ABBOTT v. CITY OF ATLANTIC CITY et al, No. 1:2011cv04851 - Document 91 (D.N.J. 2017)
Court Description: OPINION. Signed by Judge Joseph H. Rodriguez on 3/27/2017. (tf, )
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ABBOTT v. CITY OF ATLANTIC CITY et al Doc. 91 U N ITED STATES D ISTRICT COU RT D ISTRICT OF N EW JERSEY _________________ ________ Rhonda Abbott, : : Plaintiff, : H o n . Jo s e p h H . Ro d rigu e z : v. : Civil Action No. 11-4851 : Atlantic City, et. al. : : Op in io n Defendants. : _______________________ __ : This m atter com es before the court Defendants’ Motion for Sum m ary J udgm ent. The Court has considered the written subm issions of the parties and the argum ents advanced orally at the February 26, 20 15 hearing in this m atter. During that hearing, counsel for Plaintiff m ade several concessions that counsel attem pted to retract by way of letter dated March 11, 20 15. Plaintiff has filed additional subm issions, including one on May 13, 20 15 which have been considered. I. Backgro u n d Plaintiff Rhonda Abbott, who is hearing im paired, alleges that the City of Atlantic City, several Atlantic City police officers, and the Director of Gardner’s Basin, violated her rights under the Am erican with Disabilities Act (“ADA”), the New J ersey Law Against Discrim ination (“NJ LAD”), and the Fourth and Fourteenth Am endm ent of the United States Constitution. On August 26, 20 0 9, Plaintiff claim s she attem pted to visit the Gardner’s Basin area of Atlantic City New J ersey. Plaintiff utilizes a service dog.1 She claim s she was 1 There is a dispute over whether Plaintiff is hearing impaired and whether her service dog has qualifying paperwork. For purposes of this Opinion, the Court assumes Plaintiff qualifies as disabled and that her service dog meets the requirements. 1 Dockets.Justia.com denied access to the Atlantic City Aquarium and the police were called. Then, Plaintiff went to the Back Bay Ale House where she claim s that she was harassed by the staff. Again, the police were called and Plaintiff was arrested by Officers Herrerias and Clayton and charged with disorderly conduct and resisting arrest. Ex. C. During Plaintiff’s arrest and transport, Officer Herrerias claim s that Plaintiff purposefully spit phlegm on him . Herrerias Dep. 13-15. As a result, he placed a seethrough m esh m ask over Plaintiff’s face to curtail the spitting. Plaintiff claims that the m ask was not see through and was fastened around her neck with the strings tied in an overly tight m anner, precluding her from using her sight. In addition, she argues that she did not voluntarily spit on Herrerias, but that the expelled phlegm was the product of a sum m er cold, over which she had no control. See Abbott Dep., p. 182; Pl. Answer to Interrogatories. Plaintiff also claim s that, on ce at the police station, she was struck by several police officers, forcibly handled, and m ade to walk without assistance with the m ask on. Plaintiff’s Com plaint is unclear as to which claim s she asserts against each of the Defendants and it fails to detail the nature of the violation as to each defendant. Listed in the caption of the Com plaint as Defendants are the City of Atlantic City (“City”), Atlantic City Police Departm ent (“Police Departm ent”), Police Officer Heidi Clayton (“Clayton”), Police Officer R. Bouffard (“Bouffard”), Police Officer William Herrerias (“Herrerias”), Police Officer H. Stanton (“Stanton”), Chief of Police J ohn Mooney III “Mooney”), J ack Keith, as the Executive Director Atlantic City Historic Waterfront Foundation (“Keith”), and J ohn Does A-Z. See Com plaint, generally. The Com plaint 2 itself, never identifies Officer Stanton as a Defendant in the “Parties” section, but refers to him as an actor, but not a defendant, in Count VIII. Id. The Com plaint alleges eight counts, each with vague description. Count I alleges claim s under the NJ LAD, the “federal Am ericans with Disabilities Act[,]” and Rehabilitation Act against the City, the Police Departm ent, Keith, Clayton, Bouffard, and Herrerias. Id., ¶¶8-12. Count II alleges that the City, the Police Departm ent and Clayton, Bouffard, and Herrerias deprived Plaintiff “of her freedom and liberty without proper justification” in violation of the NJ LAD, “Federal Rehabilitation Act, 42 U.S.C. §1983,” and the ADA. Id. at ¶¶13-15. Count III alleges that the City, the Police Departm ent and “aforem entioned police officers” deprived Plaintiff of her rights under the Federal and State Constitutions, “including but not lim ited to the LAD, federal Am ericans with Disabilities Act, Rehabilitation Act, and 42 U.S.C. sec. 1983.” Id. at 17. Count IV alleges violations of the “NJ LAD, federal ADA, Rehabilitation Act, and 42 sec. 1983.” Id. at 21. Count IV claim s that the City, the Police Departm ent, Officer Herrerias and “others” placed a m ask over Plaintiff’s face causing physical and m ental injury. Id. ¶¶19-21. Count V appears to allege a failure to train claim ; in it Plaintiff states that the City, the Police Departm ent and Mooney “in his official capacity, are responsible for the aforem entioned civil rights violations that the em ployees of Gardner’s Basin and officers of the Atlantic City Police Departm ent were not properly trained in how to interact with the hearing im paired, the use of service dogs, and the rights of the disabled.” Id. at ¶23. Count VI alleges claim s against the J ohn Doe police officers as plead in Counts I through IV. Id. at ¶¶24-25. Count VII appears to allege a claim under the ADA, Rehabilitation Act and/ or Violations of the Fourth and/ or Fourteenth Am endm ent(s) pursuant to 3 §1983, stating the City, the Police Departm ent, “and its Officers gave no effective com m unication despite Plaintiff’s disability.” Id. at ¶27. Finally, Count VIII incorporates the preceding counts and claim s that “Officer Stanton and or J ohn Doe(s) fictitious nam es of Defendants A-Z physically struck Plaintiff.” Id. at ¶ 30 . During oral argum ent, the Court noted the confusion caused by the poorly drafted Com plaint and engaged Plaintiff’s counsel in a discussion of the relevant claim s as to each Defendant. The Court incorporates that discussion and counsel’s explanation here. In addition, the Court directed Plaintiff to provide additional briefing as to the concessions m ade on the record. (See Dkt. No. 86). Counsel filed a supplem ental brief and appends a chart to his brief, to further illustrate the nature of the claim (s) alleged as to each defendant. (See Dkt. No. 88). According to Plaintiff’s chart, she alleges claim s under Section 50 4 of the Rehabilitation Act of 1973, 29 U.S.C. § 791, Title II of the Am ericans with Disabilities Act, 42 U.S.C. § 12131 (“ADA”), and the New J ersey Law Against Discrim ination, N.J . Stat. Ann. § 10 :5-1 (“NJ LAD”), violations of the Civil Rights Act of 1871, and 42 U.S.C. § 1983, against the City, the Police Departm ent, the “Aquarium ,” Keith, Clayton, Bouffard, Herrerias, and Mooney. In addition, Plaintiff alleges claim s of False Arrest and Im prisonm ent, Malicious Prosecution, violations of the Fourth and Fourteenth Am endm ents and 42 U.S.C. §1983 against Defendants Clayton, Bouffard, Herrerias. Plaintiff alleges a claim of Excessive Force against Herrerias and a Failure to Train claim against the City, the Police Departm ent, and the “Aquarium .” 