OCASIO v. EADY

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

LUIS OCASIO,

Plaintiff, Civ. No. 2:14-cv-00811 (WJM)

v.

OPINION

COUNTY OF HUDSON; HUDSON

COUNTY DEPARTMENT OF

CORRECTIONS; KIRK EADY, individually

and in his official capacity as Deputy Director

of Hudson County Department of

Corrections; OSCAR AVILES individually,

Defendants.

WILLIAM J. MARTINI, U.S.D.J.:

Plaintiff Luis Ocasio brings this action against Hudson County (the “County”), its

Department of Corrections (“DOC”), Kirk Eady, and Oscar Aviles. Before the Court are

four motions for summary judgment:

1. Plaintiff Luis Ocasio’s Motion for Partial Summary Judgment, ECF No. 115;

2. Defendants County of Hudson, the Hudson County Department of Corrections,

Oscar Aviles, Thomas DeGise, and Trish Nalls-Castillo’s' Motion for Partial

Summary Judgment, ECF No. 120 (collectively, the “Hudson County

Defendants”);

3. Defendant Oscar Aviles’s Motion for Summary Judgment, ECF No. 121; and

4. Defendant Kirk Eady’s Motion for Summary Judgment, ECF No. 122.

There was no oral argument. Fed. R. Civ. P. 78(b). Respectively, for the reasons

stated below: (1) Plaintiff's motion is DENIED; (2) Defendants’ motion is GRANTED

IN PART and DENIED IN PART; (3) Defendant’s motion is GRANTED IN PART

and DENIED IN PART; and (4) Defendant’s Motion is GRANTED IN PART and

DENIED IN PART.

As stated below, Defendants Trish Nalls-Castillo or Thomas A. DeGise are dismissed

from this matter per agreement of the parties.

I. | BACKGROUND?

Plaintiff worked at the Hudson County DOC as a Corrections Officer and served

as President of the Policemen’s Benevolent Association (“PBA”) Local #109, the union

and collective bargaining unit for officers for the Hudson County DOC, from 2010 until

2014. Second Am. Compl. § 3, ECF No. 68. Defendant Oscar Aviles worked as the

Director of the DOC from March 2004 until July 2015. Jd. 9 8. Defendant Kirk Eady

was the Deputy Director of the Hudson County DOC and served under Aviles during the

time period relevant to this case. One of Eady’s responsibilities as Deputy Director was

managing relations with the union.

On February 7, 2014, Plaintiff and four others filed a complaint against

Defendants, alleging multiple violations of state and federal law. ECF No. |. On

September 9, 2016, the parties agreed to dismiss the case without prejudice, pending the

outcome of parallel criminal proceedings. ECF No. 66. On September 7, 2017, Plaintiff

re-filed his complaint (“Complaint”) with an amendment. The other four plaintiffs filed a

new complaint under a separate docket number. See Second Am. Compl. § 2.

In 2011, the PBA began investigating the titles of top administrators at the DOC

and their entitlement to remain in the PBA’s pension system, including Defendants Eady

and Aviles. See Second Am. Compl. § 21. The investigation uncovered that Defendants

Eady and Aviles, among others, held civilian titles but remained in the pension system.

Id. § 22. Subsequently, Plaintiff Ocasio and others began receiving threatening phone

calls from Eady. Jd. § 25. The PBA filed a formal grievance with Director Aviles in

March 2012, in which it outlined multiple retaliatory measures undertaken by Eady. /d.

{4 27-30. The PBA sent a follow-up letter to Aviles shortly thereafter seeking immediate

intervention but none of its correspondence resulted in corrective action by the DOC. /d.

431

Later that month, Aviles changed the DOC’s disciplinary policy to enable Eady to

issue disciplinary charges and impose discipline against DOC employees. Jd. { 36. In

May 2012, Plaintiff Ocasio learned that Eady planned to retaliate further against him,

which caused him to fear for his career. /d. §§ 37-38. Director Aviles again learned of

threats made by Eady to Plaintiff and others and he again did nothing. See id. 41-42.

