FLEMMING v. NETTLETON et al

Filing 27

OPINION. Signed by Judge Renee Marie Bumb on 11/26/2012. (dmr)

NOT FOR PUBLICATION

[Docket No. 23]

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

EDWARD H. FLEMMING,
Plaintiff,
Civil Action No.
10-cv-1958 RMB/KMW

v.
JOHN NETTLETON and TOWNSHIP OF
PENNSAUKEN POLICE DEPARTMENT,

OPINION

Defendants.

Appearances:
Robert Aaron Porter
Bafundo Porter Borbi & Clancy
1940 E. State Highway 70
P.O. Box 5372
Cherry Hill, NJ 08034
Attorneys for Plaintiff
Paola F. Kaczynski
William J. Ferren & Associates
1500 Market Street, Suite 2920
Philadelphia, PA 19102
Attorneys for Defendants

BUMB, UNITED STATES DISTRICT JUDGE:
Defendants John Nettleton (“Nettleton”) and Township of
Pennsauken Police Department (“Pennsauken”) (collectively, the
“Defendants”) have moved for summary judgment.
that follow, that motion is GRANTED.
I.

Background

1

For the reasons

On July 19, 2009, Nettleton, then a sergeant in the
Pennsauken Township Police Department, received a report of a
suspicious death at the corner house on 42nd and Camden, 2201 42nd
Street, in Pennsauken, New Jersey.

Defendants’ Statement of

Material Facts Not in Dispute ¶ 4-6.
and Camden at around 6:00pm.

Nettleton arrived at 42nd

Id. ¶ 10.

The scene at 2201 42nd

Street was chaotic as: (1) Nettleton and other officers
discovered a dead body in a heavily decomposed state; (2)
occupants of the home were attempting to flee the home and
generally being uncooperative; (3) family members of the
deceased were arriving at the home.

Id. ¶¶ 11-14.

was charged with coordinating the scene.

Nettleton

Id. ¶ 11.

In that

capacity, Nettleton instructed officers to detain individuals
fleeing the home, spoke with family members, and coordinated
with the detective division and prosecutor’s office. Id. ¶ 13-14.
At the same time, Plaintiff Edward Flemming (“Plaintiff”)
was returning home to 42nd Street, where he resides, via Camden
Avenue, in his truck.

Plaintiff’s Statement of Material

Undisputed Facts ¶ 5. Plaintiff was approaching 42nd Street,
while driving on Camden Avenue, when he noticed a police car
parked at the intersection of the two streets.

Id.

Plaintiff

turned left onto 42nd Street where he saw four police cars parked
on the right side of the street; legal parking is permitted on
the left side of the street.

Plaintiff’s Statement of Material

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Undisputed Facts ¶ 5.

At that time, Plaintiff realized that the

police cars on the street were blocking access to his home.
¶ 10.

Id.

Plaintiff went about 40 feet further and rolled down the

window, asking a group of officers “if he could pull up so he
could get into his house.”

Id. ¶ 11.

Nettleton then informed Plaintiff that he was approaching a
crime scene.

Id. ¶ 12.

Nettleton stuck his head inside the

window and told Plaintiff that he was not wearing his seatbelt
and instructed Plaintiff to pull over.

Id.

Deposition of Edward Flemming at 21:8-12.

Plaintiff complied.

Nettleton then asked

Plaintiff for his license and registration.
Statement of Material Undisputed Facts ¶ 14.

Plaintiff’s
Without warning to

Nettleton, Plaintiff then opened the driver’s side door of his
truck.

Id. ¶ 15.

According to Plaintiff, it was “natural” for

him to open his door in response to Nettleton’s request, because
he is “a big guy” and, by opening the door, he had more room to
lean to the left to retrieve his wallet from his right back
pocket with his right hand.
at 30:17-31:7.

Plaintiff’s Deposition Transcript

When Plaintiff’s arm was fully extended to open

the door, Nettleton, who was about two to three feet from the
door, blocked the door with his hand and pushed back and closed
the door.

Plaintiff’s Statement of Material Undisputed Facts ¶

16; Deposition of John Nettleton at 18:11-14, 55:24-56:4;
Deposition of Edward Flemming at 32:12-14, 34:6-10.

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The parties

differ in their characterization of Nettleton’s closing of the
door; Plaintiff claims Nettleton “slammed” it shut while
Nettleton claims he “carefully” shut it. Plaintiff’s Statement
of Material Undisputed Facts ¶¶ 17-18.

In either case,

Plaintiff immediately felt a pop in his shoulder.

Id. ¶ 16.

Plaintiff was subsequently diagnosed with a torn rotator cuff as
a result of Nettleton’s pushing of the door.

Id. ¶ 17.

According to Nettleton, while he did not feel “threatened”
during this incident with Plaintiff, he was concerned because
Plaintiff’s conduct had the potential to disrupt the
investigation and because Plaintiff was acting disorderly and in
an irrational manner.

