GURVEY v. TOWNSHIP OF MONTCLAIR NEW JERSEY

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

HAROLD SCOTT GURVEY

Civ. No. 19-17525 (KM)(ESK)

PLAINTIFF,

OPINION

v.

TOWNSHIP OF MONTCLAIR NEW

JERSEY; MONTCLAIR POLICE

DEPARTMENT; CAPTAIN EMIL DUL;

CAPTAIN SCOTT BUEHLER;

LIEUTENANT ROBERT ROMITO

OFFICER THOMAS PATTI; OFFICER

ROBERT HANSFIELD; OFFICER

KEITH LUMPKIN; OFFICER GLENDA

RIVERA; POLICE DOES 1-10, SUED

INDIVIDUALLY AND IN THEIR

OFFICIAL CAPACITIES

DEFENDANTS

KEVIN MCNULTY, U.S.D.J.:

Plaintiff Harold Scott Gurvey alleges that officers of the Montclair Police

Department (the “Police Department”) violated his constitutional rights when

they entered his residence without a warrant, which entry was followed by an

unwanted psychiatric examination upon suspicion that he was suicidal.

Accordingly, Gurvey, proceeding pro se, asserts claims against the Township of

Montclair, New Jersey (“Montclair”), the Police Department,1 Captain Emily

1 Technically, the claims against the Police Department must be asserted against

the Township of Montclair itself. A police department is not an independent entity with

the capacity to sue and be sued, but only “an executive and enforcement function of

municipal government.” N.J. Stat. Ann. § 40A:14-118. Thus, Section 1983 case law

consistently holds that the proper defendant is the relevant municipality and not the

police department. See Jackson v. City of Erie Police Dep’t, 570 F. App’x 112, 114 n.2

(3d Cir. 2014) (“We further agree with the District Court that the police department

was not a proper party to this action. Although local government units may constitute

‘persons’ against whom suit may be lodged under 42 U.S.C. § 1983, a city police

Dul, Captain Scott Buehler, Lieutenant Robert Romito, Officer Thomas Patti,

Officer Robert Hansfield, Officer Lumpkin, and Officer Glenda Rivera under 42

U.S.C. § 1983 and New Jersey state law.2

Now before the Court are Defendants’ motion for summary judgment and

motion to bar Plaintiff’s expert reports and testimony (DE 32-1), as well as

Gurvey’s cross-motion for summary judgment against the Defendants (DE 33-

2). For the following reasons, Defendants’ motion for summary judgment will

be GRANTED IN PART and DENIED IN PART, Defendants’ motion to bar

Plaintiff’s expert reports is DENIED, and Gurvey’s cross-motion for summary

judgment is DENIED.

department is a governmental sub-unit not distinct from the municipality of which it

is a part.”) (citation omitted); Bonenberger v. Plymouth Twp., 132 F.3d 20, 25 n.4 (3d

Cir. 1997) (Court “treat[s] the municipality and its police department as a single entity

for purposes of section 1983 liability.”) The clerk is directed to dismiss the Police

Department from the case, but there is no change in substance.

2 Citations to certain items in the record will be abbreviated as follows:

“DE” = Docket entry number in this case.

Compl. = Plaintiff’s Complaint (DE 1)

Def. MSJ = Defendants’ Motion for Summary Judgment (DE 32-1)

Def. SOMF = Statement of Undisputed Facts in Support of Motion for Summary

Judgment and Motion to Bar Plaintiff’s Expert Reports and Testimony on Behalf

of Defendants (DE 40-3)

Pl. MSJ = Gurvey Cross-Motion for Summary Judgment (DE 33-2)

Pl. SOMF = Statement of Undisputed Material Facts in Support of Plaintiff’s

Motion for Summary Judgment (DE 33-5)

Pl. Opp. = Plaintiff’s Brief in Opposition to Defendants’ Motion for Summary

Judgment (DE 34-1)

Pl. RSOMF = Plaintiff’s Response to Defendants’ Statement of Undisputed Facts

(DE 34-2)

Def. Opp. = Brief in Opposition to Plaintiff’s Cross Motion for Summary

Judgment and in Reply to Plaintiff’s Opposition to Defendants’ Motion for

Summary Judgment and Motion to Bar Plaintiff’s Expert Reports and

Testimony on Behalf of all Defendants (DE 35)

Def. RSOMF = Response to Plaintiff’s Statement of Facts (DE 35)

Pl. Reply = Plaintiff’s Brief in Reply to Defendants’ Opposition to His Motion for

Summary Judgment

I. BACKGROUND

A. Facts

The following facts are set forth in the parties’ submissions; where the

parties dispute a factual matter, the dispute is noted.

On August 31, 2018, Dr. Patricia Marino called the Police Department to

request a wellness check for Gurvey. (Def. SOMF ¶1.) Dr. Marino reported that

she received a call from Mr. Gurvey’s spouse, Amy R. Weissbrod Gurvey. (Def.

SOMF ¶5.)3 According to Dr. Marino, Ms. Gurvey “sounded distressed, erratic,

and was calling to request help for her husband,” who Ms. Gurvey claimed was

suicidal. (Def. SOMF ¶¶ 6-7.) Dr. Marino informed the police that she advised

Ms. Gurvey to call 911, but Ms. Gurvey replied that the Plaintiff “would shoot

somebody” if she called 911 as Dr. Marino advised. (Def. SOMF ¶ 8.) Finally,

Dr. Marino told the Police Department that Ms. Gurvey was requesting an

appointment for a psychiatrist, that she did not want anyone to come to their

residence, and that the Plaintiff “was going to kill himself.” (Def. SOMF ¶9.)4

In response to Dr. Marino’s call, the Police Department dispatched squad

cars 203 and 217 to Gurvey’s home to perform a wellness check. (Def. SOMF

¶11.) Dispatch told the officers that Gurvey was suicidal and could harm

whoever came to help. (Def. SOMF ¶ 12.) The responding officers were Captain

Dul, Lieutenant Romito, Officer Rivera, Officer Hansford, Officer Patti, and

Officer Lumpkin (the “Officers”). (Def. SOMF ¶¶ 13.)

What happened next is in some dispute. Defendants contend that the

Officers arrived at Gurvey’s home and that Ms. Gurvey refused to open the

locked screen door when requested to do so. (Def. SOMF ¶14.) On the other

3 Intending no disrespect, I will refer to Harold Gurvey as “Gurvey,” or “Mr.

Gurvey,” and I will refer to Amy Gurvey as “Ms. Gurvey.” I note variant spellings of Ms.

Gurvey’s middle name in the record, but I here assume the accuracy of the spelling in

Mr. Gurvey’s moving brief.

4 With respect to Dr. Marino’s phone call to the Police Department, Defendants

submit this statement not to prove the truth of the matter asserted—which would

constitute hearsay—but to explain the basis for the Officers being dispatched to

Gurvey’s residence.

hand, Gurvey claims that the Officers met Ms. Gurvey at the front door and

that she asked the Officers to wait while she put on a shirt.5 (Pl. SOMF ¶12.) At

any rate, there is agreement that the door was locked, and that the Officers

forced their way in. (Def. SOMF ¶17; Pl. SOMF ¶13.)

At the time the Officers entered the home, Gurvey had just gotten out of

the shower. (Def. SOMF ¶18.) The Officers confronted Gurvey in his bedroom,

located on the second floor. (Pl. SOMF ¶15.) Gurvey was unaware that the

Officers were in his home until he saw them in his bedroom. (DE 32-4, Ex. C,

Deposition of Plaintiff Harold Gurvey, T58:24-59:02.)

Upon realizing that the Officers were in his bedroom, Gurvey, who was

on the phone, stated: “you ought to call the FBI or something.” (Def. SOMF

¶21.) Gurvey also asked the Officers “what the hell” they were doing in his

bedroom. (Def. SOMF ¶22.) The Officers explained to Gurvey that they were

responding to a call claiming that he was suicidal and constituted a threat of

harm to others, and requesting a wellness check. (Def. SOMF ¶23.) While the

5 In more detail, Ms. Gurvey’s version of the events at the door of the

house is as follows:

[The police] came with box cutters or whatever it is, and a whole bunch

of them came to the door. I was standing there with a towel on . . . , and

they said, "Is this the Gurvey residence?" Or something. And I said,

"Yes." And they said, "We have to come in." I said, "On what grounds?" I

said, "Why are you here?" They did not want to tell me. I said, "Can you

tell me why you're here? Do you have a warrant? Why are you in my

house?" And I said -- by the way, they said, "We're coming in. Come over

here and get the door." To which I said, "Can I please -- there's a closet

between me and you on my right side. I'd like to put a jacket on or a shirt

to cover my towel." They said, "No. We're coming in. I walked towards the

door to let them in and they virtually pushed me over. They broke the

doors down. They really bashed in the metal of the screen door. They

broke the handle. They box cut all the screen doors and they broke the

lock on the wood outside of the oak door of the house and ran up the

stairs. Okay?

(Deposition of Amy Gurvey, pp. 41-42 (DE 33-6 Ex. 5)). The Incident Report is

consistent with Ms. Gurvey’s account of what she was wearing upon the Officers’

arrival, i.e., that she “was standing in the rear of the hallway, in a towel by the

kitchen.” (DE 32-4, Ex. E; DE 33-6, Ex. 3.)

