Opinion
Civil No. 01-4762 (JBS).
March 31, 2003
M. Daniel Perskie, Esquire, Perskie Wallach Fendt, P.C. Northfield, New Jersey, Attorney for Plaintiff.
Jeffrey A. Lowe, Esquire, Matthew B. Wieliczko, Esquire, Zeller Bryant, LLP, Woodcrest Pavilion, Cherry Hill, New Jersey, Attorney for Defendant City of Atlantic City.
OPINION
This case arises out of a ruse by an on-duty police officer that involved staging a phony security situation and thereafter placing plaintiff, a security guard, in fear of his life and shooting him with a paintball gun when he was lured to investigate. Plaintiff Michael Burke, a security guard for the Taj Mahal Hotel and Casino, brings this complaint against defendants Michael Parker ("Parker") and City of Atlantic City ("City" or "Atlantic City") for the events occurring on November 6, 1999, during which Parker, detective of the Atlantic City Police Department, urged the dispatcher at the security command center to place a phony call to Burke regarding a suspicious vehicle, thereby luring plaintiff to the roof of the isolated casino parking garage at 5:30 a.m., where Parker stood in the darkness and shot plaintiff in the leg with a paintball rifle. Fortunately, Burke suffered only slight physical injury.
Presently before the Court is defendant Atlantic City's motion for summary judgment, in which it argues that plaintiff has failed to establish a violation of his constitutional rights under 42 U.S.C. § 1983, and that there is no evidence that the City had a policy that resulted in plaintiff's injuries. Defendant City also argues that, with respect to plaintiff's state law claims, it cannot be held liable under N.J.S.A. 59:2-2 because Parker's conduct was not done within the scope of his employment, and in the alternative, that it is entitled to immunity under N.J.S.A. 59:2-10, and that judgment is limited under N.J.S.A. 59:9-2. For the reasons discussed herein, defendant City's motion for summary judgment will be granted in part and denied in part.
I. BACKGROUND
This case arises out of an incident that occurred on November 6, 1999. Plaintiff Michael Burke was working as a security guard at the Taj Mahal Hotel and Casino, assigned to the duty of roving security officer on a bicycle with a police radio, when he received a radio transmission from central command for suspicious activity on the tenth floor of the self-parking garage at approximately 5:30 a.m. (Burke Depo. 6/25/02, Pl.'s Opp. Br. Ex. D, at 9:7-25.) Burke, on his bike, surveyed the tenth floor of the garage and then proceeded up the ramp from the tenth floor to the roof of the parking garage, where he saw a person emerge from the trash cans located at the top of the ramp in the corner. (Id. at 10:1-11:9.) Within a few seconds, the person took an aiming position with what looked like a rifle, causing plaintiff to turn away. (Id. at 11:10-23.) The unidentified person, approximately 70 feet away, shot plaintiff in the leg with a paintball rifle and caused plaintiff to flee the area on his bike and call central command for assistance. (Id. at 11:22-12:13.)Upon plaintiff's return to the Taj Mahal's manager's office, plaintiff learned that the attacker was Michael Parker, an Atlantic City Police Officer working in the Casino Investigations Unit, whom plaintiff knew only through work prior to the incident. (Id. at 18:18-19:6.) Plaintiff sought medical treatment a few hours after being shot with the paintball gun. (Id. at 21:8-21.) About five hours after the incident, plaintiff received treatment "appropriate to a large bruise," including ice, from the medical unit at his workplace, but did not go to an emergency room. (Id. at 21-22.)
Burke in his opposition brief states that there had previously been an incident with Parker, occurring a month earlier in October 1999, in which Parker, while on duty, had pointed a handgun to Burke's head. (Id. at 28:7-29.) Plaintiff did not, however, report this incident to his superiors, for personal reasons. (Burke Depo. 6/25/02, at 35-36, Pl.'s Opp. Br. Ex. B.) That incident became known to the Atlantic City Police Department at some point right before the paintball rifle incident, at which time an Internal Affairs Investigation Report commenced. (Internal Affairs Investigation Report, Pl.'s Opp. Br. Ex. A, at 3.) Police Sergeant William Green of the Internal Affairs Section prepared a report for Police Captain Joseph Fair, which detailed both the handgun incident and the paintball shooting. (Id.) As a result of these incidents, on November 12, 1999, Parker was issued a Preliminary Notice of Disciplinary Action, which suspended him effective November 8, 1999. (Hurley Aff., Pl.'s Opp. Br. Ex. B, ¶ 6 Ex. 4.) The addendum to the Notice stated,
On or about October 15, 1999 you pointed a gun at Taj Mahal Security Officer Michael Burke, Jr. without legal or legitimate cause.
