SHOFFLER v. CAPE MAY COUNTY NEW JERSEY

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

______________________________

:

WILLIAM M. SHOFFLER, :

:

Plaintiff, : Civ. No. 17-4859 (NLH)(JS)

:

v. : OPINION

:

THE CITY OF WILDWOOD NEW :

JERSEY, CITY OF WILDWOOD JOHN/:

JANE DOE DECISION MAKERS 1-10,:

CHRISTOPHER CHOBERT, JAMES :

STEVENS, JOHN/JANE DOE CITY OF:

WILDWOOD POLICE OFFICERS 1-10,:

THE CITY OF WILDWOOD POLICE :

DEPARTMENT, CAPE MAY COUNTY :

NEW JERSEY, CAPE MAY COUNTY :

CORRECTIONAL FACILITY, CAPE :

MAY COUNTY JOHN/JANE DOE :

DECISION MAKERS 1-10, CAPE MAY:

COUNTY OFFICE OF THE SHERIFF, :

SHERIFF GARY G. SCHAFFER, :

JOHN/JANE DOE CAPE MAY COUNTY :

CORRECTIONAL FACILITY :

EMPLOYEES, AGENTS, and/or :

SERVANTS 1-10, and JOHN/JANE :

DOE SHERIFF OFFICERS 1-10, :

:

Defendants. :

______________________________:

APPEARANCES:

Richard F. Klineburger, III, Esq.

Klingburger & Nussey

38 North Haddon Ave.

Haddonfield, NJ 08033

Counsel for Plaintiff

Richard L. Goldstein, Esq.

Marshall, Dennehey, Warner, Coleman & Goggin, P.A.

1500 Midatlantic Drive

Mount Laurel, NJ 08054

Counsel for the Cape May Defendants

Vanessa Elaine James, Esq.

A. Michael Barker, Esq.

Barker, Gelfand & James

210 New Road

Linwood, NJ 08221

Counsel for the Wildwood Defendants

HILLMAN, District Judge

This case concerns an arrest and subsequent detention that

Plaintiff William M. Shoffler experienced after he repeatedly

swam naked in the Wildwood Bay in front of the Wharf Restaurant,

in Wildwood, New Jersey. He was subsequently processed at the

Wildwood Police Station and then transported to the Cape May

County Correctional Facility in Cape May Court House, New Jersey

until he was bailed out the next day.

The Complaint asserts various federal and state law claims

related to his arrest and his treatment during his hours long

detention. ECF No. 1. Plaintiff has asserted these claims

against the City of Wildwood, the Wildwood Police Department,

Wildwood Police Officers Chobert and Stevens, Cape May County,

Cape May County Correctional Facility, the Cape May County

Sheriff’s Office, Cape May County Sheriff Gary G. Schaffer, and

various John and Jane Doe defendants from these entities. Id.

Defendants Cape May County Correctional Facility and the Cape

May Office of the Sheriff were previously dismissed pursuant to

a motion to dismiss based on a lack of liability pursuant to

Monell. ECF Nos. 24 (opinion), 25 (order).

At issue are Defendants’ Motions for Summary Judgment,

which are ripe for adjudication. See ECF Nos. 37 (Cape May

Motion), 38 (Wildwood Motion). The Court has subject-matter

jurisdiction over this case pursuant to 28 U.S.C. § 1331, as

this case concerns a federal question. For the reasons that

follow, the Court will grant the Motion and also sua sponte

dismiss the unidentified John/Jane Doe defendants pursuant to

Federal Rule of Civil Procedure 21.

I. Factual Background

On or about June 30, 2017, Plaintiff filed his Complaint.

ECF No. 37-2 at 1. Plaintiff named as Defendants Cape May

County, Cape May County Correctional Facility, Cape May County

Office of the Sheriff, and Sheriff Gary G. Schaffer as

Defendants. Id. at 2. Plaintiff also named various John/Jane

Does as it pertains to Cape May County Defendants. Id. Cape

May County Correctional Facility and Cape May County Office of

the Sheriff are departments within Cape May County and are not

separate legal entities that can sue or be sued. Id. These

entities were dismissed as a result of a partial motion to

dismiss. See ECF Nos. 24, 25.

Plaintiff also named as defendants The City of Wildwood,

the Wildwood Police Department, and Wildwood Officers Chobert

and Stevens, as well as various John/Jane Doe defendants. See

ECF No. 1. Plaintiff has never filed an amended complaint and

therefore there are no additional individual defendants.

Plaintiff’s residence during the times relevant to the

Complaint was located at 539 West Burk Avenue. ECF No. 38-1 at

2. During all times relevant herein, Plaintiff also owned a

property located at 704-06 West Burk Avenue. Id. The property

located at 704-06 West Burk Avenue is a waterfront property; it

is located on the Wildwood Bay. Id.

The property consists of a small fenced in area between two

parking lots with a shed located within the fenced in area; it

is not a residential property. Id. The shed on the property,

which according to Plaintiff is approximately 12 feet by 14

feet, is used for a kayak rental business. Id.

The Wharf Restaurant is located adjacent to Plaintiff’s

property at 708 West Burk Avenue and is also waterfront. Id. at

3. According to Plaintiff, in the evening of June 30, 2015,

after doing some work around his 704-06 West Burk Avenue

property with non-parties Gary Meyer and Plaintiff’s girlfriend

Michelle Walsh, Plaintiff decided to take a swim in the bay.

Id. According to Plaintiff, he “probably had a couple beers

through the day” of June 30, 2015. Id. Ms. Walsh recalls

seeing Plaintiff consume two beers on June 30, 2015. Id.

According to Plaintiff, he was swimming in the bay when the

shorts he was wearing “came off.” Id. Plaintiff describes the

shorts “like a corduroy short, not a bathing suit.” Id.

Plaintiff was then observed swimming naked in Wildwood Bay by

the Wharf Restaurant’s manager, Ron Lebenski. Manager Lebenski

called the Wildwood Police Department and reported that

Plaintiff was swimming naked and that this was disturbing the

Wharf’s patrons. Id. at 4.

According to Plaintiff, he heard someone from the Wharf

Restaurant yell at him as he was coming out of the water naked,

but Plaintiff does not recall what was said. Id. Ms. Walsh

recalls seeing Plaintiff come out of the water without his

shorts on. Id.

Wildwood Police Officers Christopher Chobert and James

Stevens responded to Manager Lebenski’s call at the Wharf

Restaurant at approximately 7:44 p.m. on June 30, 2015. Id.

Upon arrival at the Wharf Restaurant, Officer Chobert spoke with

the caller. Id. at 5. Manager Lebenski informed Officer

Chobert that he had observed Plaintiff swimming naked in the

water alongside the Wharf. Id. Manager Lebenski informed

Officer Chobert that Plaintiff, who was known to Manager

Lebenski, owned the property adjacent to the restaurant. Id.

