# FARAGALLA v. JERSEY CITY

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

URL: https://www.frixlaw.com/law-library/cases/10269075

## Case

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

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10269075

## How later opinions describe it (automated extraction)

- stating that NJCRA was “modeled on the federal civil rights law which provides for a civil action for deprivation of civil rights.” (citations omitted)
- observing that the qualified immunity analysis “has more particularized requirements in an excessive force case”
- holding that “tackling a person [on a motorcycle] who has already stopped in response to the officer’s command to stop and who presents no indications of dangerousness” would be a “major departure from reasonable behavior” under the Graham factors
- holding that an “obvious legal norm prohibited [police officers] from tackling a suspect who made only a mild show of resistance, pressing his head into the ground, and punching him.”
- holding more broadly that “‘the right to be free from physical force when one is not resisting the police’ was clearly established”

## Opinion text

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

SAMY FARAGALLA,

Plaintiff,

v. Civ. No. 2:17-cv-03604-KM-MAH

JERSEY CITY; MORTON OTUNDO; and
JOHN DOES 1-5 (fictitious individuals), OPINION
members of the JERSEY CITY and/or
HUDSON COUNTY SHERRIFF’S
DEPARTMENT; PHILLIP ZACHE, JERSEY
CITY CHIEF OF POLICE; FRANK
SCHILLARI, HUDSON COUNTY SHERIFF;
JOHN DOES 6-10 (fictitious individuals),
personnel of the JERSEY CITY and/or
HUDSON COUNTY SHERRIFF’S
DEPARTMENT in supervisory capacities,
,

Defendants.

MCNULTY, U.S.D.J.:
The plaintiff, Samy Faragalla, was involved in an altercation with Jersey
City police officer Morton Otundo. Faragalla seeks an action against Otundo, as
well as his employer, the City of Jersey City (the “City”) and its then-chief of police,
Phillip Zacche. Other Defendants, related to Hudson County, are no longer party
to this action. Faragalla brings various state law claims and claims pursuant to 42
U.S.C. § 1983 for violation of his constitutional rights.
Currently pending before the Court are motions for summary judgment by
Otundo, the City, and Zacche to dismiss the remaining counts in the complaint
against them. For the reasons herein, the motions will be granted in part and
denied in part.
I. Background1
Defendant Morton Otundo has been a member of the Jersey City Police
Department since July 15, 2013. (JCSMF ¶ 12). On July 8, 2016, Officer Otundo
was in full uniform working a traffic detail at the intersection of Hoboken and
Oakland Avenues. (Id. ¶ 14). Plaintiff Samy Faragalla first encountered Officer
Otundo when he attempted to continue straight through the intersection, despite
being in the left lane. (Id. ¶ 16). Officer Otundo directed Faragalla to make a left
turn, which he did. (Id.). Faragalla then made an illegal U-turn.2 (Id. ¶ 17).
Officer Otundo then instructed Faragalla to pull over. (Id.). Once he did so, the
two engaged in a verbal encounter, the exact contours of which are disputed. (Id. ¶
18; PSSMF ¶ 4). The interaction became physical. (JCSMF ¶ 18). Eventually,
Officer Otundo and two members of the Hudson County Sherriff’s Department
placed Faragalla under arrest. (Id.). Plaintiff was eventually brought to the Jersey
City Medical Center, where he complained of various injuries. (Id. ¶ 19).
These basic facts are undisputed. The parties disagree considerably, however,
as to the appropriateness of Otundo’s actions and the severity of Faragalla’s
injuries.

1 For purposes of this motion, I consider Defendant City of Jersey City’s statement of
material facts (“JCSMF”) (DE 33-2 at 3-7), Defendant Morton Otundo’s statement of
material facts (“MOSMF”) (DE 34-2), Plaintiff Samy Faragalla’s supplemental statement of
material facts (“PSSMF”) (DE 39 at 8-14), as well as the deposition testimony and
documentary evidence. Facts not contested are assumed to be true.
Record items cited repeatedly will be abbreviated as follows:
Pl. Opp. = Plaintiff Samy Faragalla’s brief in opposition to the defendants’ motion
(DE 39)
Otundo Br. = Defendant Morton Otundo’s brief in support of summary judgment
(DE 34-1)
JC Br. = Defendant City of Jersey City’s brief in support of summary judgment (DE
33-2)
Otundo Reply Br. = Defendant Morton Otundo’s reply brief (DE 41)
JC Reply Br. = Defendant City of Jersey City’s reply brief (DE 40)
2 Plaintiff does not dispute that the U-turn was illegal. He does, however, defend his
conduct by stating that he did not see any signs prohibiting him from making a U-turn
and that he had a client waiting in the opposite direction. (PSSMF ¶¶ 2, 3).
According to Faragalla, Officer Otundo unreasonably escalated an otherwise
peaceful interaction. Faragalla had been cooperating during the traffic stop by
giving Otundo his paperwork as requested. (PSSMF ¶ 5). Because he had a client
waiting for him, he asked Otundo to issue him a ticket and let him be on his way.
(Id. ¶ 6). To this, Otundo responded, “who the [expletive] do you think you are?”,
insisted that he was under arrest, pulled him out of the car by his right shoulder
and threw him to the ground. (Id. ¶ 7). Plaintiff was further injured when his right
shoulder hit the sidewalk, and when Otundo pulled on his arms to handcuff him.
(Id. ¶ 8). Then, at the medical center, Plaintiff complained of pain in both of his
shoulders resulting from the encounter. (Id. ¶ 9).
Officer Otundo does not dispute this basic version of the arrest, but maintains
that his actions were nevertheless reasonable and that Plaintiff’s alleged injuries
cannot be attributed to him.3 He claims that Faragalla only complained of pain in
his neck, back left shoulder, and right hand when he visited the hospital
immediately after the event. (MOSMF ¶ 13). Further, he notes that Plaintiff has
been involved in a number of car accidents, and his most significant injury (to his
right shoulder) results from one of those incidents, not from the arrest. (Id. ¶ 11-
14).
Plaintiff filed a complaint against the City of Jersey City, Officer Otundo, and
several others on May 19th, 2017. (DE 1). He raises the following causes of action:
1. Section 1983 Use of Excessive Force
2. Section 1983 Failure to Intervene
3. Section 1983 Jersey City Supervisory Liability
4. Section 1983 Hudson County Supervisory Liability
5. Section 1983 Jersey City Unlawful Policy, Custom, Practice, Inadequate
Training
6. Section 1983 Hudson County Unlawful Policy, Custom, Practice, Inadequate
Training

