RODRIGUEZ v. THE STATE OF NEW JERSEY

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

JEAN EMMANUEL RODRIGUEZ, Civil Action No. 18-11166

Plaintiff,

OPINION

v.

THE STATE OF NEW JERSEY, et

al.

Defendants.

APPEARANCES:

JEAN EMMANUEL RODRIGUEZ

100 NEW ROAD

APT. F3

SOMERS POINT, NJ 08244

Plaintiff appearing pro se

JESSICA ANN SAMPOLI

OFFICE OF THE ATTORNEY GENERAL OF NJ

25 MARKET ST, 7TH FL, WEST WING

PO BOX 116

TRENTON, NJ 08625

Counsel for Defendant the State of New Jersey

THOMAS B. REYNOLDS

REYNOLDS & HORN, P.C.

A PROFESSIONAL CORPORATION

116 S. RALEEIGH AVENUE

APARTMENT 9B

ATLANTIC CITY, NJ 08401

Counsel for Defendants Hamilton Township

Police and Gerhard Thoresen

HILLMAN, District Judge

This matter is before the Court on (1) Defendant the State

of New Jersey’s (“State Defendant”) Motion to Dismiss, (ECF No.

34), which Plaintiff has not filed an opposition to; (2)

Plaintiff’s Motion for Summary Judgment, (ECF No. 35), which no

Defendant has responded to; and (3) Defendants Hamilton Township

(“Defendant Hamilton”)1 and Defendant Gerhard Thoresen’s

(“Defendant Thoresen”) Motion for Summary Judgment, (ECF No. 34,

which Plaintiff has filed an Opposition to (ECF No. 36). For

the following reasons, the State Defendant’s Motion to Dismiss

will be granted, Plaintiff’s Motion for Summary Judgment will be

denied, and Defendants Hamilton and Thoresen’s Motion for

Summary Judgment will be granted.

BACKGROUND

This case concerns the alleged use of excessive force on,

subsequent false arrest and malicious prosecution of Plaintiff,

Jean Emmanuel Rodriguez (“Plaintiff”), while he was at a bus

stop at the Hamilton Mall on June 18, 2018. This Court has

before it video evidence capturing all of Defendant Thoresen’s

encounter with Plaintiff.2

1 The proper defendant in this case is Hamilton Township not the

Hamilton Township police department. This is because “a police

department is not a person under § 1983 independent of the

municipality itself.” Payano v. City of Camden, No. 13-2528,

2016 WL 386040, at *8 (D.N.J. Feb. 1, 2016).

2 The facts as depicted in the videotape are included because the

video is part of the record and, therefore, the Court must rely

on the video in ruling on summary judgment. See Scott v.

Harris, 550 U.S. 372, 381 (2007) (finding that the Court of

On June 18, 2018, Defendant Thoresen received a call that

there was a disorderly subject on a New Jersey Transit bus and

that the bus was currently stopped at a bus stop next to the

Appeals “should have viewed the facts in the light depicted by

the videotape”); Ference v. Township of Hamilton, 538 F. Supp.

2d 785, 789 (D.N.J. 2008) (“The videotape is also likely the

best available evidence of the events at issue in this case.

Thus, the videotape will be considered as part of the record.”).

When the Supreme Court held that videotaped evidence may

“utterly discredit[]” contrary averments on summary judgment, it

noted that “[t]here [were] no allegations or indications that

[the] videotape was doctored or altered in any way, nor any

contention that what it depicts differs from what actually

happened,” Scott, 550 U.S. at 378, by the non-moving party.

Although Plaintiff states that the police footage is “altered”

and points to the fact the audio is slightly delayed, his

argument is conclusory. (ECF No. 36 at 5-7.) Plaintiff does

not directly address any of the factors that mattered to the

Scott Court. Plaintiff does not for instance, indicate how the

video recording has been “doctored or altered in any way” nor

how “what is depicts differs from what actually happened.” The

video captures the use of force in its entirety and there are no

sudden jumps, breaks, or other indications that the video is

altered. Because Plaintiff has offered no basis on which this

Court might find that the video recording has been doctored or

altered or that what it depicts differs from what actually

happened, this Court will rely on the video recording in the

same manner, to the same extent, and for the same reasons as the

Supreme Court did in Scott. This finding is further bolstered

by Plaintiff’s argument that the Hamilton mall video footage

(“Cam123_BusTerminal”), which has no audio, instead shows the

accurate depiction of the altercation from a different angle

than the police footage. This Court is unsure of how this

additional video footage supports Plaintiff’s argument regarding

video tampering and instead agrees with Defendants that the

video simply provides “corroborating evidence of Plaintiff

Rodriguez’s admitted throwing and swinging motion, intended to

strike and injure bus driver Gray, and in the course of this

action Rodriguez physically struck Officer Thoresen, who

promptly and appropriately effected Plaintiff’s arrest.” (ECF

No. 38 at 2.)