Manager Lebenski stated that Plaintiff was in the water

completely naked and that this caused a number of the

restaurant’s patrons to complain and become alarmed. Id. There

are photographs and a video showing Plaintiff naked and walking

near the water. Id.

After speaking with Manager Lebenski, Officer Chobert made

contact with Plaintiff. Id. He approached Plaintiff’s property

and observed Plaintiff standing naked inside a shed on the

property. Id. Officers Stevens and Chobert walked through the

open gate of Plaintiff’s property to speak with Plaintiff. Id.

at 6. Plaintiff was advised that he was not permitted to swim

naked. Id. Plaintiff saw the officers approach the property

and began yelling and cursing at them. Plaintiff began to yell

obscenities such as “Fuck you cops,” and “Fuck South Jersey

cops.” Id.

Plaintiff’s yelling caused several nearby residents to come

outside to investigate the commotion. Id. Based on Plaintiff’s

behavior, Officer Chobert issued Plaintiff a local ordinance

summons for disorderly conduct. Id. Manager Lebenski also

signed a criminal complaint against Plaintiff for disorderly

conduct. Id. Officers Chobert and Stevens then left the scene.

Id.

At his deposition, Plaintiff stated that he remembered that

a police officer showed up on his property and entered his shed.

Id. at 6-7, 8. He remembers them coming to the property and

telling him that he shouldn’t be there with no clothes on. Id.

at 6-7. Plaintiff then agreed with the police officer. Id. at

7. Plaintiff recalls putting his shorts back on sometime after

the officers arrived. Id. Plaintiff stated that he did not

recall anything else regarding the conversation with the

officers at that time. Id. at 7. After the conversation,

Plaintiff recalls that the officers left Plaintiff’s property.

Id. at 8.

Ms. Walsh recalls an officer telling Plaintiff that he

could not swim naked and that the police had received complaints

from the Wharf regarding Plaintiff’s swimming naked. Id. Ms.

Walsh recalls Plaintiff telling the officer that his shorts

“slipped off” and the officer told Plaintiff “not to do it

again.” Id. Ms. Walsh does not recall anything else about the

initial interaction between Plaintiff and the Wildwood police

officers. Id.

According to Plaintiff, after the officers left, Plaintiff

went to take another swim and “basically the same happened” and

his shorts came off again. Id. at 8. Officer Stevens was again

dispatched to the 700 block of West Burk Avenue based on a

report that Plaintiff was once again swimming naked in the water

near his property despite the prior warning and summons issued

to him earlier that day. Id.

Upon his arrival back to Plaintiff’s property, Officer

Stevens observed Plaintiff exiting the bay naked. Id. Officer

Stevens approached Plaintiff and informed Plaintiff that he was

under arrest. Id. at 9. Plaintiff was initially resistant,

pulling away from Officer Stevens and tightening his arms in

response to the officer’s attempt to handcuff him. Id. Officer

Stevens advised Plaintiff many times to stop resisting. Id. He

then brought Plaintiff to the ground in order to affect the

arrest and to overcome his resistance. Id.

According to Plaintiff, “the next thing” he knew, he was

pushed face down in the sand and handcuffed behind his back.

Id. Plaintiff also believes that “a few words might have been

exchanged” between him and Officer Stevens when Plaintiff was on

the ground but he does not recall what was said. Id. Plaintiff

does believe that he was told to put his hands behind his back.

Id. Plaintiff was still naked when he was handcuffed but he was

allowed to get dressed. Id. at 10. Officer Stevens was able to

locate a pair of shorts and Plaintiff was allowed to put them

on. Id.

At no time did Plaintiff advise Officer Stevens that he was

in any pain or that the handcuffs were too tight. Id. Officer

Stevens recalls that the arrest took place near the water

outside of the fenced in area of Plaintiff’s property. Id.

Officer Stevens then transported Plaintiff to police

headquarters for processing at approximately 8:13 p.m. Id.

Plaintiff does not recall the discussion with Officer Stevens

after he returned to his property but “does not believe” that he

was belligerent or aggressive towards him. Id.

Ms. Walsh did not observe Plaintiff going into or coming

out of the water on the second occasion but did observe

Plaintiff without his shorts on. Id. When Ms. Walsh observed

Plaintiff and the officers, Plaintiff was already on the ground;

she had just come out of the shed. Id. at 11. She did observe

Plaintiff get taken to the ground. Id. She recalls hearing the

police officer tell Plaintiff to “hold still” while Plaintiff

was on the ground and she told the officer to “be careful” when

handcuffing Plaintiff because he had a bad back. Id. Ms. Walsh

recalls that “one, maybe two” officers were present during

Plaintiff’s arrest. Id.

When Ms. Walsh observed Plaintiff on the ground, he was in

the process of being handcuffed. Id. According to Ms. Walsh,

Plaintiff was still naked at this point and the officer

permitted Plaintiff to get off the ground and allowed Ms. Walsh

and Mr. Meyer to help Plaintiff put his shorts on. Id. Ms.

Walsh estimates that Plaintiff was on the ground for “a couple

minutes” before being allowed to stand up and put on his shorts.

Id. at 13.

Plaintiff was then transported to the Wildwood police

station. Id. During processing one of Plaintiff’s hands was

handcuffed to a bar as is standard procedure when processing

arrests in order to ensure the safety of police officers. Id.

After being processed, Plaintiff was released with a summons for

disorderly conduct and resisting arrest. Id. As Stevens was

escorting Plaintiff out of police headquarters, Plaintiff

aggressively lunged at Officer Stevens. Id. Plaintiff was not

handcuffed at this time as he was being released. Id.

Officer Stevens then pushed Plaintiff against the booking

area wall and placed Plaintiff under arrest for disorderly

conduct. Id. Officer Stevens then contacted Municipal Court

Judge Garrabrant who authorized a warrant for disorderly

conduct. Id. at 14. Judge Garrabrant set Plaintiff’s bail at

$3,500. Id. Once back in the processing area, Plaintiff was

extremely belligerent and was yelling and cursing. Id.

Plaintiff had a bowel movement on himself while in the

processing area. Id. Plaintiff never asked to use the

restroom. Id. The bathroom is adjacent to the processing area.

Id. It is standard policy to allow arrestees to use the

restroom when they ask. Id. Plaintiff was never sprayed with

Lysol or any other substance. Id. Officer Stevens then

transported Plaintiff to the Cape May County Correctional

Facility. Id. At no time during the transport did Plaintiff

complain of any pain or injury. Id. at 15. The transport

occurred without further incident. Id.

Plaintiff alleges that while at the station, he was

handcuffed to a bar while being processed. Id. Plaintiff

alleges that while being processed, he asked to use the

bathroom. Id. He alleges that he was not permitted to do so

and so he went where he was. Id. After that, he stated at his

deposition that “Officer Shawn got very angry with me at that

point. And to the best of my recollection he sprayed me down

with Lysol or a substance of the same type. . . . So that I was

choking from the Lysol or whatever he was spraying me with.”

