GUNTER v. GRAY

[Dkt. No. 43]

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

KENNETH GUNTER,

Plaintiff,

Civil No. 17-4217(RMB/KMW)

v.

DETECTIVE ROBERT GRAY, OPINION

Defendant.

APPEARANCES:

BARKER, GELFAND, JAMES & SARVAS, P.C.

By: A. Michael Barker, Esq.; Vanessa E. James, Esq.

Linwood Greene, Suite 12

210 New Road

Linwood, New Jersey 08221

Counsel for Defendant, Detective Robert Gray

LAW OFFICES OF SURINDER K. AGGARWAL

By: Surinder K. Aggarwal, Esq.

86 Court Street

Freehold, New Jersey 07728

Counsel for Plaintiff, Kenneth Gunter

RENÉE MARIE BUMB, UNITED STATES DISTRICT JUDGE:

Plaintiff Kenneth Gunter brings this civil rights action

against Defendant Detective Robert Gray, alleging that Detective

Gray violated Plaintiff’s federal and state constitutional

rights in relation to his arrest and detention on June 18, 2015.

In his Complaint [Dkt. No. 1], Plaintiff asserts claims for

False Imprisonment and False Arrest and Malicious Prosecution,

pursuant to 42 U.S.C. § 1983, and violations of Plaintiff’s

rights under the New Jersey State Constitution and/or the New

Jersey Civil Rights Act. Now, this matter comes before the

Court upon Detective Gray’s Renewed Motion for Summary Judgment

[Dkt. No. 43], which seeks dismissal of Plaintiff’s Complaint in

its entirety. For the reasons set forth herein, Defendant’s

Motion for Summary Judgment will be GRANTED and Plaintiff’s

Complaint will be DISMISSED WITH PREJUDICE.

I. FACTUAL BACKGROUND

Plaintiff’s claims in this action arise from an altercation

between Plaintiff and another individual, Mark Ball, which

transpired at the Economy Motel Inn & Suites, at 15 MacArthur

Boulevard in Somers Point, New Jersey (the “Economy Motel”) and

culminated in Plaintiff’s arrest and detention.

At approximately 10:30 a.m. on June 18, 2015, Ball, a

resident at the Economy Motel, approached the vehicle of Somers

Point Police Patrolman James Shields and complained that he had

been assaulted and that property had been stolen from him.

Patrolman Shields radioed for Patrolman Shawn McKelvey, who

responded to the scene. Patrolman McKelvey’s investigation

report reflects Ball’s statements to the officers:

Mr. Ball stated that he had loaned $20.00 to a

subject he knew as Kenny. Kenny was said to live

in apartment 132 in the Economy Motel. At

approximately 09:00 hrs that morning, Mr. Ball went

to that subject[‘]s apartment and confronted him

over wanting his $20.00 back. An argument then

ensued and during which time, the subject known as

Kenny grabbed the [victim] by the neck and pushed

him.

A short time later the victim, returned to his

residence at room 102 in the Economy Motel.

The victim further stated, that shortly after he

returned to his residence, the accused entered into

the victim’s room without his permission and began

to assault him. According to the victim an argument

ensued and the accused again accosted him by

grabbing his throat and face. After a few moments,

the accused was said to have let go of the victim,

took two $20.00 bills and a cigarette off of his

bedroom table. The accused then left the residence

with said items. Additionally, the victim advised

that he had injuries to his neck and face. Upon

inspection, some scratches and redness were

visible.

Investigation Report, June 18, 2015, Patrolman Shawn G.

McKelvey [Dkt. No. 43-10]. Patrolman McKelvy further notes that

Ball was able to point out Plaintiff, who was walking around the

Economy Motel parking lot, as his assailant. Id.

