PAYANO et al v. CITY OF CAMDEN et al
Filing
71
OPINION. Signed by Judge Noel L. Hillman on 2/1/2016. (dmr)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
HENRY J. PAYANO,
Civil No. 13-2528 (NLH)
Plaintiff,
OPINION
v.
CITY OF CAMDEN, et al.,
Defendants.
APPEARANCES:
CONRAD J. BENEDETTO
1814 East Route 70, Suite 350
Cherry Hill, NJ 08003
Attorney for Plaintiff Henry J. Payano
BRIAN E. TURNER
MEREDITH A. ACCOO
TIMOTHY J. GALANAUGH
CAMDEN CITY ATTORNEY
P.O. Box 95120
Camden, NJ 08101
Attorneys for City of Camden, City of Camden Police Dept.,
Tya Miles
HILLMAN, District Judge:
In this case, Henry J. Payano claims that the City of
Camden, the Camden City Police Department, and Camden Police
Officer Tya Miles violated his constitutional rights on August
19, 2012, when Officer Miles seized and used excessive force
against Payano.1
Before the Court is a motion for summary
judgment, pursuant to Federal Rules of Civil Procedure 56, filed
by the Defendants.
For the reasons expressed below, and
pursuant to Rule 78, this Court will deny the summary judgment
motion of Officer Miles, grant summary judgment in favor of the
City, and dismiss the Police Department as defendant.
I.
BACKGROUND
Plaintiff’s Complaint names the City of Camden, the Camden
Police Department, Camden Police Officer Tya Miles, John Does 1
through 10, and fictitious corporations 1 through 10.
He
asserts that on April 19, 2012, between 4:00 p.m. and 5:00 p.m.,
he was working at B & B Grocery, a store owned and operated by
his mother Alicia Peralta and his grandmother.
He alleges that
while he was sitting on a milk crate in front of the ice machine
outside the store and speaking with his next door neighbor, Pete
Garcia, who was sitting on his front steps, a police car driven
by Defendant Miles stopped in front of the store.
allegedly stated to Payano:
Miles
“I am getting tired of this shit.”
The action was initially filed by Alicia Peralta, Payano’s
mother and guardian, because Payano was a minor at the time the
events described in the Complaint occurred and at the time the
Complaint was filed. After Payano reached the age of majority,
the caption of the Complaint was amended to show that Payano is
the sole Plaintiff. (ECF No. 21.)
1
2
(ECF No. 1 at 3.)
According to the Complaint, when Miles asked
Payano to prove that he lived there, Payano entered the store
and asked his grandmother, who was working at the cash register,
to go upstairs to retrieve his identification.
Payano asserts
that, although he made no sudden movements, when he turned
around he saw Miles pointing her gun at him.
instructed him to exit the store.
She allegedly
He alleges that when he did
so, Miles grabbed him by the waistband, threw him onto the ice
machine, handcuffed him, and then threw him into the back of her
car.
Payano further asserts that when a second male police
officer arrived on the scene, Payano was removed from the police
car and his handcuffs removed.
Payano to hit him.
The second officer then told
Payano alleges that he “had not physically
resisted or assaulted Defendant Miles or the back-up police
officer in any way and the force used against him was
unnecessary, unreasonable, and excessive.”
Id. at 4.
Payano
further asserts that, as a result of the incident, he suffers
disc herniation, bulging discs, pain, and other injuries.
Payano claims that Defendants are liable under 42 U.S.C. §
1983 and the New Jersey Civil Rights Act for unlawful seizure
and use of excessive force in violation of the Fourth Amendment
and violation of the First Amendment (Counts One, Two, Three,
3
Seven, Nine); the City of Camden and the Camden Police
Department are liable for Miles’ violation of Payano’s
constitutional rights because Miles acted “pursuant to the
customs, policies, usages, practices, procedures, and rules of
the City of Camden, and the City of Camden Police Department,
all under the supervision of ranking officers of said
department” (Count Four)(ECF No. 1 at 8); Defendants are liable
for assault and battery under New Jersey law (Counts Five, Six);
and Defendants are liable under New Jersey law for intentional
infliction of emotional distress (Count Eight).