Id.

Plaintiff also alleges that when he was handcuffed at the

Wildwood police station, he asked to sit down because he was

tired but was not permitted to sit down. Id. Plaintiff does

not believe any officer hit him while at the Wildwood police

station. Id. Plaintiff does not believe that any officer

kicked him while at the Wildwood police station. Id. Plaintiff

states that the Wildwood police officers were “aggressive” with

handling him and they “chained” him to a bar. Id. When asked

about any physical injuries caused by any Wildwood police

officer, Plaintiff stated that his back “was a little sore” as

he stood for processing. Id.

When asked about any psychological injuries caused by any

Wildwood police officer, Plaintiff stated that he was denied use

of the bathroom and sprayed with Lysol. Id. at 16. Plaintiff

stated that the Wildwood officer was approximately three to four

feet away from Plaintiff when the officer sprayed the Lysol.

Id. When asked what the Wildwood police officers did that was

inappropriate Plaintiff stated that they denied him use of the

bathroom he was being processed at the station, they sprayed him

with Lysol, and he had to “twist around” to be able to sit in

the back of the police vehicle during transport as well as

coming onto his property and into the shed, arresting him, and

pushing him face down into the sand while arresting him. Id. at

16-17.

Plaintiff arrived at Cape May County Correctional Facility

around 7:00 p.m. on June 30, 2018. ECF No. 37-2 at 4.

Plaintiff was placed in a cell with steel bars. Id. Plaintiff

repeatedly laid on the floor and kicked the bars for a half an

hour or so. Id. No one came so plaintiff put a roll of toilet

paper in the toilet and started flushing it. Id. Plaintiff was

doing these things because he wanted a phone call. He had heard

you get a phone call but is not certain whether that was true.

He screamed about twenty times about wanting his phone call.

Id. Officers then entered the cell, rushed the plaintiff, and

pepper sprayed him. Id. Plaintiff was then placed in a

restraint chair. Id. A spit bag was placed over plaintiff’s

head. Id. Plaintiff alleges he was in the restraint chair with

a spit bag on his head for six hours. Id. at 5.

In addition to Plaintiff’s testimony, reports from Cape May

County Correctional Facility state that Plaintiff was trying to

stuff his mattress down the toilet and that after spray was

administered, he was secured to the Emergency Restraint Chair

and then taken to the front shower where he was cleansed of

spray and then evaluated by the nurse. Id. The Inmate

Emergency/Medical Treatment form shows that the spray was

cleansed from his face. Id. The videotape of this incident

demonstrates that plaintiff was put in a restraint chair and

then rolled to the shower where his eyes were cleansed. Id.

Sheriff Gary G. Schaffer had no personal involvement in regard

to this incident at the Correctional Facility. Id.

Plaintiff’s girlfriend bailed him out on July 1, 2015. Id.

The charges against Plaintiff were dismissed because the

complainant did not appear for Plaintiff’s criminal trial. Id.

Plaintiff has not disputed any of the above facts. Indeed,

Plaintiff’s opposition brief provides no factual support to

refute these facts and instead only references allegations in

the unverified Complaint. See ECF No. 42.

II. Standard of Review

Summary judgment should be granted when the pleadings,

depositions, answers to interrogatories, admissions on file, and

affidavits show that there is no genuine dispute 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 disputed

fact is material when it could affect the outcome of the suit

under the governing substantive law. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986). A dispute is genuine if the

evidence is such that a reasonable jury could return a verdict

for the nonmoving party. Id. at 250. The Court should view the

facts in the light most favorable to the non-moving party and

make all reasonable inferences in that party’s favor. Hugh v.

Butler County Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005).

Initially, the moving party must show the absence of a

genuine issue concerning any material fact. See Celotex Corp.

v. Carrett, 477 U.S. 317, 323 (1986). Once the moving party has

satisfied its burden, the non-moving party, “must present

affirmative evidence in order to defeat a properly supported

motion for summary judgment.” Anderson, 477 U.S. at 257.

“While the evidence that the non-moving party presents may be

either direct or circumstantial, and need not be as great as a

preponderance, the evidence must be more than a scintilla.”

Hugh, 418 F.3d at 267 (citing Anderson, 477 U.S. at 251).

If the court determines that “the record taken as a whole

could not lead a rational trier or fact to find for the non-

moving party, there is no ‘genuine issue for trial.’” Matushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)

(quoting First Nat’l Bank of Arizona v. Cities Serv. Co., 391

U.S. 253, 289 (1968)). Rule 56 mandates the entry of summary

judgment against the party who 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 Corp., 477 U.S. at 322.

A thorough and comprehensive review of the docket makes

clear that no material fact is in dispute as to the dispositive

issues in this case. To dispute an alleged undisputed fact

under Federal Rule of Civil Procedure 56, the non-moving party

must provide evidence to support the dispute. See Fed. R. Civ.

P. 56(e). Here, Plaintiff has failed to provide evidence to

dispute any of the undisputed facts proffered by Defendants.

Specifically, Plaintiff refers only to allegations of the

unverified Complaint, which are insufficient to create a dispute

of fact under Federal Rule of Civil Procedure 56.1 See Fed. R.

Civ. P. 56(c)(1), (4). The statements of facts outlined by

Defendants and appended to their Motions are thus deemed

undisputed. See Fed. R. Civ. P. 56(e)(2) (“If a party . . .

fails to properly address another party’s assertion of fact as

1 The statement of facts submitted by Plaintiff also fails to

conform to Local Rule 56.1, which requires the non-movant “to

file a counter statement that denies the fact is material,

admits the material fact, or denies the material fact by counter

proofs conforming to the rules of evidence.” Owens v. Am.

Hardwarde Mut. Ins. Co., 2012 U.S. Dist. LEXIS 182953, at *8 n.4

(D.N.J. Dec. 31, 2012).

required by Rule 56(c), the court may . . . consider the fact

undisputed for the purposes of the motion.”); Juster Acquisition

Co. v. N. Hudson Sewerage Auth., 2014 U.S. Dist. LEXIS 8703, at

*5 n.4 (D.N.J. Jan. 23, 2014) (noting that “any statement that

is not explicitly denied with a proper citation to the record in

a responsive Rule 56.1 statement is deemed admitted.”).

Notably, “a Plaintiff cannot resist a properly submitted motion

for summary judgment merely by restating the allegations of his

complaint, but must point to concrete evidence in the record

that supports each and every essential element of his case.”

Orsatti v. N.J. State Police, 71 F.3d 480, 484 (3d Cir. 1995).

