# MORRISON v. CITY OF JERSEY CITY

> District Court, D. New Jersey · September 26, 2024

URL: https://www.frixlaw.com/law-library/cases/10656788

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** September 26, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

CHERYL MORRISON,
Civil Action No. 19-20369 (JXN) (AME)
Plaintiff,
OPINION
v.

CITY OF JERSEY CITY, et al.

Defendants.

NEALS, District Judge:

This matter comes before the Court on Defendants Jersey City, New Jersey (“Jersey City”),
Jersey City Police Department (“JPD”), and Officer Arkaiusz Zylkiewicz’s (“Zylkiewicz”)
(collectively, the “Defendants”) motion for summary judgment pursuant to Fed. R. Civ. P. 56 and
L. Civ. R. 56.1. (ECF No. 75). Plaintiff Cheryl Morrison (“Plaintiff”) opposed (ECF No. 77)
(“Pl.’s Opp.”), and Defendants replied. (ECF No. 78) (the “Reply”). Jurisdiction and venue are
proper pursuant to 28 U.S.C. §§ 1331 and 1391, respectively. The Court has carefully considered
the parties’ submissions and decides this matter without oral argument under Fed. R. Civ. P. 78(b)
and L. Civ. R. 78.1(b). For the reasons set forth below, Defendants’ motion for summary judgment
(ECF No. 75) is GRANTED, and all remaining claims in Plaintiff’s Amended Complaint (ECF
No. 53-1) (the “Amended Complaint”) are DISMISSED with prejudice.
I. BACKGROUND AND PROCEDURAL HISTORY1

This action arises from a motor vehicle accident involving Plaintiff and Zylkiewicz outside
the South District Police Station (“South District”) in Jersey City, New Jersey. On March 24,
2018, Plaintiff, an “African American woman[,]” was “out with her sister-in-law [(Cora Jackson

1 For brevity, all citations to the parties’ Rule 56.1 statements incorporate the evidentiary citations contained therein.
Morrison) (“Jackson”)] at a bar in Jersey City.” (Defs.’ Statement of Undisputed Material Facts
(ECF No. 75-1) ¶ 16); Am. Compl. ¶ 1). Plaintiff had a glass of wine at the bar, and then drove
Jackson home sometime after 11:00 p.m. (Id. ¶¶ 18-21). Zylkiewicz, who was accompanied by
Officer George Noutsopoulos (“Noutsopoulos”), was driving to the South District to drop off

paperwork at the same time. (Zylkiewicz’s April 21, 2022, deposition transcript (ECF No. 75-12)
at T27:2-10).
As Plaintiff approached Wilkinson Avenue, Zylkiewicz backed his police vehicle out of a
parking spot, colliding with Plaintiff’s vehicle. (Plaintiff’s February 25, 2021, deposition
transcript (ECF No. 75-10) (“Pl.’s Dep.”) at T19:20- 25; Am. Compl. ¶ 5). Plaintiff testified that
she “got out of [her] car” to “look[] at [the] damage[]” and “got back in [her] car” after she saw
officers approaching. (Pl.’s Dep. at T21:20-24). She also alleges that Zylkiewicz “jumped out of
his vehicle and began screaming at Plaintiff asserting [that] she hit him.” (Am. Compl. ¶ 9).
Plaintiff alleges that while on the phone with Jackson, “as many as ten police officers were
at the scene[,]” who began “shouting and leaning on [P]laintiff’s” vehicle. (Pl.’s Dep. at T21:23-

25); (Am. Compl. ¶¶ 12-15). Jackson “heard the police officers screaming and heard” Plaintiff
“become extremely distressed and fearful.” (Am. Compl. ¶ 18). Jackson then “dr[o]ve to the
scene of the unfolding assault upon” Plaintiff, and “observed that a mob of officers” were “still
present and [] creating an intimidating and dangerous situation.” (Id. ¶¶ 19-20).
When questioned by officers, Plaintiff stated that she had “one glass of wine that night.”
(Pl.’s Dep. at T31:4-12); see also (Am. Compl. ¶ 21). Plaintiff was “ordered out of” her vehicle
to “submit to a battery of sobriety tests. . . .” (Am. Compl. ¶ 22). Plaintiff exited her vehicle, but
“refuse[d] to engage in sobriety tests for fear that they would be manipulated and
mischaracterized.” (Id. ¶¶ 23-24). Plaintiff testified that she did not participate in the sobriety test
because she “wasn’t intoxicated and [] didn’t need” to take the breathalyzer. (Pl.’s Dep. at T20:6-
14). Plaintiff was subsequently placed under arrest. (Id. at T20:14-17). Officers then drove
Plaintiff to the “Bureau of Criminal Investigation at the Municipal Courthouse” (“Criminal
Bureau”) and asked her to “conduct a breathalyzer[,]” which she did, resulting in a BAC of 0.06%.

