NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

DELOVI CANALES, et al.,

 Plaintiffs,

 v.

TOWNSHIP OF TOMS RIVER, et al.,

 Defendants.

 CIVIL ACTION NO. 11-3159 (MLC)

 MEMORANDUM OPINION

COOPER, District Judge

Before the Court are two separate motions for summary judgment 

by two groups of defendants in this matter: (1) the Township of 

Toms River, the Township of Toms River Police Department, Scott 

Kenny, Pat Jacques, Ed Mooney, Jim Carey, Chris McDowell, P.J. 

Gambardella, and Kevin Scully (hereinafter “Township Defendants”) 

(dkt. entry no. 43); and (2) the New Jersey State Police

(hereinafter “State Police”) (dkt. entry no. 46). The motion by 

the State Police will be granted. The separate motion by the 

Township Defendants will be granted in part and denied in part 

without prejudice.

I. FACTUAL BACKGROUND

According to the undisputed facts, Officer Christopher Matlosz 

of the Lakewood Police Department was killed in the line of duty on 

January 14, 2011. (See dkt. entry no. 41, Am. Compl. at ¶ 15; dkt.

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entry no. 43-2, Monaco Certif., Ex. C, Investigation Narrative.) A 

search began for the perpetrator by various law enforcement 

agencies. Law enforcement obtained information that the suspect 

was lodged at the Howard Johnson’s Hotel (hereinafter “Hotel”) in 

Toms River, New Jersey with a high-ranking gang member. (Dkt. 

entry no. 48-3, Stanzione Decl., Ex. C, Leskowski Dep. at 11-12; 

Investigation Narrative.) Law enforcement’s concern was that 

“nobody else leaving the hotel would be transporting that suspect 

out of the hotel.” (Leskowski Dep. at 12.)

A sub-station and a command post for law enforcement were set 

up near the Hotel. (Investigation Narrative; dkt. entry no. 48-2, 

Stanzione Decl., Ex. B, Henry Dep. at 6-8.) Officers from numerous 

law enforcement agencies –- including Brick Township, Toms River, 

Lakewood, and the State Police, among others -- gathered at the 

sub-station and command post. (Investigation Narrative; dkt. entry 

no. 48-5, Stanzione Decl., Ex. E, Kenny Dep. at 40-41.) The 

officers from the various agencies, including the State Police, 

were dressed in a variety of uniforms and tactical gear, as well as

in plain clothes. (Henry Dep. at 9, 20-21; Leskowski Dep. at 26-

28; Kenny Dep. at 41-42.) 

Captain Henry (hereinafter “Capt. Henry”) of the Toms River 

Police Department testified that he recalled interacting with 

multiple officers from the State Police at the sub-station and 

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command post, but he did not know the majority of their names. 

(Henry Dep. at 6-9.) Capt. Henry testified that, to his knowledge, 

there was no roster or sign-in for the various officers from 

different agencies who were assisting in the operation. (Id. at 

25-26.) 

That same evening, January 14, 2011, and into the early hours 

of the morning on January 15, 2011, Delovi Canales, Alex Valcourt, 

and Terrance Williams (collectively “Plaintiffs”) went to 

Christopher’s Pub (hereinafter “Pub”), which is part of the Hotel

in Toms River. (Dkt. entry no. 48-1, Stanzione Decl., Ex. A, 

Canales Dep. at 11-13; dkt. entry no. 48-6, Stanzione Decl., Ex. F, 

Valcourt Dep. at 10-13; dkt. entry no. 48-8, Stanzione Decl., Ex. 

H, Williams Dep. at 17.) On their way home from the Pub, 

Plaintiffs were stopped by law enforcement at two different 

locations. These stops are the basis of the Plaintiffs’ claims 

here.

A. The Canales/Valcourt Stop

1. Plaintiffs’ Version of Events 

Delovi Canales (hereinafter “Canales”) and Alex Valcourt 

(hereinafter “Valcourt”) left the Pub together around 1:00 A.M. on 

January 15, 2011. Canales was driving a 2007 Cadillac CTS, and

both were headed towards the home of Canales, which was 

approximately seven to twelve minutes away. (Canales Dep. at 15; 

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Valcourt Dep. at 14-16; Am. Compl. at ¶ 16.) As they drove, they

noticed a bright spotlight behind them. (Canales Dep. at 16-17; 

Valcourt Dep. at 17.) Canales eventually pulled over because the 

spotlight was so bright that he could not see. (Canales Dep. at 

17.) The vehicle with the spotlight also pulled over behind them. 

Canales and Valcourt testified that there were no police sirens, no 

overhead police lights, no “PA system,” nor anything else that 

would have alerted them that the spotlight belonged to any type of 

law enforcement. (Id.; Valcourt Dep. at 17-18.) 

Canales stuck his head out of the driver side window and 

looked behind him. (Canales Dep. at 18.) He noticed figures 

coming toward them that he identified as law enforcement officers, 

although the officers did not show him a badge or identify 

themselves. (Id. at 18-19.) Valcourt testified that he also saw 

the figures approaching with flashlights, but at that time he did 

not know that they were law enforcement. (Valcourt Dep. at 18.) 

Valcourt stated that someone approached the passenger side of the 

car, so he rolled down the window, and the individual pointed a gun 

in his face. (Id. at 18.) 

Canales and Valcourt differ somewhat in terms of the order of 

what was said by whom next. Canales testified that he asked the 

officer who had approached the driver side of the car, “What’s 

going on[?]” (Canales Dep. at 18-19.) Canales then heard a voice 

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on the passenger side of the car (where Valcourt was sitting) that 

stated, “Snatch the one, get the one in the driver’s seat first, 

since he has all the mouth.” (Id. at 19-20.) Valcourt testified 

that as soon as the individual pointed a gun in his face, and 

before Canales said anything, the person said “Put your hands on 

the dashboard and if you move I will [f***ing] kill you.” 

(Valcourt Dep. at 19.) By this point, Valcourt believed that the 

individuals who had approached the vehicle were law enforcement 

because they were wearing tactical gear and the officer was wearing 

a face mask, but he testified that they did not identify themselves 

as law enforcement. (Id. at 20.) According to Valcourt, Canales 

then asked the officer what was going on, and the officer said, 

“Hey, get the driver, get the one with the mouth.” (Id. at 19.)

Canales and Valcourt both testified that the officer on the 

driver side then pulled Canales from his car, slammed him into the 

ground, and placed a knee in his face. (Id. at 20-22; Canales Dep.

at 20.) The officer who pulled Canales from the car was in plain 

clothes and was not wearing tactical gear. (Canales Dep. at 21; 

Valcourt Dep. at 21.) This plain-clothes officer did not identify 

himself as a police officer at any point. (Canales Dep. at 29-30.) 

Valcourt, who had been at several other depositions in this case, 

testified that he was “pretty sure” that it was Defendant Sgt. 

Scott Kenny (hereinafter “Sgt. Kenny”) of the Toms River Police 

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Department who pulled Canales out of the car. (Valcourt Dep. at 

21.) At Valcourt’s deposition, defense counsel informed Valcourt 

that Sgt. Kenny had testified that he was wearing tactical gear on 

the night in question. (Id.) Valcourt responded, “No, he was not 

in S.W.A.T. gear.” (Id.) Canales, who had not been at all of the 

other depositions in this case, testified that he did not know who 

the officer was. (Canales Dep. at 20.)

According to Canales, the officer then said “Don’t [f***ing] 

move or I’ll blow your head off.” (Id.) At the same time, another 

officer, who was dressed in a tactical uniform, had a large gun 

directed at him. (Id. at 20-21.) The plain-clothes officer then 

placed metal handcuffs on Canales, and Canales remained on the 

ground for approximately eleven minutes. (Id. at 22, 28.) 

Canales testified that when the officer allowed him off the 

ground, rather than directing him to get up, the plain-clothes 

officer lifted him off the ground by his handcuffs. (Id. at 23.) 

Then Canales was slammed down onto the hood of the unmarked police 

car, which was behind his car, where he remained for approximately 

eleven minutes. (Id. at 24, 28; see also Valcourt Dep. at 30-31.) 

After Canales was brought onto the hood of the unmarked police 

car, Valcourt was pulled out of the car by who he believed was the 

same plain-clothes officer. (Valcourt Dep. at 24-25.) According 

to Valcourt, the officer put him on the ground and handcuffed him. 

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(Id. at 24-25.) The officer then picked him up off the ground, and 

Valcourt asked what was going on. (Id. at 25-26.) The plainclothes officer did not respond, but the officer who had pointed a 

gun at him responded “Don’t you know what happened today.” (Id. at 

26.) Valcourt responded that he had heard that an officer was shot 

that day. (Id. at 27.) Valcourt testified that, while he did not 

know it at the time of the incident, he believed based on 

deposition testimony that the officer who had pointed the gun at 

him for the duration of the stop was Defendant Officer Pat Jacques

(hereinafter “Jacques”) of the Toms River Police Department. (Id.

at 26-27.) Valcourt explained that he was then also taken to the 

front of the unmarked police car. (Id. at 27.)

Canales and Valcourt testified that, after being brought

behind Canales’s car to the front of the unmarked police car, the 

law enforcement officers searched their pockets and obtained their 

identifications. Specifically, Canales testified that the plainclothes officer performed the search, while Valcourt testified that 

“somebody” searched him. (Id. at 29; Canales Dep. at 25.) While 

this was occurring, Canales and Valcourt were asked where they were

coming from, what they were doing there, and whether Canales had 

been drinking. (Canales Dep. at 25-26; Valcourt Dep. at 29.) One 

of the men asking questions identified himself as being a member of 

the Federal Bureau of Investigation (hereinafter “FBI”). (Canales 

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Dep. at 26; Valcourt Dep. at 29.) According to Valcourt, after 

this conversation, the officers in tactical gear proceeded to 

search Canales’s car. (Valcourt Dep. at 30.)

Canales testified that, around this point, he was allowed to 

stand upright. (Canales Dep. at 27.) He asked the plain-clothes 

officer to remove his handcuffs. (Id.) The plain-clothes officer 

removed the handcuffs and instructed him to place his hands on the 

top of his head. (Id.) Canales explained that, at this point, the 

plain-clothes officer’s aggressiveness had subsided. (Id. at 27-

28.) Valcourt’s handcuffs were also removed. (Valcourt Dep. at 

35.) The officers returned the identifications to Canales and 

Valcourt and allowed Canales to remove his hands from his head. 

(Id.; Canales Dep. at 28-29.) Canales and Valcourt were then 

allowed to leave the scene and proceed to Canales’s home. (Canales 

Dep. at 30; Valcourt Dep. at 37-38.) 

Canales estimated that the entire incident lasted thirty-five 

to forty minutes. (Canales Dep. at 30.) Valcourt estimated that 

it lasted about twenty-five minutes to a half hour. (Valcourt Dep. 

at 32.)

As to which law enforcement agencies were present at the 

scene, Canales testified that he was “pretty sure” he saw a Toms 

River police car at the scene. (Canales Dep. at 29.) However, 

Valcourt testified that he did not recall seeing any marked Toms 

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River vehicles and that no officers identified themselves as Toms 

River Police. (Valcourt Dep. at 32-33.) When asked whether there 

was anything that indicated that the State Police were at the

scene, both Canales and Valcourt replied in the negative. (Id. at 

33; Canales Dep. at 29.) 

The day after the incident, Canales went to the Toms River 

Police Department to file a complaint regarding the stop, but the 

desk sergeant told him that there was no record of that stop having 

been made. (Canales Dep. at 50.) Valcourt was not with Canales 

when Canales went to file the complaint. (Valcourt Dep. at 40.)

Valcourt suffered a bruised right knee following the incident, 

but he did not seek treatment. (Id. at 37.) Canales testified to 

more substantial physical injuries following the incident. He

testified that the plain-clothes officer’s act of lifting him up by 

his handcuffs with his hands cuffed behind his back caused injury 

to his left shoulder. (Canales Dep. at 31.) Upon returning home, 

Canales went to the emergency room and later sought care from a 

physician, Dr. Lombardi. (Id. at 32-36.) The emergency room 

doctors and Dr. Lombardi both independently concluded from X-rays 

and an MRI that Canales’s clavicle was injured. (Id. at 33-36.) 

According to Canales, Dr. Lombardi told him that he could have 

surgery or let it heal over time, and he opted to let his shoulder

heal over time because he could not be out of work following a 

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surgery. (Id.) Canales testified that he can no longer work out 

because he cannot lift weights at the gym. (Id. at 40, 43-44.) He 

stated that daily activities, such as putting on a coat, cause him 

pain. (Id. at 43-44.) 

At the time of the incident, Canales was employed as a 

“packer,” a position that was physical in nature, and the injury to 

his shoulder interfered with his ability to work. (Id. at 8, 43.) 

Canales testified that, as a result of the incident and his 

psychological and physical injuries, he was out of work for two to 

three months and lost $3,000 to $4,000 in compensation. (Id. at 

42-43.) He subsequently took another position at the same company 

that did not require him to lift over five pounds. (Id. at 44.)

Canales also saw a psychologist following the January 15, 2011 

incident. (Id. at 37.) Canales testified that his previouslydiagnosed anxiety increased following this incident. (Id. at 38, 

46.) The increased anxiety has led to bad dreams and problems with 

focusing on simple tasks. (Id. at 46-47.) He was prescribed 

Alazopram for his anxiety. (Id. at 47.) 

Valcourt testified that he too had suffered psychological 

injuries from the trauma of the incident, but, as of the time of 

his deposition, he had not sought treatment, although he was 

considering it. (Valcourt Dep. at 41.) For some time after the 

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incident, Valcourt suffered from nightmares and cold sweats while 

sleeping. (Id. at 42.)

2. Law Enforcement’s Version

Jacques and his superior officer Sgt. Kenny of the Toms River 

Police Department initiated the Canales/Valcourt stop on January 

15, 2011. (Dkt. entry 48-4, Stanzione Decl., Ex. D, Jacques Dep. 

at 7-8; Kenny Dep. at 7-8.) Sgt. Kenny and Jacques did not recall 

who or which agency ordered that they stop the particular vehicle, 

but they believed that the order came from the command post. 

