BATISTA v. CITY OF PERTH AMBOY

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

SUSAN BATISTA,

Civ. No. 15-2833 (KM)(MAH)

Plaintiff,

OPINION

v.

CITY OF PERTH AMBOY, CITY OF

PERTH AMBOY POLICE

DEPARTMENT, PERTH AMBOY

POLICE DEPARTMENT DIRECTOR

WILDA DIAZ, POLICE CHIEF

BENJAMIN RUIZ, CITY BUSINESS

ADMINISTRATOR GREGORY

FEHRENBACH, PERTH AMBOY

POLICE OFFICERS MARK CELECKI,

LIZA CAPO, LUIS GUZMAN, CITY

EMPLOYEE CELESTINA CAMPOS,

John Does 1-100 fictitious, and ABC

Corporations fictitious 1-100,

Defendants.

KEVIN MCNULTY, U.S.D.J.:

Susan Batista, pro se, filed this action against the City of Perth Amboy,

City of Perth Amboy Police Department, Perth Amboy Police Department

Director Wilda Diaz, Police Chief Benjamin Ruiz, City Business Administrator

Gregory Fehrenbach, Perth Amboy Police Officers Mark Celecki, Liza Capo, Luis

Guzman, City Employee Celestina Campos, and fictitious parties (together, the

“Defendants”) in the New Jersey Superior Court, Middlesex County. Two

defendants, Perth Amboy Police Officer Mark Celecki and City of Perth Amboy

Police Department, removed the case to this court pursuant to 28 U.S.C. §

1441. (DE 1). This court has subject-matter jurisdiction over Plaintiff’s federal

claims under 28 U.S.C. § 1331 and supplemental jurisdiction over pendent

state law claims under 28 U.S.C. § 1367. On motion (DE 42), I dismissed all

claims against defendant Perth Amboy Police Department. Now before the

Court are the Defendants’ motion for summary judgment (DE 179), individual

defendant Benjamin Ruiz’s motion for summary judgment (DE 178), and Ms.

Batista’s cross motion for summary judgment. (DE 185).1

For the reasons set forth below I will grant these Defendants’ motions for

summary judgment and deny Ms. Batista’s cross motion for summary

judgment.

I. Facts2

1 Plaintiff’s filing (DE 185) contains two documents labeled “Request for

Summary Judgment” which I will construe as both an opposition brief and a brief in

support of plaintiff’s cross-motion for summary judgment. Plaintiff’s filing does not

contain a response to Defendants’ Statement of Material Facts and otherwise fails to

comply with the requirements of Federal Rule of Civil Procedure 56 and Local Rule

56.1. Rule 56(c) states that the court need only consider the materials cited by the

parties, although it may consider other materials in the record. If a party fails to

address the other party’s properly supported assertion of fact, the court may consider

“grant[ing] summary judgment if the motion and supporting materials—including the

facts considered undisputed—show that the movant is entitled to it . . . .” Fed. R. Civ.

P. 56(e). Local Civil Rule 56.1(a) deems a movant’s statement of material facts

undisputed where a party does not respond or file a counterstatement. L. Civ. R. 56(a).

A failure to dispute a party’s statement of material facts, however, “is not alone

a sufficient basis for the entry of a summary judgment.” See Anchorage Assocs. v.

Virgin Islands Bd. of Tax Review, 922 F.2d 168, 175 (3d Cir. 1990) (holding that even

where a local rule deeming unopposed motions to be conceded, the court was still

required to analyze the movant’s summary judgment motion under the standard

prescribed by Fed. R. Civ. P. 56(e)); see also Muskett v. Certegy Check Servs., Inc., Civ.

No. 08-3975, 2010 WL 2710555 (D.N.J. July 6, 2010) (“In order to grant Defendant's

unopposed motion for summary judgment, where, as here, ‘the moving party does not

have the burden of proof on the relevant issues, . . . the [Court] must determine that

the deficiencies in [Plaintiff's] evidence designated in or in connection with the motion

entitle the [Defendants] to judgment as a matter of law.’” (quoting Anchorage Assocs.,

922 F.2d at 175)).

Given that Ms. Batista is pro se, and in order to avoid disadvantaging her, I

have reviewed both Defendants’ and Ms. Batista’s statement of material facts to

determine the factual background. For Defendants’ facts which Plaintiff has disputed,

I have disregarded those that are argumentative or legal conclusions and have looked

at the exhibits and appendices for corroboration.

2 For ease of reference, certain key items from the record will be abbreviated as

follows:

“Compl” = Complaint [ECF no. 1]

Plaintiff Susan Batista is a former Perth Amboy resident who rented out

rooms in her home to various tenants. (DE 179-4, Ex. E at 49:18–51:25.) One

of her tenants in 2011 was an individual named Michael Cole. (Id.) Ms. Batista

alleges that on or about December 11, 2011, Mr. Cole stole a certain sum of

money from her which she stored in a desk drawer in a bedroom occupied by

another tenant William Mason. (DE 179-4, Ex. B.) On December 11, 2011,

Officer Manuel Lopez of the Perth Amboy Police Department went to Ms.

Batista’s Perth Amboy residence to investigate the matter, however, did not

arrest Mr. Cole because he did not find sufficient probable cause to do so. (DE

179-4, Ex. D; DE 179-5, Ex. F at 41:18–42:1; DE 179-6, Ex. G at 48:9-52:13.)

On December 21, 2011, Ms. Batista went to the Perth Amboy Police

Headquarters to file a theft report. (DE 179-4, Ex. C.) Civilian report taker

Angelica Lopez filled out a report, which stated that Ms. Batista

kept a yellow envelope with $6,500.00 dollars in currency inside

her home office drawer. Victim stated that the only person allowed

in her office was William R. Mason (roommate). Victim stated that

on 12/04/2011 at 09:30 hrs., she left the office and the envelope

was inside the drawer. On 12/11/2011 at 09:30 hrs., when she

returned back to the office the currency was missing from inside

the envelope. . . . Victim stated that she suspects Mr. Cole stole

her currency. . .3

“PA Defs. Br.” = Perth Amboy Defendants’ Brief in Support

of their Motion for Summary Judgment

[ECF no. 179-2]

“Ruiz Br.” = Defendant Benjamin Ruiz’s Brief in

Support of Motion for Summary Judgment

[ECF no. 178-4]

“Opp.” = Plaintiff’s Opposition to Motion for

Summary Judgment and Cross Motion for

Summary Judgment [ECF no. 185]

“Batista Reply” = Plaintiff’s Reply Brief [ECF no. 190]

3 Ms. Batista’s account of the amount of money allegedly stolen by Mr. Cole has

changed. In October 2012, Ms. Batista swore out a criminal complaint against Mr.

