AKSANOV v. HARRAH'S CASINO HOTEL ATLANTIC CITY et al
Filing
121
OPINION. Signed by Judge Joseph E. Irenas on 5/29/2015. (drw)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ALEXANDER AKSANOV,
HONORABLE JOSEPH E. IRENAS
Plaintiff,
CIVIL ACTION NO. 10-5883
(JEI/AMD)
v.
OPINION
HARRAH’S CASINO HOTEL ATLANTIC
CITY, et al.,
Defendants.
APPEARANCES:
TOMPKINS, MCGUIRE, WACHENFELD & BARRY, LLP
By: Grant W. McGuire, Esq.
3 Becker Farm Road, Suite 402
Roseland, New Jersey 07068-1726
Counsel for Plaintiff
LAW OFFICES OF RILEY & RILEY
By: Michael E. Riley, Esq.
The Washington House
100 High Street, Suite 302
Mount Holly, New Jersey 08060
Counsel for Defendants Logan, Palamaro, and City of
Atlantic City
IRENAS, Senior United States District Judge:
In the early morning of November 16, 2008, Plaintiff
Alexander Aksanov (“Alex” 1) sustained serious injuries, including a
The Court departs from its usual custom of referring to parties
by their last name to distinguish Alex Aksanov from his brother,
Andrew Aksanov.
1
1
several inches-long gash across his forehead.
For the purposes of
this motion only, the Court accepts as true Alex’s deposition
testimony that settling Defendants Harrah’s Casino and Hotel
security guards severely beat Alex while he was patronizing the
nightclub within the hotel. 2
It is undisputed, however, that non-settling Defendants,
Atlantic City Police Officers Logan and Palamaro, did not
participate in the beating.
The principal issue raised by the
non-settling Defendants’ 3 instant summary judgment motion is
whether the police officers violated Alex’s constitutional rights
when they failed to intervene in the beating inflicted by nonstate actor, private, security guards.
Applying the principles
set forth in DeShaney v. Winnebago County Department of Social
Services, 489 U.S. 189 (1989) and its progeny, the Court holds
that the police officers did not violate Alex’s Fourteenth
Amendment Due Process rights.
There is conflicting evidence in the record on this point. Most
notably, both Officer Logan and Officer Palamaro testified that no
one from Harrah’s security hit or otherwise used any force on Alex
(Logan Dep. p. 20-21, 39, 53; Palamaro Dep. p. 18, 25).
However, Harrah’s security footage undisputedly shows a large
bloody gash on Alex’s forehead, and Alex was admitted to the
hospital the next day with severe injuries to his head, neck,
back, shoulders, hip, knee, and chest, as well as a concussion.
(Alex Aksanov Dep. p. 175-79) As will become apparent from the
discussion of the record evidence infra, the only people who could
have inflicted the bulk of these injuries were Harrah’s security.
2
The remaining Defendants are Officers Logan and Palamaro, as
well as the City of Atlantic City.
2
3
The Court also holds that Alex’s other excessive force and
state law tort claims have no merit.
Accordingly, Defendants’
Motion for Summary Judgment will be granted.
I.
To celebrate Plaintiff Alex Aksanov’s 30th birthday, Alex, his
girlfriend at the time (apparently now his wife), his younger
brother Andrew, and some friends, reserved rooms at Harrah’s Hotel
and Casino for the night of November 15, 2008.
They went out to
dinner at a high-end restaurant, and then went to the nightclub in
Harrah’s known as “The Pool.”
It was undisputedly dark, crowded and loud at the nightclub
when the group entered around 10:30 p.m. (Alex Aksanov Dep. p. 62)
A D.J. was playing music and a reality television star was in
attendance.
Alex and his party reserved a cabana, which required
a minimum purchase of five bottles of alcohol.
(Id. at p. 55)
The group drank Grey Goose vodka, which they mixed with juice
themselves.
