NICHOLAS KRAMER BRIAN McGOVERN v. CITY OF JERSEY CITY THOMAS COMEY EDWARD BOYLAN

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Superior Court of New Jersey, Appellate Division.

NICHOLAS KRAMER and BRIAN McGOVERN, Plaintiffs–Appellants, v. CITY OF JERSEY CITY and in both his official and individual capacity:  Police Chief THOMAS J. COMEY and EDWARD F. BOYLAN, M.D., Defendants–Respondents.

DOCKET NO. A–3373–12T4

Decided: March 28, 2014

Before Judges Reisner and Carroll. D. Gayle Loftis argued the cause for appellants (Law Offices of D. Gayle Loftis, attorneys;  Ms. Loftis, on the brief). Michael Dougherty, Assistant Corporation Counsel, argued the cause for respondents City of Jersey City and Thomas J. Comey (Jeremy Farrell, Corporation Counsel, City of Jersey City, attorney;  Mr. Dougherty, on the brief). Stuart J. Polkowitz argued the cause for respondent Edward F. Boylan, M.D. (Brach Eichler, L.L.C., attorneys;  Mr. Polkowitz, of counsel and on the brief;  Thomas Kamvosoulis, on the brief).

Plaintiffs Nicholas Kramer and Brian McGovern appeal from orders dated February 6, 2013 dismissing their complaint against defendants, the City of Jersey City (City), Police Chief Thomas J. Comey, and Dr. Edward F. Boylan, for alleged violations of the New Jersey Constitution, the New Jersey Civil Rights Act, N.J.S.A. 10:6–2(c), and the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5–1 to –49.   We affirm.

I

Before filing their state court complaint, plaintiffs had unsuccessfully litigated essentially the same claims against defendants in a federal lawsuit based on 42 U.S.C.A. § 1983, and the Americans With Disabilities Act (ADA), 42 U.S.C.A. § 12112.   Briefly, plaintiffs alleged that their physicians prescribed steroids to treat them for a medical condition.   Plaintiffs, who were Jersey City police officers, filled the prescriptions at a New York pharmacy that was under investigation for the illegal distribution of steroids.   In 2008, a New York City (N.Y.C) Police captain advised Jersey City Police Chief Comey that, in addition to hundreds of NYC officers, fifty Jersey City officers had apparently filled prescriptions at this pharmacy.

Comey required the fifty officers, including plaintiffs, to undergo urine testing.   He relied on Dr. Boylan, an outside medical contractor, to advise him as to whether the results demonstrated that the officers could safely perform their jobs.   Because Dr. Boylan concluded that Kramer and McGovern both had unacceptably high steroid levels in their bloodstream,1 Comey temporarily relieved plaintiffs of their weapons and assigned them to modified duty.   McGovern was able to bring his blood levels down to normal and was returned to regular duty in 2008.   Kramer failed another blood test and was suspended for 159 days as a result.   By January 2009, Kramer had also been returned to regular duty.

In August 2009, the two officers filed a federal lawsuit, which was dismissed on the merits based on a finding that all of the defendants were entitled to qualified immunity.2  Kramer v. City of Jersey City, No. 09–CV–3767 (D.N.J. June 3, 2010) (slip op. at 16).   The federal judge's relevant, essential findings are set forth below:

Chief Comey had reasonable suspicion to mandate drug testing of the police officers․

The facts here demonstrate that Chief Comey acted appropriately under the circumstances.   Chief Comey received credible information that as many as fifty of his police officers were visiting a pharmacy in New York City that was under investigation for its distribution of illegal steroids.   He received this information from a captain of the NYPD Internal Affairs bureau, who was investigating the use of illegal steroid[s] by NYPD officers.   Chief Comey acted quickly to ensure that JCPD officers were not using steroids that would make them dangerous and unfit for duty.   This is a very significant concern.   He immediately mandated drug tests and disclosures of medical information, and hired [Dr. Boylan] to help aid in determining whether a police officer was fit for duty when the officer engaged in steroid use.

