BARNES v. WILLIAM et al
Filing
89
OPINION Signed by Chief Judge Jerome B. Simandle on 6/24/16. (dd, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
JAMES BARNES,
HONORABLE JEROME B. SIMANDLE
Plaintiff,
Civil Action
No. 13-4239 (JBS-KMW)
v.
WILLIAM EDWARDS, et al.,
OPINION
Defendants.
APPEARANCES:
JAMES GREENBERG, ESQ.
JOHN P. KAHN, ESQ.
Duane Morris, LLP
1940 Route 70 East, Suite 200
Cherry Hill, New Jersey 08003
Attorneys for Plaintiff James Barnes
CHRISTOPHER C. JOSEPHSON, DEPUTY ATTORNEY GENERAL.
Office the Attorney General for the State of New Jersey
R.J. Hughes Justice Complex
PO Box 112
Trenton, New Jersey 08625
Attorneys for Defendants William Edwards and Eric Gorecke
SIMANDLE, Chief District Judge:
INTRODUCTION
This matter comes before the Court on Defendants William
Edwards’ and Eric Gorecke’s Motion for Summary Judgment. Docket
Entry 76. Plaintiff James Barnes opposes the motion. Docket
Entry 85. The motion is being considered on the papers pursuant
to Fed. R. Civ. P. 78(b). For the reasons set forth below, the
motion is granted as to the false arrest and retaliatory arrest
claims, and the motion is otherwise denied.
BACKGROUND
A. Procedural History
Plaintiff filed a complaint pursuant to 42 U.S.C. § 1983 on
or about June 30, 2013, alleging Defendants assaulted him and
had been abusing their positions as his parole officers to
extort $100 a month from him since September 2012. Complaint,
Docket Entry 1. The Court administratively terminated the
complaint on August 16, 2013, for failure to submit a complete
in forma pauperis application and directed Plaintiff to resubmit
an application. Docket Entry 3. Plaintiff submitted a new
application, and the Court reopened the matter for review and
permitted the complaint to proceed on November 4, 2013. Docket
Entry 9.
Discovery commenced, and on October 21, 2014, Magistrate
Judge Karen M. Williams ordered the appointment of counsel for
Plaintiff. Counsel entered an appearance and filed an amended
complaint on January 9, 2015, Docket Entry 64, and a corrected
version on January 15, 2015. Corrected Amended Complaint
(“Amended Complaint”), Docket Entry 65. Defendants filed the
instant motion for summary judgment on November 13, 2015. Motion
for Summary Judgment, Docket Entry 76. Plaintiff filed
2
opposition to the motion on January 5, 2016. Plaintiff’s
Opposition, Docket Entry 85.
B. Statement of Facts
1. Allegations in Pleadings
Plaintiff’s Amended Complaint asserts claims under the
First, Fourth, and Fourteenth Amendments, 42 U.S.C. § 1983, the
New Jersey State Constitution, the New Jersey Civil Rights Act,
N.J. STAT. ANN. § 10:6-2 (“NJ CRA”), and the New Jersey Tort
Claims Act, N.J. STAT. ANN. § 59:1-1 et seq. (“NJ TCA”).
Plaintiff was released from prison and began serving a
five-year period of parole on June 16, 2012. Amended Complaint ¶
8. He moved in with his fiancée in Woodbine, New Jersey.1 Id.
Shortly after Plaintiff’s release, his assigned parole officer,
William Edwards, told Plaintiff that if Plaintiff paid him $100
per month, he would “issue favorable parole reports which would
allow [Plaintiff’s] parole to be reduced by two years.” Id. ¶¶
9-10. Plaintiff began paying Officer Edwards $100 per month out
of funds he received through public assistance programs. Id. ¶¶
11-12.
According, to Plaintiff’s Amended Complaint, Officer
Edwards and his partner, Eric Gorecke, visited Plaintiff’s home
once a month in order to ensure Plaintiff was complying with the
1
Plaintiff and his fiancée married in March 2013. Id. ¶ 8.
3
terms of parole. Id. ¶¶ 9, 11. During their visits, Officer
Edwards would escort Plaintiff into a bathroom, purportedly to
conduct a urine drug test. Id. ¶ 11. Instead, Plaintiff would
pay Officer Edwards $100. Officer Gorecke was never present
during the exchange of money. Id. ¶ 14. Plaintiff continued to
pay Officer Edwards for eight months, with his last payment
taking place in April 2013. Id. ¶ 14.
On May 2, 2013, Officers Edwards and Gorecke arrived at
Plaintiff’s home between 9:00 and 10:00 in the morning. Id. ¶
15. As Plaintiff was not expecting them until later in the day,
he called his wife and kept her on speakerphone. Id. ¶ 16.