Cole stating that he stole $16,500 from her. (DE 179-6, Ex. H.) Here, Ms. Batista

testified that the amount Mr. Cole stole from her was $32,000, but that she reported

only $16,500 because Mr. Cole was in financial difficulty. (DE 179-4, Ex. E at 140:6–

11.)

Id. Shortly after Ms. Lopez drafted the theft report, defendant Perth Amboy

Police Department Detective Mark Celecki met with Ms. Batista, where she

gave him an empty envelope that allegedly had contained the stolen money.

(DE 179-4, Ex. E at 76:10-23; DE 179-4, Ex. B at No. 8.) Ms. Batista requested

that Det. Celecki analyze the envelope for fingerprints. (Id.) Det. Celecki

testified numerous times that he analyzed the envelope but was unable to

detect any fingerprints, and thereafter returned the envelope to Ms. Batista.

(DE 179-5, Ex. F at 48:17-21.)

A few months later, on April 19, 2012, Perth Amboy Police Department

Detective Liza Capo was assigned to investigate the December 11, 2011 theft

incident. (DE 179-4, 179-6, Exs. C and M.) On April 20, 2012, Det. Capo

interviewed Ms. Batista at police headquarters. (Id., Ex. M; Ex. K at 116:20–

117:19.) At that time, Ms. Batista informed Det. Capo of an interaction she had

with Mr. Mr. Cole in the parking lot of the Perth Amboy Municipal Court on

April 18, 2012. (Id.) Det. Capo informed Ms. Batista that she would try to

obtain video surveillance of the interaction to gather additional evidence of the

purported verbal exchange between Ms. Batista and Mr. Cole. (Id., Ex. M.) On

April 27, 2012, Det. Capo called Ms. Batista to inform her that the cameras

were not positioned in the direction of the two individuals. (Id.) Ms. Batista,

however, recorded her interaction with Mr. Cole and provided the recording to

Det. Capo. (DE 179-6, Ex. K at 116:23–117:19.) Due to the poor quality of the

recording, the parties disagree whether the recording contains an audible

admission from Mr. Cole that he committed the theft. (See id; see also DE 179-

6, Ex. N.) On May 1, 2012, Det. Capo called Ms. Batista to inform her that she

did not have enough probable cause to effectuate an arrest of Mr. Cole. (Id., Ex.

M.) On or about May 15, 2012, Ms. Batista’s case was placed on inactive status

after Ms. Batista failed to return Det. Capo’s phone calls. (See id., Ex. K, at

119:18–120:6; 138:4–139:3; 145:3–10.)

Five months later, on October 25, 2012, Ms. Batista went to the Perth

Amboy Police Department in order to swear out a criminal complaint against

Mr. Cole. (Id., Ex. M.) Det. Capo interviewed Ms. Batista again, and that day,

Ms. Batista signed a criminal complaint against Mr. Cole for theft in the

amount of $16,550, which under the New Jersey Criminal Code is an

indictable third-degree felony offense. (Id., Ex. H.) On October 26, 2012, Mr.

Cole turned himself in to the Perth Amboy Police Department, where he was

arrested in connection with the 2011 incident. (Id., Ex. M.) Afterwards, the

Prosecutor’s Office reviewed the facts of this case to determine whether it was

appropriate for presentment to a grand jury for indictment. (Id., Ex. G at

53:21–68:4, Ex. H.) On November 9, 2012, the prosecutor administratively

downgraded the charges against Mr. Cole to a non-indictable disorderly

persons offense, against the wishes of Ms. Batista, and notwithstanding the

fact that the amount of money at issue falls within the range of a third-degree

indictable offense. (DE 179-4, Ex. E at 148:2–150:7; Ex. G at 53:21–68:4.) The

matter was then remanded for trial in the Perth Amboy Municipal Court. (Id.)

That criminal matter, State of New Jersey v. Cole, 1216-W-2012-1434,

was tried before Judge Maria Del Vale-Koch, J.M.C. (DE 179-5, Ex. F.) Ms.

Batista invoked a municipal court procedure which allowed her, as a

complaining witness, to prosecute the matter herself. See NJ. Ct. R. 7:8-1 et

seq. The court found that Ms. Batista failed to establish beyond a reasonable

doubt that Mr. Cole was responsible for the theft, and entered a finding of not

guilty. (DE 179-5, Ex. F at 77:12–20.)

In 2014, Mr. Cole brought a separate civil complaint against Ms. Batista

regarding destruction of his personal property. (DE 179-6, Ex. O.) Ms. Batista

counter-claimed against Mr. Cole for theft in connection with the 2011 incident

on a common law conversion theory. (Id.) The case was tried before the

Honorable Martin E. Kravarick, J.S.C., who found that Mr. Cole proved by a

preponderance of evidence that Ms. Batista was liable for $13,322 regarding

the destruction of his property, and that Mr. Cole was liable for $16,550

regarding the 2011 theft. (Id., Ex. Q at 44:9–45:20.) Thus, on June 4, 2014, the

court entered an order awarding Ms. Batista $16,550 regarding her theft claim

and awarded Mr. Cole $13,322 with respect to his property damage claim. After

offsetting the two awards, the net result was a judgment for Ms. Batista in the

amount of $3,228. (Id., Ex. R.; DE 179-4, Ex. E at 131:3–133:2.)

Since 2014, Ms. Batista has not undertaken any effort to collect her

judgment against Mr. Cole. (Id., Ex. E at 136:15–137:1.) Instead, she has

attempted to hold the police responsible for the same damages.

