BOZARTH v. TOWNSHIP OF DEPTFORD et al
Filing
58
OPINION. Signed by Judge Jerome B. Simandle on 8/4/2011. (dmr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
KEVIN BOZARTH,
HON. JEROME B. SIMANDLE
Plaintiff,
Civil No. 08-5798 (JBS/KMW)
v.
OPINION
TOWNSHIP OF DEPTFORD, et al.,
Defendants.
APPEARANCES:
Randy P. Catalano, Esq.
216 Haddon Avenue
Suite 100
Westmont, NJ 08108
-andCheryl L. Cooper, Esq.
OANDASAN & COOPER P.C.
28 East Avenue
PO Box 326
Woodstown, NJ 08098
Counsel for Plaintiff
Allan E. Richardson, Esq.
RICHARDSON & GALELLA
142 Emerson Street
Suite B
Woodbury, NJ 08096
Counsel for Defendants Township of Deptford and Chief of
Police John Marolt
A. Michael Barker, Esq.
Todd J. Gelfand, Esq.
BARKER, SCOTT & GELFAND
Linwood Greene
210 New Road
Suite 12
Linwood, NJ 08221
Counsel for Defendants Patrolman James R. Magee, Patrolman
Donald Kiermeier, Patrolman Eric Kerby, and Sergeant William
J. Bittner
SIMANDLE, District Judge:
I.
INTRODUCTION
This civil rights case involves the arrest and post-arrest
treatment of Plaintiff Kevin Bozarth on November 28, 2006.
Bozarth claims that Deptford Township police officers used
excessive force against him while arresting him and when he was
brought to the police station.
The matter is before the Court on
the motion for summary judgment by Officers Kiermeier, Kerby, and
Bittner.
[Docket Item 37.]1
The principal issue is whether a
reasonable jury could find from the evidence adduced in this case
that Kerby and Bittner were among the officers who stomped on
Plaintiff shortly after his initial capture, or could reasonably
have intervened in that excessive use of force.
II.
BACKGROUND
On November 28, 2006, Plaintiff Kevin Bozarth was residing
in Deptford Township with his fiancee Nancy McCoy, Nancy's twin
sons Brian and Tim, and Plaintiff's son Kevin Whitehouse.
(Second Am. Compl. ¶ 14.)
Bozarth had consumed alcohol with his
co-workers after work that day and prior to returning home.
1
Although Plaintiff has incorrectly spelled the officer's
name in the pleadings and continues to misspell the name, Officer
Kiermeier spells his name as spelled in this opinion.
2
(Bozarth Dep. 166:8-24.)2
When he arrived home, Nancy's twin sons Brian and Tim were
fighting.
(Ex. G ¶ 2.)
Bozarth became involved in the scuffle,
and at some point during the fight, the police were called by
Nancy McCoy.
Bozarth fled out the back door as the police
arrived, fearing he would be arrested for his failure to pay
child support.
(Bozarth Dep. 171:15-22.)
He ran through the
woods, across a shallow creek, and up an embankment.
(Bozarth
Dep. 175:15-176:2.)
Bozarth claims that as he came walking up the embankment,
police officers blinded him with flashlights, causing him to put
his hands up and surrender.
(Bozarth Dep. 176:10-177:5.)
He
says one of the male officers, whom he cannot identify, clotheslined him, knocking him onto his back on the ground.
Dep. 178:6-16.)
Bozarth testified that three or four officers
then began stomping him on his ribs.
183:16.)
(Bozarth
(Bozarth Dep. 180:8-
Bozarth was then stood up, handcuffed, placed in a
police car, and transported to the police station.
Bozarth has maintained that he is not certain who was
2
Defendants expend many pages detailing the events prior
to Plaintiff's arrest, perhaps trying to cast doubt on Bozarth's
credibility regarding the subsequent events and to call into
question the source of his injuries. But credibility judgments
are not for this Court to make on this motion. The Court
therefore does not address many of the disputed facts regarding
the lead-up to the alleged uses of excessive force to the extent
they are not relevant to this motion.