Officers were fully uniformed, their weapons remained holstered and they never

displayed or threatened Gurvey with them. (Def. SOMF ¶20.)

Gurvey attempted to deescalate the situation and told the Officers that

he was not a threat. (Def. SOMF ¶24.) Further, he stated that he had no

weapons and was unarmed, that there was no danger, that he was “not

suicidal,” and that he was “not going to hurt [him]self or anybody else.” (DE 32-

4, Ex. C, Deposition of Plaintiff Harold Gurvey, T66:25-67:04.) Gurvey also

demanded to know who made the call to the Police Department. (Def. SOMF

¶24.) The conversation lasted approximately fifteen minutes. (Def. SOMF ¶25.)

Lieutenant Romito was of the opinion that Gurvey needed to have a

psychological evaluation, based on Dr. Marino’s initial phone call to the Police

Department and the Officers’ observation of Gurvey’s behavior. (Def. SOMF

¶26; Def. Opp at 20.) Accordingly, the Police Department called an ambulance

to Gurvey’s home. (Pl. SOMF ¶ 17.)

The Officers told Gurvey that he could either go to the state psychiatric

facility or to Mountainside Hospital for psychiatric examination. (Def. SOMF

¶27.) Gurvey opted for Mountainside Hospital. (Def. SOMF ¶29.) During the

encounter, the Officers never threatened, touched, or handcuffed Gurvey, or

placed Gurvey in a police squad car. (Def. SOMF ¶28.) The Officers did,

however, require that Gurvey be transported to Mountainside Hospital by

ambulance for his psychiatric examination. (Pl. SOMF ¶ 18.)

Although the Officers escorted Gurvey to the ambulance, they did not

ride with him to Mountainside Hospital. (Def. SOMF ¶31; Pl. SOMF ¶ 19.)

Gurvey was evaluated at the hospital for a few hours and then discharged.

(Def. SOMF ¶33.) None of the Officers remained at Mountainside Hospital or

met Gurvey upon his discharge. (Pl. SOMF ¶20.)

The Police Department filed an incident report on the same day as the

incident, August 31, 2018 (the “Incident Report”). (DE 32-4, Ex. E; DE 35-6,

Ex. 3.) The Incident Report was authored by Officer Lumpkin and reviewed by

Captain Dul and Lieutenant Romito. (DE 32-4, Ex. E; DE 35-6, Ex. 3.) The

Incident Report stated, among other things, that “[i]t should be noted that Mr.

Gurvey has a history of psychological problems.” (Def. SOMF ¶40; DE 32-4, Ex.

E; DE 35-6, Ex. 3.)

Gurvey and his wife filed separate internal affairs complaints stemming

from their encounter with the Officers. (Def. SOMF ¶¶ 36-37.) The Police

Department’s Office of Professional Standards conducted an investigation that

exonerated the Officers. (Def. SOMF ¶¶ 36-37; Pl. SOMF ¶24.) Further, the

Essex County Prosecutor’s Office investigated Mr. and Ms. Gurvey’s claims and

similarly exonerated the Officers. (Def. SOMF ¶¶ 38-39.)

B. Procedural History

Gurvey filed his complaint on August 30, 2019 against Montclair, the

Police Department, and the Officers. This pro se Complaint appears to be

bringing the following claims:

• Pursuant to Section 1983: (1) unreasonable search and seizure; (2)

Monell liability against Montclair; and (3) conspiracy to violate

Gurvey’s Fourth Amendment rights.6

• Pursuant to New Jersey state tort law: (1) defamation;7 (2) false

arrest; and (3) false imprisonment.

6 Although the Complaint asserts that Montclair is liable on a failure to supervise

and train theory, Gurvey’s cross-motion appears to argue that the alleged

constitutional violation stemmed from an official municipal policy or an unofficial

custom. Defendants, in moving for summary judgment, focus solely on the “policy,

practice or custom” prong. Def. MSJ at 26. I do as well.

7 The Complaint cites 28 U.S.C. § 4101, which is a provision of the Securing the

Protection of our Enduring and Established Constitutional Heritage Act (“SPEECH

Act”), 28 U.S.C. §§ 4101 et seq, which was enacted “to prohibit recognition and

enforcement of foreign defamation judgments and certain foreign judgments against

the providers of interactive computer services.” Securing the Protection of our

Enduring and Established Constitutional Heritage Act, Pub. L. No. 111-223, 124 Stat.

2380. While the statutory provision cited by Gurvey provides a definition of

defamation, “[d]efamation is not a federal statutory cause of action.” Rovetto v.

Dublirer, No. 20CV2497JMVMF, 2020 WL 7022667, at *9 (D.N.J. Nov. 30, 2020) (citing

Kaul v. Christie, No. 16-2364, 2017 WL 2953680, *20 (D.N.J. June 30, 2017).

Gurvey’s briefing implies that he intended to assert a New Jersey common-law

defamation claim. Considering Gurvey’s pro se status, and noting that Defendants

themselves have treated Gurvey’s defamation claim as one under New Jersey common

law, I will construe the claim as a state law defamation claim.

• Pursuant to New Jersey criminal law: (1) obstruction of justice; (2)

false reporting; and (3) tampering with public records.

(See Compl. ¶¶ 1, 15.)

The Defendants filed their answer on October 10, 2019. (DE 4.) The parties

then conducted fact discovery.

Defendants’ have filed a motion for summary judgment and motion to bar

Plaintiff’s expert reports and testimony. (DE 32-1) Gurvey cross-moves for

summary judgment against the Defendants. (DE 33-2) The motions are fully

briefed and ripe for decision.

II. LEGAL STANDARD — MOTION FOR SUMMARY JUDGMENT

Federal Rule of Civil Procedure 56(a) provides that summary judgment

should be granted “if the movant shows that there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law.”

See Kreschollek v. S. Stevedoring Co., 223 F.3d 202, 204 (3d Cir. 2000);

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A court deciding a

motion for summary judgment must construe all facts and inferences in the

light most favorable to the nonmoving party. See Boyle v. Cnty. of Allegheny

Pennsylvania, 139 F.3d 386, 393 (3d Cir. 1998) (citing Peters v. Delaware River

Port Auth. of Pa. & N.J., 16 F.3d 1346, 1349 (3d Cir. 1994)). The moving party

bears the burden of establishing that no genuine issue of material fact

remains. See Celotex, 477 U.S. at 322-23. “[W]ith respect to an issue on which

the nonmoving party bears the burden of proof … the burden on the moving

party may be discharged by ‘showing’ — that is, pointing out to the district

court — that there is an absence of evidence to support the nonmoving party’s

case.” Id. at 325.

Once the moving party has met this threshold burden, the non-moving

party “must do more than simply show that there is some metaphysical doubt

as to material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475

U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). The opposing party

must present actual evidence that creates a genuine issue as to a material fact

for trial. Anderson, 477 U.S. at 248; see also Fed. R. Civ. P. 56(c) (setting forth

types of evidence on which nonmoving party must rely to support its assertion

that genuine issues of material fact exist).

Unsupported allegations, subjective beliefs, or argument alone, however,

cannot forestall summary judgment. See Lujan v. Nat’l Wildlife Fed’n, 497 U.S.

871, 888, 111 L. Ed. 2d 695, 110 S. Ct. 3177 (1988) (nonmoving party may not

successfully oppose summary judgment motion by simply replacing

“conclusory allegations of the complaint or answer with conclusory allegations

of an affidavit.”); see also Gleason v. Norwest Mortg., Inc., 243 F.3d 130, 138

(3d Cir. 2001) (“A nonmoving party has created a genuine issue of material fact

if it has provided sufficient evidence to allow a jury to find in its favor at trial.”).

Thus, if the nonmoving party fails “to make a showing sufficient to establish

the existence of an element essential to that party’s case, and on which that

party will bear the burden of proof at trial . . . there can be ‘no genuine issue of

material fact,’ since a complete failure of proof concerning an essential element

of the nonmoving party’s case necessarily renders all other facts immaterial.”

Katz v. Aetna Cas. & Sur. Co., 972 F.2d 53, 55 (3d Cir. 1992) (quoting Celotex,

477 U.S. at 322-23).

Moreover, the “mere existence of some alleged factual dispute between

the parties will not defeat an otherwise properly supported motion for summary

judgment; the requirement is that there be no genuine issue of material fact.”

Anderson, 477 U.S. at 247-48. A fact is only “material” for purposes of a

summary judgment motion if a dispute over that fact “might affect the outcome

of the suit under the governing law.” Id. at 248. A dispute about a material fact

is “genuine” if “the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.” Id.

III. DISCUSSION

A. Section 1983 Claim (Count 1)

Gurvey asserts claims under Section 1983,8 including unreasonable

search and seizure, civil conspiracy, and a Monell claim against Montclair. Both

Gurvey and the Defendants move for summary judgment on all Section 1983

claims. I grant in part and deny in part the Defendants’ motion, and deny

Gurvey’s motion.

1. Fourth Amendment

Gurvey alleges that the Officers’ entry into his home “without a warrant,

probable cause, reasonable investigation or exigent circumstances” violated his

Fourth Amendment protection against unreasonable searches and seizures.

(Compl. ¶ 89.) Defendants contend that the Officers’ warrantless entry did not

violate the Constitution because there were exigent circumstances, and that,

assuming arguendo that there was a constitutional violation, the Officers are

nevertheless entitled to qualified immunity. (Def. MSJ at 11-12, 26-29; Def.

