# ROWLEY v. SULLIVAN

> District Court, D. New Jersey · June 30, 2020

URL: https://www.frixlaw.com/law-library/cases/10268414

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** June 30, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

[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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10268414. Public record. Not legal advice.