Gurvey v. Twp. of Montclair N.J.

• Decision Date: 31 March 2022
• Docket Number: Civ. 19-17525 (KM)(ESK)
• Parties: HAROLD SCOTT GURVEY PLAINTIFF, v. TOWNSHIP OF MONTCLAIR NEW JERSEY; MONTCLAIR POLICE DEPARTMENT; CAPTAIN EMIL DUL; CAPTAIN SCOTT BUEHLER; LIEUTENANT ROBERT ROMITO OFFICER THOMAS PATTI; OFFICER ROBERT HANSFIELD; OFFICER KEITH LUMPKIN; OFFICER GLENDA RIVERA; POLICE DOES 1-10, SUED INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES DEFENDANTS
• Court: U.S. District Court — District of New Jersey

HAROLD SCOTT GURVEY PLAINTIFF,
v.
TOWNSHIP OF MONTCLAIR NEW JERSEY; MONTCLAIR POLICE DEPARTMENT; CAPTAIN EMIL DUL; CAPTAIN SCOTT BUEHLER; LIEUTENANT ROBERT ROMITO OFFICER THOMAS PATTI; OFFICER ROBERT HANSFIELD; OFFICER KEITH LUMPKIN; OFFICER GLENDA RIVERA; POLICE DOES 1-10, SUED INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES DEFENDANTS

Civ. No. 19-17525 (KM)(ESK)

United States District Court, D. New Jersey

March 31, 2022

OPINION

KEVIN MCNULTY UNITED STATES DISTRICT JUDGE

Plaintiff Harold Scott Gurvey alleges that officers of the Montclair Police Department (the “Police Department”) violated his constitutional rights when they entered his residence without a warrant, which entry was followed by an unwanted psychiatric examination upon suspicion that he was suicidal. Accordingly, Gurvey, proceeding pro se, asserts claims against the Township of Montclair, New Jersey (“Montclair”), the Police Department, ^[1] Captain Emily

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Dul, Captain Scott Buehler, Lieutenant Robert Romito, Officer Thomas Patti, Officer Robert Hansfield, Officer Lumpkin, and Officer Glenda Rivera under 42 U.S.C. § 1983 and New Jersey state law.^[2]

Now before the Court are Defendants' motion for summary judgment and motion to bar Plaintiff's expert reports and testimony (DE 32-1), as well as Gurvey's cross-motion for summary judgment against the Defendants (DE 33-2). For the following reasons, Defendants' motion for summary judgment will be GRANTED IN PART and DENIED IN PART, Defendants' motion to bar Plaintiff's expert reports is DENIED, and Gurvey's cross-motion for summary judgment is DENIED.

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I. BACKGROUND

A. Facts

The following facts are set forth in the parties' submissions; where the parties dispute a factual matter, the dispute is noted.

On August 31, 2018, Dr. Patricia Marino called the Police Department to request a wellness check for Gurvey. (Def. SOMF ¶1.) Dr. Marino reported that she received a call from Mr. Gurvey's spouse, Amy R. Weissbrod Gurvey. (Def. SOMF ¶5.)^[3] According to Dr. Marino, Ms. Gurvey “sounded distressed, erratic, and was calling to request help for her husband, ” who Ms. Gurvey claimed was suicidal. (Def. SOMF ¶¶ 6-7.) Dr. Marino informed the police that she advised Ms. Gurvey to call 911, but Ms. Gurvey replied that the Plaintiff “would shoot somebody” if she called 911 as Dr. Marino advised. (Def. SOMF ¶ 8.) Finally, Dr. Marino told the Police Department that Ms. Gurvey was requesting an appointment for a psychiatrist, that she did not want anyone to come to their residence, and that the Plaintiff “was going to kill himself.” (Def. SOMF ¶9.)^[4]

In response to Dr. Marino's call, the Police Department dispatched squad cars 203 and 217 to Gurvey's home to perform a wellness check. (Def. SOMF ¶11.) Dispatch told the officers that Gurvey was suicidal and could harm whoever came to help. (Def. SOMF ¶ 12.) The responding officers were Captain Dul, Lieutenant Romito, Officer Rivera, Officer Hansford, Officer Patti, and Officer Lumpkin (the “Officers”). (Def. SOMF ¶¶ 13.)

What happened next is in some dispute. Defendants contend that the Officers arrived at Gurvey's home and that Ms. Gurvey refused to open the locked screen door when requested to do so. (Def. SOMF ¶14.) On the other

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hand, Gurvey claims that the Officers met Ms. Gurvey at the front door and that she asked the Officers to wait while she put on a shirt.^[5] (Pl. SOMF ¶12.) At any rate, there is agreement that the door was locked, and that the Officers forced their way in. (Def. SOMF ¶17; Pl. SOMF ¶13.)

At the time the Officers entered the home, Gurvey had just gotten out of the shower. (Def. SOMF ¶18.) The Officers confronted Gurvey in his bedroom, located on the second floor. (Pl. SOMF ¶15.) Gurvey was unaware that the Officers were in his home until he saw them in his bedroom. (DE 32-4, Ex. C, Deposition of Plaintiff Harold Gurvey, T58:24-59:02.)

Upon realizing that the Officers were in his bedroom, Gurvey, who was on the phone, stated: “you ought to call the FBI or something.” (Def. SOMF ¶21.) Gurvey also asked the Officers “what the hell” they were doing in his bedroom. (Def. SOMF ¶22.) The Officers explained to Gurvey that they were responding to a call claiming that he was suicidal and constituted a threat of harm to others, and requesting a wellness check. (Def. SOMF ¶23.) While the

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Officers were fully uniformed, their weapons remained holstered and they never displayed or threatened Gurvey with them. (Def. SOMF ¶20.)

