JACK NEWMAN, et al. v. EUGENE NEWMAN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6710-03T36710-03T3

JACK NEWMAN, Administrator ad prosequendum

and JACK NEWMAN, Administrator of Estate of

EUGENE NEWMAN,

Plaintiff-Appellant,

v.

JESUS BENITEZ and CITY OF ENGLEWOOD

POLICE DEPARTMENT,

Defendants,

and

TOWN OF WEST NEW YORK; TOWN OF WEST NEW YORK

POLICE DEPARTMENT; TOWN OF WEST NEW YORK

DETECTIVE BUREAU; TOWN OF WEST NEW YORK

PROSECUTOR'S OFFICE; TOWN OF WEST NEW YORK

DEPARTMENT OF HOUSING INSPECTION; DIVISION

OF CODE ENFORCEMENT; TOWN OF WEST NEW YORK

BUILDING DEPARTMENT; STATE OF NEW JERSEY,

REGIONAL MEDICAL EXAMINER'S OFFICE; HUDSON

COUNTY PROSECUTOR'S OFFICE, EDWARD DEFAZIO,

KENNETH D. HUTCHINS, PATRICK SHERIDAN, KEVIN

WILDER, CAPT. G. DARGAN, SGT. DOHERTY,

SGT. MEYERS, DET. VALLONE, DET. COYLE,

DET. WAGNER, DET. VIGNOLA, DET. ELIO MARTINEZ,

LT. MOLINERO, SERGIO HERRERA, P.O. DORMAN,

FRANCO ZANARDELLI, EMPLOYEES OF THE STATE OF

NEW JERSEY, REGIONAL MEDICAL EXAMINER'S OFFICE,

TOWN OF WEST NEW YORK, and CITY OF ENGLEWOOD,

Defendants-Respondents.

____________________________________________

 

Argued: June 7, 2005 - Decided:

Before Judges Kestin, Fuentes and Eichen.

On appeal from the Superior Court of New Jersey, Law Division, Civil Part, L-7369-02.

Barbara L. Newman argued the cause for appellants.

Karen L. Jordan, Deputy Attorney General, argued the cause for respondents State of New Jersey, Regional Medical Examiner's Office, Hutchins and Sheridan (Peter C. Harvey, Attorney General, attorney; Patrick DeAlmeida, Assistant Attorney General, of counsel; Ms. Jordan, on the brief).

Joseph R. Mariniello argued the cause for respondents Town of West New York Department of Housing and Inspection, Division of Code and Enforcement, Town of West New York Building Department and Zanardelli (Mariniello & Mariniello, attorneys; Mr. Mariniello, on the brief).

Cindy Nan Vogelman argued the cause for respondents Hudson County Prosecutor's Office, DeFazio, Wilder, Dargan, Doherty, Meyers, Vallone, Coyle and Wagner (Chasan Leyner & Lamparello, attorneys; Ms. Vogelman, of counsel and, with Nicole R. Chhabria, on the brief).

George B. Campen argued the cause for respondents Town of West New York, Town of West New York Police Department, Town of West New York Detective Bureau, Town of West New York Prosecutor's Office, Hutchins, Sheridan, Wilder, Vignola, Martinez, Molinero, Herrera, Dorman and Zanardelli (Farmer & Campen, attorneys; Mr. Campen, of counsel and on the brief).

PER CURIAM

This is one of two simultaneously pending appeals with a common factual element, the death of Eugene Newman from an assault upon him. Plaintiff charges various governmental entities and employees with negligence in investigating the assault and prior attacks on decedent; performing an autopsy on decedent without family permission; and issuing stop-work orders that prevented decedent from performing necessary repairs on a building he owned, where his body was ultimately discovered. Plaintiff also contends that the clothes decedent wore when he was murdered should have been returned to his family.

I

The complaint, in twenty-five counts, initially named the following defendants:

Jesus Benitez, the individual initially accused by the police of murdering decedent;

the Town of West New York, its Police Department, Detective Bureau and Prosecutor's Office, and several employees of those departments, including Captain G. Dargan, Sergeants Doherty and Meyers, Detectives Coyle, Wagner, Vignola, and Martinez, Lieutenant Molinero, and two other employees of West New York, Sergio Herrera and P.O. Dorman;

the West New York Building and Housing Departments, and a West New York Building Inspector, Franco Zanardelli;

the New Jersey State Regional Medical Examiner's Office and three of its employees, Kenneth D. Hutchins, Patrick Sheridan, and Kevin Wilder;

the Hudson County Prosecutor's Office and the County Prosecutor himself, Edward DeFazio; and

the Englewood Police Department.

Specifically, plaintiff claimed that: (1) Benitez was responsible for the wrongful death of decedent (counts one through three); (2) West New York, its police department, Detective Bureau and Prosecutor's Office violated the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -49 (the LAD), by failing to pursue various criminal complaints made by decedent and by failing properly to investigate decedent's disappearance on the day he was killed (counts four through six); (3) the Englewood Police Department negligently investigated decedent's disappearance on the day he was killed (counts seven and eight); (4) the individual defendants employed by West New York's Police Department, Detective Bureau and Prosecutor's Office negligently investigated decedent's disappearance (counts nine and ten); (5) the West New York Building and Housing Departments violated the LAD and exposed decedent to a foreseeable risk of injury or death by wrongfully issuing stop-work orders on repairs being performed on a building decedent owned (counts eleven through fifteen); (6) Zanardelli, a West New York building inspector, improperly issued the stop-work orders (counts sixteen through twenty); (7) the New Jersey Regional Medical Examiner's Office performed an autopsy on decedent in violation of applicable law, and the Hudson County Prosecutor's Office and Prosecutor DeFazio refused to return decedent's body parts and clothes (counts twenty-one through twenty-four); and (8) all defendants discriminated against decedent and violated his civil rights, and were therefore liable for damages under 42 U.S.C.A. 1983 (count twenty-five).

Eventually, a stipulation of dismissal was filed as to the City of Englewood, and the claims against Benitez were dismissed for lack of prosecution. Those defendants are, consequently, not participants in the appeal.

Plaintiff moved for discovery after certain defendants had failed to honor a notice to produce certain records. The trial court ordered the production of some, but not all, of the requested documents. Discovery was denied as to copies of all police records from November 22 through November 30, 2000, because the "request is too broad." Discovery of witnesses and DNA reports, and a list of all evidence retained either by the police or the prosecutor's office was denied because those items were part of the "criminal investigatory record." Plaintiff sought leave to appeal from the discovery-denial order. We denied the motion for leave to appeal, as did the Supreme Court.

The trial court also denied plaintiff's motion for the clothes decedent was wearing when he was found. Expressing sensitivity to plaintiff's religiously-based concerns and the religious belief that decedent's clothes should be buried with him, the judge credited the State's position that the clothing could not be released while the investigation into the murder remained open, especially because original blood stains on the clothes might be critically important.

The Hudson County Prosecutor's Office, and defendants DeFazio, Wilder, Dargan, Doherty, Meyers, Vallone, Coyle and Wagner, had moved for summary judgment dismissal of many of the claims against them. In granting that motion by order of March 9, 2004, and dismissing counts twenty-one through twenty-five of the complaint, the trial court concluded that those defendants had followed statutory procedures in having an autopsy of decedent performed and in not releasing his clothes or body parts because of the ongoing investigation. The court also dismissed counts nine and ten insofar as they related to defendants Wilder, Dargan, Doherty, Meyers, Valone, Coyle and Wagner, because those individuals worked for the prosecutor's office (not the West New York police, as alleged) and because the counts against the prosecutor's office and its employees had been dismissed. The Hudson County Prosecutor's Office then moved to dismiss the remaining counts against it and its employees, i.e., counts nine and ten. The trial court granted that motion on April 16, 2004.