(Jacques Dep. at 7; Kenny Dep. at 7, 43.) When asked whether he 

knew the reason for that particular stop, Sgt. Kenny testified that 

all he recalled was that the command post was not “sure if the 

occupants were some how linked to the investigation that was going 

on in Lakewood dealing with the Officer Matlosz shooting.” (Kenny 

Dep. at 9.) Capt. Henry of the Toms River Police Department 

testified that the purpose of the Canales/Valcourt stop was that 

“the individuals matched a possible description of the suspected 

shooter.” (Henry Dep. at 19.) 

Sgt. Kenny recalled that the command post had informed them 

that backup would be arriving at the stop to provide assistance. 

(Kenny Dep. at 45.) Sgt. Kenny was driving a marked police car, 

which had either Toms River or Dover written on it, and Jacques was 

a passenger. (Id. at 8-9; Jacques Dep. at 7-8.) Jacques and Sgt. 

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Kenny testified that they were both wearing tactical uniforms. 

(Jacques Dep. at 8; Kenny Dep. at 10-12.) 

When the stop was initiated, only Jacques and Sgt. Kenny were 

present. (Jacques Dep. at 9.) Sgt. Kenny testified that there was 

an initial delay in the stop because he was not familiar with the 

layout of the new emergency lights and siren system in the vehicle 

he was driving and because he was wearing bulky tactical equipment 

that made it more difficult for him to activate this new system. 

(Kenny Dep. at 10-11.) Sgt. Kenny believed that he was ultimately 

able to activate the lights, but he was not sure if he activated 

the siren. (Id. at 11.) Sgt. Kenny testified that Canales and 

Valcourt pulled over within a few seconds after he activated the 

emergency light system. (Id. at 12.)

Jacques testified that he exited the marked police car and 

approached Canales’s vehicle with his gun drawn. (Jacques Dep. at 

10.) He ordered, “Police. Show me your hands.” (Id. at 10.) 

Jacques stated that Canales and Valcourt complied with this 

request. (Id. at 11.) 

Sgt. Kenny, on the other hand, testified that Canales was not 

compliant with the orders. According to Sgt. Kenny, after the stop 

was initiated, they performed a “rapid take down” because they were 

unsure of the reason that they were ordered to make the stop in the 

first place. (Kenny Dep. at 13.) He testified that he and Jacques 

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exited their vehicle, “ran up to the vehicle, basically drew down 

on the two occupants in the vehicle and gave them verbal commands 

to remain there until we did have backup officers to assist us.” 

(Id.) Jacques approached the passenger side, and Sgt. Kenny 

approached the driver side. (Id. at 14) Sgt. Kenny stated that he 

identified himself and that “police” was written across their 

tactical vests. (Id.) Sgt. Kenny testified that he ordered the 

occupants to place their hands on the dashboard, but only the 

passenger complied. (Id.) The driver (Canales) did not comply and 

appeared agitated and defiant. (Id.) Canales kept his hands out 

of sight on his lap as opposed to placing them on the dashboard. 

(Id. at 14-15.) 

Shortly after Jacques and Sgt. Kenny initiated the stop, two 

plain-clothes officers arrived in an unmarked car. (Id. at 12, 15; 

Jacques Dep. at 11, 14.) Sgt. Kenny did not recall emergency 

lights or sirens as the unmarked car approached. (Kenny Dep. at 

27.) The plain-clothes officers were not Toms River Police 

Officers. (Id. at 13; Jacques Dep. at 8-9.) In fact, Capt. Henry 

testified that the Toms River Police Department did not have any 

plain-clothes officers involved in the stops on the night in 

question. (Henry Dep. at 15.) Jacques and Kenny described the 

plain-clothes officers as tall, muscular white males. (Jacques 

Dep. at 14; Kenny Dep. at 19.) 

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Jacques and Sgt. Kenny did not recognize the plain-clothes 

officers, and the officers were not wearing any identifiers. 

(Jacques Dep. at 14; Kenny Dep. at 15, 20.) When asked how they

knew that the plain-clothes men were in fact officers, Sgt. Kenny 

replied, “To be honest with you I can only assume that they were 

from another agency and were backing us up.” (Kenny Dep. at 16.) 

He testified that they were working with several other agencies 

that night, including the Ocean County Prosecutor’s Office and the 

State Police, and that he assumed the two officers in question were 

New Jersey State Police officers. (Id. at 16-17.) Jacques 

similarly testified that he knew they were police officers because 

he knew they were working with the Toms River Police Department 

that night. (Jacques Dep. at 14.) Notably, the Toms River Police 

Department’s call information log from the night in question 

contains entries at 12:47 A.M. referencing the stop of the Cadillac 

and informing Sgt. Kenny, “njsp PLAIN CLOTHES BACKING YOU UP.” 

(Dkt. entry no. 48-7, Stanzione Decl., Ex. G, Toms River Police 

Dep’t Incident # 11-2275, at 11.)1

 

1 The entry does not reference Sgt. Kenny by name and instead

says, “TO 208.” (Toms River Police Dep’t Incident # 11-2275, at 

11.) Jacques testified that badge number 208 is Sgt. Kenny. 

(Jacques Dep. at 26.) Capt. Henry testified that he may have been 

the person who sent that transmission. (Henry Dep. at 17, 24-25.) 

He explained that he wanted to alert his men that the unknown 

individuals were “friendly” because many law enforcement agencies 

were involved, and his officers did not know all of the officers 

from these other agencies. (Id. at 17.)

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Jacques testified that he observed one of the plain-clothes 

officers remove the passenger (Valcourt) from the vehicle and walk 

him to the rear of the car. (Jacques Dep. at 16.) Jacques 

believed that the driver was also pulled out of the vehicle, but he 

did not witness it because he was watching the passenger. (Id.) 

Sgt. Kenny similarly testified that both occupants were 

removed from the vehicle by the plain-clothes officers, placed on 

the ground, and handcuffed. (Kenny Dep. at 20-21.) Sgt. Kenny 

explained that he did not “have a good observation of what happened 

on the passenger side of the vehicle” based on where he was 

standing. (Id. at 21.) He stated, “my attention was at best 

keeping the scene safe, watching to make sure the officer that was 

doing the handcuffing did not need assistance, but also trying to 

monitor traffic so it didn’t roll up and hit any of us while all 

this was going on.” (Id.) Despite this, he denied that the driver 

was slammed to the ground. (Id. at 20.) He also did not remember

the driver being lifted up by his handcuffs. (Id. at 21-22.) He

did, however, recall that he advised the other officer to get out 

of the middle of the street because they were in a dark area, and 

Canales “was picked up and we did get him out of the middle of the 

road.” (Id. at 21-22.) Sgt. Kenny did not “remember any man 

handling.” (Id. at 22.) Canales was taken to the front of the 

vehicle where there was more light. (Id.) Additionally, the two 

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plain-clothes officers obtained the occupants’ identifications, and 

Sgt. Kenny recalled speaking to dispatchers about the 

identifications. (Id. at 23.) 

According to Sgt. Kenny, throughout the stop, he and Jacques 

acted as “cover officers,” who focused primarily on security and 

safety, and the plain-clothes officers acted as “contact officers,” 

who performed the investigation. (Id. at 25-26.) The primary 

reason that Sgt. Kenny and Jacques acted as cover officers instead 

of contact officers was that they were wearing tactical gear and 

had rifles. (Id. at 26.)

Jacques testified that the stop lasted less than ten minutes 

and that Canales and Valcourt were cooperative during the stop. 

(Jacques Dep. at 21-22.) Sgt. Kenny estimated it was approximately 

fifteen minutes from the time of the stop until the time the 

occupants were released. (Kenny Dep. at 24.) 

Jacques and Sgt. Kenny testified that, to their recollections, 

there were a total of six officers at the stop at most: Jacques

and Sgt. Kenny; the two plain-clothes officers; and the FBI 

detectives Joseph Leskowski (hereinafter “Det. Leskowski”) and 

Defendant Kevin Scully (hereinafter “Det. Scully”). (See id. at 

28-29, 37; Jacques Dep. at 21-22.) According to Jacques, he and 

Sgt. Kenny were the only officers at the stop wearing tactical 

uniforms. (Jacques Dep. at 8.) 

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Neither Jacques nor Sgt. Kenny knew whether the plain-clothes 

officers searched the vehicle. (Id. at 23; Kenny Dep. at 23-24.) 

Sgt. Kenny testified that once he was speaking on the radio with 

dispatch, he “wasn’t really paying attention who did a search of 

the vehicle or if one was done.” (Kenny Dep. at 23.) However, he

stated that he performed a cursory search of the outside of the 

vehicle to see if there were any other people or weapons. (Id. at 

23-24.) 

Det. Leskowski and Det. Scully were also present for part of 

the Canales/Valcourt stop. Both had been assigned to and were 

reporting to the FBI’s Safe Streets Task Force on the night in 

question. (Leskowski Dep. at 5-6, 10-11.) Their purpose in going 

to the stops was that, as part of the task force, they had special 

expertise, knowledge, and ability to identify persons associated 

with the target of the task force’s investigation, “the Blood

gang.” (Id. at 11, 23-25.) Det. Leskowski testified that he and 

Det. Scully were not making vehicle stops that evening but that 

they had responded to the locations of the stops after the stops 

had already been made. (Id. at 12, 21.) In particular, three 

stops had been made that night, and Dets. Leskowski and Scully 

responded to two of those stops. (Id. at 13, 21.) All the 

individuals involved in the stops had been at the Hotel, or, more 

specifically, the Pub. (Id. at 13-14.) By the time the FBI 

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detectives arrived at the stops, the scene was secure, the 

detainees were identified, and the other officers on the scene were 

simply running their names for warrants. (Id. at 13.) Det. 

Leskowski testified that he and Det. Scully also asked some basic 

questions to the detainees, including whether they knew what had 

happened that night and what they had seen. (Id. at 13-14.) 

Det. Leskowski testified that, other than himself and Det. 

Scully, he did not believe anyone else at the Canales/Valcourt stop 

was in plain clothes. (Id. at 16.) He believed, but was not 

positive, that there were State Police officers at the 

Canales/Valcourt stop. (Id. at 15.) He stated most people were in 

tactical gear and therefore everyone pretty much looked the same. 

(Id.) He believed that the State Police at the stop had been at 

the command post earlier in the evening, but he could not recall 

their names. (Id. at 16-18.) 

Det. Leskowski testified that when he arrived at the 

Canales/Valcourt stop, the two occupants were seated to the right 

back of the vehicle on the curb. (Id. at 22.) He spoke with one 

of the individuals, who he believed was the driver. (Id. at 22-

23.) Det. Leskowski did not recognize the driver, and therefore, 

he only asked generic questions regarding the target of the 

evening’s investigation. (Id. at 23-24.) According to Det. 

Leskowski, the driver did not understand what was happening and 

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wanted to get home because he had to work in the morning. (Id. at 

23.) Det. Leskowski estimated that he was at the Canales/Valcourt 

stop for “less than 30 seconds.” (Id. at 20.)

Det. Scully testified that he was not sure whether, other than 

Sgt. Kenny and Jacques, the other individuals on the scene were 

actually officers. (Monaco Certif., Ex. M, Scully Dep. at 9.) He 

did not recall what anyone was wearing at the scene, and he did not 

know the reason for the stop. (Id. at 9-10.) He testified that he 

was there to identify the occupants at the stop and that he did not 

recognize them so they left. (Id. at 10, 21.) Det. Scully 

believed the occupants were pleasant and cooperative during the 

interaction. (Id. at 21.)

B. The Williams Stop

1. Williams’s Version

Terrance Williams (hereinafter “Williams”) left the Pub at 

approximately 1:30 A.M. on January 15, 2011. (Williams Dep. at 

17.) He was driving a gray Ford Explorer with a New York license 

plate that was registered to his grandmother. (Id.) On his way 

home, he pulled into a McDonald’s drive-through, and he noticed 

police vehicles behind him. (Id. at 19-20.) Williams testified 

that some of the vehicles belonged to Dover Township and some to 

Toms River Township. (Id. at 20.) After he got his food, he was 

directed by the police into a parking spot. (Id.)

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The police ordered him to drop his keys to the ground outside 

of the car. (Id. at 22.) Williams testified that an officer then 

opened the driver side door, grabbed him by his shoulder, and 

pulled him out of the car. (Id.) The officer brought him to the 

back of his car, instructed him to spread his legs, and searched 

him. (Id.) Williams testified that the officer “pulled [him] with 

a little force to the back of the car” and that “[i]t was more than 

enough force.” (Id. at 22-23.) The officer and his partner were 

wearing tactical gear and had guns pointed at him. (Id. at 23.) 

After the officer searched him, the officer searched Williams’s car 

extensively while the officer’s partner kept the gun pointed at

him. (Id. at 23-24.)

According to Williams, the search lasted five to seven 

minutes, at which point the officer and Williams had an exchange. 

(Id. at 24.) The officer said, “Come on. I am going to walk you 

over to the back of my car.” (Id.) Williams asked, “Am I being 

arrested for something?” (Id.) The officer replied, “Come over to 

the car and I will talk to you.” (Id.) Williams testified that he 

acceded to the officer’s request. He got into the back of a Toms 

River police car, and the officer closed the door. (Id. at 25.) 

At this point, “all of the other officers got out of the vehicle.” 

(Id.) 

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Another officer in plain clothes then opened the car door to 

speak to him, and the plain-clothes officer’s partner, who was also 

in plain clothes, was nearby. (Id. at 26.) Williams testified 

that these plain-clothes officers looked at him and shook their 

heads as if they did not know him. (Id. at 25-26.) The plainclothes officer asked Williams if he knew why the officers had 

stopped him, and Williams responded that he did not. (Id. at 26.) 

Williams testified that the plain-clothes officer asked him if he 

knew someone named “Itchy” or “Eachy” and showed him a picture on a 

cell phone. (Id.) Williams stated that he had never seen him 

before. (Id.) The plain-clothes officer then closed the door. 

(Id.)

The officer that had originally pulled him out of the car and 

given him direction came over to him and informed him that there 

was a murder. (Id.) Williams responded that he did not know 

anything about that. (Id.) Williams testified that the officer 

replied “not a problem, not a problem. Just give us a few minutes, 

let us run your name to make sure you don’t have no warrants and 

I’ll let you go.” (Id. at 26-27.) Williams asked the officer why 

his name was being run if he was not the person in question, and 

the officer replied that it was “protocol.” (Id. at 27.)

