Civil Action No. 11

360 (J

V)

Plaint

OPINION

v.

CITY OF ELIZABETH, et at.,

Defendants.

John Michael Vazguez. U.S.D.J.

In this case, Plaintiff accuses four former members of the Elizabeth Police Department of

various violations of his rights in two separate incidents. Specifically, Plaintiff alleges violations

of his constitutional rights pursuant to 42 U.S.C. §1983. This matter comes before the Court on

motions for summary judgment filed by Defendant Christopher Flatley, D.E. 163, Defendant

James Diorio, D.E. 165, Defendant Paul Pastemak, D.E. 167, and Defendant Kevin McDonough,

D.E. 170. Plaintiff James Baker filed a brief in opposition to Defendants’ motions, D.E. 171, to

which all four Defendants filed briefs in reply,’ D.E. 172, 173, 174, 175. The Court reviewed

‘The parties’ briefs are as follows: (1) Plaintiffs brief in opposition to Defendants’ motions for

summary judgment (“Plfs Opp. Brief), D.E. 171; (2) Defendant Flatley’s brief in support of his

motion for summary judgment (“Def. Flatley Br.”), D.E. 163; (3) Defendant Diorio’s brief in

support of his motion for summary judgment (“Def. Diorio Br.”), D.E. 165; (4) Defendant

Pastemak’s brief in support of his motion for summary judgment (“Def. Pastemak Br.”), D.E.

167; (5) Defendant McDonough’s brief in support of his motion for summary judgment (“Def.

McDonough Br.”), D.E. 170; (6) Defendant Pastemak’s reply brief in support of his motion for

summary judgment (“Def. Pastemak’s reply”), D.E. 172; (7) Defendant McDonough’s reply

brief in support of his motion for summary judgment (“Def. McDonough’s reply”), D.E. 173; (8)

Defendant Flatley’s reply brief in support of his motion for summary judgment (“Def Flatley’s

reply”), D.E. 174; and (9) Defendant Diorio’s reply brief in support of his motion for summary

judgment (“Def. Diorio’s reply”), D.E. 175.
A. Factual Background3

i. First Arrest and Vehicle Impounding

On October 2, 2009, Plaintiff James Baker was arrested in Elizabeth, New Jersey,

following a vehicle pursuit by police. Defendant Flatley’s Statement ofUndisputed Material Factsat ¶ 1 (“Def. Flatley’s $OMF”). The Plaintiffwas charged with two crimes and issued a summons.

Defendant Pasternak’s Statement of Undisputed Material Facts at ¶ 4 (“Def. Pastemak’s SOMF”).

Plaintiffs vehicle, a Cadillac Escalade, was impounded and towed at the time of Plaintiffs arrest.Def. Pastemak’s $OMf at ¶5.

There is no dispute that Plaintiffs vehicle was impounded based on his October 2, 2009

arrest and that Plaintiff ultimately retrieved the Escalade sometime later. Defendant Pastemak

was the Elizabeth Police Department Detective assigned to the investigation on October 5, 2009.

Def. Pastemak’s $OMF at ¶ 6. However, Plaintiff alleges that Defendant Pastemak was in

control of Plaintiffs vehicle at Highway Towing from October 2, 2009 until January 14, 2010 in

2 Plaintiff submitted a letter briefin response to Defendant Diorio ‘5 reply, D .E. 176, and a letter

brief in response to Defendant Pasternak’s reply. However, Local Civil Rule 7.1(d)(6) specifies

that “[n]o sur-replies are permitted without permission ofthe Judge or Magistrate Judge to whomthe case is assigned.” Plaintiff has not sought nor received leave to file a sur-reply. In addition,Plaintiffs sur-replies are substantively deficient as they do not address any new argument raisedin the reply submissions. Therefore this Court will not consider these sur-replies. See, e.g.,

Roofers’Pension Fund v. Perrigo Co., PLC, 2017 WL 3579208, at *3 (D.N.J. Aug. 18, 2017).

The facts herein come from the evidence in the record.

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tape” underneath the glove box. Def. Pastemak Br., Ex. D (Baker Feb. 16, 2016 Deposition).

