UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

HONORABLE JOSEPH E. IRENAS

CIVIL ACTION NO. 11-3405

CIVIL ACTION NO. 11-3578

CIVIL ACTION NO. 11-3579 

(JEI/JS)

OPINION

APPEARANCES:

LAW OFFICES OF CHARLES A. FIORE

By: Charles A. Fiore, Esq.

34 South Main Street

P.O. Box 525

Williamstown, New Jersey 08094

Counsel for Plaintiffs

BARKER, GELFAND & JAMES, P.C.

By: Todd J. Gelfand, Esq.

The Laurelwood Corporate Center

1101 Laurel Oak Road

Suite 110

Voorhees, New Jersey 08043

Counsel for Defendant Waterford Township

REYNOLDS & HORN, P.C.

By: John J. Bannon, Esq.

750 Route 73 South

Suite 202A

Marlton, New Jersey 08053

Counsel for Defendants Timothy Lyons and Brent Staiger

TRACEY MILLER, SR., RONALD 

MILLER, SR., LAVINA MILLER, 

S.M. (a minor), and TRACEY 

MILLER, SR., GUARDIAN AD LITEM 

for S.M.,

Plaintiffs,

v.

WATERFORD TOWNSHIP, et al.,

Defendants.

1
POWELL, BIRCHMEIER & POWELL

By: James R. Birchmeier, Esq.

1891 State Highway 50

P.O. Box 582

Tuckahoe, New Jersey 08250

Counsel for Defendants Joseph McNally and Richard 

Passarella

IRENAS, Senior District Judge:

Plaintiff Tracey Miller (“Tracey”) initiated this action 

pursuant to 42 U.S.C. § 1983 against Waterford Township, the 

Borough of Chesilhurst, Evesham Township, and several of their 

police officers. Following the initiation of Tracey’s suit, 

additional Plaintiffs Ronald and Lavina Miller (Tracey’s 

parents, “Ronald” and “Lavina”) and S.M. (Tracey’s minor child) 

filed suit alleging similar violations of their federal and 

state constitutional rights stemming from incidents of alleged 

harassment, unlawful arrest, and excessive force.1 Pending 

before the Court are three Motions for Summary Judgment pursuant 

to Federal Rule of Procedure 56(a) in each of the three cases, 

filed by (1) Defendant Waterford Township, (2) Defendants 

Timothy Lyons (“Lyons”) and Brent Staiger (“Staiger”), and (3) 

Defendants Joseph McNally (“McNally”) and Richard Passarella 

(“Passarella”). For the reasons that follow, these motions are 

granted in part and denied in part. A summary of each claim and 

its disposition appears at the end of this Opinion.

1 The Court exercises subject-matter jurisdiction pursuant to 28 U.S.C. §§ 

1331 and 1367. The three cases have not been consolidated at this time.

2

 
I.

Though some facts remain in dispute, the Court briefly 

reviews the circumstances giving rise to the claims at issue. 

The claims in these three lawsuits arise from three incidents in 

late 2010 and early 2011. A fourth incident in early 2012 is 

key to the supplemental counts alleged by Tracey against 

McNally. The Court begins by providing relevant background 

information and then describes each of the incidents giving rise 

to the instant suits.

Tracey Miller is a forty-five year-old male, previously 

married to Jennifer Miller. (Pls.’ S.S.O.M.F. at ¶ 2)2 The 

divorce between Tracey and Jennifer was not amicable, as it 

included cross-complaints for domestic violence, restraining 

orders, and police involvement at various points in 2009 and 

2010. (See, e.g. Defs. Waterford Twp. S.O.M.F. ¶ 7) Following 

their divorce, at some point in March 2010, Jennifer and her 

father, Tom Watson, brought information to police concerning 

allegations that Tracey sent sexually explicit photographs to 

Tracey’s step-daughter, V.W. (a minor). (Defs. Waterford Twp. 

S.O.M.F. ¶ 9) The substance and disposition of these criminal 

charges are not otherwise relevant to the instant suits.

2 References to “Pls.’ S.S.O.M.F.” are to the Plaintiffs’ Supplemental 

Statement of Undisputed Material Facts.

3

 
The specific facts giving rise to the instant suits begin 

with a traffic stop of Tracey on October 14, 2010. (Defs. 

Waterford Twp. S.O.M.F. ¶ 16) Lyons initiated this stop when 

Tracey failed to reach a full stop at a stop sign. (Id.; Oct. 

14 Police Rep. at 2) The police report detailing Tracey’s 

arrest contains a number of allegations concerning Tracey’s 

behavior while in custody, including that he was disruptive and 

uncooperative. (Oct. 14 Police Rep. at 3) In particular, 

Tracey and McNally engaged in a verbal confrontation while 

McNally administered the DWI tests following Tracey’s arrest. 

(Defs. Waterford Twp. S.O.M.F. ¶¶ 19-23) As a result of the 

stop and subsequent criminal proceedings in the New Jersey court 

system, Tracey was convicted of a DWI charge. 

Four days later, Tracey was the subject of a second police 

stop in Waterford Township. (Defs. Waterford Twp. S.O.M.F. ¶ 

24) On October 18, 2010, Tracey was driving S.M., his minor 

daughter, in his pickup truck to a friend’s house when he drove 

past Tom Watson’s home. (Tracey Miller Dep. at 114, Aug. 27, 

2012) As they went by, Tracey observed McNally and Watson 

having a conversation, which Tracey elected to record with a 

handheld camera while he was driving. (T. Miller Dep. at 

113:18, Aug. 27, 2012) Shortly after driving past, Tracey 

realized he had left something behind at home and therefore 

4
turned back, again passing McNally and Watson.3 (T. Miller Dep. 

at 114-116, Aug. 27, 2012) As Tracey went back to his home, 

Tracey ended up following McNally, who was now in his police 

vehicle and driving. (Defs. Waterford Twp. S.O.M.F. ¶ 26) 

After a short distance, McNally pulled to the side of the road 

and let Tracey pass, with the result that McNally now began 

traveling behind Tracey. 

A few moments later, Tracey pulled his vehicle into a 

vacant parking lot, where the parties dispute what happened 

next. (Defs. Waterford Twp. S.O.M.F. ¶ 29) Tracey maintains 

that he pulled over to check on a bucket that was in the back of 

his vehicle, and then quickly got back into his vehicle and 

prepared to drive away before McNally turned into the parking 

lot and initiated a confrontation. (T. Miller Dep. 133-34, Aug. 

27, 2012) In Tracey’s retelling, after checking on his cargo in 

the back of his pickup truck, he observed McNally’s vehicle 

entering the parking lot and then without any interaction, 

McNally came up to Tracey’s driver-side window with his gun 

drawn. (T. Miller Dep. at 140:15, Aug. 27, 2012) 

On the other hand, McNally’s version of events conflicts

with Tracey’s recollection. In McNally’s retelling of the 

3 It is unclear whether Tracey left behind his license, cigarettes, phone, or 

money for his daughter, but resolution of this issue is not necessary for the 

resolution of the instant motions. (See T. Miller Dep. at 115:9-11, Aug. 27, 

2012)

5

 
incident, McNally drove past the lot, observed Tracey again 

taking a photograph of him, and then as McNally entered the 

parking lot to approach Tracey and investigate the nature of the 

photographs, Tracey put his own vehicle in drive in an attempt 

to leave. (Defs. Waterford Twp. ¶¶ 29-34) 

Though the parties dispute the initiation of this 

confrontation, they agree that ultimately Tracey exited the 

vehicle (leaving S.M. behind in her seat) and fled on foot with 

McNally giving chase. (Defs. Waterford Twp. S.O.M.F. ¶¶ 36-38) 

At this time, Bernard Davis, an off-duty Evesham Township police 

officer, happened by and gave assistance to McNally in 

apprehending Tracey. (Defs. Waterford Twp. S.O.M.F. ¶ 38) As a 

result of these disputed circumstances, Tracey was charged with 

stalking, resisting arrest, and obstructing, charges that 

apparently remain pending. (Defs. Waterford Twp. S.O.M.F. ¶ 40)

The third and final incident relevant to all three lawsuits 

was an encounter between Tracey, S.M., and Ronald and Lavina on 

April 9, 2011. Sometime between 6:50 pm and 7:15 pm on that 

evening, just as Officer Staiger’s shift was beginning, Staiger 

received a phone call from Eric Madera, a private citizen, 

indicating that Tracey might later be driving while under the 

influence of alcohol with his children in his car. (Defs. 

Waterford Twp. S.O.M.F. ¶ 42; Brent Staiger Dep. at 20:8-11) 

Staiger reported this tip to Sergeant Passarella when he came on 

6
duty, and the information was then shared with Lyons and other 

officers on duty that evening in Waterford Township. (Defs. 

