HINES v. BOROUGH OF BELMAR

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

STEPHEN T. HINES,

Plaintiff,

Civil Action No. 22-7335 (ZNQ) (JBD)

v.

OPINION

BOROUGH OF BELMAR, et al.,

Defendants.

QURAISHI, District Judge

THIS MATTER comes before the Court upon a Motion for Summary Judgment filed by

Defendants the Borough of Belmar, Michael Campbell, Philip Bohrman, Edward Kirschenbaum,

and Mark Walsifer (collectively, “Defendants”). (“Motion”, ECF No. 48.) Defendants submitted

a brief in support of the Motion (“Moving Br.”, ECF No. 48-2), a Statement of Facts (“DSOF”,

ECF No. 48-3), and various exhibits (ECF Nos. 48-5 to 48-22). Plaintiff Stephen T. Hines

(“Plaintiff”) filed a brief in opposition to the Motion (“Opp’n Br.”, ECF No. 54), a response to

Defendants’ Statement of Facts (“PRSOF”, ECF No. 54-1), and a Supplemental Statement of Facts

(“PSOF”, ECF No. 54-1). Defendants filed a reply brief. (“Reply Br.”, ECF No. 55.)

The Court has carefully considered the parties’ submissions and decides the Motion

without oral argument pursuant to Federal Rule of Civil Procedure 78 and Local Civil Rule 78.1.1

1 Hereinafter, all references to “Rule” or “Rules” refer to the Federal Rules of Civil Procedure unless otherwise noted.

For the reasons set forth below, the Court will GRANT-IN-PART and DENY-IN-PART

Defendants’ Motion.

I. BACKGROUND AND PROCEDURAL HISTORY

This is a false arrest and malicious prosecution case. Plaintiff is a former member of the

Belmar First Aid Squad (“BFAS”), a 501(c)(3) non-profit organization,2 and a former Captain of

the Borough of Belmar Fire Department. (DSOF, ¶4; PSOF ¶2.) Defendants are the Borough of

Belmar (“Belmar”); the Mayor of Belmar, Mark Walsifer (“Mayor Walsifer”); the Business

Administrator of Belmar, Edward Kirschenbaum (“Administrator Kirschenbaum”); Belmar Police

Department Detective, Philip Bohrman (“Detective Bohrman”); and Belmar Police Department

Captain, Michael Campbell (“Captain Campbell”). (“Am. Compl.,” ECF No. 38 ¶¶1–9.)

On November 25, 2020, Belmar required BFAS to submit to a financial audit before

Belmar would disperse to BFAS its annual stipend. (DSOF ¶7.) BFAS did not comply with the

request, and in early January 2021, BFAS announced via letter that, after 97 years, it would cease

providing emergency medical operations and other services by March 31, 2021, and begin to

prepare a dissolution plan. (Id. ¶9; ECF No. 48-7. Ex. C, “Notice of Cessation”.) BFAS requested,

however, that Belmar “continue to provide [its] stipend on a pro-rata basis” until March 31, 2021,

to cover operation costs for the first quarter of 2021. (Id. ¶¶11–12.)

In furtherance of dissolution, BFAS arranged for the sale of its vehicles, equipment, and

real property. BFAS first arranged to donate its rescue truck to a fire company in New York for

$1. (PSOF ¶5.) Critically, on April 3, 2021, the day the truck was to be turned over, Plaintiff went

to the Belmar Marina gas pump, used a town-issued key fob to enter the premises, entered a

personal access code, and filled the rescue truck’s gas tank. (DSOF ¶14.) Plaintiff was under the

2 BFAS received an annual stipend from the Borough of Belmar but primarily sustained its operations through

donations and self-generated funds. (DOSF ¶6.)

impression that Belmar would either deduct the cost of the gas ($56.64) from the pro-rated stipend

BFAS requested, or bill BFAS directly. (PSOF ¶¶7–8.)

BFAS additionally attempted to sell its real property, which was valued at $1,500,000. (Id.

¶16.) Plaintiff alleges that Belmar had hoped BFAS would simply turn over the property to

Belmar, but BFAS decided to move forward with a sale and entertain bids. (Id.) On May 14,

2021, Administrator Kirschenbaum placed a bid on behalf of Belmar to purchase the BFAS

property. (DSOF ¶25; Notice of Cessation at 3.) Belmar was the second highest bidder behind a

developer. (PSOF ¶16.) As a result, Belmar adopted an ordinance authorizing the use of eminent

domain to acquire the property which caused the developer to withdraw its bid. (DSOF ¶27.)

Nevertheless, BFAS still refused to sell its property to Belmar without certain deed restrictions.

On July 6, 2021, Plaintiff and other BFAS members protested the ordinance and circulated

a petition which collected enough signatures for a “Referendum,” which would have required

either that the ordinance be withdrawn or placed on the local ballot in the next election. (Id. ¶28.)

Belmar ultimately withdrew the ordinance, but a deal was never reached as to Belmar’s purchase

of the BFAS property. (Id. ¶29.)

Seven months later, on November 30, 2021, Detective Bohrman arrested Plaintiff and

charged him—with the approval of Captain Campbell—on a Complaint-Summons with theft, in

violation of N.J. Stat. Ann. § 2C:20-3, a disorderly persons offense, and official misconduct, in

violation of N.J. Stat. Ann. § 2C:30-2, a third-degree offense, arising out of allegations that

Defendant stole $56.64 worth of gas from the Belmar municipal gas pump on April 3, 2021. (Id.

¶¶119–120, 137; see also ECF No. 48-11, Ex. I, Arrest Report.) As a result of the charges, Plaintiff

was suspended from the Belmar Fire Department. (Id. ¶138.)