III. Discussion

At the outset, the Court must note that Plaintiff has

failed to meaningfully oppose the Defendants’ Motions. As

already noted, Plaintiff provided no evidence and raised no

genuine dispute of material fact in response to Defendants’

statement of facts. Even worse, Plaintiff, in his opposition

brief, failed to provide any argument against the federal claims

other than to argue that Plaintiff’s property at issue should

not be considered an “open field.” As to the rest of the

federal claims, Plaintiff argued only that

Here, the actions of the Defendants in harassing,

assaulting, and injuring Plaintiff while Defendants

were on-duty. If Plaintiff’s allegations are proven,

this may lead a jury to infer the Defendants, when

acting together, sought to conspire against Plaintiff.

These actions establish intentional misconduct,

excessive use of force and deliberate indifference,

leading to bodily injury and economic loss for the

Plaintiff.

ECF No. 42-2 at 13.

These arguments are insufficient to avoid summary judgment.

After a comprehensive review of the record, the claims made in

the Complaint, and the law applicable to those claims, the Court

is confident that no material fact is in dispute and that

judgment as a matter of law is warranted in favor of the

Defendants.

A. Section 1983 Claims

Plaintiff has brought his federal constitutional claims

pursuant to 42 U.S.C. § 1983, which provides in pertinent part:

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory,

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.

“To establish a claim under 42 U.S.C. § 1983, [a plaintiff] must

demonstrate a violation of a right secured by the Constitution

and the laws of the United States [and] that the alleged

deprivation was committed by a person acting under color of

state law.” Moore v. Tartler, 986 F.2d 682, 685 (3d Cir. 1993).

“The first step in evaluating a section 1983 claim is to

‘identify the exact contours of the underlying right said to

have been violated’ and to determine ‘whether the plaintiff has

alleged a deprivation of a constitutional right at all.’” Nicini

v. Morra, 212 F.3d 798, 806 (3d Cir. 2000) (quoting County of

Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998)).

“A defendant in a civil rights action ‘must have personal

involvement in the alleged wrongs to be liable,’ and ‘cannot be

held responsible for a constitutional violation which he or she

neither participated in nor approved.’” Baraka v. McGreevey, 481

F.3d 187, 210 (3d Cir. 2007). See Evancho v. Fisher, 423 F.3d

347, 353 (3d Cir. 2005); Rode v. Dellarciprete, 845 F.2d 1195,

1207 (3d Cir. 1988).

Further, supervisory liability cannot be imposed under §

1983 by respondeat superior. See Ashcroft v. Iqbal, 556 U.S.

662 (2009); Monell v. Department of Social Services, 436 U.S.

658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976); Durmer v.

O'Carroll, 991 F.2d 64, 69 n.14 (3d Cir. 1993). “Absent

vicarious liability, each Government official, his or her title

notwithstanding, is only liable for his or her own misconduct.”

Iqbal, 556 U.S. at 677. A plaintiff must show that an

official's conduct caused the deprivation of a federally

protected right. See Kentucky v. Graham, 473 U.S. 159, 166

(1985); Gittlemacker v. Prasse, 428 F.2d 1, 3 (3d Cir. 1970) (A

plaintiff “must portray specific conduct by state officials

which violates some constitutional right.”).

1. Wildwood Defendants

i. Unlawful Search

Plaintiff alleges in the Complaint that the Wildwood

Defendants conducted a search of his property in violation of

the Fourth Amendment when they entered his land first to warn

him not to swim naked and to issue him a summons and then to

arrest Plaintiff for swimming naked a second time despite being

warned not to do so.

The Fourth Amendment protects “persons, houses, papers, and

effects” but it does not protect “open fields.” United States

v. Dunn, 480 U.S. 294, 300 (1987). The constitutional

protections afforded to one’s “home” extend to the “curtilage”

surrounding the home. Id. “[T]he extent of the curtilage is

determined by factors that bear upon whether an individual

reasonably may expect that area in question should be treated as

the home itself.” Id. “[T]he central component of this inquiry

is whether the area harbors the intimate activity associated

with the sanctity of a man’s home and the privacies of life.”

Id.

The law distinguishes areas deemed curtilage from “open

fields.” Oliver v. United States, 466 U.S. 170, 180 (1984).

Under the “open fields” doctrine, any property beyond the

curtilage is not afforded Fourth Amendment protection. Id.

“Open fields” may consist of “unoccupied or underdeveloped

area[s] outside of the curtilage.” Dunn, 480 U.S. at 304. “[A]

trespass on open fields, as opposed to the ‘curtilage’ of a

home, does not fall within the scope of the Fourth Amendment

because private property outside the curtilage is not part of a

‘house’ within the meaning of the Fourth Amendment.” United

States v. Jones, 565 U.S. 400, 420-21 (2012).

Courts have continually held that the entering by law

enforcement onto the fenced land, barn, shed, or non-dwelling is

not a violation of the Fourth Amendment as it is considered

“open field.” See, e.g., Dunn, at 302-03 (warrantless search of

a barn 60 yards from the house not a violation of the Fourth

Amendment as barn was located beyond the curtilage of the house

and there was no evidence that any “intimate activities”

associated with the “sanctity of ft home” itself took place in

the barn); Stone v. Martin, 720 F. App’x 132, 136 (3d Cir. 2017)

(finding no Fourth Amendment violation when law enforcement

officer walked around a locked gate on the plaintiff’s property,

approached a building used as a law office by the plaintiff and

served plaintiff with a notice of a small claims lawsuit);

United States v. Cardoza-Hinojosa, 140 F.3d 610, 616 (5th Cir.

1998) (finding no reasonable expectation of privacy of a shed on

the property which was subject to a search); United States v.

Correa, 635 F. Supp. 2d 379, 384 n.2 (D.N.J. 2009) (“There is no

reasonable expectation of privacy in open fields.

As such, no Fourth Amendment violation results when law

enforcement officers trespass onto a private open field that is

posted and encircled by a fence); United States v. Ortiz, 438 F.

App’x 712, 715 (3d Cir. 2012) (finding that criminal defendant

who was arrested in a fenced-in area of a garage he owned which

was serval blocks away from his residence was not entitled to

the Fourth Amendment protections afforded to homes.).

Plaintiff argues that the property at issue is not an “open

field” because it is fenced in, contains a shed, has

electricity, and contains construction equipment and materials.

ECF No. 42-2 at 16. Based on the undisputed material facts,

however, the Court holds as a matter of law that the property

located at 704-06 West Burk Avenue is properly categorized as an

open field. It is not Plaintiff’s nor anyone else’s residence.

In fact, the addresses of Plaintiff’s residence at 539 West

Burk Avenue and the property at issue at 704-06 West Burk Avenue

indicate that there is some distance between them with

intervening lots between both parcels. It is a small area

between two parking lots enclosed by a chain link fence with a

shed located inside the fence.

