OPINION

V.

ROBERT MEEHAN, et al.,

Defendants.

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

The plaintiff, Henry Vargas, brought this action against the defendants,

Robert Meehan, Jeff Camiscioli, Officer Drelic, Kevin Amos and Robert Andrezzi

(collectively, “Garfield Officers”) and John Doe Assistant Bergen County

Prosecutor, for violations of his constitutional rights under 42 U.S.C. § 1983and the New Jersey Civil Rights Act, N.J.S.A. 10:6-1 et seq. The complaintalleges that the Garfield Officers subjected Vargas to unlawful arrests, searches

and seizures and police stops as part of a pattern of harassment with the aimof keeping Vargas quiet about the alleged illegal activities of Amos’s son, alsoan officer with the Garfield Police Department. Now before the court is the

Garfield Officers’ motion for summary judgment. (Dkt. No. 54) For the reasonsexpressed below, the motion will be granted.

I. BACKGROUND

In the first half of 2007, Vargas lived at 63-65 Cadmus Avenue in

Elmwood Park, New Jersey, in an apartment with Jonathan Dicrezencio andMark Amos, the son of Defendant Kevin Amos. (Dft. SOF ¶ 3) At that time,Defendant Amos was Deputy Chief in the Garfield Police Department. (Id.) InMay 2007, following a lengthy investigation by the Passaic County Prosecutor’soffice, Vargas and his roommate, Jonathan DiCrezencio, were arrested oncharges of possession of marijuana in the second degree. (Dft. SOF ¶ 4) A

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offenses with which Vargas was charged, nor was there mention of him on the

search warrant. (Id. ¶ 6) A month later, in June 2007, Mark Amos became an

officer in the Garfield Police Department. (Id. ¶ 7)

Following the May 2007 arrest, Vargas contends that the Garfield

Officers, directed by then-Chief Andrezzi and then-Deputy Chief Amos, began acourse of harassment, intimidation and retaliation against him. (Id. ¶ 9) This

course of conduct included numerous traffic stops and two arrests. (Id. ¶ 1 Oe)

One such arrest occurred on September 28, 2007, when Defendant Camiscioli

stopped Vargas because he was double-parked in an area where there was

zero-tolerance for double-parking. (Id. ¶J 1 Oa, 15) Vargas apparently arguedwith Camiscioli about the reasons for the stop and cursed at the officer, who

had been warned prior to this interaction to “watch [his] back” with respect to

Vargas. (Id. ¶J 13-14; Vargas Cert. ¶ 8) Camiscioli saw a baseball bat in the

backseat and ordered Vargas out of the car. (Id. ¶ 16) When Vargas refused toget out of the car, Camiscioli arrested Vargas for obstruction ofjustice andunlawful possession of a weapon. (Id. ¶J lOb, 17) The other arrest occurred in

June 2008, when Defendant Meehan arrested Vargas for aggravated assault.

(Id. ¶1 Oc) Vargas contends that he happened upon a street fight between two

rival groups and that he joined in to assist the Garfield police officer who hadreported to the scene. (Id. ¶ 23) Officer Meehan testified that Vargas struck himin the head with a rock, leading to the arrest on an aggravated assault charge.

(Id. ¶ 24)

During this time, Vargas surreptitiously recorded certain Garfield police

officers, and according to him, those officers acknowledged that Vargas was

arrested or stopped on false pretenses because of his affiliation with Mark

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and separately, under the New Jersey Civil Rights Act, for the September 2007

and May 2008 arrests and “constant harassment,” as well as a cause of action

against the John Doe prosecutor for failing to present exculpatory evidence,

and a cause of action sounding in conspiracy. The Garfield Officers answered

on July 22, 2011. (Dkt. No. 10) The Garfield Officers then moved for judgment

on the pleadings on January 9, 2012, on the grounds that the claims were

time-barred under the governing two-year statute of limitations, and Vargas

cross-moved to amend his complaint to demonstrate that the wrongful conduct

extended into 2009. (Dkt. Nos. 14, 16) By Opinion dated May 22, 2012, Judge

Cecchi denied the Garfield Officers’ motion and granted Vargas leave to amend

his complaint. (Dkt. No. 19) Vargas filed the Amended Complaint on May 23,

2012, and the Garfield Officers answered on June 1, 2012. (Dkt. Nos. 21, 22)

Discovery thereafter commenced.