On November 6, 1999, you made a false call of a suspicious person to Taj Mahal Security personnel. You then assaulted Security Officer Michael Burke, Jr. with a weapon to wit: a paintball gun.
(Id. at Ex. 3.) Parker was charged with Conduct Unbecoming a Public Employee under N.J.A.C. 4A:2-2.3(a)6, Neglect of Duty under N.J.A.C. 4A:2-2.3(a)7, and other sufficient cause under N.J.A.C. 4A:2-2.3(a)11, as well as violations of the Atlantic City Police Department Rules and Regulations, that is, Standard of Conduct, Neglect of Duty, Obedience to Laws and Regulations, Performance of Duty, Non-Deadly Force Policy, and Conduct toward the Public. (Id.)
Prior to these incidents involving plaintiff, Parker had maced a security officer, Joel Weirbach, on two separate occasions on April 19, 1999, and April 23, 1999. (Hurley Aff., Pl.'s Opp. Br. Ex. B, ¶ 6 Ex. B-2.) As a result of these macing incidents, Officer Parker was issued a Preliminary Notice of Disciplinary Action by the Atlantic City Police Department three months later on July 19, 1999, (id. at Ex. B-1), and was charged with conduct unbecoming a public employee under N.J.A.C. 4A:2-2.3(a)6 and other sufficient cause under N.J.A.C. 4A2-2.3(a)11. (Id. at Ex. B-2.) The addendum to the Notice of Disciplinary Action stated, "The use of force was not justified in either situation. You did not exercise proper discretion in its use and you did not report the incidents." (Id.) Although the Preliminary Notice stated: "The following disciplinary action may be taken against you: Suspension . . . pending determination of hearing; Removal," (Id. at B-1), there is nothing in the record indicating that Parker was ever suspended or removed from his duties at that time, during the months immediately preceding the gun-to-the-head and paintball rifle ambush incidents.
As a result of these two sets of incidents involving Weirbach and plaintiff, Parker agreed to retire from the Atlantic City Police Department as of October 1, 2000, after serving an additional one month suspension without pay for the events involving plaintiff, and an additional five month suspension without pay for the macing incidents. (Hurley Aff., Memorandum of Understanding, 10/18/00, Pl.'s Opp. Br. Ex. B-7.)
Prior to these incidents, defendant Parker exhibited a long history of sick leave abuse, for which Atlantic City reprimanded Parker several times in 1993 and 1994. (Pl.'s Opp. Br. Ex. H-1, H-2, H-3, H-4, H-5, H-8.) Atlantic City also notified Parker that he was subject to disciplinary action for leaving his beat without notifying his superior on two occasions in 1985, (id. at H-6 H-7), and allowing a prisoner to escape, (id. at H-14), and the Police Department also suspended Parker one day for making disparaging remarks, (id. at H-17).
Plaintiff filed this cause of action in the Superior Court of Atlantic County, Law Division, on September 14, 2001, for damages arising out of the paintball incident involving defendant Michael Parker. In his Complaint, plaintiff alleges assault (Count One), negligence (Count Two), and a civil rights violation under 42 U.S.C. § 1983 (Count Three) against defendant Michael Parker, and a civil rights violation based on "failure to instruct, supervise, and discipline" under 42 U.S.C. § 1983 (Count Four) and a state law claim for failure to "instruct, supervise, control, terminate and discipline on a continuing basis" (Count Five) against defendant City of Atlantic City. (Compl.) Defendant City of Atlantic City filed a Notice of Removal on October 12, 2001, moving the case to this Court. (Notice of Removal, 10/12/01.) Defendant Atlantic City filed its Answer on October 19, 2001, raising cross-claims for contribution and indemnification against its co-defendants. (Answer, 10/19/01.) Defendant Parker has not filed an answer in this case.
