# MCCOY v. STATE OF NEW JERSEY

> District Court, D. New Jersey · December 4, 2024

URL: https://www.frixlaw.com/law-library/cases/10754817

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** December 4, 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

JAMES J. McCOY,
Civil No.: 2:21-cv-13720 (KSH) (CLW)
Plaintiff,

v.
STATE OF NEW JERSEY; NEW JERSEY
STATE POLICE; DANIEL EVANKOW;
PATRICK J. CALLAHAN; JOHN and JANE
DOE 1-10 and ABC-XYZ CORP. (said names OPIN ION
being unknown and fictitious),

Defendants.

Katharine S. Hayden, U.S.D.J.
I. Introduction
Plaintiff James McCoy has brought this civil rights action against defendant Daniel
Evankow, a State Trooper who arrested him for driving while intoxicated (“DWI”). After this
Court dismissed McCoy’s earlier complaint, which asserted claims against the State of New
Jersey and another officer in his official capacity (D.E. 22), McCoy filed an amended complaint
against Evankow in his personal capacity. (D.E. 24.) After the parties engaged in discovery,
Evankow moved for summary judgment. (D.E. 44.) The motion has been fully briefed, and is
granted for the reasons set forth below.
II. Facts and Procedural History
At approximately 10:15 a.m. on June 11, 2019, Evankow observed McCoy speeding 12
miles-per-hour over the posted speed limit while driving northbound on U.S. Route 9 in Port
Republic, New Jersey. (D.E. 52, FPTO § 2, Stipulated Facts, ¶¶ 3-4; D.E. 44-2, Def. R. 56.1 Stmt.
¶¶ 6-7.)1 Evankow activated the overhead lights on his police cruiser and after McCoy pulled
over, he went to McCoy’s driver’s window. (D.E. 44-2, Def. R. 56.1 Stmt. ¶¶ 8-9.) Evankow
asked for McCoy’s driver’s license, insurance card, and vehicle registration. (Id. ¶ 9.) He told
McCoy that he stopped him because he was speeding. (Id. ¶ 10.) McCoy answered that he wasn’t

sure how fast he was going because his speedometer was broken. (Id.; D.E. 44-5, Deposition of
James McCoy (“McCoy Dep.”) at 17:14-18:16.)
McCoy told Evankow he was driving home from Atlantic City. (D.E. 44-2, Def. R. 56.1
Stmt. ¶ 11.) Evankow asked McCoy when he last had an alcoholic drink, to which McCoy replied,
“yesterday afternoon.” (Id.) A few minutes into the stop, Evankow conducted a Horizontal Gaze
Nystagmus (“HGN”) test2 to assess if McCoy was under the influence. (Id. ¶ 12; D.E. 52, FPTO
§ 2, Stipulated Facts, ¶ 5.) He observed that McCoy’s eyes jerked while moving from left to right.
(D.E. 44-2, Def. R. 56.1 Stmt. ¶¶ 14-15.) He again asked McCoy when he last had a drink, and
McCoy responded, “yesterday afternoon.” (Id. ¶ 15.)
Evankow told McCoy to get out of his car for field sobriety tests. (Id. ¶ 16.) Evankow

conducted another HGN test and observed that McCoy’s eyes again jerked while moving from left
to right. (Id. ¶ 19.) Evankow asked, “[B]e honest with me, how many drinks have you had?”
McCoy replied, “[N]ot today, at all, just nervous.” (Id. ¶ 17.) Evankow again asked when McCoy

1 References to the parties’ L. Civ. 56.1 statements are to facts that are undisputed and/or
admitted. The Court deems facts that are not supported by appropriate citations to the record to
be undisputed. See L. Civ. R. 56.1, Cmt. f (“Consequences of noncompliance”); Bulboff v. King
Aircraft Title, Inc., 2021 WL 1186822, at *1 (D.N.J. Mar. 30, 2021) (Kugler, J.).