Waterford Twp. S.O.M.F. ¶ 42) 

Many of the other facts regarding the April 9 incident 

remain in dispute. As Tracey, with S.M. in his car, drove past 

the Rosedale Gun Club on Pestletown Road around 9:10 pm, Lyons 

reported that he observed Tracey’s vehicle to have illegally 

tinted windows, precipitating a traffic stop. (Lyons Apr. 9, 

2011 Police Rep. at 1) Lyons activated his sirens and pulled 

into the roadway behind Tracey to pull him over, but Tracey 

failed to immediately stop and instead proceeded some distance

down Pestletown Road to Ronald and Lavina’s home before pulling 

off the roadway. (Lyons Apr. 9, 2011 Police Rep. at 1) Once 

there, Lyons reported that Tracey jumped out of his vehicle and 

started walking towards the residence, apparently fleeing from 

Lyons’s commands to stop. (Lyons Apr. 9, 2011 Police Rep. at 2) 

A physical confrontation ensued, where Lyons grabbed Tracey and 

pulled him to the ground during the course of arresting Tracey. 

(Lyons Apr. 9, 2011 Police Rep. at 2) According to Lyons, 

Ronald and Lavina verbally and physically tried to prevent 

Tracey’s arrest, and a physical confrontation with Ronald 

ensued. (Lyons Apr. 9, 2011 Police Rep. at 2) With McNally

finally arriving at the scene, Lyons completed his arrest of 

7
Tracey and turned his attention back to Ronald, who was injured 

as Lyons arrested him. (Lyons Apr. 9, 2011 Police Rep. at 2)

On the other hand, Tracey, Ronald, and Lavina testified 

that the April 9 incident occurred far differently. For 

example, Tracey indicated at his deposition that his vehicle’s 

windows were rolled down when Lyons pulled him over, making it 

impossible for Lyons to have seen Tracey’s illegally tinted 

windows. (T. Miller Dep. at 186:19-21, Sept. 4, 2012) Next, 

Tracey indicated that he never attempted to flee, an account 

confirmed by Ronald’s observations as well. (T. Miller Dep. at 

244, Sept. 4, 2012; Ronald Miller Dep. at 16) In short, Tracey, 

Ronald, and Lavina indicated that the physical altercation that 

resulted in Tracey and Ronald’s injuries occurred as a result of 

unprovoked aggression on Lyons’s part. Moreover, Lyons and 

Lavina disagree about whether Lyons hit Lavina with his 

flashlight – Lyons indicates that he never made contact with 

her, while Lavina claims she was hit in the arm. (Compare

Timothy Lyons Dep. at 155:1 with Lavina Miller Dep. at 62:3)

Finally, a fourth incident on March 12, 2012, gave rise to 

two supplemental claims brought by Tracey against McNally. On 

that evening, Tracey was drinking at Starky’s Pour House, a bar 

in Winslow Township, when McNally and Bill Monroe arrived at the 

bar. (T. Miller Dep. at 60:5-7, Sept. 4, 2012) Upon McNally 

and Monroe’s arrival, a bartender warned Tracey that McNally had 

8
just entered the bar, and shortly after that, McNally and Monroe 

sat down at the bar across from Tracey. (T. Miller Dep. at 

61:15-62:1, Sept. 4, 2012; id. at 63:18) As soon as they were 

settled, Tracey explained that a verbal confrontation broke out, 

with McNally “yelling across the bar,” threatening to “kick 

[Tracey’s] ass.” (T. Miller Dep. at 64:12-19, Sept. 4, 2012) 

As the yelling escalated, the bar owner ultimately defused the 

altercation by telling McNally and Monroe to “knock it off,” and 

gave Tracey a ride home. (T. Miller Dep. at 65:5-10, Sept. 4, 

2012) 

As a result of the first three incidents, Tracey Miller 

filed the instant suit (docket 11-cv-3405) on June 13, 2011.4 On 

June 22, 2011, Ronald and Lavina filed their suit resulting from 

the April 9, 2011 altercation at their home (docket 11-cv-3578). 

On the same date, S.M. filed suit as well (docket 11-cv-3579), 

alleging similar claims as Tracey, Ronald, and Lavina from the 

events described herein. Following the filing of the three 

suits, a number of Defendants filed motions to dismiss and 

motions for judgment on the pleadings, which were granted in 

part and denied in part. Following discovery, the Defendants 

4 Claims regarding the fourth incident, the March 12, 2012 altercation between 

Tracey and McNally, were added as part of a supplement to the Amended 

Complaint, filed in May, 2012. (Dkt. no. 112, 11-cv-3405)

9

 
filed the instant motions for summary judgment, which the Court 

now considers.

II.

“The court shall grant summary judgment if the movant shows 

that there is no 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). In deciding a motion for summary judgment, the 

court must construe all facts and inferences in the light most 

favorable to the nonmoving party. See Boyle v. Allegheny 

Pennsylvania, 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). A fact is material only if it will affect 

the outcome of a lawsuit under the applicable law, and a dispute 

of a material fact is genuine if the evidence is such that a 

reasonable fact finder could return a verdict for the nonmoving 

party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 249, 252

(1986). The non-moving party must present “more than a 

scintilla of evidence showing that there is a genuine issue for 

trial.” Woloszyn v. Cnty. of Lawrence, 396 F.3d 314, 319 (3d 

Cir. 2005). The court’s role in deciding the merits of a 

summary judgment motion is to determine whether there is a 

10
genuine issue for trial, not to determine the credibility of the 

evidence or the truth of the matter. Anderson, 477 U.S. at 249.

III.

The Court begins with the Motion for Summary Judgment filed 

by the municipal Defendant, Waterford Township, which may be 

granted in full as to each claim asserted by Tracey, Ronald, 

Lavina, and S.M. The Court then considers the motions filed by 

the individual Defendants.

A.

Waterford Township seeks summary judgment on each of the 

Plaintiffs’ claims that it is liable for civil rights 

violations, as well as claims of state law negligence. Each is 

addressed in turn.

1.

Waterford Township argues that the Plaintiffs have failed 

to put forward any facts that suggest Waterford Township is 

liable for the acts of any of its police officers, therefore it 

is entitled to relief from the Plaintiffs’ respective Monell 

11
claims.5 Because of the common features of each Plaintiff’s 

Monell claim, the Court considers all of these claims together.

Section 1983 provides, in relevant part:

Every person who, under color of any statute, 

ordinance, regulation, custom, or usage, of 

any State . . . subjects, or causes to be 

subjected, any citizen of the United States . 

. . 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 . . . .

42 U.S.C. § 1983.

In cases arising under § 1983, municipalities cannot be 

held liable on a respondeat superior theory. Monell, 436 U.S. 

at 691. Rather, municipalities are only liable “for their own 

illegal acts.” Connick v. Thompson, 131 S.Ct. 1350, 1359 (2011) 

(quoting Pembaur v. Cincinnati, 475 U.S. 469, 479 (1986)). As 

explained by the Third Circuit, courts have created a “two-path 

track to municipal liability under § 1983, depending on whether 

the allegation is based on municipal policy or custom.” 

Mulholland v. Gov’t Cnty. of Berks, 706 F.3d 227, 237 (3d Cir. 

2013) (quoting Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d 

Cir. 1996)).

These two types of liability are as follows:

Policy is made when a “decisionmaker 

possess[ing] final authority to establish a 

municipal policy with respect to the action” 

issues an official proclamation, policy, or 

5 Monell v. Dep’t of Soc. Serv., 436 U.S. 658, 691 (1978)

12

 
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.

Mulholland, 706 F.3d at 237 (quoting Andrews v. City of Phila., 

895 F.2d 1469, 1480 (3d Cir. 1990)). Evidence of knowledge and 

acquiescence may also establish that a custom exists sufficient 

for finding liability. Mulholland, 706 F.3d at 237.

Municipalities are not liable for acts of police officers 

unless a municipal policy or custom amounts to a “deliberate 

indifference to the rights of people with whom the police come 

into contact.” Carswell v. Borough of Homestead, 381 F.3d 235, 

244 (3d Cir. 2004) (citing City of Canton v. Harris, 489 U.S. 

378, 388 (1989)). Deliberate indifference is defined as “‘a 

deliberate choice to follow a course of action is made from 

among various alternatives’ by city policymakers.” Harris, 489 

U.S. at 389 (quoting Pembaur, 475 U.S. at 483-84 (plurality) 

(Brennan, J.)). 

In light of this definition of deliberate indifference, a 

municipality’s inadequate training or supervision gives rise to 

liability where municipal policymakers are “on actual or 

constructive notice that a particular omission in their training 

program causes city employees to violate citizens’ 

constitutional rights . . . [and they] choose to retain that 

program.” Connick, 131 S.Ct. at 1360. Similar to the 

13
inadequate training standard, a widespread behavior by police 

officers is considered a municipal custom where there is 

“knowledge and acquiescence by the decisionmaker.” McTernan v. 

City of York, 564 F.3d 636, 658 (3d Cir. 2009) (citing Watson v. 

Abington Twp., 478 F.3d 144, 156 (3d Cir. 2007)). Finally, the 

plaintiff must also show that the alleged policy or custom was 

the proximate cause of the injuries suffered. Watson, 478 F.3d 

at 156 (citing Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir. 

