Sorry…this is very sloppy, but here it is:
TABLE OF CONTENTS Page No.: STATEMENT OF FACTS 1 LEGAL ARGUMENT 9 POINT I LEGAL STANDARD APPLICABLE TO MOTION TO DISMISS 9 POINT II THE ALLEGATIONS CONTAINED IN PLAINTIFF’S COMPLAINT DO NOT SET FORTH A CAUSE OF ACTION FOR ANY CIVIL RIGHTS VIOLATION 11
A. THE FILING OF A FALSE POLICE REPORT IS NOT A CIVIL RIGHTS VIOLATION 12 B. THE FAILURE TO CONDUCT AN ADEQUATE INVESTIGATION IS NOT A CIVIL RIGHTS VIOLATION 14 C. THE FAILURE TO INTERVENE IN A DISPUTE IS NOT A CIVIL RIGHTS VIOLATION 15 POINT III DEFENDANTS ARE ENTITLED TO QUALIFIED IMMUNITY 20 CONCLUSION 22 MRS-L-001562-21 09/21/2021 2:52:13 PM Pg 2 of 24 Trans ID: LCV20212192383
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STATEMENT OF FACTS
On July 22, 2021, Plaintiff Michael Barisone (“Barisone”)
filed a First Amended, Corrected Complaint in the Morris County
Superior Court against Washington Township and 11 of its police
officers. Exhibit A to the Certification of William G. Johnson,
Esq. Those 11 officers are Brian Szymanzki (“Szymanski”), Derek
Heymer (“Heymer”), Brian Bigham (“Bigham”), Michael Hade (“Hade”),
Philip Seabeck (“Seabeck”), Thomas Falleni (“Falleni”), Andrew
Tesori (“Tesori”), Jason Hensley (“Hensley”), Michael Thompson
(“Thompson”), Anthony Costantino (“Costantino”), and Roger
Garrison (“Garrison”) (hereinafter, “Defendants”). In his complaint, Plaintiff has alleged that he co-owned a
farm located in Washington Township, New Jersey. Exhibit A. He
further alleged that various persons occupied and visited the farm,
including Lauren S. Kanarek (“Kanarek”) and Robert Goodwin
(“Goodwin”). Exhibit A. Plaintiff further alleged that he
operated a business at the farm wherein he provided training
services for persons interested in competing in dressage. Exhibit
A. According to the Plaintiff, Kanarek became his client. Exhibit
A. Plaintiff alleges that he began providing training to Kanarek
in or about March of 2018. Exhibit A. Plaintiff further alleged
that Kanarek and Goodwin began residing at the farm in or about
May of 2019. MRS-L-001562-21 09/21/2021 2:52:13 PM Pg 3 of 24 Trans ID: LCV20212192383
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Plaintiff further alleged that, after Kanarek and Goodwin
began residing at the farm, Kanarek “commenced displaying behavior
towards BARISONE, Gray, and/or other farm residents and visitors,
which was increasingly threatening and/or otherwise unacceptable.”
Exhibit A, Paragraph 39. Plaintiff further alleged that Kanarek
harassed, stalked, and threatened him and others through various
social media platforms. Exhibit A, Paragraphs 40 through 44.
Plaintiff further alleged that Kanarek threatened him and others.