Opp. at 2-8; 17-18.) The key issue, sometimes obscured, is whether the

officers, when at the door of the house, had reason to believe there was a

danger so imminent that they could not apply for a warrant, even by telephone.

I find that there are factual disputes barring summary judgment for either side.

“The doctrine of qualified immunity insulates government officials who

are performing discretionary functions ‘from liability for civil damages insofar

as their conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.’” James v. City of

Wilkes-Barre, 700 F.3d 675, 679 (3d Cir. 2012) (quoting Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982)). The U.S. Supreme Court has established a two-part

analysis that governs whether an official is entitled to qualified immunity. See

Saucier v. Katz, 533 U.S. 194, 201 (2001). That two-part analysis inquires as to

8 42 U.S.C. § 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 ....

(1) whether the facts put forward by the plaintiff show a violation of a

constitutional right; and (2) whether the right at issue was clearly established

at the time of the alleged misconduct. Id.; James, 700 F.3d at 679. Even if

there are fact questions as to the first, constitutional-violation prong, the

district courts have been directed to decide the second prong, i.e., whether the

right was clearly established. See Spady v. Bethlehem Area Ch. Dist., 800 F.3d

633, 638 (3d Cir. 2015) (“[W]hile issues of fact may preclude a definitive finding

on the question of whether the plaintiff’s rights have been violated, the court

must nonetheless decide whether the right at issue was clearly established.”)

Because this is Defendants’ motion for summary judgment, the court considers

the facts in the light most favorable to Gurvey. Couden v. Duff, 446 F.3d 483,

492 (3d Cir. 2006).

i. Constitutional Violation

The first prong of the qualified immunity analysis asks whether a

constitutional violation occurred. Gurvey asserts that the Officers’ warrantless

entry into his home violated the Fourth Amendment. Defendants argue that

exigent circumstances necessitated the Officers’ warrantless entry. (Def. MSJ at

11.)9

The Fourth Amendment protects persons from “unreasonable searches

and seizures.” U.S. Const. amend. IV. “Warrantless searches and seizures

inside someone’s home … are presumptively unreasonable unless the

occupants consent or probable cause and exigent circumstances exist to justify

9 Gurvey cites the Supreme Court’s recent decisions in Caniglia v. Strom, 141 S.

Ct. 1596 (2021) and Lange v. California, 141 S. Ct. 2011 (2021), which do not directly

bear on the present controversy. In Caniglia, the Supreme Court held that law

enforcement’s community caretaking duties do not justify warrantless searches and

seizure in the home, but did not consider the exigent circumstances exception.

Caniglia, 141 at 1599-1600. Lange held that under the Fourth Amendment, the

pursuit of a fleeing misdemeanor suspect does not categorically justify a warrantless

entry into the home, but requires a case-by-case assessment of the exigency. Lange v.

California, 141 S. Ct. 2011, 2024 (2021). Nevertheless, this Court is guided by those

decisions to the extent they bear on the contours of the exigent circumstances

exception and the scope of the Fourth Amendment generally.

the intrusion.” United States v. Coles, 437 F.3d 361, 365-66 (3d Cir. 2006)

(citing Steagald v. United States, 451 U.S. 204, 211 (1981); Payton v. New York,

445 U.S. 573, 586 (1980)).

For warrantless search to be found constitutional, “there must be

probable cause and such other circumstances [as] would cause a reasonable

person to believe that the exigencies of the situation made that course

imperative.” United States v. Wolfe, 452 F. App’x 180, 183 (3d Cir. 2011)

(citations omitted). Under the Fourth Amendment, an action is reasonable “as

long as the circumstances, viewed objectively, justify [the] action.” Quinn v.

Cintron, 629 F. App'x 397, 399 (3d Cir. 2015) (emphasis added) (citing

Devenpeck v. Alford, 543 U.S. 146, 153 (2004) (internal quotation marks

omitted). The government bears the burden of demonstrating that exigent

circumstances justified a warrantless search, and that burden is ‘heavy.’”

United States v. Mallory, 765 F.3d 373, 384 (3d Cir. 2014).

Interpreting the facts, discussed below, in the light most favorable to

Gurvey, such an entry could be objectively unreasonable, making summary

judgment in Defendants’ favor inappropriate. See Bodine v. Warwick, 72 F.3d

393, 399 (3d Cir. 1995); Fairclough v. Joyce, No. CIV. 11-6222 FSH, 2015 WL

733388, at *1 n.3 (D.N.J. Feb. 20, 2015). Cases in this district ruling on

summary judgment motions have required that the exigent circumstances

warrant exception require (1) an actual indication of (2) imminent danger.

For example, in Estate of Vargas v. County of Hudson, 2020 WL 3481774

(D.N.J. June 26, 2020), Judge Vazquez denied defendants’ motion for summary

judgment as to the plaintiff’s Section 1983 and New Jersey Civil Rights Act

(“NJCRA”) claim, finding that a reasonable jury could conclude that exigent

circumstances did not exist. In that case, officers of the Bayonne Police

Department (“BPD”), in the course of conducting a welfare check, shot and

killed Mariano Vargas, who suffered from a schizoaffective disorder. Id. at 1.

The executor of the Vargas’s estate brought Section 1983, NJCRA, and other

common-law tort claims against Bayonne and officers of the BPD. District

Judge Vazquez found that a reasonable jury could conclude that exigent

circumstances did not exist, even where (1) a defendant police officer called

BPD to request a welfare check on Vargas; (2) the officer informed BPD that

Vargas “may not have been taking his medication and needed to go to the

hospital” and “could become violent when he was not taking his medications”;

and (3) another officer dispatched to Vargas’s home was independently aware

of Vargas’s mental illness from a prior incident in which the officer was injured.

Id. at *7. Judge Vazquez reasoned that while “possibilities were suggested” that

Vargas stopped taking his medication and could become violent, “there was no

indication that [Vargas] had in fact stopped taking his medication or was in fact

violent.” Id. at 7 (emphasis added). Moreover, because the “BPD officers did not

observe any behavior indicating that [Vargas] was a threat to himself or

others,” a reasonable jury could conclude that exigent circumstances were not

present due the “lack of any indication of imminent danger when the BPD

officers” performed a forced entry into Vargas’s residence. Id.10

Similarly, in Fairclough v. Joyce, No. CIV. 11-6222 FSH, 2015 WL

733388, at *1 n.3 (D.N.J. Feb. 20, 2015), Judge Hochberg denied the parties’

cross-motions for summary judgment. She found that there were disputed

factual issues as to both the existence of exigent circumstances and the

objective reasonableness of the officers’ warrantless entry into the plaintiff’s

home. Judge Hochberg acknowledged certain facts that could lead to an

objectively reasonable belief that the plaintiff would imminently harm himself:

(1) the plaintiff’s father called 911 asserting that plaintiff was going use a

handgun to kill himself; (2) the defendant police officer telephoned the

plaintiff’s father to confirm the 911 call and found the father “to be credible

and sober”; (3) at least two guns were registered in plaintiff’s name; and (4) the

on-scene officer witnessed the plaintiff “repeatedly and profanely yelling at the

officers on scene, to his wife, and to police personnel over the telephone,” while

refusing to cooperate with the on-scene police officer. Id. Judge Hochberg,

10 Impliedly, of course, a reasonable jury could also conclude the contrary.

however, noted plaintiffs’ citation of facts to the contrary: (1) they disputed the

police officers’ testimony of plaintiff’s profane shouting and arguing with the

officers and plaintiff’s wife; (2) they disputed that the defendant police officer

telephoned plaintiff’s father to confirm the 911 call; (3) they claimed that none

of the on-scene officers “reported seeing a gun in Plaintiff’s hands”; and (4) they

asserted that a defendant police officer spoke with plaintiff and plaintiff’s wife

several times, between the 911 call and the officer’s forced entry, and told other

on-scene officers “that Plaintiff was ‘not going to kill himself.’” Id. Therefore,

Judge Hochberg found that the disputed factual issues were material to a

finding of probable cause to enter the plaintiff’s home, precluding summary

judgment. Id.

By contrast, in Estate of Del Rosario v. Paterson Police Dep't, No. 14-CV-

5167, 2020 WL 373354 (D.N.J. Jan. 23, 2020), Judge Martini found that the

undisputed facts established that the defendant officer’s warrantless entry into

the bedroom of Saulo Del Rosario (“Rosario”) was objectively reasonable based

on exigent circumstances. Id. at 4. There, the Paterson Police Department was

dispatched to Rosario’s home on “‘a call of a barricaded Emotionally Disturbed

Person’ (“EDP”).” Rosario, who had a history of seizures and mental

disturbances, was killed during an altercation with the police. Id. at *1, *4. In

finding that it was objectively reasonable for the defendant officer to enter

Rosario’s bedroom without a warrant,11 Judge Martini noted that it was

undisputed that (1) the officer was informed that Del Rosario was “an EDP and

not responding”; (2) the officer witnessed other on-scene officers’ “failed

attempts to communicate with [Del Rosario]”; (3) the officer learned from

another on-scene officer that Del Rosario “had broken some glass and shrieked

or yelled inside the room”; and (4) the officer was informed by Del Rosario’s

11 The defendant officers entered Del Rosario’s residence with the consent of Del

Rosario’s children, who described Del Rosario’s medical condition to the responding

officers and requested the officers’ assistance in opening Del Rosario’s bedroom. Id. at

1. Judge Martini found, however, that “further consent (or some other justification)

was required to enter the bedroom due to [Del Rosario’s] obvious resistance to the

officers’ entry.” Id. at 3.

family “that he had a history of epilepsy, had not taken his medication, was

mentally ill, and that they had been unable to communicate with him since

3:00 AM.” Id. at 4. These facts—known by the defendant officer before ordering

the breach of the bedroom door—established probable cause for the officer to

believe that Del Rosario was in imminent danger. Id.

