BOU v. STATE OF NEW JERSEY et al

Filing 34

OPINION. Signed by Judge Joseph E. Irenas on 8/26/2013. (drw)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

GREGORY BOU,

:
HONORABLE JOSEPH E. IRENAS
: Civ. Action No. 11-6356(JEI/AMD)
Plaintiff,
:
:
OPINION
v.
:
:
:
STATE OF NEW JERSEY, et. al., :
:
Defendants.
:
:

APPEARANCES:
PATRICK GECKLE, LLC
By: Michael Cortese, Esq.
1500 J.F.K. Blvd., Suite 1850
Philadelphia, PA 19102
Counsel for Plaintiff
STATE OF NEW JERSEY, OFFICE OF THE ATTORNEY GENERAL
By: Roshan Deven Shah, Deputy Attorney General
RJ Hughes Justice Complex
25 Market Street
P.O. Box 112
Trenton, NJ 08625
Counsel for Defendants
IRENAS, Senior District Judge:
Plaintiff Gregory Bou initiated this action to recover for
injuries sustained when two New Jersey State Police Troopers
attempted to take him to the hospital following a 911 call from
Plaintiff’s school nurse.

Plaintiff asserts statutory claims

under 42 U.S.C. § 1983 (“§ 1983”) and the New Jersey Civil
Rights Act, N.J.S.A. 10:6-2, as well as common law claims for

1

assault, battery and intentional infliction of emotional
distress. 1

Pending before the Court is Defendants Michael

DePinto and Charles Hurley’s Motion for Summary Judgment.

For

the reasons stated herein, Defendants’ motion will be granted in
part and denied in part.

I.
Plaintiff Gregory Bou is a student at the Sequoia
Alternative Program (“Sequoia”) (Def.’s S.O.M.F. ¶ 1; Pl.’s
Resp. to Def.’s S.O.M.F. ¶¶ 1-4.) 2

He suffers from bipolar

disorder and schizoaffective disorder. 3

(Pl.’s Br. in Opp., Ex.

C 16:11-17:18.)

1

This Court exercises subject matter jurisdiction pursuant
to 28 U.S.C. § 1331 and 28 U.S.C. § 1367.
2

References to “Def.’s S.O.M.F.” are to Defendants’
Statement of Material Facts submitted in support of their Motion
for Summary Judgment.
References to “Pl.’s Resp. to Def.’s S.O.M.F.” are to
Plaintiff’s Response to Defendants’ Statement of Material Facts,
which accompanied Plaintiff’s Brief in Opposition to Defendants’
Motion for Summary Judgment.
3

“Schizoaffective disorder” is described as a condition in
which a person experiences a combination of symptoms of
schizophrenia – such as hallucinations or delusions – and of
mood disorder – such as mania or depression. Schizoaffective
Disorder Definition, mayoclinic.com,
http://www.mayoclinic.com/health/schizoaffectivedisorder/DS00866 (last visited Jul. 23, 2013).
2

On November 18, 2009, 4 New Jersey State Police Troopers
Michael DePinto and Charles Hurley responded to a 911 call from
Plaintiff’s school nurse to provide security for a medical
assist at Sequoia.
Def.’s S.O.M.F ¶ 1.)

(Def.’s S.O.M.F. ¶¶ 4-6; Pl.’s Resp. to
Defendants assert that dispatch indicated

the subject, who unbeknownst to Defendants at the time was
Plaintiff Gregory Bou, had possibly over-medicated himself and
was irate or belligerent.

(Def.’s S.O.M.F. ¶ 5).

Earlier in the day, Plaintiff accepted an orange, octagonal
pill, later identified as suboxone, from a classmate to help him
relax.

(Pl.’s Brief in Opp., Ex. C 24:20-24, 29:2-12.)

Shortly

thereafter, Plaintiff claims he began to feel anxious, which
necessitated a visit to school nurse Therese Land.
30:8-22, 31:6-13.)