On January 28, 2022, the Monmouth County Prosecutor’s Office dismissed both charges

against Plaintiff for lack of evidence. (Id. ¶140; Ex. 48-15.)

On December 16, 2022, Plaintiff filed a ten-count Complaint in this Court, alleging various

violations of his constitutional rights pursuant to 42 U.S.C. § 1983 and under the New Jersey Civil

Rights Act and New Jersey Constitution. (ECF No. 1.) Defendants filed an Answer, and the

parties began fact discovery.

On August 5, 2024, Plaintiff filed an Amended Complaint, alleging that Defendants, acting

under color of law, committed, in violation of the Federal Constitution: false arrest (Count One);

malicious prosecution (Count Two); conspiracy to violate civil rights (Count Three); abuse of

process (Count Four); First Amendment retaliation (Count Five); and unlawful policy (Count Six).

(See generally Am. Compl.) Plaintiff additionally alleges various state law claims, including that

Defendants violated the New Jersey Civil Rights Act (Count Seven), and committed false arrest

(Count Eight), malicious prosecution (Count Nine), and abuse of process (Count Ten), in violation

of the New Jersey Constitution. (See id.)

On August 8, 2024, Defendants filed an Answer and asserted a Counterclaim against

Plaintiff for attorneys’ fees under 42 U.S.C. § 1988. (ECF No. 41.) On December 13, 2024,

Defendants filed the instant Motion for Summary Judgment. (ECF No. 48.)

II. SUBJECT MATTER JURISDICTION

The Court has subject matter jurisdiction as to Plaintiff’s federal law claims under 28

U.S.C. § 1331 and supplemental jurisdiction over his state law claims under 28 U.S.C. § 1367.

III. LEGAL STANDARD

Rule 56 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.” Fed. R. Civ. P. 56(a); see also Kreschollek v. S. Stevedoring Co., 223 F.3d 202, 204 (3d Cir.

2000). The moving party bears the burden of establishing that no genuine dispute of material fact

remains. See Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). “[W]ith respect to an issue

on which the non-moving 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 non-moving party’s case.” Id. at 325.

Once the moving party has met that threshold burden, the non-moving party “must do more

than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The opposing party must present

actual evidence that creates a genuine dispute as to a material fact for trial. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986); see also Fed. R. Civ. P. 56(c) (setting forth types of

evidence on which the non-moving party must rely to support its assertion that genuine disputes

of material fact exist).

In deciding a motion for summary judgment, the Court’s role is not to evaluate the evidence

and decide the truth of the matter but to determine whether there is a genuine dispute for trial.

Anderson, 477 U.S. at 248–49. The summary judgment standard, however, does not operate in a

vacuum. “[T]he judge must view the evidence presented through the prism of the substantive

evidentiary burden,” id. at 254, and construe all facts and inferences in the light most favorable to

the non-moving party. See Boyle v. County of Allegheny, 139 F.3d 386, 393 (3d Cir. 1998).

IV. DISCUSSION

A. SECTION 1983 CLAIMS

Section 1983 provides a “civil remedy for the ‘deprivation of any rights, privileges, or

immunities secured by the Constitution and laws.’” Halsey v. Pfeiffer, 750 F.3d 273, 290 (3d Cir.

2014) (quoting 42 U.S.C. § 1983). To state a claim under Section 1983, a plaintiff must show that

“some person has deprived him of a federal right . . . [and] that the person who has deprived him

of that right acted under color of state or territorial law.” Id. (quoting Gomez v. Toledo, 446 U.S.

635, 640 (1980) (alteration in original)).

Government actors, however, may assert the defense of qualified immunity, which certain

Defendants invoke here. Qualified immunity shields police officers from liability unless they

violated clearly established rights. To determine if an officer’s conduct is entitled to qualified

immunity, courts ask: first, “whether the defendant’s conduct violated a statutory or constitutional

right,” and second, “whether the right at issue was clearly established when the conduct took

place.” White v. City of Vineland, 500 F. Supp. 3d 295, 304–05 (D.N.J. 2020) (citing Sauers v.

Borough of Nesquehoning, 905 F.3d 711, 716 (3d Cir. 2018)). In assessing this defense in the

context of summary judgment, “the court must not resolve[] genuine disputes of fact in favor of

the moving party; instead, it must decide whether the facts taken in the light most favorable to the

non-moving party take the case to a place where the law is not clearly established.” Id. at 305

(citing Tolan v. Cotton, 572 U.S. 650, 656-57 (2014)).

As set forth above, Plaintiff alleges the following claims under Section 1983: (1) false

arrest; (2) malicious prosecution; (3) conspiracy to violate civil rights; (4) abuse of process; (5)

First Amendment retaliation; and (6) unlawful policy. (See generally Am. Compl.) The Court

addresses each in turn.

1. False Arrest (Count One)

In Count One, Plaintiff alleges that Detective Bohrman and Captain Campbell of the

Belmar Police Department did not have probable cause to arrest him for theft and official

misconduct. “An ‘arrest without probable cause is a constitutional violation’ and gives rise to a

cause of action for false arrest under 42 U.S.C. § 1983.” Noble v. City of Camden, 112 F. Supp.