Patrolman McKevely transported Ball to the Somers Point

Police Station, where Detective Gray asked Ball if he would be

willing to supply a taped statement. Supplementary Investigation

Report, June 19, 2015, Detective Robert S. Gray [Dkt. No. 43-11,

at 2-4]. As summarized in Detective Gray’s Supplementary

Investigation Report, Ball provided a taped statement that, in

sum and substance, reaffirmed the statements that Ball relayed

to Patrolman Shields and Patrolman McKelvey. Id. Ball also

provided a written statement and filled out a Stolen Property

Statement of Loss Report. Id. After showing Ball a picture of

Plaintiff, who Mr. Ball confirmed was his assailant, Detective

Gray took photographs of Ball’s injuries. Id.

As part of the investigation, Detective Captain Michael C.

Sweeney reported to the Economy Motel and reviewed video

surveillance footage from the motel parking lot. Supplementary

Investigation Report, Detective Captain Michael C. Sweeney, June

19, 2015 [Dkt. No. 43-11, at 5] Captain Sweeney relayed to

Detective Gray that, based on his viewing, the video footage

confirmed that Plaintiff had “push[ed] Ball in the upper

chest/throat region” and that it also showed “Kenny going down

to Ball[‘]s room and entering in one fluid motion, indicating

that he didn’t knock, but rather just went into his room.” Gray

Investigation Report [Dkt. No. 43-11, at 3].

Detective Gray relayed the information obtained from Ball’s

statements and Captain Sweeney’s summary of the video footage

from the motel to Municipal Court Judge Howard Freed, who found

probable cause for the issuance of a warrant complaint against

Plaintiff a charge of burglary. Id. Detective Gray then

generated the warrant complaint for burglary and a summons

complaint for theft and simple assault. Shortly thereafter,

Plaintiff was taken into custody, where he apparently remained

for approximately nine days, until he was able to secure bail.

Plaintiff’s criminal complaints were referred to the

Atlantic County Prosecutor’s Office, which declined to indict

Plaintiff on the charge of burglary and downgraded the charge to

that of “defiant trespasser.” Plaintiff’s case was returned to

the Somers Point Municipal Court for disposition. Ultimately,

the criminal case was dismissed for lack of prosecution after

Ball refused to comply with the Municipal Court’s subpoena to

show up to court and testify regarding the charges.

Plaintiff commenced this suit on June 13, 2017, alleging

that Detective Gray’s actions, which led to Plaintiff’s arrest,

violated his federal and state constitutional rights. Defendant

filed a previous motion for summary judgment [Dkt. No. 25], on

January 26, 2018, which this Court denied as premature because

Plaintiff had not been afforded the opportunity to depose

Defendant. See Mem. Order, Aug. 31, 2018 [Dkt. No. 32]. Now,

discovery is complete, and this matter comes before this Court

once again upon Defendant’s Renewed Motion for Summary Judgment

[Dkt. No. 43].

II. LEGAL STANDARD

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

Defendant argues that summary judgment is warranted because

the undisputed evidence in the record, primarily the video

footage from the Economy Motel’s security cameras, establishes

that Plaintiff’s arrest was supported by probable cause.1 In

response, Plaintiff argues that the video footage is ambiguous

and that the charges against him were not supported by probable

cause because Detective Gray “knew that Ball’s version of the

incident was false.” After reviewing the evidence in the

record, including Ball’s statements to the police officers and

the security footage, the Court finds that no reasonable jury

could conclude that Detective Gray lacked probable cause to

generate the warrant for Plaintiff’s arrest.

A. The Security Footage

In this case, the security footage from the Economy Motel

is central to viability of Plaintiff’s claims. Neither party

disputes the authenticity of the footage, but both parties

fiercely dispute the meaning and significance of the content.

As such, the Court has reviewed the video footage for purposes

of this Motion for Summary Judgment and objectively summarizes

1 Defendant 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.

the elements of the footage that cannot be “reasonably”

disputed.

As demonstrated in the videos, on the morning of June 18,

2015, Mark Ball approaches the door to Plaintiff’s motel room.

