Miller v. Waterford Twp.

TRACEY MILLER, SR., RONALD MILLER, SR., LAVINA MILLER, S.M. (a minor),and TRACEY MILLER, SR., GUARDIAN AD LITEM for S.M., Plaintiffs, v. WATERFORD TOWNSHIP, et al., Defendants.

CIVIL ACTION NO. 11-3405 (JEI/JS)

CIVIL ACTION NO. 11-3578 (JEI/JS)

CIVIL ACTION NO. 11-3579 (JEI/JS)

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

Date: January 30, 2014

HONORABLE JOSEPH E. IRENAS

OPINION

APPEARANCES:

LAW OFFICES OF CHARLES A. FIORE

By: Charles A. Fiore, Esq.

Counsel for Plaintiffs

BARKER, GELFAND & JAMES, P.C.

By: Todd J. Gelfand, Esq.

Counsel for Defendant Waterford Township

REYNOLDS & HORN, P.C.

By: John J. Bannon, Esq.

Counsel for Defendants Timothy Lyons and Brent Staiger

POWELL, BIRCHMEIER & POWELL

By: James R. Birchmeier, Esq.

Counsel for Defendants Joseph McNally and Richard

Passarella

IRENAS, Senior District Judge:

Plaintiff Tracey Miller ("Tracey") initiated this action pursuant to 42 U.S.C. § 1983 against Waterford Township, the Borough of Chesilhurst, Evesham Township, and several of their police officers. Following the initiation of Tracey's suit, additional Plaintiffs Ronald and Lavina Miller (Tracey's parents, "Ronald" and "Lavina") and S.M. (Tracey's minor child) filed suit alleging similar violations of their federal and state constitutional rights stemming from incidents of alleged harassment, unlawful arrest, and excessive force.¹ Pending before the Court are three Motions for Summary Judgment pursuant to Federal Rule of Procedure 56(a) in each of the three cases, filed by (1) Defendant Waterford Township, (2) Defendants Timothy Lyons ("Lyons") and Brent Staiger ("Staiger"), and (3) Defendants Joseph McNally ("McNally") and Richard Passarella ("Passarella"). For the reasons that follow, these motions are granted in part and denied in part. A summary of each claim and its disposition appears at the end of this Opinion.

I.

Though some facts remain in dispute, the Court briefly reviews the circumstances giving rise to the claims at issue. The claims in these three lawsuits arise from three incidents in late 2010 and early 2011. A fourth incident in early 2012 is key to the supplemental counts alleged by Tracey against McNally. The Court begins by providing relevant background information and then describes each of the incidents giving rise to the instant suits.

Tracey Miller is a forty-five year-old male, previously married to Jennifer Miller. (Pls.' S.S.O.M.F. at ¶ 2)² The divorce between Tracey and Jennifer was not amicable, as it included cross-complaints for domestic violence, restraining orders, and police involvement at various points in 2009 and 2010. (See, e.g. Defs. Waterford Twp. S.O.M.F. ¶ 7) Following their divorce, at some point in March 2010, Jennifer and her father, Tom Watson, brought information to police concerning allegations that Tracey sent sexually explicit photographs to Tracey's step-daughter, V.W. (a minor). (Defs. Waterford Twp. S.O.M.F. ¶ 9) The substance and disposition of these criminal charges are not otherwise relevant to the instant suits.

The specific facts giving rise to the instant suits begin with a traffic stop of Tracey on October 14, 2010. (Defs. Waterford Twp. S.O.M.F. ¶ 16) Lyons initiated this stop when Tracey failed to reach a full stop at a stop sign. (Id.; Oct. 14 Police Rep. at 2) The police report detailing Tracey's arrest contains a number of allegations concerning Tracey's behavior while in custody, including that he was disruptive and uncooperative. (Oct. 14 Police Rep. at 3) In particular, Tracey and McNally engaged in a verbal confrontation while McNally administered the DWI tests following Tracey's arrest. (Defs. Waterford Twp. S.O.M.F. ¶¶ 19-23) As a result of the stop and subsequent criminal proceedings in the New Jersey court system, Tracey was convicted of a DWI charge.

Four days later, Tracey was the subject of a second police stop in Waterford Township. (Defs. Waterford Twp. S.O.M.F. ¶ 24) On October 18, 2010, Tracey was driving S.M., his minor daughter, in his pickup truck to a friend's house when he drove past Tom Watson's home. (Tracey Miller Dep. at 114, Aug. 27, 2012) As they went by, Tracey observed McNally and Watson having a conversation, which Tracey elected to record with a handheld camera while he was driving. (T. Miller Dep. at 113:18, Aug. 27, 2012) Shortly after driving past, Tracey realized he had left something behind at home and thereforeturned back, again passing McNally and Watson.³ (T. Miller Dep. at 114-116, Aug. 27, 2012) As Tracey went back to his home, Tracey ended up following McNally, who was now in his police vehicle and driving. (Defs. Waterford Twp. S.O.M.F. ¶ 26) After a short distance, McNally pulled to the side of the road and let Tracey pass, with the result that McNally now began traveling behind Tracey.