(Id. at

Plaintiff did not tell Nurse Land that he

had taken a classmate’s suboxone, but instead that he was
suffering from anxiety as a result of taking too much of his own

4

The Court accepts that the incident at issue took place on
November 18, 2009 despite the fact that the Defendant’s S.O.M.F.
states the date as November 21, 2009. Prior proceedings in this
case, surveillance video, and Bou’s deposition testimony all
make clear that the correct date is November 18, 2009. See Bou
v. New Jersey, 2012 WL 1600444, at *1 (D.N.J. 2012); (Pl.’s Br.
in Opp., Ex. C 15:6-12.)

3

medication.

(Pl.’s Supplemental S.O.M.F. ¶ 2; 5 Def.’s Resp. to

Pl.’s Counter-S.O.M.F. ¶ 2.) 6
After meeting with Plaintiff, Nurse Land called 911.
(Pl.’s Brief in Opp., Ex. F 31:17-19.)

Troopers DePinto and

Hurley reported to Sequoia in response to the 911 call.
S.O.M.F. ¶ 7; Pl.’s Resp. to Def.’s S.O.M.F. ¶¶ 6-12.)
DePinto was the first to arrive at the scene. 7

(Def.’s
Trooper

(Def.’s S.O.M.F.

¶¶ 11-12; Pl.’s Resp. to Def.’s S.O.M.F. ¶ 6-12.)

Trooper

DePinto first conversed with Nurse Land, who DePinto testified
in his deposition told him that Plaintiff was acting disorderly
and disruptive.

(Pl.’s Br. in Opp., Ex. E 21:20-22:7-10.)

After conversing with Nurse Land, Trooper DePinto stepped into

5

References to “Pl.’s Supplemental S.O.M.F.” are to
Plaintiff’s Supplemental Statement of Material Facts which
accompanied Plaintiff’s Brief in Opposition to Defendant’s
Motion for Summary Judgment.
6

References to “Def.’s Resp. to Pl.’s Counter-S.O.M.F.” are
to Defendants’ response to Plaintiff’s Supplemental Statement of
Material Facts which accompanied Defendants’ Brief in Reply to
Plaintiff’s Opposition to the Motion for Summary Judgment.
7

Both Trooper Hurley and Trooper DePinto understood Sequoia
to be a school for children with behavioral problems. (Def.’s
S.O.M.F. ¶¶ 8-10; Pl’s Response to Def.’s S.O.M.F. ¶ 6.) More
specifically, Trooper DePinto believed Sequoia to be an
alternative school for students who had drug problems or were
frequently disciplined in their regular assigned school
districts. (Def.’s S.O.M.F. ¶ 8; Pl’s Resp. to Def’s S.O.M.F. ¶
6.) Similarly, Trooper Hurley believed Sequoia was a “last
chance school” for kids that have been “kicked out of every
other school.” (Def.’s S.O.M.F. ¶ 9; Pl.’s Resp. to Def.’s
S.O.M.F. ¶ 6.)
4

the hallway to speak with Plaintiff, who had been notified that
he was going to be transported to the hospital and was scared.
(Def.’s S.O.M.F. ¶ 16, 18; Pl.’s Supplemental S.O.M.F. ¶ 5;
Def.’s Resp. to Pl.’s Counter-S.O.M.F. ¶ 5.)
Next to arrive was Trooper Hurley, who met with the school
principal upon arrival.
Def.’s S.O.M.F. ¶ 15-19.)

(Def.’s S.O.M.F. ¶ 19; Pl.’s Resp. to
In his deposition, Trooper Hurley

testified that the principal informed him that Plaintiff had
possibly overmedicated and was “either not happy or irate.”
(Def.’s S.O.M.F. ¶¶ 19-20; Pl.’s Resp. to Def.’s S.O.M.F. ¶¶ 1920.)

However, neither the principal nor Nurse Land told

Troopers DePinto and Hurley that Plaintiff was dangerous.
(Pl.’s Supplemental S.O.M.F. ¶ 4; Def.’s Resp. to Pl.’s CounterS.O.M.F. ¶ 4.)
Trooper Hurley testified that on his way to the nurse’s
office, he heard Plaintiff yelling, “I’m not going to the
fucking hospital. You’re not fucking taking me.
I want to go home.” (Def.’s S.O.M.F. ¶ 21.)

