Opinion

MILLS v. GOLDEN NUGGET ATLANTIC CITY, LLC

Court
District Court, D. New Jersey
Filed
Jun 24, 2020
Cited by
0 cases
Authority
More cited than 25.2%

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.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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