NOBLE v. CITY OF CAMDEN et al

Filing 27

OPINION. Signed by Chief Judge Jerome B. Simandle on 6/29/2015. (tf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

ROBERT NOBLE,
Plaintiff,

HONORABLE JEROME B. SIMANDLE

v.
Civil No. 13-4391 (JBS/AMD)
CITY OF CAMDEN, OFFICER JEFFREY
W. FRAMPTON, OFFICER
CHRISTOPHER FRUCCI, OFFICER
JOHN DOE

OPINION

Defendants.

APPEARANCES:
Gabriel Z. Levin, Esq.
LEVIN & ZEIGER LLP
123 South Broad Street, Suite 1200
Philadelphia, PA 19109
Attorney for Plaintiff
Daniel E. Rybeck, Esq.
John C. Eastlack, Jr., Esq.
WEIR & PARTNERS LLP
The Liberty View Building
457 Haddonfield Road, Suite 310
Cherry Hill, NJ 08002
Attorneys for Defendants City of Camden and Officer Jeffrey
W. Frampton
James H. Waller, Esq.
611 White Horse Pike
Haddon Heights, NJ 08035
Attorney for Defendant Officer Christopher Frucci
SIMANDLE, Chief Judge:
I.

INTRODUCTION
This case is about Plaintiff Robert Noble’s encounter, one

evening in January 2012, with several members of the Camden
Police Department, which began when Defendant Christopher Frucci
approached Plaintiff as Plaintiff was taking a nap in his car. A
scuffle ensued with Frucci and Defendant Officer Jeffrey
Frampton, and Plaintiff was brought directly to the hospital
after the encounter for medical treatment. He suffered a
fractured rib, bruises, and abrasions as a result of being
punched and kicked by the officers. Plaintiff was charged with
aggravated assault and resisting arrest, but the charges were
later dropped.
Plaintiff filed this suit under 42 U.S.C. § 1983, alleging
Fourth Amendment violations of excessive force, false arrest,
and malicious prosecution, and various state tort claims against
Frucci and Frampton, as well as Monell claims against the City
of Camden for having a policy or custom of using excessive
force, and for failing to train and supervise its officers on
the appropriate use of force. Presently before the Court are
summary judgment motions by the City of Camden and Officer
Jeffrey Frampton [Docket Item 24], and Officer Christopher
Frucci [Docket Item 22].
Certain key facts in this case are contested. Defendants
contend that during the encounter, Plaintiff shoved Frampton in
the chest and resisted when Defendants then tried to arrest him
2

for assault. They argue that in the ensuing scuffle, Frampton
and Frucci struck and punched Plaintiff a few times in the knee,
arm, and face. Plaintiff contends that he made no move against
either officer and that he was punched and kicked by at least
four officers repeatedly for five minutes or more while he was
restrained.
Notwithstanding the factual dispute, Frampton and Frucci
seek to dismiss the Fourth Amendment claims against them,
arguing that their use of force against Plaintiff was
objectively reasonable under the circumstances; that they had
probable cause to arrest Plaintiff because Plaintiff shoved
Frampton; and that they are shielded by qualified immunity. They
also argue that Plaintiff’s state tort claims must be dismissed
because Plaintiff failed to file a notice of claim as required
by the New Jersey Tort Claims Act. N.J.S.A. 59:8-8.
The City of Camden seeks dismissal of the Monell claims,
arguing that there is no evidence of a policy or custom of using
excessive force, nor any evidence of improper training or
supervision.
For the reasons set forth below, the Court will deny
summary judgment on Plaintiff’s Fourth Amendment claims against
Frampton and Frucci and the Monell claim against the City of
Camden for failing to investigate the use of excessive force.
3

The Court will grant summary judgment on all other claims.
II.

BACKGROUND
A. Summary Judgment Record
The Court begins with the summary judgment record.1 After

finishing work on a private residence on the evening of January
26, 2012, Plaintiff Robert Noble, a self-employed remodeler of
residential homes, drove his part-time assistant, Adam Lee, home
to Mr. Lee’s residence on Norris Street in Camden, New Jersey.
At about 6:30 p.m., after dropping Mr. Lee off, Plaintiff parked
his car on Norris Street to take a nap before driving home.
(Def. Statement of Material Facts (“SMF”) [Docket Item 21] ¶¶ 712.)
At around the same time, members of the Camden Police
Department were in the area assisting New Jersey state parole
officers with home visits of parolees. Defendants Officer

1

Pursuant to Local Civil Rule 56.1, Defendants City of Camden
and Officer Frampton filed a statement of material facts along
with their motion for summary judgment. (City of Camden and
Frampton Br. [Docket Item 21] at 1-8.) Defendant Officer Frucci
joins in the City of Camden and Officer Frampton’s statement of
facts in his motion for summary judgment. (Frucci Br. [Docket
Item 22] at 3.) As Plaintiff did not file a supplemental
statement of facts, the Court relied primarily on Defendants’
statement of material facts and Plaintiff’s responsive
statement. The Court also found it necessary to include
additional facts and testimony from the summary judgment record
in order to present a fuller record from which to decide the
pending motions.
4

Jeffrey Frampton and Officer Christopher Frucci were among the
officers providing assistance. Frampton and Frucci were wearing
plain clothes with either sweatshirts or vests that said
“POLICE” across the chest. (Dep. of Christopher Frucci (“Frucci
Dep.”) [Docket Item 21] 47:16-48:13; SMF ¶¶ 15-16.) Plaintiff
asserts that they were also wearing black ski masks that
obscured the entire face except for the eyes. (Dep. of Robert
Noble (“Noble Dep.”) [Docket Item 24] 49:15-50:3.)
While Frampton and Frucci were securing the outside of one
home on Norris Street, Frucci noticed Plaintiff’s truck parked
on the corner of Morton and Norris Street. (Frucci Dep. 42:2243:3.) According to Frucci, the corner of Morton and Norris is a
“high crime, high drug, high gun, violent area.” (Frucci Dep.
41:22-24.) Frucci approached the truck to investigate.
The following facts are in dispute. According to
Defendants, Frucci states that he saw Plaintiff “laid back” in
the driver’s seat, not in an upright, driving position. (Frucci
Dep. 44:6-20.) He shined his flashlight into the truck, banged
on the window, and said, in sum and substance, “Hey, what’s
going on? Are you okay?” (Id. 45:25-46:21.) According to Frucci,
once Plaintiff awoke, he “was immediately belligerent and angry”
and was “moving real fast and aggressive in the car.” (Id. 49:610.) Frucci alleges that he then identified himself as “Camden
5

Police,” told Plaintiff to “calm down,” and asked Plaintiff if
he was all right. Plaintiff responded by becoming more
belligerent and telling Frucci to “get that f****** light out of
my face.” (Id. 49:15-21; Frampton Dep. 41:4-7.) Frucci continued
to train his flashlight on Plaintiff, but claims that he
specifically did not shine the flashlight in Plaintiff’s face.
(Frucci Dep. 52:23-53:2.)
According to Frucci, Plaintiff then “aggressively came out
of the car,” “screaming belligerently, hands in the air flailing
around.” (Frucci Dep. 54:12-17.) Frampton testified at
deposition that Frucci asked Plaintiff to get out of the car,
but Frucci testified that he never asked Plaintiff to get out.
(Compare Frampton Dep. 42:22-25 with Frucci Dep. 53:18-20.)
Frampton then walked over to where Plaintiff and Frucci were
standing. Both officers yelled at Plaintiff “numerous times” to
calm down. (Frampton Dep. 49:19-50:15.) According to both
Frampton and Frucci, Plaintiff then shoved Frampton in the chest
with both hands. (Frucci Dep. 55:2-7, 61:15-25; Frampton Dep.
45:12-14; 47:16-18.) Defendants then tried to place Plaintiff
under arrest for assault. (Frucci Dep. 62:6-9; Frampton Dep.
57:1-2.)
Frampton and Frucci attempted to handcuff Plaintiff but
Plaintiff fought the officers, so Frampton grabbed Plaintiff by
6

the legs and “took him to the ground.” (Frampton Dep. 57:6-10;
61:21-62:9.) Plaintiff fell face first and landed on his
stomach. (Frampton Dep. 64:22-65:3.) Plaintiff had his arms
underneath his body and kept resisting when Defendants tried to
pull his arms out to handcuff him. (Frampton Dep. 66:23-67:6.)
Defendants told Plaintiff that he was under arrest and yelled at
Plaintiff to “stop resisting,” and “give me your hands. I’m
trying to handcuff you.” (Frucci Dep. 65:4-6.; Frampton Dep.
65:24-66:3.) According to Defendants, during the struggle on the
ground which lasted approximately 30 seconds, Frampton punched
Plaintiff’s face twice (Frampton Dep. 67:15-21; 68:8-19), and
Frucci kneed Plaintiff three to five times in the rib or
shoulder plexus area and thigh, and punched Plaintiff’s arm and
leg three to five times. (Frucci Dep. 65:10-66:17.) Frampton and
Frucci were then able to get Plaintiff’s arm out and handcuff
him. (Frampton Dep. 68:8-19.)
Frucci testified that other officers came over when they
heard the altercation, but only he and Frampton were involved in
the physical struggle with Plaintiff. (Frucci Dep. 68:21-69:16.)
By contrast, Plaintiff alleges that he was taking a nap in
his truck with his dog when he was awoken by the sound of
someone opening and shutting his passenger side door. (Noble
Dep. 37:19-25.) He noticed two flashlights and a gun outside the
7

