BURGA v. CITY OF PLAINFIELD

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

KARLA BURGA AND BETTY

Civ. No. 17-1655 (KM) (JBC)

PACHECO,

Plaintiffs, OPINION

v.

CITY OF PLAINFIELD, CITY OF

PLAINFIELD POLICE DEPARTMENT,

DETECTIVE MICHAEL BLACK,

OFFICER PIERRE MCCALL, OFFICER

CRAIG KENNOVIN, ABDUL WARD,

JOHN DOES 1-20 (FICTITIOUS

UNIDENTIFIED EMPLOYEES OF THE

CITY OF PLAINFIELD POLICE

DEPARTMENT) AND ABC CORP. 1-20

(UNIDENTIFIED ENTITIES),

Defendants.

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

On March 12, 2015, plaintiffs Karla Burga and Betty Pacheco occupied a

motor vehicle that was hit by a vehicle driven by defendant Abdul Ward. At the

time, Ward was fleeing the scene of a shooting, pursued by the Plainfield police.

Seriously injured in the accident, the plaintiffs have brought suit against Ward,

the City of Plainfield, its Police Department, Plainfield Police Officer Pierre

McCall, Detective Michael Black, and Officer Craig Kennovin.

Now pending before the Court are two motions for summary judgment,

one filed by defendant Officer Kennovin (DE 48) and one filed jointly by the City

of Plainfield, Officer McCall, and Detective Black. Plaintiffs oppose defendants’

motions. (DE 51) For the reasons stated below, I will grant Officer Kennovin’s

motion for summary judgment. I will grant in part and deny in part the

summary judgment motion filed by the City of Plainfield, Officer McCall and

Detective Black.

I. Summary1

A. Factual Background2

The events in suit took place in Plainfield, New Jersey, and involved the

Plainfield police. On March 12, 2015, Detective Black was assisting with an

undercover investigation and assisting Detective Troy Alston. (DSOF ¶¶ 1–2)

1 Citations to the record will be abbreviated as follows. Citations to page numbers

refer to the page numbers assigned through the Electronic Court Filing system, unless

otherwise indicated:

“DE” = Docket entry number in this case.

“Compl.” = The Complaint filed by plaintiffs. (DE 1)

“DSOF” = Joint statement of material facts filed by the City of Plainfield,

Detective Black and Officer McCall. (DE 49-1)

“KSOF” = Statement of material facts filed by Officer Kennovin. (DE 48-2)

“PRSOF” = Plaintiffs’ response to the DSOF. (DE 51-1 at 2–4)

“PSSOF” = Plaintiffs’ supplemental statement of material facts (DE 51-1 at 5–

24)

“DRSOF” = Defendants’ responses to plaintiffs’ supplemental statement of facts

(DE 53-1)

2 The parties have, in the spirit of Rule 56.1, significantly narrowed the facts in

dispute in the DSOF and PSSOF. Accordingly, I summarize the facts as presented by

the parties, indicating where necessary those that are disputed.

Officer Kennovin submitted with his summary judgment motion a statement of

material facts. (DE 48-2 (“KSOF”)) Local Rule 56.1 states in part, “[t]he opponent of

summary judgment shall furnish, with its opposition papers, a responsive statement

of material facts, addressing each paragraph of the movant’s statement, indicating

agreement or disagreement and, if not agreed, stating each material fact in dispute

and citing to the affidavits and other documents submitted in connection with the

motion.” Plaintiffs, however, failed to address the KSOF.

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). Nevertheless, where plaintiffs’ briefing provides

support that disputes a statement in the KSOF, I will treat those facts as disputed.

Detective Alston relayed to Detective Black that a dispute had broken out near

Berckman Street and East Sixth Street. (DSOF ¶ 2) Detective Black responded

to the call and drove towards the area in an undercover, unmarked vehicle that

did not have emergency lights and sirens. (PSSOF ¶¶ 43–44) As he approached

that area, he saw a man aggressively waving his hands. (DSOF ¶ 3) The man

then got into a gray car. Detective Black heard gun shots, which he believed

came from the gray car. (DSOF ¶¶ 3 –4)

Immediately after the shots were fired, the gray car sped off. (The gray

car was driven by defendant Abdul Ward, though Black did not know this at

the time. See infra.) Detective Black followed in his unmarked car. (DSOF ¶ 5)

The gray car was traveling at a high rate of speed. Black testified that he

performed all actions of an officer in pursuit except for activating lights or

sirens, because his car had none. (PRSOF ¶ 5) Black radioed that gunshots

had been fired, provided a description of the gray car, and described its

direction of travel. (DSOF ¶ 5) Officer McCall, Officer Kennovin, and Detective

Auricchio, among others, heard Detective Black’s call over the radio. (DSOF ¶

6; KSOF ¶ 2)

Two marked patrol cars, one of them driven by McCall, drove to the area

in response to the call of Detective Black, who spotted them as they arrived.

(DSOF ¶¶ 6–7) Detective Black instructed McCall to pull over the gray car.

(DSOF ¶ 7) McCall was in marked patrol vehicle number 62, a Ford Taurus

equipped with lights and sirens. (DSOF ¶ 8) McCall made a U-turn and

pursued the gray car. (DSOF ¶10) The parties dispute whether, once McCall

began pursuing the gray car, Black ceased his pursuit. (DSOF ¶¶ 11–12;

PRSOF ¶¶ 11–12)

At the time he began pursuing the gray car, McCall did not know the

identity of the driver, who was later identified as Ward. (DSOF ¶¶ 23, 27)

During the chase, Ward was travelling as fast as 60 mph, well in excess of the

20 to 25 mph speed limit in the residential neighborhoods through which he

was travelling. (DSOF ¶ 13) Officer McCall testified that he was driving

approximately 50 mph in pursuit. (Id.) Ward led McCall and other officers on a

chase through the neighborhood, ultimately turning and driving the wrong way

(westbound) down a one-way street, East 6th Street. (DSOF ¶ 14)

Still driving the wrong way down 6th Street, Ward crossed several

avenues and then approached the intersection of Central Avenue.3 At the time,

plaintiff Karla Burga was driving her Jeep Cherokee with her mother, Betty

Pacheco, down Central Avenue. (PSSOF ¶¶ 1–3) Burga recalled driving and

talking with her mother as she approached 6th Street. As she recollected the

events, she did not have the radio on, and was driving at approximately 20

mph. (PSSOF ¶¶ 4–5) When the light turned green for Ms. Burga, she started to

cross the intersection. Mr. Ward’s gray car emerged from East 6th Street and

collided with plaintiffs’ Jeep Cherokee. (DSOF ¶ 14; PSSOF ¶ 3; KSOF ¶ 7) Only

Mr. Ward’s vehicle collided with the plaintiffs’ Jeep; no police vehicles collided

with the Jeep. (DSOF ¶¶ 15–16)