Officer Edwards directed Plaintiff to accompany him to the
bathroom for a urine test, and Plaintiff complied with the
directive. Id. ¶¶ 18-19. Once they entered the bathroom, located
on the second floor, Officer Edwards demanded $100 from
Plaintiff. Id. ¶¶ 18-20. Plaintiff refused to pay the money and
told Officer Edwards he was going to report the payments to the
authorities and his wife. Id. ¶ 21. Following Plaintiff’s
refusal to pay, Officer Edwards announced he was arresting
Plaintiff for testing positive for cocaine. Id. ¶¶ 22, 25.
Officer Edwards later claimed Plaintiff had admitted to using
cocaine and had signed a form to that effect, but Plaintiff
denies having done so. Id. ¶¶ 25-26.
4
Plaintiff thereafter left the bathroom and continued to
talk with his wife on his cellphone. Id. ¶ 27. He told her he
was being arrested. Id. While Plaintiff was on the phone,
Officer Edwards struck Plaintiff’s wrist with his handcuffs in
order to knock the phone out of Plaintiff’s hands. Id. ¶ 28.
Plaintiff dropped the phone and fell face-down onto his bed. Id.
¶ 29.
Plaintiff alleges Officer Edwards then climbed on top of
Plaintiff, straddled Plaintiff’s back, and punched Plaintiff in
his lower back and head, resulting in pain and bruising. Id. ¶
30. Although Plaintiff was not resisting or threatening the
officers, Officer Gorecke grabbed Plaintiff’s legs, which were
hanging over the edge of the bed, and pulled him onto the
hardwood floor. Id. ¶¶ 31-32. He then proceeded to kick
Plaintiff in the back. Id. ¶ 32. The officers handcuffed
Plaintiff and dragged him down the stairs to the car. Id. ¶ 33.
B. Defendants’ Statement of Material Facts
Defendants assert that as part of Plaintiff’s five-year
term of mandatory parole supervision, he was required to refrain
from the use, possession, or distribution of controlled
dangerous substances and to participate and complete the
Community Resource Center Program (“CRC”). Defendants’ Statement
of Material Facts (“DSOF”), Docket Entry 76-7 ¶¶ 2-4. Plaintiff
admitted to having used cocaine between December 24, 2012 and
5
January 8, 2013. Id. ¶ 6; Declaration of Dina Rogers (“Rogers
Dec.”), Docket Entry 76-2 at 21. He also admitted to having used
cocaine on March 14, 2013. DSOF ¶ 7; Rogers Dec. at 18.
Officers Edwards and Gorecke visited Plaintiff at home on
May 2, 2013. DSOF ¶ 8. Officer Edwards spoke with his supervisor
Sergeant Tina Wheaton before arriving at Plaintiff’s, at which
time she instructed Officer Edwards to arrest Plaintiff if he
continued to test positive for prohibited substances. Id. ¶ 9.
Officer Edwards accompanied Plaintiff into the bathroom for a
urine screening, which ended in a positive result for cocaine.
Id. ¶ 10. Plaintiff then admitted he had used cocaine during a
visit to Newark on April 30, 2013. Id. ¶ 11. Pursuant to
Sergeant Wheaton’s instructions, Officer Edwards told Plaintiff
he was under arrest for his repeated use of cocaine and failure
to complete the CRC program. Id. ¶ 12.
Plaintiff did not submit to the arrest and instead exited
the bathroom, picked up his cellphone, and began talking with
his wife. Id. ¶ 13. Officer Edwards ordered Plaintiff to place
his hands behind his back; however, Plaintiff informed Officer
Edwards that he was not going anywhere until his wife came home.
Id. ¶ 14. Officer Edwards attempted to restrain Plaintiff, but
Plaintiff pulled away, causing both of them to fall onto
Plaintiff’s bed. Id. ¶¶ 15-16. Officer Edwards straddled
Plaintiff’s back in order to handcuff him. He was able to place
6
the cuffs around Plaintiff’s right wrist, but could not cuff the
left hand because Plaintiff was holding the phone in that hand.
Id. ¶¶ 17-18. Officer Gorecke entered the bedroom and restrained
Plaintiff’s legs to stop Plaintiff from moving his legs. Id. ¶
19. After a few seconds, Officer Gorecke released Plaintiff’s
legs and cuffed Plaintiff’s left hand. Id. ¶¶ 19-20. They
escorted Plaintiff to their car without incident. Id. ¶ 22.
Plaintiff never indicated he was in any kind of pain. Id. ¶¶ 2324.
Intake Officer Raymond Hammer, Nurse Lori Ross, and Dr.
