GIBSON v. MUELLER et al

Filing 59

OPINION FILED. Signed by Judge Noel L. Hillman on 3/29/12. (js)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
BRUNO GIBSON,
Plaintiff,
Civil No. 09-6486-NLH-JS
v.
CARL MUELLER, et al.,
Defendants.

OPINION

Appearances:
GEORGE R. SZYMANSKI
LAW OFFICES OF GEORGE R. SZYMANSKI
1370 CHEWS LANDING ROAD
LAUREL SPRINGS, NJ 08021
Attorney for plaintiff
MICHAEL O. KASSAK
DAVID M. RAGONESE
WHITE & WILLIAMS, ESQS.
457 HADDONFIELD ROAD
SUITE 400
CHERRY HILL, NJ 08002-2220
Attorney for defendants
HILLMAN, District Judge
Before the Court is defendants’ motion for summary
judgment seeking to dismiss plaintiff’s excessive force claim,
and plaintiff’s motion for reconsideration of this Court’s Order
dismissing his conspiracy claims.

For reasons set forth below,

defendants’ motion will be granted in part and denied in part,
and plaintiff’s motion will be denied.
I.

JURISDICTION

Plaintiff has alleged that during his arrest,

defendants used excessive force in violation of his Fourth
Amendment rights and, therefore, this Court exercises subject
matter jurisdiction pursuant to 28 U.S.C. § 1331 (federal
question jurisdiction).
II.
A.

BACKGROUND
Factual Background

On November 17, 2007, at approximately 4:00 a.m.,
plaintiff Bruno Gibson, an African-American male, was driving his
1998 white convertible on New Freedom Road, a two-lane road, in
Winslow Township, New Jersey.1

He was driving behind a Winslow

Township police vehicle operated by defendant Patrolman Carl
Mueller.

In order to pass Mueller, Gibson entered into the

oncoming traffic lane, over a dotted line, and reentered into the
right lane.2

Gibson testified that he was not aware that it was

a police car he was passing.
Mueller put on his police siren and Gibson pulled his
car to the side of the road and stopped.

At this time the video

1

For purposes of summary judgment, the facts are viewed in
the light most favorable to plaintiff. However, in his brief,
some of plaintiff’s “facts” are not substantiated by the record.
In those instances, the Court will rely on plaintiff’s deposition
testimony.
2

Plaintiff’s brief states that “without activating his turn
signal, Mr. Gibson went back into the lane ahead of the police
vehicle.” Gibson testified, however, that he used his turn
signal. Gibson Tr. at 26:7-9.
2

camera was turned on in Mueller’s police vehicle.3

Mueller got

out of his vehicle and approached Gibson’s driver side window.
Although the camera shows the events, at this time, there is no
sound recording outside of the police car, and therefore, the
statements are based on testimonial evidence.

Mueller asked

Gibson for his license, registration, and insurance card.

After

Gibson gave them to Mueller, Mueller told Gibson to “get the fuck
out of the car.”

Gibson testified that Mueller had one hand on

his flashlight and the other on his gun which was part way out of
the holster.

The video depicts Mueller using a flashlight with

his left-hand to see into the car and shows his right hand
resting on the holster but Mueller does not unholster the gun.
Mueller states that he smelled alcohol on Gibson’s breath, but
Gibson maintains that he had consumed only two beers hours
earlier and had eaten and had drunk water since then.
Mueller then instructed Gibson to walk over to the
front of the police vehicle, in between the two cars.

3

The video

The facts as depicted in the videotape are included because
the video is part of the record and, therefore, the Court must
rely on the video in ruling on summary judgment. See Scott v.
Harris, 550 U.S. 372, 127 S.Ct. 1769 (2007) (finding that the
Court of Appeals “should have viewed the facts in the light
depicted by the videotape.”); Ference v. Township of Hamilton,
538 F.Supp.2d 785, 789 (D.N.J. 2008) (“The videotape is also
likely the best available evidence of the events at issue in this
case. Thus, the videotape will be considered as part of the
record.”).
3

shows that Gibson placed his hands on his head while Mueller
checked Gibson’s coat pockets and behind his back, and then
Gibson removes his coat and places it on the trunk of his car.
Mueller then conducts a field sobriety test.

Gibson states he

gave him sloppy instructions to stand on one leg, and also told
him to walk in a straight line.

The video depicts Mueller

demonstrating standing, with arms at his side, and lifting his
foot.

It is unclear from the video tape whether Gibson fails to

follow Mueller’s example but a reasonable juror could conclude
that Mueller repeated the instruction for some reason.

The video

then depicts Mueller demonstrating how to walk heel-to-toe,
putting one foot in front of the other in a straight line.
Gibson appears to walking in the manner demonstrated by Mueller,
albeit more slowly and with less precision.
Mueller then approaches Gibson from behind, takes his
left arm and places a handcuff on his left wrist.