4 II. Su m m ary Ju d gm e n t Stan d ard A court will grant a m otion for sum m ary judgm ent if there is no genuine issue of m aterial fact and if, viewing the facts in the light m ost favorable to the non-m oving party, the m oving party is entitled to judgm ent as a m atter of law. Pearson v. Com ponent Tech. Corp., 247 F.3d 471, 482 n.1 (3d Cir. 20 0 1) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, 10 6 S. Ct. 2548, 91 L.Ed.2d 265 (1986)); accord Fed. R. Civ. P. 56 (c). Thus, this Court will enter sum m ary judgm ent only when “the pleadings, depositions, answers to interrogatories, and adm issions on file, together with the affidavits, if any, show that there is no genuine issue as to any m aterial fact and that the m oving party is entitled to judgm ent as a m atter of law.” Fed. R. Civ. P. 56 (c). An issue is “genuine” if supported by evidence such that a reasonable jury could return a verdict in the nonm oving party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 10 6 S. Ct. 250 5, 91 L.Ed.2d 20 2 (1986). A fact is “m aterial” if, under the governing substantive law, a dispute about the fact m ight affect the outcom e of the suit. Id. In determ ining whether a genuine issue of m aterial fact exists, the court m ust view the facts and all reasonable inferences drawn from those facts in the light m ost favorable to the nonm oving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 10 6 S. Ct. 1348, 89 L.Ed.2d 538 (1986). Initially, the m oving party has the burden of dem onstrating the absence of a genuine issue of m aterial fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 10 6 S. Ct. 2548, 91 L.Ed.2d 265 (1986). Once the m oving party has m et this burden, the nonm oving party m ust identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id.; Maidenbaum v. Bally’s Park Place, Inc., 870 F. 5 Supp. 1254, 1258 (D.N.J . 1994). Thus, to withstand a properly supported m otion for sum m ary judgm ent, the nonm oving party m ust identify specific facts and affirm ative evidence that contradict those offered by the m oving party. Andersen, 477 U.S. at 25657. Indeed, the plain language of Rule 56(c) m andates the entry of sum m ary judgm ent, after adequate tim e for discovery and upon m otion, against a party who fails to m ake a showing sufficient to establish the existence of an elem ent essential to that party’s case, and on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322. In deciding the m erits of a party’s m otion for sum m ary judgm ent, the court’s role is not to evaluate the evidence and decide the truth of the m atter, but to determ ine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. Credibility determ inations are the province of the finder of fact. Big Apple BMW, Inc. v. BMW of N. Am ., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). III. An alys is As a prelim inary m atter, sum m ary judgm ent is granted as to the claim s against unnam ed J ohn Does A-Z because they have not been identified and discovery is com plete.2 Sum m ary judgm ent is also granted as to as the claim s pursuant to §1983 alleged against Mooney, Clayton, Herrerias, Stanton, and Bouffard in their official capacity. It is well established that “neither a State nor its officials acting under their official capacities are ‘persons’ under § 1983.” Will v. Michigan Dep’t of State Police, 491 2 “Courts will allow claims based upon ‘fictitious' defendants because they may be found and named later through the discovery process.” K.J. ex rel. Lowry v. Div. of Youth & Family Servs., 363 F.Supp.2d 728, 740 (D.N.J. 2005) (citing Alston v. Parker, 363 F.3d 229, 233 n. 6 (3d Cir. 2004)). Where “it is clear that, if after a reasonable period of discovery a plaintiff has not identified the fictitious defendant, the court may dismiss the fictitious defendant.” Martin v. Comunale, Civ. 03–06793, 2006 WL 208645, at *13 (E.D. Pa. Jan. 18, 2006); see also Atlantic Used Auto Parts v. City of Philadelphia, 957 F. Supp. 622, 625 (E.D. Pa. 1997) (holding “fictitious party names may be used ‘at least until reasonable discovery permits the actual defendants to assume their places ...,’ however, ... ‘[f]ictitious names must eventually be dismissed, if discovery yields no identities.’ ”)); Fed. R. Civ. P. 21. 6 U.S. 58, 71 (1989). As such, an em ployee of the state nam ed as a defendant in a civil rights action m ay be held liable only if that person has personal involvem ent in the alleged wrongs and is sued in their personal capacity. See Hafer v. Melo, 50 2 U.S. 21, 31 (1991) (“state officials, sued in their individual capacities, are ‘persons’ within the m eaning of § 1983”). Although the Com plaint is silent as to the capacity in which these defendants are being sued, the Court will construe the Com plaint broadly and consider the claim s against these defendants in their individual capacities. Because Mooney is specifically alleged to have acted in his official capacity as to the claim s in Count V, the Court will not construe these allegations, having been specifically plead, against Mooney in his individual/ personal capacity. See Com pl. ¶23. As a result, sum m ary judgm ent is granted as to Mooney as to the claim s plead in Count V. Sum m ary judgm ent is granted as to Defendant Police Departm ent with respect to allegations arising under §1983. The Police Departm ent is a division of the City and the claim s against it m erge with the claim s against the City. Generally, public entities that are not separate legal entities, but rather subunits of a local governm ent or m unicipality, cannot be sued under § 1983. See, e.g., Peppers v. Booker, Civ. No. 11-320 7, 20 12 WL 180 6170 (D.N.J . May 17, 20 12) (noting that “[i]n a Section 1983 claim , police departm ents m ay not be nam ed defendants in conjunction with m unicipalities because police departm ents are m erely instrum ents of m unicipalities); Adam s v. City of Cam den, 461 F. Supp. 2d 263, 266 (D.N.J . 20 0 6); Bonenberger v. Plym outh Twp., 132 F.3d 20 , 25 (3d Cir. 1997) (holding police departm ent and m unicipality sam e for § 1983); N.J . Stat. Ann. § 40 A:14-118 (m unicipal police departm ent is “an executive and enforcem ent function of m unicipal governm ent”). Thus, insofar as the Police Departm ent is not a 7 separate legal entity, but a division of the City, Plaintiff cannot sustain a separate §1983 claim against it and sum m ary judgm ent is granted. In her chart, Plaintiff m akes reference to claim s against the “Aquarium [.]” No such entity is identified in the Com plaint; however Plaintiff’s Com plaint asserts a claim in Count I against “Defendant City of Atlantic City’s Gardner’s Basin and its Ocean Life Center.” See Com pl. ¶8. To the extent Plaintiff seeks to include this entity as a defendant, despite not listing it in the caption, identifying its relationship to the other parties in the Com plaint, and/ or revealing its corporate structure (see ¶¶ 1-7), the Court is without any facts in the Com plaint to consider the nature of the “Aquarium ’s” enterprise or its relationship to the City. 3 In addition, neither the “Aquarium ” nor the Ocean Life Center were served with a Sum m ons. 4 As a result, neither the “Aquarium ” nor the Ocean Life Center are defendants to this action. 3 Two deponents, Jack Keith and Surita Ducote-Stroud, testified that the City owns the land on which the Aquarium sits, but the Aquarium is managed by a foundation and other space is leased to private businesses. Jack Keith, the Executive Director of the Foundation that manages the Aquarium, testified that the Foundation manages the Aquarium and that the Aquarium is owned by Atlantic City. Keith Dep., Ex. F., 7:22-25-8:1-5, 9:1-13. Keith works for both the Foundation and the City. Id. The City owns the land and the Foundation is the tenant. Keith Dep., Ex. J. 19:1-4. The Court will consider the nature of Plaintiff’s claims to the extent that the City owns the Aquarium, but does not manage it. 4 Federal Rule of Civil Procedure 10(a) requires that every party to an action be named in the complaint's caption. Fed. R. Civ. P. 10 (a). However, failure to list a party in the caption is not fatal, as long as other indicia provide actual notice of the identity of the parties. See Prisco v. State of New York, 804 F. Supp. 518, 521 (S.D.N.Y.1992); 5 C. Wright & A. Miller, Federal Practice and Procedure § 1321 (2d ed. 1990). Courts look to the “pleadings, service of process and other indications of the intent of the pleader” to determine whether a party is a proper defendant. E.E.O. C. v. Int'l Ass'n of Bridge, Structural, & Ornamental Ironworkers, Local 580, 139 F.Supp.2d 512, 525 (S.D.N.Y. 2001)); see also Dolphin v. Waterbury Police Dep't, No. 3:05CV426 (HBF), 2008 WL 2568667, at *4 (D. Conn. June 24, 2008) (“When a plaintiff omits the name of a defendant from the caption, but accurately identifies the defendant and includes allegations against it, him or her in the body of the complaint, such an omission is viewed as a ‘technical defect.’”). Here, Jack Keith, the Executive Director of the Atlantic City Waterfront Foundation, is named in the Caption, was served with a Summons, and was present during some of the events described in Plaintiff’s Complaint. It is only in Count I where the Ocean Life Center appears as the scene of events on August 26, 2009. See Compl., ¶9 (“Plaintiff . . . attempted to be a patron at Defendant City of Atlantic City’s Gardner Basin and its Ocean Life Center.” In Count I, Plaintiff identifies the Defendant as the City of Atlantic City. The “Aquarium” and/or Ocean Life Center are not named in the Caption and neither entity was served with a Summons. Thus, the Complaint’s only reference to the “Aquarium” in Count I is insufficient to give the actual notice that the Ocean Life Center and/or “Aquarium” is a party to this action. 