CAROLYN L. BABURKA VS. STATE OF NEW JERSEY (L-1266-18, MONMOUTH COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4112-19

CAROLYN L. BABURKA,

Plaintiff-Appellant,

v.

STATE OF NEW JERSEY

(as per: Title 59 Requirements,

suing a Public Entity),

Defendant,

and

HAZLET TOWNSHIP, HAZLET

TOWNSHIP POLICE DEPARTMENT,

POLICE CHIEF PHILIP MEEHAN,

and POLICE OFFICER CHARLEIGH

LOGOTHETIS,

Defendants-Respondents.

_________________________________

Submitted April 19, 2021 – Decided June 10, 2021

Before Judges Currier and Gooden Brown.

On appeal from the Superior Court of New Jersey, Law

Division, Monmouth County, Docket No. L-1266-18.

Carolyn L. Baburka, appellant pro se.

Manna & Bonello, attorneys for respondents Hazlet

Township and Police Chief Philip Meehan (John L.

Bonello, on the brief).

Chamlin, Uliano & Walsh, attorneys for respondents

Hazlet Township Police Department and Police Officer

Charleigh Logothetis (Andrew T. Walsh, on the brief).

PER CURIAM

Plaintiff Carolyn Baburka appeals from the May 22, 2020 Law Division

orders granting summary judgment dismissal of her civil rights complaint to

defendants Hazlet Township, Hazlet Township Police Department, Hazlet

Township Police Chief, Philip Meehan, and Hazlet Township Police Officer,

Charleigh Logothetis. 1 Plaintiff's complaint stemmed from a frisk conducted by

Officer Logothetis as part of an administrative search 2 at the Hazlet Township

municipal building when plaintiff was screened for weapons prior to entering

1

On August 2, 2019, an order was entered granting summary judgment

dismissal of the complaint to the State of New Jersey. However, that order is

not challenged in this appeal.

2

An administrative search is "a limited warrantless search of a person seek ing

to enter sensitive facilities" and "is lawful if 'conducted as part of a general

regulatory scheme in furtherance of an administrative purpose, rather than as

part of a criminal investigation to secure evidence of crime.'" Klarfeld v. United

States, 944 F.2d 583, 586 (9th Cir. 1991) (quoting United States v. $124,570

U.S. Currency, 873 F.2d 1240, 1243 (9th Cir. 1989)).

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the municipal courtroom to address her motor vehicle summonses. The frisk

occurred after plaintiff triggered the metal detector situated outside the

courtroom. No weapon was found on plaintiff.

On appeal, plaintiff raises the following arguments for our consideration:

1. THE ARGUMENT OF SUMMARY JUDGMENT

BY THE COURT BELOW WAS CONTRARY TO

ESTABLISHED UNITED STATES

CONSTITUTIONAL LAW CONCERNING THE 4TH,

5TH AND 14TH AMENDMENTS TO THE UNITED

STATES CONSTITUTION.

2. HAZLET POLICE OFFICER LOGOTHETIS WAS

NOT ENTITLED TO RECEIVE QUALIFIED

IMMUNITY.

3. ALL THE DEFENDANTS WERE

DELIBERATELY INDIFFERENT TO THE RIGHTS

OF THE PLAINTIFFS [SIC] RIGHTS TO RECEIVE

A REASONABLE [SIC] CONDUCTED SEARCH OF

PLAINTIFF'S BODY, PRIOR TO PLAINTIFF

ENTERING THE COURTROOM.

We reject plaintiff's contentions and affirm substantially for the reasons

articulated by Judge Henry P. Butehorn in his comprehensive and well-reasoned

statement of reasons accompanying the orders.

I.

We recite the facts from evidence submitted by the parties in support of,

and in opposition to, the summary judgment motion, "giv[ing] the benefit of all

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3

favorable inferences to plaintiff[]." Angland v. Mountain Creek Resort, Inc.,

213 N.J. 573, 577 (2013) (citing Brill v. Guardian Life Ins. Co., 142 N.J. 520,

523 (1995)).

