MORRIS v. UNITED STATES OF AMERICA et al

Filing 139

OPINION FILED. Signed by Judge Noel L. Hillman on 7/9/15. (js)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________
ALLEN D. MORRIS,
Plaintiff,

Civil No. 12-2926 (NLH/JS)

v.
UNITED STATES OF AMERICA,
et al.,

OPINION

Defendants.
__________________________________
APPEARANCES:
Allen D. Morris
7 Country Club Drive
Bridgeton, New Jersey 08302
Plaintiff Pro Se
Elizabeth Ann Pascal, AUSA
U.S. Department of Justice
Office of the U.S. Attorney
401 Market Street
P.O. Box 2098
Camden, New Jersey 08101
Attorney for Defendants Dominick Ferrari, Douglas Herbert,
Mark Rowe, Steve Brown, and Richard Henderson
Robert P. Merenich, Esq.
Gemmel, Todd & Merenich, P.A.
767 Shore Road
P.O. Box 296
Linwood, New Jersey 08221
Attorney for Defendant City of Pleasantville
HILLMAN, District Judge:
Presently before the Court is a motion [Doc. No. 134] filed
by Plaintiff Pro se, Allen D. Morris, seeking reconsideration of

1

the Opinion entered on December 29, 2014 granting summary
judgment in favor of Defendants Dominick Ferrari, Douglas
Herbert, Mark Rowe, Steve Brown, Richard Henderson, and the City
of Pleasantville.

The motion for reconsideration is opposed by

Defendants Ferrari, Herbert, Rowe, Brown and Henderson, and
Defendant City of Pleasantville has joined in the individual
defendants’ opposition. 1

The Court has considered the

submissions and decides this matter pursuant to Fed. R. Civ. P.
78.
For the reasons that follow, Plaintiff’s motion for
reconsideration will be denied.

1

In response to Plaintiff’s motion, the Court also received a
letter [Doc. No. 137] from Michael E. Benson, Esquire, on behalf
of Defendant City of Vineland, and a letter [Doc. No. 138] from
Elizabeth D’Ancona, Assistant County Counsel, on behalf of
Defendant Atlantic County Sheriff’s Office, requesting entry of
an Order dismissing the complaint as to these defendants with
prejudice in light of the Court’s December 29, 2014 Opinion.
The Court notes that by Order dated March 27, 2014, all claims
against the Atlantic County Sheriff’s Office were dismissed with
prejudice. (Order [Doc. No. 113], Mar. 27, 2014.) In addition,
all claims against Atlantic County and the City of Vineland were
dismissed without prejudice, and Plaintiff was granted leave to
seek an amendment to the complaint with respect to the claims
against these defendants. (Id.) In the December 29, 2014
Opinion, the Court reviewed Plaintiff’s amended complaint, found
that it failed to correct the deficiencies identified in the
prior Opinion, and denied Plaintiff’s motion to amend. (Op.
[Doc. No. 132] 16, Dec. 29, 2014.) The Court then stated that
“the claims against Atlantic County and the City of Vineland
will be dismissed with prejudice.” (Id.) The Court will
therefore enter an Order confirming that the claims against
Atlantic County and the City of Vineland have now been dismissed
with prejudice.
2

I.

BACKGROUND
Generally, this case arises from events that occurred on

May 18, 2010, when Plaintiff was arrested at his home.

The

named individual defendants, Ferrari, Rowe, Brown, Herbert, and
Henderson, were members of a joint task force who went to
Plaintiff’s residence to arrest Plaintiff’s brother-in-law, Adam
Bard (hereafter, “Bard”).

After Bard was arrested, the officers

then sought to effect the arrest of Plaintiff, but Plaintiff
resisted.

An altercation ensued, at which time Plaintiff

suffered an injury to his eye socket.

The individual defendants

filed a motion for summary judgment on the Fourth Amendment
claims against them.
In the December 29, 2014 Opinion and Order, the Court
granted summary judgment in favor of the individual defendants
on grounds of qualified immunity.

Plaintiff now seeks

reconsideration of the Opinion and Order on both procedural and
substantive grounds.
II.

DISCUSSION
A.