window of his truck and was initially disoriented. (Id. 44:845:6.) Plaintiff then heard two people repeatedly say, “Out of
the truck, mother f******.” (Id. 45:9-16.) Plaintiff rolled down
his window and asked who they were, but they did not identify
themselves and Plaintiff did not hear either of them say that
they were police. (Id. 48:21-49:8.) The two officers continued
to yell at Plaintiff to “get out of the truck.” (Id. 51:15-18.)
Plaintiff told the officers that he was getting out of his truck
slowly. He opened the door and stepped out of his car with his
hands in the air. (Id. 52:15-17; 53:23-54:1.)
Plaintiff testified at deposition that he repeatedly asked
the men to identify themselves but they refused to do so and
instead continued to yell at Plaintiff. He was not certain that
they were police officers because they had no visible badge and
the front of their clothing was obscured by the flashlights and
gun. (Noble Dep. 50:4-16; 54:21-55:5; 55:25-56:3.). According to
Plaintiff, Defendant Frampton then said, “You get cocky with me,
mother*****, I’ll kick your a**.” (Id. 56:9-20; 58:5-9.)
Frampton approached Plaintiff while Plaintiff had his hands up
in the air. As Frampton approached, Plaintiff turned to face the
door of his truck, and Frampton grabbed one arm and twisted it.
Frucci approached Plaintiff from the other side and “ran right
into [Plaintiff]” in a “piledrive” and grabbed Plaintiff’s other
8

arm. (Id. 59:25-61:7.) Plaintiff denies shoving or punching
Frampton and testified that he was not resisting arrest. (Noble
Dep. 114:17-22; 141:24-142:3.)
Plaintiff testified that while his arms were being
restrained, he was hit in the back from behind by at least two
other officers and felt a nightstick being poked into his back.
(Noble Dep. 65:5-23.) Frampton and Frucci were holding Plaintiff
by his forearms and had Plaintiff nearly off the ground. (Id.
67:2-68:7.) At some point, Plaintiff’s head was smashed into his
truck and Frampton punched him in the face four or five times.
(Id. 69:5-7; 70:6-14.) He was also repeatedly kicked in the legs
as officers continued to punch him. Plaintiff testified that
this went on for about five minutes. (Id. 73:23-74:8; 77:7-10.)
He was unarmed and asserts that he was not resisting arrest.
(Id. 71:21-25.)
At some point during this beating, Plaintiff realized that
he had handcuffs “on both of [his] hands.” (Noble Dep. 76:2577:1.) He recalled that he was then “slammed [] into the street”
and that the four or so police officers, including Frampton and
Frucci, kicked him and stood on his head, stomach, ribs, back,
hands, and feet, while he was lying on the ground on his side.
(Id. 77:2-6.) Plaintiff estimates that he was kicked
approximately 20 times. (Id. 81:8-10.) He also testified that a
9

number of people on the street witnessed the assault, and that
one man told Plaintiff that he videotaped the encounter. (Noble
Dep.82:17-83:4; 138: 12-139:25.)
Plaintiff nearly lost consciousness during this time.
(Noble Dep. 82:7-16.) The beating stopped when he heard an
officer say, “I think we’re killing him.” Officers pulled
Plaintiff off the ground and placed him into the back of a
police car. (Id. 83:20-25; 84:8-25.) Frampton and Frucci drove
him to Virtua Hospital for treatment. (Id. 89:7014.)
Plaintiff stated at deposition that he suffered a fracture
in one of his ribs and sustained some bruises, cuts, and
abrasions. (Noble Dep. 170:13-171:4.)2
After being discharged from the hospital, Plaintiff was
taken to the police administration building where he was
questioned for approximately 45 minutes by Frampton. (Noble Dep.
121:14-16.) After Plaintiff was given a copy of the charges
against him, Frampton and Frucci drove him back to his truck,
which was still parked on Norris Street. Plaintiff was released
on his own recognizance and no bail was ever set. (Id. 123:15-

2

The summary judgment record does not include any medical
records detailing Plaintiff’s injury or the treatment he
received. Plaintiff testified at other times that the encounter
left him with broken ribs, but then answered in the affirmative
when asked whether he actually suffered a single rib fracture.
(Noble Dep. 170:13-171:4.)
10

124:20.) Plaintiff was charged with aggravated assault and
resisting arrest, but the charges were subsequently dismissed.
(Noble Dep. 142:21-23.)
Plaintiff testified at deposition that his bruises and cuts
have since healed, but that he continues to have pain in his
left and right shoulders and cannot move his left arm above his
head. (Noble Dep. 170:13-14; 168:19-169:20.)
Expert Report3
Plaintiff submitted a 13-page expert report from Richard
Rivera, a retired municipal police officer and consultant in
police practices, policy, procedures, and training. (Rivera
Report [Docket Item 24].) According to Mr. Rivera, Frucci and
Frampton escalated the confrontation with Plaintiff by shouting
at Plaintiff, invading his private space, and failing to
communicate clearly with each other and with Plaintiff. (Rivera

3

Although Plaintiff alleges Monell claims against the City of
Camden for acquiescing to a custom of excessive force and
failing to train and supervise officers on the use of force,
Plaintiff failed to include facts related to these claims in a
supplemental statement of facts and referred to facts in the
expert report only in his opposition brief, in contrast to what
Local R. 56.1 requires. See Loc. Civ. R. 56.1(a) (“[T]he
opponent may also furnish a supplemental statement of disputed
material facts . . . if necessary to substantiate the factual
basis for opposition.”). The Court has examined the expert
report and, finding it necessary to consider the expert opinion
of Dr. Rivera in order to fully address all claims raised in the
complaint, recites those facts it deems relevant here.
11

Report at 6-7.) Mr. Rivera opined that “it was [Defendants’]
inability to verbally communicate with [Plaintiff] in the first
place that led to their use of force and arrest of [Plaintiff],”
and that the force used by Defendants was “excessive and
avoidable.” (Id. at 7.)
Mr. Rivera also reviewed discovery records and records from
the Camden Police Department Internal Affairs Unit (“IAU”).
(Rivera Report at 3.) He noted that the IAU investigated few
complaints of excessive force in 2001 and 2002. In 2001, the IAU
had 128 pending cases of excessive force and investigated only
11 cases. In 2002, the IAU investigated only six allegations of
excessive force out of 174 pending cases. (Id. at 9.) Between
2001 and 2007, the Police Department received a total of 485
allegations of excessive force and only two complaints were
sustained as rule violations. (Id. at 9.) Mr. Rivera also noted
that the IAU suffered from a severe backlog of cases. A 2009
audit revealed that the unit still had 227 open cases dating as
far back as 2002. (Id. at 9.)
Mr. Rivera opined that the lack of timely IAU
investigations contributed to officer misconduct. (Rivera Report
at 9.) He noted that a total of 19 excessive force complaints
had been lodged against Frampton and Frucci, and opined that the
officers should have been removed from public contact given the
12

frequent number of complaints against them. (Id. at 9-10.) He
also noted that the Police Department “was aware of the backlogs
and established an early warning system to flag unwanted
behavior” but nonetheless failed to act in a timely manner to
investigate complaints and prevent misconduct by officers. (Id.
at 9.) Frampton and Frucci were among ten officers in 2004 and
2005 who were flagged by the early warning system for monitoring
and supervision, and Frampton was flagged again in 2006. (Id. at
12.)
Mr. Rivera concluded that the internal affairs unit was
“inept in investigating serious allegations of misconduct
including force incidents and overwhelmed to the point that
officers with multiple open investigations were allowed to
continue contact with the community.” (Id. at 8.)
B. Procedural Background
Plaintiff Robert Noble filed this Complaint on July 19,
2013 against Defendants the City of Camden, Jeffrey Frampton,
Christopher Frucci, and unnamed John Doe officers. [Docket Item
1.] Plaintiff asserts claims against Frampton, Frucci, and John
Doe police officers under 42 U.S.C § 1983 for excessive use of
force (Count One), false arrest (Count Two), and malicious
prosecution (Count Three), in violation of the Fourth Amendment;
as well as state law claims for assault and battery (Count Six),
13

false imprisonment (Count Seven), false arrest (Count Eight),
malicious prosecution (Count Nine), and conspiracy (Count Ten).
Plaintiff also asserts Monell claims under 42 U.S.C. § 1983
against the City of Camden for various “constitutional
deprivations caused by inadequate policies, procedures, and
customs” (Count Four), failure to train, and failure to
supervise (Count Five).
Following the close of discovery, Defendants moved for
summary judgment. [Docket Items 21 and 22.] The City of Camden
argues that the Monell claims cannot be sustained because Mr.
Rivera’s report does not include any specifics about prior
complaints against Frampton or Frucci, and Plaintiff cannot
demonstrate a pattern of excessive force because he has not
shown how previous incidents were similar to the incident in
this case. (Def. Reply [Docket Item 26] at 5-6.)
Frampton and Frucci argue that they are entitled to
qualified immunity. (City of Camden and Frampton Br. [Docket
Item 21] at 14-16; Frucci Br. [Docket Item 22] at 5-6.) They
also argue that Plaintiff has not shown a Fourth Amendment
excessive force violation because the force used was objectively
reasonable, and that Plaintiff has not demonstrated Fourth
Amendment violations for malicious prosecution and false arrest
because Defendants had probable cause to arrest and charge
14