2 According to Evankow, the HGN test requires a suspected DWI driver to follow an object with
his or her eyes, here Evankow’s pointer finger, while the object moves from left to right. (D.E.
44-2, Def. R. 56.1 Stmt. ¶¶ 13-14; D.E. 44-3, Certification of Daniel Evankow (“Evankow
Cert.”) ¶¶ 12-15.) “If the suspect is unable to smoothly do so, that is one indicator that the
suspect may be intoxicated.” State v. Stein, 225 N.J. 582, 588 n.2 (2016) (citation omitted).
last had a drink, and McCoy changed his story by answering that he stopped drinking around “one
o’clock in the morning.” (Id.)
Next, Evankow instructed McCoy to perform a walk-and-turn sobriety test by walking nine
steps heel to toe, turning around, and walking nine steps back heel to toe. (D.E. 44-2, Def. R. 56.1

Stmt. ¶ 20.) He observed McCoy “exhibited signs of intoxication in that he (1) swayed in the
starting position; (2) used his arms for balance; (3) delayed while turning; and (4) missed touching
his heel to his toe on several occasions.” (Id.) Evankow then explained the one-legged-stand
sobriety test to McCoy, instructing him to stand with his heels together and lift one of his legs six
inches off the ground until he was told to stop. (Id. ¶ 21.) He observed that McCoy “showed signs
of intoxication during this test by: (1) hopping on his foot; (2) shifting his foot; and (3) put his
foot down before he was instructed to do so, terminating the test.” (Id.) Evankow conducted a
final HGN test, where he again observed McCoy’s eyes did not smoothly follow his finger from
left to right. (Id. ¶ 22.)
Evankow put McCoy under arrest and read him his Miranda rights. (Id. ¶ 23; D.E. 52,

FPTO § 2, Stipulated Facts, ¶ 6.) McCoy testified at his deposition that when he was arrested and
handcuffed, Evankow had the handcuffs on “a little tight,” but that he currently has no pain or
injury to his wrist. (D.E. 44-2, Def. R. 56.1 Stmt. ¶¶ 25-26; McCoy Dep. at 24:6-25:7, 40:12-14.)
At the police station, McCoy was breathalyzed to see whether he was under the influence of
alcohol; he was not. (D.E. 52, FPTO § 2, Stipulated Facts, ¶ 11.) McCoy was then issued a
summons for speeding five miles over the speed limit and released from custody. (Id. ¶¶ 12-13.)
The charge was later dismissed by a local prosecutor. (D.E. 44-2, Def. R. 56.1 Stmt. ¶ 31.) In
connection with his arrest, McCoy’s vehicle was seized, towed, searched, and sent to a towing
yard. (Id. ¶¶ 24, 28.)
On June 9, 2021, McCoy filed a complaint in state court against the State of New Jersey,
New Jersey State Police, Evankow, Colonel Patrick J. Callahan, and other fictious individual and
entity defendants, alleging civil rights violations among other claims. (D.E. 22, Opinion at 1-3.)
The case was removed (D.E. 1), and this Court dismissed the civil rights claims against all

defendants except for Evankow in his personal capacity. (D.E. 22, Opinion at 7.) McCoy filed
the operative amended complaint alleging the following claims against Evankow individually:
unreasonable search and seizure under the Fourth Amendment, in violation of 42 U.S.C. § 1983
(count 1); violation of equal protection rights3 under the Fourteenth Amendment (count 2);
violation of civil rights under the New Jersey Civil Rights Act (“NJCRA”), N.J.S.A. § 10:6- 2 et
seq. (count 3); common law battery (count 4); malicious prosecution and unlawful detainer (count
5); and “performance related deficiencies” (count 6). (D.E. 24.)
Evankow answered, denying liability and asserting the defense of qualified immunity.
(D.E. 25.) After discovery, Evankow moved for summary judgment on all counts. (D.E. 44.)
McCoy filed an opposition, (D.E. 45), and Evankow replied, (D.E. 51).

