Abbott v. Atl. City, Civil Action No. 11-4851

CourtUnited States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
Writing for the CourtHon. Joseph H. Rodriguez
PartiesRhonda Abbott, Plaintiff, v. Atlantic City, et. al. Defendants.
Docket NumberCivil Action No. 11-4851
Decision Date27 March 2017

Rhonda Abbott, Plaintiff,
Atlantic City, et.
al. Defendants.

Civil Action No. 11-4851


March 27, 2017

Hon. Joseph H. Rodriguez


This matter comes before the court Defendants' Motion for Summary Judgment. The Court has considered the written submissions of the parties and the arguments advanced orally at the February 26, 2015 hearing in this matter. During that hearing, counsel for Plaintiff made several concessions that counsel attempted to retract by way of letter dated March 11, 2015. Plaintiff has filed additional submissions, including one on May 13, 2015 which have been considered.

I. Background

Plaintiff Rhonda Abbott, who is hearing impaired, alleges that the City of Atlantic City, several Atlantic City police officers, and the Director of Gardner's Basin, violated her rights under the American with Disabilities Act ("ADA"), the New Jersey Law Against Discrimination ("NJLAD"), and the Fourth and Fourteenth Amendment of the United States Constitution.

On August 26, 2009, Plaintiff claims she attempted to visit the Gardner's Basin area of Atlantic City New Jersey. Plaintiff utilizes a service dog.1 She claims she was

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denied access to the Atlantic City Aquarium and the police were called. Then, Plaintiff went to the Back Bay Ale House where she claims that she was harassed by the staff. Again, the police were called and Plaintiff was arrested by Officers Herrerias and Clayton and charged with disorderly conduct and resisting arrest. Ex. C.

During Plaintiff's arrest and transport, Officer Herrerias claims that Plaintiff purposefully spit phlegm on him. Herrerias Dep. 13-15. As a result, he placed a see-through mesh mask over Plaintiff's face to curtail the spitting. Plaintiff claims that the mask was not see through and was fastened around her neck with the strings tied in an overly tight manner, precluding her from using her sight. In addition, she argues that she did not voluntarily spit on Herrerias, but that the expelled phlegm was the product of a summer cold, over which she had no control. See Abbott Dep., p. 182; Pl. Answer to Interrogatories. Plaintiff also claims that, once at the police station, she was struck by several police officers, forcibly handled, and made to walk without assistance with the mask on.

Plaintiff's Complaint is unclear as to which claims she asserts against each of the Defendants and it fails to detail the nature of the violation as to each defendant. Listed in the caption of the Complaint as Defendants are the City of Atlantic City ("City"), Atlantic City Police Department ("Police Department"), Police Officer Heidi Clayton ("Clayton"), Police Officer R. Bouffard ("Bouffard"), Police Officer William Herrerias ("Herrerias"), Police Officer H. Stanton ("Stanton"), Chief of Police John Mooney III "Mooney"), Jack Keith, as the Executive Director Atlantic City Historic Waterfront Foundation ("Keith"), and John Does A-Z. See Complaint, generally. The Complaint

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itself, never identifies Officer Stanton as a Defendant in the "Parties" section, but refers to him as an actor, but not a defendant, in Count VIII. Id.

The Complaint alleges eight counts, each with vague description. Count I alleges claims under the NJLAD, the "federal Americans with Disabilities Act[,]" and Rehabilitation Act against the City, the Police Department, Keith, Clayton, Bouffard, and Herrerias. Id., ¶¶8-12. Count II alleges that the City, the Police Department and Clayton, Bouffard, and Herrerias deprived Plaintiff "of her freedom and liberty without proper justification" in violation of the NJLAD, "Federal Rehabilitation Act, 42 U.S.C. §1983," and the ADA. Id. at ¶¶13-15. Count III alleges that the City, the Police Department and "aforementioned police officers" deprived Plaintiff of her rights under the Federal and State Constitutions, "including but not limited to the LAD, federal Americans with Disabilities Act, Rehabilitation Act, and 42 U.S.C. sec. 1983." Id. at 17. Count IV alleges violations of the "NJ LAD, federal ADA, Rehabilitation Act, and 42 sec. 1983." Id. at 21. Count IV claims that the City, the Police Department, Officer Herrerias and "others" placed a mask over Plaintiff's face causing physical and mental injury. Id. ¶¶19-21. Count V appears to allege a failure to train claim; in it Plaintiff states that the City, the Police Department and Mooney "in his official capacity, are responsible for the aforementioned civil rights violations that the employees of Gardner's Basin and officers of the Atlantic City Police Department were not properly trained in how to interact with the hearing impaired, the use of service dogs, and the rights of the disabled." Id. at ¶23. Count VI alleges claims against the John Doe police officers as plead in Counts I through IV. Id. at ¶¶24-25. Count VII appears to allege a claim under the ADA, Rehabilitation Act and/or Violations of the Fourth and/or Fourteenth Amendment(s) pursuant to