Defendant Atlantic City filed the present motion for summary judgment on September 6, 2002, arguing that plaintiff failed to establish facts supporting his § 1983 claim against the City, and that there is no evidence of a policy that violated plaintiff's rights. Defendant Atlantic City also asserts that it is not liable under the New Jersey Tort Claims Act because Parker's conduct was outside the scope of his employment, and alternatively, that Parker's conduct was willful and that plaintiff fails to reach the pain and suffering threshold.
III. DISCUSSION
Defendant Atlantic City asserts that plaintiff has failed to prove facts sufficient to prove that the City violated his constitutional rights under 42 U.S.C. § 1983, and that the City had no custom or policy in existence that resulted in plaintiff's injuries. In addition, Atlantic City claims that it is not liable for plaintiff's state law claim under the New Jersey Tort Claims Act because the act of defendant Michael Parker was not done within the scope of his employment under N.J.S.A. 59:2-2, and it is immune for acts of willful misconduct under N.J.S.A. 59:2-10. Furthermore, the City argues that plaintiff fails to allege injuries meeting the threshold for pain and suffering, and does not have a permanent injury that allows him to recover under the New Jersey Tort Claims Act ("NJTCA") under N.J.S.A. 59:9-2.A. Summary Judgment Standard
Defendant City moves for summary judgment pursuant to Rule 56(a), Fed.R.Civ.P. A court may grant summary judgment when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see Lang v. New York Life Ins. Co., 721 F.2d 118, 119 (3d Cir. 1983). A dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 329-330 (3d Cir. 1995) ("[T]he nonmoving party creates a genuine issue of material fact if it provides sufficient evidence to allow a reasonable jury to find for him at trial.") (citing Liberty Lobby, 477 U.S. at 248).
In deciding whether there is a disputed issue of material fact, the court must view the evidence in favor of the non-moving party by extending any reasonable favorable inference to that party, here the plaintiff. See Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1080-81 (3d Cir. 1996). Once the moving party has carried its initial burden of establishing the absence of a genuine issue of material fact, the non-moving party must do more than rely only "upon bare assertions, conclusory allegations or suspicions." Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985),cert. denied, 474 U.S. 1010 (1985) (citation omitted). If the non-movant's evidence is merely "colorable" or is "not significantly probative," the court may grant summary judgment.Liberty Lobby, 477 U.S. at 249-50.
B. Analysis
1. Plaintiff's § 1983 Claim Against Defendant City of Atlantic City
Defendant initially argues that plaintiff fails to demonstrate a deprivation of a constitutional right, and that the conduct he complains of was not done pursuant to color of law. Plaintiff alleges in Count Four that defendant Atlantic City's failure to "instruct, supervise, control, terminate and discipline on a continuing basis" defendant Michael Parker deprived plaintiff of his Fourth Amendment rights under § 1983. Plaintiff essentially argues that defendant Atlantic City failed to follow its own policies or procedures in failing to properly supervise, sanction or discipline defendant Michael Parker for his prior misconduct, thereby advancing a failure to train or control theory of municipal liability.
Section 1983 provides, in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.42 U.S.C. § 1983. To properly assert a claim for alleged violations of his constitutional rights pursuant to 42 U.S.C. § 1983, a plaintiff must allege (1) a violation of a right secured by the Constitution and laws of the United States, and (2) that the alleged deprivation was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). Thus, the threshold issue presented by any § 1983 case is whether a plaintiff has sufficiently alleged a deprivation of a right secured by the Constitution. See Douglas v. Commonwealth of Pennsylvania Dep't of Health Emergency Med. Servs. Training Inst., 318 F.3d 473, 476 (3d Cir. 2003) (citing Baker v. McCollan, 443 U.S. 137, 140 (1979)).
The Court must first examine whether plaintiff has presented evidence that the underlying offending action, on which the deficient municipal supervision and discipline claim is based, is violative of his constitutional rights. See Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 692 (1978) (concluding that municipal liability may be imposed on a government "that, under color of some official policy, `causes' an employee to violate another's constitutional rights"). As the Supreme Court stated, "proper analysis requires us to separate two different issues when a § 1983 claim is asserted against a municipality: (1) whether a plaintiff's harm was caused by a constitutional violation, and (2) if so, whether the city is responsible for that violation." Collins v. Harker Heights, 503 U.S. 115, 120 (1992) (citing Oklahoma City v. Tuttle, 471 U.S. 808, 817 (1985) (Rehnquist, J.); id. at 828-29 (Brennan, J., concurring)).