Henry Yu evaluated Plaintiff upon his arrival at Cape May
Correctional Center (“CMCC”). Id. ¶ 25. Plaintiff reported to
Nurse Ross that he had bruises and pain on his left side and
back of his head, id. ¶ 28, but none of the staff who evaluated
Plaintiff noticed any injuries on him. Id. ¶¶ 26-29; Rogers Dec.
Exhibit E, Docket Entry 78 at 63. Plaintiff’s chest was x-rayed
a few days later to check for tuberculosis, and no cracked or
broken ribs were detected. DSOF ¶ 30. Plaintiff did not tell Dr.
Yu that he had been assaulted, nor did Dr. Yu observe any
injuries consistent with an assault. Id. ¶ 32.
On May 21, 2013, Plaintiff appeared before a hearing
officer for a parole revocation hearing. Id. ¶ 33. The hearing
officer “noted that Barnes was charged with violating conditions
which required him to refrain from the use, possession or
7
distribution of a controlled dangerous substance, and to
participate in and successfully complete the [CRC].” Id. ¶ 34.
After considering the evidence, which included testimony from
Officers Edwards and Gorecke as well as documentary evidence of
prior admissions of cocaine use, the hearing officer found
Plaintiff violated the terms of his parole by using cocaine and
failing to attend CRC as scheduled. Id. ¶ 35. She recommended
the revocation of Plaintiff’s parole. Id. A Parole Board panel
adopted the hearing officer’s findings and recommendation,
formally revoking Plaintiff’s parole on July 3, 2013. Id. ¶ 36.
Plaintiff appealed, and the full Parole Board affirmed the
panel’s decision. Id. ¶¶ 37-38. Plaintiff did not seek review of
the decision in the New Jersey Superior Court Appellate
Division. Id. ¶ 39.
Plaintiff had written to New Jersey Governor Chris Christie
prior to the formal revocation of his parole alleging that
Officers Edwards and Gorecke had been extorting him for $100 a
month in exchange for a shortened parole term. Id. ¶ 40. The
letter also alleged that the officers had assaulted him on the
morning of his arrest. Id. ¶ 41. Specifically, Plaintiff alleged
that “after he and Edwards fell on to the bed, Edwards punched
him in the back of the head and in the kidney area several
times, and then, when he fell to the floor, Gorecke kicked him
in the ribs several times.” Id. ¶ 42. He also stated that when
8
his wife returned home, she found the bedroom “‘tore up very
bad’” and took pictures of the damage. Id. ¶ 44.
Plaintiff’s allegations were referred to the Parole Board’s
Office of Professional Standards, and Senior Investigator Mark
Higginbotham conducted the investigation into whether the
officers received $100 per month from Plaintiff, whether they
used excessive force during Plaintiff’s arrest, and whether
Officer Edwards falsely reported conducting a urine test
resulting in the positive cocaine result on May 2, 2013. Id. ¶¶
45-46. Investigator Higginbotham interviewed both officers,
Plaintiff, Plaintiff’s wife, Dr. Yu, Nurse Ross, and other CMCC
corrections officers during his investigation. Id. ¶¶ 47-48.
During his interview, Plaintiff denied Officer Gorecke was
involved in the extortion and stated he had only been paying
Officer Edwards. Id. ¶ 49. Plaintiff did not believe Officer
Gorecke knew anything about Officer Edwards’ alleged actions.
Id. According to Investigator Higginbotham, Plaintiff’s wife
made statements that were inconsistent with Plaintiff’s version
of events. Id. ¶¶ 52-54. Investigator Higginbotham ultimately
concluded Plaintiff’s allegations were unfounded due to
Plaintiff’s changing story and lack of proof. Id. ¶¶ 55-61;
Rogers Dec. Exhibit E at 16-17.
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C. Plaintiff’s Statement of Material Facts
Plaintiff admits that he is subject to a five-year period
of parole supervision as part of his sentence. Plaintiff’s
Statement of Facts (“PSOF”), Docket Entry 85-22 ¶ 1. He disputes
Defendants’ interpretation of the Conditions of Supervision,
Plaintiff’s Response to Defendants’ Facts (“PR”), Docket Entry
85-21 ¶¶ 4-5, but agrees he was required to submit to random
drug and alcohol testing, PSOF ¶ 16. He admits he signed an
Admission of Use Form on January 9, 2013, in which he admitted
to using cocaine on December 24, 2012 and January 8, 2013. Id.
¶¶ 23, 26. He later received a Notice of Imposition of Special
Condition form requiring him to “‘enroll in, comply with the
conditions of, and successfully complete the STEPS treatment
program.’” Id. ¶ 28. He was discharged from the STEPS program
after forty-five days due to a medical condition, id. ¶ 31, and
was thereafter referred to the CRC on March 14, 2013, id. ¶ 34.
