Opinion
Civil No. 00-5280 (JBS).
December 6, 2002
Troy A. Archie, Esquire, Lewis P. Hannah, Esquire, King Archie King, Camden, New Jersey, Attorneys for Plaintiff Dorothy Davis.
Kristin J. Telsey, Esquire, John H. Adler, Esquire, Earp Cohn, P.C., Westmont, New Jersey, Attorneys for Defendants Winslow Township, Chief Anthony Bello, Officers Kevin Richards and Scott Urban.
OPINION
Plaintiff Dorothy Davis brings this federal civil rights action against defendants Winslow Township, Chief Anthony Bello, Police Officer Kevin Richards, and Police Officer Scott Urban, individually and in their official capacity for actions arising from an October 28, 1998 incident. At that time, Winslow Township officers Kevin Richards and Scott Urban were responding to an incident at the Regency House Apartments in Sicklerville, New Jersey, during which time plaintiff allegedly interfered with their investigation. Plaintiff brings claims under 42 U.S.C. § 1983 and state tort law for injuries arising out of Officers Richards and Urban's arrest of plaintiff, during which defendants allegedly violated her civil rights. This matter comes before the Court upon defendants' motion for summary judgment of plaintiff's claims against defendants Winslow Township and Chief Anthony Bello, and her state law tort claims against Winslow Township, Chief Anthony Bello, and the individual police officers Kevin Richards and Scott Urban. For the reasons discussed herein, defendants' motion for summary judgment will be granted as to plaintiff's § 1983 claim against defendants Winslow Township and Chief Anthony Bello, denied as to the state law tort claims against Winslow Township, Chief Bello, and the individual officers, and granted with respect to plaintiff's claim for pain and suffering damages under the New Jersey Tort Claims Act.
I. BACKGROUND
On or about October 28, 1998, at approximately 11:45 a.m., defendant police officers Kevin Richards and Scott Urban were conducting an investigation regarding reports of boys urinating in the parking lot of Regency House Apartments in Sicklerville, New Jersey, where plaintiff resided. (Compl. ¶¶ 9-10.) Plaintiff asserts that, from her 4th floor balcony, she observed defendants Richards and Urban harassing two minors whom she knew, and informed defendants that she would contact the boys' parents if they were going to be arrested. (Compl. ¶¶ 10, 12-13.) Plaintiff alleges that defendant Richards shouted to her that "she should mind her business and take her black ass inside, back into her apartment." (Id. ¶ 13.) Defendants and plaintiff then engaged in a brief verbal conversation in which "defendants again used several racial slurs to refer to plaintiff and plaintiff referred back to defendants using vulgar language." (Id. ¶ 15.) Plaintiff's nephew at one point went downstairs because he apparently knew the two boys, but returned upstairs shortly thereafter. (Davis Depo., Pl.'s Ex. A, at 138.)
Plaintiff alleges that she returned to her apartment, and after approximately 5 to 10 minutes, she heard her door open. (Id. ¶ 17.) Plaintiff alleges that she "went to her door and defendant Richards was standing in the doorway." (Id.) Plaintiff alleges that after shouting to defendant Richards not to come in because she was not dressed, Richards "thereafter kicked the door fully open and stated "I will do as I fucking please, you big mouth black bitch, you are under arrest." (Id. ¶ 19.) Plaintiff alleges that defendant Richards came towards her and punched her in the left side of her head, that she fell to the floor, and that defendant Urban grabbed plaintiff by the neck in a choke hold position. (Id. ¶¶ 20-21.) As defendants sought to handcuff plaintiff, plaintiff alleges that defendant Richards stated, "[Y]ou niggers always have to make my job hard," and that defendant Urban sprayed plaintiff with mace. (Id. ¶ 23.) Thereafter, defendants allegedly grabbed plaintiff and pushed her down the hallway, exposing plaintiff's breast and front part of her body. (Id. ¶ 25.) Plaintiff alleges that when she requested her bathrobe be closed, defendant Richards touched her breast and stated, "[Y]ou ugly nigger, who would want to look at you." (Id. ¶ 26.) Defendant Urban sprayed mace (oleoresin capsicum spray) into plaintiff's to subdue her during the struggle. (Defs.' Statement of Material Facts, ¶ 27.) Plaintiff alleges that defendant Richards continued to make offensive racial comments to plaintiff as he and Urban transported plaintiff to the police station. (Compl. ¶¶ 27-28.) According to the police report, defendants were attempting to arrest plaintiff for disorderly conduct and interfering with a police investigation, and ultimately arrested plaintiff for aggravated assault of a law enforcement officer under N.J.S.A. 2C:12-1b5a, resisting arrest under N.J.S.A. 2C:29-2a1, disorderly conduct under N.J.S.A. 2C:33-2b, and obstruction of administration of law under N.J.S.A. 2C:29-1a. (Winslow Township Police Reports, 10/28/98, Adler Cert., Ex. 19, 20.)
