EIVICH v. EAST GREENWICH TOWNSHIP

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

EDWARD EIVICH,

Case No. 20–cv–06851–ESK–EAP

Plaintiff,

v.

OPINION

EAST GREENWICH TOWNSHIP,

et al.,

Defendants.

KIEL, U.S.D.J.

THIS MATTER is before the Court on the motion for summary judgment

(Motion) filed by defendants East Greenwich Township, Sergeant Michael

Robostello, and former Chief of Police Anthony Francesco. (ECF No. 119, 119–

1 (Mov. Br.).) Plaintiff filed an opposition to the Motion (Opposition) (ECF No.

123–1 (Opp’n Br.))1, in response to which defendants filed a reply (Reply) (ECF

No. 124 (Reply Br.)). For the following reasons, the Motion is GRANTED in

part and DENIED in part.

I. FACTUAL BACKGROUND

On September 21, 2019, plaintiff and his brother-in-law, Andrew

Melnychuk, observed a speeding motorcycle and ATV racing in front of

Melnychuk’s home. (ECF No. 119–4 (Mov. Br. Ex.) D–1 p. 4.) Melnychuk

went into the street to gesture to the operators of the motorcycle, later

discovered to be Cole Atkinson, and ATV to slow down. (Id.) Cole proceeded

1 Plaintiff failed to comply with paragraph six of my rules and preferences

directing parties to “not incorporate my reference, in their briefs, their numbered

statements of material facts … or responses thereto as a substitute for a statement of

facts.” (See Opp’n Br. p. 5.)

directly towards Melnychuk at a fast speed. (Id.) When attempting to swerve

around Melnychuk, Cole lost control of his motorcycle. (Id.) Shortly

thereafter, Cole’s mother, Robin Atkinson, and brother, Stanley Atkinson, came

to Melnychuk’s home and a physical fight ensued. (Id. pp. 4, 5.)2

At 6:04 p.m., the Township’s police department dispatched patrols to the

scene. (Mov. Br. Ex. D–3 p. 52.) Robostello arrived without any backup and

observed a motorcycle in the roadway and multiple people, including plaintiff

and Stanley, fighting on Melnychuk’s front lawn. (Id.; Mov. Br. Ex. D–9 at

18:03:36–18:03:47.) 3 About 25 people were at the scene. (Mov. Br. Ex. D–19

p. 255.) Robostello activated his siren, exited his patrol car, and directed

everyone to “break it up” and get “on the ground.” (Mov. Br. Ex. D–3 p. 52;

Mov. Br. Ex. D–9 at 18:03:36–18:03:47.) Stanley ran over to Robostello, who

again ordered him to the ground. (Mov. Br. Ex. D–3 p. 52; Mov. Br. Ex. D–9 at

18:03:36–18:03:47.) While Robostello was rendering aid to Melnychuk,

Stanley ran back to plaintiff to reengage in fighting. (Mov. Br. Ex. D–3 p. 52;

Mov. Br. Ex. D–9 at 18:03:47–18:04:00.) Robostello again separated Stanley

and plaintiff and repeated his order for everyone to stay down. (Mov. Br. Ex.

D–3 p. 52; Mov. Br. Ex. D–9 at 18:03:47–18:04:00.) Robostello put his knee in

Stanley’s back and handcuffed him. (Mov. Br. Ex. D–3 p. 52; Mov. Br. Ex. D–

19 p. 251.) Plaintiff alleges that he did not hear Robostello’s orders, and

because he “kind of felt defenseless laying on the ground,” he stood up. (Mov.

2 Bystanders captured portions of the fight on their cellphones. (Mov. Br. Ex.

D–8, D–10.) These videos were provided to the Court in a thumb drive that remains

in the possession of the Court pursuant to Court policy. The same applies for the

video files at Exhibits D–7, D–9, D–11, and D–12.

3 Robostello was off duty when he received the dispatch. (Mov. Br. Ex. D–19

pp. 253, 254.) Since he was near the scene, he attended to the incident but did not

have his body-worn camera with him. (Id.) Instead, his patrol vehicle’s recording

software captured part of the incident. (Id.; Mov Br. Ex. D–9.)

Br. Ex. D–2 pp. 39–41.) Plaintiff emphasizes that although “at that point, [he]

didn’t have any broken bones,” Robostello commanded him to lay face-down on

the ground and plaintiff immediately felt a lot of force to his back. (Id. pp. 26–

32, 34 40.) Robostello had put his knee into plaintiff’s back to handcuff him.

