ALI v. RANDO et al
Filing
30
OPINION FILED. Signed by Judge Noel L. Hillman on 9/26/11. (js)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
DAWUD ALI,
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Plaintiff,
v.
SALVATORE J. RANDO, JR.,
et al,
Defendants.
Civ. Action No. 09-4956 (NLH)
OPINION
APPEARANCES:
DAWUD ALI
327471B
168 FRONTAGE ROAD
NEWARK, NJ 07114
Pro Se Plaintiff
MICHAEL E. RILEY
LAW OFFICES OF RILEY & RILEY
THE WASHINGTON HOUSE
100 HIGH STREET, SUITE 302
MOUNT HOLLY, NJ 08060
Attorney for Defendants
HILLMAN, District Judge
Plaintiff Dawud Ali brings a claim pursuant to 42 U.S.C. §
1983 for excessive force during his arrest in violation of his
Fourth Amendment rights.1
for summary judgment.
1
Before the Court is defendants’ motion
For the reasons expressed below,
Although Ali states defendants violated his Eight
Amendment rights, when a plaintiff claims that police officers
used excessive force in the course of an arrest, the court should
analyze the claim under the Fourth Amendment, which protects
citizens from unreasonable seizures. See Graham v. Connor, 490
U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989).
defendants’ motion will be granted.
I.
BACKGROUND
Plaintiff Dawud Ali submitted his complaint to the Clerk of
the Court on September 23, 2009.
The matter was administratively
terminated on October 8, 2009 because Plaintiff’s in forma
pauperis application was deficient.
After the deficiency was
cured and after pre-filing screening under 28 U.S.C. §§ 1915 and
1915A, the Court directed the Clerk to file the complaint on
January 28, 2010.
The complaint, filed pursuant to 42 U.S.C. §
1983, alleged an unprovoked attack by the defendant police
officers and their K-9 partner.
More specifically, Plaintiff
alleged that on February 24, 2009, while he was waiting for an
elevator at the High Gate Apartment Building in Atlantic City,
New Jersey, K-9 Officer Salvatore J. Rando exited an arriving
elevator and “immediately confronted plaintiff with his K-9 dog
‘Sonto’ and ordered his canine partner to attack plaintiff.”
Ali
states he “...did not resist arrest at any point” and that
“Defendant Rando canine partner attacked plaintiff and commenced
biting plaintiff up and down his left leg and groin area.”
Ali
further alleged that as the canine partner was biting him, police
officers James Herbert and Salvatore Rando began punching,
kicking and hitting plaintiff with a heavy object.
Ali states he
sustained permanent injuries from the canine bites.
Defendants proffer the following uncontested facts.
2
On
February 24, 2009, the officers were responding to a call of a
home invasion and stabbing at the residence of Richard Carozzoni
and Daniel Tavarez.
The officers saw Ali in the building
sweating and out of breath.
Officer Rando asked Ali to wait
until the police could assess the scene.
Officer Herbert took
Carozzoni, who had been stabbed, to the elevator where Ali was
standing and he positively identified Ali.
Officer Herbert told
Ali to place his hands on his head and that he was under arrest.
Defendants state that Ali refused to comply and placed his arms
in his jacket.
Officer Herbert then attempted to subdue Ali to
handcuff him but Ali resisted arrest.
Officer Rando repeatedly
warned Ali to stop resisting or the K-9 would be released.
Officer Rando was attempting to aid Officer Herbert who was on
the ground underneath Ali, and that the K-9 subdued Ali until
handcuff restraints were in place.
After the handcuffs were in
place, defendants state that Officer Rando directed the K-9
partner to release Ali.
Ali was taken to the hospital from the
scene for treatment of his dog bite wound.
On March 16, 2010, less than two months after this Court
accepted his complaint for filing based on an allegation of an
unprovoked and brutal attack by law enforcement officers and
their canine partner a very different set of facts emerged.
On
that date, Ali plead guilty to first-degree robbery and resisting
arrest as part of a plea deal offered by the prosecution.
3
Ali
testified during his plea hearing that while in the course of
committing a theft, or attempted theft, he used force upon
Carazzoni while armed with or threatening the immediate use of a
weapon known to be capable of deadly harm.