Upon her release from police custody, plaintiff was treated at West Jersey Hospital. (West Jersey Hospital Records, 10/28/98, Adler Cert., Ex. 49.) Plaintiff alleges that she sustained permanent and serious injuries from defendant officers' alleged excessive force, including acute cervical sprain and strain, contusion of the left chest wall and clavicular region, and multiple contusions. (Pl.'s Statement of Material Facts, ¶ 16.) Plaintiff also alleges that she suffers from psychological disorders and has been diagnosed with Adjustment Disorder with Anxious Mood 309.24. (Id.; Medical Records, Pl.'s Br. Ex. G.)
On April 6, 2000, in Berlin Township Municipal Court, plaintiff pled guilty to Winslow Township Municipal Ordinance 196-22, the essence of which, as stated by plaintiff's attorney at the hearing, is "disorderly [conduct] and interfering with police officers." (Tr. 4/6/00, at 4-5, Adler Cert., Ex. 18.) In the plea colloquy, plaintiff stated that she used profanity and started cursing at the October 28, 1998 incident. (Id. at 6.)
Plaintiff filed her complaint in this Court on October 26, 2000. (Id.) Plaintiff alleges claims of § 1983 (Count I); Unreasonable Search and Seizure (Count II); Equal Protection (Count III); Training and Supervision (Count IV); Negligence (Count V); Assault (Count VI); Intentional Infliction of Emotional Distress (Count VII); False Imprisonment (Count VIII); False Arrest (Count IX); and Malicious Prosecution (Count X). (Compl. ¶¶ 33-66.) Plaintiff seeks relief in the form of compensatory damages, emotional damages, pain and suffering, punitive damages, attorneys' fees and costs, and any other relief that the Court deems just. (Id. at 9.) Defendants filed their motion for summary judgment on September 23, 2002, asserting that defendants Winslow Township and Chief Anthony Bello cannot be held municipally liable for any alleged § 1983 civil rights violations, and that plaintiff's state law tort claims against the defendants are barred under the New Jersey Tort Claims Act ("NJTCA"). This Court held oral argument on November 26, 2002.
II. DISCUSSION
A. Standard for Summary Judgment Motion
Defendants move for summary judgment pursuant to Rule 56(a), Fed.R.Civ.P. Rule 56(a) provides:
A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time afer the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in the party's favor upon all or any part thereof.
Fed.R.Civ.P. 56(a). A court may grant summary judgment when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see Lang v. New York Life Ins. Co., 721 F.2d 118, 119 (3d Cir. 1983). A dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In deciding whether there is a disputed issue of material fact, the court must view the evidence in favor of the non-moving party by extending any reasonable favorable inference to that party.See Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1080-81 (3d Cir. 1996). Once the moving party has carried its initial burden of establishing the absence of a genuine issue of material fact, the non-moving party must do more than rely only "upon bare assertions, conclusory allegations or suspicions."Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985), cert. denied, 474 U.S. 1010 (1985) (citation omitted). If the non-movant's evidence is merely "colorable" or is "not significantly probative," the court may grant summary judgment.Liberty Lobby, 477 U.S. at 249-50.
B. Defendants' Motion for Summary Judgment
Defendants argue that plaintiff's § 1983 claim against defendants Winslow Township and Chief Anthony Bello must be dismissed because they cannot be held vicariously liable for the alleged civil rights violations of their employees. Defendants additionally argue that the common law tort claims against the defendant municipality, police chief, and police officers must be dismissed because these defendants are entitled to good faith immunity under the NJTCA, and furthermore, plaintiff has not suffered injuries sufficient to withstand the threshold required by N.J.S.A. 59:9-2(d) for pain and suffering damages.
1. Municipal Liability
Defendants assert that Winslow Township and Chief Bello cannot be held vicariously liable for alleged civil rights violations by the defendant police officers, citing Monell v. New York City Dep't of Social Servs., 436 U.S. 658 (1978). In Monell, the Supreme Court held that a municipality cannot be held liable under 42 U.S.C. § 1983 on a respondeat superior theory for an injury inflicted solely by its employees or agents. The Supreme Court stated, "Instead, it is when execution of a government's policy or custom, whether made by its lawmakers of by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983." Id. at 694.
Plaintiff conceded in her response papers and at oral argument that summary judgment should be granted in defendants' favor as to plaintiff's § 1983 claim against Winslow Township and Chief Bello. The parties are in agreement that neither Winslow Township nor Chief Bello can be held liable for § 1983 civil rights violations under a municipal liability theory:
[Winslow] Township cannot be held liable for the constitutional violations on the basis of respondeat superior [liability] and that there was no formal policy of race discrimination in arrests. . . . [E]vidence has not been discovered showing a sufficiently widespread practice of similar unlawful arrests, and plaintiff acknowledges, on that basis, that the evidence does not justify continued pursuit of her claim against the Township on that basis.
Plaintiff, however, states that "the evidence does support plaintiff's claim that her constitutional rights were violated by Defendant officers." Pl.'s Br. at 8 n. 2.
Pl.'s Br. at 8 n. 2.
