NOAH H. THOMPSON v. TOWNSHIP OF EAST BRUNSWICK EAST BRUNSWICK POLICE DEPARTMENT, FRANK LOSACCO individually and in his official capacity KEVIN BISHOP, individually and in his official capacity RUSSELL MACARTHUR individually and in his official capacit

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3969-11T2

NOAH H. THOMPSON,

Plaintiff-Appellant,

v.

TOWNSHIP OF EAST BRUNSWICK,

EAST BRUNSWICK POLICE

DEPARTMENT, FRANK LOSACCO,

individually and in his

official capacity, KEVIN

BISHOP, individually and in

his official capacity,

RUSSELL MACARTHUR, individually

and in his official capacity,

Defendants-Respondents.

_______________________________________

January 11, 2013

Argued December 11, 2012 Decided

Before Judges Reisner, Yannotti and Harris.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-7048-09.

Raj Gadhok argued the cause for appellant (Kozyra & Hartz, L.L.C., attorneys; Mr. Gadhok, of counsel; Mr. Gadhok and Margret M. McBurney, on the brief).

Christopher J. Killmurray argued the cause for respondents (Hoagland, Longo, Moran, Dunst & Doukas, L.L.P., attorneys; Mr. Killmurray, of counsel; Jennifer A. Passannante, on the brief).

PER CURIAM

Plaintiff Noah H. Thompson appeals from orders entered by the Law Division granting summary judgment to defendants. We affirm.

I.

On April 18, 2011, Duron Powell (Powell) asked plaintiff to drive him to the Township of East Brunswick's (Township) municipal building so that he could speak to the municipal court clerk. Plaintiff's was Powell's neighbor. Plaintiff agreed to drive Powell to the municipal building for a fee. After they arrived there, Powell entered the building. Plaintiff waited outside for Powell about thirty minutes and then went inside. His movements were recorded by closed circuit surveillance cameras.

At his deposition, plaintiff testified that he asked the municipal clerk what was taking so long, and she replied that the computer was down because the building was being renovated. According to plaintiff, the clerk said the old equipment was being taken out and new equipment brought in.

At around 11:38 a.m., plaintiff opened the door and appeared to be leaving the building. He then turned around and walked towards the office of the municipal prosecutor. Plaintiff looked around, apparently checking to see if anyone was around. Plaintiff entered the prosecutor's office, picked up a telephone and took it to his car. Plaintiff said he "figured it was garbage."

A short time later, plaintiff re-entered the building and walked to the municipal court's violations window where Powell was located. About fifteen minutes later, Powell finished with the clerk. Powell and plaintiff exited the building, got into plaintiff's car, and drove out of the parking lot. Plaintiff dropped off Powell on the highway, and he drove to Linden.

After it was discovered that the phone was missing from the prosecutor's office, Township police officer Frank LoSacco (LoSacco) observed police officer Russell MacArthur (MacArthur) and Bob Greco, the Township's maintenance supervisor, review the footage from the building's surveillance cameras. LoSacco testified that plaintiff was the only person who entered the prosecutor's office between the time the phone was last seen and the time it was found to be missing.

LoSacco endeavored to ascertain plaintiff's identity. He saw that plaintiff had been with Powell and obtained Powell's contact information. LoSacco called Powell and told him that he and plaintiff must return to the police station. Powell asked what this was about, and LoSacco told him they would discuss it when they got to the station. Powell stated that he would "get" plaintiff. Later, Powell called LoSacco. He said he had spoken to plaintiff and informed him that they had to return to the police station.

Plaintiff testified, however, that after he left the municipal building and dropped Powell off, he went directly to a funeral in Linden. He said he returned later to the Township's offices on his own. The surveillance footage shows that plaintiff arrived outside the municipal building around 4:45 p.m.

Plaintiff had a black plastic bag in his hand. He entered the building, spoke briefly to two people who were sitting outside the prosecutor's office. Plaintiff knocked on the door of the prosecutor's office, dropped the bag off, and left the building. He got into his car and drove away.