On April 30, 2004, the trial court granted the summary judgment motions of the State Medical Examiner's Office and its employees Hutchins and Sheridan, ruling that those defendants had acted in good faith and were protected by the immunity provisions of the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3 (the Act). The court similarly dismissed the counts against the West New York Building and Housing Department and its inspector, based on the Act's immunity provisions. The court also granted the summary judgment motion of the West New York Police Department, Detective Bureau and Prosecutor's Office, finding that these defendants had not acted in bad faith and were therefore immune under the Act. Count twenty-five, alleging a violation of 42 U.S.C.A. 1983, was also dismissed, the court having concluded that the State could not be sued under that statute.

In appealing, plaintiff argues that the trial court erred in relying on the immunity provisions of the Act; in dismissing the claims based on 42 U.S.C.A. 1983; in refusing to order the release of decedent's clothes; in granting summary judgment on the autopsy claim; and in refusing to order additional discovery under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13. As this appeal pended, the State filed a motion seeking to strike certain documents contained within plaintiff's appendix, including a report by Professor Simon Bar-Meir, listed by plaintiff as being part of the record submitted by the Medical Examiner in support of its summary judgment motion. Plaintiff asserts that the remaining documents were part of the record in the trial court. We issued an order on February 22, 2005, declaring that we would "not consider items not properly before [us] or not in the record."

II

To provide clarity and a perspective on the claims advanced, we recount the pertinent facts developed in the matter, separated into events preceding decedent's death and those contemporaneous with or following the death.

A.

Decedent had complained to West New York police officials regarding numerous instances of alleged burglary, theft, robbery and criminal mischief. At one point, a building decedent owned at 589 59th Street was set on fire, allegedly by disgruntled tenants living there who he was evicting. Plaintiff contends the police took no action in respect of reports of personal threats to decedent by tenants, telling decedent's attorney that they perceived such matters to be landlord-tenant disputes. A Medical Examiner's Investigative Data Sheet following decedent's death, in referring to the question of motive for the death, noted that decedent "was known as a slumlord, disliked by many." According to plaintiff, decedent was the subject of instances of anti-Semitism, also ignored by the local police, and classified by "town officials" as manifestations of landlord-tenant disputes.

Plaintiff also asserts that decedent attempted to repair the building that had been damaged by a fire in 1995 and tried to correct several other building code violations. He submitted architectural and engineering plans to the West New York Housing Department that were discussed with defendant Zanardelli, the West New York construction official. He obtained some, but not all, of the permits required before work could begin. Permits that had been granted were later revoked by stop-work orders issued by Zanardelli, who claimed that some construction permit applications from decedent had been denied because decedent wanted to make partial repairs to the fire damage, rather than completely repair it. Decedent was told "that plans to bring the entire structure up to code would be necessary before a permit would be issued."

Zanardelli, on the other hand, claimed in his responsive certification that the denial of permits and the subsequent issuance of stop-work orders were not the product of any "ulterior motives." According to Zanardelli, decedent either had tried to perform the required work personally, or had used unlicensed contractors, or had used contractors without insurance or the proper plans. In such circumstances, Zanardelli said, he could not let work continue on the building. Thus, according to Zanardelli, the only factors he had considered in revoking or refusing to issue construction permits were "the safety of the occupants or potential occupants and the integrity of the structure."

B.

A van decedent owned was involved in a hit-and-run accident with several other cars in West New York at approximately 3:00 p.m. on November 22, 2000. The van, driven by a Hispanic male, fled the scene and ultimately struck a pedestrian. The same van was involved in a third accident. Blood was found in the vehicle, along with decedent's wallet. Two of decedent's friends, Rafi Levy and Michael Wildes, provided the police with decedent's home phone number in Englewood, as well as his pager number. Decedent did not respond to calls to either number. In speaking with decedent's wife, Rose, the investigating police learned that decedent owned several buildings in the area. Rose also told the police that decedent had been home for lunch, but had left at 12:30 to 1:00 p.m. to return to his buildings. Police officers went to the buildings but did not find decedent. They took statements from several witnesses.

By 6:15 p.m., the police were concerned about decedent's welfare, as he had not yet returned home. At approximately 7:30 p.m., the police again searched two buildings owned by decedent and questioned several individuals regarding a man named "Jesus." Jesus Benitez was located and arrested for possession of marijuana. Charges against Benitez related to decedent's murder were eventually dropped because DNA taken from the crime scene did not match his.

At 10:50 p.m., the police, with assistance from Levy and Wildes, again searched a vacant building owned by decedent. At 11:30 p.m., the police proceeded to decedent's building at 589 59th Street, accompanied by Levy and Wildes. They looked in the mail slot in the front door of the building and saw an individual "with apparent trauma to his head." The police entered the building, determined that the individual was decedent, and called the prosecutor's office and medical examiner's office. Decedent was pronounced dead at 2:22 a.m. on November 23, 2000.

An autopsy of decedent was performed on November 23, 2000. The cause of death was "multiple sharp and blunt force injuries of [decedent's] head, neck and chest."

Rose claimed that that autopsy violated her religious beliefs and decedent's as Orthodox Jews. She stated in a certification that friends of hers who were allowed to see decedent's body following its discovery told police that decedent was an Orthodox Jew and that no autopsy should be performed. According to Rose, once she learned of her husband's murder, she had her friends reiterate to police the instruction not to perform an autopsy. She stated that, since she was never at the murder scene, she could not have given any instructions to the police about an autopsy. Plaintiff alleges that the performance of the autopsy, in violation of Rose's and decedent's religious beliefs, caused great pain and anguish to Rose and her son, plaintiff Jack Newman.

Jack, a rabbi, specifically denied authorizing the police to perform an autopsy. Levy, who had gone to the murder scene, also claimed that he "never advised the police and prosecutor at the scene that the family does not object to an autopsy." He further told the police that decedent's "body must be buried right away" according to Jewish law, and that Jewish law also forbade autopsies.

However, Captain Robert Antolas of the West New York Police Department, who was in charge of the investigation into decedent's murder, testified at a deposition that the police had been aware of decedent's religion and the need for his body to be buried or cremated within twenty-four hours. He claimed that another officer had obtained permission from a family member in Israel, perhaps decedent's son, to perform the autopsy. The Medical Examiner's Investigative Data Sheet indicated that decedent's wife had told police at the crime scene that she did not object to an autopsy but that it had to be done immediately and that decedent's body then had to be shipped to Israel. The County Prosecutor's office was told that decedent was an Orthodox Jew and that the family was concerned regarding an autopsy.

III

Rule 4:46-2(c) provides that a summary judgment motion should be granted if

the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law. An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact. The court shall find the facts and state its conclusions in accordance with R. 1:7-4.

A summary judgment motion should be granted if the court concludes that "the competent evidential materials presented, when viewed in the light most favorable to the non-moving party in consideration of the applicable evidentiary standard, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). The trial court may not decide issues of fact; it must only decide if there are such issues. Id. at 540. Plaintiff argues that the trial court erred in determining defendants to be immune under the Act.

N.J.S.A. 59:3-3 provides that "[a] public employee is not liable if he acts in good faith in the execution or enforcement of any law." The Act thus establishes a presumption that a public entity and its employees are "immune from liability for any injury caused by it or an employee unless made liable by some express provision of the Act". Clarke v. Twp. of Mt. Laurel, 357 N.J. Super. 362, 368 (App. Div. 2003). "The liability provisions of the Act are subordinate to the immunity provisions[.]" Ibid.

