Carpenter v. Chard, Civil Action No. 18-10959

• Decision Date: 30 September 2020
• Docket Number: Civil Action No. 18-10959
• Citation: 492 F.Supp.3d 321
• Parties: David J. CARPENTER and Susan Carpenter, h/w, Plaintiffs, v. Patrolman Albert CHARD, Jr., Chief of Police Jody Farabella, and City of Millville, New Jersey, Through Its Police Department, Defendants.
• Court: U.S. District Court — District of New Jersey

492 F.Supp.3d 321

David J. CARPENTER and Susan Carpenter, h/w, Plaintiffs,

v.Patrolman Albert CHARD, Jr., Chief of Police Jody Farabella, and City of Millville, New Jersey, Through Its Police Department, Defendants.

Civil Action No. 18-10959

United States District Court, D. New Jersey.

Signed September 30, 2020

Charles I. Coant, O'Neill & Coant, P.C., Vineland, NJ, Richard H. Maurer, Law Offices of Richard Maurer, Philadelphia, PA, for Plaintiffs.

Steven M. Horn, Thomas B. Reynolds, Reynolds & Horn, P.C. A Professional Corporation, Marlton, NJ, for Defendants.

OPINION

JOSEPH H. RODRIGUEZ, United States District Judge

This matter comes before the Court upon the Motion for Summary Judgment filed by Plaintiffs, Mr. David J. Carpenter ("Carpenter") and Mrs. Susan Carpenter [Dkt. No. 29,] and the Motion for Summary Judgment filed by Defendants, Patrolman Albert Chard, Jr., Chief of Police Jody Farabella, and City of Millville, New Jersey, Through Its Police Department. [Dkt. No. 30.] The Court has reviewed the written submissions of the parties and considered the arguments advanced at the hearing on September 22, 2020. For the reasons set forth below, as well as those set forth on the record during the hearing, Plaintiffs’ Motion [Dkt. No. 29] will be granted and Defendants’ Motion [Dkt. No. 30] will be denied.

I. Background

On January 22, 2018, at approximately 3:16 p.m., uniformed Millville Police Chard ("Chard") was on foot directing traffic at the intersection of High and Foundry Streets, in the City of Millville, New Jersey. [Dkt. No. 1 "Complaint" at Exhibit A "Investigation Report."] Chard observed Carpenter operating a red Ford pickup truck. [Id. ] As Carpenter drove, he "filmed the police action on his cellphone." [Id. ] Chard made a downward motion for Carpenter to put down his phone. [Id. ] These facts are not contested.

In the video Carpenter was capturing at the time of the incident, Carpenter can be heard saying, "What? No, no, no, I don't have to," in response to Chard's motion. [Dkt. No. 30-3 at Exhibit 1.] After which, the video captures a sound and a potential image of Chard attempting to open Carpenter's vehicle on the front passenger-side door. [Id. ] Chard does not contest that he was attempting to open the door See Exhibit K (Investigation Report) at 2. Carpenter can be heard saying, "[o]kay, okay," before stopping his truck. [Dkt. No. 30-3 at Exhibit 1.] Chard then appears at the driver's side window and both he and Carpenter appear to be distressed. [Id. ] Chard orders Carpenter to "put the phone down" and "turn the car off." [Id. ] Carpenter states, "Hey, you want a lawsuit?" to which Chard replies, "You want to get arrested?" As tensions increase, Carpenter called 9-1-1 from inside his vehicle. [Id. ] Carpenter was soon after notified he would be placed under arrest. [See Investigation Report.]

Following the incident, Chard drafted a police investigation report which in part stated:

The defendant was arrested, processed, and charged on summons 0610/S 2018 000134 for 2C:29-1A (Obstruction); 2C:33-1E (Calling 911 without the need for 911 service); and 2C:12-1C (a) (Assault by Auto). The defendant was released following processing. A VINE form was filled out along with the CJP paperwork.

The following traffic summons were issued as well:

214402 39:4-97.3 Cell Phone Use While Driving

214403 39:4-80 Failure to Obey Police Officer Directing Traffic

214404 39:4-126 Failure to Use Proper Turn Signal

214405 39:4-97 Careless Driving.

[See Investigation Report.]