Alex testified that he drank “two, maybe three”
drinks during the course of the night (Id. at p. 67), but there is
no evidence in the record concerning the size of his servings.
3
Around 2:30 a.m., an “altercation” or “scuffle” occurred in
the pool area of the nightclub.
(R. Driggs Dep. p. 14) 4
The
details of the encounter differ.
According to Alex and his brother Andrew, Alex stepped
between Beatriz Driggs and Andrew after Mrs. Driggs began to hit
Andrew on his face and head.
Aksanov Dep. p. 31-33)
(Alex Aksanov Dep. p. 74-79; Andrew
Alex testified that he held his brother
back with his left arm.
(Alex Aksanov Dep. p. 78)
Andrew
testified that Alex “kind of put his arm on me and pushed me over
and like got in between.”
(Andrew Aksanov Dep. p. 36)
According to Mrs. Driggs and her husband, Alex “pushed” over
a table occupied by the Driggs, breaking the bottle of vodka and
Mrs. Driggs’ camera which were on the table. (R. Driggs Dep. p.
40-41; B. Driggs Dep. p. 57-58)
Either way, there is no dispute that Harrah’s security
immediately descended upon Alex to restrain him.
At least five
(B. Driggs Dep. p. 58), and perhaps as many as “a dozen” (Alex
Aksanov Dep. p. 96, 106), security personnel tackled Alex,
grabbing him by both arms, his legs, and around his waist.
They
“dragged” him toward a double-doored service entrance (i.e., non-
Notably, no one who was involved in, or witnessed, the incident
characterized the incident as Alex being involved in a “fight.”
Indeed, one witness specifically said it was not a fight. (R.
Driggs Dep. p. 14)
4
4
public entrance) as they “took shots on [Alex’s] torso.”
(Alex
Aksanov Dep. p. 91-92)
By all accounts, Alex was screaming.
screaming, “I’m not resisting.
(Alex Aksanov Dep. p. 101)
Alex states that he was
You’re using excessive force.”
Mrs. Driggs testified that she
observed Alex “screaming” and “fighting back” against security.
(B. Driggs Dep. p. 62)
Officer Logan, who had just arrived at the
scene, observed security “holding back” Alex while Alex yelled
“foul obscenities.”
(Logan Dep. p. 13)
Once Alex was removed through the service entrance into a
hallway, he was surrounded by approximately ten black-shirted
security guards, while Officers Logan and Palamaro-- undisputedly
in full police uniform, and on duty as police officers-- stood
back watching.
(Alex Aksanov Dep. p. 107-09)
Alex testified that
at this time, he was standing, his hands up in the air, saying
“‘whatever you’re looking for it’s not me . . . and I’m not
resisting guys.’”
(Alex Aksanov Dep. p. 110)
Officer Logan then asked Alex for his wallet and
identification, and Alex undisputedly complied.
Dep. p. 112; Logan Dep. p. 70-71)
(Alex Aksanov
Officer Logan testified that,
at this time, he saw the bleeding gash on Alex’s head.
(Logan
Dep. p. 72)
According to Alex, after he handed over his wallet, a
security guard punched him in the jaw, which led to other security
5
personnel grabbing the back of his head, kneeing him in the face,
stomping on his hands, and slamming his head into the concrete
floor, all while making anti-Semitic comments about Alex.
(Alex
Aksanov Dep. p. 113-121)
The entire time, Officers Logan and Palamaro “were there
watching.”
(Alex Aksanov Dep. p. 120)
When a security officer pushed Alex up against the wall, Alex
managed to choke out the words “stop this” to Officer Logan, but
Officer Logan said, “‘[i]t’s not my call.’”
123) 5
(Alex Aksanov Dep. p.
Officer Palamaro allegedly laughed, “look[ed] at Logan [and]
sa[id] [an anti-Semitic comment] to Logan.”
(Id. at p. 125)
Then security threw Alex to the ground and pinned him down to
place handcuffs on him.