He tested positive for cocaine, but denied any use. Id. ¶ 35.
Laboratory testing confirmed cocaine use, id. ¶ 38, and
Plaintiff was referred to inpatient treatment until he was
discharged on March 26, 2013 due to a seizure, id. ¶¶ 40-42.
Plaintiff was scheduled for an intake interview with Cape
Counseling on April 30, 2013; however, he did not make that
appointment because he went to Newark to check on his daughter
after she was involved in a shooting. Id. ¶¶ 43, 45. Officer
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Edwards received multiple calls from Plaintiff’s wife regarding
the counseling appointment and became suspicious of Plaintiff’s
activities. Id. ¶ 47. On May 2, 2013, Sergeant Wheaton told
Officer Edwards to take Plaintiff into custody if Plaintiff
tested positive. Id. ¶ 48.
Plaintiff agrees that Officers Edwards and Gorecke arrived
at his home early on May 2, 2013, and that he was on the phone
with his wife when they arrived. Id. ¶¶ 53-55. He also agrees
that Officer Edwards directed him to provide a urine sample and
that they went into the bathroom. Id. ¶¶ 56-58; Barnes
Deposition Transcript, Docket Entry 85-4 at 19:12-19. His
retelling of the events diverges from Defendants’ version after
they enter the bathroom.
Plaintiff states that after he and Officer Edwards entered
Plaintiff’s bathroom, Officer Edwards demanded Plaintiff pay him
$100. Id. ¶ 60. Officer Edwards had been “demand[ing] $100 a
month from the Plaintiff in return for a favorable parole report
and the promise to cut the length of [Plaintiff’s] mandatory
supervision by two years.” Id. ¶ 61. Plaintiff refused to pay
any more money and told Officer Edwards he was going to report
him to the authorities and Plaintiff’s wife. Id. ¶¶ 62-63. He
refused to give Officer Edwards a urine sample. Id. ¶ 63.
According to Plaintiff’s version, in response to
Plaintiff’s refusal, Officer Edwards indicated he was “‘locking
11
[him] up for a dirty urine.’” Id. ¶ 64. He then instructed
Plaintiff to get his medication. Id. ¶ 67. As Plaintiff went to
get his medicine, he picked up his phone and told his wife what
was happening. Id. ¶ 68. Officer Edwards then grabbed
Plaintiff’s wrist. Id. ¶ 70. Plaintiff continued towards his
bedroom, at which time Officer Edwards swung his handcuffs at
Plaintiff. Id. ¶ 75. Plaintiff fell on the bed, and Officer
Edwards jumped onto Plaintiff’s back and punched Plaintiff in
his head and lower back. Id. ¶¶ 72, 75-78.
Plaintiff states that once Officer Gorecke entered the
room, he grabbed Plaintiff’s legs, pulled him onto the floor,
and began kicking him instead of stopping Officer Edwards from
assaulting Plaintiff. Id. ¶¶ 81-83. Plaintiff’s wife was
listening to Plaintiff’s yells over the phone during this time.
Id. ¶ 84. The officers eventually handcuffed Plaintiff and
dragged him down the stairs, causing his shins to bleed. Id. ¶¶
85-87. At no time on that date did Plaintiff admit to having
used cocaine, nor did he provide a urine sample. Id. ¶ 88.
Plaintiff asserts Defendants lied to Sergeant Wheaton about the
drug test, subsequent arrest, and use of force. Id. ¶¶ 102-03.
Defendants did not complete a Use of Force form, id. ¶ 101, nor
did they ask Plaintiff to sign another Admission of Use Form to
replace the one they allegedly left at Plaintiff’s home, id. ¶
107. Defendants did not preserve the urine sample. Id. ¶ 96.
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Upon arrival at CCMC, Plaintiff requested medical attention
for the injuries sustained during the arrest. Id. ¶ 118. He
allegedly told the evaluating officers that his shins were
bleeding and that his back and head hurt. Id. Nurse Ross did not
attend Plaintiff until hours later, and she did not thoroughly
evaluate him when she did arrive. Id. ¶¶ 119, 121. The records
indicate Plaintiff had pain in his left side and head. Id. ¶
120; Declaration of John Kahn (“Kahn Dec.”) Attachment 16,
Docket Entry 85-17. Dr. Yu did not physically examine Plaintiff.
PSOF ¶ 122. Plaintiff claims he continues to suffer headaches
and back pain because of the assault. Id. ¶ 123; Kahn Dec.
Attachment 17, Docket Entry 85-18.