In this case, where plaintiff alleges that Atlantic City "knowingly, recklessly, or with deliberate indifference and callous disregard of Plaintiff's rights, failed to instruct, supervise, control, terminate and discipline on a continuing basis, Defendant, Michael Parker," plaintiff claims that Parker violated his substantive due process rights. See Bonenberger v. Plymouth Township, 132 F.3d 20, 25 (3d Cir. 1997); Montgomery v. De Simone, 159 F.3d 120, 127 (3d Cir. 1998).
Although plaintiff in his Complaint does not specifically state that his § 1983 claim is based on a substantive due process violation, but rather, a Fourth Amendment violation, he alleges that Atlantic City continuously acted with "deliberate indifference and callous disregard of" plaintiff's rights in failing to instruct, supervise, and control defendant Michael Parker. Compl. at 4-5. Because, under the liberal pleading rules, "a pleading should be deemed sufficient if it provides reasonable notice of the theories presented," Abdul-Akbar v. McKelvie, 239 F.3d 307, 323 n. 11 (3d Cir.), cert. denied, 533 U.S. 953 (2001), plaintiff's allegations amount to a "failure to train, discipline or control" theory and are deemed sufficient to put defendants on notice of his substantive due process claim under § 1983. Furthermore, plaintiff's opposition to the motion advances arguments for his substantive due process claim, and fails to address any claim of a Fourth Amendment violation. See Pl.'s Opp. Br. at 12-15. Defendant's reply brief, in turn, addresses plaintiff's substantive due process arguments. See Def.'s Reply Br. at 2-3. This Court must therefore assume that plaintiff alleges that defendant City of Atlantic City has deprived him of his right to substantive due process by failing to "instruct, supervise and control" Detective Parker in his use of excessive force.
When all favorable inferences are extended to the plaintiff, there is sufficient evidence from which a reasonable jury could find that Parker's act of luring and terrorizing Burke and assaulting him with a paintball rifle is one that rises to the level of a constitutional deprivation. Plaintiff raises Cox v. District of Columbia, 821 F. Supp. 1 (D.D.C. 1993), aff'd, 40 F.3d 475 (D.C. Cir. 1994) (per curiam), as support that the municipal policy gives rise to municipal liability in this case. In Cox, the district court determined that the excessive force used by the individual officers in arresting plaintiff, who did not present any objective danger, had violated plaintiff's constitutional rights. Cox, 821 F. Supp. at 11 n. 11 (citingGraham v. Connor, 490 U.S. 386, 396 (1989)). The court thus premised municipal liability on the determinations that the city's maintenance of an inadequate system of excessive force complaints against its officers constituted a custom of deliberate indifference to constitutional rights, and that plaintiff's injury was caused by the individual officers' pattern of unconstitutional actions.
Normally, police misconduct involving unwarranted or excessive force arises in the Fourth Amendment context of an arrest. InGraham v. Connor, the Supreme Court held that the use of force contravenes the Fourth Amendment if it is excessive under objective standards of reasonableness. See Graham, 490 U.S. at 396-97; see also Bennett v. Murphy, 274 F.3d 133, 136 (3d Cir. 2002) (citing Graham, 490 U.S. at 396-97). However, the Supreme Court explained that such a claim typically arises out of either the Fourth Amendment's prohibition against unreasonable seizures of the person, or the Eighth Amendment's ban on cruel and unusual punishment, the two primary sources of constitutional protection against physically abusive governmental conduct. See Graham, 490 U.S. at 394. The circumstances of this case, however, do not arise under governmental conduct in the context of either an unreasonable seizure, as was the case in Cox, or conditions of cruel and unusual punishment, because plaintiff was neither unlawfully arrested nor subjected to confinement.