On March 18, 2015, Ms. Batista filed this action against the Defendants

in the Middlesex County Superior Court, which was then removed to the

District Court for the District of New Jersey. (DE 1.) Ms. Batista’s Complaint

allege five causes of action against the Defendants: (1) federal claims against

the City of Perth Amboy and Perth Amboy Police Department for failure to

investigate, destruction of evidence, falsifying police reports, and obstruction of

justice; (2) a Monell claim against the City of Perth Amboy for failure to train

and supervise its law enforcement officers; (3) a civil conspiracy claim; (4)

violations of the New Jersey Civil Rights Act and New Jersey Constitution for

denying plaintiff her due process and equal protection rights; and (5)

negligence under Title 59, New Jersey Tort Claims Act. (Id.) Ms. Batista is

seeking damages in the amount of $32,000, which includes the value of the

stolen money, the value of certain destroyed furniture, and carpet cleaning

charges. (DE 179-4, Ex. E, 194:21–196:1.)

II. Legal Standard

Federal Rule of Civil Procedure 56(a) provides that summary judgment

should be granted “if the movant shows that there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law.”

See Kreschollek v. S. Stevedoring Co., 223 F.3d 202, 204 (3d Cir. 2000);

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In deciding a motion

for summary judgment, a court must construe all facts and inferences in the

light most favorable to the nonmoving party. See Boyle v. Cnty. of Allegheny

Pennsylvania, 139 F.3d 386, 393 (3d Cir. 1998) (citing Peters v. Delaware River

Port Auth. of Pa. & N.J., 16 F.3d 1346, 1349 (3d Cir. 1994)). The moving party

bears the burden of establishing that no genuine issue of material fact

remains. See Celotex Corp. v. Catrett, 477 U.S. 317, 322–23. “[W]ith respect to

an issue on which the nonmoving party bears the burden of proof . . . the

burden on the moving party may be discharged by ‘showing’—that is, pointing

out to the district court—that there is an absence of evidence to support the

nonmoving party’s case.” Id. at 325.

Once the moving party has met that threshold burden, the non-moving

party “must do more than simply show that there is some metaphysical doubt

as to material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475

U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). The opposing party

must present actual evidence that creates a genuine issue as to a material fact

for trial. Anderson, 477 U.S. at 248; see also Fed. R. Civ. P. 56(c) (setting forth

types of evidence on which nonmoving party must rely to support its assertion

that genuine issues of material fact exist).

Unsupported allegations, subjective beliefs, or argument alone, however,

cannot forestall summary judgment. See Lujan v. Nat’l Wildlife Fed’n, 497 U.S.

871, 888, 111 L. Ed. 2d 695, 110 S. Ct. 3177 (1988) (nonmoving party may not

successfully oppose summary judgment motion by simply replacing

“conclusory allegations of the complaint or answer with conclusory allegations

of an affidavit.”); see also Gleason v. Norwest Mortg., Inc., 243 F.3d 130, 138

(3d Cir. 2001) (“A nonmoving party has created a genuine issue of material fact

if it has provided sufficient evidence to allow a jury to find in its favor at trial.”).

Thus, if the nonmoving 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 . . . there can be ‘no genuine issue of

material fact,’ since a complete failure of proof concerning an essential element

of the nonmoving party’s case necessarily renders all other facts immaterial.”

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

477 U.S. at 322–23).

Moreover, the “mere existence of some alleged factual dispute between

the parties will not defeat an otherwise properly supported motion for summary

judgment; the requirement is that there be no genuine issue of material fact.”

Anderson, 477 U.S. at 247–48. A fact is only “material” for purposes of a

summary judgment motion if a dispute over that fact “might affect the outcome

of the suit under the governing law.” Id. at 248. A dispute about a material fact

is “genuine” if “the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.” Id.

When the parties file cross-motions for summary judgment, the

governing standard “does not change.” Clevenger v. First Option Health Plan of

N.J., 208 F. Supp. 2d 463, 468–69 (D.N.J. 2002) (citing Weissman v. U.S.P.S.,

19 F. Supp. 2d 254 (D.N.J.1998)). The court must consider the motions

independently, in accordance with the principles outlined above. Goldwell of

N.J., Inc. v. KPSS, Inc., 622 F. Supp. 2d 168, 184 (D.N.J. 2009); Williams v.

Philadelphia Housing Auth., 834 F. Supp. 794, 797 (E.D. Pa. 1993), aff'd, 27

F.3d 560 (3d Cir.1994). That one of the cross-motions is denied does not imply

that the other must be granted. For each motion, “the court construes facts

and draws inferences in favor of the party against whom the motion under

consideration is made” but does not “weigh the evidence or make credibility

determinations” because “these tasks are left for the fact-finder.” Pichler v.

UNITE, 542 F.3d 380, 386 (3d Cir. 2008) (internal quotation and citations

omitted).

Here, Ms. Batista appears pro se. “Where the plaintiff is a pro se litigant,

the court has an obligation to construe the complaint liberally.” Giles v.

Kearney, 571 F.3d 318, 322 (3d Cir. 2009) (citing Haines v. Kerner, 404 U.S.

519, 520–521 (1972); Gibbs v. Roman, 116 F.3d 83, 86 n. 6 (3d Cir. 1997)). I

have construed Ms. Batista’s pleadings and filings in that liberal spirit. Ms.

Batista has made a number of written submissions explaining her position;

some explicitly are directed to the summary judgment motion and some are

not, but I have considered them all in connection with this summary judgment

motion. For purposes of this motion, I have treated her factual contentions as if

they had been contained in sworn affidavits.

III. Discussion

In Section III.a, I consider the entire controversy doctrine, or more

precisely the mandatory party joinder rule, N.J. Ct. R. 4:5-1(b)(2). As a

threshold matter, it would bar this action. In the alternative, however, and

particularly in light of the plaintiff’s pro se status, I examine the merits.

In Section III.b, I grant summary judgment for Defendants on Counts 1

and 4, the federal § 1983 and state civil rights act claims. In Section III.c, I

grant summary judgment for Defendants on Count 2, the Monell claim against

the City. In Section III.d, I grant summary judgment for Defendants on Count

3, the claim of conspiracy under 42 U.S.C. § 1985(3). In Section III.e, I grant

summary judgment for Defendants on Count 5, containing the state-law tort

claims pursuant to the New Jersey Tort Claims Act.

a. Entire Controversy/Mandatory Joinder

As a preliminary matter, the Defendants raise an affirmative defense that

Ms. Batista is judicially estopped from bringing this lawsuit because New

Jersey’s “Entire Controversy Doctrine” bars her from doing so. (See PA Defs.

