LEENSTRA v. THEN et al, No. 2:2010cv05909 - Document 43 (D.N.J. 2012)
Court Description: OPINION. Signed by Judge Jose L. Linares on 12/3/2012. (nr, )
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NOT FOR PUBLICATION UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY LINDA A. LEENSTRA, Plaintiff, v. RICHARD THEN, BRIAN KITHCART, PHILLIP COLEMAN, ANDOVER TOWNSHIP, JOHN DOE 1-10 (A FICTITIOUS NAME), JOHN ROE SUPERVISiNG OFFICER 1-10 (A FICTITIOUS NAME), ABC CORP. 1-10 (A FICTICIOUS NAME), Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Civil Action No.: 10-5909 (JLL) OPINION LINARES, District Judge. This matter comes before the Court by way of a Motion for Summary Judgment filed by Defendants on November 12, 2012. The Court has considered the Defend ants submission in support of the present motion and decides the matter without oral argum ent pursuant to Rule 78 of the Federal Rules of Civil Procedure. For the reasons that follow, Defendants motion is granted. I. BACKGROUND A. Facts Linda A. Leenstra ( Leenstra or Plaintiff ) has a history of mental illness and has been diagnosed with Borderline Personality Disorder, Bipolar Disorder, Massive Depressive Disorder, and Generalized Anxiety Disorder. Defs. SOF at 9-10. On at least three occasio ns, Plaintiff ¶J was hospitalized for mental health emergencies resulting from her mental health impair ments. Id. at ¶ 11. On November 14, 2008, Plaintiff s therapist, Sheri Gibson, received a text from Plaintiff s phone number reading, Do you think today s a good day to die? I do. Id. at ¶ 19. Gibson called Plaintiff and left a voicemail indicating that if Plaintiff did not return Gibson s call, Gibson would contact the police. Id. at 22. After several minutes withou ¶ t receiving a response, Gibson notified a police dispatcher that Plaintiff sent a suicidal text message and requested that the police conduct a welfare check. Id. at 23. The dispatcher attempted to call ¶ Plaintiff, while defendants Richard Then and Brian Kithcart went to Plaintiff s home to conduct a welfare check. Id. at ¶J 24, 27. When Then and Kithcart first arrived, Plaintiff was not home. Id. at 27. The dispatcher ¶ contacted Plaintiff s husband and was told that Plaintiff was located at Sussex County Vo-Tech High School. Id. at ¶ 28. The dispatcher then contacted the Sparta police and asked them to make a welfare check on the plaintiff at Sussex Vo-Tech. Id. at 29. When the Sparta police ¶ arrived, they contacted Plaintiff s husband, and were told that Plaintiff was fine and back at home. Id. at ¶ 30. Then and Kithcart then returned to Plaintiff s residence. Id. at 32. Then was equipped ¶ with a recorder that recorded audio over the course of the next hour in the Leenstra residence. Id. at ¶ 33. The officers entered the home, where they were met by Plainti ff s husband who indicated that Plaintiff was fine. Id. at ¶J 38-39. Then moved towards Plaintiff and calmly Defendants attached a copy of the audio recording to their Motion for Summ ary Judgment. 2 asked about her text message. Id. at ¶41. She indicated that she was upset and returne d to her room. Id. at ¶J 41-42. Plaintiff s husband repeated that Plaintiff was fine and warned that the officers were just going to create more problems. Defs. SOF at 43. Then stated that he just needed ¶ to make sure she was okay, and Plaintiff s husband conveyed this message to Plaintiff. Id. at ¶J 43, 45. Then and Kithcart entered Plaintiff s bedroom, and Then again asked about the text messag e. Id. at ¶ 48. Plaintiff responded, I don t know. I think it s a good day to die. That s the text message I sent. It s my fucking opinion. Id. at ¶ 49. The officers asked follow up questions, and Then requested Emergency Medical Services ( EMS ) to transport Ms. Leenstra to the hospital for evaluation based on her suicidal text message and the suicidal statement she repeate d in his presence. Id. at ¶{ 50, 54. After Then contacted the EMS, Plaintiff grabbed her jacket and moved toward the door to her bedroom. Id. at ¶ 57. Then told Plaintiff that she was not going anywh ere, and Plaintiff responded that the officers should Get out of [her] house! Id. at 58. Then interpr eted her ¶ grabbing the jacket as a possible attempt to exit the home, so Then restrained Plaintiff by grabbing her arm. Id. at ¶ 59. Plaintiff and Plaintiff s husband allege that Plainti ff informed the officers that Plaintiff was just reaching for a cellphone in her jacket pocket so that she could contact her therapist; however, the police recording does not contain any mentio n of a cell phone or a therapist in the moments before or after Officer Then first grabbe d the plaintiff. Id. at ¶ 60. After Then grabbed Plaintiff, Plaintiff struggled, and Plaintiff and Then fell to the floor. Id. at ¶ 61. Then and Kithcart then struggled with Plaintiff for several minute s in an attempt to restrain her. Id. at ¶ 62. Both officers complained about being kicked at various times 3 throughout the incident, and one is recorded saying Stop kicking me. Defs. SOF at ¶J 63-64. Then and Kithcart attempted to handcuff Plaintiff, and Plaintiff complained that they were breaking her shoulder. Id. at ¶ 68. Plaintiff had pre-existing shoulder tendon itis, but the officers were unaware of this condition at the time of the incident. Id. at 69. The officers ¶ finally secured Plaintiff in two sets of handcuffs, which were necessary due to her size. Id. at ¶ 70. As they began escorting Plaintiff out of the house, Plaintiff kicked Kithe art in the groin and Then in the interior left knee and lower leg. Id. at 71. Defendants provid ed the Court ¶ photographs showing bruises sustained by one the officer. Defs. Ex. 20. Kithcart and Then then notified Plaintiff that she was under arrest for assault , and took her to the front of the house to wait for EMS. Defs. SOF at ¶J 