I apply the principles of those cases to the relevant disputed and

undisputed facts. First, common ground: The parties agree that Ms. Gurvey

spoke to Dr. Marino on the telephone on the subject of her husband; that Dr.

Marino called the Montclair police; that Police Department dispatch requested

that the Officers perform a wellness check on Gurvey, informing them that he

was suicidal and a potential harm to others; and that the Officers entered the

Gurvey home forcibly and without a warrant. Many of the relevant subsidiary

facts, however, are disputed.

I begin with the call to Dr. Marino. According to Ms. Gurvey, she

explained to Dr. Marino that Mr. Gurvey was going to the Geriatric Clinic to

“see someone for an emergent problem with his foot.” She told Dr. Marino that

she had called the same Geriatric Clinic “several months ago” to get Mr. Gurvey

cleared to be a part of the clinic’s research grant for people who “had been

given early retirement,” and was inquiring as to whether he had been approved

for the program and “whether they had assigned anyone to him.” That, Ms.

Gurvey testified, was the extent of her conversation with Dr. Marino. (DE 33-6,

Ex. 5 at T34:24-36:19.)

Dr. Marino’s recollection differed. She testified that, in that telephone

call, (1) Ms. Gurvey called her requesting help for her husband, and sounded

distressed and erratic; (2) Ms. Gurvey said that if she called 911, as Dr. Marino

advised, “then her husband would shoot somebody”; and (3) that Ms. Gurvey

told her “that her husband was going to kill himself.” (Def. SOMF ¶¶ 5-9.)

Dr. Marino testified that she then phoned the Montclair police, related

the substance of the call with Ms. Gurvey, and requested a wellness check.

Based on Marino’s account, police dispatch sent the Officers to the Gurvey

home.

What happened at the front door of the Gurvey home is subject to

dispute. Gurvey maintains that the Officers “were met at the front door by [his]

wife … who asked them to wait while she put on a shirt.” (Pl. SOMF ¶12.)

Indeed, the Supplemental Investigation Report reflects that Ms. Gurvey

requested that the police report reflect that: (1) the Officers “never advised her

of the reasons they needed to enter her residence and see her husband”: and

(2) Ms. Gurvey told the Officers “that she wished [to] get properly dressed.” (DE

32-4, Ex. E.) On the other hand, Defendants assert that the Officers

“encountered a locked screen door” and that Ms. Gurvey refused outright to

open the door and told the officers to go away. (Def. SOMF ¶14.)12 Not knowing

what was going on in the house, and mindful of the police dispatch based on

Dr. Marino’s account of her telephone call with Ms. Gurvey, the Officers

entered the front door forcibly, without a warrant.

The question becomes whether, for summary judgment purposes, the

disputes about the facts are “material” to the issue of whether there were

exigent circumstances justifying the warrantless entry to the Gurvey home.

According to Ms. Gurvey, her call to Dr. Marino was merely a request for

an appointment. Even in Marino’s account, the threat of violence was

expressed in terms of Mr. Gurvey’s likely reaction to a 911 summons to the

police, which of course is exactly the course that Marino pursued. Dr. Marino

did not represent that she physically observed or spoke to Mr. Gurvey, and

there is no indication that the Officers telephoned Ms. Gurvey for confirmation.

More fundamentally, a fact finder, if it accepted Ms. Gurvey’s benign version of

her telephone call with Dr. Marino, could doubt Marino’s account of what she

told the police, or could believe that the police misinterpreted Marino.

12 This particular factual clash has its anomalous aspects. Ms. Gurvey, who

claims a violation of Fourth Amendment rights, could be interpreted as saying that she

merely asked the Officers to wait while she donned her shirt, but that they impatiently

entered right away. The Officers, who deny any such Fourth Amendment violation,

insist that Ms. Gurvey adamantly refused to admit them, so they broke in anyway.

Now the police, it is true, may permissibly investigate based on an

account that later turns out to be inaccurate, and they knew of no reason that

Marino would want to misrepresent the facts. Nor did the police violate any

Fourth Amendment right by following what they took to be the prudent course

and knocking on the door of the home. Presumably in a majority of cases, the

homeowner would simply admit the police or otherwise confirm or deny the

emergency. But the homeowner is not obligated to do so, and where entry is

denied, the police must ordinarily obtain a warrant.

What the police found at the home, on either side’s version of the facts,

did not corroborate that there was an imminent threat. At the front door, they

were met by Ms. Gurvey—the very person who supposedly had expressed the

concerns leading to the police welfare check. She indicated that there was no

reason for the police to come in, and refused them entry. Far from being found

in the midst of some violent or dangerous situation, she was wrapped in a

towel as if dressing or emerging from the bath. There was no shouting or any

other indication of violent or even angry behavior.

The police argue, with some force, that they could not see what was

going on inside the house, and had reason for concern. Still, the issue is not

whether the police should have dropped the matter. The issue is whether the

facts at that point established that there was a threat so imminent that the

police could not take the time to apply for a warrant, in person or orally by

telephone. See N.J. Ct. R. 3:5-3(b) (telephonic warrant); State v. Johnson, 193

N.J. 528, 555–56 (N.J. 2008).

I reiterate that under their own version of the facts, which a jury could

also accept, the actions of the police may appear more reasonable. However,

whether that “‘now or never situation’ actually exists”—necessitating a

warrantless search of the home—depends on the unique facts on the ground.

Lange, 141 S. Ct. at 2018. On the current record, those facts are subject to

dispute and accordingly, a reasonable jury could find that a constitutional

violation did—or did not—occur when the officers entered Gurvey’s home

without pausing to obtain a warrant.13 On that issue, both sides’ summary

judgment motions must be denied.

ii. Qualified Immunity

The second prong of the qualified immunity analysis asks whether the

constitutional rule which was allegedly violated was “clearly established” at the

time of Officers’ conduct. The “clearly established” prong of the qualified

immunity analysis “shields officials from civil liability so long as their conduct

‘does not violate clearly established statutory or constitutional rights of which a

reasonable person should have known.’” James v. N.J. State Police, 957 F.3d

165, 169 (3d Cir. 2020) (quoting Mullenix v. Luna, 577 U.S. 7, 11 (2015)).

“Clearly established means that, at the time of the officer’s conduct, the law

was sufficiently clear that every reasonable official would understand that what

he is doing is unlawful.” Id. (quoting District of Columbia v. Wesby, 138 S. Ct.

577, 589 (2018)). The inquiry is “an ‘objective (albeit fact-specific) question,’

under which ‘[an officers’] subjective beliefs are irrelevant.’” Id. (quoting

Anderson v. Creighton, 483 U.S. 635, 641 (1987)).

While a case precisely on point is not required, “there must be sufficient

precedent at the time of action, factually similar to the plaintiff’s allegations, to

put defendant on notice that his or her conduct is constitutionally prohibited.”

McLaughlin v. Watson, 217 F.3d 566, 572 (3d Cir. 2001). “Such precedent must

either come either from the Supreme Court or a ‘robust consensus of cases of

persuasive authority in the Court of Appeals.’” In Re: J & S Properties, LLC, No.

13 While Defendants rely on Catlett v. New Jersey State Police, 2015 WL 9272877

at *3 (D.N.J. Dec. 18, 2016), for the proposition that exigent circumstances can exist

“from a single report or call to a police officer,” Def. Reply at 5, that case is

distinguishable from this one. In Catlett, although law enforcement was dispatched to

plaintiff’s home due to reports of the plaintiff being suicidal, the undisputed material

facts also establish that the plaintiff’s mother consented to the officer’s entry after the

officer explained “that he was responding to a report that Catlett was suicidal,” as well

as the plaintiff’s mother informing the officer after entry that the plaintiff was indeed

depressed. Catlett, 2015 WL 927877 at *1. If Plaintiff’s statement of the facts is to be

believed, the Officers did not listen to Ms. Gurvey’s version or afford her the

opportunity to grant or withhold consent to their entry.

16-3366, 2017 WL 4294065, at *4 (3d Cir. Sept. 28, 2017) (quoting Mammaro

v. New Jersey Div. of Child Prot. & Permanency, 814 F.3d 164, 169 (3d Cir.

2016).

In determining whether a constitutional right has been clearly

established, the Court must “define the right allegedly violated at the

appropriate level of specificity.” Sharp, 669 F.3d 144, 159 (3d Cir. 2012)

(citation omitted). Both the Supreme Court and the Third Circuit have

instructed courts “not to define clearly established law at a high level of

generality.” Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)). “Rather, the right at

issue must be framed ‘in a more particularized, and hence more relevant sense,

in light of the case’s specific context, not as a broad general proposition.’” Estep

v. Mackey, 639 F. App’x 870, 873 (3d Cir. 2016) (quoting Spady v. Bethlehem

Area Sch. Dist., 800 F.3d 633, 638 (3d Cir. 2015)).

