or any substantive rights,
privileges or immunities secured by the Constitution or laws of this
State, or whose exercise or enjoyment of those substantive rights,
privileges or immunities has been interfered with or attempted to be
interfered with, by threats, intimidation or coercion by a person
acting under color of law.
N.J.S.A. § 10:6–2(c). The NJCRA was modeled after Section 1983, and “courts in New Jersey
have consistently looked at claims under the NJCRA ‘through the lens of [Section] 1983[,]’”
thereby construing the NJCRA in terms similar to its federal counterpart. Samoles v. Lacey Twp.,
No. 12–3066, 2014 WL 2602251, at *15 (D.N.J. June 11, 2014) (citation omitted); Hartfelder v.
N.J. State Police, No. 165461, 2017 WL 3184173, at *5 (D.N.J. July 26, 2017); Armstrong v.
Sherman, No. 09–716, 2010 WL 2483911, *5 (D.N.J. June 4, 2010). This Court has repeatedly
interpreted the NJCRA analogously to § 1983. See Chapman v. New Jersey, No. 08–4130, 2009
WL 2634888, *3 (D.N.J. August 25, 2009) (“Courts have repeatedly construed the NJCRA in
terms nearly identical to its federal counterpart”); Armstrong, 2010 WL 2483911 at *5 (“[T]he
[NJRCA] is a kind of analog to section 1983”). The NJCRA is therefore generally interpreted
nearly identically to § 1983 and claims under the NJCRA are generally coterminous with and

23

subject to the same defenses and immunities as those brought under § 1983. Trafton, 799 F. Supp.
2d at 443-44.
Therefore, the Court will analyze Plaintiff’s NJCRA claims through the lens of Section
1983. Middleton v. City of Ocean City, No. 12-0605, 2014 WL 2931046, at *6 (D.N.J. June 30,
2014) (noting New Jersey courts apply virtually the same standard under state law for malicious
prosecution claims); See Lucia v. Carroll, No. 12–3787, 2014 WL 1767527, at *3–5 (D.N.J. May
2, 2014) (granting summary judgment in the officer’s favor on his Fourth Amendment false arrest
claim and corresponding malicious prosecution claim on the grounds that the officer had probable
cause to arrest and holding because the analysis for the plaintiff’s corresponding claims under N.J.
Const. art. I ¶ 7 and NJCRA would be the same, the officer was entitled to summary judgment on
those claims as well); see also Norcross v. Town of Hammonton, No. 04-2536, 2008 WL 9027248,
at *4 (D.N.J. Feb. 5, 2008) (“The New Jersey Supreme Court does not appear to have spoken on
whether excessive force is a context where state law provides greater protection than does federal
law. This Court sees no reason to conclude that in the context of a claim for excessive force during
an arrest, the standard under the New Jersey Constitution for evaluating those claims is different
from that under the United States Constitution.”).
For the reasons expressed in connection with the Section 1983 analyses above, Officer
Vanderud’s Motion to Dismiss with respect to Plaintiff’s NJCRA claims (Count III) is
GRANTED.
G. First Amendment
Plaintiff asserts a First Amendment retaliation claim against Officer Vanderud in his
Complaint. (ECF No. 1 ¶¶ 24-32.) Specifically, he argues Officer Vanderud arrested him for
engaging in protected activity such as speaking to A.J’s witness in the hallway of the courtroom,

24

asking the officer questions, and telling the officer “where do you want me to go sit and is your
mother going to be there to f[***] me?” (See id.) Although Officer Vanderud’s Motion does not
single out Plaintiff’s First Amendment claim and argue summary judgment should be granted for
independent reasons it generally argues there was probable cause to arrest Plaintiff and Officer
Vanderud is entitled to qualified immunity. (ECF No. 19-3 at 7-13.) However, Officer Vanderud’s
reply brief, argues Plaintiff’s “[F]irst [A]mendment claim fails because [Officer Vanderud] only
sought to edge [Plaintiff’s] up the hall in order to defuse the situation.” (ECF No. 30-1 at 3-4.)
Accordingly, the Court construes Officer Vanderud’s Motion to seek summary judgment as to
Plaintiff’s First Amendment claim.
The First Amendment to the United States Constitution states:
Congress shall make no law respecting an establishment of religion,
or prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people peaceably to
assemble, and to petition the Government for a redress of
grievances.
U.S. Const. Amend. I. To prove a First Amendment retaliation claim a plaintiff must prove: “first,
that she engaged in protected activity; second, that the government responded with retaliation;
third, that this protected activity was the cause of the government’s retaliation.” Pulice v. Enciso,
39 F. App’x 692, 696 (3d Cir. 2002); Hill v. Borough of Kutztown, 455 F.3d 225, 241 (3d Cir.
2006) (“To state a First Amendment retaliation claim, a plaintiff must allege two things (1) that
the activity in question is protected by the First Amendment, and (2) that the protected activity
was a substantial factor in the alleged retaliatory action.”).
However, “if probable cause existed to arrest Plaintiff for criminal conduct, Plaintiff may
not maintain his claim that he was instead arrested for protected speech.” Whaley v. Borough of
Collingswood, No. 10-4343, 2012 WL 2340308, at *13 (D.N.J. June 18, 2012); see Pulice, 39 F.