Ball proceeds to knock or bang on Plaintiff’s door and then

steps a few feet back from the door. An individual wearing a

football jersey, whom the parties identify as Plaintiff, exits

the room and begins exchanging words with Ball. After a few

exchanges, Ball appears to be moving away from Plaintiff when

Plaintiff suddenly grabs Ball by the neck and pushes him

backwards, at which point the two are not visible in the video

frame.2 For a few moments, Plaintiff and Ball remain outside the

frame, but Plaintiff soon returns to the frame and walks towards

his wife and son, who have stepped outside the room to watch the

unfolding altercation. Plaintiff, along with his wife and son

then walk back towards their motel room. Ball reenters the

2 The video evidence directly, and unequivocally, contradicts

Plaintiff’s allegation in the Complaint that Ball “broke through

the latch locking the door” while “attempting to break into

their room” and that Plaintiff “immediately moved toward the

door, grabbed Ball and brought him to the ground.” See Compl.,

at ¶¶ 5-7. Indeed, the video evidence demonstrates that Ball

made no attempt to break into Plaintiff’s room and, in fact,

stepped a few feet away from the doorway after banging on the

door. Ball and Plaintiff exchange words outside the room before

Plaintiff violently grabs Ball by the throat. Despite the clear

contradiction between the video evidence and the allegations in

the Complaint, Plaintiff never amended his complaint to conform

with the evidence obtained through discovery.

frame and appears to yell something at Plaintiff before heading

back towards his own motel room on the opposite end of the

motel.

Shortly after Ball returns to his motel room, Plaintiff

leaves his room and starts walking in the direction of Ball’s

room. The video demonstrates that Plaintiff walks to the end of

the row of rooms, turns, and appears to enter Ball’s room

without breaking stride or knocking. It is unclear if the door

to Ball’s room is open or simply unlocked, but Plaintiff does

not appear to knock or stop in the doorway.3 After a little over

a minute, Plaintiff emerges from Ball’s room and proceeds

towards the motel office.4 While walking towards the office,

3 Plaintiff misleadingly contends that Detective Gray admitted

during his deposition that the recordings “do not depict

Plaintiff entering Ball’s room.” See Pl.’s Statement of

Undisputed Material Facts [Dkt. No. 47-3], at ¶ 19. However,

this statement is taken out of context. Detective Gray merely

acknowledged that because the video is taken from a long angle,

it is unclear whether Ball and Plaintiff turned and entered

Ball’s motel room, or instead turned and disappeared behind the

end corner of the motel This distinction is irrelevant, since

Plaintiff admits that he entered Ball’s motel room. Id. at ¶ 12.

Thus, there can be no genuine dispute that the turning motion

observed on the video is Plaintiff turning to enter Ball’s room.

4  This Court takes no position as to the truth or falsity of

Plaintiff’s allegations about what may, or may not have,

occurred in Ball’s room. The Court simply takes notice that the

video undisputedly confirms that Plaintiff followed Ball back to

Ball’s motel room, entered the room, and reemerged a little over

a minute later.

Plaintiff stops at least once to take an extended look backwards

over his right shoulder in the direction of Ball’s room.

B. False Arrest and False Imprisonment

Plaintiff’s first count alleges that “Detective Gray’s

actions resulted in Plaintiff being unlawfully detained, falsely

arrested and falsely imprisoned, thereby depriving Plaintiff of

his right to be free from an unreasonable seizure of his person,

in violation of the Fourth Amendment to the United States

Constitution” Compl., at ¶ 22. On the Motion for Summary

Judgment, Defendant argues that the video evidence from the

Economy Motel, which was consistent with Mark Ball’s accusations

against Plaintiff, establishes that Plaintiff’s arrest was

supported by probable cause. This Court agrees with Defendant.

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)). 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)). Furthermore, although

the question 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

burglary, in violation of N.J.S.A. 2C:18-2A(1),5 simple assault,

in violation N.J.S.A. 2C:12-1A,6 and theft by unlawful taking or

disposition, in violation of N.J.S.A. 2C:20-3A.7 In relation to

these charges, this Court finds that Ball’s repeated statements

5 A person is guilty of burglary, under N.J.S.A. 2C:18-2A(1), if

“with purpose to commit an offense therein or thereon he enters

a... structure, or a separately secured or occupied portion

thereof unless the structure was at the time open to the public

or the actor is licensed or privileged to enter.”