The impact was such that Ms. Burga’s vehicle was flipped over onto its

roof. (KSOF ¶10) Ms. Burga was knocked unconscious and both plaintiffs

received medical attention at the scene before being transported to the

hospital. (KSFO ¶ 12; PSSOF ¶¶ 7–8, 14–16)

A handgun was recovered from Mr. Ward’s lap inside the gray car. (DSOF

¶ 26) Ward was placed under arrest and was ultimately charged in a ten- count

indictment. He pled guilty to an amended charge of First-Degree Aggravated

Manslaughter arising from the shooting. (DSOF ¶¶ 27–28; KSOF ¶ 9)

The entire police pursuit of Ward lasted less than five minutes. (DSOF ¶¶

15–16) The roads were dry, the weather was sunny and clear, traffic was light,

and no pedestrians were seen in the area of the pursuit. (DSOF ¶¶ 21–22)

Plaintiff Burga testified that she did not hear any emergency sirens or see any

emergency lights prior to the accident. (PRSOF ¶ 19; PSSOF ¶ 6; DRSOF ¶ 6)

3 At this point, East 6th St. had become West 6th St., according to Google Maps.

https://www.google.com/maps/place/600+Central+Ave,+Plainfield,+NJ+07060/@40.6

129202,-

74.4235438,17z/data=!3m1!4b1!4m5!3m4!1s0x89c3b9f1309afc5f:0x8d2d43b19cab88

9c!8m2!3d40.6129202!4d-74.4213498?hl=en

Ms. Pacheco agreed. (PRSOF ¶19; PSSOF ¶¶ 9–13) Neither plaintiff recalled

seeing or hearing the gray car prior to impact. (DSOF ¶¶ 19–20)

B. New Jersey AG Guidelines for police pursuits

It is undisputed that Sargent Kennovin, Officer McCall, and Detective

Black graduated from the John H. Stamler Police Academy, where they received

training on police pursuits. (DSOF ¶¶ 29–35) They all further received training

biannually on police pursuits. (Id.) McCall testified that he recalled a lot of

things about his training. (DSOF ¶ 30) He testified that Plainfield had its own

rules regarding police pursuits that were more restrictive than those contained

in the New Jersey Attorney General (“AG”) Guidelines. He could not recall

specifically what those differences were. (PRSOF ¶ 30; PSSOF ¶ 87)

The AG guidelines contain the following definition of “pursuit driving”:

an active attempt by a law enforcement officer operating a motor

vehicle and utilizing emergency warning lights and an audible

device to apprehend one or more occupants of another moving

vehicle when the officer reasonably believes that the driver of the

fleeing vehicle is aware of the officer’s attempt to stop the vehicle

and is resisting apprehension by increasing vehicle speed, ignoring

the officer or otherwise attempting to elude the officer

(DE 49-7 (Ex. R) at 290) A “primary” pursuit vehicle is defined as the one “that

initiates a pursuit or any unit that assumes control of the pursuit as the lead

vehicle (the first police vehicle immediately behind the fleeing suspect).” A

“secondary” pursuit vehicle is “[a]ny police vehicle which becomes involved as a

backup to the primary unit and follows the primary unit at a safe distance.”

(Id.)

The guidelines further outline who has the “Authorization to Pursue”:

1. A police officer may only pursue

a. When the officer reasonably believes that the violator has

committed an offense of the first or second degree, or an offense

enumerated in Appendix A of this policy, or

b. When a police officer reasonably believes that the violator poses an

immediate threat to the safety of the public or other police officers.

(Id. at 291)

The AG Guidelines impose further restrictions on police pursuits:

“[N]o more than two police vehicles (primary unit and secondary

unit) shall become actively involved in a pursuit unless otherwise

specifically directed by a supervisor.” (PSSOF ¶ 18; DRSOF ¶ 18)

“An unmarked police vehicle will not participate in a vehicular

pursuit unless it is equipped with an emergency light and an audible

device. The unmarked car shall relinquish primary unit status

immediately upon the participation of a marked vehicle.” (Ex. R at 294)

Should a vehicle in pursuit that is equipped with lights and sirens

fail to activate its lights and sirens, this would violate the AG guidelines.

(PSSOF ¶ 19; Ex. R at 294)

The parties dispute the number of police vehicles and which officers were

involved in the pursuit of Mr. Ward’s gray car. There is evidence in the record

that at least one car, and perhaps more, were in pursuit. Plaintiffs contend that

at a minimum four officers (defendants McCall and Black, and non-defendants

Hafeken and Lordi) were involved in the police pursuit.

There is no dispute that McCall was in pursuit of Mr. Ward and was the

first marked car to arrive after Detective Black radioed for assistance. It

appears that Lieutenant Hafeken, who is not a defendant here, arrived second.

The parties dispute whether Hafeken was “in pursuit” but it appears that he

was the secondary vehicle behind McCall. (DE 51-8 at 54-55 (Testimony of

Lieutenant Hafeken) stating that as he approached 5th Street he saw the

suspect vehicle and a marked patrol car). Officer Gregory A. Lordi, likewise not

a defendant here, was also involved. He fell into line somewhere behind

Hafeken. (See DE 49-7 at 157 (testimony of Officer Lordi)) Lordi testified that at

times he was approximately 500 feet behind McCall. (PSSOF ¶¶ 128–29)4

It is unclear where Black was driving while McCall, Hafeken, and Lordi

followed Ward. Detective Black testified that because he was in an unmarked

4 Officers Hafeken and Lordi are not named as defendants. Their actions are

included to round out the factual picture.

car without, e.g., overhead lights, he only followed Ward’s gray car until the

marked car driven by McCall arrived. (PSSOF ¶¶ 50–73) After that point,

defendants assert, Black did not continue to follow Ward and did not

participate in the pursuit. Plaintiffs maintain that Black continued to

participate in the pursuit of Ward. (DSOF ¶¶ 11–12; PRSOF ¶¶ 11–12) For

example, Black continued to radio direction-of-travel information, which would

be required of a participant in a police pursuit, and would also imply that he

remained close enough to observe. (PSSOF ¶¶ 74, 147)

There is no testimony that any of these officers were directed to stand

down by the Watch Commander, Lieutenant Hafeken. (DSOF ¶ 17) Defendants

dispute that Hafeken, Lordi, and Black were in “pursuit”; they admit, however,

that Hafeken and Lordi (and of course McCall) were all present and driving the

wrong way down 6th Street, where the accident occurred. (PSSOF ¶ 137) The

precise nature of Defendants’ objection to the term “pursuit” as it relates to

(non-defendant) Hafeken, is unclear. (DRSOF ¶ 137) As to non-defendant Lordi,

Defendants point to his testimony that he was much farther behind McCall and

that he stopped at each intersection when driving. (PSSOF ¶¶ 128–33, 140–

145)

Officer Kennovin stands on a different footing. Sergeant Kennovin, as

noted above, heard Black’s call. He and two other officers drove to the area.