"Good faith immunity under [N.J.S.A. 59:3-3] 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)). To obtain summary judgment, "a public employee must establish that [his or] her conduct was 'objectively reasonable,'" Fielder, supra, 141 N.J. at 132, "in light of clearly established laws." Lascurain v. City of Newark, 349 N.J. Super. 251, 287 (App. Div. 2002).

"The same standard of objective reasonableness that applies in [42 U.S.C. 1983] actions also governs questions of good faith originating under the [Act]." Wildoner v. Borough of Ramsey, 162 N.J. 375, 387 (2000). Accord, Kirk v. City of Newark, 109 N.J. 173, 179 (1988). The 1983 standard was described in Harlow v. Fitzgerald, 457 U.S. 800, 817-18, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396, 410 (1982), as follows:

[B]are allegations of malice should not suffice to subject government officials either to the costs of trial or to the burdens of broad-reaching discovery. We therefore hold that government officials performing discretionary functions, generally are 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. * * *

Reliance on the objective reasonableness of an official's conduct, as measured by reference to clearly established law, should avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment. (Internal citations and footnotes omitted.)

This defense "provides ample protection to all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341, 106 S. Ct. 1092, 1096, 89 L. Ed. 2d 271, 278 (1986).

If a public employee did not act in an objectively reasonable manner, "a second line of defense, which may be raised at trial, remains available: subjective good faith." Fielder, supra, 141 N.J. at 132; accord, Mesgleski v. Oraboni, 330 N.J. Super. 10, 25 (App. Div. 2000). The issue of "subjective good faith"

must be sensitively treated in light of all the attendant facts and circumstances which give color and meaning to otherwise neutral conduct. The undertaking can rarely succeed except after a presentation of all the evidence through direct and cross-examination and until an opportunity has been afforded to observe the demeanor of the witness.

[Fielder, supra, 141 N.J. at 132 (quoting Evans v. Elizabeth Police Dep't, 236 N.J. Super. 115, 117 (App. Div. 1983)).]

Thus, "the defense of subjective good faith will ordinarily be better assessed on a full record." Fielder, supra, 141 N.J. at 132.

Immunity attaches, then, to a public employee who can prove either "objective reasonableness" or that he or she acted with "subjective good faith." Alston, supra, 168 N.J. at 186; accord Clarke, supra, 357 N.J. Super. at 369. With the Fielder caveat in mind regarding determinations of subjective good faith in a context that is not plenary, summary judgment is appropriate if the employee can establish either factor. See Canico v. Hurtado, 144 N.J. 361, 364-65 (1996); Kelty v. State of New Jersey Dep't of Law and Public Safety, 321 N.J. Super. 84, 94 (App. Div. 1999). "[O]rdinary negligence is an insufficient basis for holding a public employee liable under N.J.S.A. 59:3-3." Lascurain, supra, 349 N.J. Super. at 287; accord, Kelty, supra, 321 N.J. Super. at 94.

The immunity provisions of the Act, including N.J.S.A. 59:3-3, do not apply if the employee's 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. Willful misconduct, although not defined in the Act, has been interpreted as being "more than mere negligence." Fielder, supra, 141 N.J. at 123-24; accord, Clarke, supra, 357 N.J. Super. at 369. It "requires 'much more' than mere negligence," and falls "somewhere on the continuum between simple negligence and the intentional infliction of emotional harm." Alston, supra, 168 N.J. at 185.

A.

Plaintiff asserts that the court erred in granting summary judgment to the West New York Police Department, Detective Bureau and Prosecutor's Office, and several of its officers and employees. Plaintiff's complaint alleges that these defendants acted improperly in two ways: first, they negligently searched for decedent; and second, an employee of one of the defendant entities told the Medical Examiner that the family did not object to an autopsy.

We reject plaintiff's argument with respect to the first of these two claims. Plaintiff has asserted that these defendants negligently searched for decedent after his disappearance, alleging liability under N.J.S.A. 59:2-2a and N.J.S.A. 59:3-1a. The first of these two sections provides: "A public entity is liable for injuries proximately caused by an act or omission of a public employee within the scope of his employment in the same manner and to the same extent as a private individual under like circumstances." N.J.S.A. 59:2-2a. The second provides: "Except as otherwise provided by this act, a public employee is liable for injury caused by his or her omission to the same extent as a private person." N.J.S.A. 59:3-1a.

In rejecting plaintiff's "negligent search" claim, the motion judge noted there was a dispute as to when the police were advised that decedent owned the building in which he was found. The police said it was later during the investigation, while decedent's wife contended it was earlier. The court determined that, considering all the factual allegations, these defendants were, at worst, guilty of negligence. Since negligent action is immune under the Act, summary judgment was appropriate.

This evaluation was not erroneous. N.J.S.A. 59:5-4 provides: "Neither a public entity nor a public employee is liable for failure to provide police protection service or, if police protection service is provided, for failure to provide sufficient police protection service." That section of the Act has been applied to protect the public entity from liability for improper investigation. See Henschke v. Borough of Clayton, 251 N.J. Super. 393, 399-400 (App. Div. 1991). A police officer and his or her employing governmental entity "will be immune from liability for injuries stemming from negligent conduct or inaction by a police officer," unless a "special relationship" exists that was created by the police for the purpose of protecting an individual. Lee v. Doe, 232 N.J. Super. 569, 581 (App. Div. 1989).

Even if these defendants might be seen as responsible for failing to conduct an adequate search for decedent, there is no adequately supported claim that any such omission proximately caused any injury experienced by decedent, who had been brutally beaten and killed. There has been no prima facie showing that a quicker and more efficient search for decedent would have altered the result.

B.

We also reject plaintiff's argument that the trial court erred in granting summary judgment to the West New York Building and Housing Departments and Zanardelli, the West New York building inspector. Plaintiff had alleged that these defendants maliciously and willfully denied construction permits, or issued stop-work orders on construction repairs decedent was having done on the building in which his body was found, thereby exposing him to a "foreseeable chance of injury." Plaintiff alleges that defendants did so for discriminatory reasons, that is, because decedent was Jewish.

The trial court granted summary judgment to these defendants on the basis that they were immune under various provisions of the Act, and because there was no evidence that they had acted for discriminatory reasons. The court determined "it was a real stretch" to conclude that the denial of the permits and issuance of stop-work orders led to decedent's murder.

We are in substantial agreement with the motion judge. N.J.S.A. 59:3-2a provides: "A public employee is not liable for an injury resulting from the exercise of judgment or discretion vested in him[.]" An analogous provision similarly immunizes a public entity. N.J.S.A. 59:2-3a. Other provisions of the Act afford similar immunities:

A public employee is not liable for any injury caused by his issuance, denial, suspension or revocation of, or by his failure or refusal to issue, deny, suspend or revoke, any permit, license, certificate, approval, order, or similar authorization where he is authorized by law to determine whether or not such authorization should be issued, denied, suspended or revoked.

[N.J.S.A. 59:3-6.]

See also N.J.S.A. 59:2-5. Nevertheless, N.J.S.A. 59:3-14a provides that the Act does not "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."

Plaintiff acknowledges the immunity provision, but argues that Zanardelli acted willfully and maliciously in denying permits or issuing stop-work orders. Plaintiff, however, offers no showing apart from conjecture to support his claim of discrimination or malicious and willful action on the part of Zanardelli. On appeal, he argues, without adequate support in the record, that various documents belie any sound reason on Zanardelli's part for the actions he took.