The video

depicts Gibson then turning around and backing up while Mueller
tries to grab Gibson’s right arm.

Mueller then gets a hold of

Gibson’s arm, pulls him over to the back of the Firebird and
forces him, head first, onto the back on the trunk in order to
handcuff Gibson.

At that time, Winslow Township police officer

Lucas Mitchell arrived and ran over to assist handcuffing Gibson.
The video depicts that the officers struggled for some time
before finally securing Gibson in handcuffs.
4

After he was handcuffed, Mueller then walked Gibson to
the police car where he hits the side of the hood with force loud
enough to make a pronounced “thud’ in the audiotape.

Mueller

appears on the video to be frisking Gibson’s pants pockets.
Mueller then walks Gibson to the side of the police car.

At this

point, Mueller and Gibson are no longer visible on the camera.
Gibson testifies that the officers slammed him against the police
car, then put him on the ground and started kicking him and
hitting him with closed fists.

He testified that at first, two

officers were punching him and then around seven officers joined
in.

He said he did not hear the officer say he would be sprayed

with a “cap-stun”4 or pepper spray, but that he was sprayed about
five or six times in the eyes.

He states he was dragged into the

back seat of the police car where he had an asthma attack and a
seizure.

Gibson stated that after twenty minutes he was drug on

the ground, with his face on the ground “like an animal” and put
on a stretcher.
Although it is not possible to see the events that
occurred after Gibson was taken to the side of police car, it is
possible to hear their verbal exchange.

The videotape was left

running and their voices could be heard.

Gibson can be heard

yelling “oh my God, you broke my back” and one or more officers

4

It appears that Gibson was sprayed with Oleoresin
Capsicum.
5

can be heard shouting “get in the car.”

An officer then shouts

“get in the car, or you’re going to get sprayed,” to which Gibson
answers “what’s going on?”

Gibson is then instructed to get on

the ground and if he gets up again, he will get sprayed.

Gibson

states “Sir, I didn’t do nothing; trying to break my back; I have
back problems.”
moving.

Mueller then keeps shouting for Gibson to stop

It then sounds as if an altercation occurs, with the

officers continuing to yell at Gibson to get in the car, and
Gibson screaming “oh my back; oh my head; what did I do.”

During

this exchange, it appears that Gibson was sprayed with cap-stun.
Again, we hear voices yelling for Gibson to get in the car or he
will get sprayed again.

One of the officers then inquires about

shackles and yells at Gibson to stop trying to get up.
Gibson can be heard coughing and complaining that he
cannot move and cannot breath.
get into the car willfully.

Someone asks Gibson if he will

Gibson is shortly thereafter in the

backseat of the police vehicle.

Gibson can be heard breathing,

and yelling, “oh my God” a few times.

Later in the recording he

sounds as if he is spitting or coughing and intermittently
yelling, “aaahhhh.”

Then the door to the police car opens and

Gibson states, “my face is on fire, man, oh my God; I’m having an
asthma attack; I’m going to die.”

Asked if he had his inhaler,

Gibson responded that he did not.

Gibson continues to repeat

that he cannot breathe and that he is going to die.
6

One of the

officers on the scene calls for an ambulance.

There is also a

voice that states, “here, breathe the oxygen; relax, keep the
mask on.”
Gibson testified that he was put in the ambulance, but
denies that he spit on the EMT or that he tried to knock the
oxygen mask off.

Gibson also testified that he arrived at the

hospital “half dead” and denies that he was yelling, cursing, or
spitting at anyone, or that he had to be sedated.
Several members of Gibson’s family also testified as to
the events that occurred during the arrest.

The spot where

Mueller pulled Gibson over happened to be in front of his
parent’s home in Sicklerville, New Jersey.

Gibson’s sister,

father, mother and brother came out after hearing their dog
barking.

Gina Gibson, plaintiff’s sister, testified that she saw

Gibson on the ground, handcuffed and shackled, and that he was
surrounded by at least four police officers.

She testified that

she saw the police officers kicking Gibson’s legs, below the
knee.

She said that it was very cold outside and Gibson did not

have his jacket on and his pants and underpants had fallen down
so that his buttocks was visible.

She testified that she did not

see any of the officers punching or hitting Gibson.

Gina stated

that she heard her brother screaming that he could not breathe.
Gina also testified that she witnessed the police drag
Gibson onto a stretcher and put him on the stretcher face down.
7

She stated that after arriving at the hospital where Gibson was
taken, she saw that his face was bruised and cut with dried
blood, and that his wrists were swollen.

She also testified that

his eyes were really red and that she believed it was from the
mace which she could smell.

She testified that Gibson was

handcuffed to the hospital bed.
Gibson’s father, Robert Gibson, testified that the
police had Gibson on the ground “with a knee in the back.”

He

heard Gibson yelling that he could not breathe and heard the
police yelling for Gibson to get in the car.