Plaintiff also described that he saw “little mikes4 [sic] in my speakers. I seen [sic] some other

piece up under my car, which I had pictures of, which my lawyer had pictures of Up under the

car, like I had some wires running through my back lights, and the panels of my doors was loose

with the cloth hanging out.” Id. Additionally, Plaintiff described that when he received his

Escalade, “it wouldn’t start up at first and the interior lights would not come on. Then when I

turned the car off, I could hear ticking up in the dash, just ticking, tick tick tick. It wouldn’t

stop.” Id. Plaintiff further stated in his deposition testimony that he did not have copies ofthese

pictures, only that he had been attempting to obtain them from his previous trial counsel. Id.

Plaintiff also stated that he never reported what he observed in his vehicle to any law

enforcement. Id.

ii. Second Arrest

The bulk of Plaintiffs allegations stem from a separate set of events that occurred on

November 12, 2009. Defendant Diorio, Defendant, Flatley, and Defendant McDonough were on

duty for the Elizabeth Police Department. Defendant McDonough claims that he receivedinformation from a confidential informant that Plaintiff was coming to Elizabeth to deliver heroin.

Def Flatley’s $OMF at ¶ 4. Plaintiff disputes that Defendant McDonough received such a call.5

‘ The Court assumes that “mikes” refers to microphones.

In a section of his Ph’s Opp. Br. labeled “Material Facts That Are In Dispute” Plaintiffstates

that “[i]t is a matter of dispute as to whether McDonough received a phone call from an

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at ¶ 11. Plaintiff does not dispute these facts. Plaintiff states that he picked up two individuals to

bring them to the hospital and it is at this point that Plaintiff claims he and his two passengers first

noticed and recognized a black SUV vehicle following them. P1? s SAC at ¶ 8. Plaintiff then

dropped off the two passengers at a hospital on Broad Street in Elizabeth. P1? s SAC at ¶ 8.

The above is largely not in dispute. However, it is at this point that Plaintiff and

Defendants’ accounts begin to differ significantly. Plaintiff claims that he pulled over to the side

of East Broad Street and exited his vehicle, Pl?s SAC, at ¶ 8, while he was on the way to get

breakfast before his Social Security appointment, P1? s Opp. Br. at 10. Plaintiff alleges that afler

exiting his vehicle, the unmarked SUV that was following him “came at plaintiff full speed as if

to hit him which caused plaintiff to jump back into his vehicle and pull off of fear of being

attacked.” P1? s SAC at ¶ 8. Plaintiff claims that his Lexus was then rammed by Defendants’

vehicle without any reason, and Defendants attempted to run Plaintiff off of the road. P1? s SAC

at ¶ 8. Plaintiff further alleges that Defendants had not, at this point, identified themselves as

police officers or used any emergency lights. Pl?s SAC at ¶ 8. Plaintiff continues that Defendants

informant that [Plaintiff] was going to meet several people to deliver drugs to on [sic] Broad

Street in Elizabeth, N.J. . . . At no time was [Plaintiff] meeting anyone for such drug sell [sic].”

P1? s Opp. Br. Statement of Material Facts that are in Dispute at ¶ 4. Plaintiff further claims that

Defendants “fabricated a story of receiving a call from an informant who’s [sic] reliability has

not been established about a drug sell that was never corroborated, and this lady that don’t exist

who was mysteriously at [Plaintiffs] car door when officers were at his door and did not arrest

her, but then again, she was not at his car door and neither were they.” Pl?s Opp. Br. at 7.

However, other than his opinion, Plaintiff has not provided any evidence that support his claim

that Defendant McDonough did not receive a tip from an informant.

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resulting in Plaintiff crashing into two parked cards and a pole.6 P1? s SAC at ¶ 9. Plaintiff

indicates that the crash totaled the Lexus and that he also sustained injuries to his leg, neck, and

back. Id. atJ 10.

Defendants have a different version. Defendants claim that Plaintiff pulled over to the side

of East Broad Street next to a woman standing on the sidewalk. Def. Flately’s SOMF at ¶ 6.

Defendants assert that Defendant Diorio and Defendant Flatley then exited their vehicle and

observed Plaintiff attempt a drug transaction with the woman on the sidewalk.7 Id at ¶ 7.