Exhibit A, Paragraph 45. Plaintiff claims to have been placed in
reasonable fear of physical harm by Kanarek’s actions. Exhibit A,
Paragraphs 46 through 47. With respect to the factual allegations against the various
individually named defendants, Plaintiff’s complaint described
those allegations based on when the events are alleged to have
occurred. For ease of reference herein, the Plaintiff’s
allegations will be grouped similarly, based on the individual
defendants that were alleged to have been involved in each specific
incident. According to the Plaintiff, Defendants Tesori and Seabeck
allegedly authored a “false and misleading police report”
regarding their investigation of a July 31, 2019, incident at the
farm. In addition, Plaintiff alleged that Tesori and Seabeck
“intentionally disregarded the facts and circumstances being
reported to them and intentionally failed to act to protect” MRS-L-001562-21 09/21/2021 2:52:13 PM Pg 4 of 24 Trans ID: LCV20212192383
3
Plaintiff based on that incident. Exhibit A, Paragraphs 48 through
55. With respect to Defendants Hensley and Seabeck, Plaintiff
alleged that they responded to the farm on August 1, 2019. Exhibit
A, Paragraphs 56 through 77. Plaintiff further alleged that
Hansley and Seabeck “intentionally disregarded the facts and
circumstances being reported to them and intentionally failed to
take appropriate action” with respect to that incident. Exhibit
A, Paragraph 62. Plaintiff further alleged that Hensley and
Seabeck “intentionally discounted, mischaracterized, and/or simply
ignored” Plaintiff’s reports regarding the August 1, 2019,
incident. Exhibit A, Paragraph 70. Plaintiff further alleged
that Hensley and Seabeck prepared a “false and misleading” police
report documenting the August 1, 2019, incident. Exhibit A,
Paragraph 71. Plaintiff further alleged that Defendant Seabeck
had a conversation with an unidentified assistant prosecutor at
the Morris County Prosecutor’s Office wherein he failed to provide
“a full, complete, truthful and/or accurate report” of the
incident. Exhibit A, Paragraph 74. Plaintiff has alleged that Defendants Thompson and Falleni
responded to the Plaintiff’s property on August 3, 2019. Exhibit
A, Paragraphs 78 through 102. Plaintiff has alleged that these
Defendants “failed to investigate . . . criminal acts . . . failed
to take other appropriate non-discretionary action in response to MRS-L-001562-21 09/21/2021 2:52:13 PM Pg 5 of 24 Trans ID: LCV20212192383
Plaintiff further alleged that, after Kanarek and Goodwin
began residing at the farm, Kanarek “commenced displaying behavior
towards BARISONE, Gray, and/or other farm residents and visitors,
which was increasingly threatening and/or otherwise unacceptable.”
Exhibit A, Paragraph 39. Plaintiff further alleged that Kanarek
harassed, stalked, and threatened him and others through various
social media platforms. Exhibit A, Paragraphs 40 through 44.
Plaintiff further alleged that Kanarek threatened him and others.
Exhibit A, Paragraph 45. Plaintiff claims to have been placed in
reasonable fear of physical harm by Kanarek’s actions. Exhibit A,
Paragraphs 46 through 47. With respect to the factual allegations against the various
individually named defendants, Plaintiff’s complaint described
those allegations based on when the events are alleged to have
occurred. For ease of reference herein, the Plaintiff’s
allegations will be grouped similarly, based on the individual
defendants that were alleged to have been involved in each specific
incident. According to the Plaintiff, Defendants Tesori and Seabeck
allegedly authored a “false and misleading police report”
regarding their investigation of a July 31, 2019, incident at the
farm. In addition, Plaintiff alleged that Tesori and Seabeck
“intentionally disregarded the facts and circumstances being
reported to them and intentionally failed to act to protect” MRS-L-001562-21 09/21/2021 2:52:13 PM Pg 4 of 24 Trans ID: LCV20212192383
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Plaintiff based on that incident. Exhibit A, Paragraphs 48 through
55. With respect to Defendants Hensley and Seabeck, Plaintiff
alleged that they responded to the farm on August 1, 2019. Exhibit
A, Paragraphs 56 through 77. Plaintiff further alleged that
Hansley and Seabeck “intentionally disregarded the facts and
circumstances being reported to them and intentionally failed to
take appropriate action” with respect to that incident. Exhibit