1990)). To demonstrate causation from a municipal custom, the 

plaintiff must show that the “occurrence of the specific 

violation was made reasonably probable by permitted continuation 

of the custom.” Watson, 478 F.3d at 156 (quoting Bielevicz, 915 

F.2d at 851)).

In their opposition to Waterford Township’s Motion for 

Summary Judgment, the Plaintiffs argue that Waterford Township 

failed to properly train or supervise the sergeants in the 

police force, which constitutes a custom or policy that reflects 

deliberate indifference to their rights, permitting them to 

recover. (Pls. Br. in Opp. to Defs. Waterford Twp. at 37-38.) 

However, Waterford Township has demonstrated that the record 

lacks any evidence that the Plaintiffs are the victims of either 

inadequate training or a custom sufficient to impose § 1983 

liability on Waterford Township.

14
First, the record fails to establish that the Plaintiffs 

were the victims of inadequate training. The Plaintiffs point 

to Defendant Passarella’s testimony that, as the longest tenured 

Sergeant on the Waterford Township police force, he would “take 

charge” of any incident upon his arrival at the scene. 

(Passarella Dep. 87:2-7.) Similarly, Defendant McNally, in his 

role as a Sergeant, would have supervisory responsibility for 

the officers that reported to him. (Joseph McNally Dep. 110:7-

8.) The Plaintiffs argue that Passarella’s seniority (and by 

extension, McNally’s supervisory role as a Sergeant), granted 

him responsibility for training all officers that fell under 

their supervision and authority. (Pls. Opp. Br. to Defs. 

Waterford Twp. at 40.) However, this supervisory responsibility 

does not demonstrate deficient training leading to a 

constitutional violation. By failing to identify or demonstrate 

the substance of some missing training, the Plaintiffs cannot 

show, via actual or constructive notice, that municipal 

policymakers were aware of any such deficient training. Because 

the Plaintiffs must demonstrate that municipal policymakers had 

such actual or constructive notice of the deficient training, 

Waterford Township is not liable for deficient or inadequate 

training that would give rise to liability under § 1983.

Second, the Plaintiffs have failed to establish that 

Waterford Township’s “municipal custom” existed that would 

15
establish § 1983 liability for Waterford Township. The 

Plaintiffs highlight Waterford Township Standard Operating 

Procedure #41, a General Order that mandates that “[s]upervisors 

are to review all reports submitted for content and completion 

and to make sure all reports are accounted for.” (Waterford 

Twp. Police Dept. Standard Operating Procedure # 41 at 1.) The 

Plaintiffs argue that “had [Lieutenant Daniel Cormaney] reviewed 

[McNally’s] police report, it would have been clear that the 

basis for the [October 18, 2010] stop was unlawful and thus 

violated [Tracey Miller’s] First Amendment and Fourteenth 

Amendment rights.” (Pls. Opp. Br. to Defs. Waterford Twp. at 

41) This argument is based on Lieutenant Cormaney’s admission 

that his review of reports filed by subordinate officers 

(including Sergeant McNally) were undertaken randomly, rather 

than in compliance with SOP #41, which requires the review of 

“all reports.” (Daniel Cormaney Dep. at 29:24-30:2) 

While this evidence suggests that Cormaney failed to follow 

SOP #41, it neither establishes a municipal custom, nor the 

requisite causation to impose liability. As to causation, it 

does not follow that because Cormaney failed to faithfully 

follow SOP #41 and review McNally’s report of the October 18 

arrest of Tracey Miller, that the April 9, 2011 incident at 

Ronald and Lavina Miller’s home would have been avoided. The 

failure to review every single report filed by McNally does not 

16
lead to the conclusion that any Waterford Township police 

officers would use excessive force against Tracey, Ronald, and 

Lavina nearly six months after McNally’s October 18, 2010 

traffic stop. 

Moreover, Cormaney’s failure to follow SOP #41 does not 

demonstrate that a municipal decisionmaker knowingly acquiesced 

to Cormaney’s actions – the requisite standard for imposing 

liability. There is no indication in the record that any 

municipal decisionmaker was aware or unaware of the relevant 

police department policies and the execution of those policies. 

Given the absence of evidence in the record regarding both

causation and acquiescence, the Plaintiffs cannot demonstrate a 

municipal custom existed sufficient to impose § 1983 liability.

Finally, permitting Waterford Township police officers to 

use their personal cell phones fails to constitute a municipal 

policy sufficient for imposing § 1983 liability on Waterford 

Township. The record contains no reference to any municipal 

policymaker who formally permitted the use of cell phones for 

police business.6 Though the record indicates that McNally and 

6 For example, there is no mention of a policy regarding the usage of cell 

phones in the Waterford Township Code of Conduct. (See Code of Conduct, 

Rules and Regulations, Adopted by Waterford Township Police Department) The 

Code of Conduct is based on a “Model Police Manual,” with modifications to 

account for the local law and needs, which were determined as a “result of a 

great deal of research and meetings between the Appropriate authority, the 

Township Solicitor, and the Chief of Police, and all in coordination with 

State and Federal law.” (Id. at 1.)

17

 
Lyons spoke by cell phone on the evening of April 9, 2011, such 

evidence does not demonstrate that this was sanctioned by a 

municipal policymaker. (See McNally Dep. 262:19-21.) Nor does 

the fact that McNally testified that Waterford Township police 

officers “talk on the cell phone all the time.” (McNally Dep. 

261:16-17.) The Plaintiffs therefore cannot demonstrate that 

Waterford Township had a policy in place to violate the 

Plaintiffs’ constitutional rights.

In sum, the undisputed record fails to demonstrate that 

Waterford Township is liable for the Plaintiffs alleged § 1983 

claims. Waterford Township is therefore entitled to summary 

judgment in its favor on each of the § 1983 claims.7

2.

The Court next turns to the negligence claims brought by 

each Plaintiff against Waterford Township.

The New Jersey Tort Claims Act imposes liability on a 

public entity “for injury proximately caused by an act or 

omission of a public employee within the scope of his employment 

in the same manner and to the same extent as a private 

individual under like circumstances.” N.J.S.A. 59:2-2(a). New 

Jersey recognizes a cause of action for negligent hiring or 

7 Counts III and VII in Tracey’s suit, Counts III and IV in Ronald and 

Lavina’s suit, and Counts IV and VI in S.M.‘s suit.

18

 
retention of employees in the private sector under a theory of 

respondeat superior. Di Cosala v. Kay, 450 A.2d 508, 516 (N.J. 

1982). Municipalities, like private sector entities, may be 

held liable for the negligent hiring or retention of a police 

officer under this theory. Denis v. City of Newark, 704 A.2d 

1003, 1007 (N.J. Super. Ct. App. Div. 1998). “In order to 

prevail under this theory, a plaintiff must show that the 

municipality knew or should have known of the police officer’s 

dangerous propensities and the risk of injury he or she presents 

to the public.” Love v. Monroe Twp., No. 09-cv-1665 (JAP), 2011 

WL 765981, at *4 (D.N.J. Feb. 25, 2011) (citing Denis, 704 A.2d 

at 1007).

In Denis, the New Jersey Superior Court found that the 

Newark Police Department knew or should have known of an 

individual police officer’s dangerous propensities as a result 

of that officer’s personnel file, which contained records of two 

incidents in a two-week span following two separate motor 

vehicle collisions where the officer physically assaulted two 

other drivers without cause. Denis, 704 A.2d at 1007-08, 1008 

n.6. Furthermore, the officer’s record included nine 

suspensions for violating police regulations in a ten-year span. 

Id. at 1008. In short, such “assaultive behavior on defenseless 

citizens” stated a prima facie claim for negligent retention 

19
because of the officer’s “dangerous propensities and the risk of 

injury he presented to the public.” Id.

Here, the undisputed record fails to demonstrate that 

Waterford Township could be found liable for negligent hiring or 

retention. The Plaintiffs argue that McNally and Passarella 

were “known throughout town as the ‘Booze Brothers,’” (Pls. Opp. 

Br. to Defs. Waterford Twp. at 47; Cormaney Dep. 129:6-7), and 

that Lieutenant Cormaney and Chief Knoll were aware of a bar 

fight that involved McNally and Passarella, (See Cormaney Dep. 

at 139-146; John Knoll Dep. 78-82). Even in light of their 

superiors’ knowledge of the nickname and bar fight, a single 

argument in a bar, even one that resulted in an investigation by 

the Camden County Prosecutor’s office,8 is insufficient to 

suggest that McNally and Passarella constituted a risk of injury 

to the public akin to Denis. Moreover, the nickname “Booze 

Brothers” does not indicate a propensity for violence; as 

Lieutenant Cormaney testified, he was not sure what the “Booze 

Brothers” term even really meant, but instead had just heard the 

name in passing.9 (Cormaney Dep. at 129:6-7.) In other words, 

8 Further distinguishing McNally and Passarella’s altercation in Rack’s Bar 

(that gave rise to the Camden County Prosecutor’s Office investigation) from 

the tortious behavior in other police negligent retention cases is the fact 

that McNally had the charges against him dismissed, while Passarella’s were 

vacated on appeal. (Cormaney Dep. 145:11, 146:8.)