I’m not going.

At this point,

Plaintiff was seated in a desk facing the nurse’s office.
(Def.’s S.O.M.F. ¶ 17; Pl.’s Resp. to Def.’s S.O.M.F. ¶¶ 15-19.)
Once he arrived at Nurse Land’s office, Trooper Hurley
positioned himself to Plaintiff’s left, while Trooper DePinto
stood in front of the desk in which Plaintiff was seated.
(Def.’s S.O.M.F. ¶¶ 22-23; Pl.’s Resp. to Def.’s S.O.M.F. ¶¶ 225

23.)

Trooper Hurley testified that while Plaintiff was seated

in the desk, the two troopers allowed Plaintiff to “vent out and
yell.”

(Def.’s S.O.M.F. ¶ 24.)

Plaintiff, however, maintains that he was not acting
disorderly and disruptive.

Instead, he claims that during the

10 to 20 minutes he was seated outside of the nurse’s office, he
was listening to music and talking to the school security guard,
a substitute teacher at the school, and his cousin Tony Paz,
also a student at Sequoia. (Pl.’s Supplemental S.O.M.F. ¶ 3;
Pl.’s Br. in Opp., Ex. C 34:10-35:1-10; 39:18-40:2.)
Both parties agree that Paz, who was now down the hall,
aggravated the situation by yelling, “[w]hat are you doing with
my fucking cousin?
him go?”

What are you doing?

Why don’t you just let

(Def.’s S.O.M.F. ¶ 26; Pl.’s Resp. to Def.’s S.O.M.F.

¶¶ 26-37.)

Consequently, Paz was removed from the scene.

(Def.’s SOMF ¶ 27; Pl.’s Resp. to Def.’s S.O.M.F. ¶¶ 26-37.)
Plaintiff then asked the troopers if he could call his
mother.

(Def.’s S.O.M.F. ¶ 28; Pl.’s Resp. to Def.’s S.O.M.F.

¶¶ 26-37.)

After being given permission, he used his cell phone

to see if his mother could drive him “wherever [h]e had to go.”
(Def.’s S.O.M.F. ¶ 29; Pl’s Resp. to Def.’s S.O.M.F. ¶¶ 26-37.)
Plaintiff’s mother told him this would not be possible. 8 (Def.’s

8

Sequioa requires that students being transported to the
hospital must travel in an ambulance. (Def.’s Mot. for Summ. J.,
6

S.O.M.F. ¶ 30; Pl.’s Resp. to Def.’s S.O.M.F. ¶¶ 26-37.)
Plaintiff testified that during the phone conversation his
mother got a little angry, causing him to get a little angry
back.

(Def.’s S.O.M.F. ¶¶ 31-32; Pl.’s Resp. to Def.’s S.O.M.F.

¶¶ 26-37.)

Trooper Hurley asserts that none of Plaintiff’s

anger during the call was directed at either trooper. (Pl.’s
Supplemental S.O.M.F. ¶ 8; Def.’s Resp. to Pl.’s CounterS.O.M.F. ¶ 8.)
After hearing a door open in a hallway on his left, Trooper
Hurley’s attention was diverted away from Plaintiff.

(Def.’s

S.O.M.F. ¶¶ 34-37; Pl.’s Resp. to Def.’s S.O.M.F. ¶¶ 26-37.)

As

Trooper Hurley focused on the hallway, Plaintiff rose out of his
chair, cocked his arm back, and threw his cell phone to the
ground.

(Def.’s S.O.M.F. ¶¶ 37, 41; Pl.’s Resp. to Def.’s

S.O.M.F. ¶¶ 26-37, 41-42.)
Trooper Hurley testified that when Plaintiff stood up to
throw his cellphone, Hurley thought Plaintiff was attempting to
throw an object at him. (Def.’s S.O.M.F. ¶¶ 38-39.)

Trooper

Hurley further testified that he did not know at the time that
the object in Plaintiff’s hand was a cell phone. (Def.’s
S.O.M.F. ¶ 39.)