(PSSOF ¶¶ 22–27) Kennovin, however, was not involved in following or

pursuing Ward’s car at any time. (DSOF ¶ 36; PRSOF ¶ 36; KSOF ¶ 8)

Kennovin arrived after the collision had occurred and then began securing the

scene. (KSOF ¶¶ 9, 11)

The Officers’ testimony suggests that they were aware of the AG

guidelines. All received training. Officer Kennovin agreed during his deposition

that should it be established that there were three cars—driven by McCall,

Hafeken, and Lordi—in pursuit of the gray vehicle, this would have exceeded

the AG’s guidelines. (PSSOF ¶¶33–35) Moreover, Hafeken testified that, if Lordi

had been behind him with his lights and sirens activated, then Lordi would be

considered to have been involved in the pursuit. (PSSOF ¶ 165)

As to whether sirens and lights were used, the record remains disputed.

Each of the officers operating a marked police vehicle testified that the lights

and sirens were switched on. McCall stated that he had his lights and sirens

activated as he pursued Ward. (DSOF ¶ 24; PSSOF ¶ 92) Non-defendant

Hafeken also asserted that he was operating a marked police car with

emergency lights and sirens activated. (DSOF ¶18) Non-defendant Lordi

testified that when he first arrived, neither he nor McCall had their lights and

sirens activated, but that he subsequently turned his on. (PSSOF ¶¶ 130–33) In

depositions, several of the officers were played audio recordings of the pursuit.

McCall, after listening to the audio, confirmed that he could not hear his siren

and he acknowledged that one should be able to hear the sirens on the

recording if they were on. (PSSOF ¶¶ 120–21)5

C. Procedural History

On March 10, 2017, plaintiffs Burga and Pacheco filed their civil

complaint, which has not been amended. It asserts seven causes of action:

Count 1: Civil Rights/Due Process Violations (14th Amendment/42

U.S.C. 1983) (against defendants Black, McCall, and Kennovin)

Count 2: Monell liability (against City of Plainfield, Plainfield Police Dep’t)

Count 3: Conspiracy (42 U.S.C. §§ 1985, 1986) (against all defendants)

Count 4: New Jersey Civil Rights Act (against all defendants)

Count 5: New Jersey Tort Claims Act (against defendants Black, McCall,

and Kennovin).

Count 6: Negligence (against defendant Adbul Ward only)

Count 7: Punitive Damages

On May 1, 2017, the City of Plainfield Police Division moved to dismiss

the Complaint, asserting that as a department of city government it is not a

5 Less relevantly (because his physical location during the events is unclear),

Black also testified that the first time he could hear sirens on the audio recording was

just before the crash. (PSSOF ¶¶ 80, 84) Kennovin, who arrived after the accident,

agreed that sirens could not be heard on the audio recording until a few seconds

before the crash. (PSSOF ¶ 41)

separate legal entity with the capacity to sue or be sued.6 (DE 14). The parties

filed, and the Court entered, a stipulation dismissing the Police Division with

prejudice. The City of Plainfield itself remains as a defendant. (DE 16; DE 18)

The parties then began discovery (DE 21); however, discovery was stayed

pending further order of the Court given that defendant Abdul Ward was being

prosecuted by the State of New Jersey and the Union County Prosecutor’s

Office advised that they would not provide discovery while that prosecution was

ongoing. (DE 22) Mr. Ward was then sentenced in or around March 2, 2018

(DE 23). Fact discovery recommenced. (DE 25) Expert discovery was then

conducted and all discovery was completed in or about October 2019.

On August 29, 2019, Magistrate Judge Clark issued an order outlining

the schedule for the filing of dispositive motions. (DE 41). Four defendants

moved for summary judgment. (DE 48; DE 49) The City of Plainfield, Detective

Michael Black, and Officer Pierre McCall filed a joint motion for summary

judgment on Counts 1 through 5 and 7, while Officer Craig Kennovin

separately moved for summary judgment on these same counts.7 (Id.) Plaintiffs

oppose those motions. (DE 51)

II. Discussion

A. 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

6 See, e.g., N.J. Stat. Ann. § 40A:14-118 (municipal police department is “an

executive and enforcement function of municipal government”); Padilla v. Twp. of

Cherry Hill, 110 F. App’x 272, 278 (3d Cir. 2004); Mitchell v. City of Jersey City, No.

15-6907, 2016 WL 1381379 at *1 n.1 (D.N.J. Apr. 7, 2016).

7 The only claim not addressed by these motions is Count 6, which asserts state

tort claims against co-defendant Abdul Ward only. Accordingly, this Opinion does not

address the merits of Count 6.

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, 477 U.S. at 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).

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.

B. Count 1: Civil Rights Violation Under 42 U.S.C. § 1983

i. Standard

The Count 1 Section 1983 claim seeks to hold defendants Black, McCall,

and Kennovin liable for substantive due process constitutional violations under

a “state-created danger” theory of liability. When a federal right is infringed by

an official acting under color of state law, the Civil Rights Act of 1871 provides

a remedy:

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 rights, privileges or immunities secured by the

Constitution and laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper proceeding for redress.

42 U.S.C. § 1983. Section 1983 allows a party who has been deprived of rights,

privileges, or immunities secured by the Constitution to seek damages and

injunctive relief. See id.

Section 1983 is not in itself a source of substantive rights; it provides a

remedy for violations of rights protected by other federal statutes or by the U.S.

Constitution. City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985).

Therefore, in evaluating a § 1983 claim, a court must first “identify the exact

contours of the underlying right said to have been violated” and determine

“whether the plaintiff has alleged a deprivation of a constitutional right at all.”

Id. (citing Cnty. of Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998)).

A prima facie case under § 1983 requires plaintiffs to demonstrate that

(1) a person deprived them of a federal right; and (2) the person who deprived

them of their right 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 (1980)). Element (2)—whether the officer here acted under color of

state law—is not disputed by the parties. The parties’ dispute arises as to

element (1)—whether plaintiffs were deprived of a federal right.

Whether element (1) of plaintiffs’ “state-created danger” theory depends

on whether plaintiffs have satisfied the Third Circuit’s four-part test as outlined

in Kneipp v. Tedder, 95 F.3d 1199 (3d Cir. 1996). In Kneipp, the Third Circuit

held that in order to state a viable claim where the state had created a danger a

plaintiff must show:

(1) that the harm ultimately caused to the plaintiff was foreseeable and

fairly direct;

(2) the state actor acted in willful disregard for the plaintiff’s safety;

(3) there was some relationship between the state and the plaintiff; and

(4) the state actor used his authority to create an opportunity for danger

that otherwise would not have existed.

Id. at 1208.

As to element 1, the question is whether the harm was foreseeable and

direct. “To adequately plead foreseeability ..., we require a plaintiff to allege ...

an awareness of risk that is sufficiently concrete to put the [state] actors on

notice of the harm.” Henry v. City of Erie, 728 F.3d 275, 282 (3d Cir. 2013)

(quoting Phillips v. Cty. of Allegheny, 515 F.3d 224, 238 (3d Cir. 2008)).

