The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
LAWRENCE J. MILLS, et al. : CIVIL ACTION
:
v. :
:
GOLDEN NUGGET ATLANTIC CITY, :
LLC, et al. : NO. 19-19610
MEMORANDUM
Bartle, J. June 22, 2020
Plaintiffs Lawrence J. Mills (“Mills”) and Daniel
Chun (“Chun”), acting pro se, commenced this action against
defendants Golden Nugget Atlantic City, LLC (“Golden Nugget”),
Landry’s LLC, several employees of Golden Nugget, and five
members of the New Jersey State Police, Detective Sergeant
Richard Wheeler (“Wheeler”), Detective Sergeant Mark Devine
(“Devine”), Captain Michael Flory (“Flory”), Detective Sergeant
Lance Moorhouse (“Moorhouse”), and Detective Sergeant First
Class Carl Smallwood (“Smallwood”) for alleged violations of
their rights under the United States Constitution and New Jersey
Constitution as well as for the commission of various torts
under New Jersey law. The claims all stem from the arrest of
Mills and Chun at the Golden Nugget Casino on November 2, 2017.
Before the court are the motions of defendants
Wheeler, Flory, Moorhouse, Smallwood, and Devine to dismiss the
complaint for failure to state a claim under Rule 12(b)(6) of
the Federal Rules of Civil Procedure.
I
When deciding a Rule 12(b)(6) motion, the court must
accept as true all factual allegations in the complaint and draw
all inferences in the light most favorable to the plaintiff.
See Phillips v. Cty. of Allegheny, 515 F.3d 224, 233 (3d Cir.
2008); Umland v. PLANCO Fin. Servs., Inc., 542 F.3d 59, 64
(3d Cir. 2008). We must then determine whether the pleading at
issue “contain[s] sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim must do
more than raise a “mere possibility of misconduct.” Fowler v.
UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009) (quoting Iqbal,
556 U.S. at 679). Under this standard, “[t]hreadbare recitals
of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.
On a motion under Rule 12(b)(6), the court may consider
“allegations contained in the complaint, exhibits attached to
the complaint, and matters of public record.” Pension Benefit
Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196
(3d Cir. 1993) (citing 5A Charles Allen Wright & Arthur R.
Miller, Federal Practice and Procedure § 1357 (2d ed. 1990)).
II
The following factual allegations from plaintiffs’
complaint, and the undisputedly authentic documents attached
thereto, are taken as true for present purposes. Golden Nugget
is a casino and hotel located in Atlantic City, New Jersey. On
or about November 2, 2017, Chun and Mills traveled from Maryland
to the Golden Nugget. Chun brought with him $1,000 in cash that
Mills had given him for the purpose of gambling with the
understanding that they would split any winnings. At the time,
the Golden Nugget was running a promotion whereby the casino
would match any person’s first-time deposit to their internet
gaming account up to $1,000.
Once at the Golden Nugget, Chun went to the gaming
floor and deposited the $1,000 at the cage to create an internet
gaming account. Chun then went to the Golden Nugget’s Wine and
Wi-Fi Lounge and attempted to log into his online account but
was unable to do so. Chun contacted Golden Nugget’s technical
support and was instructed to wait at least thirty minutes
before attempting to log in.
Meanwhile, a Golden Nugget Cage Supervisor requested
surveillance photographs of Chun based on the belief “that Chun
and his associates are involved in I-Gaming scam.” The Golden
Nugget reported to the New Jersey State Police that several
individuals from Maryland had deposited $1,000 in cash at the
casino for the purpose of establishing internet gaming accounts.
Officers thereafter arrived at the casino to surveil Mills,
Chun, and others.
Chun continued to attempt to withdraw or otherwise
access the funds in his account, but the casino repeatedly
thwarted his efforts. Blaming technical issues, casino
personnel instructed Chun to wait a period of time and then try
again to access the money. Meanwhile, the officers observed
Mills sitting in the casino’s Wine and WiFi Lounge using his
laptop. Mills was also overheard speaking on his cell phone to
an unknown individual about his inability to withdraw or use the
funds. The officers also observed Mills and Chun, along with
another individual, walking back and forth from the main cage to
the lounge.