Hamilton Mall. One minute and fifty-six seconds into Defendant

Thoresen’s Mobile Vehicle Recorder (“MVR”), Defendant Thoresen

arrives at the scene where he observes the Plaintiff and

Defendant Richard Gray (“Defendant Gray”) both outside of the

bus at the bus stop. Around 2:18, Defendant Thoresen asks the

parties how they are doing. It is difficult to make out what

Defendant Gray says as his voice is low, but at one point he

explains to Defendant Thoresen that Plaintiff has to go because

he is being disorderly. Around 2:27 into the MVR, Plaintiff

explains that he paid to go to Atlantic City and complains about

Defendant Gray dropping him off in Hamilton and refusing to give

him his money back. Plaintiff reiterates “I just want my money

back.” Around 2:34 into the MVR, Defendant Thoresen then asks

Plaintiff how far he went so far to which Plaintiff explains

again that he already paid.

At this point, it is difficult to hear what Defendant Gray

is saying because Plaintiff is now raising his voice and

constantly repeating that he paid already and that he paid to

get to Atlantic City. Around 2:55, Defendant Thoresen explains

Plaintiff will have to get another bus to get back to Atlantic

City and again Plaintiff responds he wants his money back.

Around 3:03, Defendant Thoresen explains to Plaintiff that

determining whether Plaintiff will get his money back is not up

to Defendant Thoresen. At this point, Plaintiff raises his

voice even louder and states, “how the fuck can I get my money

back.” Defendant Thoresen then asks Plaintiff to relax and

explains they are going to work this out. Plaintiff again then

responds “how the fuck can I not get my money back I need to go

somewhere.” Around 3:13, Defendant Thoresen explains he

understands that Plaintiff is upset and instructs him to just

listen to him and that they will work it out for him.

Around 3:20, Defendant Thoresen tells Plaintiff to relax

and steps in the middle of both Defendant Gray and Plaintiff to

deescalate the situation and assures him they will get Plaintiff

to Atlantic City. Despite this, at 3:21-3:33, Plaintiff then

throws his arm over the Defendant Thoresen’s shoulder at

Defendant Gray while simultaneously striking Defendant

Thoresen’s arm. Plaintiff explains that at this time he was

throwing two dimes at Defendant Gray after he told him “that’s

why you ain’t getting shit.” (ECF No. 37 at 3.)

Following this, Defendant Thoresen immediately attempts to

subdue Plaintiff by pinning him to the ground. Defendant

Thoresen pins him with his body weight on top and rolls towards

Plaintiff’s side to be in between Plaintiff and Defendant Gray.

During this same time, Defendant Gray comes around the side and

kicks Plaintiff in the head twice. Defendant Thoresen explains

to Plaintiff that he hit him to which Plaintiff responds he did

not hit him. In response, Defendant Thoresen again explains

that Plaintiff did hit him in the arm.

Plaintiff then explains he is not resisting and Defendant

Thoresen explains “I know, I know. Relax.” After asking

Plaintiff to relax again he helps Plaintiff off from the ground

and explains he will put Plaintiff in handcuffs. In the MVR,

Plaintiff is brought to the ground at 3:23 and Defendant

Thoresen helps him up from the ground at 4:02. Accordingly, the

physical portion of the incident lasted approximately 40

seconds.

Following the altercation, Defendant Thoresen charged

Plaintiff with aggravated assault for striking Defendant

Thoresen while engaging in an altercation with Defendant Gray

and disorderly conduct for engaging in a dispute in front of a

police officer while being ordered to back off. Both Defendant

Thoresen and Plaintiff suffered some injuries following the

altercation. Specifically, Defendant Thoresen injured the back

of his hands and left elbow and Plaintiff had a small abrasion

over his left eye. He initially denied Defendant Thoresen’s

question of whether he needed an ambulance, but he then later

said he wanted an ambulance response. Once the Hamilton

Township Rescue Squad arrived Plaintiff initially denied

hospital transport, but then finally decided he wanted to go to

the hospital.