(Id. T33:15-T34:1).
Plaintiff was issued traffic tickets for “driving while intoxicated, [] reckless driving[,] and
multiple other moving violations.” (Am. Compl. ¶ 37); (Pl.’s Dep. at T35:11-13). No police
officer “hit” or “str[uc]k” Plaintiff while in custody, and Plaintiff did not seek medical treatment.
(Pl.’s Dep. at T34:16-22; T37:23-T38:4). As part of a plea bargain, Plaintiff’s lawyer “pressed her
to plead guilty to the reckless charge in exchange for dismissal of the other charges.” (Am. Compl.
¶ 39); (Pl.’s Dep. at T36:1-7).
On October 15, 2019, Plaintiff filed a complaint in the Superior Court of New Jersey. (ECF
No. 1-1). On November 15, 2019, Defendants removed the action to this Court. (ECF No. 1). On
December 19, 2019, Defendants filed a motion to partially dismiss the complaint. (ECF No. 5).

Because Plaintiff did not oppose (see ECF No. 7), the Honorable Kevin McNulty, U.S.D.J. (Ret.)
granted the motion, dismissing with prejudice “Counts 4 (false arrest), 5 (false imprisonment), 7
(fraudulent concealment and destruction of evidence), 5 (assault and battery),2 9 (internal infliction
of emotional distress), 10 (bodily injury), and 11 (property damaged).” (ECF No. 9).
On July 13, 2021, Defendants filed a second partial motion to dismiss, seeking dismissal
of all claims against Jersey City and the JPD. (ECF No. 29). On March 29, 2022, Judge McNulty

2 Plaintiff’s Complaint identifies two separate “Fifth Cause of Action” headings. The first for False Imprisonment
appears at (Am Compl. ¶¶ 80-84), the second for Assault and Battery appears at (Am. Compl. ¶¶ 90-94).
granted the motion, dismissing the Monell3 claims against Jersey City and the JPD,4 and granted
Plaintiff leave to file an amended complaint. (ECF Nos. 42-43).
On April 28, 2022, Plaintiff filed a motion to file an amended complaint. (ECF No. 44).
On June 9, 2022, the Honorable André M. Espinosa, U.S.M.J., directed Plaintiff to file a proposed

amended complaint (see ECF No. 50), which she did on June 13, 2022. On August 12, 2022,
Magistrate Judge Espinosa granted in part and denied in part Plaintiff’s motion for leave to file the
Amended Complaint. (ECF No. 56). Specifically, the Court denied leave to amend claims against
Jersey City, but allowed the following Counts in part pursuant to 42 U.S.C. §§ 1983 and 1985
against Zylkiewicz: (i) violation of the Fourth Amendment’s guarantee to be secure in one’s person
from unreasonable searches and seizures (Count One); (ii) violation of the Fourteenth
Amendment’s due process guarantee (Count Two); (iii) violation of the Fourteenth Amendment’s
Equal Protection Clause (Count Three); (iv) violation of the Fourth Amendment’s bar against
excessive force (Count Four); and (v) civil conspiracy under 42 U.S.C. § 1985 and the New Jersey
Civil Rights Act, N.J. Stat. § 10:6-1 et seq. (Count Five) (ECF Nos. 53-1, 56).

On October 13, 2023, Defendants filed the instant summary judgment motion. (ECF No.
75). On November 7, 2023, Plaintiff filed opposition. On November 13, 2023, Defendants replied.
On November 29, 2023, this matter was reassigned to this Court. (ECF No. 79). On June 10,
2024, the Court held oral argument and, for the reasons set forth on the record, dismissed Counts
One, Four, and Five with prejudice; and reserved decision on Counts Two and Three. (ECF No.
82). See L. App. R. 3.1. This matter is now ripe for consideration.

