DENISE CAPIZZI v. BERKELEY TOWNSHIP

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2185-12T4

DENISE CAPIZZI,

Plaintiff-Appellant,

v.

BERKELEY TOWNSHIP, THE

BERKELEY TOWNSHIP POLICE

DEPARTMENT, JOHN WEINLEIN,

Individually and as Chief

of Police of the Berkeley

Township Police Department,

TIMOTHY MCNICHOLS, Individually

and as a member of the Berkeley

Township Police Department,

Defendants-Respondents.

____________________________________

December 9, 2013

Argued November 14, 2013 Decided

Before Judges Fuentes, Simonelli and Fasciale.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-2573-09.

Robyn B. Gigl argued the cause for appellant (Stein, McGuire, Pantages & Gigl, attorneys; Ms. Gigl, of counsel and on the brief).

Eric M. Bernstein argued the cause for respondents Township of Berkeley, Berkeley Township Police Department, and John Weinlein (Eric M. Bernstein & Associates, LLC, attorneys; Mr. Bernstein, of counsel and on the brief; Philip G. George, on the brief).

Lori A. Dvorak argued the cause for respondent Timothy McNichols (Dvorak & Associates, LLC, attorneys; Ms. Dvorak, of counsel; Amanda E. Miller, on the brief).

PER CURIAM

Plaintiff appeals from a December 4, 2012 order granting summary judgment and dismissing her amended complaint against defendants Berkeley Township ("Township"), The Berkeley Township Police Department ("Police Department"), John Weinlein individually and as Chief of Police, and Timothy McNichols individually and as a member of the Police Department (collectively "defendants").1 We affirm substantially for the reasons expressed by Judge Mark A. Troncone in his thorough written opinion.

Our review of a ruling on summary judgment is de novo, applying the same legal standard as the trial court. Nicholas v. Mynster, 213 N.J.463, 477-78 (2013); Tymczyszyn v. Columbus Gardens, 422 N.J. Super. 253, 261 (App. Div. 2011), certif. denied, 209 N.J.98 (2012). Thus, we consider, as the trial judge did, "'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995)). Against this standard, we discern the following facts from the record.

In February 2002, the Township hired plaintiff as a civilian police dispatcher. In November 2003, plaintiff began a romantic relationship with the then married McNichols, who impregnated her and insisted that she terminate the pregnancy. On March 8, 2004, McNichols took plaintiff to the Pleasant Woman's Pavilion clinic (the "clinic"), where she reluctantly received an injection of Methotrexate in order to terminate the pregnancy. Plaintiff immediately attempted on her own, however, to counteract that drug by taking large quantities of folic acid and by consulting her obstetrician/gynecologist, Dr. Robert J. Montemurro. Plaintiff certified that on March 18, 2004, Dr. Montemurro advised her that although there was a viable heart rate, she could still lose the fetus. Dr. Montemurro referred plaintiff to a medical specialist.

On March 30, 2004, plaintiff slipped and fell at work. The next day, she went to the emergency room and learned that she had a miscarriage. The hospital records do not reflect that plaintiff attempted to terminate the pregnancy before her fall. Upon release from the hospital, plaintiff had a medical evaluation at Ocean Bay Occupational Medical Center ("Ocean Bay"), a facility that provided medical treatment for Township employees for job-related injuries.

In April 2004, plaintiff ended her relationship with McNichols. Because she believed that the Township was protecting McNichols from discipline for his relationship with her, in "late April/early May 2004," she reported to an investigator at the Ocean County Prosecutor's Office that McNichols would "come to [her] house while he was on duty." Plaintiff did not tell the investigator that she had attempted to end the pregnancy. After speaking to Weinlein about plaintiff's report, the investigator told plaintiff to "just relax and go back to work."

On May 18, 2004, plaintiff filed a workers' compensation claim petition indicating that she suffered a miscarriage related to the workplace slip and fall accident. She did not mention in the claim petition that she had attempted an abortion on March 8, 2004. The record does not indicate that plaintiff informed the workers' compensation claims adjuster that she received the Methotrexate injection. The workers' compensation carrier paid plaintiff $1121.

In approximately "April/May 2004," McNichols notified his superiors that plaintiff underwent an abortion on March 8, 2004. On May 12, 2004, Weinlein reported to the prosecutor's office that plaintiff may have committed insurance fraud by reporting in her workers' compensation claim petition that the miscarriage was related solely to the slip and fall accident. An investigator in the insurance fraud unit of the prosecutor's office undertook an independent investigation.

On June 11, 2004, two investigators from the prosecutor's office arrested plaintiff and charged her with committing insurance fraud. At the time of the arrest, plaintiff admitted to one of the arresting investigators that she unsuccessfully attempted to terminate the pregnancy. On September 28, 2004, a grand jury indicted plaintiff for second-degree insurance fraud, N.J.S.A. 2C:21-4.6.2 After a further investigation, in February 2005, the prosecutor dismissed the insurance fraud charges.