Plaintiff admits he appeared before Hearing Officer Carla
Shabazz on May 21, 2013, for a violation hearing. PSOF ¶ 128. He
disputes that she made any findings regarding the events of May
2, 2013, and asserts her revocation recommendation was based on
his admission of use from January 9, 2013 and failure to attend
a counseling intake session on April 30, 2013. Id. ¶¶ 134-37.
III. STANDARD OF REVIEW
Under the Federal Rules of Civil Procedure, “[s]ummary
judgment is appropriate only if ‘the movant shows that there is
no genuine issue as to any material fact and the movant is
entitled to judgment as a matter of law.’ In making that
determination, a court must view the evidence ‘in the light most
13
favorable to the opposing party.’” Tolan v. Cotton, 134 S. Ct.
1861, 1866 (2014) (quoting Fed. R. Civ. Pro. 56(a); Adickes v.
S.H. Kress & Co., 398 U.S. 144, 157 (1970)). A “genuine” dispute
of “material” fact exists where a reasonable jury's review of
the evidence could result in “a verdict for the non-moving
party” or where such fact might otherwise affect the disposition
of the litigation. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986).
IV. ANALYSIS
A. Retaliation and False Arrest
Defendants argue Plaintiff’s false arrest and retaliatory
arrest claims are barred by Heck v. Humphrey, 512 U.S. 477
(1994).
In Heck, the Supreme Court held that before a § 1983
plaintiff may “recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by actions
whose unlawfulness would render a conviction or sentence
invalid,” he must first “prove that the conviction or sentence
has been reversed on direct appeal, expunged by executive order,
declared invalid by a state tribunal authorized to make such
determination, or called into question by a federal court's
issuance of a writ of habeas corpus[.]” Id. at 486-87. The Third
Circuit held Heck applied to suits alleging unlawful revocation
of parole in which “success on the § 1983 claim would
14
necessarily demonstrate the invalidity of the Parole Board's
decision.” Williams v. Consovoy, 453 F.3d 173, 177 (3d Cir.
2006).
A successful false arrest claim does not necessarily
invalidate a conviction. See Woodham v. Dubas, 256 F. App'x 571,
576 (3d Cir. 2007) (“Under some circumstances, a false arrest
claim may proceed in an action under 42 U.S.C. § 1983 despite a
valid conviction.”); Montgomery v. De Simone, 159 F.3d 120, 126
n.5 (3d Cir. 1998) (“[A] conviction and sentence may be upheld
even in the absence of probable cause for the initial stop and
arrest.”). The allegations forming the basis of Plaintiff’s
false arrest claim are that Officers Edwards and Gorecke falsely
claimed Plaintiff had admitted to using cocaine after testing
positive, and that the arrest was done out of retaliation for
Plaintiff’s threat to report Officer Edwards’ alleged extortion.
In recommending the revocation of Plaintiff’s parole, the
Hearing Officer Shabazz did not address either of these
contentions. She instead based her decision on Plaintiff’s
admission of use from January 9, 2013, and his failure to attend
counseling on April 30, 2013. Hearing Summary, Kahn Dec.
Attachment 18, Docket Entry 85-19 at 4. Even if Plaintiff did
not test positive for cocaine on May 2, 2013, the revocation of
the parole is not necessarily invalidated as that test was not a
basis of the hearing officer’s decision. If, however, there was
15
probable cause to arrest Plaintiff for his parole violations of
January 9 (that he used cocaine) and April 30 (that he failed to
attend counseling), then his arrest on May cannot be said to be
false.
A claim for false arrest cannot survive if probable cause
exists “as to any offense that could be charged under the
circumstances.” Barna v. City of Perth Amboy, 42 F.3d 809, 819
(3d Cir. 1994). “In determining whether probable cause existed
at the time of an arrest, the ‘arresting officer's state of
mind’ and the charges ‘actually invoked by the arresting
officer’ are irrelevant.” Rankines v. Meyrick, No. 14-1842, 2016
WL 545134, at *3 (D.N.J. Feb. 10, 2016) (quoting Devenpeck v.
Alford, 543 U.S. 146, 153 (2004); Jaegly v. Couch, 439 F.3d 149,
154 (2d Cir. 2006)); see also Wright v. City of Phila., 409 F.3d
595, 602 (3d Cir. 2005) (“[I]t is irrelevant to the probable
cause analysis what crime a suspect is eventually charged with .
. . .”). Thus, even accepting Plaintiff’s version of events at
his home as true, his false arrest claim fails as a matter of
law if Defendants had probable cause to arrest Plaintiff for any
reason.