III. Standard of Review
Summary judgment is proper where the movant demonstrates that there is no genuine
dispute as to any material fact and that the movant is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a). A fact is “material” if it “might affect the outcome of the suit under the
governing law,” Burton v. Teleflex Inc., 707 F.3d 417, 425 (3d Cir. 2013), and a dispute is

3 McCoy has not alleged any facts to plead an equal protection claim, so the Court will grant
summary judgment to Evankow as to count 2. See Pettit v. New Jersey, 2011 WL 1325614, at *9
(D.N.J. Mar. 30, 2011) (Hillman, J.) (granting summary judgment on the plaintiffs’ equal
protection claim where they failed to “plead the existence of purposeful discrimination” or “offer
any evidence indicating [the defendant] treated them differently from other individuals similarly
situated”).
“genuine” if the evidence would permit a reasonable jury to find for the non-movant, Jutrowski
v. Twp. of Riverdale, 904 F.3d 280, 289 (3d Cir. 2018). However, “where a non-moving party
fails sufficiently to establish the existence of an essential element of its case . . . , there is not a
genuine dispute with respect to a material fact and thus the moving party is entitled to judgment

as a matter of law.” Id. (quoting Goldenstein v. Repossessors Inc., 815 F.3d 142, 146 (3d Cir.
2016)).
At this stage, the facts are to be viewed in the “light most favorable to the non-moving
party, who is ‘entitled to every reasonable inference that can be drawn from the record.’”
Harvard v. Cesnalis, 973 F.3d 190, 199 (3d Cir. 2020) (quoting Reedy v. Evanson, 615 F.3d 197,
210 (3d Cir. 2010)). The Court will not weigh evidence or determine credibility, but instead will
assess “whether the evidence of record is such that a reasonable jury could return a verdict for
the nonmoving party.” Reedy, 615 F.3d at 210 (citation omitted).
IV. Discussion
A. Civil Rights Claims (Counts 1 and 3)

Evankow argues that he is entitled to summary judgment on McCoy’s federal and state
civil rights claims since he had reasonable suspicion to stop McCoy and probable cause to arrest
him. (D.E. 44 at 9-16.) McCoy responds that Evankow (1) did not have reasonable suspicion
for the traffic stop because the speeding ticket was later dismissed by a local municipal
prosecutor and (2) did not have probable cause to arrest him for DWI because the breathalyzer at
the police station showed he was not actually under the influence of alcohol. (D.E. 45 at 6-8.)
Section 1983 creates a private right of action for violations of civil rights under the
United States Constitution. See 42 U.S.C. § 1983. Further, “[t]his district has repeatedly
interpreted NJCRA analogously to § 1983.” Pettit, 2011 WL 1325614, at *3 (collecting cases).
It is well-settled that a routine traffic stop is constitutional when it is supported by
reasonable suspicion, that is, “‘specific, articulable facts’ to justify a reasonable suspicion to
believe that an individual has violated the traffic laws.” United States v. Delfin-Colina, 464 F.3d
392, 397 (3d Cir. 2006). Any technical violation of a traffic code—for example, speeding in

excess of the posted speed limit—legitimizes a stop. United States v. Wilson, 960 F.3d 136, 145
(3d Cir. 2020). Further, “an officer need not be factually accurate in her belief that a traffic law
had been violated but, instead, need only produce facts establishing that she reasonably believed
that a violation had taken place.” Delfin-Colina, 464 F.3d at 398. Here, the Court finds that
Evankow reasonably believed that McCoy was speeding in violation of N.J.S.A. § 39:4-98, as he
alleges that the basis for the traffic stop was that McCoy was traveling 12 miles-per-hour over
the posted speed limit. Significantly, McCoy does not dispute that he was speeding. According
to his deposition testimony, he was unaware how fast he was traveling because his speedometer
was broken. (McCoy Dep. at 17:14-18:16.) There is no record evidence, then, to dispute
Evankow’s position that McCoy was speeding, and he had reasonable suspicion to stop McCoy.