After a final unsuccessful attempt to withdraw money
from his account, Chun and the other individual left Mills and
headed to the parking garage. Officers Wheeler, Flory,
Moorhouse, and Smallwood followed and approached Chun and the
other individual at their vehicle. One of the officers slammed
Chun’s face against his car, placed him under arrest, and then
searched his person. Chun was transported to a police station
where he was held for three hours. Mills was arrested by Devine
and another officer in the Wine and WiFi Lounge.1 The officers
seized Mills’ driver’s license, briefcase, laptop, and cell
phone. Mills was transported to a police station where he was
placed in a holding cell with his left arm cuffed to a metal
bench for several hours.
Mills was charged with a third-degree felony, theft by
deception, in violation of N.J. Stat. Ann. § 2C:20-4. That
charge was later administratively dismissed on June 1, 2018.
Chun was never charged with any crime.
In their complaint, plaintiffs allege the following
causes of action against defendants Wheeler, Flory, Moorhouse,
Smallwood, and Devine: (1) conversion (Count I); (2) false
arrest (Count VII); (3) battery (Count VIII); (4) false
imprisonment (Count IX); (5) negligence (Count X); (6) gross
negligence (Count XI); (7) false light (Count XIII);
(8) invasion of privacy (Count XIV); (9) defamation, libel, and
slander (Count XV); (10) civil conspiracy (Count XVI);
(11) intentional infliction of emotional distress (Count XVII);
(12) negligent infliction of emotional distress (Count XVIII),
(13) malicious prosecution (Count XIX); (14) malicious abuse of
process (Count XX); (15) malicious use of process (Count XXI);
(16) conspiracy to violate civil rights under 42 U.S.C. § 1983
1. The other officer, identified as Detective Nelson, is named
as a defendant in a separate civil action.
(Count XXII); (17) violation of Fourth Amendment rights against
unreasonable searches, seizures, and excessive force under
42 U.S.C. § 1983 (Counts XXIII, XXIV and XXV); (18) violation of
their Fourteenth Amendment rights to substantive and procedural
due process under 42 U.S.C. § 1983 (Counts XXVI, XXVII, and
XXVIII); and (19) violation of the New Jersey Civil Rights Act,
N.J. Stat. Ann. §§ 10:6-1 et seq. (Count XXIX).
III
We begin with plaintiffs’ claims in Counts XXII
through XXIX of the complaint for violation of their rights
under the Fourth and Fourteenth Amendments pursuant to 42 U.S.C.
§ 1983 and the New Jersey Civil Rights Act, N.J. Stat. Ann.
§ 10:6-1 et seq. Section 1983 states:
Every person who, under color of any
statute, ordinance, regulation, custom, or
usage, of any State . . . subjects, or
causes to be subjected, any citizen of the
United States or other person within the
jurisdiction thereof to the deprivation of
any rights, privileges, or immunities
secured by the Constitution and laws, shall
be liable to the party injured in an action
at law, suit in equity, or other proper
proceeding for redress.
42 U.S.C. § 1983. To state a claim under § 1983, a plaintiff
must allege: (1) the violation of a right secured by the
Constitution or laws of the United States; and (2) that the
alleged deprivation was committed or caused by a person amenable
to suit under Section 1983 and acting under color of state law.
West v. Atkins, 487 U.S. 42, 48 (1988). The New Jersey Civil
Rights Act is closely modeled after § 1983 and construed
identically. See, e.g., Coles v. Carlini, 162 F. Supp. 3d 380,
404 (D.N.J. 2015).
In the complaint, plaintiffs state that they bring
these claims against Wheeler, Devine, Flory, Moorhouse, and
Smallwood in both their individual and official capacities.
Plaintiffs now concede that defendants in their official
capacities are not persons subject to suit under § 1983 and the
New Jersey Civil Rights Act. See Will v. Michigan Dep’t of
State Police, 491 U.S. 58, 71 (1989); Blanciak v. Allegheny
Ludlum Corp., 77 F.3d 690, 697 (3d Cir. 1996). Accordingly, we
will grant the motion of defendants to dismiss Counts XXII
through XXIX to the extent that plaintiffs bring these claims
against them in their official capacities.