A, Paragraph 62. Plaintiff further alleged that Hensley and
Seabeck “intentionally discounted, mischaracterized, and/or simply
ignored” Plaintiff’s reports regarding the August 1, 2019,
incident. Exhibit A, Paragraph 70. Plaintiff further alleged
that Hensley and Seabeck prepared a “false and misleading” police
report documenting the August 1, 2019, incident. Exhibit A,
Paragraph 71. Plaintiff further alleged that Defendant Seabeck
had a conversation with an unidentified assistant prosecutor at
the Morris County Prosecutor’s Office wherein he failed to provide
“a full, complete, truthful and/or accurate report” of the
incident. Exhibit A, Paragraph 74. Plaintiff has alleged that Defendants Thompson and Falleni
responded to the Plaintiff’s property on August 3, 2019. Exhibit
A, Paragraphs 78 through 102. Plaintiff has alleged that these
Defendants “failed to investigate . . . criminal acts . . . failed
to take other appropriate non-discretionary action in response to MRS-L-001562-21 09/21/2021 2:52:13 PM Pg 5 of 24 Trans ID: LCV20212192383
4
notification that such criminal conduct was occurring, and
intentionally failed to intervene” regarding the August 3, 2019,
incident. Exhibit A, Paragraph 95. Plaintiff also alleged that
Defendants Thompson and Falleni “failed to act to intervene in
what obviously was a police matter and not just a ‘private
dispute.’” Exhibit A, Paragraph 96. Plaintiff also alleged that
these Defendants authored a “false and misleading” police report
dated August 8, 2019. Exhibit A, Paragraphs 98 through 99. In Paragraphs 103 through 118 of the Complaint, Plaintiff
alleged that Defendants Bigham and Constantino responded to the
Plaintiff’s property on August 4, 2019. He further alleged that
these Defendants “intentionally disregarded . . . the facts and
circumstances being reported to them and intentionally failed to
act to intervene…” Plaintiff further alleged that Defendants
Bigham and Constantini authored an issued a “false and misleading”
police report dated August 4, 2019. In Paragraphs 119 through 132 of his Complaints, Plaintiff
made various allegations against unidentified police officers
regarding an incident at the Washington Township Police Department
on August 5, 2019. Specifically, Plaintiff alleged that he arrived
at the Washington Township Police Department on August 5, 2019 and
requested to speak to a supervisor. Exhibit A, Paragraph 121.
Plaintiff further alleged that despite his request, the
unidentified officers he spoke with at that time “intentionally MRS-L-001562-21 09/21/2021 2:52:13 PM Pg 6 of 24 Trans ID: LCV20212192383
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ignored the facts and circumstances, intentionally blocked
BARISONE from speaking with a supervisor above them in rank,
intentionally mischaracterized the situation as a ‘private
dispute,’ intentionally refused to aid or assist BARISONE, and
forced him to leave the building without permitting him to speak
to anyone having supervisory authority over them and/or the
situation at the Farm.” Exhibit A, Paragraph 130. In addition,
Plaintiff alleged that these unidentified officers failed to
prepare a police report. Exhibit A, Paragraph 131. In Paragraphs 133 through 145 of Plaintiff’s complaint, he
set forth various allegations concerning an incident that is
alleged to have occurred at midday on August 6, 2019. He alleged
that various unidentified employees of Defendant Washington
Township, including an individual identified as the “Chief
Building Inspector” arrived at Plaintiff’s premises to conduct
inspections. It is further alleged by Plaintiff that he and other
occupants were ordered to vacate various living spaces at the farm. In Paragraphs 146 through 155 of Plaintiff’s complaint, he
alleged that various unidentified employees of Washington Township
as well as unidentified Washington Township Police Officers
returned to the Farm in the evening on August 6, 2019, to determine
whether he and the other occupants had vacated the living quarters
as had been previously ordered. Plaintiff further alleged that
during that period, one of the occupants was bitten by a dog MRS-L-001562-21 09/21/2021 2:52:13 PM Pg 7 of 24 Trans ID: LCV20212192383
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belonging to another occupant and that Defendants refused to remove
the dog from the premises. Exhibit A, Paragraphs 151 through 153.
