Plaintiff,

V• OPINION

ORANGE POLICE DEP’T, et al.,

Defendants.

KEVIN MCNULTY, U.S.D.J.:

The plaintiff, Russell Jenkins, alleges civil rights causes of action for

false arrest, as well as other claims, under 42 U.S.C. § 1981, 1983, 1985, and

1986; the New Jersey Civil Rights Act (“NJCRA”); and the New Jersey Law

Against Discrimination (“LAD”). Am Compi. (ECF No. 8). Named as defendants

are the City of Orange Board of Education (“BOE”) and three school employees,

Judith Kronin, Erica Stewart,’ and Belinda Smiley (together, the “School

Defendants”); as well as the City of Orange, the Orange Police Department and

Detective M. Tingolie (the “City Defendants”). Now before the Court are motions

for summary judgment by the School Defendants (ECF No. 74), and by the City

Defendants (ECF No. 79). Jenkins has moved to vacate a stipulation of

dismissal as to Defendant S.L., a minor. (ECF No. 96).

This case arises from an altercation between Jenkins, a substitute

teacher, and S.L., a student, at a public high school in Orange, New Jersey. It

is undisputed that Jenkins, attempting to confiscate S.L.’s cell phone, laid

hands on her and carried her into the hallway. The incident resulted in the

filing of criminal charges, later downgraded to simple assault, of which Jenkins

was ultimately acquitted.

Any teacher will acknowledge the frustrations of dealing with a defiant

adolescent, and a substitute teacher, who has no ongoing relationship with the

1 Erica Stewart was improperly pleaded as “Erica Boyer.” See SDSMF (ECF No.

74-8) at 1.

1
prosecution, and it does not require that the officials on the scene 

ave

conducted a sensitive balancing of inculpatory and exculpatory factors.

For the reasons stated below, I find that there was probable cause for

Jenkins’s arrest. The Defendants’ motions for summary judgment are

GRANTED. The Plaintiff’s motion to vacate the stipulation of dismissal as to

S.L. is DENIED.

I. BACKGROUND

The facts set forth below are taken from the statements of material facts

submitted by the School Defendants and the City Defendants, and the

responsive statements of material facts submitted by Jenkins, together with

the corresponding exhibits submitted in support. 2

A. PartiesThe plaintiff, Russell Jenkins, is a resident of New Jersey. He was

certified as a substitute teacher by the New Jersey Department of Education in

October of 2008. He identifies himself as African-American, a fact relevant to

some of his claims. SDSMF ¶J 1, 4.

Defendant Judith Kronin was the Interim Superintendent of Schools for

the Orange BOE. Defendant Erica Stewart was the principal of Orange High

School. Defendant Belinda Smiley was the Director of Human Resources. Id. ¶

21. Kronin, Stewart, and Smiley are African-American. Id. ¶ 55 (citing Ex. P, P1.

Dep. at 69), ¶ 80.

The City of Orange (“Orange” or “the City”) is a municipality in the state

of New Jersey. Under New Jersey Law, the Orange Police Department is not a2 “SDSMF” refers to the School Defendants’ Statement of Material Facts (ECF No.74-8). “CDSMF” refers to the City Defendants’ Statement of Material Facts (ECF No.

79-3). “RSMF1” refers to the statement Jenkins submitted in response to the SDSMF

(ECF No. 100, incorporated in Opposition at p.’7). “RSMF2” refers to Jenkins’s

statement in response to the CDSMF (ECF No. 99, incorporated in Opposition at p. 7).

2
On September 9, 2008, the BOE conditionally hired Jenkins as a substitute teacher, pending his certification by the state. SDSMF ¶ 3; Ex. B, BOE Letter to P1. Substitute teachers at Orange High School receive training annually in August, and also receive introductory packets containing tips for defusing “volatile situations.” Id. ¶ 78 (citing Ex. T, Stewart Dep. at 46-47). Hiring of substitutes during the year is handled by Human Resources. 4Id. The School Defendants assert that teachers are instructed not to confiscate students’ personal property. Id. ¶ 79 (citing Ex. T, Stewart Dep. at 47-48). Jenkins, however, asserts that Defendants have not shown that there is a policy to that effect. RSMF1 ¶ 79.

On February 27, 2009, Jenkins reported for work as a substitute teacher at Orange High School. Id. ¶ 5. His last prior employment as a substitute teacher had been 12 years earlier, in 1997. Id. ¶ 7 (citing Ex. C, Crim. Trial Tr. at 81.). On March 6, 2009, he reported to the high school for a second day of substitute teaching. Id. ¶ 8 (citing Ex. A, Am. Compi.; Ex. C at 81).

On that day, March 6, 2009, Jenkins was assigned to cover a second period 10th grade science class in room 239. Id. ¶ 9. S.L. was a student in the class. At the time, S.L. was fifteen years old; she stood five feet tall and weighed approximately 105 pounds. Id. ¶ 10 (citing Ex. D, Arrest Record). Jenkins was 43 years old and six feet three inches tall, and he weighed approximately 299

McGovern

See also Adams v. City of Camden, 461 F. Supp. 2d 263, 266 (D.N.J. 2006); v. Jersey City, No. 98-CV-5186 2006 WL 42236, at *7 n.4 (D.N.J. Jan. 6, 2006) (police departments cannot be sued in conjunction with municipalities because police departments are administrative arms of local municipalities, not separate entities); Padilla v. Twp. of Cherry Hill, 110 F. Appx 272, 278 (3d Cir. 2004) (same); DeBellis v. Kulp, 166 F. Supp. 2d 255, 264 (E.D. Pa. 2001) (same).

Jenkins says he did not meet with Human Resources when he was hired, but does not deny that he received the introductory materials. RSMF1 ¶ 78.

3
S.L. Id. S.L. refused to turn off her cell phone at his req

, 

p

y

removed the phone from her hand. Id.

¶ 48 (citing. Ex.

P at 45). S.L. jumped

from her desk to reach for the cell phone and grabbed Jenkins’s hand in the

process. Id. Jenkins states that he pushed S.L. back and that she stumbled

backwards, falling back onto the “edge of her chair.” Id.

¶ 49 (citing Ex.

P at

45). He testified that S.L. then stood up, took “two skips” in his direction, and

attempted to strike him. Id.

¶ 50. Jenkins deflected S.L.’s fist with his hand;

the momentum of his swing spun her around 180 degrees. Id.

