CASTELLANI v. CITY OF ATLANTIC CITY et al

Filing 365

OPINION. Signed by Judge Jerome B. Simandle on 7/20/2017. (dmr)

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

DAVID CONNOR CASTELLANI,
Plaintiff,

HONORABLE JEROME B. SIMANDLE

v.
Civil No. 13-5848 (JBS/AMD)
CITY OF ATLANTIC CITY, POLICE
OFFICER STERLING WHEATEN;
POLICE OFFICER DARRIN LORADY;
POLICE OFFICER AVETTE HARPER;
POLICE OFFICER KEVIN LAW;
POLICE OFFICER SCOTT SENDRICK;
POLICE OFFICER MATTHEW ROGERS,
SERGEANT DARYL HALL

OPINION

Defendants.

APPEARANCES:
Jennifer Ann Bonjean, Esq.
Ashley Blair Cohen, Esq.
BONJEAN LAW GROUP PLLC
1000 Dean St., Suite 345
Brooklyn, NY 11238
Attorneys for Plaintiff
A. Michael Barker, Esq.
Todd J. Gelfand, Esq.
Vanessa Elaine James, Esq.
BARKER, GELFAND & JAMES
Linwood Greene, Suite 12
210 New Road
Linwood, NJ 08221
Attorneys for Defendant City of Atlantic City
Tracy Riley, Esq.
LAW OFFICES OF RILEY & RILEY
100 High Street, Suite 302
Mt. Holly, NJ 08060
Attorney for Defendant Police Officer Sterling Wheaten

Franklin Barbosa, Jr., Esq.
Richard D. Trenk, Esq.
TRENK DISPASQUALE DELLA FERA & SODONO P.C.
347 Mt. Pleasant Ave.
West Orange, NJ 07052
Attorneys for Police Officers Darrin Lorady, Avette
Harper, Kevin Law, Scott Sendrick, and Matthew Rogers
John Charles Hegarty, Esq.
JASINSKI, P.C.
707 White Horse Pike
Suite A1
Absecon, NJ 08201
Attorney for ACPD Sergeant Daryl Hall

SIMANDLE, District Judge:
Contents
INTRODUCTION .............................................. 3 

I. 
II.  

BACKGROUND .............................................. 4 

A. 

Summary Judgment Record ................................. 4 

B. 

Procedural Background .................................. 14 

III. STANDARD OF REVIEW....................................... 15 
DISCUSSION .............................................. 18 

IV.
A. 

Defendant Officers Lorady, Law, Sendrick, Rogers, and
Harper ................................................. 18 

1. 

Qualified Immunity Overview ........................... 19 

2. 

Defendant Officers are Not Entitled to Qualified Immunity
on the Excessive Force Claim, and Summary Judgment on
that Claim is not Warranted. .......................... 22 

3. 

Summary Judgment is Warranted on Plaintiff’s Malicious
Prosecution Claim (Count I) ........................... 30 

4. 

Summary Judgment is Not Warranted on Plaintiff’s Due
Process Claim (Count I) ............................... 32 

5. 

Summary Judgment is Not Warranted on Plaintiff’s Civil
Conspiracy Claim (Count III) .......................... 36 

6. 

Summary Judgment is Warranted on Plaintiff’s Intentional
Infliction of Emotional Distress Claim (Count III) .... 38 

2

B. 

Defendant Wheaten is Not Entitled to Qualified Immunity on
the Excessive Force Claim, and Summary Judgment on That
Claim is Not Warranted ................................. 39 

C. 

Summary Judgment is Warranted on Plaintiff’s Claim Against
Defendant Hall for Supervisory Liability (Count IV) .... 52 

D. 

Plaintiff’s Monell Claims Against the City of Atlantic ...
City (Count II) ........................................ 57 

V. CONCLUSION................................................. 78 

I.

INTRODUCTION
Plaintiff David Connor Castellani (hereinafter, “Plaintiff”

or “Castellani”) filed suit against various Atlantic City Police
Department (“ACPD”) officers and the City of Atlantic City
arising out of an alleged assault outside the Tropicana Casino &
Resort in the early morning of June 15, 2013. Castellani claims
that after he was ejected from the casino for being underage,
insults were exchanged between several ACPD officers and
himself, that the officers crossed the street to assault him as
he stood on the sidewalk, that he was punched, kicked, and hit
on the ground with nightsticks, and that after he was subdued a
police officer placed a police dog on his prone body, which
inflicted severe bites to his chest and neck requiring
hospitalization and several hundred stitches. Plaintiff has
brought numerous claims for deprivation of constitutional rights
including use of excessive and sadistic force by the arresting
officers, supervisory liability by a canine unit supervisor, and
municipal liability for constitutional violations by Atlantic
3

City for adopting customs and policies that are indifferent to
the rights of those being arrested and for use of canine force
against arrestees, among other things. Surveillance video
captures much but not all of the encounter at issue.
Before the Court are four motions for summary judgment: (1)
Sergeant Daryl Hall, (2) Police Officer Sterling Wheaten, (3)
Police Officers Avette Harper, Darrin Lorady, Kevin Law, Matthew
Rogers, and Scott Sendrick, and (4) the City of Atlantic City
(collectively, “Defendants”). For the reasons set forth below,
the Court denies Defendants’ motions related to Plaintiff’s
excessive force and Monell claims, and it grants Defendant
Hall’s motion on supervisory liability.
II.

BACKGROUND

A. Summary Judgment Record
The Court begins with the summary judgment record.1 On the
evening of June 14, 2013, Plaintiff, a twenty-year-old male,
took a limousine to the Tropicana in Atlantic City along with
five of his friends after more than one but “somewhere around”

1

As Plaintiff did not file any supplemental statements of facts
in compliance with Local Civil Rule 56.1, the Court has relied
primarily on Defendants’ statements of material facts and
Plaintiff’s responsive statements. The Court has also included
additional facts and testimony from the summary judgment record,
the surveillance video and oral argument transcript in order to
present a fuller record from which to decide the pending
motions.
4

five vodka mixed drinks at his friend’s house. (Def. Wheaten
SUMF at ¶¶ 6-7; Def. Atlantic City SUMF at ¶ 11.) Plaintiff and
his friends brought alcohol with them as they rode in the
limousine. (Def. Officers SUMF at ¶ 11.) When they arrived,
Plaintiff and his friends, all under 21 years old, went to
several bars inside the casino, and consumed several more
alcoholic drinks there. (Def. Wheaten SUMF at ¶¶ 11-16; Def.
Officers SUMF at ¶ 10.) Plaintiff testified that he was
“overserved” at these bars. (Def. Officers SUMF at ¶ 14.)
After midnight of that same night, Plaintiff went to Boogie
Nights, a club located in the Tropicana and a place that he had
visited at least five times prior to this particular night.
(Def. Wheaten SUMF at ¶ 17; Def. Officers SUMF at ¶ 16.)
Plaintiff obtained entry into the club, but once he was inside,
a security guard who recognized him from previous ejections
questioned Plaintiff about his identification. (Def. Officers
SUMF at ¶ 17.) Plaintiff was upset with the security guard and
accused him of harassing him. (Def. Atlantic City SUMF at ¶ 29.)
After a verbal altercation in which Plaintiff swore at the guard
and stated that the guard was “nothing but a rent-a-cop,”
Plaintiff was evicted from the club and the casino. (Def.
Wheaten SUMF at ¶¶ 19-23; Castellani Dep. at 121:6-25.)
Plaintiff was evicted from the casino three times that night,
5

and he attempted to reenter the casino two times after being
evicted. (Def. Wheaten SUMF at ¶¶ 24-25.)2

Plaintiff stated that

he continued to reenter the premises because he was “literally
just trying to find [his] friends and go home because they were
[his] ride.” (Castellani Dep. at 137:14-16.) At some point,
Plaintiff was taken to the ground and handcuffed by casino
security officers. (Atlantic City SUMF at ¶ 42.) Plaintiff was
issued a disorderly conduct summons by Officer Lorady and after
Plaintiff was released from handcuffs, he agreed to leave the
premises. (Def. Wheaten SUMF at ¶¶ 32, 35.)3