Defendants have filed a motion for summary judgment on all
claims, arguing that the undisputed facts show that Miles did
not use excessive force in violation of Payano’s constitutional
rights and that she is entitled to qualified immunity; the City
of Camden and its police department are not liable under 42
U.S.C. § 1983 for violation of Payano’s rights; and the claims
arising under New Jersey law lack merit.
In response, Payano
argues that the Court should deny summary judgment because there
are issues of material fact that must be resolved by a jury and
that Miles is not protected by qualified immunity.2
Neither Defendants nor Payano discuss the violation of the
First Amendment referenced in the Complaint. The Court will
presume that Payano has withdrawn the First Amendment claim.
2
4
II.
A.
DISCUSSION
Summary Judgment Standard
Rule 56(a) provides that a 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.”
Fed. R. Civ. P. 56(a); see also Sulima v.
Tobyhanna Army Depot, 602 F.3d 177, 184 (3d Cir. 2010).
“An
issue of material fact is ‘genuine’ if the evidence is such that
a reasonable jury could return a verdict for the nonmoving
party.”
Zavala v. Wal Mart Stores Inc., 691 F.3d 527, 545 (3d
Cir. 2012).
The substantive law governing the dispute will
determine which facts are material, and only disputes over those
facts “that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary
judgment.”
(1986).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
“[I]n ruling on a motion for summary judgment, ‘[t]he
evidence of the nonmovant is to be believed, and all justifiable
inferences are to be drawn in his favor.’”
Tolan v. Cotton, 134
S.Ct. 1861, 1863 (2014) (quoting Anderson v. Liberty Lobby, 477
U.S. at 255); see also Aman v. Cort Furniture Rental Corp., 85
F. 3d 1074, 1080-81 (3d Cir. 1996).
5
B.
Fourth Amendment
Plaintiff claims that his civil rights under the United
States Constitution and New Jersey Constitution were violated.
The New Jersey Civil Rights Act (“NJCRA”) creates a private
cause of action for violations of civil rights secured under the
New Jersey Constitution. See Trafton v. City of Woodbury, 799 F.
Supp. 2d 417, 443 (D.N.J. 2011). “This district has repeatedly
interpreted NJCRA analogously to § 1983.” Hottenstein v. City of
Sea Isle City, 977 F. Supp. 2d 353, 365 (D.N.J. 2013); see also
Rezem Family Associates, LP v. Borough of Millstone, 423 N.J.
Super. 103 (App. Div. 2011).
The Court will combine
consideration of Payano’s claims under the New Jersey
Constitution with the analysis of his Fourth Amendment claims.
To recover under 42 U.S.C. § 1983 a plaintiff must show:
(1) a person deprived him or caused him to be deprived of a
right secured by the Constitution or laws of the United States,
and (2) the deprivation was done under color of state law. See
West v. Atkins, 487 U.S. 42, 48 (1988); Adickes v. S.H. Kress &
Co., 398 U.S. 144, 152 (1970).
The Fourth Amendment safeguards “[t]he right of the people
to be secure in their persons . . . against unreasonable . . .
seizures.”
U.S. Const. amend. IV.
6
“[W]henever a police officer
accosts an individual and restrains his freedom to walk away, he
has ‘seized’ that person.”
(1968).
Terry v. Ohio, 392 U.S. 1, 16
An officer without a warrant or probable cause may
conduct a “brief, investigatory stop when the officer has a
reasonable, articulable suspicion that criminal activity is
afoot.”
Illinois v. Wardlow, 528 U.S. 119, 123 (2000).
Under
the reasonable suspicion standard, “the police officer must be
able to point to specific and articulable facts which, taken
together with rational inferences from those facts, reasonably
warrant intrusion.”
Terry, 392 U.S. at 21.