Element 2 requires not just negligence, but that “a state actor acted with

a degree of culpability that shocks the conscience.” K.W. by & through White v.

Se. Pennsylvania Transportation Auth., 760 F. App’x 104, 107 (3d Cir. 2019)

(citing Sanford v. Stiles, 456 F.3d 298, 304 (3d Cir. 2006)); see also Lewis, 523

U.S. 833. “While the state actor’s behavior must always shock the conscience,

the specific level of culpability required to shock the conscience increases as

the time to deliberate decreases. Where state actors have an opportunity to

deliberate and make ‘unhurried judgments,’ deliberate indifference is

sufficient.” M.J.G. v. Sch. Dist. of Philadelphia, 774 F. App’x 736, 744 (3d Cir.

2019). The late Chief Judge Simandle explicated that standard thus:

[It] depends on the particular circumstances of the case. Walter,

544 F.3d at 192 (quoting Miller v. City of Phila., 174 F.3d 368, 375

(3d Cir.1999)). Where state officials are asked to make split-second

decisions in “‘a hyperpressurized environment,’ an intent to cause

harm is usually required....’” Id. (quoting Sanford v. Stiles, 456

F.3d 298, 306 (3d Cir. 2006)). By contrast, “where officials are

afforded the luxury of a greater degree of deliberation and have

time to make ‘unhurried judgments,’ deliberate indifference is

sufficient to support an allegation of culpability.” Phillips, 515 F.3d

at 240–41 (emphasis in original). The Third Circuit has recognized

a middle-ground standard in other circumstances:

[W]here the circumstances require a state actor to make

something less exigent than a “split-second” decision but

more urgent than an “unhurried judgment,” i.e., a state

actor is required to act “in a matter of hours or minutes,” a

court must consider whether a defendant disregarded a

“great risk of serious harm rather than a substantial risk.”

Id. at 241 (quoting Sanford, 456 F.3d at 306). The Third Circuit

has described this middle-ground standard as: “gross negligence

and arbitrariness—the state actor must ‘consciously disregard[ ] a

great risk of serious harm.’” Walter, 544 F.3d at 193.

Van Orden v. Borough of Woodstown, 5 F. Supp. 3d 676, 683 (D.N.J. 2014).

The relationship requirement of element 3 “contemplates some contact

such that the plaintiff was a foreseeable victim of [the] defendant’s acts in a tort

sense.” Kneipp, 95 F.3d at 1209 n. 22. The criterion that there be “some

contact” between a state actor and a plaintiff embodies the requirement that

the danger created by a state actor cannot be directed toward the “public at

large,” but instead must be particular to a plaintiff.

Element 4 “of these conjunctive elements reflects the fact that the

substantive component of the Due Process Clause ‘is phrased as a limitation

on the State’s power to act, not as a guarantee of certain minimal levels of

safety and security. It forbids the State itself to deprive individuals of life,

liberty, or property without due process of law. . . .’” K.W. by & through White,

760 F. App’x at 107 (citing Collins v. City of Harker Heights, Tex., 503 U.S. 115,

126 (1992)).

ii. Analysis

1. Substantive due process violation

Defendants Black, McCall, and Kennovin focus in their briefing on

element 2, whether their conduct “shocks the conscience.” (DE 49-2 at 24-31;

DE 48-4 at 8-11) Officers Black and McCall assert that in the case of a rapidly

developing pursuit of a dangerous individual, plaintiffs can only satisfy the

“shocks the conscience” standard by establishing that defendants had an

intent to harm plaintiffs. See pp. 12–13, supra. (DE 49-2 at 24-31) Black and

McCall assert that they were responding to an emergency involving a

dangerous suspect who was fleeing after firing a gun. (Id. at 29-31) There is no

evidence, they say, that either one of them intended to harm these unfortunate

bystanders. (Id.) Rather, they were simply responding to the unfolding situation

and trying to apprehend someone who they perceived to be a danger to the

public. (Id.)

Officer Kennovin asserts that his conduct cannot reach the level of

“intent to harm,” as it is undisputed that he was not part of the pursuit of Mr.

Ward and only arrived on scene after the unfortunate accident. (See, e.g., KSOF

¶¶ 9, 11) In response to the distress call, he quickly but carefully drove to the

scene, and did not create any undue risk to plaintiffs. (DE 48-4 at 11)

Plaintiffs aver that a lower standard should apply under the “shocks the

conscience” framework. The officers, they say, had “at least some time to

deliberate before deciding whether and how to pursue the suspect.” (DE 51 at

9) Thus, they say, the test is not deliberate indifference, but the lower standard

of conscious disregard of a great risk of serious harm. See pp. 12–13, supra.

Under a conscious-disregard standard, plaintiffs contend that it is both

material and disputed whether defendants complied with the AG’s guidelines.

They cite in particular disputes over the number of vehicles engaged in pursuit

and whether the officers activated their lights and sirens to warn plaintiffs. (DE

51 at 9-10)

I find, however, that the deliberate intent standard, not the conscious

disregard standard, applies here. The court may even assume for purposes of

argument that these officers conducted the pursuit in a negligent or reckless

manner, or that they violated the AG’s guidelines by exceeding the permitted

number of vehicles and failing to use their sirens and lights. Even so, this

conduct would fail to rise to the required level of intent for a constitutional

violation. “Regardless whether [the officer’s] behavior offended the

reasonableness held up by tort law or the balance struck in law enforcement’s

own codes of sound practice, it does not shock the conscience, and petitioners

are not called upon to answer for it under § 1983.” Lewis, 523 U.S. at 855.

The record establishes beyond doubt that this was a high-speed chase of

a dangerous fleeing suspect. The Supreme Court held in Lewis that in such a

case, an intent-to-harm standard applies. Id. As the Third Circuit recently

summarized:

Lewis involved a police officer who was pursuing two suspects

actively fleeing the police in a dangerous manner. Id. at 836, 118

S.Ct. 1708. The suspects, riding together on a motorcycle, were

weaving in and out of traffic at high speeds. Id. After the driver of

the motorcycle lost control and crashed, the pursuing officer

accidentally struck and killed one of the suspects. Id. at 837, 118

S.Ct. 1708. The Court characterized the situation as involving an

officer who had to make an “instantaneous” reaction to the fleeing

suspects’ “outrageous behavior[.]” Id. at 855, 118 S.Ct. 1708. It

held that, in such circumstances, a police pursuit will not give rise

to a substantive due process violation absent a specific intent to

harm. Id. at 854, 118 S.Ct. 1708. In reaching that conclusion, the

Court noted that conduct intended to cause harm was “most likely

to rise to the conscience-shocking level” and that negligent conduct

was never sufficient for a substantive due process claim. Id. at

849, 118 S.Ct. 1708. It also explained, however, that conduct

falling between intentional conduct and negligent conduct was “a

matter for closer calls” that could, given the right circumstances,

be actionable under the Fourteenth Amendment. Id.