8 A. Plain tiff’s Co n s titu tio n al Claim s : Fals e Arre s t, Fals e Im p ris o n m e n t, Exce s s ive Fo rce , Malicio u s Pro s e cu tio n , Failu re to Train in Vio latio n o f th e Fo u rth an d Fo u rte e n th Am e n d m e n ts an d th e N e w Je rs e y Civil Righ ts Act Plaintiff’s constitutional claim s are governed by Title 42 U.S.C. § 1983, which provides a civil rem edy against any person who, under color of state law, deprives another of rights protected by the United States Constitution. See Collins v. City of Harker Heights, 50 3 U.S. 115, 120 (1992). Any analysis of 42 U.S.C. § 1983 should begin with the language of the statute: Every person who, under color of any statute, ordinance, regulation, custom , or usage, of any State or Territory or the District of Colum bia, 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 im m unities 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. 42 U.S.C. § 1983. As the above language m akes clear, Section 1983 is a rem edial statute designed to redress deprivations of rights secured by the Constitution and its subordinate federal laws. See Baker v. McCollan, 443 U.S. 137, 145 n.3 (1979). By its own words, therefore, Section 1983 “does not . . . create substantive rights.” Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir. 20 0 6) (citing Baker, 443 U.S. at 145, n.3). To state a cognizable claim under Section 1983, a plaintiff m ust allege a “deprivation of a constitutional right and that the constitutional deprivation was caused by a person acting under the color of state law.” Phillips v. County of Allegheny, 515 F.3d 224, 235 (3d Cir. 20 0 8) (citing Kneipp v. Tedder, 95 F.3d 1199, 120 4 (3d Cir. 1996)). Thus, a plaintiff m ust dem onstrate two essential elem ents to m aintain a claim under § 1983: (1) that the plaintiff was deprived of a “right or privileges secured by the Constitution or the laws of the United States” and (2) that the plaintiff was deprived of 9 his rights by a person acting under the color of state law. William s v. Borough of West Chester, Pa., 891 F.2d 458, 464 (3d Cir. 1989). A sim ilar analysis m ay be m ade regarding any claim under the New J ersey Civil Rights Act. See Arm strong v. Sherm an, No. 0 9 CV 716, 20 10 WL 2483911, *5 (D.N.J . J un. 4, 20 10 ) (“[T]he language of the New J ersey Civil Rights Act, like the language of 42 U.S.C. § 1983, appears to grant a cause of action only to those persons whose rights have been personally violated.”) 5 The doctrine of qualified im m unity provides that “governm ent officials perform ing discretionary functions . . . are shielded from liability for civil dam ages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person should have known.” Harlow v. Fitzgerald, 457 U.S. 80 0 , 818 (1982). Thus, governm ent officials are im m une from suit in their individual capacities unless, “taken in the light m ost favorable to the party asserting the injury, . . . the facts alleged show the officer’s conduct violated a constitutional right” and “the right was clearly established” at the tim e of the objectionable conduct. Saucier v. Katz, 533 U.S. 194, 20 1 (20 0 1). Courts m ay exercise discretion in deciding which of the two prongs of the qualified im m unity analysis should be addressed first in light of the circum stances in the particular case at hand. Pearson v. Callahan, 555 U.S. 223, 236 (20 0 9). This doctrine “balances two im portant interests—the need to hold public officials For this reason, the Court will not undertake separate analysis of Plaintiff’s claims under the New Jersey Civil 5 Rights Act, to the extent such a claim is alleged in the poorly drafted Complaint. “This district has repeatedly interpreted NJCRA analogously to § 1983.” Pettit v. New Jersey, 2011 WL 1325614, at *3 (D.N.J. Mar. 30, 2011). “[W]hen pled together, [the NJCRA and § 1983] are analyzed under the same standard[.]” Id., 2011 WL 1325614 at *4; see also Hottenstein v. Sea Isle City, 793 F.Supp.2d 688, 695 (D.N.J. 2011). 10 accountable when they exercise power irrespon sibly and the need to shield officials from harassm ent, distraction, and liability when they perform their duties reasonably” and it “applies regardless of whether the governm ent official’s error is a m istake of law, a m istake of fact, or a m istake based on m ixed questions of law and fact.” Id. (internal quotation om itted). Properly applied, qualified im m unity “protects ‘all but the plainly incom petent or those who knowingly violate the law.’” Ashcroft v. al-Kidd, 131 S. Ct. 20 74, 20 85 (20 11) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). For a right to be clearly established, “[t]he contours of the right m ust be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Saucier, 533 U.S. at 20 2 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). That is, “[t]he relevant, dispositive inquiry in determ ining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Couden v. Duffy, 446 F.3d 483, 492 (20 0 6). “If the officer’s m istake as to what the law requires is reasonable,” the officer is entitled to qualified im munity. Couden, 446 F.3d at 492 (internal citations om itted). Further, “[i]f officers of reasonable com petence could disagree on th[e] issue, im m unity should be recognized.” Malley, 475 U.S. at 341 (1986). See also Brosseau v. Haugen, 543 U.S. 194, 198 (20 0 4) (The general touchstone is whether the conduct of the official was reasonable at the tim e it occurred.) Finally, because qualified im munity is an affirm ative defense, the burden of proving its applicability rests with the defendant. See Beers-Capital v. Whetzel, 256 F.3d 120 , 142, n.15 (3d Cir. 20 0 1). Here, Plaintiff alleges violations of her Fourth and Fourteenth Am endm ent rights and there is no dispute that the individual officers were acting under the color of state 11 law. Specifically, Plaintiff claim s false im prisonm ent, false arrest, m alicious prosecution, and excessive force against the individual police officer defendants Clayton, Bouffard, Herrerias, and Stanton 6 . 1. Co n s titu tio n al Claim s 7 a. Fals e Im p ris o n m e n t/ Fals e Arre s t To the extent that Plaintiff m akes claim s of false arrest and false im prisonm ent against the individual officers, the Fourth Am endm ent prohibits seizures in the absence of probable cause.8 Orsatti v. New J ersey State Police, 71 F.3d. 480 , 482 (3d Cir. 1995). Under the Fourth Am endm ent, a person is seized “only if, in view of all the circum stances surrounding the incident, a reasonable person would have believed that he was not free to leave.” Michigan v. Chesternut, 486 U.S. 567, 574 (1988) (quoting United States v. Mendenhall, 446 U.S. 544, 554 (1980 )). Seizure occurs only when a person is detained by “m eans intentionally applied” to term inate his freedom of m ovem ent by m eans of physical force or by show of authority. Brower v. County of Inyo, 489 U.S. 593, 597-98 (1989). No seizure occurs when a reasonable person would feel free to “disregard the police and go about his business” or where “a reasonable 6 While Stanton’s only mention in the Complaint comes as an actor in Count VIII, he is notably left off of Plaintiff’s chart. In addition, Plaintiff states that she “misidentified” Stanton as the Officer who struck her, and believes that the police officer who struck her is Herrierias. See Pl. Opp. Br. and Reply to Def. Stat. Material Facts, ¶ 8. In addition, Officer Herriereas testified that there is no Atlantic City Police Officer named Stanton. Herrerias Dep., Ex. F., 17:13-16. Summary judgment as to this claim against Officer Stanton, to the extent he is considered as an appropriate defendant, is granted. 