The property is visible to the public; in fact, the

officers observed Plaintiff naked in his shed upon their arrival

to the property before entering the property. As Plaintiff

alleges in his Complaint, the shed is used as a kayak rental

business — not as a home. Given these undisputed facts and

relevant caselaw, Plaintiff’s property at 704-06 West Burk

Avenue qualifies as an “open field.” Therefore, no Fourth

Amendment protection extends over it, and the Court must grant

judgment in favor of Defendants and against Plaintiff on this

claim.2

ii. False Arrest/Imprisonment

Plaintiff also claims that the Wildwood Defendants falsely

arrested him. To state a claim for false arrest pursuant to §

1983, a plaintiff must allege that (1) there was an arrest, and

(2) the arrest was made without probable cause. Dowling v. City

of Phila., 855 F.2d 136, 141 (3d Cir. 1988). See also Sharrar

v. Felsing, 128 F.3d 810, 817-18 (3d Cir. 1997) (a key element

of a § 1983 unlawful arrest claim is that the police officer

arrested the plaintiff without probable cause); Groman v. Twp.

Of Manalapan, 47 F.3d 628, 636 (3d Cir. 1995) (“an arrest based

on probable cause could not become the source of a [1983] claim

for false imprisonment.”). False arrest is “grounded in the

2 Even if Plaintiff’s property were considered to be within the

protections of the Fourth Amendment, the Wildwood Defendants had

probable cause to enter the property and effect the arrest of

Plaintiff as discussed further infra. The Wildwood defendants

observed Plaintiff naked on public property and watched him walk

back onto his property while still naked. See, e.g., United

States v. Santana, 427 U.S. 38, 43 (1976) (an individual “cannot

have a reasonable expectation of privacy when their actions are

plainly visible, nor can they evade an arrest in a public place

by escaping into a private place.”).

Fourth Amendment's guarantee against unreasonable seizures,”

Groman v. Twp. of Manalapan, 47 F.3d 628, 636 (3d Cir. 1995),

whereas false imprisonment is based upon the Fourth Amendment's

prohibition against deprivation of liberty without due process

of law, Baker v. McCollan, 443 U.S. 137, 145 (1979). False

arrest and false imprisonment are nearly identical claims that

may be analyzed together and both must be predicated on an

arrest made without probable cause in violation of the Fourth

Amendment. Wilson v. Dewees, 977 F. Supp. 2d 449, 455 (E.D. Pa.

2013).

Probable cause exists when the facts and circumstances are

“sufficient to warrant a prudent man in believing that the

defendant had committed or was committing an offense.” Gerstein

v. Pugh, 420 U.S. 103, 111 (1975). “Probable cause to arrest

requires more than suspicion; however, it does not require that

the officer have evidence sufficient to provide guilt beyond a

reasonable doubt.” Orsatti v. N.J. State Police, 71 F.3d 480,

482-83 (3d Cir. 1995). “If probable cause exists as to ‘any

offense that could be charged under the circumstances,’ then the

false arrest claim fails.” In re Schirmer, 2012 U.S. Dist.

LEXIS 182901, at *21 (D.N.J. Dec. 31, 2012) (citing Johnson v.

Knorr, 477 F.3d 75, 85 (3d Cir. 2007)). Notably, “when an

officer has received his information from some person — normally

the putative victim or an eye witness [sic]– who seems

reasonable to believe is telling the truth, he has probable

cause.” Bailey v. Gibbons, 2011 U.S. Dist. LEXIS 102873, at 36-

37 (D.N.J. Sept. 12, 2011) (citing Gramenos v. Jewel Cos., 797

F.2d 432, 439 (7th Cir. 1986). An officer is not required to

undertake an exhaustive investigation in order to validate the

probable cause that, in his mind, already exists. See Merkle v.

Upper Dublin Sch. Dist., 211 F.3d 782, 790 n.8 (E.D. Pa. 1999).

Here, Plaintiff admits he was swimming naked on both

occasions, that Plaintiff’s nudity was witnessed by patrons and

the manager of the Wharf Restaurant, that the manager of the

Wharf Restaurant made a criminal complaint against Plaintiff,

and that pictures and a video of Plaintiff exiting the bay nude

were taken. The Wildwood Defendants saw with their own eyes

Plaintiff exiting the bay naked and entering his property.

Public nudity is prohibited within the City of Wildwood by

ordinance, Art II sec. 110-6, available at

https://ecode360.com/8050419.3 The Wildwood defendants had the

authority to effect an arrest rather than issue a second summons

during their second call out to the property.4 Based on the

3 Under New Jersey law, Plaintiff also has no constitutional

right to appear naked in public. See, e.g., State v. Vogt, 775

A.2d 551, 557 (N.J. Super. Ct. App. Dix. 2001).

4 It is not clear from the Complaint whether Plaintiff is arguing

that he should have received a second summons instead of an

arrest. However the Wildwood Defendants have addressed such an

argument in their brief, citing ample caselaw to support the

conclusion that a custodial arrest after an initial summons was

undisputed facts, the Wildwood Defendants had ample probable

cause to effect Plaintiff’s arrest, and thus the Court must

enter judgment in favor of the Wildwood Defendants and against

Plaintiff on this claim.

iii. Excessive Force

Plaintiff also alleges excessive force when Plaintiff was

(1) taken to the ground during his arrest, (2) handcuffed to a

bar while being processed, (3) allegedly sprayed with Lysol, and

(4) forced to “twist” uncomfortably while riding handcuffed in

the police vehicle. Given the undisputed facts surrounding each

incident, none constitutions a violation of excessive force.

Claims of excessive force at the time of an arrest are

evaluated based on the Fourth Amendment's prohibition against

unreasonable searches and seizures. See Rivas v. City of

issued for disorderly conduct was appropriate under the

circumstances. See, e.g., Grandizio v. Smith, 2015 U.S. Dist.

LEXIS 133, at *10-11 n.3 (D.N.J. Jan. 5, 2015) (“Plaintiff’s

argument that summary judgment is not appropriate because he

should have only been issued a summons for his disorderly

persons offense, and not arrested, has no merit. The Court

agrees with Defendants that Plaintiff’s interpretation of State

v. Dangerfield, 171 N.J. 446, 795 A.2d 250 (2002), for this

proposition is misplaced. Although the Dangerfield court

acknowledged that ‘the modern view favors the issuance of

citations and summonses over custodial arrests for minor

offenses,’ the court ultimately held that ‘we do not disturb the

authority of the police to arrest for disorderly and petty

disorderly persons offenses that occurred in their presence.’”);

Williams v. Vanderud, 2017 U.S. Dist. LEXIS 157432, at *24

(D.N.J. Sept. 26, 2017) (finding sufficient probable cause for

an arrest for disorderly conduct).