3 In Monell v. Dep't of Soc. Servs., the United States Supreme Court established that government entities are “persons”
subject to liability under 42 U.S.C. § 1983 for constitutional rights violations but were not liable under the doctrine of
respondeat superior for their employees’ misconduct. 436 U.S. 658, 690-92 (1978).
4 The Court dismissed Plaintiff’s claims against the JPD because a “New Jersey police department is not a separate
legal entity, but a department of the municipality.” (ECF No. 42 at 7 n.5) (citations omitted).
II. LEGAL STANDARD

Summary judgment is appropriate when there “is no genuine dispute as to any material fact
and the movant is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(a). A factual
dispute is genuine “if there is a sufficient evidentiary basis on which a reasonable jury could find
for the non-moving party[;]” and “is material only if it might affect the outcome of the suit under
governing law.” Kaucher v. Cnty. of Bucks, 455 F.3d 418, 423 (3d Cir. 2006) (citation omitted).
The moving party bears the “initial responsibility” of demonstrating the “absence of a genuine
issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The nonmoving party
“must [then] counter with specific facts which demonstrate that there exists a genuine issue for
trial.” Orson, Inc. v. Miramax Film Corp., 79 F.3d 1358, 1366 (3d Cir. 1996) (citation omitted).
There can be “no genuine [dispute] as to any material fact” if a 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.” Celotex, 477 U.S. at 322.
“In considering a motion for summary judgment, a district court may not make credibility

determinations or engage in any weighing of the evidence. . . .” Marino v. Indus. Crating Co., 358
F.3d 241, 247 (3d Cir. 2004) (citation omitted). Rather, “[a]ll facts and inferences are construed
in the light most favorable to the non-moving party.” Boyle v. Cnty. of Allegheny, 139 F.3d 386,
393 (3d Cir. 1998) (citation omitted). And credibility determinations are the province of the
factfinder. Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).
Thus, the court’s role is “to determine whether there is a genuine [dispute] for trial.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
III. DISCUSSION

Plaintiff claims three “irrefutable data points” prove she “was the victim of a frameup.”
(Pl.’s Opp. at 65). First, “the damage to” the parties’ vehicles shows Zylkiewicz “rammed”
Plaintiff’s vehicle, placing the liability for the accident on to him. (Ibid.). Second, the “accident
analysis” proves that neither “vehicle was traveling at a high rate” of speed, which is consistent
with Plaintiff’s testimony that “she traveled at 25 mph, a slow rate” and contradicts Zylkiewicz’s
assertion that he “exercised all due care and that Plaintiff came at such a high rate of speed. . . .”
(Ibid.). And third, “Plaintiff’s blood alcohol level was .06, well under” the legal limit of .08.
(Ibid.). Plaintiff also claims that there is “circumstantial evidence” (i.e. Plaintiff’s “reputation for
sobriety and history of honesty, hard work, and compassion[,] and [Zylkiewicz’s] history of
dishonesty, of being at fault for motor vehicle accidents, and [] racist interactions with the public”)
to preclude summary judgment. (Ibid.). The Court addresses Plaintiff’s claims in turn.
A. The Unreasonable Seizure and Excessive Force Claims (Counts One and
Four)

1. Plaintiff’s Unreasonable Seizure Claims are Barred Because
Officers Had Probable Cause to Arrest Plaintiff

Defendants contend that because “there was probable cause to arrest [P]laintiff, any claims
under § 1983 for unlawful seizure or arrest must be dismissed.” (ECF No. 75-3) (“Def.’s Br.”).
The Court agrees.
The “Fourth Amendment protects the right of people to be secure in their persons against
unreasonable seizures.” Manuel v. City of Joliet, 580 U.S. 357, 364 (2017) (cleaned up). “A
person is considered seized whenever officials restrain [an individual’s] freedom of movement
such that he is not free to leave.” Id. at 364 (cleaned up). A plaintiff's claim for false imprisonment