The home, of course, enjoys the highest level of Fourth Amendment

protection against warrantless searches, as any officer would know. See Groh v.

Ramirez, 540 U.S. 551, 559, 124 S. Ct. 1284 (2004); Payton v. New York, 445

U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). More specifically,

however, there are exceptions to the warrant requirement, and one of those

exceptions applies where exigent circumstances make obtaining a warrant

impracticable. And one such exigency is imminent injury to an individual

within the home:

One exigency obviating the requirement of a warrant is the need to

assist persons who are seriously injured or threatened with such

injury. “ ‘The need to protect or preserve life or avoid serious injury

is justification for what would be otherwise illegal absent an

exigency or emergency.’ ” …. Accordingly, law enforcement officers

may enter a home without a warrant to render emergency

assistance to an injured occupant or to protect an occupant from

imminent injury.

Brigham City, Utah v. Stuart, 547 U.S. 398, 403–04, 126 S. Ct. 1943, 1947

(2006) (case law citations omitted). As noted above, the officers effecting a

warrantless entry must “reasonably … believe that someone is in imminent

danger.” Parkhurst, 77 F.3d at 711 (emphasis added). Those principles, at an

appropriate level of specificity, are clear and well established.

Defendants assert that “facts in the record support the officer’s

reasonable belief that exigent circumstances existed to enter the home,”

including evidence that: (1) dispatch informed the Officers that Gurvey was

suicidal and a potential harm to others; and (2) the Officers’ inability to observe

Gurvey’s status from outside his home. (Def. MSJ at 27-28.) Based on the

record, however, there remain disputes of fact as to whether the Officers

actually witnessed anything that suggested it was necessary to break in before

a warrant could be obtained. Instead, the evidence suggests that only the

request for a wellness check and the fact that “[Gurvey’s front] door was not yet

open,” provided the Officers with what they believed to be sufficient

justification to enter Gurvey’s home. (DSOMF ¶ 17.)14

In addition, the Defendants do not offer any evidence as to how long it

would have taken to obtain a warrant. In New Jersey, an oral warrant may be

obtained by telephone if the situation is exigent. See N.J. Ct. R. 3:5-3(b); State

v. Johnson, 193 N.J. 528, 555–56, 940 A.2d 1185, 1200 (2008). There is no

indication in the record that this alternative was tried, or that it could not have

been tried.

On at least one version of the facts, there was no sufficient indication of

imminent danger precluding an application for a warrant. It should have been

14 Although the Incident Report states that the Officers informed Ms. Gurvey of

the reason for the wellness check and that Ms. Gurvey “appeared to be highly agitated

and refused to open the front door,” Ms. Gurvey’s deposition testimony contradicts

this. Ms. Gurvey testified that: (1) the Officers “did not explain to [her] why they were

there when they came to the door”; (2) the Officers informed her that they “had to

come in,” to which Ms. Gurvey asked the Officers why they were there and whether

they had a warrant; and (3) in response to Ms. Gurvey asking the Officers to wait while

she “put a jacket on or a shirt to cover [her] towel,” the Officers refused, stated they

“[w]e’re coming in,” and proceeded to break the doors down. DE 33-6 Ex. 5, Deposition

of Amy Gurvey, 41:06-44:06. The Court, it need hardly be said, is wary of

bootstrapping a finding of exigent circumstances based on the homeowner’s refusal to

consent to entry.

clear to a reasonable officer that the forced entry that occurred could not have

been legally justified.

It is possible, even likely, that the Officers acted here from the best of

motives. Nevertheless, good motives are not sufficient, and facts material to the

merits of the claim and to qualified immunity remain disputed. Therefore, both

the Defendants’ and Gurvey’s summary judgment motions are denied as to the

unreasonable search and seizure claim.

2. Civil Conspiracy

Count 1 and Count 4 allege a conspiracy under 42 U.S.C. § 1985.15

Section 1985 is a federal statute providing civil remedies for a conspiracy

which deprives a person of civil rights. Gurvey does not specify whether he is

raising his conspiracy claim under 42 U.S.C. § 1985(2) or (3).

Section 1985(2) prohibits conspiracies to obstruct justice with the intent

to deny equal protection of the laws. A claim under § 1985(3) requires Gurvey

to demonstrate: “(1) a conspiracy; (2) motivated by a racial or class based

discriminatory animus designed to deprive, directly or indirectly, any person or

class of persons to equal protection of the laws; (3) an act of furtherance of the

conspiracy; and (4) injury to person or property or the deprivation of any right

or privilege of a citizen of the United States.” Mosca v. Cole, 384 F. Supp. 2d

757, 769 (D.N.J. 2005), aff’d, 217 F. App’x 158 (3d Cir. 2007) (citing Lake v.

Arnold, 112 F.3d 682, 685 (3d Cir. 1997). Both subsections, however, require

that Gurvey allege a race or class-based motive for the Defendants’ alleged

actions. See Davis v. Twp. of Hillside, 190 F.3d 167, 171 (3d Cir. 1999);

Jenkins v. Orange Police Dep't, No. CIV. 2:11-1555 KM, 2014 WL 4896383, at

15 Count 1 of the Complaint does not include any factual allegations concerning

Gurvey’s Section 1985 conspiracy claim. On the other hand, Count 4 asserts that the

Incident Report, authored by Officer Lumpkin, and reviewed by Lieutenant Romito and

Captain Dul, contains “demonstrably false entries” and omits “relevant facts

documenting actions by defendant officers.” Accordingly, Gurvey claims that the

Defendants conspired to “cover-up [their] violations of [Gurvey’s] Fourteenth

Amendment rights” in violation of 42 U.S.C. § 1985. (Compl. ¶ 102.)

*13 (D.N.J. Sept. 29, 2014); cf. Limehouse v. Delaware, 144 F. App'x 921, 923

(3d Cir. 2005).

Gurvey has not identified any facts from which a reasonable jury could

conclude that the Officers acted out of animus toward any protected class of

which he is a member. Indeed, Gurvey has not even alleged that he is a

member of such a protected class. Summary judgment is therefore granted in

favor of Defendants with respect to any Section 1985 conspiracy claim

contained in Counts 1 and 4.

3. Monell Claims Against Montclair

Finally, Gurvey asserts that there is municipal liability for his

constitutional § 1983 claims. For constitutional torts, municipalities and local

governments cannot be held liable on a respondeat superior theory. Municipal

liability for the acts of employees must be premised on the doctrine of Monell v.

Dep’t of Soc. Servs. Of City of New York, 436 U.S. 658 (1978). See Connick v.

Thompson, 563 U.S. 51, 60 (2011); Mulholland v. Gov’t Cnty. of Berks, Pa., 706

F.3d 227, 237 (3d Cir. 2013). The “official policy” requirement in Monell “was

intended to distinguish acts of the municipality from acts of employees of the

municipality, and thereby make clear that municipal liability is limited to

action for which the municipality is actually responsible”—acts, in other words,

which municipality “has officially sanctioned or ordered.” Pembaur v. City of

Cincinnati, 475 U.S. 469, 479-80 (1986) (emphasis in original).

To establish a prima facie case for Monell liability, Gurvey must “(i)

demonstrate the existence of an unlawful policy or custom; (ii) that resulted in

a deprivation of the rights, privileges, or immunities secured by the

Constitution or laws of the United States; and (iii) that the policy or custom

was the proximate cause of the alleged deprivation.” Maldonado v. City of

Passaic Bd. Of Educ., No. CV1712245ESJAD, 2020 WL 289649, at *7 (D.N.J.

Jan. 21, 2020) (citing Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990)). A

government policy is made when a “decisionmaker possess[ing] final authority

to establish municipal policy with respect to the action’ issues an official

proclamation, policy, or edict.” Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d

Cir. 1996) (quoting Bielevicz, 915 F.2d 845, 850 (3d Cir. 1990)). In contrast, “a

course of conduct is considered to be a ‘custom’ when, though not authorized

by law, ‘such practices of state officials [are] so permanent and well-settled’ as

to virtually constitute law.” Id.

Gurvey argues that Montclair has delegated policymaking powers to

Police Chief Todd M. Conforti, who in turn has delegated authority “to his

supervisors, including Captain Emil Dul, Captain Scott Buehler, and

Lieutenant Robert Romito, who have created ‘longstanding practices so

persistent and widespread as to fairly represent government policy or the force

of law.’” (Pl. MSJ at 26) (citing Harris Cty. v. Coats, 607 S.W.3d 359 (Tex. App.

2020), reconsideration en banc denied, No. 14-17-00732-CV, 2021 WL 524944

(Tex. App. Feb. 11, 2021)).

Defendants contend that the Monell claim must fail because Gurvey has

not identified “a specific policy, practice or custom that has been adopted

and/or implemented by an official policy-maker” of Montclair, and has not

established that Montclair’s conduct was “the moving force behind” his

injuries. (Def. MSJ at 26.) The Court agrees that Gurvey has not documented

an official municipal policy, such as a proclamation, policy, or edict that

caused his injuries.

An alternative route to Monell liability, as noted, is a de facto policy or

practice. Gurvey identifies such practices as follows:

• Not taking steps to verify the identify of callers requesting police action

so as to avoid “swatting” and other illegal actions.