Plaintiff filed a Complaint with this Court against

Defendants, seeking the charge levied by the State of New Jersey

be dismissed and a monetary penalty of $250,000 to be split

between Defendants. (ECF No. 1.) Plaintiff’s Complaint alleges

violations of 42 U.S.C. § 1983 for false arrest, excessive

force, and malicious prosecution. Plaintiff explains his basis

for jurisdiction is also the “right not to be discriminated by a

business based on creed.” (ECF No. 1.)

Defendants Thoresen and Hamilton jointly filed a Motion for

Summary Judgment on all Counts in the Complaint. That motion

has been fully briefed. Defendants Thoresen and Hamilton submit

they are entitled to judgment as a matter of law on liability

because they are shielded by qualified immunity and Officer

Thoresen acted with probable cause. Moreover, State Defendant

filed a Motion to Dismiss to dismiss Plaintiff’s claims against

it pursuant to the sovereign immunity doctrine, among other

arguments. Finally, Plaintiff has filed a Motion for Summary

Judgment.3

3 Beyond Plaintiff’s conclusory allegations and speculations, he

offers almost no evidence or legal argument to support his

motion that summary judgment should be granted in his favor.

Moreover, as previously discussed, Plaintiff’s allegations that

the MVR is altered is entirely conclusory. Thus, this Court

denies Plaintiff’s additional request for the Defendants to turn

over the full video pursuant to Federal Rule of Civil Procedure

26. (ECF No. 35.) In addition, this Court denies Plaintiff’s

request for the Defendants to turn over the Hamilton Mall video

as it has come to the Court’s attention that the Plaintiff is in

possession of such video (“Cam123_BusTerminal”).

DISCUSSION

A. Subject Matter Jurisdiction

The Court has original federal question jurisdiction over

Plaintiff’s federal claims under 28 U.S.C. § 1331.

B. Legal Standards

a. Standard for Dismissal under Rule 12(b)(1)

Because “[t]he Eleventh Amendment is a jurisdictional bar

which deprives federal courts of subject matter jurisdiction,”

State Defendant’s motion is, in part, a motion to dismiss for

lack of jurisdiction under Federal Rule of Civil Procedure

12(b)(1). See Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690,

693 n.2 (3d Cir. 1996).

Typically, once a Rule 12(b)(1) challenge is raised, the

burden shifts to the plaintiff to demonstrate the existence of

subject matter jurisdiction. See McCann v. Newman Irrevocable

Trust, 458 F.3d 281, 286 (3d Cir. 2006). “However, because

‘Eleventh Amendment immunity can be expressly waived by a party,

or forfeited through non-assertion, it does not implicate

federal subject matter jurisdiction in the ordinary sense,’ and

therefore, a party asserting Eleventh Amendment immunity bears

the burden of proving its applicability.” Garcia v. Knapp, No.

19-17946, 2020 WL 2786930, at *3 (D.N.J. May 29, 2020) (quoting

Christy v. PA Tpk. Comm., 54 F.3d 1140, 1144 (3d Cir. 1994)).

In deciding a Rule 12(b)(1) motion, “a court must first

determine whether the party presents a facial or factual attack

because the distinction determines how the pleading is

reviewed.” Leadbeater v. JPMorgan Chase, N.A., No. 16-7655,

2017 WL 4790384, at *3 (D.N.J. Oct. 24, 2017). “When a party

moves to dismiss prior to answering the complaint . . . the

motion is generally considered a facial attack.” Id.; see also

Garcia, 2020 WL 2786930, at *4 (“Defendants, by asserting

Eleventh Amendment immunity, raise a facial 12(b)(1)

challenge.”). In reviewing a facial attack, the Court should

consider only the allegations in the complaint, along with

documents referenced therein and attached thereto, in the light

most favorable to the nonmoving party. See Constitution Party

of Pennsylvania v. Aichele, 757 F.3d 347, 358 (3d Cir. 2014).

Thus, a facial motion is handled much like a 12(b)(6)

motion, and allegations in the complaint are accepted as true.

Leadbeater, 2017 WL 4790384, at *3.

b. Motion 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).

However, the Supreme Court has instructed that, in

qualified immunity cases, the existence of a videotape recording

presents an “added wrinkle” to the general standard requiring

the court to construe facts in the light most favorable to the

non-moving party. Scott v. Harris, 550 U.S. 372, 378 (2007).

