ALEXANDER v. BOROUGH OF PINE HILL

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

KEIDRON ALEXANDER,

No. 1:17-cv-6418 (NLH/KMW)

Plaintiff,

OPINION

v.

BOROUGH OF PINE HILL et al.,

Defendants.

APPEARANCES:

TONI L. TELLES

LAW OFFICES OF ERIC A. SHORE, P.C.

4 ECHELON PLAZA

201 LAUREL ROAD, 8TH FLOOR

VOORHEES, NJ 08043

GRAHAM FAVILLE BAIRD

LAW OFFICES OF ERIC A. SHORE, P.C.

TWO PENN CENTER

1500 J.F.K. BOULEVARD, SUITE 1240

PHILADELPHIA, PA 19102

Attorneys for Plaintiff Keidron Alexander.

CHRISTOPHER M. WOLK

BLUMBERG & WOLK, LLC

158 DELAWARE STREET

PO BOX 68

WOODBURY, NJ 08906

Attorney for Defendants Borough of Pine Hill, Borough of

Pine Hill Police Department, Phillip Marino, and Derek Kramer.

HILLMAN, District Judge

This matter arises from a domestic violence incident

involving Plaintiff Keidron Alexander and his then-girlfriend,

after which he was arrested and charged with simple and

aggravated assault. Plaintiff brings a series of claims under

42 U.S.C. § 1983 and the New Jersey Civil Rights Act (“NJCRA”)

for violations of his Fourth and Fourteenth Amendment rights, as

well as a claim of sex discrimination in violation of the New

Jersey Law Against Discrimination (“NJLAD”) and a claim for

equitable relief. Presently before the Court is Defendants’

motion for summary judgment, (ECF No. 65), which Plaintiff has

opposed. (ECF No. 71). For the reasons that follow,

Defendants’ motion will be granted as to each of Plaintiff’s

claims.

Background

The Court takes its facts from the parties’ statements of

material fact submitted pursuant to Local Civil Rule 56.1(a) and

their related exhibits. On the morning of January 23, 2020,

Borough of Pine Hill police officers Phillip Marino and Derek

Kramer were dispatched to the home of Plaintiff and his then-

girlfriend, Averie Jones, in response to a 9-1-1 call placed by

Jones.

Officer Marino was the first to arrive on the scene, at

approximately 10:19 AM. (ECF 65-5, Def. Ex. B. at 10:19:00).

Upon arriving, Officer Marino was met at the door by Jones.

Jones immediately informed him that Plaintiff and her had been

arguing the previous evening, during which Plaintiff had

“grabbed me by my neck, somehow hit me on my head,” and that she

had previously had a lump on her head of which she had taken a

picture. (Id. at 10:19:25-10:19:35). She then told Marino that

the fighting had begun again that morning; at this point, Marino

acknowledged Plaintiff at the top of the stairs, who stated that

Jones had “just poured boiling hot water” on him and burned his

face and body. (Id. at 10:19:35-10:19:50). Jones admitted that

she had done so, saying “he attacked me on the steps, and I just

responded.” (Id. at 10:19:50-11:00:00). Marino then asked both

parties if they needed medical attention, to which Plaintiff

responded that he did not know if he did and Jones stated again

that she had been hit on the head. (Id. at 10:20:10-10:20:17).

Shortly afterwards, other officers arrived on the scene,

and Marino asked Officer Kramer to go speak to Plaintiff while

he talked to Jones in another room. (Id. at 10:21:20). Marino

then asked Jones to explain what had happened the previous

evening. Jones told him that she had followed Plaintiff to the

bathroom after he got upset at her for asking why he had come

home in a bad mood, and he shut the door in her face; at that

point, she “opened [the door] back up, and then his hands wrap

around my throat.” (Id. at 10:21:57-10:22:20). Marino asked her

whether she had become unconscious or had trouble breathing, to

which Jones responded no, but that Plaintiff had put pressure on

her neck and that she was both sore in that area and having

trouble swallowing. (Id. at 10:22:20-10:22:35).

Marino next asked Jones to describe what had happened that

morning. Jones told him that the two had begun arguing again

about the events of the previous night, and then Plaintiff had

picked up Jones’s UGG boots, which she was not wearing at the

time, and begin hitting her with them. (Id. at 10:22:35-

10:23:10). According to Jones, she then picked up a can of

“Clorox spray,” which he grabbed from her hand before she could

spray it at him. (Id. at 10:23:10-10:23:18).

Video from Officer Kramer’s body camera shows that at this

time he was talking to Plaintiff and hearing his story. (ECF

No. 65-6, Def. Ex. C at 10:23:10). Plaintiff told Kramer that

the two had been arguing, and that she had picked up a bottle of

Lysol to spray at him and been throwing things at him, and then

she had gone into the kitchen, returned with the pot of boiling

water, and dumped it on him while he was on the stairs with his

back turned. (Id. at 10:23:10-10:24:10).

After the officers convened and noted that both parties had

acknowledged she had thrown water on him, and that there was a

strangulation allegation regarding the previous evening, Marino

then walked up the stairs and asked Plaintiff to explain to him

what had happened the previous evening. (ECF No. 65-5, Ex. B.

at 10:23:30-10:24:33). Plaintiff told Marino that, while he had

been trying to take a shower after coming home, Jones had been

kicking the door and had apparently damaged it or kicked it off

its hinges. (Id. at 10:24:33-10:25:05). Asked by Marino what

happened next, Plaintiff responded “pretty much nothing,” said

he let Jones damage her own possessions and then went and slept

downstairs, and did not reference any further physical violence.