7 Where an amendment provides explicit protection against a particular kind of government action, that amendment is the source of the Court’s evaluation of a §1983 claim rather than the general rights granted by the Fourteenth Amendment. County of Sacramento v. Lewis, 523 U.S. 833, 841 (1998) (citing Albright v. Oliver, 510 U.S. 266, 273 (1994)). Thus, allegations of false arrest or false imprisonment are evaluated under the Fourth Amendment rather than the Fourteenth Amendment. See, e.g., United States v. Lanier, 520 U.S. 259, 272 (1997); Berg v. County of Allegheny, 219 F.3d 261, 268-69 (3d Cir. 2000). 8 Again, Plaintiff never identifies either Amendment in her Complaint, but lists both the Fourth and Fourteenth Amendments as causes of action in her chart. The Court does not glean the existence of a due process violation from the Complaint and Plaintiff makes no argument suggesting that such a claim exists. For the reasons set forth in note 7, the Court will analyze the claim under the fourth Amendment. 12 person would feel free to decline the officers’ requests or otherwise term inate the encounter.” United States v. Kim , 27 F.3d 947, 951 (3d Cir. 1994) (quoting Florida v. Bostick, 50 1 U.S. 429, 434 (1991)). Under New J ersey com m on law, the tort of false im prisonm ent is defined as when an actor im properly constrains a person’s freedom of m ovem ent by force or by threats of force comm unicated through conduct or words. Maietta v. USPS, 749 F. Supp. 1344, 1366 (D.N.J . 1990 ). New J ersey requires two elem ents for false im prisonm ent: (1) detention of the person against his or her will, and (2) a lack of proper legal authority or “legal justification.” Mesgleski v. Oraboni, 748 A.2d 1130 , 1138 (N.J . Super. Ct. App. Div. 20 0 0 ). Under the Fourth Am endm ent, a claim of false arrest requires a showing “(1) that there was an arrest; and (2) that the arrest was m ade without probable cause.” J am es v. City of Wilkes-Barre, 70 0 F.3d 675, 680 (3d Cir. 20 12). Probable cause exists when there are “facts and circum stances sufficient to warrant a prudent m an in believing that the suspect had com m itted or was com m itting an offense.” Gerstein v. Pugh, 420 U.S. 10 3, 111 (1975) (internal citations om itted). Taking the facts in a light m ost favorable to the Plaintiff Rhonda Abbott, she was both seized, arrested and/ or im prisoned under either of the above standards. The question of whether probable cause existed to arrest and detain Plaintiff is called into question only by Plaintiff’s testim ony. The overwhelm ing evidence suggests that Ms. Abbott was acting in a m anic and disturbing m anner at both the Aquarium and Back Bay Restaurant. Police Officer Herrierias and J ack Keith both testify that at the Back Bay Ale House, Abbott was spitting, yelling, and causing a disturbance. See Keith 13 Dep., Ex. J . 23:6-13 (characterizing Abbott as “out of control”), 24: 7-8 (stating he observed Abbot purposefully spit at police); Herrerias Dep., Ex. F. 11:13-19 (stating Abbott spat at him ), 7:1-24 (Abbott was scream ing and using profanity as she argued with restaurant staff). Officer Clayton claim s that Abbott engaged in m anic behavior at the Ale House and was kicking, scream ing and spitting that as they tried to talk to her. Clayton Dep., Ex. G, 17:1-25. Clayton also noted Abbott continued to spit and that the plexi-glass divider in the police car was covered in her spit. Id., 17:14-23. At the Aquarium , Sarita Stroud claim s that she wasn’t clear that Abbott’s dog was service dog and asked Abbott to step aside. Stroud Dep., Ex. E. 14:1-22. Stroud claim s that Abbott began scream ing that she was going to call her lawyer and would not m ove aside. Id. Abbott’s behavior and scream ing escalated, preventing Stroud from having any further conversation with Abbott to get m ore inform ation about the dog. Id. J ack Keith was called and he testifies that Abbott would not m ove to the side and she was scream ing. He states that Abbott said she was hearing im paired and asked Keith to write his questions out on paper; he attem pted to com m unicate with her in that m anner, but she was not cooperative and continued to create a disturbance. Keith Dep., Ex. J ., 38:16-25. Stroud testified that during the ten or so m inutes it took police to arrive, Abbott yelled the entire tim e and refused to m ove to the side to let other patrons gain access. Stroud Dep., Ex. G, 5:1-25. Officer Bouffard testified that as they approached the Aquarium , they could hear Abbott scream ing before they visually observed her. Bouffard Dep., 8:18-25-9:1-8 (Abbott was scream ing “fuck you, I’m suing”). Bouffard observed Abbott acting in an obnoxious and loud m anner toward an Aquarium em ployee. Id. at 7:4-18. 14 Clayton elaborated on their interaction with Abbott as they escorted her out of the Aquarium . Clayton testifies that she tried to ask Abbott what the problem was, but Abbott refused to answer. Clayton Dep., Ex. G. 11:18-25. Instead, Abbott continued to scream that she was going to sue, took her phone out and claim ed she was calling her lawyer. Id. at 12:1-4. At som e point, Clayton learned from the Aquarium staff that Abbott’s dog was a service dog, but Abbott wouldn’t engage in any conversation and continued to yell. Id. Clayton got the im pression that Abbott could hear som e of the police officers’ conversations with each other because Abbott would interject with relevant responses, even when the officers talked out of Abbott’s vision. Id. at 12:11-2513:1-16. When Clayton discussed with Herrerias whether to shackle Abbott to curtail the kicking, Abbott responded “Fuck you, you’re not going to shackle m e.” Id. 17:23-2518:1-4. However, Abbott’s m arkedly contradictory account of the events of the day create a genuine issue of m aterial fact. Abbott claim s that she was unable to com m unicate with the staff at the Aquarium and that she was asked to leave because of her dog. She claim s that she did not refuse to pay, because she was harassed before she could discuss paym ent. Then, she claim s that when she went to the Back Bay Ale House, she inform ed the hostess that she wished to speak with a m anager, so as to preem pt any problem s that m ight arise because of her service dog. While she sat quietly at a table waiting, for som e tim e, for the arrival of the m anager, Officer Herrerias cam e out of nowhere and arrested her. Abbott Dep., 154:1-25-155:1-25. Abbott’s version of events includes the police officers’ refusal to com m unicate with her in writing, even after she showed them her hearing aid. With these key facts in 15 dispute, sum m ary judgm ent is denied as to the claim s against Hererrias, Clayton, and Bouffard as they relate to the activity at the Ale House. Sum m ary judgm ent is granted as to Clayton and Bouffard in so far as the Com plaint, which is unclear, alleges wrongful arrest at the Aquarium . For the sam e reasons, sum m ary judgm ent is denied on the qualified im m unity argum ent on the issue of probable cause. Giving Plaintiff the benefit of every inference, the Officers, in responding to claim s that she was acting irrationally and in a disorderly m anner, cam e upon a quiet Plaintiff who was m inding her own business as she waited for the m anager. As a result, based on those facts, there are questions of fact as to whether probable cause to arrest Plaintiff existed and whether she resisted arrest. b. Exce s s ive Fo rce 9 The Fourth Am endm ent provides: The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirm ation, and particularly describing the place to be searched, and persons or things to be seized. A Fourth Am endm ent excessive force claim calls for an evaluation of whether police officers’ actions are objectively reasonable in light of the facts and circum stances confronting him . Graham v. Conner, 490 U.S. 386, 397 (1989). While the question of reasonableness is objective, the court m ay consider the severity of the crim e at issue, 9 Graham v. Connor appears to foreclose a claim of excessive force as arising under the Fourteenth Amendment. 