PAUL MARINACCIO v. FANWOOD BOROUGH FANWOOD MUNICIPAL COURT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

PAUL MARINACCIO,

Plaintiff-Appellant,

v.

FANWOOD BOROUGH, FANWOOD MUNICIPAL COURT

JUDGE SUSAN MACMULLAN, FANWOOD MUNICIPAL

PROSECUTOR DANIEL ANTONELLI, MUNICIPAL

COURT PUBLIC DEFENDER MICHELE JAKER, and

FANWOOD POLICE OFFICER MARC GOTTLICK,

Defendants-Respondents.

_____________________________________________________

Argued April 23, 2013 Decided May 1, 2013

Before Judges Reisner and Hayden.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-649-11.

Paul Marinaccio, appellant, argued the cause pro se.

Adam Kenny argued the cause for respondents (Weiner Lesniak, L.L.P., attorneys; Mr. Kenny and Brad M. Weintraub, of counsel and on the brief).

PER CURIAM

Plaintiff, Paul Marinaccio, appeals from the June 21, 2012 Law Division order granting summary judgment to defendants. For the reasons that follow, we affirm.

We discern the following facts from the record. On January 17, 2009, plaintiff received a municipal summons from Fanwood Police Corporal Marc Gottlick for public urination. According to plaintiff, on this very cold evening, he was traveling by bicycle when he stopped to readjust his clothing to prevent the wind from blowing on his torso. Plaintiff stood with his back facing a police car and lifted his outer jacket to tuck two or three layers of the clothing into his pants. Gottlick ran toward plaintiff and asked for his identification. Plaintiff gave Gottlick his driver's license, which Gottlick returned to him after a lengthy period along, with a summons for public urination.

On February 26, 2009, plaintiff, appearing without an attorney, pled guilty to the municipal ordinance violation and agreed to pay a fine and court costs. However, because plaintiff felt he had been coerced by the prosecutor, defendant Daniel Antonelli, and the judge, defendant Susan MacMullan, plaintiff wrote a letter to the court on February 28, 2009, declaring his guilty plea "null and void."

Plaintiff, again without an attorney, returned to the municipal court on May 28, 2009. The municipal judge assigned a public defender, defendant Michele Jaker, to represent plaintiff, despite his express wish to represent himself. With her assistance, plaintiff withdrew his guilty plea and entered a plea of not guilty. Then, the judge, granting the prosecutor's motion, dismissed the complaint with prejudice for the State's inability to prove all the elements of its case.

On January 8, 2011, plaintiff filed a civil action under the New Jersey Civil Rights Act, N.J.S.A. 10:6-1 to -2, against the Borough of Fanwood, Gottlick, Antonelli, Judge MacMullan, and Jaker. He alleged numerous civil rights violations, including threatening false arrest, conspiracy, kidnapping, assault, criminal coercion, misrepresentation, tampering with public documents, and cruel and unusual punishment. He requested $200,000 in punitive damages for mental anguish, suffering, disillusion with government, emotional distress, and irreparably-damaged reputation.

Plaintiff failed to propound any discovery. Following the taking of plaintiff s deposition by defendants, they moved for summary judgment. After hearing argument, Judge Lisa F. Crystal rendered an oral decision on June 21, 2012.

In addressing plaintiff s claims against Fanwood, the judge noted that under the New Jersey Civil Rights Act, modeled after its federal analogue, 42 U.S.C.A. 1983, a municipality may be liable when a policymaking official, either through promulgating or acquiescing in a municipal policy, or through deliberate indifference, causes a citizen's constitutional injury. Here, the judge explained, plaintiff neither alleged nor established that Fanwood s policymakers were deliberately indifferent to plaintiff's constitutional rights. Thus, the judge held that plaintiff had not demonstrated liability of Fanwood for the acts of its officials.

Concerning the claims against Gottlick, Judge Chrystal observed that "[a] public official performing a discretionary function enjoys qualified immunity in a civil action for damages provided his or her conduct does not violate clearly established federal, 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). The immunity, she noted, is immunity from suit rather than a mere defense to liability and, as such, is an entitlement not to stand trial or face the other burdens of litigation. Qualified immunity even protects an officer who operated under a

reasonable mistaken belief. See Karnes v. Skrutski, 62 F.3d 485, 492 n.3 (3d Cir. 1995).

Further, the judge explained, probable cause to arrest exists where the facts and circumstances are sufficient to warrant a reasonable, prudent person to believe an offense has been committed. See Gerstein v. Pugh, 420 U.S. 103, 111, 95 S. Ct. 854, 862, 43 L. Ed. 2d 54, 64 (1975). The ultimate question of the existence of probable cause must be determined by the court. Schneider v. Simonini, 163 N.J. 336, 357-58 (2000). The judge found that, based on the facts presented, Gottlick had probable cause to issue a summons for public urination and that his belief, even if mistaken, was objectively reasonable given the circumstances. As a result, she determined that Gottlick was entitled to qualified immunity from suit.

Finally, as for the remaining defendants, MacMullan, Antonelli, and Jaker, the judge concluded that those defendants were acting within the scope of their official duties and were absolutely immune from liability. See Mireles v. Waco, 502 U.S. 9, 112 S. Ct. 286, 116 L. Ed. 2d 9 (1991); Imbler v. Pachtman, 424 U.S. 409, 96 S. Ct. 984, 47 L. Ed. 2d 128 (1976). Because the judge found there was no genuine issue of material fact as to the merits of plaintiff's claim, she granted summary judgment in favor of defendants.