In an amended pro se complaint filed on April 24, 2019, plaintiff alleged

that at approximately 4:00 p.m. on January 16, 2018, 3 she "went . . . to the Hazlet

[Township] municipal building to appear for her court date" at the Hazlet

Township Municipal Court. After plaintiff "proceeded through the metal

detector," Logothetis, the female officer who was "monitoring the metal

detector," directed plaintiff "to turn around." According to plaintiff, when she

complied, instead of using a "wand,"4 Logothetis "touched [her] extremely

inappropriately," "unnecessarily squeez[ing her] breasts . . . hard."

In the complaint, plaintiff alleged that although she "lawfully submitted

to a search," she was subjected to an unreasonably "harsh search" that caused

her "excruciating pain," "emotionally and mentally traumatized [her,]" and

3

On April 5, 2018, plaintiff served a timely Notice of Tort Claim upon the State

as required by the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:8-8,

requiring the filing of a notice of claim within ninety days of the accrual of the

cause of action against a public entity or employee unless the claimant

demonstrates good cause to justify a late filing.

4

A wand is a common name for "a hand-held magnetometer." Klarfeld, 944

F.2d at 586.

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4

violated her constitutional rights. She asserted the Township and Chief Meehan

breached their duty "to provide an appropriate security monitor[] with a wand,"

"provide a proper means for frisking individuals without violating a . . . woman's

space," or "otherwise furnish adequate and proper warnings to invitees" and

members of the public entering the premises.

The complaint also alleged that Hazlet Township and Hazlet Township

Police Department failed "to properly train . . . Logothetis." Additionally, the

complaint asserted that "[t]he [d]eprivation of [plaintiff's c]onstitutional rights

occurred pursuant to governmental custom, policy, statement, ordinance,

regulation and decision officially adopted and promulgated by governmental

officials," and "[t]he inaction of [Hazlet Township] rose to the level of deliberate

indifference."

Plaintiff alleged defendants' actions caused her to suffer severe physical

injuries and mental trauma that will continue throughout her lifetime. Plaintiff

sought $5 million in damages against defendants, "individually" and "jointly,"

for her losses. Attached to plaintiff's complaint was a medical note prepared by

a nurse during a January 17, 2018 office visit. The note indicated that plaintiff

complained of breast and chest "pain and discomfort" from being "frisked while

going through [a] courthouse metal detector." The physical examination

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revealed "tenderness on palpation of right lateral breast tissue and intercostal

area" and "axillary tenderness." The diagnosis noted "[b]reast pain, right;

[c]hest wall tenderness; [a]nxiety." X-rays of plaintiff's chest and right ribs

conducted on the same date reported no "significant findings."

During the discovery period, plaintiff failed to submit any expert evidence

to support her claim for psychological and physical damages. Plaintiff was

cleared to return to work on January 19, 2018. Subsequently, on February 8,

2018, when plaintiff followed up with the same nurse she had visited on January

17, 2018, the nurse concluded that there were "no long[-]term effects from the

right upper arm and chest wall pain, which has resolved at this time."

Additionally, plaintiff underwent a bilateral breast ultrasound on February 13,

2020, and submitted bills evidencing multiple visits to a licensed clinical social

worker for psychotherapy. However, no reports were provided.

In her answers to interrogatories, plaintiff reiterated that although she

"consented to a reasonable search of [her] body for weapons," Officer

Logothetis "failed to ask [her] if [she] had any item that could have set off the

metal detector," "failed to . . . request that [she] pass through the metal detector

again," and "possessed no wand." Instead, Logothetis "immediately requested

that [she] . . . turn around" and proceeded to "squeeze[ her] breasts."

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Through Chief Meehan's and Officer Logothetis's answers to

interrogatories, it was revealed that Logothetis had been a Hazlet Township

police officer since August 2013, and underwent basic training at the Cape May

County Police Academy from August 2013 to January 2014, as well as twelve

weeks of field training that included conducting frisks. Although Logothetis

had no specific recollection of the event, she acknowledged being assigned to

work the security detail for the Hazlet Township Municipal Court on January

16, 2018, and being positioned outside the courtroom to conduct screenings for

weapons prior to people entering the courtroom. The police department

provided security for the municipal courtroom in accordance with directives

issued by the Administrative Office of the Courts and the Attorney General's

Office. See Administrative Directive #15-06, "Statewide Municipal Court

Security Policy" (Aug. 7, 2006) (requiring municipal courts to submit security

plans to the Assignment Judge of the vicinage); Hazlet Township Police

Department Policy and Procedures, "Municipal Court Security" (May 10, 2018)

(codifying departmental policy and procedure in providing security for the

municipal court).