The two plain-clothes officers on the scene left at this 

point, but the two officers in tactical gear remained as did a 

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Dover Township officer in “regular clothes.” (Id. at 29-30.) 

Williams testified that the officer who had originally taken him 

out of his car allowed him to exit the police car and return to his 

car to eat his food; however, the officers wanted Williams to stay 

while they checked his identification. (Id. at 29-30.) Williams 

was eventually permitted to leave, and he testified that the entire 

incident lasted twenty minutes. (Id. at 33.)

Williams testified that he was not physically injured from the 

incident but that he suffered mental injury. (Id. at 33.) He 

described the incident as degrading and said that the officers did 

not “have to take [his] manhood from [him] in order to locate what 

[they were] looking for, especially if [they knew] before [they] 

stopped [him that he was] not the person [they were] looking for.” 

(Id. at 41.)

2. Law Enforcement’s Version

The record is very limited regarding law enforcement’s 

recollection of the Williams stop. Defendant Officer Chris 

McDowell (hereinafter “McDowell”) and Defendant Officer Jim Carey 

(hereinafter “Carey”) of the Toms River Police Department were 

involved with the Williams stop on January 15, 2011 in the 

McDonald’s parking lot. (Dkt. 43-13, Monaco Certif., Ex. J, Carey 

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Dep. at 6-8.)2 Carey believed that the command post instructed 

them to stop Williams’s car, but was not positive as there were a 

lot of people involved that evening. (Carey Dep. at 8.) Capt. 

Henry testified that, as with the Canales/Valcourt stop, the 

purpose of the stop was that “the individuals matched a possible 

description of the suspected shooter.” (Henry Dep. at 19.) 

Carey also testified that they were advised over the radio 

that there were “friendlies” at the location of the Williams stop. 

(Carey Dep. at 14.) Consistent with Carey’s testimony, an entry in 

the Toms River Police Department Incident Report from approximately 

12:51 A.M. on January 15, 2011 also states, “TO UNITS AT MAC-D’S 

TWO UNDERCOVERS IN THE VEHICLE NEXT TO YOU, THEY ARE FRIENDLYS.” 

(Toms River Police Dep’t Incident # 11-2275, at 11.) The 

undercover officers’ vehicle was unmarked. (Carey Dep. at 14.)

Carey and McDowell were wearing tactical gear. (Id. at 7; 

McDowell Dep. at 14.) Carey testified that he and McDowell

utilized overhead lights to make the stop but did not activate the 

sirens. (Carey Dep. at 13.) Carey believed that he had a long gun 

drawn, but he was not sure whether McDowell’s gun was also drawn. 

(Id.) According to Carey, McDowell was controlling the stop, and 

Carey was providing cover. (Id. at 15.) McDowell testified that 

 

2

 McDowell described the interaction as “contact” with a 

citizen, and Carey referred to it as a “modified high risk” motor 

vehicle stop. (Carey Dep. at 6, 8, 13; Monaco Certif., Ex. I, 

McDowell Dep. at 12.) 

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he greeted Williams while Williams was in his car and asked him to 

keep his hands where the officers could see them. (McDowell Dep. 

at 12, 14.) Williams was cooperative and put down his sandwich. 

(Id. at 14; see also Carey Dep. at 16.) Williams asked McDowell, 

“What’s this about,” and McDowell replied that he would explain 

shortly. (McDowell Dep. at 14.) McDowell asked Williams to exit 

the vehicle. (Id.) Carey did not remember Williams being 

handcuffed or being placed in a Toms River police vehicle. (Carey 

Dep. at 16.) 

Det. Leskowski and Det. Scully, as well as Officer Ed Mooney 

and Officer P.J. Gambardella, two other defendants in this case, 

arrived at the Williams stop after the stop had been initiated. 

(Id. at 15; Leskowski Dep. at 14-16; Monaco Certif., Ex. K, Mooney 

Dep. at 13-15; id., Ex. L, Gambardella Dep. at 9.) According to 

Carey’s testimony, once the vehicle was stopped and the paperwork 

obtained, “we turned the stop essentially over to Det. Scully for 

interview purposes.” (Carey Dep. at 16.) Det. Scully testified 

that Williams was pleasant and cooperative during their 

interaction. (Scully Dep. at 22.) 

C. Toms River Law Enforcement Protocols

Plaintiffs have provided the Court with the Toms River Police 

Department’s Training Brief on High Risk Motor Vehicles Stops and 

Occupant Control. (See dkt. entry no. 48-9, Stanzione Decl., Ex. 

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I, Toms River Police Dep’t Training Br.) Of note, that document 

reveals that officers are trained to identify themselves and their 

purpose when initiating the stop. (Id. at 91.) The officer 

initiating the stop, the primary officer, “issues all commands.” 

(Id. at 92-94.) Additional units on the scene are directed not to 

“engage in stop unless requested by primary officer.” (Id. at 94.)

Plaintiffs also submitted a Tom Rivers Police Department 

Memorandum dated October 1, 2009 from Capt. Henry. (See dkt. entry 

no. 48-10, Stanzione Decl., Ex. J, Toms River Police Dep’t Mem.) 

This memorandum describes procedures for responding to critical 

incidents. Specifically, the initial responding officer on the 

scene is designated as the incident commander and becomes the 

primary contact for managing incoming resources. (Id.) That 

officer remains in command until relieved by a supervisor. (Id.) 

The supervisor on the scene is required, inter alia, to generate a 

“[c]omplete list of all officers on scene.” (Id.)

3

 

3 In addition to the foregoing, the parties have submitted, as 

part of the summary judgment record, reports of purported experts 

regarding the constitutionality and propriety of Defendants’

conduct in this matter. (See dkt. entry no. 46-3, Rizzo Decl., Ex. 

A, Manning Report; id., Ex. B, Celeste Report.) These reports do 

not add anything factual to the record. The question of the 

propriety of Defendants’ conduct is an issue of law to be decided 

by the Court “rather than by expert opinion.” See Carswell v. 

Borough of Homestead, 381 F.3d 235, 244 (3d Cir. 2004). Therefore, 

the Court will disregard these reports.

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II. PROCEDURAL HISTORY

Plaintiffs initially filed a complaint in the United States 

District Court for the District of New Jersey on June 1, 2011. 

(See dkt. entry no. 1.) That complaint was amended, and before the 

Court is Plaintiffs’ amended complaint (hereinafter “the 

Complaint”), which was filed on June 10, 2013. (See dkt. entry no. 

41, Am. Compl.) The Complaint names as defendants: Township of 

Toms River; Toms River Police Department; Scott Kenny; Pat Jacques; 

Ed Mooney; Jim Carey; Chris McDowell; P.J. Gambardella; Kevin 

Scully; and the State Police. (See id.)

Based on the Canales/Valcourt stop and the Williams stop, the 

Complaint asserts several causes of action, including:

(1) claims under 42 U.S.C. § 1983 for violations of the 

Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments 

of the United States Constitution (id. at ¶¶ 33-35);

(2) claims under 42 U.S.C. § 1983 based on the alleged 

failure to train, supervise, discipline, and control the 

individual defendants, thereby demonstrating a “policy 

of misconduct” (id. at ¶¶ 39-47);

(3) claims under 42 U.S.C. § 1985 for conspiracy to deprive 

Plaintiffs of their rights protected by the United 

States Constitution by using unlawful and excessive 

force (id. at ¶¶ 36-38); and

(4) several state claims, such as assault, malicious 

prosecution, false arrest, and negligence (id. at ¶¶ 48-

72).

Township Defendants cross-claimed against the State Police for 

contribution and indemnification if they are held liable to 

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Plaintiffs. (See dkt. entry no. 42, Twp. Defs.’ Answer, CrossClaims, & Counterclaim.) They also counterclaimed against 

Plaintiffs arguing that the Complaint was frivolous and seeking 

attorneys’ fees under 42 U.S.C. § 1988. (See id.) 

All of the defendants have moved for summary judgment against 

Plaintiffs. (See dkt. entry no. 43, Twp. Defs.’ Mot. for Summ. J.; 

dkt. entry no. 46, State Police Mot. for Summ. J.) The State 

Police also moved for summary judgment as to the cross-claims 

asserted against them by the Township Defendants. (State Police 

Mot. for Summ. J.) 

III. SUMMARY JUDGMENT STANDARD

Motions for summary judgment are governed by Rule 56, which 

provides that 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). The movant has the initial burden of proving 

the absence of a genuinely disputed material fact relative to the 

claims in question. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 

331 (1986). Material facts are those “that could affect the 

outcome” of the proceeding, and “a dispute about a material fact is 

‘genuine’ if the evidence is sufficient to permit a reasonable jury 

to return a verdict for the non-moving party.” Lamont v. New 

Jersey, 637 F.3d 177, 181 (3d Cir. 2011) (citing Anderson v. 

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Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Celotex Corp., 477 

U.S. at 322-23). 

If the movant demonstrates an absence of genuinely disputed 

material facts, then the burden shifts to the non-moving party to 

demonstrate, through specific facts, the existence of at least one 

genuine issue for trial. See Matsushita Elec. Indus. Co., Ltd. v. 

Zenith Radio Corp., 475 U.S. 574, 586–87 (1986); Williams v. 

Borough of W. Chester, 891 F.2d 458, 460–61 (3d Cir. 1989). 

Summary judgment is “proper if, viewing the record in the light 

most favorable to the non-moving party and drawing all inferences 

in that party’s favor, there is no genuine issue of material fact 

and the moving party is entitled to judgment as a matter of law.”

United States ex rel. Kosenske v. Carlisle HMA, Inc., 554 F.3d 88, 

94 (3d Cir. 2009). “[A]t the summary judgment stage the judge’s 

function is not himself to weigh the evidence and determine the 

truth of the matter but to determine whether there is a genuine 

issue for trial.” Anderson, 477 U.S. at 249.

IV. PARTIES’ ARGUMENTS 

A. Township Defendants’ Arguments

Township Defendants argue that Plaintiffs have failed to 

establish the liability of the Township of Toms River and the Toms 

River Police Department (collectively “Toms River”) based on a 

municipal custom or policy. (Dkt. entry no. 43-3, Twp. Defs.’ Br. 

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in Supp. of Mot. for Summ. J. at 9.) The burden is on Plaintiffs 

to establish the policy or custom that violated their 

constitutional rights, and such policy or custom cannot be based on 

a single act. (Id. at 10 (citing Fletcher v. O’Donnell, 867 F.2d 

791, 793 (3d Cir. 1989); Gittlemacker v. Prasse, 428 F.2d 1, 3 (3d 

Cir. 1970)).) Plaintiffs have failed to present any facts that 

would support their claim that Toms River had an official policy 

(or that there existed a custom or practice) to violate a citizen’s 

constitutional rights. (Id. at 11-12.) Nor can Plaintiffs show 

that the police officers involved had policymaking authority that 

could give rise to municipal liability. (Id. at 12.) Finally, 

Plaintiffs did not establish that the municipality failed to train 

and supervise its employees and that such failures rose to a level 

of deliberate indifference. (Id. at 12-13.)

Township Defendants further contend that the individual police 

officers are entitled to qualified immunity. (Id. at 14.) First, 

the stops themselves did not violate the constitutional rights of 

Plaintiffs because: (a) a police officer was murdered earlier in 

the day; (b) Plaintiffs were at the Pub, which is part of the

Hotel, and the police were notified that the suspect was possibly 

staying at the Hotel; and (c) Plaintiffs matched the description of 

the suspected shooter. (Id. at 15-16.) Secondly, with respect to 

the allegations of excessive force at the Canales/Valcourt stop, 

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the Township Defendants assert that the Toms River officers present 

at the scene were not involved in the removal of Canales from his 

vehicle. (Id. at 16.) Sgt. Kenny and Officer Jacques, the Toms 

River personnel at the stop, were wearing tactical gear, but

Canales and Valcourt testified that they were removed from the 

vehicle by plain-clothes officers. (Id. at 16-17.) With respect 

to the Williams stop, nothing in the record suggests that any force 

was used against Williams. (Id. at 18.) Rather, he was taken from 

his vehicle, patted down, and then asked a series of questions. 

(Id. at 17.) He was not handcuffed, and he did not suffer any 

injuries. (Id. at 17-18.)

Township Defendants also contend that they should be granted 

summary judgment on the 42 U.S.C. § 1985 claims against them for 

conspiracy to deprive Plaintiffs of their federal rights because 

Plaintiffs have failed to allege or establish discriminatory animus 

or a conspiratorial agreement. (Id. at 19-20.) Finally, Township 

Defendants argue that summary judgment should be granted on the

state law claims for the same reasons that the federal claims 

cannot succeed –- namely, that the Toms River officers did not have 

any physical contact with Plaintiffs and that Plaintiffs failed to 

demonstrate any pattern of prior, similar events. (Id. at 21-22.) 

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B. New Jersey State Police’s Arguments

The State Police assert that the State Police itself and the 

unnamed individual officers in their official capacities, as arms 

of the State of New Jersey, are entitled to sovereign immunity, and 

thus, the claims against them for money damages are barred by the 

Eleventh Amendment of the United States Constitution. (Dkt. entry 

no. 46-1, State Police’s Br. in Supp. of Mot. for Summ. J. at 4-5

(citing Will v. Mich. Dep’t of State Police, 491 U.S. 58, 70-71 

(1989)).) The State of New Jersey has not waived this immunity for 

suits in federal court. (Id. at 6.) Moreover, the State Police 

argue that state officials in their official capacities and the 

state itself are not “persons” for purposes of 42 U.S.C. § 1983. 

(Id. at 9-11 (citing Will, 491 U.S. at 64).)

The State Police further seek summary judgment on Plaintiffs’ 

claims against it under section 1983 premised on respondeat 

superior liability because the statute precludes recovery on this 

theory. (Id. at 11.) The standard for imposing liability premised 

on the supervisor’s failure to train is “extremely high” and 

requires the plaintiff to show that the supervisor’s actions were 

the moving force behind the violation. (Id. at 12-14.) The State 

Police argue that, because Plaintiffs have no facts to support the 

claim for supervisory liability beyond conclusory statements, it 

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should be granted summary judgment on the claims for supervisory 

liability against the State Police. (Id. at 14-15.)