Plaintiff's citation to Black v. Stephens, 662 F.2d 181 (3d Cir. 1981), cert. denied, 455 U.S. 1008 (1982), bears some comment. In Black, the Third Circuit determined that sufficient evidence supported the jury finding that an individual officer deprived plaintiff of his constitutional rights by holding a handgun eighteen inches from plaintiff's head, and later by filing three unwarranted charges against him, under the rubric that an excessive force claim violates the Due Process Clause when the officer's conduct "shocks the conscience". Black, 662 F.2d at 188-91. The Supreme Court in Graham, eight years later, however, effectively altered that standard, determining that excessive force claims against the police are actionable under the Fourth Amendment rather than the substantive component of the Due Process Clause, as discussed above. See Graham, 490 U.S. at 394-95; Fagan v. City of Vineland, 22 F.3d 1296, 1305 n. 5 (3d Cir. 1994) (en banc) (noting that some courts have held that a "shocks the conscience" substantive due process claim survivesGraham where the excessive force does not involve "seizure" by police) (citing Graham, 490 U.S. at 394-95). Furthermore, the Third Circuit in Black affirmed the city's municipal liability based on the execution of a governmental custom or policy triggered by "those whose edicts or acts may fairly be said to represent official policy," in that case, by the police chief's creation and promulgation of a police regulation concerning disciplinary hearings which the jury found proximately caused the unwarranted filing of charges against plaintiff. Black, 662 F.2d at 191 (citing Monell, 435 U.S. at 694). Of course, in this case, plaintiff was not subject to an unreasonable seizure or the unlawful filing of charges by police officers, as was the case in Black.
This case does, however, fall into the category of matters involving unwarranted use of force, not arising from arrests or false charges, in which police conduct that "shocks the conscience" may offend substantive due process. See Fagan, supra, 22 F.3d at 1303-04. By analogy, the Third Circuit inFagan articulated the standard to be used in determining whether conduct of individual police officers in a pursuit case constitutes a violation of substantive due process: "[T]he substantive component of the Due Process Clause can only be violated by governmental employees when their conduct amounts to an abuse of official power that "shocks the conscience." Id. at 1303 (holding that police officers' actions in conducting high-speed vehicle pursuit, reaching speeds of 70-80 miles per hour, resulting in intersection collision and death, did not shock the conscience) (citing Harker Heights, 503 U.S. at 126) . The Third Circuit subsequently refined this standard, deriving the principle that the "shocks the conscience" standard should apply in all substantive due process cases if the state actor had to act with urgency, including police car chases as in Fagan, social workers protecting a child, and emergency medical personnel who, with little time for reflection, make decisions in haste and under pressure. Brown v. Commonwealth of Pennsylvania, 318 F.3d 473, 480 (3d Cir. 2003) (citations omitted).
A reasonable factfinder could determine that Parker, who had earlier pointed a gun at Burke's head for no apparent reason, took it upon himself to lure him to a secluded spot, lunge out of the dark corner of the parking deck, point what looked like a rifle at him and shoot. The ruse was so good, a jury could find, that Parker scared Burke witless, and that Burke didn't know that the suspicious rifleman was Parker or that the rifle being shot at him was just a paint ball gun. That Parker did this for sport, to see how much he could scare this security officer, could be found to be outrageous police conduct shocking the conscience of a reasonable juror. It could also be found that Parker set up this stunt for no purpose other than to hurt or humiliate Parker.
This conclusion is not inconsistent with the state-created danger context discussed in Brown, the theory of which permits liability when the State caused the harm or made the victim more vulnerable to an existing harm. Brown, 318 F.3d at 479 (citingKneipp v. Tedder, 95 F.3d 1199, 1208 (3d Cir. 1996)).
Further, this result does not suggest that the mere discharge of a paintball gun is a shocking event. It is recognized that paintball is also a sport having some popularity among people who organize tournaments and war games with each other, equipped with protective gear. In the present case, in contrast, a jury could find this was no sport but that it was an unexpected assault on a vulnerable security guard on patrol in a seemingly lethal situation with the intent of causing harm.
The next issue is whether plaintiff can prove that the unlawful act was done under color of state law. As discussed above, a § 1983 plaintiff must allege a violation of a constitutional right, and that the alleged deprivation was committed by a person acting under color of state law. West v. Atkins, supra, 487 U.S. at 48. The Third Circuit stated that "not all torts committed by state employees constitute state action, even if committed while on duty. For instance, a state employee who pursues purely private motives and whose interaction with the victim in unconnected with his execution of official duties does not act under color of law." Bonenberger, 132 F.3d at 24 (citing Mark v. Borough of Hatboro, 51 F.3d 1137, 1150 (3d Cir.), cert. denied, 516 U.S. 858 (1995)). The Third Circuit, noting that off-duty officers who flash a badge and exercise official authority generally act under color of law, explained that the essence of the color of law requirement "is that the alleged offender, in committing the act complained of, abused a power or position granted by the state." Bonenberger, 132 F.3d at 24.See also Wyatt v. Cole, 504 U.S. 158, 161 (1992) (section 1983 was enacted "to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims if such deterrence falls").