The following day, the police dispatcher issued an alert for plaintiff's vehicle and license plate. Township police officer Kevin Bishop (Bishop) observed plaintiff's car in a commercial parking lot and activated the lights on his police vehicle. According to Bishop, plaintiff tried to exit the parking lot. Bishop positioned his car to block him.

Bishop approached and asked plaintiff for his vehicle registration and insurance card. The registration had expired, and plaintiff did not present proof of insurance coverage. Bishop ascertained plaintiff's identity, and confirmed that he was the person who prompted the dispatcher's alert. Bishop spoke with Sergeant Csizmar (Csizmar) and learned that plaintiff had apparently stolen a phone from the prosecutor's office.

The dispatcher conducted a warrant check for plaintiff and learned that plaintiff had an outstanding warrant for his arrest. When questioned by Bishop, plaintiff denied that he had been at the prosecutor's office. Bishop told plaintiff to exit the car, and he arrested plaintiff based on the outstanding warrant and the information Csizmar provided to him. According to plaintiff, Bishop said, "You come into our house and take something. I'll tell you what we do to people who come into our house and take something."

Another officer who reported to the scene told plaintiff that he should not have taken the phone. Plaintiff admitted that he replied, "Yea well I'm guilty." Plaintiff said, however, that he was not provided with Miranda1 warnings before he made that statement. Plaintiff was placed in a police vehicle, remained there for about fifteen or twenty minutes, and was then transported to police headquarters. His vehicle was towed away.

Plaintiff was brought into the police department's holding area and seated on a bench. His right wrist was handcuffed to the bench. After about ten minutes, LoSacco advised plaintiff he was under arrest for stealing. Plaintiff still had not been provided with Miranda warnings. Plaintiff did not deny that Powell had called him and told him to contact LoSacco. LoSacco informed plaintiff of his Miranda rights.

Shortly thereafter, plaintiff asked to call the pastor of his church. He signed the Miranda warnings card. LoSacco told plaintiff he could call his pastor after further processing. LoSacco then asked plaintiff if he wanted to talk about the events of that afternoon, and plaintiff said, "Yes, that's fine."

According to defendants, plaintiff admitted taking the phone, but plaintiff said that he did so under the mistaken belief that the phone was going to be discarded. LoSacco asked plaintiff to provide a recorded statement, but plaintiff said he first wanted to speak to his pastor and lawyer. LoSacco agreed but told plaintiff he had an outstanding warrant for his arrest. LoSacco permitted plaintiff to make a call.

Plaintiff called his pastor but was unable to reach him. He agreed to make a recorded statement but told LoSacco he wanted to speak with an attorney before making the statement. LoSacco agreed. Several minutes later, plaintiff asked LoSacco what was going on. A short time later, plaintiff said he wanted to make a taped statement. LoSacco took plaintiff to a room where he made the statement. Plaintiff was thereafter returned to the holding area.

At around 8:39 p.m., LoSacco presented plaintiff with the complaint. Plaintiff called his niece, his father and a friend. About twenty minutes later, the handcuffs were removed, plaintiff had a drink of water, and his photograph taken. Shortly thereafter, plaintiff was again handcuffed to the bench. Plaintiff was thereafter told he had been charged with theft and possession of stolen property. He also was charged with driving with a cracked windshield and failing to maintain automobile insurance.

On June 14, 2007, defendant was found guilty of theft and receiving stolen property in the municipal court. Defendant appealed to the Law Division, and the Law Division judge found defendant not guilty. In his decision, the judge concluded that plaintiff's statement was taken in violation of his Fifth Amendment rights, and the judge determined that the statement was "of no evidential value."

Considering the charges against defendant, the Law Division judge noted that while plaintiff had initially removed the phone from the prosecutor's office, he had brought the phone back to the municipal building. The judge stated:

I honestly believe that [plaintiff] did not have the mens rea to commit the crime or offenses that are charged against him. I believe that there was a form of renunciation. It was clear that he was remorseful for having the mistaken belief that the equipment was in fact abandoned property but I don't believe that if I look at the spirit of our [Criminal Code], which is to punish evil when there's intent to commit evil, I don't find that to be the case here.