9 The Court notes that even if evidence of the nickname were not deemed to be 

hearsay and therefore admissible, the Federal Rules of Evidence prohibit the 

20

 
there is no way that a jury could conclude that these events 

would have likely led to future physical violence. While 

perhaps irresponsible, such reputation evidence combined with 

one physical incident of violence is distinguishable from the 

tortious behavior described in Denis. 

The Court takes a similar view of the factual record 

regarding Lyons. Waterford Township concedes that Lyons “has 

the highest number of internal complaints within the past 3 

years,” but the record indicates that this is a reflection of 

doing a “disproportionate amount of work for a patrol officer.” 

(Cormaney Dep. at 153:23-154:5.) In the absence of any other 

indication in the record that Lyons demonstrated some dangerous 

propensity, no charge for negligent hiring can be sustained.

In light of the undisputed record, the Plaintiffs cannot 

demonstrate that Waterford Township is liable for negligent 

hiring or retention. Waterford Township is therefore entitled 

to summary judgment on each of the Plaintiffs’ negligence 

claims.10

admission of character evidence “to prove that on a particular occasion the 

person acted in accordance with the character or trait.” Fed.R.Evid. 404.

10 Specifically, Count XXIII in Tracey’s suit, Count XIV in Ronald and 

Lavina‘s suit, and Count XIV in S.M.’s suit.

21

 
B.

The Court turns next to the Motions for Summary Judgment 

filed by Lyons and Staiger, and by McNally and Passarella. In 

considering these Motions, the Court first focuses on Staiger

and Passarella, and finally turns to the claims asserted against 

each of the other individual Defendants.

1.

In viewing the factual record in the light most favorable 

to the non-moving Plaintiffs, the Court is able to grant summary 

judgment to Staiger on each claim asserted against him. The 

Court may also grant summary judgment in favor of Passarella. 

a.

As a preliminary matter, there is no dispute that Staiger 

was not present or involved in any of the events in October, 

2010 regarding Tracey and the police, as the police reports from 

each incident do not indicate that Staiger was present or 

involved on either occasion. (See, e.g., Oct. 14, 2010 Police 

Rep.; McNally Oct. 18, 2010 Police Rep.) Thus, each of Tracey’s 

claims against Staiger arise from the events of April 9, 2011. 

Counts X and XIV of Tracey’s Amended Complaint allege that 

Staiger falsely arrested and imprisoned Tracey. To prove a 

claim for false arrest, a plaintiff must prove two elements: 

22
(1) that there was an arrest; and (2) that the arrest was made 

without probable cause. Islam v. City of Bridgeton, 804 

F.Supp.2d 190, 197 (D.N.J. 2011) (citing Dowling v. City of 

Philadelphia, 855 F.2d 136, 141 (3d Cir. 1988)). To prove a 

claim for false imprisonment, a plaintiff must similarly prove 

two elements: (1) that the plaintiff was detained; and (2) that 

the detention was unlawful. James v. City of Wilkes-Barre, 700 

F.3d 675, 682-83 (3d Cir. 2012) (citing Wallace v. Kato, 549 

U.S. 384, 389 (2007)). When a false imprisonment claim is based 

on an arrest without probable cause, as Tracey’s complaint 

alleges here, the claim is grounded in the protections 

guaranteed by the Fourth Amendment and its protection against 

unreasonable seizures. James, 700 F.3d at 683 (citing Groman v. 

Twp. of Manalapan, 47 F.3d 628, 636 (3d Cir. 1995)). 

“Probable cause exists when, based on the factual 

circumstances, a prudent person could believe that a particular 

suspect has committed or is committing an offense.” Islam, 804 

F.Supp.2d at 197 (citing Sharrar v. Felsing, 128 F.3d 810, 817-

18 (3d Cir. 1997)). Such an inquiry is fact-specific. Islam, 

804 F.Supp.2d at 197 (citing Illinois v. Gates, 462 U.S. 213, 

232 (1983)).

Though a great deal of the factual circumstances on April 

9, 2011 remain in dispute, those facts relevant to determining 

Staiger’s liability permit the Court to grant summary judgment 

23
in Staiger’s favor. As recorded in Staiger’s report from the 

April 9 incident, he arrived at Ronald and Lavina’s home at 

McNally’s direction, after Lyons made a radio call that he was 

attempting to stop a vehicle that would not pull over. (Staiger 

Apr. 9, 2011 Police Rep. at 1) As Staiger recounted in his 

deposition, he arrived at the scene while Ronald and Lavina were 

irate and yelling while Lyons placed Tracey under arrest. (E.g.

Staiger Dep. 109:8-18) There is no indication in the record 

that Staiger interacted with Tracey at the scene of his arrest. 

Instead, the record shows that Staiger simply reported back to 

headquarters to aid Lyons with processing Tracey’s arrest. 

(Staiger Apr. 9, 2011 Police Rep. at 1) Tracey conceded that he 

did not recall seeing Staiger on the scene of his traffic stop. 

(T. Miller Dep. 250-251, Aug. 27, 2012) Staiger’s remaining 

interactions with Tracey consisted of summoning medical 

assistance for Tracey, and after Tracey’s medical clearance, 

transporting Tracey to Camden County Jail. (Staiger Apr. 9, 

2011 Police Rep. at 1-2) In short, Staiger’s interaction with 

Tracey only began after Tracey was taken into custody, and 

Staiger was entirely ancillary to any decision to take Tracey 

into custody in the first place, or keep Tracey in custody 

during processing. Ultimately, these actions do not constitute 

false arrest or imprisonment as Staiger had probable cause to 

aid in Tracey’s post-arrest processing, based on the 

24
circumstances at the scene and the instructions from his 

superior officers. Staiger is therefore entitled to summary 

judgment in his favor on Counts X and XIV.11

Tracey’s Amended Complaint also includes a charge of 

negligence against Staiger. The thrust of this claim is that 

Staiger negligently relayed information regarding the phone call 

that indicated Tracey was out drinking and would later be 

driving home with children in his car. (Am. Compl. ¶ 143) The 

New Jersey Tort Claims Act provides that “[a] public employee is 

not liable if he acts in good faith in the execution or 

enforcement of any law.” N.J.S.A. 59:3-3. To obtain this good 

faith immunity, a public employee must either act in an 

objectively reasonable fashion, or demonstrate subjective good 

faith. Alston v. City of Camden, 773 A.2d 693, 703 (N.J. 2001).

Even taking the facts in the light most favorable to 

Tracey, Staiger’s acts of passing along a tip to fellow police 

officers is objectively reasonable. There is no indication that 

Staiger did anything besides inform his colleagues that he 

received word that Tracey was at a bar, and later would be 

driving home with his kids in the car. (Staiger Dep. at 26:21-

11 The Court will also grant summary judgment in Staiger’s favor for the New 

Jersey Civil Rights Act (“NJCRA”) claim (Count XVIII). The New Jersey CRA is 

interpreted analogously to § 1983, which serves as the basis of Tracey’s 

false arrest and false imprisonment claims. Pettit v. New Jersey, 09-cv-3735 

(NLH), 2011 WL 1325614, at *3 (D.N.J. March 30, 2011). The Court therefore 

grants summary judgment in Staiger’s favor on the NJCRA count as well. 

25

 
25) Tracey had no recollection that Staiger was involved in any 

other way, and there is no indication that Staiger interacted 

with Tracey other than to accompany Tracey through the 

processing of his arrest. (T. Miller Dep. at 251:5-7, Aug. 27, 

2012; Staiger Apr. 9, 2011 Police Rep. at 1-2) Staiger is 

therefore entitled to good faith immunity, which requires 

summary judgment in his favor on Count XXII.

b.

The Court may also grant summary judgment in favor of 

Passarella on Tracey’s claims of conspiracy. Tracey’s civil 

rights claims against Passarella are limited to these conspiracy

claims per the Court’s order of February 15, 2013.12 (Case: 11-

cv-3405, dkt. no. 110, at 2) 

To bring a claim for conspiracy to interfere with civil 

rights, a plaintiff must show the following: 

12 As described at oral argument, Passarella was initially dismissed from this 

action, but Tracey was permitted to amend his Complaint and add Passarella to 

the action following a showing of evidence during the fact discovery process. 

While Tracey’s Amended Complaint brings now brings a claim pursuant to 42 

U.S.C. § 1983, a conspiracy to deprive a citizen of their civil rights would 

normally fall under § 1985. Recognizing that Tracey’s claim was limited to 

the conspiracy allegation (pursuant to the Court’s Order of February 15, 

2013) the Court treats the conspiracy claim as one falling under § 1985. 