Defendant John Nettleton’s Answers to

Plaintiff’s Interrogatories ¶ 1; Deposition of John Nettleton at
54:15-55:1.
Plaintiff now asserts: (1) a claim under 42 U.S.C. § 1983
for excessive force against Nettleton based on his shoulder
injury (Complaint Count 3); and (2) claims under state law
against Nettleton and Pennsauken arising out of this episode
(Complaint Counts 1 and 2).
II.

Standard
Summary judgment should only be granted if “there is no

genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
“An issue is genuine only if there is a sufficient evidentiary

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basis on which a reasonable jury could find for the non-moving
party, and a factual dispute is material only if it might affect
the outcome of the suit under governing law.” Mollo v. Passaic
Valley Sewerage Comm'rs, 406 F. App'x 664, 667 (3d Cir.2011)
(quotation and citation omitted).
When deciding the existence of a genuine dispute of
material fact, a court's role is not to weigh the evidence; all
reasonable “inferences, doubts, and issues of credibility should
be resolved against the moving party.” Meyer v. Riegel Prods.
Corp., 720 F.2d 303, 307 n.2 (3d Cir. 1983). However, “[t]he
mere existence of a scintilla of evidence,” without more, will
not give rise to a genuine dispute for trial. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). In the face of
such evidence, summary judgment is still appropriate “[w]here
the record . . . could not lead a rational trier of fact to find
for the nonmoving party.” Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986). “Summary judgment motions
thus require judges to ‘assess how one-sided evidence is, or
what a ‘fair-minded’ jury could ‘reasonably’ decide.'” Williams
v. Borough of W. Chester, Pa., 891 F.2d 458, 460 (3d Cir. 1989)
(quoting Anderson, 477 U.S. at 265).
The movant “always bears the initial responsibility of
informing the district court of the basis for its motion, and
identifying those portions of the pleadings, depositions,

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answers to interrogatories, and admissions on file, together
with the affidavits, if any, which it believes demonstrate the
absence of a genuine issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986)(internal quotations and
citations omitted). Then, “when a properly supported motion for
summary judgment [has been] made, the adverse party must set
forth specific facts showing that there is a genuine issue for
trial.” Anderson, 477 U.S. at 250 (internal citations and
quotations omitted).
III. Analysis
This Court first addresses Plaintiff’s section 1983 claim
against Nettleton.

It then addresses Plaintiff’s state law

claims.
A.

Plaintiff’s Section 1983 Claim

Plaintiff claims that Defendant’s actions in closing shut
the door, which caused him to suffer a torn rotator cuff,
constitute unlawful excessive force.

Excessive force claims may

be analyzed either under a substantive due process “shocks the
conscience standard,” or, if a seizure has occurred, under a
Fourth Amendment reasonableness standard.

Ashton v. City of

Uniontown, 459 F. App’x 185, 189 (3d Cir. 2012).

A seizure

occurs, and the Fourth Amendment reasonableness standard
applies, where “an officer restrains the freedom of a person to
walk away” by “physical force or show of authority.”

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Rivas v.

City of Passaic, 365 F.3d 181, 198 (3d Cir. 2004); Gomez v.
Feissner, 474 F. App’x 53, 57 (3d Cir. 2012).
Under the Fourth Amendment reasonableness standard, courts
assess whether the seizure was objectively unreasonable, without
respect to the officer’s actual intent or motivation, under the
circumstances. Id.

In making this inquiry, courts look to the

governmental interest at stake and the nature of the intrusion.
Curley v. Klem, 499 F.3d 199, 207 (3d Cir. 2007).

They must

evaluate the use of force “from the perspective of a reasonable
officer on the scene, rather than with the 20/20 vision of
hindsight and must embody the allowance for the fact that police
officers are often forced to make split-second judgments – in
circumstances that are often tense, uncertain, and rapidly
evolving.”

Rivas, 365 F.3d at 198 (quotation omitted).

“[A]ll

of the relevant facts and circumstances leading up to the time
that the officers allegedly used excessive force” are considered
in this analysis.

Id.

Here, Nettleton’s closing of Plaintiff’s driver side door
constituted a seizure because it restrained Plaintiff’s
movement.1

1

United States v. Brown, 448 F.3d 239, 245 (3d Cir.

Nettleton’s pulling over of Plaintiff’s car would also constitute a
seizure. United States v. Mosley, 454 F.3d 249, 258 (3d Cir.
2006)(“Because Fourth Amendment rights are personal rights, when the
police pull over a car with a driver and a non-owner passenger, two
individual seizures occur simultaneously: seizure of the driver, and
seizure of the passenger.”); United States v. Swindle, 407 F.3d 562,
566 (2d Cir. 2005)(“The temporary detention of individuals during the

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(2006)(recognizing that a “seizure occurs when there is . . . ‘a
laying on of hands or application of physical force to restrain
movement, even when it is ultimately unsuccessful.’”).
Therefore, whether Nettleton’s closing of the door is viewed as
part of his effort this Court assesses whether Nettleton’s
actions in doing so were objectively reasonable under the
circumstances.