(10:25:20-10:25:45). Asked next whether he had hit Jones with

her shoes and what provoked her to throw the water on him,

Plaintiff denied having hit her and told Marino that he had said

something about her mother. (Id. at 10:25:50-10:26:05).

The officers then reconvened to discuss the allegations.

Marino described Plaintiff’s story, noting that she was

complaining of pain in her throat, but that he did not notice

any mark on her face at that point. (Id. at 10:26:20-10:26:55).

After it was noted that Plaintiff’s skin was peeling off, Marino

called in medical assistance. (Id. at 10:26:55-10:27:20).

Later in the conversation, another officer can be heard asking

“is she the victim from last night and he’s the victim from

today,” which Kramer responded to by saying “that’s basically

what it sounds like;” Marino, however, responded by stating that

“he’s going to need to be under arrest . . . mandatory arrest.”

(Id. at 10:29:40-10:31:00). The officers went on to discuss the

fact that there are two different stories on each incident, and

that they could take Plaintiff to sign a complaint as well if he

wanted to — they eventually agreed that Marino would take Jones

to the station to take her statement and then call the

Prosecutor’s Office. During the officers’ conversation, Marino

turned to Jones and asked her “how bad is your throat hurting

you,” to which Ms. Jones again told him that “it hurts to

swallow” and had been since the previous night, and that there

had been a mark on her eye, but it had since “gone down.” (Id.

at 10:28:55-10:29:36).

After several minutes of administrative discussions, Marino

then asked Jones about Plaintiff’s claim that she had kicked in

the door; Jones stated that she hadn’t, and that the damage to

the door was from Plaintiff grabbing her neck and knocking her

into the door. (Id. at 10:37:40-10:37:48). Shortly after,

Marino told another officer that he was determining Plaintiff

was the “aggressor” for both incidents. (Id. at 10:28:50-

10:39:00).

A few minutes later, after Plaintiff had left to receive

medical treatment, Marino went upstairs to look at the bathroom

where Jones said she had been grabbed by her throat and to check

the damage to the door. The bodycam video shows clear damage to

the door, and Jones pointed out other items that had been

knocked over in the bedroom, some of which she said she knocked

over after she tripped trying to get away from Plaintiff, and

some of which she said Plaintiff must have knocked over himself.

(Id. at 10:41:25-10:42:45). As Marino then waited for Jones to

get her and her daughter prepared to go to the station, she can

be heard talking to someone on the phone, repeating the same

story regarding what had happened that morning that she had told

Marino earlier. (Id. at 10:43:15-10:43:40).

Marino then drove Jones and her daughter to the police

station, where he took her sworn statement. At the station,

Jones first told her story, the details of which were the same

as what she had told Marino at her home, (ECF No. 65-7, Def. Ex.

D at 01:50-04:50), with the additional claim that Plaintiff had

followed her into the kitchen after hitting her with her boots.

(Id. at 04:35-04:50). Marino then followed up with a series of

questions. Asked by Marino, Jones again stated that Plaintiff

had wrapped his hands around her neck and applied pressure, and

then stated that “while his hands were around my neck,” she did

have trouble breathing. (Id. at 05:00-05:15). She then told

Marino that she was still having trouble swallowing, that she

had noticed while brushing her teeth that morning that she was

“spitting blood,” and that she was very sore towards the back of

her jaw. (Id. at 05:20-05:41). The parties then discussed a

picture Plaintiff had provided to Marino, (ECF No. 65-8, Def.

Ex. E), which Marino stated showed a small contusion above her

eye. (ECF No. 65-7, Def. Ex. D at 05:50-06:15).

Marino then asked her “what made you throw the hot water

today,” to which Jones responded “because he was attacking me

with my shoes in my face, my glasses were off my face and

somewhere on the floor, and he was just hitting me in my face.

I’m going into the kitchen, and he’s behind me yelling and

stuff, and it just was a reaction.” (Id. at 07:38-07:53).

Finally, asked whether she feared for her safety at that time,

Jones stated “I did. Yes, I did.” (Id. at 07:53-07:56).

At some point that day, after taking Jones’s statement,

Marino drafted a Statement of Probable Cause, and a Complaint-

Warrant for the arrest of Plaintiff was issued and signed by

Municipal Court Judge Charles Shimberg for both simple and

aggravated assault. (ECF No. 65-9 and 65-10, Def. Ex. F and G).

That same day, Jones applied for and was granted a Temporary

Restraining Order (“TRO”) against Plaintiff, (ECF No. 65-1, Def.

SOMF at ¶ 33), and Plaintiff was arrested and charged with both

simple and aggravated assault. (Id. at ¶ 35). Two days later,

Plaintiff went into the police station, gave a sworn statement,

and signed a Complaint-Summons against Jones for simple assault.

(Id. at ¶¶ 45-48). Plaintiff later applied for, and was granted,

a TRO against Jones. (ECF No. 71-1, Pl. SOMF at ¶ 76).

Plaintiff was never convicted of, nor did he plead guilty

to, either charge. (Id. at ¶ 77). Both Plaintiff and Jones

eventually appeared before a state court judge for their TRO

requests; at that hearing, the judge granted Plaintiff a Final

Restraining Order and denied Jones’s. (Id. at ¶ 85).

