KIEWANDA SHABAZZ-HENRY v. CITY OF NEWARK

NOT FOR PUBLICATION WITHOUT THE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-0

KIEWANDA SHABAZZ-HENRY,

Plaintiff-Appellant,

v.

CITY OF NEWARK and

GERARD PIACENZA,

Defendants-Respondents.

_____________________________

October 24, 2016

Argued September 14, 2016 Decided

Before Judges Fuentes, Simonelli and Gooden Brown.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-5471-12.

Eldridge Hawkins, Sr. argued the cause for appellant (Eldridge Hawkins LLC, attorneys; Mr. Hawkins and Cecile Portilla, on the briefs).

Gary S. Lipshutz, Assistant Corporation Counsel, argued the cause for respondents (Willie L. Parker, Corporation Counsel, City of Newark, attorneys; Mr. Parker and Mr. Lipshutz, on the brief).

PER CURIAM

Plaintiff Kiewanda Shabazz-Henry appeals from the November 12, 2014 Law Division order, which dismissed her complaint against defendants City of Newark (City) and Gerard Piacenza with prejudice pursuant to Rule 4:37-2(b). For the following reasons, we affirm.

I.

We derive the following facts from the record. Plaintiff and her husband, Andy Henry, were involved in an ongoing dispute with their neighbors, the Newtons, which resulted in the filing of numerous complaints against each in the municipal court. The volume of complaints became so overwhelming that the Essex County Prosecutor's Office (ECPO) began to screen them before additional complaints would be accepted for filing. Plaintiff claimed that a Captain from the City of Newark Police Department (NPD) advised her that she could no longer file complaints with the municipal court and must file complaints through the ECPO; however, no such restriction was placed on the Newtons, who continued filing complaints with the NPD against her and Henry.

On June 22, 2010, Qadir Newton,1 called the NPD and reported a burglary at his home. According to a NPD incident report, Newton stated that when he arrived home, he saw two males climbing out of the rear window and believed that one of the males looked like his neighbor, Henry. Piacenza, a NPD detective, was assigned to investigate the incident. Among other things, he went to the scene of the burglary to locate witnesses; checked field inquiry files; and canvassed the neighborhood for potential leads. He also viewed a purported surveillance video, which Newton had submitted to the NPD on February 16, 2011; however, Piacenza determined it was too distorted to identify the suspect. He spoke to Newton on February 17, 2011, at which time Newton told Piacenza the following

[H]e observed the neighbor coming out of the side window after the neighbor[']s wife called [the neighbor] and told [the neighbor] that he was coming. The neighbor's wife was standing on his porch and when [he] walked up he overheard her say to someone on the phone that he was home [and] to come out of the house.

[He] then went on the porch and heard some noise coming from the side of the house. He then looked on the side of the house and observed the suspect his next door neighbor coming out of the window.

On February 20, 2011, Newton gave the following unsworn audio-recorded statement to Piacenza

When we returned home me [sic] and my friend . . . pulled up in front of . . . the house next door, and we came to see [plaintiff] . . . standing in front of my door on the porch . . . as a lookout.

. . . .

Her arms [were] crossed, [s]he pulled out her cell phone and said they were back. As I was getting out of the car, I overheard her. I was about to go approach her as she was heading down my steps when I heard a noise in the back.

. . . .

I just left her alone. She dashed through like a little bush leading to the . . . front of her house.

. . . .

I then went to the back to see what the noise was and I [saw] . . . [Henry] my next-door neighbor, climbing out of my window, dropping down. Our eyes met for a second.

Newton then signed and dated photographs of both plaintiff and Henry. The audio-recorded statement was played to the jury.

On March 9, 2011, Piacenza signed a complaint warrant against plaintiff, which contained the following statement

By certification or on oath the complainant says that to the best of his knowledge, information and belief the named defendant on or about [June 22, 2010] . . . did commit the act of burglary by forcing his way into the victim's residence through the laundry room window. Once inside the suspect removed copper pipes from the basement, and the upstairs toilet bowl.