25

App’x at 696 (affirming summary judgment against plaintiff's First Amendment claim of
retaliatory arrest where plaintiff was not arrested for expressing her views but for violating the
law); Mesa v. Prejean, 543 F.3d 264, 273 (5th Cir. 2008) (where probable cause exists, “any
argument that the arrestee’s speech as opposed to her criminal conduct was the motivation for her
arrest must fail”). Because the Court finds there was probable cause to arrest Plaintiff, Officer
Vanderud’s Motion for Summary Judgment as to Plaintiff’s First Amendment claim is
GRANTED. Plaintiff was not arrested for his free speech, but because he acted unlawfully and
violated N.J.S.A. § 2C:33-2(a)(1).
H. Assault and Battery
Officer Vanderud argues Plaintiff’s assault and battery claims must be “dismissed with
prejudice” for failure to comply with NJTCA’s notice requirements. (ECF No. 19-3 at 21.) Plaintiff
does not dispute this argument. Instead, he argues his NJCRA claims cannot be dismissed because
the NJTCA notice requirement does not apply to his NJCRA claims. (ECF No. 26 at 10-11.)
The NJTCA provides, “[n]o action shall be brought against a public entity or public
employee under this Act unless the claim upon which it is based shall have been presented in
accordance with the procedures set forth in this chapter.” N.J.S.A. § 59:8-3. A tort claim notice
“must be served upon the public entity within 90 days of the accrual of the claim, and failure to do
so will forever bar the claimant from recovering against a public entity or public employee.”
N.J.S.A. § 59:8-8.
The accrual date under the NJTCA is generally the date on which the alleged tort is
committed. Beauchamp v. Amedio, 164 N.J. 111, 116-17 (2000). The requirement to serve a tort
claim notice applies to claims based on negligence and intentional torts. See Velez v. City of Jersey
City, 180 N.J. 284, 286 (2004). However, the requirement that a plaintiff serve a tort claim notice

26

for intentional torts only relates to claims arising after June 29, 2004. See id. at 296-97 (interpreting
the NJTCA’s notice requirements to apply also to claims for intentional torts, but stating that the
holding “applied prospectively to all similar causes of action accruing after [June 29, 2004]”); see
also Hernandez v. City of Union City, 2008 WL 364275, *3 (3d Cir. 2008). Therefore, to determine
whether a plaintiff’s untimely notice of claim bars its state tort claims, first it must be determined
if the plaintiff has alleged claims for intentional torts. If so, it must then be determined whether
those claims accrued prior to June 29, 2004.
Plaintiff concedes he never filed a notice of claim prior to filing suit in this Court. (See
ECF No. 26 at 10-11 (arguing the notice requirement is not applicable, instead of rebutting Officer
Vanderud’s argument that he did not file a notice of claim).) Further, Plaintiff failed to submit any
evidence demonstrating he served a tort claim notice on Officer Vanderud. Accordingly, the Court
is barred by N.J.S.A. § 59:8–8 from considering Plaintiff’s state tort claims. See, e.g., Guzman v.
City of Perth Amboy, 214 N.J. Super. 167, 171-72 (App. Div. 1986) (holding that plaintiff’s claims
were barred because plaintiff failed to comply with the notice requirement under N.J.S.A. § 59:8–
8).
Although Plaintiff has not moved to file a late notice of claim, the Court notes that it has
no discretion to grant him the opportunity to do so. The NJTCA states that a claimant who fails to
file a notice of claim within 90 days “may, in the discretion of a judge of the Superior Court, be
permitted to file such notice at any time within one year after the accrual of his claim provided that
the public entity or the public employee has not been substantially prejudiced thereby.” N.J.S.A.
§ 59:8–9. Here, however, Plaintiff’s claim accrued on March 6, 2014, and the one-year limitation
expired on March 6, 2015. “After the one-year limitation has passed, ‘the court is without authority
to relieve a plaintiff from his failure to have filed a notice of claim, and a consequent action at law

27

must fail.’” Pilonero v. Twp. of Old Bridge, 236 N.J. Super. 529, 532-33 (App. Div. 1989) (quoting
Speer v. Armstrong, 168 N.J. Super. 251, 255-56 (App. Div. 1979)).
Because Plaintiff did not file a notice of claim pursuant to N.J.S.A. § 59:8–8, Officer
Vanderud’s Motion as to Plaintiff’s state tort claims (Count IV) is GRANTED.
IV.

CONCLUSION
For the reasons set forth above, Officer Vanderud’s Motion for Summary Judgment is

GRANTED in its entirety.

Date: September 26, 2017

/s/ Brian R. Martinotti___________
HON. BRIAN R. MARTINOTTI
UNITED STATES DISTRICT JUDGE

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