Plaintiff based on “the plethora of activity Plaintiff engaged
in . . . up to and including the point wherein he shoved Lt.
Frampton prior to being handcuffed.” (Def. Reply at 8; City of
Camden and Frampton Br. at 16-17; Frucci Br. 6-8.)4 Finally, they
argue that Plaintiff’s state law claims must dismissed because
Plaintiff failed to file a notice of claim prior to filing suit,
as required under the New Jersey Tort Claims Act. N.J.S.A. 59:88. (City of Camden and Frampton Br. at 18-21; Frucci Br. at 8.)
Plaintiff argues that summary judgment must be denied
because Defendants’ 56.1(a) statement included facts that were
disputed. With respect to the Monell claims, Plaintiff argues
that Mr. Rivera’s expert report sufficiently demonstrates that
Frampton and Frucci exhibited a pattern of excessive force that
was ignored by the IAU. (Pl. Opp’n to City of Camden and
Frampton [Docket Item 24] at 9-10.) With respect to the
individual Fourth Amendment claims, Plaintiff contends that
qualified immunity does not protect officers who intentionally
and maliciously violated Plaintiff’s Fourth Amendment rights,
and that factual disputes surrounding the use of force and the
circumstances of Plaintiff’s arrest prevent summary judgment on
those claims. (Id. at 10-15; Pl. Opp’n to Frucci [Docket Item

4

Defendant Frucci makes no argument with respect to Plaintiff’s
malicious prosecution claim.
15

25] at 2-6.) With respect to the state law claims, Plaintiff
argues that the New Jersey Tort Claims Act does not provide
protection for misconduct that is intentional, malicious, and
willful. (Pl. Opp’n to City of Camden and Frampton at 16; Pl.
Opp’n to Frucci at 6.)
III. STANDARD OF REVIEW
At summary judgment, the moving party bears the initial
burden of demonstrating 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); accord Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). Once a properly supported
motion for summary judgment is made, the burden shifts to the
non-moving party, who must set forth specific facts showing that
there is a genuine issue for trial. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250 (1986). In reviewing a motion for
summary judgment, the court is required to examine the evidence
in light most favorable to the non-moving party, and resolve all
reasonable inferences in that party's favor. Hunt v. Cromartie,
526 U.S. 541, 552 (1999); Wishkin v. Potter, 476 F.3d 180, 184
(3d Cir. 2007).
A factual dispute is material when it “might affect the
outcome of the suit under the governing law,” and genuine when
“the evidence is such that a reasonable jury could return a
16

verdict for the nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). The non-moving party “‘need not
match, item for item, each piece of evidence proffered by the
movant,’” but must simply present more than a “mere scintilla”
of evidence on which a jury could reasonably find for the nonmoving party. Boyle v. Cnty. of Allegheny Pennsylvania, 139 F.3d
386, 393 (3d Cir. 1998) (quoting Anderson v. Liberty Libby,
Inc., 477 U.S. 242, 252 (1986)). Where the record taken as a
whole could not lead a rational trier of fact to find for the
nonmoving party,” no genuine issue for trial exists and summary
judgment shall be granted. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986) (citation omitted).
The Court exercises subject matter jurisdiction over
Plaintiff’s federal claims pursuant to 28 U.S.C. § 1331, and
exercises supplemental jurisdiction over Plaintiff’s state law
claims pursuant to 28 U.S.C. § 1367.
IV. DISCUSSION
A. Defendants’ Rule 56.1 Statement
Local Rule 56.1(a) requires the party moving for summary
judgment to provide a “statement which sets forth material facts
as to which there does not exist a genuine issue.” Loc. Civ. R.
56.1(a). Plaintiff argues that because Defendants included
deposition statements from Defendants and Plaintiff which
17

contradict each other, Defendants failed to abide by Rule 56.1
and their summary judgment motion must be denied. (Pl. Opp’n to
City of Camden and Frampton at 7.) Plaintiff points to the
following from Defendants’ statement of facts as an example of
Defendants’ error:
38. Unprovoked, Plaintiff then pushed Sgt. Frampton with
both hands on Sgt. Frampton’s chest knocking Sgt.
Frampton backwards.
39. Plaintiff denies pushing Sgt. Frampton.
(Pl. Opp’n to City of Camden and Frampton at 7.)
The Court finds no merit in Plaintiff’s argument, or in
their rigid interpretation of Rule 56.1. The purpose of a Rule
56.1 statement is to narrow and clarify the issues for the
Court, see Durkin v. Wabash Nat’l, No. 10-2013, 2013 WL 1314744,
at *6 (D.N.J. Mar. 28, 2013), and to “assist [the court] in
identifying whether material facts are, or are not, in dispute
in a summary judgment motion.” Loc. Civ. R. 56.1, Comment 2a.
(2015); see also Caltado v. Moses, 361 F. Supp. 2d 420, 426
(D.N.J. 2004) (“The purpose of a Rule 56.1 statement is to
narrow the issues before the District Court . . . .” (quotations
and citations omitted)). Although Rule 56.1 states on its face
that the moving party should identify “facts as to which there
does not exist a genuine dispute,” the comments to the Rule make
clear that disputed facts may also be included. Loc. Civ. R.
56.1, Comment 2a. (2015) (noting that a Rule 56.1 statement
18

“should be clear and unambiguous in specifying the disputed and
undisputed issues and facts.”) (emphasis added).
In addition, courts in this district have noted that a
single joint statement identifying disputed and undisputed facts
is preferred. See, e.g., L. Civ. R. 56.1, Comment 2c. (2015)
(“Although the rule does not require it, whenever it is
possible, a single joint statement of disputed and undisputed
facts should be submitted”); Robinson v. Ricci, at *6 (Mar. 29,
2012) (noting preference for a single joint Rule 56.1
statement); Riker v. CMS, Inc., No. 10-1752, 2011 WL 6756953, at
*5 (D.N.J. Dec. 22, 2011) (stating same); Milligan v. Sentry
Exteriors, Inc., No. 00-2279, 2005 WL 1229791, at *1 n.3 (D.N.J.
May 24, 2005) (recommending that parties submit a single Rule
56.1 statement in the future).
Defendants have satisfied the purpose of Rule 56.1 by
indicating clearly, through citations to both Plaintiff’s and
Defendants’ testimony, which facts are disputed and which are
not. By anticipating and identifying the facts on which the
parties disagree, Defendants have made it easier for the Court
to identify the pertinent issues in the case. See Allyn Lite,
New Jersey Federal Practice Rules, L. Civ. R. 56.1, comment 2
(2015) (Rule 56.1(a) requires parties to submit a statement
identifying material facts “in such fashion that the Court can
19

easily determine if a genuine dispute exists.”). The Court will
accept Defendants’ Rule 56.1 statement, and dismissal of
Defendants’ motion for summary judgment motion is not warranted.
B. Monell Claims against Defendant the City of Camden
(Counts Four and Five)
Plaintiff brings two claims against the City of Camden
under Monell. First, he argues that the City of Camden
“systematically failed to properly investigate [] complaints and
respond to officer misconduct,” as demonstrated by the internal
affairs files showing a pattern of excessive force by Frampton
and Frucci. (Pl. Opp’n to City of Camden and Frampton Br. at 910.) He also argues that the City of Camden failed to train and
supervise on the use of force and proper arrests. (Id. at 10.)
In Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S.
658 (1978), the Supreme Court established that municipalities
and other government entities were “persons” subject to
liability under 42 U.S.C. § 1983 for constitutional rights
violations, but that they were not liable under the doctrine of
respondeat superior for the misconduct of its employees. Monell,
436 U.S. at 690–692; see also City of Oklahoma City v. Tuttle,
471 U.S. 808, 810 (1985). To prevail on a Monell claim, a
plaintiff must first establish that the municipality had a
policy or custom that deprived him of his constitutional rights.
McTernan v. City of York, 564 F.3d 636, 657 (3d Cir. 2009)
20