Ali also admitted
that the police officers announced that he was under arrest and
that he did not cooperate.
Ali stated “I refused to be
handcuffed” and that he “pushed off on [the officer].”
Ali
testified he pushed the officer hard enough to get him away so
that he could not put handcuffs on him.
During the hearing, Ali was asked by the state court judge
if he realized he was under oath, and Ali responded “yes.”
The
state court judge also confirmed that he had no hesitation
whatsoever in pleading guilty, that he was not forced or
threatened to do so, that no promises were made to get him to
plead guilty other than those on the plea forms, and that he was
satisfied with all the advice and service of his counsel.
On
April 16, 2010, Ali was sentenced to 15 years’ incarceration in
state prison.
The facts Plaintiff admitted in his plea colloquy in state
court stand in stark contrast to the facts alleged in his
complaint.
Rather than being the seemingly innocent bystander
who, while simply waiting for an elevator, was accosted and
assaulted by police officers and their dog, Plaintiff was
actually in the process of fleeing a violent robbery who, when
4
positively identified on the scene by the victim and ordered by
law enforcement to submit, responded with acts of physical
resistance to the officers.
II.
DISCUSSION
A.
Summary Judgment Standard
Summary judgment is appropriate where the Court is satisfied
that “the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.”
Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986); Fed. R. Civ.
P. 56(c).
An issue is “genuine” if it is supported by evidence such
that a reasonable jury could return a verdict in the nonmoving
party’s favor.
248 (1986).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
A fact is “material” if, under the governing
substantive law, a dispute about the fact might affect the
outcome of the suit.
Id.
In considering a motion for summary
judgment, a district court may not make credibility
determinations or engage in any weighing of the evidence;
instead, the non-moving party's evidence “is to be believed and
all justifiable inferences are to be drawn in his favor.”
v. Industrial Crating Co., 358 F.3d 241, 247 (3d Cir.
2004)(quoting Anderson, 477 U.S. at 255).
5
Marino
Initially, the moving party has the burden of demonstrating
the absence of a genuine issue of material fact.
v. Catrett, 477 U.S. 317, 323 (1986).
Celotex Corp.
Once the moving party has
met this burden, the nonmoving party must identify, by affidavits
or otherwise, specific facts showing that there is a genuine
issue for trial.
Id.
Thus, to withstand a properly supported
motion for summary judgment, the nonmoving party must identify
specific facts and affirmative evidence that contradict those
offered by the moving party.
Anderson, 477 U.S. at 256-57.
A
party opposing summary judgment must do more than just rest upon
mere allegations, general denials, or vague statements.
Saldana
v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001).
B.
Motion for Summary Judgment
Defendants filed a motion for summary judgment seeking to
dismiss Ali’s complaint on grounds that: (1) Ali cannot sustain a
cause of action under Section 1983 pursuant to the Heck doctrine,
(2) the Atlantic City Police Department and Officers Rando and
Herbert are entitled to qualified immunity; (3) the Atlantic City
Police Department is entitled to summary judgment under the Heck
doctrine; and (4) plaintiff failed to comply with discovery.
The
discovery period in this matter ended on December 30, 2010, and
defendants filed their summary judgment motion after the
discovery period ended.
Ali did not respond to defendants’
6
discovery requests within the discovery period2 and defendants
did not depose Ali.
Ali filed a response to the summary judgment motion that was
approximately four months late without requesting, or being
granted, an extension.
Although untimely and not in compliance
with Rule 56, this Court will allow Ali to file his response and
affidavit in response to summary judgment.
See Crews v.
Petrosky, 509 F.Supp 1199 (W.D.Pa 1981) (court considered a
letter attached to plaintiff’s amended complaint in ruling on a
motion for summary judgment even though it did not comply with
Rule 56(e)).
In his response, Ali states for the first time that he was
assaulted “before and after he was handcuffed[] by way of a
police K-9 dog.”
He also states in his affidavit in support of
his response that the defendants told the dog to bite him after
he was handcuffed “for no reason,” and that he did not resist
after he was handcuffed.
