ASHLEY v. PLEASANTVILLE CITY et al

Filing 50

OPINION FILED. Signed by Judge Joseph E. Irenas on 3/24/14. (js)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

CRAIG ASHLEY,
HONORABLE JOSEPH E. IRENAS

Plaintiff,

CIVIL ACTION NO. 11-7526
(JEI/JS)

v.
PLEASANTVILLE POLICE OFFICER
ANGELO MALDONADO, et al.,

OPINION

Defendants.
APPEARANCES:
BARRY, CORRADO, GRASSI & GIBSON, P.C.
By: Joseph C. Grassi, Esq.
Aaron T. Penrod, Esq.
Christopher Gillin-Schwartz, Esq.
2700 Pacific Avenue
Wildwood, New Jersey 08260
Counsel for Plaintiff
BARKER, GELFAND & JAMES, P.C.
By: A. Michael Barker, Esq.
Jeffrey A. Jaketic, Esq.
Linwood Greene – Suite 12
210 New Road
Linwood, New Jersey 08221
Counsel for Defendants Angelo Maldonado, James Searle, and
City of Pleasantville
ATLANTIC COUNTY DEPARTMENT OF LAW
By: Alan J. Cohen, Esq.
1333 Atlantic Avenue
Atlantic City, New Jersey 08401
Counsel for Defendants Grant Cunningham, Jr., and Atlantic
County

1

Irenas, Senior District Judge:
Plaintiff Craig Ashley initiated this action to recover for
injuries sustained during the course of his arrest for driving
under the influence in Pleasantville, New Jersey.

Ashley brings

six total claims pursuant to 42 U.S.C. § 1983 and the New Jersey
Civil Rights Act, N.J.S.A. 10:6-2.

Pending before the Court are

two motions for summary judgment; one filed by Defendants
Officer Angelo Maldonado, Detective James Searle, and the City
of Pleasantville, and another by Defendants Officer Grant
Cunningham, Jr. and Atlantic County. 1

For the reasons set forth

below, these motions will be granted.

I.
The events giving rise to this suit begin during the
afternoon of July 12, 2010.

Sometime early that afternoon,

Plaintiff Craig Ashley (“Ashley”) visited Calidini’s, a liquor
store located on the Black Horse Pike.

(Ashley Dep. at 105:8)

Ashley purchased two twenty-four ounce cans of Molson Ice beer
and a pint of Hennessey cognac.

(Id. at 105:9-14, 37:18-38:3)

In Ashley’s recollection, after returning home from Calidini’s,
he ate dinner sometime around 5:00 p.m. and began drinking the
alcohol he had purchased earlier.

1

(Id. at 40:23, 41:14-18)

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

2

Over the course of the next two to three hours, Ashley
drank both cans of beer and the pint of Hennessy, the latter
consumed in shots.

(Id. at 42:13-19)

As he finished drinking

his alcohol, Ashley decided to visit his father in Egg Harbor
Township, a thirty to forty-five minute car ride from Ashley’s
home.

(Id. at 41:23-25, 44:8)

Ashley set out for his father’s

house between 7:00 and 8:00 p.m., but after getting in his black
Chevrolet Impala and beginning the drive, he decided that “it
seemed better to go back home,” so he turned his car around and
began the trip back to his house.

(Id. at 44:12, 47:12-16)

On his trip back, sometime just before 9:45 p.m., Ashley
stopped at the traffic light at the intersection of Doughty Road
and New Road in Pleasantville, New Jersey.

(Id. at 46:25-47:1)

Admittedly intoxicated as he waited for the green light, Ashley
fell asleep behind the wheel of his car as he waited for the
traffic light to change.

(Id. at 49:13-14, 49:24-25)

Shortly

thereafter, at approximately 9:45 p.m., Defendant Officer Angelo
Maldonado (“Maldonado”) responded to a report of an unconscious
male in the driver’s seat of a vehicle at the intersection of
Doughty and New Roads.

(Maldonado Answers to Interrog. at 5)

Upon his arrival, Maldonado discovered Ashley asleep at the
wheel of a black Impala, the first vehicle at the intersection
with two cars waiting behind it.

(Id.)

As he approached the

Impala on foot, Maldonado observed exhaust coming from the tail
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pipe, and the car’s windows down, music playing, with Ashley
behind the wheel sleeping.

(Id., Ashley Dep. at 50:5-10, 54:7)

Maldonado continued approaching on foot and noticed that the car
remained in drive while Ashley’s foot rested on the brake.
(Maldonado Answers to Interrog. at 5)

Maldonado then called for

backup as he began trying to speak with Ashley.