Second, even if alternatively the Court concluded that it was ambiguous whether a federal law was violated, Chief Comey would still be entitled to qualified immunity.   Under the second step, the Court considers whether it would be objectively reasonable for the officer to know that his actions were unlawful in the situation presented.   Here, Chief Comey was informed that Plaintiffs were customers of an obscure pharmacy in New York City (even though Plaintiffs are police officers in Jersey City, New Jersey) that was being investigated for selling unlawful steroids.   As the chief of police, it was objectively reasonable for Comey to believe that he was obligated to ensure that his police officers were not medically unfit for duty.   Police officers are provided a great amount of responsibility in our communities, and the mental and physical health of police officers is of the utmost concern.

․ The government's compelling interest in assuring that police officers are medically fit for duty is not proscribed because of the [New Jersey Attorney General's] policy [on drug testing]․  There is no basis for arguing that because a state policy only mentions certain types of illegal drugs then the Court should apply a different Fourth Amendment analysis, or alter the constitutional rights at issue․  Any drug impairment that affects a police officer's abilities is a significant concern.   Drug abuse of any form affects a person's abilities and reasoning, and in the case of a police officer it may cause great harm to the public.

[Id. at 12–13.]

Plaintiffs appealed to the Third Circuit Court of Appeals, which affirmed the District Court's order dismissing their federal complaint.  Kramer v. City of Jersey City, No. 10–2963 (3d Cir. Dec. 20, 2011) (slip op. at 2), reh'g denied, No. 10–2963 (Jan. 19, 2012).   The Court of Appeals rejected plaintiffs' argument that the District Court “determined the reasonableness of the defendants' actions without adequate factual development.”  Id. at 4. Notably, the Court of Appeals accepted as fact that steroid use by police officers posed a danger to the public:

[T]he Officers object to the District Court's observation that “[g]enerally, high steroid levels [are] linked to aggressive behavior,” ․ from which it inferred that drug testing, modified duty, and suspensions were reasonable measures taken to ensure that Jersey City police officers using steroids were neither dangerous nor unfit for duty.   However, the Officers do not deny the uncontroversial proposition that high steroid levels have been linked to aggressive behavior.   See generally Nat'l Inst. on Drug Abuse, Nat'l Insts. of Health, Pub. No. 06–3721, Research Report:  Anabolic Steroid Abuse 5 (2006), available at http://drugabuse.gov/PDF/RRSteroids.pdf. We hold that the District Court did not err by taking judicial notice of this relationship․  Chief Comey had a reasonable suspicion that the Officers' perception and judgment might be impaired by excessive steroid levels.   It was therefore reasonable for Chief Comey and Dr. Boylan to test the Officers for such excessive levels and to relieve them of their weapons until it was confirmed that their steroid levels were within safe limits.   See Nat'l Treasury Employees Union v. Von Raab, 489 U.S. 656, 671, 109 S.Ct. 1384, 1393, 103 L. Ed.2d 685, 705 (1989) ( “[T]he public should not bear the risk that employees who may suffer from impaired perception and judgment will be promoted to positions where they may need to employ deadly force.”).

[Id. at 4–7.]

Undeterred, plaintiffs filed a Law Division complaint, asserting LAD and State constitutional claims based on the same facts as their now-dismissed federal complaint.3  Defendants moved to dismiss based on collateral estoppel.   Dr. Boylan also moved to dismiss on statute of limitations and entire controversy grounds.   Because she considered matters outside the pleadings, the Law Division judge treated the motions as applications for summary judgment.   R. 4:6–2(e).4  The judge concluded that the complaint against all defendants was barred by collateral estoppel.   She also dismissed the LAD complaint as being filed beyond the statute of limitations.   She reasoned that filing the federal complaint did not toll the statute of limitations for filing the state complaint because the state complaint pled causes of action not included in the federal complaint.   The judge also concluded that new state law claims, which she found were not pled in the federal action, were barred by the entire controversy doctrine.

