ROWLEY v. SULLIVAN

[Dkt. No. 37]

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

THOMAS E. ROWLEY,

Plaintiff,

Civil No. 18-5241 (RMB/AMD)

v.

TROOPER BRENNAN SULLIVAN, and OPINION

SERGEANT ANTHONY CASCIANO,

Defendants.

APPEARANCES:

LAW OFFICES OF MALLON & TRANGER

By: Thomas J. Mallon, Esq.

86 Court Street

Freehold, New Jersey 07728

Attorneys for Plaintiff Thomas E. Rowley

STATE OF NEW JERSEY, OFFICE OF THE ATTORNEY GENERAL

By: Marvin L. Freeman, Deputy Attorney General;

Daveon M. Gilchrist, Deputy Attorney General

R.J. Hughes Justice Complex

25 Market Street, P.O. Box 112

Trenton, New Jersey 08625

Attorneys for Defendants New Jersey State Police Trooper

Brennan Sullivan and New Jersey State Police Sergeant

Anthony Casciano

RENÉE MARIE BUMB, United States District Judge:

Plaintiff Thomas E. Rowley (“Plaintiff”) brings this civil

rights action under 42 U.S.C. § 1983, alleging violations of his

federal and state constitutional rights in relation to his

arrest and detention on June 19, 2016. In an Amended Complaint

[Dkt. No. 19], filed October 3, 2018, Plaintiff asserted claims

for false arrest/ false imprisonment (Count I), malicious

prosecution (Count II), excessive force (Count III), fabrication

of evidence (Count IV), unlawful seizure (Count V), and

violations of the New Jersey State Constitution and/or the New

Jersey Civil Rights Act (Count VI). Now, this matter comes

before the Court upon a Motion for Summary Judgment (“MSJ”)[Dkt.

No. 37], filed by Defendants, New Jersey State Police Trooper

Brennan Sullivan and New Jersey State Police Sergeant Anthony

Casciano (“Defendants”) on October 16, 2019, seeking dismissal

of Plaintiff’s Amended Complaint in its entirety. For the

reasons set forth herein, Defendants’ Motion for Summary

Judgment will be GRANTED and Plaintiff’s Amended Complaint will

be DISMISSED.

I. FACTUAL & PROCEDURAL BACKGROUND

In the early evening of June 19, 2016, Plaintiff was playing

basketball with his sons in the driveway of his home on Hedding

Road in Bordentown, New Jersey. Around 5:00 pm, Trooper

Sullivan made a right turn onto Hedding Road from Dunns Mill

Road while responding to a call in his police vehicle. Shortly

after turning onto Hedding Road, Trooper Sullivan observed

Plaintiff standing at the edge of his driveway and noticed a

ball rolling into the street. After hearing a pop, from running

over the basketball, Trooper Sullivan brought his vehicle to a

stop in the road, exited his vehicle, and began walking across

the street towards Plaintiff who was standing at the end of his

driveway, visibly and audibly annoyed with Trooper Sullivan.

Although the parties dispute the exact statements made

during the ensuing interaction, it is undisputed that Plaintiff

and Trooper Sullivan became embroiled in a heated exchange.

Plaintiff, who was admittedly “annoyed” and “frustrated,” asked

Trooper Sullivan whether he “was on a call,” to which Trooper

Sullivan responded in the affirmative. Plaintiff claims that

Trooper Sullivan used profanity and warned Plaintiff, “don’t

make me embarrass you in front of your kids.” Trooper Sullivan

claims that Plaintiff, who was “exhibiting visual signs of

intoxication,” went on an aggressive profanity-laced tirade

directed at Trooper Sullivan, in which Plaintiff complained that

he was tired of troopers repeatedly speeding down Hedding Road.

Plaintiff admits to voicing these frustrations and concerns, but

denies that he was intoxicated or used profanity.

After expressing his complaints about troopers speeding down

Hedding Road, Plaintiff attempted to walk around Trooper

Sullivan and enter the roadway to retrieve the basketball that

had become lodged under Trooper Sullivan’s police vehicle.