¶ 51 (citing Ex.

P

at 46). While S.L. was facing the back of the classroom, Jenkins picked her up

and carried her into the hallway. Id.

¶ 52 (citing Ex. P. at 46, 52, 56).

Vice Principal Dana Gaines and Security Officers Lisa King and Mike

Jiggets were in the hallway. They state that they saw Jenkins carrying S.L. in

a

headlock. SDSMF

¶ 13 (citing Ex. F, Incident Reports).

Jenkins does not dispute that when the confrontation escalated, he

picked up S.L. and carried her into the hallway. SDSMF

¶ 52. He denies using

a headlock. He testified at his deposition that his grip on S.L. was like

a bear

hug: his arms were placed around S.L., above her “breast area,” and her arms

were at her sides. Id. (Ex. P. at 56); see also Am. Compi.

¶ 18.

Once in the hallway, Jenkins carried S.L. in the direction of the Security

Officers. Id. SDSMF ¶J 14, 15 (citing Ex. A). Jenkins testified in his deposition,

but now seems to dispute, that the officers were close by when they observed

him carrying S.L. 6 Id.

¶ 53 (citing Ex. P. at 282); RSMF1

¶ 53. Jenkins

Jenkins disputes these facts. RSMF1

¶ 10.

6 Jenkins at one point disputed that Gaines and the officers were in the hallway

when he emerged from the classroom. RSMF1

¶ 13. He denied that the security

guards were posted outside the classroom. Id.

¶ 77. He also testified, however, that the

guards were 20 to 30 feet away when he began walking toward them. SDSMF Ex. P. at

282. He has testified that he (carrying Si.) and the security guards “met in the

middle.” (Id.; see also Am. Cplt. ¶J 18-2 1). There was evidence that security officers

are regularly assigned to the hallways of the school, and are posted outside of room

239, where the incident took place. Id.

¶ 77 (citing Ex. T, Stewart Dep. at 45).

4
, 

d for minor neck injuries. Id.

¶ 17. The nurse observed red marks around the front of S.L’s neck and two long scratches on her mid-neck. Id. (citing Ex. C; Ex. N, Nurse Report).

Shortly after the incident, Gaines instructed Jenkins to prepare

a written

report. SDSMF

¶ 18 (citing Ex. A; Ex. C; Ex. E, Jenkins Statement). Jenkins’s

written statement relates that, after he took the cell phone from S.L., she“swung’ at him, and he “deflect[ed] the swings and took her into the hallway and called for security.” Ex. E. S.L., too, provided

a statement. S.L. reported that Jenkins had grabbed her from the back, that his “arms were around her

neck,” and that she was “having

a hard time breathing.” Ex. F.

Witness statements were taken from the two security officers, Vice

Principal Gaines, and five of S.L.’s classmates. SDSMF ¶J 19-20. Security Officers King and Jiggets reported that they were walking down the hallway when they saw Jenkins with S.L. in

a “headlock.” Ex. F. Gaines’s account was

similar. Id.

¶ 20 (citing Ex. F). She stated that she was in the hallway outside of the classroom when she saw Jenkins “dragging [S.L.] into the hallway outside of room 239.” Ex. F. Gaines stated that Jenkins had S.L. in

a “headlock” and

that the student was “flailing her arms and legs.” Id.

Like the employee statements, the student witnesses’ statements

consistently state that Jenkins held S.L. by the neck. SDSMF Ex. I. The firststatement said that he “picked her up by the neck and started choking [her] then dragged her in the hallway by her neck.” Id. The second statement said

that after they pushed each other, he “started choking her.” Id. The third stated

that he “put her in

a sleeper.” Id. The fourth statement said that he “put her in

a choke hold and pushed her out of the classroom and kept her in the choke

hold.” Id. The fifth declarant said that he saw Jenkins “grab her around herneck and start dragging her out the door” and that Jenkins continued to “drag her into the hallway and choke her until someone [got] him off.” Id.

Although there were security cameras in the school hallways, there is no video recording of the incident. The School Defendants assert that the cameras

were not situated to capture the relevant events in the classroom or the

5
incident. Id.

¶ 75 (citing Ex. T, Stewart Dep. at 23-25). Jenkins disputes

Defendants’ statements that the cameras did not record the incident. RSMF1

¶

16; RSMF2 ¶j 10, 50.

Upon learning of the Jenkins/S.L. incident, Interim Superintendent of

Schools Judith Kronin convened

a meeting with Jenkins, High School Principal

Erica Stewart, and Human Resources Director Belinda Smiley. SDSMF

¶ 63

(citing Ex. S, Kronin Dep. at 8). After preparing his incident report, Jenkins

was escorted to the Human Resources building for the meeting. Id.

¶ 21 (citing

Ex. A). Dr. Kronin asked Jenkins to give his version of the altercation and, inresponse, Jenkins read the written statement he had prepared. Id.

¶ 22 (citing

Ex. A). Stewart asked Jenkins what method he used to take S.L. into the

hallway; he replied that he did it “in

a way I would not get hit.” Id.

¶ 23.

After the meeting, the school turned the matter over to its attorney for

further handling. SDSMF

¶ 65 (citing Ex.

S at 10-13, 27, 46). The school

reported the incident to S.L.’s mother, to the State Division of Youth and

Family Services (“DYFS”), and to the police. Id.

¶ 26 (citing Ex. F). S.L.’s mother

requested that

a police report be filed. Id.

¶ 27 (citing Ex. J, Tingolie Incident

Report). 7When the police arrived at the school, Jenkins was no longer in the

building, so his statement was not taken then. SDSMF

¶ 28. No arrests were

made at the time. Id. (citing Ex. J).

On March 10, 2009, Detective Michael Tingolie was assigned by the

Orange Police Department to investigate the incident. SDSMF

¶ 29 (citing Ex.

G, Tingolie Case Management Report). On or about March 12, 2009, Jenkins

requested

a copy of the police report. Id.

¶ 30 (citing Ex. A). Reviewing the

report, he noticed that there was no reference to his written statement. Id.

¶ 31

(citing Ex. A). Defendants assert, but Jenkins disputes, that Detective Tingolie

did not review the statement because Jenkins had not been read his Miranda

Jenkins disputes this and asserts that Defendants’ evidence is hearsay. RSMF1

¶ 27.