5 The Court refers to the ECF page numbers in this Opinion.
in connection with an arrest while it may cover that brief subsequent detention, “is subject to the
same analysis as his arrest.” Cherkas v. White, No. 17-4498, 2018 WL 1991738, at *2 n.2 (E.D.
Pa. Apr. 27, 2018). To that end, claims under § 1983 “for false arrest, false imprisonment, and
malicious prosecution” require a plaintiff to “establish the absence of probable cause.” Id. at *2

(citations omitted).
“Probable cause is an absolute defense to” claims for “false arrest, false imprisonment,”
illegal search and seizure, and malicious prosecution. Herman v. City of Millville, 66 F. App’x
363, 365 n.3 (3d Cir. 2003) (cleaned up); see also Groman v. Twp. of Manalapan, 47 F.3d 628,
636 (3d Cir. 1995) (Probable cause analysis for false imprisonment and false arrest are the same).
Probable cause is determined by analyzing the “totality of the circumstances” in assessing the
events leading up to the arrest and viewing the facts “from the standpoint of an objectively
reasonable police officer.” Phillips v. Cullen, No. 9-1706, 2011 WL 689602, at *6 (D.N.J. Feb.
18, 2011) (cleaned up). The appropriate inquiry “is not whether the person arrested” in fact
“committed the offense but whether the arresting officer[] had probable cause to believe the person

committed the offense.” Groman, 47 F.3d at 634 (cleaned up) (emphasis added).
“[P]robable cause exists if, at the time of the arrest, the facts and circumstances within the
officers’ knowledge and of which they had reasonably trustworthy information were sufficient to
warrant a prudent [person] in believing the suspect had committed or was committing an offense.”
Herman, 66 F. App’x at 365-66 (cleaned up); see also Merkle v. Upper Dublin Sch. Dist., 211 F.3d
782, 788 (3d Cir. 2000) (District court “may conclude that probable cause exists as a matter of law
if the evidence, viewed most favorably to Plaintiff, reasonably would not support a contrary factual
finding, and may enter summary judgment accordingly.”) (cleaned up).
Here, the following facts are undisputed. Plaintiff and Zylkiewicz were involved in a motor
vehicle accident, and Plaintiff advised responding officers that she had one glass of wine before
leaving the bar and driving her vehicle. (Pl.’s Dep. at T19:14-16; T22:14-21; T23:5-15; T31:4-
12); see also (Am. Compl. ¶¶ 5, 7, 21). Plaintiff was “ordered out of” her vehicle to “submit to a
battery of sobriety tests. . . .” (Am. Compl. ¶ 22). Upon existing the vehicle, Plaintiff “refuse[d]

to engage in sobriety tests. . . .” (Id. ¶¶ 23-24). Plaintiff testified that she “wasn’t intoxicated and
[] didn’t need” to take the breathalyzer. (Pl.’s Dep. at T20:6-14). Officers then arrested Plaintiff.
(Id. at T20:14-17).
These facts, irrespective of who was ultimately at fault for the accident, provided officers
with probable cause to detain and arrest Plaintiff. Plaintiff’s own words, as well as her actions
show that she drove from a bar, had at least one glass of wine, and refused to engage in sobriety
testing. Consequently, the facts and circumstances within the officers’ knowledge at the time were
“reasonably trustworthy” to believe there was probable cause to arrest Plaintiff. Herman, 66 F.
App’x at 365-66. And because there was probable cause, Plaintiff’s claims under § 1983 for
unlawful seizure (Count One) are dismissed with prejudice.

2. Probable Cause Defeats Any Claim for Malicious Prosecution6
Plaintiff argues that the moving violations issued in connection with the accident lacked
probable cause. The Court disagrees.
To establish a claim for malicious prosecution, a plaintiff must in part demonstrate the
absence of probable cause and that defendants acted with malice. Trabal v. Wells Fargo Armored
Serv. Corp., 269 F.3d 243, 248 (3d Cir. 2001) (citation omitted). The plaintiff must also show that
she “suffered deprivation of liberty consistent with the concept of seizure as a consequence of a