Thus, Trooper Hurley testified that he felt

Ex. D 32:9-33:3.) Therefore, allowing Plaintiff travel to the
hospital with his mother is against school policy. (Id.)
Plaintiff never mentions being informed of this policy in his
deposition.
7

Plaintiff threatened his safety. (Id. at ¶ 43.)

Additionally,

Trooper DePinto asserts that Plaintiff had not been searched
and, thus, could have grabbed any item from his pocket,
including a knife. (Def.’s S.O.M.F. ¶ 40.)
Conversely, Plaintiff insists that his arms and hands were
in plain view prior to the throwing of his phone, and that
Trooper DePinto was watching Plaintiff the entire time Plaintiff
was on the phone.

(Pl.’s Resp. to Def.’s S.O.M.F. ¶ 38.)

Immediately after Plaintiff threw his cell phone to the
ground, Troopers Hurley and DePinto grabbed Plaintiff in an
attempt to restrain him.

(Def.’s S.O.M.F. at ¶¶ 44-45.)

The

troopers argue that they were trying to restrain Plaintiff, and
place him back in his chair.

(Id. at ¶¶ 44-46.)

In contrast,

Plaintiff believes the defendants were trying to remove him from
his chair.

(Pl.’s Resp. to Def.’s S.O.M.F. ¶ 46.)

The school

security guard assisted in restraining the Plaintiff.

(Def.’s

S.O.M.F. ¶ 49; Pl.’s Resp. to Def.’s S.O.M.F. ¶ 49.)
Plaintiff testified that after he was removed from his
chair, Troopers DePinto and Hurley placed him in a chokehold and
threw him face first into the ground.
50:4-22.)

(Pl.’s Br. in Opp. Ex. C

Troopers DePinto and Hurley, however, both testified

that they did not intend to throw Bou to the ground, but instead
accidentally fell to the ground while in the process of
escorting Plaintiff outside of the school.
8

In her deposition, Nurse Land testified that Plaintiff was
“very angry” and resisting the troopers while they attempted to
calm him down.

(Def.’s Br. in Supp. Ex. F 47:15-23.)

However,

according to Plaintiff, he did not struggle with the troopers,
and once he was on the ground he was screaming and afraid.
(Pl.’s Resp. to Def.’s S.O.M.F. ¶ 48.)

Additionally, Trooper

DePinto testified that although Plaintiff resisted, he was not
“kick[ing] or punch[ing] or anything like that.” (Pl.’s Br. in
Opp., Ex. E 34:9-15.)

Plaintiff was ultimately handcuffed and

placed in the back of a police car until the ambulance arrived.
(Def.’s S.O.M.F. ¶¶ 57-59; Pl.’s Resp. to Def.’s S.O.M.F. ¶¶ 5659.)
As a result of hitting the ground, Plaintiff suffered
“choke marks on his neck, swelling, and a black eye.” (Def.’s
S.O.M.F. ¶¶ 60-61; Pl.’s Resp. to Def.’s S.O.M.F. ¶¶ 60-61.)
Plaintiff has not supplied an expert report regarding the
permanency of any mental or physical injuries. (Def.’s S.O.M.F.
¶ 62; Pl.’s Resp. to Def.’s S.O.M.F. ¶ 62.)
Plaintiff filed his initial Complaint on October 31, 2011
naming Trooper DePinto, Trooper Hurley, the New Jersey State
Police, and the State of New Jersey as defendants.
1.)

(Dkt. No.

On February 29, 2012, Defendants filed a Motion to Dismiss

the Complaint.

(Dkt. No. 6.)

On March 12, 2012, Plaintiff

amended his Complaint, dropping claims against the New Jersey
9

State Police under § 1983 and the New Jersey Civil Rights Act,
N.J.S.A. 10:6-2.

(Dkt. No. 8.)

Thereafter, all defendants

filed a second motion to dismiss, seeking a dismissal of Count
II of the Amended Complaint.

(Dkt. No. 11.)