Gurvey attempted to deescalate the situation and told the Officers that he was not a threat. (Def. SOMF ¶24.) Further, he stated that he had no weapons and was unarmed, that there was no danger, that he was “not suicidal, ” and that he was “not going to hurt [him]self or anybody else.” (DE 32-4, Ex. C, Deposition of Plaintiff Harold Gurvey, T66:25-67:04.) Gurvey also demanded to know who made the call to the Police Department. (Def. SOMF ¶24.) The conversation lasted approximately fifteen minutes. (Def. SOMF ¶25.) Lieutenant Romito was of the opinion that Gurvey needed to have a psychological evaluation, based on Dr. Marino's initial phone call to the Police Department and the Officers' observation of Gurvey's behavior. (Def. SOMF ¶26; Def. Opp at 20.) Accordingly, the Police Department called an ambulance to Gurvey's home. (Pl. SOMF ¶ 17.)

The Officers told Gurvey that he could either go to the state psychiatric facility or to Mountainside Hospital for psychiatric examination. (Def. SOMF ¶27.) Gurvey opted for Mountainside Hospital. (Def. SOMF ¶29.) During the encounter, the Officers never threatened, touched, or handcuffed Gurvey, or placed Gurvey in a police squad car. (Def. SOMF ¶28.) The Officers did, however, require that Gurvey be transported to Mountainside Hospital by ambulance for his psychiatric examination. (Pl. SOMF ¶ 18.)

Although the Officers escorted Gurvey to the ambulance, they did not ride with him to Mountainside Hospital. (Def. SOMF ¶31; Pl. SOMF ¶ 19.) Gurvey was evaluated at the hospital for a few hours and then discharged. (Def. SOMF ¶33.) None of the Officers remained at Mountainside Hospital or met Gurvey upon his discharge. (Pl. SOMF ¶20.)

The Police Department filed an incident report on the same day as the incident, August 31, 2018 (the “Incident Report”). (DE 32-4, Ex. E; DE 35-6, Ex. 3.) The Incident Report was authored by Officer Lumpkin and reviewed by Captain Dul and Lieutenant Romito. (DE 32-4, Ex. E; DE 35-6, Ex. 3.) The Incident Report stated, among other things, that “[i]t should be noted that Mr.

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Gurvey has a history of psychological problems.” (Def. SOMF ¶40; DE 32-4, Ex. E; DE 35-6, Ex. 3.)

Gurvey and his wife filed separate internal affairs complaints stemming from their encounter with the Officers. (Def. SOMF ¶¶ 36-37.) The Police Department's Office of Professional Standards conducted an investigation that exonerated the Officers. (Def. SOMF ¶¶ 36-37; Pl. SOMF ¶24.) Further, the Essex County Prosecutor's Office investigated Mr. and Ms. Gurvey's claims and similarly exonerated the Officers. (Def. SOMF ¶¶ 38-39.)

B. Procedural History

Gurvey filed his complaint on August 30, 2019 against Montclair, the Police Department, and the Officers. This pro se Complaint appears to be bringing the following claims:

• Pursuant to Section 1983: (1) unreasonable search and seizure; (2) Monell liability against Montclair; and (3) conspiracy to violate Gurvey's Fourth Amendment rights.^[6]

• Pursuant to New Jersey state tort law: (1) defamation;^[7] (2) false arrest; and (3) false imprisonment.

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• Pursuant to New Jersey criminal law: (1) obstruction of justice; (2) false reporting; and (3) tampering with public records.

(See Compl. ¶¶ 1, 15.)

The Defendants filed their answer on October 10, 2019. (DE 4.) The parties then conducted fact discovery.

Defendants' have filed a motion for summary judgment and motion to bar Plaintiff's expert reports and testimony. (DE 32-1) Gurvey cross-moves for summary judgment against the Defendants. (DE 33-2) The motions are fully briefed and ripe for decision.

II. LEGAL STANDARD - MOTION FOR SUMMARY JUDGMENT

Federal Rule of Civil Procedure 56(a) provides that summary judgment should be granted “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.” See Kreschollek v. S. Stevedoring Co., 223 F.3d 202, 204 (3d Cir. 2000); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A court deciding a motion for summary judgment must construe all facts and inferences in the light most favorable to the nonmoving party. See Boyle v. Cnty. of Allegheny Pennsylvania, 139 F.3d 386, 393 (3d Cir. 1998) (citing Peters v. Delaware River Port Auth. of Pa. & N.J., 16 F.3d 1346, 1349 (3d Cir. 1994)). The moving party bears the burden of establishing that no genuine issue of material fact remains. See Celotex, 477 U.S. at 322-23. “[W]ith respect to an issue on which the nonmoving party bears the burden of proof … the burden on the moving party may be discharged by ‘showing' - that is, pointing out to the district court - that there is an absence of evidence to support the nonmoving party's case.” Id. at 325.

Once the moving party has met this threshold burden, the non-moving party “must do more than simply show that there is some metaphysical doubt as to material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The opposing party must present actual evidence that creates a genuine issue as to a material fact

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for trial. Anderson, 477 U.S. at 248; see also Fed. R. Civ. P. 56(c) (setting forth types of evidence on which nonmoving party must rely to support its assertion that genuine issues of material fact exist).

Unsupported allegations, subjective beliefs, or argument alone, however, cannot forestall summary judgment...