Alex testified that he saw Officer
Palamaro give his handcuffs to Security Officer Rivera who then
placed the cuffs on Alex’s wrists.
(Alex Aksanov Dep. p. 128)
When Rivera lifted Alex up by the handcuffs, Alex “screamed”
in pain that his rotator cuffs were torn.
129)
(Alex Aksanov Dep. p.
Alex further testified:
A: . . . Rivera put me into the wall, put my torso
my face into the wall, pressed up against the wall
then Palamaro grabbed me by the cuffs from behind
started pulling, pushing down on the cuffs and with
shoulder slamming my torso into the wall.
and
and
and
his
Logan testified that he and Officer Palamaro were on duty that
night to “provide a back-up for security” and to “provid[e]
additional protection to the employees of Harrah’s in case a
situation had occurred.” (Logan Dep. p. 24-25, 12)
6
5
Q: Was [Palamaro] saying anything to you as he was doing
this?
A:
Shut-up.
Q: What were you saying when Palamaro was saying shut
up?
A:
I was in pain.
Q:
So did you say anything?
A:
Same, I tore my rotators, my rotators, please take
the cuffs off, my rotators.
Q:
What proceeded to happen next?
A: . . . Rivera . . . grab[bed] me again and then took
me to the holding cell area.
(Alex Aksanov Dep. p. 130-31)
After staying in the holding cell for a time, Alex was taken
by security to the nurse’s station where they removed his
handcuffs.
(Alex Aksanov Dep. p. 138)
After the nurse treated
and released Alex, Officer Logan issued him a ticket for
disorderly conduct.
(Id. at p. 141; Logan Dep. Ex. 1)
That
charge was ultimately resolved in Alex’s favor.
Alex was then allowed to return to his room until the
morning, at which time he checked out of the hotel and went to the
Atlantic City Police Department to file a complaint against
Harrah’s security personnel.
The Complaint Form, filed at 11:45
a.m., on November 16, 2008, asserts that “about 9” Harrah’s
“security guard[s]” beat Alex, stole his phone, and broke his
7
“$5,000 watch.”
(Riley Cert. Ex. D)
Alex made no complaint
concerning the police officers.
As soon as Alex returned to his home in Northern New Jersey
later that day, he went to the hospital to receive treatment for
his injuries.
(Alex Aksanov Dep. p. 162)
He refused to be
admitted to the hospital that day, but returned to be admitted the
following day after he began throwing up and experiencing heart
palpitations and shortness of breath.
(Id. at p. 178-79)
After
various tests and treatments, Alex eventually underwent
laparoscopic surgery for a labrum tear in his right shoulder.
(Id. at p. 181-83)
Alex asserts claims for violation of his Fourth and
Fourteenth Amendment rights pursuant to 42 U.S.C. § 1983, as well
as state law claims of assault and battery, false arrest,
malicious prosecution, abuse of process, and intentional
infliction of emotional distress.
II.
Federal Rule of Civil Procedure 56(c) provides that summary
judgment should be granted if “pleadings, depositions, answers to
interrogatories, and admissions on file, together with 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.”
See also, Anderson v. Liberty Lobby, Inc., 477
8
U.S. 242, 248 (1986).
In deciding a motion for summary judgment,
the court must construe all facts and inferences in the light most
favorable to the nonmoving party.
See Boyle v. Allegheny
Pennsylvania, 139 F.3d 386, 393 (3d Cir. 1998).
The moving party
bears the burden of establishing that no genuine issue of material
fact remains.
(1986).
See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
A fact is material only if it will affect the outcome of
a lawsuit under the applicable law, and a dispute of a material
fact is genuine if the evidence is such that a reasonable fact
finder could return a verdict for the nonmoving party.
See
Anderson, 477 U.S. at 252.
III.
The Court addresses the remaining state law tort claims 6
before turning to the constitutional claims.
A.