Plaintiff began to

walk away from the premises after receiving his summons and
started talking on his cell phone.
However, a few minutes later, Plaintiff attempted again to
return to the property. Surveillance video (without audio)
begins to capture the scene around 3:04 A.M. Plaintiff told
Officer Lorady that he needed to go back into the casino to look
for a lost diamond earring, as the video shows Plaintiff
checking the ground and his pockets around 3:05:33. (Id. at ¶

2

At some point during one of his evictions, Plaintiff picked up
a security guard’s watch and “threw his watch” at him because
the security guard “put his hands on [Plaintiff] and pushed
[him].” (Castellani Dep. at 123:23 to 124:15.)
3 Surveillance video also captures Plaintiff’s release from
handcuffs at 2:59:07, approximately ten minutes before the
physical confrontation between Plaintiff and the police
officers.
6

37.) Plaintiff found his earring was actually in his pocket
(around 3:05:49), and was told to leave the premises again.
(Atlantic City SUMF at ¶ 60.) Plaintiff begins to walk away from
the officers at 3:06:03.
At 3:06:10, Plaintiff puts in his earring, takes out his
cell phone and begins to text message on his cell phone. From
3:06:50 to 3:07:40, Plaintiff appears to be having a
conversation on his cell phone. At 3:07:40, Plaintiff walks back
towards Officers Lorady, Sendrick, Law, and Rogers, and begins
have a short conversation with them. Plaintiff testified that he
asked the group of officers present if they could escort him to
his ride in front of the Tropicana, but they declined to do so.
(Id. at ¶¶ 63-64.) At 3:08:03, Plaintiff walks away from the
officers and crosses the street. At 3:08:13, from the other side
of the street, Plaintiff begins to gesticulate and shout insults
at the officers. Plaintiff testified:
I was upset and [the officers] said that the sidewalk in
front of the Tropicana is also technically Tropicana
property, and I had to go across the street and away from
it. So I crossed the street and I put my hands up, said all
right, now I’m off the f***ing property, you happy now, you
a**holes. Now I’m stuck stranded out here. I’m trying to
get my ride. And I was just yelling back at them and I was
upset . . . [they] [k]ept saying go home, go home little
boy.”
(Castellani Dep. 190:8-20.)
Plaintiff further stated, at 3:08:37, “f*** you guys,
7

you’re all a bunch of idiots, bunch of losers who are cops now
because you couldn’t do anything else.” (Id. at 191:16-18.)4
Plaintiff testified that in response, the officers were “calling
me a drunk idiot and a kid and I had to go home to my mom and
stuff. And just kept telling me to leave, that I should f*** off
and stuff of that nature.” (Id. at 191:25 to 192:9.)5
As Plaintiff continues to yell at the officers, at 3:08:47,
the video shows, and Plaintiff admits, that he put his hands up
in the air with his fingers closed for several seconds. (Id. at
192:22-23.) At 3:08:58, Plaintiff begins to walk away from the
officers. At 3:09:04, he turns around, standing in his place
from across the street, and starts gesticulating and shouting at
the officers again. He continues walking away for several more
seconds, but stops at 3:09:12 and begins to yell again, and
Plaintiff concedes that his hands are in the air and his fists
“may be clenched.” (Id. at 196:20.) He explained that the
officers “wouldn’t stop talking to me,” he was “drunk and upset”
and told them “I’m not doing anything. I’m going on my way.

4

Plaintiff explained that the officers ordered him to cross the
street and proceeded to insult and taunt him, “egging” him on
and calling him “a stupid, drunk kid, to go home to my mom.”
(Castellani Dep. at 159:14-15.)
5 The surveillance video zooms out at 3:08:40 and again at
3:08:54 to show that Plaintiff and the officers are on opposite
sides of the street.
8

Thanks. Now I can’t get home.” (Id. at 196:3-4, 17.) He further
testified that he hadn’t left at this point because “I was being
antagonized. I was a drunk underage kid.” (Id. at 198:10:11.)
Plaintiff points at the officers at 3:09:13 and intermittently
continues to walk away and yell from 3:09:23 to 3:09:33. At
3:09:34, Plaintiff appears “very emotional” and is “speaking
with his hands.” (Id. at 199:6-7.)
At 3:09:36, Plaintiff walks closer to the officers, but
stays on the opposite side of the street. He testified that as
he started walking back towards the officers, one of them said,
“I’ll beat your a** if you come back here.” (Id. at 160:6-9.) At
3:09:44, Plaintiff stops walking, but continues to shout at
them; he puts his hands straight down and remains in place.6

At

3:09:49, as the shadow of the emerging officers appears in the
video, Plaintiff extends his hands out to the side.
Plaintiff is standing on the sidewalk alone when suddenly

6

The parties dispute whether Plaintiff was told he was under
arrest at this point (or at any point during the entire
incident), as no audio accompanies the surveillance video.
Plaintiff states that he was “not told I was under arrest” when
the officers ran across the street to assault him, whereas
Defendant Lorady states in his police report that before he ran
towards Plaintiff, he first advised that if Plaintiff “walked
over here again he was going to be placed into custody,” and
when Plaintiff continued to walk towards the officers, Lorady
told Plaintiff “that he was under arrest . . . I advised him to
get on his knees and place his hands on top of his head.” (Ex. I
to Def. Wheaten Br. at 17.)
9

Officer Lorady appears at 3:09:50, and immediately engages
physically with Plaintiff. Officers Sendrick, Law and Rogers
emerge immediately behind Officer Lorady in an attempt to
restrain Plaintiff. A scuffle ensues at 3:09:51 and Plaintiff is
on the ground by 3:10:01.7

Plaintiff states that at this point,

he was “severely beat and assaulted by [the officers] with
sticks, clubs, punches, knees to the head, [and] kicks . . .”
(Id. at 162:14-16.)8

Defendant Wheaten states in his police

report that at 3:10, he was dispatched “in reference to a male
who was fighting police,” and the officers requested a K-9 unit
“due to the violent struggle they were in attempting to subdue
the male and place him in custody.” (Ex. I to Def. Wheaten SUMF
at 12.) Defendant Wheaten further wrote that he “could hear in

7

The parties vigorously dispute what occurs on the video from
3:09:51 to 3:10:51, from the point of contact between Plaintiff
and Officer Lorady, to the point where Officer Wheaten and Hagan
make contact with Plaintiff. In his police report, Officer
Lorady explains that he “ran towards Castellani and attempted to
grab hold of his hands to hand cuff him. While trying to grab
hold of his hands, Castellani pushed my hands away and swung
with his left fist striking me in the head.” (Ex. I to Def.
Wheaten Br. at 17.) On the other hand, Plaintiff states that in
response to Lorady moving towards him, his hands “go up to
defend myself from getting punched in the face,” and that he did
not resist arrest. (Castellani Dep. at 203:25 to 204:2.)
8 The Court notes that from 3:10:08 to 3:10:13, a taxicab
completely obstructs the view of the incident. Additionally, as
the officers were beating him, Plaintiff states that “they were
saying stop, stop resisting,” but he replied “I’m not resisting,
I’m not resisting, but they just kept beating me.” (Castellani
Dep. at 168:21-23.)
10

their voices an elevated tone of stress and knew they were in
trouble.” (Id.)
From 3:10:14, the video shows that Plaintiff is curled up
in the fetal position while the officers continue to kick, knee
and punch him. Officer Harper joins at 3:10:34 and begins to
knee Plaintiff. By 3:10:40, Plaintiff’s legs are extended and he
is completely lying on his stomach.
At 3:10:41, the K-9 van arrives, and at 3:10:49, Defendant
Wheaten emerges with his K-9, Hagan.9

As Defendant Wheaten holds

Hagan’s collar, without hesitation, he places Hagan directly
onto Plaintiff’s chest at 3:50:51. Hagan moves Plaintiff to his
right, and the dog bites Plaintiff in the back of the neck
repeatedly from 3:10:55 to 3:11:00. The biting continues behind