Whether there was probable cause at the time of arrest is
normally a jury question. Merkle v. Upper Dublin School Dist.,
211 F.3d 782, 788 (3d Cir. 2000). In this particular case
however, Heck and Williams preclude Plaintiff from contesting
16
the findings that he used cocaine on January 9, 2013 and failed
to attend his required counseling session on April 30, 2013,
because the hearing officer found those actions constituted
serious and persistent violations of the terms of Plaintiff’s
parole. Hearing Summary at 4. Thus, a jury finding that there
was no probable cause at the time of his arrest for any offense
would call into question the validity of his parole revocation.
Plaintiff cannot make this argument as a matter of law.
Therefore, summary judgment is granted upon Plaintiff’s false
arrest claim.
It does not appear that a retaliatory arrest claim may
proceed where probable cause exists. See Reichle v. Howards, 132
S. Ct. 2088, 2093 (2012) (“This Court has never recognized a
First Amendment right to be free from a retaliatory arrest that
is supported by probable cause . . . .”); Primrose v. Mellott,
541 F. App'x 177, 180 n.2(3d Cir. 2013) (noting “[w]e have not
decided whether the logic of Hartman2 applies to retaliatory
arrest claims . . . .”); see also Pittman v. Metuchen Police
Dep’t, 441 F. App'x 826, 829 (3d Cir. 2011) (holding that
because there was probable cause to arrest Pittman, his claim of
a retaliatory arrest does not present a genuine issue for
2
Hartman v. Moore, 547 U.S. 250 (2006) (holding a plaintiff in a
retaliatory-prosecution action must plead and show the absence
of probable cause for pressing the underlying criminal charges).
17
trial); Yazid-Mazin v. McCormick, No. 13-5783, 2013 WL 5758716,
at *5 (D.N.J. Oct. 24, 2013) (dismissing retaliatory arrest
claim under 28 U.S.C. § 1915 for failure to state claim as
plaintiff “cannot in any event prevail on this claim without
establishing the absence of probable cause”). Here, as explained
above, Plaintiff cannot establish lack of probable cause to
arrest for violation of parole. His revocation was adjudicated
and his parole was revoked based upon his admitted prior cocaine
use and failure to attend counseling. Plaintiff has not
challenged his revocation of parole on these grounds. No
reasonable jury could find lack of probable cause to arrest him
on May 2, 2013, and Plaintiff is unable to prove the essential
element for a retaliatory arrest, namely, lack of probable
cause.
The Court has found no case recognizing a claim for
retaliatory arrest in the face of probable cause to arrest.
Accordingly, the Court also grants summary judgment against
Plaintiff’s claim of retaliatory arrest.
B. Qualified Immunity
Defendants next argue they are entitled to summary judgment
on the excessive force and failure to intervene claims under the
doctrine of qualified immunity.3 As there are significant factual
3
Although the heading of Defendants’ arguments states qualified
immunity should be applied to “all federal constitutional
claims,” Defendants’ Brief, Docket Entry 76-1 at 25, only the
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questions regarding Defendants’ conduct during the arrest,
Defendants are not entitled to qualified immunity on those
claims at this time.
“Qualified immunity shields government officials from civil
damages liability unless the official violated a statutory or
constitutional right that was clearly established at the time of
the challenged conduct.” Taylor v. Barkes, 135 S. Ct. 2042, 2044
(2015) (internal citation and quotation marks omitted). The
first prong of the analysis “asks 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[.]”
Tolan v. Cotton, 134 S. Ct. 1861, 1865 (2014) (internal
quotation marks and citations omitted) (alterations and
omissions in original).
“The second prong of the qualified-immunity analysis asks
whether the right in question was ‘clearly established’ at the
time of the violation.” Id. at 1866 (internal citation and
quotation marks omitted). The Supreme Court has held that a
right is clearly established when the right is “sufficiently
clear that every reasonable official would have understood that
what he is doing violates that right.” Taylor, 135 S. Ct. at
2044 (internal citation and quotation marks omitted). There does
excessive force and failure to intervene claims were briefed.
The Court’s analysis is therefore limited to those claims.
19
not need to be “a case directly on point, but existing precedent
must have placed the statutory or constitutional question beyond
debate.” Id.; see also Mammaro v. N.J. Div. of Child Prot. &
Permanency, 814 F.3d 164, 169 (3d Cir. 2016), as amended (Mar.
21, 2016) (citing Taylor for proposition that “a ‘robust
consensus of cases of persuasive authority’ in the Court of
Appeals could clearly establish a right for purposes of
qualified immunity”). “Although qualified immunity is a question
of law determined by the Court, when qualified immunity depends
on disputed issues of fact, those issues must be determined by
the jury.” Monteiro v. City of Elizabeth, 436 F.3d 397, 405 (3d
Cir. 2006).