6 In relevant part, a person is guilty of simple assault, under

N.J.S.A. 2C:12-1A, if he “attempts to cause or purposely,

knowingly or recklessly causes bodily injury to another; or…

attempts by physical menace to put another in fear of imminent

serious bodily injury.”

7 A person is guilty of unlawful taking or disposition, under

N.J.S.A. 2C:20-3A, if “he unlawfully takes, or exercises

unlawful control over, movable property of another with purpose

to deprive him thereof.”

to police that Plaintiff entered his motel room without

permission, struck him, and stole forty dollars and a cigarette,

when combined with video evidence that (at least

circumstantially) corroborates many of Ball’s accusations,

created sufficient probable cause for Detective Gray’s decision

to charge and arrest Plaintiff.

Plaintiff seemingly implies that the video footage is

exculpatory, and that Detective Gray was somehow unethical in

relying upon Detective Captain Sweeney’s summary of the footage,

rather than viewing the footage himself, when Detective Gray

sought probable cause for issuance of an arrest warrant from

Judge Freed. Plaintiff, however, fails to explain why it was

improper for Detective Gray to rely upon the summary of the

video provided by Detective Captain Sweeney, who was Detective

Gray’s superior officer. Furthermore, this Court’s review of

the video footage confirms that Detective Captain Sweeney

provided Detective Gray with a reasonably accurate description

of the video content. To that end, the video footage is in no

way exculpatory. On the contrary, it circumstantially

corroborates Ball’s account of the events.

Although some of the evidence relied upon by Detective Gray

was circumstantial, that fact does not defeat probable cause.

See Paredes v. Egg Harbor Twp. Bd. of Educ., 2018 WL 3930087, at

*14 (D.N.J. Aug. 16, 2018)(“A determination of probable cause--

or even the much higher burden of guilt beyond a reasonable

doubt--may be satisfied by the consideration and acceptance of

circumstantial evidence”). Furthermore, even if the evidence

obtained at the time of Plaintiff’s arrest would not have been

enough to convict Plaintiff, 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).

In this case, it is not relevant, and neither the Court nor

a jury need determine, whether Ball was telling the officers the

truth about Plaintiff bursting into his motel room, where

Plaintiff allegedly attacked and robbed Ball. The only

consideration is whether the evidence available to the police

officers at the time the warrants were generated, and Plaintiff

was arrested, created an objectively reasonable belief that an

offense had been committed. To that end, the Court finds that

Detective Gray’s belief that Plaintiff had committed the crimes

charged was objectively reasonable, and supported by, Ball’s

statements to police, the observed injuries to Ball’s neck, and

the (at least partially) corroborating video evidence. No

reasonable jury could conclude otherwise. Thus, Plaintiff’s

claim of false arrest and false imprisonment will be dismissed.

C. Malicious Prosecution

Plaintiff’s second claim, for malicious prosecution, states

that Detective Gray “lacked probable cause to initiate a

criminal proceeding against Plaintiff.” Compl., at ¶ 25. 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

charges brought against him were ultimately dismissed, those

charges were not dismissed on the merits or for a lack of

probable cause. Rather, the charges were dismissed for failure

to prosecute because the accuser, Ball, refused to show up to

Court and testify against Plaintiff. As discussed above, at the

time of the arrest, Ball repeatedly provided officers with

consistent statements alleging that Plaintiff broke into his

motel room, assaulted him, and robbed him. Additionally, Ball’s

statements were circumstantially corroborated and supported by

injuries to Ball’s neck and security footage from the motel. As

such, no reasonable jury could conclude that Detective Gray

lacked probable cause to arrest and charge Plaintiff.

D. New Jersey State Constitution and Civil Rights Claims

Finally, Plaintiff also asserts claims against Defendant

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, Defendant’s 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: July 30, 2020

s/Renée Marie Bumb

RENÉE MARIE BUMB

UNITED STATES DISTRICT JUDGE