When a plaintiff alleges use of excessive force during an
investigation or arrest, the federal right at issue is the
Fourth Amendment right against unreasonable seizures. See Tolan
v. Cotton, 134 S.Ct. 1861, 1865 (2014); Graham v. Connor, 490
U.S. 386, 394 (1989).
“The use of excessive force is itself an
unlawful ‘seizure’ under the Fourth Amendment.”
Duffy, 446 F.3d 483, 496 (3d Cir. 2006).
Couden v.
“Determining whether
the force used to effect a particular seizure is ‘reasonable’
... requires ... careful attention to the facts and
circumstances of each particular case, 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
is actively resisting arrest or attempting to evade arrest by
7
flight.” Graham, 490 U.S. at 396.
In addition, the Third
Circuit instructs a court to consider “the possibility that the
persons subject to the police action are themselves violent or
dangerous, the duration of the 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.” Santini v.
Fuentes, 795 F.3d 410, 417 (3d Cir. 2015) (quoting Sharrar v.
Felsing, 128 F.3d 810, 822 (3d Cir. 1997)).
The inquiry is
objective and fact specific. See Graham, 490 U.S. at 397;
Santini, 795 F.3d at 417.
“Reasonableness is to be evaluated
from the perspective of a reasonable officer on the scene,
rather than with the 20/20 vision of hindsight.” Carswell v.
Borough of Homestead, 381 F.3d 235, 240 (3d Cir. 2004) (internal
quotation marks and citation omitted).
In resolving questions of qualified immunity at summary
judgment, a court must first ask “whether the facts ‘[t]aken in
the light most favorable to the party asserting the injury, . .
. show the officer’s conduct violated a [federal] right.”
Tolon, 134 S.Ct. at 1865 (quoting Saucier v. Katz, 533 U.S. 194,
201 (2001)).
The second prong of the qualified immunity
analysis requires a court to determine “whether the state of the
law at the time of an incident provided fair warning to the
8
defendants that their alleged [conduct] was unconstitutional.”
Tolon, 134 S.Ct. at 1866 (citation and internal quotation marks
omitted).
Relying on police reports, Miles argues that there is no
genuine issue of material fact regarding the Fourth Amendment
and use of excessive force and that she is entitled to summary
judgment as a matter of law under 42 U.S.C. § 1983 and New
Jersey law.
Miles admits that she pointed her gun at Payano but
she argues that Miles reasonably believed that Payano was
committing a disorderly persons offense by “engag[ing]
in
fighting or threatening . . . or [that he was] “creat[ing] a
hazardous or physically dangerous condition by any act which
serves no legitimate purpose of the actor” in violation of N.J.
Stat. Ann. § 2C:33-2(a).
Miles claims that because Payano “took
a fighting stance with closed fists, during a conversation with
Officer Miles and one of two males sitting on a step nearby
Plaintiff stood up as Officer Miles was interacting with
Plaintiff,” Miles “reasonably believed she had a duty to arrest
Plaintiff and use her training to use the appropriate procedures
to ensure her safety.” (ECF No. 62 at 32.)
Miles maintains that
because Payano “verbally and physically resisted Officer Miles
during the course of their brief interaction on April 19, 2012[,
she] put Plaintiff up against the ice machine outside of B & B
9
Grocery and handcuffed him to subdue him and guide him to submit
to arrest and custody.”
Id. at 32-33.
Defendants’ argument ignores the deposition of Payano and
the legal requirement that this Court is required to view the
facts in the light most favorable to the party opposing summary
judgment.
Payano’s description of the incident, as set forth in
his deposition, conflicts with Miles’ version of the incident.
In his deposition, Payano testified that the day after Miles had
given his mother parking tickets and his mother had complained
to Miles’ supervisor about her conduct, Payano was sitting on a
milk crate in front of his family’s grocery store and speaking
with his neighbor Pete Garcia, who was sitting on the front
stoop.
Payano testified that he observed Officer Miles drive
around the block four times:
“She kept on driving around the
block, laughing, ha, ha, ha.