The State Police conclude that it should be granted summary 

judgment on the state constitutional and tort claims asserted 

against it because Plaintiffs have failed to prove “beyond mere 

assumption and surmise” that any of the identified law enforcement 

officers were in fact members of the State Police. (Id. at 15.) 

Because Plaintiffs cannot establish that the unidentified officers 

were members of the State Police, the State Police cannot be held 

liable for failure to train or discipline such officers merely 

based on a theory of respondeat superior or vicarious liability. 

(Id.)

C. Plaintiffs’ Arguments

Plaintiffs argue that there are various issues of material 

fact that preclude the granting of summary judgment. (Dkt. entry 

no. 48, Pls.’ Br. in Opp’n of Mot. for Summ. J. at 7.) For 

example, Valcourt identified Sgt. Kenny as the individual who 

assaulted Canales, which contradicts the Township Defendant’s 

assertion that Toms River officers did not have physical contact 

with Plaintiffs. (Id.) Even if Sgt. Kenny was not the aggressor, 

Plaintiffs assert that “Sgt. Kenny directed and was responsible for 

unwarranted conduct of all officers.” (Id.) Furthermore, 

Plaintiffs argue that the purported basis for the motor vehicle 

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stop -– that they matched the description of the suspect -– is 

questionable because the suspect was nineteen years old, and all 

Plaintiffs were between the ages of thirty-three and forty-four. 

(Id.) Plaintiffs contend that the only characteristic they share 

in common with the suspect is ethnicity –- African American. (Id.) 

Plaintiffs argue that they have successfully asserted 

municipal liability against Toms River based on its failure to 

train or supervise its employees with respect to high-risk motor 

vehicle stops. (Id. at 8-9.) The Toms River Police Department has 

a training brief addressing the protocol for high-risk motor 

vehicle stops, and Capt. Henry sent a memorandum to all police 

personnel addressing the protocol for critical incident response. 

(Id. at 9-10.) The officers did not follow these protocols in the 

stops of Plaintiffs. (Id. at 9-10.) Specifically, the training 

brief directs officers to give a series of commands to motor 

vehicle occupants on how to exit the vehicle, but the officers at 

the Canales/Valcourt stop did not give these commands and instead 

pulled Canales out of the vehicle. (Id. at 9.) The memorandum 

directs the incident commander -- the first responding officer on 

the scene and thus Sgt. Kenny at the Canales/Valcourt stop –- to 

gather a complete list of all officers on the scene, but Sgt. Kenny 

neglected to obtain this information. (Id. at 10.)

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Plaintiffs contend that the individual Toms River police 

officers are not entitled to qualified immunity because they failed

to protect Plaintiffs from bodily harm. (Id. at 11-12.) They 

argue that it is no defense that the Toms River officers at the 

Canales/Valcourt stop were not involved in the removal of Canales 

from the car because (a) Valcourt testified that Sgt. Kenny in fact 

removed Canales, which creates a fact issue, and (b) the stop was 

made under Sgt. Kenny’s control. (Id. at 13-16.) Plaintiffs also 

assert that “more than enough force” was used in the Williams stop, 

and it is undisputed that the Williams stop “would have traumatized 

any individual.” (Id. at 15.)

With respect to the section 1985 conspiracy claim, Plaintiffs 

argue that they were racially profiled, which supports a claim of a 

conspiracy motivated by discriminatory animus. (Id. at 16-17.) As

to the state-law claims, Plaintiffs argue that Defendants are not 

entitled to good faith immunity under state law (N.J.S.A. 59:3-3) 

because the question of good faith is typically one for the finder 

of fact. (Id. at 18-19.) They assert that summary judgment should 

be denied on these state-law claims for the same reasons it should 

be denied on the federal claims. (Id. at 19-21.) Finally, 

Plaintiffs argue that the State Police are not entitled to summary 

judgment because there is an issue of material fact as to whether 

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they were involved in the stops. (Id.) This issue of fact was 

created by Toms River. (Id. at 22.)

D. Township Defendants’ Reply

The Township Defendants argue that a single incident is 

generally insufficient to support a failure to train/supervise 

claim, and Plaintiffs have not identified other, similar incidents. 

(Dkt. entry no. 50, Twp. Defs.’ Reply Br. at 2.) With regard to 

Plaintiffs’ arguments against qualified immunity based on the 

alleged dispute of fact as to whether Sgt. Kenny physically removed 

Canales from the vehicle, the Township Defendants argue that “the 

record is overwhelmingly clear that the Toms River officers at the 

various scenes were dressed in ‘SWAT’ gear,” and thus, the Toms 

River officers were not involved in the removal of Canales from the 

vehicle. (Id. at 3.)

E. State Police’s Reply

The State Police argue that Plaintiffs conceded that their

belief in the involvement of the State Police in the 

Canales/Valcourt stop is based only on representations of Toms 

River personnel. (Dkt. entry no. 51, State Police Reply Br. at 1-

2.) However, the testimony of the Toms River officers is clear 

that they were merely assuming that the plain-clothes officers were 

State Police officers. (Id. at 2-3.) These conclusory and 

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assumptive statements are not based on personal knowledge and are 

not admissible testimony at trial. (Id. at 4.)

V. ANALYSIS

A. Liability of Government Actors

There are three groups of government actors that are 

defendants in this case: (1) the State Police; (2) the individual 

municipal defendants; and (3) the municipality –- the Township of 

Toms River. There are different standards governing the liability 

of these three different groups of defendants in federal court. 

1. The New Jersey State Police

The State Police as an entity of the State of New Jersey is 

entitled to state-sovereign immunity under the Eleventh Amendment. 

The Eleventh Amendment provides, “The judicial power of the United 

States shall not be construed to extend to any suit in law or 

equity, commenced or prosecuted against one of the United States by 

citizens of another state, or by citizens or subjects of any 

foreign state.” U.S. Const. amend. XI. With a few exceptions, the 

Eleventh Amendment prevents a state entity from being a defendant 

in a lawsuit.

Congress can abrogate state-sovereign immunity through an 

unequivocal expression, or a state can waive its own immunity to 

suit. Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense 

Bd., 527 U.S. 666, 670 (1999). But Congress did not abrogate 

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state-sovereign immunity in section 1983. Kentucky v. Graham, 473 

U.S. 159, 169 n.17 (1985). And the State of New Jersey has not 

waived its sovereign immunity in federal courts. Lassoff v. New 

Jersey, 414 F.Supp.2d 483, 488 (D.N.J. 2006) (dismissing claims 

asserted against the New Jersey State Police and its officials in 

their official capacities as barred by the Eleventh Amendment). 

Thus, none of these exceptions are present in this case. 

In addition to these immunity issues, states and state 

officials in their official capacities, are not “persons” for 

section 1983 purposes. Will, 491 U.S. at 64-65. Therefore, the 

Court will grant summary judgment to the State Police as to all 

direct claims and cross-claims.

Plaintiffs have also asserted claims against unnamed 

individual officers of the New Jersey State Police. Claims against 

the individual officers in their individual capacities would not be 

barred by the Eleventh Amendment. Lassoff, 414 F.Supp.2d at 489. 

However, following ample discovery, Plaintiffs have not been able 

to identify any individual State Police officers. The belief that 

such officers were present at the stops arises only from the call 

information log transcript (which does not identify any individual 

officers) and from speculation by Toms River officers during their 

depositions. Because Plaintiffs have failed to identify any 

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individual State Police officers during discovery, Plaintiffs’ 

claims against these unnamed officers cannot proceed.

2. The Individual Toms River Officers

The individual Toms River police officers have all asserted 

that they are protected by the doctrine of qualified immunity. 

“Qualified immunity is intended to shield government officials 

performing discretionary functions, including police officers, 

‘from liability from civil damages insofar as their conduct does 

not violate clearly established statutory or constitutional rights 

of which a reasonable person would have known.’” Kopec v. Tate, 

361 F.3d 772, 776 (2004) (quoting Harlow v. Fitzgerald, 457 U.S. 

800, 818 (1982)). Qualified immunity is not merely a defense from 

liability but is also immunity from the lawsuit itself. Saucier v. 

Katz, 533 U.S. 194, 200 (2001). For this reason, the United States 

Supreme Court has urged lower courts to resolve it as early as 

possible in the litigation. Id. at 200-01.

The defendant government official bears the burden of 

establishing the right to qualified immunity. Kopec, 361 F.3d at 

776. In determining the applicability of qualified immunity, 

courts must “ask: (1) whether the facts alleged by the plaintiff 

show the violation of a constitutional right, and (2) whether the 

law was clearly established at the time of the violation.” Kelly 

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v. Borough of Carlisle, 622 F.3d 248, 253 (3d Cir. 2010) 

[hereinafter “Kelly I”] (citing Saucier, 533 U.S. at 201).4 

“For a constitutional right to be clearly established, its 

contours must be sufficiently clear that a reasonable official 

would understand that what he is doing violates that right.” Hope 

v. Pelzer, 536 U.S. 730, 739 (2002) (internal quotation marks and 

citation omitted). “This inquiry ‘must be undertaken in light of 

the specific context of the case.’” Kelly I, 622 F.3d at 253 

(quoting Saucier, 533 U.S. at 201). The Court of Appeals for the 

Third Circuit “has adopted a broad view of what constitutes an 

 

4 The United States Supreme Court had initially intended for 

these inquiries to be resolved sequentially. A determination that 

the first inquiry was not satisfied –- i.e., that the facts alleged 

viewed in the light most favorably to the plaintiff would not 

violate a constitutional right –- would end the analysis, and the 

official would be entitled to immunity. See Saucier, 533 U.S. at 

201; Kopec, 361 F.3d at 776. A court would only inquire as to 

whether the right was “clearly established” if the first step was 

answered affirmatively and there were a violation of constitutional 

rights. Saucier, 533 U.S. at 201. However, the Court later ruled 

that judges are “permitted to exercise their sound discretion in 

deciding which of the two prongs of the qualified immunity analysis 

should be addressed first in light of the circumstances in the 

particular case at hand.” Pearson v. Callahan, 555 U.S. 223, 236 

(2009). The Court stated a preference for the order it initially 

articulated in Saucier, but explained that some circumstances might 

warrant answering the “clearly established” inquiry first. See id. 

For example, “[t]here are cases in which it is plain that a 

constitutional right is not clearly established but far from 

obvious whether in fact there is such a right.” Id. at 237. The 

Court believed that allowing the second inquiry to be resolved 

first in some cases would avoid an unnecessary academic exercise by 

judges and the unnecessary expenditure of scarce judicial 

resources. Id.

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established right of which a reasonable person would have known.” 

Kopec, 361 F.3d at 778 (quoting Burns v. Cnty. of Cambria, 971 F.2d 

1015, 1024 (3d Cir. 1992)). “‘[O]fficials can still be on notice 

that their conduct violates established law even in novel factual 

circumstances,’ as long as the law gave the defendant officer ‘fair 

warning’ that his conduct was unconstitutional.” Kelly I, 622 F.3d 

at 259-60 (quoting Hope, 536 U.S. at 741).

“If the wrongfulness of the officer’s conduct would have been 

clear,” a court must consider “whether the officer made a 

reasonable mistake as to what the law requires.” Carswell v. 

Borough of Homestead, 381 F.3d 235, 242, 243 (3d Cir. 2004). 

“[T]here are circumstances wherein a police officer’s violation of 

a law may be within the bounds of reason, even though the law in 

question can be said, from the comfort of an armchair, to be 

‘clearly established.’” Kelly v. Borough of Carlisle, Nos. 12-

4020, 12-4021, 2013 WL 6069275, at *4 (3d Cir. Nov. 19, 2013) 

[hereinafter “Kelly II”]. “The qualified immunity standard gives 

ample room for mistaken judgments by protecting all but the plainly 

incompetent or those who knowingly violate the law.” Kelly I, 622 

F.3d at 254 (quoting Gilles v. Davis, 427 F.3d 197, 203 (3d Cir. 

2005)). “[Q]ualified immunity may be granted when there is a 

breakdown in the legal fiction that reasonably competent police 

officers know every clearly established law.” Kelly II, 2013 WL 

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6069275, at *6. However, the Third Circuit has cautioned that 

“[i]f the law was clearly established, the immunity defense 

ordinarily should fail, since a reasonably competent public 

official should know the law governing his conduct.” Kelly I, 622 

F.3d at 254 (quoting Harlow, 457 U.S. at 818-19).

“[Q]ualified immunity is an objective question to be decided 

by the court as a matter of law.” Carswell, 381 F.3d at 242. 

However, the jury “determines disputed historical facts material to 

the qualified immunity question.” Id. A district court may employ 

special interrogatories to the jury for this purpose. Id. Once 

the jury resolves the disputed facts, “[t]he court must make the 

ultimate determination on the availability of qualified immunity as 

a matter of law.” Id.; see also Harvey v. Plains Twp. Police 

Dep’t, 421 F.3d 185, 194 n.12 (3d Cir. 2005).

For each claim, the Court will apply this framework to each

individual defendant to the extent the claims are asserted against 

him and determine whether that defendant is entitled to immunity.

3. The Municipality 

A municipality, like Toms River, may not be held liable under 

section 1983 on a vicarious liability theory. Monell v. Dep’t of 

Soc. Servs., 436 U.S. 658, 694 (1978). Rather, “it is when 

execution of a government’s policy or custom, whether made by its 

lawmakers or by those whose edicts or acts may fairly be said to 

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represent official policy, inflicts the injury that the government 

as an entity is responsible under § 1983.” Id. 

Municipal liability may be established by an official policy, 

by a custom or practice, by the failure of decision makers to 

adequately train employees, or by actions taken or decisions made 

by a municipal employee who is responsible for establishing 

municipal policy on relevant topics. City of Canton v. Harris, 489 

U.S. 378, 387 (1989); Monell, 436 U.S. at 694; Jiminez v. All Am. 

Rathskeller, Inc., 503 F.3d 247, 250 (3d Cir. 2007). However, “the 

inadequacy of police training may serve as the basis for § 1983 

liability only where the failure to train amounts to deliberate 

indifference to the rights of persons with whom the police come 

into contact.” City of Canton, 489 U.S. at 388.