In June 2012, a confidential informant working with the FBI and close friend of Eady’s,

Latanya Freeman, informed Plaintiff that Eady had been recording phone conversations

between Plaintiff and other PBA officials, at which point Plaintiff notified the FBI. /d. 4

47-52, ECF No. 115-16 at 211. The Informant advised Plaintiff of other threats made by

Eady against Plaintiff and others. /d. §§ 53-60. Eady undertook other retaliatory

measures against Plaintiff for reporting an incident of sexual harassment to Internal

Affairs that involved Eady’s friend. Jd. J] 63-76. On July 19, 2012, Kirk Eady issued a

> The facts alleged in the Amended Complaint, ECF No. 80 (“AC”), are accepted as true

for the purposes of this Opinion. The Court also considers matters of public record and

documents incorporated into the AC. Tellabs, Inc. v. Makor Issues & Rights, Lid., 55\ U.S. 308,

322 (2007).

memo to Plaintiff as the PBA President abolishing union release time and requiring him

to report for a shirt in uniform five days per week. On August 15, 2012, Plaintiff's

counsel filed a Notice of Claim that described Eady’s alleged wiretapping scheme with

the Hudson County Counsel.

On October 19, 2012, Plaintiff suffered an anxiety attack and was put on medical

leave because of the stress caused by Eady’s retaliation. /d. 77. Plaintiff did not return

to work until the end of February 2013. Jd. § 80. On March 20, 2013, the FBI executed a

search warrant upon Eady and seized his computer from his office. On January 14, 2014,

Eady was arrested on one count of illegal wiretapping. Jd. § 85. Eady was terminated

from his employment with the County after his conviction in March 2015 for illegal

wiretapping. Plaintiff alleges that Eady used a website called “Evil Operator” to record

his phone conversations while he was President of the PBA, in an effort to obtain an

unfair advantage and to learn privileged, sensitive and confidential information about

officer discipline and union contract negotiations, among other things. See id. 92-100.

Plaintiff asserted thirteen causes of action in his Second Amended Complaint,

eight of which now remain:

e Count 1: unlawful interception of Plaintiffs wire communication under 18

U.S.C. § 2511(1)(a), see id. JJ 108-11;

e Count 2: unlawful disclosure and use of Plaintiff's wire communication under

18 U.S.C. §§ 2511(c) and (d), see id. ff 112-15;

e Count 3: violation of the New Jersey wiretapping statute, N.J.S.A. 2A:156-1, see

id. JJ 116-19;

e Count 5: violation of Plaintiffs privacy rights under 42 U.S.C. § 1983, N.J.S.A.

10:6-1, the Fourth Amendment of the U.S. Constitution, and Article I, Paragraph

1 of the N.J. Constitution, see id. J] 126-38;

e Count 6: violation of Plaintiff's free speech and association rights under 42

U.S.C. § 1983, N.J.S.A. 10:6-1, the First Amendment of the U.S. Constitution,

and Article I, Paragraph 6 of the N.J. Constitution, see id. J] 139-48,

e Count 7: violation of state and federal wiretap law under 18 U.S.C. § 2511(1)(a)

and N.J.S.A. 2A:156-1, and consequently, 42 U.S.C. § 1983. see id. 149-57;

e Count 8: violation of Plaintiffs union rights under N.J.S.A. 10:6-1 et seg. and

Article I, Paragraphs 18-19 of the N.J. Constitution, see id. 158-68;

e Count 10: retaliation under the N.J. Law Against Discrimination (““NJLAD”),

N.J.S.A. 10:5-1, see id. 79 179-85;

Plaintiff moves for partial summary judgment as to Counts Five, Six, Seven, and

Eight of Plaintiff's Second Amended Complaint. ECF No. 115-2 at 1-2. | Defendants

County of Hudson, the Hudson County Department of Corrections, Oscar Aviles,

Thomas DeGise, and Trish Nalls-Castillo move for summary judgment as to Counts One,

Two, Three, Four, Five, Six, Seven, Eight, Ten, Eleven, Twelve, and Thirteen. See ECF

No. 120 at 4-28. Defendant Oscar Aviles moves for summary judgment as to all counts.