6 Though Plaintiff does not formally allege malicious prosecution, she alleges that “in a continuation of the
mendacious and false narrative the defendants had sought to construct, plaintiff was charged with driving while
intoxicated, with reckless driving and multiple other moving violations.” (Am. Compl. ¶ 37). Because Plaintiff
indicates that her charges lacked probable cause, the Court addresses any claim for malicious prosecution.
legal proceeding.” Lozano v. New Jersey, 9 F.4th 239, 247 (3d Cir. 2021) (cleaned up). Malice is
“ill will in the sense of spite, lack of belief by the actor himself in the propriety of the prosecution,
or its use for an extraneous improper purpose.” Morales v. Busbee, 972 F. Supp. 254, 261 (D.N.J.
1997) (cleaned up). In considering probable cause in a malicious prosecution claim, courts analyze

whether the facts were such that a person of “ordinary prudence” believed “on reasonable grounds
the truth of the charge at the time it was made[.]” Id.; Lind v. Schmid, 67 N.J. 255, 263 (1975)
(citations omitted). Moreover, a defendant’s eventual acquittal does not mean probable cause did
not exist. Wright v. City of Philadelphia, 409 F.3d 595, 602 (3d Cir. 2005).
In carefully reviewing the record, Plaintiff informed officers that she had at least one glass
of wine prior to accident, she refused to take an on-site sobriety test, and was subsequently arrested
and transported to the Criminal Bureau. (Pl.’s Dep. at T20:14-17; T31:4-12); (Am. Compl. ¶¶ 21-
24). After submitting to a breathalyzer at the Criminal Bureau, officers learned Plaintiff had a
BAC of 0.06% on the night of the accident. (Pl.’s Dep. at T33:15-T34:1). Plaintiff was then issued
traffic tickets for “driving while intoxicated, [] reckless driving[,] and [] other moving violations.”

(Am. Compl. ¶ 37); (Pl.’s Dep. at T35:11-13). Given these facts, any claim for malicious
prosecution is dismissed with prejudice because officers had probable cause to charge Plaintiff.
The issuance of the traffic summonses satisfies the first element (defendant instituted
proceedings against Plaintiff) of a malicious prosecution claim. Trabal, 269 F.3d at 248. As to
the second and third elements (lack of probable cause and acted with legal malice) (see id. at 248),
Plaintiff contends that the summonses resulted from a “frame up,” thereby lacking probable cause
and an indication of Defendant’s malicious intent. As to the fourth element (proceedings
terminated in Plaintiff’s favor) (id. at 248), Plaintiff asserts that her driving while intoxicated
charge was dismissed pursuant to a plea agreement. Because Plaintiff pled guilty, she cannot make
out a malicious prosecution claim.
To satisfy the fourth element, the Third Circuit requires that the prior criminal proceeding
be disposed of in a way that reflects the accused’s innocence. Donahue v. Gavin, 280 F.3d 371,

383 (3d Cir. 2002) (cleaned up); see also Hector v. Watt, 235 F.3d 154, 156 (3d Cir. 2000) (Plaintiff
“claiming malicious prosecution must be innocent of the crime charged in the underlying
prosecution.”). In other words, “a malicious prosecution claim cannot be predicated on an
underlying criminal proceeding which terminated in a manner not indicative of the innocence of
the accused.” McGann v. Collingswood Police Dep't, No. 10-3458, 2012 WL 6568397, at *6
(D.N.J. Dec. 17, 2012) (cleaned up). Even “if the prosecutor drops the charges as part of a
compromise with the accused, the accused will fail the favorable termination prong necessary to
maintain a malicious prosecution claim under § 1983.” Id. at *7 (cleaned up).
The United States Supreme Court recently held in Thompson v. Clark that a “Fourth
Amendment claim under § 1983 for malicious prosecution does not require the plaintiff to show

that the criminal prosecution ended with some affirmative indication of innocence.” 596 U.S. 36,
49 (2022). And that a “plaintiff need only show that the criminal prosecution ended without a
conviction.” Id. at 49.7

7 The Court expounded on its rationale and stated:
The question of whether a criminal defendant was wrongly charged does not logically depend on
whether the prosecutor or court explained why the prosecution was dismissed. And the individual's
ability to seek redress for a wrongful prosecution cannot reasonably turn on the fortuity of whether
the prosecutor or court happened to explain why the charges were dismissed. In addition, requiring
the plaintiff to show that his prosecution ended with an affirmative indication of innocence would
paradoxically foreclose a § 1983 claim when the government's case was weaker and dismissed
without explanation before trial, but allow a claim when the government's evidence was substantial
enough to proceed to trial. That would make little sense. Finally, requiring a plaintiff to show that
his prosecution ended with an affirmative indication of innocence is not necessary to protect officers
from unwarranted civil suits—among other things, officers are still protected by the requirement
that the plaintiff show the absence of probable cause and by qualified immunity.