Even if Tracey sought to amend or reinstate his claim under §1983 claim, such 

an amendment would not be timely, and moreover, Passarella did not come into 

physical contact with Tracey in a fashion that could give rise to a § 1983 

claim (nor is there any indication in the record that Passarella was at the 

scene of Tracey’s arrest during the struggle which might give rise to some 

sort of supervisory liability for excessive force). Thus, the Court would 

grant summary judgment in Passarella’s favor regardless.

26

 
(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 injured in his person or property 

or deprived of any right or privilege of a 

citizen of the United States.

Farneski v. Cnty. of Hunterdon, 916 F.Supp.2d 573, 587 (D.N.J. 

2013) (quoting Farber v. City of Paterson, 440 F.3d 131, 134 (3d 

Cir. 2006)). 

At the close of fact discovery, Tracey has failed to 

demonstrate that Passarella was part of a conspiracy to deprive 

Tracey of his civil rights. At base, Tracey argues that 

Passarella disseminated information about Madera’s phone call to 

other Waterford Township police officers, (Pls. Opp. Br. to 

McNally and Passarella Mot. at 65-66), and at oral argument,

Tracey’s counsel suggested that such dissemination was 

reflective of a pattern of involvement that ran the course of 

many months. However, the record demonstrates that Passarella’s 

involvement was simply to pass along the fact that Staiger had 

received such a tip (E.g. McNally Dep. at 234-35). The 

direction provided to Waterford Township police officers was to 

investigate the tip, if presented with the opportunity to do so. 

(McNally Dep. at 234:22-24) Such instructions to investigate 

Tracey’s behavior in the event that an officer sees Tracey 

during their patrol simply does not reach the requisite 

27
threshold to demonstrate either some intention to violate 

Tracey’s civil rights. Nor does it indicate that Passarella 

somehow detained or imprisoned Tracey in furtherance of a 

conspiracy; in fact, as with Staiger’s involvement, there is no 

indication in the record that Passarella ever arrested Tracey or 

interacted with Tracey after he was taken into custody.

Passarella is therefore entitled to summary judgment in his 

favor on the conspiracy claims, as well as the false arrest and 

imprisonment claims pled against him in Counts IV, XI, and XV.13

2.

The Plaintiffs bring a variety of civil rights and state 

common law claims. Each is considered in turn, with the 

exception of S.M.’s claims, which are considered separately in 

section 3, infra.

a.

Counts I and II of Tracey’s Amended Complaint allege that 

McNally (Count I) and Lyons (Count II) are liable for violations 

of Tracey’s § 1983 rights. Counts XVI (against McNally) and

XVII (against Lyons) allege parallel claims under the New Jersey 

13 Again, the NJCRA is interpreted analogously with § 1983. Pettit, 2011 WL 

1325614, at *3. The Court therefore grants summary judgment on Tracey’s 

NJCRA claim (Count XIX) in Passarella’s favor as well.

28

 
Constitution.14 Ronald and Lavina allege similar claims against 

Lyons and McNally.15 

In considering each these claims, the Court must determine 

whether the relevant Defendants’ actions were “objectively 

reasonable in light of the facts and circumstances confronting 

[him], without regard to the officer[‘s] underlying intent or 

motivation.” Norcross v. Town of Hammonton, No. 04-cv-2536 

(RBK), 2008 WL 9027248, at *4 (D.N.J. Feb. 5, 2008) (citing 

Graham v. Connor, 490 U.S. 386, 397 (1989)). To determine 

whether any given Defendant’s actions were objectively 

reasonable, the Court must consider “the severity of the crime 

at issue, whether the suspect poses an immediate threat to the 

safety of the officer or others, and whether he is actively 

resisting arrest or attempting to evade arrest by flight.” 

Graham, 490 U.S. at 396. The Third Circuit also instructs that 

courts should consider factors like the duration of the action, 

whether an arrest is in progress, whether the suspect is 

possibly armed, and the number of persons that the police must 

contend with at the scene. Bou v. New Jersey, No. 11-cv-6356 

14 Again, these NJCRA claims are considered together with the § 1983 claims. 

See Pettit, 2011 WL 1325614, at *3. In section e, infra, the Court 

separately considers Tracey’s supplemental claims of negligence and violation 

of the NJCRA alleged in the Supplemental Complaint.

15 Specifically, Counts I and II allege McNally and Lyons violated § 1983, and 

Counts V and VI allege parallel violations of the NJCRA.

29

 
(JEI/AMD), 2013 WL 4517940, at * 7 (D.N.J. Aug. 26, 2013) 

(citing Couden v. Duffy, 446 F.3d 483, 497 (3d Cir. 2006)). The 

“‘reasonableness’ of a particular use of force must be judged 

from the perspective of a reasonable officer on the scene, 

rather than with the 20/20 vision of hindsight.” Graham, 490 

U.S. at 396.

Here, the Court finds that there are genuine issues of 

material fact precluding the grant of summary judgment on 

Tracey’s excessive force claims arising from the April 9 

incident. At the close of discovery, there are at least two 

narratives on the circumstances of the April 9, 2011 traffic 

stop. In Tracey’s retelling, Lyons followed Tracey for between 

a quarter and half mile with Lyons’s lights and sirens on before 

Tracey pulled into his parents’ driveway. (T. Miller Dep. 

242:15-16, Aug. 27, 2012) According to Tracey, he stepped out 

of the vehicle and Lyons immediately approached him, informing 

him he was under arrest for illegally tinted windows, and 

without any further conversation “slammed” Tracey on the ground. 

(Id. at 244:2-10) Tracey maintained that he did not attempt to 

flee, nor was there any subsequent conversation before Lyons 

“slammed” Tracey to the ground. (Id. at 244:8-10; Id. at 

244:23-24) On the other hand, Lyons’s report following the 

incident details how Tracey, once he exited his vehicle, walked 

away from his car and towards the front door of his parents’ 

30
house, ultimately ending up behind Ronald and Lavina Miller 

before Lyons came over to arrest him. (Lyons, Apr. 9, 2011 

Police Rep. at 2) Ronald Miller testified that Lyons was 

“screaming . . . like a crazy man. He was snorting. He looked 

like a crazy man, you know.” (R. Miller Dep. at 16:13-14) On 

the other hand, Lyons described a scene where Tracey was 

punching Lyons with a closed fist in the chest while Lyons 

attempted to take him into custody. (Lyons Dep. at 150) 

Moreover, while other officers eventually responded to the 

scene, Lyons could not recall how long he waited before other 

officers finally responded to help him address the situation. 

(Id. at 146:10-11)

Absent resolution of the factual disputes regarding the 

circumstances and physical contact between Tracey and Lyons, the 

Court cannot analyze the factors to determine whether Lyons’s 

actions towards Tracey were objectively reasonable. For 

example, it is unclear whether Tracey was attempting to evade 

arrest by hiding behind his parents, or whether Lyons walked 

right up to Tracey and tackled him without provocation. 

Furthermore, without knowing when other officers actually 

arrived, the Court cannot determine whether Lyons had to deal 

with three uncooperative adults on his own, or if the numbers 

were in fact different. Given these disputes, the Court cannot 

conclude that Lyons did not use excessive force and therefore 

31
cannot grant summary judgment in Lyons’s favor on Tracey’s 

claims of excessive force.

Similarly, the Court cannot grant summary judgment in 

McNally’s favor regarding Tracey’s allegations of excessive 

force. As recounted in his deposition, Tracey was certain that 

McNally hit him, either with his closed fist or knee, during the 

course of a struggle between the two of them on April 9. (T.

Miller Dep. 247:24, Aug. 27, 2012) Similarly, Ronald indicated 

that in his recollection, McNally was “punching Tracey in the 

head with his knee in [Tracey’s] back.” (R. Miller Dep. 26:1) 

In contrast, McNally testified that once he arrived on the 

scene, Tracey “kind of stopped resisting when [he] got there.” 

(McNally Dep. at 223:14-15) In McNally’s recollection, he was 

able to simply handcuff Tracey and walk him over to Lyons’s 

police vehicle, as Lyons was then able to address Ronald and 

Lavina. (McNally Dep. at 224-25) These factual disputes 

preclude the Court from determining whether McNally is 

responsible for any force, let alone excessive force, against 

Tracey. The Court therefore cannot analyze the requisite 

factors and in turn cannot grant McNally summary judgment on 

Tracey’s claims of excessive force.

In addition, the Court cannot grant summary judgment to 

Lyons regarding Ronald and Lavina’s claims for excessive force. 

Both Ronald and Lavina’s claims arise solely from the incident 

32
on April 9, 2011, which is the subject of numerous factual 

disputes regarding the events surrounding all of the arrests. 

In light of these disputes, the Court cannot analyze the factors 

to determine whether Lyons’s actions were objectively reasonable 

regarding Ronald, who was tackled either (1) without warning, or

(2) after failing to cooperate with Lyons’s instructions. 