ECF No. 121-2 at 9-40. Defendant Kirk Eady moves for summary judgment as to all

counts. ECF No. 122 at 39. Because Plaintiff indicated in his opposition that he does not

oppose Defendants’ summary judgment motions as to Counts Four, Eleven, Twelve, and

Thirteen, or to dismissing Defendants Nalls-Castillo or. DeGise, Defendants’ motions are

GRANTED as to those Counts.’

Il. LEGAL STANDARD

Summary judgment is appropriate if “there is no genuine issue as to any material

fact and... the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56. A fact is material if its determination might affect the outcome of the suit under the

applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49

(1986). A dispute is genuine if “a reasonable jury could return a verdict for the

nonmoving party.” Jd. To make this determination, the Court views the facts in the light

most favorable to the nonmovant and all reasonable inferences must be drawn in the

nonmovant’s favor. Scott v. Harris, 550 U.S. 372, (2007); Green v. New Jersey State

Police, 246 F. App’x 158, 159 (3d Cir. 2007).

The moving party bears the burden of demonstrating the absence of a genuine

dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant

meets this burden by pointing to an absence of evidence supporting an essential element

as to which the non-moving party will bear the burden of proof at trial. /d. at 325. If the

moving party carries this initial burden, “the nonmoving party must come forward with

specific facts showing that there is a genuine issue for trial.” United States v. Donovan,

661 F.3d 174, 185 (3d Cir. 2011) (citing Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 586-87 (1986) (internal quotation marks omitted)).

Ill. DISCUSSION

The Court examines all four motions for summary judgment by general subject

matter of Plaintiffs claims.

A. Counts One, Two, Three and Seven: Claims Relating to Intercepted Wire

Communications

All Defendants move for summary judgment under Counts One, Two, and Three,

which assert unlawful interception and disclosure of Plaintiff's wire communication

under federal law, and violation of the New Jersey wiretapping statute. The Hudson

County Defendants, Defendant Aviles, and Defendant Eady argue that they are entitled to

summary judgment as to these claims because: (1) there is no evidence that Eady ever

recorded Plaintiff; (2) in his Second Amended Complaint, Plaintiff only mentions

Defendant Eady in these counts and Plaintiff has not sufficiently implicated any other

Defendants in Eady’s alleged wiretapping. ECF No. 120-1 at 5, ECF No. 121-2 at 9-11,

ECF No. 122 at 9-11.

1. Whether There Is a Genuine Issue of Fact as to Whether Eady Illicitly

Recorded Plaintiff

3 Count Nine was previously dismissed. ECF No. 112.

Defendants argue that there is no question of fact as to whether Eady illegally

intercepted Plaintiffs phone calls because: (1) Plaintiff testified at Defendant Eady’s

criminal trial that he had not heard his voice on any recording made by Eady; (2)

Defendant Eady testified that he never recorded a call made by Plaintiff at his deposition;

(3) although Plaintiff possesses all of the calls recorded by Eady, Plaintiff has not

identified his voice on any of those calls; and (4) evidence supporting that Plaintiff was

recorded by Eady is inadmissible hearsay.

To support his claim that a genuine issue of fact exists as to whether Eady illegally

recorded Plaintiff, Plaintiff, among other things, cites testimony from Confidential

Informant Latanya Freeman during the criminal trial of Eady during which Freeman

stated that in 2012, Eady told her that he was recording phone calls to which Plaintiff was

a party, that Eady played those calls for Freeman, and that Freeman recognized Plaintiff's

voice. ECF No. 129-1 at 3-4. Viewing the facts in the light most favorable to Plaintiff,

this nonhearsay evidence* is sufficient to create a genuine issue of fact as to whether

Eady recorded Plaintiff in violation of the state and federal wiretapping statutes.

2. Whether the Hudson County Defendants Can Be Held Liable Under the

Wiretapping Statutes

Defendant argues that the County of Hudson, its Department of Corrections and

Defendant Aviles are liable under the wiretapping statutes because “Defendants did

nothing to stop [Eady’s illegal wiretapping] from August 2012 until January 2014 despite

having unequivocal notice of it by way of Plaintiff's notice of claim and execution of the

FBI’s search warrant.” ECF No. 129 at 12.