The motion judge was substantially correct in observing that it was simply not reasonable to assume a causal connection between decedent's murder and the non-issuance of certain permits or the revocation of others that had been issued. The trial court was correct to reject plaintiff's whole-cloth argument that it was reasonably foreseeable decedent would be murdered when the permits were not issued or were revoked. Thus, we conclude that the trial court properly granted summary judgment to Zanardelli and the West New York Building and Housing Departments.

Accordingly, with the exception of issues relating to the autopsy and the 1983 claim, which we will address separately, we affirm all the trial court's summary judgment dismissals based on the immunities of the Tort Claims Act.

IV

We reject plaintiff's argument that the trial court erred in refusing to order the return of decedent's clothes following his murder. The motion judge denied the application for production of decedent's clothes on the basis that he was unaware of any law requiring the release of a murder victim's clothing during a pending criminal investigation into the crime. Expressing a sensitivity to plaintiff's "religious concerns" the judge applied the guidelines issued by the Attorney General that require permanent retention of "all evidence in homicide cases."

The motion judge was correct in this ruling. N.J.S.A. 52:17B-86a requires that an investigation be conducted in any case of violent death, "whether apparently homicidal, suicidal or accidental". N.J.S.A. 52:17B-87 requires that, when an individual dies from a described cause, the county medical examiner and county prosecutor must be notified. Further, the "medical examiner shall take possession of any object or articles which, in his opinion, may be useful in establishing the cause of death, and deliver them to the county prosecutor". Ibid. See Maslonka v. Hermann, 173 N.J. Super. 566, 577 (App. Div. 1980), rev'd on other grounds, 85 N.J. 533 (1981).

The Hudson County Prosecutor relied on the Attorney General's Homicide and Sudden Death Survivor Guidelines, issued in July 1985* with a mandate "that all evidence in homicide cases be retained permanently by the Prosecutor's Office." The guidelines provide: "If it is determined that the victim's property cannot be promptly released, a designated law enforcement officer should explain the reason for withholding the property and ensure that it is returned when possible."

At oral argument on the motion, the County Prosecutor represented that decedent's clothes contained DNA (from blood), possibly from the murderer, and that the investigation into decedent's murder was still ongoing because DNA from the clothes and crime scene did not match Benitez's. Thus, he argued, if "someone else [is] accused of the crime, . . . [and] the [p]rosecutor says that the State Police DNA matches this particular person, that person [would] be entitled to have his own test conducted [on decedent's clothes] if he wanted to do so." The Prosecutor was concerned that "down the road, [a new suspect] would want to have their own independent test[ing] done on [the clothes], that is why they do retain them, that is why the law mandates they keep them forever, because as you know, there are post-conviction reliefs."

Considering the language of the statute and the Attorney General guidelines in the light of the continuing investigation into decedent's murder, the motion judge properly ruled that decedent's clothes should not be released, even for the legitimate religious reasons raised by plaintiff. Plaintiff's offer that the clothes, which would be buried with decedent, could always be exhumed if a person were ever tried for the murder, was not adequate as a basis for overcoming the State's substantial interest in retaining the evidence. We affirm the trial court's ruling in this regard.

V

We, likewise, reject plaintiff's argument that the trial court erred in refusing to compel the disclosure of certain documents, under OPRA or otherwise.

N.J.S.A. 47:1A-1, the legislative findings section of OPRA, contains a statement of "the public policy of this State:"

[G]overnment records shall be readily accessible for inspection, copying, or examination by the citizens of this State, with certain exemptions, for the protection of the public interest, and any limitation on the right of access accorded by [OPRA] shall be construed in favor of the public's right of access.

However, N.J.S.A. 47:1A-3a provides that, notwithstanding the foregoing declaration,

where it shall appear that the record or records which are sought to be inspected, copied, or examined shall pertain to an investigation in progress by any public agency, the right of access provided for in [OPRA] may be denied if the inspection, copying or examination of such record or records shall be inimical to the public interest[.]

Nevertheless, N.J.S.A. 47:1A-3b provides that certain information "concerning a criminal investigation shall be available to the public within twenty-four hours or as soon as practicable." As to situations where a crime has been reported but no arrest made (Benitez had been arrested on a drug charge, not for the murder of decedent), information can be released regarding "the type of crime, time, location and type of weapon, if any." Ibid.

In order to deny access to criminal investigatory materials, "the court must find both that they pertain to an investigation and that their release would be inimical to the public interest." Courier News v. Hunterdon County Prosecutor's Office, 358 N.J. Super. 373, 380 (App. Div. 2003)(quoting Asbury Park Press v. Lakewood Twp. Police Dep't, 354 N.J. Super. 146, 158 (Law Div. 2002)). The court in Courier News noted that, if the requested information was released, it might find its way into the public domain, possibly prejudicing and thus tainting potential jurors. 358 N.J. Super. at 381. The court concluded, however, that the "fact that media coverage may make it more difficult to select a fair and impartial jury is not a basis to deny access to government records under OPRA." Id. at 382. N.J.S.A. 47:1A-6 places on the custodian of the record "the burden of proving that the denial of access is authorized by law." Id. at 379. Here, as we have noted, the trial court ordered the release of most of the items plaintiff sought, but denied release of other matter for good and ample reason, based on OPRA standards, relating to ongoing criminal investigations. Plaintiff's reliance on Serrano v. South Brunswick Twp., 358 N.J. Super. 352 (App. Div. 2003), is misplaced. The records sought there, tapes of 911 calls, were required by law to be recorded and maintained, and therefore could not qualify as criminal investigatory records exempt from the disclosure requirement. Id. at 364-65. In the instant matter the police were not required by statute to make and maintain the particular criminal records pertaining to the investigation into decedent's murder that plaintiff sought. See State v. Marshall, 148 N.J. 89, 272-73 (no law or regulation requires that results of criminal investigation be made, maintained or filed), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997); The Daily Journal v. Police Dep't of Vineland, 351 N.J. Super. 110, 120 ((App. Div.) (criminal investigative reports by police are not required by law or regulation to be made, maintained or kept on file, for purposes of their release under predecessor to OPRA), certif. denied, 174 N.J. 364 (2002); River Edge Sav. and Loan Ass'n v. Hyland, 165 N.J. Super. 540, 545 (App. Div.), certif. denied, 81 N.J. 58 (1979). The exemption from OPRA's disclosure requirement for criminal investigatory records was clearly designed to avoid any disclosure that could compromise an ongoing criminal investigation.

Yet, in addition to determining that particular records sought are criminal investigatory records that do not need to be disclosed, a court must also determine whether release of the requested records would be inimical to the public interest. Here, the prosecutor's office has argued throughout that release of the records could "compromise the future investigation and hinder the prosecution of this case," given that all of the evidence collected has "some evidential value" in any future prosecution of decedent's murderer. Moreover, any defendant ultimately tried for that murder would have a constitutional right to examine the evidence collected.

Plaintiff argues that the right of a defendant eventually tried for decedent's murder to examine the police records does not necessarily preclude plaintiff's review. We recognize the State's concern that the release of those records by plaintiff could negatively impact the ongoing investigation, thereby frustrating however unintentionally law enforcement efforts to identify and apprehend the murderer, who, while at liberty, presents a threat to others. Therefore, to the extent release of the records could realistically jeopardize the State's ability to bring a murderer to justice and protect the community, the release must be seen as inimical to the public interest. In River Edge Savings, supra, 165 N.J. Super. at 543, for example, we recognized the receipt by law enforcement officials of information regarding the existence or occurrence of criminal activity as critical to law enforcement. In order to protect that flow of information, such information is generally privileged against disclosure, "thereby protecting witness security, the State's relationship with its informants and witnesses, and other critical relationships, among other things." Id. at 543-44.