Drive back.
said, oh, I’m tired of this asshole.
that.
At one point she
Sorry for saying it like
She pulled up, and that’s when everything happened.”
(ECF No. 62-6 at 16.)
Payano further testified that the fourth
time she drove around the block, Miles parked in front of
Garcia’s property and the ice machine and the following
occurred:
Payano: And she told me, I’m tired – I’m tired of
this shit. She came – she pulled up. She tried to
ask me for identification. I told her, I said – I
10
told her I don’t have it on me.
to get it. I’m going inside.
Q:
I have to go inside
Yes?
Payano: My identification was upstairs. I told my
grandmom, grandmom, could you get my ID upstairs?
Q:
Yes?
Payano: By the time I turned around, she had a gun
pointed out at me telling me to come outside.
Q:
Yes?
Payano:
Q:
She grabbed me, threw me on the freezer.
Yes?
Payano: Put the cuff on me, put me in the car. And
three minutes later, five minutes later, that’s when
the other officer came. They took me out the car,
took the cuff[s] off me.
Q:
Yes?
Payano: And the cop, you tough? Swing. That’s when
they took me off the cuff. They like [told me to]
swing. And I ain’t do nothing. They put me back in
handcuff[s], took me to the station.
(ECF No. 62-6 at 19.)
Payano also testified that he lost consciousness for a
period of time when Miles threw him against the ice machine,
that his family took him to the emergency room at Virtua West
Jersey on the day of the incident after the police released him
from custody, and that he received treatment at the emergency
11
room and subsequently from other doctors for injuries to his
back, neck, shoulder and mental health. (ECF No. 62-6 at 9.)
By disregarding Payano’s deposition and his version of
events, Miles argues that the facts respecting the excessive
force claim are undisputed and that she is entitled to judgment
on the Fourth Amendment claims.
However, as explained above, a
court may not resolve factual disputes on summary judgment and
is required to “view the evidence in the light most favorable to
the opposing party.”
See Tolon, 134 S.Ct. at 1866 (quoting
Adickes, 398 U.S. at 157).
As the Supreme Court recently
emphasized, “[t]he witnesses on both sides come to this case
with their own perceptions, recollections, and even potential
biases.
It is in part for that reason that genuine disputes are
generally resolved by juries in our adversarial system.”
Tolon,
134 S.Ct. at 1868.
Viewing the evidence in the light most favorable to Payano,
this Court finds that Payano’s deposition creates disputed
issues of material fact with respect to whether Miles unlawfully
seized Payano and whether she used excessive force in violation
of the Fourth Amendment.
The conflicting facts, taken in the
light most favorable to Payano, demonstrate that, by pointing
her gun at Payano, throwing him on to an ice machine,
handcuffing him, and transporting him to the police station,
12
Miles violated Payano’s Fourth Amendment rights prohibiting
seizure without reasonable articulable suspicion and use of
excessive force.
Moreover, if Payano’s version of events is
true Miles is not entitled to qualified immunity because, in
2012 a reasonable police officer would have known that Miles’
conduct violated Payano’s Fourth Amendment rights.
First, the facts viewed in the light most favorable to
Payano demonstrate that Miles seized Payano without reasonable
suspicion that criminal activity was afoot.
Payano testified
that while he was working at the grocery store, he was sitting
on a milk crate outside the store near the ice machine and
speaking with his next door neighbor, who was sitting on the
stoop, for about one-half hour before Miles directed him to
provide identification, pointed her gun at him, handcuffed him,
and took him to the police station.
Under Payano’s version of
events, nothing he did suggested that he was acting suspiciously
or unlawfully.
Therefore, under the facts presented in Payano’s
deposition, a reasonable police officer would not have suspected
that criminal activity was afoot.
In other words, it would have
been clear to a reasonable police officer that Payano’s conduct,
viewed in the light most favorable to him, did not provide
reasonable suspicion of illicit activity necessary for a Terry
stop.