During the exchange between the parties, traffic had built up on

Hedding Road from both directions, including at least three cars

stuck behind Trooper Sullivan’s stopped vehicle. Given the

traffic situation, Trooper Sullivan warned Plaintiff not to

enter the roadway. Despite Trooper Sullivan’s repeated

warnings, Plaintiff persisted. After Plaintiff disregarded

Trooper Sullivan’s third instruction not to enter the roadway,

Trooper Sullivan placed Plaintiff under arrest. When carrying

out the arrest, Trooper Sullivan placed Plaintiff’s hands behind

his back and handcuffed him. Plaintiff testified that he

complained that the handcuffs were too tight and were hurting

him, but that Trooper Sullivan did not loosen them.

According to police records, Plaintiff was arrested at 5:22

pm and arrived at Bordentown Barracks, which is a quarter mile

from Plaintiff’s house, at 5:23 pm. After arriving at

Bordentown Barracks, Plaintiff was placed in a holding cell and

his handcuffs were removed. Plaintiff claims that approximately

twenty minutes after arriving at the station, he was handed a

complaint-summons for disorderly conduct and was about to be

released until he told Sergeant Casciano that he wanted to file

an internal affairs complaint against Trooper Sullivan.

Plaintiff contends that Sergeant Casciano attempted to dissuade

Plaintiff from filing a complaint against Trooper Sullivan and

then made Plaintiff return to the holding cell while awaiting

the complaint forms. About twenty minutes later, Sergeant

Casciano brought him the forms to initiate a complaint against

Trooper Sullivan and released Plaintiff. Police records

indicate that Plaintiff was processed and released from the

station at 6:11 pm.

Following his release from police custody, Plaintiff made

stops at both the Bordentown Police Station and a Patient First

medical facility, where he requested tests to measure his blood

alcohol content in an attempt to prove that he had not consumed

any alcohol. Plaintiff’s requests was denied at the Bordentown

Police Station and Plaintiff declined to be tested at Patient

First after he was informed that he would need to pay out-of-

pocket for a test. Although Plaintiff took some pictures of his

wrists indicating redness from his handcuffs on the night of the

incident, he never sought medical treatment for injuries related

to the handcuffs.

On August 23, 2017, Bordentown Municipal Court Judge Joseph

P. Montalto found Plaintiff guilty on the charge of disorderly

conduct in violation of N.J.S.A. § 2C:33-2. At trial, Judge

Montalto found that even if Plaintiff was not intoxicated, the

facts still supported a finding that Plaintiff was guilty of

disorderly conduct. In issuing his decision, Judge Montalto

opined:

“[I]f the defendant was in fact in the roadway on the

date the trooper asked him three times to get out of the

roadway, traffic was in fact stopped, and he did not

comply with the trooper’s orders... he created a risk to

the public by his failure to get off the street. And in

that regards I feel that served no legitimate purpose...

I am satisfied with that there was a physically hazardous

condition created, and it served no legitimate purpose.

A ball was struck, the car had stopped and the resident

was irate and his conduct reflected that. Accordingly,

there’s a finding of guilty.”

Municipal Trial Tr. [Dkt. No. 37-9], at 108:19-109:12.

Plaintiff appealed the Municipal Court decision to the

Superior Court of New Jersey, Burlington County. On March 27,

2018, Superior Court Judge Thomas P. Kelly reversed the

Municipal Court, finding Rowley not guilty because the State had

failed to prove, beyond a reasonable doubt, that Rowley had the

“purpose” to cause public inconvenience, annoyance or alarm. See

Superior Ct. Tr. [Dkt. No. 42-3], at 18:13-16. Following his

successful appeal of the Municipal Court decision, Plaintiff

commenced this civil rights action in the United States District

Court for the District of New Jersey on April 3, 2018.

II. STANDARD OF REVIEW

Summary judgment shall 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.” Fed. R.

Civ. P. 56(a). A fact is “material” only if it might impact the

“outcome of the suit under the governing law.” Gonzalez v. Sec’y

of Dept of Homeland Sec., 678 F.3d 254, 261 (3d Cir. 2012). A

dispute is “genuine” if the evidence would allow a reasonable

jury to find for the nonmoving party. Id.