Plaintiff further alleged that Defendant Garrison and Defendant
Hade authored a false police report on August 11, 2019, concerning
this incident. Exhibit A, Paragraph 155. Plaintiff has further alleged that on August 7, 2019, an
incident occurred at the Farm wherein one of the occupants at the
farm was shot in the chest multiple times. Exhibit A, Paragraph
156. Plaintiff further indicated that he was arrested and is
presently being held in jail. Exhibit A, Paragraph 157. Based on the factual allegations summarized above, Plaintiff
has alleged that the Defendants violated his civil rights under
both the United States and New Jersey Constitutions. Exhibit A,
Paragraphs 168 through 175. Specifically, Plaintiff has alleged
that the aforementioned conduct violated the following civil
rights: 1. Freedom of speech, “including his right to make reports
to the police;” 2. His civil right to “file and pursue appropriate
petitions with the government (including reports of crime and/or
emergency calls and to have those petitions addressed fully,
completely, expeditiously, lawfully and appropriately;” 3. His
civil right to “equal protection under the law;” 4. His right to
be free from unlawful retaliation for exercising constitutionally
protected rights;” 5. His New Jersey constitutional right “to
protect his reputation and good name;” 6. His rights as a victim MRS-L-001562-21 09/21/2021 2:52:13 PM Pg 8 of 24 Trans ID: LCV20212192383
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of crime “to be treated with fairness, compassion, respect and the
like;” 7. His substantive due process rights, procedural due
process rights, and/or other statutory rights” as a victim of
domestic violence; and 8. “other civil rights and interests.”
Exhibit A, Paragraph 171. In addition to his allegations that his Civil Rights were
violated by the Defendants, Plaintiff has also alleged that the
actions of the Defendants violated the New Jersey Law Against
Discrimination. Exhibit A, Paragraphs 176 through 181. Finally,
Plaintiff alleged that the Defendants “committed the wrongful
acts, actions, and omissions, which constituted intentional torts
against BARISONE, including acts of official misconduct, criminal
civil rights deprivations, and/or other wrongful conduct not
subject to tort immunity. Exhibit A, Paragraphs 182 through 184. In essence, the gravamen of the Plaintiff’s cause of action
is that the Defendants failed to conduct a proper investigation of
his complaints regarding the behavior of Ms. Kanarak and Mr.
Goodwin, failed to properly document those complaints, and failed
to take appropriate action regarding those complaints, such as
charging Ms. Kanarak and Mr. Goodwin with criminal offenses and
removing them from the property. As will be demonstrated below, even accepting the plaintiff’s
factual allegations as true, each of the Plaintiff’s alleged causes MRS-L-001562-21 09/21/2021 2:52:13 PM Pg 9 of 24 Trans ID: LCV20212192383
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of action fail as a matter of law and, therefore, his complaint
should be dismissed.
10
357 N.J. Super. 196, 202 (App. Div. 2003). In ruling on a Rule
4:6–2(e) motion to dismiss, the Court may consider “‘allegations
in the complaint, exhibits attached to the complaint, matters of
public record, and documents that form the basis of a claim.’”
Banco Popular N. Am. v. Gandi, 184 N.J. 161, 183 (2005)
(quoting Lum v. Bank of Am., 361 F.3d 217, 222 n. 3 (3d
Cir.), cert. denied, 543 U.S. 918 (2004)). In this case, it is respectfully submitted that the
Plaintiff’s complaint fails to set forth any viable cause of action
against any of the Defendants and therefore must be dismissed.
MRS-L-001562-21 09/21/2021 2:52:13 PM Pg 12 of 24 Trans ID: LCV20212192383
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POINT II THE ALLEGATIONS CONTAINED IN PLAINTIFF’S COMPLAINT DO NOT SET FORTH A CAUSE OF ACTION FOR ANY CIVIL RIGHTS VIOLATION
The Plaintiff has alleged that various actions and omissions
of the Defendants violated his Civil Rights under both the United
States and New Jersey Constitutions. He enumerated the rights
allegedly violated in Paragraphs 170 and 171 of the complaint.