(Id.)

Though

the parties dispute the precise contents of their conversation,
there is no dispute that Maldonado attempted to awaken Ashley by
speaking to him, which resulted in Ashley releasing the brake
pedal and the Impala moving forward.

(Ashley Dep. at 54:18-

55:2; Maldonado Answers to Interrog. at 5)
In Ashley’s recollection, after Maldonado startled him, the
car moved forward just three or four feet, and after stopping
the vehicle, Ashley could not recall exactly how the car was put
into park and pulled over.

(Ashley Dep. at 56:2-12)

In

Maldonado’s retelling, Maldonado startled Ashley, resulting in
Ashley releasing his foot from the brake pedal and letting the
car slide into the intersection before Maldonado shouted for
Ashley to stop.

(Maldonado Answers to Interrog. at 5-6)

After

hearing Maldonado shout, Ashley stepped on the brake pedal,
quickly stopping the car and permitting Maldonado to reach into
the Impala to place the car in park.
Interrog. at 6)

4

(Maldonado Answers to

Just after this, Defendant Officer Grant Cunningham
(“Cunningham”) and Defendant Detective James Searle (“Searle”)
arrived at the scene.

(Maldonado Answers to Interrog. at 6)

As Ashley’s car came to a stop, Maldonado informed Ashley he was
under arrest and had to step out of the car.

(Ashley Dep. at

59:7-8; Maldonado Answers to Interrog. at 6)

When Ashley did

not step out of the vehicle, Maldonado grabbed him by the left
arm and pulled him from the vehicle while Ashley held onto the
steering wheel.
Dep. at 60:10-20)

(Maldonado Answers to Interrog. at 6; Ashley
Meanwhile, as Searle remained approximately

thirty feet away and observed the scene, Cunningham began
advancing towards Maldonado and Ashley to assist with Ashley’s
arrest.

(Maldonado Answers to Interrog. at 6; Searle Answers to

Interrog. at 5)
Once Maldonado removed Ashley from the car and stood along
the open doorframe on the driver’s side, Ashley turned to face
the vehicle while Maldonado attempted to secure handcuffs on his
wrists.

(Ashley Dep. at 77:13-16; Maldonado Answers to

Interrog. at 6; Cunningham Investigation Rep. at 2)

When Ashley

admittedly “resisted” and pulled his arms away from Maldonado’s
grasp, Cunningham and Maldonado each took an arm and attempted
to place Ashley into the handcuffs while telling him to stop
resisting and that he was under arrest.

(Ashley Dep. at 78:18-

25, 83:12-18; Maldonado Answers to Interrog. at 6; Cunningham
5

Investigation Rep. at 2)

During the course of their efforts to

secure the handcuffs, both Maldonado and Cunningham heard a
“pop” noise, which Ashley felt but did not hear.

(Ashley Dep.

at 131:2; Cunningham Investigation Rep. at 2; Maldonado Answers
to Interrog. at 6)

After this altercation and struggle,

Maldonado and Cunningham secured Ashley’s wrists in the
handcuffs and escorted him to Maldonado’s police car.
(Maldonado Answers to Interrog. at 6)
Though Ashley did not tell the officers that he sustained
any injury during the struggle or while in the back of
Maldonado’s police car, Maldonado noticed something protruding
from Ashley’s bicep as he helped Ashley out of the car at the
Pleasantville Police Department.

(Ashley Dep. at 132:23-133:4;

Maldonado Answers to Interrog. at 7)

As soon as they walked

inside, Maldonado called for an ambulance, which transported
Ashley to AtlantiCare Regional Center in Atlantic City for
treatment.

(Maldonado Answers to Interrog. at 7)

At the hospital, doctors treated Ashley for a nondisplaced
fractured humerus bone in his right arm.
Rep. at 2)

(AtlantiCare Final

In addition, during the course of treatment, Ashley

gave a blood sample that later revealed a blood alcohol content
of 0.355.

(Certified Laboratory Report, Aug. 3, 2010)

After

completing his treatment that evening with painkillers and a

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splint on Ashley’s right arm, AtlantiCare discharged Ashley.
(AtlantiCare Final Rep. at 3)
As a result of his arrest, Ashley pled guilty to a charge
of driving while intoxicated in Pleasantville Municipal Court on
September 27, 2010.

(Trans. of Guilty Plea, Finding and

Sentence, Sept. 27, 2010)

On December 27, 2011, Ashley

initiated this lawsuit, alleging that he was the victim of
excessive force during the course of his arrest.

Following

discovery, the Defendants filed these two motions seeking
summary judgment on all of Ashley’s claims, a matter now
properly before this Court.