18 U.S.C. § 2520 provides, in relevant part: “[A]ny person whose wire, oral, or

electronic communication is intercepted, disclosed, or intentionally used in violation of

this chapter may in a civil action recover from the person or entity which engaged in that

violation such relief as may be appropriate.” Section 2511(1)(a) declares it unlawful for

any person “intentionally [to] intercept[ ], endeavor[ ] to intercept, or procure[ ] any other

person to intercept or endeavor to intercept, any wire, oral, or electronic

communication.” Plaintiff Ocasio alleges that Defendant Eady, but not the County of

Hudson, its Department of Corrections, or Defendant Aviles, unlawfully intercepted,

4 Plaintiff cites to the criminal trial transcript, Plaintiff's Exhibit 79, ECF No. 129-3, 132-3.

Plaintiff also cites to Ocasio’s deposition testimony wherein he recounts his conversation with

Freeman during which she describes her conversations with Eady. This is hearsay evidence.

However, “hearsay evidence produced in an affidavit opposing summary judgment may be

considered if the out-of-court declarant could later present that evidence through direct

testimony, i.e. ‘in a form that would be admissible at trial.” Williams v. Borough of W. Chester,

Pa., 891 F.2d 458, 466 (3d Cir. 1989) (quoting Celotex Corp. v. Catrett,477 U.S. 317, 327

(1986)). Consequently, the Court will consider evidence of Freeman’s conversations with Eady.

° N.J. Stat. §§ 2A:156A-3 and 156A-24 similarly imposes liability upon those who

“Purposely intercept, endeavor to intercept, or procure any other person to intercept or endeavor

to intercept any wire, electric or oral communication.”

disclosed, or misused his telephone conversations. See Falk v. Cty. of Suffolk, 781 F.

Supp. 146, 150 (E.D.N.Y. 1991). Because Plaintiff asserts a theory of liability not

cognizable under the wiretap statutes, Defendants are entitled to judgment as a matter of

law. The Court GRANTS summary judgment as to Counts One, Two, and Three in

favor the County of Hudson, the Hudson County Department of Corrections, and

Defendant Aviles. The Court DENIES summary judgment to Defendant Eady as to these

counts.

3. Plaintiffs Section 1983 Claim for Violation of the Wiretapping Statutes

Plaintiff and all Defendants move for summary judgment as to Count Seven, in

which Plaintiff alleges that Defendants’ are liable under 42 U.S.C. § 1983 through

violations of 18 U.S.C. § 2511(1)(a) and N.J.S.A. 2A:156-1. See Amended Compl. at {{

150, 151. Asan initial matter, Plaintiff cannot assert a state statute as a basis for recovery

under § 1983. See Brown v. Grabowski, 922 F.2d 1097 (1990) (“Section 1983 does not

provide a cause of action for violations of state statutes ...”). Insofar as Plaintiff

premises his § 1983 claim on the New Jersey wiretapping statute, summary judgment is

GRANTED in favor of all Defendants on Count Seven. For the reasons stated above,

Defendants County of Hudson, the Department of Corrections, and Oscar Aviles cannot

be held liable under § 1983 for violation of 18 U.S.C. §§ 2511(1)(a) or 2520.

Consequently, summary judgment is GRANTED as to those Defendants on Count Seven

in full. Plaintiffs assertion of evidence sufficient to preclude summary judgment in favor

of Defendant Eady on Counts One, Two, and Three, precludes summary judgment as to

Count Seven. As noted above, Defendant Eady argues that: (1) Plaintiff testified that he

had not heard his voice on any recording made by Eady, ECF No. 129-5 at 196; (2)

Defendant Eady testified that he never recorded a call made by Plaintiff at his deposition,

ECF No. 115-15 at 30; and (3) although Plaintiff possesses all of the calls recorded by

Eady, Plaintiff has not identified his voice on any of those calls. These facts create a

genuine issue of material fact as to whether Plaintiff Ocasio was recorded by Defendant

Eady in violation of the federal and state wiretapping statutes. The Court DENIES

Plaintiff Ocasio’s and Defendant Eady’s motions for summary judgment as to Count

Seven.

