PAUL S. BEATTY v. BRENDAN CAHILL, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3560-04T13560-04T1

A-6673-04T1

A-0491-05T1

PAUL S. BEATTY,

Plaintiff-Appellant,

v.

BRENDAN CAHILL, ROBERT

WIENER, WILLIAM A. RICHARDS,

CITY OF LONG BRANCH, a New Jersey

municipal corporation, POLICE

DEPARTMENT OF THE CITY OF LONG

BRANCH, RAMON CHAPARRO, ALEXANDRA

M. McKECHNIE, and DAVID J. RICKER,

Defendants-Respondents,

and

STEPHEN A. GALLOP,

Defendant.

_________________________________________________

 

Submitted September 12, 2006 - Decided October 3, 2006

Before Judges Weissbard and Payne.

On appeal from Superior Court of New Jersey,

Law Division, Monmouth County, L-1331-04.

Paul S. Beatty, appellant, filed a pro se

brief.

John J. Welch, attorney for respondent

David J. Ricker in A-3560-04T1.

Gebhardt & Kiefer, attorneys for

respondents Brendan Cahill, Robert Wiener, William A. Richards, City of Long Branch,

Police Department of the City of Long

Branch, and Ramon Chaparro in

A-6673-04T1 (Leslie A. Parikh on

the brief).

Alexandra M. McKechnie, respondent pro se,

did not file a brief in A-0491-05T1.

PER CURIAM

Plaintiff Paul Beatty, an attorney, has filed three separate appeals from orders of dismissal or summary judgment that terminated his action against the City of Long Branch and various named members of its police force (collectively, Long Branch defendants) (A-6673-04T1), individuals named Stephen Gallop and David Ricker (A-3560-04T1) and a neighbor, Alexandra McKechnie (A-491-05T1). The three matters were scheduled together for consideration by us. Because the appeals arise out of interrelated allegations and events, we address them together in this opinion.

Beatty believes that, in 2002, a criminal conspiracy was formed, consisting of a plan to kidnap and extort wealthy persons from Monmouth County and wealthy visitors to Monmouth Park race track. Detection of the conspiracy was avoided by bribing law enforcement personnel. In the summer of 2003, the conspirators took control of the race track and "ruined many racing careers." In the summer of 2004, their control tightened, and the conspirators began to influence the decisions of the Monmouth County Prosecutor. As part of their alleged activities, during the night of May 3 to 4, 2003 the conspirators tortured and attempted to execute the unnamed son of an unnamed trainer at an all-night party held at the apartment of Beatty's neighbor Kathryn Restivo. In alleged attendance at the party were defendant Ricker, defendant McKechnie and Long Branch Detective Raymond Chaparro, the son of defendant Officer Ramon Chaparro. That night, Beatty called the police because of excessive noise at Restivo's apartment. Later, at approximately 5:00 a.m., Beatty stated that he observed David Ricker, a party participant, attempting to place a liquor box in the trunk of his car, but being unable to do so because the space was taken up by his golf clubs. He eventually placed the box on the car's back seat. Beatty said that he never saw Ricker with Restivo again.

Still later in the morning of May 4, Beatty claims that he observed Restivo (whom he alleged was involved with a North Jersey crime family) in the driver's seat of her car, along with a disabled white male passenger in his twenties who had "a madman's plaintive stare." Beatty believed the victim had been tortured during the preceding night and was being held against his will, possibly for ransom, and that he might later have been killed. However, he was unable to match the victim with any missing persons or with people mentioned in news reports and was otherwise unable to identify him or confirm his torture or murder.

Beatty reported the victim's alleged plight to the police two months later on July 17, 2003. The police found no basis in fact for Beatty's allegations. Additionally, Beatty reported the matter to the F.B.I., which did not act.

In the meantime, Beatty, who prior to May 3, had invited Restivo to dinner and had been refused, had commenced to stalk her, causing her eventually to move from the apartment complex to her mother's nearby condominium. The police first were informed of Beatty's activities by Restivo on July 21, 2003 during their investigation of Beatty's allegations of torture and murder. On July 23, 2003, Beatty was advised by the police to stop following Restivo. At that point, Beatty alleged to the police that defendant Alexandra McKechnie, a friend of Restivo who had allegedly sponsored the party at Restivo's apartment on May 3, was involved in the sale of narcotics. This charge, as well, was not substantiated by the police. On July 30, 2003, an attorney at the firm where Restivo was employed sent a letter to the apartment association complaining of the harassment of Restivo. The police were notified, and they provided additional neighborhood patrols. Additionally, Patrice Paritte, another neighbor, attempted to come to Restivo's aid. Beatty retaliated by pelting Paritte's car with raw eggs. Both Paritte and Restivo filed harassment complaints against Beatty on August 15, 2003.