Pursuant to an

Order and Opinion dated May 7, 2012, this Court granted
Defendant’s Motion to Dismiss Count Two of the Amended
Complaint, dismissing claims asserted against the New Jersey
State Police and the individual troopers under Title II of the
Americans with Disabilities Act and Section 504 of the
Rehabilitation Act of 1973.
Remaining in this action are claims against Troopers
DePinto and Hurley in their individual capacities for use of
excessive force against Plaintiff in violation § 1983 and the
New Jersey Civil Rights Act, as well as common law claims for
battery, assault, and intentional infliction of emotional
distress. Pending before the Court is Troopers DePinto and
Hurley’s Motion for Summary Judgment.

II.
A.

Summary Judgment Standard
Summary judgment is proper if “the movant shows that there

is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.”
56(a).

Fed. R. Civ. P.

In deciding a motion for summary judgment, the Court
10

must construe the facts and inferences in a light most favorable
to the non-moving party.

Pollock v. Am. Tel. & Tel. Long Lines,

794 F.2d 860, 864 (3d Cir. 1986).

The role of the Court is not

“to weigh the evidence and determine the truth of the matter,
but to determine whether there is a genuine issue for trial.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
The moving party bears the burden of establishing that no
genuine issue of material fact remains.

“‘With respect to an

issue on which the non-moving party bears the burden of proof,
the burden on the moving party may be discharged by ‘showing’–
that is, pointing out to the district court – that there is an
absence of evidence to support the nonmoving party’s case.’”
Conoshenti v. Public Serv. Elec. & Gas, 364 F.3d 135, 145-46 (3d
Cir. 2004) (quoting Celotex).

Summary judgment should be

granted “against a party who fails to make a showing sufficient
to establish the existence of an element essential to that
party’s case, and on which that party will bear the burden of
proof at trial.

In such a situation, there can be ‘no genuine

issue as to any material fact,’ since a complete failure of
proof concerning an essential element of the nonmoving party’s
case necessarily renders all other facts immaterial.”

Celotex,

477 U.S. at 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
11

material fact is genuine if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.
See Anderson, 477 U.S. at 252.

B.

Use of Video Evidence
The existence in the record of a videotape capturing the

event at issue presents an “added wrinkle” to the summary
judgment analysis.
(2007).

See Scott v. Harris, 550 U.S. 372, 378

The United States Supreme Court has held that when

there are video recordings of the event at issue which
“blatantly contradict” the non-movant’s version of the facts so
that “no reasonable jury could believe [the non-movant],” the
court need not adopt the non-movant’s version of the facts.
at 380.

Id.

Instead, under such circumstances, a court should view

“the facts in the light depicted by the videotape.”

Id. at 380-

81.
In the instant case, Sequoia’s security camera captured
Troopers DePinto and Hurley’s attempt to restrain Plaintiff.
After having viewed this video footage, the Court cannot
conclude that it so clearly contradicts Plaintiff’s story that
no reasonable jury could believe him.
parties 9 is thirty seconds long.

9

The video provided by the

Additionally, it begins just

The surveillance video was submitted to the Court as Exhibit
G to Defendants’ Brief in Support of Motion for Summary
12

two seconds before Plaintiff stands up to throw his cell phone,
meaning that the Court is unable to determine whether or not
Plaintiff was sitting calmly and quietly prior to throwing his
phone, or whether he was acting irate by yelling and using foul
language. 10

After Plaintiff throws his phone to the ground, the

video shows Trooper Hurley immediately grab Plaintiff, and
Trooper DePinto assist Trooper Hurley.

A scuffle ensues near

the desk where Plaintiff had been sitting; however, a column and
the troopers’ own bodies obstruct the camera so that the Court
cannot determine whether the troopers are attempting to sit
Plaintiff back down in his chair, or move Plaintiff away from
his chair.
Shortly thereafter, the video shows the school security
guard walk over and grab Plaintiff by the left arm.

The

troopers and the school security guard then walk Plaintiff
around the column to a hallway on the left of where Plaintiff
was originally seated.
ground.

At this point everyone drops to the

However, based on the video, the Court cannot determine

whether everyone fell to the ground, or the troopers threw
Plaintiff to the ground.