As to the claims against defendants in their
individual capacities, defendants assert that they are entitled
to qualified immunity. The doctrine of qualified immunity
shields government officials from money damages unless a
plaintiff pleads facts showing: (1) “that the official violated
a statutory or constitutional right”; and (2) “that the right
was ‘clearly established’ at the time of the challenged
conduct.” Ashcroft v. al–Kidd, 563 U.S. 731, 735 (2011) (citing
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
The Supreme Court has explained, “[t]o be clearly
established, a right must be sufficiently clear that every
‘reasonable official would [have understood] that what [the
official] is doing violates that right.’” Reichle v. Howards,
566 U.S. 658, 664 (2012) (quoting al–Kidd, 563 U.S. at 741)
(internal quotation marks omitted). Further, “existing
precedent must have placed the statutory or constitutional
question beyond debate.” al–Kidd, 563 U.S. at 741.
Nonetheless, a right can be clearly established without “a case
directly on point.” Id. When analyzing whether the official’s
conduct violated a clearly established right, the inquiry “must
be undertaken in light of the specific context of the case, not
as a broad general proposition.” Brosseau v. Haugen, 543 U.S.
194, 198 (2004) (quoting Saucier v. Katz, 533 U.S. 194, 201
(2001)).
“The protection of qualified immunity applies
regardless of whether the government official’s error is a
mistake of law, a mistake of fact, or a mistake based on mixed
questions of law and fact.” Pearson v. Callahan, 555 U.S. 223,
231 (2009) (internal citation and quotation marks omitted).
“[Q]ualified immunity is an objective question to be decided by
the court as a matter of law.” Curley v. Klem, 499 F.3d 199,
210 (3d Cir. 2007) (internal citation and quotation marks
omitted). Courts are to provide “ample room for mistaken
judgments” pursuant to the doctrine of qualified immunity before
imposing civil liability upon law enforcement officers. Malley
v. Briggs, 475 U.S. 335, 343 (1986). In short, all law
enforcement officers except for “the plainly incompetent or
those who knowingly violate the law” are entitled to qualified
immunity. Id. at 341.
The Fourth Amendment to the United States Constitution
provides:
The right of the people to be secure in
their persons, houses, papers, and effects,
against unreasonable searches and seizures,
shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by
Oath or affirmation, and particularly
describing the place to be searched, and the
persons or things to be seized.2
U.S. Const. amend. IV. Because arrests are “seizures” of
“persons,” they must be reasonable under the circumstances. See
Payton v. New York, 445 U.S. 573, 585 (1980).
A warrantless arrest is reasonable if the officer has
probable cause to believe that the suspect committed a crime.
Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001). To
determine whether an officer had probable cause for an arrest,
“we examine the events leading up to the arrest, and then decide
2. The protection of the Fourth Amendment, while initially
applicable only to the federal government, is now applicable to
the states since it has been incorporated by the due process
clause of the Fourteenth Amendment. See Mapp v. Ohio, 367 U.S.
643, 655 (1961).
‘whether these historical facts, viewed from the standpoint of
an objectively reasonable police officer, amount to’ probable
cause.” Maryland v. Pringle, 540 U.S. 366, 371 (2003) (quoting
Ornelas v. United States, 517 U.S. 690, 696 (1996)). Because
probable cause “deals with probabilities and depends on the
totality of the circumstances, it is a fluid concept that is not
readily, or even usefully, reduced to a neat set of legal
rules.” District of Columbia v. Wesby, 138 S. Ct. 577, 586
(2018) (internal citations and quotations omitted).
Mills and Chun allege that they were arrested and
searched without probable cause in violation of their clearly
established rights to be free from unreasonable searches and
seizures under the Fourth Amendment. It is clear from the
complaint and summons issued to Mills at the time of his arrest
that the only facts officers had was information provided by the
Golden Nugget that Chun and others had deposited $1,000 in cash
to their online gaming accounts. The officers had surveilled
Mills and observed him sitting in the Golden Nugget’s Wine and
WiFi Lounge using a laptop computer. The officers also
overheard Mills on his cell phone speaking to “an unknown person
about their inability to make a withdraw[al] or play funds
deposited into their igaming account.” Chun then left with
another individual to the parking garage while Mills remained in
the lounge. Chun was arrested at his vehicle while Mills was
arrested in the lounge.
Mills was charged with theft by deception, a
third-degree felony under New Jersey Law:
Theft by deception.
A person is guilty of theft if he purposely
obtains property of another by deception. A
person deceives if he purposely:
a. Creates or reinforces a false impression,
including false impressions as to law,
value, intention or other state of mind,
and including, but not limited to, a
false impression that the person is
soliciting or collecting funds for a
charitable purpose; but deception as to a
person's intention to perform a promise
shall not be inferred from the fact alone
that he did not subsequently perform the
promise;
b. Prevents another from acquiring
information which would affect his
judgment of a transaction; or
c. Fails to correct a false impression which
the deceiver previously created or
reinforced, or which the deceiver knows
to be influencing another to whom he
stands in a fiduciary or confidential
relationship.