3d 208, 230 (D.N.J. 2015) (quoting Patzig v. O’Neil, 577 F.2d 841, 848 (3d Cir. 1978)). “To bring

a claim for false arrest, a plaintiff must establish ‘(1) that there was an arrest; and (2) that the arrest

was made without probable cause.’” Harvard v. Cesnalis, 973 F.3d 190, 199 (3d Cir. 2020)

(quoting James v. City of Wilkes-Barre, 700 F.3d 675, 680 (3d Cir. 2012)). “The proper inquiry

in a [S]ection 1983 claim based on false arrest . . . is not whether the person arrested in fact

committed the offense but whether the arresting officers had probable cause to believe the person

arrested had committed the offense.” Groman v. Township of Manalapan, 47 F.3d 628, 634 (3d

Cir. 1995) (quoting Dowling v. City of Philadelphia, 855 F.2d 136, 141 (3d Cir. 1988)). Thus,

summary judgment for false arrest “is proper only if no reasonable juror could find a lack of

probable cause for any of the charged crimes.” Cesnalis, 973 F.3d at 199.

An officer has probable cause when the facts and circumstances within the arresting

officer’s knowledge are enough in themselves to warrant a reasonable person to believe that an

offense has been or is being committed by the person to be arrested. See Ciardiello v. Sexton, 390

F. App’x 193, 199 (3rd Cir. 2010) (citing Orsatti v. N.J. State Police, 71 F.3d 480, 483 (3d Cir.

1995)). Because the Court is “evaluating probable cause at the summary judgment stage, [it] must

assess probable cause based upon the ‘totality-of-the-circumstances’ available to the arresting

officer and view those circumstances in the light most favorable” to Plaintiff. Cesnalis, 973 F.3d

at 200 (quoting Dempsey v. Bucknell Univ., 834 F.3d 457, 468 (3d Cir. 2016)).

Turning to the charged offenses, there are genuine issues of material fact in dispute as to

whether Detective Bohrman and Captain Campbell possessed probable cause to arrest Plaintiff for

either offense.

a) Probable Cause to Arrest Plaintiff for Theft

First, “a person is guilty of theft if he unlawfully takes, or exercises unlawful control over,

movable property of another with purpose to deprive him thereof.” N.J. Stat. Ann. § 2C:20-3.

Defendants argue that Detective Bohrman possessed probable cause to arrest Plaintiff for theft. In

support, Defendants assert that Detective Bohrman, “received a file prepared by [Administrator]

Kirschenbaum which confirmed on the fuel logs that [Plaintiff] had used his personal code he ha[d]

[as] a Captain of the [Belmar] Fire Department to activate the gas pump in conjunction with the

rescue truck key fob to take $56.64 worth of gas to fuel the rescue truck” on April 3, 2021.

(Moving Br. at 16.) Defendants also argue that BFAS had “closed its doors on March 31, 2021,”

three days before Plaintiff used the gas pump. (Id.)

Although Plaintiff testified during his deposition that he never received express permission

to fill up the BFAS truck on April 3, 2021 (ECF No. 48-9, 45:9–17), Detective Bohrman’s

investigation revealed that Belmar did not request the return of the truck’s fuel key as of April 3,

2021, and no notice was given to Plaintiff or any other BFAS member that permission to use the

municipal pump had been terminated. (PSOF ¶100; ECF No. 48-16, 26:14–17.) Detective

Bohrman further testified that he never inquired about the gas arrangement between BFAS and

Belmar, in which Belmar would bill BFAS for gas taken. (PSOF ¶104.) Detective Bohrman also

admitted in his deposition that Plaintiff “topped off th[e] tank . . . in broad daylight” and “didn’t

make any money on this exchange.” (ECF No. 48-16, 27:12–18.) And although BFAS stopped

providing emergency medical services by March 31, 2021, it is unclear whether BFAS was fully

dissolved by that point or that it ceased to exist such that Belmar could not bill BFAS for gas taken

after March 31, 2021. (See Notice of Cessation; ECF No. 48-16, 26:14–17.)

Based on the foregoing, there is a disputed issue of material fact as to Plaintiff’s state of

mind and whether he intended to use the municipal gas pump on April 3, 2021 with the purpose

of depriving Belmar of its property, i.e., without ever paying Belmar $56.64 for the gas. Therefore,

the Court finds that a reasonable juror could conclude that Plaintiff did not unlawfully take gas

insofar as he did not act with the requisite intent to deprive Belmar of its property. A reasonable

juror could further conclude that the officers thus lacked probable cause to arrest Plaintiff for theft.

Accordingly, summary judgment for false arrest is improper.

b) Probable Cause to Arrest Plaintiff for Official Misconduct

Second, a public servant is guilty of official misconduct when, “with purpose to obtain a

benefit for himself or another or to injure or to deprive another of a benefit . . . he commits an act

relating to his office but constituting an unauthorized exercise of his official functions, knowing

that such act is unauthorized, or he is committing such act in an unauthorized manner.” N.J. Stat.

Ann. § 2C:30-2.

As a preliminary matter, Defendants do not address in their Motion whether Detective

Bohrman and Captain Campbell had probable cause to arrest Plaintiff for official misconduct.

Their arguments as to probable cause are limited to theft. Nonetheless, the Court finds that there

is a dispute of fact as to whether Plaintiff acted with a purpose to obtain a benefit and to whether

the purported misconduct related to his position as a member of BFAS or as a member of the

Belmar Fire Department. (See ECF No. 48-16, 54:1 to 55:14.) Detective Bohrman testified that

on April 3, 2021, Plaintiff was acting in his capacity as a Captain of the Fire Department because

he used his fire department code to access the municipal gas pump. (ECF No. 48-16, 54:13–15.)

Plaintiff testified, however, that he used the municipal gas pump on April 3, 2021, to fill-up the

BFAS rescue truck in anticipation of the truck’s new owner coming to pick it up and that he

previously used his personal municipal pump access code for “both the firehouse and the first aid

squad.” (ECF No. 48-9, 41:25 to 42:1–6.)