Robert testified

that several police “grabbed him up” but that Gibson was unable
to move to get into the car.

Robert testified that he saw the

police officers kick Gibson about eight times around his legs and
back while he was on the ground.

He testified that the officers

had Gibson upside down and were slamming his head on the car and
on the ground.

After the ambulance arrived, Robert testified

that the police had Gibson upside down and dragged him to the
ambulance.

At the hospital, Robert testified that Gibson’s face

was swollen and cut, and that he was handcuffed to the bed.
Gibson’s mother, Gloria Gibson, testified that she saw
a police officer giving Gibson a sobriety test.

She testified

that she saw the officer handcuff Gibson and then slam his head
on the hood of the car.

She testified that the police officers

wanted him to get in the car and that Gibson “wondered why [he]
8

was getting into the car.”

She stated that the officers dragged

Gibson and pinned him down.

She heard Gibson say that he could

not breathe and that he had asthma.

She also testified that the

officers dragged Gibson from the car and onto the stretcher to be
put inside the ambulance.

She stated that at the hospital,

Gibson was handcuffed to the hospital bed and his face was
swollen with cuts.
Gibson’s brother, Gary Gibson, testified that he saw
about five officers surrounding Gibson, pulling, grabbing, and
kicking him, and that one officer was on top of Gibson with his
knees in his back.

He said he heard his brother screaming he

could not breathe and that he had pain in his back. Gary
testified that the officers continued to hold Gibson down after
Gibson said that he was hurt.

He testified that after the

ambulance arrived, they took his limbs and dragged him on the
ground over to the stretcher.

Gary testified that Gibson was not

resisting treatment but was screaming because he was in pain.

He

also testified that at the hospital, Gibson was bruised, swollen
and could barely talk.

None of plaintiff’s family testified that

they saw any of the officers punch Gibson with closed fists or
use a baton or other weapon to strike Gibson.
Joseph Weber, Sr., the EMT who arrived with the
ambulance testified that Gibson was “agitated and combative,”
meaning “a little bit violent.”

He testified that Gibson was re9

handcuffed in order put Gibson’s arms in front of him, but that
Gibson started “wailing his arms” and he was re-handcuffed with
his arms behind him.

Weber testified that Gibson kept shaking

his head and knocking his oxygen mask off.

He also testified

that Gibson was spitting at him while in the ambulance.
Rajinder Chugh, M.D. treated Gibson after he was taken
to the hospital.

Dr. Chugh testified that Gibson was “combative

and screaming” when he was brought into the ER which required
that he be given two doses of the medication Haldol to sedate
him.

Dr. Chugh testified that Gibson was restrained while in the

hospital due to risk of harm to the hospital staff.

He stated

that Gibson’s blood alcohol level was 190, which is considered
high.
Gibson was discharged from the hospital and charged
with aggravated assault on a police officer, resisting arrest,
throwing bodily fluids at a law enforcement officer, and
possession of drug paraphernalia.

He was also charged with the

traffic offenses of driving while intoxicated, failure to signal
and reckless driving.

Gibson pleaded guilty to aggravated

assault in exchange for dismissal of the remaining criminal
charges.

He was found guilty of driving while intoxicated after

a municipal trial.
B. Procedural Background
On July 6, 2010, this Court granted in part and denied
10

in part defendants’ Motion for Partial Judgment on the Pleadings
and dismissed with prejudice plaintiff’s Eighth Amendment and
Fourth Amendment malicious prosecution claims, and dismissed
without prejudice, plaintiff’s §§ 1985(3) and 1986 conspiracy
claims.

The Court granted plaintiff leave to file an amended

complaint with respect to his §§ 1985(3) and 1986 conspiracy
claims.

Plaintiff filed an amended complaint on July 30, 2010,

which was identical to his original complaint except for the
additional sentence: “defendants were motivated at all times by
racial prejudice toward the plaintiff.”

Defendants again moved

for judgment on the pleadings which motion the Court granted and
dismissed plaintiff’s §§ 1985(3) and 19865 conspiracy claims with
prejudice because plaintiff failed to allege facts that could
support a conspiracy claim.
Defendants now move for summary judgment on plaintiff’s
remaining Fourth Amendment claim for excessive force.
III. DISCUSSION
A.

Defendants Anthony Rao and Pascal Chavanon

As an initial matter, plaintiff concedes that these two
defendants should be dismissed.

Therefore, defendants’ motion

for summary judgment will be granted as to defendants Anthony Rao

5

Plaintiff’s § 1986 claim was dismissed because liability
under § 1986 is dependent on § 1985 liability and Plaintiff
failed to establish a claim under § 1985. Clark v. Clabaugh, 20
F.3d 1290, 1296 n. 5 (3d Cir. 1994).
11

and Pascal Chavanon and they shall be dismissed from this matter.
B.

