OPRA from Libertarians for Transparent Gov 0526616

Jan, 6. 2014 2:35PM
Law Office Of Richard Pescatore
Nc. 8895
Richari11. Tescatore,
P. 22
'ECEIVED & FIL D
1055 East Landis Avenue
Vineland, New Jersey 08360
(856)-507-1000
Attorney ID: 35160485
Attorney for Plaintiff
NOV 2 61013
SUPER1OR
COURTOP N
COUNTY
CIVIL PAR
SUPERIOR COURT OF NEW JERSEY
LAW DIVISION
GLOUCESTER
COUNTY
•
Plaintiff(s)
JOSEPH M. RICKERT
vs.
• DOCKET NO.: GLO-LDefendant(s)
BOROUGH OF WOODBURY HEIGHTS;
TOWNSHIP OF WEST DEPTFORD;
OFFICER MICHAEL FRANKS;
OFFICER NICHOLAS DIBIASIO; and
JOHN DOES (1-10)
— 13
Civil Action
Complaint
Plaintiff, Joseph M. Rickert, residing in the County of Gloucester, and State of New
Jersey, by way of Complaint against the defendants says:
first Count
1. At all times hereinafter mentioned the plaintiff, Joseph Rickert, was a resident of the
State of New Jersey and an individual.
2. At all times hereinafter mentioned., the defendant, Borough of Woodbury Heights, by and
through its Police Department, was a public entity and the employe' of co-defendant,
Officer Nicholas DiBiasio, an individual.
3. John Doe defendants are individuals and officers including those with supervisory
authority over defendants Michael Franks and Nicholas DiBiasio,
4. All defendants are "persons" as defined by 42 U.S.C. § 1983.
5. At all times hereinafter mentioned, the defendant, Township of West Deptford, by and
through its Police Department, was a public entity and the employer of co-defendant,
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Law Office Of Richard Pescatore
No.8895
P. 23
Officer Michael Franks, an individual.
6. On or about April 6, 2012, plaintiff was unlawfully and unreasonably detained by Officer
Michael Franks of the West Deptford Police Department on the roadways of West
Deptford Township. Officer Nicholas DiBiasio of the Borough of Woodbury Heights,
assisted defendant Officer Michael Franks.
7. At said time and place, defendants, Officer Michael Franks and Officer Nicholas
DiBiasio, while acting under the color of the state law, violated the plaintiffs Fourth, Fifth
and Fourteenth Amendment Rights as guaranteed by the Constitution of the United States
and the New Jersey State Constitution in that defendants Franks and Nicholas
unreasonably and unlawfully seized plaintiff and used excessive force causing significant
permanent injury to plaintiff
8. The conduct of the defendants, while acting under color of state law, was objectively
unreasonable in that the plaintiff did not pose any immediate threat to the safety of
defendants or others, nor was he actively engaged in resisting arrest or attempting to
evade arrest by flight.
9, The defendants further violated the plaintiff's right to be free from false arrest and
unlawful imprisonment in that they were without probable cause to arrest or detain
plaintiff and without reasonable belief to conclude an offense had bcr!en committed.
10.Defendants Franks, DiBiasio and John Doe officers failed to intervene upon witnessing
the constitutional deprivation.
11. As a direct and proximate result of the acts/omissions of the defendants, plaintiff has
sustained significant and permanent injuries, emotional distress and other damages all to
his great detriment and loss.
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Law Office Of Richard Pescatore
Nc. 8895
P. 24
Wherefore, the plaintiff demands judgment against the defendant sufficient to
compensate.him for his losses together with costs of suit, attorney fees, punitive damages
and such other relief as is deemed equitable and just and permitted under the law.
Second Count
12. The plaintiff repeats each and every allegation in the First Count and incorporates the
same herein by reference thereto
13.The defendants violated the plaintiff's right of Equal Protection under the law as
guaranteed by the Fourteenth Amendment of the Constitution of the United States and the
New Jersey State Constitution in that their actions had a discriminatory effect and were
motivated by discriminatory purpose in violation of the law in that i:he plaintiff is in a
protected class (disabled) and was treated differently from similarly situated individuals
in an unprotected class.