We do not ignore plaintiff's argument that sealing these records until a suspect is arrested and tried could result in the non-release of the records for years, or perhaps forever, and that such a consequence should be disfavored. See Courier News, supra, 358 N.J. Super. at 381. Plaintiff also contends that the prosecutor has not specifically identified why the release of the requested information would be inimical to the public interest other than to make the general claim that any future investigation into decedent's murder would be hampered.

Plaintiff asserts that he wishes to review the records to aid in determining which police officer advised the Medical Examiner that decedent's family did not object to an autopsy. Yet, plaintiff has contended only that that fact "may be contained in" the requested records. He has not requested that the trial court conduct an in camera review of the police and prosecutorial records involved to determine if any are releasable as bearing upon viable claims.

Concluding, as we do, that none of plaintiff's claims are viable, we affirm the challenged denials of discovery.

VI

Plaintiff's claims based on the performance of an unauthorized autopsy and for relief pursuant to 42 U.S.C.A. 1983 are related to some extent. Our review of the record in the light of the arguments advanced by the parties and prevailing legal standards discloses that while some genuine issues of material fact existed in respect of the basic claim, plaintiff had failed to make all showings necessary to defeat a summary judgment dismissal.

The only portions of the complaint bearing upon the autopsy are contained in a single paragraph of the general factual allegations:

23. Defendant State of New Jersey, Regional Medical Examiner Office was advised that decedent was an Orthodox Jew and that no autopsy should be performed.

and in the twenty-first through twenty-third counts. The latter counts allege claims arising from the autopsy only against the "Defendant State of New Jersey, Regional Medical Examiner Office," named employees of that entity, and some unknown employees. These counts also incorporate claims against the Hudson County Prosecutor and his employees, but not with respect to the autopsy, only regarding the non-release of decedent's body parts and clothing.

In respect of the autopsy claim, the twenty-first count, after the standard incorporation clause, states:

2. Defendant State of New Jersey, Regional Medical Examiner Office is responsible for performing autopsies in the State of New Jersey.

* * *

4. Defendant State of New Jersey, Regional Medical Examiner Office performed an autopsy despite the religious objections of decedent's family.

5. Defendant had a duty pursuant to N.J.S.A. 52:17B-88.3 to provide notice to the family who objected to the autopsy and to wait 48 hours required by statute before performing an autopsy.

6. Defendant breached the duty by performing an autopsy without providing notice and without waiting the 48 hours, knowing full well that decedent was an orthodox Jew and that the family objected to the autopsy.

7. The procedure performed on decedent was not the least intrusive procedure and there was no compelling public necessity to perform the autopsy. It was obvious that decedent died as a result of blunt trauma to the head and chest and that decedent's throat was slit.

* * * *

11. Defendants' actions are in violation of the United States Constitution and plaintiff's freedom of religion.

12. As a direct and proximate result of the wrongful actions of the defendant, State of New Jersey Regional Medical Examiner[,] decedent's wife has suffered extreme mental anguish and emotional distress requiring medical treatment.

The twenty-second count, in its entirety, states:

1. Plaintiff incorporates by reference each and every allegation made in the First through Twenty First Counts of the complaint as if set forth herein at length.

2. The wrongful actions of the defendants were willful and wanton, thus giving rise to an award of punitive damages pursuant to N.J.S.A. 2A:15-3 and by law against the defendants.

3. WHEREFORE, plaintiff demands judgment from the defendants State of New Jersey Regional Medical Examiner Office and Hudson County Prosecutor's Office on Counts Twenty First and Twenty Second of the complaint for actual damages, pain and suffering, plus punitive damages, together with interest, reasonable attorney fees, costs of suit and such other and further relief as the court may deem proper.

The twenty-third and twenty-fourth counts, respectively, reiterate the allegations of the twenty-first and twenty third counts against the employees of the Regional Medical Examiner Office. As we have noted, the twenty-fifth count alleges a 1983 violation against all defendants named in the complaint.

A.

We begin our discussion of the autopsy issue mindful of the fact that the only defendants named in that connection are the State of New Jersey, Regional Medical Examiner Office and its employees. Accordingly, in the light of our disposition of the other issues raised in the appeal, it is only with respect to those defendants that plaintiff has any possibility of withstanding a summary judgment dismissal.

Without alleging any autopsy-related conduct on the part of any named defendant other than the Regional Medical Examiner's Office and its employees, plaintiff has claimed generally that the police improperly told the Medical Examiner to perform an autopsy on decedent. In granting the police defendants' motion to dismiss, the motion judge stated, in summarizing his analysis and disposition:

violation of the religious rights of Mr. Newman, once again, under our general allegations that the police said the autopsy could be taken, there has been no evidence no deposition testimony, as to who said what. Discovery end date has passed.

Given the record before us, we regard that view and the dismissal result against the police defendants to be essentially correct. Thus, with no allegations of autopsy-related conduct on the part of any other defendant named in the complaint, we are left to assess only the quality of the claims made against the Regional Medical Examiner's Office and its employees.

We must determine whether the evidence is sufficient to command the attention of the ultimate finder of fact. See Brill, supra, 142 N.J. at 536-42.

The Medical Examiner's Investigative Data Sheet indicates that, "at scene police told M.I./M.E. that wife of [decedent] does not object to autopsy[.]" Although the motion judge correctly determined there was no specific evidence indicating that any specific officer so informed the Medical Examiner's representative on site, the data sheet, together with Rose and Jack Newman's claims that they did not so advise the police, raises a genuine issue of material fact as to whether anyone in authority told the Medical Examiner that there was no objection to an autopsy, and what the motivation for that comment might have been.

We might well affirm the dismissal of the claim because this suit was filed by Jack Newman as administrator of Eugene's estate rather than in his individual capacity and, certainly, the estate was not injured by the performance of the autopsy. That is too ephemeral a basis for disposition, however. See Crescent Park Tenants Assn. v. Realty Equities Corp., 58 N.J. 98, 107-08 (1971)(referring to the preference in New Jersey law for reaching "just and expeditious determinations on the ultimate merits"). Moreover, we will not discount plaintiff's argument, however belated it may be, that the complaint should be amended to add Rose as a plaintiff. We are also mindful that there is, as yet, no evidence that the emotional injuries alleged to have been suffered by decedent's son and wife resulted from performance of the autopsy rather than from the fact of decedent's brutal murder itself. But, there are more concrete bases for affirmance of the summary judgment dismissal.

At oral argument on the prosecutor's summary judgment motion, plaintiff's counsel explained that, during the course of discovery, she had obtained documents indicating that an individual within the prosecutor's office, Investigator Ted Wagner, had told the Medical Examiner that Rose Newman did not object to an autopsy. Plaintiff has taken the position from the outset that there was no compelling public necessity for an autopsy, and that plaintiff has a right "to ascertain at this point who, in fact, did authorize the autopsy."