A few moments later, Tracey pulled his vehicle into a vacant parking lot, where the parties dispute what happened next. (Defs. Waterford Twp. S.O.M.F. ¶ 29) Tracey maintains that he pulled over to check on a bucket that was in the back of his vehicle, and then quickly got back into his vehicle and prepared to drive away before McNally turned into the parking lot and initiated a confrontation. (T. Miller Dep. 133-34, Aug. 27, 2012) In Tracey's retelling, after checking on his cargo in the back of his pickup truck, he observed McNally's vehicle entering the parking lot and then without any interaction, McNally came up to Tracey's driver-side window with his gun drawn. (T. Miller Dep. at 140:15, Aug. 27, 2012)

On the other hand, McNally's version of events conflicts with Tracey's recollection. In McNally's retelling of theincident, McNally drove past the lot, observed Tracey again taking a photograph of him, and then as McNally entered the parking lot to approach Tracey and investigate the nature of the photographs, Tracey put his own vehicle in drive in an attempt to leave. (Defs. Waterford Twp. ¶¶ 29-34)

Though the parties dispute the initiation of this confrontation, they agree that ultimately Tracey exited the vehicle (leaving S.M. behind in her seat) and fled on foot with McNally giving chase. (Defs. Waterford Twp. S.O.M.F. ¶¶ 36-38) At this time, Bernard Davis, an off-duty Evesham Township police officer, happened by and gave assistance to McNally in apprehending Tracey. (Defs. Waterford Twp. S.O.M.F. ¶ 38) As a result of these disputed circumstances, Tracey was charged with stalking, resisting arrest, and obstructing, charges that apparently remain pending. (Defs. Waterford Twp. S.O.M.F. ¶ 40)

The third and final incident relevant to all three lawsuits was an encounter between Tracey, S.M., and Ronald and Lavina on April 9, 2011. Sometime between 6:50 pm and 7:15 pm on that evening, just as Officer Staiger's shift was beginning, Staiger received a phone call from Eric Madera, a private citizen, indicating that Tracey might later be driving while under the influence of alcohol with his children in his car. (Defs. Waterford Twp. S.O.M.F. ¶ 42; Brent Staiger Dep. at 20:8-11) Staiger reported this tip to Sergeant Passarella when he came onduty, and the information was then shared with Lyons and other officers on duty that evening in Waterford Township. (Defs. Waterford Twp. S.O.M.F. ¶ 42)

Many of the other facts regarding the April 9 incident remain in dispute. As Tracey, with S.M. in his car, drove past the Rosedale Gun Club on Pestletown Road around 9:10 pm, Lyons reported that he observed Tracey's vehicle to have illegally tinted windows, precipitating a traffic stop. (Lyons Apr. 9, 2011 Police Rep. at 1) Lyons activated his sirens and pulled into the roadway behind Tracey to pull him over, but Tracey failed to immediately stop and instead proceeded some distance down Pestletown Road to Ronald and Lavina's home before pulling off the roadway. (Lyons Apr. 9, 2011 Police Rep. at 1) Once there, Lyons reported that Tracey jumped out of his vehicle and started walking towards the residence, apparently fleeing from Lyons's commands to stop. (Lyons Apr. 9, 2011 Police Rep. at 2) A physical confrontation ensued, where Lyons grabbed Tracey and pulled him to the ground during the course of arresting Tracey. (Lyons Apr. 9, 2011 Police Rep. at 2) According to Lyons, Ronald and Lavina verbally and physically tried to prevent Tracey's arrest, and a physical confrontation with Ronald ensued. (Lyons Apr. 9, 2011 Police Rep. at 2) With McNally finally arriving at the scene, Lyons completed his arrest ofTracey and turned his attention back to Ronald, who was injured as Lyons arrested him. (Lyons Apr. 9, 2011 Police Rep. at 2)

On the other hand, Tracey, Ronald, and Lavina testified that the April 9 incident occurred far differently. For example, Tracey indicated at his deposition that his vehicle's windows were rolled down when Lyons pulled him over, making it impossible for Lyons to have seen Tracey's illegally tinted windows. (T. Miller Dep. at 186:19-21, Sept. 4, 2012) Next, Tracey indicated that he never attempted to flee, an account confirmed by Ronald's observations as well. (T. Miller Dep. at 244, Sept. 4, 2012; Ronald Miller Dep. at 16) In short, Tracey, Ronald, and Lavina indicated that the physical altercation that resulted in Tracey and Ronald's injuries occurred as a result of unprovoked aggression on Lyons's part. Moreover, Lyons and Lavina disagree about whether Lyons hit Lavina with his flashlight - Lyons indicates that he never made contact with her, while Lavina claims she was hit in the arm. (Compare Timothy Lyons Dep. at 155:1 with Lavina Miller Dep. at 62:3)

Finally, a fourth incident on March 12, 2012, gave rise to two supplemental claims brought by Tracey against McNally. On that evening, Tracey was drinking at Starky's Pour House, a bar in Winslow Township, when McNally and Bill Monroe arrived at the bar. (T. Miller Dep. at 60:5-7, Sept. 4, 2012) Upon McNally and Monroe's arrival, a bartender warned Tracey that McNally hadjust entered the bar, and shortly after that, McNally and Monroe sat down at the bar...