Therefore, the Court finds that there are facts in dispute as to which office the alleged

misconduct pertained to, and whether Plaintiff had the requisite intent to commit the unlawful act,

to benefit himself, or to deprive Belmar of a benefit. As such, the Court cannot find at this time

that Detective Bohrman and Captain Campbell had probable cause to arrest Plaintiff for official

misconduct. Such an issue should be left for a jury.

c) Qualified Immunity

With that said, Defendants are entitled to qualified immunity “if a reasonable officer could

have believed that probable cause existed” to arrest Plaintiff “in light of clearly established law

and the information the [arresting] officers possessed.” Noble, 112 F. Supp. 3d at 230 (citations

omitted). In addition to the preceding discussion regarding disputed issues of fact as to probable

cause for Plaintiff’s arrest, it is undisputed that neither Detective Bohrman nor Captain Campbell

contacted the Monmouth County Prosecutor’s Office prior to charging Plaintiff with official

misconduct, which officers are required to do pursuant to the New Jersey Attorney General

guidelines prior to signing a complaint for official misconduct. (DSOF ¶39.)

Given the foregoing, the Court finds that the factual issues described above bar the

application of qualified immunity for false arrest.

Accordingly, the Court will deny the Motion as to Count One.

2. Malicious Prosecution (Count Two)

In Count Two, Plaintiff asserts a malicious prosecution claim against Administrator

Kirschenbaum, Mayor Walsifer, Detective Bohrman, and Captain Campbell. To state a claim for

malicious prosecution under the Fourth Amendment, a plaintiff must show that “(1) the defendant

initiated a criminal proceeding; (2) the criminal proceeding ended in the plaintiff’s favor; (3) the

defendant initiated the proceeding without probable cause; (4) the defendant acted maliciously or

for a purpose other than bringing the plaintiff to justice; and (5) the plaintiff suffered a deprivation

of liberty consistent with the concept of seizure as a consequence of a legal proceeding.” Roberts

v. County of Essex, 648 F. Supp. 3d 519, 535 (3d Cir. 2022) (citing Zimmerman v. Corbett, 873

F.3d 414, 418 (3d Cir. 2017)).

As to the first prong, “[i]n most cases, a prosecutor rather than a police officer initiates a

criminal prosecution,” so the prosecutor is the proper defendant. Sanders v. Jersey City, Civ. No.

18-1057, 2021 WL 1589464, at *19 (D.N.J. Apr. 3, 2021) (quoting Fought v. City of Wilkes-Barre,

466 F. Supp. 3d 477, 507 n.6 (M.D. Pa. 2020)). “Particularly as to minor offenses, however,

charging complaints may be drafted by officers in this state.” Id. And “[i]f the officers influenced

or participated in the decision to institute criminal proceedings, they can be liable for malicious

prosecution.” Halsey, 750 F.3d at 297 (citing Sykes v. Anderson, 625 F.3d 294, 308-09 (6th Cir.

2010)).

Defendants argue that this claim fails as a matter of law because there was probable cause

to charge Plaintiff with theft and official misconduct. (Moving Br. at 18.) Plaintiff argues that

Detective Bohrman and Captain Campbell filed criminal charges against him without probable

cause and acted with malice. (Opp’n Br. at 16.) The parties do not dispute that the charges were

later dismissed.

Here, the Court finds that the undisputed record can support a malicious prosecution claim

against Detective Bohrman and Captain Campbell. Detective Bohrman and Captain Campbell, as

the reporting and approving officers, respectively, initiated criminal proceedings against Plaintiff

through the issuance of a Complaint-Summons and the charges were later dismissed by the

Monmouth County Prosecutors Office, a favorable outcome for Plaintiff. As to probable cause,

the Court finds, as it did in the false arrest context, that based on the record before the Court,

viewed in the light most favorable to Plaintiff, a reasonable juror could conclude that Detective

Bohrman and Captain Campbell lacked probable cause as to each offense charged.3 Moreover, a

reasonable jury could arguably find that there was an improper motive behind the charging

decision.

Given that it is “inappropriate for a court to grant a defendant officer’s motion for summary

judgment in a malicious prosecution case if . . . ‘reasonable minds could differ’ on whether he had

probable cause for the institution of the criminal proceedings based on the information available

to him,” the Court will deny Defendants’ Motion on Count two as to Detective Bohrman and

Captain Campbell. Halsey, 750 F.3d at 300. However, the Court will grant Defendants’ Motion

on Count Two as to Administrator Kirschenbaum and Mayor Walsifer, both of whom are neither

prosecutors nor police officers and cannot, at least not on the record before this Court, be liable

for malicious prosecution.

3. Conspiracy to Violate Rights (Count Three)

In Count Three, Plaintiff alleges that Administrator Kirschenbaum, Mayor Walsifer,

Detective Bohrman, and Captain Campbell conspired to violate his constitutional rights. “The

elements of a conspiracy are that two or more persons conspire to deprive a person of constitutional

rights, one or more of the conspirators performs any overt act in furtherance of the conspiracy, and

the overt act injures the plaintiff or deprives him of any rights or privileges of a citizen . . . .”

Lankford v. City of Clifton Police Dep’t, 546 F. Supp. 3d 296, 317 (D.N.J. 2021) (citing Barnes

3 The moment of arrest and the issuance of the Complaint-Summons appears to have been simultaneous. That is,

according to the Incident Report, Detective Bohrman “advised Plaintiff that he was being charged with official

misconduct and theft. He was led to our booking room where he was processed and later released on Summons #1307-

S-2021-000301.” (ECF No. 48-11, Ex. I.)