(Id.) Plaintiff does not know whether Robostello used one or both knees

because Robostello was behind him. (Id. pp. 34, 40.)

Robostello has a different account of what happened after he handcuffed

Stanley. According to Robostello, he saw plaintiff crawling away and, for the

third time, disobey his order to stand down. (Mov. Br. Ex. D–3 p. 52; Mov. Br.

Ex. D–19 p. 251.) Robostello tripped as he was heading towards plaintiff.

(Mov. Br. Ex. D–19 pp. 250, 251.) Robostello then got on his knees and came

to his feet. (Id.) While in a squatted position, Robostello placed his knee in

plaintiff’s back for approximately ten seconds and handcuffed him. (Id. at

pp. 250, 251, 260; Mov. Br. Ex. D–3 p. 52.)4 Robostello explained that he “was

trying to just get the whole situation under control.” (Mov. Br. Ex. D–19

p. 251.) Consistent with his training, Robostello was permitted to place his

knee on a subject’s back to stabilize himself and the subject when leaning over

to handcuff the subject. (Id. p. 246.)

Plaintiff, walking of his own accord, was escorted to a patrol vehicle.

(Mov. Br. Ex. D–10 at 4:19.) While seated in the back seat of the patrol vehicle,

plaintiff explained to Robostello’s supervisor, Lieutenant Kyle Messick, that he

had been defending himself and was upset about getting arrested. (Mov. Br.

Ex. D–12 at 20:40–24:40.) Messick uncuffed plaintiff and clarified to him that

he was not under arrest. (Id.) Plaintiff told Messick that he sustained a

4 Videos of the incident briefly shows Robostello kneeling on Melnychuk’s front

lawn attending to who appears to be plaintiff laying on the ground. (Mov. Br. Ex. D–

10 at 0:02, 0:13–0:28.) Robostello then walks over to who has been identified as

Stanley. (Id.) Stanley is seen sitting up and Robostello crouches behind him. (Id.)

severe back injury two weeks earlier from a motor vehicle incident and that in

addition to Stanley having jumped him, Robostello stuck his knee into his back.

(Id. at 20:40–24:40, 32:00–33:10.) Messick explained to plaintiff that

Robostello acted as such to get the situation under control. (Id. at 33:10–

33:35.)

In response to Messick asking plaintiff whether he wanted an ambulance,

plaintiff said he would visit an urgent care himself. (Id. at 24:28–24:34.)

Nonetheless, ambulance personnel attended to plaintiff and transported him to

the hospital. (Id. at 38:20–39:00; Mov. Br. Ex. D–6.) Plaintiff complained to

hospital staff about facial, back, and side pain sustained while trying to break

up a fight. (Mov. Br. Ex. D–6 p. 87.) Plaintiff was discharged the next

morning on September 22, 2019. (See generally Mov. Br. Ex. D–6.) That

evening, Messick visited plaintiff at his home and prepared a supplemental

report. (Mov. Br. Ex. D–13 p. 107.) The supplemental report provides

plaintiff’s version of the incident but does not mention Robostello. (Id.)

On September 25, 2019, plaintiff provided a recorded statement of the

incident to Detective Daniel Abate. (Mov. Br. Ex. D–4 pp. 54–60.) Plaintiff

said that Stanley was hitting him like a mixed martial arts fighter and that he

was half beaten to death, but attributed his broken ribs and damaged lungs to

Robostello having “flopped on [him] with his knees.” (Id. pp. 57, 58.) Abate

gave plaintiff the option to open an internal affairs investigation against

Robostello, but plaintiff explained that he did not yet know how he was going

to proceed. (Id. pp. 58, 59.)

Robostello entered on September 26, 2019, a use of force report5 to explain

why he placed his knee in Stanley’s and plaintiff’s back. (Mov. Br. Ex. D–14

5 Although Robostello testified at his deposition that he had not prepared a use

of force report for this incident (Mov. Br. Ex. D–19 p. 244), the report was produced

during discovery (Mov. Br. Ex. D–14 pp. 109–111). Robostello explained that because

pp. 109–111.) Robostello reported that because plaintiff was resisting police

officer control and was actively fighting, plaintiff was put in a compliance hold.

