Boody v. Township of Cherry Hill

997 F.Supp. 562

Michael BOODY, Plaintiff, v. TOWNSHIP OF CHERRY HILL, Camden County Board of Chosen Freeholders, Cherry Hill Township Police Department, William Moffett, George Stein, Lt., Edward Borden, Josh Ottenberg, Office of the Camden County Prosecutor, John Does 1-15 (names being fictitious and unknown), jointly, severally, and individually, Defendants.

No. CIV. A. 96-5145 (JBS).

United States District Court, D. New Jersey.

December 18, 1997.

COPYRIGHT MATERIAL OMITTED

Robert Freidel, David D. Blake, University Executive Campus, Turnersville, NJ, for plaintiff Michael Boody.

Burchard V. Martin, William J. Martin, Martin, Gunn & Martin, P.A., Westmont, NJ, for defendants Township of Cherry Hill, Cherry Hill Police Dept., William Moffett, and George Stein, Lt.

Robert G. Millenky, County Counsel by M. Lou Garty, Asst. County Counsel, Camden, NJ, for defendants Camden County Board of Chosen Freeholders, Edward Borden, Josh Ottenberg, and Office of the Camden County Prosecutor.

OPINION

SIMANDLE, District Judge.

Currently before the court are a series of motions filed by all parties in this case and arising out of a Complaint filed by plaintiff Michael Boody against defendants Township of Cherry Hill ("Township"), Cherry Hill Police Department ("Police Department"), William Moffett ("Moffett"), the Cherry Hill Chief of Police, and Lt. George Stein ("Stein"), the Cherry Hill Director of Internal Affairs, (collectively, "Cherry Hill Defendants"); Camden County Board of Chosen Freeholders ("County"), Office of the Camden County Prosecutor ("Prosecutor's Office"), Edward Borden ("Borden"), the Camden County Prosecutor, and Josh Ottenberg ("Ottenberg"), an Assistant Camden County Prosecutor, (collectively, "Camden Defendants"); and John Does 1-15 (collectively, "Defendants").¹ All counts of the Complaint but one allege claims under state statutory and common law, including the Conscientious Employee Protection Act (CEPA), the New Jersey Racketeer Influenced and Corrupt Organizations Act (RICO), intentional infliction of emotional distress, negligent infliction of emotional distress, constructive discharge, conspiracy, harassment, and interference with contract of employment. The sole federal claim, asserted in Count Three of the Complaint solely against the Cherry Hill Defendants, arises under 42 U.S.C. § 1983 and provides this court with jurisdiction. See 28 U.S.C. §§ 1331 and 1367(a). Before the court are various motions and cross motions to dismiss and for summary judgment filed by all defendants and ultimately touching on each of plaintiff's claims. In response to defendants' motions, plaintiff filed two motions to amend the original Complaint. Finally, plaintiff has appealed a discovery Order of Magistrate Judge Robert B. Kugler. The court will consolidate these motions and treat them together in this Opinion.²

I. Background

Plaintiff was a member of the Cherry Hill Police Department between August 1985 and May 18, 1995, when he tendered his resignation. (Pl. Cross-Motion for Summ. J. Reply Mem., Ex. I.) During the course of his employment with the Police Department, plaintiff received numerous commendations for his work. (Pl. Mem. in Opp'n to Camden Defs. 1st Motion for Summ. J., Ex. A.) Plaintiff alleges that while employed at the Police Department, he obtained a bachelor's degree from Rutgers University with a major in computer science. (Compl. at ¶ 14.) He allegedly used his newly acquired knowledge to develop a computer system for the Police Department at the behest of the Department's Chief of Police, defendant William Moffett. (Compl. at ¶ 22.) When plaintiff refused to turn over the "source code" of the system, defendant Moffett allegedly began a campaign to remove plaintiff from the Police Department. (Compl. at ¶ 33.)

Plaintiff further alleges that Moffett instituted a fraudulent "ticket reward system" in the Police Department, whereby police officers would receive undocumented leave as a reward for issuing a certain number of motor vehicle summonses. (Compl. at ¶ 51.) When plaintiff criticized this scheme, defendant Moffett allegedly responded with additional retaliatory actions against plaintiff. (Compl. at ¶ 71.)