3 Otundo does imply that the encounter was not as described by Faragalla. For the
purpose of this motion, however, he credits Faragalla’s version of events, and argues that
his alleged actions were nevertheless reasonable.
7. Violation of New Jersey Civil Rights Act
8. Assault and Battery
9. Negligence
Hudson County and others were dismissed from the case on January 21st,
2020. (DE 32), removing Counts 4 and 6, which applied only to those dismissed
parties. The City and Defendant Phillip Zacche (together, the “City Defendants”)
filed a motion for summary judgment on January 24th, 2020 (DE 33) and
Defendant Otundo filed a motion for summary judgement that same day (DE 34).
Plaintiff filed a brief in opposition (DE 39) to which both sets of moving defendants
replied (DE 40, 41). These motions cover all of the remaining counts.4
For the reasons below, those motions for summary judgment are granted in
part and denied in part.
II. Legal Standard
Federal Rule of Civil Procedure 56(a) provides that summary judgment
should 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); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986);
Kreschollek v. S. Stevedoring Co., 223 F.3d 202, 204 (3d Cir. 2000). In deciding a
motion for summary judgment, a court must construe all facts and inferences in
the light most favorable to the nonmoving party. See Boyle v. Cty. of Allegheny Pa.,
139 F.3d 386, 393 (3d Cir. 1998). The moving party bears the burden of
establishing that no genuine issue of material fact remains. See Celotex Corp. v.
Catrett, 477 U.S. 317, 322–23 (1986). “[W]ith respect to an issue on which the
nonmoving party bears the burden of proof ... the burden on the moving party
may be discharged by ‘showing’—that is, pointing out to the district court—that
there is an absence of evidence to support the nonmoving party’s case.” Celotex,
477 U.S. at 325.

4 Otundo moves for summary judgment on the second count, failure to intervene. In
his opposition, Plaintiff states that he does not oppose the grant of summary judgment on
that count. (Pl. Opp. at 1). Summary judgment is therefore granted.
Once the moving party has met the threshold burden, the non-moving party
“must do more than simply show that there is some metaphysical doubt as to
material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.
574, 586 (1986). The opposing party must present actual evidence that creates a
genuine issue as to a material fact for trial. Anderson, 477 U.S. at 248; see
also Fed. R. Civ. P. 56(c) (setting forth types of evidence on which the nonmoving
party must rely to support its assertion that genuine issues of material fact exist).
In deciding a motion for summary judgment, the court’s role is not to evaluate and
decide the truth of the matter, but to determine whether there is a genuine issue
for trial. Anderson, 477 U.S. at 249. Credibility determinations are the province of
the fact finder. Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363
(3d Cir. 1992). The summary judgment standard, however, does not operate in a
vacuum. “[I]n ruling on a motion for summary judgment, the judge must view the
evidence presented through the prism of the substantive evidentiary
burden.” Anderson, 477 U.S. at 254.
III. Discussion
A. Section 1983 Claims
Plaintiff’s remaining Section 1983 claims purport to apply to Defendant
Otundo individually and the City of Jersey City through a theory of municipal
liability.5
1. Governing Law
Section 1983 does not create a substantive right but instead provides a
remedy for the violation of rights created by federal law. 42 U.S.C. § 1983;
Oklahoma City v. Tuttle, 471 U.S. 808, 816, 105 S. Ct. 2427, 2432, 85 L.Ed.2d
791 (1985). A prima facie case under § 1983 requires a plaintiff to demonstrate
that: (1) a person deprived him or her of a federal right; and (2) the person who
deprived him or her of that right acted under color of state law. Groman v. Twp. Of

5 All of Faragalla’s claims against the City are also levelled against Zacche, who is
represented by the same counsel as the City. For convenience, all references to the City
ought to be construed as references to Zacche as well.
Manalapan, 47 F.3d 628, 633 (3d Cir. 1995) (citing Gomez v. Toledo, 446 U.S. 635,
640, 100 S. Ct. 1920, 1923 (1980)).
There is no issue as to the second element, i.e., that the defendants have
acted under color of state law; the individual defendants are a police officer and
chief of police who were acting in the course of their official duties, and the City is
a public entity. I therefore focus on the first element, i.e., the deprivation of some
right secured by the constitution. Here, the underlying deprivation is Otundo’s
alleged use of excessive force in arresting Plaintiff in violation of the Fourth
Amendment.
2. Officer Otundo’s Liability
a. Applicability of the Heck Doctrine
Otundo argues that Plaintiff’s Section 1983 claims are barred by the Heck
doctrine, because Plaintiff pled guilty to criminal offenses related to the arrest in
municipal court. (Otundo Br. at 12-13).
In Heck v. Humphrey, the Supreme Court held that a plaintiff may not
recover damages under Section 1983 when doing so would invalidate a criminal
conviction. 512 U.S. 477, 486-87 (1994); see also Garrison v. Porch, 376 F. App’x
274, 277 (3d Cir. 2010). But criminal convictions, or guilty pleas, do not
necessarily preclude Section 1983 claims. For example, the Third Circuit has held
“that a conviction for resisting arrest does not necessarily preclude an arrestee for
recovering damages on a Section 1983 excessive force claim.” Garrison, 376 F.
App’x at 277 (citing Nelson v. Jashurek, 109 F. 3d 142, 145-46 (3d Cir. 1997)). The
reasoning is that an officer might still have used an unreasonable amount of force
in subduing a resisting arrestee. Id. Such a conclusion would not necessarily
invalidate the underlying conviction.
Otundo relies primarily on Bustamante v. Borough of Paramus, 994 A. 2d
573, 584-586 (N.J. Super. Ct. App. Div. 2010). That case surveyed the
applicability of the Heck doctrine, concluding that a Section 1983 excessive force
claim was not always precluded by a guilty plea for resisting arrest. Id. at 586. The
court still found, however, that it did preclude the plaintiff’s claim in that
instance. In pleading guilty, the plaintiff “forfeited any claim that defendants used
excessive force in effecting his arrest.” Id. at 585. This conclusion was based on
the elements of a plea for resisting arrest, which implied, to the court, that the
plaintiff was admitting the officers made a lawful arrest.
Otundo’s argument seems to be that because he arrested Faragalla for
conduct that Faragalla ultimately pled guilty to, his actions must have been
lawful. (Otundo Reply Br. at 5). The Section 1983 claims, he argues, amount to a
finding that Otundo’s actions were unlawful, which would be prohibited by the
Heck doctrine. That is too broad a principle. Faragalla raises an excessive force
claim against Otundo. For example, the existence of probable cause to arrest a
suspect does not preclude the possibility that the officers used excessive force in
doing so. So even a lawful arrest may involve excessive force for Section 1983
purposes.
This case does not, however, require a detailed analysis of whether an
excessive force claim would invalidate an element of a criminal conviction. For the
Heck doctrine to apply, a criminal conviction would have to be at risk of being
invalidated by a civil action. The record here does not reflect any such criminal
conviction. It is unclear from the record what Faragalla pled guilty to. While he
was charged with resisting arrest and assaulting an officer, there is no evidence
that he pled guilty to that offense. At most, Faragalla admits in his deposition that
he pled guilty to something, probably to a motor vehicle offense, but could not
remember which offense specifically. Faragalla Dep. 106:22-24; 139:12-14. These
vague references in the deposition are the only evidence Otundo points to
regarding criminal convictions.6