The term “deceive” does not, however,
include falsity as to matters having no
pecuniary significance, or puffing or
exaggeration by statements unlikely to
deceive ordinary persons in the group
addressed.
N.J. Stat. Ann. § 2C:20-4. The information possessed by the
officers at the time of plaintiffs’ arrest was that plaintiffs
had travelled from another state to gamble at the Golden Nugget,
that Chun had deposited money at the casino for the purpose of
establishing an internet gaming account, that Mills and Chun had
walked within the casino, and that Mills had used a laptop and a
cell phone in the Wine and WiFi Lounge of the casino.3
No reasonable officer could have understood these
facts and circumstances to constitute probable cause to believe
that Mills and Chun had committed the crime of theft by
deception or any other violation of New Jersey law. See Groman
v. Twp. of Manalapan, 47 F.3d 628, 634-35 (3d Cir. 1995); Merkle
v. Upper Dublin Sch. Dist., 211 F.3d 782, 789 (3d Cir. 2000).
Thus, Mills and Chun have alleged facts sufficient to establish
a violation of their constitutional rights, that is, the right
under the Fourth Amendment to be free from arrest without
probable cause. Such right was clearly established at the time
of plaintiffs’ arrest. See, e.g., Orsatti v. N.J. State Police,
3. The summons and complaint also states that Mills committed
an offense “by paying other individuals to open online internet
gaming accounts to receive ‘match play’ new account bonuses and
using those ‘match play’ new account bonuses and using those
‘match play’ bonuses to obtain $6,000 to which he was not
entitled.” It appears that the officers only obtained this
information after plaintiffs had been formally arrested.
Therefore it is irrelevant to the analysis of whether the
officers had sufficient facts at the time of the arrest to
establish probable cause. See, e.g., United States v. Glasser,
750 F.2d 1197, 1206 (3d Cir. 1984). Regardless, defendants have
failed to explain how taking advantage of a promotion offered by
the casino would constitute illegal activity.
71 F.3d 480, 483 (3d Cir. 1995). When the arrest of a person is
undertaken without probable cause as under the facts presented
here, the search of that person and seizure of his or her
property incident to arrest also violates that person’s clearly
established rights under the Fourth Amendment. See United
States v. Robinson, 414 U.S. 218, 235 (1973). Accordingly, the
complaint states viable claims that defendants violated
plaintiffs’ clearly established rights to be free from
unreasonable search and seizure under the Fourth Amendment.
Defendants are not entitled to qualified immunity.
Accordingly, the motion of defendants to dismiss
Counts XXII through XXIX on qualified immunity grounds will be
denied.4
IV
We next turn to the claims of plaintiffs for
conversion, false arrest, battery, false imprisonment,
negligence, gross negligence, false light, invasion of privacy,
defamation, libel, and slander, civil conspiracy, intentional
infliction of emotional distress, negligent infliction of
emotional distress, malicious prosecution, malicious abuse of
4. The parties do not separately analyze plaintiffs’ claims
under the Fourteenth Amendment. At this stage of the
proceedings, we conclude that defendants are not entitled to
qualified immunity on those claims for the reasons discussed
above in connection with plaintiffs’ Fourth Amendment claims.
process, and malicious use of process in Counts I, VII-XI, and
XIII-XXI of the complaint.
Defendants assert that the tort claims of Mills must
be dismissed because Mills failed to file timely a notice of his
claims as required under the New Jersey Tort Claims Act. Under
this statute, notice of claims must be filed within 90 days of
the claims’ accrual. See N.J. Stat. Ann. § 59:8-8. The statute
further provides that “[n]o action shall be brought against a
public entity or public employee under [the TCA] unless the
claim upon which it is based shall have been presented in
accordance with the procedure set forth in this chapter.” Id.
§ 59:8-3.