II

On this appeal, we review the judge's grant of summary judgment de novo, employing the same standard used by the trial judge.  Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J.Super. 162, 167 (App.Div.), certif. denied, 154 N.J. 608 (1998).   We consider whether there are material disputes of fact and, if not, whether the undisputed facts, viewed in the light most favorable to the non-moving party, nonetheless entitle the moving party to judgment as a matter of law.   See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

Relying on Galligan v. Westfield Centre Service, Inc., 82 N.J. 188 (1980), plaintiffs contend that the statute of limitations on their state law claims was tolled during the pendency of their federal complaint, because those same state law claims were asserted in the federal suit.   For the same reason, plaintiffs argue that the motion judge was mistaken in barring their complaint under the entire controversy doctrine.   They contend that the court's reliance on Blazer Corp. v. New Jersey Sports & Exposition Authority, 199 N.J.Super.   107 (App.Div.), certif. denied, 101 N.J. 261 (1985), was misplaced, because, unlike Blazer, their state complaint did not assert claims that had been omitted from their federal action.   See Blazer, supra, 199 N.J.Super. at 110–12.

We agree that the trial court erred on those points.   Our review of plaintiffs' amended federal complaint, filed on August 3, 2009, convinces us that in counts four and five, they did timely raise their State Constitution and LAD claims against all defendants, including Dr. Boylan.   Hence, those claims were not barred by either the statute of limitations or the entire controversy doctrine.

Nonetheless, we conclude that the trial court reached the correct result in dismissing the complaint, because it was barred by collateral estoppel.

Although collateral estoppel overlaps with and is closely related to res judicata, the distinguishing feature of collateral estoppel is that it alone bars relitigation of issues in suits that arise from different causes of action․

In order for the doctrine to apply, the party asserting the bar must show:

(1) the issue to be precluded is identical to the issue decided in the prior proceeding;

(2) the issue was actually litigated in the prior proceeding;

(3) the court in the prior proceeding issued a final judgment on the merits;

(4) the determination of the issue was essential to the prior judgment;  and

(5) the party against whom the doctrine is asserted was a party to or in privity with a party to the earlier proceeding.

[Selective Ins. Co. v. McAllister, 327 N.J.Super. 168, 173–74 (App.Div.2000) (quoting In re Estate of Dawson, 136 N.J. 1, 20, (1994)) (additional citations omitted).]

We conclude that these principles apply both to the federal court's legal determination that defendants were entitled to qualified immunity and to the essential factual findings underlying that legal conclusion.   Our courts recognize the defense of qualified immunity under the New Jersey Civil Rights Act, and apply federal case law to qualified immunity claims.   See Ramos v. Flowers, 429 N.J.Super. 13, 24 (App.Div.2012) (“We conclude that the Legislature anticipated that New Jersey courts would apply the well-established law concerning the affirmative defense of qualified immunity in adjudicating damage claims under the Act.”) Plaintiffs argue that collateral estoppel does not bar their claims because the New Jersey Constitution provides broader protection than the Federal Constitution.   However, plaintiffs fail to develop their argument by demonstrating how those differences are relevant or why they would allow plaintiffs to avoid the bar of collateral estoppel.

The federal court cogently dissected and rejected plaintiffs' Fourth Amendment and other federal constitutional claims, and plaintiffs have not demonstrated how their State constitutional claims are substantively different.   Both the United States Supreme Court and our Supreme Court have recognized that police officers have a diminished expectation of privacy, and are legitimately subject to drug testing, because they carry firearms and exercise the power of arrest.  Nat'l Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 103 L. Ed.2d 685 (1989);  Rawlings v. Police Dep't of Jersey City, 133 N.J. 182, 189–90 (1993).   The federal court's findings on the qualified immunity issue are as applicable to plaintiffs' State constitutional and Civil Rights Act claims as they were to the federal claims.5  Plaintiffs' arguments on this point are without sufficient merit to warrant further discussion.   R. 2:11–3(e)(1)(E).