The movant has the initial burden of showing through the

pleadings, depositions, answers to interrogatories, admissions

on file, and any affidavits “that the non-movant has failed to

establish one or more essential elements of its case.”

Connection Training Servs. v. City of Phila., 358 F. App’x 315,

318 (3d Cir. 2009). “If the moving party meets its burden, the

burden then shifts to the non-movant to establish that summary

judgment is inappropriate.” Id.

In the face of a properly supported motion for summary

judgment, the nonmovant’s burden is rigorous: he “must point to

concrete evidence in the record”; mere allegations, conclusions,

conjecture, and speculation will not defeat summary judgment.

Orsatti v. New Jersey State Police, 71 F.3d 480, 484 (3d Cir.

1995); accord Jackson v. Danberg, 594 F.3d 210, 227 (3d Cir.

2010) (citing Acumed LLC. v. Advanced Surgical Servs., Inc., 561

F.3d 199, 228 (3d Cir. 2009)(“speculation and conjecture may not

defeat summary judgment”).

III. DISCUSSION

Defendants argue that summary judgment is warranted because

the undisputed evidence in the record establishes that Trooper

Sullivan had probable cause and used only reasonable force in

arresting Plaintiff.1 The Court agrees with Defendants.

A. Count I: False Arrest/ False Imprisonment

Plaintiff’s first cause of action alleges that “Trooper

Sullivan’s actions resulted in Plaintiff being unlawfully

detained, falsely arrested and falsely imprisoned.” Am. Compl.,

at ¶ 36. A plaintiff alleging Fourth Amendment claims for false

arrest and false imprisonment is required to establish that the

arrest was made without probable cause. See Berry v. Kabacinski,

704 Fed.Appx. 71, 73 (3d Cir. 2017)(citing Groman v. Twp. of

Manalapan, 47 F.3d 628, 634, 636 (3d Cir. 1995)).

Based on the undisputed facts, this Court concludes that

probable cause existed for Plaintiff’s arrest. The Third

Circuit has recognized that “[p]robable cause to arrest exists

when the facts and circumstances within the arresting officer's

knowledge are sufficient in themselves to warrant a reasonable

person to believe that an offense has been or is being committed

by the person to be arrested.” Holmes v. McGuigan, 184 F. App'x

149, 150 (3d Cir. 2006))(quoting Orsatti v. New Jersey State

Police, 71 F.3d 480, 483 (3d Cir. 1995)). Although the question

1 Defendants also argue that Plaintiff’s claims are barred under

the doctrine of qualified immunity. Because this Court finds

that summary judgment is warranted on the merits, the Court need

not reach the issue of qualified immunity.

of probable cause is generally a question for the jury, a

district court may conclude on summary judgment “that probable

cause exists as a matter of law if the evidence, when viewed in

the light most favorable to the plaintiff, reasonably would not

support a contrary factual finding.” Merkle v. Upper Dublin Sch.

Dist., 211 F.3d 782, 788–789 (3d Cir. 2000)(internal quotation

marks and citation omitted).

In this case, Plaintiff was arrested and charged with

disorderly conduct in violation N.J.S.A. § 2C:33-2A(2). As

defined by this statute, “[a] person is guilty of a petty

disorderly persons offense, if with purpose to cause public

inconvenience, annoyance or alarm, or recklessly creating a risk

thereof he... [c]reates a hazardous or physically dangerous

condition by any act which serves no legitimate purpose of the

actor.”

In relation to this charge, Plaintiff admits that he was

“annoyed” with Trooper Sullivan and purposefully disregarded at

least three lawful commands from Trooper Sullivan to remain on

his property and not enter the roadway, where traffic was

building up. Indeed, it was based on Plaintiff’s repeated

refusal to heed Trooper Sullivan’s warnings to get out of the

roadway that Judge Montalto found that “there was a physically

hazardous condition created, and it served no legitimate

purpose.” In finding Plaintiff guilty of disorderly conduct,

Judge Montalto necessarily found that Trooper Sullivan had

probable cause for the initial arrest.