That same day, Piacenza appeared before municipal court Judge Diana E. Montes to request an arrest warrant for plaintiff. Based on what Newton told him, Piacenza advised the judge that "Henry was observed coming out of the window by the victim and [plaintiff] was on the [Newtons'] porch as a supposed lookout." Judge Montes found there was probable cause to issue the arrest warrant based on plaintiff allegedly being on the Newtons' porch as a lookout.

At trial, Piacenza testified that the statement in plaintiff's complaint warrant and use of the pronoun "him" were a mistake. He explained that he used the complaint warrant he had prepared for Henry and inserted a statement that plaintiff was seen standing on the Newtons' porch as a lookout; however, the original statement from Henry's complaint warrant remained because he did not "save" it in the computer. Piacenza also testified that he faxed the warrant to "teletype" and plaintiff's information was "sent to the Fugitive Apprehension Team."

Plaintiff and Henry were arrested on March 15, 2011. Plaintiff was processed and placed in a cell. She claimed she was never brought before a judge or "read [her] rights[.]" Her brother posted bail and she was released no more than one hour after her arrest.

Piacenza testified that after plaintiff's arrest, he faxed an updated form to "teletype" stating that plaintiff had been arrested; however, he did not call to confirm it was received. Piacenza and the City stipulated that the warrant should have been removed from the system.2

On May 29, 2011, plaintiff was driving through South Brunswick with her three children when she was stopped by South Brunswick Police Officer W. Merkler, who was on "roving drunk driving enforcement patrol" and noticed plaintiff's car swerve to both sides. Officer Merkler saw that one of the children was not properly secured with a seat belt and intended to issue plaintiff a summons for this violation. He returned to his patrol car to check her driver's license and discovered she had an arrest warrant from Newark for burglary.

Plaintiff explained to Officer Merkler that she had been arrested on the warrant and posted bail. The officer spoke to Detective Gilbert from the NPD, who told him that to the best of her knowledge, the warrant should have been removed from the system, but she could not confirm this. As a result, plaintiff was arrested and she and her children were transported to police headquarters. Henry eventually came to police headquarters with the bail receipt from the burglary charge and plaintiff was released.

Plaintiff filed a complaint against the City and Piacenza, alleging due process violations under the federal and State Constitutions and the New Jersey Civil Rights Act (CRA), N.J.S.A. 10:6-1 to -2, stemming from the Newark and South Brunswick arrests and Piacenza's failure to remove the arrest warrant from the system. Plaintiff subsequently filed an amended complaint, adding a claim under the CRA for aiding and abetting the Newtons' unlawful use of the NPD and the City's court system, and claims of aiding and abetting a private nuisance (the Newtons), invasion of privacy (false light),3 and intentional and reckless infliction of emotional distress. Plaintiff alleged that: there was no factual basis or probable cause for issuance of the arrest warrant; the NPD and municipal court failed to charge, arrest, and prosecute the Newtons for their criminal behavior and false complaints against the Henrys; and the NPD and municipal court facilitated the Newtons' charges against and harassment of the Henrys. Plaintiff also alleged a due process deprivation based on a violation of Rule 3:2-3(b), which governs the issuance of an arrest warrant, and that the City failed to investigate her complaints about the Newtons.

The matter was tried before a jury over the course of four days, during which plaintiff's claims apparently expanded. Prior to the completion of plaintiff's case, Judge Edith K. Payne dismissed with prejudice all due process claims against the City arising from: (1) the conduct of the municipal court and its officers; (2) any speedy trial violation; (3) a violation of the Rules of Court; (4) the failure to prosecute the Newtons; and (5) the "failure to investigate (with the exception of [p]laintiff's due process claim for failure to investigate pertaining to [p]laintiff's "[f]alse [a]rrest" claim against . . . Piacenza for the burglary charge against [p]laintiff)."

Judge Payne determined that the municipal court was not an agent of the City for purposes of this litigation and both the municipal court and municipal prosecutor had absolute immunity. Citing Kagan v. Caroselli, 30 N.J. 371 (1959), the judge found that the municipal court is part of the State judicial system and the judicial power exercised by municipal court judges is the judicial power of the State, not the local government.

