Ference v. Township of Hamilton, Civil Action No. 05-CV-05988 (FLW).

• Decision Date: 06 February 2008
• Docket Number: Civil Action No. 05-CV-05988 (FLW).
• Citation: 538 F.Supp.2d 785
• Parties: FERENCE, et al., Plaintiffs, v. TOWNSHIP OF HAMILTON, et al., Defendants.
• Court: U.S. District Court — District of New Jersey

538 F.Supp.2d 785

FERENCE, et al., Plaintiffs, v.TOWNSHIP OF HAMILTON, et al., Defendants.

Civil Action No. 05-CV-05988 (FLW).

United States District Court, D. New Jersey.

February 6, 2008.

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Scott Alan Krasny, Furlong & Krasny, Esqs., West Trenton, NJ, for Plaintiffs.

Paul R. Adezio, Hamilton Township Department of Law, Hamilton, NJ, Ashley Hope Auerbach, Mark W. Catanzaro, Law Offices of Mark Catanzaro Blason IV, Moorestown, NJ, for Defendants.

Opinion

WOLFSON, District Judge.

Presently before the Court is a motion for summary judgment by defendants, the Township of Hamilton, the Hamilton Police Department(collectively the "Municipal Defendants") and Officer Robert Bilobran("Bilobran"), with respect to the 42 U.S.C. § 1983 claims of PlaintiffLouis Ference("Plaintiff" or "Mr. Ference").¹This action arises out of the actions allegedly taken by Bilobran and other police officers after the breakout of an argument in the lobby of the Hamilton Township police station over the relinquishment of Plaintiff's granddaughter, T.A.F., from her paternal grandparents to her mother, Alicia Tazza("Tazza").Plaintiffssection 1983 claims are based on malicious prosecution, retaliatory prosecution, abuse of process, false arrest, false imprisonment and excessive force.

For the following reasons, the Municipal Defendants are entitled to summary judgment on all of Plaintiffs claims.Further, Bilobran is entitled to summary judgment on all of Plaintiff's claims except his section 1983 claim of excessive force.

I.Construing the Record for Purposes of Evaluating Defendants' Motions

Since defendants move for summary judgment, the Court will construe the record in the light most favorable to Plaintiff.²Green v. New Jersey State Police,246 Fed.Appx. 158, 159(3d Cir.2007).The incident at issue in this case was the subject of proceedings before the Hamilton Township Municipal Court, and thus testimony given before that court and its findings are an important part of the record.³Further, a videotape of the incident was used in the municipal court trial, and the video is repeatedly referenced in the trial transcripts submitted by Plaintiff.See Krasny Certification, Exhibits A-D.Indeed, Plaintiff argues that "with a video tape of the incident available . . . the facts in dispute can be judged by the jury."Plaintiffs Opposition Brief, 14.The videotape is also likely the best available evidence of the events at issue in this case.Thus, the videotape will be considered as part of the record.⁴

The above requires the Court to make two caveats to the usual rule that, on a summary judgment motion, the Court must construe the record in the light most favorable to the nonmoving party.First, the Court will not draw inferences in Plaintiffs favor that are inconsistent with the events depicted in the videotape of the incident.SeeScott v. Harris,___ U.S. ___, ___, 127 S.Ct. 1769, 1776, 167 L.Ed.2d 686(2007)("When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment . . . [and thus,]the Court of Appeals should not have relied on such visible fiction; it should have viewed the facts in the light depicted by the videotape").

Second, in accordance with Heck v. Humphrey,512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383(1994), the Court will not draw inferences in Plaintiffs favor that would necessarily negate the municipal court's judgment that Plaintiff was guilty of violating section 86-3 of the Hamilton Code.The Court will draw inferences in Plaintiffs favor only insofar as they do not undermine the basis of the municipal court's findings.Plaintiff argues that Heck should not apply and that the Court should not consider the municipal judgment against him based on the doctrine of res judicata and limitations imposed by the Federal Rules of Evidence.However, the Court must consider Plaintiffs conviction in accordance with the Third Circuit's interpretation of Heck in Gilles v. Davis,427 F.3d 197(3d Cir.2005).In Gilles,the court affirmed the principle that "[u]nder Heck,a § 1983 action that impugns the validity of the plaintiffs underlying conviction cannot be maintained unless the conviction has been reversed on direct appeal or impaired by collateral proceedings."Gilles,427 F.3d at 209.The court recognized "that concurring and dissenting opinions in Spencer v. Kemna,523 U.S. 1, 118 S.Ct. 978, 140 L.Ed.2d 43(1998), question the applicability of Heck to an individual, such as [plaintiff], who has no recourse under the habeas statute."Id. at 209-10(citations omitted).Notwithstanding the fact that the plaintiff had no recourse under habeas corpus, the court concluded that "these opinions do not affect our conclusion that Heck applies to [plaintiff's] claims."Id. at 210.I note, however, that other circuits are not in accord.See, e.g., Powers v. Hamilton County Defender Com'n,501 F.3d 592, 603(6th Cir.2007)("We are persuaded by the logic of those circuits that have held that Heck's favorable-termination requirement cannot be imposed against § 1983plaintiffs who lack a habeas option for the vindication of their federal rights").