6 In his reply brief, Otundo draws the Court’s attention to a statement in Plaintiff’s
opposition brief: “Plaintiff was charged with Resisting Arrest, Assaulting an Officer and
motor vehicle summonses, all of which were resolved by Plaintiff pleading guilty in
municipal court.” (Pl. Opp. at 5). Otundo seems to take this to mean that Plaintiff admits
he pled guilty to all of those charges. First, statements in a brief are not evidence. Second,
taking inferences in the Plaintiff’s favor, this admittedly ambiguous sentence could
instead mean that the charges were all resolved by Faragalla’s plea, not that he pled
guilty to all. That interpretation is more likely to be true, considering that only a few
sentences later Plaintiff argues that he was not resisting arrest. (Pl. Opp. at 6). Further,
Without knowing what criminal convictions exist, or what admissions were
made in connection with the convictions, it cannot be concluded at this stage that
a criminal conviction would be invalidated by Section 1983 damages. The Heck
doctrine accordingly has not been implicated. Summary judgment will not be
granted on that basis.
b. Excessive Force
An excessive force claim is analyzed under the Fourth Amendment’s
reasonableness standard. See Graham v. Connor, 490 U.S. 386, 395 (1989). “[T]o
state a claim for excessive force as an unreasonable seizure under the Fourth
Amendment, a plaintiff must show that a ‘seizure’ occurred and that it was
unreasonable.” Abraham v. Raso, 183 F.3d 279, 288 (3d Cir. 1999) (citation
omitted). “The use of excessive force is itself an unlawful ‘seizure’ under the
Fourth Amendment.” See Couden v. Duffy, 446 F.3d 483, 496 (3d Cir. 2006)
(citations omitted). The relevant inquiry is “whether the officer’s actions are
‘objectively reasonable in light of the facts and circumstances confronting them,
without regard to their underlying intent or motivation.” Graham, 490 U.S. at 397
(citations omitted).
The Third Circuit has enumerated some relevant considerations:
In deciding whether challenged conduct constitutes excessive force, a
court must determine the objective ‘reasonableness’ of the challenge
conduct, considering “the severity of the crime at issue, whether the
suspect poses an immediate threat to the safety of the officer or
others, and whether he is actively resisting arrest or attempting to
evade arrest by flight.”

Carswell, 381 F.3d at 240 (quoting Graham, 490 U.S. at 396, 109
S.Ct. 1865). Other factors include “the duration of the [officer’s]
action, whether the action takes place in the context of effecting an
arrest, the possibility that the suspect may be armed, and the number
of persons with whom the police officers must contend at one time.”
Sharrar v. Felsing, 128 F.3d 810, 822 (3d Cir. 1997). In evaluating
reasonableness, the court must take into consideration the fact that

Plaintiff states in his deposition that he pled guilty to the motor vehicle violations.
(Faragalla Dep. 106:22-24). The fact remains that it cannot be determined at this
juncture that Faragalla pled guilty to resisting arrest or assaulting an officer.
“police officers are often faced to make split-second judgments—in
circumstances that are tense, uncertain, and rapidly evolving—about
the amount of force necessary in a particular situation.” Graham, 490
U.S. at 397, 109 S.Ct. 1865. Thus, the court should not apply “the
20/20 vision of hindsight,” but should instead consider the
“perspective of a reasonable officer on the scene.” Id. at 396, 109 S.Ct.
1865.
Couden v. Duffy, 446 F.3d 483, 496-97 (3d Cir. 2006).
Otundo argues that his actions, even when viewed in the light most
favorable to Plaintiff, were objectively reasonable under the circumstances.
Plaintiff took an illegal U-turn and “did not pay attention” to the officers’
instructions. (Otundo Brf. at 7-8). Otundo says the amount of force allegedly to
effectuate the arrest was reasonable.
Plaintiff, on the other hand, contends that triable issues of fact exist as to
whether Otundo’s conduct was reasonable. He delineates several factors of the
analysis. As to the severity of the crime at issue, he admits that he was charged
with resisting arrest, assaulting an officer, and motor vehicle summons, all of
which were “resolved” by a guilty plea. (Pl. Opp. at 5). As to the duration of the
action, Plaintiff appears to accept Otundo’s contention that “it took approximately
one minute to arrest Plaintiff” and that it took “a few seconds” to get Plaintiff’s
hands behind his back and apply handcuffs. (Id.). As to the number of persons the
officers must contend with, Plaintiff explains he was the only person involved.
(Id.).
As to whether the plaintiff posed any threat to the safety of the officers or
may have been armed, Faragalla argues that he posed no threat, and never yelled,
cursed, made any threatening statement, or tried to punch anyone. Nor was he
actively resisting arrest: “Plaintiff was not resisting arrest or trying to flee. As is
evident in the testimony of Plaintiff, he never had a chance to resist arrest.” (Pl.
Opp. at 6).
Plaintiff explains the use of force as follows:
After asking Defendant Otundo to issue him a ticket and let him go so
he could pick up his client, Defendant Otundo asked Plaintiff “who
the [expletive] do you think you are?” told him that he was under
arrest, grabbed him out of the car by his right shoulder and threw
him to the ground. Plaintiff’s right shoulder hit the sidewalk when
Defendant Otundo threw him to the ground and Defendant Otundo
pulled on Plaintiff’s arms when he handcuffed him.7

(Pl. Opp. at 6).

Otundo seems to argue that because Plaintiff “spoke loudly enough in
voicing his complaints through his window that Officer Otundo could hear
him several feet away from the back of the vehicle” and “while the officers
were talking to him he did not pay attention” Otundo was entitled to use
physical force. (Otundo Br. at 8-9).8 For Otundo, the fact that he did not use
a weapon or continue to use force against Faragalla after he had been
subdued makes his actions objectively reasonable.
Altogether, Otundo contends that he was (or rather would have been)
justified in pulling Plaintiff from his vehicle, throwing him to the ground,
and handcuffing him, all in response to a routine traffic violation. Otundo
argues that his use of force was limited and appropriate. He is correct that
the use of force was limited and did not continue beyond handcuffing, but
there does not appear to be a reason why, crediting Faragalla’s account, he
used any force at all. There is no indication, from Faragalla’s account, that
Otundo was in any danger or that Plaintiff was refusing to cooperate.