(Id.) Robostello noted that plaintiff was not armed during the incident. (Id.

p. 111.) Abate reviewed Robostello’s use of force report and determined that

Robostello “follow[ed] the proper course of action for a scene of this magnitude,

without any immediate backup by his side.” (Id. p. 110.)

On October 2, 2019, plaintiff emailed the Township’s mayor about the

incident and complained of Robostello injuring him. (Mov. Br. Ex. D–15

pp. 113, 114.) Plaintiff described Robostello as having jumped on his back with

all his weight, knocking the wind out of him and causing him to break his ribs.

(Id. p. 114.) Plaintiff’s email was referred to the Township solicitor, who

advised plaintiff that although the incident was under active investigation,

plaintiff could speak with the Township’s police department about filing a

formal complaint. (Id. pp. 114, 115.) That same day, plaintiff returned to

speak with Abate about obtaining documents and records from the incident.

(Mov. Br. Ex. D–16.) Abate told plaintiff that an investigation into the

incident was pending, but plaintiff could lodge an internal affairs complaint

against Robostello. (Id.) Plaintiff said that he did not want to pursue

anything until he had more information. (Id.)

In response to interrogatories, plaintiff stated that because Robostello had

jumped on him and drove his knee into his back, he sustained broken ribs and

a collapsed lung. (Mov. Br. Ex. D–5 p. 63.) Plaintiff added that Robostello

“ripped his arms behind his back” and “roughly threw him in the rear of a patrol

vehicle where [he] was held against his will.” (Id.) Plaintiff noted that at that

time, he complained to another officer about having trouble breathing. (Id.)

he was deposed four years after the incident, and he had not actively fought plaintiff,

he forgot that he prepared such a report. (Mov. Br. p. 15.)

The only treatment plaintiff received for his ribs was at the hospital on

the day of the incident. (Mov. Br. Ex. D–2 p. 48.) Plaintiff underwent

physical therapy and received injections for his shoulder pain. (ECF No. 123–

13 p. 2.)

II. PROCEDURAL HISTORY

Plaintiff commenced this action on June 4, 2020. (ECF No. 1 (Compl.)).

Pursuant to 42 U.S.C. § 1983 and the New Jersey Civil Rights Act (NJCRA),

plaintiff’s complaint asserts claims for excessive force, false

arrest/imprisonment, abuse of process, and unlawful policy, practice or custom

and inadequate training claims. (Id.) Plaintiff also asserts claims for assault

and battery, intentional infliction of emotional distress, and negligence under

the New Jersey Tort Claims Act (NJTCA). (Id.)6

On August 24, 2020, Stanley moved to dismiss the claims asserted against

him. (ECF No. 8.) Stanley’s motion to dismiss was granted in part on March

8, 2021. (ECF Nos. 28, 29.) This action was stayed between June 2021 and

January 2023 during the pendency of Stanley’s criminal proceedings involving

the fight. (ECF Nos. 34, 63.) On May 6, 2024, the Court dismissed the claims

against Stanley upon the parties’ stipulation. (ECF Nos. 88, 89.) With leave

from the Court, the Township, Robostello, and Francesco filed a third-party

complaint against Stanley on July 9, 2025. (ECF Nos. 101, 102.) Pursuant to

the Court’s briefing schedule (ECF No. 115), the Motion was filed on December

13, 2024 (Mov. Br.). The Opposition was filed on January 21, 2025. (Opp’n

Br.). The Reply was filed on January 27, 2025. (Reply Br.)

6 Plaintiff named Stanley in only the false arrest/imprisonment and NJTCA

claims. (Compl. ¶¶ 46–66.) It is unclear whether plaintiff intended to assert his

supplemental state law claim for false arrest/imprisonment under the NJCRA or

NJTCA. (See Compl. ¶¶ 52–56.)

III. LEGAL STANDARD

Summary judgment is appropriate if “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). A fact is material if it will “affect the outcome of the suit under

the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

A dispute is genuine if a “reasonable jury could return a verdict for the

nonmoving party.” Id. The movant “bears the burden of demonstrating the

absence of any genuine issues of material fact.” Aman v. Cort Furniture Rental

Corp., 85 F.3d 1074, 1080 (3d Cir. 1996). The party may satisfy its burden by

“produc[ing] evidence showing the absence of a genuine issue of material fact”

or “by ‘showing’—that is, pointing out to the district court—that there is an

absence of evidence to support the nonmoving party’s case.” Celotex Corp. v.