6
g

. ¶ 61 (citing Ex. R at 10). On March 18, 2009, S.L. provided a sworn statement to Detective Tingolie. SDSMF ¶ 33 (citing Ex. G).

Tingolie then contacted Assistant Prosecutor Raymond Hoffman at the

Essex County Prosecutor’s Office. Hoffman advised him to charge Jenkins with

aggravated assault and endangering the welfare of a child. 8CDSMF ¶J 25, 52 (citing Ex. G). Tingolie placed those charges in a complaint and went to the

Orange Municipal Court Deputy Court Administrator to request issuance of an

arrest warrant for Jenkins. Id. ¶J 26-27. The Administrator found that there

was probable cause and issued the warrant. Id. ¶ 28. Jenkins disputes the validity of that finding of probable cause. RSMF1 ¶ 28.

On March 20, 2009, Jenkins was arrested and charged with one count of

aggravated assault with bodily injury and one count of endangering the welfare

of a child. SDSMF ¶ 34 (citing Ex. G). His bail was set at $35,000 with a 10%

option. Id. ¶ 35 (citing Ex. L, Arrest Report and Warrant).

On April 1, 2009, Jenkins filed juvenile charges against S.L. for assault.

SDSMF ¶ 36. Tingolie arrested S.L. eight days later. Id. (citing Ex. A, Ex. C at

72-73, Ex. D); CDSMF ¶ 55.

On April 13, 2009, the BOE removed Jenkins from the active substitute

list for “unacceptable performance.” SDSMF ¶ 37 (citing Ex. M, Kronin Letter). Jenkins asserts that the BOE and the other School Defendants discriminated

against him. When asked at his deposition about the basis for hisdiscrimination claims against the School Defendants, he stated that the

foundation for the claim was “what they didn’t do,” meaning their failure to

“show a concern or a duty of care for my well-being” after the incident. SDSMF

Ex. P. at 71.

8 Jenkins disputes this. RSMF1 ¶ 26.

9 Evidently this was done under the authority of N.J. Ct. R. 7:2-1(d) (“The arrest warrant. . . shall be signed by the judge, or when authorized by the judge, by the municipal court administrator or deputy court administrator after a determination of probable cause.”).

7
On September 16, 2010, the charges were downgraded to one count of

simple assault,

a disorderly persons offense triable by

a judge. The Hon.

Ronald Wigler, J.S.C., acquitted Jenkins of that assault charge. SDSMF

¶ 39

(citing Ex. C; Ex. 0, Judgment of Acquittal); see also CSMF

¶ 42.

C. Procedural History

On March 18, 2011, Jenkins filed

a complaint pro se in the United States

District Court for the District of New Jersey. He applied to proceed in forma

pauperis, and Hon. Esther Salas, the district judge then assigned to the case,

granted his application on July 12, 2011. (ECF Nos. 1, 2). On November 14,

2011, Judge Salas entered

a notice of call for dismissal pursuant to Fed. R.

Civ. P. 4m for failure to serve

a complaint. Jenkins then filed an amended

complaint, pro se, on November 23, 2011. (ECF No. 8). Eventually answers

were served, and the City filed

a cross-claim, which was also answered.

On August 1, 2012, the case was reassigned from Judge Salas to me.

(ECF No. 36). Jenkins requested pro bono counsel on September 19, 2012.

(ECF No. 39).

S.L. was not served with the amended complaint until October 19, 2012.

(ECF No. 46). S.L. received an extension of time to answer, and then filed

a

motion to dismiss the amended complaint for failure to state

a claim. (ECF No.

50). The motion was fully briefed but never decided, because the claims against

S.L. were voluntarily dismissed, see infra.

On January 18, 2013, Jenkins obtained counsel, Elizabeth Foster, who

entered an appearance in the case. (ECF No. 64). At his deposition, Jenkinswithdrew Count

6 of his complaint (negligent hiring, training, and screening of

Orange BOE employees). CDSMF

¶ 43 (citing P1. Dep. at

2 18-24).

The School Defendants moved for summary judgment on April 26, 2013.

(ECF No. 74). In the meantime Jenkins retained new counsel, Audwin

Levasseur.

A consent order granting substitution of attorney was entered on

8
(

g

p

esented by counsel), objecting to the stipulation of

dismissal as to S.L. because it had been entered by Foster without his consent

when she was no longer his attorney. (ECF No. 82). On June 3, 2013, Counsel

for S.L. submitted a letter in response, indicating that Jenkins’s second

attorney, Levasseur, had also agreed to the dismissal. S.L.’s position was that

the dismissal was final. (ECF No. 83). Levasseur wrote to the Court on June 5,

2013, confirming that he met with Jenkins several times in March and April,

2013, to discuss the claims against Si., and that Jenkins had consented to

the dismissal. (ECF No. 84). Levasseur also communicated that Jenkins was an

uncooperative client who wanted to terminate his attorney-client relationship

with Levasseur. Id. Despite the uncertainty regarding his continued

representation of Jenkins, Levasseur submitted papers in opposition to the

motions for summary judgment on Jenkins’s behalf. See Id.

Jenkins did terminate the relationship with Levasseur. He applied again

for pro bono counsel on June 24, 2013 (ECF No. 91), and sought permission to

proceed pro se on July 1, 2013 (ECF No. 92). Judge Arleo granted Jenkins

permission to proceed pro se and struck the briefs that now-fired counsel had

submitted in opposition to summary judgment. (ECF Nos. 85, 94). The

application for pro bono counsel was denied. (ECF No. 95).

On August 14, 2013, Jenkins moved pro se to vacate the stipulation of

dismissal as to S.L. (ECF No. 96). He also filed new opposition briefs inopposition to the motions for summary judgment. (ECF Nos. 99, 100). The brief

submitted in opposition to the School Defendants’ motion, however, appears to

be a copy of the brief previously submitted by his former attorney, Levasseur,

but now signed by Jenkins. See ECF Nos. 85, 99.

II. ANALYSIS

The School Defendants and the City Defendants move for summary

judgment on the remaining counts in the Amended Complaint: violation of

Plaintiff’s state constitutional rights under the New Jersey Civil Rights Act(Count 1); false arrest, and violations of Plaintiff’s rights to a “secure

environment,” due process, and equal protection under 42 U.S.C. § 1983

9
For the reasons stated below, I find that the Defe

their burden of showing that there is no genuine issue for trial as to any of

claims in the Amended Complaint. Therefore, summary judgment will be

granted in favor of the Defendants. In the interest of

a complete and final

judgment, I also address Jenkins’s motion to vacate the stipulation of dismissal

of the amended complaint as to S.L. (ECF No. 96).