Not only is this the first time that
2
Ali did not respond to discovery requests or seek
discovery of his own until approximately May 2011, at the same
time that he submitted his response to Defendant’s Motion for
Summary Judgment. As noted, both were woefully out of time. The
Court’s August 3, 2009 Scheduling Order directed the parties to
complete discovery by December 30, 2010. Defendant sought
discovery within days, requests the Plaintiff ignored. Rather,
Plaintiff waited almost 5 months after the discovery deadline to
begin any effort to participate in the discovery process and made
no effort to seek extensions of time. Similarly, and while we
would excuse Plaintiff’s failure to follow the technical aspects
of Rule 56, he ignored the Defendants’ timely filed summary
judgment motion until months after an opposition was due.
7
Ali makes such allegations, the allegations contradict what he
stated in his complaint.
In his complaint, Ali alleges that he
was standing by an elevator when the K-9 dog immediately attacked
him, presumably before he was handcuffed, or under arrest.
Even
liberally construing Ali’s allegations in his complaint as we
must, see Haines v. Kerner, 404 U.S. 519, 520 (1972), reh’g
denied, 405 U.S. 948 (1972)(pro se complaints must be construed
liberally, and all reasonable latitude afforded pro se
litigants), the factual assertions differ with Ali’s response and
create confusion over Ali’s version of the events.
In addition,
and significantly, the affidavit is inconsistent with Ali’s
testimony during his plea hearing.
At the hearing, Ali admitted
to resisting arrest and pushing the police officer, but did not
testify that the K-9 partner bit him after he was handcuffed, or
that he did not resist arrest after he was handcuffed.
1.
Conflicting Affidavit
Sworn testimony can be corrected by a subsequent affidavit
in certain situations, such as when a witness was confused at an
earlier deposition or for some other reason misspoke, and the
subsequent correcting or clarifying affidavit may be sufficient
to create a material dispute of fact.
Martin v. Merrell Dow
Pharmaceuticals, Inc., 851 F.2d 703,705 (3d Cir. 1988)
(affirming district court’s decision to disregard plaintiff’s
affidavit submitted only after she faced almost certain defeat in
8
summary judgment and which flatly contradicted no less than eight
of her prior sworn statements).
However, in cases where there is
no reasonable explanation for the contradictory affidavit and its
purpose is to merely attempt to defeat summary judgment, such an
affidavit, sometimes called a “sham affidavit” is properly
disregarded.
Id. (stating that “... the objectives of summary
judgment would be seriously impaired if the district court were
not free to disregard the conflicting affidavit.”) (citations
omitted); Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001)
(“Factual allegations that might otherwise defeat a motion for
summary judgment will not be permitted to do so when they are
made for the first time in the plaintiff’s affidavit opposing
summary judgment and that affidavit contradicts [his] own prior
deposition testimony.”).
The Third Circuit has defined a “sham affidavit” as:
... a contradictory affidavit that indicates only that
the affiant cannot maintain a consistent story or is
willing to offer a statement solely for the purpose of
defeating summary judgment. A sham affidavit cannot
raise a genuine issue of fact because it is merely a
variance from earlier deposition testimony, and
therefore no reasonable jury could rely on it to find
for the nonmovant.... [I]f it is clear that an
affidavit is offered solely for the purpose of
defeating summary judgment, it is proper for the trial
judge to conclude that no reasonable jury could accord
that affidavit evidentiary weight and that summary
judgment is appropriate.
EBC, Inc. v. Clark Bldg. Systems, Inc., 618 F.3d 253, 269 (3d
Cir. 2010) (citing Jiminez v. All American Rathskeller, Inc., 503
9
F.3d 247, 253 (3d Cir. 2007).
“[N]ot all contradictory
affidavits are necessarily shams,” however, “when there is
independent evidence in the record to bolster an otherwise
questionable affidavit....” Id.
Before a court may deem a
contrary affidavit a sham, it shall apply a “flexible approach.”
Jiminez, 503 F.3d at 254.
This two-part inquiry focuses on
whether an affiant can prove the bona fides of his affidavit
through either 1) independent evidence on the record or 2) a
satisfactory explanation for the discrepancy between the prior
deposition testimony and the affidavit. Id.
An affiant’s failure
to either explain contradictory statements or offer independent
bolstering evidence indicates the affidavit is a sham, thus
removing that impediment to the court’s entry of summary
judgment.
Id.; O’Bryant v. City of Reading, 197 Fed.Appx. 134,
138 (3d Cir. 2006).