“[A] plaintiff must show that an official who has the power to 

make policy is responsible for either the affirmative proclamation 

of a policy or acquiescence in a well-settled custom.” Bielevicz 

v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990). However, this does 

not necessarily require the plaintiff’s evidence to identify the 

responsible decision maker, as “[p]ractices so permanent and well 

settled as to have the force of law [are] ascribable to municipal 

decisionmakers.” Id. (internal quotation marks and citation 

omitted).

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“Once a § 1983 plaintiff identifies a municipal policy or 

custom, he must ‘demonstrate that, through its deliberate conduct, 

the municipality was the moving force behind the injury alleged.’” 

Berg v. Cnty. of Allegheny, 219 F.3d 261, 276 (3d Cir. 2000) 

(quoting Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 

397, 404 (1997)); see also Kelly I, 622 F.3d at 263. If a 

plaintiff identifies a policy that is itself unconstitutional, the 

plaintiff need not additionally show a pattern of constitutional 

deprivations. See Brown v. City of Pittsburgh, 586 F.3d 263, 292 

(3d Cir. 2009). However, if “the policy or custom does not 

facially violate federal law, causation can be established only by 

‘demonstrat[ing] that the municipal action was taken with 

deliberate indifference as to its known or obvious consequences. A 

showing of simple or even heightened negligence will not suffice.’” 

Berg, 219 F.3d at 276 (quoting Bd. of Cnty. Comm’rs of Bryan Cnty., 

520 U.S. at 407).

Where a policy is not itself unconstitutional, the general 

rule is that “[p]roof of a single incident of unconstitutional 

activity is not sufficient to impose liability under Monell.” 

Brown, 586 F.3d at 292-93, 296 (quoting City of Okla. City v. 

Tuttle, 471 U.S. 808, 823-84 (1985)). “Failure to adequately 

screen or train municipal employees can ordinarily be considered 

deliberate indifference only where the failure has caused a pattern 

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of violations.” Berg, 219 F.3d at 276. The Third Circuit has 

stated that it is conceivably possible to maintain a failure-totrain claim without showing a pattern, but “the burden on the 

plaintiff in such a case is high.” Id. (noting Canton’s example of 

arming officers without training them). Moreover, the deficiency 

in training must be closely related to the ultimate injury; merely 

proving that the injury could have been avoided with better 

training is insufficient to impose municipal liability. Kline v. 

Mansfield, 255 Fed.Appx. 624, 629 (3d Cir. 2007).

B. The Claims

1. Claims Brought Under Section 1983

The majority of Plaintiffs’ claims are brought under 42 U.S.C. 

§ 1983. In order to state a prima facie case pursuant to section 

1983, “the plaintiff must demonstrate that a person acting under 

the color of law deprived him of a federal right.” Berg, 219 F.3d 

at 268. Section 1983 itself “is not a source of substantive rights 

and does not provide redress for common law torts.” Id. Rather, 

it is the vehicle through which plaintiffs can seek redress against 

government officials for violations of federal statutory and 

constitutional rights. See id.

Township Defendants do not dispute that they were acting under 

the color of state law at the time of the events in question. The 

issues before the Court are whether Plaintiffs’ rights were in fact 

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violated and whether Township Defendants can be held liable for 

those violations.

a. Eighth Amendment Claims

Plaintiffs assert that their rights to “protection from cruel 

and unusual punishment secured by the Eighth Amendment” were 

violated by Township Defendants’ conduct. (Am. Compl. at ¶ 34.) 

However, it is undisputed that Plaintiffs were never criminal 

defendants and were not prosecuted in connection with these stops. 

Therefore, the Eighth Amendment is not the relevant constitutional 

guarantee. As the United States Supreme Court has stated, 

[T]he State does not acquire the power to punish with 

which the Eighth Amendment is concerned until after it 

has secured a formal adjudication of guilt in accordance 

with due process of law. Where the State seeks to 

impose punishment without such an adjudication, the 

pertinent constitutional guarantee is the Due Process 

Clause of the Fourteenth Amendment.

Ingraham v. Wright, 430 U.S. 651, 671 n.40 (1977). Therefore, the 

Court will grant Township Defendants’ motion for summary judgment 

on the Eighth Amendment claims.

b. Due Process Claims

Plaintiffs also argue that the actions of Township Defendants 

deprived them of their rights to life, liberty, and property 

without due process of law. (Am. Compl. at ¶ 34.) However, “when 

government behavior is governed by a specific constitutional 

amendment, due process analysis is inappropriate.” Berg, 219 F.3d 

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at 268. Plaintiffs here challenge the constitutionality of the 

stops and the force used in executing the stops, which is governed 

by the Fourth Amendment. See Graham v. Connor, 490 U.S. 386, 394 

(1986) (stating that section 1983 claims regarding investigatory 

stops and excessive force claims in the context of such stops are 

“most properly characterized as [claims] invoking the protections 

of the Fourth Amendment”). Therefore, the Court will grant 

Township Defendants’ motion for summary judgment as to Plaintiffs’ 

due process claims.

c. Sixth Amendment Claims

Plaintiffs allege that Township Defendants’ actions also

violated their Sixth Amendment right “to be informed of the nature 

and cause of the accusation against them.” (Am. Compl. at ¶ 34.) 

However, as the Court has stated with regard to the Eighth 

Amendment claims, Plaintiffs were never criminally charged or 

prosecuted. As a result, the protections afforded by the Sixth 

Amendment are not applicable. See Kelly v. Borough of Sayreville, 

107 F.3d 1073, 1076 (3d Cir. 1997) (affirming the district court’s 

dismissal of the plaintiff’s Sixth Amendment claim because the 

plaintiff was “not a criminal defendant” and thus those protections 

were not applicable). The Court will grant summary judgment to 

Township Defendants on the Sixth Amendment claims as well.

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d. Fourth Amendment Claims

The crux of actions alleged in the Complaint fall within the 

ambit of the Fourth Amendment. The Court will address the 

constitutionality of (1) the stops; (2) the government officials’ 

conduct during the stops; and (3) the amount of force used by the 

officials.

i. The Stops

The Fourth Amendment prevents “unreasonable searches and 

seizures.” U.S. Const. amend. IV. The Third Circuit has adopted a 

three-step process for analyzing a plaintiff’s section 1983 Fourth 

Amendment seizure claim:

First, we must determine whether he was seized for 

Fourth Amendment purposes. If so, we next determine 

whether that seizure violated the Fourth Amendment’s 

prohibition against unreasonable seizures. Finally, if 

there has been a Fourth Amendment violation, we must 

determine which of the defendants, if any, may be held 

liable for it.

Berg, 219 F.3d at 269.

(a) Was there a seizure?

A person is seized for purposes of the Fourth Amendment “if he 

is detained by means intentionally applied to terminate his freedom 

of movement.” Id. Traffic stops result in temporary seizures of

both drivers and passengers. Arizona v. Johnson, 555 U.S. 323, 333 

(2009); Brendlin v. California, 551 U.S. 249, 263 (2007). 

Defendants do not, nor could they, seriously challenge that 

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Plaintiffs were subjected to a seizure for Fourth Amendment 

purposes when law enforcement officers pulled them over after they 

left the Pub. See United States v. Fogle, 515 F.Supp.2d 474, 483 

(D.N.J. 2007) (“We find that in this case a Fourth Amendment 

seizure of defendant occurred when the [vehicle] pulled over and 

stopped [on the street] in response to police lights, and defendant 

complied with the police directive over the PA system that he 

remain in the vehicle.”)

(b) Does the seizure violate the Fourth 

Amendment?

The general rule is that, in order for a seizure to be 

reasonable, “it must be effectuated with a warrant based on 

probable cause.” United States v. Robertson, 305 F.3d 164, 167 (3d 

Cir. 2002) (citing Katz v. United States, 389 U.S. 347, 356-57 

(1967)). However, under Terry v. Ohio, 392 U.S. 1 (1968), in the 

absence of a warrant, an officer may, without running afoul of the 

Fourth Amendment, “conduct a brief, investigatory stop when the 

officer has reasonable, articulable suspicion that criminal 

activity is afoot.” Robertson, 305 F.3d at 167 (quoting Illinois 

v. Wardlow, 528 U.S. 119, 123 (2000)). “This rule applies whether 

the criminal activity is ongoing or has already been completed.” 

Fogle, 515 F.Supp.2d at 482.

Reasonable suspicion is a lower “standard than probable cause 

and requires a showing considerably less than preponderance of the 

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evidence.” Wardlow, 528 U.S. at 123. It “can be established with 

information that is different in quantity or content than that 

required to establish probable cause” and “can arise from 

information that is less reliable than that required to show 

probable cause.” Alabama v. White, 496 U.S. 325, 330 (1990). 

Courts must consider the “totality of the circumstances” in 

determining the existence of reasonable suspicion. Robertson, 305 

F.3d at 167. The analysis for reasonable suspicion is objective, 

and the subjective intent of the officer is not relevant. United 

States v. Goodrich, 450 F.3d 552, 559 (3d Cir. 2006).

Notwithstanding that the reasonable suspicion standard is less 

demanding than the standard for probable cause, reasonable 

suspicion “unequivocally demands that ‘the detaining officers must 

have a particularized and objective basis for suspecting the 

particular person stopped of criminal activity.’” United States v. 

Brown, 448 F.3d 239, 247 (3d Cir. 2006) (emphasis added) (quoting 

United States v. Cortez, 449 U.S. 411, 417-18 (1981)). “[T]he 

‘reasonable suspicion’ inquiry is highly fact-dependent in nature.” 

Goodrich, 450 F.3d at 553. 

Reasonable suspicion can arise from a combination of one or 

more factors, including:

specialized knowledge and investigative inferences . . . , 

personal observation of suspicious behavior . . . , 

information from sources that have proven to be reliable, 

and information from sources that –- while unknown to the 

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police –- prove by the accuracy and intimacy of the 

information provided to be reliable at least as to the 

details contained within that tip . . . . 

United States v. Nelson, 284 F.3d 472, 478 (3d Cir. 2002) (internal 

citations omitted). While reasonable suspicion may arise from 

information obtained from other sources, Adams v. Williams, 407 

U.S. 143, 147 (1972), officers must have “some ‘reason to believe 

not only that the [tipster] was honest but also that he was well 

informed.’” Brown, 448 F.3d at 250 (quoting White, 496 U.S. at 

332).

Courts use a flexible standard assessing the reliability and 

value of a tip in light of the totality of the circumstances. 

United States v. Valentine, 232 F.3d 350, 354-57 (3d Cir. 2000) 

(finding reasonable suspicion based on face-to-face tip in 

conjunction with surrounding circumstances). Circumstances that 

may contribute to a finding of reasonable suspicion or can serve to 

“corroborate an otherwise insufficient tip” include: the 

individual’s presence in a high crime area; the individual’s 

presence on the street in late hours; nervous or evasive behavior; 

and walking away or fleeing from police. Brown, 448 F.3d at 251; 

see also United States v. Navedo, 694 F.3d 463, 470-72 (3d Cir. 

2012); Valentine, 232 F.3d at 356-57. Moreover, when a tip is one 

of the primary reasons for the stop, that tip “must provide a 

particularized and objective basis for suspecting (1) the 

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particular persons stopped (2) of criminal activity.” Goodrich, 

450 F.3d at 560. 

Courts are mindful that the determination of whether 

reasonable suspicion exists is often made by officers on the fly 

under exigent circumstances. Robertson, 305 F.3d at 168. As a 

result, courts are “reluctant to ‘second-guess’ investigative 

decisions made by officers in hot pursuit of criminal suspects.” 

Id. at 167.

With respect to stops that have been made on the basis of a 

third-party’s description of a suspect, the Third Circuit has 

emphasized that the description must “satisfy the Fourth 

Amendment’s ‘demand for specificity.’” Brown, 448 F.3d at 247

(quoting Terry, 392 U.S. at 21 n.18.). For example, the Third 

Circuit has found that the description of “African-American males 

between 15 and 20 years of age, wearing dark, hooded sweatshirts 

and running south on 22nd Street” in Philadelphia, who were 

approximately 5’8” and 6’ tall, was insufficient to give rise to 

reasonable suspicion for a stop. Id. at 247-48. In contrast, a 

description of “the two-toned color of the car, the presence of a 

third brake light in the rear window, and five or more young, 

white, male passengers” was found, along with other factors, to 

support reasonable suspicion. Id. at 248 (citing Nelson, 284 F.3d 

at 481 n.5). Moreover, when the individual detained does not 

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closely resemble the description of the suspect, that description 

alone will not support a finding of reasonable suspicion. See id.

(“Indeed, about the only thing Brown and Smith had in common with 

the suspects is that they were black.”).

The Court in this case cannot conclude that the stops were 

supported by reasonable suspicion. Sgt. Kenny, Jacques, and Carey 

did not know with certainty the purpose or justification for the 

stops, but testified that they stopped Plaintiffs’ vehicles because 

they were ordered to from the command post and assumed that the 

command post thought that Plaintiffs might have some connection to 

the suspect or the shooting. (Carey Dep. at 8; Jacques Dep. at 7; 

Kenny Dep. at 7, 9, 43.) Capt. Henry testified that both the 

Canales/Valcourt stop and the Williams stop were made because the 

individuals involved matched the description of the suspect. 

(Henry Dep. at 19.) However, the record does not contain any 

information as to what the description of the suspect was. Nor 

does it reveal how police developed the description of the suspect 

or why police believed the shooter was in the vicinity of the 

Hotel. Moreover, the record does not address why police believed 

that Plaintiffs matched the description of the suspect. Therefore, 

the Court is unable to evaluate the totality of the circumstances, 

including the reliability of the command post’s basis of knowledge 

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and the specificity of any description. See Brown, 448 F.3d at 

247, 250-51; Valentine, 232 F.3d at 354-57.

Plaintiffs have argued that the vehicles of Canales and 

Williams do not resemble one another, and therefore, they could not 

have resembled any description of a vehicle utilized by the 

suspect. (Pls.’ Br. in Opp’n of Mots. for Summ. J. at 7.) 

Furthermore, they have argued that the suspect was nineteen years 

old, and Plaintiffs are between thirty-three and forty-four years 

of age; thus, Plaintiffs could not have resembled the suspect. 

(Id.) They assert that the only trait they have in common with the 

suspect is that they are African American (id.), which, if true, 

would be inadequate to support reasonable suspicion. Brown, 448 

F.3d at 248. Township Defendants have not responded to this line 

of argument.