Standard for Motion for Reconsideration

A motion for reconsideration may be treated as a motion to
alter or amend judgment under Fed. R. Civ. P. 59(e), or as a
motion for relief from judgment or order under Fed. R. Civ. P.
60(b), or it may be filed pursuant to Local Civil Rule 7.1(i).
The purpose of a motion for reconsideration “is to correct
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manifest errors of law or fact or to present newly discovered
evidence.”

Max’s Seafood Cafe ex rel. Lou–Ann, Inc. v.

Quinteros, 176 F.3d 669, 677 (3d Cir. 1999).

A judgment may be

altered or amended only if the party seeking reconsideration
shows: (1) an intervening change in the controlling law; (2) the
availability of new evidence that was not available when the
court granted the motion for summary judgment; or (3) the need
to correct a clear error of law or fact or to prevent manifest
injustice.

Id.

A motion for reconsideration may not be used to re-litigate
old matters or argue new matters that could have been raised
before the original decision was reached.

P. Schoenfeld Asset

Mgmt., L.L.C. v. Cendant Corp., 161 F. Supp. 2d 349, 352 (D.N.J.
2001).

Mere disagreement with the Court will not suffice to

show that the Court overlooked relevant facts or controlling
law, United States v. Compaction Sys. Corp., 88 F. Supp. 2d 339,
345 (D.N.J. 1999), and should be dealt with through the normal
appellate process, S.C. ex rel. C.C. v. Deptford Twp. Bd. of
Educ., 248 F. Supp. 2d 368, 381 (D.N.J. 2003).
B.

Analysis

Plaintiff does not contend that there has been an
intervening change in the law, or the availability of new
evidence that was not available when the Court granted the
motion for summary judgment.

Plaintiff moves for
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reconsideration only on the basis that there is a purported need
to correct a clear error of law or fact.

The Court addresses

each of Plaintiff’s arguments in turn.
1.

Procedural Issues

Plaintiff first contends that the Court erred by hearing
Defendants’ summary judgment motion prematurely.

In support,

Plaintiff cites a New Jersey Court Rule which provides that
“[a]ll motions for summary judgment shall be returnable no later
than 30 days before the scheduled trial date.”

(Cert. of Allen

D. Morris Supporting Mot. for Reconsideration (hereafter, “Pl.’s
Cert.”) ¶ 5) (citing N.J. Ct. R. 4:46-1.)

According to

Plaintiff, the Court should not have heard the motion for
summary judgment because no trial date had yet been scheduled.
Motions for summary judgment in federal court are governed
by Fed. R. Civ. P. 56, not the New Jersey Court Rules.

Fed. R.

Civ. P. 56(b) provides: “[u]nless a different time is set by
local rule or the court orders otherwise, a party may file a
motion for summary judgment at any time until 30 days after the
close of all discovery.”

In this case, the deadline to file

summary judgment motions was set by court order.

Specifically,

the Amended Scheduling Order dated January 28, 2014 provided
that dispositive motions “shall be filed with the Clerk of the
Court no later than March 3, 2014[.]”
[Doc. No. 96], Jan. 28, 2014.)

(Am. Scheduling Order

The individual defendants filed
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their motion for summary judgment on March 3, 2014, and it was
therefore timely submitted in accordance with the Scheduling
Order. 2

The Court thus reject timeliness as a basis for

reconsideration of the motion for summary judgment.
Plaintiff next contends that the Court erred in deciding
the motion for summary judgment without oral argument.
Cert. ¶ 6.)

(Pl.’s

Pursuant to Fed. R. Civ. P. 78(b), “[b]y rule or

order, the court may provide for submitting and determining
motions on briefs, without oral hearings.”

The New Jersey

Federal Practice Rules then provide that “[a]ll motions and
other applications will be decided on the papers submitted
unless: (1) a party requests oral argument and the request is
granted by the Judge or Magistrate Judge; or (2) the Court, sua
sponte, directs that oral argument be held.”
78.1(b).

L. Civ. R.

Accordingly, the Court is not required to hold oral

argument and has discretion in deciding whether to conduct a
hearing on a pending motion.

The Court in this instance

determined that oral argument was not necessary and decided the
motions on the papers.

There was no error in the Court’s

failure to conduct oral argument.