Lewis, then, clearly established that an officer can be liable for a

substantive due process violation resulting from a high-speed

pursuit of a dangerously fleeing suspect only if the officer intended

to cause harm.

Sauers v. Borough of Nesquehoning, 905 F.3d 711, 720 (3d Cir. 2018).

Mr. Ward’s responsibility and potential liability for plaintiffs’ serious

injuries is not at issue on these motions. However, it cannot be said that the

officers, in electing to pursue the fleeing Ward, violated plaintiffs’ constitutional

rights. The officers were responding to a true emergency: Detective Black

believed that he had just witnessed Mr. Ward fire a handgun and speed away

in the gray car. Mr. Ward’s behavior—engaging in a shooting, dangerously

operating a motor vehicle at excessive speeds, and driving the wrong way down

a one-way street in a residential area—fully justified Black’s judgment that he

was a dangerous suspect who had to be apprehended. Black had to make an

instantaneous decision. He radioed for assistance and additional officers,

including McCall, responded. They, too, understood that they were actively

pursuing a fleeing suspect who was endangering the public. Officer McCall was

in the lead, i.e., immediately behind Ward’s gray car. The record is clear that

the pursuit took place at high speed, developed rapidly, and lasted at most 5

minutes. The circumstances here are thus akin to those in Lewis. As Lewis and

Sauers establish, an officer can only be liable for a substantive due process

violation resulting from a high-speed pursuit of a dangerously fleeing suspect if

the officer intended to cause harm. Lewis, 523 U.S. at 854–55; Sauers, 905

F.3d at 720.

As to defendants Black, McCall, and Kennovin, there is no evidence of

intent to cause harm to plaintiffs. Failure to use lights or comply with AG

guidelines, if it occurred, was perhaps negligent. But not even plaintiffs

contend that this evidence amounts to an “intent to harm”; rather, plaintiffs

assert that this behavior, if proven, amounts to “a conscious disregard of a

great risk of serious harm.” (DE 51 at 10) That, as I have held, is not the

standard; intent is required. This was an accident, created by Mr. Ward’s

reckless and criminal behavior; the plaintiffs, innocent bystanders, were

unfortunately victims of it. The evidence is insufficient to establish that it was

any officer’s intent to harm plaintiffs.

Therefore, I find that plaintiffs have not established that defendants

violated their constitutional rights under Section 1983.

2. Qualified Immunity

Defendants Black, McCall, and Kennovin all contend in the alternative

that, even if this Court were to find that they violated plaintiffs’ constitutional

rights, they would be entitled to qualified immunity. (DE 48-4 at 17–18; DE 49-

2 at 31–37) Notwithstanding that plaintiffs have failed to establish a cognizable

claim under 42 U.S.C. § 1983, I find in the alternative that officer defendants

are also entitled to the protections of qualified immunity.

“The doctrine of qualified immunity insulates government officials who

are performing discretionary functions ‘from liability for civil damages insofar

as their conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.’” James v. City of

Wilkes-Barre, 700 F.3d 675, 679 (3d Cir. 2012) (quoting Harlow v. Fitzgerald,

457 U.S. 800, 818, 102 S. Ct. 2727, 73 L.Ed.2d 396 (1982)). The U.S. Supreme

Court has established a two-part analysis that governs whether an official is

entitled to qualified immunity. See Saucier v. Katz, 533 U.S. 194, 201, 121 S.

Ct. 2151 (2001). That two-part analysis inquires as to (1) whether the facts put

forward by the plaintiff show a violation of a constitutional right; and (2)

whether the right at issue was clearly established at the time of the alleged

misconduct. Id.; James, 700 F.3d at 679.

As stated above, no private constitutional right has been violated. Thus

plaintiffs cannot overcome the first prong required to pierce qualified immunity.

Nevertheless, I will, as required, consider the second prong, i.e., whether the

right allegedly violated was clearly established. See Spady v. Bethlehem Area

Sch. Dist., 800 F.3d 633, 638 (3d Cir. 2015) (“[W]hile issues of fact may

preclude a definitive finding on the question of whether the plaintiff’s rights

have been violated, the court must nonetheless decide whether the right at

issue was clearly established.”).

The second prong of qualified immunity asks whether the right was so

clearly established that the officers should have known that they were

committing a constitutional violation under the circumstances. While courts

are not to define clearly established law at a high level of generality, Thompson

v. Howard, 679 F. App’x 177, 182 (3d Cir. 2017), the precise factual

circumstances of a given case need not have been previously considered. Kelly

v. Borough of Carlisle, 622 F.3d 248, 259–60 (3d Cir. 2010) (“[O]fficials can still

be on notice that their conduct violates established law even in novel factual

circumstances, as long as the law gave the defendant officer fair warning that

his [or her] conduct was unconstitutional.” (internal citations and quotations

omitted)).

Here the right was not clearly established. In March 2015, at the time

this accident occurred, there was no clearly established Section 1983

substantive due process violation arising from a high-speed police pursuit

involving a dangerous suspect who was fleeing from the scene of a crime,

particularly where intent to harm is absent. Lewis, 523 U.S. 854–55. This is so

because in cases like this one, the “[suspect’s] outrageous behavior was

practically instantaneous, and so was [the officer’s] instinctive response. While

prudence would have repressed the reaction, the officer’s instinct was to do his

job as a law enforcement officer, not to induce [the suspect’s] lawlessness, or to

terrorize, cause harm, or kill.” Lewis, 523 U.S. at 855. That remains the law.

“We recognize that most high-speed police pursuits arise when officers are

responding to emergencies or when they must make split-second decisions to

pursue fleeing suspects. Our holding today does nothing to alter the

longstanding principle that, in such cases, constitutional liability cannot exist

absent an intent to harm.” Sauers, 905 F.3d at 723. In short, even assuming

there was an error in judgment, it would not have been clear to a reasonable

officer in this high-pressure situation that he should not chase this fleeing

gunman.

Nor would knowledge of potential liability for negligence or violations of

the AG guidelines have put the officers on notice that their conduct violated the

Constitution. The Supreme Court had already held long ago in Lewis that

“[r]egardless of whether [the officer’s] behavior offended the reasonableness

held up by tort law or the balance struck in law enforcement’s own codes of

sound practice,” it does not shock the conscience for purposes of a § 1983

claim. Lewis, 523 U.S. at 855 (decided in 1998).

Accordingly, the motions for summary judgment by defendants Black,

McCall, and Kennovin are granted as to Count 1.

C. Count 2: Monell Liability

Plaintiffs also assert a Monell claim against the City of Plainfield, alleging

that the city was liable for violations as a result of

failing to properly train the individual Defendants regarding lawful police

pursuits; failing to properly supervise and discipline the Defendants with

respect to police pursuits; failing to have proper policies and rules and

regulations regarding police pursuits; failing to properly monitor police

pursuits to ensure compliance with the Attorney General guidelines; and

negligently hiring and/or retaining the individual Defendant Police

Officers responsible for the constitutional violations committed on the

Plaintiff.