“[A] claim accrues on the date on which the underlying
tortious act occurred.” Ben Elazar v. Macrietta Cleaners, Inc.,
165 A.3d 758, 764 (N.J. 2017). The unlawful search and seizure
of Mills occurred on November 2, 2017. Thus, the 90-day period
for filing a notice of claim expired on January 31, 2018 as to
Mills’ claims for conversion, false arrest, battery, false
imprisonment, negligence, gross negligence, false light,
invasion of privacy, defamation, libel, and slander, civil
conspiracy, intentional infliction of emotional distress, and
negligent infliction of emotional distress. Mills waited to
file his notice until August 23, 2018, nearly seven months too
late. Thus, these tort claims are barred.
However, Mill’s claims for malicious prosecution,
malicious abuse of process, and malicious use of process in
Counts XIX-XXI of the complaint are not barred. Such claims do
not accrue until the criminal proceeding has terminated in the
plaintiff’s favor. See Geissler v. City of Atl. City, 198 F.
Supp. 3d 389, 402 (D.N.J. 2016). Mill’s notice of claim was
filed within 90 days from June 1, 2018, the date the charge
against him was dismissed administratively. He therefore may
proceed with his claims for malicious prosecution, malicious
abuse of process, and malicious use of process.
Defendants also assert that plaintiffs’ tort claims
should be dismissed to the extent they seek damages for pain and
suffering. The New Jersey Tort Claims Act provides:
No damages shall be awarded against a public
entity or public employee for pain and
suffering resulting from any injury;
provided, however, that this limitation on
the recovery of damages for pain and
suffering shall not apply in cases of
permanent loss of a bodily function,
permanent disfigurement or dismemberment
where the medical treatment expenses are in
excess of $3,600.00. For purposes of this
section medical treatment expenses are
defined as the reasonable value of services
rendered for necessary surgical, medical and
dental treatment of the claimant for such
injury, sickness or disease, including
prosthetic devices and ambulance, hospital
or professional nursing service.
N.J. Stat. Ann. § 59:9-2.
On his notice, Chun listed “physical pain during
assault” as his injury but did not plead any loss of bodily
function, permanent disfigurement, or dismemberment. Mills
listed mental stress as the injury on his notice of tort claim
but not physical injury. However, the Tort Claim Act further
provides that “[n]othing in this Act shall exonerate a public
employee from liability if it is established that his conduct
. . . constituted . . . actual malice or willful misconduct.”
Id. § 59:3-14(a). In that event, the “full measure of recovery
applicable to a person in the private sector” controls. Id.
§ 59:3–14(b); see also Toto v. Ensuar, 952 A.2d 463, 471 (N.J.
2008). Thus, the application of the bar on pain and suffering
damages turns on the type of tort alleged.
Chun has brought claims for conversion, false arrest,
battery, false imprisonment, false light, invasion of privacy,
defamation, libel, and slander, civil conspiracy, and
intentional infliction of emotional distress. These are
intentional torts requiring willful misconduct and thus are not
subject to the limitation on damages for pain and suffering.
Chun’s claims for negligence, gross negligence, and negligent
infliction of emotional distress, which do not require a finding
of willful conduct, are barred to the extent he seeks damages
for pain and suffering as to those claims. As to Mills, his
claims for malicious prosecution, malicious abuse of process,
and malicious use of process are intentional torts requiring a
showing of actual malice and thus are not subject to the
limitation on damages for pain and suffering.
Accordingly, the motion of defendants to dismiss
plaintiffs’ complaint is granted as to the tort claims of Mills
set forth in Counts I, VII-XI and XIII-XVIII.5 The motion of
defendants to dismiss is also granted as to the tort claims of
Chun in Counts X, XI, and XVIII to the extent he seeks damages
for pain and suffering. The motion is otherwise denied.6
5. Chun filed his notice of claim on January 9, 2018 and
therefore defendants do not seek to dismiss his tort claims as
untimely.
6. Defendants also assert that they are immune from plaintiffs’
tort claims. The New Jersey Tort Claims Act provides that “[a]
public employee is not liable if he acts in good faith in the
execution or enforcement of any law.” N.J. Stat. Ann. § 59:3–3.
The New Jersey Supreme Court established that “[t]he same
standard of objective reasonableness that applies in § 1983
actions also governs questions of good faith arising under the
Tort Claims Act.” Wildoner v. Borough of Ramsey, 744 A.2d 1146,
1153 (N.J. 2000); see also Jimenez v. New Jersey, 245 F. Supp.
2d 584, 588 (D.N.J. 2003). Because we find that defendants are
not entitled to qualified immunity under § 1983, we conclude
they are not entitled to the benefit of good faith immunity
under the New Jersey Tort Claims Act.