(quoting Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir.
1996)). In other words, the plaintiff must show that the
municipality, through one of its policymakers, affirmatively
proclaimed the policy, or acquiesced in the widespread custom,
that caused the violation. Watson v. Abington Twp., 478 F.3d
144, 155–156 (3d Cir. 2007). A plaintiff may show the existence
of a policy when a decision-maker with final authority issues an
official proclamation, policy, or edict. Bielevicz v. Dubinon,
915 F.2d 845, 850 (3d Cir. 1990). Custom may be established by
showing that a given course of conduct, “although not
specifically endorsed or authorized by law, is so well-settled
and permanent as virtually to constitute law.” Id.; see also
Watson, 478 F.3d at 155-56; Natale v. Camden Cnty. Corr. Fac.,
318 F.3d 575, 584 (3d Cir. 2003) (defining “custom” as “‘an act
that has not been formally approved by an appropriate
decisionmaker,’ but that is ‘so widespread as to have the force
of law.’” (quoting Board of County Comm'rs of Bryan County v.
Brown, 520 U.S. 397, 404 (1997))).
Once a § 1983 plaintiff identifies a municipal policy or
custom, he must “demonstrate that, through its deliberate
conduct, the municipality was the ‘moving force’ behind the
injury alleged.” Brown, 520 U.S. at 404. If the policy or custom
does not facially violate federal law, causation can be
21

established only by “demonstrat[ing] that the municipal action
was taken with ‘deliberate indifference’ as to its known or
obvious consequences. A showing of simple or even heightened
negligence will not suffice.” Id. at 407 (citations omitted);
Berg v. Cnty. of Allegheny, 219 F.3d 261, 276 (3d Cir. 2000).
For a § 1983 claim of failure to train or supervise municipal
employees, the plaintiff must show that the failure to provide
training or supervision amounted to “‘deliberate indifference”
to the rights of persons with whom the employee will come into
contact.” Thomas v. Cumberland Cnty., 749 F.3d 217, 222 (3d Cir.
2014). Deliberate indifference may be demonstrated by showing a
pattern of violations which puts the municipal employee on
notice that a new program is necessary; or a single incident
violation where the need for training was patently obvious. Id.
at 223.5
Citing to Mr. Rivera’s report, Plaintiff contends that the
fact that a Frampton and Frucci remained on the police force

5

Proof of the existence of an unlawful policy or custom is not
enough to maintain a § 1983 action. A plaintiff must
additionally prove that the policy or custom was the proximate
cause of the injuries suffered. Watson, 478 F.3d at 156; Losch
v. Borough of Parkesburg, 736 F.2d 903, 910 (3d Cir. 1984). To
establish causation, the plaintiff must demonstrate a “plausible
nexus” or “affirmative link” between the custom and the specific
deprivation of constitutional rights at issue. Bielevicz, 915
F.2d at 850.
22

despite having a total of 19 excessive force complaints lodged
against them prior to this incident demonstrates that the City
of Camden was deliberately indifferent to a pattern of excessive
force. Plaintiff argues that the City’s failure to promptly
investigate the large number of civilian complaints also
demonstrates its deliberate indifference. (Pl. Br. at 10.)
Citing Merman v. City of Camden, 824 F. Supp. 2d 581, 591
(D.N.J. 2010), Defendant argues that without further context or
detail about the prior complaints, the evidence is insufficient
as a matter of law to demonstrate that the Camden Police
Department had a pattern of using excessive force.
In Merman, the plaintiff, who was physically injured and
detained by Camden police officers following a concert, brought
claims against individual Camden police officers for excessive
force, as well as Monell claims against the City of Camden for
failure to investigate civilian complaints and failure to
supervise or discipline its officers. 824 F. Supp. 2d at 587-88.
In support of her Monell claims, the plaintiff provided
statistical data from the City’s Office of Internal Affairs
showing an escalating number of excessive force complaints
against police officers over the years, and noted that few of
these complaints ever resulted in a finding of misconduct.
Plaintiff also pointed to a sample of 40 reports from Internal
23

Affairs and argued that civilian complaints of excessive force
were often inadequately investigated. While the district court
noted that “statistical evidence alone may not justify a jury’s
finding that a municipal policy or custom authorizes or condones
the unconstitutional acts of police officers,” 824 F. Supp. 2d
at 591, the court ultimately held that the plaintiff had
presented sufficient evidence from which a reasonable jury could
conclude that the City’s inadequate investigation into excessive
force complaints amounted to deliberate indifference towards
foreseeable constitutional violations. Id. at 594.
The Court finds that Plaintiff has provided sufficient
evidence from which a reasonable jury could conclude that the
City was deliberately indifferent in investigating claims of
excessive force. Plaintiff has provided an expert report from
Mr. Rivera, who came to similar conclusions after examining
civilian complaint files from the Internal Affairs Unit. Mr.
Rivera noted that there was a consistent backlog of cases
involving alleged officer misconduct that were pending before
the IAU, which demonstrated a lack of “standard of care to
thoroughly and timely investigate” allegations of abuse. As an
example, he noted that in 2009, 227 cases from 2002 had yet to
be resolved. (Rivera Report, at 9.) He opined that the Police
Department was aware of the backlog but nonetheless failed to
24

act in a timely manner to investigate complaints. In particular,
Mr. Rivera noted that of the 19 total excessive force complaints
lodged against Frampton and Frucci, two cases against Frampton
dating back to 2005 and two cases against Frucci dating back to
2006 were still awaiting investigation in 2009.6 (Rivera Report
at 9.)
In addition to the backlog, Mr. Rivera noted that the cases
that were investigated were flawed and poorly investigated, as
demonstrated in part by the low number of disciplinary actions.
Between 2001 and 2007, the Police Department received a total of
485 allegations of excessive force, but only two complaints were
sustained as rule violations. (Rivera Report at 9.) Only 11
allegations of excessive force were investigated in 2001, and
only six allegations of excessive force were investigated in
2002. Mr. Rivera also stated that he reviewed investigative
files for Frampton and Frucci as well as for other officers, and
concluded that the investigators assigned to cases “are not
impartial, do not conduct thorough investigations and inject
opinions and judgments.” (Id. at 12.)
Viewing the evidence in light most favorable to Plaintiff,
a reasonable jury could find from this evidence that the City

6

It is unclear whether these cases had been resolved by the time
the present incident occurred.
25

had a custom of ignoring or failing to properly and promptly
investigate unconstitutional excessive force complaints against
Camden police officers for years preceding this incident, and by
its inaction was deliberately indifferent to the need for such
investigations to protect persons against excessive force during
arrests, and was thus in part complicit in the misconduct that
ensued. See Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d
Cir. 1996) (noting that custom may “be established by evidence
of knowledge and acquiescence”); Monaco v. City of Camden, No.
04-2406, 2008 WL 8738213, at *8 (Apr. 14, 2008) (Simandle, J.)
(failure to investigate plaintiff’s excessive force allegation
until nearly three years after incident took place was evidence
of existence of a policy or custom of failing to timely
investigate claims of police misconduct). A reasonable jury
could also find evidence in the record connecting the failure to
investigate with the constitutional violation at issue in this
case. For example, it was Mr. Rivera’s opinion, based upon his
examination of the IAU files, that Frampton and Frucci should
have been removed from their positions prior to the incident in
this case due to the frequency and nature of previous complaints
against them (Id. at 9.)7 See also Monaco, 2008 WL 8738212, at *9

7

Plaintiff notes that he possesses all of the IAU files against
Frampton and Frucci and “can show how the Camden Internal
26

(reasonable jury could draw a causal connection between
plaintiff’s injuries at the hands of police officers and
municipality’s failure to conduct adequate investigations into
complaints of police misconduct).
Defendants do not dispute the substance of Mr. Rivera’s
expert report. They argue only that Mr. Rivera’s report failed
to detail the specifics of the prior excessive force claims
against Frampton and Frucci and does not show how those prior
allegations are similar to Plaintiff’s excessive force
allegations in this case. (Def. Reply at 5-6.) The Court
disagrees. To demonstrate the City’s knowledge and acceptance of
police misconduct, Plaintiff is not required to prove that each
prior excessive force complaint “deserved discipline and how the
misconduct in those situations was similar to that of
Plaintiff.” (Def. Reply at 6.) Rather, Plaintiff need only
present sufficient evidence that there were numerous allegations
of abuse which Defendants knew about and failed to properly
investigate. See Beck, 89 F.3d at 973 (“[W]ritten complaints
were sufficient for a reasonable jury to infer that [Defendants]
knew, or should have known, of [the officer’s] violent behavior

Affairs department systematically failed to properly investigate
the complaints and respond to officer misconduct.” (Pl. Opp’n to
City of Camden and Frucci Br. at 10.)
27

in arresting citizens.”). Plaintiff has presented expert
evidence that the two Defendant officers in this case had
previously accumulated 19 complaints against them for use of
excessive force; that the officers had been flagged for
monitoring and supervision in 2004 and 2005; and that past
complaints against the officers had not been timely or properly
investigated. (Pl. Opp’n to City of Camden and Frampton Br. at
9, 10, 12.) Mr. Rivera had also examined the underlying IAU
files for Frampton and Frucci and concluded that had timely
investigations taken place, Frampton and Frucci would have been
removed from their position before the events in this case. On
this basis, a reasonable jury could conclude that Defendants’
failure to investigate amounted to deliberate indifference.
Although the record before the Court contains Mr. Rivera’s
report but not the IAU investigations and files Mr. Rivera had
examined, Mr. Rivera stated that his opinions were based upon a
review of the substance of internal investigation files, not
just the statistics generated from those files. This Court has,
in the past, found expert reports presenting similar evidence
sufficient to deny summary judgment on Monell claims, and will
do so today. See, e.g., Malik v. Hannah, 799 F. Supp. 2d 355,
363 (D.N.J. 2011) (Simandle, J.) (entering judgment for
plaintiff as a matter of law on Monell claim against City of
28