9

Again, the parties vigorously dispute what occurs at this
point, even with video evidence. According to Officer Wheaten’s
police report, he arrived on the scene and observed the five
officers “in a fight with a male . . . on the ground.” (Ex. I to
Def. Wheaten Br. at 12.) As he approached Plaintiff with Hagan
on collar, Wheaten states that Plaintiff was “actively resisting
arrest, refusing to obey Officers’ commands.” (Id.) Given that
Wheaten “was in fear that he was in possession of a weapon and
that he was an immediate threat to the officers’ safety as well
as any people in the surrounding area,” he deployed Hagan. (Id.)
On the other hand, Plaintiff states that at the time Officer
Wheaten arrived, “[m]y arms were behind me,” “officers on top of
me,” and “[o]ne arm was in a handcuff, the other arm was being
restrained back.” (Castellani Dep. at 167:11-13.) Then, while he
was “prone with a cuff on my arm, Officer Wheaten sicced a K9
unit dog on my chest and it proceeded to attack my neck while
[Officer Wheaten] punched me in the back of my head as the dog
was chewing on me.” (Id. 162: 17-20.)
11

the K-9 van (and thus partially obstructed from the viewer, who
can only see Hagan’s moving hindlegs and wagging tail, and
Wheaten’s backside over Hagan) starting at 3:11:00 for at least
another fifteen seconds. By 3:11:20, the entire incident is
completely obstructed by the van. Officers begin to step away
from Plaintiff at 3:11:26, but Wheaten and his K-9 do not emerge
again until 3:12:20. Defendant Wheaten finally puts his K-9 back
into the van at 3:12:43. The officers then congregate next to
the van, but Plaintiff does not appear in the video again.
Plaintiff was eventually handcuffed, arrested, and
charged. (Def. Wheaten SUMF at ¶ 51.) He was taken to the
hospital where his blood alcohol level was .21. (Def. Officers
SUMF at ¶¶ 60-61.) He was subsequently hospitalized for four
days because of serious injuries to the back of his head and
chest, which required over two hundred stiches. (Ex. E to Def.
Wheaten Opp’n; Castellani Dep. at 219:2-4.) After an
investigation by the Atlantic County Prosecutor into the conduct
of Plaintiff and Defendant Officers, Plaintiff was indicted by a
grand jury for Aggravated Assault – Police Officer, in violation
of N.J.S.A. 2C:12-1b(5), Resisting Arrest – Threats/Force, in
violation of N.J.S.A. 2C:29-2a(3)(a) and Inflicting Harm on a
Law Enforcement Animal, in violation of N.J.S.A. 2C:29-3.1. (Id.
at ¶ 57; Atlantic City SUMF at ¶ 115.) Subsequent to Plaintiff’s
12

indictment, he applied to New Jersey’s Pretrial Intervention
Program, and he was admitted to the program on July 23, 2015.
(Id. at ¶ 62.)
Expert Reports
Regarding excessive force, Plaintiff submitted two expert
reports: one from Brian T. Weaver, P.E., President & Principal
Engineer at Explico Engineering Co., who provided a
biomechanical analysis of the surveillance video and concluded
that “there was no contact between Mr. Castellani’s left hand
and Officer Lorady’s face” during the initial encounter. (Ex. H
to Officer Opp’n.) Additionally, Plaintiff submitted the
declaration of Van Ness H. Bogardus, III, a retired Los Angeles
County Deputy Sheriff and an advisor and trainer of police dogs
and their handlers. (Ex. K to Def. Officers Opp’n.) Regarding
the initial contact between Plaintiff and Defendant Lorady, Mr.
Bogardus opined that “[b]y running toward and attempting to
intentionally punch/strike Mr. Castellani in the head or face,
Officer Lorady’s conduct stands in gross violation of generally
accepted police use of force training standards requiring that
an officer must be responding to an immediate and a credible
threat of sustaining a serious injury . . . before any use of
potentially injuring force can be justified.” (Id. at 39.) After
a detailed examination of the six police reports, Mr. Bogardus
13

opined that “Officer Lorady falsely portrays himself as a victim
of aggravated assault on a police officer by embellishing his
report with facts and actions about Mr. Castellani that were not
observed by the three assisting officers directly behind him.”
(Id. at 44.) Additionally, Mr. Borgadus opined that it is
“shocking to see that officer Wheaten permitted the dog to bite
Mr. Castellani’s chest and the back of Mr. Castellani’s head and
back for two minutes,” which violates the ACPD’s Use of Force
Policies. (Id. at 18.)
Regarding municipal liability, Plaintiff submitted two
expert reports from Dr. Jon Shane, an associate professor of
criminal justice at John Jay College of Criminal Justice in New
York, NY. The first is a report “regarding the pattern of
complaints against Atlantic City Police Officers Sterling
Wheaten and Darrin Lorady,” and the second is a report
“regarding the Atlantic City Police Departments Internal Affairs
Process and the pattern of complaints against Atlantic City
police officers between 2009-2013.” (Exs. A and B to Atlantic
City Opp’n.)
No contrary expert reports have been submitted on behalf of
Defendants.
B. Procedural Background
Plaintiff filed a Second Amended Complaint on August 13,
14

2015. [Docket Item 94.] Count I is a 42 U.S.C. § 1983 excessive
force and unlawful search and seizure claim against Defendants
Wheaten, Lorady, Sendrick, Law, Rogers, and Harper. Count II is
a § 1983 municipal liability claim against the City of Atlantic
City. Count III is a claim against Defendants Wheaten, Lorady,
Sendrick, Law, Rogers, and Harper alleging various state law
tort violations. Count IV is a failure to supervise claim
against Defendant Hall. Count V is a punitive damage claim
against Defendants Wheaten, Lorady, Sendrick, Law, Rogers, and
Harper. Plaintiff withdrew his claim for unlawful arrest on
November 12, 2015. (Atlantic City SUMF at ¶ 114.) The Court
conducted oral argument on all of the pending summary judgment
motions on July 12, 2017. [Docket Item 363.]
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
15

summary judgment, the court is required to examine the evidence
in a 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).
Nevertheless, where, as here, there is video footage
related to the claims, the Court will not draw inferences that
are “blatantly” inconsistent with the video evidence. See Scott
v. Harris, 550 U.S. 372, 380–81 (2007) (“When opposing parties
tell two different stories, one of which is blatantly
contradicted by the record, so that no reasonable jury could
believe it, a court should not adopt that version of the facts
for purposes of ruling on a motion for summary judgment . . .
[and thus, t]he Court of Appeals should not have relied on such
visible fiction; it should have viewed the facts in the light
depicted by the videotape.”). In other words, the existence in
the record of a videotape capturing the events underlying a
claim presents an “added wrinkle” to the usual standard which
requires courts “to view the facts and draw reasonable
inferences ‘in the light most favorable to the party opposing
the [summary judgment] motion.’” Id. at 378 (citations omitted).
This factor is important in the present case where much of the
encounter, including the police officers subduing Plaintiff and
16

the vicious deployment of K9 Hagan, is captured on video and may
reasonably be interpreted as favorable and supportive toward
Plaintiff’s version of events.10

Additionally, video evidence

does not blatantly contradict a non-movant’s account for summary
judgment purposes when there is an obstruction that “block[s]
the view of the camera” so that the video “does not show what
happened during . . . crucial moments.” McDowell v. Sheerer, 374
F. App'x 288, 292-93 (3d Cir. 2010). As discussed below, the
arrival of the K9 vehicle with Defendant Wheaten blocked a
significant portion of the scene from the point where the K9
unit dog was deployed against Castellani, by then on the ground
with four officers over him.
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
verdict for the nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). The non-moving party “‘need not

10

This contrasts to this Court’s recent opinion in Majette v.
Turner, No. 15-5960, slip op. at 16-17 (D.N.J. July 18, 2017),
where the Court granted the individual police officers’ motion
for summary judgment in an excessive force case where the video
evidence “confirm[ed] the officers’ testimony” regarding
Plaintiff’s crossing the threshold of his holding cell door
“despite repeated orders to sit down in the holding cell.” The
Court found that this particular video “quite clearly
contradicts the version of the story” told by Plaintiff. Scott,
550 U.S. at 378.
17