Catrett, 477 U.S. 317, 325 (1986). If the movant makes this showing, the

nonmovant 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). Instead, the nonmovant must “point to

concrete evidence in the record that supports each and every essential element

of his case.” Orsatti v. N.J. State Police, 71 F.3d 480, 484 (3d Cir. 1995).

The Court’s role is not to weigh the evidence and decide the truth, but to

determine if there is a genuine issue for trial. Anderson, 477 U.S. at 249. In

making that decision, “[a]ll facts and inferences are construed in the light most

favorable to the non-moving party,” and credibility determinations are for the

fact finder. Boyle v. Cnty. of Allegheny, 139 F.3d 386, 393 (3d Cir. 1998); Big

Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).

However, “the existence of a videotape capturing the events underlying an

excessive force claim presents an ‘added wrinkle’ to this standard.” Kaplon v.

Madison Police Dep’t, No. 20–20559, 2025 WL 892884, at *3 (D.N.J. Mar. 24,

2025) (quoting Scott v. Harris, 550 U.S. 372, 378 (2007)). “When opposing

parties tell two different stories, one of which is blatantly contradicted by the

record, so that no reasonable jury could believe it, a court should not adopt that

version of the facts for purposes of ruling on a motion for summary judgment.”

Id. (quoting Scott, 550 U.S. at 380). “Under such circumstances, a court must

view ‘the facts in the light depicted by the videotape.’” Id. (quoting Scott, 550

U.S. at 381); see Knight v. Walton, 660 F. App’x 110, 112 (3d Cir. 2016) (noting

that when a recording blatantly contradicts the non-movant’s version of the

facts such that a reasonable jury could not believe it, “the Court shall view the

facts as depicted in the recording, rather than in the non-movant’s favor”).

IV. DISCUSSION

A. Section 1983 and NJCRA Claims

Section 1983 establishes a cause of action against “[e]very person who,

under color of any statute, ordinance, regulation, custom, or usage … depriv[es]

[another] of any rights, privileges, or immunities secured by the Constitution.”

42 U.S.C. § 1983. To succeed on such a claim, a plaintiff must show: “(1) the

violation of a right secured by the Constitution or laws of the United States and

(2) that the alleged deprivation was committed or caused by a person acting

under color of state law.” Kaplon, 2025 WL 892884, at *3 (quoting Roberson v.

Borough of Glassboro, 570 F. Supp. 3d 211, 226 (D.N.J. 2021)). Meanwhile,

“[t]he NJCRA ‘is a state corollary to [Section] 1983’” that “creates a private right

of action for the violation of civil rights secured under the New Jersey

Constitution.” Id. (quoting Armstrong v. Sherman, No. 09–00716, 2010 WL

2483911, at *5 (D.N.J. June 4, 2010)). Since NJCRA is interpreted

analogously to Section 1983, I will analyze plaintiff’s NJCRA claims though the

lens of Section 1983. Id.

1. Claims Against Robostello

a. Excessive Force

“The right to be free from excessive force during a seizure emanates from

the Fourth Amendment’s prohibition against unreasonable seizures.” Kaplon,

2025 WL 892884, at *7. “A seizure occurs only ‘when [a police officer], by

means of physical force or show of authority, has in some way restrained the

liberty of a citizen.’” Id. (quoting United States v. Crandell, 554 F.3d 79, 84

(3d Cir. 2009)). “Police officers are privileged to commit a battery pursuant to

a lawful arrest, but the privilege is negated by the use of excessive force.” Id.

(quoting Groman v. Twp. of Manalapan, 47 F.3d 628, 633–34 (3d Cir. 1995)).

“A claim for excessive force under the Fourth Amendment requires a

plaintiff to show that a seizure occurred and that it was unreasonable.” Id.

(quoting Curley v. Klem, 298 F.3d 271, 279 (3d Cir. 2002)). To determine the

reasonableness of the force, courts must balance: “(1) the severity of the crime

at issue[;] (2) whether the suspect poses an immediate threat to the safety of

the officers or others[;] and (3) whether he is actively resisting arrest or

attempting to evade arrest by flight.” Id. The Third Circuit has also outlined

the following factors to consider: (1) “whether the force applied caused injury”;

(2) “the possibility that the suspect is violent or dangerous”; (3) “the duration of

the police officers’ action”; (4) “whether the force occurred while officers were

effecting an arrest”; and (5) “the possibility that the suspect may be armed.”