Moffett's retaliation allegedly intensified after an event involving plaintiff that occurred on January 25, 1995, while plaintiff was off-duty. On that date, plaintiff and an acquaintance, William Mitchell, lured Charles Zanetich to Mitchell's home. (Pl. Mem. in Opp'n to Cherry Hill Defs.3d Motion for Summ. J., Ex. F, Boody Dep. at 121.) Plaintiff wanted to investigate threats he believed Zanetich had made against his life. (Id. at 121.) When Zanetich arrived, plaintiff and Mitchell frisked him, handcuffed him, placed him on the floor, and bound his ankles with tape. (Id. at 126-33.) Plaintiff never reported his actions to either the Cherry Hill or Gloucester County Police Departments. (Id. at 133-34.) The following day the incident was reported to the Cherry Hill Police Department. (Camden Defs. 1st Motion for Summ. J., Rule 12G Statement at ¶ 3.)³

The Police Department and the Prosecutor's Office subsequently commenced investigations of the incident. (Compl. at ¶¶ 88-92.) Plaintiff was represented by an attorney during these investigations. (Pl. Mem. in Opp'n to Cherry Hill Defs.2d Motion for Summ. J., Ex. A, Boody Cert. at ¶ 2.) On the advice of his attorney, plaintiff resigned from his position at the Police Department on May 11, 1995. (Boody Dep. at 177-78.) The resignation agreement provided that in exchange for resigning and agreeing to testify truthfully before the grand jury investigating the Zanetich incident, plaintiff would not be subject to criminal prosecution for his involvement. (Pl. Mem. in Opp'n to Cherry Hill Defs.3d Motion for Summ. J., Ex. M.) Plaintiff subsequently testified before a grand jury regarding Mitchell's involvement in the incident. (Camden Defs. 1st Motion for Summ. J., Rule 12G Statement at ¶ 10.) Plaintiff was never indicted by the grand jury for his own involvement. (Id. at ¶ 12.) Plaintiff alleges that both the Cherry Hill and Camden Defendants investigated his involvement in the incident solely to retaliate against him and to force his resignation. (Compl. at ¶¶ 90, 107, 111.)

Plaintiff filed this Complaint on October 30, 1996. Each of the claims asserted by plaintiff is based on the alleged retaliatory conduct of the defendants. Counts One through Four assert claims against Moffett, Police Department, and Township under the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 et seq. (West 1988 & Supp.1997), N.J.S.A. 40A:14-147 (West 1993 & Supp.1997),⁴ 42 U.S.C. § 1983, and the New Jersey Racketeer Influenced and Corrupt Organizations Act (New Jersey RICO), N.J.S.A. 2C:41-2 (West 1995)⁵, respectively. Additionally, plaintiff asserts the following common law claims: intentional infliction of emotional distress against Moffett, Borden, and Ottenberg (Count Five); negligent infliction of emotional distress against Moffett, Borden, Ottenberg, Prosecutor's Office, and County (Count Six); constructive discharge against Moffett (Count Seven); conspiracy against Moffett, Borden, Police Department, and Does 1-15 (Count Eight); harassment against Moffett and Does 1-15 (Count Nine); and interference with contract of employment against the Camden Defendants (Count Ten). In Count Eleven, plaintiff alleges that the actions of the individual defendants were all done within the scope of their employment and that their employers, Police Department, Township, Prosecutor's Office, and County, are strictly liable for their conduct.

The Camden Defendants have submitted two motions for summary judgment, the Cherry Hill Defendants three. In response, plaintiff has filed two motions to amend the Complaint and has also appealed the discovery Order of Magistrate Judge Robert B. Kugler dated September 12, 1997. The court will decide each of these motions and plaintiff's appeal together in this Opinion.

II. Discussion

A. Summary Judgment Standard

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 Hersh v. Allen Prods. Co., 789 F.2d 230, 232 (3d Cir.1986); 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." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is "material" only if it might affect the outcome of the suit under the applicable rule of law. Id. Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. Id.

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. See Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1080-81 (3d Cir. 1996); Kowalski v. L & F Products, 82 F.3d 1283, 1288 (3d Cir.1996); Meyer v. Riegel Products Corp., 720 F.2d 303, 307 n. 2 (3d Cir.1983), cert. dismissed, 465 U.S. 1091, 104 S.Ct. 2144, 79 L.Ed.2d 910 (1984). The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Liberty Lobby, 477 U.S. at 250; Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 329-330 (3d Cir.1995) (citing Anderson, 477 U.S. at 248) ("[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.").

The moving party always bears the initial burden of showing that no genuine issue of material fact exists, regardless of which party ultimately would have the burden of persuasion at trial. Celotex...