However, an analysis of the factual allegations set forth in the
complaint leads to the unmistakable conclusion that those factual
allegations, even if accepted as true, do not support any of the
claimed civil rights violations. Therefore, Plaintiff’s complaint
must be dismissed. Section 1983 of Title 42 of the United State Code provides a
civil remedy against any person who, acting under color of state
law, deprives another of rights protected by the United States
Constitution. Mattern v. City of Sea Isle, 131 F.Supp.3d 305, 313
(Dist. N.J. 2015). To establish a claim under §1983, a plaintiff
must demonstrate that his constitutional rights were violated and
that a person acting under color of state law committed the
deprivation. Id. at 313 (citing West v. Atkins, 487 U.S. 42, 48
(1988)). “The first step in evaluating a §1983 claim is to
‘identify the exact contours of the underlying right said to have
been violated’ and to determine ‘whether the plaintiff has alleged MRS-L-001562-21 09/21/2021 2:52:13 PM Pg 13 of 24 Trans ID: LCV20212192383
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a deprivation of a constitutional right at all.’” Nicini v. Morra,
212 F.3d 798, 806 (3rd Cir. 2000) (quoting Sacramento v. Lewis, 523
U.S. 833, 841 n. 5 (1998)).
A. THE FILING OF A FALSE POLICE REPORT IS NOT A CIVIL RIGHTS VIOLATION
It is the Plaintiff’s claim that various civil rights were
violated by the Defendants’ failure to prepare and file accurate
police reports. That claim is unsupported by the applicable law as
there does not exist a civil right to an accurate police report.
In Landrigan v. City of Warwick, 628 F.2d 736, 744 (1st Cir. 1980),
the Court stated that “the mere filing of the false police reports,
by themselves and without more, did not create a right of action
in damages under 42 U.S.C. 1983.” The Landrigan opinion has been
cited favorably by United States District Court in Pennsylvania
and by the Third Circuit Court of Appeals. In Jarrett v. Twp. of Bensalem, 312 Fed. Appx. 505 (3rd Cir.
2009), the Court upheld the District Court’s order granting summary
judgment to the Defendants. The Court held that the Plaintiff did
not have a no Constitutional right to a correct police report.
Id. at 507. “The District Court correctly noted that ‘[c]ourts in
the Eastern District of Pennsylvania and elsewhere have held that
the filing of a false police report is not itself a constitutional
violation.’” Ibid. MRS-L-001562-21 09/21/2021 2:52:13 PM Pg 14 of 24 Trans ID: LCV20212192383
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In Bush v. City of Philadelphia, 1999 WL 55485 (E.D. Pa.
1999), the Court dismissed the Plaintiff’s complaint, noting that
“[c]ases decided in this court and elsewhere show that conspiracy
by police officers to file false reports and otherwise cover up
wrongdoing by fellow officers is not in and of itself a
constitutional violation.” See Exhibit B to the Certification of
William G. Johnson, Esq. In Thompson v. Howard, 2013 WL 2338347 (W.D. Pa. 2013), the
District Court dismissed most of the Plaintiff’s claims against
the defendants, including the claim that his civil rights were
violated by the filing of a false police report. The Court stated
that “the law is clear that there is no constitutional right to a
correct police report.” See Exhibit C to the Certification of
William G. Johnson, Esq. In his complaint, Plaintiff claims that his constitutional
rights were violated by the Defendants due to their filing of false
police reports. As the above cited cases make clear, there is no
constitutional right to an accurate police report. As a result,
even if one were to accept the Plaintiff’s assertion that the
various police reports referenced in the complaint contained
falsehoods, that does not give rise to a civil rights violation.