In this case, while on duty as a police detective, defendant Parker staged a phony security situation, drawing plaintiff to the roof of the casino, at which point Parker emerged out of the darkness and shot plaintiff from approximately 70 feet away. Although not free from doubt, a reasonable jury could find that Parker's actions were done pursuant to his duties as a detective with the Atlantic City Police Department or with the Casino Investigations Unit. A jury must determine whether Parker pursued purely private purposes of playing a personal joke upon a friend, or whether as an on-duty police detective he used his position as a police officer to set this scheme in motion, persuading the Trump security dispatcher to cooperate in luring Burke to the scene, based upon his law enforcement relationship with Burke. If a jury finds that this incident occurred because Parker used the authority of his badge to do something that the dispatcher would not have done for a private jokester, and that Parker was unacquainted with Burke other than in his law enforcement capacity, then it could conclude that action was taken by Parker under color of state law.
Based on the above discussion, a reasonable jury could conclude from inferences arising from this evidence that plaintiff's right to substantive due process was infringed, and that the underlying act was done under color of state law.
Finally, the Court must determine whether material facts are in dispute as to whether deficient supervision and discipline of Parker by the Atlantic City Police Department occurred with reckless indifference to the rights of citizens to be free from such unconstitutional conduct by Parker, and thus played a causative role in the violation of rights. As the Supreme Court has previously determined, municipalities cannot be held liable solely as an employer under a respondeat superior theory. See Monell, supra, 436 U.S. at 693. Rather, a municipality may be held liable for constitutional deprivations inflicted upon private individuals pursuant to a governmental custom, policy, ordinance, regulation or decision. See id. The failure to train, discipline or control can form the basis for § 1983 municipal liability if the plaintiff can show deliberate indifference in the form of "contemporaneous knowledge of the offending incident or knowledge of a prior pattern of similar incidents and circumstances under which the supervisor's actions or inaction could be found to have communicated a message of approval to the offending subordinate." Montgomery, supra, 159 F.3d at 127 (citing Bonenberger, supra, 132 F.3d at 25).
Here, during the seven months prior to the incident at issue, defendant Parker had been involved in two incidents on April 19 and 23, 1999, in which Parker twice maced a security officer Joel Weirbach. Pl.'s Opp. Br. Exs. B-1, B-2. Although the Atlantic City Police issued a Preliminary Notice of Disciplinary Action to Parker indicating that he had violated Atlantic City Police Department Rules and Regulations, and that his "use of force was not justified in either situation[,]" there is no indication in the record that the Police Department suspended or removed Parker from his duties, or that it transferred Parker to desk work pending an investigation. Furthermore, the Preliminary Notice was issued on July 19, 1999, approximately 3 months subsequent to the macing incidents. For 3 months, then, defendant Parker conducted his duties as a police officer without any adverse repercussions for his dubious conduct in twice macing a security officer without any apparent reason. This delay in issuing the Preliminary Notice of Disciplinary Action, coupled with the absence of disciplinary action during the entire seven months leading to the paintball ambush, raises a genuine issue of material fact whether the Police Department's actions could have communicated a message of approval or indifference to Parker.
In addition, by the time of the paintball incident with Burke occurred in November 1999, the Atlantic City Police Department was made aware of the alleged incident in which Parker had held a gun to Burke's temple, and was in the midst of investigating that matter. See Internal Affairs Investigation Report, Pl.'s Opp. Br. Ex. A, at 3. The cumulative knowledge of these incidents demonstrating defendant Parker's propensity for violence toward people with whom he worked in the casino security industry should have raised a red flag that Parker posed a continuing danger not only to his professional colleagues, but also to the public at large. A reasonable jury could conclude that municipal disciplinary action to reduce such exposure should reasonably have been taken against Parker.
Here, there is a question of fact whether the City of Atlantic City was deliberately indifferent to plaintiff's rights by engaging in a custom of tolerance of use of unwarranted force. Plaintiff's claim of municipal liability based upon the City of Atlantic City's failure to adequately supervise Parker must be decided by a jury. Accordingly, defendant's motion for summary judgment will be denied as to plaintiff's § 1983 claim against the City of Atlantic City in Count Four.
