PORTER v. DOOLEY et al
Filing
46
OPINION. Signed by Judge Robert B. Kugler on 9/6/2011. (dmr)(n.m.)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
________________________________
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Plaintiff,
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v.
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DEAN DOOLEY, et al.,
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Defendants.
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KEITH M. PORTER,
Civil Action No. 09-6068 (RBK)
O P I N I O N
APPEARANCES:
Keith Porter, Plaintiff, Pro Se
# 5152718/645880
Southern State Correctional Facility
4295 Route 47
Delmont ,NJ 08314
Michael E. Riley, Esq.
Law Offices of Riley and Riley
100 High Street
Suite 302
Mt Holly, NJ 08314
Attorney for Defendants Dooley, Paredes, and Clayton
KUGLER, District Judge
This matter arises out of Plaintiff’s March 4, 2008 arrest
for robbery, assault, and resisting arrest.
Plaintiff brought
this § 1983 suit alleging that Defendants Dooley, Paredes, and
Clayton violated his Fourth Amendment rights by using excessive
force to arrest him.
Defendants moved for summary judgment
pursuant to Federal Rule of Civil Procedure 56 (docket entry 21).
Defendants claim that: (1) because Plaintiff plead guilty to
second-degree robbery and third-degree resisting arrest, Heck v.
Humphrey, 512 U.S. 477 (1994), precludes Plaintiff's subsequent
Fourth Amendment excessive force claim; (2) Defendants are
entitled to qualified immunity; and (3) Plaintiff’s complaint
should be dismissed for failure to comply with discovery.
Plaintiff filed opposition to the motion (docket entry 38), in
which he argues that summary judgment should be denied because
discovery is not yet complete.
For the following reasons,
Defendants' motion for summary judgment is DENIED.
I. BACKGROUND
This Court notes the following undisputed facts.
On November 6, 2009, Plaintiff was sentenced to five and
one-half years incarceration after pleading guilty to seconddegree robbery and third-degree resisting arrest.
The conviction stemmed from a robbery which occurred on
March 4, 2008 on Atlantic Avenue in Atlantic City near the Irish
Pub.
After the incident, the victim relayed to police dispatch
that a male in a black hooded sweatshirt and dark pants was the
culprit.
Police searched the area and identified Plaintiff as
the suspect. Plaintiff admitted, in the factual basis for his
plea, that in the course of his apprehension following the
robbery, Plaintiff ran from the defendant police officers
initially, then struggled with officers.
and bit Plaintiff in the left calf.
2
A K-9 dog was released
Plaintiff spent at least one
night in a local hospital for treatment for injuries resulting
from his arrest.
Plaintiff filed a section 1983 complaint against the
arresting officers in this Court on December 1, 2009.
In his
complaint, Plaintiff alleges:
After a chase on foot, I gave up[,] got on my
hands & knees[,] put my hands behind my head & officer
Frankley Parredes [sic] grab[b]ed my left arm & said I
told you that you’re not gonna get away. Unknown
police officer said you like to steal old ladies pocket
books & kicked me in the face two times. Officer
Clayton & Parredes [sic] & other unknown officers
com[m]enced to stomp & kick me. Officer Dean Dooley
came with the dog & the dog bit me & then I was
escorted by police to the hospital March 4, 2008 on
Martin Luther King Blvd.
(Complt., ¶ IV).
Defendants answered the complaint on May 25, 2010.
Scheduling Orders were entered for discovery, but it appears that
no discovery took place prior to the filing of Defendants’ Motion
for Summary Judgment on February 10,2011.
Discovery motions
remain outstanding on the docket.
II. STANDARD
Summary judgment is appropriate where the Court is satisfied
that “there is no genuine issue as to any material fact and that
the movant is entitled to judgment as a matter of law.”
Fed. R.
Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 330
(1986).
A genuine issue of material fact exists only if the
evidence is such that a reasonable jury could find for the
3
nonmoving party.
See Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986).
When the Court weighs the evidence presented by
the parties, “[t]he evidence of the non-movant is to be believed,
and all justifiable inferences are to be drawn in his favor.”
Id. at 255.
The burden of establishing the nonexistence of a “genuine
issue” is on the party moving for summary judgment.
See Aman v.
Cort Furniture Rental Corp., 85 F.3d 1074, 1080 (3d Cir. 1996).
The moving party may satisfy its burden either by “produc[ing]
evidence showing the absence of a genuine issue of material fact”
or by “‘showing’—that is, pointing out to the district court—that
there is an absence of evidence to support the nonmoving party's
case.”
Celotex, 477 U.S. at 325.