Summary Judgment Standard

Summary judgment is appropriate where the Court is
satisfied that the materials in the record, including
depositions, documents, electronically stored information,
affidavits or declarations, stipulations, admissions, or
interrogatory answers, demonstrate 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(a).
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.
U.S. 242, 248 (1986).

Anderson v. Liberty Lobby, Inc., 477

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.”

Marino

v. Industrial Crating Co., 358 F.3d 241, 247 (3d Cir.
2004)(quoting Anderson, 477 U.S. at 255).
Initially, the moving party has the burden of
demonstrating the absence of a genuine issue of material fact.

12

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

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.
at 256-57.

Anderson, 477 U.S.

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).
The rule that all reasonable inferences are to be drawn
in favor of the non-moving party is qualified if an authenticated
videotape of material events is part of the record.

Under this

circumstance, the Court will not draw inferences in favor of the
non-moving party that are inconsistent with the events depicted
on the videotape.

Scott, 550 U.S. at 380; Ference, 538 F.Supp.2d

at 789 (stating the court will not draw inferences in plaintiff’s
favor that are inconsistent with the videotape).

“When opposing

parties tell two different stories, one of which is blatantly
contradicted by the record, so that no reasonable jury could
believe it, a court should not adopt that version of the facts
for purposes of ruling on a motion for summary judgment.”
550 U.S. at 380.

13

Scott,

C.

Defendants’ Motion for Summary Judgment

Plaintiff alleges that defendants violated his rights
under the Fourth Amendment, and under 42 U.S.C. § 1983.

The

Court interprets plaintiff to allege that he brings his claim of
Fourth Amendment violation pursuant to 42 U.S.C. § 1983.6

To

state a claim under § 1983, a plaintiff must establish that (1)
the conduct deprived him of his rights, 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.7

Gomez v. Toledo, 446 U.S. 635, 640, 100

S.Ct. 1920, 64 L.Ed.2d 572 (1980); Shuman ex rel. Shertzer v.
Penn Manor School Dist., 422 F.3d 141, 146 (3d Cir. 2005).
Defendants argue that plaintiff’s claim for excessive

6

Section 1983 does not create any new substantive rights;
rather it provides a remedy for the violation of a federal
constitutional or statutory right conferred elsewhere. Doe v.
Delie, 257 F.3d 309, 314 (3d Cir. 2001) (citing Baker v.
McCollan, 443 U.S. 137, 144 n. 3 (1979)).
7

Section 1983 states in relevant part:

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 ....

14

force should be dismissed because the force used on plaintiff was
objectively reasonable and that defendants are entitled to
qualified immunity.
1.

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, 172 L.Ed.2d 565 (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.”
(2009).

Pearson, 129 S.Ct. at 815

This doctrine provides a government official immunity

from suit rather than a mere defense from liability.

Id.

Court must undertake a two-step inquiry to determine the

A

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.
Qualified immunity is applicable unless the official’s
conduct violated a clearly established constitutional
right.

15

Montanez, 603 F.3d at 250 (citations omitted). “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. (citing Albright v. Rodriguez, 51 F.3d 1531,

1535 (10th Cir. 1995)).
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.”
S.Ct. at 818.

Pearson, 129

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 question of whether the officers
violated the plaintiff’s constitutional rights).

Whether an

officer made a reasonable mistake of law and is thus entitled to
qualified immunity is a question of law that is properly answered

16

by the Court.

See Curley v. Klem, 499 F.3d 199, 211 (3d Cir.

2007).
Defendants argue that they are entitled to qualified
immunity.

Plaintiff responds that defendants used excessive

force during his arrest in violation of his Fourth Amendment
rights.
2.

Fourth Amendment

“In an excessive force case, whether there is a
constitutional violation is properly analyzed under the Fourth
Amendment’s objective reasonableness standard.”

Curley, 499 F.3d

at 206 (internal quotation marks omitted) (citing Graham v.
Connor,490 U.S. 386, 388, 109 S.Ct. 1865, 104 L.Ed.2d 443
(1989)).

“The relevant inquiry is the reasonableness of the

officer’s belief as to the appropriate level of force, which
should be judged from [the officer’s] on-scene perspective, and
not in the 20/20 vision of hindsight.”

Id. (internal quotation

marks removed) (citing Saucier v. Katz, 533 U.S. 194, 205, 121
S.Ct. 2151, 150 L.Ed.2d 272 (2001)).
Applying the objective reasonableness standard 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.”

17

Id. at 207

(citing Graham, 490 U.S. at 396).

A “totality of the

circumstances” test is applied which requires a “careful
balancing of the nature and quality of the intrusion on the
individual’s Fourth Amendment interests against the
countervailing governmental interests at stake.”

Id.; Garrison

v. Porch, 376 Fed.Appx. 274, 277 (3d Cir. 2010) (“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.”).

“The

balancing must be conducted in light of the facts that were
available to the officer.”