(Compl. ¶ 32)

The City of Plainfield contends that the Plainfield police officers complied

with the AG’s guidelines regarding pursuit. (DE 49-2 at 16–17) Moreover,

Plainfield asserts that there is no causal link between any purported official

policy and the purported constitutional violation that led to the harm here. (DE

49-2 at 18) Plaintiffs brief in opposition does not address these arguments. As

discussed below, I will grant the City of Plainfield’s motion for summary

judgment as to Count 2.

i. Standard

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). While “in a

substantive due process case arising out of a police pursuit, an underlying

constitutional tort can still exist even if no individual police officer violated the

Constitution . . . The City is liable under section 1983 if its policymakers,

acting with deliberate indifference, implemented a policy of inadequate training

and thereby caused the officers to conduct the pursuit in an unsafe manner

and deprive the plaintiffs of life or liberty.” Fagan v. City of Vineland, 22 F.3d

1283, 1292 (3d Cir. 1994).

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, 89 F.3d at 971 (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.

ii. Analysis

Plaintiffs have failed to oppose defendants’ motion for summary

judgment as to Count 2. Even where a local rule deems unopposed motions to

be conceded, however, the Court is still required to analyze the movant’s

summary judgment motion under the standards of Fed. R. Civ. P. 56(e)). See

Anchorage Assocs. v. Virgin Islands Bd. of Tax Review, 922 F.2d 168, 175 (3d

Cir. 1990); 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 [plaintiffs’] 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)). I have done so, and I

conclude that summary judgment must be granted in favor of the City of

Plainfield on Count 2.

The parties do not appear to dispute that Plainfield had adequate policies

in place. It is undisputed that all of the officers involved here had significant

training with respect to police pursuits and received additional training

biannually. Each officer was aware of the proper policies for a pursuit: that

there be no more than two vehicles and that should an officer be involved in a

pursuit, the officer must activate the car’s lights and sirens. (See, e.g., PSSOF

¶¶ 18–20; DSOF ¶¶ 29–38)) It may be that officers, despite their training, failed

to comply with established pursuit policies. Plaintiffs have failed to establish,

however, that the procedures of the City or the Police Department were

deficient in some overall or systematic way and that these deficiencies were the

cause of their injuries.

I next consider the failure-to-train theory of liability. “Only where a

failure to train reflects a ‘deliberate’ or ‘conscious’ choice by a municipality—a

‘policy’ as defined by our prior cases—can a city be liable for such a failure

under § 1983.” City of Canton, Ohio v. Harris, 489 U.S. 378, 389 (1989). The

Supreme Court has also noted that “[a] pattern of similar constitutional

violations by untrained employees is ‘ordinarily necessary’ to demonstrate

deliberate indifference for purposes of failure to train.” Connick v. Thompson,

563 U.S. 51, 62 (2011) (citation omitted). Here, there is no evidence to establish

that Plainfield failed to train its officers. Although plaintiffs point to instances

where the officers at times forgot the details of certain policies (see PSSOF ¶

87), all of the officers were generally aware of the AG’s pursuit policies, received

training while at the police academy, and received training biannually on police

pursuits. (DSOF ¶¶ 29–38) Moreover, plaintiffs present no evidence of a pattern

of constitutional violations during police pursuits in Plainfield. Accordingly, I

cannot conclude that Plainfield exhibited deliberate indifference when training

its officers.

Finally, I consider the plaintiffs’ failure-to-supervise theory. Plainfield

may be liable for its failure to supervise only if it reflects a policy of deliberate

indifference to constitutional rights. See Montgomery v. De Simone, 159 F.3d

120, 126–27 (3d Cir. 1998). Again, I see no support for this claim in the record

before me. For example, there are no allegations that the City was so far

detached from training its officers that it could be called deliberately indifferent

to the fact that its officers could violate plaintiffs’ constitutional rights.

Because plaintiffs have failed to demonstrate any facts to establish the

existence of an unconstitutional policy or custom and that the policy or custom

was the proximate cause of any alleged deprivation of her constitutional rights,

I will grant summary judgment in favor of the City of Plainfield on Count 2 of

the Complaint.

D. Count 3: Conspiracy

Plaintiffs also assert a conspiracy claim against defendants, citing 42

U.S.C. §§ 1985 and 1986. Specifically, Count 3 of the Complaint 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 Plaintiffs the protection of the laws and to injure them.” (Compl. ¶ 38)

Plaintiffs failed to oppose or otherwise address defendants’ arguments with

respect to the Count 3 conspiracy claim.

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

conspiracy which deprives a person of civil rights. It is unclear whether

plaintiffs intend to raise 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. 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) (citing Lake v. Arnold, 112 F.3d

682, 685 (3d Cir. 1997). 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

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))

Plaintiffs fail to point to any facts or evidence in the record to support

their allegation that there was a conspiracy to obstruct justice, that defendants

had a race-based motive for their actions (whether vis-à-vis Mr. Ward or

themselves), or that defendants’ actions were somehow discriminatory.

Plaintiffs also raise a claim under 42 U.S.C. § 1986. A cause of action

under § 1986 is essentially one for misprision 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)). As noted above, no § 1985

conspiracy has been made out.

Because plaintiffs have not established a prima facie claim under 42

U.S.C. §§ 1985 and 1986, or any material facts in dispute regarding this claim,

summary judgment is granted to defendants on Count 3.

E. Count 4: New Jersey Civil Rights Act Claim

Count 4 alleges a violation of state constitutional protections pursuant to

a state-created-danger theory under the New Jersey Civil Rights Act (“NJCRA”).

The NJCRA, N.J. Stat. Ann. § 10:6-2(c), provides that “[a]ny person who has

been deprived of any substantive rights, privileges or immunities secured by

the Constitution or laws of this State by a person acting under color of law,

may bring a civil action for damages.”

The New Jersey State Legislature, when it enacted the NJCRA, intended

it to parallel 42 U.S.C. § 1983, and sought to incorporate existing § 1983

jurisprudence. Perez v. Zagami, 218 N.J. 202, 515 (2014); see also RaCapt. Mos

v. Flowers, 429 N.J. Super. 13, 23 (App. Div. 2012) (stating that NJCRA was

“modeled on the federal civil rights law which provides for a civil action for

deprivation of civil rights.” (citations omitted)). Thus, the NJCRA is construed

nearly identically to Section 1983.

The parties have not suggested any distinction between the NJCRA claim

asserted under Count 4 and their Count 1 counterparts under 42 U.S.C. §

1983. Therefore, for the reasons outlined in Section II.B, supra, defendants’

motions for summary judgment on Count 4 are granted.