In that regard, “[w]here there is a video recording of the

relevant events, the Court views the facts as depicted in the

recording, rather than in the non-movant’s favor, whenever the

recording ‘blatantly contradict[s]’ the non-movant’s version

such that ‘no reasonable jury could believe it.’” Knight v.

Walton, 660 F. App’x 110, 112 (3d Cir. 2016) (quoting Scott, 550

U.S. at 380-81).

The ability to rely on video evidence is important in the

present case because the entire encounter between Officer

Thoresen and Plaintiff is captured on video and after reviewing

the videos, it is clear that Plaintiff’s version of the facts

that the Defendants were together engaged in corruption to exact

revenge on the Plaintiff and that Defendant Thoresen was the

initial aggressor is simply blatantly contradicted by the videos

provided to the Court.

Initially, the moving party has the burden of demonstrating

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

477 U.S. at 323. 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).

C. Analysis

a. State Defendant’s Motion to Dismiss

State Defendant has moved to dismiss Plaintiff’s claims

against it for lack of subject matter jurisdiction based on the

Eleventh Amendment Immunity doctrine, among other arguments.

This Court agrees that the claims against the State Defendant

are barred by the doctrine of sovereign immunity and thus, this

Opinion does not address the State Defendant’s additional

arguments in support of dismissal. Plaintiff has brought claims

pursuant to 42 U.S.C. § 1983 against the State Defendant. These

claims are barred by the Eleventh Amendment to the U.S.

Constitution.

The Eleventh Amendment provides:

The Judicial power of the United states shall not be

construed to extend to any suit in law or equity, commenced

or prosecuted against one of the United States by Citizens

of another state, or by Citizens or Subjects of any Foreign

state.

U.S. Const. amend. XI. “‘That a state may not be sued without

its consent is a fundamental rule of jurisprudence having so

important a bearing upon the construction of the Constitution of

the United States that it has become established by repeated

decisions of this court that the entire judicial power granted

by the Constitution does not embrace authority to entertain a

suit brought by private parties against a state without consent

given.’” Pennhurst state Sch. & Hosp. v. Halderman, 465 U.S.

89, 98 (1984) (quoting Ex parte state of New York No. 1, 256

U.S. 490, 497 (1921)). The Supreme Court in Hans v. Louisiana,

134 U.S. 1 (1890), “extended the Eleventh Amendment’s reach to

suits by in-state plaintiffs, thereby barring all private suits

against non-consenting states in federal court.” Lombardo v.

Pa. Dep’t of Pub. Welfare, 540 F.3d 190, 194 (3d Cir. 2008).

“The state of New Jersey has not waived its sovereign immunity

with respect to § 1983 claims in federal court.” Mierzwa v.

United states, 282 F. App’x 973, 976 (3d Cir. 2008) (citing

Ritchie v. Cahall, 386 F. Supp. 1207, 1209–10 (D.N.J. 1974)).

Thus, constitutional claims in federal court may only be

asserted against a “person” and not the state, which includes

state courts, state agencies, and state actors sued in their

official capacities. See Robinson v. New Jersey Drug Court, No.

17-7135, 2018 WL 3455480, at *3 (D.N.J. 2018) (citing Callahan

v. City of Phila., 207 F.3d 668, 673 (3d Cir. 2000)) (noting

that courts have routinely held that the state judiciary is not

a “person” under § 1983); Beightler v. Office of Essex County

Prosecutor, 342 F. App’x 829, 832 (3d Cir. 2009) (quoting

Fitchik v. New Jersey Transit Rail Operations, 873 F.2d 655, 658

(3d Cir. 1989) (en banc)) (providing that the Eleventh Amendment

protects state agencies when “‘the state is the real party in

interest’”); Will v. Michigan Dept. of state Police, 491 U.S.

58, 71 (1989) (holding that neither a state nor its officials

acting in their official capacities are “persons” under § 1983);

Grohs v. Yatauro, 984 F. Supp. 2d 273, 280 (D.N.J. 2013) (citing

Will, 491 U.S. at 65–66) (“The state’s sovereign immunity [] is

preserved under Section 1983; a state is therefore not a

‘person’ who may be sued under Section 1983.”).