Defendants then claim that the Defendants instructed Plaintiff to open his car door, but that

Plaintiff disregarded these instructions and drove away at a high rate of speed. Id at ¶ 8.

Defendants state that Plaintiff ignored the Defendants’ emergency lights and sirens and continued

to flee at a high rate of speed. Id at ¶ 10. Defendants claim that they followed Defendant in their

vehicle and that Defendant lost control of his Lexus and crashed into a utility pole. Id at ¶ 10-1 1.

Plaintiff was then arrested and later plead guilty to second degree eluding in violation of

N.J.S.A. § 2C:29—2(b). Id; Def. Flatley’s Br., Ex. B (transcript of Plaintiffs plea). Plaintiffs

conviction has not been overturned or otherwise vacated.

6 Plaintiff described in his deposition that “I see a police car with sirens. That’s when I slowed

down. When I slowed down, the black truck came and hit me. When he hit me in the back, I hit

two parked cars on the curb and hit a telephone pole.” Def. Pasternak Br., Ex. D (Baker Feb. 16,

2016 Deposition).

Plaintiff claims that that ‘[a]t no time did defendants approach [Plaintiffi’s car until he started

to drive away.” P1? s Opp. Br. Statement of Material Facts in Dispute at ¶ 20.

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failure to pay the required filing fee. D.E. 9. On August 19, 2011, Plaintiffrequested an extension

to pay the filing fee, D.E. 11, and then paid the fee on February 13, 2013, D.E. 14. On March 1,

2013 Plaintiff filed another Amended Complaint. D.E. 15. On September 20, 2013 all but four

claims were dismissed. D.E. 25.

On August 22, 2014, Plaintiff again filed another Amended Complaint. D.E. 36. This

Amended Complaint included previously dismissed claims. See D.E. 25 (dismissing some claims

with prejudice). On September 3, 2014, then-Magistrate Judge Madeline C. Arleo ordered Plaintiff

to refile his Amended Complaint without the dismissed claims. D.E. 37.

On September 26, 2014, Plaintiff refiled a Second Amended Complaint (“Plfs SAC”).8

D.E. 39. On February 6, 2015, Defendants moved to dismiss Plaintiffs Second Amended

Complaint. D.E. 54. On July 8, 2015 Judge Wigenton granted Defendants’ motion in part, but

denied Defendants’ motion to dismiss some claims. D.E. 60, 61. Remaining are Plaintiffs claims

for illegal search against Defendant Pastemak; for excessive force against Defendant Diorio,

Defendant Flatley, and Defendant McDonough; and for harassing, intimidating, and planting

8 This Opinion will refer to this complaint, D.E. 36, as Plaintiffs Second Amended Complaint(“Plfs SAC”) because Judge Wigenton, who was previously assigned to this action, and

Defendants refer to it as Plaintiffs Second Amended Complaint. However, as noted, this was

actually Plaintiffs Third Amended Complaint.

6
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

fed. R. Civ. P. 56(a). A fact in dispute is material when it “might affect the outcome of the suit

under the governing law” and is genuine “ifthe evidence is such that a reasonable jury could return

a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Disputes over irrelevant or unnecessary facts will not preclude granting a motion for summary

judgment. Id. “In considering a motion for summary judgment, a district court may not make

credibility determinations or engage in any weighing of the evidence; instead, the nonmoving

party’s evidence ‘is to be believed and all justifiable inferences are to be drawn in his favor.”

Marino v. Indtts. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at

255)). A court’s role in deciding a motion for summary judgment is not to evaluate the evidence

and decide the truth of the matter but rather “to determine whether there is a genuine issue for

trial.” Anderson, 477 U.S. at 249.

A party moving for summary judgment has the initial burden of showing the basis for its

motion and must demonstrate that there is an absence of a genuine issue of material fact. Celotex

Coip. v. Catrett, 477 U.S. 317, 323 (1986). After the moving party adequately supports its motion,

As Judge Wigenton noted in her July 8, 2015 opinion, “[t]he status of [the harassment and

intimidation] claim as to Defendant McDonough [was] not entirely clear” because this claim

against Defendant McDonough was never formally dismissed. D.E. 52, 53. Defendant

McDonough’s brief in support of his motion for summary judgment does address this claim

briefly in its Preliminary Statement. D.E. 170 at 1-2. However, Plaintiff does not include any

mention ofthis claim in P1? s Opp. Br.