Plaintiff eventually filed a lawsuit in the Superior Court

of New Jersey on December 19, 2016, alleging a number of claims

based on his arrest and the charges filed against him. After

the state court dismissed certain claims and two amended

complaints were filed, the action was eventually removed to this

Court on August 25, 2017. (ECF No. 1). The second amended

complaint before the Court at that stage also named the

prosecutors involved in charging Plaintiff; those prosecutors

filed a motion to dismiss, and the Court dismissed all claims

against them on the basis of absolute immunity. (ECF No. 22).

Plaintiff was given leave to file his Third Amended Complaint,

which he did on December 3, 2019. (ECF No. 59). While that

complaint originally named the County of Camden as a defendant,

the parties agreed to dismiss the county, leaving Marino,

Kramer, the Borough of Pine Hill, and the Borough of Pine Hill

Police Department as the only remaining defendants. (ECF No.

63).

As to those remaining defendants, Plaintiff’s Third Amended

Complaint asserts nine counts: (1) a Fourth Amendment false

arrest claim under § 1983; (2) a Fourth Amendment malicious

prosecution claim under § 1983; (3) a Fourteenth Amendment

selective enforcement claim under § 1983; (4) a Fourteenth

Amendment “civil rights violations” claim under § 1983; (5) a

Monell claim under § 1983; (6) a false arrest claim under the

NJCRA; (7) a malicious prosecution claim under the NJCRA; (8) a

sex discrimination claim under the NJLAD; and (9) a claim for

equitable relief. On March 27, 2020, the remaining Defendants

filed their presently pending motion for summary judgment. (ECF

No. 65).

Discussion

I. Subject Matter Jurisdiction

The Court has original federal question jurisdiction over

Plaintiff's federal claims under 28 U.S.C. § 1331, and has

supplemental jurisdiction over the New Jersey state law claims

pursuant to 28 U.S.C. § 1367(a).

II. Legal Standard for Summary Judgment

Summary judgment is appropriate where the Court is

satisfied that the materials in the record, including

depositions, documents, electronically stored information,

affidavits or declarations, stipulations, admissions, or

interrogatory answers, demonstrate that there is no genuine

issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law. Celotex Corp. v.

Catrett, 477 U.S. 317, 330 (1986); Fed. R. Civ. P. 56(a).

An issue is “genuine” if it is supported by evidence such

that a reasonable jury could return a verdict in the nonmoving

party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986). A fact is “material” if, under the governing

substantive law, a dispute about the fact might affect the

outcome of the suit. Id. In considering a motion for summary

judgment, a district court may not make credibility

determinations or engage in any weighing of the evidence;

instead, the non-moving party's evidence “is to be believed and

all justifiable inferences are to be drawn in his favor.”

Marino v. Industrial Crating Co., 358 F.3d 241, 247 (3d Cir.

2004)(quoting Anderson, 477 U.S. at 255).

Initially, the moving party has the burden of demonstrating

the absence of a genuine issue of material fact. Celotex Corp.

v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has

met this burden, the nonmoving party must identify, by

affidavits or otherwise, specific facts showing that there is a

genuine issue for trial. Id. Thus, to withstand a properly

supported motion for summary judgment, the nonmoving party must

identify specific facts and affirmative evidence that contradict

those offered by the moving party. Anderson, 477 U.S. at 256-

57. A party opposing summary judgment must do more than just

rest upon mere allegations, general denials, or vague

statements. Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir.

2001).

III. Analysis

Although Plaintiff’s Third Amended Complaint includes nine

counts, his claims can be broken down into three general

categories: (1) claims under § 1983 and the NJCRA for violations

of Plaintiff’s constitutional rights; (2) a claim for sex

discrimination in violation of the NJLAD; and (3) a claim for

equitable relief. Defendants move for summary judgment on all

counts. For the reasons that follow, the Court will grant

Defendants’ motion for summary judgment.

A. Plaintiff’s Claims under § 1983 and the NJCRA

Plaintiff has brought his claims for false arrest and

malicious prosecution pursuant to both 42 U.S.C. § 1983 and the

NJCRA, and his claims for selective enforcement and civil rights

violations under § 1983. Section 1983 is not a source of

substantive rights, but provides a vehicle for vindicating the

violation of other federal rights. Graham v. Connor, 490 U.S.

386, 393-94 (1989). Section 1983 provides in relevant part:

“Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory ...

subjects, or causes to be subjected, any citizen of the

United States or other person within the jurisdiction

thereof to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws, shall be

liable to the party injured in an action at law, suit in

equity, or other proper proceeding for redress . . . .”

To state a claim for relief under § 1983, a plaintiff must

allege the violation of a right secured by the Constitution or

laws of the United States, and that the alleged deprivation was

committed or caused by a person acting under color of state law.

West v. Atkins, 487 U.S. 42, 48 (1988); Piecknick v.

Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir. 1994). The NJCRA,

N.J.S.A. 10:6–1 et seq., was modeled after § 1983 and creates a

state law cause of action for violation of an individual's

federal and state constitutional rights. Owens v. Feigin, 947

A.2d 653 (N.J. 2008). The NJCRA is interpreted analogously to §

1983. Norman v. Haddon Township, No. 14-cv-06034-NLH-JS, 2017 WL

2812876, at *4 (D.N.J. 2017).

Defendants here concede that Marino and Kramer were acting

under color of state law. Instead, Defendants move for summary

judgment on two general grounds: (1) that Plaintiff cannot

successfully state any of his claims because probable cause

existed for his arrest and charging and he has failed to provide

any evidence of sex discrimination, and (2) that they are

entitled to both qualified immunity and state-law specific

immunity for their actions in arresting and charging Plaintiff.