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§1983, stating the City, the Police Department, "and its Officers gave no effective communication despite Plaintiff's disability." Id. at ¶27. Finally, Count VIII incorporates the preceding counts and claims that "Officer Stanton and or John Doe(s) fictitious names of Defendants A-Z physically struck Plaintiff." Id. at ¶ 30.

During oral argument, the Court noted the confusion caused by the poorly drafted Complaint and engaged Plaintiff's counsel in a discussion of the relevant claims as to each Defendant. The Court incorporates that discussion and counsel's explanation here. In addition, the Court directed Plaintiff to provide additional briefing as to the concessions made on the record. (See Dkt. No. 86).

Counsel filed a supplemental brief and appends a chart to his brief, to further illustrate the nature of the claim(s) alleged as to each defendant. (See Dkt. No. 88). According to Plaintiff's chart, she alleges claims under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 791, Title II of the Americans with Disabilities Act, 42 U.S.C. § 12131 ("ADA"), and the New Jersey Law Against Discrimination, N.J. Stat. Ann. § 10:5-1 ("NJLAD"), violations of the Civil Rights Act of 1871, and 42 U.S.C. § 1983, against the City, the Police Department, the "Aquarium," Keith, Clayton, Bouffard, Herrerias, and Mooney. In addition, Plaintiff alleges claims of False Arrest and Imprisonment, Malicious Prosecution, violations of the Fourth and Fourteenth Amendments and 42 U.S.C. §1983 against Defendants Clayton, Bouffard, Herrerias. Plaintiff alleges a claim of Excessive Force against Herrerias and a Failure to Train claim against the City, the Police Department, and the "Aquarium."

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II. Summary Judgment Standard

A court will grant a motion for summary judgment if there is no genuine issue of material fact and if, viewing the facts in the light most favorable to the non-moving party, the moving party is entitled to judgment as a matter of law. Pearson v. Component Tech. Corp., 247 F.3d 471, 482 n.1 (3d Cir. 2001) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L.Ed.2d 265 (1986)); accord Fed. R. Civ. P. 56 (c). Thus, this Court will enter summary judgment only when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56 (c).

An issue is "genuine" if supported by evidence such that a reasonable jury could return a verdict in the nonmoving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is "material" if, under the governing substantive law, a dispute about the fact might affect the outcome of the suit. Id. In determining whether a genuine issue of material fact exists, the court must view the facts and all reasonable inferences drawn from those facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L.Ed.2d 538 (1986).

Initially, the moving party has the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has met this burden, the nonmoving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id.; Maidenbaum v. Bally's Park Place, Inc., 870 F.

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Supp. 1254, 1258 (D.N.J. 1994). Thus, to withstand a properly supported motion for summary judgment, the nonmoving party must identify specific facts and affirmative evidence that contradict those offered by the moving party. Andersen, 477 U.S. at 256-57. Indeed, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322.

In deciding the merits of a party's motion for summary judgment, the court's role is not to evaluate the evidence and decide the truth of the matter, but to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. Credibility determinations are the province of the finder of fact. Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).

III. Analysis

As a preliminary matter, summary judgment is granted as to the claims against unnamed John Does A-Z because they have not been identified and discovery is complete.2 Summary judgment is also granted as to as the claims pursuant to §1983 alleged against Mooney, Clayton, Herrerias, Stanton, and Bouffard in their official capacity. It is well established that "neither a State nor its officials acting under...

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