In overturning Judge Montalto’s decision, Judge Kelly never

disputed that Trooper Sullivan had probable cause to arrest

Plaintiff. Rather, Judge Kelly disagreed that the State had met

its burden of proof, of “beyond a reasonable doubt,” to

establish that Plaintiff had acted with “purpose” to cause

public inconvenience, annoyance or alarm. This finding,

however, does not suggest that Trooper Sullivan lacked probable

cause for the initial arrest. To that end, the burden for

establishing that an arresting officer reasonably believed that

an offense was being committed at the time of the arrest is a

significantly lower burden than proving guilt at trial. Wright

v. City of Phila., 409 F.3d 595, 602 (3d Cir. 2005).

Given Plaintiff’s admission that he repeatedly refused to

cooperate with Trooper Sullivan’s warnings to stay out of the

street while traffic built up on the road, no reasonable jury

could conclude that Trooper Sullivan lacked a reasonable belief

that the crime of disorderly conduct was being committed. The

fact that the conviction was overturned on appeal, because the

State could not prove the element of “purpose” beyond a

reasonable doubt, does not override the facts that gave rise to

probable cause for the arrest. Because the undisputed facts

establish that Trooper Sullivan had probable cause, and a

reasonable basis, to arrest Plaintiff for disorderly conduct,

summary judgment is warranted in favor of Trooper Sullivan on

the claim of false arrest and false imprisonment.

B. Count II: Malicious Prosecution

Second, Plaintiff claims that Trooper Sullivan “lacked

probable cause to initiate a criminal proceeding against

Plaintiff.” Am. Compl., at ¶ 40. To prevail on a claim for

malicious prosecution brought under 42 U.S.C. § 1983, a

plaintiff must satisfy each of the following five elements: “(1)

the defendants initiated a criminal proceeding; (2) the criminal

proceeding ended in plaintiff's favor; (3) the proceeding was

initiated without probable cause; (4) the defendants acted

maliciously or for a purpose other than bringing the plaintiff

to justice; and (5) the plaintiff suffered deprivation of

liberty consistent with the concept of seizure as a consequence

of a legal proceeding.” Minatee v. Philadelphia Police Dep't,

502 F. App'x 225, 227 (3d Cir. 2012)(quoting Kossler v.

Crisanti, 564 F.3d 181, 186 (3d Cir. 2009)(en banc)).

Furthermore, “the establishment of probable cause as to any one

charge [of several charges] is sufficient to defeat ... Fourth

Amendment claims,” including claims for malicious prosecution.

Startzell v. City of Phila., 533 F.3d 183, 204 n. 14. (3d Cir.

2008).

Although Plaintiff has established that the criminal

proceeding brought against him was ultimately resolved in his

favor on appeal, summary judgment is warranted because the

undisputed facts establish that Trooper Sullivan had probable

cause to arrest and charge Plaintiff with disorderly conduct.

As discussed above, Plaintiff admits that he repeatedly refused

to heed Trooper Sullivan’s warnings to stay out of the crowded

roadway. As such, no reasonable jury could conclude that

Trooper Sullivan lacked probable cause to arrest and charge

Plaintiff.

C. Count III: Excessive Force

Third, Plaintiff contends that Trooper Sullivan “engaged in

the use of force that was excessive and objectively unreasonable

under the circumstances.” This Court finds that Plaintiff has

not pointed to evidence in the record that would support a

finding that the amount of force used in his arrest was anything

but reasonable.

The Fourth Amendment prohibits the use of excessive force

by a law enforcement officer in arresting or detaining a person.

Carswell v. Borough of Homestead, 381 F.3d 235, 240 (3d Cir.

2004)(citing Graham v. Connor, 490 U.S. 386, 395 (1989)). The

test for reasonableness under the Fourth Amendment is whether

under the totality of the circumstances, “the officers' actions

are ‘objectively reasonable’ in light of the facts and

circumstances confronting them, without regard to their

underlying intent or motivations.” See Wells v. Fuentes, 2014 WL

4053954, at *3 (D.N.J. Aug. 13, 2014)(quoting Graham, 490 U.S.

at 397). “Objective reasonableness” under the circumstances is

to be evaluated from the “perspective of a reasonable officer on

the scene, rather than with the 20/20 vision of hindsight.” See

Carswell, 381 F.3d at 240.