• Not differentiating between calls to the “non-emergency” number … and

calls to the 9-1-1 system in radio communications, written reports and

common discussion creating a dangerous environment in which

escalation occurs [and] encourages overreaction.

• Allowing numerous units to “pile on” in addition to units dispatched to a

location unnecessarily and dangerously escalating the situation.

• Failure to properly edit official reports to ensure that proper attribution

is attached to any statement of alleged “fact” which has not been

determined to be true after due diligence and investigation.

• Failure to furnish filers of citizen complaints with responses to their

concerns sufficient to ensure that all points raised have been

investigated properly.

• Failure to supply field units with body warn camera to document

transactional events between members of the police force and members

of the public, resulting in ambiguities in subsequent reporting and

testimony.

(Pl. MSJ at 26-27.)

Most or all of the listed practices, however, appear to bear little or no

relation to the constitutional tort that is alleged. The caller (Dr. Marino) was

not misidentified and was not a “swatter”; there is no indication that anyone

overreacted to a call because it was placed to a 911 number; although Plaintiff

disagrees with certain facts in the police reports, the reports appear to

accurately reflect the officers’ version of what occurred; the incident is not

causally linked to any systematic failure to respond to citizen complaints; and

while body cameras often are useful in documenting interactions, their lack is

not a “policy” that is closely connected to the occurrence of this alleged

violation.

While Gurvey takes issue with the practices of the police during this

incident, Gurvey does not provide factual support for the proposition that this

incident was expressive of some more general policy. And finally, Gurvey fails

to cite any other comparable situations or incidents in which the alleged

practices resulted in injuries to other individuals.

For the reasons stated above, I find that no reasonable jury could find for

Gurvey on his policy or custom theory. I therefore grant Defendants’ summary

judgment motion and dismiss Gurvey’s Monell claim against Montclair.

B. State Law Tort Claims

As stated above, it appears that Mr. Gurvey intends to assert state-law

claims against the Officers for the torts of defamation, false arrest, and false

imprisonment.

1. Defamation

a. Notice of a defamation claim under the NJTCA

Under the New Jersey Tort Claims Act (“NJTCA”), a plaintiff in a tort

action against a public entity or public employee must provide notice of his

claim no later than ninety days after the claim has accrued. N.J. Stat. Ann. §

59:9-8 (“A claim relating to a cause of action for … injury or damage to person

or to property shall be presented … not later than the 90th day after accrual of

the cause of action.”) This notice requirement applies to all common law tort

actions, including actions for defamation. See Velez v. City of Jersey City, 180

N.J. 284, 296 (N.J. 2004) (finding “no justification” for the notion that NJTCA’s

notice requirement did not apply to all “common law tort claims” against public

employees liable under the Act); May v. Borough of Pine Hill, 755 F. Supp. 2d

623, 630 (D.N.J. 2010) (dismissing defamation claim for failure to comply with

NJTCA’s notice requirement). Where a plaintiff fails to provide such notice, the

suit will be dismissed. See Lassoff v. New Jersey, 414 F. Supp. 2d 483, 489

(D.N.J. 2006).

Indeed, “notice to the public entity is a necessary condition precedent to

file a complaint against the public entity. Doe v. Bd. of Educ. of Vocational-Tech.

Sch. Dist. in Cty. of Gloucester, No. CV 17-13793 (RBK/JS), 2019 WL 2183860,

at *3 (D.N.J. May 21, 2019) (citing Beauchamp v. Amedio, 751 A.2d 1047, 1053

(N.J. 2000)). Specifically, § 59:8-4 requires that the notice of claim include the

“date, place and other circumstances of the occurrence or transaction which

gave rise to the claim asserted;” and “[a] a general description of the injury

damage or loss incurred.” N.J. Stat. Ann. § 59:8-4. The NJTCA’s requirements

are designed to “allow the public entity time to review the claim and to

promptly investigate the facts and prepare a defense while the incident is fresh;

provide the entity with an opportunity to settle meritorious claims before a

lawsuit is filed; afford them an opportunity to correct the conditions which give

rise to the claim”; and “inform the State in advance as to the indebtedness or

liability that it may be expected to meet.” Velez, 850 at 1242 (N.J. 2004)

(quoting Beauchamp, 751 A.2d at 1053).

Here, Defendants are all public entities or public employees within the

meaning of the NJTCA. Gurvey’s notice of claim lists “[b]reaking and entering,

assault, false arrest, [and] kidnapping” as the wrongful acts committed by the

Defendants. (DE 33-8, Ex. 10, Gurvey Notice of Claim.) The notice of claim,

however, fails to (1) cite a potential defamation claim against the Defendants;

(2) cite the Incident Report’s allegedly defamatory statement that “Mr. Gurvey

has a history of psychological problems”; or (3) make any reference to the

Incident Report at all. (DE 33-8, Ex. 10.)

Gurvey has not provided Defendants sufficient notice of his defamation

claim pursuant to the NJTCA. Nor is a defamation claim so closely akin to, e.g.,

“breaking and entering,” that the Defendants should have gleaned such a claim

by implication.

Nor does the equitable doctrine of substantial compliance save the claim,

though this is a closer question. Under New Jersey law, the equitable doctrine

of substantial compliance prevents the barring of legitimate claims due to

technical defects. Meale v. City of Egg Harbor City, No. CIV. 14-5860 RMB/JS,

2015 WL 3866222, at *4 (D.N.J. June 23, 2015) (citations omitted). In that

connection, Gurvey points to his November 14, 2018 Citizen’s Complaint to the

Montclair Police Department’s Office of Professional Standards, in which he

referred to the Incident Report’s statement that “Mr. Gurvey has a history of

psychological problems.” (DE 33-6, Ex. 7, Gurvey Citizen Complaint).

At least one court in this district has held that the filing of an internal

affairs complaint does not constitute sufficient notice for purposes of the

NJTCA. In Platt v. Gonzalez, No. 09-6136, 2011 WL 2413264, at *3-4 (D.N.J.

June 9, 2011), the plaintiff asserted that he substantially complied with the

NJTCA by filing both an “Internal Affairs Complaint with the Atlantic City

Police Department” and two “Civilian Complaint Requests” with the Atlantic

City Municipal Court, seeking to charge police officers with various torts. Platt

held that the “Internal Affairs Complaint”—filed with the police department—

“could not be considered notice pursuant to the [NJ]TCA.” Id. Moreover, I note

that Mr. Gurvey’s Citizen’s Complaint does not (1) explicitly name the Montclair

Police Department or the Officers (2) provide an amount of civil damages

claimed, or (3) list tort claims that Gurvey intended to bring against the

Defendants. All three are requirements of a notice of claim. See generally

Ingram v. Twp. of Deptford, 911 F. Supp. 2d 289, 296 (D.N.J. 2012)

The Defendants have therefore been deprived of the notice to which they

were entitled under New Jersey law. Summary judgment will be granted to the

Defendants, and the defamation claim will be dismissed on this basis.

b. Defamation (Count 3)

For the removal of doubt, however, I also consider the merits of the

defamation claim, and find them lacking.

Gurvey alleges defamation in that the Incident Report contains a false

statement of fact that was “made without attribution or sourcing, imparting to

it the ‘seal of approval’ of the Montclair Police.” (Pl. MSJ at 28. ) According to

Gurvey, the evidence establishes that the Police Department failed “to verify the

false claim,” evincing the Defendants’ reckless disregard for the truth. (Pl. MSJ

at 28.) Gurvey also asserts that the Incident Report constitutes “defamation per

se” for which damages are presumed. (Pl. MSJ at 28-29.)

Defendants move for summary judgment, asserting that the Incident

Report falls under an absolute privilege. (Def. MSJ at 20.) Moreover,

Defendants argue that the Gurvey “has failed to establish an actual injury,”

citing Gurvey’s admission in his deposition that “no injury resulted from [the]

alleged defamation.” (Def. MSJ. at 20-21.) Finally, Defendants assert that the

record does not demonstrate that: (1) the Defendants knew that the allegedly

defamatory statement “was false and that it defamed plaintiff”; or (2) that the

Defendants “acted with reckless disregard for the statement’s truth or falsity as

required to prove defamation.” (Def. MSJ at 21.)

Under New Jersey law, to state a claim for defamation, Gurvey must

establish that Defendants (1) made a false and defamatory statement

concerning the plaintiff; (2) communicated the statement to a third party; and

(3) had a sufficient degree of fault. Mangan v. Corp. Synergies Grp., Inc., 834 F.

Supp. 2d 199, 204 (D.N.J. 2011). Whether a statement is false and defamatory

requires an analysis of “(1) the content, (2) verifiability, and (3) the context of

the challenged statement.” Leang v. Jersey City Bd. Of Educ., 198 N.J. 557, 585

(N.J. 2009). Factual statements are those capable of verification, i.e., subject to

proof of truth or falsity in relation to external realities; pure opinion statements

are not capable of such verification because they reflect only one’s state of

mind. See Ward v. Zelikovsky, 643 .2S 972, 979 (N.J. 1994). Statements that

are substantially true are not defamatory. Myers v. Atl. Health Sys., No. CV 13-

4712, 2017 WL 253846, at *8 (D.N.J. Jan. 20, 2017) (citing Taylor v. Amcor

Flexibles Inc., 669 F. Supp. 2d 501, 513 (D.N.J. 2009). Where the victim is a

private figure, defamation generally requires only a showing of negligence. See

New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964); Costello v. Ocean

Cnty. Observer, 643 A.2d 1012, 1021 (N.J. 1994).16

i. Police Department Incident Report

The Incident Report, authored by Officer Lumpkin, and reviewed by

Lieutenant Romito and Captain Dul, includes an allegedly false statement that,

“It should be noticed that Mr. Gurvey has a history of psychological problems.”