See Couden v. Duffy, 446 F.3d 483, 495-96 (3d Cir. 2006)
13
(holding that conduct consisting of “a young man exiting a car
parked near a house, walking from the car into the garage of the
house while carrying a skateboard and then looking into a window
of the house, turning on its brights, and honking” did not
provide reasonable suspicion); Johnson v. Campbell, 332 F.3d
199, 209 (3d Cir. 2003) (finding no basis for reasonable
suspicion where the person was “drinking coffee, flipping
through a newspaper, pacing, and rubbing his head”).
Second, Payano’s version of the incident, if believed by a
jury, could demonstrate that Miles used excessive force against
Payano when she pointed a gun at his head and threw him on to
the ice machine.
In 2012, a reasonable officer would have known
that pointing a gun at Payano and throwing him on to the ice
machine was excessive, given that, under Payano’s version of
events, he did nothing threatening when he got up from the milk
crate and went into the grocery to ask his grandmother to get
his identification.
See Couden, 446 F.3d at 497 (finding that
officers violated Adam Couden’s clearly established Fourth
Amendment rights when they jumped on him, pointed a gun at his
head, handcuffed him and sprayed him with mace); Baker v. Monroe
Twp., 50 F.3d 1186, 1193 (3d Cir. 1995) (finding that officers
violated the Fourth Amendment by pointing guns at family
members, pushing them down to the ground and handcuffing them
14
where there was “simply no evidence of anything that should have
caused the officers to use the kind of force they are alleged to
have used”).3
Because the facts concerning the incident are disputed and
a jury could find that Miles violated Payano’s Fourth Amendment
rights, the Court will deny summary judgment on Payano’s Fourth
Amendment seizure and excessive force claims against Officer
Miles.
C.
Municipal Liability
The City of Camden argues that there are no genuine issues
of material fact and the City is entitled to judgment as a
matter of law on Payano’s claim that it is liable under § 1983
for causing Miles’ violation of Payano’s Fourth Amendment
rights.
Payano argues that because his expert’s report
establishes that the Camden Police were deliberately indifferent
See also Robinson v. Solano County, 278 F.3d 1007, 1015 (9th
Cir. 2002) (en banc) (finding the law clearly established in
2002 recognized the “general principle that pointing a gun to
the head of an apparently unarmed suspect during an
investigation” can constitute excessive force, “especially where
the individual poses no particular danger”); Holland ex rel.
Overdorff v. Harrington, 268 F.3d 1179, 1192-93 (10th Cir.
2001)(“The display of weapons, and the pointing of firearms
directly at persons inescapably involves the immediate threat of
deadly force. Such a show of force should be predicated on at
least a perceived risk of injury or danger to the officers or
others, based upon what the officers know at that time.”).
3
15
to the need to train and more closely supervise police officers
generally and Officer Miles in particular, the Court must deny
summary judgment on Payano’s § 1983 claim against the City.
The parties agree that “a local government may not be sued
under § 1983 for an injury inflicted solely by its employees or
agents.
Instead, it is when execution of a government’s policy
or custom, whether made by its lawmakers or by those whose
edicts or acts may fairly be said to represent official policy,
inflicts the injury that the government as an entity is
responsible under § 1983.”
Monell v. Dept. of Social Services
of City of New York, 436 U.S. 658, 694 (1978).
“[A] plaintiff
seeking to establish municipal liability on the theory that a
facially lawful municipal action has led an employee to violate
a plaintiff’s rights must demonstrate that the municipal action
was taken with deliberate indifference as to its known or
obvious consequences.”
Bd. Of County Com’rs of Bryan County,
Okl. V. Brown, 520 U.S. 397, 407 (1997).
As the Court
explained,
[i]f a [police training] program does not prevent
constitutional violations, municipal decisionmakers
may eventually be put on notice that a new program is
called for. Their continued adherence to an approach
that they know or should know has failed to prevent
tortious conduct by employees may establish the
conscious disregard for the consequences of their
action - the deliberate indifference - necessary to
trigger municipal liability . . . In addition, the
16
existence of a pattern of tortious conduct by
inadequately trained employees may tend to show that
the lack of proper training, rather than a one-time
negligent administration of the program or factors
peculiar to the officer involved in a particular
incident, is the moving force behind the plaintiff's
injury.
