The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
LAWRENCE MILLS : CIVIL ACTION
:
v. :
:
MICHAEL NELSON : NO. 20-7037
:
MEMORANDUM
Bartle, J. August 5, 2021
Plaintiff Lawrence Mills brings this action against
defendant New Jersey State Police officer Michael Nelson in his
individual capacity for alleged violations of plaintiff’s rights
under the United States Constitution as well as for the
commission of various torts under New Jersey law. Plaintiff’s
claims stem from his arrest at the Golden Nugget Casino on
November 2, 2017.1
On September 21, 2020, this court dismissed ten of
plaintiff’s claims against Nelson, leaving only Count IV for
malicious prosecution under the New Jersey Tort Claims Act and
Count IX for malicious prosecution in violation of plaintiff’s
Fourth and Fourteenth Amendment rights under 42 U.S.C. § 1983.
Before the court is the motion of plaintiff for partial summary
1. Plaintiff, along with co-plaintiff Daniel Chun, has also
brought suit against Golden Nugget and five other New Jersey
State Police officers in another action, Mills v. Golden Nugget
Atlantic City, LLC, Civil Action No. 19-19610, concerning the
events related to the same arrest on November 2, 2017.
judgment pursuant to Rule 56 of the Federal Rules of Civil
Procedure2 and the motion of Nelson for summary judgment.
I
Under Rule 56 of the Federal Rules of Civil Procedure,
summary judgment is appropriate “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 Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). A dispute is genuine if the evidence is such that a
reasonable factfinder could return a verdict for the nonmoving
party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254
(1986). We view the facts and draw all inferences in favor of
the nonmoving party. See In re Flat Glass Antitrust Litig.,
385 F.3d 350, 357 (3d Cir. 2004).
Summary judgment is granted when there is insufficient
record evidence for a reasonable factfinder to find for the
nonmovant. See Anderson, 477 U.S. at 252. “The mere existence
of a scintilla of evidence in support of the [nonmoving party]’s
2. Plaintiff filed this motion for summary judgment against
Nelson in Civil Action No. 19-19610 under a case caption for
both this matter and No. 19-19610. Plaintiff, however, did not
separately file his motion in this matter. Because the motion
is the same as against defendants in 19-19610 and against Nelson
in this matter and since plaintiff correctly captioned the
motion to include both matters, we will consider plaintiff’s
motion for partial summary judgment in this matter as it relates
to Nelson.
position will be insufficient; there must be evidence on which
the jury could reasonably find for [that party].” Id. In
addition, Rule 56(e)(2) provides “[i]f a party fails to properly
support an assertion of fact or fails to properly address
another party’s assertion of fact as required by Rule 56(c), the
court may . . . consider the fact undisputed for the purposes of
the motion.” Fed. R. Civ. P. 56(e)(2).
II
The following facts are undisputed. In November 2017
plaintiff and some friends traveled from Maryland to Atlantic
City, New Jersey for vacation. They stopped at the Golden
Nugget casino and hotel. At the time, Golden Nugget was running
a promotion whereby it would match in bonus money the amount a
person deposited up to $1,000. Plaintiff loaned a member of his
group, Daniel Chun,3 $1,000 to open an internet gaming (“i-
gaming”) account under Chun’s name. On November 2, 2017 Chun
deposited $1,000 in cash at the Golden Nugget cage in the
casino. Plaintiff testified at his deposition that he used
other people’s online gaming accounts to play for them and
guaranteed to them a certain amount of any winnings.
After setting up his account, Chun went to the
casino’s Wine and Wi-Fi lounge but was unable to login to his
3. Chun is plaintiff’s co-plaintiff in Civil Action No.
19-19610.
account to start playing. Plaintiff was on his computer in the
lounge at the time. Chun called customer service and the
casino’s technical support desk multiple times for assistance in
logging into his account. After unsuccessfully attempting to
login following these calls, Chun went to the cashier to request
his money back but could not withdraw the funds because his
account was frozen.
Antoinette Cafone,4 the casino’s internet gaming and
compliance manager, testified at her deposition that a patron
may cash out whenever he wants but he cannot cash out the
matching bonus money. However, casino personnel can temporarily
block the account when the casino believes that something is
amiss or wants to investigate a matter further. On November 2,
2017 Cafone was notified by the cage that several individuals
from Maryland had consecutively deposited $1,000 in cash for i-
gaming accounts. Cafone testified that she found unusual this
situation of multiple individuals in a row coming in person to
place the same amount for online gaming into newly created
accounts. In her experience, most customers deposit money in
person for playing on the casino floor and deposit money online
for i-gaming accounts.