A. Summary Judgment Standard

Federal Rule of Civil Procedure 56(a) provides that summary judgment

should be granted “if the movant shows that there is no genuine dispute as toany material fact and the movant is entitled to judgment as

a matter of law.”

Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986); Kreschollek v. S. Stevedoring Co., 223 F.3d 202, 204 (3d Cir. 2000).

In deciding

a motion for summary judgment,

a court must construe all facts

and inferences in the light most favorable to the nonmoving party. See Boyle u.

Cnty. of Allegheny Pa., 139 F.3d 386, 393 (3d Cir. 1998) (citing Peters v. Del.

River Port Auth. of Pa.

& N.J., 16 F.3d 1346, 1349 (3d Cir. 1994)). The moving

party bears the burden of establishing that no genuine issue of material fact

remains. See Celotex Corp. v. Catrett, 477 U.S. 317, 322—23 (1986). “[W}ith

respect to an issue on which the nonmoving party bears the burden of proof.

the burden on the moving party may be discharged by ‘showing’—that is,

pointing out to the district court—that there is an absence of evidence to

support the nonmoving party’s case.” Celotex, 477 U.S. at 325.

Once the moving party has met that threshold burden, the non-moving

party “must do more than simply show that there is some metaphysical doubt

as to material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475

U.S. 574, 586 (1986). The opposing party must present actual evidence that

creates

a genuine issue as to

a material fact for trial. Anderson, 477 U.S. at

248; see also Fed. R. Civ. P. 56(c) (setting forth types of evidence on whichnonmoving party must rely to support its assertion that genuine issues of

material fact exist). “[U]nsupported allegations . . . and pleadings are

insufficient to repel summary judgment.” Schoch v. First Fid. Bancorporation,

912 F.2d 654, 657 (3d Cir. 1990); see also Gleason v. Norwest Mortg., Inc., 243

10
essential element of the nonmoving party

s case necessarily renders all other

facts immaterial.” Katz v. Aetna Cas. & Sur. Co., 972 F.2d 53, 55 (3d Cir. 1992)

(quoting Celotex, 477 U.S. at 322—23).

B. Jenkins’s Claims

1. Constitutional Claims

Jenkins asserts both state and federal constitutional claims, citing the

NJCRA as well as 42 U.S.C. § 1981, 1983, 1985, and 1986. This District has

regularly interpreted the NJCRA as being parallel to Section 1983. Hottenstein

v. City of Sea Isle City, No. 11-740, 2013 WL 5603839, at *6 (D.N.J. Oct. 11,

2013) (unreported); Petit v. New Jersey, No. 09-3735, 2011 WL 1325614, at *3(D.N.J. March 30, 2011) (unreported); Slinger v. New Jersey, No. 07—5561,

2008 WL 4126181, at *56 (D.N.J. Sept. 4, 2008) (unreported), rev’d on other

grounds, 366 F. App’x 357 (3d Cir. 2010); Armstrong v. Sherman, No. 09—716,

2010 WL 2483911, at *5 (D.N.J. June 4, 2010) (unreported). I therefore

consider Jenkins’s state and federal constitutional claims together.

a. Violation of Constitutional Rights Pursuant to Section 1983/

NJCRA (Counts 1 and 2)

In Counts 1 and 2, Jenkins asserts that the Defendants deprived him of

his constitutional rights by falsely arresting him, denying him his right to a

“safe secure environment,” depriving him of his right to due process and equal

protection, and subjecting him to involuntary servitude. Am. Compl. ¶f 61, 65. He argues that the School Defendants acted under color of state law to deprive

him of his constitutional rights by taking his statement after the incident but

failing to furnish it to Detective Tingolie, and by in effect ratifying the false

statement of S.L. when they contacted the police. By these acts, Jenkins

asserts, the School Defendants steered the police investigation and facilitated

his arrest. Opp. to School Def. at 3-4 (ECF No. 100). Jenkins also asserts that

Tingolie’s actions, when viewed in the “overall context of events,” violated his

constitutional rights “by way of false arrest, a failure to investigate [and]

negligence.” Opp. to City Defendants at 22 (ECF No. 99). Even viewing the facts

11
must show: (1) that there was an arrest; and (2) that the arrest was made

without probable cause. See Dowling v. City of Phila., 855 F.2d 136, 14 1-42 (3d

Cir. 1988). “Probable cause to arrest exists when the facts and circumstanceswithin the arresting officer’s knowledge are sufficient in themselves to warrant

a reasonable person to believe that an offense has been or is being committed

by the person to be arrested.” Wilson v. Russo, 212 F.3d 781, 789 (3d Cir.

2000) (quoting Orsatti v. N.J. State Police, 71 F.3d 480, 483 (3d Cir. 1995)). The

test of probable cause is an objective one, based on “the facts available to the

officers at the moment of arrest.” Bama v. City of Perth Amboy, 42 F.3d 809,

819 (3d Cir. 1994) (quoting Beck v. Ohio, 379 U.S. 89, 96 (1964)); Edwards v.

City of Phila., 860 F.2d 568, 571 n.

2 (3d Cir. 1988)). The existence of probable

cause in

a Section 1983 case is commonly

a question of fact; summary

judgment is appropriate, however, when the evidence, viewed in the light most

favorable to the plaintiff, could not support

a determination that an officer

lacked probable cause to arrest. Sharrar v. Felsing, 128 F.3d 810, 818 (3d Cir.

1997); Sherwood v. Mulvihill, 113 F.3d 396, 402 (3d Cir. 1997).

The School Defendants played no role in the decision to arrest Jenkins

beyond their initial report of the incident to the police. That report did not

amount to an “arrest” or any kind of unlawful seizure. See Valentino C. v. Sch.

Dist. Of Phila., No. CIV.A.

0 1-2097, 2003 WL 177210 at *7 (E.D. Pa. 2003)

(finding no unlawful seizure where school officials followed district procedure

and called police after student altercation). Like the school officials in

Valentino, the Orange school officials acted in accordance with school policy by

handing the matter over to the local authorities. See id. at

5 (applying Fourth

Amendment reasonableness standard where school called police); Ex.