Applying a flexible approach to Ali’s affidavit, he has not
shown: 1) any independent evidence in the record that would
support his claim that the K-9 bit him after he was handcuffed,3
or 2) provided a satisfactory explanation for the discrepancy
between the affidavit and his prior statements in his signed
3
We also note that the objective medical evidence fails to
corroborate Plaintiff’s otherwise unsupported claim that he was
punched, kicked or hit him with a heavy object. The medical
records recite that Plaintiff only complained of, and was only
treated for, a dog bite to the left leg. See Defendant’s Letter
Brief in Reply at 9 and Defendant’s Exhibit 5.
10
complaint, or his prior testimony during the state criminal
proceeding.
In his complaint, Ali states that he was waiting for
an elevator when Officer Rando exited the arriving elevator and
“immediately confronted plaintiff with his K-9 dog ‘Sonto’ and
ordered his canine partner to attack plaintiff.”
Ali alleges
that Officer Rando’s canine partner attacked him and bit him “up
and down his left leg and groin area.”
He also alleges that
while the canine partner was biting him, the police officers
began punching, kicking and hitting plaintiff with a heavy
object.
Ali does not mention that he was handcuffed at any time
during this altercation.
His statement that the K-9 partner
attacked him “immediately” suggests that he was not handcuffed
since the police officer would not have had time to handcuff him
and “immediately” have his K-9 partner attack him upon exiting
the elevator.
In addition, Ali’s testimony given under oath
during his plea hearing contradicts both the averments in his
complaint and in his affidavit.
Ali admitted at his plea hearing
to resisting arrest and admitted to pushing the police officer.
At no time during the plea hearing did Ali state that the K-9
partner had bit him after he was handcuffed, or that the officers
had punched, kicked or hit him with a heavy object.
Thus, there is no reasonable explanation for the
contradicting statements in Ali’s affidavit other than an attempt
11
by Ali to defeat summary judgment.
Under these circumstances,
the affidavit may be disregarded.
See Martin, 851 F.2d at 705.
Accordingly, the Court will not consider the statements in Ali’s
affidavit.
However, the Court will consider Ali’s testimony
given at his plea hearing since such testimony was given under
oath before a state court judge, and plaintiff was represented by
counsel.
Having decided that Ali’s affidavit will be disregarded and
not relied upon, we turn to defendants’ argument that Ali’s claim
should be barred under the Heck doctrine.
2.
Heck Doctrine
Defendants argue that Ali’s § 1983 claims should be
dismissed based on the Heck doctrine.
In Heck v. Humphrey, the
U.S. Supreme Court held that “when a state prisoner seeks damages
in a § 1983 suit, the district court must consider whether a
judgment in favor of the plaintiff would necessarily imply the
invalidity of his conviction or sentence; if it would, the
complaint must be dismissed unless the plaintiff can demonstrate
the conviction or sentence has already been invalidated.” 512
U.S. 477, 486–87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994).
The Third Circuit has ruled that even though a plaintiff may
have been found guilty of resisting arrest, the guilty verdict
does not necessarily preclude an arrestee for recovering damages
on a § 1983 excessive force claim.
12
See Lora-Pena v. F.B.I., 529
F.3d 503, 506 (3d Cir. 2008)(“It is conceivable that a law
enforcement officer, acting within the scope of his official
duties, may use force that is excessive in effectuating a lawful
arrest.”); Garrison v. Porch, 376 Fed.Appx. 274, 278 (3d Cir.
2010).
Even if the plaintiff resisted arrest, it is possible to
find that the police used excessive force to subdue him.
See id.
In Nelson v. Jashurek, the Third Circuit held that a finding that
the police were justified in using “substantial force” to arrest
the plaintiff did not mean that they were justified in using an
“excessive amount of force” and thus did not mean that the
actions by the police in effectuating the arrest were
“objectively reasonable.”
109 F.3d 142, 145 (3d Cir. 1997)
(stating “... there undoubtedly could be ‘substantial force’
which is objectively reasonable and ‘substantial force’ which is
excessive and unreasonable.”).
Ali does not claim that any court has set aside his guilty
plea for resisting arrest or that the validity of the plea has
been thrown into doubt in any other proceeding.
alleging that the arrest was unlawful.
