SUZANNE VENEZIA VS. UNION COUNTY PROSECUTOR'S OFFICE, Â(L-1786-12, MONMOUTH COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is only binding on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2281-14T4
SUZANNE VENEZIA,
Plaintiff-Appellant,
v.
UNION COUNTY PROSECUTOR'S OFFICE,
THEODORE J. ROMANKOW, LISA
CYBULSKI, SUZANNE DEEGAN, ANNE
GIBBONS-LEJNIEKS, Individually and
in their Official Capacity as
Employees of the UNION COUNTY PROSECUTOR'S
OFFICE, UNION COUNTY, BOARD OF CHOSEN
FREEHOLDERS, CRANFORD POLICE
DEPARTMENT and BRIAN WAGNER, STEVEN
D'AMBOLA, THOMAS FEENEY, MATTHEW
WIDDOWS, Individually and in their
Official Capacity as Employees (or
Former Employees) of the CRANFORD
POLICE DEPARTMENT, TOWNSHIP OF CRANFORD,
NANCY VENEZIA, MONMOUTH COUNTY SHERIFF'S
OFFICE, MONMOUTH COUNTY BOARD OF
CHOSEN FREEHOLDERS, MONMOUTH COUNTY
CORRECTIONAL INSTITUTION and WILLIAM
FREASER, Individually and in his
Official Capacity as Warden (former)
of MONMOUTH COUNTY CORRECTIONAL
INSTITUTION, and Individually and in
their Official Capacity as Employees
of the MONMOUTH COUNTY CORRECTIONAL
INSTITUTION, CARMELA VENEZIA,
Defendants,
and
BOROUGH OF BRIELLE, BRIELLE POLICE
DEPARTMENT and TODD GERLACH, GARY
OLSEN, Individually and in their
Official Capacity as Employees of
the BRIELLE POLICE DEPARTMENT,
Defendants-Respondents.
_______________________________________
Submitted September 19, 2016 - Decided August 11, 2017
Before Judges Nugent and Currier.
On appeal from the Superior Court of New
Jersey, Law Division, Monmouth County, Docket
No. L-1786-12.
Suzanne Venezia, appellant pro se.
Chamlin, Rosen, Uliano & Witherington,
attorneys for respondents (James J. Uliano,
on the brief).
PER CURIAM
Plaintiff Suzanne Venezia appeals from a November 8, 2013
order denying her motion for reconsideration of an order for
summary judgment. The summary judgment order dismissed her
complaint with prejudice as to the Borough of Brielle, Brielle
Police Department, and Officers Todd Gerlach and Gary Olsen.
2 A-2281-14T4
Plaintiff also appeals from a December 15, 2014 stipulation of
dismissal.1 For the reasons that follow, we affirm.
On April 20, 2012, plaintiff filed a three-count complaint
against all defendants.2 She stated her cause of action against
defendants Borough of Brielle, Brielle Police Department and
Brielle Officers Todd Gerlach and Gary Olsen (the Brielle
defendants) in the complaint's first count. There, she alleged
the Brielle defendants violated the New Jersey Civil Rights Act
(CRA) on August 30, 2009, when they "did seize, arrest and
incarcerate [her] without probable cause in violation of the New
Jersey Constitution." She further alleged in Count I that "the
acts committed by the [Brielle defendants] in the handling of the
investigation, and in the arrest and incarceration of the
[p]laintiff, in depriving the [p]laintiff's liberties, were a
reckless disregard and deliberate indifference to the
[p]laintiff's constitutional and civil rights, freedoms, and
interest." She asserted that these violations of her civil rights
caused her to suffer mental and emotional anxiety, and physical
1
The appeal from this stipulation appears to be an error.
Plaintiff does not challenge the stipulation in her brief. Rather,
she challenges the trial court's denial of her discovery motions.
2
The order from which plaintiff appeals, denying reconsideration
of her summary judgment motion, pertains only to defendants Borough
of Brielle, Brielle Police Department, Todd Gerlach and Gary Olsen.
For that reason, our discussion of this action's procedural history
and legal issues is confined to these defendants.
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injury. She also claimed to have suffered "in her business and
reputation."
Plaintiff also alleged a cause of action in Count I against
the other public entity defendants. In Count II, plaintiff alleged
a cause of action for malicious prosecution against her sister.
In the same count, she alleged her sister and mother filed false
police reports, which included reports to the Brielle Police
Department accusing plaintiff of harassment and trespassing. In
Count III, plaintiff alleged another cause of action against her
sister for filing false police reports.
During discovery, plaintiff filed a motion to compel the
Brielle defendants to produce certain records. The trial court
denied the motion, explaining:
The [c]ourt held a Case Management Conference
on 4/11/13 where the only items remaining in
discovery were depositions of two Brielle
police officers. Plaintiff is seeking
personal financial information to which she
is not entitled until she secures a judgment.