According to Officer Logothetis, there was a metal detector in the foyer

of the municipal building and posted signs stating that "All Persons Entering the

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Courtroom Are Subject to Search for Weapons." Ordinarily, when a person

activates the metal detector, the person can pass through the detector again, be

screened using a hand-held metal detector, or frisked. Prior to a frisk, Logothetis

generally advises the individual that she is going to conduct a quick pat down to

search for weapons and instructs the individual to face the other way with arms

extended. When frisking a woman, consistent with her training, Logothetis feels

for weapons under the arms, below the bra strap, and sweeps up and down the

legs.

On average, Officer Logothetis conducted approximately one frisk at each

court session. Logothetis denied ever touching anyone "extremely

inappropriately" or "unnecessarily squeez[ing]" anyone's breasts. Prior to

plaintiff's complaint, Logothetis never received any complaints regarding her

frisks, and only became aware of plaintiff's complaint when she was notified by

the Internal Affairs Unit (IA) that an investigation into plaintiff's complaint was

underway. The IA investigation determined that the allegations were

unfounded.

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The discovery period ended on March 30, 2020. Over thirty days prior to

the June 8, 2020 trial date, defendants moved for summary judgment. 5 In

support, the Police Department and Officer Logothetis relied in part on a January

16, 2018 video of the security checkpoint outside the municipal courtroom

depicting the incident.

Plaintiff opposed the summary judgment motion on the ground that there

were disputed material facts, and specifically objected to defendants' reliance on

the video. In a supporting certification, plaintiff stated that although there was

a sign indicating that there would be a search for weapons, there was no sign

indicating that the search would be videotaped and plaintiff "never gave any

informed consent for the making of the video." 6 Plaintiff also objected to the

late disclosure of the video, stating that it was not provided to her until February

10, 2020, more than two years after it was supposedly made. Plaintiff

"suspect[ed] that the video was either edited and/or altered" due to "the long

delay in its presentation and the failure of any of the [d]efendant[s] . . . to submit

5

An earlier motion for summary judgment filed by defendants was "[d]enied

without prejudice . . . to allow for discovery."

6

In her Notice of Tort Claim, plaintiff responded to the question requesting the

identification of witnesses to the occurrence by indicating that "cameras" were

"onsite."

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an affidavit or certification that the video was not altered and/or edited in any

respects."

On May 22, 2020, Judge Butehorn conducted oral argument on the

motions. On the same date, the judge entered orders granting defendants

summary judgment. In the accompanying statement of reasons, after recounting

the parties' respective positions and applying the governing legal principles,

including viewing the evidence in the light most favorable to plaintiff,7 the judge

determined that based on the undisputed material facts, defendants were entitled

to summary judgment as a matter of law.

Preliminarily, the judge noted that he "did not view or consider [the]

video" or "any outline of the events purportedly depicted therein as part of []his

decision." The judge agreed with plaintiff that defendants failed to submit "as

part of the initial moving papers" any evidence indicating the video's

"authenticity."

7

The judge noted that despite plaintiff's noncompliance with Rule 4:46-2(b),

requiring a conforming "responding statement" of material facts "together wi th

citations to the motion record," instead of "disregarding plaintiff's submission

and granting the motions solely upon defendants' submissions," he accorded

plaintiff "leniency" given the fact that she was "self-represented." Thus, the

judge considered "the substance of her submission" as "disput[ing] certain

factual allegations" in defendants' "statement of material facts."

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Next, the judge explained that although not specifically identified in the

complaint, plaintiff seemed "to assert a claim under the Federal Civil Rights Act

(42 U.S.C. [§] 1983), or the New Jersey Civil Rights Act[, N.J.S.A. 10:6-1 to -

2]" (CRA) as well as "claims of negligence . . . subject to the New Jersey Tort

Claims Act [(TCA), N.J.S.A. 59:1-1 to 12-3]." Further, "[a]lthough unclear,"

the judge deciphered plaintiff's claims as challenging both the type of search

performed, namely, a frisk, as well as the manner in which the search was

conducted.