“Qualified immunity shields government officials from

personal 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.”

Paszkowski v. Roxbury Twp. Police Dep't, No. 13-7088, 2014 WL

346548, at *2 (D.N.J. Jan. 30, 2014), and applies the same to

claims under both § 1983 and the NJCRA. Wright v. City of

Philadelphia, 409 F.3d 595, 599 (3d Cir. 2005); Brown v. State,

230 N.J. 84, 98 (2017). New Jersey’s Domestic Violence Act

similarly provides for specific immunity for law enforcement

officers’ actions taken during domestic violence investigations,

stating that:

“A law enforcement officer . . . shall not be held liable

in any civil action brought by any party for an arrest

based on probable cause, enforcement in good faith of a

court order, or any other act or omission in good faith

under this act.” N.J.S.A. 2C:25–22.

In cases where officers assert qualified immunity based on

their reliance on a court-issued warrant, they are generally

entitled to it unless “on an objective basis, it is obvious that

no reasonably competent officer would have concluded that a

warrant should issue.” Reedy v. Evanson, 615 F.3d 197, 224 (3d

Cir. 2010) (citing Malley v. Briggs, 475 U.S. 335, 341 (1986)).

Defendants, however, do not rely on or reference the existence

of a warrant for Plaintiff’s arrest in moving for summary

judgment; instead, they argue only that they are entitled to

qualified and specific immunity because either probable cause

existed as a matter of law, or they had an objectively

reasonable, good faith belief that it did. Accordingly,

Defendants’ two arguments for summary judgment overlap into one

central question: did Officers Marino and Kramer have probable

cause to arrest and charge Plaintiff, or at least a reasonable,

good faith belief that probable cause existed, based on the

evidence available to them on January 23, 2016.

1. Plaintiff’s False Arrest and Malicious Prosecution Claims

The Court turns first to Plaintiff’s false arrest and

malicious prosecution claims. To state a claim for false arrest

under either § 1983 or the NJCRA, “a plaintiff must establish:

(1) that there was an arrest; and (2) that the arrest was made

without probable cause.” James v. City of Wilkes-Barre, 700

F.3d 675, 680 (3d Cir. 2012); Schirmer v. Penkethman, No. CIV.

10-1444, 2012 WL 6738757, at *8 (D.N.J. Dec. 31, 2012)

(describing false arrest claims under New Jersey law). To

prevail on a malicious prosecution claim under either statute,

“a plaintiff must show that: (1) the defendants initiated a

criminal proceeding; (2) the criminal proceeding ended in the

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.”

McKenna v. City of Philadelphia, 582 F.3d 447, 461 (3d Cir.

2009); Ianuale v. Keyport Township, No. 15-8256, 2016 WL

5955527, at *5 (D.N.J. Oct. 13, 2016) (listing same factors for

NJCRA malicious prosecution claims) (citing LoBiondo v.

Schwartz, 970 A.2d 1007, 1022 (N.J. 2009).

As described above, the central question for the Court is

whether probable cause existed to arrest and charge Plaintiff.

Probable cause “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.”

Orsatti v. New Jersey State Police, 71 F.3d 480, 482 (3d Cir.

1995). For false arrest claims, courts must objectively assess

whether, at the time of the arrest and based upon the facts

known to the officer, probable cause existed “as to any offense

that could be charged under the circumstances.” Wright v. City

of Philadelphia, 409 F.3d 595, 602 (3d Cir. 2005) (quoting Barna

v. City of Perth Amboy, 42 F.3d 809, 819 (3d Cir. 1994)).

Malicious prosecution claims, however, may succeed even if

probable cause existed for one charge, if there was not probable

for another. Johnson v. Knorr, 477 F.3d 75, 85 (3d Cir. 2007).

Importantly, “[p]robable cause does not require that an

officer’s beliefs ‘were, in retrospect, accurate’ but rather

looks to whether their beliefs were ‘not unreasonable in light

of the information the officers possessed at the time.’” Damico

v. Harrah’s Philadelphia Casino & Racetrack, 674 F. App’x. 198,

202 (3d Cir. 2016) (quoting Wright v. City of Philadelphia, 409

F.3d 595, 603 (3d Cir. 2005)). The existence of probable cause

is ordinarily a factual issue for the jury. See Halsey v.

Pfeiffer, 750 F.3d 273, 300 (3d Cir. 2014). However, a court

may grant summary judgment if “no genuine issue of material fact

exists as to whether” there was probable cause. Anderson v.

Perez, 2017 WL 371339, at *2 (3d Cir. Jan. 26, 2017) (citing

Sherwood v. Mulvihill, 113 F.3d 396, 401 (3d Cir. 1997)).

Plaintiff was arrested and charged with both simple assault

and aggravated assault under New Jersey law. The New Jersey

assault provision in effect in January 2016 defined these

offenses as follows:

a. Simple assault. A person is guilty of assault if he:

(1) Attempts to cause or purposely, knowingly or

recklessly causes bodily injury to another; or

. . .

b. Aggravated assault. A person is guilty of aggravated

assault if he:

(1) Attempts to cause serious bodily injury to

another, or causes such injury purposely or knowingly

or under circumstances manifesting extreme

indifference to the value of human life recklessly

causes such injury . . .

N.J.S.A. §§ 2C:12-1(a) and (b)(1).