Foundation v. Twp. of Lower Merion, 242 F.3d 151 (3d Cir. 2001)). In other words, “[t]o prove

such a claim, a plaintiff must show the existence of a conspiracy and a deprivation of civil rights

in furtherance of the conspiracy by a party to the conspiracy.” Id. (citing Jackson-Gilmore v.

Dixon, Civ. No. 04-3759, 2005 WL 3110991, at *12 (E.D. Pa Nov. 17, 2005)).

Defendants argue that summary judgment should be granted because Plaintiff fails to

establish an underlying civil rights violation. (Moving Br. at 29.) Plaintiff argues that Defendants

conspired to violate his constitutional rights by subjecting him to a retaliatory arrest. (Opp’n Br.

at 26.) Plaintiff argues that Defendants arrested him in retaliation for his role in shuttering BFAS,

refusing to sell BFAS property to Defendants, defeating Defendants’ attempt to acquire the former

BFAS headquarters through eminent domain, and due to Plaintiff’s brother and nephew filing suit

against Belmar and the Belmar Director or Public Works in an unrelated matter. (Opp’n Br. at

26.)

Regarding the unrelated lawsuit, the record demonstrates that in September 2020,

Plaintiff’s brother informed the Monmouth County Prosecutor’s Office that a handful of Belmar

public officials, including Administrator Kirschenbaum and Captain Campbell’s father (the

Director of Belmar Public Works), were receiving discounted boat slips at Belmar Marina, using

the Department of Public Works garage to store boats and personal vehicles, and filling up their

personal vehicles at the municipal gas pump. (PRSOF ¶2; PSOF ¶¶23, 25.) The record also

demonstrates that Plaintiff’s nephew sued Captain Campbell’s father for harassment following an

alleged incident that occurred while the nephew worked at the Department of Public Works.

(PRSOF ¶2.) Furthermore, and critically, Administrator Kirschenbaum initiated the investigation

into Plaintiff by preparing a file consisting of documents related to Plaintiff’s use of the municipal

pump, which was eventually given to Detective Bohrman, who would later charge Plaintiff with

theft and official misconduct, with Captain Campbell’s approval. (DSOF ¶¶122, 137.)

Therefore, based on the evidence in the record—including Plaintiff’s involvement in

defeating Belmar’s purchase of the BFAS property, the appearance of impropriety due to

Administrator Kirschenbaum’s involvement in Plaintiff’s investigation, and Captain Campbell’s

decision to sign off on the Complaint-Summons against Plaintiff while there was pending litigation

between Plaintiff’s family and Captain Campbell’s father—the Court concludes that Administrator

Kirschenbaum, Captain Campbell, and Detective Bohrman are not entitled to summary judgment

on Plaintiff’s conspiracy claim. Plaintiff has presented evidence that, if established at trial,

arguably support the conclusion that Detective Bohrman, Captain Campbell, and Administrator

Kirschenbaum acted together to arrest Plaintiff without probable cause for theft and official

misconduct. See Sebastian v. Vorhees Twp., Civ. No. 08-6097, 2011 WL 540301, at *6 (D.N.J.

Feb. 8, 2011) (denying defendants summary judgment on a civil conspiracy claim where the

plaintiff established that defendants conspired to falsely arrest him due to a lack of probable cause).

Accordingly, the Court will deny the Motion as to Count Three with respect to

Administrator Kirschenbaum, Detective Bohrman, and Captain Campbell. The Court will grant

the Motion with respect to Mayor Walsifer considering the lack of evidence in the record to support

his involvement in the conspiracy.

4. Abuse of Process (Count Four)

In Count Four, Plaintiff alleges an abuse of process claim against Administrator

Kirschenbaum, Mayor Walsifer, Detective Bohrman, and Captain Campbell. “A successful claim

of malicious abuse of process . . . requires a defendant’s improper, unwarranted and perverted use

of process after it has been issued.” Stolinski v. Pennypacker, 772 F. Supp. 2d 626, 644–45 (D.N.J.

2011) (quoting Wozniak v. Pennella, 862 A.2d 539, 549 (N.J. Super. Ct. App. Div. 2004) (internal

quotation marks omitted)). “The ‘process’ that must have been abused ‘includes the summons,

mandate, or writ used by a court to compel the appearance of the defendant in a legal action or

compliance with its order.’” Id. (quoting Wozniak, 862 A.2d at 549). For an abuse of process

claim, “process” is a narrow term that “refers to the abuse of procedural methods used by a court

to ‘acquire or exercise its jurisdiction over a person or over specific property.’” Ruberton v.

Gabage, 654 A.2d 1002, 1005 (N.J. Super. Ct. App. Div. 1995). “Process is not abused unless

after its issuance the defendant reveals an ulterior purpose he had in securing it by committing

‘further acts’ whereby he demonstrably uses the process as a means to coerce or oppress the

plaintiff.” Hoffman v. Asseenontv.com, Inc., 962 A.2d 532, 541 (N.J. Super. Ct. App. Div. 2009)

(citing Ruberton, 654 A.2d at 1005) (citations omitted).

Here, Defendants argue that there is no evidence of an ulterior motive for either arresting

Plaintiff or for their decision to charge Plaintiff with theft and official misconduct. (Moving Br.

at 23.) Plaintiff argues that Detective Bohrman, Captain Campbell, Mayor Walsifer, and

Administrator Kirschenbaum attempted to use the criminal charges levied against Plaintiff “as

leverage in their bid to purchase BFAS property.” (Opp’n Br. at 21.) In support of this claim,

Plaintiff points to the testimony of Sean Pringle, a former Belmar police officer, who testified that

Mayor Walsifer told him that if Plaintiff came to see him, he could “take care of this” and “make

everything go away.” (Opp’n Br. at 22.)