Once the moving party satisfies this initial burden, the
nonmoving party must “set out specific facts showing a genuine
issue for trial.”
Fed. R. Civ. P. 56(e).
To do so, the
nonmoving party must “do more than simply show that there is some
metaphysical doubt as to the material facts.”
Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
Rather, to survive summary judgment, the nonmoving party must
“make a showing sufficient to establish the existence of [every]
element essential to that party's case, and on which that party
will bear the burden of proof at trial.”
322.
Celotex, 477 U.S. at
Furthermore, “[w]hen opposing summary judgment, the
4
nonmovant may not rest upon mere allegations, but rather must
‘identify those facts of record which would contradict the facts
identified by the movant.’” Corliss v. Varner, 247 F. App'x 353,
354 (3d Cir. 2007) (quoting Port Auth. of N.Y. & N.J. v.
Affiliated FM Ins. Co., 311 F.3d 226, 233 (3d Cir. 2002)).
In deciding the merits of a party's motion for summary
judgment, the court's role is not to evaluate the evidence and
decide the truth of the matter, but to determine whether there is
a genuine issue for trial.
See Anderson, 477 U.S. at 249.
Credibility determinations are the province of the factfinder,
not the district court.
See BMW, Inc. v. BMW of N. Am., Inc.,
974 F.2d 1358, 1363 (3d Cir. 1992).
III. DISCUSSION
A.
Heck v. Humphrey
Defendants argue that Heck bars Plaintiff's Fourth Amendment
excessive force claim because a verdict in Plaintiff's favor in
this action is incompatible with his criminal convictions.
(Defs.' Brief, Point 1).1
Defendants claim that this § 1983
action and the criminal convictions are incompatible because
1
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
plaintiffs from unreasonable seizures. See Graham v. Connor, 490
U.S. 386, 395 (1989). Liberally construing Plaintiff’s
complaint, this Court construes his claim as a Fourth Amendment
excessive force claim under § 1983.
5
Plaintiff pled guilty to resisting arrest.
Specifically,
Defendants argue:
. . . it is clear that [Plaintiff’s] complaint
cannot be maintained. He admitted to struggling with
the Officers and creating a substantial risk of injury
to them after he had been chased on foot. Porter
stated something totally different in his complaint,
and to allow the claim to move forward would certainly
impugn his criminal conviction. The plea was knowing
and voluntary and the plaintiff understood the
proceedings; thus, he must be held accountable for his
actions.
(Defs.’ Brief, Point 1).
Defendants rely on Heck, wherein the Supreme Court stated
that:
[I]n order to recover damages for ... harm caused by
actions whose unlawfulness would render a conviction or
sentence invalid, a § 1983 plaintiff must prove that
the conviction or sentence has been reversed on direct
appeal, expunged by executive order, declared invalid
by a state tribunal authorized to make such
determination, or called into question by a federal
court's issuance of a writ of habeas corpus, 28 U.S.C.
§ 2254. A claim for damages bearing that relationship
to a conviction or sentence that has not been so
invalidated is not cognizable under § 1983. Thus, 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 that the conviction or sentence has
already been invalidated. But if the district court
determines that the plaintiff's action, even if
successful, will not demonstrate the invalidity of any
outstanding criminal judgment against the plaintiff,
the action should be allowed to proceed, in the absence
of some other bar to the suit.
Heck, 512 U.S. at 487 (emphasis in original).
When a plaintiff
is convicted of a criminal offense in state court, the federal
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court must determine whether a finding in favor of the plaintiff
in federal court necessarily implies the invalidity of his prior
conviction in state court by comparing the elements of the state
offense with the plaintiff's § 1983 claim, Nelson v. Jashurek,
109 F.3d 142, 145 (3d Cir. 1997), and examining which questions
were put before the jury in the criminal action, Lora–Pena v.
FBI, 529 F.3d 503, 506 (3d Cir. 2008).
In Lora–Pena, a § 1983 action,2 the plaintiff was convicted
of resisting arrest and assaulting federal officers during a
criminal trial in federal court.
See Lora–Pena, 529 F.3d at 505.
During that trial, the arresting officers testified that the
plaintiff had scratched, clawed, and punched them and had “us[ed]
his two pit bulls to assault two deputy United States Marshals.”
Id.
One arresting officer admitted that he had struck the
plaintiff, but only to the extent necessary to subdue him.
id.
See
At the conclusion of the trial, the court did not ask the
jury to decide whether the officers had used excessive force when
they arrested the plaintiff.
See id. at 506.
In a subsequent §
1983 action, the plaintiff alleged that the officers used
excessive force during the arrest because they “repeatedly
punched and kicked him after he fell to the floor.”