Although plaintiff's complaint was never formally amended to add this claim against the Prosecutor's Office, the court did ultimately address it. One of the motion judges had initially found that "[t]here's no allegation that the prosecutor took part in the autopsy or ordered the autopsy - or had anything to do with the autopsy." In addressing this issue later, the trial court rejected the argument that plaintiff had produced evidence tending to show that Wagner told the Medical Examiner that the family did not object to an autopsy. The court found that "there is absolutely no evidence to show that any member of the prosecutor's office made that statement - or that statement was made." Therefore, this aspect of plaintiff's complaint was also dismissed.

The dismissal on that basis was not erroneous. Plaintiff relies solely on the Investigative Data Sheet, for one page of which Ted Wagner is the indicated "source of information." The report mentions that Wagner removed some items from the crime scene. Further, a handwritten note at the end of the document states that, "at scene police told M.I./M.E. that wife of [decedent] does not object to an autopsy, although he was Jewish." Decedent's wife requested that the autopsy be done "first thing[,]" however.

Based on this handwritten notation, plaintiff asserts that it must have been Wagner who told the Medical Examiner that Rose did not object to an autopsy. We agree with the motion judge, however, that this document, alone, did not raise the "genuine issue [of] material fact" that would defeat the motion for summary judgment. Rather, Wagner was listed as the source of information only as to page one of the Data Sheet. Another individual was listed as the source of information for page two, and the medical investigator who completed the form, Maureen Gardner, was the source of information for the final three pages, including the page with the handwritten notation noted above. Thus, there was no objective basis for plaintiff's belief that Wagner was the individual who told the Medical Examiner that no objection to an autopsy existed.

Even if Wagner was the source of this information, there is no indication in the record that he maliciously or willfully told the Medical Examiner there was no objection to an autopsy. If he made the statement plaintiff attributes to him, he was at worst, negligent, and would be immunized by N.J.S.A. 59:3-3. Mindful that the complaint does not even connect the Prosecutor or his employees with the autopsy violation, plaintiff's claims, citing N.J.S.A. 59:3-14a, that Wagner's actions, if they occurred, "constituted a crime, actual fraud, actual malice or willful misconduct" is, therefore, simply not supported by anything other than conjecture.

Thus, we reject plaintiff's argument that any basis exists for maintaining the autopsy claim against the County Prosecutor defendants.

Plaintiff also contends that the court erred in granting summary judgment on counts twenty-one through twenty-four, in which plaintiff alleges that the Regional Medical Examiner and two of its employees performed the autopsy of decedent despite the religious objections of his family.

N.J.S.A. 52:17B-86 provides: An investigation shall be conducted . . . in the case of all . . . "[v]iolent deaths, whether apparently homicidal, suicidal or accidental[.]" N.J.S.A. 52:17B-87 requires that, in the event of a covered death, the county medical examiner must be notified, the medical examiner must take charge of the dead body, and must fully "investigate the essential facts concerning the medical causes of death[.]" An autopsy shall be performed if deemed necessary by the county medical examiner or county prosecutor, among others. N.J.S.A. 52:17B-88. However,

Notwithstanding any other provision of law to the contrary, no . . . autopsy shall be performed, in the absence of a compelling public necessity, over the objection of a member of the deceased's immediate family or in the absence thereof, a friend of the deceased that the procedure is contrary to the religious belief of the decedent or if there is an obvious reason to believe that a[n] . . . autopsy is contrary to the decedent's religious beliefs.

[N.J.S.A. 52:17B-88.2.]

"Compelling public necessity" is defined to include situations where the "autopsy is essential to the criminal investigation of a homicide of which the decedent is the victim[.]" N.J.S.A. 52:17B-88.1a(1). If the medical examiner determines that a compelling public necessity to perform an autopsy exists, and either a member of the decedent's family or a friend objects on religious grounds, the autopsy cannot be performed "until 48 hours after notice thereof is given by the medical examiner to the objecting party," N.J.S.A. 52:17B-88.3, during which time "the objecting party . . . may institute action in the Superior Court to determine the propriety of the . . . autopsy[.]" Ibid.

The Department of Law and Public Safety has promulgated regulations to effectuate these statutory provisions. See N.J.A.C. 13:49-1.6(a). During the forty-eight-hour period, the medical examiner must reevaluate the facts and reconsider whether an autopsy is a compelling public necessity; if it is, he or she must notify the objector and advise him or her of the right to proceed in Superior Court as described above. N.J.A.C. 13:49-1.6(a)3, 4. The forty-eight-hour waiting period begins when the medical examiner receives notice of an objection. N.J.A.C. 13:49-1.6(b).

Based on the Tort Claims Act, the statutory provisions governing autopsies, and the circumstances presented here, the trial court granted the summary judgment motion of the Regional Medical Examiner and its employees. The motion judge articulated the following reasons for the conclusions he reached in this regard:

[As to] damages plaintiffs have not met the threshold requirements of N.J.S.A. 59:9-2d[;] nor . . . do plaintiffs have a claim under section 1983.

N.J.S.A. 59:3-3 provides that a public employee is not liable if he acts in good faith in the execution or enforcement of any law. * * *

Here, . . . the medical examiner acted in good faith[;] he thought that they had the permission of the family, or that the police had obtained the permission from the family to proceed with the autopsy and had been advised of that. Here [if] there was negligence (phonetic), it would be immunized under that section of the statute.

Additionally, in order to recover damages under 59:9-2d, the plaintiff must show that . . . [he] sustained a permanent injury which is substantial. Psychological and emotional injuries including post-traumatic stress would be an injury for which a plaintiff could recover provided that the disorder is substantial. Permanent. * * *

However, when the claim is emotional distress, there must be a verifiable, objective manifestation of emotional distress. Which must be verified by physical examination and observation of the physician. * * *

Here there is no doctor report that would be a basis for finding post-traumatic stress substantial, which was proximately caused by the doing of the autopsy. Plaintiff had submitted to his opposing papers a finding of . . . an application for further disability by plaintiff's son that he is permanently disabled by post-traumatic stress.

The plaintiff has provided no medical reports requested by the defendants. The discovery period has long since past. None of the even the report the finding of the disability application was available to the plaintiff well before the discovery ended.

The plaintiff has not shown by any medical evidence that there is post-traumatic stress disorder, which is substantial as a result of the performance of the autopsies.

Our review of the record discloses that the focal fact, whether a member of decedent's family had authorized the autopsy, was sufficiently in issue to preclude summary judgment resolution of the claims on that basis. Other reasons articulated by the trial court existed to preclude an action under the Tort Claims Act, however.

To be sure, beyond the assertions of plaintiff and others related to or associated with decedent, no direct independent evidence had been shown to exist regarding permission for the autopsy. That does not mean there can be no ring of truth in the contention that the Medical Examiner or its employees were told of an objection to an autopsy on religious grounds. We are mindful that Rose Newman certified that she was never at the site where decedent's body was found and never spoke to any police officer or the Medical Examiner at the scene. Rafi Levy, the family friend at the scene, certified that he "never advised the police and prosecutor at the scene that the family does not object to an autopsy." Levy did tell the police that decedent was an Orthodox Jew whose body had to be buried immediately, but he did not indicate in his certification that he informed the Medical Examiner's office of any objections to an autopsy. Officer Lameiro, who was at the scene, testified at a deposition, however, that he advised the county prosecutor, but not the medical examiner, that decedent was Jewish and that there were concerns about an autopsy.

On the other hand, Captain Antolas of the West New York Police Department acknowledged that the police were aware of decedent's religion, but that permission to do an autopsy was granted by a member of decedent's family in Israel, perhaps decedent's son. Decedent's son, plaintiff Jack Newman, denied authorizing the autopsy. Finally, the medical examiner's investigative data sheet indicated that decedent's wife told the police she did not object to an autopsy. But, we note once again, Rose denied being at the scene or speaking to the police at the time.