Accordingly, Plaintiff’s § 1983 claims against the State

Defendant are barred under the Eleventh Amendment, and the Court

must therefore dismiss Plaintiff’s claims against the State

Defendant because of its sovereign immunity. Accordingly, the

Court will grant the State Defendant’s Motion to Dismiss and

deny Plaintiff’s Motion for Summary Judgment with respect to the

State Defendant for the same reasons.

b. Summary Judgment Motions

1. Plaintiff’s claims against Defendant Thoresen

Plaintiff has brought his claims for excessive force, false

arrest, and malicious prosecution pursuant to 42 U.S.C. § 1983.

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

. . . .

As the above language makes clear, Section 1983 is a

remedial statute designed to redress deprivations of rights

secured by the Constitution and its subordinate federal laws.

See Baker v. McCollan, 443 U.S. 137, 145 n.3 (1979). By its own

words, therefore, Section 1983 “does not . . . create

substantive rights.” Kaucher v. County of Bucks, 455 F.3d 418,

423 (3d Cir. 2006) (citing Baker, 443 U.S. at 145, n.3).

To state a cognizable claim under Section 1983, a plaintiff

must allege a “deprivation of a constitutional right and that

the constitutional deprivation was caused by a person acting

under the color of state law.” Phillips v. County of Allegheny,

515 F.3d 224, 235 (3d Cir. 2008) (citing Kneipp v. Tedder, 95

F.3d 1199, 1204 (3d Cir. 1996)). Thus, a plaintiff must

demonstrate two essential elements to maintain a claim under §

1983: (1) that the plaintiff was deprived of a “right or

privileges secured by the Constitution or the laws of the United

States” and (2) that plaintiff was deprived of his rights by a

person acting under the color of state law. Williams v. Borough

of West Chester, Pa., 891 F.2d 458, 464 (3d Cir. 1989).

The doctrine of qualified immunity provides that

“government officials performing discretionary functions . . .

are shielded from liability for civil damages insofar as their

conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person should have

known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Thus,

government officials are immune from suit in their individual

capacities unless, “taken in the light most favorable to the

party asserting the injury, . . . the facts alleged show the

officer’s conduct violated a constitutional right” and “the

right was clearly established” at the time of the objectionable

conduct. Saucier v. Katz, 533 U.S. 194, 201 (2001). Courts may

exercise discretion in deciding which of the two prongs of the

qualified immunity analysis should be addressed first in light

of the circumstances in the particular case at hand. Pearson v.

Callahan, 555 U.S. 223, 236 (2009).

This doctrine “balances two important interests — the need

to hold public officials accountable when they exercise power

irresponsibly and the need to shield officials from harassment,

distraction, and liability when they perform their duties

reasonably” and it “applies regardless of whether the government

official’s error is a mistake of law, a mistake of fact, or a

mistake based on mixed questions of law and fact.” Id.

(internal quotation omitted). Properly applied, qualified

immunity “protects ‘all but the plainly incompetent or those who

knowingly violate the law.’” Ashcroft v. al-Kidd, 563 U.S. 731,

741 (2011) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).

Here, Plaintiff alleges Officer Thoresen violated his

federal constitutional rights in using excessive force and

falsely arresting and maliciously prosecuting him. Defendant

Thoresen submits that he is entitled to qualified immunity on

each of Plaintiff’s constitutional claims because Defendant

Thoresen acted as a reasonably prudent officer in determining

that there was probable cause Plaintiff was committing an

offense at the time of the incident and because Plaintiff cannot

prove Defendant Thoresen used excessive force. In opposition,

Plaintiff submits that Defendant Thoresen felt Defendant Gray

“trying to get to the Plaintiff after the dime made contact with

his being and that is the reasoning for Police Officer Thoresen

to slam the Plaintiff to the ground and allow [Defendant Gray]

the opportunity to exact revenge.” (ECF No. 36 at 6.)

a. Plaintiff’s Excessive Force Claim

Plaintiff alleges that Officer Thoresen violated his

federal constitutional rights in using excessive force. A

Fourth Amendment excessive force claim calls for an evaluation

of whether police officers' actions are objectively reasonable

in light of the facts and circumstances confronting him. Graham

v. Conner, 490 U.S. 386, 397 (1989). While the question of

reasonableness is objective, the court may consider the severity

of the crime at issue, whether the suspect poses an immediate

threat to the safety of the officers or others, and whether the

suspect is actively resisting arrest or attempting to evade

arrest by flight. Id. In addition, the following factors are

also relevant:

the possibility that the persons subject to the

police action are violent or dangerous, the

duration of the 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.