As explained below, Plaintiff was convicted of violating a municipal ordinance of the Township of Hamilton and assessed a minimal fine and court costs.Adezio Certification, Exhibit D.He did not appeal his conviction.Adezio Certification, Exhibit A, 70:1-2.Similar to the plaintiff in Gilles, who entered into Pennsylvania's Accelerated Rehabilitative Disposition program, whereby, after a probationary period his conviction was expunged, Plaintiff here had no recourse to habeas corpus; there was no detention to contest.Nonetheless, pursuant to Gilles, Heck still applies to Plaintiffssection 1983 claims.

Further, the fact that Plaintiff was found guilty of violating a municipal ordinance does not affect the analysis under Heck.First, under New Jersey law, "prosecutions for violations of municipal ordinances are criminal in nature."State v. DeAngelo,396 N.J.Super. 23, 40, 930 A.2d 1236(App.Div.2007)(citation omitted);see alsoState, Tp. Of Pennsauken v. Schad, 160 N.J. 156, 171, 733 A.2d 1159(1999)("[M]unicipal court proceedings to prosecute violations of ordinances are essentially criminal in nature")(citation omitted).Moreover, to find Plaintiff guilty, the municipal court was required to find beyond a reasonable doubt that Plaintiff violated section 86-3.Krasny Certification, Exhibit D, 60 ("[T]here must be a proof beyond a reasonable doubt [,] these are criminal matters, and therefore, any lesser standard of proof provided by the State should and would result in an acquittal on the charges pending").Further, a court in this district has recently applied Heck to bar a constitutional claim based on a conviction of a New Jersey disorderly persons offense, which, like a conviction for a municipal ordinance violation, is not a "crime" within the meaning of the New Jersey Constitution.N.J.S.A. 2C:1-4.a.In Garrison v. Porch,Docket No. 04-1114, 2007 WL 776799, *3 n. 4(D.N.J.Mar. 9, 2007), the court explained: "[Plaintiff] argues that Heck does not bar his constitutional claims because his guilty pleas were for disorderly persons offenses, which are not `crimes' in the State of New Jersey.(Pl.'s Br.at 5-6.)[Plaintiffs] argument is untenable.The Third Circuit has held that pleading guilty to a disorderly persons conduct charge is sufficient to bar a subsequent § 1983 claim."(citingGilles,427 F.3d at 209 n. 8.)Thus, by analogy, Heck's rule, that a section 1983 claim that would necessarily impugn an underlying conviction will be barred unless there is "termination of the prior criminal proceeding in favor of the accused,"Gilles,427 F.3d at 210(quotingHeck,512 U.S. at 485, 114 S.Ct. 2364), applies to Plaintiffs conviction for violating a municipal ordinance.

Second, the purposes that the Gilles court describes as underpinning Heck,"to avoid parallel litigation of probable cause and guilt" and to prevent "the claimant from succeeding in a tort action after having been convicted in the underlying criminal prosecution, which would run counter to the judicial policy against creating two conflicting resolutions arising from the same transaction," are applicable here.Id. at 209(citingHeck,512 U.S. at 484, 114 S.Ct. 2364).If Heck did not apply to the case at bar, the Court would have to essentially retry the charge against Plaintiff for violating section 86-3 of the Hamilton Code in the course of evaluating his section 1983 claims.

Third, although they did not specifically discuss the matter, other federal courts, assessing its applicability, have applied Heck to section 1983 claims that would impugn the validity of a conviction under a municipal ordinance.SeeSwiecicki v. Delgado,463 F.3d 489, 495(6th Cir.2006)(applying the Heck rule for tolling the statute of limitations where plaintiff was convicted of violating the Cleveland Codified Ordinance, and stating "if [plaintiff] had brought his excessive-force claim before such reversal [of his conviction], the district court would have had to dismiss it as Heck-barred")⁵(citingHeck);Cordova v. City of Reno,920 F.Supp. 135, 137(D.Nev.1996)(plaintiffssection 1983 claim barred by Heck because it would "necessarily imply the invalidity of [plaintiffs] conviction under th[e] ordinance");Acevedo v. City of O'Fallon,Docket No. 07-859, 2007 WL 1541881, *3(E.D.Mo.May 24, 2007)(applyingHeck to bar plaintiffs claims based upon violations of a municipal ordinance).

Thus, while resolving all factual disputes in favor of Plaintiff, the Court will not draw inferences that contradict the events depicted in the video of the incident or, pursuant to Heck,...