II.

On August 20, 2009, plaintiff filed a complaint in the Law Division and named the Township, its police department, LoSacco, Bishop and MacArthur as defendants. Plaintiff asserted claims under 42 U.S.C.A. 1983, 1985 and 1986 based on alleged violations of the Fifth and Fourteenth Amendments to the United States Constitution. He also asserted claims of malicious prosecution, intentional and negligent infliction of emotional distress, and violations of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -49, and New Jersey's public policy.

On June 24, 2011, defendants filed a motion for summary judgment. The court dismissed plaintiff's emotional distress claims as barred by the applicable statute of limitations. The court dismissed the federal civil rights claims against the individual officers on the basis of qualified immunity, noting that there was no evidence that they violated any clearly established constitutional right.

The court refused, however, to dismiss the malicious prosecution claim because there was a genuine issue of material fact as to whether the individual police officer defendants had probable cause to prosecute the offenses, and whether they acted with actual malice. The court also refused to dismiss the claims against the public entity defendants, concluding that there was a genuine issue of material fact as to the training of the police, and whether these defendants acted with deliberate indifference to the police officers' actions.

In addition, the court refused to dismiss plaintiff's claim for punitive damages, stating that there was a issue of fact as to whether defendants acted with malice. The court memorialized its decision in an order dated August 19, 2011.

On August 31, 2011, defendants filed a motion for reconsideration of the court's decision regarding the malicious prosecution claim, the claims against the public entity defendants, and the claim for punitive damages. Plaintiff filed a cross-motion for reconsideration of the court's decision to dismiss his claims against the individual defendants.

The court thereafter denied plaintiff's motion and granted defendants' motion in part. The court dismissed plaintiff's claims for punitive damages, concluding that such damages could not be awarded against a municipal entity. The court again refused to dismiss plaintiff's malicious prosecution claim. The court entered an order dated September 16, 2011, memorializing its decision.

On January 20, 2012, defendants sought reconsideration of the court's orders, seeking dismissal of all of plaintiff's remaining claims. Plaintiff then filed a cross-motion for reconsideration, again seeking reinstatement of the claims against the individual officers, his punitive damages claim, and his claim of racial discrimination, which had been previously dismissed for lack of evidence.

The court determined that plaintiff's malicious prosecution claim must be dismissed because the Township's police officers had probable cause to prosecute plaintiff for theft and receipt of stolen property. The court concluded that, because the officers had probable cause to pursue the charges against plaintiff, they did not act with malice. Therefore, plaintiff could not sustain the claims against the individual officers or the public entity defendants.

In addition, the court determined that the federal civil rights claims against the public entities must be dismissed because there was "no evidence of any instance of constitutional deprivation that could be considered the result of any policy, statement, ordinance, regulation, or decision officially adopted and promulgated by" the public entity defendants.

The court entered an order dated February 22, 2012, granting defendants' motion and denying plaintiff's cross-motion. This appeal followed.

III.

Plaintiff argues that the trial court erred by granting summary judgment on his various claims.

We note initially that when reviewing a trial court order granting summary judgment, we apply the same standard that is applied by the trial court when it determines whether such relief is warranted. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.) (citing Antheunisse v. Tiffany & Co., Inc., 229 N.J. Super. 399, 402 (App. Div. 1988), certif denied, 115 N.J. 59 (1989)), certif. denied, 154 N.J. 608 (1998). Summary judgment should be granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

Furthermore, "[a]n 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." R. 4:46-2(c). "If there exists a single unavoidable resolution of [an] alleged disputed issue of fact, that issue should be considered insufficient to constitute a 'genuine' issue of material fact." Brill, supra, 142 N.J. at 540 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2548, 2511, 91 L. Ed. 2d 202, 213 (1986)).

A.

Plaintiff argues that the trial court erred by dismissing his federal civil rights claims, his common law malicious prosecution claim, and his claim for punitive damages. We do not agree.