Id. (citing Maryland v. Garrison, 480

U.S. 79, 85, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987)).
In evaluating the proper test for objective
reasonableness, the Supreme Court has provided that “[n]ot 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. at 396-97.
In Cincerella v. Egg Harbor Tp. Police Dept., a court
in this district noted several factors the Third Circuit found

18

relevant in determining whether a plaintiff’s treatment after
handcuffing constituted excessive force.

These factors included:

the intensity of the plaintiff’s pain, the officer’s
awareness of the plaintiff’s pain, whether the
plaintiff asked to have the handcuffs removed and how
long after those requests the handcuffs are removed,
whether there were circumstances justifying a delay in
removing the handcuffs, and the severity of the injury
the plaintiff suffered.
Cincerella v. Egg Harbor Twp. Police Dept., No. 06–1183, 2009 WL
792489, at *10 (D.N.J. March 23, 2009) (citing Gilles v. Davis,
427 F.3d at 207–08 and Kopec v. Tate, 361 F.3d 772, 777 (3d Cir.
2004)).
As set forth above, there is extensive witness
testimony and a videotape of plaintiff’s arrest.

Viewing all the

evidence in the record in the light most favorable to plaintiff,
except for those instances which are contradicted by the
videotape, there is a genuine dispute of material fact over
whether the officers used excessive force during Gibson’s arrest.
In particular, during the time that Gibson and the arresting
officers were not in visual range of the video, there is
testimonial evidence as well as audio recording that raises the
issue whether the force applied to Gibson was excessive after he
was handcuffed and shackled.
In assessing the facts and circumstances of this case,
Gibson was pulled over for reckless driving.

There is no

testimony that the officers thought Gibson may have been armed.

19

Mueller suspected that Gibson was also driving while intoxicated
based on the smell of alcohol.

The videotape depicts Mueller

giving Gibson instructions for a field sobriety test and Gibson
cooperating, albeit with some difficulty, to follow the
instructions.8

Based on Gibson’s performance, Mueller decided to

arrest Gibson and the video shows that Gibson does turn around
and pull his right arm away so that Mueller cannot effectively
put the handcuff on his right wrist.

Officer Mitchell arrives

and the two officers struggle to get Gibson handcuffed while
Gibson’s chest and face are facing the hood of his car.
point, there is no excessive force.

At this

Reasonable minds could not

differ that the force expended was necessary to effectuate the
arrest.
Gibson is then taken over to the side of the police car
and the officers and Gibson are no longer on video, although
their voices can be heard on the tape.

There is no dispute of

fact that Gibson was handcuffed behind his back, that he was
eventually shackled around his ankles, that he was sprayed with
cap-stun at least two times, and that the police had to use force
to get Gibson in the back of the car.

There is also no dispute

that Gibson told the officers his back hurt and that he was
having trouble breathing.

8

Gibson was found guilty in state court proceedings of
driving while intoxicated in violation of N.J.S.A. 39:4-50.
20

The issue raised at this point is whether the force
used by the arresting officers was unreasonable in light of
Gibson’s resistance to be handcuffed and his resistance to get
into the back of the police car.9

There is testimony that Gibson

was on the ground, with an officer’s knee in his back, and that
several officers were kicking him while he was on the ground.
Gibson and several witnesses testified that he was not resisting
at that time.

The defendants’ version is that Gibson was

resisting arrest, kicking them, and refusing to cooperate by
getting in the police car.

There is also testimony that when the

ambulance arrived, while handcuffed and shackled, Gibson was
dragged over to the stretcher and that his face was cut and
swollen upon arriving at the hospital.

Contrary to plaintiff’s

assertion that he was cooperative at that time, witness testimony
described him as combative and trying to spit on the officers and
EMT.

Although the Court will not make inferences in plaintiff’s

favor that are contradicted by the videotape, during the time
that plaintiff was on the ground, he and the officers are not

9

Defendants state that even if defendants violated
plaintiff’s constitutional right, that right was not clearly
established because “there are no reported cases in which an
officer violates the Fourth Amendment when he uses force to
effectuate an arrest in which the arrestee assaults the officer
and resists arrest.” Since there is a dispute of material fact
concerning the events during the arrest that must be decided by a
jury, the Court does not reach the issue of whether the right was
clearly established. The Court does note, however, that there is
an abundance of case law regarding the parameters of use of force
during an arrest with respect to the Fourth Amendment.
21

visible on the camera.

Their voices and other sounds can be

heard, but the verbal exchanges are not conclusive one way or the
other.