Given the absence of information relating to the source of the 

description of the suspect and how Plaintiffs resembled this 

description, the Court cannot conclude that these stops were based 

on reasonable suspicion. This is not to say conclusively that 

reasonable suspicion did not support the stops. Rather, the Court 

cannot conclude that reasonable suspicion existed based on the 

inadequate record here. Thus, the Court will assume for the 

purposes of analyzing liability for the stop that the stop in fact 

violated Plaintiffs’ Fourth Amendment rights.

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(c) Who is liable?

Since the Court cannot conclude that reasonable suspicion 

supported the stop, the Court will next determine who, if anyone, 

is liable for the violation. The individuals identified as 

defendants in this case are Sgt. Kenny, Jacques, Mooney, Carey, 

McDowell, Gambardella, and Det. Scully. (See Am. Compl.) However, 

not one of these defendants is the individual responsible for 

ordering the cars stopped and thus the individual who would have 

needed reasonable suspicion for the stops. The individual who 

ordered the stops has not been identified, and the parties have 

reached the close of discovery.

The Court finds that the individual defendants are entitled to 

qualified immunity. “Plausible instructions from a superior or 

fellow officer support qualified immunity where, viewed objectively 

in light of the surrounding circumstances, they could lead a 

reasonable officer to conclude that the necessary legal 

justification for his actions exists . . . .” Myers v. Med. Ctr. 

of Del., 28 Fed.Appx. 163, 167 (3d Cir. 2002) (quoting Bilida v. 

McCleod, 211 F.3d 166, 174-75 (1st Cir. 2000)); see also United 

States v. Hensley, 469 U.S. 221, 232 (1985) (stating that a stop 

made in reliance on a flyer or broadcast issued without reasonable 

suspicion violates the Fourth Amendment, but an officer making the 

stop would be entitled to qualified immunity).

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The facts here show that numerous officers from a variety of 

law enforcement agencies were cooperating in the pursuit of an 

armed suspect who had shot another police officer. Their 

activities in this pursuit were coordinated by the command posts. 

The command posts, comprised of other officers, radioed officers in 

the field and directed them to stop certain vehicles whose 

occupants may have had involvement in the shooting. It was 

objectively reasonable for officers in the field to believe that 

the officers at the command post had reasonable suspicion for the 

stops. Therefore, the individual defendants who made these stops 

in reliance on the directives of their peers and superiors are 

entitled to qualified immunity. See Rogers v. Powell, 120 F.3d 

446, 456 (3d Cir. 1997) (officer who had been inaccurately told by 

another officer that there was a warrant for the plaintiff’s arrest 

was immune from suit). The Court will grant summary judgment to 

Defendants Sgt. Kenny, Jacques, Mooney, Carey, McDowell, 

Gambardella, and Det. Scully on Plaintiffs’ claim for a Fourth 

Amendment violation based on the stop itself. 

ii. Conduct During the Stops

Plaintiffs also allege that the conduct of Township Defendants 

during the stop also violated their constitutional rights. The 

conduct of law enforcement during the course of a stop can convert 

an investigatory stop into an arrest for Fourth Amendment purposes. 

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See Baker v. Monroe Twp., 50 F.3d 1186, 1193 (3d Cir. 1995). In 

evaluating police conduct, a court will consider the “intrusiveness 

of all aspects of the incident” and the reasonableness of the 

officers’ conduct in terms of their concerns for safety. See id. 

The issue is that, once the officers’ conduct, in light of the 

surrounding circumstances, becomes unreasonable and the stop is 

transformed into an arrest, probable cause is required for the 

detention.

The Court, in considering Township Defendants’ actions 

throughout the course of the stop, is cognizant that “traffic stops 

are ‘especially fraught with danger to police officers.’” Johnson, 

555 U.S. at 330 (quoting Michigan v. Long, 463 U.S. 1032, 1047 

(1983)). This risk of harm can be minimized “if the officers 

routinely exercise unquestioned command of the situation.” Id.

(quoting Maryland v. Wilson, 519 U.S. 408, 414 (1997)).

The Court will consider each type of Township Defendants’ 

alleged conduct during the stops to evaluate whether the actions 

were reasonable.

(a) Impact of the Toms River Police 

Department Protocols

As an initial matter, the Court finds that the Toms River 

training brief and critical response memorandum and any failure to 

follow them do not, in and of themselves, amount to a violation of 

Plaintiffs’ federally secured rights. These protocols may aid in 

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the orderly administration of a stop by creating presumptions of 

which officer is in charge of the stop and by encouraging that 

officer to compile a list of all individuals on the scene. (See 

e.g., Toms River Police Dep’t Mem.) But failure to abide by these 

protocols does not necessarily result in a violation of a citizen’s 

Fourth Amendment rights. The manner in which they executed the 

stop and their conduct during the stop may still be deemed 

reasonable for constitutional purposes, even if not commendable. 

See Ray v. Twp. of Warren, 626 F.3d 170, 178 n.14-15 (3d Cir. 2010) 

(explaining that officer’s failure to follow internal protocol did 

not inherently reflect a lack of reasonableness and stating,

“Although the officers acted within the bounds of reasonableness, 

we cannot say that all of their actions were commendable.”). 

Therefore, the Court finds that Township Defendants’ alleged 

failure to follow department protocols did not amount to a Fourth 

Amendment violation.

(b) Display of Weapons 

The Court will examine the officers’ display of guns during 

the stops. The undisputed facts show that Sgt. Kenny and Jacques 

approached Canales’s vehicle with their guns drawn. Similarly, it 

is undisputed that Carey had a gun pointed at Williams during the 

course of the stop. It is unclear from the record whether McDowell 

also had a gun pointed at Williams. Williams testified that 

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McDowell also had a gun pointed at him, Carey testified that he was 

not sure if McDowell also had a gun pointed at Williams, and the 

record is silent as to McDowell’s testimony on the issue. (See

Williams Dep. at 23; Carey Dep. at 13.) 

There is no per se rule prohibiting the use of guns at an 

investigatory stop. Baker, 50 F.3d at 1193; United States v. 

Trullo, 809 F.2d 108, 113 (1st Cir. 1987) (use of a gun at stop 

does not automatically convert stop into an arrest requiring 

probable cause). The question for the Court is whether the use of 

guns at the stop was reasonable under the circumstances. Baker, 50 

F.3d at 1193; see also United States v. Eisenberg, 807 F.2d 1446, 

1451 (8th Cir. 1986) (“The officers may take such steps as are 

reasonably necessary to protect their personal safety and to 

maintain the status quo so that the limited purpose of the stop may 

be achieved.” (internal quotation marks and citation omitted)); 

United States v. Hardnett, 804 F.2d 353, 357 (6th Cir. 1986) 

(“Where the display or use of arms is viewed as reasonably 

necessary for the protection of the officers, the courts have 

generally upheld investigatory stops made at gunpoint.” (internal 

quotation marks and citations omitted)).

The Court finds that the use of guns here was reasonable. 

Township Defendants, having been ordered to stop the vehicles of 

Canales and Williams as part of a manhunt for an armed suspect who 

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had shot a police officer, would have been concerned for their 

safety in approaching these vehicles and their occupants. See

Hardnett, 804 F.2d at 357 (finding that it was reasonable for 

officers to display their weapons when approaching a vehicle that 

officers had been told contained armed occupants). Therefore, the 

Court finds that Plaintiffs’ rights were not violated by the 

officers’ display of their guns.

(c) Removal from Vehicles 

It is also undisputed that after the stop was made, all three 

Plaintiffs were removed from the vehicles, Canales and Valcourt by 

the plain-clothes officers and Williams by McDowell with Carey 

right near him.

5 This does not offend the Fourth Amendment. Once 

a vehicle has been lawfully stopped –- and the Court has already 

concluded that the Township Defendants did not violate Plaintiffs’ 

rights with regard to the stop –- officers are permitted to remove 

both the driver and passengers from the vehicle. See Johnson, 555 

U.S. at 331 (citing Wilson, 519 U.S. at 415; Pennsylvania v. Mimms, 

434 U.S. 106, 110-11 (1977)). Plaintiffs’ rights were not violated 

by their removal from their vehicles.

(d) Use of Handcuffs

The undisputed facts also show that Canales and Valcourt were 

handcuffed during the stop. As with the displaying of guns, the 

 

5 The manner in which they were removed will be addressed 

under the excessive force analysis.

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fact that citizens are handcuffed in the course of an investigatory 

stop does not necessarily turn that stop into an arrest. Baker, 50 

F.3d at 1193; United States v. Kapperman, 764 F.2d 786, 790 n.4 

(11th Cir. 1985). Once again, the touchstone is the reasonableness 

of the police conduct under the circumstances. Kapperman, 764 F.2d 

at 790 n.4. Here, Township Defendants believed that the occupants 

of the vehicle in question may be connected to the shooting of a 

police officer. The officers needed to keep Plaintiffs at the 

scene long enough for their identifications to be checked and for 

Det. Scully and Det. Leskowski to arrive to see if Plaintiffs were 

familiar to them. Their concern for their safety during the 

detention was reasonable given their belief that Plaintiffs could 

be dangerous. Therefore, it was not a violation of Plaintiffs’ 

rights for the officers to use handcuffs during the course of the 

stop. 

(e) Duration of the Stops

The duration of a stop can, in the totality of the 

circumstances, be too long to be justified as an investigatory

stop. See United States v. Sharpe, 470 U.S. 675, 686 (1985). In 

determining “whether a detention is too long in duration to be 

justified as an investigative stop, we . . . examine whether the 

police diligently pursued a means of investigation that was likely 

to confirm or dispel their suspicions quickly, during which time it 

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was necessary to detain” an individual. Id. (finding that a 

twenty-minute detention did not violate the defendant’s Fourth 

Amendment rights). The Supreme Court has cautioned that judges 

“should not indulge in unrealistic second-guessing.” Id. While a 

judge may be able to imagine an alternative means of accomplishing 

the ends of the stop that would have been less intrusive, this does 

not render the officers’ actions unreasonable. Id. at 686-87. 

“The question is not simply whether some other alternative was 

available, but whether the police acted unreasonably in failing to 

recognize or to pursue it.” Id. at 687.

The exact durations of the stops in this case are disputed by 

the parties. Viewing the record in the light most favorable to 

Plaintiffs, the Canales/Valcourt stop lasted thirty-five to forty 

minutes according to Canales. (Canales Dep. at 30.) Valcourt 

estimated twenty-five to thirty minutes (Valcourt Dep. at 32), but 

for the purposes of the analysis the Court will accept Canales’s 

version of the events. Williams testified that he was stopped by 

the police for approximately twenty minutes. (Williams Dep. at 

33.) During this time, officers were attempting to identify the 

men, ensure the safety of the situation, and await the arrival of 

Det. Scully and Det. Leskowski to determine whether they recognized 

the men. Det. Scully and Det. Leskowski were driving to multiple 

stops at multiple locations in their efforts to identify the 

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suspect. They had special knowledge and experience about gang 

members in the area, so their presence was important to the 

operation. Moreover, these stops were in the midst of a multijurisdictional manhunt for the shooter of another police officer. 

The Court is mindful of the difficulty in orchestrating an 

operation of that size and finds that the officers were diligent in 

accomplishing the purposes of the stops. Whether the stops could 

have been completed more quickly is not the inquiry. The Court 

concludes that the officers acted reasonably in terms of the length 

of the detention, and Plaintiffs’ rights were not violated by the 

duration of the stops.

iii. Pat Downs/Searches

Plaintiffs all allege that their persons were searched in some 

manner by the officers. Canales and Valcourt allege that the 

officers went through their pockets to obtain their identification. 

(Valcourt Dep. at 29; Canales Dep. at 25.) Canales identified the 

officer who took his wallet as the same plain-clothes officer who 

had forcibly removed him from the car. (Canales Dep. at 25.) 

Valcourt simply testified that “somebody” went into his pockets. 

(Valcourt Dep. at 29.) Sgt. Kenny testified that their 

identifications were obtained by the plain-clothes officers, but he 

did not elaborate on how they were obtained. (Kenny Dep. at 23.) 

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Williams also alleges that the officer who pulled him out of 

the car –- who was McDowell based on Carey’s and McDowell’s 

testimony –- searched him. He does not elaborate on the manner of 

the search. (Williams Dep. at 22; see also McDowell Dep. at 12, 

14; Carey Dep. at 15.) The excerpted testimony of Carey and 

McDowell that is part of the summary judgment record does not 

address the accusation that they searched Williams. However, it is 

apparent from their testimony that McDowell was controlling the 

stop, and Carey was providing cover, and thus, it is likely that, 

under Williams’s version of the facts, McDowell performed the 

search in Carey’s presence. (See Carey Dep. at 15.) The record 

does not suggest that any other Defendants other than the 

aforementioned were remotely involved in either of the alleged 

searches.

The Court must evaluate whether Plaintiffs have stated a 

constitutional violation with respect these alleged searches and, 

if so, who, if anyone, can be liable. In the course of an 

investigative stop, like the ones at issue here, an officer may 

constitutionally conduct “a reasonable search for weapons for the 

protection of the police officer, where he has reason to believe 

that he is dealing with an armed and dangerous individual, 

regardless of whether he has probable cause to arrest the 

individual for a crime.” Terry, 392 U.S. at 27. In circumstances 

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in which police have detained a suspect whom they were told was 

armed and dangerous by other officers, courts have upheld the 

limited search for weapons. See, e.g., Robertson, 305 F.3d at 170; 

Stokes v. O’Connor, Nos. 93-16, 93-208, 1994 WL 829066, at *10 (D. 

Del. June 30, 1994) (where plaintiff was stopped during manhunt for 

armed felon, police were justified in conducting a pat-down search 

of plaintiff for weapons while they waited for other officials to 

identify him).

However, “when a protective search goes beyond a search for 

weapons and becomes a search for evidence, it is no longer valid 

under Terry.” Baker, 50 F.3d at 1194 (citing Minnesota v. 

Dickerson, 508 U.S. 366 (1993)). Where police have searched 

through a detainee’s wallet and pocketbook, the Third Circuit has 

determined this to be a “full-scale search[] for evidence, having 

nothing to do with a limited Terry-frisk, and having no probable 

cause justification.” Id. 