(1)
Officer Palamaro
While Alex’s attorney timely filed a Notice of Tort Claim
pursuant to the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 123, Officer Palamaro was not named in the Notice, and Alex never
Alex concedes that summary judgment is warranted against the
non-settling Defendants on the intention infliction of emotional
distress claim.
9
6
sought to amend his Notice.
on this basis.
Palamaro moves for summary judgment
Alex’s opposition brief ignores this issue.
The Court holds that all state law tort claims against
Palamaro are barred.
See N.J.S.A. 59:8-8.
Summary judgment will be granted as to the state law claims
against Palamaro.
(2)
Officer Logan
Alex “concedes that Officer Logan did not commit an assault
and battery of [Alex].” (Opposition Brief, p.
27)
Accordingly,
summary judgment will be granted on that claim.
As to the false arrest and malicious prosecution claims, the
issue is whether Officer Logan had probable cause to believe that
Alex committed the offense of disorderly conduct.
See Tarus v.
Borough of Pine Hill, 189 N.J. 497, 521 (2007) (“probable cause is
an absolute defense to an allegation of malicious prosecution or
false arrest”)(citing Wildoner v. Borough of Ramsey, 162 N.J. 375,
389 (2000)).
The New Jersey disorderly conduct statute provides:
a. Improper behavior. A person is guilty of a petty
disorderly persons offense, if with purpose to cause
public inconvenience, annoyance or alarm, or recklessly
creating a risk thereof he
(1) Engages in fighting or threatening, or in violent or
tumultuous behavior; or
10
(2) Creates a hazardous or physically dangerous
condition by any act which serves no legitimate purpose
of the actor.
b. Offensive language. A person is guilty of a petty
disorderly persons offense if, in a public place, and
with purpose to offend the sensibilities of a hearer or
in reckless disregard of the probability of so doing, he
addresses unreasonably loud and offensively coarse or
abusive language, given the circumstances of the person
present and the setting of the utterance, to any person
present.
“Public” means affecting or likely to affect persons in
a place to which the public or a substantial group has
access; among the places included are highways,
transport
facilities,
schools,
prisons,
apartment
houses, places of business or amusement, or any
neighborhood.
N.J.S.A. 2C-33:2.
The probable cause inquiry asks “whether at that moment the
facts and circumstances within [law enforcement’s] knowledge and
of which they had reasonably trustworthy information were
sufficient to warrant a prudent man in believing that the
[plaintiff] had committed or was committing an offense.”
Beck v.
Ohio, 379 U.S. 89, 91 (1964).
Thus, the question becomes, viewing the record facts in the
light most favorable to Alex: Did Officer Logan have knowledge of,
or reasonably trustworthy information of, facts that would lead a
prudent person to believe that Alex recklessly created a risk of
public alarm by engaging in violent or tumultuous behavior?
reasonable factfinder could only conclude yes.
11
A
According to Alex’s own testimony, he intentionally inserted
himself between Andrew and Mrs. Driggs, and was physically
restraining Andrew.
This took place very late at night, in a
loud, dark and crowded nightclub.
At the time, Officer Logan had
no way to know the relationship between Alex and Andrew, nor would
he have reason to know that Alex was attempting to diffuse the
situation.
Moreover, Officer Logan observed several Harrah’s security
guards removing Alex from the public area of the nightclub while
Alex was admittedly screaming.
Dep. p. 101)
(Logan Dep. p. 13; Alex Aksanov
Although Alex now contends that security was not
justified in removing him, nothing Officer Logan saw or knew at
the time of the incident could have led him to believe anything
other than Alex had done something to warrant his removal from the
nightclub.
No reasonable factfinder could conclude that Officer Logan
lacked probable cause to believe that Alex had committed a
disorderly persons offense.
Accordingly, Alex’s false arrest and
malicious prosecution claims fail as a matter of law.
Additionally, as to the false arrest claim, no reasonable
factfinder could conclude on this record that Officer Logan
detained (i.e., “arrested”) Alex.