7 This version of events, however, is somewhat inconsistent with Plaintiff’s own
deposition testimony. According to Plaintiff’s deposition, after he asked Officer Otundo if
he was going to be given a ticket, Otundo replied that Plaintiff was under arrest.
(Faragalla Dep. 80:6-16). Then, Faragalla opened the door to his car and stepped out.
(Faragalla Dep. 81:4-6). While he was exiting the car, Otundo grabbed him and punched
him in the chest. (81:7-82:4). Then he pushed Plaintiff back into the car before throwing
him to the ground. (82:16-25). After that, Plaintiff felt himself being kicked, but could not
see who was kicking him. (82:7-10). While Plaintiff was on the ground, Otundo grabbed
his right hand to handcuff him, all the while Plaintiff was protesting that he had surgery
on his shoulder and was injured. (88:4-18). Otundo continued to kick him. (88:19-89:6).
Nevertheless, for purposes of this summary judgment motion, I will consider Plaintiff’s
version of events as explicated in the statement of material facts submitted alongside his
opposition brief.
8 Otundo also argues that he “had an objectively reasonable basis to arrest the
Plaintiff for his illegal, criminal conduct.” (Otundo Br. at 8). He does not, however, offer
any authority for that claim. In any event, even if Otundo was entitled to arrest Faragalla,
he was not entitled to effectuate that arrest using excessive force.
I will now analyze the Graham factors. The first Graham factor is the
severity of the crime. Here, the crime was an illegal U-turn—a minor traffic
offense. True, Faragalla was charged with the crime of assaulting an officer
and resisting arrest, but, as discussed above, there is no evidence he was
convicted of those crimes. (And it begs the disputed factual question of why
and how an illegal U-turn gave rise to an arrest scenario at all.) A
reasonable jury could still find that this factor weighs in favor of Faragalla.
As to the second Graham factor—whether Faragalla posed an
immediate threat to the officers—in Faragalla’s version of events, he was
sitting inside his car without any weapons when the use of force began.
Otundo asked him to step out of the car and then immediately started to
forcibly subdue him. (Faragalla Dep. 81:1-18; 128:2-21). A reasonable jury
could conclude that this factor weighs in Faragalla’s favor.
The third Graham factor—whether Faragalla was actively resisting
arrest or attempting to evade arrest by flight. Taking Plaintiff’s version, he
was not resisting arrest, and the use of force began immediately after he
complied with Otundo’s instruction to get out of his vehicle. A reasonable
jury could find that this factor weighs in Faragalla’s favor.
Viewing the facts in the light most favorable to Plaintiff, Otundo used
a significant amount of force against an unarmed individual sitting in his
car, not presenting a danger, and cooperating while being charged with a
minor traffic offense. Supported by multiple officers against a single
individual, he tackled Faragalla to the ground and applied handcuffs. A
reasonable jury might or might not conclude that his use of force under
these circumstances was excessive. Summary judgment on the excessive
force claim is therefore denied.
c. Qualified Immunity
Otundo also argues that he is entitled to qualified immunity. “The doctrine
of qualified immunity protects government officials ‘from liability for civil damages
insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.’” Pearson v.
Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982)). When properly applied, qualified immunity protects “all but the
plainly incompetent or those who knowingly violate the law.” Medley v. Briggs, 475
U.S. 335, 341 (1986). To overcome qualified immunity, a plaintiff must plead facts
sufficient to show that: (1) the official violated a statutory or constitutional right;
and (2) “the right at issue was ‘clearly established’ at the time of defendant’s
alleged misconduct.” Pearson, 555 U.S. at 232; Mammaro v. New Jersey Div. of
Child Prot. & Permanency, 814 F.3d 164, 168-69 (3d Cir. 2016). A right is clearly
established if it is “sufficiently clear that every reasonable official would have
understood that what he is doing violates that right.” Mullenix v. Luna, 136 S. Ct.
305, 308 (2015) (internal quotation marks and citation omitted). The burden of
proving the affirmative defense of qualified immunity rests on the party seeking to
invoke it. See Thomas v. Independence Twp., 463 F.3d 285, 292 (3d Cir. 2006).
Having determined that a reasonable jury could conclude that the officer’s
conduct was not “objectively reasonable,” I turn to whether it was “clearly
established” that pulling Faragalla out of the car and tackling him to the ground
to handcuff him in the course of ticketing him for a traffic violation violated the
Fourth Amendment.
With respect to the second step of a qualified immunity analysis, this Court
must “identify the right at issue and determine if that right was clearly established
at the time of the officer’s action.” Estep v. Mackey, 639 F. App’x 870, 873 (3d Cir.
2016). A right is clearly established where, at the time of the challenged conduct,
the contours of the right are “sufficiently clear ‘that every reasonable official would
[have understood] that what he is doing violates that right.’” Reichle v. Howards,
566 U.S. 658, 664 (2012) (alteration in original) (quoting Ashcroft v. al–Kidd, 563
U.S. 731, 741 (2011)). In other words, “[t]he relevant, dispositive inquiry in
determining whether a right is clearly established is whether it would be clear to a
reasonable officer that his conduct was unlawful in the situation he confronted.”
Saucier v. Katz, 533 U.S. 194, 202 (2001).
While a case directly on point is not required, “there must be sufficient
precedent at the time of action, factually similar to the plaintiff’s allegations, to
put defendant on notice that his or her conduct is constitutionally
prohibited.” McLaughlin v. Watson, 271 F.3d 566, 572 (3d Cir. 2001). “Such
precedent must come either from the Supreme Court or a ‘robust consensus of
cases of persuasive authority in the Court of Appeals.’” In Re: J & S Properties,
LLC, No. 16–3366, 2017 WL 4294065, at *4 (3d Cir. Sept. 28,
2017) (quoting Mammaro, 814 F.3d 169).
In determining whether a constitutional right has been clearly established,
the Court must “define the right allegedly violated at the appropriate level of
specificity.” Sharp, 669 F.3d 144, 159 (3d Cir. 2012) (citation omitted). Both the
Supreme Court and the Third Circuit have repeatedly instructed courts “not to
define clearly established law at a high level of generality.” al–Kidd, 563 U.S. at
742 (citations omitted). “Rather, the right at issue must be framed ‘in a more
particularized, and hence more relevant, sense, in light of the case’s specific
context, not as a broad general proposition.’” Mackey, 639 F. App’x at
873 (quoting Spady v. Bethlehem Area Sch. Dist., 800 F.3d 633, 638 (3d Cir.
2015)). Within the context of excessive force claims specifically, both the Supreme
Court and Third Circuit have emphasized the importance of defining with
particularity the clearly established law. See White v. Pauly, 137 S. Ct. 548, 552
(2017); Santini v. Fuentes, 795 F.3d 410, 417 (3d Cir. 2015) (observing that the
qualified immunity analysis “has more particularized requirements in an excessive
force case”).
I define the allegedly violated right as follows: Faragalla had the right not to
be pulled from his car, tackled to the ground, and handcuffed during a routine
traffic stop during which he was fully cooperative and the officer had no reason to
suspect he was dangerous.
That right was clearly established at the time of the incident. The Third
Circuit held in Pratt v. Port Authority of New York and New Jersey that force was
excessive where the plaintiff “did not resist [the police officer] in any way, was
unarmed, and had committed, if anything, a relatively minor offense, yet [the
officer] tackled him, face-first, onto the ground, twisting his neck on the way
down, and causing him serious and permanent spinal injuries.” 563 F. App’x 132,
135 (3d Cir. 2014). While Faragalla’s injuries were not as significant as those of
that plaintiff, the lead up to the tackling followed a similar pattern.
The Third Circuit also found excessive force when police officers, seeking to
arrest a plaintiff pursuant to a warrant for a non-violent offense, dragged him out
of his bed, pointed guns at him, and violently slammed him against a wall. Ansell
v. Ross Twp., Penn., 419 F. App’x 209, 213 (3d Cir. 2011).
Courts in other circuits have echoed the Third Circuit in holding that
tackling unarmed and non-dangerous suspects constitutes excessive force.
Crawford v. Geiger, 656 F. App’x 190, 204 (6th Cir. 2016) (holding more broadly
that “‘the right to be free from physical force when one is not resisting the police’
was clearly established”) (quoting Wyson v. City of Heath, 260 F. App’x 848, 856
(6th Cir. 2008)); Aguilar v. Robertson, 512 F. App’x 444, 450 (5th Cir. 2013) (“All
reasonable officers would have known in the circumstances of someone completely
stopped on a motorcycle for speeding, who was not resisting arrest, who had
neither committed nor threatened any crime besides the speeding, that tackling
the rider and forcing him to the ground would violate a constitutional right.”).
Malory v. Whiting, 489 F. App’x 78, 86 (6th Cir. 2012) (holding that an “obvious
legal norm prohibited [police officers] from tackling a suspect who made only a
mild show of resistance, pressing his head into the ground, and punching him.”);
Raiche v. Pietroski, 623 F. 3d 30, 39 (1st Cir. 2010) (holding that “tackling a
person [on a motorcycle] who has already stopped in response to the officer’s
command to stop and who presents no indications of dangerousness” would be a
“major departure from reasonable behavior” under the Graham factors).
These cases all demonstrate that the use of significant force, such as
tackling, is unreasonable as applied to cooperative, non-resisting individuals who
are not suspected of a serious crime or present danger. Indeed, The Third Circuit
has recently held that a very similar right was clearly established at the time, even
for individuals who are uncooperative. See El v. City of Pittsburgh, __ F. 3d __, No.
18-2856, 2020 WL 5541155 (3d Cir. 2020) In El, the court determined that a
consensus existed that an “unarmed, uncooperative citizen[] who [was] not
suspected of serious crimes” had the right “not to be taken to the ground during
an investigatory stop when he stands up and takes one or two small steps towards
a police officer who is standing a few feet away.” Id. at *8.
Unlike the plaintiff in El, Faragalla was not uncooperative9. If a reasonable
officer ought to have known that an uncooperative citizen in a similar situation
has the right not to be tackled to the ground, it follows a fortiori that a reasonable
officer ought to have known a cooperative citizen has that same right. Because
Faragalla’s right was clearly established at the time of the incident, Otundo is not
entitled to qualified immunity, and summary judgment will not be granted on that
basis.
3. Municipal Liability
Plaintiff’s Section 1983 claims are also asserted against the City
Defendants. Municipalities and local governments cannot be held liable under
Section 1983 on a respondeat superior theory, but may be held liable for a
constitutional injury that resulted from a policy or custom the local government
body has adopted. See Monell v. Dep’t of Soc. Servs. Of City of New York, 436 U.S.
658, 691, 98 S. Ct. 2018, 2036 (1978) (“Congress did not intend municipalities to
be held liable unless action pursuant to official municipal policy of some nature
caused a constitutional tort.”); see also Beck v. City of Pittsburgh, 89 F.3d 966,
971 (3d Cir. 1996). The “official policy” requirement in Monell “was intended to
distinguish acts of the municipality from acts of employees of the municipality,
and thereby make clear that municipal liability is limited to action for which the
municipality is actually responsible”—acts, in other words, which municipality
“has officially sanctioned or ordered.” Pembaur v. City of Cincinnati, 475 U.S. 469,
479–80, 106 S. Ct. 1292, 1298 (1986) (emphasis in original).

