Turner v. N.J. State Police

Decision Date29 March 2017
Docket NumberCiv. No. 08-5163 (KM) (JBC)
PartiesSCOTT TURNER, Plaintiff, v. NEW JERSEY STATE POLICE, et al, Defendants.
CourtU.S. District Court — District of New Jersey

SCOTT TURNER, Plaintiff,
v.
NEW JERSEY STATE POLICE, et al, Defendants.

Civ. No. 08-5163 (KM) (JBC)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

March 29, 2017


OPINION

KEVIN MCNULTY, U.S.D.J.:

The plaintiff in this action is Scott Turner, formerly a sergeant with the New Jersey State Police ("NJSP"). Turner contends that during his tenure he was subjected to unlawful retaliation after refusing to participate in fraud and other forms of misconduct in connection with the implementation of a Consent Decree. He has brought this action against a host of state agencies and officials.1 He asserts claims under the federal and state constitutions; the Conscientious Employee Protection Act ("CEPA"), N.J. Stat. Ann. § 34:19-1 et seq.; the New Jersey Law Against Discrimination ("NJLAD"), N.J. Stat. Ann. § 10:5-1 et seq.; Intentional Infliction of Emotional Distress; Negligence; Tortious Interference with a Contract; the National Labor Relations Act ("NLRA"), 29 U.S.C. § 8(b)(1)(A); the Federal Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2615; the New Jersey Family Leave Act ("NJFLA"), N.J. Stat. Ann. §

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34:11b-1 et seq.; and the Racketeer Influenced Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961, 1962(b)-(d), and § 1964. (Compl., Counts 1-14)2

The NJSP agreed to the Consent Decree in question in 1999 following a 1998 highway traffic stop during which NJSP troopers wounded three unarmed black men while shooting at their van.3 Under the Consent Decree, federal monitors oversaw an overhaul of NJSP training and supervisory practices and policies and tracked traffic stops for signs of racial profiling. The Consent Decree was a stunning success. By 2007, the NJSP "appear[ed] to have reached a watershed moment" during which "[a]mple evidence exist[ed] that the agency ha[d] become self-monitoring and self-correcting to a degree not often observed in American law enforcement." Independent Monitors' Sixteenth Report, USA v. State of New Jersey, 3:99-cv-05970-MLC-JJH, ECF no. 93, at 105. After several years of consistent compliance, the United States Justice Department and the State filed a joint motion to dissolve the Consent Decree, and, on September 21, 2009, Judge Mary L. Cooper signed an order terminating the decree. USA v. State of New Jersey, 3:99-cv-05970-MLC-JJH, ECF no. 111.

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Now before the Court is Defendants' motion for summary judgment as to all counts. (ECF no. 211) For the reasons set forth herein, Defendants' motion is granted as to all counts.

I. Background

A. Procedural History

This case has a tortuous nine-year procedural history. Turner has attempted to file nine amended complaints and several supplemental pleadings, and the case has been assigned to three different district court judges and four different magistrate judges. Some, though not all, of that history is summarized in my opinion on a prior motion. (See ECF no. 187) Here, I will focus on the procedural facts most pertinent to this motion.

Turner commenced this action by filing his original complaint on October 20, 2008. (ECF no. 1) Turner's attorney withdrew from the case on December 11, 2009. (ECF No. 20) Although Turner has proceeded pro se since that date, since 2010 he has been an attorney licensed to practice in the State of New York.

On March 29, 2010, then-Magistrate Judge Madeline Arleo entered a text order (ECF no. 30) striking all of the amended complaints except the one most recently filed. That amended pleading (ECF no. 21), the order said, would be designated as Turner's second amended complaint and would be deemed filed as of the date of the order. Although Turner subsequently attempted to file three supplemental pleadings (ECF nos. 145, 164, and 178), each was struck for failure to comply with specific orders of the Magistrate Judge. On April 22, 2015, I ordered that "no further complaints or supplemental pleadings will be filed." (Order, ECF no. 188) The Second Amended Complaint, deemed filed on December 28, 2009 (ECF no. 21, referred to herein as the "Complaint"), is therefore the currently operative pleading in this case. Finally, on March 11, 2016, Defendants filed the motion for summary judgment (ECF no. 211) that is now before the Court.

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B. The Parties' Submissions on Summary Judgment

The briefs and the statements of material facts submitted pursuant to Local Rule 56.1 in many respects fail to present clearly the issues genuinely in dispute. For that failure to join issue, there is some fault on both sides.

Defendants do meticulously cite to the record. Certain of their grounds for simply writing off Turner's affidavit (and attached exhibits), however, are patently inadequate.

