Lozano v. New Jersey
| Decision Date | 29 June 2020 |
| Docket Number | No. 17-cv-6581 (KM)(JBC),17-cv-6581 (KM)(JBC) |
| Parties | GERONIMO LOZANO, Plaintiff, v. STATE OF NEW JERSEY, ELIZABETH POLICE DEPARTMENT, SERGEANT RODNEY DORILUS, OFFICER DAVID HERNANDEZ, POLICE OFFICER TIMOTHY GOLDATE, UNION COUNTY, AND JOHN & JANE DOE 1-10, ABC CORP. 1-10 (fictitious names for persons, firms or corporations presently unknown), Defendants. |
| Court | U.S. District Court — District of New Jersey |
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This action arises from the allegedly unconstitutional arrest, detention, and prosecution of plaintiff Geronimo Lozano by several officers of the Police Department of Elizabeth, New Jersey. Mr. Lozano alleges that the officers arrested and detained him without probable cause, in violation of certain rights afforded to him by the United States Constitution, New Jersey State laws, and common law. On August 15, 2017, Mr. Lozano filed a complaint against the State of New Jersey, the Elizabeth Police Department, Sergeant Rodney Dorilus, Officer David Hernandez, Police Officer Timothy Goldate, Union County, and various fictitious parties in the Superior Court of New Jersey, Union County. Defendants removed the case to this Court pursuant to 28 U.S.C. § 1441. (DE 1). This court has subject-matter jurisdiction over Plaintiff's federal claims under 28 U.S.C. § 1331 and supplemental jurisdiction over pendent state law claims under 28 U.S.C. § 1367. By Consent Order (DE 4), I dismissed Union County as a party defendant.1 Now before the Court are motions for summary judgment filed by Defendants David Hernandez (DE 24), Timothy Goldate (DE 25), Rodney Dorilus (DE 26), and the Elizabeth Police Department (or rather the City of Elizabeth)2 (DE 27). Plaintiff has filed an opposition to Defendants' motions for summary judgment (DE 30), and Defendants have filed separate reply briefs. (See DE 32, 33, 34 and 35.)
For the reasons set forth below, I will grant in part and deny in part the summary judgment motions of Hernandez and Dorilus. (DE 24, 26) I will grant in full the summary judgment motions of Goldate and the City of Elizabeth. (DE 25, 27.)
On these motions for summary judgment, I will construe the facts in the light most favorable to the non-movant, plaintiff Lozano. See Johnson v. Knorr, 477 F.3d 75, 78 (3d Cir. 2007).
The plaintiff, Geronimo Lozano, is a former Marine, discharged from the Corp for medical reasons, and he suffers from a number of injuries and medical impairments. On October 12, 2016, Mr. Lozano was at a Wawa convenience store located in Elizabeth, NJ. (See DE 24, Pl. Depo., Exh. B at 31:15-32:3.) Time stamps on receipts suggest that Mr. Lozano had been eating at the convenience store from approximately 2 AM until 3 AM. (See DE 31-3.) When Defendant Sergeant Dorilus arrived at the Wawa to refuel his car, he saw Mr. Lozano's car parked partly within a handicapped parking space and partly in the adjacent restricted area. (DE 26-3, Exh. C, Dorilus Tr. at 18:4-18; 38:15-20; Id., Exh. D AXON_Body_Video_2016-10-12_0320 at 00:35; 2:09-22.)4 On the dashboard beneath the windshield of Lozano's car, there was a valid handicapped placard which would entitle him to park in a handicapped space. Because the car has tinted windows, permitted for medical reasons, Sgt. Dorilus could not see the handicapped placard as he approached Lozano's vehicle. (Id., Exh. C, Dorilus Tr. 40:18-21.) Upon Sgt. Dorilus's request, Mr. Lozano provided his license and registration, as well as paperwork in connection with his handicap permit and permit for window tints. (See DE 26-3, Exh. D, Axon Body Video 2016-10-12-0314, at 0:00-3:45.) Sgt. Dorilus noticed that Mr. Lozano's vehicle had a Massachusetts license plate, and asked him if he lived in Massachusetts, which Mr. Lozano confirmed. Sgt. Dorilus then asked Mr. Lozano to state his Massachusetts address. (See id.) Mr. Lozano refused, and instead pointed to the address on his license—a bit of gestural sarcasm, apparently—which was already in Sgt. Dorilus's hand. (See id.; see also DE 26-2, Dorlius SMF ¶ 27.) All the while, Defendants Hernandez and Goldate were present. (See id.)