Kopec v. Tate, 361 F.3d 772, 777 (3d Cir. 2004). In a claim for

excessive force, “the central question is ‘whether force was

applied in a good faith effort to maintain or restore

discipline, or maliciously and sadistically to cause harm.’”

Brooks v. Kyler, 204 F.3d 102, 106 (3d Cir. 2000) (quoting

Hudson v. McMillian, 503 U.S. 1, 7 (1992)). Furthermore,

appropriate attention should be given “to the circumstances of

the police action, which are often ‘tense, uncertain, and

rapidly evolving.’” Groman v. Township of Manalapan, 47 F.3d

628, 634 (3d Cir. 1995) (quoting Graham, 490 U.S. at 396); see

also Graham, 490 U.S. at 396-97 (analyzing reasonableness of use

of force “from the perspective of a reasonable officer on the

scene, rather than with the 20/20 vision of hindsight”).

At step one, the Court does not find a genuine factual

dispute as to whether Officer Thoresen’s conduct violated a

constitutional right. Here, Plaintiff’s papers do not clearly

articulate the exact conduct he claims violated his rights.

“Not every push or shove, even if it may later seem unnecessary

in the peace of a judge’s chambers, violates the Fourth

Amendment.” Brown v. Makofka, 644 Fed. App’x 139, 142-143 (3rd

Cir. 2016) (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)).

“As the Supreme Court has recognized, ‘police officers are often

forced to make split-second judgments — in circumstances that

are tense, uncertain, and rapidly evolving — about the amount of

force that is necessary in a particular situation.’” Id.

(quoting Graham, 490 U.S. at 396).

Here, Plaintiff caused the use of force when he made a

swinging gesture over Defendant Thoresen’s shoulder at Defendant

Gray and along the way striking Defendant Thoresen’s arm.

Plaintiff admits he first threw the dimes at Defendant Gray

prior to any use of physical force by Defendants. While

Plaintiff alleges his conduct was precipitated by Defendant

Gray’s verbal comments, this cannot justify an attempt to attack

against another individual which then leads to the striking of

an officer. Such conduct does not support a claim of excessive

force when Defendant Thoresen acted, by the use of force

reasonable under the circumstances, to subdue Plaintiff.

The video produced by the parties make it clear that the

force was used quickly and necessarily to diffuse an escalating

and potentially violent situation. Force was used for

approximately 40 seconds. Moreover, Plaintiff was increasingly

aggressive by the time Defendant Thoresen pinned him to the

ground and Defendant Thoresen was the only Hamilton Township

officer that was directly next to both Plaintiff and Defendant

Gray during their altercation. The Court also notes that, while

serious injury is not required to claim excessive or malicious

use of force, its absence further bolsters Defendants’ argument.

Based on the foregoing, the Court concludes that Defendant

Thoresen utilized only the force necessary to restrain Plaintiff

and the force applied was “made in a good faith effort to

maintain or restore discipline.” Thus Defendant Thoresen’s

conduct did not constitute a violation of a constitutional

right.4

b. Plaintiff’s False Arrest and Malicious Prosecution Claims

The Court next turns to Plaintiff’s false arrest and

malicious prosecution claims. To state claim for false arrest

under § 1983, “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). To prevail on a malicious prosecution claim under

1983, “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)

4 The qualified immunity test is two-pronged: whether plaintiff

has alleged or shown a violation of a constitutional right, and

whether the right at issue was “clearly established” at the time

of the defendant’s alleged misconduct. Pearson, 555 U.S. 223,

236 (2009). Given that Plaintiff fails to demonstrate a basis

for a constitutional violation, there is no need to address

whether the right at issue was clearly established at the time

of Defendant Thoresen’s alleged misconduct.

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).

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 Fed. 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, 677 Fed. App’x 49 (3d Cir. 2017) (citing Sherwood v.

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

A police officer can defend a § 1983 claim by establishing:

(1) that he or she acted with probable cause; or, (2) if

probable cause did not exist, that a reasonable police officer

could have believed it existed. Kirk v. City of Newark, 536 A.

2d 229, 234 (N.J. 1988) (citing Anderson, 483 U.S. at 663-64).

“In cases involving claims for unlawful arrest, false

imprisonment and malicious prosecution, the qualified immunity

analysis turns on whether the police officers reasonably but

mistakenly concluded that probable cause existed to arrest,

detain and initiate the criminal prosecution.” Palma v. Atl.