Bryan County, 520 U.S. at 407-408 (citations and internal
quotation marks omitted).
For example, in Connick v. Thompson, 563 U.S. 51,
, 131
S.Ct. 1350, 1358 (2011), a jury found that the Orleans Parish
District Attorney’s Office had violated Thompson’s rights under
Brady v. Maryland, 373 U.S. 83 (1963), because Harry Connick,
the District Attorney/policymaker, failed to adequately train
his attorneys about their duty under Brady to produce
exculpatory evidence and this lack of training had caused nondisclosure of an exculpatory lab report identifying the blood
type of the perpetrator in a robbery case wherein Thompson was
wrongly convicted.
The Supreme Court held that the § 1983 case
had improperly gone to the jury because, absent a showing of a
pattern of Brady violations, Thompson had not shown that Connick
”was on actual or constructive notice of, and therefore
deliberately indifferent to, a need for more or different Brady
training.” Connick, 131 S.Ct. at 1358.
The Court rejected the
notion that a “showing of obviousness can substitute for the
pattern of violations ordinarily necessary to establish
17
municipal culpability,” Connick, 131 S.Ct. at 1361, and held
that the district court “should have granted Connick judgment as
a matter of law on the failure-to-train claim because Thompson
did not prove a pattern of similar violations that would
‘establish that the policy of inaction [was] the functional
equivalent of a decision by the city itself to violate the
Constitution.’”
Id. at 1366 (quoting Canton, 489 U.S. at 395).
See also Bielevicz v. Dubinon, 915 F.2d 845, 851 (3d Cir. 1990)
(“[T]o sustain a § 1983 action against the City, plaintiffs must
[show] that policymakers were aware of similar unlawful conduct
in the past, but failed to take precautions against future
violations, and that this failure, at least in part, led to
their injury.”)
A municipal policymaker is a person who is “responsible for
establishing final government policy respecting” the activity in
question and “whether an official had final policymaking
authority is a question of state law.”
Cincinnati, 475 U.S. 469, 483 (1986).
Pembaur v. City of
Under New Jersey law, the
Chief of Police is the relevant policymaker for a municipal
police department.
See Hernandez v. Bor. Of Palisades Park
Police Dept., 58 F. App’x 909, 913 (3d Cir. 2003)(citing N.J.
Stat. Ann. § 40A:14-118).
Unlike Thompson in Connick, in this
case, Payano presented an expert report.
18
The report indicates
that Payano’s expert, Richard Rivera, examined the records
maintained by the Camden City Police Department concerning the
incidents involving Miles, Payano and his mother on April 18 and
19, 2012, the Internal Affairs Department’s investigation of the
incidents concerning Miles on April 18 and 19, 2012, as well as
internal affairs annual summary reports, and use of force
incident reports.
(ECF No. 64-6.)
Rivera noted that, although Payano’s grandmother owned the
grocery store for 25 years and she and her family parked their
vehicles next to the store for many years without incident, on
April 18, 2012, Officer Miles issued traffic tickets to three
vehicles parked next to the store, two of which were owned by
Payano’s family members.
Miles reported that “at least three
persons were yelling, cursing and charging at Officer Miles
after she wrote the tickets [and she] requested the individuals
produce identification, including from an older woman that
called Miles a ‘bitch’ in Spanish.”
Id. at 5-6.
Rivera further noted that Miles believed that Alicia
Peralta, Payano’s mother, had called the Internal Affairs Unit
or her supervisor during the incident.
According to Rivera’s
report, the records showed that, once a Sgt. Tunstall arrived,
Miles insisted that he obtain the identities of the three
persons and she drafted disorderly conduct charges against
19
Alicia Peralta and Rahademes Bernard and mailed the summonses to
them.