Qualified immunity is an affirmative defense to a claim brought under 42 U.S.C.A. 1983. Schneider v. Simonini, 163 N.J. 336, 354 (2000) (citing Gomez v. Toledo, 446 U.S. 635, 640-41, 100 S. Ct. 1920, 1923-24,64, L. Ed.2d 572, 577-78 (1980)). Plaintiff concedes that qualified immunity is also a defense to his claims under 42 U.S.C.A. 1985 and 1986, since those claims are derived from his claim under 42 U.S.C.A. 1983. Where, as here, a police officer is sued for violating a clearly established federal constitutional or statutory right, the officer will be entitled to qualified immunity if he can establish "(1) that he or she acted with probable cause; or, (2) 'even if probable cause did not exist, that a reasonable police officer could have believed in its existence.'" Id. at 355 (quoting Kirk v. City of Newark, 109 N.J. 173, 184 (1988)).

Furthermore, probable cause is a defense to a claim of malicious prosecution. Lind v. Schmid, 67 N.J. 255, 262 (1975). Indeed, "the essence" of a malicious prosecution claim is the lack of probable cause. Ibid. A plaintiff pursuing such a claim must "establish a negative, namely, that probable cause did not exist." Id. at 262-63.

Probable cause exists if "'the facts and circumstances within [the officer's] knowledge and of which [he] had reasonable trustworthy information were sufficient to warrant a prudent man in believing that the [suspect] had committed or was committing an offense.'" Wildoner v. Ramsey, 162 N.J. 375, 389 (2000) (quoting Beck v. Ohio, 379 U.S. 89, 91, 85 S. Ct. 223, 225, 13 L. Ed. 2d 142, 145 (1964)). A police officer is entitled to qualified immunity, even if officers of reasonable competence could disagree on whether probable cause existed. Connor v. Powell, 162 N.J. 397, 409 (2000) (citing Malley v. Briggs, 475 U.S. 335, 341, 106 S. Ct. 1092, 1096, 89 L. Ed. 2d 271, 278 (1986)).

We are satisfied that the trial court correctly determined that the defendant police officers had probable cause to charge plaintiff with theft and receiving stolen property. As we explained previously, the surveillance tapes in the municipal building revealed that plaintiff had entered the office of the municipal prosecutor. He took a phone and left the building with it. Later that day, plaintiff returned the phone to the prosecutor's office, but he only did so after LoSacco contacted Powell and told him that plaintiff should contact him. Based on this information, a reasonably prudent police officer could conclude that plaintiff had committed the offenses with which he was charged.

Plaintiff argues, however, that there were genuine issues of material fact as to whether the officers had probable cause to charge him with the offenses. In support of this argument, plaintiff relies upon an expert report of Joseph J. Blaettler (Blaettler), who opined that the officers did not possess probable cause to charge plaintiff with any offense. Blaettler asserts that, as the lead investigating officer, LoSacco had a duty to conduct a full investigation of the matter before filing any charges.

Plaintiff asserts that such an investigation would have revealed that his taking of the telephone "was nothing more than a misunderstanding." Plaintiff claims that he told the officers that he took the phone because he had been told that the Township was removing all of the old equipment from the office and bringing in new equipment. Plaintiff asserts that he believed it would be permissible to take the phone "for donation to his church." He says that the officers merely had to make a "quick telephone call" to confirm the truth of his statements.

We are not convinced by these arguments. Further investigation of the incident would not have yielded evidence that would disprove what was clearly shown on the surveillance tapes. The tapes show plaintiff taking the phone and leaving the building with it. The police had no evidence indicating that anyone gave plaintiff permission to take the phone. The fact that plaintiff had an explanation for his actions does not preclude a finding of probable cause.

Moreover, the police were not under any legal obligation to conduct a further investigation into the matter before filing the complaint. Indeed, when an individual is arrested without a warrant, the arresting officer is required to file a complaint immediately. R. 3:4-1. An arresting officer is not required to investigate every possible defense an individual may have before filing a criminal complaint.