S at 10.

In fact, the intrusion in Jenkins’s case was even less significant than the one in

Valentino. The administrators did not seize Jenkins; he left the school premises

following his meeting with them, and was not detained until the police arrived.

10 In this section, I have cited malicious prosecution cases as well as false arrest

cases. For purposes of the probable cause issue, they are parallel. See Johnson v.

Knorr, 477 F.3d 75, 82-85 (3d Cir. 2007) (when there is probable cause for an arrest

on

a certain offense, defendants are insulated from both

a malicious prosecution and

a false arrest claim, so long as the underlying offense is the same for both claims).

12
reviewed the written statements from S.L., Gaines, and the two securityofficers. SDSMF ¶ 60 (citing Ex. R at 25). He also obtained a sworn statementfrom S.L. Id. ¶ 33. Those statements all indicated that Jenkins put S.L. in a

headlock and carried her into the hallway. See Ex. F. Tingolie also spoke with

the local prosecutor, who rendered legal advice as to the appropriate charges:aggravated assault and endangering the welfare of a child. CDSMF ¶J 25, 52

(citing Ex. G).

After Tingolie put those charges into a complaint, the Municipal County

Deputy Court Administrator approved an arrest warrant based on a finding of

probable cause. SDSMF ¶{ 26-28. Although the State rules authorize theadministrator to make such a finding, I do not give it the weight of a judicial orgrand jury determination of probable cause. I observe, however, that the officer

was not precipitate; he consulted the prosecutor and obtained a warrant before

acting. The policy of this and every court is to encourage officers to obtain

warrants when possible. See Groh v. Ramirez, 540 U.S. 551, 571(2004) (citing

Illinois v. Gates, 462 U.S. 213, 237 (1983)) (noting the Court’s “purpose of

encouraging recourse to the warrant procedure”).

After the arrest, Tingolie testified before a grand jury. On the basis of his

testimony and other evidence, the grand jury indicted Jenkins on the same

charges contained in the pre-arrest complaint. SDSMF ¶ 38 (citing Ex. H). Thatgrand jury indictment—which is conclusive proof that probable cause existedat the time of indictment—constitutes probative evidence that probable cause

also existed at the time of arrest. See Kaley v. United States, 134 S. Ct. 1090,

1097 (2014) (“An indictment fair upon its face, and returned by a properly

constituted grand jury, we have explained, conclusively determines theexistence of probable cause to believe the defendant perpetrated the offensealleged.”) (internal quotations and citations omitted). It is possible, of course,

that an officer who lacked probable cause at the time of arrest only latergathered sufficient evidence to support an indictment. But there are no suchindications here. Rather, it appears that the findings of probable cause

underlying the arrest warrant and the indictment rested on the same body of

evidence. The key statements—the incident report, the four written witness

13
with the investigation. Id. ¶ 61 (citing Ex. R at 10). But the student witness

statements would only have corroborated the evidence Tingolie did possess; all

of the students agreed that Jenkins choked S.L. in some manner.

Tingolie, evidently wary of a Miranda issue, also did not review Jenkins’s

written statement. RSMF1 ¶ 59. That statement, says Jenkins, would have

“negated” probable cause. Opp. to School Def. at 5. It is true that Jenkins’saccount diverged from those of other witnesses—not completely, but to some

degree, especially as to the “headlock.” It is not true, however, that his partial

self-exculpation “negated” probable cause; if that were so, a criminal suspect

would only have to deny wrongdoing to insulate himself from arrest.

In short, probable cause is not undermined by the officers’ failure to

“interview everyone who may have possessed relevant information” or to

“explore every potentially exculpatory lead.” Trabal, 269 F.3d at 251. Probablecause is inherently “accusatory,” not “adjudicatory.” United States v. Williams,

504 U.S. 36, 51 (1992). It does not require certainty, or even balance, but a

prima facie showing: “[P]robable cause does not require [the complainant] to

evaluate the totality of circumstances, both inculpatory and exculpatory, as a

trier of fact guided by a reasonable doubt standard.” Trabal, 269 F.3d at 251

(quoting Carollo v. Supermarkets Gen., 597 A.2d 1105 (N.J. Super. Ct. App. Div.

1991)).”

Thus, considering a malicious prosecution claim brought by a person

detained by store security guards but ultimately cleared of shoplifting, the

Third Circuit held:

While we are required in the present posture of the case to

consider the evidence in the light most favorable to the plaintiff,

and thus to accept [plaintiff’s] explanation that she had paid for

11 Even a federal prosecutor (who must certainly be held to a higher standard

than an arresting officer or a criminal complainant) is not obligated to submit known

exculpatory evidence in order to obtain a valid determination of probable cause from a

grand jury. Williams, 504 U.S. at 51-52. And “the law does not require that a

prosecutor explore every potentially exculpatory lead before filing a criminal complaint

or initiating a prosecution.” Trabal, 269 F.3d at 251.

14
upon the honest and reasonable belief of the party prosecuting.” Id.; accord

Trabal, 269 F.3d at 251.

I repeat: the issue is not Jenkins’s ultimate guilt or innocence. By

definition, probable cause deals in probabilities that may not pan out,particularly when a reasonable doubt standard is applied at trial. Jenkins’sprotestations do not detract from the showing of probable cause that furnished

grounds for his arrest. Jenkins can dispute certain facts, but he cannot deny

that the authorities possessed those facts at the time of arrest. Because thereis no genuine issue of material fact as to the legality of Jenkins’s arrest,

summary judgment will be granted for the Defendants on the false arrest

component of his constitutional claims.

(2) Due Process

Jenkins also claims that the manner of his arrest and detention violated

his right to due process. Opp. to School Def. at 6. To state a claim under

Section 1983 for deprivation of procedural due process, a plaintiff must allege

that (1) he was deprived of an individual interest that is encompassed withinthe Fourteenth Amendment’s protection of “life, liberty, or property”; and (2)

the procedures available to him did not provide “due process of law.” Alvin v.

Suzuki, 227 F.3d 107, 116 (3d Cir. 2000); Hill v. Borough ofKutztown, 455 F.3d

225, 233-34 (3d Cir. 2006).