Aside from Plaintiff’s assertions that the criminal charges were brought against him as

leverage in a bid for property, there is little evidence to support that Detective Bohrman, Captain

Campbell, Mayor Walsifer, or Administrator Kirschenbaum attempted to or did in fact leverage

the charges so that they may acquire the former BFAS headquarters. However, there is deposition

testimony from Ken Pringle, former counsel to BFAS, who testified that there is “longstanding

animosity between Administrator Kirschenbaum and the Hines” and that Plaintiff’s arrest was in

retaliation “against the Hines family over [their] refusal to sell the first aid building to them.”

(PSOF ¶43.) Moreover, there is additional deposition testimony from Administrator

Kirschenbaum himself, stating that he made the decision to delay filing charges against Plaintiff

to “make sure we kept open lines of communication to achieve a goal of providing a new first aid

squad for the borough residents after March 31, 2021, when the first aid squad ceased to exist.”

(Id. ¶69.)

Rather than show that Defendants used the charges as leverage in the process, the above

testimony instead raises the prospect that Defendants ultimately arrested and charged Plaintiff

when negotiations over the BFAS property took an unfavorable turn. Therefore, when viewing

the evidence in the light most favorable to Plaintiff, the Court finds that there is a genuine dispute

of material fact as to the purpose of the charges brought against Plaintiff and whether the decision

to investigate Plaintiff, initiated by Administrator Kirschenbaum, and the decision to arrest him,

made by Detective Bohrman and Captain Campbell, were ultimately done to harass or oppress

Plaintiff. See Beam v. Twp. Of Pemberton, Civ. No. 19-20380, 2023 WL 2496460, at *34 (D.N.J.

March 14, 2023) (citing Ruberton, 654 A.2d at 1005). The Court therefore finds that a reasonable

jury could determine that Administrator Kirschenbaum, Detective Bohrman, and Captain

Campbell abused the process of an arrest. Once again though, the evidence is lacking to support

any involvement by Mayor Walsifer. Accordingly, summary judgment will be denied as to those

Defendants and granted as to Mayor Walsifer.

5. First Amendment Retaliation (Count Five)

In Count Five, Plaintiff alleges a First Amendment retaliation claim against Administrator

Kirschenbaum, Mayor Walsifer, Detective Bohrman, and Captain Campbell. “[R]etaliation for

the exercise of constitutionally protected rights is itself a violation of rights secured by the

Constitution actionable under § 1983.” Morales v. Maxwell, 600 F. Supp. 3d 497, 518 (D.N.J.

2022) (quoting White v. Napoleon, 897 F.2d 103, 111–12 (3d Cir. 1990)). To state a First

Amendment retaliation claim, a plaintiff must plausibly allege “(1) constitutionally protected

conduct, (2) retaliatory action sufficient to deter a person of ordinary firmness from exercising his

constitutional rights, and (3) a causal link between the constitutionally protected conduct and the

retaliatory action.” Id. (quoting Zimmerlink v. Zapotsky, 539 F. App’x 45, 48 (3d Cir. 2013)). The

existence of probable cause, however, defeats a First Amendment retaliation claim. Nieves v.

Bartlett, 587 U.S. 391, 397–98 (2019); Fehl v. Borough of Wallington, Civ. No. 17-11462, 2021

WL 4473157, at *17 (D.N.J. Sept. 30, 2021), aff’d, Civ. No. 21-3019, 2023 WL 385168 (3d Cir.

Jan. 25, 2023) (free speech retaliation claims failed where underlying arrest was supported by

probable cause).

Defendants argue that Plaintiff’s First Amendment retaliation claim requires Plaintiff to

prove the absence of probable cause for the underlying criminal charges and this claim must

therefore fail. (Moving Br. at 25-26.) Plaintiff argues that he was retaliated against for his

opposition to Belmar’s purchase of the BFAS property and specifically his involvement in getting

the requisite number of signatures to trigger a referendum on Belmar’s eminent domain ordinance.

(Opp’n Br. at 23.) Given that the Court already determined that there are material issues of fact in

dispute concerning whether there was probable cause to arrest Plaintiff, the Court turns to whether

there was a causal link between Plaintiff’s canvassing efforts and his arrest. The parties do not

dispute that Plaintiff’s participation in the canvassing effort is constitutionally protected under the

First Amendment.

To establish the requisite causal connection for a retaliation claim predicated on the First

Amendment, “the plaintiff usually must prove one of two things: (1) an unusually suggestive time

proximity between the protected activity and the allegedly retaliatory action; or (2) a pattern of

antagonism coupled with timing to establish a causal link.” DeFranco v. Wolfe, 387 F. App’x 147,

154 (3d Cir. 2010) (citing Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir.

2007)).

