NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

ROBERT KlN1JERY,

Plaintiff, Hon. Dennis M. Cavanaugh

v. OPINION

JERSEY CITY POLICE Civil Action No. 11-1929 (DMC)(MF)

DEPARTMENT, et al.,

Defendants.

DENNIS M. CAVANAUGH, U.S.D.J.:

This matter comes before the Court upon the Motion of Defendants, Police Officer P.

Wojtowicz, Badge #2848 and Police Officer J.E. Ransom, Badge #2698 (together “Officers”)

and the City ofJersey City (improperly pled as the Jersey City Police Department) (“Jersey

City”) (all collectively “Defendants”) for Summary Judgment on February 1, 2012 (ECF No.9).

Pursuant to FED. R. Civ. P. 78, stating that the court has the authority to determine the motions on

briefs without oral hearings, no oral argument was heard. After considering all submissions, and

based upon the following, it is the finding of this Court that Defendants’ Motion for Summary

Judgment is granted with prejudice.

I. BACKGROUND

Plaintiff first filed his Complaint in this action on April 5. 2011. (ECF No. 1, “Compl.”).

Plaintiffs application to proceed införmapauperis was denied by this Courts Order dated April

8, 2011. (ECF No. 2). Plaintiff properly re-filed his Complaint within the time prescribed by this

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Court along with the appropriate filing fee on May 3, 201 1. In his Complaint, Plaintiff asserts

the Officers arrested him on September 26, 2009 at the apartment that he was renting, located at

24 Reed Street, Jersey City, New Jersey. Plaintiff further asserts that the Officers, who were

employed by the Jersey City Police Department, entered his residence without a search warrant,

used excessive force to arrest him, and conducted a search of the premises without his permission

or a valid search warrant.

Defendants filed the present unopposed Motion for Summary Judgment and an

accompanying Moving Brief on October 25, 2012. (ECF No. 14). In response. Plaintiff filed a

letter that includes . The matter is now before this Court.

II. STANDARD OF REVIEW

Summary judgment is granted only if all probative materials of record, viewed with all

inferences in favor of the non-moving party, demonstrate that there is no genuine issue of

material fact and that the movant is entitled to judgment as a matter of law, FED. R. Civ. P.

56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). The moving party bears the burden ot

showing that there is no genuine issue of fact. . “The burden has two distinct components: an

initial burden of production, which shifts to the nonmoving party if satisfied by the moving party;

and an ultimate burden of persuasion, which always remains on the moving party.” The nonmoving party “may not rest upon the mere allegations or denials of his pleading” to satisfy this

burden, but must produce sufficient evidence to support a jury verdict in his favor. FED. R.

Civ. P. 56(e); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp.. 475 U.S. 574. 586

‘For purposes of this Motion, Plaintiffs initial filing on April 5, 2011 will be referenced,

when citing to the Complaint.

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(1986). “[U]nsupported allegations in [a] memorandum and pleadings are insufficient to repel

summary judgment.” Schoch v. First Fid. Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990). “In

determining whether there are any issues of material fact. the Court must resolve all doubts as to

the existence of a material fact against the moving party and draw all reasonable inferences -

including issues of credibility - in favor of the nonmoving party.” Newsome v. Admin. Office of

the Courts of the State ofN.J., 103 F. Supp.2d 807, 815 (D.N.J. 2000), affd, 51 Fed. App’x 76

(3d Cir. 2002) (citing Watts v. Univ. of Del., 622 F.2d 47, 50 (D.N.J. 1980)).

III. DiSCUSSION

While Plaintiffs Complaint does not specifically assert Fourth Amendment claims for

illegal search and seizure against the Defendants, the Court finds that the Complaint should be

properly construed as a Fourth Amendment violation claim. However, Plaintiff has failed to

present any evidence to sustain his Fourth Amendment claims.

A. Plaintiff failed to present evidence that his Fourth Amendment right to be free

from illegal searches and seizures was violated.