9 I am viewing the facts in Faragalla’s favor, as is required at this stage. A jury, of
course, could ultimately conclude that Faragalla was uncooperative, or even combative.
In order to establish a prima facie case for Monell liability, the Plaintiff must
“(i) demonstrate the existence of an unlawful policy or custom; (ii) that resulted in
a deprivation of the rights, privileges, or immunities secured by the Constitution
or laws of the United States; and (iii) that the policy or custom was the proximate
cause of the alleged deprivation.” Maldonado v. City of Passaic Bd. Of Educ., No.
CV1712245ESJAD, 2020 WL 289649, at *7 (D.N.J. Jan. 21, 2020) (citing Bielevicz
v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990)). A government policy is made when
a “decisionmaker possess[ing] final authority to establish municipal policy with
respect to the action’ issues an official proclamation, policy, or edict.” Beck v. City
of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996) (quoting Bielevicz, 915 F.2d 845,
850 (3d Cir. 1990)). In contrast, “a course of conduct is considered to be a
‘custom’ when, though not authorized by law, ‘such practices of state officials [are]
so permanent and well-settled’ as to virtually constitute law.” Id.
Plaintiff asserts Monell liability for the City in Count 3 (Section 1983 Jersey
City Supervisory Liability) and Count 4 (Section 1983 Jersey City Unlawful Policy,
Custom, Practice[,] Inadequate Training). These counts appear to correspond to
two recognized theories of Monell liability: (1) unconstitutional policies and
customs, and (2) inadequate training of employees.
a. Unconstitutional Policies and Customs
The City Defendants argue that Plaintiff has failed to bring forth evidence of
any existing policies or customs that could be linked to Otundo’s use of excessive
force. (JC Br. at 18). Plaintiff relies on the fact that the City did not follow
guidelines promulgated by the New Jersey Attorney General’s office regarding
internal affairs investigations (the “Guidelines”). This failure, Plaintiff argues,
constituted a custom tolerating the use of excessive force.
Faragalla claims that despite the City’s stated policy that civil complaints
trigger internal affairs investigations, the department failed to actually conduct
interviews, revealing that the policies are a sham. He cites to Beck v. City of
Pittsburgh, 89 F. 3d 966 (3d Cir. 1996). In that case, the Third Circuit held that
the existence of policies to prevent wrongdoing is not enough when there is
evidence that the policies are a mere façade. Id. at 974. There, the police
department did not formally track complaints against individual officers. Id. at
969. Prior complaints of excessive force had no bearing on pending investigations;
indeed, the plaintiff introduced evidence of four previous excessive force
complaints against one of the officers in question. Id. at 969-970. The Third
Circuit required that investigations be adequate to protect civilians from excessive
force, whereas the police department’s policies in that case served only to “curtail
disciplinary action.” Id. “A jury readily could have found the Office of Professional
Standards was nothing more than a façade to cover the violent behavioral patterns
of police officers under investigation, to protect them from disciplinary action, and
thereby perpetuate the City’s custom of acquiescing in the excessive use of force
by its police officers.” Id.
Plaintiff also cites a discussion of the adequacy of investigative procedures
in Monaco v. Camden. There, the plaintiff argued that the police department did
not properly investigate his excessive force complaint. No. 04-cv-408423, 2008 WL
408423 (D.N.J. Feb. 13, 2008). Despite the police department’s awareness of
plaintiff’s allegations shortly after the incident occurred, it did not investigate until
almost three years later. Id. at *13. When the investigation did occur, the internal
affairs detective only asked for the officers involved to write a report of their
account of the events. Id. at *14. The reports yielded ambiguous results. Still, the
detective did not follow up with the officers or plaintiff, simply concluding that
plaintiff’s allegations were “not sustained.” Id.
The record in Monaco reflected further evidence that this kind of
investigation was typical and reflected the police department’s policy. The
detective’s “exclusive reliance upon the contents of the officers’ reports, and her
decision not to seek to resolve the ambiguity of the information gleaned in the
investigations, was not an accidental oversight in this particular case, but was,
instead, as she testified, ‘the way that we do it.’” Id. From this, the court found as
follows:
“[A] reasonable jury could find, based on the evidence in the record,
that it was the ‘well settled’ custom of the City and the Police
Department not only to fail to conduct timely investigations into
allegations of excessive force, but that when such investigations were
ultimately performed, they were directed less toward detecting and
correcting misconduct than toward shoring up the Department’s and
the officer’s defenses. A jury could reasonably find that such
inattention to the question of whether police misconduct actually
occurred was ‘so likely to result in the violation of constitutional
rights’ as to evidence the City’s deliberate indifference to its officers’
use of excessive force. There is, moreover, a strong ‘connection
between the … [allegedly inadequate policy identified] and the specific
constitutional violation’ Plaintiff alleges took place.”
Id. (citation omitted) (alteration in original) (quoting Board of County Com’rs
of Bryan County, Okl. V. Brown, 520 U.S. 397, 412 (1997).
Faragalla has not demonstrated such a pattern here. To begin with,
failure to adhere to the Guidelines, even a routine failure, does not
necessarily equate to an unconstitutional policy or custom. But in any
event, Faragalla has not provided a sufficient basis for an inference that the
City Defendants did in fact routinely fail to adhere to the Guidelines. He
points to only two items of record evidence: (1) that Otundo stated he was
not interviewed by internal affairs in connection with Plaintiff’s complaint10
and (2) that a subsequent excessive force complaint was filed against
Otundo a year later.
Those two facts are not enough to allow an inference that there is a well-
settled policy of indifference to the Guidelines, or more broadly to complaints of
excessive force. Faragalla has only shown, at best, that the City Defendants failed
to interview the officer involved in this one instance. Accepting the somewhat