Addressing liability under the TCA, the judge acknowledged the statutory

immunity afforded under N.J.S.A. 59:3-3 when a public employee acts in good

faith in the execution or enforcement of any law. See N.J.S.A. 59:3-3 ("A public

employee is not liable if he acts in good faith in the execution or enforcement

of any law."). According to the judge, assessing good faith involved considering

"whether the employee's conduct [was] objectively reasonable under the

circumstances." See Bombace v. Newark, 125 N.J. 361, 374 (1991) (noting that

good faith for purposes of immunity under N.J.S.A. 59:3-3 applies "if the public

employee can show either objective or subjective good faith" and defining

objective good faith as the objective reasonableness of the conduct in the

circumstances).

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The judge pointed out that plaintiff "consented to a search prior to entering

the municipal court," "admit[ted] the [metal] detector went off" when she

"walk[ed] through [it]," and "consent[ed] to a further search in light of the

detector going off." Further, it was undisputed that "municipal police

departments, through their officers, provide[d] security for municipal courts

and, as part thereof, the officers [were] executing the law." Other than objecting

to the type of search performed, the judge determined that plaintiff could not

"point to any facts upon which it might be found that Officer Logothetis was not

executing the law" in good faith.

The judge explained:

In this case the court finds the decision to frisk

plaintiff objectively reasonable under the

circumstances. The plaintiff admits she triggered the

metal detector when entering the municipal court. Any

objective person would find a further search

reasonable; plaintiff admits as much. Moreover, there

are different forms of further searches; one might be

asked to walk through the detector again. The other

forms might include, as plaintiff suggests a "wand;"

another form of electronic or non-touching search.

However, considering the detector [was] already

triggered it is objectively reasonable to undertake a

different form of search.

In addition, Logothetis is the first line of security

for people coming into the public courthouse. . . . The

first detector was triggered upon plaintiff walking

through it and it is objectively reasonable for the officer

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in this case to have determined a further search was

required and to perform it through a different means

than that already triggered as a follow up.

Therefore, the court finds N.J.S.A. 59:3-3

provides Officer Logothetis immunity from any tort

claim against her for selecting to frisk plaintiff rather

than a different form of follow up search. Similarly,

the public entity defendants . . . cannot be liable on this

claim. N.J.S.A. 59:2-2(b).[8] Nor is there a basis upon

which to hold the Chief liable.

Specifically addressing plaintiff's tort claim against the Chief, the Police

Department, and the Township, the judge stated:

[P]laintiff’s claims as outlined in her complaint are a

failure to provide appropriate security, failure to

provide warnings for those entering the premises, and a

failure to provide proper means of frisking entrants to

the municipal courts. However, plaintiff cannot point

to any evidence in support of same as against those

defendants. There is no evidence of any potential

incidents, or issues, regarding screenings or security at

the municipal court. The only evidence in this case

would be as to plaintiff's screening in particular. There

is no evidence upon which a jury might find the security

was inappropriate or insufficient. Plaintiff may take

issue with the way her screening was handled, however

that is not a basis to sustain a claim for failure to have

generally appropriate security.

The same is true as to a claim for failure to

provide warnings or failure to provide proper frisking

8

See N.J.S.A. 59:2-2(b) ("A public entity is not liable for an injury resulting

from an act or omission of a public employee where the public employee is not

liable.").

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of entrants. That is, there is no evidence regarding any

incidents or issues other than plaintiff's assertions

regarding her entry alone. As to the claim against the

Chief for failure to supervise, that is based upon – as

the allegation is put in the complaint - overlooking what

took place after the fact. There is no evidence to

support a claim against him upon a failure to act (or an

act) prior to the frisk at issue.