First, the Court notes that false arrest is an intentional
tort, whereas Alex has been quite clear that his claims against
12
Officer Logan are grounded in Logan’s failure to act, rather than
any affirmative action.
More to the point, a reasonable factfinder could only
conclude that it was Harrah’s security, not Officer Logan, who
physically restrained Alex and placed him in a holding cell within
the hotel / casino.
Lastly, the record evidence does not support a claim for
abuse of process.
The New Jersey Supreme Court has explained,
[a]n action for malicious abuse of process is
distinguished from an action for malicious use of
process, in that the action for abuse of process lies
for the improper, unwarranted, and perverted use of
process after it has been issued while that for the
malicious use of it lies for causing process to issue
maliciously and without reasonable or probable cause. .
. . Thus it is said in substance, that the distinction
between malicious use and malicious abuse of process is
that the malicious use is the employment of process for
its ostensible purpose, although without reasonable or
probable cause, whereas the malicious abuse is the
employment of a process in a manner not contemplated by
law.
Earl v. Winne, 14 N.J. 119, 128 (1953).
Alex argues that Officer Logan did have an ulterior motive
for issuing a disorderly persons ticket to Alex.
According to
Alex’s brief, “Officer Logan, by complying with Harrah’s request
for an issuance of an unwarranted summons against Plaintiff,
guaranteed further special employment” for Atlantic City Police
Officers at Harrah’s.
There is insufficient record evidence to
support such an inference.
13
Summary judgment will be granted to Logan as to all state law
claims against him.
(3)
City of Atlantic City
Absent primary liability of Officers Logan and Palamaro,
there can be no vicarious liability of Atlantic City.
Accordingly, the Court will grant Defendants’ summary judgment
motion as to the state law claims against Atlantic City.
B.
(1)
Fourteenth Amendment Due Process claim against the officers
in their individual capacities
Alex argues that Officers Logan and Palamaro violated his
constitutional rights when they stood idle while Harrah’s security
severely beat him.
The Court holds that no constitutional
violation occurred, and alternatively, the Officers are entitled
to qualified immunity.
Before turning to the legal analysis, however, some initial
explanation is in order.
In no way should this Court’s holding be construed as
condoning the Officers’ inaction.
As the Sixth Circuit has
observed with regard to these types of failure to intervene cases,
[w]hen a claimant attempts to hold public officials
responsible for private acts of violence under the
14
Fourteenth Amendment, as this § 1983 action does, the
depravity of the fact pattern often is enough to make
‘a devil[] sick of sin.’ Wilfred Owen, Dulce Et Decorum
Est (1918). . . . And when a claimant argues that
government
officials
failed
to
prevent
private
individuals from causing another injury, as this § 1983
action does, DeShaney v. Winnebago County Department of
Social Services, 489 U.S. 189 (1989), and its progeny
rarely permit the claim to go forward.
Jones v. Reynolds, 438 F.3d 685, 688 (6th Cir. 2006).
Reduced to its core, this Court’s holding is only that “the
redress [Plaintiff] seeks must come from a source other than the
United States Constitution.”
Morrow v. Balaski, 719 F.3d 160, 176
(3d Cir. 2013) (en banc), cert. denied by 2013 U.S. LEXIS 9099
(2013); cf. Brown v. Pa. Dep't of Health Emergency Med. Servs.
Training Inst., 318 F.3d 473, 478 (3d Cir. 2003) (“Although state
tort law might provide a remedy for a state’s negligent rescue
attempt, it neither logically nor legally follows that federal
constitutional law must do the same.”).
This Court’s decision must be considered not only in view of
the claims Alex asserts, but also the claims he has not asserted.
Most notably Alex does not assert-- nor does the record
evidence support-- a claim that Officers Logan and Palamaro
conspired with Harrah’s security to effect Alex’s injuries.
On a
different record, if a reasonable factfinder could conclude that
15
state actors conspired with private actors, a constitutional claim
might lie. 7
Dwares v. The City of New York, 985 F.2d 94, 98 (2d Cir.