Given these contradictory allegations and reports, a factual issue existed that tended to preclude resolution of the controversy on summary judgment. This notwithstanding, the motion judge was clearly correct in dismissing the tort action because of plaintiff's failure to make a prima facie showing of emotional distress damages that satisfied the damage threshold requirements of the Tort Claims Act. In this regard, we are in essential agreement with the trial court's decisional rationale. No adequate showing of substantiality or permanency of an emotional distress injury sufficient to satisfy the requirements of N.J.S.A. 59:9-2d has been made either with respect to the named plaintiff, decedent's son, or to the putative plaintiff, decedent's wife. See Randall v. State, 277 N.J. Super. 192, 197-98 (App. Div. 1994). See also Brooks v. Odom, 150 N.J. 395, 402-03 (1997).

At the summary judgment argument, counsel for the Medical Examiner's Office contended that, in opposition to his summary judgment motion, and well after the period for discovery had ended, he had received from his adversary a September 2003 decision by an administrative law judge holding that plaintiff, Jack Newman, was disabled for Social Security benefit purposes. Plaintiff's counsel at the time responded that his firm had not been involved in the case initially and was unaware of what had been provided to the court until he filed a document in opposition to the summary judgment motion. The court agreed with defendants, and rejected plaintiff's claim for emotional distress damages arising from the autopsy on the ground there was no evidence, such as a medical report, supporting either Rose or Jack Newman's claims that she or he had suffered substantial emotional distress proximately caused by the autopsy. Moreover, the period for discovery had ended, and any evidence supporting plaintiff's claim had not been timely provided.

On appeal, plaintiff asserts both that he provided timely and relevant evidence in support of his damages claim to the court, and that this evidence was sufficient to overcome defendants' summary judgment motion. Specifically, plaintiff claims that a report from Dr. Bar-Meir regarding Rose's injuries was filed in a timely fashion. However, that report does not provide any support for the proposition that Rose Newman suffered any permanent loss of a bodily function, nor does it indicate that any damages she may have incurred resulted from performance of the autopsy as distinguished from the death of her husband.

Plaintiff also filed a report from Dr. Harvey M. Kranzler with his answers to interrogatories stating that, after decedent's death, Rose was "unable to function or be left alone," "has symptoms of Post Traumatic Stress Disorder," and also suffered from "significant vegetative symptoms of depression and anxiety . . . crying spells . . . and inability to concentrate or function in her personal care."

The Kranzler report went on to state that Jack Newman had symptoms related to the "traumatic experience" of his father's death, and suffered from "difficulty sleeping and loss of appetite." Both he and his mother had been treated with medications. Plaintiff claims that the late-submitted decision on Social Security eligibility had "relied on the report of Dr. Kranzler and other treating physicians in determining that Jack Newman was disabled."

Our analysis discloses that the assertions in the Bar-Meir and Kranzler reports do not amount to a prima facie showing that either Rose or Jack suffered from a substantial psychological or emotional injury of a permanent nature stemming from performance of the autopsy. The Kranzler report notes that Rose cannot be alone, suffers from post-traumatic stress disorder, "significant vegetative symptoms of depression and anxiety," as well as "severe sleep and appetite disturbance," but there was no indication that her emotional injuries were permanent or causally related to the conduct of the autopsy, as distinguished from the death of decedent. Thus we conclude, on various grounds, that plaintiff's showings regarding Rose failed to satisfy the threshold requirements of N.J.S.A. 59:9-2d.

The evidence regarding Jack is even less compelling. Kranzler noted only that Jack had "symptoms of traumatic response" to the murder, including depression and anxiety, for which he was on medication. However, Kranzler indicated that Jack had come to the United States to take care of his mother, and she eventually returned to Israel with him. Thus, Jack was apparently well enough to care for his mother. Further, the Kranzler report did not opine on permanency. Therefore, we conclude that the timely submissions regarding Jack did not sufficiently demonstrate a sufficiently serious psychological injury to overcome the statutory threshold.

The late-submitted Social Security disability decision, even if considered, does not provide adequate support for plaintiff's claim sufficient to defeat defendants' summary judgment motion. That decision also falls short on the question of permanency. It provides for a review in six months, "[a]s medical improvement is expected," to see if Jack was still disabled.

We note as well that suit was filed on behalf of decedent's estate, and not individually on behalf of members of the family. Because the estate could not have been emotionally injured by decedent's autopsy, it was not an eligible plaintiff on the tort claim.

For all the foregoing reasons, we affirm the dismissal of the tort claims based on the putative autopsy violation.

B.

We now address the one remaining argument before us. Plaintiff argues that the court erred in granting summary judgment to defendants regarding plaintiff's claim under 42 U.S.C.A. 1983. Based upon the foregoing dispositions, the only feature of the 1983 claim remaining for resolution has to do with the autopsy.

Plaintiff alleges in count twenty-five of the complaint that decedent was discriminated against and deprived of his religious freedom by virtually all of the defendants, apparently relying on the fact that the police failed to respond to prior complaints of religious harassment made by decedent, and because an autopsy was done on him in violation of his religious beliefs. Therefore, plaintiff, as decedent's representative, seeks damages under 42 U.S.C.A. 1983. The trial court dismissed that claim as to all defendants. The judge determined that the State of New Jersey, as well as its subdivisions, such as the Regional Medical Examiner's Office, and the State employee defendants, were not persons subject to suit under the federal statute. As far as we can discern, the court did not address this issue as to the remaining defendants, concluding instead that since the underlying claims had been dismissed, the 1983 claim should also be dismissed. Valid grounds exist, however, for dismissing the 1983 claim made against all defendants.

With respect to the only surviving question, having to do with the liability of the Medical Examiner's office and its employees for an authorized autopsy, the right not to suffer an autopsy absent compelling public need belongs, by the terms of the statute itself, to the survivors of the deceased, not to the deceased himself, albeit based upon the decedent's own religious beliefs as well as those of his survivors. To the extent the objection on religious-belief grounds and its rejection on inadequate bases, alone, give rise to a 1983 claim a conclusion we assume arguendo, but do not decide we may be dealing independently with both the right of the claimants and a right of the deceased.

Irrespective of whose rights are raised for vindication, there are good reasons for affirming the trial court's dismissal of count twenty-five. According to 42 U.S.C.A. 1983:

[E]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress[.]

Under the statute, a plaintiff must demonstrate that the defendant acted under color of state law to deprive him or her of a federal statutory or constitutional right. See Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996); Schneider v. Simonini, 163 N.J. 336, 353 (2000), cert. denied, 531 U.S. 1146, 121 S. Ct. 1083, 148 L. Ed. 2d 959 (2001).

The United States Supreme Court has made it clear that a State cannot be a "person" within the meaning of 1983 and therefore cannot be sued under that statute, in part because it "does not provide a federal forum for litigants who seek a remedy against a State for alleged deprivations of civil liberties. The Eleventh Amendment bars such suits unless the State has waived its immunity." Will v. Michigan Dep't of State Police, 491 U.S. 58, 66, 70-71, 109 S. Ct. 2304, 2312, 105 L. Ed. 2d 45, 55, 57-58 (1989). Accord, Scott-Neal ex rel. Scott v. New Jersey State Dep't of Corrections, 366 N.J. Super. 570, 575 (App. Div. 2004). The Will Court further concluded that although "state officials are literally persons . . . a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office. . . . As such, it is no different from a suit against the State itself." Will, supra, 491 U.S. at 71, 109 S. Ct. at 2312, 105 L. Ed. 2d at 58. In short, "neither a State nor its officials acting in their official capacities are 'persons' under 1983." Ibid.