14.As a direct and proximate result of the acts/omissions of the co-defendants the plaintiff
sustained significant emotional distress, permanent injuries and oth...r damages all to his
great detriment and loss.
Wherefore, the plaintiff demands judgment against the defe.Adants sufficient to
• compensate him for his losses together with costs of suit, attorney fies, punitive damages
and such other relief as is deemed equitable and just and permitted under the law.
Third Count
15. The plaintiff repeats each and every allegation contained in the First and Second Counts
and incorporates the same herein by reference thereto.
16.The defendants, the Township of West Deptford and the Borough of Woodbury Heights,
maintained a policy and custom in violation of 42 U.S.C. § 1983 of violating the
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2:35PM
Law Off ice Of Richard Pescatore
Nc. 8895
P. 25
constitutional rights of individuals including but not limited to plaintiff, Joseph Rickert
and by not taking action against employees responsible for the improper discharge of their
duties including false arrest and the use of excessive force.
17.The defendant municipalities further failed to adequately investigate plaintiffs citizen's
complaint of constitutional deprivations.
18. The policy and customs of the defendant municipalities constitute actions under color of
state of law and are a direct and proximate cause of plaintiffs injuries as set forth herein,
Wherefore, the plaintiff demands judgment against the defendants sufficient to
compensate him for his losses together with cost of suit, attorney fees, punitive damages
and such other relief as is deemed equitable and just and permitted .,ruder the law.
Fourth Count
19.The plaintiff repeats each and every allegation contained in the First, Second and Third
Counts and incorporates the same herein by reference thereto.
DI The acts/omissions of the defendants constitute a violation of 42 U. S.C. § 1985 (3) in that
they engaged in a conspiracy which violated plaintiffs Fourth, Fifth, Eighth and
Fourteenth Amendment Rights under the United States Constitution, defendants were
motivated by invidious discriminatory animus based on the plaintiff's protected
class/category as a disabled individual, for the purpose of depriving, either directly or
indirectly, the plaintiff of equal protection under the laws and, in fth therance of the
conspiracy, by subjecting the plaintiff to harm by virtue of the use of excessive force,
proximately causing injury to the plaintiff in deprivation of his constitutional rights.
21. in particular, the acts/omissions of the co-defendant police officers, in using excessive
force and handcuffing the plaintiff, and using unreasonable force, even after the plaintiff
disclosed to both officers that he suffered from Cerebral Palsy, withDut justification,
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Law Office Of Richard Pescatore
N. 8895
P. 26
cause or provocation, constitutes a violation of Plaintiff's constitutional rights pursuant to
42 U.S.C. § 1985(3).
Wherefore, the plaintiff demands judgment against the defendants sufficient to •
compensate him for his losses together with costs of suit, attorneys fees, punitive
damages and such other relief as is deemed equitable and just and permitted under the
law.
Fifth Count
22. Plaintiff repeats each and every allegation contained in the First, Second, Third, and
Fourth Counts and incorporates the same herein by reference thereto.
23. John Doe defendants are supervisors of defendants Franks and DiBiasio and violated
plaintiff's Fourth, Fifth, Eighth and Fourteenth Amendment rights under the United
States Constitution and the New Jersey State Constitution and are subject to suit pursuant
to 42 U.S.C. § 1983,
24. John Doe defendant supervisors acquiesced and knew or should have known of defendant
Franks and DiBiasio's prior actions and John Doe supervisors were deliberately
indifferent or acquiesced to defendant Franks and DiBiasio's constitutionally offensive
conduct.
25. As a direct and proximate result of the acts/omissions of the defendants, plaintiff
sustained significant and permanent injuries, emotional distress and other damages all to
his great detriment and loss.
Wherefore, the plaintiff demands judgment against the defendants sufficient to
compensate him for his losses together with costs of suit, attorneys fees, punitive
damages and such other relief as is deemed equitable and just and p:;rmitted under the
law.
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Law Office Of Richard Pescatore
Nc. 8895
P. 27
Sixth Count
26. Plaintiff repeats each and every allegation contained in the First, Second, Third, Fourth
and Fifth Counts and incorporates the same herein by reference the::eto.