F. Count 5: New Jersey Tort Claim Act

To say that plaintiffs do not have a constitutional claim, however, is not

to say that they have no remedy at all. See Sauers, 905 F.3d at 723 (“We

emphasize that our decision on qualified immunity does not mean that

Homanko is immune from any suit arising from his conduct; he is only

immune to a suit alleging the federal constitutional claims made here. He

remains exposed to state law tort claims that can, and have been, brought

against him, so Sauers is not without a remedy.”). I therefore consider the

plaintiffs’ state-law claims.

i. Supplemental Jurisdiction

Defendants Black and McCall assert that should all federal claims be

dismissed, this Court should then decline to exercise supplemental jurisdiction

over plaintiffs’ state-law tort claims. I disagree.

Under 28 U.S.C. § 1367(c), the Court has discretion to decline

jurisdiction over remaining claims after all claims over which the court

possesses original jurisdiction have been dismissed from the action. The Third

Circuit has held that after all federal claims are dismissed, a “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 Shaffer v. Bd. of Sch. Dirs. of Albert Gallatin Area Sch. Dist., 730

F.2d 910, 912 (3d Cir. 1984) (holding that “pendent jurisdiction should be

declined where the federal claims are no longer viable, absent extraordinary

circumstances”). In short, the presumptive rule is that the state claims shall be

dismissed, unless reasons of economy and fairness dictate otherwise.

Where the case has been substantially litigated, it may be a proper

exercise of discretion to retain the state claims. See Growth Horizons, Inc. v.

Delaware County, Pa., 983 F.2d 1277, 1284–85 (3d Cir. 1993) (remanding for

exercise of discretion as to whether to retain pendent claim, noting that where

the district court already heard all evidence necessary to decide the state

contract claim, it might elect to retain jurisdiction). Where, on the other hand,

the case is nowhere close to summary judgment or trial, remand may be the

proper course. Freund v. Florio, 795 F. Supp. 702, 710 (D.N.J. 1992) (“[A]t this

early stage in the litigation, dismissal of the pendent state claims in a federal

forum will result in neither a waste of judicial resources nor prejudice to the

parties.”).

Here, I will exercise my discretion to retain supplemental jurisdiction

over these state claims. The matter is not in its early stages; it has been

substantially litigated. This matter was filed three years ago; discovery has

been completed; we are at the summary judgment stage; and the evidence

underlying the state claims substantially overlaps that underlying the federal

claims. I therefore find that it would be inefficient, inconvenient, and unfair to

force the litigants to recommence this litigation in state court.

Accordingly, I turn to plaintiffs’ claims under the New Jersey Tort Claims

Act. As to these tort claims, defendants do not for the most part contest the

sufficiency of the evidence head-on. Rather, Kennovin, Black, and McCall

assert that they are entitled to either absolute immunity or qualified immunity.

ii. Absolute Immunity

The New Jersey Tort Claims Act (“NJTCA”), N.J. Stat. Ann. § 59–1–1, et

seq., sets the conditions under which public entities and public employees can

be held liable in tort. “Except as otherwise provided by this act, a public

employee is liable for injury caused by his act or omission to the same extent

as a private person.” N.J. Stat. Ann. § 59:3-1(a). However, “[a] public employee

is not liable for an injury where a public entity is immune from liability for that

injury.” Id. § 59:3-1(c). As relevant here, the NJTCA grants immunity from

liability for a law enforcement officer’s infliction of injury while a person is

resisting or evading arrest, or while the officer is pursuing a suspect:

Neither a public entity nor a public employee is liable for: . . . .

(b) any injury caused by: . . .

(3) a person resisting arrest or evading arrest; . . .

(c) any injury resulting from or caused by a law enforcement officer’s

pursuit of a person.

N.J. Stat. Ann. § 59:5–2. “The liability of a public employee established by this

act is subject to any immunity of a public employee provided by law and is

subject to any defenses that would be available to the public employee if he

were a private person.” N.J. Stat. Ann. § 59:3-1(b). This immunity extends to

“all injuries arising out of a police pursuit, even those that would not have

occurred but for the negligence of the police.” Epifan v. Roman, No. 11–cv–

2591, 2014 WL 4828606, at *16 (D.N.J. Sept. 29, 2014) (citing Alston v. City of

Camden, 773 A.2d 693, 697 (N.J. 2001)). However, NJTCA immunity does not

extend to public employees if their conduct “was outside the scope of [their]

employment or constituted a crime, actual fraud, actual malice, or willful

misconduct.” N.J. Stat. Ann. § 59:3–14(a).

The parties dispute the extent to which all of the officers were actually

engaged in “pursuit,” a status which triggers one form of Section 59:5-2(c)

immunity. Although the NJTCA does not define “pursuit,” in Torres v. City of

Perth Amboy, 329 N.J. Super. 404, 407 (N.J. Super. Ct. App. Div. 2000), the

court held that the definition of pursuit under Section 5-2(c) mirrors that

under the AG guidelines. The AG guidelines define pursuit as

an active attempt by a law enforcement officer operating a motor

vehicle and utilizing emergency warning lights and an audible

device to apprehend one or more occupants of another vehicle

when the officer reasonably believes that the driver of the fleeing

vehicle is aware of the officer’s attempt to stop the vehicle and is

resisting apprehension by increasing vehicle speed, ignoring the

officer or otherwise attempting to elude the officer.

Chunkoo v. City of Newark Police Dep’t, No. A-4286-16T3, 2019 WL 1501548, at

*4 (N.J. Super. Ct. App. Div. Apr. 4, 2019), cert. denied, 238 N.J. 590, 214 A.3d

174 (2019), and cert. denied, 238 N.J. 601, 214 A.3d 181 (2019). (See also Ex.

R at 290)

Under these criteria, and accepting all inferences in plaintiffs’ favor, a

reasonable jury could determine that this definition of “pursuit” could apply to

the acts of Officer McCall (and possibly those of non-defendants Lieutenant

Hafeken and Officer Lordi). (See PSSOF 92, ¶¶ 130–33; DSOF ¶¶ 18, 24) As to

Detective Black, as noted above, there is a factual dispute as to whether he

engaged in “pursuit” of Ward. On at least one permissible interpretation of the

facts, then, the NJTCA “pursuit” immunity could apply to McCall or Black.

Assuming Black and McCall were in pursuit, the critical issue becomes

whether they engaged in “willful misconduct” sufficient to pierce that

immunity. N.J. Stat. Ann. § 59:3–14(a), quoted supra.

[I]n the context of a police officer’s enforcement of the law,

including the pursuit of a fleeing vehicle, willful misconduct is

ordinarily limited to a knowing violation of a specific command by

a superior, or a standing order, that would subject that officer to

discipline. Because a direct order to terminate a pursuit, or not to

pursue at all under certain circumstances, would be intended to

minimize the potential harm, officers who willfully disregard such

commands would be aware that to do so would be to greatly

enhance the risk of injury, not only to themselves but to the public

at large.

The phrase “willful misconduct” in this context naturally

commands the meaning we here attribute to it: the knowing failure

to follow specific orders, “knowing” that there is an order and

willfully failing to follow it, i.e., intentionally failing to obey the

order. More particularly, willful misconduct in a police vehicular

chase has two elements: 1) disobeying either a specific lawful

command of a superior or a specific lawful standing order and 2)

knowing of the command or standing order, knowing that it is

being violated and, intending to violate it. Where the command or

order is not only specific but clearly has no exceptions—expressed

or implied—willful misconduct is not affected by the good faith of

the public employee who believes he or she somehow had a right to

knowingly and willfully disobey.