Br. at 24–26, Ruiz Br. at 6–9.) This is the third litigation arising from the same

incident. I find that this action would be barred by the mandatory party joinder

rule, New Jersey Court Rule 4:5–1(b)(2).

A bit of history is helpful. New Jersey’s Entire Controversy Doctrine was,

in its original form, “an equitable preclusionary doctrine that require[d] a

litigant to present all aspects of a controversy in one legal proceeding.” Ricketti

v. Barry, No. CIV. 13-6804, 2015 WL 1013547, at *3 (D.N.J. Mar. 9, 2015)

(citing Hobart Bros. Co. v. Nat’l Union Fire Ins. Co., 354 N.J. Super. 229, 240

(App. Div. 2002) (internal quotation marks omitted). The Third Circuit has

described the doctrine as

. . . “New Jersey's specific, and idiosyncratic, application of

traditional res judicata principles.” Rycoline Prods., Inc. v. C & W

Unlimited, 109 F.3d 883, 886 (3d Cir. 1997). A mainstay of New

Jersey civil procedure, the doctrine encapsulates the state's

longstanding policy judgment that “the adjudication of a legal

controversy should occur in one litigation in only one

court[.]” Cogdell v. Hosp. Ctr. at Orange, 116 N.J. 7, 560 A.2d

1169, 1172 (N.J. 1989); see also N.J. Const. art. VI, § 3, 4 (“[L]egal

and equitable relief shall be granted in any cause so that all

matters in controversy between the parties may be completely

determined.”); Smith v. Red Top Taxicab Corp., 111 N.J.L. 439, 168

A. 796, 797 (N.J. 1933) (“No principle of law is more firmly

established than that a single or entire cause of action cannot be

subdivided into several claims, and separate actions maintained

thereon.”) . . . .

Ricketti v. Barry, 775 F.3d 611, 613 (3d Cir. 2015).

In determining whether a subsequent claim should be barred under this

doctrine, “the central consideration is whether the claims against the different

parties arise from related facts or the same transaction or series of

transactions.” DiTrolio v. Antiles, 142 N.J. 253, 268, 662 A.2d 494 (1995).

There is no requirement that there be a commonality of legal issues. See id. at

271. A federal court must give a prior state court judgment the same preclusive

effect that the state court would give them. See Greenleaf v. Garlock, Inc., 174

F.3d 352, 357 (3d Cir.1999) (“To determine the preclusive effect of [the

plaintiff's] prior state action we must look to the law of the adjudicating

state.”); see also Allen v. McCurry, 449 U.S. 90, 96, 101 S. Ct. 411, 415

(1980). Thus New Jersey’s entire controversy doctrine applies in this federal

court “when there was a previous state-court action involving the same

transaction.” Kaul v. Christie, 372 F. Supp. 3d 206, 238–39 (D.N.J. 2019)

(citing Bennun v. Rutgers State Univ., 941 F.2d 154, 163 (3d. Cir. 1991)).

Pre-1998, the Entire Controversy doctrine was a particularly stringent

mandatory-joinder rule, applicable to both claims and parties. The preclusive

effect of the doctrine was implemented by the pre-1998 version of N.J. Ct. R.

4:30A (“Non-joinder of claims or parties required to be joined by the entire

controversy doctrine shall result in the preclusion of the omitted claims to the

extent required by the entire controversy doctrine”). By amendment in 1998,

however, Rule 4:30A “dropped the words ‘and parties,’” leaving only mandatory

joinder of claims. Id. at 239. Now, the mandatory-claims and mandatory-

parties functions are split. Mandatory joinder of claims continues to be

governed by Rule 4:30A, as before. Mandatory joinder of parties, however, has

been relegated to the somewhat less stringent New Jersey Court Rule 4:5–

1(b)(2).

Rule 4:5-1(b)(2) “requires parties to disclose the existence of any non-

party who should be joined or who might have potential liability to any part on

the basis of the same transactional facts.” Ricketti, 2015 WL 1013547, at *3

(citing N.J. Ct. R. 4:5–1(b)(2)) (internal quotation marks omitted). Failure to

disclose necessary or mandatory parties does not necessarily preclude a party

from naming them in a subsequent action. Rather, it may result in a range of

sanctions, ranging from payment of costs to dismissal of the successive action.

Id. Dismissal of a successive action is a “sanction of last resort”; it is

appropriate only where “(1) the suit is a ‘successive action’; (2) the plaintiff's

failure to disclose the existence of other potentially liable parties in the earlier

litigation was ‘inexcusable’; and (3) the undisclosed parties’ right to defend the

successive action was ‘substantially prejudiced’ by their omission.” Ricketti,

2015 WL 1013547, at *3 (citing Kent Motor Cars Inc. v. Reynolds & Reynolds,

Co., 207 N.J. 428, 447 (2011)); see also Ctr. For Prof’l Adv. v. Mazzie, 347 F.

Supp. 2d 150, 157 (D.N.J. Dec. 9, 2004).

1. Successive Action. A subsequent lawsuit is considered a successive

action when it “arise[s] out of the same transactions or occurrences as the

previous lawsuit.” Id. (citing Beale v. Rubin & Rothman, LLC, No. 08-4279

(JAG), 2009 WL 1916322, at *4 (D.N.J. June 29, 2009). The thrust of the

inquiry is whether there is a commonality of facts between the two cases. Here,

the current federal action involves the same series of events as the state court

actions, specifically the alleged theft of Ms. Batista’s money by Mr. Cole, and

subsequent investigation into the theft. As a result, I find that the current

federal action brought by Plaintiff is a successive action.

2. Inexcusable omission. Additionally, it is inexcusable that Ms. Batista

failed to join the current Defendants, particularly in the prior civil action. Ms.

Batista had a “continuing obligation under New Jersey Court Rule 4:5–1 to

disclose the existence of . . . parties who should be joined in the state action.”

Id. She did not comply with those obligations, and in fact certified in the civil

case that no other parties should be joined. (See DE 179-6, Ex. O.) Moreover,

Ms. Batista was involved throughout the investigation of the alleged theft, and

was aware of the identities and roles of all the current Defendants since 2011,

and could have easily added them as cross-defendants during the state court

proceeding against Mr. Cole, yet Ms. Batista chose not to do so.4 Although Ms.