2

Defendant City of Pleasantville filed its motion for summary
judgment on March 4, 2014, one day late. Plaintiff never
contested the belated nature of the filing and, as such, the
Court deems any argument concerning the timeliness of the filing
waived.
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Plaintiff’s third procedural challenge is that the Court
purportedly previously denied summary judgment, and the case
therefore should have proceeded to trial.

(Pl.’s Cert. ¶ 7.)

The Court did not previously decide a motion for summary
judgment.

In a March 27, 2014 Opinion and Order, the Court

granted motions to dismiss filed by various defendants.

A

motion to dismiss, filed pursuant to Fed. R. Civ. P. 12(b)(6),
is a different procedural mechanism than a motion for summary
judgment filed pursuant to Fed. R. Civ. P. 56.
Under Rule 12(b)(6), the Court asks “‘not whether a
plaintiff will ultimately prevail but whether the claimant is
entitled to offer evidence to support the claims[.]’”

Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 563 n.8, 127 S. Ct. 1955, 167 L.
Ed. 2d 929 (2007) (quoting Scheuer v. Rhoades, 416 U.S. 232,
236, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974)); see also Ashcroft
v. Iqbal, 556 U.S. 662, 684, 129 S. Ct. 1937, 173 L. Ed. 2d 868
(2009) (“Our decision in Twombly expounded the pleading standard
for ‘all civil actions[.]’”) (citation omitted).

For purposes

of a motion to dismiss, the Court accepts the facts alleged in
the complaint as true.
At the summary judgment stage, by contrast, the Court asks
whether “‘the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any,’ . . . demonstrate the absence of a genuine
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issue of material fact” and that the moving party is entitled to
a judgment as a matter of law.

Celotex Corp. v. Catrett, 477

U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)
(citing Fed. R. Civ. P. 56).

Once the moving party shows the

absence of a genuine issue of material fact, the nonmoving party
must identify, by affidavits or otherwise, specific facts
showing that there is a genuine issue for trial.
U.S. at 324, 106 S. Ct. 2548.

Celotex, 477

A “party opposing summary

judgment ‘may not rest upon the mere allegations or denials of
the . . . pleading[s.]’”

Saldana v. Kmart Corp., 260 F.3d 228,

232 (3d Cir. 2001).
Therefore, the motion to dismiss stage tests only whether
Plaintiff could state a claim against the moving defendants,
assuming that the facts averred in the complaint are true,
whereas at the summary judgment stage Plaintiff must come
forward with actual evidence in support of his claims.

Here,

after the Court decided the motions to dismiss, the remaining
defendants were entitled to move, and did so move, for summary
judgment on the basis that Plaintiff had not adduced sufficient
evidence to support the allegations in the complaint.

The Court

did not err in deciding the summary judgment motions rather than
directing the parties to proceed directly to trial.
2.

Substantive Issues

Plaintiff also raises several substantive issues concerning
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the Court’s December 29, 2014 Opinion.

Plaintiff first disputes

the Court’s consideration of testimony by his wife in deciding
the summary judgment motion.

(Pl.’s Cert. ¶ 8.)

The Court

previously found that the individual defendant officers did not
illegally enter Plaintiff’s home without a search warrant,
because they reasonably believed before entering Plaintiff’s
house that Bard lived at the residence and that he was in the
residence when the officers entered.

(Op. at 24.)

The

officers’ reasonable belief was formed by conversations with
Plaintiff’s wife, Angela.

(Id.)

Plaintiff takes issue with the

fact that Angela was never deposed in this case, arguing that
the Court should have allowed the deposition of Angela or denied
summary judgment and proceeded to trial so that Angela could
have been called as a witness.

(Pl.’s Cert. ¶ 8.)

It does not appear that any party sought to depose Angela
in this action, and Plaintiff cites no authority for the
proposition that the Court can command a party to obtain
discovery that has not been requested by the litigants. 3

3

As the

The only case cited by Plaintiff on this point is United Rental
Equip. Co., Inc. v. Aetna Life & Cas. Ins. Co., 74 N.J. 92, 376
A.2d 1183 (N.J. 1977). Plaintiff’s reliance on this case is
misplaced. First, United Rental is factually distinguishable
because at the time summary judgment was granted in that case,
discovery had not yet been completed and the plaintiff had
requested leave to take the deposition of an expert. Here, by
contrast, there is no indication that Plaintiff requested leave
to take Angela’s deposition within the discovery period.
Moreover, in United Rental the New Jersey Supreme Court
9

party who filed this action, it was Plaintiff’s obligation to
come forth with evidence in support of his claims.