490 U.S. 386, 388 (1989) (“This case requires us to decide what constitutional standard governs a free citizen’s claim that law enforcement officials used excessive force in the course of making an arrest, investigatory stop, or other ‘seizure’ of his person. We hold that such claims are properly analyzed under the Fourth Amendment’s ‘objective reasonableness’ standard, rather than under a substantive due process standard.” Accord Abraham, 183 F.3d at 288 (“excessive force in the course of an arrest is properly analyzed under the Fourth Amendment, not under substantive due process”) (citing Graham, 490 U.S. at 393-94). 16 whether the suspect poses an im m ediate threat to the safety of the officers or others, and whether the suspect is actively resisting arrest or attem pting to evade arrest by flight. Id. In a claim for excessive force, “the central question is ‘whether force was applied in a good faith effort to m aintain or restore discipline, or m aliciously and sadistically to cause harm .’” Brooks v. Kyler, 20 4 F.3d 10 2, 10 6 (3d Cir. 20 0 0 ) (quoting Hudson v. McMillian, 50 3 U.S. 1, 7 (1992)). Furtherm ore, appropriate attention should be given “to the circum stances of the police action, which are often ‘tense, uncertain, and rapidly evolving.’” Grom an v. Township of Manalapan, 47 F.3d 628, 634 (3d Cir. 1995) (quoting Graham , 490 U.S. at 396). See also Graham , 490 U.S. at 396 (“Not every push or shove, even if it m ay later seem unnecessary,” violates the constitution.). Plaintiff appears to claim that Herrerias violated her right to be free from excessive force and argues that the use of the m ask to curtail her involuntary spitting is the basis for this claim . In regards to the use of the m ask, Officer Herrerias is entitled to qualified im m unity as its use was objectively reasonable in light of the circum stances. At the very least, Plaintiff adm its that phlegm was caused to exit her m outh as a result of a sum m er cold over which she had no control. See Pl. Ex. B, Pl. Verified Answer; Abbott Dep., Ex. D., 182:14-25-183:1-5. Thus, to the extent that Plaintiff herself adm its that she was spewing bodily fluids, under these circum stanced no jury could reasonably find that Herrerias acted “m aliciously and sadistically to cause harm .’” Brooks, 20 4 F.3d at 10 6 (quoting Hudson, 50 3 U.S. at 7). In addition, even if the use of the m ask was not in line with ADA standards, “[w]hile the purpose of the ADA is to prevent the discrim ination of disabled individuals, we do not think Congress intended that the fulfillm ent of that 17 objective be attained at the expense of the safety of the general public.” Hainze v. Richards, 20 7 F.3d 795, 80 1 (5th Cir. 20 0 0 ). Whether Abbott’s spitting was intentional or involuntary, Herrerias’ use of a device to curtail the transm ission of bodily fluid is objectively reasonable. Abbott puts forth no evidence that another m ethod could have been used. Thus, the conduct of Herrerias was objectively reasonable at the tim e, under the circum stances, and he is entitled to qualified im m unity on the excessive force claim .10 Plaintiff’s argum ent that the m ask was not “see-through” and that its use, coupled with the fact that she is hearing im paired, caused her to lose the additional sensory function of vision and is therefore excessive does not save her claim . Plaintiff adm its that she tried to get a m ask sim ilar to that used by the police when she was arrested but failed. There is no evidence in the record, but for Plaintiff’s statem ents, that Atlantic City has ever used a different m ask. Likewise, there is no case law on point to suggest that the use of an opaque m ask is under the circum stances excessive. Id. Given that Plaintiff adm its to spewing fluids out of her m outh and that she could not control it, the use of the m ask is not unreasonable and sum m ary judgm ent is granted.11 10 Although the Court should not weigh evidence or make credibility determinations on summary judgment, it is worth noting that on the point of Abbott’s spitting, several other witnesses observed purposeful spitting and the hospital records also indicate that Abbott was uncooperative, combative that she spat, yelled and was agitated. See Atlantic Care Hospital Records, Ex. N. thus, under the circumstances, coupled with Abbott’s admission that she involuntarily spit, Herrerias’s conclusion that the mask was necessary is objectively reasonable. 11 Plaintiff’s Count VIII asserts that she was “physically struck” by Officer Stanton and other John Doe Defendants. Since Plaintiff acknowledged that no officer Stanton exists and summary judgment has been granted to the “John Does”, the Court will not address this claim. Plaintiff states in her brief that she believes it was Herrerias, however, a believe or a speculation is insufficient on summary judgment. 18 c. Malicio u s Pro s e cu tio n To establish m alicious prosecution under § 1983, a plaintiff m ust establish that: (1) the defendant initiated a crim inal proceeding; (2) the plaintiff suffered a deprivation of liberty consistent with the concept of seizure as a consequence of a legal proceeding; (3) the crim inal prosecution resulted in plaintiff's favor; (4) the proceeding was initiated without probable cause; and (5) the defendant acted m aliciously or for a purpose other than bringing the plaintiff to justice. Halsey v. Pfeiffer, 750 F.3d 273, 296-97 (3d Cir. 20 14); DiBella v. Borough of Beachwood, 40 7 F.3d 599, 60 1 (3d Cir. 20 0 5); Santiago v. City of Vineland, 10 7 F. Supp. 2d 512, 566 (D.N.J . 20 0 0 ). Here, given the questions of fact related to probable cause, sum m ary judgm ent on this claim is denied. 2 . Mo n e ll Claim s A m unicipality is not liable under 42 U.S.C. § 1983 on a respondeat superior theory. Monell v. Dept. Soc. Servs. of New York, 436 U.S. 658, 691 (1978). However, a governm ent entity m ay be liable for its agent’s actions upon a dem onstration that a policy or custom of the m unicipality caused, or was a “m oving force” behind, the alleged violation of Plaintiff’s rights. Kentucky v. Graham , 473 U.S. 159, 166 (1985) (quoting Polk County v. Dodson, 454 U.S. 312, 326 (1981)); Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996). Policy or custom m ay be established in two ways. “Policy is m ade when a ‘decisionm aker possess[ing] final authority to establish m unicipal policy with respect to the action’ issues an official proclam ation, policy, or edict.” Andrews v. City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990 ) (citations om itted). “A course of conduct is considered to be a ‘custom ’ when, though not authorized by law, ‘such 19 practices of state officials [are] so perm anent and well settled’ as to virtually constitute law.” Id. (citations om itted). Custom requires proof of knowledge and acquiescence by the decisionm aker. McTernan v. City of York, PA, 564 F.3d 636, 657 -658 (3d Cir. 20 0 9). Moreover, supervisors can be liable if they “established and m aintained a policy, practice or custom which directly caused [the] constitutional harm ,” or if they “participated in violating plaintiff's rights, directed others to violate them , or, as the person[s] in charge, had knowledge of and acquiesced in [their] subordinates' violations.” Santiago v. Warm inster Twp., 629 F.3d 121, 129 (3d Cir. 20 10 ) (citations om itted). Thus, in order to prevail against the governm ent entity, “[a] plaintiff m ust identify the challenged policy, attribute it to the city itself, and show a causal link between execution of the policy and the injury suffered.” Losch v. Parkesburg, 736 F.2d 90 3, 910 (3d Cir. 1984). Further, a plaintiff m ust show that the m unicipality acted with “deliberate indifference” to the known policy or custom . Canton v. Harris, 489 U.S. 378, 388 (1989). “A