They were.2

As a general matter, closing the

truck door was a reasonable course of action considering: (1)
the split-second time frame Nettleton had to react; (2) the need
to secure the scene of a potential homicide, a reasonable
possibility given the report of a “suspicious death” and the
corroborating discovery of a heavily decomposed body, from a
potentially disruptive presence; (3) the need for Nettleton to
protect himself from being struck by the truck door; (4) the
more general security needs of Nettleton, his fellow officers,
and others on the scene; and (5) the need to protect against
stop of an automobile by the police, even if only for a brief period
and for a limited purposes, constitutes a seizure.”)(quotations
omitted). Because Plaintiff has not challenged the reasonableness of
his being pulled over, the Court does not address that seizure. See
Bloxson v. Borough of Wilkinsburg, 110 F. App’x 279, 282-83 (analyzing
two seizures - traffic stop and subsequent use of force to effect
apprehension of plaintiff – as independent seizures and “consider[ing]
the reasonableness of both seizures separately.”).
2

Defendants argued that no seizure occurred and that the shocks the
conscience standard is applicable. Defendants’ Br. in Support of
Summary Judge at 3. While this Court disagrees, Plaintiff’s claim
would also fail under that analysis. “[O]nly the most egregious
conduct shocks the conscience” and, for the same reasons Nettleton’s
conduct was reasonable under the Fourth Amendment analysis that are
detailed herein, his conduct does not shock the conscience. Ashton,
459 F. App’x at 189.

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what could reasonably have been perceived as a risk of flight by
the Plaintiff.3

Martin v. Malhoyt, 830 F.2d 237, 262 (D.C. Cir.

1987)(Ginsburg, J.)(concluding that grabbing of plaintiff,
throwing him back into driver’s seat, and slamming door on leg
was not unreasonable seizure given concern for safety at scene
and risk of flight where plaintiff exited car after defendant
officer had asked for license and registration and returned to
police car to check them).

And there is no evidence that

Nettleton exercised more force than necessary to close the door,
much less evidence that would allow a jury to conclude that,
notwithstanding the “allowance” afforded officers making splitsecond judgments like Nettleton, the force applied was
unreasonably more than necessary.

Neither Plaintiff’s testimony

that Nettleton “slammed” the door, nor Plaintiff’s resulting
shoulder injury, addresses whether the force used by Nettleton
was greater than necessary to close the door.

Id. at 262

(concluding that “slamming” of door on plaintiff’s leg was not
excessive).

Substantial force, consistent with Plaintiff’s

testimony4, may, in fact, have been necessary to stop the door

3

While Plaintiff argues that Nettleton’s testimony that he did not feel
“threatened” by Plaintiff undermines any governmental safety interest
that would otherwise justify Nettleton’s actions, Nettleton’s personal
belief is immaterial given that an objective reasonableness standard is
applicable. Rivas, 365 F.3d at 198.

4

This Court credits Plaintiff’s description of Nettleton’s closing of
the door because, on a motion for summary judgment like here, the Court
must adopt the nonmoving party’s version of the facts where facts are

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from hitting Nettleton and push it back.

And Plaintiff has

presented no expert opinion, or other evidence, that suggests
that a particular quantum of force was needed to injure
Plaintiff’s shoulder in the manner claimed and that force was
unreasonably greater than necessary to close the door.

In both

cases, it was Plaintiff’s burden to show that the amount of
force used was sufficiently greater than necessary as to be
unreasonable, and Plaintiff failed to do so.

Texter v. Merlina,

333 F. App’x 680, 682 (3d Cir. 2009)(recognizing that it is the
plaintiff’s burden to prove claim of excessive force).
Accordingly, Plaintiff’s Section 1983 excessive force claim is
DISMISSED.
B.

Plaintiff’s State Law Claims

Having dismissed Plaintiff’s lone federal claim, and with
this Court’s subject matter jurisdiction premised on federal
question jurisdiction5, this Court must determine whether it will
exercise supplemental jurisdiction to hear Plaintiff’s state law
claims.

Kalick v. Northwest Airlines Corp., 372 F. App’x 317,

322 (3d Cir. 2010)(affirming district court’s denial of
supplemental jurisdiction over state law claims after district
court’s dismissal of federal claims on summary judgment).
Absent extraordinary circumstances, courts should decline to

5

in dispute. See Meyer v. Riegel Prods. Corp., 720 F.3d 303, 307 n.2
(3d Cir. 1983).
This matter was removed from state court based on federal question
jurisdiction and the parties do not appear to be of diverse citizenship.

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exercise supplemental jurisdiction over state law claims where
all federal claims have been dismissed.

Id.

Because there do

not appear to be any extraordinary circumstances warranting
supplemental jurisdiction here, this Court declines to exercise
supplemental jurisdiction over them.

Id.; Manetti v. Ulker, No.

09-5281, 2012 WL 2903935, at *4 (D.N.J. July 16, 2012)(reaching
same conclusion).
Accordingly, Plaintiff’s state law claims are DISMISSED,
without prejudice, for lack of subject matter jurisdiction.

Id.

III. Conclusion
For all these reasons, Defendants’ motion for summary
judgment is GRANTED.
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
Dated: November 26, 2012

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