Id. These factors must be weighed “objectively and ‘from the perspective of a

reasonable officer on the scene, rather than with the 20/20 vision of hindsight.’”

Id. (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)). “Not every push or

shove, even if it may later seem unnecessary in the peace of a judge’s chambers,

violates the Fourth Amendment.” Graham, 490 U.S. at 396 (quoting Johnson

v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973)).

Defendants argue that because plaintiff’s excessive force claim is based on

speculation and conjecture and Robostello’s use of force was reasonable, this

claim should be dismissed. (See generally Mov. Br.; Reply. Br.) Defendants

note that plaintiff offers varying accounts of the force Robostello used. (Mov.

Br. pp. 28–30; Reply Br. pp. 4–10.) For example, when speaking to Messick

while in the back of the patrol vehicle, plaintiff initially said that “he roughed

me up and put his knee on my back,” without identifying the “he.” (Mov. Br.

p. 28.) Plaintiff allegedly did not complain to hospital staff about Robostello’s

actions and, only several days after the incident, did plaintiff say that

Robostello “flopped” on top of him. (Id. p. 29.) Plaintiff later changed his

story to say that Robostello “jumped” on him and drove his knee into his back

while also ripping his arms, which caused him injuries. (Id.) Furthermore,

plaintiff fails to present evidence that his injuries were in fact caused by

Robostello. (Id. p. 18; Reply Br. p. 10.) Plaintiff testified that he did not see

Robostello after Stanley was handcuffed. (Reply Br. p. 10.) Thus, defendants

question plaintiff’s account of the incident. (Reply Br. p. 10.) Defendants also

argue that considering that Robostello was responding to a chaotic scene

without backup, and plaintiff admitted that Robostello needed to get the scene

under control, Robostello’s use of force was not excessive. (Mov. Br. p. 27;

Reply Br. p. 12.)

I find that the reasonableness of Robostello’s use of force is a triable issue

for a jury. See Rivas v. City of Passaic, 365 F.3d 181, 199 (3d Cir. 2004)

(explaining that when an injured party presents facts suggesting that he

presented no threat to the officers, the reasonableness of a takedown is for the

jury). The parties agree that Stanley was the aggressor and plaintiff was the

victim. (Opp’n Br. p. 8.) Thus, plaintiff argues that by the time Robostello

used forced on plaintiff, Stanley was already handcuffed, and the scene was

under control. (Id. p. 11.) Although the videos from the incident establish

that Robostello repeatedly directed everyone to stay down, a dispute exists as

to whether plaintiff heard Robostello’s commands and whether plaintiff merely

stood up or was crawling away after Stanley was handcuffed. (Id. pp. 11, 21.)

Defendants have neither argued nor presented evidence that plaintiff was an

immediate threat or resisting arrest. (Id. p. 11.) Plaintiff was uncuffed upon

sitting in the patrol vehicle and was neither arrested nor charged. (Id.)

Factual questions exist as to why Robostello needed to stabilize plaintiff with

his knee and the reasonableness of the level of force used by Robostello. (Id.

p. 11.) Robostello testified that he “did not use any type of physical force” and

that “[i]t was just contact affecting the arrest.” (Reply Br. p. 9; Mov. Br. Ex. D–

19 p. 252.) Plaintiff testified that Robostello “flopped” on his back. (Mov. Br.

Ex. D–4 pp. 57, 58.) Furthermore, regardless of whether plaintiff’s injuries

were caused by Robostello’s actions, an officer can violate a person’s right to be

free from excessive force in the absence of physical injury. Velius v. Twp. of

Hamilton, 754 F. Supp. 2d 689, 695 (D.N.J. 2010), aff’d, 466 F. App’x 133 (3d

Cir. 2012). Accordingly, the Motion will be denied as to this claim.7

7 “Just as the granting of summary judgment is inappropriate when a genuine

issue exists as to any material fact, a decision on qualified immunity will be premature

when there are unresolved disputes of historical fact relevant to the immunity

analysis.” Curley, 298 F.3d at 278. Therefore, I need not address Robostello’s

assertion of qualified immunity. See Helms v. Ryder, No. No. 14–02470, 2017 WL

1356323, at *5 (D.N.J. Apr. 12, 2017) (observing that step one of the qualified immunity

analysis as to whether there was a constitutional violation is essentially a factual

question “properly presented to a jury”); Morrison v. Phillips, Civ. No. 06–00812, 2008