(Compare Lyons Dep. at 156:20-22 with R. Miller Dep. at 17:1-14) 

Similarly, there is a dispute regarding whether Lavina was even 

struck with Lyons’s flashlight, which is the physical contact 

giving rise to Lavina’s excessive force claim. (Compare Lyons 

Dep. at 155:1 with L. Miller Dep. at 62:3) These factual 

disputes preclude summary judgment on Ronald and Lavina’s claims 

for excessive force against Lyons in Counts II and VI.

The Court may, however, grant summary judgment in favor of 

McNally as to the civil rights violations alleged by Ronald and 

Lavina Miller. McNally arrived at the scene on April 9, 2011, 

after an altercation between Tracey, Ronald, Lavina, and Lyons 

had already begun. (Lyons April 9, 2011 Police Rep. at 2; 

McNally April 9, 2011 Police Rep. at 1) There is no indication

in the record that McNally made any physical contact with either 

Ronald or Lavina on April 9. Neither Ronald nor Lavina describe

any physical altercation with McNally in their depositions, and 

Ronald conceded at his deposition that “I had no confrontation 

with McNally at all.” (R. Miller Dep. at 30:20) Given the 

33
parties’ agreement that there was no physical contact between 

McNally and both Ronald and Lavina, the Court can conclude that 

McNally in fact used no force on Ronald or Lavina, and therefore 

McNally is entitled to summary judgment in his favor on their 

excessive force claims in Counts I and V.

b.

Tracey, Ronald, and Lavina also bring common law claims for 

assault and battery against Lyons, as well as negligence against 

Lyons and McNally.16 Lyons and McNally argue, inter alia, that 

summary judgment should be granted in their favor as to these 

claims because if the force used against Tracey was not 

excessive, then they cannot be liable for assault and battery, 

nor for negligence. 

Lyons properly points out that a police officer will 

generally not be liable for assault or battery unless the force 

used was excessive. Hill v. Algor, 85 F.Supp.2d 391, 411 

(D.N.J. 2000); State v. Williams, 148 A.2d 22, 28-29 (N.J. 

1959). The Court has already explained that genuine issues of 

material fact preclude a determination of whether the force that 

Lyons and McNally used against Tracey was excessive. In light 

16 Specifically, Tracey’s Counts V (McNally) and VI (Lyons) allege assault and 

battery, and Counts XX (McNally) and XXI (Lyons) allege negligence. Ronald 

and Lavina’s Count VII (Lyons) alleges assault and battery, and XII (McNally) 

and XIII (Lyons) allege negligence.

34

 
of this conclusion, the Court cannot grant summary judgment 

dismissing Tracey’s assault and battery claims against Lyons and 

McNally.17

The same analysis applies equally to Ronald and Lavina 

regarding their claims for assault and battery against Lyons. 

As the factual circumstances surrounding their contact with 

Lyons on April 9, 2011 remains in dispute, the Court cannot 

determine whether the force that Lyons used against them was 

excessive. The Court therefore cannot grant summary judgment 

dismissing Ronald and Lavina’s assault and battery claims 

against Lyons.

In considering Tracey, Ronald, and Lavina’s negligence 

claims against Lyons and McNally, the Court cannot grant summary 

judgment. “In New Jersey, as elsewhere, it is widely accepted 

that a negligence cause of action requires the establishment of 

four elements: (1) a duty of care, (2) a breach of that duty, 

(3) actual and proximate causation, and (4) damages.” Jersey 

Cent. Power & Light Co. v. Melcar Utility Co., 59 A.3d 561 (N.J. 

17 The Defendants also argue that they are entitled to the protections of good 

faith immunity under N.J.S.A. 59:3-3, which (as described supra) provides 

that “[a] public employee is not liable if he acts in good faith in the 

execution or enforcement of any law.” The New Jersey Supreme Court construes 

this good faith immunity under the “same standard of objective reasonableness 

that applies in Section 1983 actions.” Wildoner v. Borough of Ramsey, 744 

A.2d 1146, 1153 (N.J. 2000). As genuine issues of material fact remain 

regarding the force used on April 9, 2011 and whether Lyons and McNally were 

objectively reasonable in their contact with Tracey, the Court cannot 

determine whether Lyons or McNally acted in good faith according to N.J.S.A. 

59:3-3. 

35

 
2013). Given the dispute regarding the actual circumstances of 

Tracey and Ronald’s arrests by Lyons and McNally (and the 

citation issued to Lavina), the Court cannot determine whether 

Lyons or McNally undertook any negligent behaviors during the 

course of events on April 9, 2011. As such, the Court cannot 

grant summary judgment in Lyons or McNally’s favor on Tracey, 

Ronald, and Lavina’s negligence claims.

c.

The Court next turns to Tracey, Ronald, and Lavina’s claims 

for false arrest and imprisonment against McNally and Lyons. 

The Court first addresses Tracey’s claims against Lyons,18 then 

turns to Ronald and Lavina’s claims against both Lyons and 

McNally.19 The Court separately addresses Tracey’s false arrest 

and imprisonment claims against McNally in section d, infra.

As previously discussed, when a false imprisonment claim is 

based on an arrest without probable cause, as the Plaintiffs’ 

Amended Complaints allege, the claim is grounded in the rights 

guaranteed by the Fourth Amendment and its protection against 

unreasonable seizures. James, 700 F.3d at 683 (citing Groman, 

47 F.3d at 636). “Probable cause exists when, based on the 

18 Counts IX and XIII of Tracey’s suit. 19 Counts VIII (false arrest) and X (false imprisonment) are alleged against 

McNally, while Counts IX (false arrest) and XI (false imprisonment) are 

alleged against Lyons.

36

 
factual circumstances, a prudent person could believe that a 

particular suspect has committed or is committing an offense.” 

Islam, 804 F.Supp.2d at 197 (citing Sharrar 128 F.3d at 817-18). 

Such an inquiry is fact-specific. Islam, 804 F.Supp.2d at 197 

(citing Gates, 462 U.S. at 232).

Turning first to Tracey’s claims, the Court cannot grant 

summary judgment as to the claims of false arrest and false 

imprisonment as there is a genuine factual dispute regarding the 

probable cause for the April 9 traffic stop. The probable cause 

for the traffic stop, according to Lyons, was the fact that 

Tracey’s side windows were illegally tinted.20 (Lyons Apr. 9, 

2011 Police Rep. at 1; Lyons Dep. 133:24) While Tracey conceded 

that the windows on his vehicle on April 9 were tinted, his 

recollection of the traffic stop at 9:10 pm that evening was 

that the tinted windows were rolled down. (T. Miller Dep. at 

186:19-21, Sept. 4, 2012) As Lyons explained, the tinted 

windows were the sole cause for the stop, as Tracey was not 

speeding at the time nor did Tracey’s driving indicate that he 

was intoxicated. (Lyons Dep. at 132:19-133:3) If the windows 

were visible to Lyons, probable cause could be established, as 

20 Lyons testified in his deposition that his traffic stop of Tracey was 

solely based on his observation that Tracey’s windows were tinted. (Lyons 

Dep. at 133:24) In his deposition testimony, Lyons specifically ruled out 

any other basis of probable cause for the stop, noting that Tracey’s vehicle 

did not exceed the speed limit, did not cross the center line, did not make 

any “erratic” moves, nor were other cars somehow obstructed by Tracey’s 

driving. (Lyons Dep. at 134-38)

37

 
Lyons would have seen the tinted windows. However, given the 

conflicting recollections and absence of any evidence resolving 

the dispute, the Court cannot determine whether Lyons’s probable 

cause existed at the time of the stop. Therefore, Lyons is not 

entitled to summary judgment in his favor on the false arrest 

and imprisonment claims.

The Court can, however, grant summary judgment as to Ronald 

and Lavina’s claims of false arrest and false imprisonment. 

There is no dispute that Ronald and Lavina, upon observing 

Tracey and Lyons’s arrival and the ensuing confrontation, came 

out of their house during the course of Tracey’s arrest. (See, 

e.g., L. Miller Dep. at 52:24-53:2) During this time, Lavina 

described herself as “hysterical,” (L. Miller Dep. at 55:5), 

while Ronald was talking with Tracey during the course of 

Lyons’s physical confrontation with Tracey, (R. Miller Dep. at 

15:24-16:2). As Ronald explained, both he and Lavina failed to 

follow both Lyons and McNally’s instructions to go back inside 

the house during the course of Tracey’s arrest, during which 

time Ronald and Lavina were alternately speaking on the phone to 

try to summon help, and also speaking to both Tracey and Lyons. 

(E.g. R. Miller Dep. at 19-20) In short, even with facts in 

dispute regarding the circumstances of Tracey’s arrest, the 

undisputed facts demonstrate that Ronald and Lavina were not 

following either Lyons or McNally’s instructions while Lyons 

38
attempted to arrest Tracey. Such facts provide valid probable 

cause for Ronald’s arrest on the charges of Aggravated Assault, 

Obstruction and Resisting Arrest. Moreover, the undisputed 

factual record demonstrates that Lavina was not arrested, but 

was simply issued a summons. (Lyons Apr. 9, 2011 Police Rep. at 

2) Therefore Lyons and McNally are entitled to summary judgment 

in their favor on Ronald and Lavina’s claims of false arrest and 

imprisonment. 

d.