Judge Payne also found that speedy trial relief is confined to the criminal prosecution in which the violation occurred, and there was no established right to a speedy trial independent of the criminal proceeding that would support a cause of action under 42 U.S.C.A. 1983 or the CRA.

Lastly, Judge Payne relied on Deshaney v. Winnebago County Department of Social Services, 489 U.S. 189, 109 S. Ct. 998, 103 L. Ed. 2d 249 (1989), to dismiss all due process claims arising out of inaction by the police. The judge also relied on Linda R. S. v. Richard D., 410 U.S. 614, 93 S. Ct. 1146, 35 L. Ed. 2d 536 (1973) to dismiss the due process claims arising from the failure to prosecute.

The trial continued on plaintiff's remaining claims: (1) civil rights claims for false arrest; (2) civil rights claims for the South Brunswick arrest based on the failure to remove the arrest warrant from the system; (3) equal protection claim based on a "class of one" theory; and (4) common law tort claims. Following the completion of plaintiff's case, Judge Payne dismissed all of these claims with prejudice pursuant to Rule 4:37-2(b).

In dismissing plaintiff's common law tort and intentional infliction of emotional distress claims, Judge Payne found that plaintiff failed to vault the verbal threshold requirement of N.J.S.A. 59:9-2(d). Citing Buckley v. Trenton Saving Fund Society, 111 N.J. 355 (1988), the judge also found plaintiff failed to demonstrate that defendants acted intentionally and outrageously, or that she suffered severe emotional distress.

In dismissing plaintiff's civil rights claim based on the alleged false arrest in Newark, Judge Payne found as follows

[T]here is evidence in this case that a statement was given by . . . Newton in which he characterized [plaintiff] as a lookout who was standing on the front porch of the house, and that she informed [Henry] of [Newton's] approach, and in that fashion permitted [Henry] to leave the premises.

In addition to that there was evidence that . . . Newton had identified both [plaintiff] and [Henry], and initialed their photographs when he came before . . . Piacenza. [Piacenza] has stated without contradiction, that those facts were made know to [Judge Montes] at the time that she issued the warrant for [plaintiff's] arrest. There is no evidence to the contrary. [Piacenza's] statements were made on the record and if, in fact, they were not made certainly the plaintiff had the opportunity to demonstrate that fact.

The judge also found there was no evidence that Piacenza knowingly, deliberately, or with reckless disregard for the truth, made false statements or omissions that created a falsehood in applying for the arrest warrant; rather, the judge found that "there [was] only the uncontradicted statement of . . . Piacenza that he appropriately gave the facts to Judge Montes, and on the basis of his oral representations the warrant was issued."

In dismissing plaintiff's civil rights claim based on the alleged false arrest in South Brunswick, Judge Payne relied on Berg v. County of Allegheny, 219 F.3d 261 (3d Cir. 2000), cert. denied, 531 U.S. 1072, 121 S. Ct. 762, 148 L. Ed. 2d 664 (2001), and found that Piacenza was merely negligent when he failed to remove the warrant from the system, and negligence was insufficient to establish a cause of action for false arrest.

Regarding plaintiff's equal protection "class of one" claim, Judge Payne relied on Engquist v. Oregon Department of Agriculture, 553 U.S. 591, 128 S. Ct. 2146, 170 L. Ed. 2d 975 (2008), and found that the discretionary acts of an individual police officer cannot give rise to a "class of one" claim in the context presented in this case. Lastly, the judge found there was no evidence that supported plaintiff's false light claim, and she clarified that she had dismissed the aiding and abetting a nuisance claim as part of her earlier dismissal of plaintiff's due process claims.

II.

Plaintiff first challenges the dismissal of her due process claims based on her alleged false arrest in Newark.4 Plaintiff contends Judge Payne erred by not finding a deprivation of due process based on a violation of Rule 3:2-3(b) and Rule 3:4-2(b), which governs a defendant's first appearance following the filing of a complaint.