B. Count Five: Claims Related to Privacy Rights

Plaintiff Ocasio contends that the alleged interception of his phone calls violated

his Fourth Amendment rights, giving rise to a cause of action under § 1983. Section

1983 states, “Every person who, under color of any statute, ordinance, regulation,

custom, or usage...subjects, or causes to be subjected, any citizen ...or any other

person...to the deprivation of any rights, privileges, or immunities secured by the

Constitution and laws, will be liable to the party injured.” 42 U.S.C. § 1983.

Defendant Eady argues that he did not act under color of state law when he

allegedly recorded Plaintiff's conversations. Plaintiff states that “{a] person acts under

color of state law if he or she had some measure of control or authority over the

Plaintiff.” ECF No. 129 at 12-13. This is an incomplete. “Action under color of state

law requires that one liable under § 1983 have exercised power possessed by virtue of

state law and made possible only because the wrongdoer is clothed with the authority of

state law.” Harvey v. Plains Twp. Police Dep’t., 635 F.3d 606, 609 (3d Cir. 2011)

(internal quotation omitted). “Whether a police officer is acting under color of state law

turns on the nature and circumstances of the officer’s conduct and the relationship of that

conduct to the performance of his official duties.” Martinez v. Colon, 54 F.3d 980, 986

(1st Cir.). The Court agrees that, as to the Fourth Amendment privacy claim against

Defendant Eady only, Eady did not act “under color of state law.” Unlike those cases

where off duty state officers arrest individuals, identify themselves as police officers,

utilize police cars, utilize state issued weapons, or otherwise use the means uniquely

inherent to the authority vested in them to violate individuals’ civil rights, here,

Defendant Eady is alleged to have used a private website called “Evil Operator” to record

Ocasio’s phone conversations from his private phone. Plaintiff concedes these facts. See

ECF No. 115-3 at 16. The Court finds that there is an insufficient nexus between Eady’s

alleged wrongdoing and the performance of his official duties. The Court therefore

GRANTS all Defendants’ motions for summary judgment and DENIES Plaintiff's

motion for summary judgment as to Count Five.°

C. Counts Six_and Eight: Claims Related to First_ Amendment Freedom of

Speech, Rights to Associate, and Rights to Unionize

In Counts Six and Eight, Plaintiff contends that Defendants’ actions surrounding,

but different from, Defendant Eady’s alleged phone recordings violated his First

Amendment Free Speech rights, his First Amendment Freedom of Association rights, and

state law rights to unionize, giving rise to a cause of action under § 1983. These claims

are premised on the contention that Defendants retaliated against him because of his

association with the union and his role as its president. All of the remaining parties to

this case request that the Court grant summary judgment as to these claims in their favor.

The Court declines to do so.

1. Whether Defendant Eady Acted Under Color of State Law

Defendant Eady reasserts his argument that he did not act under color of state law.

In the context of Plaintiff's retaliatory association allegations, the Court rejects that the

notion that Eady did not utilize his authority as a state official. As Deputy Director,

Eady’s responsibilities included manage relations with the union, overseeing the

disciplinary process for corrections officers within the facility, and representing

management during negotiations with the union. Plaintiffs allegations that Defendant

Eady took specific actions pursuant to his responsibilities to retaliate against him require

this Court to find that Eady qualifies as one acting under state law pursuant to § 1983.

Because the Court concludes that Defendant Eady’s conduct alleged to violate Plaintiff's

Fourth Amendment rights did not occur under color of state law, it consequently does not

“implements or executes a policy statement, ordinance, regulation, or decision officially adopted

and promulgated by that body’ officers.” Monell v. Dep’t of Soc. Servs. of City of New York, 436

U.S. 658, 690 (1978).