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specific facts and affirmative evidence that contradict the moving party. Anderson, 477 U.S. at

250. “[I]f the non-movant’s evidence is merely ‘colorable’ or is ‘not significantly probative,’ the

court may grant summary judgment.” Messa v. Omaha Prop. & Cas. Ins. Co., 122 F. Supp. 2d

523, 52$ (D.N.J. 2000) (quoting Anderson, 477 U.S. at 249-50)).

Ultimately, there is “no genuine issue as to any material fact” if a party “fails to make a

showing sufficient to establish the existence of an element essential to that party’s case.” Celotex

Corp., 477 U.S. at 322. “If reasonable minds could differ as to the import of the evidence,”

however, summary judgment is not appropriate. See Anderson, 477 U.S. at 250-5 1.

III. ANALYSIS

Plaintiff brings his claims pursuant to 42 U.S.C § 1983. Section 1983 provides

in relevant part:

Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State or Territory. . . subjects, or causes to

be subjected, any citizen ofthe United States or other person within

the jurisdiction thereof to the deprivation 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

proceeding for redress[.]

Section 1983 does not provide substantive rights; rather, Section 1983 provides a vehicle

for vindicating violations of other federal rights. Graham v. Connor, 490 U.S. 386, 393-94 (1989).

In order to state a valid claim for relief under Section 1983, a plaintiff must first allege a violation

of a right secured by the Constitution or laws of the United States and, second, a plaintiff must

8
Pastemak pursuant to Section 1983. Defendant Pastemak first argues that “the record is absolutely

devoid of anything connecting defendant Pastemak” to the alleged wiretapping of Plaintiffs

vehicle. Def. Pasternak Br. at 8. Defendant Pastemak also argues that Plaintiff has not presented

any evidence that supports his claim that Plaintiffs car was in fact wiretapped. Def. Pastemak Br.

at 8. Plaintiff counters that Defendant Pastemak held Plaintiffs vehicle for three months in order

for the wiretap to be installed. P1? s Reply Br. at 3. Plaintiff asserts that Defendant Pastemak “did

make attempts to monitor [Plaintiffs] conversations and movement in the course of his everyday

life” in violation of the Fourth Amendment. Plfs Reply Br. at 4.

The Fourth Amendment to the United States Constitution provides “[t]he 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 Warrant shall issue, but upon probable cause, supported by

Oath or affirmation, and particularly describing the place to be searched, and the persons or things

to be seized.” U.S. Const. amend. IV. A plaintiff states a claim for relief under Section 1983 and

the Fourth Amendment where he adequately pleads that a state actor performed a search of his

person, home, or possessions without a warrant or probable cause. See Castro v. Perth Amboy

Pol. Dep’t, 2014 WL 2299301, at *2 (D.N.J. Jan. 21, 2014) (citing Reedy v. Evanson, 615 F.3d

197 (3d Cir. 2010)).

“It is beyond dispute that a vehicle is an ‘effect’ as that term is used in the Amendment.”

United States v. Jones, 565 U.S. 400, 404 (2012) (citing United States v. Chadwick, 433 U.S. 1,

9
intrusion would have been considered a “search” within the meaning of the Fourth Amendment

when it was adopted.”).

However, the Fourth Amendment does not protect against all “searches,” rather the fourth

Amendment protects against unreasonable searches. Vernonia Sch. Dist. 47J v. Acton, 515 U.S.

646, 652 (1995). “[S]earches conducted outside the judicial process, without prior approval by a

judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few

specifically established and well-delineated exceptions.” 10 Katz v. United States, 389 U.S. 347,

357 (1967). Judicial approval ofwarrants require probable cause. See Skinner v. Ry. Labor Execs.’

Ass’n, 489 U.S. 602 (1989) (“Except in certain well-defined circumstances, a search or seizure in

such a case is not reasonable unless it is accomplished pursuant to a judicial warrant issued upon

probable cause.”). Title III also requires that any government official obtain judicial authorization

before conducting and intercepting “wire, oral, and electronic” communications. 18 U.S.C.