Passaic, 365 F.3d 181, 189 (3d Cir.2004) (noting “[t]he Supreme

Court has held that all claims of excessive force by police

officers, in the context of an arrest, investigatory stop, or

other ‘seizure,’ should be analyzed under the Fourth

Amendment”). Claims of excessive force at the time an

individual is a pretrial detainee are evaluated based on the Due

Process Clause of the Fifth or Fourteenth Amendment. See

Kingsley v. Hendrickson, ––– U.S. ––––, 135 S.Ct. 2466 (2015)

(noting “[w]e have said that ‘the Due Process Clause protects a

pretrial detainee from the use of excessive force that amounts

to punishment’ ” (quoting Graham, 490 U.S. at 395 n. 10)). The

Third Circuit has noted that the exact point at which an

individual transitions from arrestee to pretrial detainee has

not been expressly ruled upon by the Circuit. See Halsey v.

Pfeiffer, 750 F.3d 273, 291 (3d Cir. 2014) (noting “[i]n the

future . . . we might be required to decide precisely when an

unlawful seizure ends and [a] due process . . . [violation]

begins”).

Under Third Circuit law, force used by a police officer “in

the police station garage, after [the arrestee] had been

transported from the scene of the initial beating” although,

“the closest — both temporally and spatially — to pre-trial

detention at the station house ... [was found to have] occurred

during the course of [a] defendant's arrest.” United States v.

Johnstone, 107 F.3d 200 (3d Cir. 1997). Recently, this

district, relying on Johnstone, found that alleged excessive

force against an individual “during his transport to the police

station must be analyzed under the Fourth Amendment.” Panarello

v. City of Vineland, 160 F. Supp. 3d 734, 756 (D.N.J. Feb. 8,

2016).

Because the claims relating to the Wildwood Defendants

occurred either during the arrest, during transport after the

arrest, or while the Plaintiff was being processed at the police

station, the Court will analyze these claims under the Fourth

Amendment. No party has argued that the Fourteenth Amendment’s

analysis should apply given the circumstances surrounding

Plaintiff’s claims or that the analysis would materially differ

from the analysis under the Fourth Amendment.

“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.” Kopec v.

Tate, 361 F.3d 772, 776 (3d Cir. 2004) (quoting Abraham v. Raso,

183 F.3d 279, 288 (3d Cir. 1999)). The test for reasonableness

under the Fourth Amendment is whether under the totality of the

circumstances, “the officers' actions are ‘objectively

reasonable’ in light of the facts and circumstances confronting

them, without regard to their underlying intent or motivations.”

Graham v. Connor, 490 U.S. 386, 397 (1989).

An officer's use of force is judged using an objective

standard; thus an officer's bad intentions will not make

objectively reasonable force unreasonable, and an officer's good

intentions will not make objectively unreasonable force become

reasonable. Id. “The ‘reasonableness’ of a particular use of

force must be judged from the perspective of a reasonable

officer on the scene, rather than with the 20/20 vision of

hindsight.” Id. “Significant factors in evaluating the force

used by the police are whether the person being taken into

custody is resisting or attempting to resist by flight.” Doby

v. DeCrescenzo, 171 F.3d 858, 874 (3d Cir. 1999)).

“The reasonableness of the use of force is normally an

issue for the jury.” Rivas v. City of Passaic, 365 F.3d 181,

198 (3d Cir.2004). “[A] police officer who is accused of having

used excessive force is not ‘precluded from arguing that he

reasonably perceived the facts to be different from those

alleged by the plaintiff,’ but that ‘contention ... must be

considered at trial.’” Id. at 199. Nonetheless, “defendants

can still win on summary judgment if the district court

concludes, after resolving all factual disputes in favor of the

plaintiff, that the officer's use of force was objectively

reasonable under the circumstances.” Kopec v. Tate, 361 F.3d

772, 777 (3d Cir. 2004); Gilles v. Davis, 427 F.3d 197, 207 (3d

Cir. 2005).

Construing factual disputes in favor of Plaintiff, it is

clear that when Officer Stevens brought Plaintiff to the ground

during the arrest he was acting reasonably. Officer Stevens was

the only officer making the arrest during the second stop at

Plaintiff’s property. Plaintiff had previously disregarded the

officers’ prior directive not to swim naked and had previously

been issued a disorderly conduct summons for yelling and cursing

at the officers so loudly so as to alarm nearby residents and

bring them out of their homes. Plaintiff admitted that he

believes “some words may have been exchanged” during his arrest,

and Ms. Walsh recalls hearing Officer Stevens direct Plaintiff

to “hold still.” Notably, Officer Stevens is only 5’9” tall and

165 pounds whereas Plaintiff is 6’3” and approximately 200

pounds.

Further, Plaintiff received no injuries from being taken to

the ground and he was only on the ground for a few minutes.

Viewing any dispute in favor of Plaintiff along with the fact

that Plaintiff suffered no injury, it is clear that Officer

Steven’s action was reasonable under the circumstances. Put

another way, there is simply no sufficient evidence from which a

trier of fact could reasonably conclude that Officer Steven’s

use of force was objectively unreasonable under the

circumstances. See Thomas v. City of Erie, 236 F. App'x 772,

776 (3d Cir. 2007).

Plaintiff next claims that he was subjected to excessive

force when he was handcuffed to a bar while he was being

processed is devoid of merit, and there is no evidence from

which a trier of fact could reasonably conclude that it was

objectively unreasonable under the circumstances. “Handcuffing,

by itself, is not a show of excessive force.” Estate of Awkward

v. Willingboro Police Dep’t, 2010 U.S. Dist. LEXIS 104304, at

*23 (D.N.J. Sept. 30, 2010). See also Flood v. Schaefer, 367 F.

App’x 315, 319 (3d Cir. 2010) (“[H]andcuffing an arrestee to a

chair is not, by itself, unreasonable.”); Rosenberg v. Homoki,

2009 U.S. Dist. LEXIS 31626, at *40-41 (E.D. Pa. April 9, 2009)

(finding that defendant officers did not use excessive force in

handcuffing the plaintiff behind his back after his arrest or

handcuffing him to a bar at the police station).

Here, at no point did Plaintiff complain that the handcuffs

were too tight, that he was suffering from pain or injury, or

that he communicated that he was in pain. Plaintiff presents no

evidence or even an allegation that he was subjected to any

maltreatment other than being handcuffed to the bar. Instead,

Plaintiff alleges that he wished to sit down during his

processing but he could not because he was handcuffed to the

bar. No reasonable trier of fact would find that this treatment

was unreasonable under the circumstances.

Plaintiff next asserts that he was subjected to excessive

force when he had to “twist” uncomfortably in the back of the

police vehicle during his transport because he was handcuffed.

As previously stated supra, handcuffs, without more, do not

constitute a constitutional violation. Here, Plaintiff did not

complain that the handcuffs were too tight or that he was in

pain or injured as a result of his transport in the police

vehicle. He also did not complain to the officers that he was

in any pain.

Accepting the facts in favor of Plaintiff, the Court can

find no evidence that a trier of fact could find that

transporting Plaintiff with handcuffs, which caused him to have

to “twist” while sitting in the seat constitutes excessive

force. See, e.g., Walters v. Pa. State Police, 2016 U.S. Dist.