A motion for involuntary dismissal is premised "on the ground that upon the facts and upon the law the plaintiff has shown no right to relief." R. 4:37-2(b). If the court, "'accepting as true all the evidence which supports the position of the party defending against the motion and according him the benefit of all inferences which can reasonably and legitimately be deduced therefrom,'" finds that "'reasonable minds could differ,'" then "'the motion must be denied.'" Verdicchio v. Ricca, 179 N.J. 1, 30 (2004) (quoting Estate of Roach v. TRW, Inc., 164 N.J. 598, 612 (2000)). "A motion for involuntary dismissal only should be granted where no rational [factfinder] could conclude that the plaintiff marshaled sufficient evidence to satisfy each prima facie element of a cause of action." Godfrey v. Princeton Theological Seminary, 196 N.J. 178, 197 (2008). We apply the same standard in reviewing a trial court's grant or denial of a Rule 4:37-2(b) motion for involuntary dismissal. Fox v. Millman, 210 N.J. 401, 428 (2012). Applying these standards, we discern no reason to disturb any of Judge Payne's rulings.

The Federal Civil Rights Act of 1971, codified as amended at 42 U.S.C.A. 1983, provides that any official who, under color of state law, deprives a person of "any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceedings for redress." 42 U.S.C.A. 1983. The provision "is a means of vindicating rights guaranteed in the United States Constitution and federal statutes." Gormley v. Wood-El, 218 N.J. 72, 97 (2014) (citation omitted).

The CRA authorizes a private cause of action for the enforcement of an individual's civil rights. The CRA "applies not only to federal rights but also to substantive rights guaranteed by New Jersey's Constitution and laws." Id. at 97. Under N.J.S.A. 10:6-2(c), which provides for a private cause of action, only individuals "acting under color of law," may be sued. Perez v. Zagami, LLC, 218 N.J. 202, 204 (2014). Specifically, N.J.S.A. 10:6-2(c) provides as follows

Any person who has been deprived of any substantive due process or equal protection rights, privileges or immunities secured by the Constitution or laws of the United States, or any substantive rights, privileges or immunities secured by the Constitution or laws of this State, or whose exercise or enjoyment of those substantive rights, privileges or immunities has been interfered with or attempted to be interfered with, by threats, intimidation or coercion by a person acting under color of law, may bring a civil action for damages and for injunctive or other appropriate relief.

This subsection is, like 42 U.S.C.A. 1983, a means of vindicating substantive rights rather than a source of those rights in and of itself. The Legislature enacted the CRA "for the profound purpose of 'provid[ing] the citizens of New Jersey with a State remedy for deprivation of or interference with the civil rights of an individual.'" Perez, supra, 218 N.J. at 212 (citation omitted). The CRA "was intended to address potential gaps in remedies available under New Jersey law but not cognizable under the federal civil rights law, Section 1983." Ibid.

The CRA and 42 U.S.C.A. 1983 are often used to vindicate rights guaranteed by the Fourteenth Amendment to the United States Constitution, the analysis of which is the same under both provisions. Gormley, supra, 218 N.J. at 98. The Fourteenth Amendment provides, in part, that "no State shall . . . deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, 1. "The Due Process Clause guarantees more than fair process" and "provides heightened protection against government interference with certain fundamental rights and liberty interests." Washington v. Glucksberg, 521 U.S. 702, 719-20, 117 S. Ct. 2258, 2267, 138 L. Ed. 2d 772, 787 (1997).

In Tumpson v. Farina, 218 N.J.450, 477 (2014), our Supreme Court differentiated between the rights which are enforceable under either the State Constitution or the CRA and those which are suited for a 42 U.S.C.A. 1983 claim. The Court explained

We note two distinct differences betweenSection 1983and our Civil Rights Act. First, our Act protects against the deprivation of and interference with "substantiverights, privileges or immunities secured by the Constitution or laws of this State,"N.J.S.A.10:6-2(c) (emphasis added), whereasSection 1983protects against "the deprivation ofanyrights, privileges, or immunities secured by the Constitution and laws,"42 U.S.C.A. 1983(emphasis added). Thus,Section 1983provides remedies for the deprivation of both procedural and substantive rights while N.J.S.A.10:6-2(c) provides remedies only for the violation of substantive rights.