4. Cafone manages the integrity of the internet gaming system
and ensures compliance with Division of Gaming Enforcement
regulations.
Jeuel Cato, the online gaming payments analyst for
Golden Nugget Online Gaming, testified that she receives
automatic reports when there are deposits of $1,000 or more so
that the casino can monitor the activity if needed. When she
spoke to Chun over the phone about his account being down, his
behavior was not typical of a legitimate player and it was
suspicious that there was “similar activity between different
types of people at relatively the same time or within a close
time frame of one another.”
On the morning of November 2, Virginia Carr, the
surveillance manager for Golden Nugget, filled out a so-called
DICE report for “suspicious activity.” The report states that
“Monitor Room advised in past hour or so 6 deposits of $1,000
each made on i-Gaming accounts. Mostly from Maryland.” She
testified that it was her call as to what to put in the report
and whether to file it at all. After a DICE report is created,
it is sent to the Division of Gaming Enforcement of the New
Jersey State Police (“Division”). Carr did not speak to any
members of law enforcement after filing the report and had
nothing to do with the report after she filed it.
The Division receives many DICE reports, and it is up
to the State Police whether to follow up on a report with a
phone call or a visit to the casino to investigate it further.
In this instance, Detective Sergeant Richard Wheeler went to the
casino to follow up on this DICE report. Wheeler works for the
New Jersey State Police in the Casino Gaming Bureau and was in
the Financial Crimes Unit at the time. Wheeler sees a lot of
DICE reports and does not follow up on every report, but he
decided to do so in this case. He informed his supervisor,
Detective Sergeant Carl Smallwood, that he wanted to investigate
this matter further because of potentially fraudulent activity.
Wheeler and Smallwood responded to the DICE report on
the afternoon of November 2 with Wheeler leading the
investigation. At some point, Wheeler spoke by phone with
Cafone about the situation. Cafone testified that it was up to
the police whether to come to the casino to investigate the
matter. She told Wheeler that it was suspicious that a group of
individuals from Maryland had all opened new accounts and
deposited the same amount in cash at the same time. She did not
mention anything about a fraud or scheme.
When they arrived at the casino, Wheeler and Smallwood
proceeded to the Wi-Fi lounge where they saw an individual who
was later identified as Mills sitting on the couch with a
computer and communicating to two other people nearby. When
asked at his deposition if he observed anyone doing anything
overtly illegal during this surveillance, Wheeler responded
“[t]hey were on the phone. The person who was eventually
identified as Mr. Mills was directing activities to the other
two.”
Wheeler and Smallwood surveilled plaintiff and the
others before Wheeler called Lieutenant Michael Flory, head of
the Intelligence Management Unit, for backup in conducting
surveillance. Flory and Officer Lance Moorhouse responded as
backup as did defendant Officer Nelson5 and Officer Mark Devine.6
Nelson and Devine spoke to Moorhouse and Smallwood when they
arrived at the casino and were told to surveil the suspect in
the lounge.
Nelson was not informed of any criminal activity
occurring at the time but was instructed to conduct physical
surveillance on the person of interest in the lounge, that is
the plaintiff, and follow him if he moved. Nelson and Devine
did so for about fifteen to twenty minutes during which they
observed plaintiff use his phone but could not hear what he was
saying.
Eventually Moorhouse and Smallwood followed to the
parking garage the others who had been talking to plaintiff.
Wheeler and Flory subsequently joined them. Smallwood and
5. Nelson has worked in the Casino Gaming Bureau since 2014
and was working for the Special Investigations Unit on November
2, 2017.
6. Devine worked in the Strategic Investigations Unit on
November 2, 2017.
Moorhouse stopped a person who was later identified as Chun
along with his friends in the garage. Wheeler then arrived and
arrested Chun and the others.
When Wheeler was arresting Chun, Chun told him he was
there to make money from the casino. At this point, Wheeler
called Devine and directed that he and Nelson were to arrest
plaintiff. According to Devine, Wheeler had told him on the
phone that Wheeler had probable cause based on the totality of
the circumstances that plaintiff was “involved in some kind of a
scam, some kind of comp [computer] scam or something of that
nature.” Devine then told Nelson that they were to arrest
plaintiff and escort him out of the lounge and back to the
police station.