Plaintiff additionally argues that there was a genuine issue of material fact as to whether the police officers acted with malice when they filed the complaint. Plaintiff therefore contends that the trial court erred by dismissing his malicious prosecution claim.

Plaintiff's malicious prosecution claim failed as a matter of law because the officers had probable cause to charge him with the offenses. Lind, supra, 67 N.J. at 262-63. Therefore, we need not consider whether plaintiff presented sufficient evidence to show that the officers were actuated by malice when they did so. Id. at 262.

In addition, plaintiff contends that the trial court erred by dismissing his claim for punitive damages against the individual defendant officers. Plaintiff argues that the punitive damage claim should be reinstated because his claims against the defendant police officers were erroneously dismissed. However, because the trial court correctly determined that the officers were entitled to summary judgment on the federal civil rights claims and the malicious prosecution claim, the punitive damage claims against these defendants also were properly dismissed.

B.

Next, plaintiff argues that the trial court erred by granting summary judgment to the public entity defendants on his federal civil rights claims. Again, we disagree.

A local government entity generally cannot be held liable under 42 U.S.C.A. 1983 for the deprivation of constitutional rights by its employees or officers. Stomel v. City of Camden, 192 N.J. 137, 145 (2007) (citing Monell v. Dep't. of Soc. Servs., 436 U.S. 658, 690-91, 98 S. Ct. 2018, 2035-36, 56 L. Ed. 2d 611, 635-36 (1978)). However, an exception to this rule "exists when an official municipal 'policy or custom, whether made by its lawmakers or by those whose edicts or acts may be fairly be said to represent official policy,' is the cause of the constitutional deprivation." Ibid. (citing Monell, supra, 436 U.S. at 694, 98 S. Ct. at 2037-38, 56 L. Ed. 2d at 638).

"The term 'official policy' usually refers to formal governmental rules or practices." Id. at 146 (citing Pembaur v. City of Cincinnati, 475 U.S. 469, 480-81, 106 S. Ct. 1292, 1299, 89 L. Ed. 2d 452, 463 (1986)). Nevertheless, under certain circumstances, "a single act or decision by a municipal policymaker can impute liability to the municipality." Ibid. (citing Pembaur, supra, 475 U.S. at 480, 106 S. Ct. at 1298, 89 L. Ed. 2d at 463).

Thus, a local government entity may be liable under 42 U.S.C.A. 1983 for the single act or decision of a municipal employee when (1) the government entity has officially sanctioned or ordered the employee to take the act or decision; (2) the employee has final policymaking authority, as determined in accordance with state law; and (3) the action was taken pursuant to an official policy adopted by the employee or by officials responsible under state law for making policy in that particular field of endeavor. Ibid. (citing Loigman v. Twp. Comm. of Middletown, 185 N.J. 566, 591 (2006)).

Plaintiff contends that the public entity defendants may be liable here for what plaintiff claims is an unconstitutional custom, policy and/or practice related to criminal prosecutions. He alleges that the Township and its police department have not established any guidelines or policies regarding proper methods of investigation and prosecution of criminal charges, and failed to provide their police officers with training in these areas.

In support of this claim, plaintiff cites his allegedly coerced confession; the police officers' failure to conduct a further investigation of the matter before filing charges; MacArthur's failure to take action after he conducted an internal affairs investigation of the officers' conduct; and MacArthur's alleged conflict of interest in undertaking that investigation after he allegedly initiated the investigation of plaintiff. Plaintiff also relies upon Blaettler's report, in which he points to a lack of probable cause for the charges; improper treatment and interrogation by the police officers; a lack of evidence for the charges; and a lack of supervision of Bishop and LoSacco.

We are convinced, however, that this evidence is insufficient to show that the actions taken by the municipal officers constitute an "official policy" of the public entity defendants, which would subject them to liability under 42 U.S.C.A. 1983. We are satisfied that there is no evidence that the manner in which the charges were filed against plaintiff was in furtherance of any official custom, policy and/or practice regarding the handling of criminal cases.

Accordingly, the trial court correctly determined that there were no genuine issues of material fact and defendants were entitled to judgment as a matter of law.

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).