The Court

did not err in failing to consider evidence which was never
presented.
Furthermore, contrary to Plaintiff’s contention, the Court
did not accept Defendants’ arguments “without any substantial
proof or evidence.”

(Pl.’s Cert. ¶ 8.)

Although Angela was not

deposed in this civil action, she testified under oath in the
underlying criminal matter about her conversation with the
officers on the morning of May 18, 2010.

Defendants provided

the transcript of Angela’s testimony in support of their summary
judgment motion.

As noted in the December 29, 2014 Opinion,

Angela testified that on the morning of May 18, 2010, she called
Plaintiff from her cell phone, heard Plaintiff knock on Bard’s
door and call Bard’s name, heard Bard’s response, and heard
Plaintiff tell Bard to get up because the Marshals were coming
to pick him up.

(Op. at 3-4.)

that Bard was in the house.

Angela verified for the officers

(Id. at 4.)

The Court considered

this evidence in deciding the illegal entry claim, and did not
merely accept Defendants’ arguments without any proof or
evidence.

concluded that the trial court did not err in considering the
expert’s affidavit, even though the plaintiff had not had the
opportunity to depose the expert.
10

Also in connection with the illegal entry claim, Plaintiff,
citing Steagald v. United States, 451 U.S. 204, 101 S. Ct. 1642,
68 L. Ed. 2d 38 (1981), asserts that the defendant officers
could not enter his residence to search for Bard unless they had
a separate search warrant to do so or Plaintiff’s consent.
(Pl.’s Cert. ¶ 9.)

However, a search warrant is not necessary

when the third party’s residence is also the residence of the
person the police seek to arrest.

See id. at 221, 101 S. Ct.

1642 (“an arrest warrant alone will suffice to enter a suspect’s
own residence to effect his arrest.”).

As noted by the Third

Circuit, to enter the home of a third person without a search
warrant, “officers [must] have a reasonable belief that the
arrestee (1) lived in the residence and (2) is within the
residence at the time of entry.”

Williams v. City of

Philadelphia, 454 F. App’x 96, 98 (3d Cir. 2011).
Here, the evidence submitted in support of summary judgment
demonstrated that the officers had a reasonable belief that Bard
lived at Plaintiff’s residence and was inside at the time the
officers entered.

Prior to the arrest, one of the arresting

officers, Detective Brown, had conducted several database
inquiries and learned that four of the arrest warrants listed
Bard’s address as the same address as Plaintiff’s residence, as
did Bard’s application for food stamp benefits.

(Decl. of Mark

Rowe [Doc. No. 104-3] (hereafter, “Rowe Decl.”), Ex. A.)
11

Detective Brown also contacted the United States Postal Service
and confirmed that Bard was receiving mail at the same address.
(Id.)

Additionally, on the day that the officers entered

Plaintiff’s home, they had received confirmation from Angela
that Bard was asleep inside the house.

(Decl. of Elizabeth A.

Pascal [Doc. No. 104-5] (hereafter, “Pascal Decl.”), Ex. B at
16:21-17:4, Ex. C at 92:13-20.)

This evidence gave the

defendant officers a reasonable belief that Bard resided in the
home and was in the home at the time the officers entered, and
they therefore did not need a search warrant to enter. 4

The

Court did not err in granting summary judgment on Plaintiff’s
illegal entry claim.
Plaintiff next asserts that the Court overlooked the
testimony of Defendants’ medical expert, who concluded that
Plaintiff sustained injuries due to Defendants’ use of force
against Plaintiff.

(Pl.’s Cert. ¶ 8.)

The Court did not

overlook this testimony and specifically noted in the Opinion
that Plaintiff suffered an injury to his eye socket due to
Defendants’ use of force.

(Op. at 32-33.)