Indeed, plaintiff fails to allege in her complaint or moving papers any policy or custom by Winslow Township of Chief Bello that violated her civil rights. In her complaint, plaintiff alleges in Count IV that defendant Winslow Township "failed to train or adequately supervise their employees to ensure that the constitutional rights of individuals, including, but not limited to, plaintiff was not violated by the actions of its employees or agents," Compl. ¶ 43. Although plaintiff alleges failure to train in her complaint, she provides no evidence of absence of police training or of any specific policy or custom of Winslow Township that resulted in her alleged injuries. Under Monell, the absence of any evidence to support plaintiff's theory that either Winslow Township or Chief Bello is liable under § 1983 for failure to train by executing a policy that caused the alleged injuries constrains this Court to conclude that no reasonable jury could return a verdict for plaintiff on these claims.
Accordingly, because plaintiff concedes that summary judgment should be entered in defendants' favor on this issue, defendants' motion for summary judgment will be granted on this ground, and plaintiff's § 1983 claim against Winslow Township and Chief Bello will be dismissed.
2. New Jersey Tort Claims Act
Defendants allege that plaintiff's common law tort claims against defendant must be dismissed as barred under the New Jersey Tort Claims Act ("NJTCA") because defendants Winslow Township, Chief Anthony Bello, and Police Officers Kevin Richards and Scott Urban are entitled to good faith immunity under N.J.S.A. 59:3-3, and, alternatively, plaintiff has not suffered injuries sufficient to reach the threshold required by N.J.S.A. 59:9-2(d) for pain and suffering damages.
a. Good Faith Immunity
Plaintiff argues in her brief that defendants' actions in forcing entry into her home was not done in good faith because they were upset with her disrupting their investigation and lacked probable cause to arrest her. Under the immunity principles now discussed, the defendant officers likely had probable cause to arrest plaintiff for disorderly conduct. However, because defendant officers entered plaintiff's home and arrested her without a warrant, in violation of her rights under the Fourth Amendment, the defendants are not entitled to good faith immunity, and their motion will be denied.
As defendants assert, the NJTCA provides that "[a] public employee is not liable if he acts in good faith in the execution of any law." N.J.S.A. 59:3-3. The New Jersey Supreme Court has stated that "`[g]ood faith immunity under section 3-3 has two alternate components.'" Alston v. City of Camden, 168 N.J. 170, 186 (2001) (quoting Fielder v. Stonack, 141 N.J. 101, 131 (1995)). A public employee may either demonstrate "objective reasonableness" or that he behaved with "subjective good faith."Alston, 168 N.J. at 186 (citing Fielder, 141 N.J. at 132). A public employee need prove only one component to be entitled to good faith immunity. See Alston, 168 N.J. at 186.
The NJTCA also provides that "[n]othing in this act shall exonerate a public employee from liability if it is established that his conduct was outside the scope of his employment or constituted a crime, actual fraud, actual malice or willful misconduct." N.J.S.A. 59:3-14a; see also Fuchilla v. Layman, 109 N.J. 319, 339 (Handler, J., concurring) (noting that the Act excludes public entity liability for certain kinds of intentional torts as well as strict liability, implied warranty, and products liability), cert. denied, 488 U.S. 826 (1988); Palmintieri v. City of Atlantic City, 231 N.J. Super. 422, 431 (Law Div. 1988) ("N.J.S.A. 59:3-14 makes it clear that the immunity of the Tort Claims Act is unavailable to any employee for acts outside the scope of employment or which constitute a crime, actual fraud, actual malice, or willful misconduct."). If the act is outside the scope of employment, the "employee is liable for the full measure of recovery which could be assessed against any defendant in the private sector." Palmentieri, 231 N.J. Super. at 431. While good faith under N.J.S.A. 59:3-3 and refusal to grant immunity based on willful misconduct "are not necessarily two sides of the same coin, the distinction between the two is a narrow one." Alston, 168 N.J. at 187 (quoting Fielder, 141 N.J. at 137) (Stein, J., concurring)). In the present case, as discussed below, nothing suggests that the defendant officers were not acting as municipal police officers and under color of state law at the time they arrested Ms. Davis. Their liability is accordingly determined and limited by the New Jersey Tort Claims Act and 42 U.S.C. § 1983.
In this regard, the New Jersey Supreme Court has cited with approval the Supreme Court's standard in Harlow v. Fitzgerald, 457 U.S. 800, 815 (1982) regarding immunity:
The objective element involves a presumptive knowledge of and respect for "basic, unquestioned constitutional rights." Wood v. Strickland, 420 U.S. 308, 322 (1975). The subjective component refers to "permissible intentions." Ibid. . . . Referring both to the objective and subjective elements, we have held that . . . immunity would be defeated if an official "knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the (plaintiff), or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury. . . ." Ibid.Alston, 168 N.J. at 186-87 (citing Harlow, 457 U.S. at 815) (applying above standard and concluding that officer's negligence in checking safety switch of gun before foot pursuit was both objectively and subjectively reasonable).
Here, defendants assert that they did have probable cause to arrest plaintiff because she had allegedly obstructed their investigation in violation of the disorderly persons offense.See Defs.' Br. at 3 (citing N.J.S.A. 2C:33-2). N.J.S.A. 2C:33-2 provides:
a. Improper Behavior. A person is guilty of a petty disorderly persons offense, if with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof he
(1) Engages in fighting or threatening, or in violent or tumultuous behavior; or
(2) Creates a hazardous or physically dangerous condition by any act which serves no legitimate purpose of the actor.
b. Offensive language. A person is guilty of a petty disorderly persons offense if, in a public place, and with purpose to offend the sensibilities of a hearer or in reckless disregard of the probability of so doing, he addresses unreasonably loud and offensive coarse or abusive language, given the circumstances of the person present and the setting of the utterances, to any person present.