II.
“The court shall grant summary judgment 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.”
Civ. P. 56(a).

Fed. R.

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. Cnty. of

Allegheny Pa., 139 F.3d 386, 393 (3d Cir. 1998).

The moving

party bears the burden of establishing that no genuine issue of
material fact remains.
317, 322-23 (1986).

See Celotex Corp. v. Catrett, 477 U.S.

A fact is material only if it will affect

the outcome of a lawsuit under the applicable law, and a dispute
7

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 v. Liberty Lobby, Inc., 477 U.S. 249, 252

(1986).
The nonmoving party must present “more than a scintilla of
evidence showing that there is a genuine issue for trial.”
Woloszyn v. Cnty. of Lawrence, 396 F.3d 314, 319 (3d Cir. 2005).
The court’s role in deciding the merits of a summary judgment
motion is to determine whether there is a genuine issue for
trial, not to determine the credibility of the evidence or the
truth of the matter.

Anderson, 477 U.S. at 249.

III.
Ashley brings six federal and state-law claims to recover
for his injuries, contending that he was the victim of excessive
force, a conspiracy to violate his civil rights, a failure to
intervene, and companion claims for municipal liability.
Court addresses each of these claims in turn.

The

A.
Counts I and IV allege that Maldonado, Searle, and
Cunningham subjected Ashley to the use of excessive force.
Specifically, Count I alleges, pursuant to § 1983, that
Maldonado, Searle, and Cunningham’s use of excessive force
8

deprived Ashley of his rights under the Fourth Amendment of the
United States Constitution.

Count IV alleges, pursuant to

N.J.S.A. 10:6-2, that Maldonado, Searle, and Cunningham’s
deprived Ashley of his rights under Article I, Section 7 of the
New Jersey Constitution to be free from the use of excessive
force.

Excessive force claims are subject to the same standards

under both the New Jersey and Federal Constitutions.

Norcross

v. Town of Hammonton, No. 04-cv-2536 (RBK), 2008 WL 9027248, at
*4 (D.N.J. Feb. 5, 2008).
To determine whether the force used by Maldonado, Searle,
and Cunningham was excessive, the Court must determine whether
their actions were “objectively reasonable in light of the facts
and circumstances confronting them, without regard to the
officers’ underlying intent or motivation.”
v. Connor, 490 U.S. 386, 397 (1989)).

Id. (citing Graham

To determine the

reasonableness of the officers’ actions, courts consider factors
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 actively is resisting arrest or
attempting to evade arrest by flight.”

Kopec v. Tate, 361 F.3d

772, 776-77 (3d Cir. 2004) (citing Graham, 490 U.S. at 396)).
court may also consider the possibility that the suspect is
violent or dangerous, the duration of the entire altercation,
whether the use of force takes place during the course of
9

A

arrest, the possibility that the suspect may be armed, as well
as the number of persons that the officers must contend with at
one time.

Kopec, 361 F.3d at 777 (citing Sharrar v. Felsing,

128 F.3d 810, 822 (3d Cir. 1997)).

Finally, “the

‘reasonableness’ of a particular use of force 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.
Though the reasonableness determination is “frequently”
left to a jury, defendants may be entitled to summary judgment
“if the district court concludes, after resolving all factual
disputes in favor of the plaintiff, that the officer’s use of
force was objectively reasonable under the circumstances.”
Kopec, 361 F.3d at 777 (quoting Abraham v. Raso, 183 F.3d 279,
289 (3d Cir. 1999)).
Turning first to Searle’s liability, there is no dispute
that he never made physical contact with Ashley.

At his

deposition, Ashley conceded that he could not testify under oath
that Searle ever used any force against him.
88:16)

(Ashley Dep. at

In addition, Searle asserted that he never used any

force during the altercation, and police reports confirm that
Searle never come into contact with Ashley while Maldonado and
Cunningham arrested him.

(Searle Answers to Interrog. at 12;

Cunningham Investigation Rep. at 2)
10

As a result, there is no

basis to conclude that Searle used any force at all, and he is
therefore entitled to summary judgment on Counts I and IV.
Reviewing the facts and circumstances of Ashley’s arrest,
the Court concludes that Maldonado and Cunningham’s use of force
was reasonable under the circumstances.

Before getting behind

the wheel of his car, Ashley consumed a pint of Hennessey cognac
and two twenty-four ounce Molson Ice beers.
42:13-43:2)

(Ashley Dep. at

A laboratory test revealed that the admittedly

intoxicated Ashley was driving with a blood alcohol content of
0.355.