3
present at this initial encounter.
He admitted in
interrogatories that if the officers' own reports were accurate —
which he does not concede — that this would mean that only
Officer Magee was present for the initial alleged beating.
Officer Magee died shortly after this complaint was brought, and
he was never deposed.3
Bozarth claims that when he arrived at the station, he was
also subjected to multiple uses of excessive force, but as
explained below, the facts regarding those alleged incidents are
not at issue in this motion.
The Second Amended Complaint contains seven counts.
Count I
brings an excessive force claim, presumably pursuant to 42 U.S.C.
§ 1983, though it does not specify as much.
Count II pleads a
violation of the New Jersey Constitution, without specifying any
particular part of that document.
Based on the parties'
briefing, it appears that the count is meant to mirror the
excessive force claim.
Counts III and IV seek to establish
3
The docket does not reflect that notice of the death of
Defendant Magee was served or filed. However, it appears that
Defendant Magee passed away some time between the filing of the
Amended Complaint on January 7, 2010 and the Second Amended
Complaint on March 30, 2010 since the Second Amended Complaint
names "Patrolman James R. Magee (deceased, by and through the
Administratrix of his Estate, Michele Magee)." The amendment to
the pleading was evidently made with the consent of Defendants
since there was no Court order pursuant to Rule 15 and Defendants
answered without objecting. Because the issue has not been
raised, the Court does not address the extent to which
Plaintiff's seven claims survive the death of Patrolman Magee.
4
municipal and supervisory liability (imputed to unnamed
supervisors) for the use of excessive force.
Count V pleads a
claim for negligence based on the allegations of excessive force.
Count VI pleads "state law torts" without identifying them, but
vaguely referring to assault and battery.
And Count VII is
labeled "conspiracy," and alleges that "Some or all of the
aforesaid acts of the defendants were conducted recklessly or
with the intent of causing the plaintiff severe emotional
distress," and that "The conduct of the defendants was extreme
and outrageous, which caused the Plaintiff to suffer severe
emotional distress as a result of the previously mentioned
conduct."
This Court has federal question jurisdiction under 28
U.S.C. § 1331 and supplemental jurisdiction of related state-law
claims under 28 U.S.C. § 1367.
Defendants Kiermeier and Kerby seek summary judgment as to
all of Plaintiff's claims, arguing that there is no evidence that
either officer was present during any of the alleged instances of
excessive force.
Defendant Bittner seeks partial summary
judgment as to the claims against him arising out of the initial
arrest of Plaintiff, contending that there is no evidence that he
was at the scene at that time.
5
III.
DISCUSSION
A.
Standard of Review
Summary judgment is appropriate "if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law."
P. 56(a).
Fed. R. Civ.
A fact is material only if it might affect the outcome
of the suit under the applicable rule of law.
Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
A fact is only in dispute if there is some evidence produced
for it; allegations or denials in the pleadings are insufficient
to create a genuine dispute.
Fed. R. Civ. P. 56(c)(1)(A); United
States v. Premises Known as 717 S. Woodward Street, Allentown,
Pa., 2 F.3d 529, 533 (3d Cir. 1993).
However, any evidence that
is produced will be viewed in favor of the nonmoving party and
the Court will extend any reasonable favorable inferences to be
drawn from that evidence to that party.
Hunt v. Cromartie, 526
U.S. 541, 552 (1999).
When the nonmoving party bears the burden of persuasion at
trial, the moving party may be entitled to summary judgment
merely by showing that there is an absence of evidence to support
an essential element of the nonmoving party's case.
Fed. R. Civ.
P. 56(c)(1)(B); Celotex Corp. v. Catrett, 477 U.S. 317, 325
6
(1986).4
B.
Excessive Force Standard
The Fourth Amendment prohibits the use of excessive force by
a law enforcement officer.