However, the United States Supreme Court has clarified that the limitations of Will apply only in an "official capacity suit," which represents a way of pleading an action against the official's employing entity. Hafer v. Melo, 502 U.S. 21, 25-27 112 S. Ct. 358, 361-63, 116 L. Ed. 2d 301, 309-10 (1991). State officials sued in their individual capacities are persons potentially liable under 1983. 502 U.S. at 31, 112 S. Ct. at 363, 116 L. Ed. 2d at 313.

Here, plaintiff's 1983 claim involved several governmental entities, including the Regional Medical Examiner's office and two of its employees. Plaintiff generally claimed that decedent's religious freedoms had been violated by these defendants when an autopsy was performed on decedent, an Orthodox Jew, against plaintiff's wishes. However, the State Medical Examiner is an office within the Division of Criminal Justice, an entity within the State Department of Law and Public Safety. N.J.S.A. 52:17B-79. The Department of Law and Public Safety is a "principal department" within "the executive branch of the State Government." N.J.S.A. 52:17B-1.

Thus, under Will, the Medical Examiner's Office was not subject to suit under 1983, as it was a State department discharging its official duties regarding the autopsy of decedent. Thus, the motion judge was correct in concluding that the Medical Examiner's Office was exempt from suit under 1983.

Although the Medical Examiner's Office asserts that plaintiff alleged no separate conduct by its individual employees, plaintiff, in fact, did seek damages from the individual employee defendants, asserting that they performed an autopsy on decedent despite knowing of or having every reason to believe there would be religious objections. These employee defendants were sued in their individual capacities rather than in their official capacities, thereby triggering the exception to Will announced in Hafer.

However, these government officials are entitled to qualified immunity from liability for civil damages under 1983 unless their conduct violated clearly established statutory or constitutional rights of which a reasonable person would have known. See Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396, 410 (1982); Schneider, supra, 163 N.J. at 353-54; Kirk v. City of Newark, 109 N.J. 173, 181; (1988); Morgan v. Union County Bd. of Chosen Freeholders, 268 N.J. Super. 337, 361 (App. Div. 1993), certif. denied, 135 N.J. 468 (1994). A right is clearly established when it is sufficiently clear that a reasonable official would understand that his act violates that right. See Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 3038-39, 97 L. Ed. 2d 523, 530-31 (1987); Morgan, supra, 268 N.J. Super. at 361.

A two-prong test exists for determining qualified immunity: whether the law governing the official's conduct was clearly established; and whether, under that law, a reasonable official could believe his conduct was lawful. See Schneider, supra, 163 N.J. at 355. It is not necessary for the plaintiff to establish that the precise act in question was previously held to be unlawful. Rather, the appropriate inquiry is whether the law was apparent in relation to specific facts confronting the defendants when they acted. See Anderson, supra, 483 U.S. at 640, 107 S. Ct. at 3039, 97 L. Ed. 2d at 531; Morgan, supra, 268 N.J. Super. at 362. Essentially, qualified immunity protects all but the plainly incompetent or those who knowingly violate the law. See Morgan, supra, 268 N.J. Super. at 362.

Applying these principles here, the individual State employees were immune from suit under 1983. Viewing the facts indulgently for the benefit of plaintiff, no adequate prima facie showing has been made that the Medical Examiner's employees were ever directly informed that decedent was Jewish and that the family objected to an autopsy. Rather, although Rose Newman and Rafi Levy may well have told the police about the family's objection to an autopsy, there is no indication that the Medical Examiner's office or its employees were ever so advised. This is apart from the police claim that decedent's family had authorized an autopsy.

With every opportunity to develop the facts on discovery, plaintiff has made no sufficient prima facie showing to support his claim that the Medical Examiner employees were aware of decedent's religious beliefs or that the family had adequately articulated an objection to the autopsy. Thus, there is no evidential basis to conclude that the conduct of these defendants was not reasonable under the law in a 1983 context, especially in the face of the obvious circumstances that the deceased had been the victim of a violent homicide. The court was correct, therefore, on this independent basis, to dismiss count twenty-five as to these defendants.

For the sake of completeness, we note that the 1983 claim was also properly dismissed as to the Hudson County Prosecutor's Office, as well as West New York's Police Department, Detective's Bureau, and Prosecutor's Office and those offices' individual employees. We have covered plaintiff's claim that the County Prosecutor's office refused to turn over decedent's clothes. The motion judge evaluated that contention as without merit and granted summary judgment to the County Prosecutor defendants without considering whether these defendants were also immune under 1983. We have determined that the trial court was correct to conclude that the County Prosecutor acted properly in retaining decedent's clothes. Therefore, the Prosecutor's Office did not deprive plaintiff of any constitutional or statutory right, and thus count twenty-five was also properly dismissed as to it and its employees.

With respect to the Town of West New York, the United States Supreme Court has held that "a municipality can be found liable under 1983 only where the municipality itself causes the constitutional violation at issue." Canton v. Harris, 489 U.S. 378, 385, 109 S. Ct. 1197, 1203, 103 L. Ed. 2d 412, 424 (1989); Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 694-95, 98 S. Ct. 2018, 2037-38, 56 L. Ed. 2d 611, 638 (1978). Thus, a local government can be liable under 1983 only if there is a showing of an official policy, practice, or custom that violated the plaintiff's rights. See Kentucky v. Graham, 473 U.S. 159, 166, 105 S. Ct. 3099, 3105, 87 L. Ed. 2d 114, 122 (1985); Monell, supra, 436 U.S. at 694, 98 S. Ct. at 2037-38, 56 L. Ed. 2d at 638; Schneider, supra, 163 N.J. at 371; Morgan, supra, 268 N.J. Super. at 363. That is, the local governmental entity is not liable under a theory of respondeat superior for its employees' misdeeds. See Monell, supra, 436 U.S. at 694, 98 S. Ct. at 2037-38, 56 L. Ed. 2d at 638; Schneider, supra, 163 N.J. at 370-71; Morgan, supra, 268 N.J. Super. at 363.

Here, plaintiff claimed that the West New York Police Department, Prosecutor's Office and Detective's Bureau were aware of decedent's religion, yet ignored his repeated complaints of religious harassment, thereby discriminating against him. Further, these defendants failed to investigate decedent's disappearance and failed to ensure that an autopsy was not performed on decedent.

The trial court judge did not consider whether these defendants were immune from a 1983 claim. Rather, as we have indicated, he concluded only that these defendants were immune under the Tort Claims Act.

We conclude that the West New York defendants were also immune from suit under 1983. Plaintiff does not allege any official policy, practice or custom that resulted in a deprivation of decedent's rights. Rather, plaintiff asserts that specific, individual actions of the West New York defendants, both in failing to pursue complaints of religious harassment and in failing to investigate decedent's disappearance adequately, led to a violation of his constitutional rights to life and religious freedom. We have analyzed these claims and have found them lacking adequate bases in either fact or law to warrant discussion in a written opinion. See R. 2:11-3(e)(1)(E). The dismissal of the 1983 claim against the West New York defendants was also correct.

VII

For the reasons we have given, the dismissals of all counts of the complaint are affirmed.

 

* These Guidelines were not provided as part of the record on appeal. They may be located at the Division of Criminal Justice Website (http://www.state.nj.us/lps/dcj/agguide/homicide.htm).

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A-6710-03T3

May 4, 2006