2. Plaintiff's State Law Claim Against Defendant Atlantic City
a. Pain and Suffering Threshold under N.J.S.A. 59:9-2
Defendant Atlantic City argues that plaintiff fails to pierce the pain and suffering threshold under N.J.S.A. 59:9-2. That statute provides, in relevant part:
No damages shall be awarded against a public entity or public employee for pain and suffering resulting from any injury; provided, however, that this limitation on the recovery of damages for pain and suffering shall not apply in cases of permanent loss of a bodily function, permanent disfigurement or dismemberment where the medical treatment expenses are in excess of $3,600.00.
N.J.S.A. 59:9-2(d). Thus, a plaintiff may recover for pain and suffering only if medical expenses exceed $3,600.00 and plaintiff suffers a permanent loss of bodily function, permanent disfigurement or dismemberment. See Gerber v. Springfield Bd. of Educ., 328 N.J. Super. 24, 35 (App.Div. 2000) (utilizing the pre-amended amount of $1,000.00 as the minimum amount). Here, where plaintiff presents $4,160.70 in medical expenses, see Pl.'s Br. Ex. I, the only issue is whether his injuries are considered a permanent loss of a bodily function, permanent disfigurement or dismemberment, under the statute. To meet the threshold, the permanent loss need not be total, but it must be substantial. Id. at 35 (citing Brooks v. Odom, 150 N.J. 395, 406 (1997)). The Act requires a "`plaintiff to demonstrate objective, medical evidence of permanent injury to recover damages against a public entity.'" Gerber, 328 N.J. Super. at 35 (quoting Denis v. City of Newark, 307 N.J. Super 304, 317 (App.Div. 1998)).
The test for proving that a psychological injury is "substantial" is a stringent one. See, e.g., Brooks, supra, 150 N.J. at 406 (holding that post-traumatic headaches and orthopedic injuries from bus striking plaintiff's parked car was not substantial); Rocco v. New Jersey Transit Rail Operations, 330 N.J. Super. 320, 333-34 (App.Div. 2000) (holding that psychological injuries resulting from hand jammed between railcar door is not substantial permanent psychological injury); Hammer v. Township of Livingston, 318 N.J. Super. 298, 306-07 (App. Div. 1999). In Hammer, plaintiff had suffered from what her doctor had deemed a "chronic" and "partially disabling" post-traumatic stress disorder with severe phobic elements as a result of being struck by a fire truck. In addition to the post-traumatic stress disorder, she sustained fractures and pain in the right side of her body, as well as scars from requisite surgery and resulting disfiguration of her nose. The Appellate Division affirmed the trial court's summary judgment determination in favor of defendants on the post-traumatic stress disorder because plaintiff had failed to provide prima facie proof that her psychological condition was substantial, finding that although she suffered from a chronic and partially disabling post-traumatic stress disorder with severe phobic elements, she nonetheless suffered from a mild level of anxiety and depression, and there was nothing in the record to reflect that plaintiff was prevented from carrying out her ordinary day-to-day functions. Id. at 307.
The Appellate Division reversed, however, with respect to the trial court's determination that plaintiff's scarring on her face and her leg did not constitute a "permanent disfigurement" under N.J.S.A. 59:9-2(d).
Plaintiff relies on Collins v. Union County Jail, 150 N.J. 407 (1997), as support that his post-traumatic stress disorder qualifies as a "permanent loss of bodily function." In Collins, the New Jersey Supreme Court awarded pain and suffering damages for a sufficiently aggravating and intrusive assault, in which plaintiff, an inmate, was forcibly sodomized by a corrections officer. The Supreme Court distinguished the case from other cases involving psychological injuries, and held that because the situation involved an "aggravating and intrusive assault," the plaintiff had sufficiently sustained a "permanent loss of bodily function" under N.J.S.A. 59:9-2(d). Id. The Appellate Division n Gerber subsequently interpreted the Collins language to require that a plaintiff must present "sufficiently aggravated" circumstances of the injury to prevail under a psychological claim. See Gerber, 328 N.J. Super. at 37 (citing Hammer, 318 N.J. Super. at 307).