The allegations in the amended complaint are not completely clear, but

Jenkins appears to base this count on the alleged inadequacy of Tingolie’s

investigation, which led to Jenkins’s arrest and detention. See Am. Compi. ¶

65; Opp. to City Def. at 22; Opp. to School Def. at 6. Beyond Jenkins’s ownconclusory assertions, the record contains no evidence that Tingolie’sinvestigation was inadequate. As discussed above, Tingolie reviewed the

witness statements of Gaines, S.L., and the two security officers, and obtained

a sworn statement from S.L. CDSMF ¶J 20, 24; SDSMF ¶J 60-61. He alsoconsulted with the local prosecutor. CDSMF ¶ 25. He obtained a warrant beforearresting Jenkins. The grand jury in effect placed its imprimatur on thatprobable cause determination when it returned an indictment charging him

15
to provide due p

o

, 

(q

g 

U.S. 113, 126 (1990)). The police department, through Tingolie, responded to

the incident and investigated S.L.’s claim. The ensuing arrest, supported by

probable cause, cannot by itself be the basis for a due process claim. See

Groman v. Twp. of Manalapan, 47 F.3d 628, 636 (3d Cir. 1995) (citing Baker v.

McCollan, 443 U.S. 137, 142 (1979)) (discussing false imprisonment claim).

Nor was Jenkins denied due process after his arrest.’ 2 He was duly

indicted, and bail was granted. The aggravated assault charge against Jenkins

was reduced to one of simple assault on motion of the prosecutor. CDSMF ¶ 32

(citing Ex. 0, Judgment of Acquittal). After a non-jury trial, on September 16,

2009, Jenkins was acquitted of the assault count by Hon. Ronald Wigler,

Superior Court Judge, and the prosecutor then dismissed the remaining

endangerment count. Id.

That Jenkins was acquitted does not bespeak a lack of due process, but

the opposite. This record discloses that Jenkins received the full panoply of due

process protections to which he was entitled after his arrest.

Overall, there is no factual or legal basis for the due process component

of Jenkins’s constitutional claims. Summary judgment will be granted in favor

of the Defendants.

(3) Equal Protection

Jenkins also asserts that he was deprived of equal protection of the laws.

Am. Compl. ¶ 65. Neither the complaint nor Jenkins’s opposition papers

further elaborate on this claim. Because Jenkins asserts elsewhere that he was

discriminated against because he is African-American, I will assume that this

claim is based on race as well. See Opp. to City Def. at 22.

To establish a race-based equal protection claim, a plaintiff must show

that the alleged wrongful actions were done with a discriminatory purpose and

12 No such claim is addressed in Jenkins’ pleading or opposition papers, but I

touch on it for completeness.

16
Jenkins’s allegations against the School Defendants are limited to the

S.L. incident on March 6, 2009, and the surrounding events. The individual

School Defendants (Kronin, Stewart, and Smiley) are, like Jenkins, African

American. SDSMF

¶ 80. Of course, that circumstance does not rule out

discrimination, but in the absence of other evidence, it does not establish

discrimination, either. The record contains no evidence that these Defendants’

actions in alerting the police department and cooperating with the investigation

were motivated by race. Similarly, there is no evidence that Detective Tingolie

or any other individual working for the Orange Police Department purposefully discriminated against Jenkins. There is no evidence so much as suggesting that Jenkins was treated differently from other, similarly situated individuals.

Armstrong, 517 U.S. at 457. For example, Jenkins does not point to any other substitute teacher or school employee who allegedly committed similar acts but

received different treatment.

In sum, the evidence here does not support an equal protection claim. Summary judgment is granted to the Defendants on the equal protection

component of Jenkins’s constitutional claims.

(4) Other Constitutional Claims

Jenkins makes two additional constitutional claims under the NJCRA

and Section 1983. First, Jenkins alleges that he was deprived of his “safety” or his “right to

a safe secure environment.” Am. Compl. ¶{ 61, 65. Jenkins cites

no federal or state authority that there is

a general constitutional right to

a

“safe secure environment.” This claim fails as

a matter of law.

Second, Jenkins asserts that he was subjected to involuntary servitude

in violation of his constitutional rights. Id.

¶ 65. The factual basis for this claim, which quotes the Thirteenth Amendment’s prohibition of slavery, is not clear from the complaint or the record. Jenkins’s interrogatory responses indicate that this may be just an alternative formulation for his challenge to the legality of his arrest. See Ex. K. Interrog.

# 15. The legality of Jenkins’s

arrest, however, has already been established. An arrest supported by probable

17
In sum, these claims, like the other constitutional claims asserted by

Jenkins, do not survive. Summary judgment is granted in Defendants’ favor on

Counts 1 and

2 of the Complaint.

b. Section 1981 (Count 3)

Section 1981 prohibits racial discrimination in the making of contracts

and in property transactions. Brown v. Philip Morris Inc., 250 F.3d 789, 796 (3d

Cir. 2001). To establish

a claim under 42 U.S.C § 1981,

a plaintiff must show:

(1) membership in

a racial minority; (2) intent to discriminate on the basis of

race; and (3) discrimination concerning one or more of the activities

enumerated in the statute, including the right to make and enforce contracts.

Id.

Jenkins does not assert that he had an employment contract, or any

other type of contract, with any of the Defendants. Further, as already

established, the record does not contain

a scintilla of evidence showing that

any of the Defendants took any discriminatory or disparate action againstJenkins on the basis of his race. Therefore, he cannot maintain

a claim under

Section 1981 against the Defendants. Summary judgment is granted to

Defendants on Count 3.

c. Section 1985 (Count 4)

Jenkins asserts that the Defendants unlawfully conspired against him in

violation of Section 1985. Section 1985 provides

a cause of action for the victim

of

a conspiracy motivated by race discrimination, which I assume to be

Jenkins’s claim here. Farber v. City of Paterson, 440 F.3d 131, 138 (3d Cir.

2006). To support

a Section 1985 claim, the plaintiff must allege and prove

four elements: (1)

a conspiracy; (2) for the purpose of depriving, either directly

or indirectly, any person or class of persons of the equal protection of the laws,

or of equal privileges and immunities under the laws; and (3) an act in

furtherance of the conspiracy; (4) whereby

a person is either injured in his

person or property or deprived of any right or privilege of

a citizen of the United

States. United Bhd. of Carpenters

& Joiners of Am., Local 610, AFL-CIO v. Scott,

18
y 

showing that he was unlawfully discriminated against by the Defendants.