Section 2511. A judge may issue a warrant authorizing a wiretap, upon a showing of “probable

10 The established exceptions to the Fourth Amendment’s warrant requirement include searches

taken after gaining consent, Schneckloth v. Bttstamonte, 412, U.S. 218 (1973), searches incidentto a lawful arrest, Arizona v. Gant, 395 U.S. 752 (1969), inventory searches. Maiyland v. King,

133 S.Ct. 1958 (2013), searches pursuant to the “plain view” doctrine, Horton v. Catfornia, 496

U.S. 128 (1990), and searches under exigent circumstances, Mincey v. Arizona, 437 U.S. 385

(1978). An additional exception is commonly called the “automobile exception,” under which a

car “may be stopped and searched on facts giving rise to probable cause that the vehicle containscontraband, without the protection afforded by a magistrate’s prior evaluation of those facts.

United States v. Ross, 456 U.S. 798, 806 n.$ (1982). None of these exceptions are relevant here.

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genuine issues of material fact and that Defendant Pastemak is entitled to judgment as a matter of

law. First, assuming that there was in fact a wiretap, Plaintiff has provided no credible evidence

other than his speculation that Defendant Pasternak was responsible for it. Instead, Plaintiffrelies

solely on the fact that Defendant Pasternak was the investigating officer and saw Pasternak at the

police station. Plaintiff presents no credible evidence demonstrating, or from which a reasonable

inference could be drawn, that Defendant Pasternak entered Plaintiffs vehicle much less placed a

wiretap inside.

Second, Plaintiff fails to provide any credible evidence that his Escalade was actually

wiretapped. Instead, Plaintiff claims that he saw wires, saw microphones, and heard an unusual

noise when he attempted to start his car.11 Assuming the truth of such evidence, it is nevertheless

insufficient to show that a wiretap in fact occurred. Plaintiff has presented absolutely no evidence

that the wires or microphones were in fact in operation or capable of capturing conversations in

the vehicle. Summary judgment is appropriate “against a party who fails to make a showing

sufficient to establish the existence of an element essential to that party’s case, and on which that

Defendants claim that Plaintiffs testimony concerning this evidence is insufficient because

Plaintiff did not, for example, take photographs ofthe wires and microphones and the vehicle is

no longer available for inspection. The Court disagrees. Plaintiffs testimony alone can be

sufficient to establish a genuine issue of material fact. That being said, Defendants were

certainly free to bring a motion for spoliation because Plaintiff failed to preserve the evidence

that is the basis of his claim. Such a motion, ifsuccessful, could potentially result in a variety ofremedies, including preclusion in severe cases. Defendants, however, have not made such a

motion.

11
(citing Celotex Corp., 477 U.S. at 322). Here, the record is devoid of necessary evidence

demonstrating that Defendant Pastemak illegally wiretapped Plaintiffs vehicle or that theEscalade was in fact wiretapped.

It is for these reasons that Defendant Pastemak’s motion for summary judgment on Count

I, alleging a Fourth Amendment violation pursuant to Section 1983, is granted.

B. Excessive Force (Count II against Defendant Diorlo, Defendant Flatley, and

Defendant McDonough)

Count II pleads excessive force claims, in violation of the Fourth Amendment, against

Defendant Diorio, Defendant Flatley, and Defendant McDonough pursuant to Section 1983. Plfs

SAC at ¶ 19. Plaintiff claims that his fourth Amendment rights were violated when the

Defendants’ police vehicle intentionally made contact with Plaintiffs Lexus. resulting in

Plaintiffs vehicle crashing—totaling the Lexus and physically injuring Plaintiff. Defendants

argue that Plaintiffs claims do not rise to the level of excessive force, that Plaintiffs claims are

barred by Heck v. Hzimplzrey, and that Defendants are entitled to qualified immunity.