WL 4308215, at *11 (D.N.J. Sept. 16, 2008) (noting that the question of whether the

defendants are entitled to qualified immunity can be determined only after the jury

resolves the factual question of whether the defendants use of force violated the

plaintiff’s constitutional rights). Beyond reciting the standard for qualified immunity

and reiterating their argument as to why the excessive force should be dismissed,

defendants do not expressly argue how or why Robostello is entitled to qualified

immunity. (Mov. Br. pp. 32, 33; Reply Br. p. 12.)

b. False Arrest/Imprisonment

“Claims under [Section] 1983 for false arrest and false imprisonment are

grounded in the Fourth Amendment protection against unreasonable seizures.”

Tucker v. City of Philadelphia, 679 F. Supp. 3d 127, 137 (D.N.J. 2023). To

survive dismissal on false arrest/imprisonment claims, a plaintiff must allege

facts showing that he was arrested without probable cause or detained without

legal process. Id.; James v. City of Wilkes-Barre, 700 F.3d 675, 682–83 (3d Cir.

2012). “Probable cause for an arrest 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.’” Tucker, 679 F. Supp. 3d at 137

(quoting United States v. Myers, 308 F.3d 251, 255 (3d Cir. 2002)).

Defendants incorporate by reference their excessive force argument in

support of their position that these claims should be dismissed. (See Mov. Br.

p. 33; Reply Br. p. 12.) Plaintiff asserts that his detention was without legal

justification. (Opp’n Br. p. 30.) Plaintiff, however, also notes that he “does

not dispute … Robostello’s authority to handcuff [him] to get the scene under

control.” (Id. p. 12.) As such, plaintiff seemingly concedes that he was not

falsely arrested or imprisoned.

The record demonstrates that after plaintiff was handcuffed and seated

inside a patrol vehicle, plaintiff was uncuffed and advised that he was not under

arrest. (Mov. Br. Ex. D–10 at 4:19, 20:40–24:40.) Furthermore, plaintiff does

not indicate that police accompanied him to the hospital in the ambulance. See

James, 700 F.3d at 683 (weighing the fact that the plaintiff was not

accompanied by police inside the ambulance in favor of dismissing the plaintiff’s

false imprisonment claim). Thus, the record supports finding that plaintiff

was not seized within the meaning of the Fourth Amendment. See id.8 Since

no dispute exists that Robostello properly handcuffed plaintiff to control the

scene, the Motion will be granted as to these claims.

c. Abuse of Process

“[A] [S]ection 1983 claim[ ] for malicious abuse of process lies where

‘prosecution is initiated legitimately and thereafter is used for a purpose other

than that intended by the law.’” Kazar v. City of Camden, No. 15–01527, 2016

WL 680432 (D.N.J. Feb. 19, 2016) (quoting Rose v. Bartle, 871 F.2d 331, 350 (3d

Cir. 1989). “The gravamen of an abuse of process tort ‘is not the wrongfulness

of the prosecution, but some extortionate perversion of lawfully initiated

process to illegitimate ends.’” Id. (quoting Heck v. Humphrey, 512 U.S. 477,

486 n.5 (1994)). “Cognizable injury for abuse of process is limited to the harm

caused by the misuse of process, and does not include harm (such as conviction

and confinement) resulting from that process[ ] being carried through to its

lawful conclusion.” Id. (quoting Heck, 512 U.S. at 486 n.5). “To establish an

abuse of process claim ‘there must be some proof of a definite act or threat not

authorized by the process, or aimed at an objective not legitimate in the use of

[the] process.’” Id. (alteration in original) (quoting Ference v. Twp. Of

Hamilton, 538 F.Supp.2d 785, 798 (D.N.J. 2008)).

Plaintiff’s abuse of process claim is based upon Robostello allegedly

making false statements about the incident, falsifying records, and mishandling

and/or withholding evidence to initiate municipal court proceedings against

8 To the extent defendants argue that Robostello is entitled to qualified

immunity as to the false arrest/imprisonment claims, I find that because plaintiff

concedes that Robostello had the right to handcuff him and that his statutory and

constitutional rights were not violated, Robostello is shielded from these claims. See

Pearson v. Callahan, 555 U.S. 223, 231 (2009) (“The doctrine of qualified immunity

protects government officials from liability for civil damages insofar as their conduct

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

reasonable person would have known.”).

plaintiff. (Compl. ¶¶ 35, 36.) However, neither the pleadings, Motion papers,

nor record make any reference to these allegations. A complete review of the

record indicates that plaintiff was not charged in connection with this incident.