2. Whether a Genuine Issue of Material Facts Exists as to Plaintiff's Free

Speech and Freedom of Association Retaliatory Claims

The First Amendment’s freedom of association clause protects the rights of

associations such as unions to advocate on behalf of their members.’ Smith v. Arkansas

State Highway Employees, Local 1315, 441 U.S. 463, 464 (1979). As such, the

government is prohibited from “imposing sanctions for the expression of particular views

it opposes.” /d. at 465. To prevail on a § 1983 First Amendment retaliation claim, the

plaintiff must prove that (1) he engaged in “constitutionally protected conduct,” (2) the

defendant engaged in “retaliatory action sufficient to deter a person of ordinary firmness

from exercising his constitutional rights,” and (3) “a causal link [existed] between the

constitutionally protected conduct and the retaliatory action.” Thomas v. Indep. Twp., 463

F.3d 285, 296 (3d Cir. 2006) (citation omitted). The Third Circuit recently determined

that membership in a union is per se protected conduct for the purposes of Plaintiff's

First Amendment retaliation claim. See Palardy v. Township of Milburn, 906 F.3d 76

(2018) (“[Plaintiffs] union membership is worthy of constitutional protection.”). “[A]ny

retaliatory conduct sufficient to deter a person of ordinary firmness from exercising his

First Amendment rights is actionable under § 1983. Suppan v. Dadonna, 203 F. 3d 228,

235 (3d Cir. 2000) (internal quotations omitted).

Plaintiff proffers substantial evidence that Defendant Eady’s actions were meant to

retaliate against Plaintiff because of his affiliation with the union, including, among

others: (1) Eady’s phone call from August 3, 2012 with the FBI’s confidential informant

about bankrupting the union by way of a frivolous lawsuit, (2) evidence suggesting that

Eady’s revocation of Plaintiff full union release time was to interfere with his ability to

advocate for the union; (3) requiring Plaintiff to seek approval from Eady to conduct any

union activity; and (4) Eady’s suggestion that Plaintiff be disciplined for participating in

an interview published in a corrections publication. In support of its own summary

judgment motion, Defendants proffer their own evidence, including, among others: (1)

evidence that the abolition of full union release time was a policy decision reached after

the issuance of a report from the Commission of Investigation finding it costly; (2)

evidence that Ocasio was not promoted as a result because of lack-of-merit; and (3)

evidence that Plaintiff was not docked pay for attending union meetings.

Viewing these facts in the light most favorable to the Defendants in assessing

Plaintiff's motion, and separately viewing these facts most favorably to Plaintiff in

assessing Defendants’ motions, the Court finds that genuine issues of material fact

preclude summary judgment in favor of any parties.

7 This Court’s analysis of the New Jersey Constitution’s Free Speech Clause is identical to

its analysis of federal First Amendment rights. Palardy v. Twp. Of Millburn, 906 F.3d 76, 80 (3d

Cir. 2018) (The New Jersey Constitution’s Free Speech Clause at Article I, Paragraph 6 is

“generally interpreted as co-extensive with the First Amendment.”).

3. Whether the Hudson County Defendants Can Be Held Liable Pursuant

to Monell

Plaintiff seeks to premise liability as to Defendants Aviles, the County of Hudson,

the Department of Corrections on the grounds that Eady’s conduct implements an official

policy or custom. Monell, 436 U.S. at 690. An individual's conduct implements official

policy or practice under several types of circumstances, including when (1) the individual

acted pursuant to a formal government policy or a standard operating procedure long

accepted within the government entity; (2) the individual himself has final policy-making

authority such that his conduct represents official policy; or (3) a final policy-maker

renders the individual's conduct official for liability purposes by having delegated to him

authority to act or speak for the government, or by ratifying the conduct or speech after it

has occurred. Hill v. Borough of Kutztown, 455 F.3d 225, 245 (3d Cir. 2006). The

parties agree that Defendant Aviles is the individual with final policy-making authority

for the purposes of the County Defendants’ Monell liability in this matter. ECF No. 96.

Plaintiff mainly seek to prove the existence of a policy or custom by showing that

the policymaking official, Aviles, was aware of a subordinate’s unconstitutional actions,

here, Eady’s, and consciously chose to ignore them, effectively ratifying the actions. See,

e.g., Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 126 (2d Cir. 2004); Sorlucco v.