Camden for having a custom of tolerating excessive force where,
among other things, uncontested evidence showed that there were
a large number of citizen complaints for excessive force against
police officers in the years prior to plaintiff’s injury and
defendant had a custom of ignoring such violations); D’Arrigo v.
Gloucester City, No. 04-5967 2007 WL 1755970, at *13 (D.N.J.
June 19, 2007) (Simandle, J.) (denying summary judgment on
Monell claim against city for failure to properly investigate
and/or discipline officers accused of using excessive force
where plaintiff presented evidence showing that no officer had
been fired for a disciplinary reason in twenty five years).8
It would be a reasonable inference for a jury to find that
the City of Camden had a custom of performing inadequate
investigations of citizen complaints of police brutality, and
which reflected an indifference to the allegedly excessive use
of force by its officers. The Court will therefore permit
Plaintiff’s Monell claim against the City to proceed under a
theory that Plaintiff’s injuries resulted from the City’s
failure to conduct timely and meaningful investigations into
claims of excessive force.

8

As Mr. Rivera’s report appeared to have examined only files
from 2009 and prior, Plaintiff should be prepared to prove at
trial that the pattern of ignoring excessive force complaints
continued beyond 2009.
29

The Court will, however, dismiss Plaintiff’s claim for
failure to train and supervise officers on the use of force and
proper arrests (Count Five). The Supreme Court stated in City of
Canton v. Harris that “[i]n resolving the issue of a city’s
liability [for failure to train], the focus must be on adequacy
of the training program in relation to the tasks the particular
officers must perform.” 489 U.S. 378, 390 (1989). City of Canton
also teaches that to sustain a claim based on a failure to train
theory, “the identified deficiency in a city’s training program
must be closely related to the ultimate injury” and a plaintiff
must prove “that the deficiency in training actually caused the
police officers’ indifference to her medical needs.” Id. at 391.
Plaintiff has provided no evidence that there was a lack of
training or supervision within the Camden Police Department.
Although Mr. Rivera stated in his report that Defendant failed
to properly train and supervise its officers, his report makes
no mention of what training or supervision was even provided by
the Police Department on arrests and use of force, or the
substance or frequency of the training. Nor has Plaintiff
identified the precise deficiency in training or how the
deficiency contributed to a violation of Plaintiff’s
constitutional rights, as required by the Supreme Court and this
Circuit. See, e.g., Colburn v. Upper Darby Twp., 946 F.2d 1017,
30

1030 (3d Cir. 1991) (emphasizing that plaintiff “must identify a
failure to provide specific training that has a causal nexus
with his or her injury and must demonstrate that the failure to
provide that specific training can reasonably be said to reflect
a deliberate indifference to whether constitutional deprivations
of the kind alleged occur”); Lapella v. City of Atlantic City,
No. 10-2454, 2012 WL 2952411, at *6 (D.N.J. July 18, 2012)
(Simandle, J.) (to sustain an inadequate training theory,
plaintiff must identify the precise deficiency in training);
Malignaggi v. Cnty. of Gloucester, 855 F. Supp. 74, 77 (D.N.J.
1994) (stating same). Accordingly, the Court will grant summary
judgment and dismiss Plaintiff’s failure to train claim.
C. Fourth Amendment claims against Defendants Officer
Frampton and Officer Frucci
Defendants Frampton and Frucci move for summary judgment on
Counts One, Two, and Three, which asserts claims against them
under 42 U.S.C. § 1983 for excessive use of force, false arrest,
and malicious prosecution. They also invoke qualified immunity,
arguing that all evidence indicates that Defendants acted
reasonably under the circumstances and they must therefore be
immune from suit. (City of Camden and Frampton Br. at 14-16;
Frucci Br. at 5-6.) Reciting a different version of facts,
Plaintiff argues that Defendants are not entitled to qualified
immunity because there was no probable cause to believe
31

Plaintiff had committed any crime; and Defendants’ actions in
“brutally and maliciously” assaulting Plaintiff clearly violated
the Fourth Amendment. (Pl. Opp’n to City of Camden and Frampton
Br. at 12-14; Pl. Oppn to Frucci Br. at 2-4.)
The Court will address each Fourth Amendment claim below,
turning first to the question of qualified immunity, and, if
qualified immunity is to be denied, to the question of whether
summary judgment should be granted for the claim.
1. The qualified immunity analysis requires courts to
analyze the facts in light most favorable to the
party asserting the injury.
The doctrine of qualified immunity “balances two important
interests – the need to hold public officials accountable when
they exercise power irresponsibly and the need to shield
officials from harassment, distraction, and liability when they
perform their duties reasonably.” Pearson v. Callahan, 555 U.S.
223, 231 (2009). Under this doctrine, government officials are
immune from liability for civil damages as long as their conduct
“does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Kelly v.
Borough of Carlisle, 622 F.3d 248, 253 (3d Cir. 2010). Qualified
immunity will not, however, act as a shield for “the official
who knows or should know he is acting outside the law.” Butz v.
32

Economou, 438 U.S. 478, 506-07 (1978). In each case, the
government’s interests must be balanced against the citizens’
interest in vindicating their constitutional rights, as well as
the public interest in holding officials accountable “when they
exercise power irresponsibly.” Pearson, 555 U.S. at 231.
The qualified immunity claim is traditionally analyzed in
two steps. First, the court must decide whether the facts
alleged, taken light most favorable to the plaintiff, makes out
the violation of a constitutional right. Saucier v. Katz, 533
U.S. 194, 121 (2001). Next, the court must examine whether the
right at issue was “clearly established” at the time of the
challenged conduct. To be “clearly established,” a right must be
sufficiently clear such that a reasonable official would have
known that his conduct was unlawful. Reichle v. Howards, 132 S.
Ct. 2088, 2093 (2012). Most recently, in Taylor v. Barkes, the
Supreme Court emphasized again that while a case directly on
point is not required to show that a right was “clearly
established,” “‘existing precedent must have placed the
statutory or constitutional question beyond debate.’” 135 S. Ct.
2042, 2044 (2015) (quoting Ashcroft v. al-Kidd, 131 S. Ct. 2074,
2083 (2011). The two prongs to the qualified immunity inquiry
need not be analyzed in sequential order; courts have discretion
to decide which of the two prongs to tackle first. al-Kidd, 131
33

S. Ct. at 2080; Pearson, 555 U.S. at 236.
Before turning to the question of whether Defendants are
entitled to qualified immunity on each of Plaintiff’s Fourth
Amendment claims, the Court notes that much of the qualified
immunity dispute in this case turns on which facts the Court is
to credit. Defendant’s argument is that under their version of
events, Defendants acted reasonably under the Fourth Amendment
because Frampton and Frucci “at all times utilized the force
necessary to gain compliance of Plaintiff.” (City of Camden and
Frampton Br. at 16.) They also argue that Defendant had probable
cause to arrest Plaintiff because Plaintiff pushed Frampton with
both hands. (Frucci Br. at 6.) Plaintiff, on the other hand,
contends that Defendants maliciously attacked Plaintiff when
Plaintiff had committed no crime, and thus their actions clearly
violated the Fourth Amendment. (Pl. Opp’n to Frucci Br. at 4.)
At summary judgment, courts are required to view the facts
and draw reasonable inferences in the light most favorable to
the party opposing the summary judgment motion. United States v.
Diebold, Inc., 369 U.S. 654, (1962) (per curiam); Saucier, 533
U.S. at 201. “In qualified immunity cases, this usually means
adopting . . . the plaintiff's version of the facts.” Scott v.
Harris, 550 U.S. 372, 378 (2007). In other words, the inquiry is
the following: “Taken in the light most favorable to the party
34

asserting the injury, do the facts alleged show the officer’s
conduct violated a constitutional right”, and that the right was
clearly established? Saucier, 533 U.S. at 201.
Although the question of qualified immunity is generally a
question of law, “a genuine issue of material fact will preclude
summary judgment on qualified immunity.” Giles v. Kearney, 571
F.3d 318, 326 (3d Cir. 2009); see also Curley v. Klem, 298 F.3d
271, 278 (3d Cir. 2002) (noting that “a decision on qualified
immunity will be premature when there are unresolved disputes of
historical fact relevant to the immunity analysis.”). The court
must deny summary judgment if on the plaintiff’s version of the
facts, defendants violated the plaintiff’s clearly established
constitutional rights. Giles, 571 F.3d at 327 (finding that
district court was wrong to dismiss Eighth Amendment claims on
qualified immunity grounds because there was a factual dispute
as to whether plaintiff had ceased resisting when he was kicked
by officers, and court “must accept [the plaintiff’s] version of
the facts.”).
The Court now turns to Plaintiff’s Fourth Amendment claims.
2. Defendants are not entitled to qualified immunity on
the excessive force claim, and summary judgment on
that claim is not warranted.
“To state a claim for excessive force as an unreasonable
seizure under the Fourth Amendment, a plaintiff must show that a
35