Although the allegations relating to the abuse of process claim appear in

paragraphs 35 and 36 of the Complaint, there is no evidence in the Motion-

record to support plaintiff’s claims that Robostello made false statements and

withheld evidence.

Defendants argue that this claim should be dismissed because, like the

false arrest/imprisonment claim, plaintiff concedes that Robostello had the

authority to handcuff him. (Mov. Br. p. 33; Reply Br. p. 12.) Plaintiff makes

no effort to defend this claim. (See generally Opp’n Br.) Because it is well

settled that “[a] party’s ‘failure to respond to the defendant’s arguments on

summary judgment constitutes an abandonment of th[o]se causes of action,”

summary judgment as to this claim is warranted on this basis alone. Greene

v. Elizabeth Police Dep’t, No. 18–08972, 2023 WL 6233124, at *5 (D.N.J. Sept.

26, 2023) (quoting Brenner v. Twp. of Moorestown, No. 09–00219, 2011 WL

1882394, *11 (D.N.J. May 17, 2011)).

2. Claims against the Township and

Francesco

Plaintiff asserts claims against the Township and Francesco for failure to

train and failure to conduct internal affairs investigations. (Compl. ¶¶ 38–45.)

Plaintiff alleges that had the Township’s officers been provided adequate use of

force training, he would not have been injured. (Opp’n Br. pp. 31–36.)

Plaintiff cites to Robostello’s deposition testimony where he testified that he did

not prepare a use of force report—when his use of force report was produced in

discovery—as evidence that the Township’s officers do not understand what

constitutes physical force. (Id. p. 32.) As to the failure to investigate claim,

plaintiff asserts that although he did not pursue filing an internal affairs

complaint against Robostello, the Township had a responsibility to initiate its

own investigation into Robostello. (Id. pp. 36–44.) Defendants counter that

because plaintiff has produced no evidence of an unconstitutional policy or

deliberate indifference nor an underlying constitutional violation, these claims

must be dismissed. (Mov. Br. pp. 33, 34; Reply Br. pp. 12–15.)

“To establish a [Section] 1983 municipal liability claim, a plaintiff ‘must

demonstrate that the violation of rights was caused by the municipality’s policy

or custom.’” Kaplon, 2025 WL 892884, at *8 (quoting Thomas v. Cumberland

Cnty., 749 F.3d 217, 222 (3d Cir. 2014)). “A successful Monell claim must

therefore establish: (1) an underlying constitutional violation; (2) a policy or

custom attributable to the municipality; and (3) that the constitutional violation

was caused by the municipality’s policy or custom.” Id.

a. Failure to Train

“When deciding if a [municipality] should be liable for failure to train or

supervise its officers, ‘the focus must be on adequacy of the training program in

relation to the tasks the particular officers must perform.’” Adams v. City of

Atl. City, 294 F. Supp. 3d 283, 304 (D.N.J. 2018) (quoting City of Canton v.

Harris, 489 U.S. 378, 390 (1989)). “For liability to attach, the identified

deficiency in a [municipality’s] training program must be closely related to the

plaintiff’s injury.” Id. “The reason for this high standard is because to adopt

a lower standard of fault and causation “would open municipalities to

unprecedented liability under [Section] 1983.” Id. (quoting City of Canton, 489

U.S. at 392). Therefore, such a claim can only succeed if a plaintiff shows the

municipality’s “failure to train constituted deliberate indifference to the

constitutional rights of the citizens who come in contact with the police.” Id.

Similarly, to hold an official liable for failure to supervise based on a policy

or practice, a plaintiff must first “identify a supervisory policy or practice that

the supervisor failed to employ.” Womack v. Moleins, No. 10–02932, 2015 WL

420161, at *3 (D.N.J. Jan. 30, 2015) (quoting Barkes v. First Corr. Med., Inc.,

766 F.3d 307, 317 (3d Cir. 2014). The plaintiff must provide sufficient facts

that, if true, would show: “(1) the policy or procedures in effect at the time of

the alleged injury created an unreasonable risk of a constitutional violation; (2)

the defendant-official was aware that the policy created an unreasonable risk;

(3) the defendant was indifferent to that risk; and (4) the constitutional injury

was caused by the failure to implement the supervisory practice or procedure.”