Defendants submit evidence that plaintiff was abusive to the officers by using foul language and instructing the young men being questioned to ignore the officers. See Winslow Township Police Report, 10/28/98, Adler Cert., Ex. 20. Defendants also submit that two maintenance men at the Regency House apartment who witnessed the incident and provided statements for a police report indicated that plaintiff was very rude and abusive toward the officers. Captain Biggs Memo., Adler Cert., Ex. 37. Plaintiff's deposition testimony also reveals that in speaking with the police that day she said "they a fucking pain in the ass." Davis Depo., 9/28/01, Pl.'s Ex. A, at 142. Plaintiff in her plea colloquy in Berlin County Municipal Court also admitted that she used profanity and cursed at the October 28, 1998 incident.See Tr. 4/6/00, at 6, Adler Cert., Ex. 18.
Plaintiff, in response, asserts "she did not use any offensive language toward the police" but admits that she stated that the police "were a fucking pain in the ass." Pl.'s Br. at 12; Davis Depo., 4/6/00, at 142, Pl.'s Br. Ex. A. Plaintiff contends that she was generally talking and asking the police why they were harassing her nephew. See Davis Depo., Pl.'s Ex. A, 9/28/02, at 141-42. In her deposition testimony, plaintiff states, "I was just fussing. I kept saying, this don't make no sense. . . . I said, my frigging goodness, somebody right now is being raped, killed, robbed and they out here harassing people. Why, because they Afro Americans, if they was white they wouldn't be stopped."Id. at 139.
The facts and circumstances in evidence tend to suggest that the police officers had probable cause to arrest plaintiff on the disorderly conduct charge under subsection (b) of N.J.S.A. 2C:33-2. Probable cause exists if the facts and circumstances within the arresting officer's knowledge are sufficient to justify an objectively reasonable belief that a suspect has committed or is committing a crime. See Hunter v. Bryant, 502 U.S. 224, 228 (1991). In this case, plaintiff was shouting 4 floors above the officers' investigation, interrupting their investigation of the alleged urination of the boys. One of the boys, Faruq Driggins, stated in his deposition:
She got loud. She said, why y'all harassing them. Y'all is always messing with these kids. These kids didn't do anything to anybody and that was the rhetoric. It was like that.
Driggins Depo., Pl.'s Ex. D, at 19. Driggins further testified that he said to plaintiff, "I told her calm down, they letting us go." Id. at 21. On the facts and circumstances, it is likely that plaintiff's yelling was unreasonably loud considering that the defendant officers were trying to conduct an investigation, and there is sufficient evidence she had used abusive language towards the officers in violation of the statute. As discussed, plaintiff conceded that she cursed and used profanity during the defendant officers' investigation. See Tr. 4/6/00, Adler Cert., Ex. 18. Thus, defendants had probable cause in arresting plaintiff for disorderly conduct.
Notwithstanding the likely finding of probable cause to arrest plaintiff for disorderly conduct, defendants do not satisfy the objective component of immunity under the NJTCA because the officers' actions, if proved by plaintiff, most likely violate plaintiff's well-established rights under the Fourth Amendment. Plaintiff asserts in Count II of her complaint that defendants engaged in an unreasonable search and seizure when they arrested her without probable cause, depriving her of her rights under the Fourth Amendment. See Compl. ¶¶ 36-38. The Third Circuit has noted that "[a]lthough police may make a warrantless arrest in a public place if they have probable cause to believe the suspect is a felon, `the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.'" Sharrar v. Felsing, 128 F.3d 810, 819 (3d Cir. 1997) (quoting Payton v. New York, 445 U.S. 573, 590) (1980)) (holding that arrest occurred inside home and remanding to district court determine whether exigent circumstances nevertheless justified arrest).
Although plaintiff also invokes the Fifth and Fourteenth Amendments under this claim, the Court construes Count II to raise a claim more properly brought under the Fourth Amendment's proscription against unreasonable searches and seizures.
Viewing the evidence in the light most favorable to the non-moving party, here the plaintiff, a reasonable jury could find that defendants executed their arrest of plaintiff within plaintiff's home without a warrant, in violation of the Fourth Amendment. Plaintiff alleges in her complaint that she was on her balcony on the fourth floor of her apartment complex when she observed Officers Richards and Urban questioning two young boys whom she knew. See Compl. ¶¶ 10-12. She and defendants then allegedly engaged in a "brief verbal conversation" in which "defendants again used several racial slurs to refer to plaintiff and plaintiff referred back to defendants using vulgar language."Id. ¶ 15. After plaintiff had returned to her apartment, and after approximately 5 to 10 minutes had passed, defendants Richards and Urban appeared on her doorstep, found the door ajar, entered her home without her permission, and arrested plaintiff within the confines of her home. There is no allegation that defendants arrested plaintiff outside of her home, nor is there any allegation that defendants possessed an arrest warrant.