There is no videotape, visual or audio, during the time

that plaintiff was being put into the ambulance.
In their reply, defendants argue that this Court cannot
accept any fact asserted by plaintiff, even if there is support
for it in the record, that implies the invalidity of plaintiff’s
state court conviction of aggravated assault.10

Defendants argue

that plaintiff’s assertion that he followed “every instruction”
of the police officers and got in the car voluntarily should not
be considered because it would imply the invalidity of his
conviction for aggravated assault against Mueller and also
contradicts what is depicted in the videotape.
Plaintiff was convicted of aggravated assault on a
police officer, third degree, N.J.S.A. 2C:12-1b(5)(a).11

The

Court agrees that plaintiff’s blanket statement that he followed

10

It appears that defendants are not arguing that
plaintiff’s pleading guilty to aggravated assault bars his
Section 1983 action under Heck v. Humphrey, 512 U.S. 477, 114
S.Ct. 2364, 129 L.Ed.2d 383 (1994), only that certain facts as
alleged in his Section 1983 claim contradict facts found in
support of his state court conviction.
11

That statute states: “A person is guilty of aggravated
assault if he ... [c]commits a simple assault as defined in
subsection a. (1), (2) or (3) of this section upon ... [a]ny law
enforcement officer acting in the performance of his duties while
in uniform or exhibiting evidence of his authority or because of
his status as a law enforcement officer.” N.J.S.A. 2C:121b(5)(a).
22

every direction and voluntarily got into the police car should
not be accepted as true because it contradicts the videotape and
would imply the invalidity of his conviction of aggravated
assault on a police officer.

However, as the lengthy recitation

of the deposition testimony and events depicted on the videotape
show, even though Gibson clearly did not cooperate with the
officers during initial part of the arrest, there is an issue
whether force was used by the defendants before or after Gibson
was handcuffed and shackled on the ground.

Also, defendants have

not alleged the specific facts in support of the underlying state
court conviction for aggravated assault that would undermine his
allegation in this case that the officers used unreasonable force
while he was on the ground.

See Lora-Pena v. F.B.I., 529 F.3d

503, 506 (3d Cir. 2008) (finding 1983 claim not barred even
though plaintiff convicted of resisting arrest and assaulting
federal officers because issue of whether officers used excessive
force was not put before jury in criminal matter); Hendrix v.
City of Trenton, No. 06-3942, 2009 WL 5205996, at *13 (D.N.J.
Dec. 29, 2009) (concluding that Heck did not bar excessive force
claim where plaintiff resolved charges of aggravated assault and
resisting arrest by participating in New Jersey’s pretrial
intervention program).12

12

Although defendants provided two pages of transcripts from
the underlying criminal proceedings, there was no testimony in
those two pages for the Court to consider whether Gibson did in
23

Ultimately, whether the plaintiff’s version is to be
believed comes down to credibility.

A jury must resolve the

disputed issues of fact by determining whose story to credit.
Once the jury has done so, the Court may then determine whether
defendants acted reasonably during the situation as found by the
jury.

This approach will allow the jury to make findings on

questions of fact, and then allow the Court to make the ultimate
determination of law as to whether Defendant is entitled to
qualified immunity.

See Curley v. Klem, 499 F.3d 199, 211, 211

n. 12 (3d Cir. 2007) (“When the ultimate question of the
objective reasonableness of an officer’s behavior involves
tightly intertwined issues of fact and law, it may be permissible
to utilize a jury in an advisory capacity, ... but responsibility
for answering that ultimate question remains with the court.”);
see also id. at 225–26 (dissenting opinion) (internal citations
omitted) (“[I]f factual disputes relevant to [the step-two] legal
analysis do exist, the court will have to postpone making this
determination until the jury resolves all the relevant factual
disputes, because determining what actually happened is a
prerequisite to determining whether the law clearly established

fact admit that defendants’ use of force was reasonable. See Ali
v. Rando, No. 09–4956, 2011 WL 4499261, at *7-8 (D.N.J. Sept. 26,
2011) (where defendant provided transcript of state court
criminal proceedings in which plaintiff admitted that he did not
cooperate with the officers during his arrest, that he refused to
be handcuffed, and that he pushed the officer).
24

that a particular action was permitted or prohibited by the
Fourth Amendment under those circumstances.

After the jury

resolves these relevant fact disputes, presumably through the use
of special interrogatories, the court is then capable of deciding
whether or not the law clearly permitted or prohibited the
conduct constituting the constitutional violation.”).
Thus, defendant’s motion for summary judgment on
plaintiff’s excessive force claim for the remaining defendants
will be denied.
D.

Motion for Reconsideration

Plaintiff filed a motion asking the Court to reconsider
the Order entered on December 21, 2010, and to restore
plaintiff’s Section 1985(3) and 1986 conspiracy claims.
Plaintiff claims that this Court dismissed his conspiracy claims
because he did not put the words “meeting of the minds” in his
amended complaint.

Plaintiff then simply refers to his

opposition to defendant’s motion for summary judgment in which he
“cites to ample evidence in the record, in the form of the
transcripts of numerous depositions taken of non-party witnesses
to the plaintiff’s beating, which would support a finding that
there was a meeting of the minds among defendants.”