Therefore, his claim for a conspiracy motivated by invidious discriminatory animus fails as a matter of law. Summary judgment is granted to Defendants

on Count 4.

d. Section 1986 (Count 5)

Section 1986 establishes a cause of action against any person who has

knowledge of a 1985 violation that is about to be committed, and has the power

to prevent or aid in preventing the commission of the violation but neglects or

refuses to do so. 42 U.S.C. § 1986. In order to show a violation of Section 1986,

the plaintiff must show the existence of a predicate Section 1985 violation.

Clark v. Clabaugh, 20 F.3d 1290, 1295 (3d Cir. 1994). Here, there is no

evidence of a Section 1985 violation, so this derivative claim cannot succeed.Summary judgment is granted to Defendants on Count 5.

The foregoing is sufficient to dispose of Jenkins’s constitutional claims. I

do not reach the Defendants’ additional arguments in favor of summary

judgment, including qualified immunity (which would appear to apply a

fortiori), statute of limitations, and failure to meet the prerequisites for

municipal liability under Monell v. Dep’t of Social Services, 436 U.S. 658 (1978).

2. NJLAD Discrimination Claim (Count 7)

Jenkins asserts one additional, non-constitutional claim. Count 7 of the

Amended Complaint alleges that the Defendants violated his rights under the

NJLAD. Am. Compi. ¶ 84. The Amended Complaint does not allege any specific

acts in violation of the NJLAD. Jenkins’s brief does not make any arguments that specifically pertain to NJLAD. In his interrogatory responses, however,

Jenkins states that the Defendants discriminated against him by failing to

“provide and/or seek to establish a working relationship” as they did with otheremployees of the high school. Ex. K, Interrog. #8. The NJLAD claim by its

19
Bank v. Sisler, 723 A.2d 944, 954-55 (N.J. 1999). At the first step, the plaintiff

must prove by

a preponderance of the evidence that: (1) he was in the protected

group; (2) he was performing his job at

a level that met his employer’s

legitimate expectations; (3) that he nevertheless was fired; and (4) that [the

employerj sought someone to perform the same work after he left. Mogull v. CB

Commercial Real Estate Grp., Inc., 744 A.2d 1186, 1193 (N.J. 2000).

Establishing the prima facie case is not an onerous requirement. Bergen

Commercial Bank, 723 A.2d at 955.

A prima facie case creates

a presumption of discrimination, and the

burden then shifts to the employer to produce evidence of

a legitimate, non

discriminatory reason for its actions against plaintiff. Id. If the employer

produces such evidence, the presumption of discrimination disappears. Id.

(citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507-08 (1993)). The burden

of production then shifts back to the employee, who has the “opportunity to

prove by

a preponderance of the evidence that the legitimate nondiscriminatory

reason articulated by the defendant was not the true reason for the

employment decision but was merely

a pretext for discrimination.” Id. (citations

omitted). The employee may meet this burden by either persuading the court

that

a discriminatory reason more likely motivated the employer, or indirectly

by showing that the employer’s proffered explanation is unworthy of credence.

Id.

Jenkins’s employment discrimination claim fails as

a matter of law. He

has not established

a prima facie case of employment discrimination because

‘ Liability under the NJLAD may only be imposed against an employer. Cicchetti

v. Morris Crtty. Sheriff’s Office, 947 A.2d 626, 645 (N.J. 2008). Individual employees

and supervisors are not “employers” under the LAD, and their liability may arise, if at

all, only through the “aiding and abetting” mechanism of the LAD statute. Id. To prove

an employee liable as an aider and abettor, Plaintiff must show: (1) the employer

whom the defendant aided performed

a wrongful act causing an injury; (2) the

defendant was generally aware of his role as part of an overafl illegal, or tortious

activity at the time that he provided the assistance; and (3) the defendant knowingly

and substantially assisted the principal violation. Id.; Hurley v. Atlantic City Police

Dep’t, 174 F.3d 95, 127 (3d Cir. 1999) (defining aiding and abetting liability).

20
with him. Id. ¶J 18, 2 1-23. The matter was then turned over to the local police.

Id. ¶f 26, 65. These facts do not establish that Jenkins was meeting his

employer’s “legitimate expectations”; nor do they give rise to an inference of

discriminatory motive.

The School Defendants have clearly articulated a legitimate, non

discriminatory reason for their actions on the day of the S.L. incident, as well

as their decision to stop using Jenkins as a substitute teacher. See School Def.

Br. at 25. Jenkins blames S.L. for the altercation, but does not dispute that it

occurred. Id. ¶J 12, 18. Multiple witnesses saw Jenkins carrying S.L. down the

hallway. Id. ¶ 13; RSMF1 ¶ 13. Obtaining Jenkins’s statement and convening a

meeting were reasonable measures in response to a physical altercation

between a teacher and a student on school grounds. They do not suggest a

discriminatory motive. Nor can the school be faulted for cooperating with the

investigation after S.L.’s mother filed a police report. In April 2009, when the

BOE removed Jenkins from the active substitute list for “unacceptable

performance,” he had been criminally charged. SDSMF ¶ 37 (citing Ex. M, Kronin Letter). Again, no discrimination can be inferred from this reasonable

administrative action.

Jenkins presents no evidence that the School Defendants’ actions were

motivated by race, gender, or any another protected classification. He has

failed to rebut the School Defendants’ overwhelming showing of a reasonable,

non-discriminatory purpose with any evidence that it was pretextual.

There is no genuine issue of material fact regarding Jenkins’s NJLAD

claim. The Defendants will also be granted summary judgment on Count 7.

C. Motion to Vacate Stipulation of Dismissal

Jenkins moves separately under Fed. R. Civ. P. 60 to vacate the

stipulation of dismissal with prejudice as to S.L. (ECF No. 96). Because the

motions for summary judgment have been granted, I will tie up this loose end

before terminating the case.

21
required. See Fed. R. Civ. P. 41(a)(2).

The threshold issue is whether this stipulation—signed by counsel for

Jenkins and S.L., but not by counsel for the other Defendants—is effective.

Although no party raises the issue, it would appear to fall short of the Rule

41(a)(1) requirement that it be signed “by all parties who have appeared.”