For the same reasons that officers in this case were permitted 

to handcuff Plaintiffs and point guns at them, the officers at the 

stops in question would have been justified in patting down 

Plaintiffs to determine if they were armed. However, the facts 

viewed in the light most favorable to Plaintiffs suggest that these 

searches may have gone beyond a limited Terry-frisk and were not 

simply a search for weapons. 

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As in Baker, the officers in this case removed Canales’s and 

Valcourt’s wallets from their pockets. Sgt. Kenny’s testimony 

suggests that after the individuals were handcuffed, he obtained 

the drivers licenses from the plain-clothes officers. (See Kenny 

Dep. at 22-23.) If Canales and Valcourt were handcuffed, it would 

have been difficult for them to obtain their own identifications to 

give to the police. Rather, the officers would have had to 

retrieve the identifications themselves. Therefore, the Court 

finds that, the facts viewed in the light most favorable to 

Plaintiffs Canales and Valcourt indicate that the search of their 

persons exceeded the permissible bounds of the Fourth Amendment.

The Court must determine who, if anyone, can be held 

responsible for this violation. The record reflects that the 

plain-clothes officers performed the illegal search, while Jacques 

and Sgt. Kenny were present. The plain-clothes officers are not 

named defendants in this action. None of the individual defendants 

in this case were responsible for the unconstitutional searches, 

and thus, they are entitled to qualified immunity.

With respect to Williams, he alleges that after the officers 

removed him from the car, the officer (likely McDowell based on 

McDowell’s testimony) “told me to spread my legs and he searched me 

at that time.” (Williams Dep. at 22.) The excerpts of Defendants’ 

testimony are silent as to whether Williams was searched and in 

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what manner. The Court finds that Williams’s testimony alone is 

insufficient to demonstrate that this search occurred or that it 

exceeded the permissible bounds of Terry. Moreover, Williams’s

statement does not disclose the nature of the search. His 

statement that he was searched is consistent with both a search 

that complies with Terry –- a mere pat down of his clothing for 

weapons –- as well as a more intrusive search that exceeds the 

bounds of Terry. In response to Township Defendants’ submissions 

showing a lack of evidence on this claim, Williams bore the burden 

of coming forward with factual references supporting his claim for 

relief. See Matsushita Elec. Indus. Co., Ltd., 475 U.S. at 586–87; 

Williams, 891 F.2d at 460–61. Williams had the opportunity to 

elaborate on the nature of the search during his deposition. Carey 

and McDowell –- the officers who effectuated the stop of Williams –

- were also deposed, and Williams could have questioned them about 

the alleged search and provided the Court with excerpts from those 

depositions. In spite of these opportunities, Williams failed to 

provide evidence that would support a Fourth Amendment violation 

based on the search of Williams’s person, other than his bare 

allegation.

For these reasons, summary judgment is granted in favor of 

Defendants as to the alleged searches of the Plaintiffs’ persons.

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iv. Car Search

The Court must also evaluate whether the alleged searches of 

Plaintiffs’ cars violated the Fourth Amendment. In Michigan v. 

Long, 463 U.S. 1032 (1983), the Supreme Court held that, as an 

extension of Terry, “the search of the passenger compartment of an 

automobile, limited to those areas in which a weapon may be placed 

or hidden, is permissible if the police officer possesses a 

reasonable belief . . . that the suspect is dangerous and the 

suspect may gain immediate control of weapons” when he re-enters 

the vehicle. Id. at 1049-50 (quoting Terry, 392 U.S. at 21). 

However, the rationale of Long does not extend to protective 

searches in trunks. See Valance v. Wisel, 110 F.3d 1269, 1277-78 

(7th Cir. 1997).

Valcourt testified that during the stop, the individuals 

wearing tactical gear “proceeded to strip search the vehicle . . . 

[l]ike open all the doors, the trunk, going under seats, glove 

compartments.” (Valcourt Dep. at 30.) Sgt. Kenny and Jacques did 

not know at the time of their depositions whether the car was 

searched or whether the plain-clothes officers searched the 

vehicle. (Jacques Dep. at 23; Kenny Dep. at 23-24.) Sgt. Kenny 

testified that he performed a “cursory search from outside” the 

vehicle to see if there were any other persons or weapons in plain 

view. (Kenny Dep. at 23.) Williams also testified that the two 

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officers who initiated his stop –- likely Carey and McDowell based 

on their testimony -– “proceeded to go through my entire vehicle.” 

(Williams Dep. at 23.) He elaborated, “They pulled everything out 

of the dashboard, they pulled everything out of the backseat, 

anything I had in a bag. . . . They went through my entire car.” 

(Id. at 23-24.)

With respect to Williams, once again, the Court finds that the 

evidence is insufficient to support a violation of the Fourth 

Amendment. First, Williams does not specifically state that his 

trunk was searched. His testimony suggests that the officers 

performed a thorough search of the passenger compartment of the 

car. This search was permissible under Long. Because Carey and 

McDowell believed they were stopping someone who was involved with 

the suspect in the officer shooting, they had reason to fear for 

their safety once Williams returned to the car. They were 

permitted to search the passenger compartment of the car for 

weapons under Long. Williams did not provide the Court with 

deposition excerpts of his questioning of McDowell and Carey about 

this search and whether it extended to the trunk. His bare 

allegation is insufficient to support this claim.

As to the Canales/Valcourt stop, the Court finds that the 

record, viewed in the light most favorably to Plaintiffs, suggests 

that the car and its trunk were in fact searched by officers on the 

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scene. Valcourt testified that the car was searched by officers in 

tactical gear, and Sgt. Kenny and Jacques were not certain whether 

the plain-clothes officers performed any search. While the search 

of the passenger compartment of the vehicle was proper under Long, 

the search of the trunk as alleged by Valcourt exceeds the scope of 

Long. The facts viewed in the light most favorable to Canales 

suggests that his Fourth Amendment rights were violated as to the 

search of the trunk.6

Despite the Court’s finding that Canales’s rights were 

potentially violated, once again, there is insufficient evidence in 

the record to suggest that any of the named defendants are the 

perpetrators. Valcourt testified that the officers who searched 

the car were in tactical gear, and he testified that Sgt. Kenny was 

in plain clothes. (Valcourt Dep. at 21, 30.) Sgt. Kenny and 

Jacques testified that they were both wearing tactical gear and 

that they did not search the car and did not know whether the 

plain-clothes officers did. (Jacques Dep. at 8, 23; Kenny Dep. at 

10-12, 23-24.) To hold Sgt. Kenny and Jacques responsible based on 

Valcourt’s testimony would allow Valcourt to contradict himself; he 

stated that Sgt. Kenny was in plain clothes but that it was the 

 

6 The car belonged to Canales, and thus, his rights, and not 

Valcourt’s, would have been violated if the trunk were in fact 

searched. See Rakas v. Illinois, 439 U.S. 128, 148 (1978) (search 

of vehicle did not violate rights of passengers who were in vehicle 

with the consent of the owner of the vehicle).

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officers in tactical gear who searched his car. Viewing these 

facts in the light most favorable to Canales, a jury could not find 

by a preponderance of the evidence that Sgt. Kenny and Jacques were 

the individuals who searched his car. As a result, Township 

Defendants are entitled to qualified immunity, and the Court will 

grant summary judgment with respect to the alleged automobile 

searches.

v. Excessive Force 

The Court must next consider whether the manner in which the 

stops were effectuated violated Plaintiffs’ constitutional rights -

– that is, whether the officers used excessive force during the 

detention.

“To state a claim for excessive force as an unreasonable 

seizure under the Fourth Amendment, a plaintiff must show that a 

‘seizure’ occurred and that it was unreasonable.” Kopec, 361 F.3d 

at 776 (quotation omitted). “The test of reasonableness under the 

Fourth Amendment is whether under the totality of the 

circumstances, ‘the officers’ actions are objectively reasonable in 

light of the facts and circumstances confronting them, without 

regard to their underlying intent or motivations.’” Id. (quoting 

Graham, 490 U.S. at 397). 

While reasonableness for Fourth Amendment purposes is 

typically a question for the jury, an officer can prevail on a 

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summary judgment motion if the court concludes that the use of 

force, under the circumstances, was objectively reasonable. Id. at 

777; see also Abraham v. Raso, 183 F.3d 279, 290 (3d Cir. 1999) 

(“[S]ince we lack a clearly defined rule for declaring when conduct 

is unreasonable in a specific context, we rely on the consensus 

required by a jury decision to help ensure that the ultimate legal 

judgment of ‘reasonableness’ is itself reasonable and widely 

shared.”) In evaluating the reasonableness of the officer’s 

conduct for excessive force claims, a variety of factors are 

relevant, including: 

the severity of the crime at issue, whether the suspect 

poses an immediate threat to the safety of the officers 

or others, [] whether he actively is resisting arrest or 

attempting to evade arrest by flight[,] . . . the 

possibility that the persons subject to the police 

action are violent or dangerous, the duration of the 

action, whether the action takes place in the context of 

effecting an arrest, the possibility that the suspect 

may be armed, and the number of persons with whom the 

police officers must contend at one time.

Kopec, 361 F.3d at 776-77. Moreover, courts are cautioned to judge

reasonableness from the perspective of the officer on the scene, 

who may be required to make split-second judgments. Graham, 490 

U.S. at 396-97. If after conducting this analysis, a court 

concludes that “the use of force is objectively unreasonable, 

officers are not entitled to qualified immunity.” Christian v. 

Orr, 512 Fed.Appx. 242, 246 (3d Cir. 2013).

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In Kopec v. Tate, 361 F.3d 772 (3d Cir. 2004), the plaintiff 

alleged that the officer put handcuffs on him that were overly 

tight and that the officer failed to respond for about ten minutes 

to the plaintiff’s requests for the handcuffs to be loosened. Id.

at 777. Noting that the circumstances were “benign” and that the 

officer was not tending to other people or matters at the time of 

the requests, the court concluded that these facts, if credited, 

would establish an excessive force claim. Id. In denying the 

officer qualified immunity, the court stated that an arrestee’s 

right “to be free from the use of excessive force in the course of 

his handcuffing clearly was established [in 2000 when the officer] 

acted in this case, and that a reasonable officer would have known 

that employing excessive force in the course of handcuffing would 

violate the Fourth Amendment.” Id. at 778.

The focus of the excessive force analysis here is on the force 

allegedly used against Canales when he was removed from the car and 

handcuffed. While Valcourt and Williams also assert that they 

endured excessive force, the record does not support these claims 

following ample discovery. 

The Complaint alleges force against Valcourt because he was 

“forcibly thrust . . . into the snow filled ground and then asked . 

. . to get on his knees,” and then was lifted by his handcuffs. 

(See Am. Compl. at ¶ 22.) Yet none of Defendants testified that 

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Valcourt was thrust onto the snow-covered ground, and notably, 

Valcourt’s testimony at his deposition did not suggest undue force. 

He stated, “Then my door opens and I get pulled out of the car and 

I get put on the ground and handcuffed,” but this does not indicate 

a violent thrust onto the snowy ground. (Valcourt Dep. at 24.) 

Valcourt did not testify that he was lifted up by his handcuffs. 

(Id. at 24-26.) Similarly, while Williams testified that the 

officers removed him from the car with “more than enough force” 

(Williams Dep. at 22-23), there is no evidence that the officers 

used excessive force against him other than his bare assertion. 

Williams does not elaborate on what he meant by this. Moreover, 

McDowell testified that he simply asked Williams to exit the car. 

(McDowell Dep. at 14.) Williams’s allegation of “more than enough 

force” is inadequate at this stage in the proceedings to support an 

excessive force claim.

With respect to Canales, however, the Court finds that there 

is a genuine issue of material fact as to whether Canales was 

subjected to excessive force during the stop. Canales and Valcourt 

testified that, without identifying himself, the plain-clothes 

officer pulled Canales out of the car and “slammed” him to the 

ground. (Canales Dep. at 20-21, 29-30; Valcourt Dep. at 20-22.) 

Valcourt believed that the plain-clothes officer was Sgt. Kenny. 

(Valcourt Dep. at 21.) Canales also testified that the plainCase 3:11-cv-03159-MLC-LHG Document 52 Filed 02/20/14 Page 73 of 86 PageID: 903
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clothes officer said “Don’t [f***ing] move or I’ll blow your head 

off.” (Canales Dep. at 20.) The plain-clothes officer handcuffed 

him and left him on the ground for eleven minutes. (Id. at 22, 

28.) Canales testified that when the plain-clothes officer allowed 

him to get up from the ground, rather than directing him to get up, 

the officer lifted him off the ground by his handcuffs and slammed 

him onto the hood of the police car. (Id. at 23-24, 28.) Canales 

explained that this act of lifting him up while his hands were 

cuffed behind him injured his shoulder, and this injury has 

interfered with his ability to perform daily activities. (Id. at 

31, 40-43.)

Sgt. Kenny, in contrast, denied that Canales was slammed on 

the ground, and he did not remember Canales being lifted by his 

handcuffs. (Kenny Dep. at 20.) He testified that based on where 

he was standing, he could not see the passenger side of the vehicle 

very well, which implies that he could see the driver side of the 

vehicle. (Id. at 20-21.) He also explained that his attention was 

called in several directions, including monitoring traffic, keeping 

the scene safe, and seeing if the other officers needed assistance. 

(Id. at 21.) Jacques, on the other hand, testified that he could

not see if the driver (Canales) was pulled out of the car because 

he was watching the passenger. (Jacques Dep. at 16.) 

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While more force may be justified for a non-compliant 

detainee, the record, viewed in the light most favorable to 

Plaintiffs, indicates that Canales was, in fact, cooperative. 

Jacques and Sgt. Kenny gave inconsistent testimony regarding 

Canales’s demeanor when the stop was initiated. Jacques testified 

that Canales and Valcourt were cooperative, but Sgt. Kenny 

testified that Canales was not compliant and was agitated and 

defiant. (Id. at 11; Kenny Dep. at 14.) The Court accepts 

Jacques’ testimony for the purposes of this motion, as it is more 

favorable to Plaintiffs.

Viewing these facts in the light most favorable to Plaintiffs, 

a jury could find that Canales was cooperative during the stop, but 

nonetheless was ripped from his car and slammed to the ground by 

the plain-clothes officer. A jury could find that he was 

handcuffed, and then lifted up by his handcuffs, thereby 

permanently injuring his shoulder. Considering the factors 

articulated by the Third Circuit in Kopec, while the plain-clothes 

officer here would have believed that Canales was a suspect in an 

investigation of a severe crime (shooting of a police officer) and 

that Canales was armed and dangerous, Canales was not actively 

resisting his removal from the vehicle or the use of the handcuffs. 