Moreover, the plaintiff has not shown any
basis to pierce the self-critical analysis
privilege.
Plaintiff filed a motion for reconsideration. The court denied
the motion on July 12, 2013.
Following completion of discovery, the Brielle defendants
filed a motion for summary judgment. In support of their motion,
the Brielle defendants filed a statement of material facts, which
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included citations to the motion record as required by Rule 4:46-
2(a). This pleading and the evidence referenced in it established
the following account of relevant events.
On August 24, 2009 – six days before the Brielle defendants
arrested plaintiff – Brielle Police Officer Gary Olsen responded
to plaintiff's mother's summer home (the Brielle residence).
Plaintiff's mother and sister had contacted the police department
to report difficulties with plaintiff. According to the mother
and sister, during the previous weekend plaintiff had become
verbally abusive. Plaintiff threatened to break into the Brielle
residence and remove valuable items because she was unemployed and
receiving no steady income. The family members reported they had
been giving plaintiff money, but when they stopped, plaintiff
became enraged and left the residence.
According to the officer's report, plaintiff's mother forbid
plaintiff from entering the Brielle residence property until she
received proper medical attention to address her mental illness.
Plaintiff's mother asked the officer not to contact plaintiff
directly because police contact might worsen the situation.
Six days later, on August 30, plaintiff returned to the
Brielle residence. According to a statement given to police by
plaintiff's sister, their mother had filed a "No Trespass" order
against plaintiff the previous Monday, and plaintiff was aware of
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the order. The sister explained that when she reminded plaintiff
of the order, plaintiff replied she was aware of it but did not
care about it. Plaintiff called her sister a name and accused her
of manipulating other family members.
Plaintiff's brothers were expected to arrive any minute. When
plaintiff's sister implored plaintiff to wait for her brothers,
plaintiff refused. Plaintiff's sister locked the doors to prevent
plaintiff from driving in her agitated state. According to
plaintiff's sister, plaintiff grabbed her arms, lifted her, and
pushed her out of the way. Plaintiff also pushed their mother,
who was trying to talk to plaintiff. Plaintiff left the house,
got into her car, and drove away. Plaintiff returned shortly
thereafter.
Brielle Police Officer Todd Gerlach and another officer
responded to the call. Upon their arrival, plaintiff was present,
as were her mother, sister and brothers. Plaintiff's sister
recounted her conversation with plaintiff and how plaintiff had
assaulted her and her mother.
According to the police report, when the officers interviewed
plaintiff, she "stated her sister was 'telling me I wasn't supposed
to be at the house and she was calling the police.'" Because
plaintiff did not want to be at the house, she attempted to leave,
but her mother and sister prevented her from doing so. Plaintiff
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allegedly told the officers, "[y]es, I did push them out of the
way. That was the only way I could get by them."
The officers arrested plaintiff for "Domestic Violence/Simple
Assault[, and] Defiant Trespass." When plaintiff was unable to
post bail set by a municipal court judge, she was transported to
the Monmouth County Correctional Institution, where she remained
overnight.3
In response to the Brielle defendants' statement of material
facts, plaintiff did not "file a responding statement either
admitting or disputing each of the facts in the movant's statement"
with citation to evidence in the motion record demonstrating a
genuine dispute. R. 4:46-2(b). Nonetheless, plaintiff included
in her opposition a statement of material facts in which she
challenged, among other evidence, the accuracy of the "facts"
contained in Brielle police reports and deposition transcripts of
the Brielle officers. In support of her statement of material
facts, plaintiff asserted:
The Plaintiff's facts are found here-below;
these are the exact words (with excerpts from
paragraphs) used by the Plaintiff in her
Complaint filed on 4/20/2012 (Paragraphs 22-
44); furthermore, these facts find direct
reference in the Plaintiff's words of
September 2009 in the Plaintiff's complaint
filed against Nancy Venezia in Brielle
3
The simple assault and defiant trespass charges were dismissed
by a municipal court judge on the State's motion after the
complainants declined to testify.
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Municipal Court (Exhibits A and B hereto) and
in this Court in September of 2009[.]"
Plaintiff's statement of facts also set forth the following
information. Plaintiff was not present at the Brielle residence
on August 24, 2009, when Officer Olsen met plaintiff's mother and
sister. Plaintiff claims that when she arrived at the Brielle
residence on August 30, 2009, her mother greeted her and helped
her put groceries into the refrigerator. Later, she was confronted
by her sister, who accused her of trespassing. Plaintiff replied
she was unaware of any trespassing. Nonetheless, upset by her
sister's angry words, plaintiff decided to return to her own home
rather than spend the night at the Brielle residence.