Batista claims that she did not realize her claims against Defendants until the

state court trial, that argument is undermined by the record which

demonstrates that she was in communication with the Perth Amboy

Defendants throughout the course of their investigation and thus should have

been aware of any shortcomings of their investigation during that time. As a

4 For example, Ms. Batista was able to directly examine current defendant

Detective Celecki regarding his role in the investigation during the municipal trial.

That line of questioning is as follows:

Q: Did I offer an envelope to you and your department to be analyzed for

fingerprints?

A: Yes, -- yes you did.

Q: And do you have the results of those?

A: They were negative at the time.

Q: For all – all fingerprints or –

A: There was no fingerprints of any evidentiary value on the envelope.

Ms. Batista: That’s all I could ask.

(DE 179-5, Ex. F at 47:4–48:25). Clearly, Ms. Batista has been aware as early as 2013

that Det. Celecki testified that he checked the envelope provided to him by Ms. Batista

for any fingerprints which did not yield any discernable results. Det. Celecki testified

much to the same during the 2014 state court proceedings. (See DE 179-6, Ex. L.) Ms.

Batista currently alleges that Det. Celecki is lying and had never returned the envelope

to Ms. Batista, however, these are issues that could and should have been addressed

in either of the two prior cases.

result, Plaintiff’s failure to disclose the Defendants in the prior trial is

inexcusable.

3. Prejudice. Finally, Defendants have met their burden in demonstrating

that Ms. Batista’s failure to join the current Defendants in the prior cases rises

to the level of substantial prejudice. Substantial prejudice occurs when a

defendant is unable to maintain an adequate defense in a subsequent suit to

its own detriment. See Ricketti, 2015 WL 1013547, at *4. In determining

whether substantial prejudice in a successive action exists, a court considers

the following non-exhaustive list of factors:

1. Whether the person not joined in an earlier action is precluded

from seeking recovery in a subsequent action;

2. Whether a person so precluded can nevertheless be alternatively

compensated;

3. Whether the failure to join or identify . . . a person was part of a

strategy to thwart the assertion of a valid claim;

4. Whether the failure to join or identify a person was

unreasonable under the circumstances;

5. Whether a person not joined in an action would be charged with

constructive knowledge of that action;

6. The extent to which judicial resources were employed in the

earlier litigation; and

7. Whether a person not joined in the earlier action might be

unfairly hampered in their ability to mount a defense, e.g., due to

loss of evidence, the running of an applicable period of limitation,

or other prejudice.

Beale v. Rubin & Rothman, LLC, No. CIV A 08-4279 (JAG), 2009 WL 1916322,

at *3–4 (D.N.J. June 29, 2009) (citing Hobart, 806 A.2d at 818–19). Here,

Defendants would be substantially prejudiced if this suit moves forward. As an

initial matter, the alleged theft occurred more than eight years ago in December

2011, and the successive suit in this court was filed four years after the

original incident. See Alvarez v. Borough of Hoboken, No. A-4534-10T3, 2013

WL 4236116, at *14 (N.J. Super. Ct. App. Div. Aug. 16, 2013) (finding that

defendant was substantially prejudiced where over five years had passed

between the incident and filing of successive suit). At this point, memories of

the incident would have faded, witnesses could have moved, and there is the

potential that documentary evidence might not be properly preserved.

Moreover, considering this matter has already been to trial to a complete

verdict not once but twice, and given that the current Defendants have testified

in either in the municipal court trial or state court trial, or in both,

demonstrates that “New Jersey has already expended significant resources

adjudicating the state court action” and to bring another action regarding the

same underlying event in federal court would be particularly taxing on judicial

resources. See Beale v. Rubin & Rothman, LLC, No. CIV A 08-4279 (JAG), 2009

WL 1916322, at *5 (D.N.J. June 29, 2009). Because Plaintiff has not presented

a valid reason for not adding the current Defendants to the prior cases, and

because Defendants would be substantially prejudiced by this current action, I

find that the Entire Controversy Doctrine bars plaintiff from bringing this

current action against Defendants in federal court.

* * *

I find in addition and in the alternative, however, that Ms. Batista has

failed to raise any material factual disputes that would warrant a denial of

defendants’ motions for summary judgment or warrant summary judgment in

her favor. I deal with those issues in the following sections.

b. Counts One and Four: Section 1983 and New Jersey Civil

Rights Act claims

The first and fourth causes of action in the Complaint allege violations of

federal and state civil rights underneath the Fourteenth Amendment of the

United States Constitution and the New Jersey Civil Rights Act, pursuant to

N.J. Stat. Ann. 10:6–1 et seq. (“NJCRA”). I will interpret Count One as a claim

asserted under 42 U.S.C. § 1983.5

5 42 U.S.C. § 1983 provides:

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

custom, or usage, of any State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of the United States or

other person within the jurisdiction thereof to the deprivation of any

“A plaintiff may be entitled to relief in the context of a Section 1983 claim

if the complaint ‘sufficiently alleges a deprivation of any right secured by the

Constitution.’” Graw v. Fantasky, 68 F. App'x 378, 381 (3d Cir. 2003) (citing

Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir. 2002)). Section 1983 does not

create a substantive right but instead provides a remedy for the violation of

rights created by federal law. 42 U.S.C. § 1983; Oklahoma City v. Tuttle, 471

U.S. 808, 816, 105 S. Ct. 2427, 2432 (1985). This district has repeatedly

interpreted the NJCRA in parallel with 42 U.S.C. § 1983; like § 1983, the

NJCRA “provides a means of vindicating substantive rights guaranteed by

federal law and New Jersey’s Constitution and laws and is not a source of

rights itself.” Lapolla v. Cty. of Union, 449 N.J. Super. 288, 306, 157 A.3d 458,

469 (App. Div. 2017) (citing Gormley v. Wood-El, 218 N.J. 72, 98, 93 A.3d 344,

358 (2014)).6

A prima facie case under § 1983 requires a plaintiff to demonstrate that

(1) a person deprived him or her of a federal right; and (2) that person acted

under color of state law. Groman v. Twp. of Manalapan, 47 F.3d 628, 633 (3d

Cir. 1995) (citing Gomez v. Toledo, 446 U.S. 635, 640, 100 S. Ct. 1920, 1923

(1980)). Plaintiff has satisfied the second prong of a § 1983 claim with respect

to the individual defendants. There is no question here that they were acting

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 . . . .