LEXIS, at *14 (M.D. Pa. Jan. 11, 2016) (finding no excessive

force violation where a suspect was handcuffed and transported

in the back of a police vehicle where the plaintiff made no

complaints of pain or that the handcuffs were too tight);

Zabresky v. Von Schmeling, 2013 U.S. Dist. LEXIS 18774, at *8

(M.D. Pa. 2013).

Finally, Plaintiff asserts that his constitutional rights

were violated when an “Officer Shawn” sprayed him with Lysol.

Because Officer Shawn is not a defendant in this litigation and

because there are no allegations or evidence that any of the

Wildwood Defendants were personally involved in this incident,

the Court will grant summary judgment in favor of the Wildwood

Defendants and against Plaintiff on this claim.

iv. Conditions of Confinement

Plaintiff also claims his constitutional rights were

violated when he was denied use of the bathroom during his

processing at the Wildwood Police Department. “[I]f denied of

access to the toilet lasts a few hours or is not a ‘complete’

denial, such denial cannot supply sufficient grounds to support

a constitutional claim.” Banda v. Corzine, 2007 U.S. Dist.

LEXIS 80932, at *32-34 n.15 (D.N.J. Nov. 1, 2007). See also

Qawi v. Howard, 2000 WL 1010281, at *2 (D. Del. July 7, 2000)

(“Under certain circumstances, the denial of access to toilet

facilities may give rise to a[ ] [constitutional] violation.

However, such violations have generally been found only when the

duration of the deprivation is sufficiently long, or when the

deprivation is an ongoing condition of confinement rather than

the result of an isolated incident . . . These cases, however,

generally involve challenges to the regular operating conditions

of the prison — i.e., situations where under the everyday rules

regarding access to toilets, inmates are frequently forced to

urinate and defecate in their cells, often requiring them to eat

and sleep in unsanitary conditions”).

Here, the undisputed facts demonstrate that Plaintiff was

only in the custody of the Wildwood Police Department for

approximately two hours — from his arrest until his arrival at

the Cape May County facility. Specifically, Plaintiff was

arrested at approximately “20:13” hours per the notation on the

police report, and he was received at the Cape May County

facility at “22:10” hours.

Even with accepting Plaintiff’s allegations that he asked

to use the bathroom and he was denied access, the Court can find

no constitutional violation with the denial of toilet facilities

for two hours. Notably, after an extensive search, the Court

can find no case (nor has Plaintiff cited any) in which a

constitutional violation was found when an arrestee was denied

access to toilet facilities for two hours.

v. Monell Claim Against The City of Wildwood

and its Police Department

Based on the above analysis, Plaintiff cannot establish

that he suffered any underlying constitution violations by

Officers Stevens and Chobert. Because no constitutional

violation has been established, Monell liability cannot lie

against the City of Wildwood or the Police Department.

“Plaintiff must establish an underlying constitutional violation

to attribute liability to the County pursuant to Monell.” Baez

v. Lancaster County, 487 F. App’x 30, 32 (3d Cir. 2012).

In addition, Plaintiff presents no evidence to support

Monell liability or a dispute of fact concerning the issues

relevant to Monell liability. Further, Plaintiff presents no

argument opposing summary judgment on this claim. As such, the

Court will enter judgment in favor of the City and the Police

Department and against Plaintiff on this claim.

2. Cape May Defendants

Plaintiff has sued Defendants Cape May County and Cape May

Sheriff Schaffer asserting Monell liability claims (Counts VI

and X) as well as a failure to train claim against Defendant

Sheriff Schaffer (Count XVII). See ECF No. 1.

“A municipality cannot be held liable for the

unconstitutional acts of its employees on a theory of respondeat

superior.” Thomas v. Cumberland County, 749 F.3d 217, 222 (3d

Cir. 2014) (citing Monell v. Department of Social Services of

the City of New York, 436 U.S. 658, 691 (1978)). Rather, “[a]

plaintiff seeking to hold a municipality liable under section

1983 must demonstrate that the violation of rights was caused by

the municipality's policy or custom.” Id. (citing Monell, 436

U.S. at 690–91). For municipal liability under § 1983 to

attach, a plaintiff must demonstrate that “the policy or custom

itself violates the Constitution” or that “the policy or custom,

while not unconstitutional itself, is the ‘moving force’ behind

the constitutional tort of one of its employees.” Id. (quoting

Colburn v. Upper Darby Twp., 946 F.2d 1017, 1027 (3d Cir.

1991)).

A policy is made when a decision-maker possessing final

authority to establish municipal policy issues an official

proclamation, policy, or edict. See Torres v. Kuzniasz, 936 F.

Supp. 1201 (D.N.J. 1996); Hernandez v. Borough of Palisades Park

Police Dep't, 58 F. App’x 909 (3d Cir. 2003) (a successful

plaintiff must establish that the final authoritative figure

within a municipality violated that policy). "[A] single

incident of unconstitutional activity is not sufficient to

impose liability under Monell, unless proof of the incident

includes proof that it was caused by an existing,

unconstitutional municipal policy, which policy can be

attributed to a municipal policymaker." Oklahoma City v.

Tuttle, 471 U.S. 808 (1985).

A “custom,” on the other hand, may arise when, though not

authorized by law, practices by officials are so permanent and

well-settled as to virtually constitute law. Id. Monell

requires a plaintiff to prove the existence of a policy or

custom which is long standing so as to have the force of law.

Roman v. Appleby, 558 F. Supp. 449 (E.D. Pa. 1983).

The Court previously found that Plaintiff had failed to

state a Monell claim against Defendants Cape May County

Correctional Facility and the Cape May County Sheriff’s

Department because Plaintiff has failed to allege that either

defendant had a custom or policy in place that promoted

violations of the U.S. Constitution. See ECF No. 24.

Specifically, the Court noted that Plaintiff alleged nothing

more than conclusory allegations. Id.

Now that discovery has closed, the Monell claim against the

County is similarly based only on the conclusory allegations of

the Complaint. There is absolutely no evidence of any policy or

custom attributable to the County that has caused Plaintiff any

deprivation of any constitutional right. Plaintiff has also

failed to establish any underlying constitutional violation on

which Monell liability could rest. “Plaintiff must establish an

underlying constitutional violation to attribute liability to

the County pursuant to Monell.” Baez v. Lancaster County, 487

F. App’x 30, 32 (3d Cir. 2012).

In addition, Plaintiff presents no evidence to support

Monell liability or a dispute of fact concerning the issues

relevant to Monell liability. Further, in his opposition brief,

Plaintiff presents no argument opposing summary judgment on this

claim. For these reasons and because Plaintiff has, after

discovery, produced no evidence to demonstrate a relevant policy

or custom that caused any constitutional violation, the Court

will grant judgment in favor of Cape May County and against

Plaintiff.