The Garfield Officers filed this motion for summary judgment on

September 8, 2014. (Dkt. No. 54) Vargas submitted a Counterstatement of

Facts and a Certification of Henry Vargas in opposition to the defendants’motion on November 24, 2014, after the deadline for opposing the motion had

passed and without seeking an extension of time to respond from the court.

(Dkt Nos. 55, 56) Vargas also did not include a brief in opposition to legal

arguments made in the Garfield Officers’ motion for summary judgment. The

Garfield Officers filed their reply brief on December 5, 2014. (Dkt. No. 59)

II. JURISDICTION

This Court has subject matter jurisdiction over this case pursuant to 28

U.S.C. § 1331 and 1367 as the case presents questions under a federal

statute, 42 U.S.C. § 1983, and pendent state law claims.

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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 factsand inferences in the light most favorable to the nonmoving party. See Boyle v.

Cnty. of Allegheny Pa., 139 F.3d 386, 393 (3d Cir. 1998). 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]ithrespect 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. Inclus. Co., Ltd. v. Zenith Radio Corp., 475U.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 F.3d 130, 138

(3d Cir. 2001) (“A nonmoving party has created a genuine issue of material fact

if it has provided sufficient evidence to allow a jury to find in its favor at trial.”).

If the nonmoving party has failed “to make a showing sufficient to establish the

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

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b. Statute of Limitations

Section 1983 claims, and their State analogues under the New Jersey

Civil Rights Act, are subject to New Jersey’s two-year statute of limitations for

personal injury actions. See Patyrak v. Apgar, 511 F. App’x 193, 195 (3d Cir.

2013) (per curiam) (citing Dique v. N.J. State Police, 603 F.3d 181, 185 (3d Cir.2010)). “Under federal law, a cause of action accrues, and the statute of

limitations begins to run when the plaintiff knew or should have known of theinjury upon which its action is based.” Kach v. Hose, 589 F.3d 626, 634 (3d

Cir. 2009) (internal quotation marks and citations omitted). “As a generalmatter, a cause of action accrues at the time of the last event necessary to

complete the tort, usually at the time the plaintiff suffers an injury.” Id. (citing

United States v. Kubrick, 444 U.S. 111, 120 (1979)).

IV. ANALYSIS

Vargas filed his federal complaint on May 18, 2011. The two year statute

of limitations would therefore bar any cause of action that accrued before May

18, 2009. The last clearly dated event was Vargas’s arrest for aggravated

assault in June 2008, well outside of the two year limitations period. Even if I

broadly construe the complaint to allege that vehicle stops occurred

throughout 2008 (i.e., that they might have continued until December 31,

2008), the claims would be untimely. I also find that the continuing violationdoctrine is inapplicable to this action.

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the last times he was stopped or otherwise harassed by Defendants Drelic,

Camiscioli, and Meehan were in 2008. (Vargas Dep. 85:11-18 (noting that the

last time Vargas was stopped by Officer Drelic was in May 2008); 118:22-15

(noting that the last incident with Officer Camiscioli was in September 2007);

177:21-178:3 (noting that the last incident with Officer Meehan was in June

2008)) Those acts fell well outside the limitations period.

Amos and Andrezzi. The amended complaint alleges that the actions of

Amos and Andrezzi “continued up through and beyond May 28, 2009.”

(Amended Compl. ¶ 28A) In response to a summary judgment motion, however,

the plaintiff cannot rest on the allegations of his complaint; he must come

forward with some evidence. See p. 4, supra, and cases cited. Vargas has failed

to do so.

Vargas has admitted in response to interrogatories that Andrezzi’s

involvement “stopped when he retired.” (Ex. G, Response to Interrogatory No.

20) It is uncontested that Andrezzi retired in April 2008, over a year outside thelimitations period. (Cert. of Daniel R. Bevere, Esq. in Support of Motion for

Summary Judgment, Ex. F. Andrezzi Dep 6:19-20; see also Ex. A Vargas Dep.

189:18-19 (acknowledging that Andrezzi had retired by the time Vargas’s

attorney wrote to the Garfield Police about the alleged course of harassment))

As to Amos, there is no evidence of any kind that he harassed Vargas, or

participated in harassing actions of others, in 2009 or later.