As a result, the plaintiff’s claim that his civil rights were
violated by the filing of false police reports must be dismissed. MRS-L-001562-21 09/21/2021 2:52:13 PM Pg 15 of 24 Trans ID: LCV20212192383
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B. THE FAILURE TO CONDUCT AN ADEQUATE INVESTIGATE IS NOT A CIVIL RIGHTS VIOLATION
It is the Plaintiff’s claim that his civil rights were
violated by the Defendants’ failure to conduct a proper
investigation of his claims. In Rossi v. City of Chicago, 790 F.3d 729 (7th Cir. 2015), the
Court affirmed the District Court’s Order granted summary judgment
to the Defendants. In so doing, the Court noted that plaintiff
did “not have a constitutional right to have the police investigate
his case at all, still less do so to his level of satisfaction.”
Id. at 735. In Thomas v. City of Philadelphia, 290 F.Supp.3d 371, 386
(E.D. Pa. 2018), the court granted defendants’ motion to dismiss
in part, noting that the third circuit has not recognized a
constitutional cause of action for “failure to investigate.” See
also, Wright v. City of Philadelphia, 229 F.Supp.3d 322, 332 n.3
(E.D. Pa. 2017) (“It certainly remains to be seen whether there is
an independent cause of action under the Fourteenth Amendment for
Count 2’s claim for ‘failing to conduct a constitutionally adequate
investigation,’ and the Court will not affirmatively recognize one
here at this time.”) In his complaint, Plaintiff claims that his constitutional
rights were violated by the Defendants due to their failure to
adequately investigate his allegations against Ms. Kanarek and Mr. MRS-L-001562-21 09/21/2021 2:52:13 PM Pg 16 of 24 Trans ID: LCV20212192383
15
Goodwin. As the above cited cases make clear, there is no
constitutional right to an adequate investigation. As a result,
even if one were to accept the Plaintiff’s assertion that the
Defendants’ investigation of his complaint was inadequate, that
does not give rise to a civil rights violation. As a result, the
plaintiff’s claim that his civil rights were violated due to the
Defendants’ failure to conduct an adequate investigation must be
dismissed.
C. THE FAILURE TO INTERVENE IN A DISPUTE IS NOT A CIVIL RIGHTS VIOLATION
Throughout his complaint, Plaintiff alleges that the
Defendants should have intervened in his dispute with Kanarek and
Goodwin. In Paragraph 170 (d), Plaintiff complains that his
constitutional rights were violated by “the defendants’
intentional, deliberate, persistent false characterization of the
occurrences at the Farm being reported to the defendants as private
disputes between a landlord and tenant when, in reality, the
occurrences were police matters that required the intervention of
law enforcement.” See Exhibit A. Since Defendants are immune
from such claims under the New Jersey Tort Claims Act, this claim
must be dismissed. Two provisions of the Tort Claims Act are applicable to the
Plaintiff’s claims, N.J.S.A. 59:5-4 and N.J.S.A. 59:5-5. N.J.S.A.
59:5-4 provides that “Neither a public entity nor a public employee MRS-L-001562-21 09/21/2021 2:52:13 PM Pg 17 of 24 Trans ID: LCV20212192383
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is liable for failure to provide police protection service or, if
police protection service is provided, for failure to provide
sufficient police protection service.” N.J.S.A. 59:5-5 provides
that “Neither a public entity nor a public employee is liable for
injury caused by the failure to make an arrest or by the failure
to retain an arrested person in custody.” Often, Court have
addressed the applicability of both provisions. In Wuethrich v. Delia, 155 N.J. Super. 324 (App. Div. 1978),
the Court affirmed the trial court’s order granting summary
judgment to defendants. The Court stated that “while it is true
that police officers have a duty to investigate information from
citizens concerning unlawful or criminal activity, the failure of
the police to make an arrest as a consequence does not subject the
municipality to tort liability.” Id. at 326. More broadly, the
Court stated that “A public entity such as a municipality is not
liable in tort for its failure to protect against the criminal
propensities of third persons.” Ibid. In Lee v. Doe, 232 N.J. Super. 569 (App. Div. 1989), the Court
again affirmed the trial court’s order granting summary judgment
to the Defendants based on N.J.S.A. 59:5-5. There, the Plaintiff
claimed that Defendants were liable for their alleged failure to
take appropriate action in response to his request for assistance.