2
Id. at 505.
Although Lora–Pena involved both § 1983 and Bivens claims,
see Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971), the Third Circuit analyzed the
claims together, Lora–Pena, 529 F.3d at 505 n.2.
7
The Third Circuit found that because “the question of whether the
officers used excessive force was not put before the jury[,] ...
[the plaintiff's] convictions for resisting arrest and assaulting
officers would not be inconsistent with a holding that the
officers, during a lawful arrest, used excessive (or unlawful)
force in response to his own unlawful actions.” Id. at 506
(emphasis added).
The court concluded that because the
convictions and the excessive force claim were not inconsistent,
Heck did not bar the plaintiff's claims.
See id.
Likewise, Heck does not bar Plaintiff's claim.
Similar to
the plaintiff in Lora–Pena, who was convicted of resisting arrest
and assaulting federal officers, Plaintiff was convicted of
resisting arrest in violation of N.J. Stat. Ann. § 2C:29–2(a).
Just as the judge who presided over the plaintiff's criminal
trial in Lora–Pena did not put the question of excessive force
before the jury, here, the judge taking Plaintiff's plea did not
elicit any factual basis as to the unlawful use of excessive
force.3
3
During the plea, taken July 27, 2009, and attached to
Defendants’ Certification of Counsel as Exhibit 2, Plaintiff
answered in the affirmative when the judge taking his factual
basis for the resisting arrest charge asked if he ran when
defendant Paredes tried to arrest him, and that after he ran, and
defendant Paredes caught up to him, he struggled with the
officer, creating a substantial risk of some physical injury to
the officer.
8
Thus, just as the defendants in Lora–Pena could have reacted
to the plaintiff's illegal conduct with excessive force, it is
possible that Defendants reacted to Plaintiff's illegal conduct
with excessive force.
Because Plaintiff's conviction in state
court is not inconsistent with a finding that Defendants used
excessive force to arrest him, Heck does not bar Plaintiff's §
1983 claim.
B.
Qualified Immunity
Qualified immunity protects officers from liability when
“their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.”
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
To
determine whether qualified immunity applies, “[f]irst, the
[C]ourt must consider whether the facts alleged, taken in the
light most favorable to the plaintiff, show that the officer's
conduct violated a constitutional right.”
F.3d 772, 776 (3d Cir. 2004).
Kopec v. Tate, 361
Second, “if a violation could be
made out on a favorable view of the parties' submissions, the
[Court must] ask whether the right was clearly established.”
Saucier v. Katz, 533 U.S. 194, 201 (2001)).
A right is clearly
established when “it would be clear to a reasonable officer that
his conduct was unlawful in the situation he confronted.”
Id.
The Court should not grant summary judgment on the basis of
qualified immunity when disputed issues of historic fact are
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“material to the objective reasonableness of an officer's
conduct[.]”
Curley v. Klem, 298 F.3d 271, 278 (3d Cir. 2002).
Material issues of disputed, historical fact “give rise to a jury
issue.”
Id.
1.
Violation of a Constitutional Right
The Fourth Amendment prohibits police officers from using
excessive force to arrest a suspect.
F.3d 279, 288 (3d Cir. 1999).
See Abraham v. Raso, 183
To prove a Fourth Amendment
excessive force claim, a plaintiff must show that (1) a seizure
occurred and (2) the seizure was unreasonable.
See id.
there is no dispute that Defendants seized Plaintiff.
Here,
In
determining whether the seizure was reasonable, the Court must
apply the “perspective of a reasonable officer on the scene[.]”
Graham, 490 U.S. at 396.
As the Third Circuit explained in
Couden v. Duffy, 446 F.3d 483 (3d Cir. 2006), the district court
must:
determine the objective reasonableness of the
challenged conduct, considering 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[,] ... the duration of the
[officer's] action, whether the action takes place in
the context of effecting an arrest, the possibility
that the suspect may be armed, and the number of
persons with whom the police officers must contend at
one time.
Id. at 496–97 (citations omitted) (internal quotation marks
omitted).
Serious physical injury is not a necessary
prerequisite to an excessive force claim.
10
See Sharrar v.
Felsing, 128 F.3d 810, 822 (3d Cir. 1997).
Beating a suspect
after the suspect is subdued may constitute excessive force.
Barker v. Keezer, No. 08–1487, 2010 U.S. Dist. LEXIS 68995, at
*8–9, 2010 WL 2760728 (D.N.J. July 8, 2010) (“Barker claims that
... Detective Keezer beat him about the head and body and
repeatedly slammed his head into the pavement after he had
already been handcuffed ... and was lying on the ground....