The “conspiracy.” The amended complaint alleges generally that the

“conspiracy” continued through December 2009. (Amended Compl. ¶ 56) No

evidence has been presented to substantiate that conclusory allegation. Vargastestified that after his lawyer sent a letter to Garfield Police, he was told by

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from 2007 and 2008. (Dkt. No. 8-1)

“John Doe Prosecutor.” This motion to dismiss is brought on behalf of the

Garfield Officers, but I nevertheless consider the allegations regarding the

unnamed prosecutor. The prosecutor’s identity has not been confirmed in

discovery, and presumably this defendant has never been served. The amendedcomplaint alleges that “through the latter part of 2009, on dates unknown to

Plaintiff at this time, but after May 28, 2009,” certain defendantsmisrepresented the events set forth in the complaint to the prosecutor.

(Amended Compl. ¶ 26A) The complaint also alleges that Vargas’s attorneyspoke to the Prosecutor’s Office “over the entire course of 2009” regarding the

allegations. (Id. ¶ 26B) Finally, the complaint alleges that the prosecutor’sactions extended “from about June 2008 past May 2009 and through

December 2009.” (Id. ¶ 54A)

Again, the allegations are not backed by proofs. In his certification in

opposition to the motion for summary judgment, Vargas mentions activities in

2009 only once, stating that “into 2009, [his attorneys] continued to speak to

various officers of the Bergen County Prosecutor’s Office about these

allegations.” (Vargas Cert. ¶ 20) No specific date in 2009 is provided. More

fundamentally, Vargas’s attorney’s “speaking” to the prosecutor would notextend the statute of limitations as to wrongs allegedly committed by theGarfield Officers. See Section IV.B discussion of continuing violation theory.

In short, the defendants contend that no wrongful acts occurred at all,

and the plaintiff has pointed to no evidence that any wrongful act occurredafter May 18, 2009, i.e., within the limitations period.

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where he can demonstrate that each of the alleged acts on the part of the

defendants is part of a pattern or continuing practice and that at least one

such act occurred within the statutory limitations period. See Gould v.

Borough, 615 F. App’x 112, 116 (3d Cir. 2015); see also Cowell v. Palmer Twp.,

263 F.3d 286, 292 (3d Cir. 2001). A plaintiff relying on the doctrine mustdemonstrate a pattern, not merely “the occurrence of isolated or sporadic acts.”

See Cowell, 263 F.3d at 292. The doctrine is inapplicable when the plaintiff is

aware of his injury at the time such injury occurs. See Montanez v. Sec’y Penn.

Dep’t of Corr., 773 F.3d 472, 481 (3d Cir. 2014) (rejecting application ofdoctrine where plaintiff was aware of his injury shortly after its occurrence andfailed to timely assert his rights). Furthermore, the doctrine applies only to“continual unlawful acts, not continual ill effects from an original violation.”

Gould, 615 F. App’x at 116 (citing Weis-Buy Sews., Inc. v. Pagilla, 411 F. 3d

415, 423 (3d Cir. 2005)).

The continuous violation doctrine applies only where a pattern of

wrongful acts extends into the limitations period. But, as established above,

Vargas has pointed to no evidence of any wrongful act within the statutory twoyear period that could anchor a continuous violation claim.

Furthermore, Vargas plainly was aware of his injuries at the time the

allegedly wrongful acts were occurring. Indeed, not only did Vargas tell Officer

Camiscioli that he felt harassed, but Vargas also tape-recorded conversations

with police officers in 2007 in an effort to obtain evidence of the alleged

harassment. Vargas’s alleged injury, then, was known to him well before heasserted his rights and he failed to assert those rights within the two year

statute of limitations.

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official’s refusal to undo or correct a harm caused by the official’s unlawful

conduct is not an affirmative act for purposes of establishing a continuing

violation.”) (quoting Tearpock-Martini v. Borough of Shickshinny, 756 F.3d 232,

236 (3d Cir. 2014)).

All claims are therefore time-barred, and will be dismissed with

prejudice. Because I find that all claims are time-barred, I do not reach the

Garfield Officers’ alternative grounds for summary judgment.

V. CONCLUSION

For the reasons set forth above, the Garfield Officers’ motion for

summary judgment is GRANTED, and the amended complaint is DISMISSED

WITH PREJUDICE because it is barred by the applicable two-year statute of

limitations. An appropriate Order follows.

Dated: December 9, 2015

I /1(

HON. KEVIN MCNULTY, U)J.

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