Defendants

oppose plaintiff’s motion on grounds that the motion is untimely
and because no grounds exist to grant reconsideration.
In the District of New Jersey, Local Civil Rule 7.1(I)

25

governs motions for reconsideration.13

Bowers v. Nat’l.

Collegiate Athletics Ass’n., 130 F.Supp.2d 610, 612 (D.N.J.
2001).

Pursuant to Rule 7.1(I), “a motion for reconsideration

shall be served and filed within 14 days after the entry of the
order or judgment on the original motion by the Judge” and
submitted with a “brief setting forth concisely the matter or
controlling decisions which the party believes the Judge ... has
overlooked.”
The standard for reargument is high and reconsideration
is to be granted only sparingly.
F.R.D. 309, 314 (D.N.J. 1994).

See United States v. Jones, 158
The movant has the burden of

demonstrating either: "(1) an intervening change in the
controlling law; (2) the availability of new evidence that was
not available when the court [issued its order]; or (3) the need
to correct a clear error of law or fact or to prevent manifest

13

Motions for reconsideration are not expressly recognized
in the Federal Rules of Civil Procedure. United States v.
Compaction Sys. Corp., 88 F.Supp.2d 339, 345 (D.N.J. 1999).
Generally, a motion for reconsideration is treated as a motion to
alter or amend judgment under Fed.R.Civ.P. 59(e), or as a motion
for relief from judgment or order under Fed.R.Civ.P. 60(b). Id.
For the same reasons that plaintiff’s motion is denied on the
merits under the Local Rule, it is denied under the Federal
Rules. See Holsworth v. Berg, 322 Fed.Appx. 143, (3d Cir. 2009)
(construing motion for reconsideration as the functional
equivalent of a Rule 59(e) motion to alter or amend a judgment
which requires either “(1) an intervening change in controlling
law; (2) the availability of new evidence not available
previously; or (3) the need to correct clear error of law or
prevent manifest injustice.”).
26

injustice."

Max’s Seafood Café v. Quinteros, 176 F.3d 669, 677

(3d Cir. 1999)(citing N. River Ins. Co. v. CIGNA Reinsurance Co.,
52 F.3d 1194, 1218 (3d Cir. 1995)).

The Court will grant a

motion for reconsideration only where its prior decision has
overlooked a factual or legal issue that may alter the
disposition of the matter.

U.S. v. Compaction Sys. Corp., 88

F.Supp.2d 339, 345 (D.N.J. 1999); see also L.Civ.R. 7.1(g). "The
word ‘overlooked’ is the operative term in the Rule."

Bowers v.

Nat’l. Collegiate Athletics Ass’n., 130 F.Supp.2d 610, 612
(D.N.J. 2001)(citation omitted); see also Compaction Sys. Corp.,
88 F.Supp.2d at 345.
Reconsideration is not to be used as a means of
expanding the record to include matters not originally before the
court.

Bowers, 130 F.Supp.2d at 612-13; Resorts Int’l. v. Greate

Bay Hotel and Casino, Inc., 830 F.Supp. 826, 831 n. 3 (D.N.J.
1992); Egloff v. New Jersey Air National Guard, 684 F.Supp. 1275,
1279 (D.N.J. 1988).

Absent unusual circumstances, a court should

reject new evidence which was not presented when the court made
the contested decision.
3.

See Resorts Int’l, 830 F.Supp. at 831 n.

A party seeking to introduce new evidence on reconsideration

bears the burden of first demonstrating that evidence was
unavailable or unknown at the time of the original hearing.

See

Levinson v. Regal Ware, Inc., No. 89-1298, 1989 WL 205724, at *3
(D.N.J. Dec. 1, 1989).

27

Moreover, L.Civ.R. 7.1(g) does not allow parties to
restate arguments which the court has already considered.
G-69 v. Degnan, 748 F.Supp. 274, 275 (D.N.J. 1990).

See

Thus, a

difference of opinion with the court’s decision should be dealt
with through the normal appellate process.

Bowers, 130 F.Supp.2d

at 612 (citations omitted); Florham Park Chevron, Inc. v. Chevron
U.S.A., Inc., 680 F.Supp. 159, 162 (D.N.J. 1988); see also
Chicosky v. Presbyterian Medical Ctr., 979 F.Supp. 316, 318
(D.N.J. 1997); NL Industries, Inc. v. Commercial Union Ins. Co.,
935 F.Supp. 513, 516 (D.N.J. 1996) ("Reconsideration motions ...
may not be used to re-litigate old matters, or to raise arguments
or present evidence that could have been raised prior to the
entry of judgment.").

In other words, "[a] motion for

reconsideration should not provide the parties with an
opportunity for a second bite at the apple."

Tishcio v. Bontex,

Inc., 16 F.Supp.2d 511, 532 (D.N.J. 1998) (citation omitted).
First, plaintiff’s motion is untimely.
entered on December 12, 2010.

The Order was

Plaintiff did not file his motion

for reconsideration until November 16, 2011, almost a year after
the Order was entered.