See Kopec, 361 F.3d at 776-77. Moreover, there were several 

officers on the scene, so the plain-clothes officer was not dealing 

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with several people all at once. See id. at 777. Notably, the 

most painful use of force, the lifting of Canales up by his 

handcuffs, was used after Canales was handcuffed and secured. The 

Court finds that an issue of fact exists as to whether Canales’s

right to be free from the use of excessive force was violated in 

the course of his handcuffing and the lifting of Canales after he 

was handcuffed. The right to be free from excessive force in the 

course of handcuffing was clearly established on the night in 

question. See id. at 778 (right to be free from excessive force in 

course of handcuffing clearly established by 2000).

Sgt. Kenny and Jacques defend the claims against them by 

arguing that they are not the individuals who had physical contact 

with Canales, but rather it was the unknown plain-clothes officers. 

The Court rejects this argument for two reasons. First, Valcourt 

testified that Sgt. Kenny was the plain-clothes officer, and the 

Court must view the facts in the light most favorable to 

Plaintiffs. Thus, Sgt. Kenny may have directly inflicted the 

injury. And second, an officer may be directly liable under 

section 1983 where he fails to intervene when a constitutional 

violation by another officer takes place in his presence. Smith v. 

Mensinger, 293 F.3d 641, 650-51 (3d Cir. 2002). This potential 

liability for failing to intervene does not depend on the ranks of 

the officers in question; the duty to intervene applies whether it 

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is a superior officer, a lower ranked officer, or an officer of the 

same rank. Id. at 651. “However, an officer is only liable if 

there is a realistic and reasonable opportunity to intervene.” Id. 

The Third Circuit has determined that this duty to intervene was 

clearly established by 1995. Garbacik v. Janson, 111 Fed.Appx. 91, 

94 (3d Cir. 2004) (“[W]e clarified in 1995 that liability will lie 

if an officer ‘had knowledge of and acquiesced in’ a § 1983 

violation.” (quoting Baker, 50 F.3d at 1190-91)).

Sgt. Kenny and Jacques were present when Canales was subjected 

to the arguably unconstitutional conduct. “If so, each defendant 

may have had actual knowledge of the treatment of [the] plaintiff 

by the other officers.” See Christian, 512 Fed.Appx. at 245. The 

Court finds no evidence that Sgt. Kenny and Jacques attempted to 

intervene in the treatment of Canales, which “does not rule out 

possible acquiescence.” See id. Thus, there is a dispute of 

material fact as to who inflicted the excessive force, whether Sgt. 

Kenny and/or Jacques had knowledge of the excessive use of force by 

the plain-clothes officer, and whether they had a “realistic and 

reasonable opportunity to intervene.” See Smith, 293 F.3d at 651. 

Therefore, Sgt. Kenny and Jacques are not entitled to qualified 

immunity on the claim of excessive force.

For these reasons, the Court will deny summary judgment on the 

excessive force claim of Plaintiff Canales as to Defendants Sgt. 

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Kenny and Jacques. As there is no evidence of excessive force by 

any other defendants, the Court will grant summary judgment as to 

all the other individual defendants.

e. Equal Protection Claims

Plaintiffs also allege that Township Defendants violated their 

right to “equal protection of the law.” (Am. Compl. at ¶ 34.) The 

basis of this claim appears to be that they were racially profiled. 

They have argued that the only thing they had in common with the 

suspect was their race –- African American. (Pls.’ Br. in Opp’n 

Mot. for Summ. J. at 7.)

“To make an equal protection claim in the profiling context, 

[the plaintiff is] required to prove that the actions of [law 

enforcement] (1) had a discriminatory effect and (2) were motivated 

by a discriminatory purpose.” Bradley v. United States, 299 F.3d 

197, 205-06 (3d Cir. 2002). Proof of discriminatory effect 

requires proof that the plaintiff is a member of a protected class 

and that he “was treated differently from similarly situated 

individuals in an unprotected class.” Id. at 206. In some cases, 

discriminatory effect may be shown by “submitting statistical 

evidence of bias.” Id.

The record cannot support Plaintiffs’ equal protection claim 

on the basis of racial profiling. While it undisputed that 

Plaintiffs, as African Americans, are members of a protected class, 

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see id., there is no evidence that they were treated any 

differently than similarly situated members of an unprotected 

class. There is absolutely no evidence that had the suspect been a 

white male, the police would have continued to stop African 

American men leaving the vicinity of the Hotel instead of stopping 

white men. See Alvin v. Calabrese, 455 Fed.Appx. 171, 177-78 (3d 

Cir. 2011). Moreover, Plaintiffs have not submitted any 

statistical evidence that could support their claim. Therefore,

the Court will grant summary judgment on the equal protection 

claim.

2. Claims Against the Municipality

Plaintiffs have asserted various claims against Toms River in 

this matter based on –- inter alia -– failure to exercise due care;

failure to properly train, discipline, restrain, and control 

employees; and failure to take adequate precautions in the hiring 

and retention of employees. (See, e.g., Am. Compl. at ¶¶ 41, 45-

47.) They allege that this demonstrates “a policy of condoning

misconduct” and that, “[g]iven the incident of January 14, 2011 

involving Officer Christopher Matlosz and the reaction to same by 

police officers, special training, supervision and control should 

have been employed to prevent African Americans from being 

subjected to inappropriate arrests and searches.” (Id. at ¶¶ 45-

46.)

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Following discovery, Plaintiffs cannot, beyond mere conclusory 

allegations, establish an official policy, a custom or practice, or 

a failure of decision makers to adequately train employees. See

City of Canton, 489 U.S. at 387; Monell, 436 U.S. at 694. Nor have

Plaintiffs come forward with evidence of a pattern of violations. 

Berg, 219 F.3d at 276. In fact, the record suggests that the 

events of January 15, 2011 were anything but customary for Toms 

River. Numerous law enforcement agencies attempted to coordinate a 

massive manhunt for a suspect who had shot another police officer. 

Viewing the record in the light most favorable to Plaintiffs, 

despite Defendants’ efforts at organization, there was some 

disorder and confusion. Yet Plaintiffs cannot show that this was 

the result of any policy, custom, or failure to train on the part 

of Toms River as opposed to the chaotic circumstances of the day.

At this stage in the litigation, Plaintiffs have not met their 

burden, in response to Township Defendants’ submissions, of 

demonstrating the presence of at least one disputed issue of fact

to support their Monell claims. See Matsushita Elec. Indus. Co., 

Ltd., 475 U.S. at 586–87; Williams, 891 F.2d at 460–61. The Court 

will grant summary judgment on these claims.

3. Conspiracy Claim Under 42 U.S.C. § 1985(3)

Plaintiffs have also asserted a claim for conspiracy under 42 

U.S.C. § 1985(3) against Defendants Sgt. Kenny and Jacques, as well 

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as the unnamed State Police officers, based on the alleged 

excessive use of force against them, most notably against Plaintiff 

Canales. 

Section 1985(3) provides in pertinent part:

If two or more persons in any State or Territory 

conspire . . . , 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; . . . the 

party so injured or deprived may have an action for 

the recovery of damages occasioned by such injury or 

deprivation, against any one or more of the 

conspirators.

An essential element under section 1985(3) is the existence of 

a conspiracy. See Farber v. City of Paterson, 440 F.3d 131, 

134 (3d Cir. 2006) (citing United Bhd. of Carpenters & Joiners 

v. Scott, 463 U.S. 825, 828-29 (1983)). “To survive a motion 

for summary judgment on [a] section 1985(3) claim, [the 

plaintiff is] required to put forward facts that would allow a 

reasonable factfinder to conclude that [the defendants] formed 

a conspiracy to deprive him of his rights.” Estate of Oliva 

ex rel. McHugh v. New Jersey, 604 F.3d 788, 802 (3d Cir. 

2010). “[D]irect evidence of conspiracy is rarely available 

and . . . the existence of a conspiracy must usually be 

inferred from the circumstances.” Maxberry v. Sallie Mae 

Educ. Loans, 532 Fed.Appx. 73, 76 (3d Cir. 2013) (quoting 

Capogrosso v. Supreme Ct. of N.J., 588 F.3d 180, 184 (3d Cir. 

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2009)), cert. denied, No. 13-7339, 2014 WL 210696 (U.S. Jan. 

21, 2014). Nonetheless, there must be “some factual basis to 

support the existence of the elements of a conspiracy: 

agreement and concerted action.” Id. (quoting Capogrosso, 588 

F.3d at 185).

The record is devoid of any evidence of direct or 

circumstantial evidence of any conspiracy on the part of Sgt. 

Kenny, Jacques and the plain-clothes officers. See Livingston 

v. Borough of Edgewood, 430 Fed.Appx. 172, 178-79 (3d Cir. 

2011) (affirming lower court’s dismissal of conspiracy claims 

where there was “insufficient evidence in the record to 

establish the requisite ‘meeting of the minds,’ and therefore, 

the existence of a conspiracy,” since the plaintiff failed to 

proffer direct or circumstantial evidence “sufficient to a 

reasonable finding of conspiratorial agreement or concerted 

efforts” by the defendants). Therefore, the Court will grant 

summary judgment to Defendants on the conspiracy claim.

4. State Law Claims

Plaintiffs have also asserted various state law claims. The 

claims against Toms River, include: negligence under a theory of 

respondeat superior; negligence under theories of failure to train, 

supervise, discipline, and control the individual defendants; 

negligent hiring, retention, and deployment of dangerous employees; 

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malicious prosecution; and false arrest. (Am. Compl. at ¶¶ 53-67.) 

Plaintiffs assert claims for false arrest and malicious prosecution 

against all the remaining individual defendants and additionally 

allege intentional and negligent assault against Sgt. Kenny and 

Jacques. (Id. at ¶¶ 48-52, 68-72.)

These claims against Toms River and its employees are subject 

to the limitations of the New Jersey Tort Claims Act (hereinafter 

“Act”), N.J.S.A. 59:1-1 et seq. See N.J.S.A. 59:1-2. That Act 

provides, in part, that “[n]o action shall be brought against a 

public entity or public employee . . . unless the claim upon which 

it is based shall have been presented in accordance with the 

procedure set forth in this chapter.” N.J.S.A. 59:8-3. The Act 

requires that, prior to filing a complaint in court, a prospective 

plaintiff file a claim with either the Attorney General or the 

department/agency responsible for the injury that details the 

circumstances and the nature of the injury caused by the public 

entity or its employees. N.J.S.A. 59:8-4 to 59:8-7. This notice 

of claim “shall be presented as provided in this chapter not later 

than the 90th day after accrual of the cause of action.” N.J.S.A. 

59:8-8. The accrual date is generally the date on which the 

alleged tort was committed. Beauchamp v. Amedio, 164 N.J. 111, 117 

(2000).

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The filing of a timely notice of claim as a precondition to 

filing a lawsuit is a jurisdictional requirement. See Madej v. 

Doe, 194 N.J. Super. 580, 588-89 (Super. Ct. 1984). The

requirement applies to claims based on negligence as well as 

intentional torts. Velez v. City of Jersey City, 180 N.J. 284, 

294-95 (2004). The legislative goals underlying the notice 

requirement are:

(1) to allow the public entity at least six months for 

administrative review with the opportunity to settle 

meritorious claims prior to the bringing of suit; (2) to 

provide the public entity with prompt notification of a

claim in order to adequately investigate the facts and 

prepare a defense; (3) to afford the public entity a 

chance to correct the conditions or practices which gave 

rise to the claim; and (4) inform the State in advance 

as to the indebtedness or liability that it may be 

expected to meet.

Beauchamp, 164 N.J. at 121-22 (internal quotation marks and 

citations omitted). In order to serve these goals, the Act only 

allows the claimant to file suit “[a]fter the expiration of six 

months from the date notice of claim is received.” N.J.S.A. 59:8-

8.

The record here suggests that Plaintiffs did not satisfy the 

procedural requirements of the Act. (See Twp. Defs.’ Answer, 

Cross-Claims, & Counterclaim, at Affirmative Defenses ¶¶ 12-13.) 

Plaintiffs’ claims accrued on January 15, 2011, the date of the 

underlying conduct, and thus, such notices of claims should have 

been and were filed by mid-April 2011. The notice of claims were 

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filed by Plaintiffs with the Township of Toms River and the Toms 

River Police Department as follows: by Canales on January 31, 2011; 

by Valcourt on February 28, 2011; and by Williams on March 22, 

2011. (See dkt. entry no. 22, Pls.’ Br. in Opp’n to Ocean Cnty. 

Prosecutor’s Office Mot. to Dismiss, Ex. A, Notices of Claims.) 

However, Plaintiffs did not wait the requisite six months before 

initiating a suit in this Court. They initiated the suit on June 

1, 2011, just over two months after the last plaintiff, Williams, 

filed his notice of claim and only four months after the first 

plaintiff, Canales, filed his notice of claim. (See dkt. entry no. 

1.) Thus, the procedure dictated by the Act was not followed, and 

Defendants’ Motion for Summary Judgment will be granted as to 

Plaintiffs’ state law claims.

7

VI. CONCLUSION

For the reasons stated, and for good cause showing, the Court 

will (1) grant the State Police’s Motion for Summary Judgment in 

its entirety as to all direct claims and cross-claims; (2) deny the 

Township Defendants’ Motion for Summary Judgment without prejudice

with respect to the excessive force claims by Plaintiff Canales 

against Sgt. Kenny and Jacques under section 1983; (3) grant the 

 

7 This grant of summary judgment is without prejudice. If 

Plaintiffs are able to demonstrate compliance with the Act to the 

Court, the Court is amenable to reconsidering this grant. However, 

the Court cautions that if the parties revisit this issue, the 

parties must adequately brief the issues relating to these state 

law claims.

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Township Defendants’ Motion for Summary Judgment without prejudice 

on the state law claims; and (4) grant the remainder of the 

Township Defendants’ Motion for Summary Judgment. The Court will 

issue an appropriate order and judgment.

 s/ Mary L. Cooper 

MARY L. COOPER

United States District Judge

Dated: February 20, 2014

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