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. Cty. of Allegheny Pennsylvania, 139 F.3d
386, 393 (3d Cir. 1998) (quoting Anderson, 477 U.S. at 252).
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).
IV. DISCUSSION
A. Defendant Officers Lorady, Law, Sendrick, Rogers, and
Harper
Defendant Officers Lorady, Law, Sendrick, Rogers and Harper
move for summary judgment on Count I, which asserts claims
against them under 42 U.S.C. § 1983 for use of excessive force.
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.
Reciting a different set of facts, Plaintiff argues that
Defendant Officers are not entitled to qualified immunity
because Defendants’ actions in “violently assault[ing]”
Plaintiff, through “swing[ing] furiously at Plaintiff’s head and
18

body” and striking and kicking Plaintiff “for a full minute”
clearly violated the Fourth Amendment. (Opp’n at 5-6.)
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. Qualified Immunity Overview
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). The
doctrine “gives ample room for mistaken judgments” and
“protect[s] all but the plainly incompetent or those who
knowingly violate the law.” See Kelly, 622 F.3d at 254 (internal
quotation marks and citations omitted). Qualified immunity will
not, however, act as a shield for “the official who knows or
19

should know he is acting outside the law.” Butz v. 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 defense is traditionally analyzed in
two steps. First, the court must decide whether the facts
alleged, taken in a light most favorable to the plaintiff, make
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, 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.’” Mullenix v. Luna, 136
S. Ct. 305, 308 (2015)(citation omitted). 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
20

to tackle first. Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011);
Pearson, 555 U.S. at 236.
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, 550
U.S. at 378. In other words, the inquiry is the following:
“Taken in the light most favorable to the party 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 the
21

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 that the court “must accept [the plaintiff’s]
version of the facts.”).
The Court now turns to Plaintiff’s Fourth Amendment claims.
2. Defendant Officers are Not Entitled to Qualified Immunity
on the Excessive Force Claim (Count I), 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
‘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). The parties
do not dispute that a seizure occurred here.
To determine the reasonableness of a seizure, the court
asks whether the officer’s conduct was “objectively reasonable”
22

in light of the totality of the circumstances, without regard to
the underlying intent or motivation. Graham, 490 U.S. at 397
(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. Additional factors include “the
possibility that the persons subject to the police action are
themselves violent or dangerous, the duration of the action,
whether the action takes place in the context of effecting an
arrest, the possibility that the suspect may be armed, and the
number of persons with whom the police officers must contend at
one time.” Rivas v. City of Passaic, 365 F.3d 181, 198 (3d Cir.
2004)(quoting Sharrar v. Fising, 128 F.3d 810, 822 (3d Cir.
1997)). In the Third Circuit, courts take into account “all of
the relevant facts and circumstances leading up to the time that
the officers allegedly used excessive force.” Rivas, 365 F.3d at
198 (citing Abraham v. Raso, 183 F.3d 279, 291 (3d Cir. 1999)).
The Court should not apply “the 20/20 vision of hindsight,” but
should instead consider the “perspective of a reasonable officer
23

on the scene.” Id.; see also Kopec, 361 F.3d at 777.
Defendants argue that the video evidence demonstrates that
(1) Plaintiff acted aggressively by shouting at officers and
balling up his hands into fists; (2) refused to leave the
premises as ordered and continued to drunkenly harangue
Defendants; and (3) had his arm around Defendant Lorady’s
waist/lower back during the scuffle between parties. (Lorady
Reply Br. at 3.) As a result, they argue, they acted reasonably
under Graham in trying to effectuate Plaintiff’s arrest by
taking him to the ground and attempting to free Defendant Lorady
from Plaintiff’s grip. Therefore, they argue that the video
along with Plaintiff’s deposition testimony about it is
“undisputed evidence that the amount of force used by the
officers was reasonable given the need to cause Plaintiff to
submit to what was undisputedly a lawful arrest.” (Atlantic City
Br. at 36.)
Plaintiff’s version of what happened is markedly different.
Plaintiff argues that the video suggests that Defendants ran
across the street to beat Plaintiff (via punching, kicking,
kneeing, and beating with a baton), not to arrest him, and
further, Plaintiff’s unrefuted testimony that Defendants did not
tell him he was under arrest and did not attempt to place him
under arrest creates a factual issue on the reasonableness of
24

force employed. (Opp’n at 13.)11
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,
beyond the video, Plaintiff’s testimony, and the police reports,
that clearly supports or contradicts one version of events over
the other. Under Graham, the severity of Plaintiff’s crime,

11

Plaintiff argues that under SEC v. Graystone Nash, Inc., 25
F.3d 187, 190 (3d Cir. 1994), the Court should draw a negative
inference against the Defendant officers who refused to answer
any question during their depositions. (Opp’n at 9.) Defendant
officers explained at oral argument that they plead the fifth
because of an ongoing federal criminal investigation. The
Graystone court instructed that “the effects than an invocation
of the privilege against self-incrimination will have in a civil
suit depends to a large extent on the circumstances of the
particular litigation;” thus, “[a] trial court must carefully
balance the interests of the party claiming protection against
self-incrimination and the adversary’s entitlement to equitable
treatment.” Graystone, 25 F.3d at 190, 192. Defendants argue
that the video footage, “combined with the deluge of other
documents in this case, including Defendants’ police reports,
render Defendants’ depositions nonessential.” (Reply Br. at 6.)
In United States v. Local 560 of the Int’l Brotherhood of
Teamsters, 780 F.2d 267, 292 n. 32 (3d Cir. 1985), the court
explained that there “must be sufficient independent evidence –
besides the mere invocation of the privilege – upon which to
base the negative inference”). Here, the Court finds no such
independent evidence beyond Defendants’ silence; as a result,
the Court will not draw an adverse inference against Defendants
in this instance. The existence of an open federal criminal
investigation makes Defendants’ invocation of the privilege
justifiable. Because the Defendants’ invoking their testimonial
privilege during discovery will be barred from testifying at
trial, the Plaintiff cannot be said to be prejudiced; he will in
fact be advantaged by not having to confront testimony at trial
from these Defendants.
25

disorderly conduct and public intoxication, was minimal. The
immediate threat to the safety of the officers was minimal, as
Defendant Lorady knew Plaintiff was not armed from his previous
encounter, and Plaintiff was intoxicated and verbally insulting
the officers. And even after multiple views of the video, there
is a genuine dispute of material fact as to whether Plaintiff
was resisting arrest. 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,
550 U.S. at 380. Viewing the facts in the 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 any part of the encounter and that the five
Defendant officers punched, kicked and hit him with a baton on
the ground for over a minute.
Under this set of facts, the Defendant Officers’ conduct
was not “objectively reasonable” and Plaintiff has satisfied the
first prong of the qualified immunity analysis. See Marshall v.
Keansburg Borough, No. 13-533, 2013 WL 6095475, at *7 (D.N.J.
Nov. 20, 2013) (“[N]o reasonable officer 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
26