Defendants argue that the evidence, even when viewed in the

light most favorable to Plaintiff, demonstrates that Officers

Marino and Kramer had probable cause to arrest and charge

Plaintiff under both provisions, and accordingly they are

entitled to qualified immunity. The Court agrees.

The evidence in the record shows that the officers were

dispatched to the home of Plaintiff and Jones after Jones called

9-1-1. Upon arriving, videos recorded by the officers’ body

cameras show that Marino was met by Jones, who immediately told

him that Plaintiff had grabbed her by the throat in an

altercation the previous evening and hit her on her head, and

then stated that he had attacked her on the stairs that morning,

after which she “just responded” and threw a pot of boiling

water at him. (ECF 65-5, Def. Ex. B. at 10:19:00-10:20:00).

The officers spoke with both parties. Jones, over the

course of multiple conversations with Marino, repeatedly told

the same story: that after she had tried to follow Plaintiff

into the bathroom, he had wrapped his hands around her throat,

applied pressure and knocked her into the door causing damage,

and that during a follow-up argument the next morning he had

begun hitting her with her boots, in response to which Jones had

thrown boiling water on him. Plaintiff, unsurprisingly,

provided a different story, disputing Jones’s claims and saying

that he had never grabbed her by the throat or hit her, that the

only altercation the night before had been Jones kicking in the

door to the bathroom, and that the only thing he had done prior

to her throwing the pot of boiling water at him was insult her

mother. (Id. at 10:23:30-10:26:05); ECF No. 65-6, Def. Ex. C at

10:23:10-10:24:10). Jones, in her sworn statement given to

Marino at the police station later that morning, again repeated

the same allegations regarding the incidents from the previous

night and that day. (ECF No. 65-7, Def. Ex. D at 01:50-04:50).

She further provided a photograph she had taken of what Marino

described as a small contusion above her eye that she claimed

was the result of the altercation the previous evening, (id. at

05:50-06:15; ECF No. 65-8, Def. Ex. E), and reported that she

was still having trouble swallowing, that she had been “spitting

blood” while brushing her teeth that morning, and that she was

very sore towards the back of her jaw. (ECF No. 65-7, Def. Ex.

D at at 05:20-05:41). Finally, Jones affirmatively stated that

she had thrown the boiling water on Plaintiff because he had

followed her into the kitchen after hitting her with her boot

and she feared for her safety. (Id. at 07:38-07:56).

Marino and Kramer were presented with an alleged victim who

told a facially reasonable and consistent story, as well as

evidence of injuries alleged to be a result of assaults

committed by Plaintiff. Evidence such as this certainly

qualifies to establish probable cause in domestic violence

cases. See, e.g., Signorile v. City of Perth Amboy, et.al., 523

F. Supp. 2d 428 (D.N.J. 2007) (holding that “there is no dispute

of material fact that the arresting officers had probable cause

. . . based on the exhibition of a physical injury to [the

victim’s] eye and her initial statements to the officers” and

others that the plaintiff had caused the injuries). And the

Court similarly finds that the acts of strangulation and hitting

someone, would, if they occurred, qualify as an attempt “to

cause or purposely, knowingly or recklessly causes bodily

injury,” and an attempt “to cause serious bodily injury to

another, or cause[] such injury purposely or knowingly or under

circumstances manifesting extreme indifference to the value of

human life recklessly causes such injury.”

As the Third Circuit has held, “statements of a victim

witness are typically sufficient to establish probable cause in

the absence of ‘[i]ndependent exculpatory evidence or

substantial evidence of [a] witness's own unreliability’ that

‘outweigh[s]’ the probable cause that otherwise exists.”

Jecrois v. Sojak, 736 F. App’x. 343, 357 (3d Cir. 2018) (quoting

Dempsey v. Bucknell Univ., 834 F.3d 457, 477–78 (3d Cir. 2016)).

Plaintiff, for his part, essentially argues that exculpatory

evidence demonstrates that the officers did not have reasonable

basis for believing that Plaintiff had committed either crime.

To support his argument, Plaintiff relies mostly on the

following claims:

1) Marino and Kramer ignored exculpatory evidence, such as

Plaintiff’s visible burn injuries, in determining that there

was probable cause to arrest and charge Plaintiff, and

concocted the self-defense story with no evidence;

2) Jones never explicitly said that she had been “strangled,” and

originally denied that she had trouble breathing; and

3) Marino stated that Plaintiff appeared to be the aggressor soon

after arriving at the scene, and that he “was going to need to

be under arrest” before he had finished speaking to everyone

and inspecting the apartment;

4) At the hearing for on the competing TRO requests, the judge

granted a FRO for Plaintiff and denied Jones’s.

However, these points are either refuted by the evidence,

or are insufficient, even when viewed in the light most

favorable to Plaintiff, to demonstrate that a factfinder could

decide that it was objectively unreasonable for the officers to

believe he had assaulted Jones.

First, Plaintiff has put forth no evidence that Marino and

Kramer ignored exculpatory evidence. The Court initially notes

that some amount of potentially exculpatory evidence did exist:

Plaintiff had burns on the side and back of his face and

shoulders, Plaintiff denied Jones’s story, and the damage to the

bathroom door was on the outside of the door. However, the

Court finds that, even when viewed in the light most favorable

to Plaintiff, this evidence did not render Marino and Kramer’s

belief that they had probable cause unreasonable.