Ali is not
Ali is alleging that
defendants effectuated a lawful arrest in an unlawful manner by
using excessive force in violation of the Fourth Amendment.
In New Jersey, a person is guilty of resisting arrest if he
purposely prevents a law enforcement officer from effecting a
13
lawful arrest.
See N.J. Stat. Ann. 2C:29-2(a)(1).4
The issue
here is whether success on the merits of Ali’s § 1983 claim would
necessarily undermine his resisting arrest conviction.
If there
were sufficient evidence for a jury to conclude that the force
used in effectuating the arrest was excessive or that unnecessary
force was used after the Plaintiff had been restrained, then Heck
would not bar such a claim. See Nelson, 109 F.3d at 145.
Since
Plaintiff appears to assert such claims, the Heck Doctrine alone
does not operate to bar his § 1983 claim.
Although the Heck doctrine, acting alone, does not bar Ali’s
claim, defendants also argue that the uncontested facts establish
that police officers are entitled to qualified immunity.
3. Section 1983 Claim and Qualified Immunity
Section 1983 provides:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State .
. . subjects, or causes to be subjected, any citizen of
the United States or other person within the
jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper
proceeding for redress . . . .
42 U.S.C. § 1983.
To state a claim under § 1983, a plaintiff
must establish that (1) the conduct deprived him of his rights,
4
N.J. Stat. Ann. 2C:29-2(a)(1) states: “Except as provided
in paragraph (3), a person is guilty of a disorderly persons
offense if he purposely prevents or attempts to prevent a law
enforcement officer from effecting an arrest.”
14
privileges, or immunities secured by the Constitution or laws of
the United States and (2) the conduct challenged was committed by
a person acting under color of state law. Gomez v. Toledo, 446
U.S. 635, 640 (1980); Shuman ex rel. Shertzer v. Penn Manor
School Dist., 422 F.3d 141, 146 (3d Cir. 2005).
Government officials, however, may assert a defense of
qualified immunity.
“‘The doctrine of qualified immunity
protects government officials from liability for civil damages
insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person
would have known.’” Montanez v. Thompson, 603 F.3d 243, 249-50
(3d Cir. 2010) (quoting Pearson v. Callahan, 555 U.S. 223, 129 S.
Ct. 808, 815 (2009)).
“Qualified immunity balances two important
interests--the need to hold public officials accountable when
they exercise power irresponsibly and the need to shield
officials from harassment, distraction, and liability when they
perform their duties reasonably.” Pearson, 129 S. Ct. at 815
(2009).
This doctrine provides a government official immunity
from suit rather than a mere defense from liability. Id.
A Court must undertake a two-step inquiry to determine the
applicability of qualified immunity:
First, a court must decide whether the facts that a
plaintiff has alleged or shown make out a violation of
a constitutional right. Second, if the plaintiff has
satisfied this first step, the court must decide
whether the right at issue was clearly established at
the time of a defendant’s alleged misconduct.
15
Qualified immunity is applicable unless the official’s
conduct violated a clearly established constitutional
right.5
Montanez, 603 F.3d at 250. “Where a defendant asserts a qualified
immunity defense in a motion for summary judgment, the plaintiff
bears the initial burden of showing that the defendant’s conduct
violated some clearly established statutory or constitutional
right.” Sherwood v. Mulvihill, 113 F.3d 396, 399 (3d Cir. 1997).
“Only if the plaintiff carries this initial burden must the
defendant then demonstrate that no genuine issue of material fact
remains as to the ‘objective reasonableness’ of the defendant’s
belief in the lawfulness of his actions.” Id.
In determining
whether a defendant is entitled to qualified immunity, the court
is “permitted to exercise their sound discretion in deciding
which of the two prongs of the qualified immunity analysis should
be addressed first in light of the circumstances in the
particular case at hand.” Pearson, 129 S. Ct. at 818.
If the
answer to either question is “no,” the analysis may end there.
See id. at 823 (finding that because the unlawfulness of the
officers’ conduct was not clearly established, the officers were
entitled to qualified immunity, without having to answer the
5
Although the aforementioned sequence of the qualified
immunity analysis is often appropriate, it is not rigid and
inflexible; rather, a court may exercise its discretion in
deciding which of the two prongs should be addressed first in
light of a case’s particular circumstances. Montanez, 603 F.3d at
250 (quoting Pearson, 129 S. Ct. at 818).