10 Plaintiff does not cite to the record for this proposition, but it appears to come from
Defendant Otundo’s interrogatory answer:
Q: Please state whether you were ever questioned by any police supervisors
conducting any Internal Affairs and/or Administrative investigation pertaining to
Plaintiff’s arrest.
A: Objection. This interrogatory is overbroad, ambiguous and unduly burdensome.
Notwithstanding said objection, and without waiver thereof, Defendant submitted a
written report, and is without knowledge regarding any internal affairs
investigation.
DE 39-1 at 24.
problematic theory that the subsequent complaint is evidence that the police
department did not take Plaintiff’s complaint against Otundo seriously enough,
there is no indication that the City Defendants did not investigate that subsequent
complaint. Nor is there evidence that the police department regularly minimizes
the effectiveness of its internal affairs review process. To establish a custom, there
must be a “course of conduct.” Jiminez v. All American Rathskeller, Inc., 503 F. 3d
247, 250 (3d Cir. 2007). An isolated example is not a course of conduct.
Faragalla has not demonstrated anything close to the pervasive misconduct
demonstrated by the record in Beck and Monaco. Those cases both reflected
multiple examples of misconduct by the police department defendants and a
consistent pattern of failing to properly investigate excessive force complaints.
Faragalla has not provided evidence of such a pattern here. The evidence in the
record is therefore insufficient to raise a triable dispute of fact as to whether the
City Defendants engaged in a policy or custom of ignoring excessive force
complaints that led to the deprivation of Faragalla’s constitutional rights.
Accordingly, summary judgment is granted in favor of the City Defendants as to
this theory.
b. Inadequate Training
Inadequate police training may serve as the basis for municipal liability under
Section 1983, but only where the failure to train “amounts to deliberate
indifference to the rights of persons with whom the police come into contact.” City
of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989). The deliberate indifference
standard is a demanding one, “requiring proof that a municipal actor disregarded
a known or obvious consequence of his action.” Connick v. Thompson, 563 U.S.
51, 131 (2011).
To establish a claim of municipal liability under a failure-to-train theory, the
plaintiff must show that the deficient training of officers is closely related to the
injury he ultimately suffered. City of Canton, 489 U.S. at 391. The focus of this
inquiry “must be on the adequacy of the training program in relation to the tasks
the particular officers must perform.” Id. at 390. Thus the flaw must be in the
training program itself; isolated errors in its execution will not suffice. Liability will
not arise merely because an otherwise acceptable training program has been
negligently administered. Id. at 391. Nor will liability arise on the tautological
grounds that the injury in question would not have occurred if officers had been
trained to avoid that particular injury; such a claim “could be made about almost
any encounter resulting in injury.” Id. at 391. Additionally, the plaintiff must show
that the failure to train “reflects a deliberate or conscious choice” by the
municipality. Id. at 389. In short, the plaintiff's task here is two-fold: he must
show that the City’s training program was insufficient, and that the insufficiency
resulted from an intentional decision by the City.
Plaintiff does not point to any evidence about the City’s police training
program. After reciting the elements of a claim based on a failure to train theory,
he states that “Plaintiff’s case and the subsequent Sanders excessive force lawsuit
filed against Defendant Otundo resulting in no disciplinary action or retraining
show that Defendants Jersey City, Chief of Police Zacche and other supervisors
are aware of Defendant’s ‘unfitness, incompetence’ and ‘dangerous attributes.’”
(Pl. Opp. at 16-17). Plaintiff presents no facts about the training program or its
flaws. Nor does he present evidence that any failure to train on the subject of
excessive force was an intentional decision by the police department. His
conclusory denunciation is insufficient to create an issue of fact.
Accordingly, summary judgment is granted in favor of the City Defendants as
to the inadequate training theory of liability.
B. NJCRA Claim
In Count 7, Faragalla brings a claim that Otundo violated the New Jersey
Civil Rights Act (“NJCRA”) by using excessive force against him.
The NJCRA, N.J. Stat. Ann. § 10:6-2(c), provides that “[a]ny person who has
been deprived of any substantive rights, privileges or immunities secured by the
Constitution or laws of this State by a person acting under color of law, may bring
a civil action for damages.”
The New Jersey State Legislature, when it enacted the NJCRA, intended it to
parallel 42 U.S.C. § 1983, and sought to incorporate existing § 1983
jurisprudence. Perez v. Zagami, 218 N.J. 502, 515, 94 A. 3d 869 (2014); see also
Ramos v. Flowers, 429 N.J. Super. 13, 23, 56 A. 3d 869 (App. Div. 2012) (stating
that NJCRA was “modeled on the federal civil rights law which provides for a civil
action for deprivation of civil rights.” (citations omitted)); Ingram v. Twp. of
Deptford, 911 F. Supp. 2d 289, 298 (D.N.J. 2012); Trafton v. City of Woodbury,
799 F. Supp. 2d 417, 443 (D.N.J. 2011). Thus, the NJCRA is construed nearly
identically to Section 1983.
Otundo argues that the NJCRA claim must be dismissed because he is
protected by qualified immunity. Because, as discussed above, Otundo is not
entitled to qualified immunity under Section 1983, summary judgment as to the
NJCRA claim is denied as well.
C. State Law Claims
Plaintiff also brings claims of assault and battery (Count 8) and negligence
(Count 9). These claims are brought against Otundo directly and against the City
Defendants through a theory of respondeat superior. Defendants argue that they
are not liable for these torts, and that damages for pain and suffering are barred
by the New Jersey Tort Claims Act.
1. Damages for Pain and Suffering
The New Jersey Tort Claims Act, N.J. Stat. Ann. § 59:1-1, et seq. limits a
plaintiff’s ability to recover from public entities and employees. N.J. Stat. Ann.
59:9-2(d) provides that “[n]o damages shall be awarded against a public entity or
public employee for pain and suffering resulting from any injury; provided,
however, that this limitation on the recovery of damages for pain and suffering
shall not apply in cases of permanent loss of a bodily function, permanent
disfigurement or dismemberment where the medical treatment expenses are in
excess of $3,600.00.”
Defendants each argue that Plaintiff has provided no evidence that his
injuries resulted in permanent loss of bodily function.11 Plaintiff argues that he