As a starting point, Marino and Kramer certainly did not

disregard Plaintiff’s injuries. In fact, the officers directly

addressed the injuries at the scene, discussed them with

Plaintiff and heard his story as to how he received them, called

for medical assistance, and had Kramer accompany him to the

hospital. Marino and Kramer were entirely aware that Jones had

thrown boiling water on Plaintiff, and that fact is undisputed.

Similarly, the idea that Jones threw the boiling water on him in

self-defense was not “concoct[ed]” by Marino “despite a complete

lack of evidence” — Jones had repeatedly told Marino that she

had thrown it at Plaintiff after he hit her with her boots, and

at the station explicitly said it was in self-defense and

because she feared for her safety. (ECF No. 65-8, Def. Ex. D at

07:53-07:56). Nor does the damage to the outside of the door

show a lack of probable cause. Not only was that damage

consistent with Jones’s story, that she had been knocked into it

in the struggle after Plaintiff grabbed her by the throat, but

even viewed in the light most favorable to Plaintiff, evidence

that Jones had herself damaged the door in trying to follow him

into the bathroom would not make it unreasonable for the

officers to believe that Plaintiff had strangled her, nor would

it require them to deem the rest of her claims unreliable.

The Third Circuit has clearly explained that “some

‘unreliability or exculpatory evidence’ will not ‘fatally

undermine[]’ probable cause otherwise established.” Dempsey,

834 F.3d at 478 (quoting Wilson v. Russo, 212 F.3d 781, 790 (3d

Cir. 2000)). Ultimately, Plaintiff’s central complaint here is

that the officers believed Jones’s story that day. However,

“[t]he probable cause inquiry looks to the totality of the

circumstances; the standard does not require that officers

correctly resolve conflicting evidence or that their

determinations of credibility, were, in retrospect, accurate.”

Wright v. City of Phila., 409 F.3d 595, 603 (3d Cir. 2005).

Simply put, probable cause determinations do “not require the

fine resolution of conflicting evidence that a reasonable doubt

or even a preponderance standard demands.” Paff v. Kaltenbach,

204 F.3d 425, 436 (3d Cir. 2000) (quoting Gerstein v. Pugh, 420

U.S. 103, 121 (1975)). The question before the Court today is

not whether the officers were in fact correct in their

determination; it is only whether a factfinder could reasonably

decide that their determination was unreasonable given the

evidence before them.

Similarly, Plaintiff’s arguments about the specific

language used by Jones regarding the alleged grabbing of her

throat do not demonstrate a lack of probable cause. Jones

consistently told the officers both at the scene, and then back

at the station in her sworn statement, that during an

altercation the previous evening Plaintiff had grabbed her by

her throat, and that she was still suffering throat pain and

difficulty swallowing. At the station, she elaborated that

“while his hands were around my neck,” she had actually had

trouble breathing, (ECF No. 65-7, Def. Ex. D at 05:00-05:15),

and that she had noticed while brushing her teeth that morning

that she was “spitting blood” and was very sore towards the back

of her jaw. (Id. at 05:20-05:41).

Jones’s failure to specifically use the phrase “strangle”

and the lack of any outwardly visible injury on her throat does

not make it unreasonable for the officers to have concluded that

the event occurred and constituted aggravated assault. Marino

and Kramer had been trained to ask follow-up questions on the

topic of strangulation, that not all strangulations showed

outward visible signs of injury, and that reports of internal

pain or injuries were substantive evidence of strangulation.

(See Def. Ex. H) (Pine Hill Police Department domestic violence

training presentation providing training on strangulation cases

and evidence). Plaintiff does not argue that this specific part

of their training was incorrect or inappropriate, and the Court

finds that, given the evidence in front of them at the time,

Defendants had a reasonable basis for concluding that there was

probable cause that the alleged aggravated assault had occurred.

Nor does the timing of when it was decided that Plaintiff

was to be arrested and charged show a lack of probable cause, or

that the officers should have known they did not have probable

cause. Marino did state at the scene that Plaintiff appeared to

be the aggressor in both incidents and “he’s going to need to be

under arrest . . . mandatory arrest.” (ECF No. 65-5, Def. Ex. B

at 10:29:40-10:31:00). While Plaintiff repeatedly points out

that there was some disagreement at the scene as to who was the

aggressor in the second incident, all three officers involved in

the conversation agreed that they believed Plaintiff had been

the aggressor in the altercation the previous evening. (ECF No.

65-5, Def. Ex. B at 10:29:40-10:31:00). As Defendants point

out, the Domestic Violence Act provides that when officers are

faced with an alleged victim of domestic violence showing

evidence of injury and determine they have probable cause that

such domestic violence occurred, they are in a mandatory arrest

situation and do not have discretion not to make an arrest.

N.J.S.A. § 2C:25-21(a). And by that time Marino had already

received stories from both sides, and had been straightforwardly

and consistently told by Jones that she had been grabbed by the

throat and hit in the head with a boot over the course of the

previous evening and that morning.

The Court further notes that regardless of Marino’s

statements and the officer conversation at the scene, Plaintiff

was not actually arrested or charged at that point — instead,

Marino took the additional investigative step of taking Jones to

the police station to take a sworn statement. In that

statement, Jones once again (1) alleged that she had been

grabbed by the throat, which she stated had caused her pain, led

to her spitting blood, and had made it difficult for her to

swallow and breathe, (2) alleged that she had thrown the pot of

boiling water in self-defense after being hit by Plaintiff with

her boots and in fear for her safety, and (3) provided

additional evidence in the form of a picture showing a mark

above her eye that she claimed was the result of the incident.