Plaintiff in his ribs and back, and choking Plaintiff was a
lawful, reasonable amount of force to use under the
circumstances.”); Trosco v. City of Atlantic City, No. 10-1566,
2013 WL 1314738, at *9 (D.N.J. Mar. 28, 2013) (finding that
slamming plaintiff against a police car, and “pummeling” him in
the head, neck, and shoulder area by the officers’ fist and arms
was objectively unreasonable); 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 necessary to
defeat qualified immunity 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 Defendant Officers
acted in June 2013, the law was clear that beating an unarmed
suspect who was not resisting arrest violates the Fourth
Amendment’s prohibition against excessive force. See, e.g.,
Giles, 571 F.3d at 326 (“[A]t the time of the incident in 2001,
27

it was established that an officer may not kick or otherwise use
gratuitous force against an inmate who has been subdued.”);
Hanks v. Rogers; 853 F.3d 738, 747 (5th Cir. 2017)(“[C]learly
established law [in February 2013] demonstrated that an officer
violates the Fourth Amendment if he abruptly resorts to
overwhelming physical force rather than continuing verbal
negotiations with an individual who poses no immediate threat or
flight risk, who engages in, at most, passive resistance, and
whom the officer stopped for a minor traffic violation.”);
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))); Belfield v. Pichardo, No. 10-3207, 2011 WL
5921088, at *3 (D.N.J. Nov. 28, 2011) (“[A]t the time of
Plaintiff’s arrest in 2010, it was well-established that beating
a subdued arrestee was a constitutional violation.”).
Thus, based on relevant precedent at the time, and assuming
as true the facts alleged in Plaintiff’s version of events, a
reasonable officer would not have believed that the level of
force used against Plaintiff was legal under the circumstances.
Defendant Officers’ alleged conduct could be construed to
28

violate constitutional rights of which a reasonable person would
have known, namely, the right to be free from the use of
excessive force in making an arrest. See, e.g., Couden, 446 F.3d
at 497 (finding excessive force as a matter of law where there
was no evidence that plaintiff “was resisting arrest or
attempting to flee”); Champion v. Outlook Nashville, Inc., 380
F.3d 893, 903 (6th Cir. 2004) (“[I]t also clearly established
that putting substantial or significant pressure on a suspect's
back while that suspect is in a face-down prone position after
being subdued and/or incapacitated constitutes excessive
force.”).
Defendants separately seek summary judgment on the claim of
excessive force, an argument that the Court readily rejects.
Defendants argue that courts typically grant summary judgment
against plaintiffs where video footage demonstrates that the
plaintiff acted belligerently or aggressively resisted arrest,
and officers, in turn, responded with a level of force necessary
to subdue the individual and effectuate their arrest. Defendants
cite Brown v. Makofka, 644 F. App’x 139, 142-43 (3d Cir. 2016)
because the court there noted that “[c]ertainly, one might
question whether fewer officers or whether a less aggressive
approach could have achieved the same result, but ‘not every
push or shove, even if it may later seem unnecessary in the
29

peace of a judge’s chambers, violates the Fourth Amendment.’”
Id. at 143 (citing Graham, 490 U.S. at 296). As discussed above,
however, there is a material dispute over whether Defendant
Officers used gratuitous force against Plaintiff and whether
Plaintiff was resisting arrest. Since a reasonable jury
analyzing the video could credit Plaintiff’s version of the
facts that Plaintiff was subdued and compliant on the ground as
officers continued to beat, punch and kick him, and find that
Defendants’ conduct violated the Fourth Amendment, together with
considering Plaintiff’s testimony and the absence of testimony
by the arresting officers, summary judgment is not warranted.
Plaintiff’s excessive force claim against Defendant officers may
proceed, and it will be for the jury to make these
determinations of fact.
3. Summary Judgment is Warranted on Plaintiff’s Malicious
Prosecution Claim (Count I)
Defendant Officers move for summary judgment on Plaintiff’s
malicious prosecution claim, specifically related to Defendant
Lorady’s initiation of criminal charges against Plaintiff for
the offense of aggravated assault on a police officer. To
prevail on a malicious prosecution claim under 42 U.S.C. § 1983,
a plaintiff must demonstrate that: (1) the defendant initiated a
criminal proceeding; (2) the criminal proceeding was terminated
in the plaintiff’s favor; (3) the proceeding was initiated
30

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 as a consequence of a legal
proceeding. Johnson v. Knorr, 477 F.3d 75, 82 (3d Cir. 2007).
Defendants argue that Plaintiff’s malicious prosecution claim
fails as a matter of law because Plaintiff cannot meet the
second element, since the Third Circuit has held that entrance
into and completion of a Pre-Trial Intervention program (“PTI”)
is an unfavorable termination of Plaintiff’s underlying criminal
charges. See Fernandez v. City of Elizabeth, 468 F. App’x 150,
154 (3d Cir. 2012)(holding that PTI is an unfavorable
termination); see also Gilles v. Davis, 427 F.3d 197, 210 (3d
Cir. 2005)(holding that participation in Pennsylvania’s
Accelerated Rehabilitative Disposition Program (“ARD”) was not a
favorable termination because it “imposes several burdens upon
the criminal defendant not consistent with innocence, including
a probationary term, restitution ... imposition of costs, and
imposition of a reasonable charge relating to the expense of
administering the program, and such other conditions as may be
agreed to by the parties.”).
Plaintiff argues that Fernandez and Gilles can be
distinguished because here, Plaintiff was not admitted into PTI
31

“because of any alleged assault on Defendant Lorady, but rather
was admitted into PTI because of its conduct separate and
discrete from that claim.” (Opp’n at 18.) Plaintiff points to
the July 31, 2015 letter of Superior Court Judge Michael Donio,
who wrote that “[a]s I indicated after watching the videotape,
that is basically the whole case, it is apparent to me that the
Indictment may in fact be over charged in this case.” (Ex. N to
Opp’n.) The Court finds that Plaintiff’s entry in PTI is not a
favorable outcome under New Jersey law as interpreted by Third
Circuit precedent in Fernandez. Plaintiff had the option of
going to trial and defeating the charges but he chose PTI
instead. Summary judgment for Defendants will be granted.
4. Summary Judgment is Not Warranted on Plaintiff’s Due
Process Claim (Count I)
Next, Defendants move for summary judgment on Plaintiff’s due
process claim because Plaintiff’s allegation of fabricated
evidence does not create any genuine issue of material fact.12

12

Defendant City of Atlantic City separately moves for summary
judgment on Plaintiff’s substantive due process claim because it
is improper when coupled with a Fourth Amendment excessive form
claim. (Def. Br. at 21.) Specifically, Defendant argues that to
the extent Plaintiff’s substantive due process claim arises from
the Defendant Officers’ alleged excessive force misconduct, such
claim is analyzed under the “more-specific provision” of the
Fourth Amendment. Fennimore v. Lower Twp., No. 09-2090, 2011 WL
1705599 at *5 n. 6 (D.N.J. May 4, 2011); see also Graham, 490
U.S. at 395 (“Because the Fourth Amendment provides an explicit
textual source of constitutional protection against this sort of
32

Plaintiff claims that Defendants “prepared police reports,
falsely claiming that Plaintiff punched Defendant Lorady,
Plaintiff threatened to ‘kill’ the officers, Plaintiff was
attempting to ‘reach’ for Defendant Lorady’s weapon, and that
Plaintiff was actively resisting arrest.” (Opp’n at 24.)
Plaintiff relies on Black v. Montgomery, 835 F.3d 358, 371 (3d
Cir. 2016), where the court held that a non-convicted criminal
defendant “may have a stand-alone fabricated evidence claim
against state actors under the due process clause of the
Fourteenth Amendment if there is a reasonable likelihood that
absent that fabricated evidence, the defendant would not have
been criminally charged.” The court explained that “a civil
plaintiff’s fabricated evidence claim should not survive summary
judgment unless he can demonstrate that the fabricated evidence
‘was so significant that it could have affected the outcome of
the criminal case.’” Id. at 372. Additionally, there is a
“notable bar” for evidence to be considered “fabricated,” as
there must be “‘persuasive evidence supporting a conclusion that

physically intrusive governmental conduct, that Amendment, not
the more generalized notion of ‘substantive due process,’ must
be the guide for analyzing these claims.). In Abraham v. Raso,
183 F.3d 279, 288 (3d Cir. 1999), the court held that a claim of
“excessive force in the course of arrest is properly analyzed
under the Fourth Amendment, not under substantive due process.”
The Court agrees with Atlantic City, and will only analyze
Plaintiff’s due process claim regarding fabricated evidence.
33