Based on Wheeler’s orders, Nelson and Devine
approached plaintiff in the casino lounge, identified themselves
as police officers, and informed him he was under arrest. They
took him outside the lounge, handcuffed him, searched him, and
transported him to the police station where he was placed in the
holding cell area, fingerprinted, and interviewed. They were
there for approximately two to three hours. Plaintiff was
subsequently charged with theft by deception and released. His
wallet and briefcase were given back to him but not his laptop
and cell phone. Wheeler prepared the investigation report and
typed up the summons and criminal complaint against plaintiff.
On November 10, 2017, some eight days after the arrest
of plaintiff and Chun, Golden Nugget concluded its investigation
into Chun’s account. Cato advised Chun that day by email that
his account was open and available for playing or cash-out. On
June 1, 2018, the New Jersey Attorney General’s office dismissed
the charge against plaintiff “in the interests of justice.”
Thereafter plaintiff’s phone and laptop were returned.
III
Plaintiff brings a claim under 42 U.S.C. § 1983 for
malicious prosecution in violation of his Fourth and Fourteenth
Amendment rights under the United States Constitution. Section
1983 states:
Every person who, under color of any
statute, ordinance, regulation, custom, or
usage, of any State . . . 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.
42 U.S.C. § 1983. To succeed on a claim under § 1983 a
plaintiff must prove: (1) the violation of a right secured by
the Constitution or laws of the United States; and (2) that the
alleged deprivation was committed or caused by a person
amendable to suit under § 1983 and acting under color of state
law. West v. Atkins, 487 U.S. 42, 48 (1988).
Analysis of a § 1983 claim begins with identifying
“the exact contours of the underlying right said to have been
violated” and then determining “whether the plaintiff has
alleged a deprivation of a constitutional right at all.” Nicini
v. Morra, 212 F.3d 798, 806 (3d Cir. 2000). In a malicious
prosecution claim under § 1983, a plaintiff must prove: (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 a deprivation of
liberty consistent with the concept of seizure as a consequence
of a legal proceeding.” DiBella v. Borough of Beachwood, 407
F.3d 599, 601 (3d Cir. 2005).
However, the doctrine of qualified immunity shields
government officials from monetary damages in a § 1983 action
unless a plaintiff establishes: (1) “that the official violated
a statutory or constitutional right;” and (2) “that the right
was ‘clearly established’ at the time of the challenged
conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)(citing
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
“The protection of qualified immunity 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.’” Pearson v. Callahan, 555 U.S. 223,
231 (2009)(quoting Groh v. Ramirez, 540 U.S. 551, 567 (2004)).
“[Q]ualified immunity is an objective question to be decided by
the court as a matter of law.” Curley v. Klem, 499 F.3d 199,
210 (3d Cir. 2007). Courts are to provide “ample room for
mistaken judgments” pursuant to the doctrine of qualified
immunity before imposing civil liability upon law enforcement
officers. Malley v. Briggs, 475 U.S. 335, 343 (1985).
As our Court of Appeals has previously stated, “there
is no question that the right at issue, namely, the right to be
free from arrest except on probable cause, was clearly
established at the time of [plaintiffs’] arrest.” Orsatti v.
New Jersey State Police, 71 F.3d 480, 483 (3d Cir. 1995). This
finding, however, “does not end the court’s inquiry” since “the
Supreme Court has recognized that it is inevitable that law
enforcement officers will in some cases reasonably but
mistakenly conclude that probable cause to make an arrest is
present.” Id. In those instances officers who acted reasonably
will not be held personally liable. Id. Immunity therefore
depends on whether the officer’s actions were objectively
reasonable. Id.
In Rogers v. Powell, a § 1983 action, our Court of
Appeals explained that statements of fellow officers conveying
that there is probable cause to arrest only establish probable
cause if these statements “are supported by actual facts that
satisfy the probable cause standard.” 120 F.3d 446, 453 (3d
Cir. 1997). Thus whether plaintiff’s arrest was lawful depends
on whether Wheeler, the investigating officer who instructed
Devine to arrest plaintiff, had probable cause to support the
arrest.
In Rogers, a police officer received “vague and
inconclusive statements” regarding the existence of an arrest
warrant that did not in fact exist and relied on that supposed
arrest warrant in making an arrest. Id. at 449. Another
officer assisted in the arrest based on the first officer’s
representations to him of a valid arrest warrant. The Court of
Appeals found that the arrest itself was unlawful because the
first officer “had no knowledge of any facts or circumstances to
support his own independent determination that probable cause to
arrest [plaintiff] existed.” Id. at 453.