showing of sim ple or even heightened negligence will not suffice.” Board of County Com m ’rs of Bryan County, Okl. v. Brown, 520 U.S. at 397, 40 7 (1997). Finally, to prevail on a failure to train, discipline or control claim , a plaintiff m ust “show both contem poraneous knowledge of the offending incident or knowledge of a prior pattern of sim ilar incidents and circum stances under which the supervisor’s actions or inaction could be found to have com m unicated a m essage of approval to the offending subordinate.” Montgom ery v. De Sim one, 159 F.3d 120 , 127 (3d Cir. 1998) (citations om itted). The Suprem e Court notes that in “lim ited circum stances, a local governm ent's decision not to train certain em ployees about their legal duty to avoid 20 violating citizens' rights m ay rise to the level of an official governm ent policy for purposes of § 1983.” Connick v. Thom pson, 131 S. Ct. 1350 , 1359 (20 11). To sustain a failure-to-train claim under § 1983, a plaintiff “m ust (1) identify the deficiency; (2) prove that the deficiency caused the alleged constitutional violation; and (3) prove that the failure to rem edy the deficiency reflected deliberate indifference on the part of the m unicipality.” Lapella v. City of Atlantic City, 10 -2454, 20 12 WL 2952411, at *6 (D.N.J . J uly 18, 20 12) (citing Malignaggi v. County of Gloucester, 855 F.Supp. 74, 77 (D.N.J . 1994)). Only when a plaintiff dem onstrates deliberate indifference to the rights of persons with whom the untrained employees com e into contact “can such a shortcom ing be properly thought of as a city ‘policy or custom ’ that is actionable under § 1983.” Connick, 131 S. Ct. at 1359-60 (internal citation om itted). Deliberate indifference is “a stringent standard of fault” that requires proof that a m unicipal actor disregarded a known or obvious consequence. Id. (citing Board of Cty Com m ’rs of Bryan Cty., Okl. v. Brown, 520 U.S. 397, 410 (1997)). Thus, for purposes of a failure to train claim , it is “ordinarily necessary” for a plaintiff to show “[a] pattern of sim ilar constitutional violations by untrained em ployees.” Connick, 131 S.Ct. at 1360 (internal citation om itted). The Third Circuit has noted that: [A] m unicipality's deliberately indifferent failure to train is not established by (1) presenting evidence of the shortcom ings of an individual; (2) proving that an otherwise sound training program occasionally was negligently adm inistered; or (3) showing, without m ore, that better training would have enabled an officer to avoid the injury-causing conduct. Sim m ons v. City of Philadelphia, 947 F.2d 10 42, 10 60 (3d Cir. 1991) (citing City of Canton v. Ohio, 489 U.S. 378, 391 (1989) (em phasis in original)). A “single-incident” theory of liability can proceed only upon dem onstration that the constitutional violation 21 was the “obvious” consequence of inadequate training. Connick, 131 S.Ct. at 1360 – 61 (citations om itted); see also, City of Canton, 489 U.S. at 390 , n. 10 . However, such a “single incident” theory of liability only arises “in a narrow range of circum stances.” Id. at 1361. Here, although Plaintiff highlights the existence of a potential training deficiency in dealing with the hearing-im paired population, she has failed to prove that these alleged deficiencies constitute a pattern or practice and/ or that the deficiency caused a constitutional violation in this case. See, e.g., McTernan v. City of York, Pa., 564 F.3d 636 (3d Cir. 20 0 9) (“[A plaintiff] m ust identify a custom or policy, and specify what exactly that custom or policy was.”). The record does not support the allegation that the m unicipality’s deliberate indifference or failure to train in dealing with the hearing im paired population encouraged or caused the unlawful conduct of its officers. Connick, 131 S. Ct. at 1359-60 . If Plaintiff is to be believed, she was arrested while sitting quietly at the Back Bay Ale House. Plaintiff m akes a scant connection to the events at the Aquarium when she testifies that a random stranger told her to “get out of here” because the police were looking for her. See Pl. Ans. To Interrogatories, ¶1, pp 26-7; Pl. Am ended Ans. To Interrogatories, ¶1, p. 32. Plaintiff testifies that she was sitting quietly and not arguing with anyone when she was approached by Herrerias and Clayton. Abbott Dep., Ex. D., 158:8-25. She states that she had to “struggle” to com m unicate, she took out her hearing aid, and then “Officer Herrerias jum ped m e and arrested m e.” Id. at 159:1-25160 :1-5. 22 Plaintiff cannot show that this single incident is the “obvious” consequence of inadequate training and falls into the “narrow range of circum stances” where liability m ay attach. Here, Plaintiff adm its that she was able to verbally com m unicate and receive som e verbal com m unications and that her dog lacked identification that he was a service dog. Connick, 131 S.Ct. at 1360 – 61 (citations om itted); see also, City of Canton, 489 U.S. at 390 , n. 10 . Plaintiff points to no evidence of what training would have prevented the arrest in her case. Plaintiff’s only evidence in support of her claim is the testim ony of the police officers stating that they cannot recall if they received training on dealing with the hearing im paired. She provides no evidence of the type of training that would have prevented her encounter. Sum m ary judgm ent is granted in favor of the City on these claim s. B. Vio latio n o f Se ctio n 50 4 o f th e Re h abilitatio n Act an d th e AD A Like the m ajority of the Com plaint, Plaintiff’s claim s under the ADA and Section 50 4 are generically m ade without specific reference to the offense and the offending parties. Counts I, II, II, IV, and VIII reference violations of the ADA and Section 50 4. The Com plaint m akes no distinction as to which Title of the ADA Plaintiff m oves with respect to the m yriad of defendants Plaintiff claim s violated her rights under these statutes. Adding to the confusion is Plaintiff’s claim s chart, which references only Title II of the ADA. Plaintiff’s Answer to Interrogatories states that she is m aking both Title II and Title III claim s, but fails to delineate the nature of each claim as to each defendant. 1. Claim s under Title II of the ADA and Section 50 4 of the Rehabilitation Act 23 Title II of the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of services, program s or activities of a public entity, or be subjected to discrim ination by any such entity.” 42 U.S.C.A. § 12132. Title II prohibits discrim ination by, and im poses liability on, “public entities.” See 42 U.S.C. ¶ 2132. A public entity is defined in the statute as “any State or local governm ent; ... departm ent, agency special purpose district, or other instrum entality of a State....” 42 U.S.C. § 12131(1). Section 50 4 of the Rehabilitation Act prohibits program s that receive federal funds from discrim inating against an individual based on disability: “No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrim ination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency . . . .” 29 U.S.C. § 794(a); see Bowers v. National Collegiate Athletic Ass'n, 118 F.Supp.2d 494, 525 (D.N.J . 20 0 0 ) (quoting 29 U.S.C. § 794(a)). There is no reference in Title II or Section 50 4 to liability against individuals for violation of the act. See Doe v. Div. of Youth & Fam ily Servs., 148 F. Supp. 2d 462, 489 (D.N.J . 20 0 1); Yeskey v. Pennsylvania, 76 F. Supp. 2d 572, 575 (M.D. Pa. 1999). Indeed, neither Section 50 4 nor Title II of the ADA provides a cause of action against governm ent em ployees in their individual capacities. See Am ericans with Disabilities Act of 1990 , §§ 20 1(1), 20 2, 42 U.S.C.A. §§ 12131(1), 12132. Therefore, there is no individual liability under these statutes for public em ployees. See A.W. v. J ersey City Pub. Sch., 486 F.3d 791, 80 4 (3d Cir. 20 0 7) (“Suits m ay be brought pursuant to Section 24 50 4 against recipients of federal financial assistance, but not against individuals.”) (citing Emerson v. Thiel Coll., 296 F.3d 184, 190 (3d Cir. 20 0 2)); see also K.J . v. Greater Egg Harbor Reg'l High Sch. Dist. Bd. of Educ., No. 14-CV-145, 20 15 WL 1816353, at *7 (D.N.J . Apr. 21, 20 15) (citing Calloway v. Boro of Glassboro Dep't of Police, 89 F.Supp.2d 543, 557 (D.N.J . 