When plaintiff went upstairs to pack, her sister followed
her, and told her she could not go home and remain at the Brielle
residence to speak with her brothers. When plaintiff insisted
upon leaving, her sister locked the residence doors. Plaintiff
admits that "[w]ith only her handbag and backpack, she pushed her
sister sideways to get out of the home through the back door by
releasing the slide lock." Plaintiff claims her sister scratched
her left arm. Plaintiff went to her car and as she drove away,
her sister was screaming in the street.
Plaintiff decided to return to the Brielle property to settle
any issues once and for all. She drove back to the house and,
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shortly thereafter, her brothers arrived. Brielle police officers
also arrived.
Plaintiff said she explained to the officers she had no
knowledge whatsoever of any trespassing. In fact, she said she
had spoken to her mother throughout the previous week, the
exchanges were pleasant, and her mother never informed her that
she should not return to the Brielle residence. According to
plaintiff, rather than addressing her illegal confinement "with
locked and guarded house doors," the officers spoke to her
brothers, who in turn informed plaintiff she had only two choices:
drive with them to a hospital for a psychiatric evaluation or be
arrested. The officers offered her the same option. Plaintiff
replied that if the officers intended to falsely arrest her, they
should do it. Thereafter, the officers placed plaintiff under
arrest.
After receiving all the summary judgment pleadings, the trial
court scheduled oral argument, but the court received a letter
from plaintiff the day before argument stating she did not wish
to attend. For that reason, the court cancelled oral argument.
The trial court granted the Brielle defendants' motion. The
court noted that in plaintiff's complaint, she alleged she had
been caused to suffer mental and emotional anxiety, physical
injury, and damage to her business and reputation as a result of
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the incident. The court analyzed these claims under the New Jersey
Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3. The court
determined plaintiff had not satisfied the TCA requirement that
she suffer "permanent loss of a bodily function, permanent
disfigurement or dismemberment where the medical treatment
expenses are in excess of $3,600" to recover for pain and
suffering. The court further determined the Brielle Officers were
immune from liability under N.J.S.A. 59:3-3, which immunizes
public employees for liability if they act "in good faith in the
execution or enforcement of any law." The statute does not
exonerate a public employee from liability for false arrest or
false imprisonment. The court determined "no reasonable jury
could conclude that Officer Gerlach and Officer Olsen did not act
either objectively or subjectively reasonably based on New Jersey
law." Consequently, the court concluded that the officers were
immune from liability under N.J.S.A. 59:3-3.
Lastly, the court determined plaintiff failed to demonstrate
a genuinely disputed issue of material fact concerning liability
of the Borough and the Police Department. Plaintiff had not shown
the police violated her civil rights by acting contrary to law
pursuant to a governmental custom, policy statement, ordinance,
regulation, or decision.
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On appeal, plaintiff argues the trial court granted the
Brielle defendants' summary judgment motion after improperly
denying her requests for discovery, thereby effectively permitting
the Brielle defendants to circumvent discovery. She also argues
her opposition papers created genuinely disputed issues of
material fact concerning her claims against the Brielle
defendants. Specifically, she argues "with regard to [the Brielle
defendants'] purported 'good faith,' qualified immunity" claim,
the facts she developed on the record "are certainly sufficient
to find the Brielle [d]efendants acted without probable cause and
with malice." Plaintiff submits a jury should have decided her
claims.
Appellate courts "review[] an order granting summary judgment
in accordance with the same standard as the motion judge." Bhagat
v. Bhagat, 217 N.J. 22, 38 (2014) (citations omitted). We "review
the competent evidential materials submitted by the parties to
identify whether there are genuine issues of material fact and,
if not, whether the moving party is entitled to summary judgment
as a matter of law." Ibid. (citing Brill v. Guardian Life Ins.
Co. of Am., 142 N.J. 520, 540 (1995); R. 4:46-2(c)). A trial
court's determination that a party is entitled to summary judgment
as a matter of law is "not entitled to any special deference[,]"
11 A-2281-14T4
and is subject to de novo review. Manalapan Realty, L.P. v. Twp.
Comm. of Manalapan, 140 N.J. 366, 378 (1995) (citations omitted).
The defense of qualified immunity "extends to suits brought
under . . . the Civil Rights Act, N.J.S.A. 10:6-1 to -2." Brown
v. State of New Jersey, ___ N.J. ___, ___ (2017) (alteration in
original) (citation omitted). "The affirmative defense of
qualified immunity protects government officials from personal
liability for discretionary actions taken in the course of their
public responsibilities, 'insofar as their conduct does not
violate clearly established statutory or constitutional rights of
which a reasonable person would have known.'" Ibid. (quoting
Morillo v. Torres, 222 N.J. 104, 116 (2015)).