In addition, the officers were reprimanded by Winslow Township Police Department for not having an arrest warrant upon entering the plaintiff's home. See Bello Letter, 3/30/99, Pl. Ex. F. Chief of Police Anthony Bello stated to Scott Urban,
After completing the original MOV Summons, both you and a fellow officer proceeded to the woman's apartment to arrest her for disorderly conduct. The woman came to the door and was informed that she was under arrest. At this time she attempted to close the door and refuse entry. You and the other officer then forcibly entered the dwelling and arrested the woman. Although it is apparent that your actions in entering the dwelling were not malicious nor was it done with the knowledge that your actions were wrong, a warrant should have been obtained for the woman's arrest.Id. Chief Bello stated that such actions were "in direct violation of the . . . Winslow Township Police Department Code of Conduct 11.8 Performance of Duty," which provides:
All members and employees shall perform their duties as required or directed by law, department rule, policy or order, or by order of a superior officer. All lawful duties required by competent authority shall be performed promptly as directed, notwithstanding the general assignment of duties and responsibilities.Id. Such evidence indicates that the officers' actions were not objectively reasonable.
Furthermore, defendants have not alleged, nor is there any evidence indicating, that exigent circumstances justified their warrantless entry into plaintiff's home. As the Third Circuit noted in Sharrar, the Supreme Court has stated that "a warrantless intrusion may be justified by hot pursuit of a fleeing felon, or imminent destruction of evidence, . . . or the need to prevent a suspect's escape, or the risk of danger to the police or to other persons inside or outside the dwelling." Sharrar, 128 F.3d at 820 (quoting Minnesota v. Olson, 495 U.S. 91, 100 (1990) (internal quotations omitted)). "`Before agents of the government may invade the sanctity of the home, the burden is on the government to demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries." Sharrar, 128 F.3d at 820 (quoting Welsh v. Wisconsin, 466 U.S. 740, 750 (1984)).
In this case, defendants have failed to establish any evidence that would support the existence of exigent circumstances. It is likely that probable cause existed to arrest plaintiff for disorderly conduct under N.J.S.A. 2C:33-2(b). Even if plaintiff engaged in disorderly conduct, however, it is unclear to this Court how exigent circumstances could have arisen in the 5 to 10 minutes that had passed since the investigation involving the boys had occurred that would require the immediate arrest of plaintiff within her home. The minors had not run to seek sanctuary in the plaintiff's home, nor is there any allegation that plaintiff harbored any perpetrator or evidence in her home that was significantly related to the alleged incident in the parking lot. Rather, defendants Richards and Urban appeared on plaintiff's doorstep and entered for the purpose of arresting plaintiff for her disorderly conduct which allegedly interfered with their investigation occurring 5 to 10 minutes previously, 4 floors below. In this case, defendants have failed to carry their burden in demonstrating exigent circumstances that would justify their entering plaintiff's home and arresting plaintiff without a warrant. On the facts of this case, defendants' actions could be found to have violated plaintiff's constitutional right to be free in her home from unreasonable searches and seizures under the Fourth Amendment, and they therefore fail to demonstrate objective reasonableness under the NJTCA immunity principles.
The Court's next inquiry is whether the defendants were subjectively reasonable in their actions. In order to be entitled to immunity under the NJTCA, defendants' conduct must be subjectively reasonable based on the totality of the circumstances. See Alston, 168 N.J. at 704 (finding officer conduct in pursuit of suspect to be subjectively and objectively reasonable). It cannot be conclusively established that the facts and circumstances in this case demonstrate that defendants' arrest of plaintiff in her home was subjectively reasonable. Though not dispositive of the matter, defendants were reprimanded by Winslow Township Police Department for entering plaintiff's home without a warrant. Plaintiff asserts in her complaint that defendants were motivated by race-based animus in arresting her, and that they referred to her in derogatory terms. See Compl. ¶¶ 19-28. Furthermore, it was clearly established law at the time of the incident that warrantless arrests within one's home absent exigent circumstances were prohibited by the Fourth Amendment.See Payton v. New York, 445 U.S. 573, 590 (1980); Welsh v. Wisconsin, 466 U.S. 740, 750 (1984); Sharrar, 128 F.3d at 819. While defendants' evidence demonstrates a showing that there was probable cause for arresting plaintiff for disorderly conduct, there is no evidence tending to show that these defendant officers believed there were exigent circumstances allowing them to enter plaintiff's home, or that they did not know the clearly established law at that time, while there is evidence, giving favorable inferences to plaintiff's pleadings, that defendants were motivated by race-based animus. This Court thus cannot conclude as a matter of law that defendants' actions were subjectively reasonable.
Accordingly, because defendants' actions, under plaintiff's version of the facts, would be objectively unreasonable, and because it cannot be concluded as a matter of law that defendants were subjectively reasonable in arresting plaintiff inside her home absent an arrest warrant and exigent circumstances, defendants' motion for summary judgment on plaintiff's state law tort claims will be denied on this ground.
b. Plaintiff's Claim for Pain and Suffering Damages
Defendants move for summary judgment on plaintiff's common law claims because they allege plaintiff cannot prove that she suffered the requisite amount of harm in order to recover damages for pain and suffering under the NJTCA. At oral argument, it was revealed that plaintiff bases her pain and suffering damages on her psychological injury. N.J.S.A. 59:9-2(d) provides:
It should be noted that plaintiff's counsel in oral argument conceded that plaintiff had no permanent physical injury. Although plaintiff attempted to argue to the Court that her permanent disfigurement was her extreme pain in her shoulder in addition to her psychological issues, she conceded that no objective evidence existed regarding an inability to lift objects as a result of such injury.