Later that night at about 11:00 p.m. Miles returned to
the intersection where the grocery is located and issued
additional summonses to Peralta.
Peralta then went to the
police station to speak with Sgt. Tunstall about Miles but she
was told that he was no longer on duty.
According to the
report, on the morning of April 19, 2012, Peralta went to the
police station and filed a formal complaint against Miles.
Mr. Rivera’s review of Officer Miles’ training records
uncovered that her 2010 police academy record contained the
following comments from an instructor:
Miles was a bit too immature for the rigors of the
academy . . . Her study habits were nonexistent.
This was evident in her academic standing average . .
. Miles was 71st out of 71 recruits academically.
Physical training is another area of concern. Miles
was lazy and just did enough to get by evidenced by
her lack of progress in relation to entryway and
exercise totals. Firearms was another difficult area
for Miles . . . Her problem is a lack of
concentration and lazy demeanor. Miles will struggle
with her weight if she does not continue on a PT
regiment. Additionally, Miles must be assigned a
detail oriented, strong, task minded FTO or she will
experience problems.
(ECF No. 64-6 at 20.)
Rivera concluded that, if Internal Affairs or the Police
Chief had reviewed the training and internal affairs records of
Officer Miles, as he did, their review would have indicated a
20
need for greater supervision and training of Miles.
Id. at 11
(“The frequency and pattern of complaints against Miles in an
agency using an early warning system as described in Camden’s
Internal Affairs Policy (CAM 0826) would have triggered a
response from the IA Commander but did not.”)
In addition, Rivera’s review of the Internal Affairs
records regarding excessive force complaints (which were
extremely difficult for Rivera to obtain) showed, for example,
that in 2001, only 11 of 128 excessive force allegations were
investigated; in 2002 only six out of 117 excessive force
allegations were investigated; and the 2009 audit of backlogged
internal affairs cases revealed 227 open cases.
Rivera
concluded that, although the system in place allowed
policymakers to identify officers who engaged in patterns of
misconduct, “[t]hrough their inaction and custom of nonintervention they tacitly approved officer misconduct.”
(ECF
No. 64-6 at 10.)
In its reply brief, the City argues that “[n]one of the
facts presented by Plaintiff in his Opposition Brief demonstrate
a policy or custom during the relevant time period that caused
Plaintiff’s alleged injuries and there is no evidence that the
City of Camden or its Police Department or any members thereof
21
were deliberately indifferent to Plaintiff’s rights.” (ECF No.
66 at 18-19.)
We agree with the City.
The Supreme Court has explained that, “when city
policymakers are on actual or constructive notice that a
particular omission in their training program causes city
employees to violate citizens' constitutional rights, the city
may be deemed deliberately indifferent if the policymakers
choose to retain that program.
The city's policy of inaction in
light of notice that its program will cause constitutional
violations is the functional equivalent of a decision by the
city itself to violate the Constitution.”
Connick, 563 U.S. at
61-62 (citations and internal quotation marks omitted).
Even, as we must, construing the evidence in the light most
favorable to Payano, including the Rivera report, this Court
finds that there is insufficient evidence for a jury to find the
City of Camden liable under § 1983 for causing any violation of
Payano’s Fourth Amendment rights.
First, much of the evidence
relied upon by Rivera is very old.
It is difficult to discern
how an analysis of the volume of investigated excessive force
claims from a decade or more before the alleged incident could
have any bearing on the City’s responsibilities for Miles’s
conduct in 2012.
The same holds true for a backlog of excessive
force investigations from the year (2009) before Miles graduated
22
from the police academy (2010) and three years before the event
at issue (2012).
While the Rivera report relies heavily on
Miles’s poor performance in the academy when compared to her
classmates, nothing in the cited academic record suggests
directly or indirectly any propensity of Miles toward excessive
force or any other constitutional torts.
The remainder of Rivera’s report characterizes the City of
Camden’s internal affair unit as incompetent and in disarray in
2012, the year before the city force was disbanded and a county
police force was created to police the city.