“A cause of action exists under § 1983 when a law enforcement officer uses force so

excessive that it violates” the Fourth Amendment’s protection from unreasonable search andseizure. Groman v. Twp. ofManatapan, 47 F.3d 628, 633-34 (3d Cir. 1995). “Police officers are

privileged to commit a battery pursuant to a lawful arrest, but the privilege is negated by the use

of excessive force.” Groman, 47 F.3d at 634 (citing Edwards v. City ofPhiladelphia, 860 F.2d

56$, 572 (3d Cir. 198$)). “A claim for excessive force under the fourth Amendment requires a

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the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by

flight.” Groman, 47 f.3d at 634 (quoting Graham, 490 U.S. at 396): see also Sharrar v. felsing,

128 F.3d 810, $22 (3d Cir. 1997). Moreover, a court must consider whether a seizure was

reasonable “from the perspective of a reasonable officer on the scene, rather than with the 20/20

vision of hindsight.” Velez v. fuentes, 2016 WL 4107689, at *4 (D.N.J. July 29, 2016) (quoting

Graham, 490 U.S. at 396-97). As a result, a court must consider whether the officers’ actions were

“objectively reasonable in light of the facts and circumstances confronting them, without regard

to the officers’ underlying intent or motivation.” Norcross v. Town of Hammonton, 200$ WL

9027248, at *4 (D.N.J. Feb. 5, 2008) (quoting Graham, 490 U.S. at 397).

Under the Supreme Court’s holding in Heck v. Humphrey, 512 U.S. 477 (1994), if a

successful Section 1983 claim “would render a conviction or sentence invalid, a [Section] 1983

plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged

by executive order, declared invalid by a state tribunal authorized to make such determination, or

called into question by a federal court’s issuance of a writ of habeas corpus.” 512 U.S. at 486-

87; see also Giles v. Davis, 427 F.3d 197, 208-09 (3d Cir. 2005) (“Under Heck, a [Section] 1983

action that impugns the validity of the plaintiffs underlying conviction cannot be maintained

unless the conviction has been reversed on direct appeal, or impaired by collateralproceedings.”).

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wrongdoing.... Personal involvement can be shown through allegations of personal direction or

of actual knowledge and acquiescence.” Evancho v. Fisher, 423 f.3d 347, 353 (3d Cir. 2005).Here, Plaintiff does not challenge the fact that Defendant Diorio and Defendant Flatley were

passengers in the police vehicle.12 There is no evidence that either Defendant Diorio or Defendant

Flatley were in a supervisory role or instructing the driver, Defendant McDonough, during the

pursuit of Plaintiffs vehicle. See McKenna v. City ofPhiladelphia, 582 F.3d 447, 460 (3d Cir.

2009) (“[A] supervisor must have been involved personally, meaning through personal direction

or actual knowledge and acquiescence, in the wrongs alleged” to be liable under a theory of

supervisory liability). While it is true that an officer may be liable under Section 1983 ifhe refuses

to intervene when a constitutional violation takes place in his presence, “an officer is only liable if

there is a realistic and reasonable opportunity to intervene.” Smith v. Mesinger, 293 F.3d 641, 651(3d Cir. 2002) (internal quotation marks and citations omitted). Here, Plaintiff has not provided

any evidence to illustrate that Defendant Diorio or Defendant Flatley were in a position to stop

any allegedly unconstitutional conduct by Defendant McDonough, the driver. See Torres v.

Borough of Lindenwold, 2015 WL 3949076, at *5 (D.N.J. June 29, 2015) (dismissing Fourth

12 As discussed in note 2 sttpra, Plaintiffsubmitted a letter brief in response to Defendant

Diorio’s reply. D.E. 176. The sur-reply raises an aiding and abetting theory of liability. For thereasons stated in note 2, the Court is not considering the sur-reply. Even if the Court were to

consider Plaintiffs aiding and abetting theory of liability, Plaintiff presents no evidencesupporting his theory except for the mere conclusory allegation that the Defendants aided and

abetted each other.

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any alleged constitutional violations, Plaintiffs claims cannot stand as to either Diorio or Flatley.

It is for these reasons that Defendant Diorio and Defendant Flatley’s summary judgment

motion on Count II, alleging Fourth and Fourteenth Amendment violations, is granted.’3

2. Count II Against Defendant McDonough

a. Plaintiffs Fourth Amendment Claim

Plaintiff McDonough first argues that based on the Supreme Court’s decision in Scott v.