(Id. at 49:4; Certified Laboratory Report, Aug. 3, 2010)

Maldonado discovered Ashley in this state at the
intersection of Doughty and New Road, behind the wheel of a
stopped but running vehicle at a green traffic signal.
(Maldonado Answers to Interrog. at 5)

As he approached the car,

Maldonado observed Ashley asleep in the driver’s seat, front
windows open, and the radio “set at a high volume.”
Ashley Dep. at 50:7-10)

(Id.;

Maldonado then noticed that the car

remained in drive with Ashley’s foot on the brake pedal.
(Maldonado Answers to Interrog. at 5; Ashley Dep. at 54:7)
As Maldonado called for backup, he attempted to awaken
Ashley while standing beside Ashley’s car.
to Interrog. at 5)

(Maldonado Answers

Upon hearing Maldonado next to him, Ashley’s

foot came off the break and the car moved forward before
Maldonado shouted, resulting in Ashley abruptly stopping the
11

vehicle. 2

(Ashley Dep. at 54:23-24, 65:25; Maldonado Answers to

Interrog. at 5-6)
With Ashley’s vehicle now stopped and placed in park,
Maldonado opened the driver-side door and informed Ashley he was
under arrest and that Ashley would need to step out of his
vehicle.

(Maldonado Answers to Interrog. at 6; Ashley Dep. at

58:8, 59:3-11)

Maldonado repeated the instruction to get out of

the car, and when Ashley again did not immediately comply,
Maldonado pulled Ashley out of the car by his left arm,
apparently while Ashley held onto the steering wheel.
(Maldonado Answers to Interrog. at 6; Ashley Dep. at 60:10-20)
With Ashley out of the vehicle, Cunningham came over
alongside Maldonado to assist with Ashley’s arrest after
observing Ashley’s uncooperative behavior.

(Ashley Dep. at

74:20-75:3; Maldonado Answers to Interrog. at 6)

As Ashley

stood up and turned to face his car, Maldonado attempted to grab
one of his arms to place him in handcuffs.

(Ashley Dep. at

77:13-16; Maldonado Answers to Interrog. at 6; Cunningham
Investigation Rep. at 2)

Ashley resisted Maldonado’s attempts,

2

Maldonado contends the car moved ten feet out into the intersection
and nearly collided with another vehicle, while Ashley asserts that his car
traveled somewhere between three to four feet before he brought it to a stop.
(Compare Maldonado Answers to Interrog. at 6 with Ashley Dep. at 65:25)
However, there is no disagreement that Ashley was asleep behind the wheel and
accidentally allowed the car to move as he awoke when Maldonado approached
him. Whether the car traveled three feet or ten is immaterial to deciding
these motions.

12

and Cunningham and Maldonado each grabbed an arm while they told
Ashley to stop resisting their efforts to place him under
arrest.

(Maldonado Answers to Interrog. at 6; Cunningham

Investigation Rep. at 2)

At his deposition, Ashley conceded

that he “tried to pull [his] arms” from the officers’ grasp, and
a struggle ensued as Ashley continued to resist the officers’
efforts for a short time.
Answers to Interrog. at 6)

(Ashley Dep. at 79:22; Maldonado
Ashley continued to resist Maldonado

and Cunningham’s efforts to secure his arms in the handcuffs,
and at some point as they struggled, the officers heard a “pop”
noise.

(Cunningham Investigation Rep. at 2; Maldonado Answers

to Interrog. at 6)

The altercation ended shortly after hearing

the noise, and either just before or after locking the handcuffs
in place, the officers and Ashley bumped into the open doorframe
of the car as they secured Ashley by the wrists.

(Ashley Dep.

at 85:1-5; Cunningham Investigation Rep. at 2; Maldonado Answers
to Interrog. at 6)

Ultimately, Maldonado and Cunningham placed

Ashley securely into handcuffs and took him to Maldonado’s car. 3

3 Ashley contends that the officers “[h]ead down, shoved [him] into the
police car.” (Ashley Dep. at 85:21-22) Ashley concedes he sustained no
injury from this, but maintains that this placement constitutes excessive
force to put him into the back seat of the car. In contrast, Maldonado
indicated that Ashley leaned on Cunningham for support as they walked to
Maldonado’s patrol car, and they did nothing out of the ordinary in escorting
Ashley into the car. (Maldonado Answers to Interrog. at 7) Even accepting
Ashley’s account, the force of placing the heavily intoxicated Ashley into
the police car, pushing his head down to avoid the open doorframe, would be
reasonable to complete his arrest in light of Ashley’s efforts to resist
arrest in the middle of the street.

13

In view of these facts, Maldonado and Cunningham acted
reasonably during the course of arresting Ashley.