First, Defendants argue that the Court should not consider Turner's affidavit because it lacks a statement, under penalty of perjury, that the document's contents are true and correct, as required by 28 U.S.C. § 1746. (Def. Reply 2) At most, this would be a formal defect; remediation, if necessary, could easily be sought through a telephone call between counsel or, failing that, a conference with the Magistrate Judge. Defendants could perhaps be forgiven for being picayune if they were correct, but they are not. Section 1746 merely provides that where a sworn affidavit is required, an unsworn declaration may be substituted "with like force and effect."4 Turner's

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submission, however, is a sworn declaration—an affidavit, in fact.5

Second, and more plausibly, Defendants note that in some places Turner's affidavit does not conform to Local Civil Rule 7.2(a), which states:

Affidavits . . . shall be restricted to statements of fact within the personal knowledge of the signatory. Argument of the facts and the law shall not be contained in such documents. Legal arguments and summations in such documents will be disregarded by the Court and may subject the signatory to appropriate censure, sanctions or both.

Defendants are not wrong to identify several argumentative paragraphs. (Def. Reply 3) Again, however, Defendants exceed the bounds of the reasonable in asserting that Plaintiff's entire opposition must be struck, leaving them the victors. Unless it is simply impractical to do so, a "court will disregard only the inadmissible portions of a challenged affidavit and consider the rest of it." 10B C. Wright & A. Miller, Federal Practice and Procedure § 2738 (4th ed.) (citing Dickheiser v. Pennsylvania R. Co., 5 F.R.D. 5, 7 (E.D. Pa. 1945), aff'd, 155 F.2d 266 (3d Cir. 1946)).

Third, Defendants urge that the Court disregard paragraphs of the affidavit that are "either a verbatim recitation or summary of certain paragraphs contained in the . . . Complaint." (Def. Reply 3-4) It is of course true that, in opposing a motion for summary judgment, the non-moving plaintiff cannot rest on the unsworn allegations of the complaint. Rather, that party must submit evidence sufficient to demonstrate the existence of a genuine, material issue of fact. See Celotex Corp., v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548 (1986).

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That is a rule of proof, not prosody; it does not mean that a plaintiff, in his affidavit, must find new ways to phrase facts already described in the complaint. Turner's Complaint is not verified, and I do not consider it as evidence.6 I do, however, consider Turner's affidavit. The statements in the affidavit are not disqualified by virtue of their overlapping the allegations of the complaint.

Not to be outdone, Turner attempts to preclude the Defendants from citing and relying on excerpts of his own deposition testimony. (Def. Mot. Ex. I) Turner objects that when he requested a copy of the transcript from Defendants, they told him to purchase his own, which he says he cannot afford to do. (Pl. Facts ¶ 52) Even assuming Turner is insolvent, which I do not,7 I am not aware of his ever having applied to proceed in forma pauperis. Nor does it seem rational or equitable to deny a defendant the right to rely on a plaintiff's sworn deposition.

Turner makes the more focused objection that the Defendants cited certain portions of his deposition in their moving brief, but failed to attach the relevant transcript excerpts. Defendants acknowledge the lapse, and have responded by submitting the omitted transcript excerpts with their reply brief as Exhibit 2. Their citations and quotations can now be checked for accuracy. Turner has not sought leave to contest or respond to anything contained in

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those excerpts. Seeing no procedural unfairness, I therefore will not exclude those portions of his deposition from consideration.

Turner's own citations to the record in some cases fail to support his assertions, and in other cases are so general as to be unhelpful. That is particularly true of Turner's Statement of Material Facts. I consider the allegations therein, however, to the extent I can trace them to the evidence of record.

In addition, Turner claims that the factual assertions in his RICO case statement, see Loc. Civ. R. App'x O, constitute proof because the Defendants "do not deny" them. (Turner Aff. ¶ 93) I disagree. This District's Local Rules do not require a responsive pleading to a RICO case statement.

All of this is prologue to my saying that I have concentrated on Turner's Statement of Material Facts and Affidavit, and have examined the record in search of evidentiary support. I have resorted to the Complaint, RICO Case Statement, and other filings to establish the context of Turner's claims.

C. Background Facts

On July 28, 1988, Scott Turner enlisted in the NJSP. (Pl. Facts ¶ 30) In December 1999, the United States and the State of New Jersey entered into a Consent Decree to settle allegations that the NJSP had engaged in a practice of racially discriminatory traffic stops. Consent Decree, United States v. State of New Jersey, 3:99-cv-05970-MLC-JJH, ECF no. 5 (D.N.J. December 29, 1999);8 see also Pl. Opp. Ex. 1 (joint application for the Consent Decree).9 Pursuant to the terms of the Consent...

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