75-76. After an EMS worker arrived, Plaintiff asked the EMS worker to remove her handcuffs. Id. at ¶J 77-78. Kithcart and Then initially denied her request, but, within three minutes, moved the handcu ffs to a more comfortable position in the front of the plaintiff s body. Id. at 78. While the EMS technician ¶ evaluated Plaintiff, Plaintiff made numerous suicidal statements including two proclaiming 1 want to die. Id. at ¶ 79. Plaintiff was then taken by ambulance to Newton Memorial Hospital, where she was handcuffed to a bed. Id. at ¶J 80, 82. At the hospital, Plaintiff screamed and wrapped a cord around her neck. Id. at ¶ 83. Hospital nurses contacted Then and Kithcart, who were waiting outside her room. Id. at ¶ 84. They entered and removed the cord, during which time Plaintiff spat on them. Id. at ¶ 86. Then and Kithcart then sought and obtained a warrant for plaintiff s arrest on two counts of aggravated assault and two counts of assault on a police officer by throwi ng bodily fluids. See Id. at ¶ 88. Plaintiff was released from the hospital, arrested by Detective Eric Danielson, and transported to the county jail. Id. at ¶ 89. Plaintiff was subsequently taken to the Keogh-Dwyer 4 Correctional Facility in lieu of bail, and Plaintiff was released the next day. Defs. SOF at 90. ¶ All charges against Plaintiff were subsequently dropped. Id. at ¶91. B. Procedural History On November 14, 2010, Plaintiff filed a six count complaint against the following Defendants: Then; Kithcart; Philip Coleman, the Chief of the Andover Township Police Department at the time of the incident; Andover Township; John Doe 1-10, fictitious persons/law enforcement officers whose identity was unknown at the time; John Roe Supervising Officers 1-10, fictitious supervising officers in the Andover Township Police Department; and ABC Corp. 1-10, fictitious names for entities who were responsible of the investigation and/or enforcement of the laws within Andover Township. See Compl. at 2-3. 2 Among other things, Plaintiff alleges that Defendants violated her federal and state constitutional rights, committed false imprisonment/false arrest, and engaged in civil conspiracy. See Id. at 8, 10, 12, 13. On October 12, 2012, Defendants filed the present Motion for Summary Judgment requesting judgment in their favor on each of Plaintiffs six counts. Plaintiff was given fourteen days to file her motion in opposition but was granted a fourteen day extension as a matter of right. Plaintiff requested an additional fourteen day extension in light of inclement weather, and the Court promptly granted her request and extended Plaintiff s deadline to November 19, 2012. See Nov. 19, 2012 Order. Plaintiff has not filed a motion in opposition or requested a third 2 Plaintiff did not amend her complaint to identify these fictitious defendants, and Plaintiffs deadline to amend her complaint or add additional parties has past. Plaintiff has not presented any evidence of any wrong committed by any fictitious officer or Andover Township entity, and discovery in this matter is closed. Accordingly, Plaintiffs claims against these fictitious defendants cannot survive summary judgment. Moreover, even if Plaintiff had identified the fictitious defendants, these defendants would be entitled to summary judgment in their favor for the same reasons set forth below for the named defendants. 5 extension. The Court therefore treats Defendants Motion for Summary Judgment as unopposed. And, after a careful review of the materials in support of Defendants motion, including audio recordings of the incident at issue, the Court grants Defendants Motion for Summary Judgment. II. LEGAL STANDARD A court shall grant summary judgment under Rule 56(c) of the Federal Rules of Civil Procedure if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). On a summary judgment motion, the moving party must show, first, that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 744 U.S. 317, 323 (1986). The burden then shifts to the non-moving party to present evidence that a genuine issue of material fact compels a trial. Id. at 324. In so presenting, the non-moving party must offer specific facts that establish a genuine issue of material fact, not just some metaphysical doubt as to the material facts. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Thus, the non-moving party may not rest upon the mere allegations or denials in its pleadings. See Celotex, 477 U.S. at 324. Further, the non-moving party cannot rely on unsupported assertions, bare allegations, or speculation to defeat summary judgment. See Ridgewood Rd. ofEduc. v. N.E. ex. Rel. ME., 172 F.3d 238, 252 (3d Cir. 1999). The Court must, however, consider all facts and their reasonable inferences in the light most favorable to the non-moving party. See Pennsylvania Coal Ass n v. Babbitt, 63 F.3d 231, 236 (3d Cir. 1995). III. DISCUSSION A. Counts One, Two and Three Federal and State Constitutional Law Claims 6 In Counts One, Two, and Three of Plaintiff s complaint, Plaintiff alleges that Then, Kithcart, Coleman, John Roe Supervising Officer 1-10, and Andover Township violated the New Jersey State Constitution as well as the Fourth, Fifth, and Fourteenth Amendments of the United States Constitution. See Compl. at 8-12. For the reasons that follow, Defendants are entitled to summary judgment in their favor as to each of these counts. 1. Claims Against Then and Kithcart Defendants argue that Then and Kithcart are entitled to qualified immunity as to each of Plaintiff s state and federal constitutional law claims against them. Defs. Br. at 7. Qualified immunity applies to claims under both the United States and the New Jersey constitutions. Ramos v. Flowers, No. A-4910-10T3, 2012 N.J. Super. LEXIS 157, at *14 (N.J. Sp. Ct. App. Div. filed Sept. 21, 2012). Police officers performing discretionary functions are generally shielded 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. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Courts recognize that police officers must often make split second decisions and can make mistakes in the process. See Glues v. Davis, 427 F.3d 197, 207 (3d Cir. 2005) (citing Saucier v. Katz, 533 U.S. 194, 204-05 (2001)). Accordingly, the qualified immunity afforded to police officers encompasses mistaken judgments that are not plainly incompetent. Id. Whether a police officer s mistake is reasonable and he is thus entitled to qualified immunity is a question of law that is properly answered by the court, not a jury. Curie v. Klein, 499 F.3d 199, 211 (3d Cir. 2007). Here, Plaintiff alleges numerous violations of the United States and New Jersey constitutions. As Count One, Plaintiff argues that Then and Kithcart violated her federal constitutional rights by detaining her, searching her home, using excessive force, unjustifiably 7 creating a danger and undue risk to Plaintiff s life and limb, falsely arresting and imprisoning Plaintiff, maliciously prosecuting Plaintiff, and denying Plaintiff Equal Protection of the Law. See Compi. at 9. As Count Two, Plaintiff alleges that the officers deprived her of her substantive due process, equal protection rights, [and] privileges and/or immunities secured by the federal and state constitutions. See id. at 10-Il. And, as Count Three, Plaintiff alleges that the officers violated her state constitutional rights by falsely arresting Plaintiff, illegally seizing the person of Plaintiff, maliciously prosecuting Plaintiff, using excessive force, and conspiring to commit the acts aforesaid. See id. at 11. For the reasons discussed below, Plaintiff s allegations are insufficient to establish a violation of a constitutional or statutory right, and the officers are entitled to summary judgment in their favor. See Harlow, 457 U.S. at 818. a. Detaining Plaintiff without probable cause In Counts One and Three of Plaintiff s complaint, Plaintiff alleges that she was seized and detained without probable cause and in violation of her United States and New Jersey state constitutional rights. See Compl. at 9, 11 (stating that Defendants violated Plaintiff s rights by illegally seizing the person of Plaintiff ). Plaintiff was detained on two separate occasions. First, Then and Kithcart detained her and took her to the hospital for a mental health evaluation. See Defs. SOF at ¶ 80. Second, Plaintiff was arrested and taken by Detective Danielson to the county jail where she was later transferred to an additional facility. See id. ¶J 89-90. Then and Kithcart s conduct in each of these detainments does not violate a clear statutory or constitutional right, so each officer is entitled to summary judgment in his favor. See Harlow, 457 U.S. at 818. First, Then and Kithcart detained Plaintiff for a mental health evaluation. N.J.S.A. 30:427.6 permits a law enforcement officer to take custody of a person and take that person immediately and directly to a screening service if, on the basis of personal observation, the law 8 enforcement officer has reasonable cause to believe that the person is in need of involuntary commitment to treatment. See N.J.S.A. 30:4-27.6; see also Washington v. Glucksberg, 521 U.s. 702, 730 (1997) ( The state has an interest in preventing suicides ). A person is in need of treatment if they are mentally ill, the illness causes them to be a danger to themselves, they are unwilling to go for treatment, and other available services will not meet the person s needs. See N.J.S.A. 30:4-27.6. Here, the facts establish that Plaintiff was suffering from a mental illness and was unwilling to go for voluntary treatment. Plaintiff made numerous suicidal statements to Then and Kithcart whereby they could reasonably believe that Plaintiff was a danger to herself and in need of hospitalization. See, e.g., Defs. SOF at 79; see also Roberts v. Anderson, 213 F. ¶ App x 420, 427 (6th Cir. 2007) ( Probable cause in the context of mental health requires only a showing that there is a probability or substantial chance of dangerous behavior, not an actual showing of such behavior. ). Accordingly, Then and Kithcart were reasonable in believing they acted in accordance with Plaintiff s statutory and constitutional rights and are thereby entitled to statutory immunity for their actions. See Harlow, 457 U.S. at 818. Second, after Plaintiff completed her mental health evaluation and was released from the hospital, she was placed under arrest for assaulting Then and Kithcart. See Defs. SOF at ¶J 8990. Defendants argue that this arrest was properly conducted pursuant to a warrant issued by Judge Mulhern. Defs. Br. at 16. It is unclear from the record, however, whether the officers received this warrant before or after the arrest. Defendants Statement of Facts indicates that the warrant was issued approximately 2 hours after Plaintiff s arrest. Defs. SOF. at ¶J 88-89. But, Kithcart s report states that the judge issued the warrant prior to Plaintiff s arrest. See Kithcart Report at 2. The Court is required to resolve this dispute in favor of the non-moving party. Even in doing so, Plaintiff s arrest was proper. See Pennsylvania Coal Ass n, 63 F.3d at 236. A 9 warrantless arrest by a law officer is reasonable under the Fourth Amendment where there is probable cause to believe that a criminal offense has been or is being committed. See Devenpeck v. Alford, 543 U.S. 146, 152 (2004). There is sufficient evidence in the record demonstrating that Plaintiff spit on Then and Kitheart thereby committing an assault. Defs. SOF at ¶ 86. Accordingly, Plaintiff fails prove a constitutional violation and Then and Kithca rt are entitled to summary judgment in their favor. See IJarlow, 457 U.S. at 818. b. Searching Plaintiff s