(Emphasis added.)’ 4I note, however, that no other defendant objects; they arethe only parties with standing to complain, and their rights are in no way

affected. If this is

a deviation from the Rule, it is

a harmless one. “[C}ourts have

allowed stipulations that do not conform with all of the requirements of Rule

41.” Kabbaj v. Am. Sch. of Tangier, 445 F. App’x 541, 544 (3d Cir. 2011) (not

precedential; noting that some courts have allowed oral, rather than written,

stipulations).

Jenkins argues that the stipulation should be vacated because he did not

consent to its filing by his first attorney, Foster, several days after he had filed

a substitution of counsel. See Stipulation (ECF No. 77); Substitution of

Attorney (ECF No. 75). I assume this was an ordinary case of lag time. In any

event, however, Jenkins’s second attorney, Levasseur, was fully involved in the

execution and delivery of the stipulation. See ECF Nos. 83, 84. Levasseur has

represented to the Court that he discussed the claims against S.L. with

Jenkins on several occasions in April and May of 2013, and that his client gave

consent to the dismissal. Levasseur Letter (ECF No. 84). There has been no

waiver of the attorney-client privilege or evidentiary hearing to explore the

underlying facts.

I need not hold such

a hearing, however, because the relief requested is

futile. Mr. Levasseur has stated that the stipulation of dismissal was entered to

avoid the potential “impositions of costs and sanctions” for the filing of

frivolous pleadings. (ECF No. 84). His concerns were realistic; the claims as

against S.L. are so lacking in merit as to be frivolous, and by withdrawing

them, counsel might well have saved Jenkins from the payment of sanctions.

The brief for S.L. on this motion employs ellipses to omit this language from its

quotation of the Rule. (ECF No. 107 at

7 (Br. at 3)). I find that omission highly

questionable.

22
briefed but never decided by the Court because the stipulation of dismissal

intervened.’ 5

The most obvious of the grounds asserted for dismissal are as follows:

First, the constitutional claims (Counts 1-5) require “state action” by a

government entity or employee. Thus, for example, 42 U.S.C. § 1983 provides a

remedy for a constitutional deprivation perpetrated “under color of state law.”

The state equivalent, N.J.S.A. 10:6-2, provides a state-law remedy for such a

deprivation “under color of law.” S.L., a 15-year-old high school sophomore,

was obviously in no position to commit such a violation. She is not a state

actor and does not exercise state power. See Am. Mfrs. Mut. Ins. Co. v. Sullivan,

526 U.S. 40, 50 (1999) (“[T]he under-color-of-state-law element of § 1983

excludes from its reach merely private conduct”) (internal citations and

quotations omitted); Perez v. Zagami, LLC, 94 A.3d 869, 877 (N.J. 2014)

(stating that construing N.J.S.A. 10:6-2 to allow remedies against private

actors would be a “radical change” from the Legislature’s intent and would

“dramatically expand the liability of private individuals beyond its current

bounds.”)

Second, the remaining count (Count 7, the LAD claim) does not apply to

S.L. as a matter of law. The LAD applies only to the employer-employee

relationship. Cicchetti v. Morris Cnty. Sheriff’s Office, 947 A.2d 626, 645 (N.J.

2008). S.L. was not Jenkins’s employer, nor was she a co-employee.

As noted, the grounds for summary judgment discussed in Part II.B,

supra, are incorporated here. S.L. also cites further grounds for dismissal.

These include failure to state a claim, statute of limitations, and collateral

15 There can be no claim of unfair surprise in considering these grounds. The original motion to dismiss was fully briefed. S.L.’s motion papers and reply were electronically filed. (ECF nos. 50, 57) Jenkins’s brief in opposition apparently was not electronically filed, but is stamped “received” as of December 17, 2012, and is in the Court’s file. The grounds asserted in S.L.’s motion to dismiss were restated in her brief

in opposition to Jenkins’s motion to vacate the stipulation (ECF No. 106), and Jenkins replied to them (ECF No. 107).

23
Defendants on all counts. In addition, Jenkins

s motion to vacate the

stipulation of dismissal as to S.L. is denied.

An Order will be filed in accordance with this Opinion.

Kevin McNultyUnited States District Judge

Dated: September 29, 2014

16 Claim preclusion has three elements: (1) a final judgment on the merits; (2) the

prior suit involved the same parties or their privies; and (3) the subsequent suit is

based on the same transaction or occurrence. Watkins v. Resorts Int’l Hotel & Casino,

Inc., 591 A.2d 592, 599 (N.J. 1991) (state law); United States v. Athlone Indus., Inc.,

746 F.2d 977, 983 (3d Cir. 1984) (federal law). Issue preclusion, or collateral estoppel,

requires: (1) identity of issues; (2) actual litigation of the issue in the prior proceeding;

(3) a final judgment on the merits; (4) that the determination of the issue was essential

to the prior judgment; and (5) identity or privily of parties. See In re Estate ofDawson,

641 A.2d 1026, 1034-35 (N.J. 1994). On August 31, 2011, Jenkins filed a civil action

against S.L. in New Jersey Superior Court, Essex County, Special Civil Part, No. DC023951-11. He sued for “Damages from assault & trial costs & lost wages.” The

incident for which he sued was “Assault occur 3.6.09.” This clearly refers to the March

6, 2009, altercation with S.L. in the Orange classroom. (ECF No. 50-2, Ex. B). That

State action was dismissed by order dated November 4, 2011. (ECF No. 50-2, Ex. C).

The order states that the motion was opposed; the grounds for dismissal were stated

orally on the record, but no transcript is included. If I were to consider this as an

independent ground for dismissal, I would verify whether this was a judgment on the

merits. If so, it would preclude further litigation of claims arising from the same issues

and from claims that were or could have been brought. See generally Migra v. Warren

City Sch. Dist. Bd. ofEduc., 465 U.S. 75, 81(1984); 28 U.S.C. § 1738.

17 In his opposing briefs, Jenkins states that he seeks leave to amend his

complaint to address any deficiencies. See Opp. to City Def. (ECF No. 99) at 21; Opp.

to School Def. (ECF No. 100) at 10. Such an amendment—particularly after the close of

discovery, in connection with a meritorious defense motion for summary

judgment—will not be granted based on a passing reference in a brief. I do not invite

such a motion, but if it were filed, it would have to be presented in proper form,

pursuant to Fed. R. Civ. P. 15, with a proposed amended pleading attached.

24