Further preventing the Court from

Judgment, and as Exhibit A to Plaintiff’s Opposition to
Defendants’ Motion for Summary Judgment.
10

In addition, the video lacks sound. Therefore, the Court
would be unable to hear the Plaintiff yelling or using the
alleged foul language even if the video clip did begin earlier.
13

finding that the video blatantly contradicts Plaintiff’s
testimony that the troopers threw him to the ground is the fact
that in the process of dropping to the ground, the troopers, the
security guard and the Plaintiff all exit the field of view of
the security camera.
Accordingly, the Court cannot conclude that the video
footage so blatantly contradicts Plaintiff’s version of events
that no reasonable jury could believe him.

III.
A.

Excessive Force
Counts I and III of Plaintiff’s Amended Complaint allege

that Troopers DePinto and Hurley subjected Plaintiff to
excessive force.

Specifically, Count I alleges, pursuant to

§ 1983, that the troopers’ use of excessive force deprived
Plaintiff of his rights under the Fourth and Fourteenth
Amendments to the United States Constitution.

Count III

alleges, pursuant to N.J.S.A. 10:6-2, that the troopers deprived
Plaintiff of his rights under Article 1, Paragraph 7 of the New
Jersey State Constitution.

The standard for evaluating an

excessive force claim under the New Jersey Constitution is the
same as under the United States Constitution.

See Norcross v.

Town of Hammonton, 2008 WL 9027248, at *4 (D.N.J. 2008)
(explaining that the “Court sees no reason to conclude that in
14

the context of a claim for excessive force during an arrest, the
standard under the New Jersey Constitution for evaluating those
claims is different from that under the United States
Constitution”).
Thus, under both the New Jersey Constitution and the United
States Constitution, in order to determine whether the force
used by Troopers DePinto and Hurley was excessive, the Court
must determine whether their actions were “objectively
reasonable in light of the facts and circumstances confronting
them, without regard to [their] underlying intent or
motivation.”
(1989)).

Id. (citing Graham v. Connor, 490 U.S. 386, 397

To determine whether the troopers’ actions in this

case were objectively reasonable, the Court must consider “the
severity of the crime at issue, whether the suspect poses an
immediate threat to the safety of the officer or others, and
whether he is actively resisting arrest or attempting to evade
arrest by flight.”

Graham, 490 U.S. at 396.

Other factors to

consider include “‘the duration of the [officer’s] action,
whether the action takes place in the context of effecting an
arrest, the possibility that the suspect may be armed, and the
number of persons with whom the police officers must contend at
one time.’”

Couden v. Duffy, 446 F.3d 483, 497 (3d Cir. 2006)

(citing Sharrar v. Felsing, 128 F.3d 810, 822 (3d Cir. 1997)).
Additionally, “the ‘reasonableness’ of a particular use of force
15

must be judged from the perspective of a reasonable officer on
the scene, rather than with the 20/20 vision of hindsight.”
Graham, 490 U.S. at 396.
In the instant case, the Court finds that there are genuine
issues of material facts which prevent the Court from granting
summary judgment as to Plaintiff’s excessive force claims.
Plaintiff’s testimony that he was listening to music and
chatting with his cousin, a school security guard, and a
substitute teacher while waiting outside the Nurse’s office
contrasts sharply with the testimony of Troopers DePinto and
Hurley, who assert that Plaintiff was yelling, cursing and
irate.

Further, the parties dispute the amount of force that

the troopers actually used.

Plaintiff maintains that he was not

resisting the troopers’ attempts to restrain him, but that the
troopers nonetheless removed Plaintiff from his desk, placed him
in a chokehold and threw him on the ground.

Troopers DePinto

and Hurley, in contrast, maintain that they were simply trying
place Plaintiff back in his chair, and fell to the ground while
doing so.

A videotape of the event does not conclusively prove

one side’s depiction of the events to be correct.
Absent resolution of these fact disputes, the Court cannot
analyze many of the factors used to determine whether the
troopers’ actions were “objectively reasonable.”

For example,

without knowing how irate Plaintiff was prior to being
16

restrained, whether Plaintiff resisted the troopers, or whether
the troopers employed a chokehold and threw Plaintiff to the
ground, the Court cannot determine whether Plaintiff posed an
immediate threat to the safety of the officer or others, or
whether Plaintiff was actively resisting arrest or attempting to
evade arrest by flight.