The Police Report describes an incident where Chard was purposefully dragged by Carpenter's vehicle: "As soon as I grabbed the handle the driver attempted to pull away with my hand still attached. I was unable to let go fast enough and was dragged across High Street to the east near the southeast corner." See Exhibit K (Investigation Report) at 2. Chard, then submitted a signed Affidavit of Probable Cause. [See Dkt. No. 30-3 at Exhibit 4, "Affidavit of Probable Cause."] The Affidavit provided the factual basis of the charges, including the description of the traffic incident, the circumstances of the offense of Carpenter's 9-1-1 call to request a supervisor for alleged harassment by police, and Chard's statement of the extent of the injury he sustained. [Id. at 9-10.]

On February 7, 2018, Chard was called to testify before a grand jury by the Cumberland County Prosecutor's Office. [See Compl. at Exhibit C "Grand Jury Panel Transcript."] Assistant Prosecutor Tonnisen questioned Chard with the following exchange:

Q: While you were holding the door handle, did he drive which dragged you across the street?

A: Yes.

See Exhibit M (Grand Jury Transcript) at 5. Thereafter, the grand jury returned indictments against Carpenter for Aggravated Assault on a Police Officer – Third Degree (N.J.S.A. 2C:12-1b(5)(a)); and Eluding – Third Degree (N.J.S.A. 2C:29-1b). [Id. ]

On April 2, 2018, at a plea and sentencing hearing in the Cumberland County Superior Court, Judge Michael Silvanio accepted a plea agreement. [See Dkt. No. 30-3 at Exhibit 5, "Transcript of April 2, 2018, Superior Court Plea Hearing and Sentence."] All of the charges, except the charge for Cell Phone Use While Driving, were dismissed by the State in exchange for the plea because the prosecutor found that he had "no factual" support for the remaining charges. [See Exhibit I (Transcript) at 4; Exhibit N (Plea Form). This is the colloquy between the prosecute and the court as to the merits of the plea agreement:

MR. HERNDON: However, with respect to the Indictment, we did look at several videos, including the Defendant's cell phone video that he was using while driving, filming the incident. We also did pull several surveillance videos after that. Had made a determination, me and my supervisors, that after viewing the video, that there were no indictable level offenses to which Carpenter should have been indicted for. I believe he was indicted for Aggravated Assault on a Law Enforcement Officer as one of the offenses, and again, there was, in the State's view, no factual for that. So we're agreeing to dismiss the Indictment in exchange for Carpenter to plead guilty to the motor vehicle violation of Operating a Cell Phone While Driving a Motor Vehicle.

THE COURT: So the State is moving to dismiss the Indictment?

MR. HERNDON: Yes, Your Honor.

[See Exhibit I at 4-5].

As a result, Carpenter pleaded guilty to the traffic offense of operating his motor vehicle while using a cellphone in violation of N.J.S.A. 39:4-97.3. [Id. ] The remaining criminal and traffic charges were dismissed, but Carpenter was fined $400 plus court costs. As a result of being arrested and charged, he lost his job, health insurance, and suffered other ailments because of the public humiliation. [Id. ]

Plaintiffs filed the Complaint [Dkt. No. 1] on June 22, 2018 alleging five counts: Counts I and II are constitutional claims against Chard (I) and a Monell Claim against Chief Farabella and the City of Millville (II), Count III alleges a claim under the NJCRA, Count IV Negligence and respondeat superior, and Count V is loss of consortium. Plaintiffs’ constitutional claims against Chard are plead under the Fourth and Fourteenth, but do not clearly identify a right other than "Carpenter had a right not to be indicted based on perjured testimony." Plaintiff claims under Monell allege that the City has a custom of treating officers involved in aggressive police actions with little or no meaningful consequence for the offending police officer. Defendants filed a motion for summary judgment [Dkt. No. 30] on January 9, 2020.

Chard filed a counterclaim seeking personal injury damages because Carpenter assaulted him with his automobile. Plaintiff moves for summary judgment, [Dkt. No. 29] on Chard's personal injury counterclaim, on the grounds that Chard is beholden to the ‘verbal threshold’ and because Chard has not suffered an injury. Chard claims he sustained compensable personal injury as a result of actionable conduct by Carpenter and, based on the underlying facts and circumstances of this matter, Chard's Counterclaim for damages is not subject to the ‘verbal threshold’ defense.

II. Standard of Review

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.; ...