Mayer v. Gottheiner, No. CIV.A. 03-3141(FSH).

• Decision Date: 10 August 2005
• Docket Number: No. CIV.A. 03-3141(FSH).
• Parties: Kenneth MAYER, Plaintiff, v. Kevin GOTTHEINER, Bryan Smith, Mayor and Council of the Borough of Haledon, Steve Van Hook, Borough of Haledon, Haledon Police Department, Defendants.
• Court: U.S. District Court — District of New Jersey

382 F.Supp.2d 635

Kenneth MAYER, Plaintiff, v. Kevin GOTTHEINER, Bryan Smith, Mayor and Council of the Borough of Haledon, Steve Van Hook, Borough of Haledon, Haledon Police Department, Defendants.

No. CIV.A. 03-3141(FSH).

United States District Court, D. New Jersey.

August 10, 2005.

COPYRIGHT MATERIAL OMITTED

Gina Mendola Longarzo, Hack, Piro, O'Day, Merklinger, Wallace & McKenna, Florham Park, NJ, for Plaintiff.

Richard A. Grodeck, Richard Avery Feldman, Feldman Grodeck PA, West Orange, NJ, for Defendants.

OPINION

SHWARTZ, United States Magistrate Judge.

This matter is presently before the Court on motion by defendants, Kevin Gottheiner, Bryan Smith, and Steve Van Hook (the "Police Defendants"), and the Mayor and Council of the Borough of Haledon (the "Municipal Defendants"), for summary judgment pursuant to Fed.R.Civ.P. 56 on plaintiff Kenneth Mayer's claims for (i) violations of his rights under the First, Fourth and Fourteenth Amendments of the United States Constitution¹, brought pursuant to 42 U.S.C. § 1983; (ii) violations of his rights under paragraphs four and six of the New Jersey Constitution; (iii) gross negligence; (iv) negligent infliction of emotional distress; (v) intentional infliction of emotional distress; and (vi) civil conspiracy. For the reasons set forth below, the Court grants summary judgment in favor of the defendants and against the plaintiff as to his First, Fourth and Fourteenth Amendment claims and dismisses his state law claims without prejudice for lack of subject matter jurisdiction.

FACTS

Plaintiff is a resident of the Borough of Haledon, New Jersey. (Final Pretrial Order at 6, Stip. Fact No. 1.) Defendants Gottheiner, Smith, and Van Hook are police officers employed by the Borough of Haledon Police Department. (Id., Stip. Fact No. 2.) Defendant Pengitore has been the Mayor of the Borough of Haledon since 1999. (Id., Stip. Fact No. 3.) The plaintiff's claims arise from a series of encounters with the defendant police officers. The defendants contend that summary judgment should be entered in their favor on each claim. In deciding a summary judgment motion, the Court must view the evidence in the light most favorable to the non-moving party. See Peters v. Delaware River Port Auth., 16 F.3d 1346, 1349 (3d Cir.1994). The Court views the facts underlying plaintiff's claims through this lens.

A. The July 1, 2001 Incident

The first incident involves a dispute between plaintiff and other Haledon residents. On July 1, 2001, at approximately 10:00 p.m., plaintiff was walking on the street in front of his neighbor's house. A white car, occupied by a female driver and two teenage male passengers, approached him. (Mayer Dep., 71:18-72:11, 75:19-76:2.) Plaintiff states that the passengers exited their car, chased him, and threatened to kill him. (Id. at 76:3-78:10.) Plaintiff claims after the teenagers stopped chasing him, he stopped to catch his breath and began walking back toward his house. (Id. at 78:1-7.) Thereafter, a green car occupied by two male teenagers drove slowly by him. (Id. at 78:14-79:20.) Plaintiff did not know whether or not the occupants of the green car were the same as the occupants of the white car. (Id. at 92:6-9.) Plaintiff claims the green car's occupants verbally harassed him, and one of the teenagers threatened to use a "glock"² on him. (Id.) Specifically, plaintiff said the occupant stated "I've got a glock. Come back to my house I want to use it on you." (Id. at 79:7-9.) While plaintiff attributed these statements to an occupant of the green car, nothing in the record indicates if he conveyed the occupant's statements to the police. After this incident, plaintiff returned to his house and called the police.³ (Id. at 83:15-84:14.)

Defendants Gottheiner and Smith responded to plaintiff's call. (Id. at 86:23-87:7.) When the officers arrived on the scene, plaintiff ran out of his house, yelling that he had been threatened. (Final Pretrial Order at 8, Stip. Fact No. 22.) Plaintiff told Defendant Gottheiner that he was chased and threatened by the occupants of the green car, which was then parked near plaintiff's home. (Mayer Dep. at 87:23-88:24.) Plaintiff appeared angry and flustered. (Final Pretrial Order at 8, Stip. Fact No. 22.)