20 0 0 ) (citing cases from other districts and circuits for the proposition that “individual defendants cannot be held liable for violations of Title II of the Disability Act”); see also Em erson, 296 F.3d at 189 (citing Walker v. Snyder, 213 F.3d 344, 346 (7th Cir. 20 0 0 ) (finding that “the ADA addresses its rules to em ployers, places of public accom m odation, and other organizations, not to the em ployees or m anagers of these organizations”), and Garcia v. S.U.N.Y. Health Sciences Ctr., 280 F.3d 98, 10 7 (2d Cir. 20 0 1) (holding that individuals are not liable under Title II), approvingly, and noting that the Rehabilitation Act and the ADA are “generally ... interpreted consistently.”)). To prove a violation of Title II of the ADA, a plaintiff m ust show: (1) he [is] a “qualified individual with a disability”; (2) he was either excluded from participation in, or denied the benefits of, ... [defendant]'s services, program s, or activities, or was otherwise discrim inated against by ... [defendant]; and (3) such exclusion, denial of benefits, or discrimination was by reason of his disability. Calloway v. Boro of Glassboro Dept. of Police, 89 F.Supp.2d 543, 552 (D.N.J . 20 0 0 ); see also Douris v. Dougherty, 192 F. Supp. 2d 358, 368 (E.D. Pa. 20 0 2). To the extent that Plaintiff is a “qualified individual,” liability under these statutes m ay be sought against any defendan t who owns and m aintains the park as a “public entity” which receives federal funds. 42 U.S.C.A. §§ 12131(1), (2). Thus, the City 25 of Atlantic City is the only potential defendant to this claim , as there is no viable claim against individuals under these statutes. With respect to the Section 50 4 claim , Plaintiff puts forth no evidence to suggest, and does not allege, that the City receives federal funds. For this reason, her Section 50 4 claim against the City fails. Likewise, her Title II claim is tenuous at best, even if Plaintiff could prove she has Article III standing: on this record there is no evidence that Plaintiff has standing and sum m ary judgm ent is granted. The party invoking federal jurisdiction bears the burden of establishing standing “in the sam e way as any other m atter on which the plaintiff bears the burden of proof, i.e., with the m atter and degree of evidence required at successive stages of the litigation.” Lujan v. Defenders of Wildlife, 50 4 U.S. 555, 561, 112 S.Ct. 2130 , 119 L.Ed.2d 351 (1992) (internal citations om itted); see Focus v. Allegheny County Ct. of Com m on Pleas, 75 F.3d 834, 838 (3d Cir. 1996). At the sum m ary judgm ent stage, Plaintiff cannot rest on m ere allegations to establish standing, “but m ust ‘set forth’ by affidavit or other evidence, ‘specific facts,’ which for purposes of the sum m ary judgm ent m otion will be taken to be true.” Lujan, 50 4 U.S. at 561 (citing Fed. R. Civ. P. 56(e)). Thus, to defeat sum m ary judgm ent, the plaintiff m ust raise a genuine issue of m aterial fact as to whether the requisite standing elem ents are satisfied. Celotex, 477 U.S. at 322. The general requirem ents of standing are also applicable in ADA cases where, as here, Plaintiff brings suit seeking injunctive relief for violations of Titles II and III. See Transport Workers Union of Am erica, Local 10 0 , AFL-CIO v. New York City Transit Authority, 342 F. Supp. 2d 160 , 165-66 (S.D.N.Y. 20 0 4) (Article III standing required in 26 Title II cases); Doe v. Natl. Bd. of Med. Exam r's, 199 F.3d 146, 153 (3d Cir. 1999) (Article III standing applies in Title III cases). To satisfy the Constitutional standing requirem ents Plaintiff m ust show: she has suffered an “injury in fact” that is (a) concrete and particularized and (b) actual or im m inent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to m erely speculative, that the injury will be redressed by a favorable decision. Friends of the Earth, Inc., 528 U.S. at 180 – 81. A party seeking prospective injunctive relief m ust dem onstrate a real and im m ediate, i.e., not speculative, threat of future harm . City of Los Angeles v. Lyons, 461 U.S. 95, 111, 10 3 S.Ct. 1660 , 75 L.Ed.2d 675 (1983). A plaintiff seeking injunctive relief m ust also show continuing, adverse effects from the illegal conduct. O'Shea v. Littleton, 414 U.S. 488, 495– 96, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974). A plaintiff's “som e day” intentions to return to the source of the illegal conduct, without any description of concrete plans, does not support a finding of “actual or im m inent” injury. Lujan, 50 4 U.S. 564; see also Dem psey v. Pistol Pete's Beef N Beer, LLC, Civ. No. 0 8– 5454, 20 0 9 WL 3584597 at *4 (D.N.J . Oct. 26, 20 0 9) (“[I]ntentions to return to the source of the illegal conduct ‘som e day'-without any description of concrete plans, or indeed even any specification of when the som e day will be-do not support a finding of the requisite actual or im m inent injury.”). Although there is no Third Circuit precedent directly addressing the contours of the “injury in fact” analysis in ADA cases, several courts in this district have recognized that, it in other contexts, the Third Circuit requires that “a [p]laintiff m ust suffer a palpable and distinct harm that m ust affect the plaintiff in a personal and individual 27 way.” Brown v. Showboat Atlantic City Propco, LLC, Civ. No. 0 8– 5145, 20 10 WL 5237855, at *7 (D.N.J . Dec.16, 20 10 ) (quoting Toll Bros., Inc. v. Twp. of Readington, 555 F.3d 131, 137 (3d Cir. 20 0 9)); see also Louisiana Counseling and Fam ily Services Inc. v. Mt. Fuji J apanese Restaurant, No. 0 8-CV-6143, 20 14 WL 94135 (D.N.J . Mar. 11, 20 14). As a result, the standing analysis in ADA cases focuses on whether the plaintiff suffered an actual injury rather than whether the statute was violated by the defendants. See Doe, 199 F.3d at 153. As this Court recognized in Louisiana Counseling, courts in New J ersey have applied the following four-factor test to determ ine whether a future injury is concrete and particularized: (1) the plaintiff's proxim ity to the defendant's place of public accom m odation; (2) the plaintiff's past patronage; (3) the plaintiff's frequency of nearby travel; and (4) the definiteness of the plaintiff's plan to return. Brown, Civ. No. 0 8– 5145, 20 10 WL 5237855, at *8. With respect to the definiteness to return, the Court in Lujan found that “som eday” intentions without any description of concrete plans, or even any speculation of when the som eday will be-do not support a finding of actual or im m inent injury. Id. (citing Lujan, 50 4 U.S. at 564). On a sum m ary judgm ent m otion the burden is higher than on a m otion to dism iss where “general factual allegations of injury resulting from the defendant's conduct m ay suffice ... on a m otion to dism iss [as] we ‘presum [e] that general allegations em brace those specific facts that are necessary to support the claim .’” Lujan, 497 U.S. at 889. Here, one of the m any bases for Defendants’ sum m ary judgm ent m otion is the lack of any evidence that Plaintiff intends to return to the City or to Gardner’s Basin. In its statem ent of Material Facts, Defendants claim that Plaintiff has declared that she has 28 no intent to return to the City, underm ining her standing to bring these claim s. In support of this “fact,” Defendants cite to an em ail exchange regarding the location of the depositions in which Defendants’ counsel sum m arizes Plaintiff’s counsel’s alleged unwritten assertion that Ms. Abbott refuses to return to Atlantic City, even to be deposed, because she is fearful. See Polis Cert., Ex O. Defendants’ counsel’s recapitulation of a possible verbal conversation with Plaintiff’s counsel is unavailing evidence of Plaintiff’s intent- or lack thereof- to return. However, Plaintiff’s response is at m ost an unsubstantiated “general allegation” that fails to satisfy the standing requirem ents. Here, Plaintiff states that she resided in Willingboro, New J ersey and that she is currently in between residences. See