Id. (quoting Barkes, 766 F.3d at 317).

“[F]ailure to adequately train or supervise can only constitute deliberate

indifference if the failure has caused a pattern of violations.” Id.; Connick v.

Thompson, 563 U.S. 51, 62 (2011) (holding that “[a] pattern of similar

constitutional violations by untrained employees” is necessary “to demonstrate

deliberate indifference for purposes of failure to train”). Plaintiff notes that

between 2012 and 2019, the Township’s police department reported using force

61 times, six of which were incidents involving Robostello. (Opp’n p. 34).

Plaintiff, however, does not indicate whether these 61 incidents constituted

constitutional violations or were the result of a failure to train. Absent a

showing of a pattern of violations, this aspect of plaintiff’s claim will be

dismissed. See Womack, 2015 WL 420161, at *3; Connick, 563 U.S. at 62.

b. Failure to Investigate

“A custom of failing to investigate citizen complaints may provide a basis

for municipal liability if ‘a policy-maker (1) had notice that a constitutional

violation was likely to occur, and (2) acted with deliberate indifference to the

risk.’” Merman v. City of Camden, 824 F. Supp. 2d 581, 589 (D.N.J. 2010)

(quoting Brice v. City of York, 528 F.Supp.2d 504, 518 (M.D.Pa. 2007)). “It is

not enough that an investigative process be in place.” Beck v. City of

Pittsburgh, 89 F.3d 966, 969–70 (3d Cir. 1996). Instead, “[t]he investigative

process must be real” and “have some teeth” such that a citizen has at least a

rudimentary chance of redress when injustice is done.” Id. at 974. “The mere

fact of investigation for the sake of investigation does not fulfill a city’s

obligation to its citizens.”

Plaintiff points to various internal investigations policies of the Township

and New Jersey Attorney General Office, which plaintiff alleges defendants

violated by not further investigating Robostello. (Opp’n pp. 36–44.) However,

to succeed on such a claim, a plaintiff must demonstrate that the municipality

has “a custom of ignoring or failing to properly and promptly investigate

unconstitutional excessive force complaints” against officers. See Noble v. City

of Camden, 112 F. Supp. 3d 208, 223 (D.N.J. 2015) (finding that when viewing

the evidence in the light most favorable to the plaintiff, a reasonable jury could

find the township liable for failing to investigate reports of excessive force).

Although defendants were aware of plaintiff’s claims as to Robostello, plaintiff

fails to demonstrate how “a reasonable jury could … find evidence in the record

connecting the failure to investigate with the constitutional violation at issue

in this case.” Id.; Beck, 89 F.3d at 971 (noting that custom may “be established

by evidence of knowledge and acquiescence”); Monaco v. City of Camden, No.

04–2406, 2008 WL 8738213, at *8, 9 (Apr. 14, 2008) (finding that a reasonable

jury could draw a causal connection between the plaintiff’s injuries and officers’

actions and the municipality’s failure to conduct adequate investigations into

complaints of police misconduct until nearly three years after the incident).

This one example of how defendants allegedly failed to investigate, fails to

sufficiently establish this claim. See Noble, 112 F. Supp. 3d at 223 (noting that

the plaintiff presented statistical evidence as to the police department’s

repeated failures to investigate in support of such a claim). The failure to train

aspect of plaintiff’s claim will also be dismissed.

B. NJTCA

As to plaintiff’s assault and battery, intentional infliction of emotional

distress, and negligence claims, defendants broadly incorporate by reference

their arguments as to the other claims and argue that good faith immunity

applies. (Mov. Br. pp. 32, 33; Reply Br. p. 12.) Similarly, plaintiff relies upon

his false arrest/imprisonment arguments. (Opp’n Br. p. 30.) While

defendants seek dismissal of these claims, these issues have not been briefed

by the parties. Accordingly, the Motion will be as to the NJTCA claims.

V. CONCLUSION

For the reasons stated above, the Motion is GRANTED in part and

DENIED in part.

/s/ Edward S. Kiel

EDWARD S. KIEL

UNITED STATES DISTRICT JUDGE

Dated: August 12, 2025