Addressing liability for negligence based on "the manner in which the

frisk was executed," the judge reasoned that "issues of proximate cause and

damages under the TCA" barred plaintiff's claims. The judge stated that to

sustain a claim under the TCA, plaintiff must establish "a causal nexus" between

"the claimed tortious conduct" and her injuries by "objective, credible medical

evidence." See Mack v. Passaic Valley Water Comm'n, 294 N.J. Super. 592,

598 (App. Div. 1996) (explaining that in TCA cases "the critical question is

whether plaintiff has presented objective and credible medical evidence, if

believed by a factfinder, of a permanent loss of bodily function"). Although

plaintiff "identified certain medical providers" and provided some medical

records, the judge pointed out that "plaintiff has not served an expert report" and

"the medical records/documents" provided "do not make any correlation . . . to

the events of January 16, 2018." Thus, in the absence of objective and credible

medical evidence, plaintiff cannot "sustain a claim based in tort under the TCA."

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Furthermore, according to the judge, plaintiff's evidence was insufficient

to satisfy the $3600 minimum for damages required under the TCA for pain and

suffering resulting from an injury, failed to satisfy the two-pronged standard to

vault the pain and suffering threshold under the TCA, and failed to prove

psychological trauma accompanied by or resulting in physical symptoms to meet

the requirements of the TCA. See N.J.S.A. 59:9-2(d) ("No damages shall be

awarded against a public entity or public employee for pain and suffering

resulting from any injury" except "in cases of permanent loss of a bodily

function . . . where the medical treatment expenses are in excess of [$3600].");

Gilhooley v. Cnty. of Union, 164 N.J. 533, 540-41 (2000) ("[I]n order to vault

the pain and suffering threshold under the [TCA], a plaintiff must satisfy a two-

pronged standard by proving (1) an objective permanent injury, and (2) a

permanent loss of a bodily function that is substantial."); Brooks v. Odom, 150

N.J. 395, 403 (1997) ("Temporary injuries, no matter how painful and

debilitating, are not recoverable" and "a plaintiff may not recover under the

[TCA] for mere subjective feelings of discomfort." (internal quotations

omitted)).

Turning to the civil rights claim, Judge Butehorn was guided by Filgueiras

v. Newark Pub. Sch., where this court explained that "[t]he elements of a

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substantive due process claim under the CRA are the same as those under §

1983." 426 N.J. Super. 449, 468 (App. Div. 2012). In Filgueiras, we held that

in order to establish a claim under either § 1983 or the CRA, "the first task . . .

is to identify the state actor, the person acting under color of law, that has caused

the alleged deprivation." Ibid. (alteration in original) (citations and quotation

marks omitted). "The second task is to identify a right, privilege or immunity

secured to the claimant by the Constitution or other federal laws of the United

States." Ibid. (citations and quotation marks omitted).

Judge Butehorn explained that as to the second element, "plaintiff cannot

identify a specific constitutional violation for the Officer's decision to frisk her

rather than [conduct] another form of search." As to the manner in which the

frisk was conducted, the judge explained that such a claim was one "for

excessive force in violation of the Fourth Amendment to the United States

Constitution" and was "properly analyzed under the Fourth Amendment's

'objective reasonable' standard, rather than under a substantive due process

standard." See Graham v. Connor, 490 U.S. 386, 388 (1989) (holding that a

"citizen's claim that law enforcement officials used excessive force in the course

of making an arrest, investigatory stop, or other 'seizure' of his person" was

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"properly analyzed under the Fourth Amendment's 'objective reasonableness'

standard, rather than under a substantive due process standard").

Applying that standard, Judge Butehorn determined that "the frisk was

objectively reasonable." In support, the judge noted that "plaintiff made no

complaints of the force or discomfort at the time of the frisk," and there was "a

lack of any evidence causally relating any medical care or treatment to the frisk."

See Gilles v. Davis, 427 F.3d 197, 208 (3d Cir. 2005) (holding "the facts alleged

constitute[d] insufficient evidence as a matter of law for excessive force by

handcuffing" to sustain a civil rights action for damages under § 1983 based on

the plaintiff's failure to demonstrate or express "signs of discomfort at the time

he was handcuffed" or "seek . . . medical treatment after the fact").