Carswell v. Borough of Homestead, 381
F.3d 235, 240 (3d Cir. 2004).
Whether a given instance of force
is excessive depends on the objective reasonableness of the force
used under the circumstances.
(3d Cir. 2006).
Couden v. Duffy, 446 F.3d 483, 496
Assessing reasonableness requires an evaluation
of the severity of the crime at issue, whether the suspect poses
an immediate threat to the safety of the officer or others,
whether he is actively resisting arrest or attempting to evade
arrest by flight, and any other relevant factors such as the
duration of the officer's action or the possibility that the
suspect may be armed, and the number of persons with whom the
police officers must contend at one time.
4
Id.
In evaluating
Unfortunately, both parties did not correctly follow the
local rules governing summary judgment. In the District of New
Jersey, Local Civil Rule 56.1(a) requires the movant to provide a
Statement of Material Facts not in Dispute, and the non-movant to
respond to the movant's statement paragraph-by-paragraph, with
any denials keyed to facts in the record. Similarly, the nonmovant may submit a supplemental statement of disputed material
facts, to which the movant must respond. Although each party
offered a statement of material facts, neither side responded to
the other's statement. The consequence of this form of halfcompliance with the rule is generally that facts not responded to
are admitted. In this case, the only relevant facts adduced by
the moving party are those contained in Plaintiff's own testimony
and admissions, which Plaintiff does not dispute.
7
reasonableness, the court must consider the perspective of the
officer on the scene, taking into consideration the fact that
"police officers are often forced to make split-second judgments
— in circumstances that are tense, uncertain, and rapidly
evolving — about the amount of force that is necessary in a
particular situation."
Graham v. Connor, 490 U.S. 386, 396-97
(1989).
Under some circumstances, a police officer has a duty to
prevent another officer from using excessive force.
Mensinger, 293 F.3d 641, 650-51 (3d Cir. 2002).
Smith v.
Generally, "a
police officer has a duty to take reasonable steps to protect a
victim from another officer's use of excessive force, even if the
excessive force is employed by a superior."
Id.
But there must
be a "realistic and reasonable opportunity to intervene."
C.
Id.
Excessive force claims
Plaintiff agrees that Officer Kiermier was not involved in
any of the alleged incidents, and does not object to dismissal of
the case as a whole against Kiermier.
Pl.'s Br. 4 n.1.
Officer
Kiermier will therefore be granted summary judgment as to all of
Plaintiff's claims.
Officer Bittner does not seek summary judgment as to any
incident other than the initial arrest, and Plaintiff does not
contend that Kerby's later involvement at the police station
8
constituted excessive force or placed Kerby in a position to
prevent excessive force, so Kerby is entitled to partial summary
judgment as to those parts of Counts I-VI asserting that
excessive force was used at the police station.5
Finally, there
is no evidence from which it could be determined which officer
clothes-lined Plaintiff, or whether the other officers could have
prevented this sudden move.
Consequently, the only remaining issue for this motion is
whether Plaintiff has adduced evidence of Kerby and Bittner's
involvement in the alleged stomping and kicking of Plaintiff at
the time of his arrest.
Defendants do not assert for the
purposes of this motion that the stomping would not constitute
excessive force, or that they reasonably could have believed such
force was called for, and so the only issue for the Court is
whether there is evidence of Defendants' involvement.
Plaintiff cites the deposition testimony of each officer,
both of whom concede that they eventually arrived on the scene
but maintain that they arrived only after any violence occurred.
Kerby testified that he eventually arrived at the location of
5
Officers Bittner and Kerby mistakenly argue that there is
no claim for which they can be liable that does not require their
presence during the instances of alleged excessive force, but
Plaintiff does bring a claim of conspiracy, which would not
require their personal presence at the scenes of the use of
excessive force. It is not clear that Plaintiff has properly
pleaded this claim, has evidence to support it, or that Plaintiff
even intends to pursue it, but the Court cannot simply dismiss
the claim sua sponte in the absence of argument from the parties.