Harris, 550 U.S. 372 (2007), there was no constitutional right violated. Def. McDonough Br. at

6. Plaintiff counters, in part, that Defendants “used their vehicle to ram [Plaintiff] and chase him

through a residential neighborhood before running him off the road.” Plfs Opp. Br. at 6.

In Scott, the Supreme Court held that “[a] police officer’s attempt to terminate a dangerous

high-speed car chase that threatens the lives of innocent bystanders does not violate the fourth

Amendment, even when it places the fleeing motorist at risk of serious injury or death.”4 550U.S. at 386. In Scott, a high-speed chase began when a police officer attempted to pull over the

‘

To be clear, Plaintiffs Count II against Diorio and Flatley would also fail for the reasons that

are applicable to McDonough.

“ The Supreme Court further elaborated on its reasoning, explaining “we are loath to lay down a

rule requiring the police to allow fleeing suspects to get away whenever they drive so recklessly

that they put other people’s lives in danger. It is obvious the perverse incentives such a rulewould create: Every fleeing motorist would know that escape is within his grasp, if only he

accelerates to 90 miles per hour, crosses the double-yellow line a few times, and runs a few redlights. The Constitution assuredly does not impose this invitation to impunity-earned-by

recklessness.” Scott v. Harris, 550 U.S. 372, 3 85—86 (2007).

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and therefore not a violation of the fourth Amendment. Id. at 384.

In this case, Plaintiff was convicted of second degree eluding in violation of N.J.S.A. §

2C:29—2(b). The statute provides that any person who

while operating a motor vehicle on any street or highway in [New

Jersey,] . . . knowingly flees or attempts to elude any police or law

enforcement officer after having received any signal from such

officer to bring the vehicle. . . to a full stop . . . is guilty of a crime

of the second degree if the flight or attempt to elude creates a riskofdeath or injury to any person.

N.J.S.A. § 2C:29—2(b) (emphasis added); see also State v. Thomas, 187 N.J. 119 (N.J. 2006).

Plaintiff pled guilty to the charge. In his plea colloquy,’5 Plaintiff responded to a number

of questions under oath. After admitting that the police officers directed him to stop and that hefailed to do so, Plaintiffwas asked whether he “drove at a high rate ofspeed?” Plaintiffresponded,

“Yes.” Def. McDonough Br., Ex. 8 (Plaintiffs Plea). Plaintiff was then asked whether he “drove

5 Statements made during a plea colloquy are permitted to be considered in a court’s analysis of

a motion for summary judgment. Commodity futures Trading Comm ‘n v. Am. Metals Exch.

Corp., 991 F.2d 71, 82 (3d Cir. 1993) (finding that “admissions made at the plea colloquy...

viewed together with the other uncontested evidence in the record” supported summary

judgment); Desrivieres v. United States, 2013 WL 3285235, at *2 (D.N.J. June 27, 2013)

(“{W]hen an individual pleads guilty to a crime, courts take as true the operative facts underlying

the plea, and view other contested facts in the light most favorable to [the non-moving party].”)

(internal quotation marks and citations omitted); see S. Cross Overseas Agencies, Inc. v. Wah

Kwong S/i tiping Grp. Ltd., 181 F.3d 410, 427 (3d Cir. 1999) (“[The Third Circuit has] held that

a court that examines a transcript of a prior proceeding to find facts converts a motion to dismiss

into a motion for summary judgment.”).

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neighborhood,” Pit’s Opp. Br. at 6.

In light of the Supreme Court’s holding in Scott that a “police officer’s attempt to

terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does

not violate the Fourth Amendment,” 550 U.S. at 386, and Plaintiffs own admissions that he

drove at a high speed in a maimer that created a risk of death or injury to himself and others,there is no genuine issue of material fact that Defendant McDonough’s conduct did not violatethe Fourth Amendment. Although Plaintiff now offers testimony at odds with his guilty plea

colloquy, his attempt to do so is precluded by Heck. And Plaintiff has not shown that his

conviction “has been reversed on direct appeal, expunged by executive order, declared invalid by

a state tribunal authorized to make such determination, or called into question by a federalcourt’s issuance of a writ of habeas corpus.” 512 U.S. at 486-87. In light of Scott’s holding, if

this Court were to find that Plaintiffs Fourth Amendment rights were violated in this case, it

would invalidate Plaintiffs plea to second-degree eluding because it would necessitate a findingthat Plaintiff was not creating a risk of death or physical injury to any person—which is anecessary element ofsecond-degree eluding. To the extent Plaintiffs colloquy left any room for

doubt, Plaintiff has removed it with his own admissions in this case, specifically, that the chase

occurred through a residential and neighborhood and then onto a highway during rush hour.