In August 2009, plaintiff filed her amended complaint against defendants. Plaintiff alleged that defendants violated her civil rights and engaged in intentional infliction of emotional distress by maliciously pursuing prosecutions for insurance fraud and official misconduct. Defendants filed motions for summary judgment and the judge conducted oral argument.

Judge Troncone issued a forty-five page written decision in support of his order granting summary judgment to defendants. The judge separately analyzed whether to dismiss the two malicious prosecution counts in the amended complaint. He relied on Winters v. North Hunterdon Regional Fire & Rescue, 212 N.J. 67 (2012), and dismissed one count alleging that defendants engaged in malicious prosecution by proceeding with the official misconduct charge. The judge then concluded that plaintiff was unable to make a prima facie case of malicious prosecution by pursuing an insurance fraud charge, and granted defendants summary judgment, dismissing the remaining counts in the amended complaint regarding civil rights violations and intentional infliction of emotional distress.

On appeal, plaintiff argues primarily that there are genuine issues of material fact that preclude summary judgment. Plaintiff also contends that the judge erred by relying on Winters and applying the doctrine of collateral estoppel to dismiss the malicious prosecution count regarding official misconduct. We affirm substantially for the reasons expressed by the judge and add the following remarks.

I.

We reject plaintiff's contention that the judge erred by dismissing the count alleging defendants engaged in malicious prosecution by pursuing the insurance fraud charge. Plaintiff must establish the following elements to prevail on her malicious prosecution claim: (1) defendants instituted criminal proceedings against plaintiff; (2) defendants acted with malice; (3) there was no probable cause for the proceedings; and (4) the action was terminated favorably to the plaintiff. Lind v. Schmid, 67 N.J. 255, 262 (1975). While malicious prosecution claims are generally disfavored, if plaintiff can establish a prima facie case, then "'one who recklessly institutes criminal proceedings without any reasonable basis should be [held] responsible for such irresponsible action.'" Epperson v. Walmart Stores, Inc., 373 N.J. Super. 522, 534 (App. Div. 2004) (alteration in original) (quoting Lind, supra, 67 N.J. at 262). Plaintiff argues that there are material factual disputes regarding the first three prongs.

In determining prong one institution of a criminal complaint against plaintiff the question is whether defendants took "'some active part in instigating or encouraging the prosecution' or 'advis[ing] or assist[ing] another person to begin the proceeding, [or by] ratif[ying] it when it is begun in defendant's behalf, or [by] tak[ing] any active part in directing or aiding the conduct of the case.'" Epperson, supra, 373 N.J. Super. at 531 (alterations in original) (citation omitted). Here, plaintiff contends that defendants instituted criminal proceedings against her because McNichols and Weinlein reported that plaintiff may have committed insurance fraud. In rejecting the first prong, the judge stated that

[o]ther than the bald assertions in the plaintiff's counterstatement of material facts as to their motives, there is simply no evidence elsewhere in the record that McNichols or Weinlein provided false or misleading information to the Prosecutor or were in any meaningful way involved in the investigation of this matter that led to the plaintiff's arrest and the presentment to the Ocean County Grand Jury, resulting in the plaintiff's indictment on insurance fraud charges.

We agree with the judge. The investigation by the prosecutor's office consisted of: (1) questioning Weinlein; (2) reviewing plaintiff's hospital records relating to the slip and fall accident; (3) reviewing treatment records from Ocean Bay; (4) reviewing the workers' compensation claims file; (5) obtaining a search warrant to search records from the clinic; and (6) reviewing two medical notes (dated March 29 and 30, 2004) purportedly from Dr. Montemurro indicating that plaintiff was unable to work "[sixteen] hours straight due to her GYN problem."

Even if McNichols did not inform Weinlein that plaintiff believed the fetus was still viable at the time of the slip and fall, the prosecutor presented the matter to the grand jury based on a thorough investigation. The prosecutor's investigation revealed that plaintiff did not disclose her attempt to terminate the pregnancy (1) in the emergency room or hospital visit immediately following her slip and fall accident; (2) to anyone at Ocean Bay; or (3) in her workers' compensation claim petition. The investigator obtained medical records generated before the slip and fall showing that plaintiff attempted to end the pregnancy and had a "GYN problem" precluding plaintiff from working long hours. In addition, plaintiff stated to the arresting investigator that she thought that the fetus was viable at the time of the slip and fall. Thus, the record belies any suggestion that defendants took some active part in instigating or encouraging the prosecution of plaintiff for insurance fraud.