9
Plaintiff's arrest "[j]ust as Officer Magee was handcuffing him
and putting him in his patrol vehicle," but was not present for
the initial apprehension and subduing of Plaintiff.
14:1-17.
Kerby Dep.
Similarly, Bittner testified that he arrived "as
Officer Magee was either handcuffing or searching Mr. Bozarth and
putting him in the back of his patrol vehicle."6
12:12-15:17.
Bittner Dep.
Since this testimony is the only evidence of these
officers' presence, the question is whether the Court can and
must credit the part of the testimony favorable to Plaintiff
(that the officers were present at the scene of Plaintiff's
capture) but not the testimony harmful to Plaintiff's case (that
the officers arrived after the alleged use of force).
"Credibility determinations, the weighing of the evidence,
and the drawing of legitimate inferences from the facts are jury
functions, not those of a judge, whether he is ruling on a motion
for summary judgment or for a directed verdict."
U.S. at 255.
Anderson, 477
Therefore, the question on summary judgment is
whether a reasonable jury could find the necessary facts for
liability from the evidence presented, based on any reasonable
credibility determinations and weighing of the evidence.
In this case, the jury would be presented with Plaintiff's
testimony that three or four officers stomped on him after he had
6
Sergeant Bittner was uncertain about who the third
officer at the scene was, guessing it was an officer named Eavis.
10
been subdued.
The jury would also be presented with the
testimony of Bittner and Kerby that they eventually arrived on
the scene of the arrest and that there were no other officers on
the scene, but that Plaintiff was already being handcuffed at
that point.
A reasonable jury could weigh the evidence and find
that Plaintiff is telling the truth, and that Defendants are
telling only part of the truth.
See Sharp v. Penske Buick GMC,
Inc., 686 F. Supp. 2d 530, 540 (E.D. Pa. 2010) (noting that court
must consider the possibility that a factfinder credits only part
of a deponent's testimony); Dorsett v. American Isuzu Motors,
Inc., 805 F. Supp. 1212, 1230 (E.D. Pa. 1992) (same).
When one takes Plaintiff's testimony as true, then Bittner
and Kerby's testimony is consistent with only three possible
scenarios: two officers who have not been identified anywhere in
the police reports, deposition testimony, or anywhere else in
discovery came to the scene with Magee and were involved with the
clothes-lining and stomping and then left before Bittner and
Kerby arrived; two as-yet unidentified officers were present and
Bittner and Kerby lied about no other officers being present; or
Bittner and Kerby were themselves the other two officers and they
did not testify truthfully about the precise time of their
arrival and their conduct at the scene.
On the evidence now in
the record, a reasonable jury could find the last possibility to
be the truth.
11
If the jury were to credit Plaintiff's testimony in full,
and that part of Bittner and Kerby's testimony suggesting that
they were at the arrest scene, then a reasonable jury could find
that Bittner and Kerby were involved in the alleged use of
excessive force.
Since these material facts are in dispute, the
summary judgment motion of Bittner and Kerby will be denied as to
the events surrounding the initial arrest.
IV.
CONCLUSION
Plaintiff concedes that Officer Kiermier was not involved in
any of the alleged incidents.
And Plaintiff does not contend,
much less explain how Officer Kerby could be held liable for the
events after Plaintiff's arrival at the police station.
Therefore, summary judgment will be granted to Officer Kiermier
as to all claims, and partial summary judgment will be granted to
Officer Kerby as to those parts of Counts I-VI relying on the
excessive force after the initial arrest.
However, because a
reasonable jury could credit Plaintiff's account and only part of
Defendants' account of the initial arrest, summary judgment will
be denied as to the claims against Kerby and Bittner arising out
of the initial arrest.
The accompanying Order will be entered.
August 4, 2011
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
United States District Judge
12
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