17
However, the Supreme Court has held that when examining whether a police officer has

violated the fourteenth Amendment, “high-speed chases with no intent to harm suspects physically

or to worsen their legal plight do not give rise to liability under the Fourteenth Amendment,

redressible by an action under [Section] 1983.” C. ofSacramento v. Lewis, 523 U.S. 833, 854

(1998). “[I]n the absence of evidence from which a jury could infer a purpose to cause harm

unrelated to the legitimate object ofthe chase, the evidence does not satisfi the requisite element

of arbitrary conduct shocking the conscience.” Davis v. TMp. ofHillside, 190 f.3d 167, 169 (3d

Cir. 1999).

In the absence of any evidence of improper motive, summary judgment is appropriate. See

Davis, 190 F.3d at 171 (holding that officers “faced with lawless behavior—the flight from their

investigation—for which they were not to blame” acted with the “intent. . . to do their job as law

enforcement officers, not to cause injury.”); see also Errico v. Tp. ofHowell, 200$ WL 2559355,

at *5 (D.N.J. June 26, 2008) (granting a motion for summary judgment against a Fourteenth

Amendment Section 1983 claim because a police officer’s conduct in a car collision that resulted

in the death of a suspect was not demonstrative of arbitrary conduct that shocks the conscience).

In this case, Plaintiffhas not presented any evidence to show that Defendant McDonough intended

to cause harm to Plaintiff unrelated to the legitimate object of arrest. Therefore, Defendant

McDonough’s actions do not rise to a Fourteenth Amendment violation.

18
Plaintiff originally alleged that three members of the Elizabeth Police 

p

,

including Defendant McDonough, “knowingly harassed and intimidated plaintiffs witness over aperiod oftime.” Plfs SAC J 20. These actions against two former defendants for harassment and

intimidation of “Ms. Torrado”’7 were dismissed “following a telephone conference in whichPlaintiffs [withdrew] his claims against Mikros and Smith on the record.” D.E. 60. However,Judge Wigenton noted in her opinion granting in part and denying in part motions to dismiss

Plaintiffs original claims that “Defendants [did not move] to dismiss the claim as to Officer

McDonough.” D.E. 60. Therefore, Plaintiffs claim against Defendant McDonough for

harassment and intimidation of Ms. Torrado remains.

Plaintiff alleges, in part, that “McDonough on or about August of 2011, planted (3) bags

of heroin on [Ms. Torrado] to discredit her testimony. Because of these acts, Ms. Torrado has not

been seen to testify for [the Plaintiffj.” Plfs SAC at ¶ 14. Defendant McDonough argues that

“the record is devoid of any evidence” of Defendant McDonough planting evidence on Ms.Torrado or intimidating Ms. Torrado to prevent her from testifying on Plaintiffs behalf Def.

McDonoughBr. at3.

16 This Court need not address any qualified immunity defenses because the Court finds that no

genuine issue of material fact demonstrates that a constitutional violation occurred in the first

instance. Of note, since Scott holds that no constitutional right exists in the circumstances

presented here, it also follows that the right was not clearly established for purposes of qualified

immunity.

Plaintiff never included Ms. Torrado’s full name in any of his papers.

19
evidence that contradict the moving party,” Anderson, 477 U.S. at 250, and has failed to make ashowing sufficient to establish his claim that Defendant McDonough harassed or intimidated Ms.

Torrado, see Celotex Corp., 477 U.S. at 322.

Therefore, Defendant McDonough’s motion for summary judgment on Count IV, alleging

Fourth and fourteenth Amendment violations, is granted.

IV. CONCLUSION

for the reasons set forth above, Defendants’ motions for summary judgment (D.E. 163,

165, 167, 170) are GRANTED. An appropriate Order accompanies this Opinion.

Dated: September 22, 2017

\J-7

John Michael Vazquez[J.S..J.

20