Therefore, the Court cannot conclude

that no reasonable jury could find that the troopers did not use
excessive force.

B. Qualified Immunity
Under the doctrine of qualified immunity, “officers
performing discretionary functions are ‘shielded 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.’”

Curley v. Klem, 298

F.3d 271, 277 (3d Cir. 2002) (quoting Harlow v. Fitzgerald, 457
U.S. 800 (1982)).

Thus, “qualified immunity strikes a balance

by permitting a plaintiff to recover for constitutional
violations where the governmental officer was plainly
incompetent . . . or knowingly violate[d] the law, while
immunizing a defendant who made a reasonable mistake about the
legal constraints on his actions.”

R.K. v. Y.A.L.E. Sch. Inc.,

621 F. Supp. 2d 188, 196 (D.N.J. 2008) (internal citations and
quotations omitted).
17

The Supreme Court has established a two-part analysis for
determining whether a government officer is entitled to
qualified immunity.

See Ray v. Twp. of Warren, 626 F.3d 170,

174 (3d Cir. 2010) (citing Saucier v. Katz, 533 U.S. 194, 201
(2001)).

The first question is whether an official’s conduct

violated a constitutional or federal right.
at 201.

Saucier, 533 U.S.

“This is not a question of immunity, but whether there

is any wrong to address.”

Ray, 626 F.3d at 174.

The second

question is whether the right at issue was “clearly
established.”
sequence.

Id.

These questions need not be answered in

See Ray, 626 F.3d at 174.

Instead, courts may

“exercise their sound discretion in deciding which of the two
prongs of the qualified immunity analysis should be addressed
first in light of the circumstances in the particular case at
hand.

Pearson v. Callahan, 555 U.S. 223, 236 (2009).

Although Troopers DePinto and Hurley purportedly make a
qualified immunity argument, they appear to be arguing that
there was no constitutional violation.

(Def.’s Br. in Supp., at

14 (arguing that “not only was the law not clearly established
on this point, it actually permitted the use of such force under
the circumstances presented.”))

The Court will not reach the

question of qualified immunity here because, as explained above,
it is not clear whether there has been a constitutional
violation.

If, on the one hand, there has been no violation,
18

there is no need for qualified immunity.

On the other hand, if

Plaintiff’s testimony proves accurate and Troopers DePinto and
Hurley used excessive force when restraining Plaintiff,
qualified immunity will not protect the troopers because the
right to be free from excessive force is a clearly established
constitutional right.

See Platt v. Gonzalez, 2011 WL 2413264,

at *3 (D.N.J. 2011).

C. Assault and Battery
In addition to claims under § 1983 and N.J.S.A. 10:6-2,
Plaintiff asserts common law claims for assault and battery
against Troopers DePinto and Hurley.

Troopers DePinto and

Hurley argue that their motion for summary judgment should be
granted as to these claims because if the force used against
Plaintiff was not excessive, then the troopers cannot be liable
for assault and battery.

(Def.’s Br. in Supp., at 15.)

The

troopers further argue that Plaintiff’s assault and battery
claims are barred by New Jersey’s good faith defense, codified
at N.J.S.A. 59:3-3.
The Court is not persuaded by either of the troopers’
arguments.

While the troopers are correct that a police officer

will generally not be liable for assault or battery unless the
force used was excessive, see Hill v. Algor, 85 F. Supp. 2d 391,
411 (D.N.J. 2000), the Court has already stated in its § 1983
19

analysis that genuine issues of material fact preclude summary
judgment as to the issue of whether the force used was
excessive.

Therefore, the Court cannot grant summary judgment

dismissing Plaintiff’s assault and battery claims.
As to the troopers’ good faith argument, N.J.S.A. 59:3-3
provides that “[a] public employee is not liable if he acts in
good faith in the execution or enforcement of any law.”

The New

Jersey Supreme Court has held that “[t]he same standard of
objective reasonableness that applies in Section 1983 actions
also governs questions of good faith arising under”
59:3-3.

N.J.S.A.