Rivera’s
description of the state of affair in 2012 may be true but, at
best, his conclusions merely support a claim of vicariously
liability for Miles’s action based on negligence.
That,
however, is not the standard.
Plaintiff must proffer sufficient evidence from which a
reasonable juror could conclude that the relevant policymakers
adopted a policy to not investigate and not punish excessive
force used by Camden officers during the relevant time period or
were deliberately indifferent to such conduct.
Plaintiff,
however, did not take the deposition of a single Camden
policymaker, analyze Camden’s institutional treatment of
excessive force complaints (as a opposed to other forms of
complaints) to show a pattern of indifference during the
23
relevant time period, or identify any policy, custom, or
practice by the City, de facto or otherwise, which condoned,
encouraged, and excused claims of excessive force.
If anything,
the only evidence on the issue suggests the opposite.
Sgt.
Tunstall cautioned Miles on the day in question that verbal
abuse from citizens was to be an expected occurrence in Camden
requiring restraint and apparently went out of his way to
diffuse the ongoing dispute between Peralta and Miles.
Moreover, Peralta’s complaints resulted in an investigation of
Miles’s alleged conduct.
Most importantly, Plaintiff has failed to show how any
Camden policy, custom, or practice caused the alleged assault on
the Plaintiff.
Rivera’s report focuses on the after-the-fact
internal affairs investigation of Miles’s conduct.
Rivera’s
criticism of that process, even if valid, cannot supply the
missing causation.
Only in the face of some evidence that the
City knew that Miles was prone to the use of excessive force and
adopted a policy to ignore that fact prior to the incident with
Plaintiff could the element of causation be established.
There
is simply no evidence in the record to support such a claim.
In sum, absent some evidence that the City of Camden chose
to ignore claims of excessive force in 2012, failed to train
officers on the proper use of force, or ignored evidence that
24
Miles was prone to such conduct herself there is insufficient
records evidence from which a reasonable juror could conclude
the City was deliberately indifferent to the need for additional
training and supervision of Miles or any other officer for that
matter.
The Court will, accordingly, grant the City of Camden’s
motion for summary judgment.
Moreover, the Court will dismiss
the Camden Police Department as a Defendant because a police
department is not a person under § 1983 independent of the
municipality itself.
See Padilla v. Twp. of Cherry Hill, 110 F.
App’x 272, 278 (3d Cir. 2004); Adams v. City of Camden, 461 F.
Supp. 2d 263, 266 (D.N.J. 2006).
D.
State Claims
Defendants argue that Payano has presented no facts to
support his claims for assault and battery and intentional
inflection of emotional distress.
(ECF No. 62 at 41-42.)
Payano argues that the Court should deny summary judgment on
these claims because Payano’s deposition testimony creates
factual disputes regarding these claims.
“A party moving for summary judgment must clear two hurdles
to meet its initial burden.
It must show that (1) there are no
genuine questions of material fact and (2) the party is entitled
to judgment as a matter of law.”
Howard Hess Dental
Laboratories Inc. v. Dentsply International, Inc., 602 F.3d 237,
25
251 (3d Cir. 2010).
If the movant “fail[s] to show the absence
of any disputed material fact . . , the District Court err[s] in
granting summary judgment.”
Adickes v. S.H. Kress & Co., 398
U.S. 144, 148 (1970).
For the same reasons we expressed regarding Plaintiff’s §
1983 claim, the Court finds that Defendants have failed to carry
their burden under Rule 56 of showing that there are no genuine
issues of material fact and that they are entitled to judgment
as a matter of law on Payano’s New Jersey claims for assault,
battery, and intentional infliction of emotional distress.
The
Court will deny summary judgment on these claims.
III.
CONCLUSION
For the reasons set forth above, the Court will grant in
part and deny in part Defendants’ summary judgment motion and
dismisses the Camden Police Department as defendant.
An Order
consistent with this Opinion will be entered.
/s/Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
DATED:
February 1, 2016
At Camden, New Jersey
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