(Compl. ¶94; DE 33-6, Ex. 3.)

The statement that “Mr. Gurvey has a history of psychological problems”

is clearly susceptible of a defamatory meaning. Whether Gurvey has a history

of “psychological problems” is a factual, falsifiable proposition. Gurvey submits

16 This is not to be confused with the higher threshold of actual malice that is

required in relation to a public figure. Id. The existence of a qualified privilege,

however, may raise the required mental state to actual malice, even with respect to a

nonpublic figure. See infra.

in his motion for summary judgment that he “was never evaluated for

psychological problems until January 12, 2021,” when he was diagnosed with

post-traumatic stress disorder triggered by the Police Department wellness

check. (Pl. MSJ at 28.) Again, the Defendants have their own story to tell, in

which Ms. Gurvey sought psychological help for her husband and stated that

he would become violent if the police were to perform a wellness check, which

would tend to indicate some sort of mental condition. This, however, is

summary judgment, and I interpret the facts as Gurvey states them.

Nevertheless, Gurvey’s defamation claim fails on grounds of qualified

privilege.17 “New Jersey courts ‘have long recognized the existence of a qualified

privilege that confers immunity upon a public official for defamation uttered in

relation to matters committed by law to [his or her] control or supervision.’”18

That immunity is lost only if “the defamation is made with actual malice in the

New York Times v. Sullivan sense: ‘with knowledge that it was false or with

reckless disregard of whether it was false or not.’” Nurke v. Deiner, 97 N.J. 465,

475 (1984) (internal citations omitted). Assuming arguendo that Gurvey

satisfied the basic elements of a defamation claim, he has still failed to

demonstrate a genuine issue of fact as to whether Officer Lumpkin authored

the statement in the Incident Report with actual malice.

17 The statements are not, however, subject to the absolute privilege, which

applies only to a statement must be made “in the course” of a judicial proceeding, and

notably, does not “cover publications made before commencement of the judicial

proceeding.” Dijkstra v. Westerink, 168 N.J. Super. 128, 134, 135-36 (N.J. App. Div.

1979); see also Frost v. Cty. of Monmouth, No. 3:17-CV-4395-BRM-DEA, 2018 WL

1469055, at *5 (D.N.J. Mar. 26, 2018). The Incident Report was authored in

connection with a wellness check, and Gurvey was never charged or subjected to any

related judicial proceedings.

18 Andros v. Gross, No. CIV. 03-1775 (JBS), 2005 WL 3500058, at *9 n.19 (D.N.J.

Dec. 21, 2005), aff’d in part, 294 Fed. App’x 731 (3d Cir. 2008) (citing Brayshaw v.

Gelber, 232 N.J. Super 99, 112 (App. Div. 1989); see also N.J. Stat. Ann. § 59:3-10 (“A

public employee acting in the scope of his employment is not liable for injury caused

by his misrepresentation.”); cf. Hornberger v. Am. Broad. Companies, Inc., 351 N.J.

Super. 577, 597, 799 A.2d 566, 578 (App. Div. 2002) (noting that police officers are

public officials for purpose of actual malice requirement articulated in New York Times

Co. v. Sullivan, 376 U.S. 254 (1964) (citing Costello v. Ocean Cty.

Observer, 136 N.J. 594, 613, 643 A.2d 1012 (1994)).

The actual malice standard applies here because the statement was

made in connection with Officer Lumpkin’s documentation of the wellness

check, pursuant to his duty as a police officer. That surely is a matter

“committed by law to [Lumpkin’s] control or supervision.” Andros, 2005 WL

3500058, at *9 n.19; N.J. Stat. Ann. § 59:3-10.

In his motion for summary judgment, Gurvey submits that: (1) the

“statement was entered into the official record by the Montclair Police

Department without any evidence to support its false claim”; and (2) there is no

evidence “that the Montclair Police Department made any attempt to verify the

false claim demonstrating a reckless disregard for the truth on the part of the

Defendants.” (Pl. MSJ at 28.) Gurvey also submits, citing his Citizens

Complaint, that the “Defendants refused to correct or amend the language as

requested.” DE 33-6, Plfs. Mot. at 28 (citing DE 33-6, Ex. 7).

On this record, a reasonable jury could not find that Officer Lumpkin

acted with actual malice in authoring the Incident Report. “Actual malice”

exists when the defendant “has actual knowledge that the statement he is

making is false, or when he entertains serious doubts as to its truth.” Pitts, 337

N.J. Super at 339-40 (citing Burke v. Deiner, 97 N.J. 465, 469 (N.J. 1984); see

also Andros, 2005 WL 3500058, at *9.

It is true that the parties disagree as to what passed between the officers

and Ms. Gurvey. It is undisputed, however, that Officer Lumpkin was

dispatched to Gurvey’s home based on a mental health professional’s

telephoned report and request for a wellness check. (DE 32-4 Ex. D, E; Def.

SOMF ¶1.) According to Dr. Marino, Ms. Gurvey “sounded distressed, erratic,

and was calling to request help for her husband,” who, Ms. Gurvey claimed,

“was going to kill himself,” and “would shoot somebody” if she called 911. (Def.

SOMF ¶¶ 5-9.) This was no anonymous “swatting” call. No evidence is proffered

to suggest that the police actually doubted, or had reason to doubt, the

statements of Dr. Marino, who had no apparent motive to fabricate. Without (1)

“actual knowledge” of the falsity of the at-issue statement or (2) “serious doubt”

as to the statement’s veracity, Gurvey is unable to overcome the qualified

privilege. Therefore, summary judgment is granted to Officer Lumpkin with

respect to Gurvey’s defamation claim.

The Court also grants summary judgment in favor of Montclair (acting

through its Police Department) on the defamation claim. Under the NJTCA, a

public entity is protected from liability for the “acts or omissions of a public

employee constituting a crime, actual fraud, actual malice, or willful

misconduct.” N.J. Stat. Ann. § 59:2-10. Because Officer Lumpkin, the author of

the incident report, is an employee of the Montclair Police Department and

therefore an employee of a public entity, the Township cannot be liable for

Officer Lumpkin’s alleged defamation—which is an intentional tort. See D & D

Assocs., Inc. v. Bd. of Educ. of N. Plainfield, No. CIV.A. 03-1026MLC, 2007 WL

4554208, at *26 (D.N.J. Dec. 21, 2007), aff'd, 552 F. App'x 110 (3d Cir. 2014);

Russo v. Ryerson, No. 01-CV-4458 JLL, 2006 WL 477006, at *33 (D.N.J. Feb.

28, 2006), on reconsideration in part, No. 01-CV-4458 (JLL), 2006 WL 8458057

(D.N.J. Apr. 17, 2006).

C. False Arrest and False Imprisonment (Count 3)

In Count Three of his Complaint, Gurvey asserts a tort claim of false

imprisonment. He alleges that he “was forcibly taken to Mountainside Hospital

by defendants, who knowingly retained ‘another unlawfully so as to interfere

substantially with his liberty.” (Compl. ¶¶ 99–100.)

Under New Jersey law, false arrest and false imprisonment “are different

names for the same tort.” Price v. Phillips, 218 A.2d 167, 169 (N.J. Super. Ct.

App. Div. 1966). A plaintiff must establish “(1) an arrest or detention of the

person against his will; (2) done without proper legal authority or ‘legal

justification.’” Ramirez v. United States, 998 F. Supp. 425, 434 (D.N.J. 1998).

The quintessential “legal justification,” of course, is probable cause to arrest,

but there are others. Id.

N.J. Stat. Ann. § 30:4-27.6(a) permits a “law enforcement officer to take

custody of a person and take that person immediately and directly to a

screening service if, on the basis of a personal observation, the law

enforcement officer has reasonable cause to believe that the person is in need

of involuntary commitment to treatment.” Id.; see also Leenstra v. Then, No.

CIV.A. 10-5909 JLL, 2013 WL 663313, at *5 (D.N.J. Feb. 21, 2013). In this

context, reasonable cause and probable cause appear to be interchangeable

concepts: “[P]robable cause may exist if it is shown that defendants had

reasonable cause to believe that plaintiff was in need of involuntary

commitment to treatment.” Kleinberg v. Clements, No. CIV.A. 09-4924 NLH,

2012 WL 1019290, at *7 (D.N.J. Mar. 23, 2012).

Defendants attempt to cut off such a claim at the threshold, contending

that “there is nothing in the record to suggest that Plaintiff was formally

arrested or restricted to a degree associated with a formal arrest.” (Def. MSJ at

14.) I disagree. To begin with, Gurvey testified that he specifically asked

Lieutenant Romito whether he was “under arrest,” to which Romito allegedly

replied in the affirmative. (DE 33-6, Ex. 7; DE 32-4, Ex. C, Deposition of

Plaintiff Harold Gurvey, T71:15-16). Ms. Gurvey also testified in her deposition

that she asked the officers if Plaintiff was under arrest to which they

repeatedly: (1) answered “yes”; and (2) refused to answer why. (DE 33-6, Ex. 5,

49:01-06; 49:01-06, 49:13-20; 49:22-50:02; 52:10-15.) Of course, he was not

accused of any crime. It is undisputed, however, that the police exercised their

authority, forcibly entered the home, and compelled Gurvey to report for a

psychiatric evaluation—either at the state facility or at Mountainside

Hospital—against his wishes. (DE 2-4, Ex. C, T70:25-71:07; Def. SOMF ¶27.)