Cty., 53 F. Supp. 2d 743, 769 (D.N.J. 1999).

Plaintiff was charged with aggravated assault and

disorderly conduct under New Jersey law. For these claims,

Plaintiff simply explains that the Cam123_BusTerminal video

footage “can show that there was not a disorderly event.” (ECF

No. 36 at 7.) This Court has reviewed Cam123_BusTerminal video

footage as well at the MVR and disagrees with Plaintiff. The

New Jersey assault provision defines an aggravated assault

offense and simple assault 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:

(5) Commits a simple assault as defined in paragraph

(1), (2) or (3) of subsection a. of this section upon:

(a) Any law enforcement officer acting in the

performance of the officer’s duties while in

uniform or exhibiting evidence of authority or

because of the officer’s status as a law

enforcement officer;

N.J.S.A. §§ 2C:12-1(a) and (b)(5)(a).

Moreover, pursuant to N.J.S.A. § 2C:33-2(a)(1), “[a] person

is guilty of a petty disorderly persons offense, if with purpose

to cause public inconvenience, annoyance or alarm, or recklessly

creating a risk thereof he . . . [e]ngages in fighting or

threatening, or in violent or tumultuous behavior.” “Probable

cause does not require that the prosecution have sufficient

evidence to prove guilt beyond a reasonable doubt. Rather,

probable cause requires only a probability or substantial chance

of criminal activity, not an actual showing of such activity.”

Peterson v. AG Pa., 551 Fed. App’x 626, 629 (3d Cir. 2014); see

also Quinn v. Cintron, 629 Fed. App’x 397, 399 (3d Cir. 2015)

(rejecting Plaintiff’s argument that “the officers lacked

probable cause to arrest him because there was no evidence that

[the victim] endured any bodily injury” and finding such an

argument “confuses the probable cause inquiry with the

prosecutor's burden of proof at trial, that is, to prove every

element of the offense beyond a reasonable doubt”).

First, the undisputed record evidence provides that while

Defendant Thoresen was in the middle of Plaintiff and Defendant

Gray, Plaintiff recklessly struck Officer Thoresen in the arm

while attempting to engage in a physical altercation with

Defendant Gray. The video shows Defendant Thoresen’s reaction

after being struck by Plaintiff and his attempt to diffuse a

potential violent situation which led to him sustaining minor

injuries. Moreover, while on the ground Defendant Thoresen

further explains to the Plaintiff that Plaintiff struck him in

the arm.

Second, the undisputed evidence provides that Plaintiff

engaged in a physical dispute in front of an officer after he

was repeatedly ordered to relax and calm down so the three of

them could figure out how to handle the situation. Despite

these repeated instructions, Plaintiff only grew increasingly

aggressive as he raised his voice, began swearing, and

ultimately threw two dimes which as evidenced by the videos and

his own statement, Defendant Thoresen viewed as an attempt to

punch Defendant Gray.

The facts and circumstances presented in this case were

sufficient “to warrant a prudent man in believing that

[plaintiff] had committed or was committing” the offenses

Plaintiff was charged with. Beck v. Ohio, 379 U.S. 89, 91

(1964). Furthermore, even if Defendant Thoresen lacked probable

cause to arrest and charge Plaintiff, he is entitled to

qualified immunity because he “reasonably but mistakenly

conclude[d] that probable cause [wa]s present” for both of these

offenses. Wesby, 138 S. Ct. at 591. Therefore, Defendant

Officer Thoresen is entitled to summary judgment on Plaintiff’s

claims for false arrest and malicious prosecution. Accordingly,

the Court will grant Defendant Thoresen’s Motion for Summary

Judgment with respect to Plaintiff’s malicious prosecution and

false arrest claims and deny Plaintiff’s Motion for Summary

Judgment with respect to such claims against Defendant Thoresen

for the same reasons.