Thompson, 596 U.S. at 48-49.
Here, Plaintiff’s malicious prosecution claim, to the extent she asserts one, fails because
she pled guilty to reckless driving (compare Def.’s Br. at 23; Reply at 2), resulting in a conviction.
However, even assuming that the charge was initiated without probable cause, the proceeding did
not end in Plaintiff’s favor, thereby failing to meet the second prong to establish a malicious

prosecution claim. Under New Jersey law, the offense of driving while intoxicated encompasses:
(a) A person who operates a motor vehicle while under the influence
of intoxicating liquor, narcotic, hallucinogenic or habit-
producing drug, or operates a motor vehicle with a blood alcohol
concentration of 0.08 percent or more by weight of alcohol in
the defendant's blood. . . .”

N.J. Stat. Ann. § 39:4-50(a) (emphasis added).

The plain language of the statute provides that a BAC of 0.08 is not required to charge a
person with driving while intoxicated. Indeed, a person may be charged if he or she operates a
vehicle “while under the influence of intoxicating liquor” or “operates a motor vehicle with a blood
alcohol concentration of 0.08 percent or more.” Id.
Here, Plaintiff’s BAC of 0.06% established that she had been drinking prior to the accident.
The facts and circumstances, coupled with the statutory language, were “reasonably
trustworthy[,]” and provided probable cause for the DWI charge. Herman, 66 F. App’x at 365-
66; see also Merkle, 211 F.3d at 789. Accordingly, the existence of probable cause defeats any
claim for malicious prosecution.
3. There Was No Excessive Force in Arresting Plaintiff

Excessive force claims arise from the Fourth Amendment’s protection against
unreasonable seizures. Groman, 47 F.3d at 633 (citation omitted). “[T]he central question is
whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously
and sadistically to cause harm.” Brooks v. Kyler, 204 F.3d 102, 106 (3d Cir. 2000) (cleaned up).
“To prevail on a Fourth Amendment excessive-force claim, a plaintiff must show that a
seizure occurred and that it was unreasonable under the circumstances.” El v. City of Pittsburgh,
975 F.3d 327, 336 (3d Cir. 2020) (cleaned up). The Court then determines whether the use of
force was “objectively reasonable” considering the facts confronting the officer at the time,

including the “severity of the crime at issue, whether the suspect poses an immediate threat to the
safety of the officers or others, and whether he [or she] is actively resisting arrest or attempting to
evade arrest by flight.” Graham v. O’Connor, 490 U.S. 386, 396-97 (1989) (citations omitted).
“Appropriate consideration must be given to the circumstances of the police action, which
are often tense, uncertain, and rapidly evolving.” Lankford v. City of Clifton Police Dep't, 546 F.
Supp. 3d 296, 309 (D.N.J. 2021) (cleaned up). The reasonableness of the conduct is judged from
the perspective of a reasonable officer at the scene and not “with the 20/20 vision of hindsight.”
Graham, 490 U.S. at 396 (citation omitted). To that end, “[n]ot every push or shove, even if it
may later seem unnecessary in the peace of a judge’s chambers,” violates the Fourth Amendment
because “the right to make an arrest . . . necessarily carries with it the right to use some degree of