In addition to their constitutional claims, plaintiffs argue that they suffered from an “endocrinal disability” for which steroids were a legitimate medical treatment, and they were therefore protected against discrimination under the LAD, N.J.S.A. 10:5–5(q).  However, the same essential factual findings that underlie the federal court's decision serve to defeat the LAD claim.   As the federal trial and appellate courts found, because steroid use can cause abnormally aggressive behavior, a police department has a legitimate, non-discriminatory reason to ensure that officers do not have unsafe levels of steroids in their systems.   See Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 596 (1988).   Chief Comey relied on the medical opinion of a doctor concerning the safety issue, and Dr. Boylan determined that plaintiffs' then-current medical conditions (e.g., the substances in their bloodstreams) precluded the safe performance of their job functions.

Notably, nowhere in plaintiffs' pleadings did they allege that they provided their employer with medical documentation that they could safely perform their jobs with the levels of steroids that were found in their bloodstreams.   In fact, Kramer actually litigated the safety issue before the Civil Service Commission and lost.   The ALJ's initial decision noted that “Kramer offered no evidence to discount the appropriateness of Dr. Boylan's conclusion that Kramer's T/E ratio made him susceptible to aggressive behavior and thus unfit for duty.”   The Commission affirmed the finding that he was unfit for duty during the suspension period.6  He was therefore collaterally estopped from arguing otherwise in the Law Division litigation.   See Winters v. N. Hudson Reg'l Fire and Rescue, 212 N.J. 67, 87–88 (2012) (Civil Service Commission decision upholding plaintiff's termination collaterally estopped him from later challenging his termination under the Conscientious Employee Protection Act).

Further, the Jersey City Police Department had a legitimate concern that fifty of its officers were filling prescriptions at a New York pharmacy that was under investigation for selling illegal steroids.   Nothing in the LAD would preclude the Department from investigating those officers to determine whether they were violating the laws they were sworn to uphold.   Plaintiffs' additional appellate arguments are without sufficient merit to warrant discussion in a written opinion.   R. 2:11–3(e)(1)(E).

Affirmed.

FOOTNOTES

1.  FN1. We refer to the substances as “steroids” although it might be more accurate to state that the use of steroids resulted in high levels of testosterone and epitestosterone (T/E) in the bloodstream.   This medical phenomenon was described in a report issued by the New Jersey Attorney General concerning the misuse of steroids by police officers.   Report of the Attorney General's Steroids Study Group, July 7, 2011.   The report was provided to the trial court as part of the motion filings.

2.  FN2. The federal judge dismissed the ADA claims for failure to state a claim under that statute.   The judge declined to adjudicate plaintiffs' LAD and other State law claims.

3.  FN3. Kramer also filed a separate Civil Service challenge to his suspension.   An administrative law judge found that Jersey City satisfied its burden of proving that Kramer was unfit for duty from August 20, 2008 to January 14, 2009, but modified the penalty from suspension to leave of absence without pay.   The Civil Service Commission adopted the ALJ's decision.

4.  FN4. In violation of Rule 2:6–1(a), plaintiffs' appendix omitted the motion exhibits, and did not contain a statement of the items submitted to the trial court on the summary judgment motion.   Defendants' joint appendix provided us with the motion exhibits.

5.  FN5. Plaintiffs argue that in 2008, the Attorney General's Guidelines on drug testing of law enforcement officers did not include steroids.   We agree with the federal court that the Guidelines did not prohibit testing for steroids;  the guidelines simply did not list steroids as a substance for which the State Toxicology Laboratory (STL) would test urine specimens.   However, as previously noted, in 2011, the Attorney General issued a report on steroid abuse by law enforcement officers.   We take judicial notice that the Guidelines were updated in 2012 to include steroids as a substance for which the STL would test urine specimens.   Further, as early as 2003, the Jersey City Police Chief's General Order concerning drug testing of law enforcement officers included testing for steroids.

6.  FN6. In their motion to dismiss, the City defendants provided the trial court with the ALJ and Commission decisions.

PER CURIAM

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