Additionally, considering the totality of the surrounding circumstances,

including the fact that "plaintiff went through the metal detector and triggered

its alarm" and the necessity for determining whether "there were any

impermissible, and potentially dangerous, object[s] being brought into the

courtroom" that were secreted on plaintiff's person, the judge found that "the

frisk . . . satisfie[d] the objectively reasonable standard under the Fourth

Amendment such that plaintiff cannot sustain a claim under the Federal Civil

Rights Act." Further, according to the judge, for the same reasons, plaintiff's

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claim against Officer Logothetis under the CRA failed as a matter of law because

"qualified immunity is an affirmative defense and would be applicable based

upon the objectively reasonable basis" for the frisk. See Brown v. State, 230

N.J. 84, 97-98 (2017) (explaining that in suits brought under the CRA, "[t]he

affirmative defense of qualified immunity protects government officials from

personal liability for discretionary actions taken in the course of their public

responsibilities, 'insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person would have

known.'" (quoting Morillo v. Torres, 222 N.J. 104, 116 (2015))).

Regarding liability by "the entity defendants" under § 1983 or the CRA,

the judge noted that although a local government entity could be held liable

under limited circumstances "for the deprivation of constitutional rights by its

employees or officers," such circumstances did not exist here. See Stomel v.

City of Camden, 192 N.J. 137, 145-46 (2007) (explaining that "a municipality

generally cannot be held liable in a § 1983 action for the acts of employees under

the principle of respondeat superior" unless "an official municipal 'policy or

custom, whether made by its lawmakers or by those whose edicts or acts may

fairly be said to represent official policy,' is the cause of the constitutional

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deprivation" (quoting Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694

(1978))).

Finding "no evidence to support any claim against the municipal entities,"

the judge explained:

[t]here is no evidence on the record to state the Hazlet

Police Department or Hazlet Township implemented a

policy, ordinance, regulation, or any of the sort to

promote unreasonable searches. Even when viewing

[the] evidence in [the] light most favorable to . . .

plaintiff, there is no dispute of fact which should be

submitted as a jury question. The plaintiff does not

point to any policy, nor does she cite any ordinance

which could possibly lead to a jury question of whether

[the] Police Department and Hazlet Township officially

adopted an unconstitutional policy. Without more

evidence, summary judgment should be granted for the

Police Department and Hazlet Township.

Further,

[t]here is no evidence to show the officer’s decision –

or the manner in which she carried out the frisk – was

sanction[ed] or ordered by the municipal entities.

There is no evidence of any policy, either formally or

informally, adopted by them as to the decision by

Officer Logothetis or the manner in which she carried

out the frisk. There is only plaintiff’s blank allegation

as put forth in her complaint. Although plaintiff states

she "alleged a custom or policy," . . . an allegation alone

is not sufficient.

Likewise, as to the Chief, the judge stated plaintiff cannot point to any

facts that would establish a claim for "supervisor[y] liability" under the

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"'recklessness or deliberate indifference' standard . . . applicable to plaintiff['s]

claim" under § 1983 or the CRA. See Schneider v. Simonini, 163 N.J. 336, 373-

74 (2000) (adopting a "recklessness or deliberate indifference" standard for

evaluating supervisory liability under § 1983 that requires a plaintiff to

"establish 'that: (1) the supervisor . . . failed to supervise the subordinate official;

(2) a causal link exists between the failure to . . . supervise and the violation of

the plaintiff's rights; and (3) the failure to . . . supervise amounts to deliberate

indifference' or recklessness" (quoting Hinshaw v. Doffer, 785 F.2d 1260, 1263

(5th Cir.1986))). According to the judge, there was "[n]o evidence plac[ing the

Chief] at the courthouse nor being aware of the events that day." "Plaintiff

makes conclusory statements, but conclusory statements are insufficient to

overcome a motion for summary judgment."

II.

In this ensuing appeal, plaintiff argues the judge erred in granting

summary judgment to defendants. We review a grant of summary judgment

applying the same standard used by the trial court. Steinberg v. Sahara Sam's

Oasis, LLC, 226 N.J. 344, 366 (2016). That standard is well-settled:

if the evidence of record—the pleadings, depositions,

answers to interrogatories, and affidavits—"together

with all legitimate inferences therefrom favoring the

non-moving party, would require submission of the

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issue to the trier of fact," then the trial court must deny

the motion. On the other hand, when no genuine issue

of material fact is at issue and the moving party is

entitled to a judgment as a matter of law, summary

judgment must be granted.