As to the Monell claim against Defendant Sheriff Schaffer,

to the extent that he is sued in his official capacity, any such

claim fails. “Claims against government employees ‘represent

only another way of pleading an action against an entity of

which an officer is an agent.’ Lawsuits against officials in

their official capacities are essentially suits against the

government.” Roderique v. Kovac, 1987 WL 17058 (D.N.J. Sept.

14, 1987) (granting summary judgment in favor of sheriff in his

official capacity) (quoting Monell, 436 U.S. at 690, n.55). See

also Boyd v. Hudson County Prosecutor’s Office, No. 11-6744,

2014 WL 47772 (D.N.J. 2014) (granting summary judgment in favor

of sheriff); Andrews v. United States, 2012 WL 5249977 (D.N.J.

Oct. 24, 2012) (“[A]s to Defendant Atlantic County Sheriff, such

Defendant is not a “person” under § 1983 and, as such, cannot be

subject of a lawsuit with regard to the § 1983 claims.”).

Therefore, no such official capacity claim can be brought under

§ 1983 against Defendant Sheriff Schaffer.

To the extent that Plaintiff intended to sue him in his

personal capacity, any such claim also fails. See id. There

are no factual allegations of personal involvement or deliberate

indifference against Defendant Schaffer in the Complaint, and

Plaintiff cannot proceed on a theory of respondeat superior in a

§ 1983 claim. Plaintiff has also presented no evidence of

Defendant Schaffer’s personal involvement or deliberate

indifference, or raised a genuine issue of material fact

regarding his involvement.

Indeed, Plaintiff admits that the sheriff had no

involvement in the actions alleged to have occurred at the Cape

May Correctional Facility and presents no argument against this

claim in his opposition brief. Without evidence or a genuine

issue of material fact, the claims against Defendant Sheriff

Schaffer in either his official or personal capacities fail, and

summary judgment must be entered in his favor.

3. John and Jane Doe Defendants

Plaintiff alleges in the Complaint Counts II, VIII, XI, and

XII, XVIII, and XIX federal claims pursuant to § 1983 against

various Wildwood and Cape May John or Jane Doe Defendants.

Despite the close of discovery some months ago, Plaintiff has

failed to identify these John or Jane Doe defendants. Because

Plaintiff has failed to identify them and because the time for

doing so has since past, the Court must dismiss them without

prejudice on its own motion pursuant to Federal Rule of Civil

Procedure 21.

Federal Rule of Civil Procedure 21 provides that “on motion

or on its own, the court may at any time, on just terms, add or

drop a party.” Fed. R. Civ. P. 21. See also Blakeslee v.

Clinton County, 336 F. App’x 248, 250 (3d Cir. 2009) (affirming

dismissal of Doe defendants pursuant to Rule 21). “Use of John

Doe defendants is permissible in certain situations until

reasonable discovery permits the true defendants to be

identified. If reasonable discovery does not unveil the proper

identities, however, the John Doe defendants must be dismissed.”

Id. See also Scheetz v. Morning Call, Inc., 130 F.R.D. 34, 37

(E.D. Pa. 1990) (“Fictitious parties must eventually be

dismissed . . . if discovery yields no identities.”).

Plaintiff has had adequate opportunity through discovery to

allow him to identify the individual John and Jane Doe

defendants and thereafter to amend the complaint. Plaintiff has

failed to do so. As such, the Court must dismiss the John and

Jane Doe defendants. See Blakeslee, 336 F. App’x at 250-51;

Adams v. City of Camden, 461 F. Supp. 2d 263, 271 (D.N.J. 2006)

(holding that, after a reasonable period of discovery has

passed, “[i]t is appropriate, before proceeding to trial, to

eliminate [the] fictitious defendants from [an] action under

Fed. R. Civ. P. 21.”).

B. Remaining State Law Claim Claims

Having determined that Plaintiff has failed to raise

genuine issues of material fact on his federal claims under 42

U.S.C. § 1983, the claims which remain present issues of state

constitutional, statutory, and common law, over which this court

may exercise supplemental jurisdiction pursuant to 28 U.S.C. §

1367.5

Specifically, Plaintiff asserts claims for assault and

battery, false arrest, false imprisonment, violations of the New

Jersey Civil Rights Act, negligence, intentional infliction of

emotional distress, negligent infliction of emotional distress,

and punitive damages. See ECF No. 1. The Court will exercise

its discretion and will decline to exercise supplemental

jurisdiction over these state law claims.

“The district courts may decline to exercise supplemental

jurisdiction . . . if . . . the district court has dismissed all

claims over which it has original jurisdiction . . . .” 28

U.S.C. § 1367(c)(3). “The decision to retain or decline

jurisdiction over state-law claims is discretionary” and “should

be based on considerations of judicial economy, convenience and

fairness to the litigants.” Kach v. Hose, 589 F.3d 626, 650 (3d

Cir. 2009). Additionally, the federal court should be guided by

the goal of avoiding “[n]eedless decisions of state law . . .

both as a matter of comity and to promote justice between the

parties.” United Mine Workers v. Gibbs, 383 U.S. 715, 726

(1966).

5 There appears to be no diversity of citizenship between

Plaintiff and the Defendants so jurisdiction under § 1332 cannot

lie independently, separate and apart from the federal claims.

Declining to exercise supplemental jurisdiction is

particularly warranted when the case calls for an interpretation

of a state constitution. See Trump Hotels & Casino Resorts,

Inc. v. Mirage Resorts, Inc., 963 F. Supp. 395, 408 (D.N.J.

1997). Further, the Third Circuit has recognized that where all

federal claims are dismissed before trial, “the district court

must decline to decide the pendent state claims unless

considerations of judicial economy, convenience, and fairness to

the parties provide an affirmative justification for doing so.

Hedges v. Musco, 204 F.3d 109, 123 (3d Cir. 2000) (quoting

Borough of W. Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir.

1995)). See also Charles Alan Wright & Arthur R. Miller,

Federal Practice & Procedure, § 3567.3 (3d ed.) (“As a general

matter, a court will decline supplemental jurisdiction if the

underlying [federal question] claims are dismissed before

trial”).

Because Plaintiff's remaining claims concern

interpretations of the New Jersey Constitution and statutory and

common law and the federal claims have been dismissed before

trial, the prudent course is to decline to exercise supplemental

jurisdiction over those claims. For these reasons, the Court

will dismiss Plaintiff’s state law claims against the Defendants

without prejudice, for lack of jurisdiction, in accordance with

28 U.S.C. § 1367(c)(1).

IV. Conclusion

The Court will grant Defendants’ Motion for Summary

Judgment and enter judgment in Defendants’ favor and against

Plaintiff. The Court will also dismiss without prejudice the

claims against the John and Jane Doe defendants. An appropriate

order follows.

Dated: September 3, 2019 s/ Noel L. Hillman

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.