TROY T. WHITNEY v. CITY OF JERSEY CITY, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3502-03T33502-03T3

TROY T. WHITNEY,

Plaintiff-Appellant,

v.

CITY OF JERSEY CITY, CITY OF

JERSEY CITY POLICE DEPARTMENT;

MICHAEL KENNY, and JOHN DOES

(fictitious persons whose

identities are unknown at

this time),

Defendants-Respondents.

______________________________________________________

 

Submitted November 10, 2005 - Decided

Before Judges Stern and Fall.

On appeal from the Superior Court of New

Jersey, Law Division, Hudson County,

Docket No. 3106-01.

Bendit Weinstock, attorneys for appellant

(Alan Roth, on the brief).

Hope Blackburn, Corporation Counsel, Jersey City

Law Department, attorney for respondents (Nora L. Kallen, Assistant Corporation Counsel, on the brief).

PER CURIAM

Plaintiff appeals from a judgment of February 6, 2004 which denied his motion to vacate the dismissal of his Title 59 and civil rights claims stemming from an allegedly illegal detention or arrest with the use of excessive force. Plaintiff argues that "the court below erred in granting defendants' motion to dismiss," "plaintiff's claim of false arrest exempts him from the threshold requirements of the New Jersey Tort Claims Act," "plaintiff has set forth a valid cause of action based upon deprivations of his constitutional rights under 42 U.S.C.A. section 1983" because of his claims of false arrest and excessive use of force, and "the defendants are not entitled to qualified immunity."

For purposes of the motion for summary judgment, the motion judge was required to determine if there were genuine issues of material fact after giving the non-moving party all the legitimate inferences, Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995); R. 4:46-2(a),(b),(c); and we must review the disposition by the same standard and determine if it was correctly decided as a matter of law. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Although it is not entirely clear what was presented to the motion judge in response to defendant's motion for summary judgment, the critical allegations are contained in the report of plaintiff's examining psychologist:

On Sept[.] 27[,] 1999, Mr. Whitney was assaulted by three Jersey City police while driving [] in the area in which he grew up to get a haircut and get some gifts at the shopping mall. (It should be noted this was the job where he met his current wife.) Without identifying themselves the three undercover officers rammed into his car, and dragged him out of the car before he could release his seatbelt yanking on his head in such a way as to cause him severe pain in his neck. Once out of the car, he was struck, pummeled, pistol whipped, thrown to the ground, cuffed and dragged to the curb. At no time did these officers identify themselves or the reasons for the attack, leaving him quite terrified about what was happening to him. After about ten minutes, when they apparently ascertained that this was a case of false identification, then freed him and unceremoniously pulled off still without explanation or apology.

According to plaintiff, defendant, Officer Michael Kenny, dragged plaintiff out of his car at gunpoint, knocked him to the ground, handcuffed him, held him there and placed his knee in the small of plaintiff's back causing great pain and discomfort. According to plaintiff, about fifteen minutes later the dispatcher noted he misread the transmission about the car the officers stopped, and plaintiff was released to drive away. He nevertheless went to the emergency room the next day, but did not have $3,600 in medical expenses, including those of his examining psychologist.

In the first two counts of his complaint, plaintiff alleged injuries and disabilities caused by the negligence and carelessness of defendants and by their intentional acts. In the third count, plaintiff alleged:

2. The defendants named herein violated the civil rights of the plaintiff resulting in the deprivation of his rights, privileges and/or immunities secured by the Constitution and Federal Laws, which violations proximately caused serious injury, disability and other damages to the plaintiff.

3. Plaintiff alleges that the defendants are liable to the plaintiff for the aforesaid violations of his civil rights pursuant to and in accordance with the provisions of the applicable Federal Statutes, 42 U.S.C.A. Section 1983, et seq.

WHEREFORE, plaintiff demands judgment against the defendants as a result of the violations of plaintiff's civil rights, together with attorney's fees, interest and costs of suit.

We reverse and remand for further proceedings on the third count in light of DelaCruz v. Borough of Hillsdale, 183 N.J. 149 (2005). As a result of that decision, the State claims embodied in the first two counts must be dismissed for failure to satisfy the threshold of the Tort Claims Act, but plaintiff is entitled to establish that there was no objectively reasonable basis for the conduct of defendant Kenny and the other officers.

In DelaCruz, the plaintiff filed suit against four municipalities, their respective police departments and their individual police officers, claiming that their conduct constituted and violated the federal civil rights act, 18 U.S.C.A. 1983. Id. at 159-60. The trial court, at the close of the evidence, dismissed plaintiff's civil rights claims and some of his common law claims as a matter of law. Id. at 160.

On appeal, we held that the trial court incorrectly dismissed the plaintiff's false arrest and false imprisonment claims as well as his claims under 1983. DelaCruz v. Borough of Hillsdale, 365 N.J. Super. 127 (App. Div. 2004), aff'd in part, rev'd in part, 183 N.J. 149 (2005). We held that the Tort Claims Act did not bar the common law action, id. at 149-51, and that, even though the plaintiff's original stop was entitled to qualified immunity, the subsequent detention and handcuffing were not. Id. at 146; see also DelaCruz, supra, 183 N.J. at 161. Furthermore, we held that although the plaintiff's claims were not barred by qualified immunity, the police officers were "still entitled to raise their subjective good-faith" as a defense. 365 N.J. Super. at 151; see also DelaCruz, supra, 183 N.J. at 165.

On certification, the Supreme Court held that the Tort Claims Act threshold must be satisfied in order to survive a motion to dismiss a common law claim. DelaCruz, supra, 183 N.J. at 164-65. With respect to the 1983 action, the Court stated that "a law enforcement officer's state of mind is irrelevant to the issue of liability premised on an unlawful search or seizure in violation of the Fourth Amendment," id. at 165, and that the officer's conduct "is to be evaluated through an objective lens that focuses on what a reasonable officer would have done under the circumstances." Id. at 166.

According to DelaCruz, the conduct of law enforcement officers may not be entitled to qualified immunity if (1) they "did not act with probable cause," or (2) "in the absence of probable cause, an objectively reasonable police officer would not have believed in its existence . . . ." Id. at 168. Accordingly, the Court remanded the matter for trial on plaintiff's 1983 claims. Ibid.

Based on the record before us, a fact issue is presented as to whether, after the initial stop, the officers acted appropriately under an objectively reasonable standard. Ibid. Accordingly, the order under review is reversed in part, and the matter is remanded for trial on count three. No costs and no counsel fees shall be awarded for the appeal.

 

We are concerned by the fact plaintiff cites only the record of the argument before the motion judge, the cover page of his depositions and his psychologist's report in his statement of facts. We are equally disturbed that neither party updated their brief by reference to DelaCruz v. Borough of Hillsdale, 183 N.J. 149 (2005), after it was decided.

We need not decide whether the cost of psychotherapy can be applied towards the threshold when they occur post complaint. We will assume they can, but plaintiff does not assert the threshold was satisfied or that his medical expenses, including those for counseling or emotional distress, were more than $3,600. Rather, he argues that the threshold need not be satisfied. He has now lost that argument under DelaCruz, supra, 183 N.J. at 149.

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A-3502-03T3

November 22, 2005