‘seizure’ occurred and that it was unreasonable.” Brower v.
County of Inyo, 489 U.S. 593, 599 (1989), quoted in Abraham v.
Raso, 183 F.3d 279, 288 (3d Cir. 1999). See also Graham v.
Connor, 490 U.S. 386, 395 (1989) (“[A]ll claims that law
enforcement officers have used excessive force—deadly or not—in
the course of an arrest, investigatory stop, or other ‘seizure’
of a free citizen should be analyzed under the Fourth Amendment
and its ‘reasonableness' standard”). “The use of excessive force
is itself an unlawful ‘seizure’ under the Fourth Amendment.”
Couden v. Duffy, 446 F.3d 483, 496 (3d Cir. 2006).
To determine the reasonableness of a seizure, the court
asks whether the officer’s conduct was “objectively reasonable”
in light of the totality of the circumstances, without regard to
the underlying intent or motivation. Graham v. Connor, 490 U.S.
386, 397 (1989) (citing Terry v. Ohio, 392 U.S. 1, 21 (1968));
Kopec v. Tate, 361 F.3d 772, 776 (3d Cir. 2004). The “objective
reasonableness” inquiry requires an examination of 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 flight.” Graham, 490 U.S. at 396. The Court should not
apply “the 20/20 vision of hindsight,” but should instead
36

consider the “perspective of a reasonable officer on the scene.”
Id.; see also Kopec, 361 F.3d at 777.
Here, Defendants Frampton and Frucci testified that
Plaintiff was aggressive from the moment they woke him inside
his truck. They testified that they approached the truck to ask
Plaintiff if he was all right, but that Plaintiff “aggressively
came out of the car,” “screaming belligerently, hands in the air
flailing around.” (Frucci Dep. 54:12-17.) According to
Defendants, Plaintiff then shoved Frampton with two hands, which
gave Defendants probable cause for arrest, but because Plaintiff
fought the officers, Defendants were forced to take him down to
the ground. Defendants testified that Plaintiff continued to
resist being handcuffed while on the ground, and that they
punched his face, arm, leg, ribs, and thigh several times in
order to get his hands out from underneath him. They testified
that the struggle on the ground lasted approximately 30 seconds,
and that they stopped hitting Plaintiff once they placed him in
handcuffs.
Plaintiff’s version of what happened is markedly different.
He testified that he awoke to police officers screaming at him
to get out of his truck. He repeatedly asked Frampton and Frucci
to identify themselves but they did not. He further testified
that despite exiting his truck peacefully with his hands up in
37

the air, four officers, including Frampton and Frucci,
repeatedly kicked and punched Plaintiff in the face and smashed
his head into the windshield of his truck while both of
Plaintiff’s arms were restrained. Plaintiff testified that even
after handcuffs were placed on him, the officers slammed him to
the ground and continued to kick him while standing on his head,
stomach, ribs, back, hands, and feet. He that the assault lasted
for about five minutes and he was kicked at least 20 times.
Plaintiff disputes that he was resisting arrest at any point and
denies ever shoving Frampton.
The summary judgment record consists almost entirely of
Plaintiff’s testimony and the testimony of Defendants Frampton
and Frucci. The contrasting accounts of what happened presents
factual issues as to the degree of force actually employed and
its reasonableness, and there is no other evidence in the record
that clearly supports or contradicts one version of events over
the other. This is clearly not a case where Plaintiff’s version
of events “is so utterly discredited by the record that no
reasonable jury could have believed him.” Scott v. Harris, 550
U.S. 372, 380 (2007). Viewing the facts in light most favorable
to Plaintiff, as this Court must, a reasonable jury could credit
Plaintiff’s testimony and find that Plaintiff was not resisting
arrest during the any part of the encounter; police officers
38

punched and kicked him while his arms were restrained; and that,
after taking Plaintiff to the ground and placing handcuffs on
him, officers continued to beat and kick Plaintiff and stand on
him for approximately five minutes while Plaintiff was lying on
the ground.
Under these set of facts, Defendants’ conduct was not
“objectively reasonable” and Plaintiff has satisfied the first
prong of the qualified immunity analysis.9 The gratuitous use of
force against an arrestee who has already been restrained
violates the Fourth Amendment. See Couden v. Duffy, 446 F.3d
483, 497 (3d Cir. 2006) (finding force excessive as a matter of
law where plaintiff was not “resisting arrest or attempting to
flee” at the time force was used); Robinson v. Andrews, at *9
(Sept. 18, 2014) (denying qualified immunity where officer
kicked plaintiff after he was already subdued, handcuffed, and
unable to pose any threat to the officer’s safety); Weber v.
Rodriguez, No. 07-2097, 2011 WL 2555358, at *5 (June 27, 2011)
(a reasonable juror could conclude that force used against the
plaintiff violated the Fourth Amendment when officers hit him on

9

Although Defendants’ argument with respect to qualified
immunity is not a model of clarity, Defendant Frampton appears
to concede that the first prong has been met. (Def. City of
Camden and Frampton Br. at 16) (“Moving Defendants acknowledge
Plaintiff has alleged a deprivation of a constitutional
right.”).
39

the head with a baton, punched and assaulted him after they
handcuffed and subdued him); Barker v. Keezer, No. 08–1487, 2010
WL 2760728, at *3 (D.N.J. July 8, 2010) (finding that repeatedly
smashing the head of a restrained arrestee into the pavement
constituted excessive force because such conduct “would appear
to serve no purpose other than to inflict bodily harm”); Hurt v.
City of Atlantic City, No. 08–3053, 2010 WL 703193 (D.N.J. Feb.
24, 2010) (holding that a beating a plaintiff for six or seven
minutes after bringing him to the ground and handcuffing him
constitutes excessive force); Brown v. Camden Cnty. Counsel, No.
06-6095, 2007 WL 433326, at *3 (D.N.J. Feb. 2, 2007) (holding
that plaintiff may be able to establish that defendant is liable
for using excessive force in violation of the Fourth Amendment
where he asserts that defendant savagely beat plaintiff, even
though plaintiff did not possess a weapon, resist arrest, or
attempt to flee).
The Court also finds that the second prong has been
satisfied. See Saucier, 533 U.S. at 202 (“The relevant,
dispositive inquiry in determining whether a right is clearly
established is whether it would be clear to a reasonable officer
that his conduct was unlawful in the situation he confronted.”).
At the time Defendants acted, the law was clear that beating an
unarmed suspect who was not resisting arrest violates the Fourth
40

Amendment’s prohibition against excessive force. See, e.g.,
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.”); Blazek v. City of Iowa City, 761 F.3d
920, 925 (8th Cir. 2014) (“It was clearly established in 2009
that when a person is subdued and restrained with handcuffs, a
“gratuitous and completely unnecessary act of violence” is
unreasonable and violates the Fourth Amendment.”); Morrison v.
Bd. of Trustees of Green Twp., 583 F.3d 394, 404 (6th Cir. 2009)
(“This Court has consistently held in light of the
reasonableness standard that ‘use of force after a suspect has
been incapacitated or neutralized is excessive as a matter of
law.’” (quoting Baker v. City of Hamilton, 471 F.3d 601, 607–08
(6th Cir. 2006))); Jennings v. Jones, 499 F.3d 2, 16-17 (1st
Cir. 2007) (holding that reasonable officer should have known
that it was unconstitutional to increase the use of physical
force after an arrestee who has been resisting arrest stops
resisting and warns officers that they are hurting him).
Applying the evidence most favorable to Plaintiff, a
reasonable officer could not have believed that beating an
unarmed man who was not resisting arrest with punches and kicks
while his arms were restrained, slamming him to the ground and
41

standing on various parts of his body, then kicking him
approximately 20 more times while he was lying on the ground,
was lawful. See Marshall v. Keansburg Borough, No. 13-533, 2013
WL 6095475, at *7 (D.N.J. Nov. 20, 2013) (“[N]o reasonable
office in the Defendant Officers' positions would have believed
that that throwing Plaintiff into their police vehicle, kicking
Plaintiff's legs out from him, tackling Plaintiff to the ground,
kneeing Plaintiff in his ribs and back, and choking Plaintiff
was a lawful, reasonable amount of force to use under the
circumstances.”). It would have been clear to a police officer
making an arrest that once Plaintiff no long posed a risk of
harm to police officers, the continued beating was excessive and
unconstitutional. Defendants Frampton and Frucci are not
entitled to qualified immunity.10
Defendants separately seek summary judgment on the claim of
excessive force, an argument the Court readily rejects. As