1993), provides a contrasting example.
In that case, the Court of
Appeals reversed the District Court’s dismissal of a complaint
where the plaintiff alleged that the “defendants had conspired to
deprive him of due process.”
Id. at 97.
Specifically, the complaint alleged that prior to the
incident that caused plaintiff’s injuries, “the [police] officers
conspired with the [private actors] to permit the latter to beat
up [plaintiff] with relative impunity.”
Id. at 99.
The Court
explained, “a prearranged official sanction of privately inflicted
injury would surely have violated the victim’s rights under the
Due Process Clause.”
Id.
But here, nothing in the record supports a conclusion that
Officers Logan and Palamaro had any sort of prearranged agreement
or understanding with Harrah’s security regarding what would
happen in the event that security physically restrained a patron.
In this case the separation between private action and state
action is relatively clear.
While the state actors and the
Neither has Alex asserted negligence claims; nor, to the Court’s
knowledge, has he pursued any internal affairs complaint against
the officers.
Also, despite Alex’s testimony that anti-Semitic comments
were made by Harrah’s security and Officer Palamaro, Alex has not
asserted any discrimination claims.
16
7
private actors were present at the scene at the same time, that
alone does not suffice.
The Third Circuit most recently reiterated the general rule
in Morrow:
[t]he Supreme Court has long established that ‘[a]s a
general matter, . . . a State’s failure to protect an
individual against private violence simply does not
constitute a violation of the Due Process Clause.’ The
Due Process Clause forbids the state itself from
depriving ‘individuals of life, liberty, or property
without due process of law, but its language cannot
fairly be extended to impose an affirmative obligation
on the State to ensure that those interests do not come
to harm through other means.’
719 F.3d at 166.
There are two exceptions to the general rule-- the special
relationship and state-created danger doctrines-- but neither
applies here.
The special relationship exception “applies when a special
relationship has been established because ‘the State takes a
person into its custody and holds him there against his will.’”
Morrow, 719 F.3d at 167 (quoting DeShaney).
When the State
affirmatively acts to “‘restrain[] the individual’s freedom to act
on his own behalf-- through incarceration, institutionalization,
or other similar restraint of personal liberty,’” the State may be
liable for failing to protect that individual.
(quoting DeShaney; emphasis in Morrow).
17
Id. at 168
A reasonable factfinder could surely conclude on this record
that Alex’s personal liberty was restrained.
But what proves
fatal to Alex’s claim is that a reasonable factfinder could not
conclude that the restraint was imposed by the State, i.e.,
Officers Logan and Palamaro.
Rather, all the record evidence
demonstrates that Alex was, at all relevant times, in the custody
of Harrah’s security.
Similarly, the state-created danger exception does not apply
because the record does not support a conclusion that Officers
Logan or Palamaro “affirmatively used [their] authority in a way
that created a danger to [Alex] or that rendered [Alex] more
vulnerable to danger than had the [Officers] not acted at all.”
Morrow, 719 F.3d at 177.
Quite simply, the Officers did nothing.
They had no
involvement in the initial scuffle in the nightclub.
involvement in removing Alex from the nightclub.
take Alex into custody.
security beat Alex.
They had no
They did not
They stood back and watched as Harrah’s
The fact the beating happened before their
very eyes is legally insufficient to trigger a duty to act.
See
Bright v. Westmoreland County, 443 F.3d 276, 284 (3d Cir. 2006)
(holding that probation officer’s failure to immediately take
steps to revoke probation when the officer “personally witnessed”
a violation did not amount to a state-created danger); see
generally Brown, 318 F.3d at 479 (“Indefensible passivity, and
18
nonfeasance do not rise to the level of a constitutional
violation.”) (internal citation and quotation omitted).
While the Officers’ inaction is seriously disturbing, a
reasonable factfinder could not conclude that the Officers had any
influence over how the events of the night unfolded.