the proponents of the evidence’ are aware that evidence is
incorrect or that the evidence is offered in bad faith.” Id.
(citing Halsey v. Pfeiffer, 750 F.3d 273, 295 (3d Cir. 2014)).
Here, Plaintiff does not dispute his disorderly conduct
charge that accompanied his earlier ejection from the casino,
but argues that Defendant Officers fabricated evidence against
him related to later charges of aggravated assault of a police
officer, resisting arrest, and causing harm to a police dog.
(Opp’n at 26.) Specifically, Plaintiff takes issue with
Defendant Lorady’s sworn complaint alleging that Plaintiff
committed aggravated assault by “balling his fists and swinging
at Officer Lorady,” while resisting arrest by “violently
flailing his arms about and refusing to submit his hands for
handcuffing.” (Ex. J to Opp’n.) Furthermore, Defendants Lorady,
Sendrick, Law and Rogers all submitted police reports explaining
that Plaintiff stated a variation of “I’m going to f***** kill
you” as they initially made contact with him, while Defendants
Lorady, Sendrick, and Rogers stated that Plaintiff struck
Officer Lorady in the head with his fist. (Ex. I to Opp’n.)
Plaintiff argues that these statements were “knowingly false and
fabricated with the purpose of initiating false charges against
Plaintiff” in violation of Plaintiff’s due process rights,
because Plaintiff testified that he did not threaten to “kill
34

any officers,” did not punch Defendant Lorady, and was not
“resisting arrest,” but rather defending himself against
officers who were assaulting him. (Opp’n at 27-28.)
The Court finds that there is a factual issue as to whether
Defendants fabricated evidence under Black. Defendants argue
that “Plaintiff does nothing more than dispute certain facts in
the Defendants’ incident reports,” but Plaintiff submits
evidence, through the report of Brian Weaver, PE, that Plaintiff
never punched Defendant Lorady (see Ex. H to Opp’n).
Additionally, a reasonable jury, viewing the video of the
altercation between Plaintiff and Defendants, could find that
Defendants knowingly fabricated their claims about Plaintiff
fighting back and resisting arrest. Defendants argue that
Plaintiff’s claim fails as a matter of law under Black because
Plaintiff never faced trial for any of his charges, and was
instead admitted to the PTI program. See Russell v. Lowman, No.
15-860, 2017 WL 543258, at *5 (D. Del. Feb. 10, 2017)(granting
summary judgment on Plaintiff’s due process claim where
“plaintiff was never tried for the drug charge at issue”).
However, the Black court also stated that a claim can survive if
“there is a reasonable likelihood that, absent the fabricated
evidence, the defendant would not have been criminally charged.”
Black, 835 F.3d at 371 (emphasis added). There is no requirement
35

under Black that the defendant in the criminal case (plaintiff
here) must have faced trial. Defendant is correct that the
Halsey and Black courts were concerned with the corruption of
the trial process, but the Black court also stated that “the
harm of the fabrication is corrupting regardless of . . . the
particular time in the proceeding that the corruption occurs.”
Id. Therefore, the Court denies Defendants’ motion for summary
judgment on due process grounds.
5. Summary Judgment is Not Warranted on Plaintiff’s Civil
Conspiracy Claim (Count III)
Next, the Defendant officers move for summary judgment on
Plaintiff’s state tort claims of conspiracy. Plaintiff claims
that Defendant Officers entered into an agreement with one
another to violate Plaintiff’s Fourth Amendment right to be free
from excessive force when they together ran across the street,
grabbed him and began to beat him, then agreed to maliciously
prosecute him for the offense of aggravated assault on a police
officer and to fabricate evidence that Plaintiff had attempted
to strike Defendant Lorady, had attempted to reach for Defendant
Lorady’s gun, and had generally resisted arrest. (Opp’n at 30.)
Under New Jersey state law, civil conspiracy is “a
combination of two or more persons acting in concert to commit
an unlawful act, or to commit a lawful act by unlawful means,
the principal element of which is an agreement between the
36

parties to inflict a wrong against or injury upon another, and
an overt act that results in damage.” Banco Popular N. Am. v.
Gandi, 184 N.J. 161, 177 (2005).
Here, Plaintiff asserts that because the officers did not
submit their police reports until between five and six days
after the incident, and because Defendant Lorady waited three
days from the day he received video of the incident to the time
he put it in the evidence and property room, this “immediately
leads to the reasonable inference that the officers spent close
to a week collaborating on their police reports to create a
plausible and consistent narrative.” (Opp’n at 30-31.) Defendant
Lorady wrote in his report that “[w]hile trying to grab hold of
his hands, Castellani pushed my hands away and swung with his
left fist striking me in the head.” (Ex. I to Lorady Opp’n at
17.) Defendant Sendrick wrote that “[a]s we made contact with
Castellani, I witnessed Castellani strike Officer Lorady in the
head with his fist.” (Ex. I to Lorady Opp’n at 10.) Defendant
Rogers wrote, “[w]e crossed the street to intercept Castellani
after he hiked up his pants, raised his arms, dropped back his
leg, and took a fighting stance. As we came up to Castellani he
began to assault Officer Lorady.” (Ex. I to Lorady Opp’n at 20.)
Defendant Law wrote that “[a]s Officer Lorady attempted to place
him in custody he punched Officer Lorady in the head, grabbed a
37

hold of Officer Lorady’s duty belt, and took him to the ground.”
(Ex. I. to Lorady Opp’n at 23.) Plaintiff also submits several
inter-office emails from Officer Wheaten to other officers (not
named as Defendants) where he states that he wants to “make sure
I don’t contradict you in any way” and “[l]et me know if you
want me to change anything, if it doesn’t jive with urs too
much.” (Ex. O to Opp’n.)
The Court finds that Plaintiff has raised sufficient
evidence to defeat Defendants’ summary judgment motion on his
civil conspiracy claim. While Defendant Wheaten’s emails to nonDefendant officers do not alone raise an inference that all of
the Defendant officers agreed to link their stories together,
and the mere passage of time between the incident and the filing
of the report is too speculative to raise a genuine issue of
material fact on the issue of conspiracy, a reasonable jury
could find that the Defendant Officer’s police reports were
substantially identical to each other and contradictory to the
video footage. As a result, summary judgment is denied on
Plaintiff’s conspiracy claim.
6. Summary Judgment is Warranted on Plaintiff’s Intentional
Infliction of Emotional Distress Claim (Count III)
Finally, the Defendant Officers move for summary judgment on
Plaintiff’s intentional infliction of emotional distress claim.
To sustain an action for intentional infliction of emotional
38

distress, “[t]he plaintiff must establish intentional and
outrageous conduct by the defendant, proximate cause, and
distress that is severe.” Tarr v. Ciasulli, 181 N.J. 70, 77
(2004). Generally, for the conduct to be actionable, “the
emotional distress . . . must be ‘so severe that no reasonable
[person] could be expected to endure it.’” Id.
Here, while Plaintiff has put forth evidence of Defendants’
outrageous conduct, there is no evidence in the record of
causation or severity, through an expert report or otherwise.
While Plaintiff’s K9 expert may have declared that in “his years
of experience working with K9s he had never seen such a sadistic
and brutal use of a K9,” there is no evidence as to the severity
of his mental harm.13 (Opp’n at 33.) As a result, the Court
grants summary judgment on Plaintiff’s IIED claim.
B. Defendant Wheaten is Not Entitled to Qualified Immunity on
the Excessive Force Claim, and Summary Judgment on That
Claim is not Warranted
Defendant Wheaten, like Defendant Officers supra, argues
that his use of force on Plaintiff was objectively reasonable
and is thus entitled to qualified immunity. He argues that he