physical coercion . . . to effect it.” Id., 490 U.S. at 396 (citation omitted).
Here, Plaintiff ‘s excessive force claim relies on the language and behaviors of Zylkiewicz
and the other officers after the accident. Specifically, Plaintiff alleges that officers exercised
excessive force in “screaming at her[,]” “surround[ing]” her vehicle, pushing her “into the hard
plastic back seat of a squad car,” arresting her, and repeatedly administering a breathalyzer test on
her. (Am. Compl. ¶¶ 12, 15, 22-23, 25, 29, 33-34). This is insufficient.
The “use of language during an arrest has been held to be irrelevant to an excessive-force
claim.” Lankford, 546 F. Supp. 3d at 315 (quoting Thompson v. Howard, No. 9-1416, 2015 WL
5039395 at *8 (W.D. Pa. Aug. 26, 2015)) (“[M]erely adding verbal threats or racial epithets cannot
transform an otherwise non excessive use of force into an unconstitutional use of excessive force.”)
(cleaned up). The “issue in an excessive force claim is whether the force used was greater than
what was justified . . . whether an officer had ill motive does not alter the analysis of whether the
circumstances justified the amount of force used.” Lankford, 546 F. Supp. 3d at 315.

In viewing the facts in the light most favorable to Plaintiff, the record demonstrates an
obvious upsetting circumstance, particularly in taking place outside of a police station with ten or
more officers involved. However, this inappropriate and likely unwarranted behavior does not rise
to “constitutionally excessive” use of force. Accordingly, Count Four is dismissed with prejudice.
B. The Due Process and Equal Protection Claims (Counts Two and Three)

Any claim of excessive force, false arrest, and/or malicious prosecution, which relies on
the Fourteenth Amendment’s Due Process guarantee, is dismissed with prejudice because “when
government behavior is governed by a specific constitutional amendment,” like here, a “due
process analysis is inappropriate.” Berg. v. Cnty. of Alleghany, 219 F.3d. 261, 268 (3d. Cir. 2000).
Indeed, though “not all actions by police officers are governed by the Fourth Amendment,” the
“constitutionality of arrests by state officials is governed by the Fourth Amendment rather than [a]
due process analysis.” Id. at 268-69 (citations omitted). Thus, the Court moves to consider
Plaintiff’s claims under the Equal Protection clause.
The Equal Protection clause prohibits States from “deny[ing] to any person within its
jurisdiction the equal protection of the laws.” U.S. CONST. amend. XIV, § 1. “In reviewing an
Equal Protection claim, a court must first determine whether the alleged state action burdens a
fundamental constitutional right or targets a suspect class.” ASAH v. N.J. Dep’t of Educ., 330 F.
Supp. 3d 975, 1007 (D.N.J. 2018) (cleaned up). “If a classification neither burdens a fundamental
right nor targets a suspect class, [the Court] will uphold it so long as it bears a rational relation to
some legitimate end.” Connelly v. Steel Valley Sch. Dist., 706 F.3d 209, 213 (3d Cir. 2013)
(cleaned up). “However, a classification that trammels fundamental personal rights or is drawn
upon inherently suspect distinctions such as race, religion, or alienage ... must meet the strict
scrutiny standard, under which a law must be narrowly tailored to further a compelling government

interest.” ASAH, 330 F. Supp. 3d at 1007-08 (cleaned up).
“To establish a selective enforcement claim” under the Equal Protection clause, a plaintiff
must demonstrate that she was (1) “treated differently from other, similarly situated [persons] and
(2) “that this selective treatment was based on an unjustifiable standard, such as race, or religion,
or some other arbitrary factor or to prevent the exercise of a fundamental right.” Jewish Home of
E. Pa. v. Ctrs. for Medicare & Medicaid Servs., 693 F.3d 359, 363 (3d Cir. 2012) (cleaned up).
To be sure, the Equal Protection Clause bars “governmental [actors] from treating differently
persons who are alike in all relevant respects.” Nordlinger v. Hahn, 505 U.S. 1, 10 (1992) (citation
omitted).
Here, Plaintiff cannot demonstrate that any of Defendants’ alleged wrongful actions were

motivated by racial or discriminatory animus against an identifiable protected class. There is no
record evidence showing any action taking place because of Plaintiff’s race beyond the fact that
Plaintiff and Zylkiewicz are of different races. Indeed, this is not an instance where an officer
chose to pull over and/or engage with Plaintiff. Rather, Zylkiewicz was involved in an accident
with Plaintiff, and the parties were forced to engage with one another thereafter. Moreover, the
existence of probable cause for the seizure, arrest, and motor vehicle violations do not suggest
racial animus played a factor.8 In sum, there is no evidence of racial discrimination beyond