On August 16, 2003, one or more police officers, including defendant Brendan Cahill, responded to Beatty's residence following a call from Restivo indicating that Beatty was acting erratically and was peeping into her apartment. Following questioning and the receipt of non-responsive answers as well as information indicating that Beatty had been under treatment for mental illness for the past thirty years, Officer Cahill requested that Beatty accompany him to the mental health crisis center at Monmouth Medical Center for evaluation. Beatty asked, instead, that he be evaluated at home, and three hours later at 1:00 a.m., an evaluator arrived. Following the evaluation, Beatty was taken to the Medical Center, but was released at 5:00 a.m. on August 17 as not posing a danger to himself or others and thus not subject to involuntary commitment.

On September 8, 2003, Beatty filed a complaint against Restivo and Paritte, which was withdrawn on October 18, 2003 following an agreement by Restivo and Paritte to drop pending harassment charges against Beatty in exchange for dismissal of his civil action.

On March 23, 2004, Beatty filed a complaint against Long Branch, its police department, Public Safety Director Richards, Officer Cahill, and his supervisor, Sergeant Wiener, in which he claimed false arrest and false imprisonment in violation of his civil rights as the result of his alleged "detention" while awaiting the crisis evaluator at his apartment.

On May 22, 2004, Restivo, who had by then moved to her mother's condominium to avoid Beatty, observed him in her mother's backyard, staring at her through the window. She informed the police, who arrested Beatty for stalking and criminal trespass. He was also charged at that time with hindering arrest. Because Beatty also told McKechnie to inform Restivo that she should get out of town while she still could, a witness tampering charge was later added, a warrant was issued, and Beatty was arrested on that charge on August 23, 2004.

Beatty's conduct was brought before a grand jury on August 5, 2004 at which time testimony was presented by Restivo to support charges for peering in violation of N.J.S.A. 2C:18-3c, stalking in violation of N.J.S.A. 2C:12-10, and uttering terroristic threats of rape and murder in violation of N.J.S.A. 2C:12-3b, all in connection with his conduct on May 22 and at other times. His conduct was again brought before a grand jury on September 2, 2004, at which time charges of witness tampering were considered. Indictments were issued.

Later that year, by order dated December 3, 2004, Beatty was permitted to amend his complaint to name as additional defendants police officer Ramon Chaparro, Alexandra McKechnie, David Ricker, and Stephen Gallop, and to allege in a second count that "[p]ersons known and unknown have unlawfully used officers, supervisors and watch commanders of Defendant, Long Branch Police Department, to destroy Plaintiff's reputation as a citizen of the City of Long Branch and as a New Jersey Attorney." The known conspirators, Chaparro, McKechnie, Ricker, and Gallop, were alleged to have caused Beatty's arrest at his residence on May 22, 2004, August 4, 2004, August 23, 2004 and August 24, 2004. No record of arrests on August 4 or 24, 2004 exist.

Motions filed by Gallop and Ricker to dismiss the amended complaint pursuant to R. 4:6-2e as failing to state a claim were granted by the court on March 4, 2005. A similar pro se motion by McKechnie was granted on September 9, 2005.

Having closely reviewed the record in the matter, we are satisfied that the motions were properly granted. Beatty alleged in opposition to defendants' motions that he "was attacked by the Long Branch Police and the conspirators to ruin [his] reputation, remove [him] as a member of the New Jersey Bar and have [him] indicted on facts that never existed." However, when required as the result of defendants' motions to present evidence to substantiate his claims, Beatty failed to offer any factual basis whatsoever for his allegations of a conspiracy by these individuals, arguing that discovery was necessary to provide the required proofs. As he admitted, his complaint constituted "notice pleading" and "depends upon discovery to fill in the gaps."