6 NJCRA provides:

Any 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, may bring a civil action for damages and for

injunctive or other appropriate relief.

under color of state law since they are either police officers or city officials who

were acting in the course of their official duties.7

Plaintiff has not, however, satisfied the first prong of a § 1983 claim.

Both the first and fourth causes of action essentially allege that Defendants

violated Plaintiff’s federal and state due process rights because they failed to

conduct a proper investigation into the alleged theft. Specifically, Plaintiff

alleges that Defendants destroyed evidence (the empty envelope alleged to have

contained the stolen money), falsified police reports, and obstructed justice.

It is undisputed that Defendants conducted an investigation in response

to Ms. Batista’s allegation of theft. Defendants have submitted

contemporaneous police reports of the investigation as exhibits to their motion

for summary judgment. The investigative steps they took, which are not

disputed, are outlined at pp. 3–5, supra. Plaintiff herself testified that she

repeatedly interacted with various Perth Amboy detectives throughout 2011

and 2012 during the course of the investigation. Plaintiff argues, however, that

Defendants’ investigation was insufficient and that their police reports were

“fabricated” in some unclear manner, in violation of her Fourteenth

Amendment rights.

The Fourteenth Amendment provides that “no State shall . . . deprive any

person of life, liberty, or property, without due process of law.” U.S. Const.

Amend XIV. The Due Process Clause guarantees not just “fair process,” but

also “heightened protection against government interference with certain

fundamental rights and liberty interests.” Washington v. Glucksberg, 521 U.S.

702, 719–20; 117 S. Ct. 2258, 2267 (1997). While substantive due process

7 Ms. Batista also asserts these causes of action against the City of Perth Amboy.

The plain language of § 1983 “compels the conclusion that Congress did not intend

municipalities to be held liable unless action pursuant to official municipal policy of

some nature caused a constitutional tort.” Monell v. Dep't of Soc. Servs. of City of New

York, 436 U.S. 658, 691, 98 S. Ct. 2018, 2036 (1978). Thus, “a municipality cannot be

held liable solely because it employs a tortfeasor—or, in other words, a municipality

cannot be held liable under § 1983 on a respondeat superior theory.” Id. (emphasis in

original). For the reasons stated below in Section III.c, Plaintiff’s Monell claim against

the City of Perth Amboy has not been sustained.

protects many fundamental rights, “there is no constitutional right to the

investigation of another.” Lee v. City of Philadelphia, 627 F. App'x 175, 177 (3d

Cir. 2015); see also Linda R.S. v. Richard D., 410 U.S. 614, 619, 93 S.Ct. 1146,

35 L.Ed.2d 536 (1973) (“[A] private citizen lacks a judicially cognizable interest

in the prosecution or nonprosecution of another.”); Boseski v. N. Arlington

Municipality, 621 F. App’x 131, 134–35 (3d Cir. 2015) (Plaintiff “has no

cognizable claim against a government entity for its failure to investigate or

bring criminal charges against another individual.”).8 Thus, “an allegation of a

failure to investigate, without another recognizable constitutional right, is not

sufficient to sustain a section 1983 claim.” Graw v. Fantasky, 68 F. App'x 378,

383 (3d Cir. 2003) (citing DeShaney v. Winnebago County Dep't of Soc.

Servs., 489 U.S. 189, 195–96, 109 S. Ct. 998 (1989)). Because there is no

private constitutionally protected interest to an investigation or prosecution of

another individual, Ms. Batista has not alleged a cognizable claim underneath

42 U.S.C. § 1983 and NJCRA.

Moreover, the individual Defendants here are entitled to the protections

of qualified immunity, which shields government officials from liability for

damages so long as their conduct does not violate “clearly established statutory

or constitutional rights of which a reasonable person would have known.”

8 The claim, to the extent it rests on the inadequacy of the criminal prosecution,

also raises standing issues. In order for a plaintiff to have standing in federal court,

she must have (1) “suffered an injury in fact—an invasion of a legally protected

interest which is (a) concrete and particularized, and (b) actual or imminent, not

conjectural or hypothetical,” (2) “there must be a causal connection between the injury

and the conduct complained of—the injury has to be fairly trace[able] to the

challenged action of the defendant, and not th[e] result [of] the independent action of

some third party not before the court[,]” and (3) “it must be likely, as opposed to

merely speculative, that the injury will be redressed by a favorable decision.” Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130 (1992). Here, because

there is no constitutional right to an investigation or prosecution of another, Ms.

Batista cannot satisfy the first requirement in showing that she suffered an injury in

fact. Moreover, there are questions on whether Ms. Batista can satisfy the third

element of standing as well. As disclosed by the record, any alleged shortcomings in

the criminal investigation did not prevent Ms. Batista from obtaining a judgment

against Mr. Cole, which she apparently has made no effort to collect. (DE 179-6, Ex. Q

at 44:9–45:20; id., Ex. R.).

Pearson v. Callahan, 555 U.S. 223, 231, 129 S. Ct. 808, 172 L.Ed.2d 565

(2009). In other words, so long as an official “reasonably believes that his or her

conduct complies with the law, qualified immunity will shield the official from

liability.” Grohs v. Yatauro, 984 F. Supp. 2d 273, 286 (D.N.J. 2013) (citing

Sharp v. Johnson, 669 F.3d 144, 159 (3d Cir. 2012)). A plaintiff can overcome

the protections of qualified immunity if (1) the official’s conduct violated a

constitutional or federal right; and (2) whether the right at issue was “clearly

established.” Id. (citing Pearson, 555 U.S. at 244). As stated above, there is no

private constitutional right to the prosecution or non-prosecution of another.

And at any rate, the police took the complaint and investigated, and a

prosecution did result. Thus, Plaintiff cannot overcome the first prong required

to overcome qualified immunity.