16
question of whether the officers violated the Plaintiff’s
constitutional rights).
Ali alleges that the defendant police officers used
excessive force during his arrest in violation of his Fourth
Amendment rights.
As explained below, the uncontested facts
establish that the actions of the police officers were
“objectively reasonable” and, therefore, did not violate Ali’s
Fourth Amendment rights.
3.
Excessive Force Claim Under Fourth Amendment
In determining whether excessive force was used, the Fourth
Amendment’s “objective reasonableness” test is applied.
Sharrar
v. Felsing, 128 F.3d 810, 820–21 (3d Cir. 1997) (citing Graham v.
Connor, 490 U.S. 386, 396 (1989)).
The objective reasonableness
test “requires careful attention to the facts and circumstances
of each particular case, including the severity of the crime at
issue, whether the suspect poses an immediate threat to the
safety of the officers or others, and whether he is actively
resisting arrest or attempting to evade arrest by flight.”
Id.
(relying on Graham, 490 U.S. at 396; Groman v. Township of
Manalapan, 47 F.3d 628, 634 (3d Cir.1 995)). “Other relevant
factors include the possibility that the persons subject to the
police action are themselves violent or dangerous, the duration
of the action, whether the action takes place in the context of
effecting an arrest, the possibility that the suspect may be
17
armed, and the number of persons with whom the police officers
must contend at one time.” Id.; Garrison, 376 Fed.Appx. at 277
(“In determining whether or not the force used in effecting an
arrest was unreasonably excessive, a finder of fact is to
consider the totality of the circumstances surrounding the
arrest.”).
In evaluating the proper test for objective reasonableness,
the Supreme Court has provided that “not every push or shove,
even if it may later seem unnecessary in the peace of a judge's
chambers, ... violates the Fourth Amendment.” Graham, 490 U.S. at
396 (citation omitted).
Rather, “[t]he calculus of
reasonableness must embody allowance for 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.” Id.
Since there is no deposition testimony or valid affidavit
from Ali regarding the events leading up to and during the
arrest, we look to Ali’s testimony during his plea hearing.
Ali testified at his plea hearing on March 16, 2010, as follows:
THE COURT: ... Did you, at some point in time, purposely
prevent a law enforcement officer, Officer Jay Herbert of the
Atlantic City Police Department, from effecting a lawful arrest
by using or threatening to use physical force or violence against
18
him or another?
THE DEFENDANT: Yes.
...
THE COURT: Did they attempt to place you under arrest? Did
they announce you were under arrest?
THE DEFENDANT: Yes.
THE COURT: Did you cooperate?
THE DEFENDANT: No.
THE COURT: What did you do?
THE DEFENDANT: I refused to be handcuffed.
THE COURT: And did you use force or violence upon the
officer in order to get away from him?
THE DEFENDANT: I pushed off on him.
THE COURT: You pushed him?
THE DEFENDANT: Yes.
THE COURT: Did you push him hard enough to get him away from
you so he couldn’t cuff you?
THE DEFENDANT: Yes.
THE COURT: And you’re a pretty big guy.
You would
acknowledge you’re somewhat strong, would you not?
THE DEFENDANT: Yes.
...
THE COURT: You’re sure about this charge now? You did resist
with using force, physical force on Officer Herbert’s efforts to
19
get you under control and handcuff you?
THE DEFENDANT: Yes.
THE COURT: And that was by pushing away, pushing him away?
THE DEFENDANT: Yes.
THE COURT: An you would agree that the force was great
enough that you did push him away?
THE DEFENDANT: Yes.
THE COURT: And Officer Herbert is a pretty big guy, too.
THE DEFENDANT: Yes.
THE COURT: So you had to use a significant amount of force
to get him off of you.
THE DEFENDANT: Yes.
Based on the above exchange, there is no testimony or other
evidence from which a jury could reasonably conclude that the
police offers used “excessive force” in arresting Ali.
Even with
the understanding that Ali’s testimony was provided in the
context of a plea hearing, and not in furtherance of his § 1983
claim, based on the questions posed and Ali’s answers, it seems
that the amount of force used by the police officers was
commensurate with the amount of resistance put up by Ali.