There is no

dispute that Ashley was highly intoxicated, sleeping behind the
wheel of his car at a green light with his foot on the brake.
This posed a danger both to Maldonado as he approached Ashley’s
vehicle on foot, and to other drivers waiting behind Ashley at
the green light.

In addition, there is no dispute that Ashley

physically resisted Maldonado and Cunningham’s efforts to place
him under arrest by refusing to get out of the car, and then
struggling and pulling away while the officers tried to put him
in handcuffs.

The force used on Ashley to pull him from the

vehicle, restrain him as they placed him in handcuffs, and place
him in Maldonado’s patrol car was reasonable under the
circumstances.

As a result, Maldonado and Cunningham are

entitled to summary judgment on Ashley’s excessive force claims.

B.
Count III asserts that Maldonado, Searle, and Cunningham
conspired to perform acts that would deprive Ashley of his
constitutional rights under § 1983 and N.J.S.A. 10:6-2. 4

4

The Court considers these claims together, as N.J.S.A. 10:6-2 is
generally construed as analogous to § 1983. Pettit v. New Jersey, No. 09-cv3735 (NLH), 2011 WL 1325614, at *3 (D.N.J. Mar. 30, 2011).

14

A civil conspiracy under § 1983 is “a combination of two or
more persons acting in concert to commit an unlawful act, or to
commit a lawful act by unlawful means, the principal element of
which is an agreement between the parties to inflict a wrong
against or injury upon another, and an overt act that results in
damage.”

Jones v. Dalton, 867 F.Supp.2d 572, 585 (D.N.J. 2012)

(quoting Adams v. Teamsters, 214 F. App’x 167, 172 (3d Cir.
2007)).

To constitute a conspiracy, “there must be a ‘meeting

of the minds.’”

Startzell v. City of Phila., 533 F.3d 183, 205

(3d Cir. 2008) (quoting Adickes v. S.H. Kress & Co., 398 U.S.
144, 158 (1970)).
In the present circumstances, the undisputed record
demonstrates no agreement to commit an unlawful act, or to
commit a lawful act by unlawful means.

There is no indication

that Maldonado, Searle, or Cunningham ever met Ashley before his
arrest on July 12, 2010.

(Ashley Dep. at 159:25-160:15)

Similarly, the undisputed record does not contain any indication
that Maldonado, Searle, or Cunningham agreed to violate Ashley’s
civil rights.

As a result, Maldonado, Searle, and Cunningham

are entitled to summary judgment on Ashley’s conspiracy claim.

C.
Count II asserts a claim under § 1983 against Searle for
failure to intervene.
15

A police officer has a duty to take reasonable steps to
protect a victim from another officer’s use of excessive force.
Smith v. Mensinger, 293 F.3d 641, 650-51 (3d Cir. 2002).

This

duty applies to all officers, regardless of rank, if such a
constitutional violation takes place in their presence, and
liability depends on whether the officer had a “realistic and
reasonable opportunity to intervene.”

Id. at 651 (citing Byrd

v. Clark, 783 F.2d 1002, 1007 (11th Cir. 1986)).
The undisputed record demonstrates that no constitutional
violation occurred.

As described supra, neither Maldonado nor

Cunningham used excessive force, and the record contains no
evidence of a conspiracy to deprive Ashley of his constitutional
rights.

Without any underlying constitutional violation, Searle

cannot be liable for a failure to intervene and the Court will
therefore grant summary judgment in his favor on this claim.

D.
Counts V and VI assert claims of municipal liability
against the City of Pleasantville and Atlantic County under §
1983 and N.J.S.A. 10:6-2. 5

However, in the absence of an

underlying constitutional violation, there can be no municipal

5

Again, the Court considers these claims under the same standard
because N.J.S.A. 10:6-2 is generally construed as analogous to § 1983.
Pettit, 2011 WL 1325614, at *3.

16

liability under § 1983.

See Brown v. Pa. Dep’t of Health

Emergency Med. Servs. Training Inst., 318 F.3d 473, 482-83 (3d
Cir. 2003) (“[F]or there to be municipal liability, there still
must be a violation of the plaintiff’s constitutional rights.”).
The undisputed record does not show that Ashley sustained any
constitutional harm, and therefore Pleasantville and Atlantic
County are entitled to summary judgment on claims of municipal
liability.

IV.
Based on the foregoing, the Defendants’ motions for summary
judgment will be granted.

An appropriate Order accompanies this

Opinion.

Date: 3-24-14
s/ Joseph E. Irenas
Joseph E. Irenas, S.U.S.D.J.

17