[Ibid. (citations omitted) (quoting R. 4:46-2(c)).]

If there is no genuine issue of material fact, we must "decide whether the

trial court correctly interpreted the law." DepoLink Ct. Rep. & Litig. Support

Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013) (quoting

Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007)). We

review issues of law de novo and accord no deference to the trial judge's legal

conclusions. Nicholas v. Mynster, 213 N.J. 463, 478 (2013).

Applying this standard, we agree with the judge's determination that there

were no disputed issues of material fact and defendants were entitled to

summary judgment as a matter of law. Plaintiff maintains that she was

"subjected to an unreasonable search for weapons" "in violation of [42 U.S.C. §

1983.]" She asserts that the injury she suffered was the result of official policy

or custom and "indifferen[ce] to providing the necessary court training to

Officer Logothetis prior to the incident," exposing the municipality, the police

department, and the Chief to liability under § 1983. She further contends that

"Officer Logothetis was not entitled to qualified immunity" at the summary

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judgment stage given the material disputed facts surrounding "the

reasonableness component" of the search.

However, our Supreme Court has recognized that in cases involving §

1983 claims, the "doctrine of qualified immunity shields law enforcement

officers from personal liability for civil rights violations when the officers are

acting under color of law in the performance of official duties" unless their

performance was not "objectively reasonable." Morillo, 222 N.J. at 107-08.

Determining whether the conduct was objectively reasonable "requires a careful

balancing of the nature and quality of the intrusion on the individual 's Fourth

Amendment interests against the countervailing governmental interests at

stake." Graham, 490 U.S. at 396. "The inquiry requires analyzing the totality

of the circumstances." Plumhoff v. Rickard, 572 U.S. 765, 774 (2014).

Here, we agree with the judge that based on the evidence in the record,

Officer Logothetis's conduct was objectively reasonable, and plaintiff failed to

point to any facts that dictated otherwise. Moreover, contrary to plaintiff's

contention, this reasonableness determination obviated a finding of "willful

misconduct" to vitiate immunity under the TCA. See N.J.S.A. 59:3-14

(providing an exception to immunity for public employees under the TCA where

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a public official's conduct "was outside the scope of his employment or

constituted a crime, actual fraud, actual malice or willful misconduct").

We also reject plaintiff's contention that neither the township nor the

police department were entitled to summary judgment. "A local governmental

entity is deemed a 'person' under [§] 1983 only where the action alleged to be

unconstitutional 'implements or executes a policy statement, ordinance,

regulation, or decision officially adopted and promulgated by that body's

officers.'" Bayer v. Twp. of Union, 414 N.J. Super. 238, 270 (App. Div. 2010)

(quoting Monell, 436 U.S. at 690). "It is not, however, liable for the actions of

its employees solely on a theory of respondeat superior." Ibid. "It is only when

'execution of a government's policy or custom . . . inflicts the injury that the

government as an entity is responsible under § 1983.'" Ibid. (quoting Monell,

436 U.S. at 694).

"[T]here are limited circumstances in which an allegation of a 'failure to

train' can be the basis for liability under § 1983." City of Canton v. Harris, 489

U.S. 378, 387 (1989). "[T]he inadequacy of police training may serve as the

basis for § 1983 liability only where the failure to train amounts to deliberate

indifference to the rights of persons with whom the police come into contact."

Id. at 388. "Only where a failure to train reflects a 'deliberate' or 'conscious'

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choice by a municipality . . . can a city be liable for such failure under § 1983."

Id. at 389. To survive summary judgment on a failure to train theory, a plaintiff

"must present evidence that the need for more or different training was so

obvious and so likely to lead to the violation of constitutional rights that the

policymaker's failure to respond amounts to deliberate indifference." Brown v.

Muhlenberg Twp., 269 F.3d 205, 216 (3d Cir. 2001).