The Court concluded,

however, that the injury was “the unintended consequence of the

4

In addition to the officers’ reasonable belief that Bard
resided at the address, the Court was also presented with
evidence that Bard in fact resided with Plaintiff. In the
underlying criminal proceeding, Plaintiff testified that Bard
lived in Plaintiff’s home. (Pascal Decl., Ex. C at 15:18-22.)
12

force Rowe and the other officers found necessary to secure an
uncooperative arrestee.”

(Id.)

As such, while force was used

against Plaintiff, the amount of force was not excessive and
therefore could not support a Fourth Amendment excessive force
claim.

(Id. at 33-34.)

Plaintiff’s disagreement with the

Court’s conclusion is not a basis for reconsideration.
Plaintiff also asks the Court to reconsider its analysis
of the evidence relating to the excessive force claim.

The

Court previously concluded that although Plaintiff was pushed to
the ground in the course of the arrest because he ignored the
officers’ direction to lie belly down on the stairs, the actions
of the officers were reasonable under the circumstances.
at 29-30.)

(Op.

Plaintiff now argues that he could not have complied

with the officers’ directives because it was “physically
impossible” for Plaintiff to lie on the stairs on his stomach
and place his hands behind his back.

(Pl.’s Cert. ¶ 10.)

Plaintiff’s argument focuses narrowly on one directive and fails
to account for the entirety of the circumstances surrounding the
arrest.

Throughout the course of the arrest, Plaintiff refused

to comply with the officers’ directives.
As noted in the December 29, 2014 Opinion, Plaintiff’s
behavior after the officers entered the house posed a potential
and immediate threat to the safety of the officers.

It was not

disputed that Plaintiff refused to allow the officers in his
13

home, did not show himself until given repeated instructions to
do so and only after a dog was unleashed, did not place his
hands above his head or at a later time behind him as
instructed, and maintained an uncooperative, hostile attitude
towards the officers.

(Op. at 32.)

It was also not disputed

that the upper level of the residence was not secured at the
time of the arrest.

(Id.)

Even if it was not physically

possible for Plaintiff to lie belly down on the stairs,
Plaintiff demonstrated no effort to even attempt to comply with
the officers’ directives.

The totality of the circumstances

demonstrated that the officers did not use an unreasonable
amount of force to secure an uncooperative arrestee.

The Court

concludes that it did not err in granting summary judgment on
the excessive force claim.
Finally, Plaintiff challenges the Court’s finding in
connection with Plaintiff’s false arrest claim that the officers
had probable cause to arrest.

Plaintiff argues that there was

no need to arrest him when the officers were on the property to
arrest Bard.

(Pl.’s Cert. ¶ 11.)

The Court, on further review,

agrees that its initial analysis of this issue was erroneous.
However, as explained below, this error was harmless and does
not affect the outcome of the summary judgment motion.
The Court previously concluded that because Plaintiff
resisted arrest, the officers had probable cause to arrest
14

Plaintiff.

(Op. at 36.)

The Court also concluded that a

finding that there was no probable cause to arrest Plaintiff
would imply the invalidity of his conviction for resisting
arrest, and that Plaintiff’s claim is therefore barred under
Heck v. Humphrey, 512 U.S. 477, 487, 114 S. Ct. 2364, 129 L. Ed.
2d 383 (1994).

(Id.)

However, other courts have noted that the

offense of resisting arrest does not require that the arrest be
“lawful.”

See, e.g., Elliot v. Gloucester City, Civ. No. 12-

7440, 2014 WL 3446496, at *4 (D.N.J. July 11, 2014); Platt v.
Gonzalez, Civ. No. 09-6136, 2011 WL 2413264, at *3 (D.N.J. June
9, 2011).

As noted in Platt, N.J. Stat. Ann. § 2C:29-2(a)(1) --

the offense for which Plaintiff here was convicted -- was
amended in 2000 to delete the word “lawful” before the word
“arrest,” and provides only that “a person is guilty of a
disorderly persons offense if he purposely prevents or attempts
to prevent a law enforcement officer from effecting an arrest.”
Platt, 2011 WL 2413264, at *3.

Because the lawfulness of the

arrest is immaterial to a charge of resisting arrest, and is not
an element of the underlying crime, a Section 1983 false arrest
claim would not necessarily imply the invalidity of an
underlying conviction for resisting arrest.