[Id.at 477 (2014) (emphasis in original).]

The burden is on the plaintiff to show that the right is substantive, not procedural. Id.at 478. "'Substantive' addresses those rights and duties that may give rise to a cause of action . . . whereas 'procedural' addresses 'the manner and the means' by which those rights and duties are enforced." Ibid.(citations omitted).

Here, plaintiff's due process claim based on a violation of Rule 3:2-3(b) and Rule 3:4-2(b) is procedural in nature and not protected by the CRA. Id. at 477. Accordingly, that claim did not give rise to a cause of action and was properly dismissed as a matter of law.

Even assuming that a violation of these Rules creates a substantive right, there was no violation. Rule 3:2-3(b) applies to arrest warrants based on electronically-communicated information provided under oath by an applicant who is not present before the issuing judge. See Pressler & Verniero, Current N.J. Court Rules, comment on R. 3:2-3(b) (2017). Piacenza was present before Judge Montes when he applied for the arrest warrant.

Rule 3:4-2(a) provides, in pertinent part, that "[i]f the defendant remains in custody, the first appearance shall occur within 72 hours after arrest . . . before a judge authorized to set bail for the offenses charged." (Emphasis added). Rule 3:4-2(b) applies to a defendant held on an indictable offense, and requires a first appearance at a centralized location before a judge appointed by the Assignment Judge. Plaintiff did not remain in custody; she posted bail and was released within one hour of her arrest. Accordingly, plaintiff's due process claims based on a violation of the Rules of Court lack merit.

Plaintiff also contends that Judge Payne erred in not finding the arrest warrant was issued without probable cause. Relying on Connor v. Powell, 162 N.J.397, cert. denied, 530 U.S. 1216, 120 S. Ct. 2220, 147 L. Ed. 2d 251 (2000), plaintiff argues there was no probable cause to issue the arrest warrant because Newton's audio-recorded statement was unsworn. However, Connordoes not require a sworn statement to establish probable cause for an arrest warrant, and it is distinguishable. There, the police officer who issued the complaints against the plaintiff conducted no investigation, never spoke to the victim, and the probable cause to issue the complaints was based solely on each party's unsworn version of events. Id.at 402-03, 414. Further, the plaintiff was not arrested pursuant to an arrest warrant issued by a judge.

Here, Piacenza conducted an independent investigation, spoke to the victim, and obtained a statement from him, albeit unsworn. After taking those steps, Piacenza presented the matter to a judge, who determined there was probable cause and issued the arrest warrant. Thus, we conclude that Newton's unsworn statement does not establish the arrest warrant was issued without probable cause. Having said that, we continue our review.

"[F]or an arrest, 'there must be probable cause to believe that a crime has been committed and that the person sought to be arrested committed the offense.'" State v. Brown, 205 N.J.133, 144 (2015) (quoting State v. Chippero, 201 N.J.14, 28 (2009)). "Although it is difficult to define the concept with precision, probable cause requires 'more than a mere suspicion of guilt' but less evidence than is needed to convict at trial." Ibid.(quoting State v. Basil, 202 N.J.570, 585 (2010)). "In determining whether there was probable cause to make an arrest, a court must look to the totality of the circumstances, and view those circumstances from the standpoint of an objectively reasonable police officer." State v. Gibson, 218 N.J.277, 293 (2014)(quoting Basil, supra, 202 N.J.at 585)).

Where an arrest is made pursuant to a warrant, a plaintiff challenging probable cause must

show[], by a preponderance of the evidence: (1) that the police officer "knowingly and deliberately, or with a reckless disregard for the truth, made false statements or omissions that create a falsehood in applying for a warrant;" and(2) that such statements or omissions are material, or necessary, to the finding of probable cause.

[Wilson v. Russo, 212 F.3d 781, 786-87 (3d Cir. 2000) (citation omitted).]