11 Defendants also argue throughout that Plaintiff’s injuries do not arise from his
encounter with Officer Otundo, but are instead a result of multiple other car accidents.
Both of his treating physicians, however, concluded “within a reasonable degree of
has, relying on the opinion evidence of two treating physicians that his shoulder
injury is permanent in nature.
New Jersey courts have provided guidance in interpreting the statutory
prohibition against pain and suffering damages. In Brooks v. Odom, the New
Jersey Supreme Court examined the legislative intent of the statute and
concluded that the plaintiff, who suffered from permanent limitations of motion in
her neck and back, had not sustained permanent loss of bodily function within
the meaning of the statute. 150 N.J. 395, 406, 696 A. 2d 619 (1997). The court
relied in part on the fact that, despite her permanent injuries, she could still
“function both in her employment and as a homemaker.” Id.
The court expanded on this holding in Gilhooley v. County of Union, reading
Brooks as requiring that the objective evidence must show a permanent loss of
bodily function that is also “substantial.” 164 N.J. 533, 541, 753 A. 2d 1137
(2000). Critically, the court held that not every objectively permanent injury is
necessarily “substantial.” Id.
This substantiality prong was again at issue in Kahrar v. Borough of
Wallington. 171 N.J. 3, 791 A. 2d 197 (2002). There, although the plaintiff was
able to return to work after surgery, her range of motion in her shoulder was
permanently reduced by 40%. This significant injury, which required open surgery
and implicated the essential functioning of the arm, qualified as substantial. Id. at
15-16. The court also expressly denied that Brooks invented a per se rule that
recovery is barred where the plaintiff can still “function reasonably well at work
and at home, irrespective of the nature or degree of permanent impairment.” Id. at
14.
In interpreting this guidance, some New Jersey courts have sought to
compare the severity of a plaintiff’s injury to that of the plaintiffs in the above

medical probability” that his injuries were causally related to the arrest. (PSSMF ¶¶ 18,
21). Causation is ultimately a factual question for the jury, and at this stage, I make the
inference in Plaintiff’s favor that the injuries he complains of were in fact caused by his
encounter with the police. See Verdi, 2012 WL 5041169, at *7 (holding that it was error
for the trial court to resolve the question of whether a subsequent fall was the cause of
plaintiff’s injuries at the summary judgment stage).
cases. See, e.g., Verdi v. Borough of Hopatcong, No. A-2439-11T1, 2012 WL
5041169, at *7 (N.J. Super. Ct. App. Div. Oct. 19, 2012) (“Plaintiff’s persisting arm
injury in this case is sufficiently comparable to the arm injury in Kahrar to be
presented to a jury.”); Heenan v. Greene, 809 A. 2d 836, 840 (N.J. Super. Ct. App.
Div. 2002). In Heenan, for example, the court was faced with a plaintiff who had
suffered a permanent spine injury. 809 A. 2d at 836. Nevertheless, the court
concluded that the plaintiff had not sustained as substantial an injury as the
plaintiffs in Gilhooley and Kahrar.12 Id. at 840. The plaintiffs in those cases, the
court reasoned, had “sustained injuries that would have rendered an extremity
useless without significant surgical intervention.” Id. The plaintiff in Heenan, on
the other hand, experienced “some restriction of movement” but was still able to
play sports, perform household chores “to some extent” and continue in her
employment. Id. Her injuries, therefore, were more analogous to those of the
plaintiff in Brooks, which were adjudged insubstantial. Id.
Faragalla claims that his injuries meet the standard. He provides
purportedly objective medical evidence in the form of opinions from two treating
physicians. 13 Dr. Garfinkel diagnosed him with a torn labrum and torn rotator
cuff in his right shoulder and concluded “within a reasonable degree of medical
probability” that the injuries were permanent in nature. (PSSMF ¶¶ 17, 18). Dr.
Eid described limited cervical and lumbar range of motion, an L5-S1 herniation,
and an exacerbation of a prior L4-5 disc bulge. He, too, concluded “within a
reasonable degree of medical probability” that these injuries were permanent in
nature. (PSSMF ¶¶ 20, 21).
Faragalla points to these two opinions, both concluding the injuries are
“permanent,” as evidence that his injuries meet the statutory standard. This
showing is insufficient to meet the statutory standard. Gilhooley expressly held