Elliot, 2014 WL

3446496, at *4.
Notwithstanding the above, the Court nonetheless finds that
the officers had probable cause to arrest Plaintiff.
15

Plaintiff

was charged not only with resisting arrest, but also with
hindering apprehension pursuant to N.J.S.A. § 2C:29-3 5 and
obstruction of justice pursuant to N.J.S.A. § 2C:29-1. 6

These

additional charges were based on Plaintiff’s failure to open the
door to his home when commanded by the police officers in an
effort to prevent the arrest of Bard.

(Rowe Decl., Ex. D.)

Plaintiff was initially convicted of these charges, the
municipal court judge having found that Plaintiff knew at the
time the officers commanded Plaintiff to open the door that
there was an arrest warrant for Bard and that Bard was in the
house.

(Pascal Decl., Ex. C at 127:2-4.)

Although Plaintiff’s convictions were reversed on appeal to
the Superior Court, such disposition of the charges does not
necessitate a conclusion that the police lacked probable cause
to arrest.

The existence of probable cause is determined “upon

the reasonable conclusion to be drawn from the facts known to

5

Pursuant to N.J.S.A. § 2C:29-3(a)(1), a person is guilty of
hindering apprehension “if, with purpose to hinder the
detention, apprehension, investigation, prosecution, conviction
or punishment of another . . . he . . . [h]arbors or conceals
the other[.]”
6

Pursuant to N.J.S.A. § 2C:29-1, a person is guilty of
obstruction “if he purposely obstructs, impairs or perverts the
administration of law or other governmental function or prevents
or attempts to prevent a public servant from lawfully performing
an official function by means of flight, intimidation, force,
violence, or physical interference or obstacle[.]”
16

the arresting officer at the time of the arrest.”

Devenpeck v.

Alford, 543 U.S. 146, 152, 125 S. Ct. 588, 160 L. Ed. 2d 537
(2006).

“Probable cause to arrest requires more than mere

suspicion . . . [but] it does not require that the officer have
evidence sufficient to prove guilt beyond a reasonable doubt.”
Orsatti v. N.J. State Police, 71 F.3d 480, 482–83 (3d Cir.
1995).

“Although the question of probable cause is usually one

for the jury, where the facts objectively show the existence of
probable cause, summary judgment is proper.”

Samoles v. Lacey

Twp., Civ. No. 12-3066, 2014 WL 2602251, at *13 (D.N.J. June 11,
2014) (citations omitted).
Here, the undisputed facts demonstrate that the task force
officers knocked on Plaintiff’s door, Plaintiff opened the
window overlooking the front of the house and asked the officers
what they wanted, and the officers responded that they had a
warrant for Bard and to open the front door.

Plaintiff walked

away from the window, informing the officers that they were not
coming in the house.

The officers continued to knock, directing

the occupants to open the door or it would be forcibly opened.
Plaintiff still refused to open the door, which at that point
required the officers to use a battering ram to access the
premises.

Plaintiff and Bard were not downstairs when the

officers entered and remained upstairs even after the officers
entered.

Given these facts, at the time Defendants arrested
17

Plaintiff, there was probable cause to support a charge of
obstructing the administration of law and hindering the
apprehension of Bard.

Plaintiff’s failure to provide access to

his residence immediately and to comply quickly with orders to
open the door, combined with knowledge that the officers were
there to arrest Bard, would give a reasonable police officer the
belief that Plaintiff intended to prevent the officers from
performing their official function.

The Court thus concludes

that there was probable cause to arrest Plaintiff for
obstruction and hindering apprehension, and that it was
appropriate to grant summary judgment in favor of Defendants on
the false arrest claim.
III. CONCLUSION
For the reasons discussed above, the only valid basis for
reconsideration asserted by Plaintiff concerns the false arrest
claim.

The Court finds, however, that the defendant officers

had probable cause to arrest Plaintiff on May 18, 2010 for
charges of obstruction and hindering.

Because the outcome

remains the same, the Court will deny Plaintiff’s motion for
reconsideration.
An Order consistent with this Opinion will be entered.

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
Dated: July 9, 2015
At Camden, New Jersey
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