After Sgt. Dorilus confirmed that Plaintiff's license was valid, he asked Mr. Lozano if he had consumed any alcoholic beverages, which Mr. Lozano denied. (DE 26-3, Exh. D., AXON_Body_Video_2016-10-12_0320 at 01:48-07:00.) Sgt. Dorilus then stated that he was giving Mr. Lozano a field sobriety test because Mr. Lozano "reeked of alcohol." (Id.) Mr. Lozano denied having consumed alcohol. He refused to submit to a field sobriety test, stating that his injuries would physically prevent him from doing so. (Id.) Sgt. Dorilus then arrested Mr. Lozano, and Officer Hernandez transported Mr. Lozano to police headquarters.5 (Id., see also DE 24, Exh. D AXON_Body_Video_2016-10-12_0334.)
At police headquarters, Mr. Lozano was given two Alcotests (sometimes referred to as breathalyzer tests). Because of his asthma, he was not able to provide a sufficient breath sample to complete the tests. (DE 31-6, Exh. F, Axon Body Video 2016-10-12-0339; see also DE-8, Exh. H at 5.) Mr. Lozano asserts that he told the police officer administering the test that, for medical reasons, he would be unable to provide a sufficient breath sample. (See DE 31-6, Exh. F, Axon Body Video 2016-10-12-0339.) The municipal prosecutor testified that the police officer who administered the Alcotest "was sure that [Mr. Lozano] had some sort of medical issue preventing him from blowing into the Alco test and completing the Alco test." (DE 26-3, Exh. F at 3:17-5:19.) On the third Alcotest attempt, Mr. Lozano's asthma was triggered, and the police arranged for him to be transported to Trinitas Hospital. (See id., Exh. B, Plaintiff Tr. at 80:1-17; 109:8-11.) After receiving medical attention, Mr. Lozano left the hospital around 5:37 AM on October 12, 2016. (See id., Exh. E.) The Alcotest was never completed.
Based on the events of October 12, 2016, Plaintiff was charged with one count of driving while intoxicated (N.J. Stat. Ann. § 39:4-50) and one count of refusal to take breath test (N.J. Stat. Ann. § 39:4-50.2). (See DE 26-3 at p. 60,Exh. F at 3:12-16.) The charges were brought on October 12, 2016, the same day as the events, apparently by means of an ordinary ticket. (See Lozano Dep. p. 109, DE 26-3 Ex. p. 26; Municipal Ct. Tr. 3:12-16, DE 26-3 at p. 60; Elizabeth SMF ¶ 13, DE 27-3 ("Plaintiff was charged by Sergeant Dorilus with Driving Under the Influence, N.J.S.A. 39:4-50, and Refusal to Take Breathalyzer, N.J.S.A. 39:4-50.2."))
On December 22, 2016, both charges were dismissed in municipal court because the prosecutor had received medical records substantiating Mr. Lozano's claim that he was unable to provide sufficient breath samples for the Alcotests, and that he suffers from orthopedic disabilities that would preclude him from performing field sobriety tests. (Municipal Ct. Tr., DE 26-3 at pp. 60-62.)6 Based on the prosecutor's recommendation, the court dismissed the charges against Mr. Lozano. (Id.; see also DE 31-11.)
Mr. Lozano filed a Notice of Tort Claim with the City of Elizabeth Law Department, dated January 17, 2017. ("First Notice," DE 31-10 at pp. 2-5 (Exh. J).) Defendants, however, cited a second claim form, titled "Claim Form Required By the City of Elizabeth," dated March 10, 2017. ("Second Notice," DE 31-10 at pp. 6-11, DE 26-3 at p. 64, Exh. G.)
Mr. Lozano's Complaint has three counts:
All three counts are asserted against all defendants.
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." Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Kreschollek v. S. Stevedoring Co., 223 F.3d 202, 204 (3d Cir. 2000). In deciding a motion for summary judgment, a court must construe all facts and inferences in the light most favorable to the nonmoving party. See Boyle v. Cty. of Allegheny Pa., 139 F.3d 386, 393 (3d Cir. 1998). The moving party bears the burden of establishing that no genuine issue of material fact remains. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). "[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 tothe 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 that 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 (1986). The opposing party must present actual evidence that creates a genuine issue as to a material fact for trial. Anderson, 477 U.S. at 248; see also Fed. R. Civ. P. 56(c) (). "[U]nsupported allegations . . . and pleadings are insufficient to repel summary judgment." Schoch v. First Fid. Bancorp., 912 F.2d 654, 657 (3d Cir. 1990); see also Gleason v. Norwest Mortg., Inc., 243 F.3d 130, 138 (3d Cir. 2001) (). If the nonmoving party has failed "to make a showing sufficient...
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