Nothing in
the record suggests that if the Officers had not been there, the
outcome for Alex would have been materially less injurious.
Indeed, in the Officers’ absence, perhaps the outcome would have
been worse.
Alternatively, even if a constitutional violation had
occurred (which the Court does not hold), the law in this regard
was not clearly established in 2008 when the incident occurred.
In reversing the Third Circuit’s denial of qualified immunity
to police officers in Carroll v. Carman, the Supreme Court stated,
[a] government official sued under § 1983 is entitled
to qualified immunity unless the official violated a
statutory or constitutional right that was clearly
established at the time of the challenged conduct. A
right is clearly established only if its contours are
sufficiently clear that a reasonable official would
understand that what he is doing violates that right.
In other words, existing precedent must have placed the
statutory or constitutional question beyond debate.
This doctrine gives government officials breathing room
to make reasonable but mistaken judgments, and protects
all but the plainly incompetent or those who knowingly
violate the law.
Carroll v. Carman, 135 S.Ct. 348, 350 (2014) (internal citations
and quotations omitted).
19
Here, existing Third Circuit precedent did not establish
“beyond debate,” id. at 352, the Officers’ duty to intervene.
The
only case that might arguably establish such a duty is Horton v.
Flenory, 889 F.2d 454 (3d Cir. 1989), but that case is
distinguishable from this case, and therefore creates debatable
grounds for finding a constitutional violation.
Horton also involved a physical assault which took place in
“a private club at which alcoholic beverages were sold.”
at 455.
889 F.2d
The owner of the club, who was a 18-year police force
veteran, “severely beat[]” his employee because he suspected the
employee of burglarizing the club.
Id. at 456.
Police then
arrived at the club to investigate the burglary. Id.
After
interrogating the employee, the police left, the employee was
beaten again, and eventually died from his injuries.
The Third Circuit affirmed the District Court’s denial of the
defendants’ motion for judgment notwithstanding the verdict based
on DeShaney, which was recently decided at the time.
The Court of
Appeals explained that the state “could be liable because the jury
could have found that the township had ‘delegated . . . its
traditional police functions’ to the owner of the club” and that
“[t]he responding officer ‘used his official status to confirm
that the owner was free to continue the custodial interrogation.”
Morrow, 719 F.3d at 175 (quoting Horton).
Moreover, the township
had a written policy of “deferring to private owners with respect
20
to the investigation of crimes in private clubs.”
Horton, 889
F.2d at 456 and 456 n.1.
The facts of Horton are not sufficiently analogous to this
case to support a conclusion that the law was clearly established
with respect to Officers Logan and Palamaro’s asserted
constitutional duty to Alex.
First, Horton involved a private club 8, whereas Harrah’s
casino and hotel is open to the public.
Second, the circumstances surrounding the beating in Horton
and Alex’s beating differ in at least one significant way.
The
injuries the employee suffered in Horton took place within the
context of a “custodial interrogation,” 889 F.3d at 458,
concerning a burglary that had already happened, whereas Alex’s
injuries occurred during an attempt to restrain or detain Alex
immediately upon a confrontation occurring in a crowded nightclub.
In this case, relatively greater exigency existed as compared to
Horton.
Lastly-- and in this Court’s view, most importantly-- the
record here contains no written police department policy from
which a reasonable factfinder could conclude that the City of
Atlantic City “ceded its police authority,” Morrow, 719 F.3d at
The written policy in Horton explicitly stated that private
clubs “are not a public place, and arrests are invalid.” 889 F.2d
at 456 n.1.
21
8
175, to Harrah’s security.
Indeed, the undisputed fact that
Officer Logan, as opposed to Harrah’s security, completed the
disorderly persons summons and presented it to Alex weighs against
such a finding in this case.
Horton could not provide Officers Logan and Palamaro with the
clear guidance required for a conclusion that Alex’s asserted
right to protection under the Due Process Clause was clearly
established.