Therefore, a fact-finder, accepting Barker's version of the
events as true, could conclude that Detective Keezer used
excessive force in effectuating Barker's arrest and violated
Barker's Fourth Amendment rights.”); Hurt v. City of Atlantic
City, No. 08–3053, 2010 U.S. Dist. LEXIS 16383, at *25–27, 2010
WL 703193 (D.N.J. Feb. 24, 2010) (“[I]t is for the jury to
determine whether Officer Timek and Officer Warner physically
assaulted Plaintiff after he was handcuffed and subdued on the
ground.
Because resolution of these issues implicates ‘disputes
over facts that might affect the outcome of the suit under the
governing law,’ summary judgment is not appropriate ....”
(citations omitted)).
Viewing the facts alleged in the light most favorable to
Plaintiff, a reasonable jury could conclude that Defendants used
excessive force in violation of the Fourth Amendment by beating
Plaintiff and releasing the K-9 after he was subdued.
The
Complaint alleges that Officer Paredes kicked him in the face two
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times after Plaintiff got on his hands and knees and put his
hands behind his head, and that Officer Clayton and Paredes
stomped and kicked him.
who bit him.
Officer Dooley then came with the dog,
(Compl. ¶ IV, Certification of Counsel, Exhibit
1).4
While Defendants argue that “there is no evidence to support
that the force was used maliciously to cause harm to Porter,”
(Brief, Point 1), there is also no evidence to the contrary.
There is no record of any depositions having taken place in this
matter.
Further, besides some evidence in the record, by both
parties, that Plaintiff was admitted to the hospital for the
night with a dog bite on his leg, Defendant have not relayed the
extent of injuries to Plaintiff, nor provided medical records.
Here, Plaintiff's overnight stay at the hospital, and the
undisputed fact that Plaintiff was bit in the leg by the K-9, are
4
In evaluating qualified immunity on a motion for summary
judgment, courts usually take allegations in the light most
favorable to the plaintiff by “adopting ... the plaintiff's
version of the facts.” Scott v. Harris, 550 U.S. 372, 378
(2007). However, because Heck precludes a verdict to the extent
that it contradicts the elements of Plaintiff's crimes, Nelson,
109 F.3d at 146, the Court should “not draw inferences in
Plaintiff's favor that would necessarily negate [his criminal
convictions,]” Ference v. Twp. of Hamilton, 538 F. Supp.2d 785,
789 (D.N.J. 2008). Here, adopting Plaintiff’s version of the
facts, Plaintiff admitted at his plea that he ran from officers
and struggled with the officers to get away. However, it appears
that such resisting arrest occurred prior to the alleged
instances of excessive force. Thus, Heck is not implicated as
Plaintiff’s factual basis for his resisting arrest charge is not
in question.
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not so inconsistent with Plaintiff's story that they necessitate
a finding for Defendants.
The record provided by Defendants includes police reports,
which assert that Plaintiff was not obeying commands of officers,
and that they could not place Plaintiff into handcuffs due to his
unwillingness to comply.
However, this fact is disputed by
Plaintiff in his complaint.
There is not sufficient undisputed
facts presented to this Court to determine that Defendants are
entitled to summary judgment in response to Plaintiff’s claim
that his Fourth Amendment rights were violated by the use of
excessive force after Plaintiff had been subdued.
2.
Clearly Established Right
Having determined that a reasonable jury could conclude that
Defendants violated Plaintiff's constitutional rights, the Court
must determined whether those rights were clearly established at
the time Defendants engaged in the allegedly unconstitutional
conduct.
The inquiry into whether a constitutional right is
clearly established “must be undertaken in light of the specific
context of the case[.]”
Saucier, 533 U.S. at 201.
A right is
clearly established when “it would be clear to a reasonable
officer that his conduct was unlawful in the situation he
confronted.”
Id. at 202.
The Court must assess whether the
right was clearly established at the time the officers acted.
Anderson v. Creighton, 483 U.S. 635, 639 (1987).
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Defendants arrested Plaintiff in 2008.
In 2008, it was
well-established that beating a subdued arrestee was a
constitutional violation.
In 2008, Defendants would have known
that such actions were unlawful.
Therefore, it is inappropriate
for the Court to grant Defendants summary judgment at this
juncture.
IV. CONCLUSION
For the reasons stated above, Defendants' motion for summary
judgment is DENIED.
An appropriate Order shall enter.
s/Robert B. Kugler
ROBERT B. KUGLER
United States District Judge
Dated: September 6, 2011
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