In Malley v. Briggs, 475 U.S. 335, 337, 106
S. Ct. 1092, 1094, 89 L. Ed. 2d 271, 276
(1986), . . . the Supreme Court considered
"the question of the degree of immunity
accorded a defendant police officer in a
damages action under 42 U.S.C. § 1983 when it
is alleged that the officer caused the
plaintiff[] to be unconstitutionally arrested
. . . [without] probable cause."
[Wildoner v. Borough of Ramsey, 162 N.J. 375,
386 (2000) (second, third and fourth
alterations in original).]
The Court, concluding that an officer applying
for a warrant is entitled to assert qualified
but not absolute immunity, observed that the
defense of qualified immunity: provides ample
protection to all but the plainly incompetent
or those who knowingly violate the law . . . .
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Under the Harlow[4] standard . . . an allegation
of malice is not sufficient to defeat immunity
if the defendant acted in an objectively
reasonable manner . . . . Defendants will not
be immune if, on an objective basis, it is
obvious that no reasonably competent officer
would have concluded that a warrant should
issue, but if officers of reasonable
competence could disagree on this issue,
immunity should be recognized.
[Ibid. (alterations in original) (citing
Malley, supra, 475 U.S. at 341, 106 S. Ct. at
1096, 89 L. Ed. 2d at 278).]
In the case before us, we can discern from the complaint a
single cause of action against the Brielle defendants: a violation
of the CRA. "In 2004, the Legislature adopted the CRA for the
broad purpose of assuring a state law cause of action for
violations of state and federal constitutional rights and to fill
any gaps in state statutory anti-discrimination protection."
Owens v. Feigin, 194 N.J. 607, 611 (2008) (citation omitted).
"[T]he CRA's purpose includes rectifying violations of
constitutional rights, the protection of which has never depended
on the satisfaction of the TCA's procedural and substantive
requirements." Id. at 613. Thus, "the [TCA] is inapplicable to
claims instituted pursuant to the [CRA]." Thigpen v. City of East
Orange, 408 N.J. Super. 331, 342 (2009) (citing Owens, supra, 194
N.J. at 613).
4
Harlow v. Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727, 73 L. Ed.
2d 396 (1982).
13 A-2281-14T4
It appears from the Brielle defendants' brief and the trial
court's opinion that defendants and the court liberally construed
the self-represented plaintiff's complaint to state unspecified
tortious damage claims. Assuming that is so, the court did not
err by dismissing such claims under the relevant TCA provisions.
Nonetheless, the CRA claim against the Brielle defendants was
properly dismissed, because the Doctrine of Qualified Immunity
applied.
Plaintiff's allegation that the Brielle officers acted with
malice "is not sufficient to defeat immunity if [the officers]
acted in an objectively reasonable manner." Malley, supra, 475
U.S. at 341, 106 S. Ct. at 1095, 89 L. Ed. 2d at 278. They did.
When Officer Olsen responded to the Brielle residence on August
24, 2009, plaintiff's sister said plaintiff had been told
explicitly not to return to the residence. Six days later, when
Officer Gerlach responded to the residence, he and his fellow
officer interviewed those present and were provided with ample
information to support a finding of probable cause that plaintiff
committed the offenses of simple assault and trespass.
Even if we were to conclude in hindsight that the issue of
probable cause was debatable, the officers nonetheless acted in
an objectively reasonable manner. They interviewed the parties
who were present, evaluated the information, assessed the
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situation, and exercised their law enforcement function.
Considering the totality of circumstances, we cannot find there
are genuinely disputed facts of record from which a jury could
determine "it is obvious that no reasonably competent officer
would have concluded" the circumstances did not warrant
plaintiff's arrest. Ibid. Accordingly, the trial court did not
err in granting the Brielle defendants' summary judgment motion
as to the officers.
Nor did the trial court err in determining the Borough and
the Police Department were entitled to summary judgment under the
principles announced in Monell v. Dep't of Soc. Servs., 436 U.S.
658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). Plaintiff's arguments
to the contrary are without sufficient merit to warrant further
discussion. R. 2:11-3(e)(1)(E).
Because the trial court properly granted the Brielle
defendants' summary judgment motion, the court did not err by
denying plaintiff's motion for reconsideration.
Plaintiff's contention that the court improperly limited
discovery is also without merit. "Appellate review of a trial
court's discovery order is governed by the abuse of discretion
standard." State in Interest of A.B., 219 N.J. 542, 554 (2014)
(citations omitted). "Thus, an appellate court should generally
defer to a trial court's resolution of a discovery matter, provided
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its determination is not so wide of the mark or is not 'based on
a mistaken understanding of the applicable law.'" Ibid. (citations
omitted). Here, we discern nothing in the record that demonstrates
the trial court's resolution of discovery matters constituted an
abuse of discretion.
We have considered plaintiff's remaining arguments and
determined they are without sufficient merit to warrant discussion
in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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