The Court separately addresses McNally’s Motion for Summary 

Judgment in his favor on Tracey’s claims of false arrest (Count 

VIII) and imprisonment (Count XII), as well as malicious 

prosecution (Count XXIV). 

As a preliminary matter, the undisputed record demonstrates 

that McNally acted with probable cause when he assisted Lyons in 

arresting Tracey on April 9. This conclusion rests on similar 

grounds as those described supra regarding Lyons’s arrest of 

Ronald. The undisputed record explains that McNally’s initial 

involvement in the April 9 incident began as a result of 

McNally’s response to Lyons’s radio call that a vehicle refused 

to stop as Lyons tried to pull it over. (McNally Apr. 9, 2011 

Police Rep. at 1) When McNally reached the scene, though there 

is some confusion about the physical altercation between Lyons 

39
and Tracey, Ronald, and Lavina, there is no dispute that Lyons 

was in the process of attempting to take Tracey into custody 

while Ronald and Lavina yelled at Lyons. (E.g. L. Miller Dep. 

at 55:5 (describing herself as “hysterical”).) While the 

parties dispute exactly how the altercation between Ronald, 

Lavina, Tracey, Lyons, and McNally took shape, there is no 

dispute that when McNally arrived, he was responding to a call 

from a fellow officer that a car stop had turned into a car 

chase. Coming upon a scene of confusion, the facts indicate 

that McNally had a valid reason, and therefore probable cause,

to assist in arresting Tracey.

However, the disputed events of October 18, 2010 prevent

the Court from granting summary judgment in McNally’s favor and 

fully dismissing Tracey’s claims. These disputed circumstances 

preclude a grant of summary judgment in McNally’s favor on 

Tracey’s claims of malicious prosecution, false arrest, and 

false imprisonment.

As with claims for false arrest and imprisonment, the tort 

of malicious prosecution also contains a probable cause 

requirement. The tort of malicious prosecution requires the 

plaintiff to demonstrate that (1) the previous action was 

initiated by the defendant, (2) the action was motivated by 

malice, (3) there was an absence of probable cause, and (4) the 

40
action was terminated favorably by the plaintiff. Land v. 

Helmer, 843 F.Supp.2d 547, 550 (D.N.J. 2012). 

In evaluating whether McNally acted with probable cause 

when he initiated a traffic stop on October 18, the Court is 

presented with conflicts in the evidentiary record that prohibit 

summary judgment in McNally’s favor. As described McNally’s 

police report, Tracey’s arrest on October 18 began with 

McNally’s observation of Tracey driving by 658 Pestletown Road 

in Waterford Township, taking photographs of McNally speaking 

with Tom Watson. (McNally Oct. 18, 2010 Police Rep. at 1;

McNally Dep. at 170:25-171:16) A short while later, McNally 

observed Tracey pull into an abandoned parking lot, where Tracey 

apparently stepped out onto the running board of his vehicle and 

attempted to take pictures of McNally driving past. (McNally

Oct. 18, 2010 Police Rep. at 1-2) Such unauthorized pictures 

might provide the requisite grounds for the charge of stalking, 

which Tracey was eventually charged with. (McNally Oct. 18, 

2010 Police Rep. at 1) 

However, the record reflects a conflicting version of 

events as told by S.M., who was in Tracey’s vehicle during the 

traffic stop. In S.M.’s retelling, after driving past Tom 

41
Watson’s house,21 Tracey pulled off the road because he heard a 

rattling in the back of his truck. (S.M. Dep. at 18:4-5) In 

S.M.’s testimony, following her father’s stop in the parking 

lot, McNally simply approached Tracey’s truck without warning 

and with his gun drawn as he sought to arrest Tracey. (S.M. 

Dep. at 18:14-19:17) This view of Tracey’s arrest directly 

contrasts with McNally’s report, creating a dispute that is 

material to determining whether McNally’s arrest, imprisonment, 

and initiation of Tracey’s prosecution was done with probable 

cause. Because of these disputed facts, the Court cannot grant 

summary judgment in McNally’s favor on Tracey’s false arrest, 

false imprisonment, and malicious prosecution claims.

e.

Tracey brings two additional claims against McNally, 

alleging in a supplemental complaint that McNally is liable for 

a violation of the NJCRA for use of excessive force and common 

law negligence. (Tracey Miller Second Am. & Suppl. Compl. at ¶¶ 

13-29) As alleged and described in deposition testimony, these 

two claims arise from a verbal confrontation on March 12, 2012

21 Tracey does not dispute that he took video of McNally and Watson speaking 

when he drove past 658 Pestletown Road on October 18, 2010. (T. Miller Dep. 

at 108:9, Aug. 27, 2012)

42

 
between Tracey and McNally at Starky’s Pour House in Winslow 

Township. (T. Miller Dep. at 59-60, Sept. 4, 2012) 

Claims under the NJCRA alleging excessive force are 

evaluated in the same fashion as those claims under the United 

States Constitution brought under § 1983. See, e.g., Norcross, 

2008 WL 9027248, at *4. As McNally points out, a suit under § 

1983, “requires the wrongdoers to have violated federal rights 

of the plaintiff, and that they did so while acting under color 

of state law.” Groman, 47 F.3d at 638. The “under color of 

state law” requirement is a threshold issue, and the plaintiff 

bears the burden of demonstrating that the defendant satisfies 

this requirement, as there is no liability under § 1983 for 

those not acting under color of law. Id. (citing West v. 

Atkins, 487 U.S. 42, 48 (1988); Versarge v. Twp. of Clinton, 984 

F.2d 1359, 1363 (3d Cir. 1993)). 

To act under color of state law, the defendant in a § 1983 

action must “exercise[] power ‘possessed by virtue of state law 

and made possible only because the wrongdoer is clothed with the 

authority of state law.’” West, 487 U.S. at 49 (quoting United 

States v. Classic, 313 U.S. 299, 326 (1941)). Off-duty police 

officers may act under color of state law, particularly in 

circumstances where the off-duty officer is in a police uniform, 

orders a citizen repeatedly to halt, and seeks to arrest 

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citizens. Abraham v. Raso, 183 F.3d 279, 287 (3d Cir. 1999)

(citing Griffin v. Maryland, 378 U.S. 130, 135 (1964)).

Even viewing the facts in the light most favorable to 

Tracey, McNally is entitled to summary judgment in his favor on 

Tracey’s NJCRA claim. As Tracey conceded in his deposition,

McNally was off duty during the course of the events in question 

on March 12, 2012. (T. Miller Dep. at 168:15-16, Sept. 4, 2012) 

McNally was not in uniform that evening, and as Tracey described 

in his deposition, McNally was clearly off duty, consuming 

alcohol, and not working as a police officer while at Starky’s 

Pour House. (T. Miller Dep. at 62:24-63:1, Sept. 4, 2012) 

Instead, McNally was at Starky’s with Bill Morrow and two women, 

where (in Tracey’s retelling) he was sitting at the bar and 

yelling to Tracey, “come over here and I’ll kick your ass,” 

among other things. (T. Miller Dep. at 64:13-14, Sept. 4, 2012) 

Because the undisputed record demonstrates that McNally’s 

yelling, behavior, and attire would not qualify McNally as 

acting under state authority, the Court cannot conclude that any 

of his actions could be construed as falling under the color of 

state law. Because McNally was not acting under color of state 

law, he cannot be held liable for violating Tracey’s civil 

rights while acting under color of state law, and McNally is 

therefore entitled to summary judgment on the NJCRA claim.

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Similarly, McNally is entitled to summary judgment in his 

favor on Tracey’s negligence claim arising from the March 12 

confrontation. To establish liability for negligence, a 

plaintiff must demonstrate a duty of care, breach of that duty, 

actual and proximate causation, and damages. Jersey Cent. Power 

& Light Co., 59 A.3d at 571. 

The standard of care ordinarily imposed by 

negligence law is well established. To act 

non-negligently is to take reasonable 

precautions to prevent the occurrence of 

foreseeable harm to others. . . . 

It is not, however, enough to ground liability 

in negligence to show that a defendant did not 

act with reasonable care, and that this 

carelessness caused injury. Plaintiff must 

also show that defendant owes him a duty of 

care. 

Id. at 571-72 (quoting Weinberg v. Dinger, 524 A.2d 366, 374 

(N.J. 1987)). Whether a duty exists between two parties “is 

ultimately a question of fairness. The inquiry involves a 

weighing of the relationship of the parties, the nature of the 

risk, and the public interest in the proposed solution.” 

Weinberg, 524 A.2d at 374 (quoting Kelly v. Gwinnell, 476 A.2d 

1219, 1222 (N.J. 1984)).

Even when viewing the facts in the light most favorable to 

Tracey, the Court may grant summary judgment in McNally’s favor. 