The Third Circuit has held that a plaintiff who suffers

serious injury as a result of “excessively tight” handcuffs when

officers ignore complaints that the handcuffs are causing

significant pain may establish that the officer's “use of force

was excessive in violation of the Fourth Amendment.” Kopec v.

Tate, 361 F.3d 772, 777 (3d Cir. 2004). In analyzing excessive

force claims premised upon excessively tight handcuffs, courts

in the District of New Jersey have considered “the intensity of

the plaintiff's pain, the officer's awareness of the plaintiff's

pain, whether the plaintiff asked to have the handcuffs removed

and how long after those requests the handcuffs are removed,

whether there were circumstances justifying a delay in removing

the handcuffs, and the severity of the injury the plaintiff

suffered.” Wells, 2014 WL 4053954, at *4 (quoting Cincerella v.

Egg Harbor Twp. Police Dep't, 2009 WL 792489, at *10 (D.N.J.

Mar. 23, 2009)).

Based on the record, there is insufficient evidence for a

reasonable jury to conclude that Trooper Sullivan’s use of force

in handcuffing Plaintiff was excessive. Although Plaintiff

testified at his deposition that he told Trooper Sullivan that

the handcuffs were too tight immediately after he was

handcuffed, and that Trooper Sullivan disregarded that

complaint, Plaintiff admits that the handcuffs were removed

almost immediately after he arrived at the Bordentown Barracks.

This means that Plaintiff was only wearing the handcuffs for

approximately two minutes. Additionally, Plaintiff’s assertions

that his wrists hurt so badly that he needed to take off from

work the next day and that his wrists were “bruised, swollen,

and sore for approximately seven to ten days following his

arrest” are unsupported by any evidence in the record. At no

point after Plaintiff arrived at Bordentown Barracks did he

complain about or seek treatment for pain in his wrists from the

handcuffs. Plaintiff also did not seek treatment for injuries

to his wrists at either the Bordentown Police Station or Patient

First, or anywhere thereafter. Furthermore, even though

Plaintiff contends that bruising and swelling persisted for

seven to ten days, the only pictures in the record were taken on

the evening of the incident and show only mild redness.

Accordingly, given the facts in the record, the Court finds that

no reasonable jury could find that Trooper Sullivan used

excessive force in handcuffing Plaintiff.

D. Count IV: Fabrication of Evidence

In his fourth cause of action, Plaintiff contends that

Trooper Sullivan fabricated evidence that Plaintiff was

intoxicated and using profanity at the time of his arrest. Upon

review of the record, the Court finds that Plaintiff’s claim

fails because Trooper Sullivan would have had probable cause to

arrest Plaintiff even if the allegations of intoxication and

profanity were accepted as false.

The Third Circuit has recognized that “an acquitted

criminal defendant may have a stand-alone fabricated evidence

claim against state actors under the due process clause of the

Fourteenth Amendment if there is a reasonable likelihood that,

absent that fabricated evidence, the defendant would not have

been criminally charged.”   Black v. Montgomery Cty., 835 F.3d

358, 371–72 (3d Cir. 2016), as amended (Sept. 16, 2016).

However, on a claim for fabrication of evidence, there is a high

bar for evidence to be considered “fabricated.” Indeed,

“testimony that is incorrect or simply disputed should not be

treated as fabricated merely because it turns out to have been

wrong.” Halsey v. Pfeiffer, 750 F.3d 273, 295 (3d Cir. 2014).

Indeed, there must be “persuasive evidence supporting a

conclusion that the proponents of the evidence” are aware that

evidence is incorrect or that the evidence is offered in bad

faith. Id.

In this case, Plaintiff suggests that Officer Sullivan

fabricated evidence by falsely claiming that Plaintiff was

intoxicated and using profanity at the time of the altercation.

To that end, in the New Jersey State Police Investigation

Report, Officer Sullivan stated that upon encountering Plaintiff

he “detected the odor of an alcoholic beverage emanating from

his person and he was exhibiting visual signs of intoxication”

and that Plaintiff directed obscenities towards Officer

Sullivan. See New Jersey State Police Investigation Report [Dkt.