Plaintiff had been at a “cook-out” at his home when he was
threatened by another guest. The police were called but only MRS-L-001562-21 09/21/2021 2:52:13 PM Pg 18 of 24 Trans ID: LCV20212192383
17
remained for a few minutes. The guest subsequently returned
brandishing a shot gun. The police were called to the scene again,
but the perpetrator had fled the scene. He returned a third time
and proceeded to fire the shotgun, injuring the plaintiff. The Plaintiff filed suit, claiming that the police failed to
respond to his call for aid in a reasonable and professional manner
and, after responding, acted in a negligent and unprofessional
manner. The trial court granted Defendants’ motion for summary
judgment, ruling that they were immune from liability based on
N.J.S.A. 59:5-5. The Appellate Division affirmed, finding that
N.J.S.A. 59:5-5 barred the plaintiff’s claims. In Sczyrek v. County of Essex, 324 N.J. Super. 235 (App. Div.
1999), the Appellate Division affirmed the trial court’s order
granting summary judgment to the Defendants, based on the
immunities contained in the Tort Claims Act. There, the widow of
a police officer who was murdered in the Essex County Courthouse
sued alleging that the Defendant County and its employees were
liable for an inadequate security system and for their failure to
appropriately respond to warnings concerning the murder plot. Id.
at 238. The trial court dismissed both the inadequate security claim
and the negligence claim regarding the alleged failure to respond
to warnings regarding the assailant. The Appellate Division found
that the trial court properly dismissed that claim as it was barred
by N.J.S.A. 59:5-4. The court then addressed the failure to
respond to the alleged warnings claim. The Court noted that the immunity codified in N.J.S.A. 59:5-
4 was motivated by a desire to shield governmental policy decisions
from tort liability. Id. at 242. However, the statutory language
is much broader. There is no reason, therefore, why the statutory
immunity should not apply whenever there is a claim based
on a “failure to provide police protection service.”’
This is so whether that failure is attributable to a
policy decision at the highest level, a tactical
decision by some lesser ranking official (perhaps a desk
sergeant who determines what, if any, response is
appropriate to a particular call), and even the alleged
actions of telephone operators or other non-ranking
employees which may lead to a “failure to provide police
protection.” [Id. at 242-43.] The Court further noted its previous decisions in Lee v. Doe,
supra, and Wuethrich v. Delia, supra, which held that N.J.S.A.
59:5-4 barred similar claims. “In both cases, police officers
either refused to respond or refused to act to provide appropriate
protection.” Id. at 245. Under such circumstances, the Court found
that N.J.S.A. 59:5-4 barred the plaintiff’s claim that defendants
had negligently failed to respond to warnings concerning the
murder. Here, the Plaintiff claims that the Defendants failed to
appropriately intervene in the Plaintiff’s dispute with Kanarek
and Goodwin. Even if the Plaintiff’s allegations concerning the
Defendants failure to intervene are assumed to be true, that claim MRS-L-001562-21 09/21/2021 2:52:13 PM Pg 20 of 24 Trans ID: LCV20212192383
19
is barred by both N.J.S.A. 59:5-4 and N.J.S.A. 59:5-5. As a
result, those claims must be dismissed. The claims made by the plaintiff are barred either because
they do not involve actual civil rights of the plaintiff, such as
the alleged right to an accurate police report and adequate police
investigation or are barred by the applicable provisions of the
Tort claims. In addition, the Plaintiff’s allegations concerning
the Defendant’s alleged violation of the New Jersey Law Against
Discrimination are similarly barred. Furthermore, Plaintiff’s
claim that the Defendants committed intentional torts, such as
official misconduct are likewise barred. As a result, Plaintiff’s
complaint must be dismissed.
MRS-L-001562-21 09/21/2021 2:52:13 PM Pg 21 of 24 Trans ID: LCV20212192383
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CONTINUED BELOW:
