BRIANNA PEREZ v. CITY OF ELIZABETH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet this opinion is only binding on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2932-14T2

BRIANNA PEREZ, a minor by

her Guardian, MARCELLA COOPER,

and MARCELLA COOPER, individually

Plaintiffs-Appellants,

v.

CITY OF ELIZABETH, GRISEL

ARIAS and FRANCISCO R.

CROBAN,

Defendants-Respondents.

October 21, 2016

Argued September 15, 2016 Decided

Before Judges Lihotz and Hoffman.

On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L-4754-11.

Eric S. Pennington argued the cause for appellants (Eric S. Pennington, P.C., attorneys; Mr. Pennington and Samuel R. Bloom, on the briefs).

Robert F. Varady argued the cause for respondent City of Elizabeth (LaCorte, Bundy, Varady & Kinsella, attorneys; Mr. Varady and Christina M. DiPalo, on the brief).

Peter H. Spaeth argued the cause for respondent Grisel Arias (Wolf, Helies, Spaeth & Lucas, P.A., attorneys; Guy P. Ryan, on the brief).

Robert F. Renaud argued the cause for respondent Francisco R. Croban (Palumbo Renaud & DeAppolonio, LLC, attorneys; Mr. Renaud and Catherine M. DeAppolonio, on the brief).

PER CURIAM

Plaintiff Brianna Perez appeals from the Law Division's January 9, 2015 order granting summary judgment and dismissing her complaint against defendants Francisco R. Croban (Officer Croban), Grisel Arias (Officer Arias), and the City of Elizabeth (the City). She also appeals from a February 20, 2015 order denying her motion for reconsideration. Plaintiff claimed she suffered injuries from excessive force used by the officers when they arrested her at a local pizzeria. Plaintiff sued the officers and the City alleging false arrest, false imprisonment, and excessive force, in violation of the New Jersey Civil Rights Act (CRA), N.J.S.A. 10:6-1 to -2, in addition to related common law tort claims.

The trial court held plaintiff's guilty plea in a related juvenile proceeding barred any CRA claim based upon false arrest or false imprisonment. The court further held the permanency and monetary thresholds of the New Jersey Tort Claims Act1 (TCA) barred plaintiff's CRA claim based upon excessive force, as well as her common law tort claims. While the trial court correctly concluded plaintiff's guilty plea barred her from asserting claims based upon false arrest or false imprisonment, we conclude the court erred in dismissing plaintiff's excessive force claim and her common law claims based on willful misconduct. For the following reasons, we affirm in part and reverse, vacate, and remand in part.

I.

On May 28, 2010, Officers Croban and Arias arrested plaintiff at a local pizzeria in Elizabeth. When defendants moved for summary judgment, the parties provided the trial court with very different accounts of why and how this occurred.

A. Defendants' Version of Events.

According to Officers Croban and Arias, they were on routine patrol when civilians alerted them about a problem at a pizzeria. The officers responded to the scene, where they found a juvenile boy, S.D., 2 sitting in a booth near the entrance to the pizzeria. He was hysterically crying because he had just been robbed by a group of adolescents. Neither Officer Croban nor Officer Arias recalled seeing plaintiff's brother or friend in the pizzeria.

The officers were taking S.D.'s statement when plaintiff entered the pizzeria and pushed Officer Croban on her way to reach S.D. When the officers told plaintiff to step aside, plaintiff told them to "back away" and "get the fuck off of me." According to Officer Croban, plaintiff "continue[d] pushing the issue" and "making threats to kill the kids that assaulted [S.D.]." The officers asked plaintiff to step outside until they finished questioning S.D. Plaintiff responded, "No I'm fucking staying right here." She then raised her fists toward the officers as if she were boxing. The officers threatened to place her under arrest for obstruction. Plaintiff replied, "[W]hat the fuck you gonna do?" She then stepped forward toward Officer Croban's face.

When Officer Arias saw plaintiff push Officer Croban, she went "to grab her and to place her under arrest for assaulting my partner." Officer Arias tried to hold plaintiff in place while Officer Croban handcuffed her. Plaintiff started flailing her hands, screaming, "I'm not going to jail." She broke loose from Officer Arias' grip, and her left elbow struck Officer Croban in the face. Officer Croban pushed the back of plaintiff's knee to bring her to the ground. As she fell, plaintiff's face hit one of the tables, injuring her eye. The officers were then able to handcuff plaintiff, who was transported to police headquarters and then to a hospital for treatment. A doctor diagnosed her with an eye contusion.

The officers contend their actions were necessary, given plaintiff's size and strength Officer Croban estimated plaintiff's height at 5'8" or 5'9" and her weight between 250 and 280 pounds. (Plaintiff estimated she weighed 300 pounds at the time of the incident.) Plaintiff also told the officers she was eighteen years old, saying, "[B]ecause I'm 18, you can't do shit to me." (She was actually fourteen years old at the time.)

In response to a complaint filed by plaintiff's mother, the Internal Affairs Unit of the Elizabeth Police Department investigated plaintiff's claims. On September 14, 2010, the Unit concluded

There is no evidence to sustain a complaint that either officer used excessive force or offensive language at any time. To the contrary, the force used was minimal and involved no striking or hitting of [plaintiff]. The [officers] only forced [plaintiff] to the ground to gain control and handcuff her. The injury to her left eye was a direct result of her recalcitrant behavior.

B. Plaintiff's Version of Events.

According to plaintiff, she entered the pizzeria with her seven-year-old brother and two of their friends. She immediately approached S.D., who was alone at the time, and began to comfort him. While with S.D., she heard a man approach her brother and two friends and ask them to "lower the commotion." Sixty seconds later, she heard the man return and say, "[D]idn't I tell you to lower the commotion, you stupid, fat, black B?" 3 At that point, plaintiff looked up and saw Officer Croban, who once again said, "[D]idn't I tell you to shut up, you stupid, fat, black B?" She asked, "[W]hat am I doing?" Officer Croban then swung his right fist to punch her. Plaintiff dodged the punch but lost her balance and fell. She denied injuring her eye on the table, as Officer Croban claimed.

After plaintiff fell to the ground, she attempted to crawl under the table, where she and S.D. had been sitting, when Officer Croban punched her in the back numerous times. Plaintiff said Officer Croban "was . . . punching at me as if I was a giant punching bag." She eventually stood back up, and Officer Croban "wrap[ped] both hands around my throat, [with] both thumbs pressed against . . . my esophagus, and continued to apply pressure and lift[ed] me off my feet and choke[d] me."

While this occurred, plaintiff's younger brother pleaded with Officer Arias to intervene and stop Officer Croban. Her brother eventually gave up and approached Officer Croban and "began to hit the male cop on the back." Although Officer Croban did not initially react, plaintiff said, "[T]he second time my brother attempted to hit the male officer in the back, the male officer still had me with one hand and loosened his other hand and took it and swung it at my brother and said, get out of here, you little N word." After plaintiff's friends escorted her brother out of the pizzeria, Officer Croban proceeded to grab plaintiff's hair, held her head steady, and punched her in the eye. Plaintiff stepped away, fell, and was handcuffed.

At this point, plaintiff said Officer Arias "started speaking out loud saying, niggers out here don't know how to act, this stupid B, this, that, she don't know how to act, she act just like a straight N word." After some back-and-forth between Officer Arias and plaintiff, Officer Arias punched her in the same eye as Officer Croban, with a pair of handcuffs wrapped around her closed fist. Plaintiff claimed she then remained on the floor until more officers arrived and took her to the police station.

One of the two friends, A.A., substantially confirmed plaintiff's version of events. Although he never saw Officer Croban punch plaintiff, A.A. said he saw Officer Arias punch plaintiff with a closed fist wrapped in a pair of handcuffs. Plaintiff's brother also supported plaintiff's version of events.

On October 2, 2012, plaintiff submitted to an independent medical examination (IME) by Dr. Herbert F. Hein.4 Afterwards, he wrote

On today's exam there is no residual swelling of any portion of the left eye. There is a half inch vertical pigmented scar noted on the left lower lid. However, this scar does not produce any problem with the lids opening and closing. It is a cosmetic scar and not functional.

. . . .

[Plaintiff] complains of pain, a scar under left lid and claims that her tear duct may be damaged. This scar has already been mentioned. Pain is a subjective finding and I doubt it is present since the injury occurred over two years go.

I am unable to explain how the accident would have caused the patient's complaints.

She does not need any treatment. She has reached maximum medical improvement.

In addition to her eye injury, plaintiff claimed the incident caused her to suffer post-traumatic stress disorder (PTSD). She submitted to a psychological evaluation for the purpose of this litigation. Although plaintiff's one-time treating psychiatrist diagnosed her with PTSD, plaintiff's reviewing psychologist said "[h]er psychological testing results gave evidence of current moderate posttraumatic symptomology," but her current symptoms did not warrant "a full clinical diagnosis."

C. Juvenile and Civil Complaints.

The Union County Prosecutor's Office filed a juvenile-delinquency complaint, charging plaintiff with conduct that, if committed by an adult, would constitute obstructing the administration of law, N.J.S.A. 2C:29-1; aggravated assault, N.J.S.A. 2C:12-1(b)(5)(a); and resisting arrest, N.J.S.A. 2C:29-2(a). Plaintiff pled guilty to the obstruction charge, admitting to the following facts at the juvenile delinquency hearing, as elicited by her attorney

Q: You went in [the pizzeria], and you were very upset, correct?

A: Yes.

Q: You were crying a lot.

A: Yes.

Q: And would you say that you were being loud?

A: Yes.

Q: And you were hugging each other and crying. And an officer came over and said, you need to lower the commotion, you need to calm down and be quiet, right?

A: Yes.

Q: And then he walked away from you.

A: Yes.

Q: And then but isn't it true you continued to cry and be loud and create a commotion?

A: Yes.

Based on this colloquy, the court adjudicated plaintiff delinquent and granted her a deferred disposition.

On December 29, 2013, plaintiff filed an amended complaint against the officers and the City of Elizabeth, claiming deprivation of her "rights, privileges, and immunities secured by the New Jersey Constitution and the laws of New Jersey," in violation of the CRA, N.J.S.A. 10:6-1 to -2. The complaint also asserted various common law claims, including assault and battery, false arrest, and false imprisonment, as well as various claims sounding in negligence.

At the close of discovery, defendants moved for summary judgment. On January 9, 2015, the court entered an order granting summary judgment for defendants on all counts and dismissing plaintiff's complaint. The court held plaintiff's guilty plea barred "any claim under the [CRA]," pursuant to the doctrine established in Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994), as applied in New Jersey by Bustamante v. Borough of Paramus, 413 N.J. Super. 276 (App. Div. 2010). More specifically, the court found during the juvenile proceedings where plaintiff pled guilty to obstruction of justice, she admitted to facts in "direct contravention" of her CRA claims. The court alternatively dismissed plaintiff's CRA claims, as well as all remaining common law claims, based upon the TCA verbal threshold, concluding plaintiff had neither sustained the necessary permanent injury nor the $3600 in medical treatment expenses required to meet the threshold. Because the court concluded the officers were not liable, it also held the City could not be liable for any type of Monell5 claim.

Plaintiff filed a motion for reconsideration, which the court denied on February 20, 2015. This appeal followed.

II.

This court reviews a trial court's summary judgment decisions de novo and "employ[s] the same standard [of review] that governs the trial court." Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010) (quoting Busciglio v. DellaFave, 366 N.J. Super. 135, 139 (App. Div. 2004)). A trial court must grant a party's motion for summary judgment when the record contains "no genuine issue as to any material fact challenged and . . . the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); Henry, supra, 204 N.J. at 329. The court must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, 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, 540 (1995).

On appeal, plaintiff argues the trial court improperly barred her excessive force claims based upon her guilty plea and the TCA verbal threshold. We agree.

While the trial court correctly held that plaintiff's guilty plea would bar her claims for false arrest and false imprisonment, the court misapplied the Heck doctrine in concluding her guilty plea barred her excessive force claim. In Heck, the United States Supreme Court established a new doctrine in conjunction with "the hoary principle that civil tort actions are not appropriate vehicles for challenging the validity of outstanding criminal judgments." Heck, supra, 512 U.S. at 486, 114 S. Ct. at 2372, 133 L. Ed. 2d at 285. Essentially, the Heck doctrine precludes a party from arguing a factual position that runs contrary to a factual position taken by that party in an earlier proceeding. See also Levin v. Robinson, Wayne & LaSala, 246 N.J. Super. 167, 178 (Law Div. 1990) ("The doctrine of judicial estoppel prevents a party from arguing contradictory positions in different actions in court.").

A review of plaintiff's plea colloquy reveals plaintiff made very limited admissions when she pled guilty to obstruction. To support her plea, plaintiff admitted to the following facts: (1) at the pizzeria, the officers told her to quiet down, and (2) she disregarded this instruction, continued to be loud and created a commotion. These facts do not contradict plaintiff's excessive force claims, based upon the punching and choking she claims occurred. Because nothing in plaintiff's previous plea colloquy contradicts the factual position plaintiff asserts regarding her excessive force claims, the Heck doctrine does not bar these claims. See Bustamante, supra, 413 N.J. Super. at 298 (declining to bar a plaintiff's 1983 excessive force claim because it was possible that the plaintiff was subjected to excessive force, even assuming the validity of the plaintiff's earlier guilty plea).

The court also mistakenly held the "verbal threshold"6 of the TCA barred her excessive force claims. "[W]hen a public employee's actions constitute willful misconduct, the plaintiff need not satisfy the verbal threshold and may instead recover the full measure of damages 'applicable to a person in the private sector.' N.J.S.A. 59:3-14(a)." Toto v. Ensuar, 196 N.J. 134, 137-38 (2008). In Toto, the plaintiff brought claims under the TCA for false arrest and false imprisonment, alleging a sheriff's officer arrested him without basis and then slammed him into a concrete wall. Id. at 139. At trial, the plaintiff argued the verbal threshold of N.J.S.A. 59:9-2(d) did not apply to his damage claims because the defendants had engaged in willful misconduct. Id. at 141. The trial court disagreed and subjected his claims of willful misconduct to the TCA verbal threshold. Id. at 141-42. The jury found one of the sheriff's officers had engaged in willful misconduct; however, the jury also concluded the officer's wrongful behavior had not proximately caused a substantial permanent loss of a bodily function sufficient to vault the verbal threshold. Id. at 147. Consequently, no damages were awarded. Ibid.

On appeal, the Court reversed, holding the TCA verbal threshold did not apply to plaintiff's claim against the sheriff's officer, who had engaged in willful misconduct. Id. at 137-38. In DelaCruz v. Borough of Hillsdale, 183 N.J. 149, 164-65 (2005), the Court had previously held claims of false arrest and false imprisonment subject to the TCA verbal threshold. In Toto, the Court narrowed its holding in DelaCruz, barring its application to claims asserted against public employees who engage in willful misconduct. Toto, supra, 196 N.J. at 147. In such cases of extreme wrongdoing or other circumstances, enumerated in N.J.S.A. 59:3-14,7 that deny a public employee of the protections of the TCA, the statute's verbal threshold does not apply. Ibid. Accordingly, the Court remanded the case for a new trial on damages, but solely against the defendant who had engaged in willful misconduct. Id. at 148.

We conclude Toto is on point and controlling. We therefore reverse the dismissal of plaintiff's CRA claim against Officers Croban and Arias based upon alleged excessive force as well as plaintiff's common law claims based upon willful misconduct. The record, which shows divergent accounts of what occurred at the pizzeria, clearly presents genuine issues of a material fact precluding summary judgment.

We further conclude the judge failed to independently assess plaintiff's claims against the City. Rather, he dismissed plaintiff's claims against the officers, without otherwise addressing the arguments advanced by the City. We are therefore constrained to vacate the dismissal of plaintiff's claims against the City.8

Plaintiff's final argument asserts the trial court improperly dismissed the balance of her common law tort claims for failure to satisfy the permanency and monetary thresholds under the TCA. We disagree.

The commonly referred to "verbal threshold" of the TCA provides

No damages shall be awarded against a public entity or public employee for pain and suffering resulting from any injury; provided, however, that this limitation on the recovery of damages for pain and suffering shall not apply in cases of permanent loss of a bodily function, permanent disfigurement or dismemberment where the medical treatment expenses are in excess of $3,600.00.

[N.J.S.A. 59:9-2(d).]

Notwithstanding her claims of permanent disfigurement and permanent psychological injury, plaintiff's injuries failed to satisfy the $3,600 monetary threshold of the TCA. Plaintiff argues "an emergency room visit; a scar that would require surgery to remove; and the need for extensive psychotherapy in the years to come could total more than $3,600." This argument lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Nevertheless, we note plaintiff failed to provide any competent evidence of any past or anticipated future medical bills. See Reale v. Twp. of Wayne, 132 N.J. Super. 100, 116 (App. Div. 1975) (holding a plaintiff must submit "competent evidence of anticipated future medical expenses" to satisfy the TCA's $3,600 medical expense threshold).

The trial court correctly dismissed plaintiff's common-law tort claims, except for those claims alleging willful misconduct, for failure to satisfy the monetary threshold of the TCA. In light of plaintiff's failure to satisfy the monetary threshold, we need not address plaintiff's remaining arguments.

In summary, we reverse the dismissal of plaintiff's CRA and common law claims against Officers Croban and Arias based upon alleged excessive force. We vacate the dismissal of plaintiff's CRA and common law claims against the City based upon alleged excessive force. We affirm the dismissal of all remaining claims.

Affirmed in part, reversed and remanded in part, and vacated and remanded in part. We do not retain jurisdiction.

1 N.J.S.A. 59:1-1 to 12-3.

2 We use initials to protect the privacy of the witnesses who are minors.

3 The deposing attorney at plaintiff's deposition confirmed "B" stood for "bitch." Similarly, plaintiff used the "N word" rather than "nigger." In each instance on the dates of the incident, plaintiff claims the officers used the actual words.

4 The record does not indicate which party arranged for this IME.

5 Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691, 98 S. Ct. 2018, 2036, 56 L. Ed. 2d 611, 636 (1978). Under Monell, "[a] municipality can only be held liable for constitutional violations committed by an employee when the violation resulted from an official municipal 'policy or custom.'" Stomel v. City of Camden, 383 N.J. Super. 615, 627 (App. Div. 2006) (quoting Schneider v. Simonini, 163 N.J. 336, 371 (2000), cert. denied, 531 U.S. 1146, 121 S. Ct. 1083, 148 L. Ed. 2d 959 (2001)), aff'd in part, rev'd in part on other grounds, 192 N.J. 137 (2007).

6 N.J.S.A. 59:9-2(d) provides

No damages shall be awarded against a public entity or public employee for pain and suffering resulting from an injury; provided, however, that this limitation on the recovery of damages for pain and suffering shall not apply in cases of permanent loss of a bodily function, permanent disfigurement or dismemberment where the medical treatment expenses are in excess of $ 3,600.00. For purposes of this section medical treatment expenses are defined as the reasonable value of services rendered for necessary surgical, medical and dental treatment of the claimant for such injury, sickness or disease, including prosthetic devices and ambulance, hospital or professional nursing service.

7 N.J.S.A. 59:3-14 provides

a. Nothing in this act shall 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.

b. Nothing in this act shall exonerate a public employee from the full measure of recovery applicable to a person in the private sector 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.

8 On remand, the City may renew its summary judgment motion based upon its argument the record does not provide any basis for liability against the City.