No damages shall be awarded against a public entity or public employee for pain and suffering resulting from any injury; provided, however, that this limitation on the recovery of damages for pain and suffering shall not apply in cases of permanent loss of a bodily function, permanent disfigurement or dismemberment where the medical treatment expenses are in excess of $1,000.
N.J.S.A. 59:9-2(d). The District of New Jersey has noted that the New Jersey Supreme Court "has made clear that `pain and suffering' as barred by the statute includes emotional distress and mental trauma that does not result from a permanently debilitating or disfiguring physical injury." Eggert v. Tuckerton Volunteer Fire Co. No. 1, 938 F. Supp. 1230, 1242 (D.N.J. 1996) (citing Ayers v. Jackson Township, 106 N.J. 557, 577 (1987)); see also N.J.S.A. 59:9-2(d). The New Jersey Supreme Court in Ayers stated that "the legislature has expressly determined that the pain and suffering occasioned by [plaintiffs'] emotional distress is not compensable by damages from [the township]." Ayers, 106 N.J. at 577. "Accordingly, merely subjective symptoms of anxiety, nervousness and depression unaccompanied by requisite indicia of permanent physical infirmity are not recoverable injuries under the New Jersey Tort Claims Act." Eggert, 938 F. Supp. at 1242 (citing Ayers, 106 N.J. at 577).
The New Jersey Supreme Court has determined that to recover under the NJTCA, a plaintiff must prove (1) an objective permanent injury, and (2) a permanent loss of a bodily function that is substantial. See Kahrar v. Borough of Wallington, 171 N.J. 3, 12 (2002) (construing Brooks v. Odom, 150 N.J. 395 (1997)); see also Gilhooley v. County of Union, 164 N.J. 533, 541 (2000). As applied to psychological injuries, a plaintiff must show that the injury "is both permanent and substantial."Willis v. Ashby, 353 N.J. Super. 104, 109 (App.Div. 2002) (citing Collins v. Union County Jail, 150 N.J. 407, 417 (1997)) (claim for pain and suffering due to stillborn birth caused by negligence satisfies NJTCA threshold). To prove that the psychological harm is permanent, "[p]laintiff's medical experts must provide proof of the permanency of her condition to sustain her burden of proving a permanent loss." Gerber v. Springfield Bd. of Educ., 328 N.J. Super. 24, 37 (App.Div. 2000) (citingDenis v. City of Newark, 307 N.J. Super. 304, 318 (App.Div. 1998)).
The test for proving that a psychological injury is "substantial" is a stringent one. See, e.g., Brooks, supra, 150 N.J. at 406 (holding that post-traumatic headaches and orthopedic injuries from bus striking plaintiff's parked car was not substantial); Rocco v. New Jersey Transit Rail Operations, 330 N.J. Super. 320, 333-34 (App.Div. 2000) (holding that psychological injuries resulting from hand jammed between railcar door is not substantial permanent psychological injury); Hammer v. Township of Livingston, 318 N.J. Super. 298, 306-07 (App. Div. 1999). Plaintiff here fails to adduce evidence demonstrating that her condition is sufficiently "substantial" under the NJTCA. In Hammer, a case similar to the instant matter, plaintiff had suffered from what her doctor had deemed a "chronic" and "partially disabling" post-traumatic stress disorder with severe phobic elements as a result of being struck by a fire truck. In addition to the post-traumatic stress disorder, she sustained fractures and pain in the right side of her body, as well as scars from requisite surgery and resulting disfiguration of her nose. The Appellate Division affirmed the trial court's summary judgment determination in favor of defendants on the post-traumatic stress disorder because plaintiff had failed to provide prima facie proof that her psychological condition was substantial, finding that although she suffered from a chronic and partially disabling post-traumatic stress disorder with severe phobic elements, she nonetheless suffered from a mild level of anxiety and depression, and there was nothing in the record to reflect that plaintiff was prevented from carrying out her ordinary day-to-day functions. Id. at 307. The Appellate Division reversed, however, with respect to the trial court's determination that plaintiff's scarring on her face and her leg did not constitute a "permanent disfigurement" under N.J.S.A. 59:9-2(d).