10

The Court readily rejects Defendants’ argument that “the
officers acted in good faith and are entitled to qualified
immunity.” (Def. City of Camden and Frucci Br. at 16.) The
qualified immunity inquiry does not turn on Defendants’ good
faith, and an inquiry into whether individual officers acted in
“good faith” “is incompatible with a proper Fourth Amendment
analysis,” and has no bearing on whether a particular seizure
was “unreasonable.” Graham v. Connor, 490 U.S. 386, 397 (1989);
see id. (“An officer's evil intentions will not make a Fourth
Amendment violation out of an objectively reasonable use of
force; nor will an officer's good intentions make an objectively
unreasonable use of force constitutional.”).
42

discussed above, there is a material dispute over whether
Defendants used gratuitous force against Plaintiff and whether
Plaintiff was resisting arrest. Since a reasonable juror could
credit Plaintiff’s version of the facts and find that
Defendants’ conduct violated the Fourth Amendment, summary
judgment is not warranted. Plaintiff’s excessive force claim
(Count One) may proceed.
3. Defendants are not entitled to qualified immunity on
the false arrest claim, and summary judgment is not
warranted on the false arrest and malicious
prosecution claims (Counts Two and Three)
In analyzing the qualified immunity defense to a claim of
false arrest,11 the first step is to determine whether Plaintiff
has alleged a deprivation of an actual constitutional right. An
“arrest without probable cause is a constitutional violation”
and gives rise to a cause of action for false arrest under 42
U.S.C. § 1983. Patzig v. O'Neil, 577 F.2d 841, 848 (3d Cir.
1978); see also O’Connor v. City of Philadelphia, 233 Fed. App’x
161, 164 (3d Cir. 2007). The Third Circuit has held that courts

11

Although Defendants’ brief is unclear, Defendant Frucci
appears to make some argument that he is entitled to qualified
immunity on the claim of false arrest. (See Frucci Br. at 6)
(contending, in qualified immunity section, that Defendant “had
probable cause to arrest the Plaintiff” when Plaintiff pushed
Frampton with both hands). The Court will therefore address the
issue of qualified immunity.
43

must apply a “common sense approach,” based on the totality of
the circumstances, to determine whether there was probable cause
to arrest. Paff v. Kaltenbach, 204 F.3d 425, 436 (3d Cir. 2000).
The inquiry is essentially one of reasonableness: “Whether
probable cause exists depends upon the reasonable conclusion to
be drawn from the facts known to the arresting officer at the
time of the arrest.” Devenpeck v. Alford, 543 U.S. 146, 153
(2004); see also Maryland v. Pringle, 540 U.S. 366, 371 (2003).
Put another way, a defendant officer violates an individual’s
Fourth Amendment right to be free from false arrest if it was
not objectively reasonable for the officer to believe that
probable cause existed at the time of the arrest. Johnson ex
rel. Johnson v. City of Pleasantville, No. 05-4258, 2007 WL
1412271, at *4 (D.N.J. May 14, 2007) (Simandle, J.). Defendants
are entitled to qualified immunity “if a reasonable officer
could have believed that probable cause existed” to arrest
Plaintiff “in light of clearly established law and the
information the [arresting] officers possessed.” Hunter v.
Bryant, 502 U.S. 224, 228–29 (1991); Anderson, 483 U.S. at 641;
Blaylock v. City of Philadelphia, 504 F.3d 405, 411 (3d Cir.
2007).
Whether Defendants had probable cause to arrest Plaintiff
is squarely in dispute in this case. Defendants hinge their
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argument on the fact that probable cause was established when
Plaintiff pushed Frampton. (See Frucci Br. at 6) (“When
Defendant Frampton came on to the scene, the Plaintiff pushed
him with both hands on the chest. At that point Defendants had
probable cause to arrest the Plaintiff.”) At deposition,
Frampton and Frucci testified that the initial basis for
arresting Plaintiff was Plaintiff’s alleged shove. Specifically,
Frucci testified that after Plaintiff gave Frampton a two-handed
push to the chest, “at that point, I told [Plaintiff] he was
under arrest and . . . tried [to] . . . place him in handcuffs.”
(Frucci Dep. 61:15-62:9.) Frampton similarly testified that
“[a]t that point [after being pushed], Frucci and I attempted to
place [Plaintiff] under arrest for assault.” (Frampton Dep.
57:1-2.) Plaintiff, however, denies that he ever pushed or
shoved Frampton. He insists, in other words, that the event
which gave rise to probable cause for his arrest never happened.
Viewing the evidence in light most favorable to the
Plaintiff, there is a genuine dispute whether Plaintiff’s
conduct reasonably gave Defendants probable cause to arrest him.
According to Plaintiff, Defendants approached his truck and
yelled at him to get out of his vehicle, and, after Plaintiff
stepped out of his truck with hands raised, Frampton initiated
physical contact by grabbing Plaintiff’s arm. Plaintiff
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testified that officers then began hitting and punching him, and
at some point handcuffs were placed on him. Under Plaintiff’s
set of facts, it was not objectively reasonable for Defendants
to believe that probable cause existed because there was no
basis to suspect that Plaintiff had committed or was about to
commit a crime. See Beck cv. Ohio, 379 U.S. 89, 91 (1964)
(noting that arrest without warrant is constitutionally valid if
“at the moment the arrest was made . . . the facts and
circumstances within [the officers'] knowledge and of which they
had reasonably trustworthy information were sufficient to
warrant a prudent man in believing that the petitioner had
committed or was committing an offense.”). Indeed, Defendants
all but conceded at deposition that they did not suspect
Plaintiff of drinking or committing any unlawful activity when
they approached his truck and before Plaintiff allegedly shoved
Frampton. Defendants did not smell alcohol on his breath or
notice anything in or around his truck that aroused suspicion.
They did not ask to see Plaintiff’s license or registration
number. (See Frucci Dep. 46:11-15, 53:15-11; Frampton Dep.
45:17-20.)12

12

Defendant Frampton appears to argue that probable cause
existed because Plaintiff was resisting arrest. (See City of
Camden and Frampton Br. at 16-17) (noting that “Plaintiff
existed his vehicle and did not allow himself to be handcuffed”
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At the time Defendants acted, it was clearly established
that probable cause for arrest does not exist where the
circumstances do not suggest that an individual had committed or
was about to commit a crime. Reasonable officials in Defendants’
position would have understood that their actions violated
Plaintiff’s rights. Defendants are not entitled to qualified
immunity. See Giles v. Kearney, 571 F.3d 318, 326 (3d Cir.
2009); Curley v. Klem, 298 F.3d 271, 278 (3d Cir. 2002) (noting
that “a decision on qualified immunity will be premature when
there are unresolved disputes of historical fact relevant to the
immunity analysis.”).
Defendants also move for summary judgment on the false
arrest claim. As discussed above, there is a genuine material
dispute whether Plaintiff’s conduct gave rise to probable cause
for an arrest. Resolution of this issue requires a credibility

and that “probable cause existed to arrest Plaintiff based upon
said facts. It is undisputed that Plaintiff would not allow
either officer to handcuff him after he exited the van.”).
However, in order for the police to have properly arrested
Plaintiff, they must have had probable cause for the initial
arrest on the aggravated assault. As the Third Circuit has
observed, a “resisting arrest charge “[cannot] provide[]
probable cause for the arrest ab initio.” Groman v. Twp. of
Manalapan, 47 F.3d 628, 635 (3d Cir. 1995); see also Trafton v.
City of Woodbury, 799 F. Supp. 2d 417, 436 (D.N.J. 2011)
(holding that disorderly conduct, assault, and resisting arrest
cannot provide justification for Plaintiff’s initial arrest
because they “all arose either during or after Plaintiff’s
arrest.”).
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determination that this Court cannot make at this stage,
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986), and
the evidence is not so clearly one-sided that a jury must find
in favor of one party, especially after giving Plaintiff the
benefit of all justifiable inferences. Defendants are not
entitled to summary judgment.
The Court will also permit Plaintiff’s malicious
prosecution claim to proceed because the factual dispute
identified above also prevents summary judgment on this claim.13
To prove the constitutional tort of malicious prosecution, the
plaintiff must show that (1) the defendants initiated a criminal
proceeding; (2) the criminal proceeding ended in the plaintiff's
favor; (3) the proceeding was initiated without probable cause;
(4) the defendants acted maliciously or for a purpose other than
bringing the plaintiff to justice; and (5) the plaintiff
suffered a deprivation of liberty consistent with the concept of
“seizure.” Johnson v. Knorr, 477 F.3d 75, 81-82 (3d Cir. 2007);
Merkle v. Upper Dublin Sch. Dist., 211 F.3d 782, 791 (3d Cir.
2000); Gallo v. Philadelphia, 161 F.3d 217, 222 (3d Cir. 1998).