property without probable cause In Count One, Plaintiff alleges that Then and Kithcart violated her constitutiona rights l by searching her property without probable cause. See Compl. at 9. Then and Kithca rt entered Plaintiff s home on two occasions to conduct a mental health welfare check once before she returned home and once after. Defs. SOF at 27, 38. Neither officer had a warran ¶J t when entering Plaintiff s home; however, the Fourth Amendment s warrant requirement contain s an exception for exigent circumstances. See Bringham City Utah v. Stuart, 547 U.S. 398, 400 (2006). Officers can enter a home without a warrant when there is a need to rende r emergency assistance to occupants of private property who are seriously injured or threatened with such injury. Id. Here, there is sufficient evidence whereby Then and Kithcart could believe this exception applied. Plaintiff had a history of mental illness and texted her therapi st indicating that she thought it was a good day to die. Defs. SOF at ¶J 9, 19. Although Plaintiff s husband indicated that she was okay, Then and Kithcart were unable to speak directl y with Plaintiff in order to verify her well-being. See id. at ¶ 28. Therefore, Then and Kithcart were reasonable in entering Plaintiff s home to protect her against a serious threat of self-injury, and are entitled to summary judgment in their favor. See Bringham City Utah, 547 U.S. at 400. c. Using excessive force and restraining Plaintiff 10 In Counts One and Three of Plaintiff s complaint, Plaintiff alleges that Then and Kitheart violated Plaintiff s state and federal constitutional rights by using excessive force and restraining Plaintiff. Compi. at 9, 11. Police officers are only permitted to use reasonable force in detaining an individual. See Groman v. Twp. ofManalapan, 47 F.3d 628, 634 (3d Cir. 1995). The test for reasonableness is objective, but should give appropriate scope to the circumstances of the police action, which are often tense, uncertain, and rapidly evolvi ng. See id. (quoting Graham v. Connor, 490 U.S. 386, 397 (1989)). Factors to consider in evalua ting the reasonableness of the force are the severity of the crime at issue, whether the suspec t poses an immediate threat to the safety of the officers or others, and whether {sjhe actively is resistin g arrest or attempting to evade arrest by flight. Kopec v. Tate, 361 F.3d 772, 776-77 (3d Cir. 2004). Here, Then and Kithcart restrained Plaintiff, subdued her, and handcuffed her before she was transported to the hospital. The Court finds that the officers use of force was objecti vely reasonable in light of the circumstances of Plaintiff s detainment. See Groman, 47 F.3d at 634. Then and Kithcart initially restrained Plaintiff when she grabbed her jacket and walked towards the door. Defs. SOF at ¶J 57, 59 (stating that they interpreted Plaintiff s actions as a possible attempt to exit the home ). Plaintiff argues that she was retrieving a cellphone from her jacket pocket in order to contact her therapist; however, an audio recording of the inciden t does not contain any evidence supporting this version of the facts. Id. at 60. Plaintiff posed an ¶ immediate threat to her own safety in light of her suicidal statements, and an objectively reasonable person would believe she was attempting to flee. Accordingly, Then and Kithcart applied a reasonable amount of force in preventing her exit from the apartment. See Kopec, 361 F.3d at 776-77. 11 After Then and Kitheart restrained Plaintiff, Plaintiff began struggling with the officers. Defs. SOF at ¶ 62. Plaintiff screamed at the officers and kicked both offices on numerous occasions. Id. at ¶{ 62, 64. Plaintiff was a larger woman, as is reflected in the need to use two sets of handcuffs to restrain her, and posed a flight and personal safety risk. See id. at 70. ¶ Accordingly, the Court cannot find that the officers use of force to subdue the Plaintiff was excessive under these circumstances. See Kopec, 361 F.3d at 776-77. And, Plaintiff has not provide any evidence to the contrary. Finally, Then and Kithcart handcuffed Plaintiff. Defs. SOF at 70. When doing so, ¶ Plaintiff screamed that the officers were breaking her shoulder. Id. at 68. Plaintiff suffered ¶ from shoulder tendonitis; however, there is no indication that either officer was aware of this impairment when handcuffing Plaintiff. Id. at ¶ 69. And, apart from this one statement, there is nothing in the record indicating that Plaintiff was in pain or conveyed her pain or discomfort to the officers. After being handcuffed, Plaintiff asked for the handcuffs to be removed. Id. at 78. ¶ Although the officers did not comply with that request, the facts show that within three minutes of Plaintiff s request, Then and Kithcart moved Plaintiffs handcuffs to a more comfortable position in front of her body. Id. Objectively, Then and Kithcart s actions in handcuffing Plaintiff were reasonable under the circumstances, and they are entitled to summary judgment. See Groman, 47 F.3d at 634. d. Creating a danger and undue risk to Plaintiff s life and limb In Count One of Plaintiffs complaint, Plaintiff alleges that Then and Kithcart unlawfully and unjustifiably created a danger and undue risk to Plaintiffs life and limb. Compl. at 9. Plaintiffs complaint contains little factual support for her assertions, but presumably this claim relates to her statement that, 12 [A]s a result of Defendants [sic] conduct, Plaintiff became overwhelmed and attempted to call her therapist. Defendants at this time prevented Plaintiff from doing so and proceeding in a forceful and unlawful manner to grab Plaintiff and push her into a wall, yelling at her and puling at her arms. This resulted in Plaintiff descending into a dissociated and psychotic state. Id. at 6. As discussed in greater detail above, Plaintiff s