First, the record does not demonstrate that Tracey suffered any 

harm as a result of McNally’s verbal taunts. Second, the record 

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does not support an assertion that McNally had any cognizable 

duty that he would have owed to Tracey during the incident in 

question on March 12, 2012. Though various regulations of the 

Waterford Township police department govern the interactions of 

sworn officers and citizens, (see, e.g., Code of Conduct, Rules 

and Regulations, Adopted by Waterford Township Police Department 

at ¶¶ 11:1-11:163), off-duty officers are not held to all of 

these regulations, (id. at ¶ 10:14). As there is no dispute 

that McNally was off duty at the time of the verbal 

confrontation, such regulations do not provide a basis for 

imposing a heightened duty of care on McNally. (T. Miller Dep. 

at 168:15-16, Sept. 4, 2012) As Tracey cannot demonstrate that 

McNally owed him a duty of care during their confrontation on 

March 12, 2012, McNally is therefore entitled to summary 

judgment in his favor on this separate negligence claim.

3.

Finally, the Court returns to Lyons and McNally’s Motions 

for Summary Judgment as to each of the civil rights and common 

law claims alleged by S.M.22 The Court considers each of these 

22 Specifically, Counts I and II allege McNally and Lyons violated § 1983, and 

Counts VIII and IX allege parallel violations of the NJCRA. Additionally, 

Counts XI and XII allege that McNally and Lyons were negligent. As discussed 

supra, Waterford Township is entitled to summary judgment in its favor on 

S.M.’s § 1983 and negligence claims.

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claims and concludes that the Defendants are entitled to summary 

judgment in their favor on each.

Similar to Tracey, S.M. brings claims against Lyons and 

McNally under § 1983, the New Jersey Civil Rights Act (“NJCRA”), 

and state law negligence. These claims are rooted in S.M.’s 

presence at traffic stops on October 18, 2010, and April 9, 

2011. As with Tracey’s claim, S.M.’s claims for excessive force 

under the New Jersey Constitution are construed under the same 

standards as under the United States Constitution. Norcross, 

2008 WL 9027248, at *4.

To state a claim under § 1983, a plaintiff must assert that 

a defendant acted under color of state law to deprive the 

plaintiff of a personal constitutional right. Voytko v. Ramada 

Inn of Atlantic City, 445 F.Supp. 315, 325 (D.N.J. 1978). A 

litigant “may only assert his own constitutional rights or 

immunities” and cannot recover for the deprivation of another’s 

civil rights. Id. (quoting O’Malley v. Brierly, 477 F.2d 785, 

789 (3d Cir. 1973)).

In the instant case, the Court finds that the undisputed 

record lacks evidence of any constitutional violations against 

S.M. The thrust of S.M.’s claim is that Lyons and McNally used 

excessive force in her presence, and that Lyons swung a 

nightstick in her direction on April 9, 2011. (See, e.g. Am. 

Comp. ¶ 41) There is no indication, however, that Lyons or 

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McNally ever made physical contact with S.M. during any traffic 

stop, or directly infringed upon S.M.’s constitutional rights on 

another occasion. In her deposition when describing the 

consequences of the two traffic stops, S.M. expressed concern 

that her father’s vehicle would be pulled over more frequently 

than when S.M. traveled with Tracey’s parents, but S.M. could 

not articulate any other harm she had personally suffered, even 

conceding that she did not directly witness any physical and 

violent contact between Tracey and police. (S.M. Dep. at 75:6-

77:21) 

In other words, the record is devoid of evidence that S.M. 

suffered from a deprivation of her own constitutional rights, as 

S.M. did not directly interact with police. Though S.M. may have 

observed the potential constitutional violations that may or may 

not have befallen Tracey, such observation is not enough to 

assess liability under § 1983. The Court therefore will grant 

summary judgment in favor of Lyons and McNally on each of S.M.’s 

constitutional claims.

The Court also finds that McNally and Lyons are entitled to 

summary judgment in their favor on S.M.’s claims for state law 

negligence. The basis of S.M.’s state law negligence claims is 

that Lyons and McNally breached some duty of care to S.M. while 

they were in her presence during the course of interacting with 

Tracey. Under New Jersey law, such a breach is not enough to 

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assess liability, as S.M. is required to demonstrate that she 

has suffered some damages to recover for a negligence cause of 

action. Jersey Cent. Power & Light Co., 59 A.3d at 571 (“In New 

Jersey, as elsewhere, it is widely accepted that a negligence 

cause of action requires the establishment of four elements: (1) 

a duty of care, (2) a breach of that duty, (3) actual and 

proximate causation, and (4) damages.”). 

The Court need not address principles of good faith 

immunity in considering these claims of negligence, as the 

undisputed facts demonstrate that S.M. has not suffered any harm 

as a result of Lyons or McNally’s actions. As S.M. described in 

her deposition, she has not had any “fears or issues from what 

happened on that motor vehicle stop when you were in the car 

with [her] dad,” nor has she seen a doctor, psychologist, or 

counselor. (S.M. Dep. at 15-16) In short, there is no evidence 

that S.M. suffered any harm, nor did she indicate that she felt 

any lasting effects from any of Lyons or McNally’s actions. The 

Court will therefore grant summary judgment in the Defendants’ 

favor on S.M.’s claims of negligence.

IV.

In light of the foregoing, the Defendants’ Motions for 

Summary Judgment will be granted in part and denied in part. 

Specifically, Defendants Waterford Township, Passarella, and 

49
Staiger’s Motions will be granted in full. Defendants Lyons and 

McNally’s Motions will be granted in part and denied in part. 

Below, the Court provides a summary of the claims at issue in 

each case and their disposition following the motions for 

summary judgment. Appropriate Orders accompany this Opinion.

Tracey Miller v. Waterford Township, et al. (11-3405)

• Count I (McNally): § 1983 violations – SJ denied

• Count II (Lyons): § 1983 violations – SJ denied

• Count III (Waterford Township): § 1983 violations – SJ 

granted

• Count IV (Passarella): § 1983 violations – SJ granted

• Count V (McNally): Assault & battery – SJ denied

• Count VI (Lyons): Assault & battery – SJ denied

• Count VII (Waterford Township): § 1983 failure to train –

SJ granted

• Count VIII (McNally): False arrest – SJ denied

• Count IX (Lyons): False arrest – SJ denied

• Count X (Staiger): False arrest – SJ granted

• Count XI (Passarella): False arrest – SJ granted

• Count XII (McNally): False imprisonment – SJ denied

• Count XIII (Lyons): False imprisonment – SJ denied

• Count XIV (Staiger): False imprisonment – SJ granted

• Count XV (Passarella): False imprisonment – SJ granted

• Count XVI (McNally): NJCRA violation – SJ denied

• Count XVII (Lyons): NJCRA violation – SJ denied

• Count XVIII (Staiger): NJCRA violation – SJ granted

• Count XIX (Passarella): NJCRA violation – SJ granted

• Count XX (McNally): Negligence – SJ denied

• Count XXI (Lyons): Negligence – SJ denied

• Count XXII (Staiger): Negligence – SJ granted

• Count XXIII (Waterford Township): Negligence – SJ granted

• Count XXIV (McNally): Malicious prosecution – SJ denied

• Supplemental Count I (McNally): NJCRA violation – SJ 

granted

• Supplemental Count II (McNally): Negligence – SJ granted

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Ronald and Lavina Miller v. Waterford Township, et al. (11-3578)

• Count I (McNally): § 1983 violation – SJ granted

• Count II (Lyons): § 1983 violation – SJ denied

• Count III (Waterford Township): § 1983 violation – SJ 

granted

• Count IV (Waterford Township): § 1983 failure to train – SJ 

granted

• Count V (McNally): NJCRA violation – SJ granted

• Count VI (Lyons): NJCRA violation – SJ denied

• Count VII (Lyons): Assault & battery – SJ denied

• Count VIII (McNally): False arrest – SJ granted

• Count IX (Lyons): False arrest – SJ granted

• Count X (McNally): False imprisonment – SJ granted

• Count XI (Lyons): False imprisonment – SJ granted

• Count XII (McNally): Negligence – SJ denied

• Count XIII (Lyons): Negligence – SJ denied

• Count XIV (Waterford Township): Negligence – SJ granted

S.M. v. Waterford Township, et al. (11-3579)

• Count I (McNally): § 1983 violation – SJ granted

• Count II (Lyons): § 1983 violation – SJ granted

• Count IV (Waterford Township): § 1983 violation – SJ 

granted

• Count VI (Waterford Township): § 1983 failure to train – SJ 

granted

• Count VIII (McNally): NJCRA violation – SJ granted

• Count IX (Lyons): NJCRA violation – SJ granted

• Count XI (McNally): Negligence – SJ granted

• Count XII (Lyons): Negligence – SJ granted

• Count XIV (Waterford Township): Negligence – SJ granted

Date: 1-30-2014

 s/ Joseph E. Irenas _

JOSEPH E. IRENAS, S.U.S.D.J.

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