Ali
admitted that he did not cooperate, that he refused to be
handcuffed, and that he pushed the police officer using a
significant amount of force.
Furthermore, in assessing the facts and circumstances in
20
this case, Ali was suspected of committing a home invasion, and
of stabbing the victim with a knife.
The victim positively
identified Ali who was observed to be in the building, sweating,
and out of breath.
Ali did not cooperate with the police
officers and physically assaulted one of the officers during the
course of an arrest.
It would be objectively reasonable for the
officers to conclude, given the home invasion, stabbing, and
physical assault on the officer during an arrest, that Ali posed
an immediate threat to the safety of the officers and to others.
It would be objectively reasonable for the officers to have
immobilized Ali by releasing the K-9 partner at that time to
subdue Ali until he no longer posed a threat to the officers, or
to others.
Although Ali alleges in his complaint that he did not resist
arrest “at any point,” and that the police officer released the
K-9 partner to attack Ali immediately upon exiting the elevator,
these facts directly contradict what Ali testified to at his plea
hearing.
Ali filed his complaint on September 23, 2009.
testimony at his plea hearing on March 16, 2010.
He gave
Ali knew at his
plea hearing that he had filed this complaint and made no mention
of the alleged excessive force used by the defendant police
officers at the hearing.
At the hearing, Ali testified that the
officers announced that he was under arrest and that he refused
to cooperate and pushed the arresting officer.
21
We could not
accept Ali’s allegations in his complaint without assuming that
he perjured himself during his plea hearing and thereby undermine
the plea agreement reached between Ali and the prosecutor and
accepted by the state court judge.
Thus, under the two-step inquiry to determine the
applicability of qualified immunity, Ali did not allege or show
facts that can make out violation of a constitutional right.
Having failed to carry his initial burden, the Court’s inquiry
ends at this point.
Consequently, plaintiff’s complaint will be
dismissed as to defendant police officers Salvatore Rando and
James Herbert.
4.
Section 1983 Claim Against Police Department
In addition to the defendant police officers, Ali also
brought a § 1983 claim against the Atlantic City Police
Department.
Ali states in his complaint that the:
Atlantic City Police Department failed to properly
monitor, train or discipline rouge K-9 officers who
improperly used canine partners to attack civilians
wrongly. The Atlantic City Police Department was aware
of misconduct on the improper use of canine partners
and failed to act. Misuse of canine partners was so
pervasive with the Atlantic City Police Department that
the K-9 unit was disbanded by the city Mayor Honorable
Lorenzo Langford.
Liability under § 1983 may be imposed on municipalities only
where acts of the government employee are deemed to be the result
of a policy or custom of the municipality for whom the employee
works.
See Monell v. New York City Dept. of Soc. Servs., 436
22
U.S. 658, 691 (1978); Natale v. Camden County Correctional
Facility, 318 F.3d 575, 583-84 (3d Cir. 2003); see also City of
Canton v. Harris, 489 U.S. 378, 392 (1989) (holding that a county
cannot be subjected to § 1983 liability on a theory of respondeat
superior).
Municipal liability requires the plaintiff to
demonstrate that "’there is a direct causal link between [the]
municipal policy or custom and the alleged constitutional
deprivation.’"
Brown v. Muhlenberg Twp., 269 F.3d 205, 214 (3d
Cir. 2001) (quoting City of Canton v. Harris, 489 U.S. 378, 385
(1989)).
As explained above, Ali did not suffer any violation of his
Fourth Amendment rights.
Since there was no constitutional
violation, Ali’s claim against the Atlantic City Police
Department must also be dismissed.
See Mills v. City of
Harrisburg, 350 Fed.Appx. 770, 773 (3d Cir. 2009) (“Absent an
underlying constitutional violation by an agent of the
municipality, however, the municipality itself may not be held
liable under § 1983.”) (citing Grazier ex rel. White v. City of
Philadelphia, 328 F.3d 120, 124 (3d Cir. 2003).
Therefore, defendants’ motion for summary judgment will be
granted.
An appropriate Order will be entered.
Date: September 26, 2011
S/Noel L. Hillman
At Camden, New Jersey
NOEL L. HILLMAN, U.S.D.J.
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