It was only after this evidence was received by Marino that

Plaintiff was arrested and charged with simple and aggravated

assault.

Next, while not referenced in the Third Amended Complaint

or at any point in his brief opposing summary judgment,

Plaintiff’s statement of undisputed material facts cites to

evidence in the form of an audio recording of the court hearing

on Plaintiff and Jones’s competing TRO requests, where the judge

granted Plaintiff a Final Restraining Order, denied Jones’s

request, and, in Plaintiff’s description, found that she did not

view Jones’s story as credible. (ECF No. 71-9, Pl. Ex. J).

Plaintiff, however, does not explain exactly what impact he

believes this hearing or its outcome should have on the Court’s

probable cause analysis. Nor does the Court believe that this

changes its conclusions. The task of the judge assessing the

competing restraining order requests that day was to weigh the

evidence and determine what she believed actually happened on

the evening and morning in question. As described above,

however, the truth as to what actually happened is not relevant

to the matter before this Court — the only relevant question is

whether, on January 23, 2016, with the evidence available to

them at that time, it was reasonable for Marino and Kramer to

believe that Plaintiff had assaulted Jones. Having reviewed the

evidence in the record, the Court finds that there is no genuine

dispute of material fact as to whether that conclusion was at

least reasonable, and that Defendants therefore did have

probable cause.

Finally, Plaintiff also briefly raises, for the first time,

an argument that Officer Marino omitted material information

from his Statement of Probable Cause — specifically, that he did

not reference Plaintiff’s burn injuries. The Court first notes

that the Third Amended Complaint does not make any claims

regarding the sufficiency of the Complaint-Warrant issued for

his arrest. Regardless, such a claim fails here. To prevail on

this claim, Plaintiff must make two showings: “first, that the

officer, with at least a reckless disregard for the truth, made

false statements or omissions that create[d] a falsehood in

applying for a warrant, and second, that those assertions or

omissions were material, or necessary, to the finding of

probable cause.” Dempsey, 834 F.3d at 468–69 (quoting Wilson,

212 F.3d at 786-87) (internal quotations omitted). However, as

the Court has already explained above, probable cause existed

for Plaintiff’s arrest based on all of the evidence available to

Officer Marino on January 23, 2016. Accordingly, the addition

of a reference to Plaintiff’s own injuries could not have

changed the municipal court’s probable cause assessment, and

Plaintiff cannot succeed on this claim.

The Court, of course, does not mean to say that Marino and

Kramer’s judgment and assessment of the evidence was correct,

nor has it attempted to make such a determination. Defendants

were faced with an individual who had called the police,

repeatedly told them a consistent story that Plaintiff had both

strangled and hit her, prompting her to respond in self-defense,

and presented evidence of injuries related to those alleged

assaults. The Court simply finds that given this evidence, even

when viewed in the light most favorable to Plaintiff, a

reasonable factfinder could not find that it was unreasonable

for the officers to believe that Plaintiff had committed both

assaults.

Accordingly, probable cause existed as a matter of law to

arrest and charge Plaintiff for both simple and aggravated

assault. Even if it did not, the evidence was certainly

sufficient to provide Marino and Kramer with an objectively

reasonable, good faith belief that it did. Therefore, Plaintiff

has failed to show any constitutional violations, and both

officers are entitled to both qualified and specific immunity.

Summary judgment will be granted in their favor on Plaintiff’s

false arrest and malicious prosecution claims.

2. Plaintiff’s 14th Amendment Claims

Plaintiff similarly brings a § 1983 claim for selective

enforcement and “civil rights violations” in violation of the

Fourteenth Amendment’s Equal Protection Clause, alleging that he

was arrested and charged only because of his sex. As explained

above, Defendants are entitled to qualified immunity on each of

Plaintiff’s § 1983 claims, and accordingly summary judgment must

be granted on these claims as well.

However, the Court also notes that Plaintiff has entirely

failed to oppose summary judgment on these claims. In fact,

Plaintiff’s opposition brief does not appear to even address or

reference these claims or Defendants’ arguments for summary

judgment on them. Accordingly, even were Defendants not

entitled to qualified immunity, the Court would find summary

judgment on these claims unopposed, and that, for the reasons

explained in its analysis of Plaintiff’s sex discrimination

claim below, the Plaintiff has also failed to provide sufficient

evidence to support his claims at this stage.

3. Plaintiff’s Claims against the Borough of Pine Hill and

the Borough of Pine Hill Police Department

Plaintiff also alleges § 1983 claims against both the

Borough of Pine Hill and the Borough of Pine Hill Police

Department based on his arrest and charging. These claims fall

under the theory of liability outlined in Monell v. New York

City Dep't of Social Services, 436 U.S. 658 (1978), which held

that municipalities and local governments can be liable for the

constitutional violations of their employees when a plaintiff

can demonstrate that the employees’ actions were pursuant to a

policy or custom of the municipality itself. Id. at 694; Watson

v. Abington, 478 F.3d 144, 155 (3d Cir. 2007).