13

Defendant Frucci does not address the malicious prosecution
claim in his brief. Defendant Frampton seeks summary judgment on
the malicious prosecution claim but does not assert a qualified
immunity defense. (See City of Camden and Frampton Br. at 1617.)
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In moving for summary judgment on this claim, Defendants
argue only that the third and fourth prongs have not been met,
because probable cause existed based upon the summary judgment
record, and Defendants did not act maliciously “in their brief
interaction with Plaintiff.” (City of Camden and Frampton Br. at
17.) The Court does not agree.
First, the same factual dispute that precluded summary
judgment on Plaintiff’s false arrest claim also precludes this
Court from finding that Defendants had probable cause to bring
charges against Plaintiff for aggravated assault. See
Brockington v. City of Philadelphia, 354 F. Supp. 2d 563, 569-70
(E.D. Pa. 2005) (denying summary judgment on malicious
prosecution claim and false arrest claim brought under 42 U.S.C.
§ 1983 because genuine issue of fact existed as to whether
officer had probable cause to arrest plaintiff). Similarly,
because Plaintiff testified repeatedly that he never resisted
arrest, factual issues also remain as to whether the resisting
arrest charge was brought with probable cause. With respect to
the question of whether Defendants acted with malice, a
reasonable jury could find, viewing the evidence in light most
favorable to Plaintiff, that Defendants brought the charges
against Plaintiff when Plaintiff did not assault either officer
and did not resist arrest. A reasonable jury could therefore
49

conclude that in bringing the charges without probable cause,
Defendant acted for a purpose other than to bring Plaintiff to
justice. See Montgomery v. De Simone, 159 F.3d 120, 126 (3d Cir.
1998) (reversing grant of summary judgment on malicious
prosecution charge and noting that summary judgment on that
claim is “only appropriate if . . . resolving all inferences in
[plaintiff’s] favor, a reasonable jury could not find a lack of
probable cause for [plaintiff’s] stop and arrest.”);
Brockington, 354 F. Supp. 2d at 570 (because the facts suggested
that defendant falsified a probable cause finding, a “natural
conclusion” was that defendant acted with malice).
Accordingly, the Court will deny summary judgment on the
malicious prosecution claim and allow it to proceed to trial.
D. The state law claims against Defendants must be
dismissed for failure to comply with the NJTCA’s notice
of claim requirement
The New Jersey Tort Claims Act (“NJTCA”) requires notice of
a claim of injury against a public entity to be presented within
ninety days of the accrual of a cause of action. See N.J.S.A.
59:8-3 (“No action shall be brought against a public entity or
public employee under this act unless the claim upon which it is
based shall have been presented in accordance with the procedure

50

set forth in this chapter.”)14 After the notice of claim is
filed, a plaintiff must wait six months before filing suit
against the public entity or employee in an appropriate court.
Id. A plaintiff is forever barred from recovering damages from a
public entity if “he fail[s] to file his claim with the public
entity within ninety (90) days . . . .” N.J.S.A. 59:8-8.
Providing such notice within 90 days achieves several
goals. It allows the public entity time to review the claim and
to promptly investigate the facts and prepare a defense;
provides them an opportunity to settle meritorious claims before
bringing suit; grants them an opportunity to correct the
conditions which gave rise to the claim; and allows them to
inform the State in advance as to the expected liability. Velez
v. City of Jersey City, 850 A.2d 1238, 1242 (N.J. 2004); see
also N.J.S.A. 59:8-3, Comment.

14

The NJTCA sets forth the procedures a claimant must follow
before bringing a tort claim against the state, or, as is
relevant here, a “local public entity.” N.J. Stat. Ann. § 59:1–1
et seq. The notice of claim must be presented to the Attorney
General or the agency involved in the alleged wrongful act and
must include, among other things, (1) the name and address of
the claimant; (2) the address for sending communication about
the claim (2) the date, place, and other circumstances of the
occurrence which gave rise to the claim; (3) a general
description of the known injury, damage, or loss incurred “so
far as it may be known at the time”; (4) the name of the public
entity, employee, or employees causing the injury; and (5) the
amount claimed as of the date of presentation of the claim.
N.J.S.A. 59:8-4.
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Because Plaintiff concedes that a notice of claim was never
filed before Plaintiff filed suit in this court, the Court is
barred by N.J.S.A. 59:8-8 from considering Plaintiff’s state
tort claims. See, e.g., Guzman v. City of Perth Amboy, 518 A.2d
758, 760-61 (N.J. Super. Ct. App. Div. 1986) (holding that
plaintiff’s claims were barred because plaintiff failed to
comply with the notice requirement under N.J.S.A. 59:8-8);
Pinckney v. Jersey City, 355 A.2d 214, 215 (N.J. Super. Ct. Law
Div. 1976) (holding that plaintiff’s NJTCA claims were barred by
the express terms of N.J.S.A. 59:8-8 because plaintiff failed to
file a claim within 90 days and failed to move within one year
to file a late notice of claim).
Plaintiff’s argument, that the notice requirement does not
reach actions by public employees classified under N.J.S.A.
59:3-14 as actions constituting a crime, actual fraud, actual
malice, or willful misconduct, has been squarely rejected by the
New Jersey Supreme Court. See Velez, 850 A.2d at 1256 (holding
that the NJTCA’s notice requirements apply to conduct described
in N.J.S.A. 59:3-14); see also Davis v. Twp. of Paulsboro, 371
F. Supp. 2d 611, 619 (D.N.J. 2005) (citing Velez and noting that
the notice of claim provisions apply to causes of action based
on the intentional conduct of public employees).
The Court must also reject Plaintiff’s argument that the
52

claims did not accrue until June 21, 2013, after the criminal
charges against Plaintiff were dismissed, and that Plaintiff’s
filing of a complaint in this court satisfies the notice
requirement. As the New Jersey Supreme Court held in Beauchamp
v. Amedio, 751 A.2d 1047, 1052 (N.J. 2000), “[T]he notice
[requirements are] triggered by the occurrence of injury and
[notice] must be filed in order for a complaint to be lodged
against the public entity.” Plaintiff’s claims accrued on
January 26, 2012, the date on which the incident occurred. See
Beauchamp, 751 A.2d at 1052 (“A claim accrues on the date of the
accident or incident that gives rise to any injury, however
slight, that would be actionable if inflicted by a private
citizen”); Cliett v. City of Ocean City, No. 06-4368 2007 WL
2459446, at *3 (D.N.J. Aug. 24, 2007) (Simandle, J.) (“[T]he
accrual date of a claim is the date on which the alleged tort is
committed or the negligent action or omission occurred.”). Even
if Plaintiff’s claim accrued on the date the criminal charges
were dismissed, the filing of the Complaint in this case does
not satisfy the notice requirement. See Guzman, 518 A.2d at 760
(“[T]he filing of a complaint would not be a substitute for the
notice required by statute, whether the complaint was filed
within the 90-day or the one-year period.”); Baker v. Allen, No.
03-2600, 2006 WL 1128712, at *16 (D.N.J. Apr. 24, 2006) (“Strict
53

compliance is required to satisfy the Tort Claims Act, and the
filing of a complaint is not a substitute for a notice of
claim.”).
Although Plaintiff has not moved to file a late notice of
claim, the Court notes that it has no discretion to grant him
the opportunity to do so. The NJTCA states that a claimant who
fails to file a notice of claim within 90 days “may, in the
discretion of a judge of the Superior Court, be permitted to
file such notice at any time within one year after the accrual
of his claim provided that the public entity or the public
employee has not been substantially prejudiced thereby.”
N.J.S.A. 59:8-9. In other words, N.J.S.A. authorizes the court,
in its discretion, to extend the time for filing a notice of
claim to a period not exceeding one year following accrual of
the cause of action. Here, however, Plaintiff’s claim accrued on
January 26, 2012, and the one-year limitation expired on January
26, 2013. “After the one-year limitation has passed, ‘the court
is without authority to relieve a plaintiff from his failure to
have filed a notice of claim, and a consequent action at law
must fail.’” Pilonero v. Twp. of Old Bridge, 566 A.2d 546, 548
(N.J. Super. Ct. App. Div. 1989) (quoting Speer v. Armstrong,
402 A.2d 963, 965 (N.J. Super. Ct. App. Div. 1979)); see also
Anaya v. Vernon Twp., 354 A.2d 338, 340 (N.J. Super. Ct. App.
54

Div. 1976) (noting that court had no authority to permit filing
of late notice of claim because notice was filed more than one
year after date on which claim accrued), certif. denied, 366
A.2d 650 (N.J. 1976).
Because Plaintiff did not file a notice of claim pursuant
to N.J.S.A. 59:8-8, Plaintiff’s state law claims (Counts Six
through Ten) are barred and will be dismissed with prejudice.
IV. CONCLUSION
For the foregoing reasons, the Court will deny summary
judgment on Plaintiff’s Fourth Amendment claims against Frampton
and Frucci (Counts One, Two, and Three), deny summary judgment
on the Monell claim against the City of Camden for failure to
investigate the use of excessive force (Count Four), and grant
summary judgment on all other claims. The accompanying Order
will be entered.

June 29, 2015
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

55