That is enough to trigger the reasonable cause requirement.

Genuine issues of material fact preclude a determination of whether the

Officers had reasonable cause to send Gurvey to Mountainside Hospital. (Def.

MSJ at 16-17.)19 First, because there are factual disputes relating to “the

19 Defendants mistakenly cite N.J. Stat. Ann. § 30:4-27.4 as the statutory

authority empowering the Officers to require Gurvey to undergo a psychiatric

evaluation. That particular section merely relates to the designation of mental health

agencies or facilities as a “screening service” under New Jersey law. The correct

statutory authority would be N.J. Stat. Ann. § 30:4-27.6, which empowers a law

events leading to the warrantless entry which would weigh upon the

reasonableness of defendants’ belief” that Gurvey needed involuntary

screening, the issue of reasonable cause should be submitted to the jury.

Kleinberg v. Clements, No. CIV.A. 09-4924 NLH, 2012 WL 1019290, at *7

(D.N.J. Mar. 23, 2012) (citing Roth v. Golden Nugget Casino/Hotel, Inc., 576 F.

Supp. 262, 268 (D.N.J. 1983)). Second, viewing the encounter in Gurvey’s

bedroom in the light most favorable to Gurvey, there is not enough support to

justify granting Defendants’ summary judgment motion.

Defendants assert that they had probable cause to detain Gurvey for

purposes of a psychiatric evaluation based on Dr. Marino’s phone call to the

Police Department and the fact that Gurvey was “clearly agitated and

threatening to call other law enforcement officers.” (Def. MSJ at 16.) This omits

key context, however, that the Officers first encountered Gurvey when he just

left the shower (clad only a towel) and was on a phone call with his doctor’s

office. (DE 22-4, Ex. C, T39:16-39:23). Gurvey initially asked “what the hell”

the Officers were doing in his bedroom, evincing some understandable agitation

and surprise. Then, however, Gurvey attempted to deescalate the situation

when the Officers explained the purpose of their visit. (Def. SOMF ¶¶ 22-25.)

Defendants do not specifically identify any other statements or actions by

Gurvey suggesting that Gurvey was a danger to himself and others, or was

otherwise mentally unwell.

On this record, it is for the jury to decide whether the Officers were

justified or not justified in requiring a psychiatric evaluation pursuant to N.J.

enforcement officer to request a mental health screening for an individual, based on

reasonable cause.

For this reason, I reject the Defendants’ suggestion that Gurvey was not subject

to a “civil commitment” or that the Complaint does not assert a cause of action related

to his “civil commitment.” The allegations in the Complaint, Gurvey’s motion, and the

evidence submitted by both parties make it undoubtedly clear that the Officers forced

Gurvey to undergo a psychiatric evaluation, therefore implicating N.J. Stat. Ann. §

30:4-27.6.

Stat. Ann. § 30:4-27.6. Depending on how they find the facts, a reasonable jury

could go either way.

I must deny summary judgment in favor of Montclair with respect to the

false arrest and false imprisonment claim. It is true that a municipality cannot

be liable for “the acts or omissions of a public employee constituting a crime,

actual fraud, actual malice, or willful misconduct.” N.J. Stat. Ann. § 59:2-10.

Thus many intentional torts might be ruled out. See also Hoag v. Brown, 397

N.J. Super 34, 54 (N.J. App. Div. 2007). The tort of false arrest or

imprisonment, however, can be committed either negligently or intentionally.

An officer “need not act in bad faith or with intentional or willful disregard of a

person’s rights; rather, the officer may falsely imprison a person through mere

negligence.” Merman v. City of Camden, 824 F. Supp. 2d 581, 598 (D.N.J. 2010)

(citing Adams v. City of Camden, 461 F. Supp. 2d 263, 270 (D.N.J. 2006)); see

also Maurello v. U.S., 111 F. Supp. 2d 475, 482 n. (D.N.J. 2000) (“To allege a

cause of action for false imprisonment, it matters not whether the defendant

acted with malice or bad faith; a person will be liable for false imprisonment

even if he negligently believes that his confining of plaintiff is justified.”). If the

Officers are found by a jury to have committed false arrest or imprisonment

without willful misconduct, Montclair might be held liable. Therefore, the

Court cannot absolve Montclair of liability at the summary judgment stage.

Accordingly, both sides’ motions for summary judgment regarding

Gurvey’s claims for false arrest and imprisonment are denied.

D. Claims Under State Criminal Law

Count 4 of the Complaint asserts purported causes of action for

“Obstruction of Justice”, N.J. Stat. Ann. § 2C:29-1,20 “False Reporting,” N.J.

20 Titled “Obstructing administration of law or other governmental function” under

The New Jersey Code of Criminal Justice. Neither the Complaint nor Gurvey’s papers

cite a specific statute in support of his obstruction of justice claim. For purposes of

resolving this motion, I assume that Gurvey similarly pursues this cause of action

under New Jersey criminal code. N.J. Stat. Ann. § 2C:29-1.

Stat. Ann. § 2C:28-4,21 and “Tampering With Public Record,” N.J. Stat. Ann. §

2C:28-7. (Compl. ¶¶ 101-104.)22 Those are New Jersey criminal statutes that

do not provide a private right of action. See Jarrell v. Kaul, 223 N.J. 294, 307-

308 (N.J. 2015) (stating that “[i]n the absence of strong indicia of a contrary

[legislative] intent, we are compelled to conclude that [the Legislature] provided

precisely the remedies it considered appropriate”) (quotation marks and

ciations omitted); Coleman v. New Jersey Transit Headquarters, 846 F. App'x

167, 168 (3d Cir. 2021) (“We agree with the District Court’s conclusion that

Coleman failed to state a claim because the criminal statutes … relied upon do

not create a private right of action.”); Barthakur v. Olszyk, No. CV 16-1995-

BRM-DEA, 2017 WL 507228, at *3 (D.N.J. Feb. 7, 2017) (“When a statute is

silent on the question, New Jersey courts are “generally loath to imply a civil

remedy from a penal statute.”) (citation omitted).23 Accordingly, summary

judgment is granted in favor of Defendants with respect to Count 4.

E. Motion to Bar Plaintiff’s Expert Reports and Testimony

Defendants contend that Gurvey’s expert reports must be excluded as

“net opinions” and barred at trial. Specifically, the Defendants take issue with

21 Titled “False reports to law enforcement authorities” under The New Jersey

Code of Criminal Justice.

22 Titled “Tampering with public records or information” under The New Jersey

Code of Criminal Justice.

23 The Court takes note of Gurvey’s arguments with respect to Counts 3 and 4,

pertaining to the New Jersey Civil Rights Act (“NJCRA”), which provides a “private

cause of action against individuals who are acting under color of law.” Plfs. Mot. at 29-

30. It is unclear whether Gurvey means to argue that the NJCRA provides a private

cause of action for individuals to sue under New Jersey criminal statutes, or whether

Gurvey asserts separate constitutional and state-law tort claims under the NJCRA.

Either way, the fact remains that Gurvey did not assert claims under the NJCRA in his

complaint. It seems that Gurvey first asserted a constitutional violation with respect to

his false arrest claim in his opposition to Defendants’ motion for summary judgment,

while also stating that the false arrest claim sounds in tort (i.e., no longer citing to N.J.

Stat. Ann. § 2C:29-1, a criminal statute). Because the proper procedure for Gurvey to

assert a new claim is to amend the complaint in accordance with Fed. R. Civ. P. 15(a),

the Court will not consider these reformulations of the claims on summary judgment.

Heyman v. Citimortgage, Inc., No. 14-1680-KM-MAH, 2019 WL 2642655, at *19 (D.N.J.

June 27, 2019)

two expert reports. The first, from Stan V. Smith, Ph.D, is essentially a

damages opinion, in which Dr. Smith calculates “the value of certain losses”

because of the “falsified” Incident Report, including lost wages and employee

benefits and reduction in value of life. (DE 33-7, Ex. 4). The second, from R.

Paul McCauley, Ph.D, analyzes “the police operations on August 31, 2018,” and

offers various summary opinions related to the Police Department’s actions.

(DE 33-7, Ex. 16). Because the expert reports were not directly relevant to the

resolution of the cross-motions for summary judgment, I will deny the

Defendants’ request without prejudice. Defendants may reassert this argument

as a motion in limine nearer in time to trial, or at trial. They are reminded that

the admissibility of expert testimony in federal court is not governed by the

New Jersey “net opinion” rule, but by the Federal Rules of Evidence.

IV. Conclusion

For the reasons set forth above, I will grant in part and deny in part

Defendants’ motion for summary judgment, deny Defendants’ motion to bar

Plaintiff’s expert reports and testimony and deny Gurvey’s motion for summary

judgment.

Dated: March 31, 2022

/s/ Kevin McNulty

____________________________________

Kevin McNulty

United States District Judge