1. Excessive Force
“When a plaintiff alleges excessive force during an
investigation or arrest, the federal right at issue is the
Fourth Amendment right against unreasonable seizures.” Tolan,
134 S. Ct. at 1865 (citing Graham v. Connor, 490 U.S. 386, 394
(1989)). “The inquiry into whether this right was violated
requires a balancing of ‘the nature and quality of the intrusion
on the individual's Fourth Amendment interests against the
importance of the governmental interests alleged to justify the
intrusion.’” Id. at 1865-66 (quoting Tennessee v. Garner, 471
U.S. 1, 8 (1985)). This balancing requires an examination of the
“facts and circumstances of each particular case, including the
20
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 flight.” Graham, 490 U.S. at 396.
Plaintiff has raised more than just “some metaphysical
doubt” as to the circumstances of his arrest and the resulting
injuries, if in fact there were any. Scott v. Harris, 550 U.S.
372, 380 (2007) (internal citation and quotation marks omitted).
The record taken as a whole, including the deposition testimony
of the parties and witnesses and Plaintiff’s medical records,
could lead a reasonable jury to find in Plaintiff’s favor. The
Court must therefore adopt Plaintiff’s version of events for
summary judgment purposes. See Tolan, 134 S. Ct. at 1866 (noting
“courts may not resolve genuine disputes of fact in favor of the
party seeking summary judgment” in qualified immunity analysis).
Under Plaintiff’s version of events, a reasonable jury
could conclude his Fourth Amendment rights were violated in this
particular instance. Plaintiff was charged with violating the
terms of his parole, allegedly for continued drug use. There was
no allegation that Plaintiff had committed a violent offense.
Both parties agree that Plaintiff was unarmed, holding only a
cellphone. PSOF ¶ 68; DSOF ¶¶ 13-14. According to Plaintiff, he
was not resisting or attempting to flee when Officer Edwards
began striking Plaintiff’s wrist with his handcuffs; he was only
21
attempting to follow Officer Edwards’ direction to get his
medication and was telling his wife he was about to be taken to
the county jail. Barnes Deposition Transcript 21:7-18. Plaintiff
then fell on the bed, and Officer Edwards jumped on top of
Plaintiff and began striking Plaintiff in the head and lower
back. Id. at 21:16-20. Officer Gorecke then entered the room,
grabbed Plaintiff’s legs, pulled him to the floor, and kicked
Plaintiff in his lower back two to three times. Id. at 24:16-25.
Both officers then proceeded to handcuff Plaintiff and drag him
down the stairs. Id. at 27:7-12. Taking Plaintiff's testimony as
true, Plaintiff posed no threat to the parole officers during
the alleged beating, and there was no risk of his flight as
Officer Edwards was sitting on top of him. A reasonable jury
could find that the degree of force allegedly used by Officers
Edwards and Gorecke served no legitimate law enforcement purpose
and was excessive.
Furthermore, a reasonable officer would have understood at
the time of Plaintiff’s May 2, 2013 arrest that the gratuitous
use of force against an arrestee who has already been restrained
and is not resisting arrest violates the Fourth Amendment. See
Graham v. Connor, 490 U.S. 386, 397 (1989); Green v. N.J. State
Police, 246 F. App’x 158 (3d Cir. 2007) (holding a reasonable
officer would know it would be excessive to hit unarmed arrestee
in head and to kick him when he was already restrained); Couden
22
v. Duffy, 446 F.3d 483, 497 (3d Cir. 2006) (finding force
excessive where officer had knee on plaintiff’s back and
plaintiff was not “resisting arrest or attempting to flee” at
the time force was used); Kopec v. Tate, 361 F.3d 772 (3d Cir.
2004) (holding right to be free from excessive force in the
course of handcuffing suspect was clearly established).
Construing the evidence in the light most favorable to
Plaintiff, a reasonable officer in 2013 would know that striking
an unarmed man’s wrist with handcuffs, throwing him onto a bed,
straddling him, punching his head and lower back, and kicking
him while he was not resisting was unlawful. See Giles v.
Kearney, 571 F.3d 318, 326 (3d Cir. 2009) (“[A]t the time of the
incident in 2001, it was established that an officer may not
kick or otherwise use gratuitous force against an inmate who has
been subdued.”)
Because resolution of these issues implicates “disputes
over facts that might affect the outcome of the suit under the
governing law,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986), summary judgment on qualified immunity grounds is
not appropriate at this time. A reasonable officer would clearly
have known that the excessive use of force in making an arrest,
under the facts most favorable to Plaintiff, would violate the
Constitution’s Fourth Amendment.
2. Failure to Intervene
23
Defendants are likewise not entitled to qualified immunity
for failing to prevent each other from using unreasonable force
against Plaintiff. To establish a Fourth Amendment violation for
failure to intervene, Plaintiff must establish that: (1) the
officer failed or refused to intervene when a constitutional
violation took place in his presence or with his knowledge; and
(2) there was a “realistic and reasonable opportunity to
intervene.” Smith v. Mensinger, 293 F.3d 641, 650–51 (3d Cir.