This is well beyond the 14 day

requirement and, therefore, plaintiff’s motion will be denied as
untimely.
Second, plaintiff’s two-page brief consists of quotes
from two cases, Griffin v. Breckenridge, 403 U.S. 88 (1971), and

28

Hampton v. Hanrahan, 600 F.2d 600 (7th Cir. 1979).

Two cases

decided in 1971, and 1979, respectively, do not present an
“intervening change in the law” regarding a matter decided in
2010.
Third, plaintiff mistakenly interprets the Court’s
Order as requiring that he only needed to include the words
“meeting of the minds” in his complaint in order to have
successfully plead a claim for conspiracy.

As explained in the

Court’s Order:
To demonstrate a conspiracy pursuant to § 1985©),
Plaintiff must allege “(1) a conspiracy; (2) for the
purpose of depriving, either directly or indirectly,
any person or class of persons of the equal protection
of the laws, or of equal privileges and immunities
under the laws; and (3) an act in furtherance of the
conspiracy; (4) whereby a person is injured in his
person or property or deprived of any right or
privilege of a citizen of the United States.” United
Bhd. of Carpenters & Joiners of Am., Local 610, AFL-CIO
v. Scott, 463 U.S. 825, 828-29 (1983). Courts have
further opined that “[t]o constitute a conspiracy
[under § 1985(3)], there must be a ‘meeting of the
minds.’” Estate of Oliva v. New Jersey, 579 F. Supp.2d
643, 678 (D.N.J. 2008) (quoting Startzell v. City of
Phila., 533 F.3d 183, 205 (3d Cir. 2008)); see Shipley
v. New Castle County, 597 F. Supp.2d 443, 450 (D. Del.
2009)(“While the Complaint contains allegations of
individual acts taken by each Defendant, other than to
invoke the word “conspiracy”, it fails to allege any
facts from which one could infer an agreement or
understanding among Defendants to violate Plaintiffs’
constitutional rights, or to discriminate against them
under § 1985. For the above reasons, the Court will
grant the Motion To Dismiss the § 1985 claim”).
Plaintiff failed to plead any facts concerning a
“meeting of the minds” among Defendants.
As clearly stated by the Court, plaintiff failed to
29

allege any “facts” concerning a “meeting of the minds” or that
could give rise to a conspiracy claim, not that plaintiff simply
failed to add the words “meeting of the minds” in his complaint.
Fourth, plaintiff’s motion for reconsideration still
does not allege any facts in support of a conspiracy claim.
Although plaintiff directs the Court to his entire opposition
brief and all the transcripts of all the non-party witnesses,14
plaintiff fails to set forth concisely the matter which he
believes the Court has overlooked.

See L.R. 7.1(I).

Fifth, the testimony of the non-party witnesses is not
evidence that was previously unavailable.

See Damiano v. Sony

Music Entertainment, Inc., 975 F.Supp. 623, 634 (D.N.J. 1996)
(“[T]here is a strong policy against entertaining reconsideration
motions based on evidence that was readily available at the time
that the original motion was heard; and so the court may, in its

14

We recognize that Plaintiff alleges concerted action
rather than an express meeting of the minds to support his
conspiracy claim but the plaintiff must do more that merely
assert a legal conclusion or principle. Asking a Court to simply
read a brief in opposition to another motion and all the
deposition transcripts in order to guess what facts plaintiff
intends to prove in support of his conspiracy claim is not the
appropriate standard in filing a motion. The Court cannot act as
an advocate for either party. Plaintiff must state his argument,
provide facts in support of his argument, and then cite to the
record where those facts can be found. This is not to say that
if plaintiff properly briefed his motion for reconsideration that
it would have merit. Obviously, in deciding defendant’s motion
for summary judgment, the Court has read plaintiff’s opposition
brief and deposition transcripts in support thereof and neither
contains grounds upon which to base a conspiracy claim.
30

discretion, refuse to consider such evidence.”) (citing Florham
Park Chevron, Inc. v. Chevron U.S.A., Inc., 680 F.Supp. 159, 16263 (D.N.J. 1988)).

The non-party witnesses are all members of

the plaintiff’s family.

There is nothing to suggest that they

were not available when defendants’ motion for judgment on the
pleadings was pending.

See id. (refusing to consider evidence

which could and should have been submitted earlier).
Finally, there is no clear error of law or manifest
injustice.

Plaintiff makes no argument that the Court’s Order is

based on an error of law or that reconsideration is necessary to
prevent manifest injustice.

See Max’s Seafood Café, 176 F.3d at

677.
For all these reasons, plaintiff’s motion for
reconsideration will be denied.
IV.

CONCLUSION

For the foregoing reasons, defendants’ motion for
summary judgment will be granted in part and denied in part.
Plaintiff’s motion for reconsideration will be denied.

s/Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
At Camden, New Jersey
Dated: March 29, 2012

31