Evankow also had reasonable suspicion to extend the stop, upon his belief that McCoy
might be intoxicated, giving rise to probable cause to arrest McCoy for DWI. Again, the law is
settled. “Probable cause exists whenever reasonably trustworthy information or circumstances
within a police officer’s knowledge are sufficient to warrant a person of reasonable caution to
conclude that an offense has been committed by the person being arrested.” United States v.
Myers, 308 F.3d 251, 255 (3d Cir. 2002). “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.” Morrison v. City of Jersey City,
2024 WL 4318601, at *4 (D.N.J. Sept. 26, 2024) (Neals, J.) (internal quotation marks and
citation omitted). It is immaterial “whether the person arrested in fact committed the offense,”
rather, the proper inquiry is “whether the arresting officers had probable cause to believe the
person arrested had committed the offense.” Dowling v. City of Phila., 855 F.2d 136, 141 (3d
Cir. 1988).

Here, Evankow performed textbook step-by-step testing of a suspect he thought to be
under the influence of drugs or alcohol, and relied on his observations from that testing while in
the field. The undisputed facts show that Evankow conducted three HGN tests, at different
points in the stop, and gave reasonable grounds for his belief that McCoy performed poorly on
all three. During the walk-and-turn field sobriety test, Evankow observed that McCoy swayed in
the starting position, used his arms for balance, delayed while turning, and missed touching his
heel to toe; during the one-legged-stand test, Evankow observed that McCoy hopped on his foot,
shifted his foot, and put his foot down prematurely; and Evankow observed that McCoy changed
his story as to when he last had an alcoholic drink from “yesterday afternoon” to “one o’clock in
the morning.” The foregoing supplies a basis for Evankow’s decision to arrest McCoy for DWI,

and the record evidence is devoid of a factual basis for McCoy’s claim that he suffered a
deprivation of his civil rights.
Evankow is therefore entitled to summary judgment on counts 1 and 3.
B. Tort Claims (Counts 4, 5, and 6)
Evankow next argues that he is entitled to summary judgment on McCoy’s tort claims of
common law battery, malicious prosecution, unlawful detainer, and “performance related
deficiencies” since (1) McCoy has not met the $3,600 medical expense threshold required under
the New Jersey Tort Claims Act (“TCA”) for damages resulting from an injury and (2) the
existence of probable cause for McCoy’s speeding ticket and arrest defeats these claims. (D.E.
44 at 22-30.) McCoy responds that even if the harm he suffered from the handcuffs was de
minimis, the severity of a physical injury is just one consideration in an excessive force claim.
(D.E. 45 at 8.)
The TCA provides:

No damages shall be awarded against a public entity or public employee for pain
and suffering resulting from any injury; provided, however, that this limitation on
the recovery of damages for pain and suffering shall not apply in cases of
permanent loss of a bodily function, permanent disfigurement or dismemberment
where the medical treatment expenses are in excess of $3,600.00.