12 The court also compared the plaintiff’s injury to that of the plaintiff in another
Appellate Division case, Gerber v. Springfield Bd. of Educ., 328 N.J. Super. 24, 744 A. 2d
670 (App. Div. 2000).
13 The City Defendants also argue that these physician opinions violate the net
opinion rule and cannot be considered by the Court. Because I find that there is
insufficient evidence even including the physician’s opinions, I do not reach that issue.
that mere permanence is not enough. The permanent injuries must also be
substantial. Faragalla does not provide any evidence that his injuries are
substantial within the meaning of the statute.
On the contrary, although Plaintiff does not specifically reference any
evidence other than his physicians’ opinions, the record reflects that his injuries
are of a similar nature as those of the plaintiffs in Heenan and Brooks. He missed
several days of work to receive medical treatment. (Faragalla Dep. 62:3-11). While
he previously used his right arm and shoulder to lift heavy luggage into his cab,
he was subsequently forced to use his left arm and shoulder. (Id. 15-19). He also
works fewer hours and takes breaks while driving. (Id. 65:1-15). He did ultimately
receive surgery on his right shoulder in May of 2018. (Id. 54:4-6). The surgery,
however, occurred almost two years after the incident with Officer Otundo and
was only intended to ease pain, rather than rehabilitate an otherwise useless
extremity. (Id. 53:23-54:3). And certain of his injuries and work difficulties are
admittedly related to other, separate injuries, such as a left shoulder injury. (Id.
62:15-22). While Plaintiff testified that he still experienced shoulder pain, he
admitted that he no longer goes to physical therapy. (Id. 56:3-14).
While no doubt painful and inconvenient, these injuries do not rise to the
level of substantiality required to overcome the Tort Claims Act’s bar. They do not
render his arms “useless” without significant surgical intervention. He is still able
to engage in his employment to some extent. He has not been significantly limited
in his activities nor are his injuries of the same degree as those of the plaintiff in
Kahrar. No reasonable jury, therefore, could find that Plaintiff has suffered a
permanent loss of bodily function that is substantial. The difficulties Plaintiff
experiences are ultimately insufficient to warrant tort damages for pain and
suffering. To the extent Faragalla seeks those damages, they are barred.
2. Otundo’s Liability
Otundo argues that Faragalla’s assault and battery claim is barred by the
New Jersey Tort Claims Act because, as discussed supra, he has not suffered
permanent loss of bodily function. (Otundo Br. at 12-13). Otundo, however,
misquotes the applicable statute. N.J. Stat. Ann. § 59:9-2(d) does not prohibit
liability in the absence of permanent loss of bodily function. It prohibits only
damages for pain and suffering.
Otundo then argues that the assault and battery claim should be dismissed
because his use of force against Faragalla was reasonable, and he was permitted
to use reasonable force. (Otundo Br. at 13). As discussed supra, Faragalla has put
forth evidence that Otundo used excessive force. Summary judgment on the
assault and battery claim therefore cannot be granted to Otundo.
As for the negligence claim, Otundo argues that the Tort Claims Act
provides immunity for police officers acting within the scope of employment.
(Otundo Brf. at 13).14 Faragalla responds that Otundo can be liable for negligence
for breaching his duty of care.
The case cited by Otundo does not support general immunity for police
officers acting within the scope of employment. Instead, it held more narrowly that
a public employee “instituting or prosecuting any judicial or administrative
proceeding within the scope of his employment” is immune from liability. R.K. v.
Y.A.L.E. Schools, Inc., 621 F. Supp. 2d 188, 200 (D.N.J. 2008) (quoting N.J. Stat.
Ann. § 59:3-8). Public employees seeking to invoke immunity bear the burden of
establishing that immunity. Leang v. Jersey City Bd. of Educ., 198 N.J. 557, 582,
969 A. 2d 1097 (2009). The movant must establish that his actions were
objectively reasonable or that he performed them with subjective good faith. Id.
(quoting Canico v. Hurtado, 144 N.J. 361, 365, 676 A. 2d 1083 (1996)).
Faragalla acknowledges this requirement in his opposition brief, citing N.J.
Stat. Ann. § 59:2-10, which requires “malice, or willful misconduct” for liability.
He then argues that the same facts showing Otundo used unreasonable and
excessive force establish that his actions constituted malice and willful
misconduct. (Pl. Opp. at 22). Otundo says they do not. (Otundo Reply Br. at 6).
There exists here a genuine dispute. If a jury concluded that Otundo’s actions

14 Otundo also seems to argue that he cannot be liable for negligence because his
actions were objectively reasonable. That contention, however, presents issues of fact. See
Section III.A.2, supra.
were reasonable, an inference could be made that he used force in good faith. I
cannot reach such a conclusion on summary judgment, however. Summary
judgment on the negligence claim is therefore denied.
3. City Defendants’ Liability
The City Defendants argue that they cannot be held vicariously liable for
intentional torts of a public employee. (JC Br. at 22-23). They also argue that
assault and battery is outside the scope of employment15 and that therefore the
City is immunized from liability. (JC Br. at 23-24).
“A public entity is not liable for the acts or omissions of a public employee
constituting a crime, actual fraud, actual malice, or willful misconduct.” N.J. Stat.
Ann. § 59:2-10. Based on this statutory language, “there can be no vicarious
liability by a public entity for intentional torts committed by its employees; that is,
with respect to such intentional torts, the theory of respondeat superior does not
apply.” Hoag v. Brown, 397 N.J. Super. 34, 54, 935 A. 2d 1218 (App. Div. 2007).
The City Defendants seek to complete the syllogism by claiming that assault
and battery is an intentional tort. That is, any finding that Otundo committed
assault and/or battery would have to be predicated on a conclusion that he
engaged in willful misconduct. As a suggestive, but hardly on-point, case cited by
the City Defendants held, that is not a necessary conclusion:
Insofar as the assault and battery claim was based upon a theory that
Fortier acted negligently, the trial judge recognized that Kelly had
pursued a workers' compensation claim for his alleged injuries and,

15 The City Defendants are inconsistent in their position as to whether Otundo was
acting within the scope of employment. In committing assault and battery, they argue he
was acting outside of the scope of his employment, which is to “uphold the law.” (JC Br.
at 23). Elsewhere, they argue that “Plaintiff failed to show that the conduct of Officer
Otundo was not rightfully within his scope of employment.” (JC Br. at 21). Perhaps the
City Defendants mean that Otundo was presumptively acting within the scope of his
employment, but if he were found guilty of assault and battery, he necessarily could not
have been acting within the scope of his employment.
Ultimately, their argument that they cannot be liable if Otundo acted outside of the scope
of employment is attached to the argument that his misconduct was willful. That is, it
must have been outside of the scope because it was willful. The City Defendants have not
raised, therefore, an argument that Otundo acted outside of the scope of employment
even if the assault and battery were merely negligent.
thus, is precluded from pursuing a common law claim against [the
defendant] for negligence occurring in the workplace. And, to the
extent that Fortier's alleged actions could be viewed as willful, we
conclude that the trial judge correctly held that the County and its
Board of Chosen Freeholders could not be held liable because N.J.S.A.
59:2–10 immunizes public entities from suits based upon the willful
acts and omissions of their employees.
Kelly v. County of Monmouth, 380 N.J. Super. 552, 558, 883 A. 2d 411 (App. Div.
2005) (citations omitted) (emphases in original).
The worker’s compensation bar is not present here, but the Kelly holding
opens up the possibility that not every incident of physical striking is willful
misconduct. That being said, the facts of this case are starkly different from the
facts of Kelly, which involved what the defendant argued was an accidental
touching. Id. at 557.
Faragalla does not seem to suggest anything other than an intentional tort
or willful misconduct. See Pl. Opp. at 22 (“The acts and omissions of Defendant
Otundo . . . constitute malice and willful misconduct.”). Although I am required to
make reasonable inferences in favor of the non-movant at this stage, I must find
that to the extent Plaintiff is arguing an intentional-tort theory of assault and
battery, the City Defendants are immune from liability and summary judgment is
granted in their favor.
Plaintiff does raise a negligence theory. See Compl., DE 1, at 15. As to that,
the City Defendants make no arguments. Accordingly, summary judgment will not
be granted on the negligence claim as to the City Defendants. Counsel are directed
to confer, however, as to whether plaintiff truly intends to press a claim that the
officer acted negligently.
IV. Conclusion
For the reasons set forth above, Defendants’ motions for summary judgment
(DE 33, 34) are GRANTED as to Count 2 (Failure to Intervene), Count 3 (Section
1983 Jersey City Supervisory Liability), and Count 5 (Section 1983 Jersey City
Unlawful Policy, Custom, Practice, Inadequate Training). Summary judgment is
also granted (1) in favor of the Defendants as to whether Faragalla may recover
damages for pain and suffering on his state tort claims and (2) in favor of the City
Defendants as to a theory of intentional assault and/or battery, but not as to
negligence.
The motions are otherwise DENIED.
Dated: September 30, 2020

/s/ Kevin McNulty
____________________________________
HON. KEVIN MCNULTY, U.S.D.J.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10269075. Public record. Not legal advice.