There was sufficient probable cause in this case to issue the arrest warrant. Newton twice identified plaintiff as the person standing as a lookout on his porch while her husband was inside the Newtons' home. Piacenza personally appeared before Judge Montes and testified to what Newton said, and his testimony was not disputed. As Judge Payne correctly found, there was no evidence that Piacenza knowingly and deliberately, or with a reckless disregard for the truth, made false statements or omissions that created a falsehood in applying for the warrant. Accordingly, the judge properly dismissed the false arrest claim.

III.

Plaintiff contends that Judge Payne abused her discretion by dismissing the equal protection claim under the "class of one" theory. Plaintiff argues that she provided evidence of a discriminatory effect, which included the denial of her right to public accommodation, as well as evidence of a discriminatory purpose.5

The equal protection guarantee in our State Constitution has been interpreted under Article I, 1. See, e.g., Sojourner A. v. N.J. Dep't of Human Servs., 177 N.J. 318, 332 (2003). The right of equal protection in this context "protect[s] against injustice and against the unequal treatment of thosewho should be treated alike." Lewis v. Harris, 188 N.J.415, 442 (2006).

The standards for an equal protection claim under either 42 U.S.C.A. 1983 or the CRA are the same. SeeState v. Segars, 172 N.J.481, 494-95 (2002). To prevail on a claim under either, the plaintiff must "prove that actions of each [d]efendant (1) had a discriminatory effect on them and (2) were motivated by a discriminatory purpose." Major Tours, Inc. v. Colorel, 799 F. Supp. 2d 376, 391 (D.N.J. 2011) (citing Bradley v. United States, 299 F.3d 197, 205 (3d Cir. 2002)). Under the "class of one" theory, plaintiff must show that she was "intentionallytreated differently from others similarly situated and that there [was] no rational basis for the difference in treatment." Willowbrook v. Olech, 528 U.S. 562, 564, 120 S. Ct. 1073, 1074, 145 L. Ed. 2d 1060, 1063.

In Engquist, on which Judge Payne relied to dismiss this claim, the Court wrote

There are some forms of state action, however, which by their nature involve discretionary decisionmaking based on a vast array of subjective, individualized assessments. In such cases the rule that people should be "treated alike, under like circumstances and conditions" is not violated when one person is treated differently from others, because treating like individuals differently is an accepted consequence of the discretion granted. In such situations, allowing a challenge based on the arbitrary singling out of a particular person would undermine the very discretion that such state officials are entrusted to exercise.

[Engquist, supra, 553 U.S.at 603, 128 S. Ct.at 2154, 170 L. Ed. 2d at 987.]

Notably, Engquistconcerned whether the State acts as an employer. However, the Seventh Circuit interpreted Engquistto mean: "The lesson we take from this is that context matters." Hanes v. Zurick, 578 F.3d 491, 495 (7th Cir. 2009).

Turning to the underlying merits of plaintiff's equal protection claim, she asserts that she was "a frail woman" who was "denied access to public accommodation and equal protection of laws when she was told that she had to file her complaints directly through the [ECPO] as opposed to Mark Newton who was a big 'brawny man.'" She argues that Judge Payne abused her discretion by refusing to accept legal arguments that the disfavored "frail woman" as opposed to the favored "large imposing male and his son" could be the basis for deprivation of equal protection. By making this argument, plaintiff apparently attempts to prove prong two of the equal protection test. She appears to argue that the City required her to file complaints through the ECPO because she was a "frail woman" and Mark Newton was a "brawny man." There is absolutely no support for this argument in the record, and we reject it.

Plaintiff nevertheless maintains as to the second prong that she was impeded from filing complaints against the Newtons without a similar prohibition for them. However, it was never established at trial that the Newtons were not subject to the same screening procedures as plaintiff. Plaintiff merely testified that after she was informed of the procedure, she continued to receive complaints made by the Newtons to the NPD. There was no proof that the Newtons were not similarly screened by the ECPO and permitted to make those complaints. In addition, even assuming the Newtons were not subject to the same procedure, it was plaintiff's burden under Engquistto prove that no rational basis existed for the disparate treatment. She never met that burden. Thus, Judge Payne properly dismissed her equal protection claim under the "class of one" theory.

IV.