No. 37-6], at 4. Plaintiff disputes these allegations, claiming

that he did not drink any alcohol on the date in question and

never used profanity during the incident. However, there is no

undisputed evidence that Plaintiff never drank alcohol and did

not use profanity. To the contrary, one witness gave a

statement to Trooper Sullivan on the night of the incident

indicating that “the adults were drinking” and that Plaintiff

“got in the Trooper’s face and started to curse at him, he was

warned but didn’t listen so he got arrested.” Id.

Ultimately, the truth or falsity of the reports of

intoxication and profanity are irrelevant in this case. The

Court notes that Plaintiff was charged with disorderly conduct

for creating a hazardous condition by failing to heed Trooper

Sullivan’s repeated warnings not enter the roadway. Relevantly,

Plaintiff’s charged offense did not hinge on him being

intoxicated and was not predicated on the subsection (b) of

N.J.S.A. § 2C:33-2, which pertains to use of “offensive

language.” Therefore, the Plaintiff could have been charged

with disorderly conduct even if he were not intoxicated and did

not use any offensive language. As such, even when viewed in a

light most favorable to Plaintiff, the claim for fabrication of

evidence pertains to immaterial allegations and, thus, lacks any

factual or legal support.

E. Count V: Unlawful Seizure

In addition to his claims for false arrest and false

imprisonment against Trooper Sullivan, Plaintiff also asserts a

Fourth Amendment claim for unlawful seizure against Sergeant

Casciano for allegedly keeping Plaintiff in custody for an

additional twenty minutes after Plaintiff asked to file an

internal affairs complaint against Trooper Sullivan. Generally,

a § 1983 claim for unlawful seizure is assessed under the same

probable cause standard as false arrest and false imprisonment.

As previously noted, this Court found that Trooper Sullivan

had probable cause to take Plaintiff into custody. Because

probable cause existed, Sergeant Casciano was permitted to keep

Plaintiff in custody for a reasonable amount of time necessary

for processing. There is no evidence in the record that

Plaintiff, who was in custody for a sum total of forty-nine

minutes, was arrested a second time by Sergeant Casciano. In

fact, there is no evidence that Plaintiff was kept in custody

any longer than necessary to process Plaintiff and provide him

with the internal affairs paperwork that Plaintiff himself

requested. Therefore, Plaintiff’s claim for unlawful seizure

against Sergeant Casciano is unsupported by evidence in the

record and must be dismissed.

F. Count VI: State Law Claims

Finally, Plaintiff also asserts claims against Defendants

for violations of the New Jersey State Constitution and the New

Jersey Civil Rights Act (“NJCRA”), N.J.S.A. § 10:6-2. The NJCRA

was “modeled after 42 U.S.C. § 1983, and creates a private cause

of action for violations of civil rights secured under the New

Jersey Constitution.” See Trafton v. City of Woodbury, 799

F.Supp.2d 417, 443-44. (D.N.J. 2011); Castillo-Perez v. City of

Elizabeth, 2014 WL 1614845, at *9 (D.N.J. Apr. 21, 2014).

Notably ”[t]his District has uniformly interpreted the NJCRA in

parallel with Section 1983 and read the two as coextensive.”

Sharif v. City of Hackensack, 2018 WL 5619721, at *7 (D.N.J.

Oct. 29, 2018)(citing Estate of Lydia Joy Perry ex rel Kale v.

Sloan, 2011 WL 2148813, at *2 (D.N.J. May 31, 2011)(collecting

cases)). Accordingly, because Plaintiff has not suggested any

distinction between his claims under the NJCRA and the parallel

provisions of 42 U.S.C. § 1983, Plaintiff’s NJCRA claim will be

dismissed for the same reasons as his § 1983 claims.

IV. CONCLUSION

For the foregoing reasons, Defendants’ Motion for Summary

Judgment will be GRANTED. Plaintiff’s Amended Complaint will be

DISMISSED with prejudice. An appropriate Order shall issue on

this date.

DATED: June 30, 2020

s/Renée Marie Bumb

RENÉE MARIE BUMB

UNITED STATES DISTRICT JUDGE