8 See also section III, A., 2, infra, as to the dismissal of any malicious prosecution claim based on the careless driving
charge to which Plaintiff pled guilty. Though Plaintiff does not specifically address the issue, the guilty plea similarly
negates any malicious prosecution claim based on any additional moving violations issued.
conclusory statements. Accordingly, Counts Two and Three are dismissed with prejudice.
C. The Civil Conspiracy Claim (Count Five)

To prove a defendant attempted to deprive plaintiff her rights or privileges, the facts must
establish that: (1) “two or more persons in any State . . . “conspire[d]”; (2) “for the purpose of
depriving, either directly or indirectly, any person or class of persons of the equal protection of the
laws, or of equal privileges and immunities under the laws”; (3) “one or more persons engaged”
in the conspiracy did or “cause[d] to be done, any act in furtherance of the object of the
conspiracy”; and (4) “another is injured in his person or property, or deprived of having and
exercising any right or privilege of a citizen of the United States. . . .” 42 U.S.C. § 1985(3).
“To prevail on a conspiracy claim under § 1983, a plaintiff must prove that persons acting
under color of state law reached an understanding to deprive him of his constitutional rights.”
Jutrowski v. Twp. of Riverdale, 904 F.3d 280, 293-94 (3d Cir. 2018) (cleaned up). This requires
evidence that State actors took a “concerted action” based on an “agreement” to deprive plaintiff
of his or her constitutional rights, and that there was an actual underlying constitutional violation

of the plaintiff’s rights. Id. at 295 (cleaned up). Because there is no evidence of an agreement,
concerted action, and no constitutional violation occurred, Count Five is dismissed with prejudice.
D. Zylkiewicz is Entitled to Qualified Immunity

Qualified immunity “shields government officials from suit and from liability if their
conduct does not violate clearly established statutory of constitutional rights of which a reasonable
person would have known.” Mack v. Yost, 63 F.4th 211, 221 (3d Cir. 2023) (cleaned up). In the
context of police officers, the Third Circuit recognizes that officers are permitted “to make
reasonable mistakes about what is lawful.” Jones v. City of Jersey City, 45 F. App’x. 196, 197 (3d
Cir. 2002) (citation omitted). To that end, an officer is “entitled to qualified immunity if there was
any reasonable basis to suppose there was probable cause.” Trafton v. City of Woodbury, 799 F.
Supp. 2d 417, 439 (D.N.J. 2011) (cleaned up). “Under Section 1983, even if probable cause does
not exist in fact, defendants may be entitled to . . . qualified immunity if they reasonably believed
[] probable cause existed.” Wildoner v. Borough of Ramsey, 162 N.J. 375, 385 (2000).

The Third Circuit requires district courts to conduct a “two-step inquiry to determine
whether a particular government official is entitled to summary judgment based on qualified
immunity.” Santini v. Fuentes, 795 F.3d 410, 417 (3d Cir. 2015). First, courts consider “if the
facts, taken in the light most favorable to the party asserting the injury, show the officer’s conduct
violated a constitutional right.” Lozano v. New Jersey, 9 F.4th at 245 (cleaned up). Second,
“whether the right was clearly established, because the contours of the right must be sufficiently
clear such that the unlawfulness of the action was apparent in light of pre-existing law[.]” Id. at
245 245 (cleaned up).
Here, the analysis stops at the first prong because there are no facts in dispute that suggest
Zylkiewicz violated Plaintiff’s constitutional rights. Moreover, as discussed infra, it was

reasonable for Zylkiewicz to believe that there was probable cause to arrest and charge Plaintiff.
Consequently, even if Zylkiewicz were mistaken, he would still be entitled qualified immunity.
IV. CONCLUSION
For the foregoing reasons, Defendants’ motion for summary judgment (ECF No. 75) is
GRANTED, and all remaining claims in Plaintiff’s Amended Complaint (ECF No. 53-1) are
DISMISSED with prejudice. An appropriate Order accompanies this Opinion.

DATED: September 26, 2024 JULIEN XAVIER NEALS
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10656788. Public record. Not legal advice.