Regarding the second prong that defendants acted with malice we agree with plaintiff, giving her the benefit of all reasonable inferences as we must, that malice can be inferred from the circumstances. Nevertheless, plaintiff cannot establish the third prong of a prima facie case of malicious prosecution, that there was no probable cause to indict her for insurance fraud. A grand jury's role is not to weigh the evidence, but rather to determine whether criminal proceedings should be commenced. State v. Hogan, 144 N.J. 216, 235 (1996). The indictment charges plaintiff with making and omitting misleading statements of material fact in her claim petition and to the workers' compensation carrier. See N.J.S.A. 2C:21-4.6a (enumerating the elements of the crime). It is undisputed that plaintiff omitted from her workers' compensation case any reference that she attempted an abortion before her slip and fall accident and knew, before that accident, that she might lose the fetus. As a result, plaintiff cannot demonstrate prong three. We conclude, therefore, that plaintiff cannot demonstrate a prima facie case that defendants engaged in malicious prosecution by notifying the prosecutor's office of potential insurance fraud.

II.

Plaintiff argues that the judge erred by dismissing the count alleging malicious prosecution regarding the official misconduct charges. In Winters, the Court stated that

if an employee and employer engage the system of public employee discipline established by law and the employee raises a claim that employer retaliation at least partially motivated the decision to bring the charge or the level of discipline sought, then both the employee and employer must live with the outcome, including its potential preclusive effect on related employment-discrimination litigation as a matter of the equitable application of estoppel principles.

[Winters, supra, 212 N.J. at 73.]

The Court affirmed its previous holding in Hennessey v. Winslow Township, 183 N.J. 593, 599-600 (2005), by stating that "estoppel principles can apply to findings made in administrative proceedings and affect subsequent judicial proceedings." Ibid. The Civil Service Commission's finding in this case that plaintiff altered the police record, which we affirmed, precludes plaintiff's allegation that defendants engaged in malicious prosecution by alerting the prosecutor to such wrongdoing.

III.

We reject plaintiff's argument that the judge erred by dismissing her claim for intentional infliction of emotional distress. To establish a prima facie case of intentional infliction of emotional distress, a plaintiff must show that: (1) the defendant acted intentionally; (2) the defendant's conduct was "'so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community'"; (3) the defendant's actions proximately caused him/her emotional distress; and (4) the emotional distress was "'so severe that no reasonable [person] could be expected to endure it.'" Segal v. Lynch, 413 N.J. Super. 171, 191 (App. Div.) (alteration in original) (quoting Buckley v. Trenton Saving Fund Soc., 111 N.J. 355, 366 (1988)), certif. denied, 203 N.J. 96 (2010). Here, the judge correctly concluded that there was insufficient evidence in which a rational jury could find a legal basis to hold defendants accountable on this standard of liability. The judge concluded that

[w]hether McNichols was motivated by revenge as suggested by the plaintiff or by his true fear that he would be caught up in some fraudulent scheme of the plaintiff, the facts reported by him to Weinlein were essentially true, i.e.[,] that the plaintiff did not disclose the preceding abortion procedure within her Worker's Compensation claim.

The judge emphasized that in a later interview, McNichols disclosed to the prosecutor that plaintiff informed him she was unwilling to terminate the pregnancy. Regarding Weinlein, there is no basis in the record on which would to conclude that he engaged in conduct "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community."

IV.

Next, plaintiff maintains primarily that McNichols and Weinlein deprived her of her due process rights by providing false information to the prosecutor. Plaintiff contends this violated her civil rights under 42 U.S.C. 1983, which provides:

Every 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. . . 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.

To prevail on this claim, plaintiff must establish that defendants (1) deprived her of a constitutionally protected civil right; (2) acted under the color of state law, Gomez v. Toledo, 446 U.S. 635, 640, 100 S. Ct. 1920, 1923, 64 L. Ed. 2d 572, 577 (1980); and (3) proximately caused plaintiff's injury, Board of the County Commissioners of Bryant County, Oklahoma v. Brown, 520 U.S. 397, 415, 117 S. Ct. 1382, 1394, 137 L. Ed. 2d 626, 646 (1997). Against this standard of liability, we conclude that plaintiff cannot establish a prima facie case of a Section 1983 violation.

After a thorough review of the record and consideration of the controlling legal principles, we conclude that plaintiff's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

1 The pertinent causes of action in plaintiff's amended complaint relate solely to plaintiff's arrest and prosecution.

2 The grand jury also returned a separate indictment against plaintiff charging her with second-degree official misconduct, N.J.S.A. 2C:30-2. This indictment arose out of allegations that plaintiff falsified a police record. In connection with this allegation and other alleged wrongdoings, the Township filed disciplinary charges against plaintiff. The Civil Service Commission (the "Commission") upheld a decision by an Administrative Law Judge (ALJ) finding that plaintiff engaged in inappropriate conduct, and we affirmed the Commission's final agency decision. In re Capizzi, No. A-3653-09 (App. Div. Aug. 9, 2012). The official misconduct charge was downgraded to a disorderly persons offense, and plaintiff was acquitted in municipal court.