statement that she was attemp ting to call her therapist is not supported by the great weight of the evidence before the Court. Moreo ver, Then and Kithcart s efforts to prevent the Plaintiff from fleeing did not violate clearly established statutory or constitutional rights on which a reasonable person would have known. See Harlow, 457 U.S. at 818. Accordingly, Then and Kithcart are entitled to summa ry judgment in their favor. e. Falsely arresting and imprisoning Plaintiff In Counts One and Three of her complaint, Plaintiff alleges that Then and Kithcart violated her state and federal constitutional rights by falsely imprisoning Plaintiff. Compi. at 9, 11. The record, however, does not support such a finding. There is sufficient eviden ce in the record that Plaintiff assaulted Then and Kithcart on more than one occasion. Defs. SOF at ¶J 6364, 71-73. Both officers report having been kicked by Plaintiff, and Defend ants provided photographic evidence demonstrating injuries allegedly caused by Plaintiff. Id. at ¶J 64, 74. There are several statements in the audio recording from the night of the inciden t where Then and Kithcart note that they have been kicked, and both provided statements indicat ing that Plaintiff spat on them. Id. at ¶J 63-64, 71-73, 86. Accordingly, the Court is not persuaded that Then and Kithcart s decision to incarcerate Plaintiff violated a clear establi shed statutory or constitutional rights on which a reasonable person would have known. See Harlow, 457 U.S. at 818. Accordingly, the officers are entitled to summary judgment in their favor. 1 Maliciously prosecuting Plaintiff 13 In Counts One and Three of her complaint, Plaintiff alleges that Then and Kithcart engaged in malicious prosecution in violation of her state and federal constitutional rights. Compi. at 9, 11. To succeed on a malicious prosecution claim under §1983, a plaintiff must show that: (1) the defendant initiated a criminal proceeding; (2) the criminal proceeding ended in plaintiffs favor; (3) the proceeding was initiated without probable cause; (4) the defendants acted maliciously or for a purpose other than bringing the plaintiff to justice; and (5) the plaintiff suffered deprivation of liberty consistent with the concept of seizure as a consequence of a legal proceeding. Kossler v. Crisanti, 564 F.3d 181, 186 (3d Cir. 2009). Here, as discussed in greater detail above, Then and Kithcart had probable cause to believe that Plaintiff committed a crime, thereby justifying her arrest. Accordingly, Plaintiff fails to meet the elements of Kossler, and Then and Kithcart are entitled to summary judgment as to Plaintiffs federal malicious prosec ution claim. See Id. The New Jersey Civil Rights Act is analogous to 42 U.S.C. §1983, so Then and Kithcart are also entitled to summary judgment as to Plaintiffs state constitutional claim. See Trafton v. City of Woodbury, 799 F. Supp. 2d 417, 443-44 (D.N.J. 2011) ( This district has repeate dly interpreted NJCRA analogously to g. § 1983 ). Denying Plaintiff the Equal Protection of the Law In Counts One and Two, Plaintiff alleges that Then and Kithcart denied Plaint iff the Equal Protection of the Law in violation of Plaintiffs state and federal civil rights. See Compl. at 9-11. The state standard for equal protection is the same standard that is used under the federal constitution. Feriozzi Co., Inc. v. City ofAlt. City, 266 N.J. Super 124, 138 n. 2 (1993) (citing Levine v. Institutions & Agencies Dep. ofN.J., 84 N.J. 234, 257 (1980) ). To succeed on an equal protection claim, a plaintiff must demonstrate that she received differ ent treatment from that received by other individuals similarly situated and prove the existen ce of purposeful 14 discrimination. See Andrew s v. City ofPhiladelphia, 895 F.2d 1469, 1478 (3d Cir. 1990) (internal quotations omitted). Here, Defendant concedes that Plaintiff was transported to the hospital because of her disability. Defs. Br. at 19. However, Plaintiff must still demonstrate purposeftil discrimination, which she fails to do. See Andrews, 895 F.2d at 1478. Moreo ver, there is substantial evidence in the record demonstrating that Then and Kithcart acted out of concern for Plaintiff s well-being rather than an attempt to discriminate against her. Then and Kithcart went to Plaintiff s home only after the urging of Plaintiff s therapist to conduc ta wellness check. See Defs. SOF at ¶ 23. The officers asked Plaintiff for clarification regard ing her statements. See id. at ¶J 48, 50. And, as discussed above, a reasonable officer would believe that involuntary commitment was then justified pursuant to N.J.S.A. 30:4-27.6. Accord ingly, Plaintiffs Equal Protection claims cannot survive summary judgment. h. Interfering with Plaintiff s substantive due process rights In Count Two, Plaintiff alleges that Then and Kithcart interfered with Plaintiffs enjoyment of her substantive due process rights in violation of her state and federal constitutional rights. Compi. at 10-11. Plaintiffs state and federal due process claims utilize the same standard. See Nat 1 Amusements, Inc. v. Borough ofPalmyra, 843 F. Supp. 2d 538, 544 (D.N.J. 2012). The test is whether the behavior of the governmental officer, as a matter of law, is so egregious, so outrageous, that it may fairly be said to shock the contem porary conscience. County ofSacramento v. Lewis, 523 U.S. 833, 847 (1998). Here, Then and Kithca rt entered Plaintiffs home to conduct a welfare check, restrained her when they reason ably believed she was going to flee, and took her to a hospital for a mental health evaluation after she repeatedly exclaimed her desire to die. See Defs. SOF at 23, 59, 79, 80. The State ¶J has an interest in preventing suicide. Washington, 521 U.S. at 730. Then and Kithcart s actions here in 15 accordance with that interest cannot be said to