27. Defendant's course of conduct related herein constitutes a violation. of the New Jersey
Law Against Discrimination, NIS.A. 10:5-1 et. m.
28. As a direct and proximate result of the acts/omissions of the defendants, plaintiff
sustained significant and permanent injuries, emotional distress and other damages all to
his great detriment and loss.
Wherefore, the plaintiff demands judgment against the defendants sufficient to
compensate him for his losses together with costs of suit, attorneys fees, punitive damages and
such other relief as is deemed equitable and just and permitted under the law.
RICHARD M. PESCATORE
A Professional Corporation
Date: November 22, 2013
hi/ Richard M. Pescatore, Eiquirta
RICI-IARD M. PESCATORE
Attorney for Plaintiffs
Jan. 6. 2014
2:36PM
Law Office Of Richard Pescatore
No, 8895
P. 28
Certification of Counsel Tursuant to le 4:5-1
I, RICHARD M. PESCATORE, ESQUIRE, hereby certify:
The matter in controversy is not the subject of any other action pendiAg in any other Court or
arbitration proceeding and no such action or proceeding is contemplated.
I certify that the foregoing statements made by me are true. I am aware that if any of the
foregoing statements made by me are willfully false, I am subject to punishment.
RICHARD M. PESCATORE
A Professional Corporation
Date: November 22, 2013
l~JRichtrd M. Pescatore, Esquire
RICHARD M. PESCATORE
Attorney for Plaintiffs
Demanifor jury TrialThe plaintiff demands a Trial by jury on all issues in accord with the Rules of this Court.
Notice 'Pursuant to cCe 4:25-1(4)
find
4:25-4
TAKE NOTICE that Richard M. Pescatore, Esquire, attorney for the plaintiffs, is hereby
designated trial counsel pursuant to the provisions of the above-stated Rules,
RICHARD M. PESCATORE
A Professional Corporation
Date: November 22, 2013
/s/ Richard 1VI. Pescatore, Esquire
RICHARD M. PESCATORE
,-.Ten7741F
:W. I
RELEASE AND SETTLEMENT AGREEMENT
KNOW ALL MEN BY THESE PRESENTS:
THIS RELEASE AND SETTLEMENT AGREEMENT ("Release") is made and
entered into by and between Plaintiff Joseph M, Rickert ("Plaintiff') and The Township of
West Deptford ("Defendant") identified as a Defendant in the lawsuit described below.
WHEREAS, the Plaintiff, Joseph M. Rickert, has presented claims against Defendant,
arising out of the incident which occurred on April 6, 2012 as is more fully described in the
Complaint filed by Plaintiff in the United States District Court, Camden Vicinage at docket
number: 14-CV-0093 ("the Lawsuit"), and
WHEREAS, the Plaintiff and the Defendant desire to settle the matters raised in the
Lawsuit, together with any and all other matters pertaining to the parties named herein, other
parties named in the lawsuit and the above noted incident, that might have been raised, that could
be raised, that could have been raised, or that might be raised in the future, and
WHEREAS, the parties to the Lawsuit wish to make a full, complete, and final
settlement of all those matters, and
NOW THEREFORE, with the foregoing background being incorporated herein by
reference, and made part hereof, Plaintiff, and his attorney, for and in consideration of the total
sum and sole consideration of the following sum: Two Hundred Thirty-seven Thousand Five
Hundred Dollars ($237,500.00) for bodily injury only, which shall be payable to Plaintiff and
his attorney Richard M. Pescatore, Esquire for personal injuries, receipt of which is hereby
acknowledged, does hereby remise, release, and forever discharge, and by these presents, does
for himself, his successors, administrators, assigns, heirs and executors, remise, release, and
forever discharge the Defendant and its respective past, present, and future officers, directors,
stockholders, attorneys, agents, servants, representatives, employees, subsidiaries, affiliates,
partners, predecessors, officials and successors in interest and assigns, and any and all other
persons, firms, or corporations with whom any of the former have been, are uow, or may
hereafter be affiliated, together with any and all other persons, firms or corporations, of and from
any and all past, present, or future claims, demands, obligations, actions, causes of action, rights,
damages, costs, expenses, and compensation of any nature whatsoever, whether based on a tort,
contract or other theory of recovery, and whether for compensatory or punitive damages, which
Plaintiffs now have or which may hereafter accrue or otherwise be acquired, on account of, or in
any way growing oM of, or which are the subject of
PLEASE READ AND INITIAL - Page (
of my
7 Page Release 37iip
.