Beatty's pleadings were thus deficient and properly dismissed. As defendant Ricker has noted in his brief, a complaint must fairly apprise the defendants of the claims to be raised at trial, and absent such information, the complaint is subject to dismissal. Delbridge v. Office of the Pub. Defender, 238 N.J. Super. 288, 312-13 (Law Div. 1989). "A mere allegation that there is a conspiracy is a conclusion, not a fact. It must be substantiated by facts - factual evidence . . . ." Amabile v. Lerner, 64 N.J. Super. 507, 514 (Ch. Div. 1960), aff'd 74 N.J. Super. 443 (App. Div. 1962). Here, there was none. When a complaint depends only upon supposition, and the plaintiff relies on subsequent discovery to provide the missing factual foundation, his lawsuit is unjustified and subject to dismissal. Glass v. Suburban Restoration Co., 317 N.J. Super. 574, 582 (App. Div. 1998); R. 1:4-8. Such relief was properly granted in this case.

As a final matter, the Long Branch defendants moved for summary judgment, and their motion was granted in an order dated April 24, 2005. We affirm that order, as well.

In the first count of his complaint, Beatty alleged false imprisonment by Officer Cahill on the night of August 16 and 17, 2003 while awaiting a mental health evaluation. He additionally claimed liability on the part of Long Branch, its police department, Public Safety Director Richards, and Sergeant Wiener as the result of this incident. Such a claim requires proof of "constraint of the person without legal justification." Mesgleski v. Oraboni, 330 N.J. Super. 10, 24 (App. Div. 2000). Here, any constraints imposed upon Beatty by the police were justified. The record in this case demonstrates that Beatty had an admitted history of mental illness for which he had been receiving treatment for a period of thirty years. It further contains evidence of notification by Restivo to the police that on the night in question Beatty's conduct was aberrant, and confirmation of Beatty's confused mental state by Officer Cahill through Beatty's inappropriate responses to his questioning. This evidence, provides ample support for Officer Cahill's determination that Beatty was potentially in need of involuntary commitment and his further determination to seek the assistance of a screening service in an outreach visit to assess Beatty's mental condition pursuant to N.J.S.A. 30:4-27.5d. That some delay in the arrival of the screener ensued does not render Officer Cahill's conduct any less justified, particularly since Beatty himself requested the home assessment in lieu of a hospital visit.

Further, it is clear in this case that Officer Cahill is protected by the absolute immunity provided by N.J.S.A. 30:4-27.7a, which states:

A law enforcement officer . . . acting in good faith pursuant to this act who takes reasonable steps to assess, take custody of, detain or transport an individual for the purposes of mental health assessment or treatment is immune from civil and criminal liability.

No competent evidence of bad faith has been presented, and we have discovered none in the record. Summary judgment on count one was therefore properly granted. Ziemba v. Riverview Med. Ctr., 275 N.J. Super. 293, 302 (App. Div. 1994).

As we have noted previously, in a second count, Beatty has alleged a conspiracy between Police Officer Ramon Chaparro, McKechnie, Ricker, and Gallop to destroy Beatty's reputation. Beatty appears to claim that Chaparro accompanied Officer Cahill on the night of the August 16 mental health screening. He, like Officer Cahill, is entitled to absolute immunity from Beatty's claims in that regard. Beatty does not claim that Chaparro participated in his arrests, and offers no additional facts to support his allegations of conspiracy. Summary judgment is thus additionally warranted because the allegations of conspiracy lack any factual foundation. We reject as wholly unsupported by the evidence any potential claim by Beatty that his arrests by other members of the Long Branch police force on May 22 and August 23, 2004 were not supported by probable cause, and that he was thus deprived of his civil rights. Kirk v. City of Newark, 109 N.J. 173 (1988); Sanducci v. City of Hoboken, 315 N.J. Super. 475 (App. Div. 1998).

 
The orders of dismissal and summary judgment entered by the trial court are affirmed.

Public Safety Director William A. Richards, Sergeant Robert Wiener, Officer Brendan Cahill, and Officer Ramon Chaparro.

In a certification dated February 9, 2005, Beatty alleged that Gallop visited McKechnie on or about May 4, 2004 in a dark blue Jeep. Beatty has offered nothing further to support his claims against this defendant.

(continued)

(continued)

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A-3560-04T1

October 3, 2006