shock the conscience. See County of Sacramento, 523 U.S. at 847. Accordingly, Plaintiff s due process claims cannot survive summary judgment. i. Interfering with Plaintiffs privileges and immunities In Count Two of her Complaint, Plaintiff alleges that Then and Kithcart s actions deprived Plaintiff of the privileges and/or immunities secured by the state and federal constitutions. Compl. at 10-11. Plaintiff does not provide any factual support for this assertion. And, as the Court held above, Then and Kithcart s conduct at the time of the events giving rise to this action does not violate any of Plaintiffs clearly established statutory or constitutional rights. Then and Kithcart had a right to enter Plaintiffs home, detain her when they reasonably believed she was attempting to flee, and take her to the hospital for a mental health evaluation. In light of these findings, Then and Kithcart are also entitled to summary judgm ent as to Plaintiffs privileges and immunities claim. See Harlow, 457 U.S. at 818. j. Conspiring to falsely arrest, maliciously prosecute, and use excessive force against Plaintiff Finally, in Count Three of her Complaint, Plaintiff alleges that Then and Kithca rt conspired to violate her civil rights by falsely arresting Plaintiff, illegally seizing the person of Plaintiff, maliciously prosecuting Plaintiff, [and] using excessive force. Compl. at 11. As discussed above, Then and Kithcart s conduct in each of these underlying offenses does not violate clearly established statutory or constitutional rights of which a reason able person would have known. See Harlow, 457 U.S. at 818. Accordingly, Plaintiff s claim alleging that Then and Kithcart conspired to commit these acts cannot survive summary judgment, and Defendant Then and Kithcart are entitled to summary judgment in their favor on Counts One, Two and Three of Plaintiffs complaint. 16 2. Claims Against Coleman In Counts One and Three of her complaint, Plaintiff alleges that Coleman failed to adequately train and supervise Then and Kithcart and that he maintained a policy, practice, or custom of constitutional violations. See Compi. at 48, 12. For the reason s that follow, Defendants are entitled to summary judgment on each of these counts. a. Failing to adequately train and supervise In Counts One and Three of her complaint, Plaintiff claims that Coleman is responsible for Then and Kithcart s alleged state and federal constitutional violations because Coleman failed to train and supervise his employees and was grossly negligent in the supervision of his subordinates. See id. A plaintiff is permitted to bring a civil rights action against a supervisor, but only if the plaintiff can demonstrate that the supervisor was personally involved in the alleged wrongs. See Rode v. Dellaci2,rete, 845 F.2d 1195, 1207 (3d Cir. 1988). {L]iability cannot be predicated solely on the operation of respondeat superior. Id. A plaintiff can satisfy the personal involvement requirement by demonstrating either: 1) the parties committing the alleged wrong acted at the personal direction of their supervising officer ; 2) the officer had actual knowledge and acquiescence, an allegation that must be made with appropriate particularity, or 3) the officer exhibited intentional conduct, deliber ate or reckless indifference to the [victim s] safety, or callous disregard on the part of the superv isor. See Rode, 845 F.2d at 1207; Davidson v. O Lone, 752 F.2d 817, 828 (3d Cir. 1984). Here, even assuming Plaintiff succeeded on her constitutional claims against Then and Kithcart, Plaintiff s allegations against Coleman fail on their merits. Plaintiff never alleges, nor do the facts before this Court support, a finding that Then and Kithca rt acted at the direction of Coleman. See Rode, 845 F.2d at 1207. Moreover, there is no eviden ce in the record indicating 17 that Coleman knew and acquiesced to their alleged misconduct or somehow disregarded the potential for Then and Kithcart to violate Plaintiff s constitutional rights. See Rode, 845 F.2d at 1207; see also Davidson, 752 F.2d at 828. Then and Kithcart were both in compliance with their required training and there is no indication that either were ever subject to a civil rights action or disciplinary action. See Defs. SOF at ¶J 98-99. Therefore, Coleman is entitled to summary judgment in his favor on Plaintiff s negligent training and supervision claims. 3 b. Maintaining a policy, practice, or custom of constitutional violations In Counts One and Three of Plaintiff s complaint, Plaintiff seeks damages from Colem an alleging that the actions of [Then and Kithcart] constituted a policy, practice, proced ure or custom of the Andover Township Police Department in that those actions are part of a pattern of failing to implement standard police practice and/or procedure in dealing with mental ly ill individuals during police investigations. Compl. at 9, 12. Government officia ls may be sued for constitutional deprivations visited pursuant to governmental custom even though such a custom has not received formal approval. Monell v. Dep t of Soc. Servs., 436 U.S. 658, 690-91 (1978). To succeed on a claim, however, a plaintiff must demonstrate that the practice is so permanent and well settled as to constitute a custom or usage with the force of law. Id. at 691. Here, even assuming Plaintiff s constitutional claims against Then and Kithca rt were allowed to proceed, Plaintiff s broad accusations against Coleman fall well short of the burden set forth in Monell. See id. at 690-91. Plaintiff does not provide any eviden ce of a permanent and well settled custom of permitting discrimination against the mental ly ill. See id. at 691. In fact, Plaintiff does not offer even one other instance of discrimination in support of her claims. Plaintiffs remark that there is a pattern of failing to implement standa rd police practice andJor In light of the Court s findings on the merits of Plaintiff s claims, it need not address Defendant s argument that Coleman is protected by qualified immunity. 