Here, Plaintiff has put forth evidence consistent with both avenues for causation. It is

undisputed that Belmar bid on the BFAS property on May 14, 2021, and adopted its ordinance

seeking to seize the property through eminent domain on July 6, 2021. (DSOF ¶¶25, 27.) Shortly

thereafter, Plaintiff and others circulated a petition in opposition to the ordinance and Belmar

withdrew the ordinance on August 3, 2021. (Id. ¶29.) And Plaintiff was then arrested on

November 30, 2021. The above series of events suggests some proximity between Plaintiff’s

conduct and arrest. Furthermore, there is a demonstrated pattern of antagonism between Plaintiff

and various Defendants related to the BFAS property. For example, Mayor Walsifer testified that

Belmar’s attempted purchase of the property turned into “political football.” (Id. ¶203.) Ken

Pringle testified that there was long standing animosity between Administrator Kirschenbaum and

Plaintiff and that, in his view, “Defendants waited until after the November election to arrest and

charge Plaintiff to ensure that it would not negatively impact ‘a really really tight [election] race

that they couldn’t afford to lose.’” (PSOF ¶46.) And lastly, former Belmar Detective Sean Pringle

also testified that the animosity between Plaintiff and his family and Administrator Kirschenbaum

was well known among other public employees. (Id. ¶49.)

The Court therefore finds that a reasonable jury could infer causation and a causal link

between the circulation of the petition and Plaintiff’s arrest. Notwithstanding Mayor Walsifer’s

testimony, there is little other evidence for a reasonable jury to find him liable on a First

Amendment retaliation claim. Accordingly, the Court will deny the Motion as to Count Five with

respect to Administrator Kirschenbaum, Captain Campbell, and Detective Bohrman, and will grant

the Motion as to Mayor Walsifer.

6. Official Policy (Count Six)

In Count Six, Plaintiff alleges a municipal liability claim against Administrator

Kirschenbaum, Mayor Walsifer, and Belmar. To find municipality liable under § 1983, a plaintiff

must prove the existence of a policy or custom that resulted in a constitutional violation. Monell

v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 694-95 (1978). Liability “must be

founded upon evidence that the government unit itself supported a violation of constitutional

rights.” Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990). A plaintiff can show the existence

of a policy when a decisionmaker with final authority “issues an official proclamation, policy, or

edict.” Id. (quoting Andrews v. City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990)).

Importantly, municipal liability under § 1983 requires an underlying constitutional

violation. See Monell, 436 U.S. at 690–91. Indeed, without a “violation in the first place, there

can be no derivative municipal claim.” See Mulholland v. Gov’t Cnty. of Berks, Pa., 706 F.3d 227,

245 n.15 (3d Cir. 2013); Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (noting that if a municipal

employee “inflicted no constitutional injury . . . it is inconceivable that [the municipality] could be

liable”).

Defendants argue that Plaintiff has not demonstrated that Belmar had an official policy,

custom or practice that permitted officers to violate a citizen’s constitutional rights within the

borough. (Moving Br. at 32–34.) Plaintiff argues that Belmar, Administrator Kirschenbaum, and

Mayor Walsifer enacted an unconstitutional policy to seize control of BFAS by withholding

necessary funding, passing an eminent domain ordinance to seize BFAS property, and harassing

and retaliating against individuals, including Plaintiff, who opposed these actions. (Opp’n Br. at

29.)

First, contrary to Defendants’ position, the Court finds that Belmar “issued an official

proclamation, policy, or edict” when it passed the eminent domain ordinance which would have

allowed it to acquire the BFAS property. See Monell, 436 U.S. at 690 (“Local governing bodies .

. . can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where . . . the

action that is alleged to be unconstitutional implements or executes a policy statement, ordinance,

regulation, or decision officially adopted and promulgated by that body’s officers.”).

However, to succeed on a Monell claim, a plaintiff must also demonstrate that the policy

“inflicted the injury in question.” Estate of Roman v. City of Newark, 914 F.3d 789, 798 (3d Cir.

2019). Notably, Defendants fail to argue that the policy did not result in a constitutional violation,

in part because they argue there is no policy. Plaintiff argues that Defendants violated his First

Amendment rights by retaliating against him “for obtaining sufficient referendum petition

signatures to defeat Defendants’ attempt to obtain BFAS property by enacting an eminent domain

ordinance.” (Opp’n Br. at 29.) Here, for the reasons stated in the previous section, the Court finds

that there is sufficient evidence for a jury to find that certain Defendants committed First

Amendment retaliation. (See DSOF ¶¶25, 27, 29, 203; PSOF ¶¶46, 49.) Therefore, at least one

constitutional violation exists to provide a basis to hold Defendants liable under § 1983. See, e.g.,

Hohsfield v. Staffieri, Civ. No. 21-19295, 2021 WL 5086367, at *4 (D.N.J. Nov. 1, 2021) (finding

that the plaintiff’s claims against the township failed because the court dismissed underlying civil

rights claims).

At this stage, though, there is a dispute of fact as to whether the existence of the policy

caused Plaintiff’s purported constitutional violation. Summary judgment is therefore improper on

this claim as to Administrator Kirschenbaum and Belmar but will be granted as Mayor Walsifer

due to the complete lack of evidence to support his involvement in the policy’s enactment.

B. STATE LAW CLAIMS

Plaintiff also brings state law claims under the New Jersey Civil Rights Act (Count Seven)

and under the New Jersey Constitution for false arrest (Count Eight), malicious prosecution (Count

Nine), and abuse of process (Count Ten). The Court addresses each claim in turn.