Plaintiff contends that Judge Payne erred in dismissing her common law tort claims of false arrest, false imprisonment, aiding and abetting a nuisance, false light, and intentional infliction of emotional distress. The judge dismissed plaintiff's tort claims pursuant to N.J.S.A.59:9-2(d), which provides as follows

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. 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.

The verbal threshold requirement applies to all tort-based claims, including claims for false arrest and false imprisonment. DelaCruz v. Borough of Hillsdale, 183 N.J.149, 164-65 (2005). Accordingly, Judge Payne correctly dismissed plaintiff's tort claims with prejudice as a matter of law.

Even if the verbal threshold requirement did not apply, the test applied for a tort-based false arrest claim is similar to that of a constitutional-based false arrest claim. Wildoner v. Borough of Ramsey, 162 N.J. 375, 387 (2000). As we previously discussed, plaintiff failed to sustain such a constitutional claim and thus, even on the merits, her tort-based false arrest claim would similarly fail.

Plaintiff's intentional infliction of emotion distress claim fails as well. To prove a cause of action for intentional infliction of emotional distress, a plaintiff must establish that: (1) the defendant acted intentionally or recklessly, both in doing the act and producing emotional distress; (2) the defendant's conduct was so outrageous in character and extreme in degree as to go beyond all possible bounds of decency; (3) the defendant's actions must have been the proximate cause of the plaintiff's emotional distress; and (4) the emotional distress suffered by the plaintiff was so severe that no reasonable person could be expected to endure it. Turner v. Wong, 363 N.J.Super.at 186, 199 (App. Div. 2003)

"Severe emotional distress" is a severe and disabling emotional or mental condition, which may be generally recognized and diagnosed by a trained professional. Id.at 200. Severe emotional distress is shown where there is a dramatic impact on a plaintiff's everyday activities or ability to function and there is regular psychiatric counseling. Ibid.; see alsoHarris v. Middlesex Cty. College, 353 N.J. Super.31, 47 (App. Div. 2002) (holding there was no evidence of severe emotional distress where there is no allegation of interference with daily activities, no expert report to support claims of emotional devastation or loss of self-esteem, and no evidence of counseling or treatment). "Because the severity of the emotional distress raises questions of both law and fact, the court 'decides whether as a matter of law such emotional distress can be found, and the jury decides whether it has in fact been proved.'" Tarr v. Ciasulli, 181 N.J.70, 77 (2004) (emphasis added) (citation omitted).

Judge Payne correctly found as a matter of law that plaintiff failed to prove her intentional infliction of emotional distress claim. Plaintiff failed to demonstrate that defendants' conduct was so outrageous in character and extreme in degree as to go beyond all possible bounds of decency, and that she suffered severe emotional distress.

V.

Plaintiff contends that Judge Payne erred in sua sponte dismissing her due process claims arising from: the conduct of the municipal court and its officers; a violation of the Rules of Court; the failure to investigate; and failure to prosecute the Newtons. Plaintiff argues the judge violated the summary judgment standards in Rule 4:46-1, and her rulings were not properly the subject of a Rule 4:37-2(b) motion. Plaintiff also contends the judge erred in finding that the City and its municipal court and municipal court officers and staff had absolute immunity and that the municipal court is a State agency, and the judge pre-judged the issues.

We have considered these contentions in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

1 The record reflects his name as both "Qadir" and "Quadir." He is the adult son of Mark and Andrea Newton.

2 Piacenza later pled guilty to an administrative charge for failing to properly remove the warrant from the system.

3 The false light claim was apparently based on an article appearing on NJ.com which described the ongoing disputes between the Henrys, the Newtons, and the City.

4 Contrary to what plaintiff states in Point VI of her reply brief, she did not brief any issues specifically related to her alleged false arrest in South Brunswick. "An issue that is not briefed is deemed waived upon appeal." N.J. Dep't of Envtl. Prot. v. Alloway Twp., 438 N.J. Super. 501, 505-06 n.2 (App. Div.), certif. denied, 222 N.J. 17 (2015).

5 Plaintiff's reliance on the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, and LAD case law to support this argument is misplaced. Plaintiff never raised an LAD claim in either in her pleadings or at trial.