Abbott Dep., Ex. C., 13:3-25-14:1-25. Willingboro is approxim ately forty-five m inutes to an hour away from the City. Plaintiff claim s that she had been to Gardner’s Basin at least once before but there is no testim ony that she intends to return. The only m ention of Plaintiff’s intent to return com es from her attorney in response to Defendants’ Statem ent of Material Facts: 11. Denied. Plaintiff would like to return to Atlantic City and Gardner’s Basin after her lawsuit is resolved. Plaintiff’s Response to Def. Stat. of Material Facts, ¶11. Plaintiff’s response fails to cite to any testim ony, affidavit, or other certification to corroborate the generalized statem ent that Plaintiff “would like to” return to the City. Such a statem ent is not evidence on sum m ary judgm ent and, alternatively, fails to vault the “som eday intentions” standing hurdle described in Lujan. See Whitm ore v. Arkansas, 495 U.S. 149, 158 (1990 ) (“Allegations of possible future injury do not satisfy the requirem ents of 29 Art. III. A threatened injury m ust be certainly im peding to constitute injury in fact”); Access 4 All v. Oak Spring, Inc., No. 50 4CV75OCGRJ , 20 0 5 WL 1212663, * 5 (M.D.Fl. May 20 , 20 0 5) (noting that absent a specific intent to return, a general statem ent expressing an intent to return is not sufficient to establish standing). As a result, sum m ary judgm ent is granted as to the Title II claim under the ADA. Even if Plaintiff could satisfy standing, sum m ary judgm ent is granted because there is no evidence that the City discrim inated against her because of her disability. The Aquarium and Back Bay Ale Houses are located on City property, but are m anaged, owned or leased to private entities, which have not been nam ed as defendants in this lawsuit. In addition, under the circum stances here, it is not clear that the officers were not able to com m unicate with plaintiff, and even if the m ethod was not in line with ADA standards, in responding to several sources of inform ation from the different establishm ents indicating that Plaintiff was acting out of control, the police officers alleged failure to provide effective written com m uniation under the circum stances did not violate the ADA. See Hainze v. Richards, 20 7 F.3d at 80 1. As a result, sum m ary judgm ent is granted as a m atter of law as to Plaintiff’s claim s against the City with respect to the actions of Defendants Keith, Clayton, Bouffard, and Herrerias on Plaintiff’s Title II and Section 50 4 claim s. 2. Title III of the ADA and the NJ LAD Title III of the ADA prescribes, as a “[g]eneral rule”: “No individual shall be discrim inated against on the basis of disability in the full and equal enjoym ent of the goods, services, facilities, privileges, advantages, or accom m odations of any place of public accom m odation by 30 any person who owns, leases (or leases to), or operates a place of public accom m odation.” 42 U.S.C. § 12182(a). For the sam e reasons stated above with respect to Plaintiff’s Title II and Section 50 4 claim s, Plaintiff fails to satisfy her burden of proving standing and sum m ary judgm ent is granted in favor of the Defendants as to the Title III claim s. In addition, Plaintiff fails to nam e a place of public accom m odation as a defendant in this m atter. However, she nam es J ack Keith, who is the Executive Director of the Foundation which operates the Aquarium . Although the Ale House sits on Garner’s Basin, there is no evidence suggesting that Keith has any function with respect to the operation of that restaurant. As a result, her only potential claim under Tile III com es against Keith. Because the Court finds that Plaintiff lacks standing to bring this claim , sum m ary judgm ent is granted. 3. NJ LAD Claim s The NJ LAD, N.J .S.A. § 10 :5, prohibits discrim ination against disabled persons. Any qualified individual possesses standing to assert claim s under the NJ LAD. Like Title III claim s, the NJ LAD provides that “[a]ll persons shall have the opportunity ... to obtain all the accom m odations, advantages, facilities, and privileges of any place of public accom m odation” without discrim ination on the basis of disability. To that end, N.J .S.A. 10 :5– 12 provides, in relevant part: It shall be ... an unlawful discrim ination: f. (1) For any owner, lessee, proprietor, m anager, superintendent, agent, or em ployee of any place of public accom m odation directly or indirectly to refuse, withhold from or deny to any person any of the accom m odations, advantages, facilities or privileges thereof, or to discrim inate against any person in the furnishing thereof.... 31 Courts consistently look to federal law for guidance in interpreting claim s under the NJ LAD. Borngesser v. J ersey Shore Med. Ctr., 340 N.J .Super. 369, 380 , 774 A.2d 615 (App. Div. 20 0 1) (applying federal law under Section 50 4 of the Rehabilitation Act of 1973, 29 U.S.C.A. §§ 70 1– 796, as guidance on a LAD claim ) (citing Leshner v. McCollister's Transp. Sys., Inc., 113 F.Supp.2d 689, 691– 92 n. 1 (D.N.J . 20 0 0 ); Ensslin v. Twp. of N. Bergen, 275 N.J .Super. 352, 363– 64, 646 A.2d 452 (App. Div. 1994), certif. denied, 142 N.J . 446, 663 A.2d 1354 (1995)); see also Chisolm v. McManim on, 275 F.3d 315, 324 n. 9 (3d Cir. 20 0 1) (confining discussion to ADA Title II “with the understanding that the principles will apply equally to the Rehabilitation Act and NJ LAD claim s”). Most often, courts refer to the provisions of the ADA or § 50 4 of the Federal Rehabilitation Act (“RA”) of 1973. See Chisolm , 275 F.3d at 325 n. 9 (looking to the ADA for guidance); Borngesser v. J ersey Shore Med. Ctr., 340 N.J . Super. 369, 774 A.2d 615, 621 (N.J . Super. 20 0 1) (relying on § 50 4 of the RA); Hall, 777 A.2d at 10 0 9 (“For the purpose of this analysis, there are no significant distinctions between the RA and LAD claim s.”). Federal law requires that places of public accom m odation furnish m em bers of the deaf com m unity with an “appropriate auxiliary aid.” Chisolm , 275 F.3d at 326 (citing 28 C.F.R. § 35.160 (a)) (discussing Federal Regulations with respect to the ADA). Plaintiff lacks standing to bring this claim for the sam e reasons that are fatal to her ADA claim because there is no evidence in the record to support a prim a facie case of discrim ination under the NJ LAD. Plaintiff has failed to put forth evidence that she faces a “real and im m ediate threat of future harm necessary for standing for prospective 32 relief-the only relief[.]” Cottrell v. Bobs Little Sport Shop, Inc., No. 0 9-CV-1987, 20 10 WL 936212, at *3 (D.N.J . Mar. 11, 20 10 ) (citing 42 U.S.C. §§ 1220 3(c), 12188; Cottrell v. Zagam i, LLC, No. 0 8-3340 , 20 0 9 WL 14160 44, at *3 n. 1 (D.N.J . May 20 , 20 0 9))(other citations om itted); see also Brown v. Fauver, 819 F.2d 395, 40 0 (1987). As a result, for the sam e reasons Plaintiff lacks standing to assert a claim under the ADA, Plaintiff cannot establish standing under the NJ LAD and sum m ary judgm ent is granted in favor of Defendants. Id. IV. Co n clu s io n For the reasons stated herein, sum m ary judgm ent is granted as to all claim s against J ack Keith and the Atlantic City Police Departm ent, Police Officers Herrerias, Bouffard, and Clayton in their official capacities, and Chief Mooney under §1983. Sum m ary judgm ent is granted as to the City of Atlantic City as to all claim s under §1983 for m unicipal liability and the claim s under the Am erican with Disabilities Act, Section 50 4 of the Rehabilitation Act, and the New J ersey Law Against Discrim ination. Sum m ary J udgm ent is denied as to the claim s against Police Officers Herrerias, Bouffard, and Clayton, in their individual capacities, pursuant to §1983 as to the claim s of false im prisonm ent and false arrest and m alicious prosecution. Sum m ary judgm ent is granted with respect to Plaintiff’s claim s under the Fourteenth Am endm ent and Fourth Am endm ent Excessive Force Claim . An appropriate Order shall issue. Date: March 27, 20 17 s/ J oseph H. Rodriguez HON. J OSEPH H. RODRIGUEZ, United States District J udge 33
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