18 procedure in dealing with the mentally ill is insufficient to salvage her claim, as it is not supported by the facts before the Court. See Compi. at 9. The police department has two Standard Operating Procedures ( SOP ) specifically addressing the mentally impair ed a 1989 SOP captioned Mental Health and a 1991 SOP captioned Involuntary Comm itments. Defs. SOF at ¶ 92. In addition, police officers are required to attend semi-annual training in use of force and domestic violence. Id. at ¶ 94. Accordingly, Plaintiff s claims have no factual basis, and Defendants are entitled to summary judgment in their favor. 3. Claims Against Andover Township In Counts One and Three, Plaintiff alleges that Andover Township failed to adequa tely train and supervise its employees and created and/or permitted a policy or custom under which constitutional practices occurred as evidenced by, inter alia, the affirma tive conduct of Defendants. Compl. at 9-10, 12. Defendants argue that Plaintiff s constitutiona l claims against Andover Township fail because the plaintiff has not brought forth suffici ent evidence to meet the standard[s] of Simmons v. City ofPhiladelphia and Monell v. Dep t ofSoci al Servs. Defs. Br. at 23. For the reasons set forth below, the Court agrees. a. Failing to adequately train and supervise Plaintiff alleges that Andover Township failed to train and supervise [its] employees and was grossly negligent in [its] supervision. See Compi. at 9-10, 12. A municipality is only liable for failing to properly train its officers under very limited circum stances. See Simmons v. City ofPhiladelphia, 947 F.2d 1042, 1060 (3d Cir. 1991). A plainti ff must demonstrate that: 1) a city policymaker made a deliberate choice to follow a course of action. . . made from among various alternatives; and 2) the policymaker s choice reflects a delibe rate indifference to the constitutional rights of the plaintiff See id. (internal quotations omitte d). Here, Plaintiff has 19 not presented any evidence demonstrating that any policymaker made a choice not to train or supervise Then and Kithcart, nor did so with deliberate indifference towards Plainti ff s rights. See id. There is also no indication in the record that Then or Kithcart had a propen sity for committing constitutional violations, which could foreseeably warrant additional training, nor is there any indication that either officer failed to complete any required trainin g. See Id. Accordingly, Defendants correctly assert that Plaintiff s training and supervision claims fail under Simmons. See id. b. Maintaining a policy, practice, or custom of constitutional violations Plaintiff alleges that Andover Township created and/or permitted a policy or custom under which unconstitutional practices occurred. See Compi. at 10, 12. A plainti ff is permitted to bring suit against a local municipality under the federal and New Jersey civil rights acts. See Monell, 436 U.S. at 690-91 (stating that Congress intended local govern ment units to be included among those persons to whom § 1983 applies ); see also Trafton, 799 F. Supp. 2d at 443-44 (stating that the New Jersey Civil Rights Act is analogous to 42 U.S.C. § 1983). This cause of action is limited a plaintiff may not sue a municipality for an injury inflicted solely by its employees or agents. See Monell, 436 U.S. at 694. Instead, a plainti ff must demonstrate that the constitutional deprivation was caused by a custom, although the custom need not be formally approved. Id. at 690-9 1 (holding that a municipality may be sued for constitutional deprivations visited pursuant to governmental custom even though such a custom has not received formal approval through the body s official decision making channe ls. ). Here, Defendants are entitled to summary judgment in their favor for two reasons. First, as discussed above Plaintiff has not established any underlying const itutional deprivation on which to base her claims against Andover Township. Second, even if Plaintiff did meet this 20 burden, the facts do not support a finding that any policy, practice, or custom caused such a violation. See id. at 690-91. On the contrary, there is substantial evidence on the record demonstrating the strength of Andover Township s mental health policies and customs. Andover Township has two long standing SOPs specifically designed to address mental illness. See Defs. SOF at ¶ 92. One of the SOPs states that its purpose is to establish uniform proced ures for... police personnel in dealing with mentally disturbed people in need of psychi atric commitment. Defs. Br. at 26. Then testified that he received copies of Andover Township s policies regarding the mentally ill, and Kithcart testified that he received training on the subjec t at the police academy. See Kithcart Dep. at 24:2-26:17; Then Dep. at 28:4-29:22. The only evidence Plaintiff provides suggesting any weakness in Andover Towns hip s policies is a report by Plaintiffs expert witness, James Williams. In Williams report, Williams concluded that Andover Township failed to comply with a New Jersey manda te requiring Andover Township to provide annual training programs in Verbal and Non-Verbal Communications, which Williams explained would include instructions on how to handle persons in situations of this case incident. See Williams Report at 15. Willia ms findings are not supported by the facts before this Court. The New Jersey Attorney General Guidelines do not mandate specific, ongoing training in communication with the mental ly ill. Defs. Br. at 27 (citing Defs. Expert Report at 28); see also Defs. Ex. 33 (listing the two mandatory in-service trainings use of force and domestic violence). The only mandated annual trainings are in use of force and domestic violence. Defs. Ex. 33. Then and Kithcart compli ed with both. See Defs. SOF at ¶J 98-99. Accordingly, William s testimony is pure speculation and is not persuasive. See Fedorczyk v. Caribbean Cruise Lines, Ltd., 82 F.3d 69, 75 (3d Cir. 1996). And, Defendants are entitled to summary judgment in their favor. 