2002). As applied to this case, the Court must determine whether
it would be clear to a reasonable officer who observes a fellow
officer using excessive force by punching or kicking an unarmed,
non-resisting suspect in the course of an arrest, that failing
to intervene would constitute a violation of the suspect's
constitutional rights.
As set forth above, a reasonable jury could conclude
Plaintiff’s Fourth Amendment rights were violated during his
arrest by the use of excessive force. Both parties agree that
Officers Edwards and Gorecke were both present and assisted in
arresting Plaintiff. DSOF ¶¶ 17-20; PSOF ¶¶ 70-82. A reasonable
jury could therefore conclude each officer had a realistic
opportunity to intervene.
The Court further finds that it would have been clear to a
reasonable officer in 2013 that when a fellow officer employs
excessive force during an arrest, failing to intervene would be
24
an additional violation of the suspect's constitutional rights.
“Courts have held that a police officer has a duty to take
reasonable steps to protect a victim from another officer's use
of excessive force.” Smith, 293 F.3d at 650; see also Garbacik
v. Janson, 111 F. App'x. 91, 94 (3d Cir. 2004) (citing courts of
appeals’ cases finding duty of officer to prevent the use of
excessive force by another officer). Defendants are therefore
not entitled to qualified immunity on the failure to intervene
claim either.4
C. Assault and Battery
Defendants argue they are entitled to summary judgment on
Plaintiff’s state law claims as the NJ TCA immunizes public
officials from pain and suffering damage claims.
The NJ TCA provides in relevant part:
No damages shall be awarded against a public entity or
public employee for pain and suffering resulting from
any injury; provided, however, that this limitation on
the recovery of damages for pain and suffering shall not
apply in cases of permanent loss of a bodily function,
permanent disfigurement or dismemberment where the
medical treatment expenses are in excess of $3,600.00.
4
Defendants also argue they are entitled to qualified immunity
on Plaintiff’s NJ CRA claims. The analysis of the qualified
immunity defense under the NJ CRA is the same as claims brought
under § 1983. Morillo v. Torres, 117 A.3d 1206, 1213 (N.J. 2015)
(citing Ramos v. Flowers, 56 A.3d 869 (N.J. Sup. Ct. App. Div.
2012)). Therefore, the Court must deny summary judgment on
qualified immunity grounds for the same reasons as it did for
Plaintiff’s § 1983 claims.
25
N.J. STAT. ANN. § 59:9-2(d). This limitation under New Jersey law,
known as the “verbal threshold,” requires plaintiffs to show
“‘(1) an objective permanent injury, and (2) a permanent loss of
a bodily function that is substantial’” before they may recover
pain and suffering damages from a public entity or employee.
Knowles v. Mantua Twp. Soccer Ass'n, 823 A.2d 26, 29 (N.J. 2003)
(quoting Gilhooley v. Cnty. of Union, 753 A.2d 1137, 1142 (N.J.
2000)).
However, the limitations on recovery do not apply if a
public employee is found to have acted with actual malice or
committed willful misconduct. Toto v. Ensuar, 952 A.2d 463 (N.J.
2008). In those instances, plaintiffs may recover “the full
measure of damages applicable to a person in the private sector
. . . .” N.J. STAT. ANN. § 59:3-14(b); see also Leang v. Jersey
City Bd. of Educ., 944 A.2d 675 (N.J. Sup. Ct. App. Div. 2008),
aff’d in part, rev’d in part 969 A.2d 1097 (N.J. 2009). The NJ
TCA does not define “willful misconduct,” but the New Jersey
Supreme Court has noted “[a]lthough willful misconduct need not
involve the actual intent to cause harm, there must be some
knowledge that the act is wrongful.” Fielder v. Stonack, 661
A.2d 231, 242 (N.J. 1995).
As previously noted, the record indicates there are genuine
disputed issues of fact concerning the circumstances of
Plaintiff’s arrest. Giving Plaintiff the benefit of all
26
reasonable inferences, a jury could conclude that Defendants
engaged in willful misconduct by using excessive force against
Plaintiff. In that instance, the verbal threshold would not be
applicable. As a jury must resolve the factual questions,
Defendants are not entitled to summary judgment on the damages
question at this time.
V. CONCLUSION
For the reasons stated above, Defendants’ motion for
summary judgment is granted upon Plaintiff’s claims for false
arrest and retaliatory arrest, and the motion is otherwise
denied.
An accompanying Order will be entered.
June 24, 2016
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
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