Additionally, whether a constitutional violation is “clearly established” for

qualified immunity purposes requires a court to assess whether it was

sufficiently clear that “a reasonable official would understand that what he is

doing violates that right.” Sharp, 669 F.3d at 159. Ms. Batista essentially

claims that the Defendants did not properly investigate and prosecute Mr. Cole

regarding the alleged theft of her money. Aside from the fact that there is no

constitutional right to the prosecution of another, the record is replete with

evidence that the individual Defendants did investigate the alleged theft and

even were willing to prosecute Mr. Cole. (DE 179-4, Ex. C; id., Ex. D; DE 179-5,

Ex. F at 48:17–21; DE 179-6, Ex. K at 104:21–105:2, 119:18–120:6, 138:4–

139:3, 145:3–10; id., Ex. L at 56:2–58:17; id., Ex. M.)

The police did not ignore Ms. Batista’s complaint, and the steps they took

appear reasonable. (See Facts, pp. 3–5, supra.) The complaints of “fabricated”

police reports are not specific and have not been substantiated; they seem to

amount to little more than an expression of dissatisfaction that they failed to

result in a criminal conviction of Mr. Cole.9 There is no showing that any

9 The nonspecific allegations of false police reports and the like were never lent

any further substance in discovery. One potential allegation of destruction of evidence

turned out to be inconsequential. As quoted in n.4, supra, Ms. Batista elicited from

evidence existed which the police failed to uncover. Irrespective of whether their

actions conformed to the highest investigative standards—an issue on which I

express no opinion—the police certainly did not violate, or fall short of, any

clearly established constitutional standard. Nor do I know of, for example, any

binding, reasonably specific case law holding actions like those of the police

here to be unconstitutional. Nor have any alleged investigative shortcomings

impaired Ms. Batista’s efforts to bring a claim against Mr. Lloyd, to the extent

that may be relevant; she did assert a counterclaim against Lloyd, she

prevailed, and she was awarded the full amount allegedly stolen (offset by Mr.

Lloyd’s claim against her).

Because Ms. Batista has failed to sufficiently allege § 1983 and NJCRA

claims, and has not been able to overcome the individual Defendants’ rights to

the protection of qualified immunity, I will grant summary judgment in favor of

Defendants for Counts One and Four of the Complaint.

c. Count Two: Monell Claim

Plaintiff also asserts a Monell claim against the City of Perth Amboy,

alleging that the city failed to adequately supervise and train “various aspect[s]

of law enforcement, criminal prosecution[,] procedure[,] and substance”

presumably regarding its law enforcement officers. (Compl. at 18) Plaintiff also

alleges that “Defendants tolerated and condoned the violation of the civil rights

of its citizens by its police officers by failing to properly investigate and

discipline its officers with respect to citizen complaints and the Rights of

Citizens to report crimes 24 hours a day, seven days a week.” (Id. (emphasis in

original)).

Det. Celecki that he checked the envelope but found no usable fingerprints, to which

she replied, “That’s all I could ask.” (DE 179-5, Ex. F at 47:4–48:25). She now says the

police are lying when they say they returned the envelope to her. There is no showing,

however, that the envelope had any evidentiary value.

Again, summary judgment must be granted in favor of Defendants. A

municipality cannot be sued under § 1983 because of an injury inflicted solely

by its employees or agents, but it can be held liable when the injury inflicted is

a result of a policy or custom the municipality has adopted. See Beck v. City of

Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996). Thus, in order to establish a prima

facie case for Monell liability, the Plaintiff must “(i) demonstrate the existence of

an unlawful policy or custom; (ii) that resulted in a deprivation of the rights,

privileges, or immunities secured by the Constitution or laws of the United

States; and (iii) that the policy or custom was the proximate cause of the

alleged deprivation.” Maldonado v. City of Passaic Bd. of Educ., No.

CV1712245ESJAD, 2020 WL 289649, at *7 (D.N.J. Jan. 21, 2020) (citing

Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990)). A government policy is

made when a “decisionmaker possess[ing] final authority to establish

municipal policy with respect to the action’ issues an official proclamation,

policy, or edict.” Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996)

(quoting Bielevicz, 915 F.2d 845, 850 (3d Cir. 1990)). In contrast, “a course of

conduct is considered to be a ‘custom’ when, though not authorized by law,

‘such practices of state officials [are] so permanent and well-settled’ as to

virtually constitute law.” Id.

Here, Ms. Batista alleges that the City adopted a custom of failing to

adequately train its police officers in proper criminal procedures and

investigatory techniques in violation of her Constitutional rights. As an initial

matter, Plaintiff has not demonstrated that she experienced a deprivation of

any rights, privileges, or immunities guaranteed by the Constitution or any

law, see Section III.b, supra, so there is no constitutional violation by its

employees that would be attributable to the City. Moreover, the record is

replete with evidence that the Perth Amboy police department did engage in an

investigation, although the investigation did not meet Plaintiff’s personal

expectations. Plaintiff’s allegation that she was denied her right to report

crimes has not led anywhere; it cannot be denied that she reported the crime,

and that it was prosecuted. Finally, Plaintiff fails to provide any evidentiary

support for her contention that the investigative policies and procedures of the

City or the Police Department were deficient in some overall or systematic way.

Plaintiff does not, for example, cite any other comparable situations or

incidents. Because Plaintiff has failed to demonstrate any facts to establish the

existence of a custom that was the proximate cause of any alleged deprivation

of her constitutional rights, I will grant summary judgment in favor of

Defendants, and the City in particular, on Count Two of the Complaint.

d. Count Three: Section 1985(3) Conspiracy Claim

Ms. Batista also raises a conspiracy claim against Defendants, citing 42

U.S.C. §§ 1985 and 1986. Specifically, she alleges that Defendants “conspired

for the purpose of impeding, hindering, obstructing, destroying falsifying and

defeating the due course of justice with the intent to deny the Plaintiff the

protection of the laws and to injure Plaintiff through their actions.” (Compl. at

19.) Plaintiff also alleges that the defendant police officers’ decisions and

actions during the course of the investigation into the alleged theft were

“carried out in secret/conspiracy and never approved by Supervisors.”10 (Opp.

at 11.)

Section 1985 is a federal statute which provides civil remedies for a

conspiracy which deprives a person of civil rights. It is unclear from Plaintiff’s

Complaint or Opposition brief whether she raises claims under 42 U.S.C. §

1985(2) or (3). Section 1985(2) prohibits conspiracies to obstruct justice with

the intent to deny equal protection of the laws. Section 1985(3) prohibits

conspiracies that deprive persons of their rights or privileges under the equal

protection of the laws. Both subsections, however, require a plaintiff to

demonstrate that there was a race-based motive for the defendants’ alleged

actions. Limehouse v. Delaware, 144 F. App'x 921, 923 (3d Cir. 2005) (citing

10 I observe in passing that this allegation would seem to be inconsistent with the

Monell allegations that these events occurred pursuant to an overall municipal or

departmental policy.

Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971);

Davis v. Township of Hillside, 190 F.3d 167, 171 (3d Cir.1999)).11

Ms. Batista testified at her deposition that she believes she was the

target of “reverse discrimination” by Defendant Mayor Diaz. (DE 179-4, Ex. E at

45:17.) Specifically, Plaintiff testified:

A. I have a conspiracy that, if you look at all the demographics and

all the data, it's not just me. It's whites, blacks, and Asians. They

don’t want us there anymore

Q. The police department has a conspiracy?

A. It’s the mayor.

Q. You’re the victim of a conspiracy on the basis of your ethnicity.

Is that your testimony?

A. Yes. Yeah.

It is not sufficient to simply identify the participants by race and

hypothesize a discriminatory animus. Plaintiff fails to point to any facts or

evidence in the record to support her allegation that she was the target of a

reverse discrimination conspiracy by defendant Diaz. Nor does she cite

evidence to connect this entirely hypothetical allegation to any denial of her

rights or privileges in connection with the theft investigation. As a result,

Plaintiff’s conspiracy claim under 42 U.S.C. § 1985 fails.

Ms. Batista also raises a claim under 42 U.S.C. § 1986. A cause of action

under § 1986, however, requires the existence of a § 1985 conspiracy. Patel v.

Crist, No. CV 19-9232, 2020 WL 64618, at *5 (D.N.J. Jan. 7, 2020) (citing Clark

v. Clabaugh, 20 F.3d 1290, 1295 n.5 (3d Cir. 1994)). That has not been

demonstrated.

11 A claim under § 1985(3), in particular, requires a plaintiff to demonstrate

(1) a conspiracy; (2) motivated by a racial or class based discriminatory

animus designed to deprive, directly or indirectly, any person or class of

persons to the equal protection of the laws; (3) an act in furtherance of

the conspiracy; and (4) an injury to person or property or the deprivation

of any right or privilege of a citizen of the United States.

Mosca v. Cole, 384 F. Supp. 2d 757, 769 (D.N.J. 2005), aff'd, 217 F. App'x 158 (3d Cir.

2007) (quoting Lake v. Arnold, 112 F.3d 682, 685 (3d Cir. 1997).

Because Plaintiff has not established a prima facie claim under 42 U.S.C.

§§ 1985 and 1986, or any material facts in dispute regarding these claims,

summary judgment is granted to defendants on Count 3.

e. Count Five: State Law Tort Claims under the New Jersey Tort

Claims Act (“TCA”)

Finally, Plaintiff alleges that Defendants negligently refused to allow her

access to the police department to file a criminal report, destroyed evidence,

and denied her the opportunity to prosecute of Mr. Cole all in violation of the

TCA. Ms. Batista claims that as a result of Defendants’ actions, she suffered

from “chronic insomnia, heart and chest pains, breathing problems, weakness,

[and] PTSD.” See Batista Reply at 8. The allegations of false reports or

destruction of evidence are nonspecific and have not been borne out by

discovery. See supra. There is, however, a more basic threshold issue.

The TCA is a “statutory mechanism through which the New Jersey

Legislature effected a limited waiver of sovereign immunity.” Baldeo v. City of

Paterson, No. CV185359KMSCM, 2019 WL 277600, at *5 (D.N.J. Jan. 18,

2019). Under the TCA, public entities are generally immune from liability for an

injury arising out of an act or omission of the public entity, a public employee,

or any other person, unless “there is a specific statutory provision that makes

it answerable for a negligent act or omission.”12 Id.; see also N.J. Stat. Ann. §

59:2–1. Additionally, a public employee is not immune from suit under the TCA

if a plaintiff’s claim is based on the employee’s willful misconduct. See N.J.

Stat. Ann § 59:3–14.

As an initial procedural matter, under the TCA, a plaintiff must provide

notice of her claim no later than ninety days after the claim has accrued. See

N.J. Stat. Ann. § 59:8–8. Ms. Batista does not allege that she complied with

TCA’s notice requirement and, having reviewed the record, I find no evidence

12 The statutory definition of “public entity,” includes “any county, municipality,

district, public authority, public agency, and any other political subdivision or public

body in the State.” N.J. Stat. Ann. § 59:1–3.

that any of the Defendants received this notice. As a result, Ms. Batista’s state

law tort claim cannot succeed against Defendants because she failed to comply

with the notice requirements under the TCA.13

As a result, summary judgment must be granted in favor of Defendants

on Plaintiff’s TCA claim.

IV. Conclusion

For the reasons set forth above, I will grant summary judgment in favor

of the Perth Amboy Defendants and Defendant Benjamin Ruiz on all counts

(DE 178, 179) and deny Plaintiff Susan Batista’s Cross Motion for Summary

Judgment (DE 185).

An appropriate order follows.

Dated: March 23, 2020

/s/ Kevin McNulty

____________________________________

Kevin McNulty

United States District Judge

13 Although I need not reach the issue, Defendants assert in addition that the TCA

limits damages to be awarded against a public entity or public employee for injuries

where an individual suffered “permanent loss of bodily function, permanent

disfigurement or dismemberment where the medical treatment expenses are in excess

of $3,600.00.” N.J. Stat. Ann. § 59: 9–2. Ms. Batista’s alleged injuries however do not

meet the threshold requirement of demonstrating a permanent loss of bodily function,

disfigurement, or dismemberment as required by the statute. Although she suffers

from chronic unspecified chest pain, anxiety, major depressive disorder, and issues

with sleep, she has not demonstrated that any of these conditions are permanent, and

that they cause any loss of bodily function. See Pascucci v. Twp. of Irvington, Irvington

Police Dep't, 46 F. App'x 114, 116 (3d Cir. 2002) (affirming district court decision

granting summary judgment to defendants for plaintiff’s TCA claims because plaintiff’s

injuries consisting of panic attacks, anxiety, depression, and insomnia did not meet

the threshold requirement of demonstrating permanent loss).