21 B. Count Four False Imprisonment/False Arrest In Count Four, Plaintiff alleges that Defendants wrongfully, unlawf ully, maliciously, and without any warrant or pretense of legal process, detained, restrain ed, arrested and confined Plaintiff against her will. Compi. at 13. Plaintiff seeks damag es under theories of false imprisonment and false arrest, which are merely separate names for the same tort. See Compl. at 13; see also Roth v. Golden Nugget Casino/Hotel, Inc., 576 F. Supp. 262, 265 (D.N.J. 1983) (citing Price v. Phillips, 90 N.J. Super. 480, 484 (App. Div. 1966). As discussed above, Plaintiff was detained on two separate occasions. First, she was taken to the hospital for a mental health evaluation. Second, she was arrested for assault ing Then and Kithcart and was transported to a county jail. Defendants allege that one of the two defenses to an action for false imprisonment legal justification or probable cause is applicable to each of these arrests. Defs. Br. at 30 (citing Hayes v. Mercer County, 217 N.J. Super. 614, 623 (App. Div. 1987)). The Court agrees. Plaintiff s first arrest was legally justified. See Hayes, 217 N.J. Super. at 623. Then and Kithcart are allowed to take custody of a person and take the person immediately and directly to a screening service if.. [o}n the basis of personal observation, the law enforcement . officer[s] ha[vej reasonable cause to believe the person is in need of involuntary commitment to treatment. See N.J.S.A. 30:4-27.6. Here, as discussed in greater detail above, Then and Kithcart had reasonable cause to believe Plaintiff was in need of involuntary commitment. Accordingly, Then and Kithcart were legally justified in arrestin g Plaintiff. See Hayes, 217 N.J. Super. at 623. See also N.J.S.A. 30:4-27.7 (granting immun ity to officers acting in good faith.. ¢ who take[] reasonable steps to assess, take custody of, detain or transport an individual for the purposes of mental health assessment or treatment. ). 22 And, Plaintiffs second arrest was pursuant to probable cause. See Hayes, 217 N.J. Super. at 623. As discussed above, it is unclear whether a judge issued a warrant for Plaintiff s arrest before or after she was taken into custody. Nonetheless, the arresting officer had probable cause to believe she had committed a crime assaulting Then and Kithcart thereby permitting her warrantless arrest. See Hayes, 217 N.J. Super. at 623; see also Devenpeck, 543 U.S. at 152 (stating that a warrantless arrest is permissible where the arrestin g officer has probable cause to believe the person committed a crime). Accordingly, Defendants are entitled to summary judgment in their favor as to Count Four of Plaintiffs compl aint. C. Count Five Civil Conspiracy In Count Five of her complaint, Plaintiff alleges that Defendants engage d in a civil conspiracy to subject Plaintiff to false arrest, false imprisonment and or malicious prosecution. See Compl. at 14. In New Jersey, a civil conspiracy claim consists of four elements, 1) two or more people; 2) proof that the people are acting in concert pursuant to a real agreement; 3) the existence of a purpose to commit an unlawful act, or to commit a lawful act by unlawful means; and 4) damages. See Banco Popular N Am. v. Gandi, 184 N.J. 161, 177 (2005). Here, Plaintiff alleges each of these elements but does not provide any facts in support of these claims. See Compl. at 13-14. For example, there is no evidence supporting Plainti ffs assertion that Defendants reached an agreement or acted with the unlawful purpos e of subjecting Plaintiff to false arrest, false imprisonment and or malicious prosecution. See Banco Popular N Am., 184 N.J. at 177. Accordingly, Defendants are entitled to summary judgm ent in their favor on Count Five of Plaintiffs complaint. D. Count Six New Jersey Tort Claims Act 23 In Count Six of the complaint, Plaintiff alleges that Andover Township is liable for the actions of its employees pursuant to the New Jersey Tort Claims Act. See Compl. at 14-15. N.J.S.A. 59:2-2 provides that a public entity is liable for injury proximately caused by an act or omission of a public employee within the scope of his employment. See Wright v. State, 169 N.J. 422, 450 (2001). The primary liability imposed on public entities is that of respon deat superior. Tice v. Cramer, 133 N.J. 347, 355 (1993). If an officer is liable for acts within the scope of his employment, so is the entity; conversely, when the officer is not liable, neither is the entity. See Id. Moreover, an officer is not liable for the underlying offense when they are protected by an immunity provided by law. See id. (internal quotations omitte d). Here, Defendants are entitled to summary judgment on each of Plaintiffs first five counts. Plaintiff s claims either failed on their merits or were prohibited by virtue of a state or federal immunity. Therefore, the individual defendants are not liable to the Plainti ff for any of her alleged damages. [W]hen the public employee is not liable, neither is the entity. See id. Accordingly, Defendants are entitled to summary judgment in their favor on Count Six of Plaintiffs complaint. IV. CONCLUSION For the foregoing reasons, Defendants Motion for Summary Judgment is granted in its entirety. An appropriate Order accompanies this Opinion. DATED: Decembei320ll JOE L LINARES UIcIITED STATES DISTRICT JUDGE 24
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