1. New Jersey Civil Rights Act (Count Seven)

Plaintiff asserts a violation of the New Jersey Civil Rights Act (“NJCRA”) against

Detective Bohrman, Captain Campbell, Administrator Kirschenbaum, and Mayor Walsifer. The

NJCRA was modeled after 42 U.S.C. § 1983 and creates a private cause of action for violations of

civil rights secured under either the United States or New Jersey Constitutions. Slinger v. New

Jersey, Civ. No. 07–5561, 2008 WL 4126181, *5–6 (D.N.J. Sept. 4, 2008), rev’d on other grounds,

366 F. App’x 357 (3d Cir. 2010); Armstrong v. Sherman, Civ. No. 09–716, 2010 WL 2483911, *5

(D.N.J. June 4, 2010). “The NJCRA is co-extensive with Section 1983.” White, 500 F. Supp. 3d

at 308; see also Hottenstein v. City of Sea Isle City, 977 F. Supp. 2d 353, 365 (D.N.J. 2013) (“This

district has repeatedly interpreted [the] NJCRA analogously to § 1983.” (quoting Pettit v. New

Jersey, 2011 WL 1325614, at *3 (D.N.J. Mar. 30, 2011))). Because the “allegations under the

separate constitutions are virtually identical, and federal and New Jersey law governing these

violations are substantially similar,” Middleton v. City of Ocean City, Civ. No. 2014 WL 2931046,

at *5 (D.N.J. June 30, 2014), the Motion will be denied as to Detective Bohrman and Captain

Campbell but, for the same reasons as stated above, will be granted as to Mayor Walsifer.

2. False Arrest (Count Eight)

Plaintiff also brings a state law claim for false arrest against Belmar, Administrator

Kirschenbaum, Detective Bohrman, Captain Campbell, and Mayor Walsifer under the New Jersey

Constitution. Under New Jersey law, “[a] basis for a suit for false arrest arises where the aggrieved

party is arrested without legal authority, as where he is arrested pursuant to process that is void.

False arrest, or false imprisonment, is the constraint of the person without legal justification.”

Mesgleski v. Oraboni, 748 A.2d 1130, 1138 (N.J. Super. Ct. App. Div. 2000). Because the Court

has already determined that there are material facts in dispute that must go to a jury to determine

if Plaintiff’s arrest lacked probable cause, the Court will similarly deny summary judgment on this

Count as to Administrator Kirschenbaum, Detective Bohrman, and Captain Campbell, but will

again grant summary judgment as to Mayor Walsifer.

3. Malicious Prosecution (Count Nine)

Plaintiff also brings a claim for malicious prosecution against the individual Defendants.

Unlike a Section 1983 claim for malicious prosecution, New Jersey law does not contain the

“requirement that the plaintiff [be] deprived of his or her liberty.”4 Roberts, 648 F. Supp. 3d at

535. A plaintiff can allege emotional distress, loss of employment, and the like, which would be

recoverable on a claim for malicious prosecution under state law. See, e.g., Rumbauskas v. Cantor,

649 A.2d 853, 856 (N.J. 1994) (noting that in malicious prosecution cases “some of the major

elements of damages are humiliation, embarrassment, mental suffering, and wounded

sensibilities”); Epperson v. Wal-Mart Stores, Inc., 862 A.2d 1156, 1163 (N.J. Super. Ct. App. Div.

2004) (noting that damages related to loss of present or prospective employment which can be

proved with reasonable certainty to have been caused by the prosecution are recoverable).

Defendants rely here on the same arguments made in support of summary judgment for

Plaintiff’s federal malicious prosecution claim under the United States Constitution. That is,

Defendants insist that there was probable cause to arrest Plaintiff for theft and official misconduct.

4 The elements of a malicious prosecution claim are: (1) the defendant initiated a criminal proceeding; (2) the criminal

proceeding ended in the plaintiff’s favor; (3) the defendant initiated the proceeding without probable cause; (4) the

defendant acted maliciously or for a purpose other than bringing the plaintiff to justice; and (5) the plaintiff suffered

a deprivation of liberty consistent with the concept of seizure as a consequence of a legal proceeding. Zimmerman v.

Corbett, 873 F.3d 414, 418 (3d Cir. 2017). “Under New Jersey law, a malicious prosecution claim consists of the first

four of these elements, without the requirement that the plaintiff was deprived of his or her liberty.” Roberts, 648 F.

Supp. 3d at 535 (citing Trabal v. Wells Fargo Armored Serv. Corp., 269 F.3d 243, 248 (3d Cir. 2001)).

Defendants raise no other argument in favor of summary judgment on this claim. Therefore, the

Court finds, as it did with the federal malicious prosecution claim brought under the United States

Constitution, that based on the record before the Court, viewed in the light most favorable to

Plaintiff, a reasonable juror could conclude that Detective Bohrman and Captain Campbell lacked

probable cause as to each offense charged. Accordingly, summary judgment will be denied as to

Administrator Kirschenbaum, Detective Bohrman, and Captain Campbell and granted as to Mayor

Walsifer.

4. Abuse of Process (Count Ten)

Lastly, Plaintiff brings an abuse of process claim under state law against the individual

Defendants. To establish a claim for abuse of process under New Jersey state law, a plaintiff must

show: “1) an ulterior motive and 2) some further act after an issuance of process representing the

perversion of the legitimate use of process.” See Mosley v. Delaware River Port Authority, J.P.,

Civ. No. 99-4147, 2000 WL 1534743, at *9 (D.N.J. Aug. 7, 2000) (applying New Jersey law);

Stolinski v. Pennypacker, 772 F. Supp. 2d 626, 644 (D.N.J. 2011). Here, for the same reasons as

discussed above pertaining to Count Four, summary judgment will be denied as to Administrator

Kirschenbaum, Detective Bohrman, and Captain Campbell and granted as to Mayor Walsifer.

V. CONCLUSION

For the reasons stated above, the Court will GRANT-IN-PART and DENY-IN-PART the

Motion. An appropriate Order will follow.

Date: July 30, 2025

s/ Zahid N. Quraishi

ZAHID N. QURAISHI

UNITED STATES DISTRICT JUDGE