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the Lawsuit (and all related pleadings) including, without limitation, any and all known or
unknown claims for bodily and personal injuries to Plaintiff, and the consequences thereof,
which have resulted or may result from the alleged negligent or intentional acts or omissions of
the Defendant. This Release, on the part of the Plaintiff, shall be a fully binding and complete
settlement between the Plaintiff, the Defendant and all parties represented by or claiming through
the Plaintiff save only the executory provisions of this Release and Settlement Agreement.
This Release and Settlement Agreement includes any and all claims for attorney's fees
and costs in this matter.
The Plaintiff hereby acknowledges and agrees that the Release set forth hereinabove is a
General Release, The Plaintiff further agrees that he has accepted payment of the sums specified
herein as a complete compromise of matters involving disputed issues of law and fact, and he
fully assumes the risk that the facts or the law may be otherwise than Plaintiff's believe.
The Plaintiff represents and warrants that no other person or entity other than his legal
counsel, have or has had any interest in the claims, demands, obligations, or causes of action
referred to in this Release and Settlement Agreement; that he has the sole and exclusive right to
receive the sums specified in it; and, that he has not sold, assigned, transferred, conveyed, or
otherwise disposed of any of the claims, demands, obligations, or causes of action referred to in
this Release and Settlement Agreement.
The Plaintiff agrees and acknowledges that he accepts payment of the stuns specified in
this Release and Settlement Agreement as a full and complete compromise of matters involving
disputed issues. It is further acknowledged that payment of the sums by the Defendant and the
negotiations for this settlement (including all statements, admissions or communications) by the
Defendant, or its attorneys or representatives are made solely for purposes of avoiding the
excessive cost of litigation of this matter only and that the Defendant does not in any way admit
any liability to the Plaintiff by entering into this Agreement to settle this matter. In fact, the
Defendant expressly denies any and all liability whatsoever in this matter.
It is acknowledged by the Plaintiff that, in consideration for the above named sum, the
terms of this settlement and the amount of the settlement shall not be published by hint or
divulged directly or indirectly to the media including any newspaper, radio or television
organization and no press release shall be issued by Plaintiff, Defendant, their counsel, their
representatives, their family members or anyone acting by or on behalf of them, Failure to abide
by this provision shall be considered a material breach of this agreement.
Plaintiff agrees to indemnify and hold harmless the Defendant from, and to satisfy in full,
any and all claims or liens presently existing or that might exist in the future against the Plaintiff
on the settlement fund herein by any person, entity, or corporation, including but not limited to
any liens presented on behalf of any medical provider or governmental entity,
PLEASE READ AND INITIAL - Page
of my
3 Page Release
(Initials)
This Release and Settlement Agreement contains the entire agreement between the
Plaintiff and the Defendant with regard to the matters set forth in it and shall be binding
upon and inure to the benefit of the executors, administrators, personal representatives,
heirs, successors, and assigns of each. There are no other understandings or agreements,
verbal or otherwise, in relation thereto, between the Plaintiff and the Defendant.
hi entering into this Release and Settlement Agreement, the Plaintiff represents that he
has relied upon the legal advice of his attorney, who is the attorney of his own choice, and that
the terms of this Release and Settlement Agreement have been completely read and explained to
Plaintiff by his attorney, and that those terms are fully understood and voluntarily accepted by
him.
The parties hereto enter into this Release and Settlement Agreement in the State of
Pennsylvania, and said document shall be construed and interpreted in accordance with its laws.
Plaintiff, intending to be legally bound by the terms of this Release and Settlement
, 2016.
Agreement hereunto, sets his hand and seal this day of
CAUTION: READ BEFORE SIGNING.
TUTS IS A RELEASE.
Sworn to and sub ribed
before me this (1-- ay
of ir
2016.
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PLEASE READ AND INITIAL - Page
of my e; Page Release
(Initials)