Here, plaintiff went to the emergency room after the incident, and alleges that she had limited use of her shoulder, severe pain in her leg, and disabling headaches as a result of the alleged assault. See Pl.'s Br. at 15. Plaintiff submits medical records of Dr. Joseph Hassman, set forth in plaintiff's exhibit G, who evaluated plaintiff in November 1998 through March 1999, and the records of psychologist Lillian Hassman, also set forth in exhibit G, who evaluated plaintiff on February 9, 1999, and again saw the patient on February 16, 1999. After her initial physical examination on November 18, 1998, Dr. Joseph Hassman diagnosed plaintiff with acute sprain/strain of her left shoulder, muscle spasms, strains/sprains of her spine, multiple contusions, and anxiety. See J. Hassman Report, 7/9/02, Pl.'s Br. Ex. G. Psychologist L. Hassman in her psychological reports indicates that the plaintiff complained of fragmented sleep, disturbing dreams, irritability, fatigue, lethargy, inability to relax, and that she had been unable to carry out household chores such as laundry, mopping, and grocery shopping due to pain in her shoulder, and diagnosed her with Adjustment Disorder with Anxious Mood. L. Hassman Report, 2/9/99, Pl.'s Br. Ex. G. Plaintiff's psychologist discharged plaintiff in March 1999 after she had failed to show up for an appointment, despite attempts to contact her. See L. Hassman Report, 3/2/99, Pl.'s Br. Ex. G.
The defendants' expert report indicates that plaintiff suffers from chronic post-traumatic stress disorder as a result of the alleged incident. Dr. Wolf's report of January 22, 2002, states that plaintiff took a post-traumatic stress diagnostic, which indicated that plaintiff suffers from Post-traumatic Stress Disorder ("PTSD"). See Wolf Report, Adler Cert., Ex. 69, at 10, 11. Dr. Wolf determined that the disorder was chronic due to the longevity, over six months, of plaintiff's symptoms. See id. at 11. In the report, Dr. Wolf noted that plaintiff suffers from headaches, shoulder pain, periodic sleep disturbances, constant anxiety around other people, and an inability to trust others.See id. at 3. Dr. Wolf indicated that it is his opinion that her PTSD is, in part, a result of the October 28, 1998 incident.Id. at 12. Dr. Wolf also examined plaintiff on April 2, 2002, and again gave the opinion that her post-traumatic stress disorder is a result, in part, of the incident of October 28, 1998. Wolf Report, 4/2/02, Defs.' Br. Ex. 70, at 5. He also suggested that plaintiff seek psychiatric and psychological treatment, and commented that she expressed a bizarre thinking style, paranoid ideation, marked depression and occasional suicidal ideation. See id.
Dr. Wolf also gave his opinion that plaintiff suffers from a long-standing Dysthymic Disorder and a Paranoid Personality Disorder, which pre-dated the incident of October 28, 1998.Id.
Although plaintiff at oral argument contended that the permanently debilitating injuries in this case consist of the psychological stress resulting from the incident, in addition to her extreme pain in the shoulder area, she admitted that there is no documentation regarding plaintiff's permanent inability to lift objects as a result of her injury, which would favor a finding of a substantial impairment or sufficient aggravation under the NJTCA. Defendants further submit that plaintiff voluntarily ended her medical treatment and has not sought the care of any further doctors. Furthermore, it was disclosed at oral argument that while plaintiff had not been working for approximately three months after the incident, she continues to work presently without requiring any accommodation.
One doctor report indicated that plaintiff had been put on probation at Sands Casino where she was a porter. See L. Hassman Report, 2/9/99, Pl.'s Br. Ex. G, at 1.
Viewing the evidence in the light most favorable to plaintiff and considering all reasonable inferences, plaintiff fails to present a prima facie case for pain and suffering damages under the NJTCA threshold because her injury does not constitute a permanent loss of a bodily function that is substantial, as the case law in this state indicates. Although the chronic nature of her psychological disorder, as characterized in defendants' expert report, may support the permanency of plaintiff's condition, there is insufficient evidence to find that her psychological condition is sufficiently substantial under the NJTCA to entitle her to pain and suffering damages. Even if plaintiff's symptoms of depression and anxiety can be considered "disabling," such a condition would fail to meet the stringent threshold, like Hammer, where the court found that plaintiff's disorder, deemed partially disabling and leading to the prognostication that plaintiff would never fully recover, was insubstantial. Dr. Wolf's examination of plaintiff demonstrated the extent of her post-traumatic psychological disorder as described above, but, like Hammer, there is no evidence in the record demonstrating that plaintiff is currently prevented from maintaining a job due to her psychological injury. The record is further devoid of any evidence that plaintiff requires medical attention for her psychological condition in order for her to conduct her daily functions, or that her daily functions are impeded by her psychological injury. While plaintiff's medical report in 1999 indicates plaintiff's difficulty in conducting household chores, that report occurred more than three years ago, and cited plaintiff's shoulder pain as the reason.
On the contrary, although Dr. Wolf recommended psychological treatment early this year, the evidence demonstrates that plaintiff holds a steady job without accommodation, and, after discontinuing psychological treatment in early 1999, she functions in her normal day-to-day routine without the assistance of psychological care. As in Hammer, plaintiff's psychological injury fails to constitute a "permanent loss of a bodily function" under N.J.S.A. 59:9-2(d).
Furthermore, it should be noted that plaintiff's psychological disorder did not result from a sufficiently aggravating and intrusive assault, for which the New Jersey Supreme Court will award pain and suffering damages. See Collins, 150 N.J. at 420. In Collins, the plaintiff, an inmate, was forcibly sodomized by a corrections officer. The Supreme Court distinguished the case from other cases involving psychological injuries, and held that because the situation involved an "aggravating and intrusive assault," the plaintiff had sufficiently sustained a "permanent loss of bodily function" under N.J.S.A. 59:9-2(d). Id. On the facts of this case, defendants' arrest of plaintiff in her home fails to meet the severity of the assault in Collins.