New York City Police Dep’t, 971 F.2d 864, 870-71 (2d Cir. 1992) (stating that municipal

liability lies where the subordinate’s misconduct is “so manifest as to imply the

constructive acquiescence of senior policy-making officials”). Plaintiff asserts

substantial evidence that is consistent with his theory that after Ocasio’s claim notice in

August 2012 and the FBI search warrant in 2013, “Aviles took no action against Eady,

allowed him to remain engaged in union-related issues on behalf of management,

including on several occasions forwarding emails to Eady to ensure that he was still in

the loop, and lied about Eady still being directly involved with PBA 109.” ECF No. 115-

3 at 19-20. Defendant Aviles denies that he took no action with regard to Eady’s

allegedly unconstitutional actions and cites to, among other things, four attempts by

Hudson County to retrieve additional information regarding Plaintiffs August 2012

Claims Notice. ECF 127 at 8. Genuine issues of material fact preclude summary

judgment in favor of any of the parties as to the Plaintiff's Monell claim.

4, Whether Defendant Aviles is Entitled to Qualified Immunity

Defendant Aviles argues that he is entitled to qualified immunity. “[G]overnment

officials performing discretionary functions generally are granted a qualified immunity

and are ‘shielded from liability for civil damages insofar as their conduct does not violate

clearly established statutory or constitutional rights of which a reasonable person should

have known.’” Wilson v. Layne, 526 U.S. 603, 609 (1999) (quoting Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982)). “A court evaluating a claim of qualified

immunity must first determine whether the plaintiff has alleged the deprivation of an

actual constitutional right at all, and if so, proceed to determine whether that right was

clearly established at the time of the alleged violation.” /d. For the reasons stated above,

there is a genuine issue of material fact as to whether Plaintiffs constitutional rights were

violated.

For the above stated reasons, all parties’ motions for summary judgment as to

Counts Six and Eight are DENIED.

D. Count Ten: Claims Related to Employment Rights

In Count Ten, Plaintiff alleges retaliation in violation of the New Jersey Law

Against Discrimination, (“LAD”) N.J.S.A. 10:5-12. All Defendants move for summary

judgment as to Count Ten. To establish a LAD claim, plaintiff must demonstrate that: (1)

he engaged in a protected activity known by the county; (2) he suffered an adverse

employment action; and (3) his participation in the protected activity caused the

retaliation. Craig v. Suburban Cablevision, Inc., 140 N.J. 623, 629-30 (1995). Plaintiff

argues that he made a complaint on behalf of a female corrections officer of sexual

harassment against her by a superior officer, and thereafter suffered retaliation. In order

to make a retaliation claim under the LAD, a plaintiff must establish that a prohibited

criteria “played a role in the decision making process and that it had a determinative

influence on the outcome of the process.” Greenberg v. Camden Cty. Vocation and Tech.

Schools, 310 N.J. Super. 189, 198 (App. Div. 1998). The Court concludes that Plaintiff

has raised insufficient evidence to show that Plaintiffs complaint had a determinative

influence in the outcome of a decisionmaking process. Specifically, Plaintiff cites to his

complaint raising the sexual harassment complaint but points to no other evidence

showing that the complaint played any specific role in a decisionmkaing process. See

ECF No. 129 at 19-20. Defendants’ meets their burden on summary judgment by

pointing to an absence of evidence supporting an essential element as to which the non-

moving party will bear the burden of proof at trial, and the Plaintiff fails to set forth any

specific facts showing that there is a genuine issue for trial. Defendants’ motions are

GRANTED as to Count ten.

IV. CONCLUSION

For the reasons set forth above: Summary judgment is GRANTED as to Counts

One, Two, and Three in favor the County of Hudson, the Hudson County Department of

Corrections, and Defendant Aviles, and summary judgment is DENIED as to Defendant

Eady as to these counts; summary judgment is GRANTED as to Count Five in favor of

all Defendants and DENIED as to Plaintiff; summary judgment is GRANTED as to

Count Seven as to Defendants County of Hudson, the Department of Corrections, and

Oscar Aviles and DENIED as to Plaintiff and Defendant Eady; summary judgment is

GRANTED in favor of all Defendants as to Count Ten; summary judgment is DENIED

as to the remainder of claims. An appropriate order follows.

aN Py MARTINI, U.S.D.J.