Here, we agree with the judge that plaintiff failed to present any evidence

to support a failure to train theory and her conclusory statements are inadequate

to defeat summary judgment. "Bare conclusory assertions, without factual

support in the record, will not defeat a meritorious application for summary

judgment." Horizon Blue Cross Blue Shield of N.J. v. State, 425 N.J. Super. 1,

32 (App. Div. 2012); accord Puder v. Buechel, 183 N.J. 428, 440-41 (2005)

("[C]onclusory and self-serving assertions by one of the parties are insufficient

to overcome the [summary judgment] motion."). "The opponent must 'come

forward with evidence' that creates a genuine issue of material fact." Horizon

Blue Cross Blue Shield of N.J., 425 N.J. Super. at 32 (quoting Brill, 142 N.J. at

529). Plaintiff failed to do that here.

Likewise, to the extent plaintiff appears to assert claims of negligent

supervision and failure to investigate on the part of the Chief, such claims also

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fail. The deliberate indifference test also applies to claims of "negligent

supervision and failure to investigate." Groman v. Twp. of Manalapan, 47 F.3d

628, 637 (3d Cir. 1995). "'[D]eliberate indifference' is a stringent standard of

fault, requiring proof that a municipal actor disregarded a known or obvious

consequence of his action." Connick v. Thompson, 563 U.S. 51, 61 (2011)

(quoting Bd. of the Cnty. Comm’rs v. Brown, 520 U.S. 397, 410 (1997)).

To sustain a claim under those theories, "the plaintiff must identify

specific acts or omissions of the supervisor that evidence deliberate indifference

and persuade the court that there is a 'relationship between the "identified

deficiency" and the "ultimate injury."'" Brown, 269 F.3d at 216. To that end,

"it is not enough for a plaintiff to argue that the constitutionally cognizable

injury would not have occurred if the superior had done more than he or she

did." Sample v. Diecks, 885 F.2d 1099, 1118 (3d Cir. 1989). Here, plaintiff has

failed to establish the requisite elements. Plaintiff failed to present evidence of

any complaints other than her own, and failed to point to any facts to indicate

that the Chief was even aware of plaintiff's encounter with Officer Logothetis

on the date in question.9 See Schneider, 163 N.J. at 373-74 ("The knowledge

9

A claim of supervisory liability may also be predicated on the supervisor

"participat[ing] in violating the plaintiff's rights, direct[ing] others to violate

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element of a plaintiff's case requires proof that the supervisor was aware of facts

from which an inference could be drawn that the subordinate was acting in an

unconstitutional manner that carried a substantial risk of causing serious harm.")

We also reject plaintiff's puzzling claim that she "was greatly prejudiced"

by the late production of the video depicting the search. First, at her request,

the judge did not consider the video in making his decision. Second, plaintiff's

claim of surprise is belied by her acknowledgement in her Notice of Claim that

there were cameras onsite recording the encounter. 10

them, or, as the person in charge, ha[ving] knowledge of and acquiesc[ing] in

[the] subordinates' violations." A.M. ex rel. J.M.K. v. Luzerne Cnty. Juvenile

Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004). The record does not support a

finding of liability on this basis either.

10

The judge correctly rejected plaintiff's apparent claim, reiterated on appeal,

that her failure to consent to a video recording of her entering the municipal

courtroom constituted yet another constitutional violation. The judge noted that

the claim was "not part of her complaint . . . nor a basis for her allegations."

Moreover, according to the judge, "there is no viable cause of action against any

of the defendants" based upon them "recording those at the entrance, or within

the public areas of the municipal court building" nor "is there a potential claim

based upon the lack of a sign indicating [same]." See Tarus v. Borough of Pine

Hill, 189 N.J. 497, 512 (2007) (condoning "videotaping of public proceedings"

and acknowledging that "[t]he broad and pervasive use of video cameras a t

public events evidences a societal acceptance of their use in public fora"); see

also Key v. Compass Bank, Inc., 826 So. 2d 159, 165 (Ala. Civ. App. 2001)

("Normally, there is no liability for photographing a person in a public place.") .

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To the extent we have not specifically addressed plaintiff's remaining

arguments, we deem them without sufficient merit to warrant discussion in a

written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

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