However, even if an arrest is unlawful, the doctrine
of qualified immunity may still shield an officer from liability
if he reasonably relies on “what proves to be the flawed
conclusions of a fellow police officer.” Id. at 454-55.
“[W]here a police officer makes an arrest on the basis of oral
statements by fellow officers, an officer will be entitled to
qualified immunity . . . provided it was objectively reasonable
for him to believe, on the basis of the statements, that
probable cause for the arrest existed.” Id. at 455.
The Court of Appeals concluded in Rogers that it was
not reasonable for the first officer to believe that probable
cause existed because he never received “any statement
confirming the existence of probable cause or a warrant itself.”
Id. at 456. Nonetheless, it was objectively reasonable for the
second officer to believe there was probable cause for the
arrest since the first officer, contrary to what he had been
told, “unambiguously related [to the second officer] the
existence of an arrest warrant.” Id. That second officer had
qualified immunity.
In this matter it was objectively reasonable for
Nelson to believe probable cause existed for plaintiff’s arrest
based on Devine’s directive that they were to arrest plaintiff.
This directive was based on Devine’s conversation with Wheeler,
an experienced investigating officer, who explained that there
was probable cause based on the totality of the circumstances
that plaintiff was involved in a kind of computer scam. Devine
reasonably relied on what Wheeler told him. Nelson in turn
reasonably relied on Devine’s good faith directive to aid him in
arresting plaintiff since Devine’s directive was based on what
Wheeler had just told Devine about the existence of probable
cause. See id. at 455; see also Whiteley v. Warden, 401 U.S.
560, 568 (1971).
Nelson is shielded from liability for plaintiff’s
arrest by qualified immunity. Accordingly, this court will
grant Nelson’s motion for summary judgment and deny plaintiff’s
motion for summary judgment as to Count IX.
IV
Plaintiff has a remaining claim for malicious
prosecution under the New Jersey Tort Claims Act (“NJTCA”).
Malicious prosecution is part of “a group of closely related
torts that although ancient in origins, are treated with great
caution because of their capacity to chill resort to our courts
by persons who believe that they have a criminal complaint or
civil claim against another.” LoBiondo v. Schwartz, 970 A.2d
1007, 1022 (N.J. 2009).
The tort of malicious prosecution is meant to remedy
harm from “the institution or continuation of a criminal action
that is baseless.” Id. It requires plaintiff to prove: (1) “a
criminal action was instituted by this defendant against this
plaintiff”; (2) “the action was motivated by malice”; (3) “there
was an absence of probable cause to prosecute”; and (4) “the
action was terminated favorably to the plaintiff.” Id.
However, the NJTCA provides a public employee immunity
from liability for a tort when “he acts in good faith in the
execution or enforcement of any law. Nothing in this section
exonerates a public employee from liability for false arrest or
false imprisonment.” N.J. Stat. Ann. § 59:3-3. The New Jersey
Supreme Court has held that a public employee “must ‘establish
that his or her acts were objectively reasonable or that he or
she performed them with subjective good faith.’ Therefore, an
employee may be immune from liability under either an objective
or subjective analysis.” Leang v. Jersey City Bd. of Ed., 969
A.2d 1097, 1112 (N.J. 2009)(quoting Canico v Hurtado, 676 A.2d
1083, 1085 (N.J. 1996)).
“A public employee need prove only one component.”
Alston v. City of Camden, 773 A.2d 693, 703 (N.J. 2001). “The
same standard of objective reasonableness that applies in
Section 1983 actions also governs questions of good faith under
the [NJTCA].” Wildoner v. Borough of Ramsey, 744 A.2d 1146,
1153 (N.J. 2000). “The subjective component refers to
‘permissible intentions.’” Alston, 773 A.2d at 703. Under the
NJTCA, immunity is the “general rule, with liability the
exception.” Rosario v. City of Union City Police Dep’t, 131 F.
App’x 785, 789 (3d Cir. 2005).
As with qualified immunity for plaintiff’s § 1983
claim for malicious prosecution, Nelson is also shielded from
liability for plaintiff’s claim for malicious prosecution under
state law based on good faith immunity. Again, it was
objectively reasonable for Nelson to believe probable cause
existed for plaintiff’s arrest based on Devine’s good faith
directive to do so. Devine acted in good faith because Wheeler,
an experienced officer, told him there was probable cause to
arrest plaintiff for a computer scam. Accordingly, summary
judgment in favor of Nelson will be granted as to Count IV.
Plaintiff’s motion for partial summary judgment will
consequently be denied as to Count IV.