2. Plaintiff’s Claims against Defendant Hamilton

Plaintiff attempts to hold Defendant Hamilton liable for

Defendant Thoresen’s conduct. In Plaintiff’s Opposition papers,

he cites to the Monell standard; however, he fails to explain

which custom or policy Defendant Hamilton had in place that

promoted violations of the U.S. Constitution. (ECF No. 36 at 2-

4.) “A municipality cannot be held liable for the

unconstitutional acts of its employees on a theory of respondeat

superior.” Thomas v. Cumberland County, 749 F.3d 217, 222 (3d

Cir. 2014) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658,

691 (1978)). Rather, “[a] plaintiff seeking to hold a

municipality liable under section 1983 must demonstrate that the

violation of rights was caused by the municipality’s policy or

custom.” Id. (citing Monell, 436 U.S. at 690-91). For

municipal liability under § 1983 to attach, a plaintiff must

demonstrate that “the policy or custom itself violates the

Constitution” or that “the policy or custom, while not

unconstitutional itself, is the ‘moving force’ behind the

constitutional tort of one of its employees.” Id. (quoting

Colburn v. Upper Darby Twp., 946 F.2d 1017, 1027 (3d Cir.

1991)). To impose liability against a local government under §

1983, a plaintiff must show a “relevant policy or custom, and

that the policy caused the constitutional violation . . .

allege[d].” Natale v. Camden County Corr. Facility, 318 F.3d

575, 583-84 (3d Cir.).

Here, Plaintiff has failed to allege – even in general

terms – the policy or custom at issue. Simply stating the

Monell standard is not enough for Plaintiff to survive summary

judgment on his claims against Defendant Hamilton. Accordingly,

the Court will grant Defendant Hamilton’s Motion for Summary

Judgment and deny Plaintiff’s Motion for Summary Judgment with

respect to Defendant Hamilton for the same reasons.

c. Plaintiff’s claims against Defendants New Jersey

Transit Corporation and Gray

Plaintiff’s Motion for Summary Judgment as to all

Defendants raises issues as to the status of Plaintiff’s claims

against Defendants New Jersey Transit Corporation and Gray. It

appears from the docket that Plaintiff has not successfully

served either defendant over two half years since the Complaint

was filed, which is well past the Federal Rule of Civil

Procedure’s 90-day requirement. See FED. R. CIV. P. 4(m).

It appears that Plaintiff never provided the United States

Marshals Service (“USMS”) with the required completed USMS Form

285 for Defendant Gray that would allow Plaintiff to serve his

complaint on Defendant Gray despite being notified such form

must be completed for each named defendant. (ECF No. 5.) It

does not appear that Plaintiff has ever made any attempt to

serve Defendant Gray.

In addition, it appears that the USMS determined that the

address provided for the New Jersey Transit Corporation did not

exist when he attempted to complete service on February 6, 2019.

(ECF No. 8.) On August 21, 2019, Plaintiff requested that the

summons be served to the New Jersey Transit Corporation pursuant

to Federal Rule of Civil Procedure 4. In this request,

Plaintiff failed to provide the Court with a new address for the

New Jersey Transit Corporation following the USMS’s conclusion

that the initial address provided did not exist. Beyond this,

the Court is unaware of any additional attempts by Plaintiff to

successfully serve the New Jersey Transit Corporation.

Consequently, the Court will direct Plaintiff to show cause

within 20 days as to why his claims against Defendants Gray and

the New Jersey Transit Corporation should not be dismissed for

lack of prosecution for his failure to effect service. See

Karlsen v. GEICO, No. 20-0460, 2020 WL 7417817, at *1 (D.N.J.

2020) (explaining that Rule 4(m) provides, “[i]f a defendant is

not served within 90 days after the complaint is filed, the

court - on motion or on its own after notice to the plaintiff -

must dismiss the action without prejudice against that defendant

or order that service be made within a specified time. But if

the plaintiff shows good cause for the failure, the court must

extend the time for service for an appropriate period.” FED. R.

CIV. P. 4(m). Showing good cause “‘requires a demonstration of

good faith on the part of the party seeking enlargement and some

reasonable basis for noncompliance within the time specified by

the rule.’”) (citing John Vorpahl v. The Kullman Law Firm, No.

17-1693, 2018 WL 813879, at *2 (D.N.J. Feb. 8, 2018) (quoting

Veal v. United States, 84 F. App’x 253, 256 (3d Cir. 2004)).

CONCLUSION

For the above reasons, the Court will grant State

Defendant’s Motion to Dismiss, deny Plaintiff’s Motion for

Summary Judgment, and grant Defendant Hamilton and Thoresen’s

Motion for Summary Judgment. Plaintiff must show cause within

20 days as to why his claims against Defendant New Jersey

Transit Corporation and Richard Gray should not be dismissed for

lack of prosecution.

An appropriate Order will be entered.

Date: January 18, 2021 s/ Noel L. Hillman

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