Wildoner v. Borough of Ramsey, 744 A.2d 1146, 1153

(N.J. 2000); see also R.M. v. Sainato, 2012 WL 1623860, at *8
(D.N.J. 2012).

As the Court has already determined that genuine

issues of material fact preclude summary judgment on the issue
of whether Troopers DePinto and Hurley were objectively
reasonable in restraining Plaintiff, the Court cannot find that
the troopers acted in good faith under N.J.S.A. 59:3-3.

D. Intentional Infliction of Emotional Distress
Defendant’s Motion for Summary Judgment will be granted as
to Plaintiff’s claim for intentional infliction of emotional
distress (IIED).

To succeed on an IIED claim, a plaintiff must

prove “intentional and outrageous conduct by the defendant,
proximate cause, and distress that is severe.”
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Buckley v.

Trenton Saving Fund Soc’y, 544 A.2d 857, 863 (N.J. 1988).
Plaintiff’s claim for IIED must fail because Plaintiff has
failed to show that the troopers’ actions were “outrageous” or
that Plaintiff suffered “severe” emotional distress.
Intentional and outrageous conduct is conduct that is “so
outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community.”
Id.

Thus, outrageous conduct is found only in the most extreme

circumstances.

See Antoine ex rel. Antoine v. Rucker, 2006 WL

1966649, at *15 (D.N.J. 2006) (compiling cases); see also Hume
v. Bayer, 178 N.J. Super. 301, 428 (Law Div. 1981) (finding
outrageous conduct where a physician, knowing it to be false,
told parents that their son was suffering from cancer); Muniz v.
United Hosp. Med. Ctr. Presbyterian Hosp., 79 A.2d 57 (App. Div.
1977) (finding outrageous conduct where a hospital was unable to
locate the body of a deceased baby for three weeks).

Other

examples of outrageous conduct include “spreading a false rumor
that plaintiff’s son had hung himself; bringing a mob to
plaintiff’s door with a threat to lynch him if he did not leave
town; and wrapping up a gory dead rat inside of a loaf of bread
for a sensitive person to open.”

Hume, 178 N.J. Super. at 315.

In the instant case, Plaintiff alleges that Troopers
DePinto and Hurley unreasonably placed him in a chokehold and
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tackled him in an attempt to restrain him during a medical
assist.

Even if true, the conduct of the troopers does not do

not rise to the level of any of the conduct described above, and
certainly does not constitute conduct “so outrageous in
character and so extreme in degree as to go beyond all possible
bounds of decency.”

See Antoine, 2006 WL 1966649, at *15

(finding no outrageous conduct where plaintiff alleged police
officers beat him without provocation and arrested him without
probable cause in retaliation for exercising his free speech
rights and because plaintiff was of Haitian origin).
Plaintiff’s IIED claim also must fail because Plaintiff has
not shown that he has suffered severe emotional distress.

The

requisite level of emotional distress to sustain a claim for
IIED is distress “so severe that no reasonable [person] could be
expected to endure it.”

Id.

Symptoms such as “aggravation,

embarrassment, an unspecified number of headaches, and loss of
sleep[]” are insufficient as a matter of law to establish a
claim for IIED.

Id. at 864.

Not only has Plaintiff not shown that he suffered severe
emotional distress, he has not shown that he has suffered any
emotional distress.

Beyond the bare allegation in his Second

Amended Complaint that he suffered “emotional trauma,” (Compl. ¶
51) Plaintiff makes no mention of, and certainly produces no
evidence of, any form of emotional distress.
22

Therefore, no

reasonable jury could possibly find that Plaintiff suffered
severe emotional distress as a result of Troopers DePinto and
Hurley’s actions.

IV.
For the foregoing reasons, Troopers DePinto and Hurley’s
Motion for Summary Judgment is denied as to all of Plaintiff’s
claims except Plaintiff’s claim for IIED.
claim will be dismissed.

Plaintiff’s IIED

An appropriate Order will accompany

this Opinion.

Date: August

26 , 2013

_

s/Joseph E. Irenas______
JOSEPH E. IRENAS, S.U.S.D.J.

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