13

The Court here finds merely that Plaintiff presents no
evidence of mental harm rising to the severe degree of emotional
distress required for this tort. The Court does not find that
Plaintiff’s pain and suffering is insufficient for damages for
the constitutional breaches associated with excessive force, if
proved.
39

was faced with a “split-second decision” when he arrived and
deployed his K9 partner for the safety of the other officers;
thus, his use of force was “entirely objectively reasonable,
given the facts and circumstances known to Wheaten when he
arrived at the scene of the struggle by which the officers were
attempting to arrest Plaintiff.” (Atlantic City Br. at 26.)
Specifically, Officer Wheaten permissibly relied “upon the
presumption that the officers were not lying but were indeed in
a physical struggle with a resisting subject whom they could not
control and who was reaching for an officer’s or officers’ waist
area.” (Id. at 29.) Defendant also relies on the fact that the
grand jury, after viewing the video, found probable cause to
charge Plaintiff with resisting arrest and aggravated assault on
a police officer, and the fact that Judge Donio, who admitted
Plaintiff to the Pretrial Intervention program, found that the
police “were justified in [taking Plaintiff down] because he was
aggressive at that time and he was not going to relent.” (Id. at
29-30.)
Plaintiff replies that there are material factual issues as
to whether Defendant Wheaten’s use of force was objectively
reasonable, since at the time he arrived on the scene, Plaintiff
was already being restrained by five officers, and even after
Wheaten deployed the canine (within seconds of his arrival to
40

the scene), he let Hagan bite at Plaintiff’s head and chest for
an extended period of time.14

Moreover, Wheaten did not warn

Plaintiff about the approaching dog, nor did he assess the
situation before deploying his dog in violation of ACPD policy,
even though Defendant Sendrick stated “[w]e’re ok right now.”
(Ex. D to Opp’n.)
Defendant Wheaten relies on Moore v. Vangelo, No. 03-4718,
2005 WL 2178885 (E.D. Pa. Sept. 6, 2005), aff’d, 222 F. App’x
167 (3d Cir. 2007), to support his argument that the amount of
force he employed was reasonable. There, plaintiff observed a
“violent” fight between two men, and entered the fight in an
attempt to break it up. Vangelo, 2005 WL 2178885 at *1.
Defendant, who “was the first to arrive at the scene of the
altercation,” warned the men to stop fighting, but the fight
continued. Vangelo, 222 F. App’x at 169. Then, “[u]nable to cope
with the three perceived combatants alone,” Defendant released

14

On the surveillance video, Defendant Wheaten’s K-9 van hides a
portion of the extended dog biting that Plaintiff testified
occurred. Even so, the video also clearly shows Wheaten placing
the dog onto Plaintiff’s upper torso and beck after Plaintiff
was no longer struggling, and Wheaten kept the dog biting
Plaintiff’s person, inflicting the lacerations requiring several
hundred stiches, even after the officers all stood up. A jury
could find this was a wanton and unneeded deployment of force
and a continuing attack upon Plaintiff after any reasonable
officer would have felt threatened by Plaintiff. See Video from
3:11:00 to 3:11:27.
41

his K9 partner, “commanding him to bite and hold Plaintiff.” Id.
The K9 bit plaintiff on the right forearm and “held him for
several seconds until ordered off” by the defendant. Vangelo,
2005 WL 2178885, at *1. Plaintiff sued the defendant pursuant to
§ 1983 for violating his Fourth Amendment rights by using
excessive force, and in applying the Graham reasonableness
factors, the district court emphasized the violent nature of the
fight that “persisted for several minutes” and “[t]hree men were
involved and did not respond to warnings.” Id. at *7. As a
result, the court found that the defendant was “justified in
using canine force to break up the fight” as “[a] fight of the
magnitude described in this record is a serious crime that
places the combatants, the police, any bystanders, and property
in immediate danger.” Id. The court additionally found that the
canine force employed “while admittedly not minor, was entirely
reasonable to the level of threat presented by the conduct of
the perceived combatants.” Id. at *22.
In affirming the district court’s granting of summary
judgment, the Third Circuit held that the deployment of a K9 to
bite and hold a suspect is not per se objectively unreasonable,
nor is the deployment of a dog without a verbal warning per se
objectively unreasonable. Vangelo, 222 F. App'x at 170 n. 2. In
concluding that the forced used by the defendant was objectively
42

reasonable, the Court found that the defendant (1) was
“confronted with a dangerous situation where the safety of
officers and others was at risk,” (2) the “melee going on before
him was an ongoing assault,” and (3) “[t]hree people were
involved in the fight and [defendant] was, at least temporarily,
alone.” Id. at 170.
The Graham reasonableness test comes out quite differently
here than in Vangelo, however. Unlike Vangelo, where a violent
fight between three men was taking place, here, one person was
yelling obscenities across a street at four police officers, and
had been given a disorderly conduct summons several minutes
prior. The severity of the crime is therefore low. Next,
crediting Plaintiff’s testimony, he posed a minimal threat to
the safety of the officers or others, and when Defendant Wheaten
arrived to the scene, he saw five officers holding Plaintiff to
the ground with one arm handcuffed. Additionally, Plaintiff
submits evidence that Defendant Sendrick transmitted a radio
communication indicating that “[w]e’re ok right now,” but less
than a minute later, Defendant Wheaten deployed his dog for a K9
apprehension. (Ex. I to Def. Officers’ Opp’n at 3.) Plaintiff
was not evading arrest by flight, but there is a genuine dispute
of material fact as to whether Plaintiff was actively resisting
arrest, as explained supra. At the point Wheaten arrived, no
43

reasonable officer could have thought Plaintiff was armed, and
most importantly, five other officers were already restraining
Plaintiff before Wheaten used his K9. This case is therefore
quite different from Vangelo, where one K9 officer present
employed his K9 on a man engaged in a fight with two other men.
Here, there were already five officers present when Wheaten
arrived, and only one suspect, who was subdued on the pavement.

(Ex. L to Def. Wheaten Br. at 3:10:49)
In applying the relevant factors to these alleged
circumstances, a reasonable factfinder could conclude that when
Defendant Wheaten arrived, Plaintiff no longer posed a threat of
immediate harm to the officers, and that it would have been
impossible for Plaintiff to flee the scene or resist arrest
after he was already subdued. See Couden, 446 F.3d at 497
44

(finding excessive force as a matter of law where plaintiff was
not “resisting arrest or attempting to flee” at the time the
force was used”). Additionally, Defendant Wheaten’s decision to
permit the dog – undisputedly on lead and within his control –
to continue mauling Plaintiff for several minutes, could be
found objectively unreasonable by a jury. See Cooper v. Brown,
844 F.3d 517, 521, 523 (5th Cir. 2016) (affirming denial of
qualified immunity where police dog “continued biting [the
suspect] for one to two minutes”; officer did not command the
dog to release his bite until suspect had rolled onto his
stomach and was in handcuffs; and officer has “no reason to
believe [the suspect] posed a threat”); Becker v. Elfreich, 821
F.3d 920, 929 & n.2 (7th Cir. 2016)(holding that allowing a
police dog to continue biting while the officer pulled a
nonresistant suspect down the stairs and knelt on his back
clearly violated the Fourth Amendment, but noting the case did
“not invoke a split-second delay between the officer pulling
[the suspect] to the ground and directing [the dog] to stop
biting)”; Edwards v. Shanley, 666 F.3d 1289, 1296 (11th Cir.
2012)(noting that in subjecting plaintiff to a dog attack, the
officer “increased the force applied at the same time the threat
presented by plaintiff decreased”); Priester v. City of Riviera
Beach, 208 F.3d 919, 923-924 (11th Cir. 2000)(holding that it
45

was objectively unreasonable for officers to allow a dog to bite
and hold a suspect for two minutes); Cf. Maney v. Garrison, -F. App’x --, 2017 WL 937460, at *5 (4th Cir. Mar. 9,
2017)(granting qualified immunity where there was “no indication
that [the K9 handler] gratuitously prolonged the biting after
determining that [the suspect] was unarmed and surrendering”).
Viewing the facts in the light most favorable to Plaintiff,
as this Court must, a reasonable jury could credit Plaintiff’s
testimony coupled with the video evidence and find that
Defendant Wheaten unreasonably came in after Plaintiff was
restrained and unleashed his K9 to attack Plaintiff for two
minutes (while simultaneously punching him in the back of the
head) after Plaintiff was already subdued by five officers on
the ground and offering no resistance. Under this set of facts,
Defendant Wheaten’s conduct was not “objectively reasonable” and
Plaintiff has satisfied the first prong of the qualified
immunity analysis.
The Court also finds that the second prong of the qualified
immunity analysis has been satisfied. Here, Plaintiff argues
that it was clearly established as of June 15, 2013 that
“releasing a vicious police dog to bite an un-armed, nonthreatening individual who was immobilized by five other police
officers violated the Fourth Amendment.” (Opp’n at 9.)
46