[N.J.S.A. § 59:9-2(d).]
Here, the record is devoid of any evidence that McCoy incurred any medical expenses, let
alone the minimum $3,600 requirement of the TCA, for injuries resulting from his stop and
arrest. At his deposition, McCoy testified that he did not receive any medical treatment and has
no permanent—or any—injury to his wrists. (McCoy Dep. at 24:10-18, 40:12-24.) McCoy also
testified that Evankow did not hurt him besides placing his handcuffs too tight. (Id. at 24:6-
25:7.) And while McCoy testified that he was harmed psychologically due to his arrest, he does
not allege to have incurred any medical expenses for psychological treatment. (Id. at 32:17-
33:25, 39:23-40:6.)
To maintain an action in tort when the threshold requirements of N.J.S.A. § 59:9-2(d) are
not met, McCoy must prove that the officer’s conduct “constituted a crime, actual fraud, actual
malice or willful misconduct.” Apata v. Howard, 2008 WL 4372917, at *14-15 (D.N.J. Sept. 23,
2008) (Irenas, J.) (quoting N.J.S.A. § 59:3-14)). “In the context of the Tort Claims Act, willful
misconduct is defined as the knowing commission of a forbidden act, a level of culpability
requiring much more than an absence of good faith and much more than negligence.” Id. at *15
(internal quotation marks and citation omitted). There is no evidence in the record that
Evankow’s conduct of fastening the handcuffs on McCoy rises to this level, so McCoy cannot
maintain his action for battery under New Jersey common law.
Further, “[p]robable cause is an absolute defense to claims for false arrest, false
imprisonment, illegal search and seizure, and malicious prosecution.” See Morrison, 2024 WL

4318601, at *4 (internal quotation marks omitted) (quoting Herman v. City of Millville, 66 F.
App’x 363, 365 n.3 (3d Cir. 2003)). McCoy appears to allege that Evankow lacked probable
cause to issue him a summons for speeding five miles over the speed limit due to Evankow’s
comment that he “ha[d] to give [McCoy] a ticket for something.” (McCoy Dep. at 35:1-14.)
Malicious prosecution requires McCoy to prove:
(1) the defendants initiated a criminal proceeding; (2) the criminal proceeding
ended in plaintiff’s favor; (3) the proceeding was initiated without probable cause;
(4) the defendants acted maliciously or for a purpose other than bringing the
plaintiff to justice; and (5) the plaintiff suffered deprivation of liberty consistent
with the concept of seizure as a consequence of a legal proceeding.

[Elfar v. Twp. of Holmdel, 2024 WL 415691, at *5 (D.N.J. Feb. 5, 2024) (Kirsch,
J.) (quoting Estate of Smith v. Marasco, 318 F.3d 497, 521 (3d Cir. 2003); Curry
v. Yachera, 835 F.3d 373, 379-80 (3d Cir. 2016)).]

The Court finds that Evankow had probable cause to issue McCoy a speeding ticket,
since Evankow certified that was the basis of the stop, and McCoy himself does not dispute that
he was speeding. (Evankow Cert. ¶¶ 4, 7-8; McCoy Dep. at 17:14-18:16.) Likewise, McCoy’s
claims of unlawful detainer4 and “performance related deficiencies” must also fail, due to the
Court’s finding that Evankow had probable cause to arrest McCoy for DWI. Further, the Court
notes that although the charge against McCoy was ultimately dismissed, this victory alone does

4 The Court interprets McCoy’s unlawful detainer claim as one for false arrest or false
imprisonment, which requires him to prove an arrest or detention of the person against his or her
will, and lack of proper legal authority or “legal justification.” Barletta v. Golden Nugget Hotel
Casino, 580 F. Supp. 614, 617 (D.N.J. 1984) (Cohen, J.).
not entitle McCoy to maintain civil rights or tort claims against his arresting officer. See Meleika
v. Fed. Gov’t, 2022 WL 2274544, at *4 (D.N.J. June 23, 2022) (McNulty, J.) (rejecting the
defendant’s arguments that the dismissal of his criminal charges entitled him to an “automatic
win” on his false arrest and malicious prosecution claims).

Evankow is therefore entitled to summary judgment on counts 4, 5, and 6.
V. Conclusion
Based on the foregoing, Evankow’s motion for summary judgment (D.E. 44) is granted in
its entirety, and McCoy’s amended complaint (D.E. 24) is dismissed with prejudice since
amendment would be futile. See Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004) (permitting
dismissal without further leave to amend when amendment would be futile). An appropriate
order accompanies this opinion.

Dated: December 4, 2024 /s Katharine S. Hayden
Katharine S. Hayden, U.S.D.J.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10754817. Public record. Not legal advice.