Plaintiffs Complaint states that “Officers enter (sic) my residents (sic) with no search

warrant and searched my apartment without my permission nor search warrant.” (Complaint. Pg.

4).

It is well settled law that officers can conduct a protective sweep in conjunction with an

in-home arrest when there is reasonable belief based upon specific and articulable facts that the

area to be swept could harbor individuals posing a danger to those on the arrest scene. Maryland

v. Buie, 494 U.S. 325, 327 (1990).

In the instant matter, Plaintiff was arrested in his apartment for a valid warrant after

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willingly opening the apartment door. (Ex. B, Police Report) 2.After Plaintiff was placed in

handcuffs, the Officers conducted a protective sweep of the apartment. Plaintifftestified that the

sweep consisted of Officer Ransom walking into his bathroom, bedroom, living room and

looking through a window in the kitchen. (Ex. C, Kinnery Deposition “Kinnery Dep.”

29: 1 5-32:7). Plaintiff also testified that Officer Ransom picked up a “bag of herbs” that was

located in plain view and had a K-9 sniff the bag to determine whether the bag contained any

illegal substances. (Kinnery Dep. 3 1:6-33:21). The sweep took approximately two minutes to

complete. (Kinnery Dep. 31:6-20).

Under the applicable law set forth by the Supreme Court in Maryland, supra, the Officers’

actions were completely justified, especially considering that the Officers were aware that a

houseguest of Plaintiff had shot and killed a fellow police officer in that apartment a few months

before this incident. (Ex.C, Kinnery Dep. 27:18- 28:17).

Therefore, Defendants are entitled to summary judgment.

B. Plaintiff failed to present any evidence to sustain a claim that he was arrested

without probable cause.

The Fourth Amendment prohibits officers from arresting a citizen without probable cause

for the arrest. Papachristou v. City of Jacksonville, 405 U.S. 156, 169 (1972). To state a 42

U.S.C. §1983 claim for false arrest, a plaintiff must establish that he was arrested by a state actor

without probable cause. Santiago v. City of Vineland, 107 F. Supp. 2d 512 (D.N.J. 2000) (citing

Palma v. Atlantic County, 53 F. Supp. 2d. 743, 755 (D.N.J. 1999). The existence of probable

2 Exhibits cited to in this Discussion section are attached to Defendants’ Moving Briet

ECFNo. 14).

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cause will defeat a claim of false arrest. Id. Probable cause exists when the arresting officer has

knowledge based upon the facts and circumstances of the situation to warrant a reasonable

person to believe that an offense was committed by the arrestee. United States v. Cruz. 910 F.2d

1072, 1076 (3d Cir.l990). Probable cause for an arrest is present when a citizen’s name appears

on a bench warrant. United States v. Smith, 468 F.2d 381 (3d Cir. 1972). Also, under FED. R.

CRIM. P. 4(c)(3), an officer is not required to have the warrant in his possession at the time of

arrest. Smith, 468 F.2d at 382.

in the instant case, Plaintiff deposition testimony as to this issue. centers on the .Jersev

City Municipal Court and the his belief that the arrest warrant should have been recalled by a

municipal judge. (Kinnery Dep. 53:14-54:22). However, Plaintiffs this argument is irrelevant as

to whether the Officers had probable cause to arrest Plaintiff.

The Officers arrested Plaintiff for an valid warrant. (Ex. B, Report). There is no evidence

that either the warrant was invalid or that the Officers should have known that the warrant was

invalid. Plaintiff resisted the arrest and was also charged with resisting arrest. (Ex. B. Report).

Although Plaintiff incoherently argued that a Municipal Court Judge should have recalled the

warrant prior to this incident, Plaintiff admitted that the warrant was still active and valid when

he was arrested on September 26, 2009. (Kinnery Dep. 58:12-59:25; Ex. D, ATS Documents). 3

Thus, the Officers had probable cause to arrest Plaintiff and Defendants are entitled to summary

3The underlying summonses that led to the bench warrant were for violations ofN.J.S.A.

§ 39:3-29- Failure to Exhibit Drivers License and Registration Card. (Ex. D- ATS Documents).

The statute provides that if the defendant exhibits the documents and proof that the documents

were valid on the day that he was charged, to the municipal court judge, the judge may dismiss

the charges. Id. In this matter, the charges were dismissed by a judge on October 2, 2009.

(Complaint Pg. 10).

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judgment.

C. Plaintiff failed to present evidence that the force used by the police officers was

excessive therefore Jersey City is entitled to summary judgment.

The Fourth Amendment prohibits the use of excessive force when arresting a suspect.

Abraham v. Raso, 183 F.3d 279, 288 (3d Cir. 1999). An officer may only use reasonable force

when effectuating an arrest. Kopec v. Tate, 361 F.3d 772, 776-78 (3d Cir. 2004). To determine

whether the force was reasonable, the court must apply the reasonableness test, which requires an

analysis ofthe facts and circumstances of the incident. Graham v. Connor, 490 U.S. 386, 396

(1989). Determining whether the conduct was reasonable requires the court to consider the

severity of the crime, the immediate threat posed to the officer’s safety. whether the suspect was

actively resisting the arrest and the number of suspects with whom the officers had to contend at

one time. Couden v. Duf, 446 F.3d 483, 496-97 (3d Cir. 2006). The degree of force that an

officer is allowed to use is dictated by the suspect’s behavior. Graham, 490 U.S. at 396. The

reasonableness of force used “must be judged from the perspective of a reasonable officer on the

scene, rather than with the 20/20 vision of hindsight.” .

In the instant case, the minimal amount of force used to effectuate the arrest was

reasonable and warranted. The Officers attempted to place cuffs on Plaintiffs hands because he

was under arrest. Plaintiff tensed up his arm in an attempt not to be handcuffed. The Officers

maneuvered Plaintiffs arm in an attempt to place Plaintiffs hands in cuffs. No unnecessary force

was used. Furthermore, Plaintiff makes no allegations whatsoever that he suffered any physical

injuries as a result of this incident. Therefore, Defendants are entitled to summary judgment.

D. Plaintiff’s claims against the City of Jersey City should be dismissed because

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plaintiff failed to present any evidence that his civil rights were violated clue to a

City of Jersey City custom, policy and/or practice.

The first step in any civil rights §1983 action is to identify the alleged constitutional

violation. In the instant case, Plaintiff alleges the Officers violated his Forth Amendment rights.

(Complaint).

A municipality can only be held liable in a §1983 action when the alleged constitutional

violation implements or executes a policy, regulation or decision officially adopted by the

municipality or informally adopted by custom. Monell v. New York City Dept. of Social

Services, 436 U.S. 658 (1978). A municipality cannot be held liable under §1983 on a respondeat

superior theory of liability. Monell, 436 U.S. at 694. Although the municipality may not be held

liable for a constitutional tort under §1983 on the theory of vicarious liability, it can be held

responsible as an entity when the injury inflicted is permitted under its adopted

policy or custom. Id.

It has been held that a “policy is made when a decision maker possessing final authority

to establish municipal policy with respect to the action’ issues an official proclamation, policy, or

edict. A course of conduct is considered to be a ‘custom’ when, though not authorized by law,

such practices of state officials [are] so permanent and well-settled as to virtually constitute

law.” Andrews v. City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir.1990). In the instant case,

Plaintiff failed to present any evidence to sustain a violation of his civil rights under the Forth

Amendment. Also, Plaintiff failed to present any evidence that the alleged violation was the

result of a City custom, policy and/or practice. Furthermore. Plaintiff has not proffered any

testimony, expert or otherwise, to support the claim. Therefore, Plaintiff cannot meet his burden

of proof and the claim should be dismissed.

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IV. CONCLUSION

For the foregoing reasons, Defendants’ Motion for Summary Judgment is granted with

prejudice. An appropriate Order accompanies this Opinion.

// //3

Original: Clerk’s Office

cc: Hon. Mark Falk, U.S.M.J.

All Counsel of Record

File

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