Accordingly, the Court holds that the Officers are
entitled to qualified immunity.
Summary judgment will be granted to the Officers as to the
Due Process claim.
(2)
Fourth Amendment excessive force claim against Officer
Palamaro in his individual capacity
Although quoted above, it is worth repeating the only piece
of record evidence regarding Officer Palamaro’s use of force on
Alex.
Alex testified at his deposition:
A: . . . Rivera put me into the wall, put my torso
my face into the wall, pressed up against the wall
then Palamaro grabbed me by the cuffs from behind
started pulling, pushing down on the cuffs and with
shoulder slamming my torso into the wall.
and
and
and
his
Q: Was [Palamaro] saying anything to you as he was doing
this?
A:
Shut-up.
Q: What were you saying when Palamaro was saying shut
up?
22
A:
I was in pain.
Q:
So did you say anything?
A:
Same, I tore my rotators, my rotators, please take
the cuffs off, my rotators.
Q:
What proceeded to happen next?
A: . . . Rivera . . . grab[bed] me again and then took
me to the holding cell area.
(Alex Aksanov Dep. p. 130-31)(emphasis added) 9
According to Alex’s own testimony, Officer Palamaro did not
place the handcuffs on Alex, nor was Palamaro the person who
initially pushed Alex up against the wall.
Rather, after Alex was
already handcuffed and pressed up against the wall, Palamaro
briefly grabbed Alex by the handcuffs and kept him restrained
where he already was.
A reasonable factfinder could not conclude
on this testimony that Officer Palamaro used more force than
reasonably necessary under the circumstances.
See Graham v.
Connor, 490 U.S. 386, 397 (1989) (“the ‘reasonableness’ inquiry in
an excessive force case is an objective one: the question is
whether the officers’ actions are ‘objectively reasonable’ in
light of the facts and circumstances confronting them, without
regard to their underlying intent or motivation.”).
Summary judgment will be granted to Palamaro on the Fourth
Amendment excessive force claim.
Palamaro testified that he did not touch Alex in any way.
(Palamaro Dep. p. 18-19)
23
9
(3)
Atlantic City’s Monell liability
Alex asserts two Monell claims: that (1) Atlantic City failed
to adequately train its officers for special duty assignments like
the assignment of Officers Logan and Palamaro to Harrah’s hotel
and casino; and (2) “Officer Logan’s failure to properly
investigate and correctly issue a disorderly conduct summons
evidences a custom” for which Atlantic City may be liable.
Both claims fail because the Court holds that there was no
constitutional violation.
See Mulholland v. Gov't Cnty. of Berks,
Pa., 706 F.3d 227, 238 n.15 (3d Cir. 2013) (“It is well-settled
that, if there is no violation in the first place, there can be no
derivative municipal claim.”); Brown, 318 F.3d at 482 (“The
failure of the City and its EMTs to rescue Shacquiel Douglas from
privately-caused harm was not an infringement of Appellants’
constitutional rights.
alleged.
There has been no constitutional harm
Hence, there is no municipal liability under § 1983.”).
Additionally, a custom exists “when, though not authorized by
law, ‘such practices of state officials [are] so permanent and
well settled’ that they operate as law.” Jiminez v. All Am.
Rathskeller, Inc., 503 F.3d 247, 250 (3d Cir. 2007) (quoting
Monell, 436 U.S. at 690).
Alex’s evidence concerning a single
incident of issuing a summons cannot establish a custom as a
24
matter of law.
No reasonable factfinder could conclude that the
challenged practice was “permanent” or “well-settled.”
Summary judgment will be granted to Atlantic City as to all
constitutional claims against it.
IV.
For the reasons set forth above, Defendants’ Motion for
Summary Judgment will be granted in its entirety.
An appropriate Order accompanies this Opinion.
Dated:
May 29, 2015
Joseph E. Irenas
Joseph E. Irenas, S.U.S.D.J.
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