Notably, the District of New Jersey has refused pain and suffering damages in a case alleging § 1983 claims. See Hansell v. City of Atlantic City, 152 F. Supp. 2d 589, 612 (D.N.J. 2001), aff'd, 46 Fed. Appx. 665, 2002 WL 31011142 (3d Cir. Aug. 22, 2002). In Hansell, plaintiffs sought pain and suffering damages against a police officer who discharged his revolver into his ex-wife's home to gain entrance and subsequently held plaintiffs hostage at gunpoint. The district court held that, although defendant's actions in firing his gun and taking plaintiffs hostage at gunpoint were violent and that plaintiffs suffered emotional distress as a result, plaintiffs "did not suffer from a similar type of `invasive physical assault' as did the plaintiff in Collins." Id. at 612. While plaintiff Davis may be able to prove to a reasonable jury that she suffered emotional distress as a result of the defendants' alleged arrest of plaintiff in her home, the evidence fails to reach the level of "aggravating and intrusive assault" found in Collins. Accordingly, plaintiff is not entitled to pain and suffering damages, and defendants' motion will be granted on this ground.
The district court in Hansell read the Collins holding narrowly, "to apply only in situations in which a plaintiff suffers a direct, violent, and invasive assault, which later manifests itself as a permanent psychological injury." Id. at 612 (citing Collins, 150 N.J. at 414). The Appellate Division later stated, "We do not read Collins as limiting recovery under N.J.S.A. 59:9-2(d) for psychological injuries due to `direct, violent and invasive physical assault,' such as criminal sodomy or rape[.]" Willis, 353 N.J. Super. at 112. Accordingly, this Court does not read the Collins holding as applying so narrowly, and recognizes that, while other aggravating situations may allow for an award of pain and suffering damages, the instant situation nevertheless fails to reach such a level.
Even if plaintiff's "debilitating condition" consisted of her physical complaints of extreme shoulder pain, such injury would be insufficient to meet the high standard regarding substantiality under N.J.S.A. 59:9-2(d). See Heenan v. Greene, ___ A.2d ___. 2002 WL 31556941, at *2-3 (App.Div. Nov. 20, 2002). In Heenan, plaintiff suffered from a disc herniation and several conditions including left shoulder sprain/strain, cervical disc syndrome with radicular sensation, post-traumatic cervico-cranial syndrome, and post-traumatic myofasciitis, resulting from being struck by a truck. While the court determined that plaintiff suffered from an objective permanent injury, a herniated cervical disc, and a restriction of movement in her neck, and that she could perform household chores to some extent and continued to work as a teacher, such condition did not result in an aggravated injury that met the "substantial" threshold. See id. at *3 (citing Brooks, supra, 150 N.J. at 406 (finding that plaintiff's decreased range of neck and back motion, which caused difficulty in performing household chores and activities requiring lifting or bending, as a result of being struck by a bus, was not substantial)). Plaintiff does not complain of or adduce evidence demonstrating a more limited range of motion resulting from the alleged incident, or an objective permanent physical condition, nor can it be concluded that plaintiff suffered the severity of injuries as in Heenan. As inHeenan, plaintiff's injury, consisting of her shoulder pain, would not meet the threshold for a permanent and substantial injury under N.J.S.A. 59:9-2(d).
III. CONCLUSION
As discussed above, plaintiff concedes that defendants Winslow Township and Chief Bello cannot be held vicariously liable for their employees' alleged civil rights violations. Defendants' motion will therefore be granted with respect to plaintiff's ¶ 1983 claim against defendants Winslow Township and Chief Bello, and summary judgment is granted to these defendants on those claims. In addition, defendants are not entitled to good faith immunity under the NJTCA, and defendants' summary judgment motion will therefore be denied with respect to plaintiff's state law tort claims. Also, plaintiff is not entitled to pain and suffering damages under the NJTCA, and defendants' summary judgment motion will be granted on this ground to preclude recovery for pain and suffering under New Jersey law. The accompanying Order will be entered.
ORDER
THIS MATTER comes before the Court upon defendants' motion for summary judgment as to plaintiff Dorothy Davis's § 1983 claim against defendants Winslow Township and Chief Anthony Bello, and as to her state law tort claims against all defendants; and the Court having considered the parties' submissions; and for the reasons stated in the Opinion of today's date;IT IS on this __ day of December, 2002, hereby
ORDERED that defendants' motion for summary judgment [Docket Items 23-1, 26-1] be, and hereby is, GRANTED in part as to plaintiff's § 1983 claims against defendants Winslow Township and Chief Anthony Bello, and summary judgment in favor of these defendants upon the § 1983 claims is GRANTED ; and DENIED in part as to plaintiff's state law tort claims; and GRANTED in part as to plaintiff's claim for pain and suffering damages under the New Jersey Tort Claims Act, and summary judgment in favor of all defendants is entered upon such claim.