The Court first finds that all of Plaintiff's claims

against the Borough of Pine Hill Police Department fail because

Plaintiff has sued the Police Department in conjunction with the

Borough of Pine Hill itself, and “[i]n New Jersey, a municipal

police department is not an entity separate from the

municipality.” Florentino v. City of Newark, No. 2:19-cv-21055

(BRM) (SCM), 2020 WL 5105291, at *4 (Aug. 31, 2020) (citing

Trapp v. New Jersey, No. 17-10709, 2018 WL 4489680, at *6

(D.N.J. Sept. 19, 2018); N.J. Stat. Ann. § 40A:14-118 (stating

that that New Jersey police departments are “an executive and

enforcement function of municipal government”)). Further, “[i]n

Section 1983 actions, police departments cannot be sued in

conjunction with municipalities, because the police department

is merely an administrative arm of the local municipality, and

is not a separate judicial entity.” Padilla v. Twp. of Cherry

Hill, 110 F. App'x 272, 278 (3d Cir. 2004) (quotation and

citation omitted).

Second, because the Court has already determined that

Plaintiff’s underlying constitutional claims for false arrest,

malicious prosecution, and selective enforcement fail and

summary judgment must be granted against them, Plaintiff cannot

maintain his parallel Monell claims against the Borough under

§ 1983. See Marable v. West Pottsgrove Twp., 176 F. App’x. 275,

283 (3d Cir. 2006) (stating that “a municipality may not incur

Monell liability as a result of the actions of its officers when

its officers have inflicted no constitutional injury”); Williams

v. West Chester, 891 F.2d 458, 467 (3d Cir. 1989) (stating that

a municipal defendant “cannot be vicariously liable under Monell

unless one of [its] employees is primarily liable under section

1983 itself”). Accordingly, summary judgment will also be

granted on all claims against the Borough of Pine Hill and the

Police Department.

B. Plaintiff’s NJLAD Sex Discrimination Claim

Plaintiff next alleges that his arrest constituted sex

discrimination in violation of the NJLAD. As the Court found

above, Defendants are entitled to specific immunity against

civil liability under state law for claims related to their

actions in arresting Plaintiff pursuant to the Domestic Violence

Act. Even were they not entitled to immunity, the Court finds

that Plaintiff has also failed to meet his evidentiary burden at

the summary judgment stage.

The NJLAD provides that “[a]ll persons shall have the

opportunity ... to obtain all the accommodations, advantages,

facilities, and privileges of any place of public accommodation

... without discrimination because of ... sex.” N.J.S.A. 10:5–

4. “It is well settled that the discriminatory acts of law

enforcement officers are considered public accommodation

discrimination under the NJLAD.” Vandegrift v. Bowen, No. 07–

2623, 2009 WL 1913412, at *3 (D.N.J. June 30, 2009) (citing

Ptaszynski v. Uwaname, 853 A.2d 288 (N.J. Sup. Ct. App. Div.

2004)). For a sex discrimination claim, the plaintiff must (1)

“demonstrate that she is a member of a protected class”; (2)

“show that the defendant's actions were motivated by

discrimination”; and (3) demonstrate that “others not within the

protected class did not suffer similar adverse ... actions.”

Partovi v. Felician Coll., No. A-1961-09T1, 2011 WL 867275, at

*7–8 (N.J. Super. Ct. App. Div. Mar. 15, 2011); see also Brooks

v. Codispoti, No. 12-5884, 2015 WL 9462086, at *10 (D.N.J. Dec.

28, 2015) (“Courts in the District of New Jersey have held that

violations of the public accommodation provisions of the NJLAD

may be assessed under the same standards as Equal Protection

Claims in federal anti-discrimination law.”).

Plaintiff has failed to provide any substantive argument or

evidence to support his claim that he was arrested because of

his sex. His brief confusingly argues that he “has adequately

pled that he was treated differently because of his sex,”

despite the fact that this action is beyond the motion to

dismiss stage; in opposing summary judgment, claims must be

supported by actual evidence in the record. Fed. R. Civ. P.

56(c)(1). The only evidence Plaintiff has put forward to show

that sex was the basis for his arrest are slides from a Domestic

Violence Training Presentation given to Pine Hill officers. The

specific training slides that Plaintiff cites to do nothing more

than provide statistics regarding domestic violence, including

the number of women who suffer from it, and occasionally use the

pronoun “he” when referring to the abuser and “she” when

referring to the victim.

This evidence, on its own, not only does not demonstrate

any policy of arresting men over women, it provides no evidence

that Plaintiff’s sex was the basis for his arrest. Plaintiff

presents no argument that the statistics in question are wrong,

or that it is improper to provide officers with relevant

statistics and information regarding domestic violence;

similarly, the occasional use of specific pronouns in training

presentations that also repeatedly say “he or she” or use the

phrase “Victim” in other places, simply does not demonstrate sex

discrimination, nor has Plaintiff provided any argument or

support for this claim besides the conclusory assertion that it

does. Plaintiff has put forth no other evidence to show that

his sex was even considered by the officers in deciding to

arrest and charge him. The Court finds that Defendants have

therefore demonstrated that there is no genuine dispute of

material fact as to this claim, and summary judgment will be

granted for this reason as well.

C. Plaintiff’s Claim for Equitable Relief

Finally, Plaintiff seeks equitable relief in the form of a

declaration that Defendants’ actions in arresting and charging

him violated his federal and state civil rights. As the Court

has already determined that Defendants did not violate

Plaintiff’s civil rights and that his underlying claims fail, so

too does his claim for equitable relief.

Conclusion

For the reasons expressed above, Defendants’ motion for

summary judgment (ECF No. 65) will be granted as to each of

Plaintiff’s claims.

An appropriate Order will be entered.

Date: November 18, 2020 /s Noel L. Hillman

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.