Defendant Gottheiner spoke to the green car's occupants while plaintiff waited across the street. (Id. at 89:13-24.) Defendant Gottheiner testified the car's occupants advised him they had seen plaintiff looking in their windows. (Gottheiner Dep. at 62:6-14.) A white car occupied by two females subsequently arrived and the occupants spoke to Defendant Gottheiner. (Mayer Dep. at 92:18-94:7.) While the plaintiff does not dispute the officers interviewed the vehicle occupants, he asserts that neither Defendant Gottheiner nor Smith searched the car or its occupants. (Mayer Aff. at ¶ 7.) Although Defendant Gottheiner testified that he searched the entire car and the occupants' persons (Gottheiner Dep. at 71:11-72:9), no search is reflected in his report of the incident and no consent to search forms were signed (Final Pretrial Order at 8, Stip. Fact No. 23-24). Moreover, neither officer checked to determine if the car's occupants had a lawful permit to carry a weapon in the State of New Jersey. (Id. at 7, Stip. Fact No. 20.)

Defendant Gottheiner returned to the plaintiff and advised him that the vehicles' occupants claimed he was looking in their windows and stated that they wanted to press charges if the plaintiff pressed charges. (Plaintiff's Response to Interrogatory No. 9; Mayer Dep. at 94:25-95:2.) Defendant Gottheiner stated he

felt that the charges against [the plaintiff] would be much worse for him than by him saying that these guys threatened to kill me with terrorist threats, and I was basically trying to tell Mr. Mayer that he doesn't want this kind of problem and I think we should — he can do whatever he wants, but I think it would be in his best interest to just kind of let this thing go, just trying to avoid any type of arrest or any type of record of this for him.

(Gottheiner Dep. at 84:17-24.) Plaintiff stated that Defendant Gottheiner told him he could pursue charges against the individuals for threatening him if he wanted, and did not discourage him in any way from following through with such a complaint. (Mayer Dep. at 110:19-111:4.) Plaintiff stated that, because it was his word against the three or four occupants of the green and white cars, he decided to "just drop the incident" and not file charges. (Id. at 95:7-18.) Despite his decision not to purse a complaint, plaintiff stated he became angry because he thought Defendant Gottheiner did not believe him and he told the officer to "[g]o write [his] f* * *ing report." (Id. at 95:20-23.)

During this exchange, Defendant Gottheiner pointed at the plaintiff (Smith Dep. at 59:23-60:2) and, while the plaintiff stood with his arms folded, plaintiff claims the defendant put his belly against the plaintiff's left elbow and pushed him three times⁴ (Mayer Dep. at 97:7-15; 99:11-100:14). During the pushing, plaintiff claims he asked why Defendant Gottheiner was pushing him, and again told him to "go write the report." (Plaintiff's Response to Interrogatory No. 9; Mayer Dep. at 101:23-24, 102:23-25.) Plaintiff claims Defendant Gottheiner stopped when plaintiff stumbled and caught himself, taking a half-step back.⁵ (Plaintiff's Response to Interrogatory No. 9; Mayer Dep. at 103:5-15.) Plaintiff claims Defendant Smith observed the pushing and did nothing. (Plaintiff's Response to Interrogatory No. 9; Mayer Dep. at 104:1-5.) After the pushing, plaintiff claims Defendant Gottheiner went back across the street to the green car. (Plaintiff's Response to Interrogatory No. 9; Mayer Dep. at 105:6-21.) Plaintiff stated that he felt pain down his down his right leg and sat on the curb. (Plaintiff's Response to Interrogatory No. 9, Mayer Dep. at 105:6-21.) Defendant Gottheiner returned to the plaintiff before he left, asked if he was feeling okay and, when the plaintiff replied "no", offered to call an ambulance, which the plaintiff declined. (Final Pretrial Order at 7, Stip. Fact No. 21; Mayer Dep. at 107:2-12.) Plaintiff contends that Gottheiner's push caused him to twist his back and suffer permanent injury and constant pain.⁶ (Mayer Aff. at ¶ 4.) Plaintiff claims he had no back problems before this injury but has since sought extensive medical treatment. (Mayer Aff. at ¶ 9; Mayer Dep. at 112:7-15; 118:2-132:11.)

Plaintiff stated he served the Clerk of the Borough of Haledon with a Notice of Claim within 90 days of the July 1, 2001 incident. (Mayer Aff. at ¶ 8.) Other than filing a notice of tort claim with the Borough, plaintiff did not complain to any official within the Borough of Haledon or the police department about the events of July 1, 2001 nor did he swear out a complaint against Defendant Gottheiner or the occupants of the green or white cars. (Mayer Dep. at 132:14-136:13; see also Gottheiner Dep. at 87.) No internal affairs investigation was conducted about this incident. (Final Pretrial Order at 6-7, Stip. Fact No. 8.)

B. The January 8, 2002 DMV Checkpoint

The second set of events involved a New Jersey Department of Motor Vehicles ("DMV") Checkpoint at which plaintiff received tickets. On January 8, 2002, law enforcement officials, including Defendants Van Hook and Gottheiner, were conducting roadside inspections in conjunction with the DMV. (Mayer Dep. 136:13-137:3; Final Pretrial Order at 8, Stip. Fact No. 25.) Officer Antulio Negron observed the plaintiff driving and directed him to pull into the roadside inspection checkpoint. (Mayer Dep. at 136:13-137:3.) Plaintiff stated that while he was waiting in line for the DMV inspection, he saw Defendant Van Hook conferring with Defendant Gottheiner and Defendant Gottheiner was "chuckling and looking over in [his] direction." (Id. at 242:15-243:9.) Plaintiff stated he got the sense Defendant Gottheiner was...