Fielder v. Stonack, 141 N.J. 101, 125 (N.J. 1995). Issues of fact, such as the

use of sirens and adherence to the AG guidelines, preclude a finding on

summary judgment that McCall and Black did or did not act willfully.

The situation is different as to Officer Kennovin. There is no record

evidence that Officer Kennovin pursued (or chased, or followed) Ward. See N.J.

Stat. Ann. § 59:5-2(c). As plaintiffs concede, Officer Kennovin’s was not one of

the police vehicles that followed Ward’s gray car down 6th Street. (DSOF ¶ 36;

PRSOF ¶ 36; KSOF ¶ 8) Indeed, Kennovin did not arrive on the scene until after

the collision had occurred. (KSOF ¶¶ 9, 11) It follows that “pursuit” immunity

would not apply. That suggests, however, a more basic problem with plaintiffs’

theory. The NJTCA would hold this officer liable only “to the same extent as a

private person.” N.J. Stat. Ann. § 59:3-1(a). Kennovin indisputably did not

pursue Ward at all; a fortiori, he cannot have done so intentionally, negligently,

or in violation of the AG Guidelines. There is no evidence that Officer Kennovin

did anything, negligent, intentional, or otherwise, to injure the plaintiffs.

Therefore, I will grant Officer Kennovin’s motion for summary judgment as to

Count 6.

Here, there are material facts in dispute that preclude the application of

absolute immunity. It remains disputed how many officers engaged in the

pursuit of Mr. Ward. Plaintiffs have presented evidence, which defendants

dispute, from which a reasonable jury could conclude that there were at least

three cars in pursuit, in excess of the AG’s guidelines. The officer’s disregard of

these guidelines could reasonably contribute to a jury finding that the officers

engaged in willful misconduct:

[T]he AG Policy prohibits two police vehicles from engaging in the

same pursuit, unless otherwise directed by supervisors. Such a

rule leaves no discretion and a knowing violation would constitute

willful misconduct.

Chunkoo, 2019 WL 1501548, at *5 (emphasis added). Moreover, there is

evidence in the form of audio recordings from which a reasonable jury could

conclude that some or all of the officers did not activate their sirens (or did not

do so until seconds before the accident occurred), also in violation of the

guidelines. The officers, having undergone significant training with respect to

police pursuits, were actually aware of those AG guidelines.

In summary, then, I will deny the motion of defendants Black and

McCall for summary judgment insofar as it seeks to dismiss plaintiffs’ NJTCA

claim under the doctrine of absolute immunity. Kennovin’s motion for

summary judgment on the NJTCA claims is granted.

iii. Qualified Immunity

Defendants also invoke the NJTCA’s “qualified immunity” provision,

which provides that “A public employee is not liable if he acts in good faith in

the execution or enforcement of any law. Nothing in this section exonerates a

public employee from liability for false arrest or false imprisonment.” N.J. Stat.

Ann. § 59:3-3. The immunity granted under Section 59:5-2 is more expansive

than the immunity granted under 59:3-3. As to Black and McCall, however,

there exists a genuine issue of material fact as to whether they engaged in

willful misconduct. That being the case, “the Court cannot determine as a

matter of law whether the NJTCA shields [defendants Black and McCall] from

liability.” Norman v. Haddon Twp., No. 1:14-CV-06034-NLH-JS, 2017 WL

2812876, at *13 (D.N.J. June 29, 2017). As to them, summary judgment is

therefore denied.

As to Kennovin, who is absolutely immune, this qualified immunity

would apply a fortiori. As to him, qualified immunity would be appropriate;

plaintiffs do not point to any tortious act, let alone an act that would

undermine the presumption of his good faith execution of the laws. As to

Kennovin, summary judgment is granted on the alternative ground of qualified

immunity.

G. Count 7: Punitive Damages

Count 7 asserts a claim for punitive damages. Plaintiffs concede that

punitive damages are not available against the City of Plainfield. (DE 51 at 15)

Nevertheless, they contend that punitive damages can still be awarded against

the individual defendants because their behavior evinces reckless or careless

indifference. (Id.)

With respect to plaintiffs’ claim for punitive damages under Count 7,

summary judgment must be awarded to defendants. “Punitive damages” is not

a cause of action but one of a number of forms of relief that might apply should

some cause of action be proven:

Punitive damages are a remedy incidental to cause of action, not a

substantive cause of action in and of themselves. See, e.g., Sellers

v. School Bd. of City of Manassas, 960 F.Supp. 1006, 1011–12

(E.D.Va.1997) (noting that compensatory and punitive damages

not available under § 1983 if plaintiff does not state violation of

substantive right), aff’d, 141 F.3d 524 (4th Cir. 1998); California

Natural, Inc. v. Nestle Holdings, Inc., 631 F.Supp. 465, 474

(D.N.J.1986) (noting that New Jersey law contains no independent

cause of action for punitive damages); see also N.J. Stat. Ann. §

2A:15–5.13(c) (stating that punitive damages may be awarded

under New Jersey law only if compensatory damages have been

awarded)).

Hassoun v. Cimmino, 126 F. Supp. 2d 353, 372 (D.N.J. 2000).

Nonetheless, plaintiffs have properly requested punitive damages in their

prayer for relief. (Compl. at 12) True, the NJTCA states that “No punitive or

exemplary damages shall be awarded against a public entity.” N.J. Stat. Ann. §

59:9-2(c). Excluded from this limitation, however, are individual public

employees, such as the remaining officers here. See Hayward v. Salem City Bd.

of Educ., No. CV 14-5200 (JBS/AMD), 2016 WL 4744132, at *6 (D.N.J. Sept.

12, 2016).

Summary judgment, then, is granted on Count 7. The demand for

punitive damages in the prayer for relief is struck as to the City of Plainfield.

The prayer for punitive damages remains operative, however, as to all other

defendants and claims that remain in the case.

III. Conclusion

For the reasons set forth above, I will grant Officer Craig Kennovin’s

motion for summary judgment (DE 48) in its entirety. As to Kennovin, the

entire complaint is dismissed with prejudice.

I will grant in part and deny in part the joint motion for summary

judgment (DE 49) filed by the City of Plainfield, Officer McCall and Detective

Black. Counts 1, 3, 4, and 7 are dismissed with prejudice as against Black and

McCall. Counts 2, 3, 4, and 7 are dismissed with prejudice as against the City

of Plainfield.

The remaining claims are as follows:

Count 5 (NJTCA) as to Defendants City of Plainfield, Black, and McCall;

Count 6 as to Defendant Ward.

An appropriate order follows.

Dated: May 8, 2020

/s/ Kevin McNulty

____________________________________

Kevin McNulty

United States District Judge