Plaintiff appealed, limiting the issues to "all claims against defendant Gottlick." Plaintiff raises the following contentions for our consideration:

POINT I: THE COURT DIDN'T PROPERLY DISTINGUISH BETWEEN PROBABLE CAUSE AND REASONABLE SUSPICION.

POINT II: THE COURT RULED THAT POLICEMAN GOTTLICK HAD REASONABLE SUSPICION AND PROBABLE CAUSE BASED ON INFO HE DID NOT HAVE AT THE TIME OF THE INCIDENT ON JAN. 17, 2009.

POINT III: GOTTLICK DID NOT HAVE PROBABLE CAUSE TO MAKE A CHARGE ON JAN. 17, 2009.

POINT IV: THE COURT CONSIDERED ONLY THE DEFENDANT'S SNIPPETS OF THE DEC. 19, 2011 DEPOSITION AND DEFENDANT'S ATTORNEY'S BRIEF.

POINT V: THE DEC. 19, 2011 DEPOSITION HAS NOT YET BEEN COMPLETED.

POINT VI: THE COURT WRONGLY EXCLUDED THE POSSIBILITY THAT COPIES OF (OR TRANSCRIPTS OF) THE INCIDENTS WOULD NOT BE AVAILABLE IF DISCOVERY HAD BEEN ALLOWED TO CONTINUE UNTIL THE DISCOVERY END DATE (NOT ARGUED BELOW).

POINT VII: THE COURT WAS MISTAKEN ABOUT WHEN THE DISCOVERY PERIOD ENDS (NOT ARGUED BELOW).

POINT VIII: HAD DISCOVERY BEEN ALLOWED TO CONTINUE TO ITS END DATE, ITEMS WHICH HAD YET TO BE TURNED OVER TO PLAINTIFF IN RESPONSE TO HIS DEMAND FOR PRODUCTION WOULD HAVE BEEN (NOT ARGUED BELOW).

POINT IX: THE COURT WRONGLY EXCLUDED THE POSSIBILITY THAT COPIES OF SOUND RECORDINGS WOULD BE COPIED ONTO A FORMAT THAT WOULD

ALLOW THEM TO BE ADMITTED INTO EVIDENCE BY THE DISCOVERY END DATE (NOT ARGUED BELOW).

POINT X: THE COURT DID NOT PROPERLY APPLY RULE 4:46 (NOT ARGUED BELOW).

POINT XI: THE FINAL RULING, AS WELL AS THE MOTION FOR SUMMARY JUDGMENT, WERE PREMATURE AS THEY WERE ENTERED FAR TOO LONG BEFORE THE DISCOVERY END DATE (NOT ARGUED BELOW).

POINT XII: THE COURT WRONGLY FAVORED DEPOSITION TESTIMONY, 3 YEARS REMOVED (FROM A MAN THE COURT RULED WAS RIGHTLY ALLEGED TO BE TOO MENTALLY DEFECTIVE TO REPRESENT HIMSELF) OVER ALL OTHER EVIDENCE PRESENTED AND THAT OBVIOUSLY WOULD HAVE BEEN PRESENTED IF DISCOVERY HAD BEEN ALLOWED TO CONTINUE TO ITS END DATE.

POINT XIII: THE COURT DID NOT CONSIDER, OR OVERLOOKED, THE KIDNAPPING OF PLAINTIFF ON FEB. 26, 2009, OR WRONGLY CONSIDERED IT NOT TO BE A VIOLATION OF PLAINTIFF'S CIVIL RIGHTS.

POINT XIV: THE COURT DID NOT CONSIDER, OR OVERLOOKED, THE MATTER OF GOTTLICK'S INTERFERENCE WITH PLAINTIFF'S RIGHT TO CONFER PRIVATELY WITH COUNSEL, PROVING DIRECT INVOLVEMENT IN THE 5/28/09 KIDNAPPING.

POINT XV: THE COURT IMPROPERLY BASED ITS RULING ON MANY FALSITIES THAT HAD BEEN OR WOULD BE PROVEN FALSE HAD DISCOVERY BEEN ALLOWED TO CONTINUE.

POINT XVI: THE COURT DID NOT CONSIDER OR OVERLOOKED THE SIMPLE ASSAULT THAT GOTTLICK COMMITTED AGAINST PLAINTIFF ON JAN. 17, 2 009 AND FEB. 26, 2009.

In reviewing a grant of summary judgment, we apply the same standard as the trial judge in determining whether there are any genuinely disputed issues of material fact sufficient to warrant resolution of the issues by the trier of fact. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). We must first determine whether the moving party has demonstrated that there are no genuine disputes as to material facts, and then decide "whether the motion judge's application of the law was correct." Atl. Mut. Ins. Co. v. Hillside Bottling Co., Inc., 387 N.J. Super. 224, 230-31 (App. Div.), certif. denied, 189 N.J. 104 (2006). In doing so, we view the evidence in a "light most favorable to the non-moving party." Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 329 (2010) (citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)). Because our review of issues of law is de novo, we accord no special deference to the motion judge's legal conclusions. Zabilowicz v. Kelsey, 200 N.J. 507, 512 (2009).

We have engaged in a de novo review of the entire record and we have considered plaintiff's arguments in light of that record and applicable law. Based upon that review, we have determined that none of the arguments is of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

We affirm substantially for the reasons expressed in Judge Chrystal's comprehensive oral opinion of June 21, 2012.

Affirmed.

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