The Appellate Division in Willis v. Ashby later stated, "We do not read Collins as limiting recovery under N.J.S.A. 59:9-2(d) for psychological injuries due to `direct, violent and invasive physical assault,' such as criminal sodomy or rape[.]"Willis v. Ashby, 353 N.J. Super. 104, 112 (App.Div.),certif. denied, 174 N.J. 547 (2002). In that case, the Appellate Division held that parents of a child, stillborn due to the negligent medical care of defendants, had suffered a permanent loss of a bodily function, disfigurement or dismemberment, or an "aggravated circumstance," not a "subjective or minor incident."Id. at 112 (citing Collins, 150 N.J. at 413). The Appellate Division therefore reversed the trial court's granting of summary judgment, concluding that "`psychological and emotional injuries should be treated the same as physical injuries under the Act's threshold provision' when they arise in this context of a stillborn infant." Willis, 353 N.J. Super. at 113 (citingCollins, 150 N.J. at 423).
Although this Court does not read the Collins holding so narrowly as to limit recovery only to situations of direct, physical and invasive assault, the instant case nevertheless fails to reach the level of severity exemplified in these controlling cases. In this case, defendant Parker shot plaintiff in the leg with a paintball gun. Plaintiff, fortunately, did not sustain permanent physical injuries. About five hours after the incident, plaintiff received treatment "appropriate to a large bruise," including ice, from the medical unit at his workplace, but did not go to an emergency room. Burke Depo. Tr. 6/25/02, at 21-22. Plaintiff's psychological condition, on the other hand, is manifested by intimidation, being fearful about work, loss of self-esteem, ambivalence about work, and intermittent downcast eyes. Tobe Depo. Tr. 6/25/02, at 12, Pl.'s Opp. Br. Ex. F. Dr. Edward Tobe gives the opinion in his psychiatric report that plaintiff Burke has "a post-traumatic stress disorder causing a 35 percent permanent of total psychiatric disability." Tobe Report, 12/6/01, Pl.'s Opp. Br. Ex. E. Despite these symptoms, plaintiff continues to work at the same job, id. at 2, and has received a promotion at Trump Taj Mahal, Burke Depo. Tr. at 48-49, Pl.'s Br. Ex. D, and there is no indication that plaintiff is prevented from carrying out his day-to-day functions in the same casino security environment.
On the facts of this case, while plaintiff may be able to prove to a reasonable jury that he suffered emotional distress as a result of defendant Parker's shooting of him with a paintball gun, the evidence fails to reach the "aggravating and intrusive" nature of a sexual assault as found in Collins, or the direct emotional injury caused by the stillbirth of a child as discussed in Willis. Whereas incidents like those in Collins andWillis invariably result in immense direct emotional anguish, this case does not present such tragic circumstances.
As discussed above, although plaintiff presents medical expenses of over $3,600.00, plaintiff's psychological injury, as a matter of law, fails to rise to the level of "permanent loss of bodily function" under N.J.S.A. 59:9-2. Accordingly, plaintiff fails to meet the pain and suffering threshold, and defendant City of Atlantic City's motion for summary judgment as to plaintiff's state law claim against it in Count Five of the Complaint will be granted on this ground.
III. CONCLUSION
In conclusion, because a reasonable jury could conclude that the underlying conduct of defendant Parker constituted an act depriving plaintiff of substantive due process, and that the act was done under color of state law, defendant Atlantic City's motion for summary judgment will be denied on plaintiff's § 1983 claim against Atlantic City in Count Four. Defendant's motion for summary judgment on plaintiff's state law claim in Count Five will be granted, because no reasonable jury could find that he sustained a permanent loss of bodily function under N.J.S.A. 59:9-2(d). The accompanying Order will be entered.
ORDER
THIS MATTER having come before the Court upon defendant Atlantic City's motion for summary judgment on plaintiff's § 1983 claim and state law claim against Atlantic City; and the Court having considered the parties' submissions; and for the reasons discussed in the Opinion of today's date; and for good cause;ORDERED that defendant Atlantic City's motion for summary judgment [Docket Item 11-1, 14-1] be, and hereby is, DENIED in part with respect to plaintiff's § 1983 claim against Atlantic City (Count Four), and GRANTED in part with respect to plaintiff's state law claims against Atlantic City (Count Five), and plaintiff's Count Five is hereby DISMISSED.