Defendant Wheaten disagrees and relies on White v. Pauly,
137 S. Ct. 548, 552 (2017), where the Supreme Court recently
stated that “it is again necessary to reiterate the longstanding
principle that clearly established law should not be defined at
a high level of generality.” Instead, the “clearly established
law must be ‘particularized’ to the facts of the case.” Id.
(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). The
Supreme Court criticized the lower court for failing “to
identify a case where an officer acting under similar
circumstances as [the officer] was held to have violated the
Fourth Amendment.” Id. Furthermore, courts are only to consider
facts that were “knowable to the defendant officers.” Id. at
550.
In Pauly, the Supreme Court held that an officer was
entitled to qualified immunity after shooting the plaintiff's
decedent. Pauly, 137 S. Ct. at 552. Two officers responded to
Pauly's house late one evening following a report that Pauly's
brother had been engaged in a road rage incident and was
intoxicated. Id. at 549. Upon arrival, the officers demanded
that Pauly and his brother come outside, but the brothers did
not hear the officers identify themselves as state police. Id.
at 550. The two brothers instead armed themselves, and shouted
“[w]e have guns.” Id.

A third officer arrived on the scene at
47

the moment when one of the brothers yelled that they had guns,
and took shelter behind a nearby stone wall. Id. A few seconds
later, Pauly's brother stepped out the back door of the house
and fired two shotgun blasts, while screaming loudly. Id. A few
seconds after that, Pauly opened a front window and pointed a
handgun in the direction of the third officer. Id. One of the
first officers to arrive shot at Pauly but missed, and then the
third officer shot and killed Pauly. Id.
The Court held that the third officer's conduct did not
violate clearly established law, despite his failure to shout a
warning before using deadly force, in light of the “unique”
circumstances surrounding the officer's late arrival on the
scene. Id. at 552. The Court explained that clearly established
law does not prohibit a reasonable officer who arrives late to
an ongoing police action from assuming that proper procedures
were followed before his arrival, as “[n]o settled Fourth
Amendment principle requires that [late arriving] officer to
second-guess the earlier steps already taken by his or her
fellow officers . . . .” Id.
Thus, the question presented here is whether a reasonable
officer in Defendant Wheaten’s position would have understood
that it violated the Fourth Amendment to use mechanical force
against an individual who was pinned to the ground face down by
48

five officers and was told “[w]e’re ok right now.” Applying the
evidence most favorably to Plaintiff, a reasonable officer, even
arriving late to the scene and assuming the other officers
followed proper procedures, could not have believed that
immediately unleashing his K9, without warning or without
assessing the situation, to attack a person who, under
Plaintiff’s testimony, was not resisting arrest and restrained
by five officers, was lawful. It would have been clear to a
reasonable K9 officer approaching the scene that the unleashing
of the K9 to attack the downed civilian was excessive and
unconstitutional.
Additionally, clearly establishing the existence of the
right does “not require a case directly on point, but existing
precedent must have placed the statutory or constitutional
question beyond debate.” al-Kidd, 563 U.S. at 741; see also
Pauly, 137 S. Ct. at 551. The Supreme Court gave no indication
that its decision in Pauly was intended to repudiate the
proposition that “officials can still be on notice that their
conduct violates established law even in novel factual
circumstances.” Hope v. Pelzer, 536 U.S. 730, 741 (2002).
Furthermore, Justice Ginsberg's concurrence in Pauly confirms
that the per curium opinion “does not foreclose the denial of
summary judgment” on qualified immunity where fact disputes
49

exist on material issues. Pauly, 137 S. Ct. at 553 (Ginsburg,
J., concurring). Accordingly, and in light of the previously
identified disputed issues of material fact, Defendant Wheaten
is not entitled to qualified immunity.15
While Plaintiff does not submit any factually-identical
cases regarding the deployment of a police dog while five
officers have already subdued a plaintiff, it was certainly
clearly established in June 2013 that even if someone posed a
threat at the time force was initiated on them, an officer
cannot continue to apply serious force when the threat has
subsided. See Lamont v. New Jersey, 693 F.3d 177, 184 (3d Cir.
2011)(“Even where an officer is initially justified in using
force, he may not continue to use such force after it has become
evident that the threat justifying the force has vanished.”);

15

In fact, the Court finds that in Defendant Wheaten’s case, the
constitutional violation was so “obvious” that the Graham
standard itself gives fair warning that a violation was clearly
established. See Brosseau v. Haugen, 543 U.S. 194, 199
(2004)(“Of course, in an obvious case, these standards can
‘clearly establish’ the answer, even without a body of relevant
case law.”); Pelzer, 536 U.S. at 741 (finding in a case where an
Eighth Amendment violation – using a hitching post – was
“obvious” that “general statements of the law are not inherently
incapable of giving fair and clear warning,” and explaining that
“a general constitutional rule already identified in the
decisional law may apply with obvious clarity to the specific
conduct in question, even though ‘the very action in question
has [not] previously been held unlawful,’”)(citing Anderson, 483
U.S. at 640).
50

Lytle v. Bexar County, Tex., 560 F.3d 404, 413 (5th Cir. 2009)
(“[A]n exercise of force that is reasonable at one moment can
become unreasonable in the next if the justification for the use
of force has ceased”); see also Alicea v. Thomas, 815 F.3d 283,
288 (7th Cir. 2016)(stating that the use of force “is only
reasonable when it is proportional to the threat posed. If an
officer’s threat perception changes, so too should her force
calculus.”) This principle was also clearly established in dog
bite cases. Campbell v. City of Springboro, 700 F.3d 779, 789
(6th Cir. 2012)(denying qualified immunity to an officer who
“allowed a ‘bite and hold’ dog, whose training was questionable,
to attack two suspects who were not actively fleeing and who,
because of proximity, showed no ability to evade police
custody”); Watkins v. City of Oakland, 145 F.3d 1087, 1093 (9th
Cir. 1998)(holding that it was “clearly established that
excessive duration of the bite and improper encouragement of a
continuation of the attack by officers could constitute
excessive force that would be a constitutional violation”).
Regardless of what Defendant Wheaten knew as he arrived to the
scene and when he initially deployed the dog, it was clearly
established at the time that he could not continue holding the
dog on Plaintiff for two additional minutes.
The Court also denies Defendant Wheaten’s motion for
51

summary judgment on Plaintiff’s excessive force claim. Viewing
the facts in the light most favorable to Plaintiff, a reasonable
jury could conclude that Defendant Wheaten used excessive force
when he deployed his dog for over two minutes to continuously
bite Plaintiff in the chest and in the back of the neck.
C. Summary Judgment is Warranted on Plaintiff’s Claim Against
Defendant Hall for Supervisory Liability (Count IV)
Defendant Daryl Hall, the administrative supervisor of the
ACPD’s K-9 Unit, moves for summary judgment because Plaintiff
has failed to demonstrate that he is liable for a subordinate
officer’s excessive force as he did not commit a deliberate
intentional act. Plaintiff argues in response that there are
genuine issues of material fact as to whether Defendant Hall was
deliberately indifferent to the safety and well-being of the
citizenry and visitors of Atlantic City, including Plaintiff,
when in violation of ACPD’s written policy, he recommended
Defendant Wheaten for one of the highly competitive and coveted
K9 positions even though Defendant Wheaten had a prodigious
complaint history and had repeatedly triggered the early warning
system throughout his career. (Opp’n at 8.)
The availability of a supervisory liability theory for
excessive force claims is unclear since the Supreme Court’s
decision in Ashcroft v. Iqbal, 556 U.S. 662 (2009). See Argueta
v. U.S. Immigration and Customs Enforcement, 643 F.3d 60, 70 (3d
52

Cir. 2011)(“To date, we have refrained from the answering the
question of whether Iqbal eliminated – or at least narrowed the
scope of – supervisory liability . . . [w]e likewise make the
same choice here . . . .”). Plaintiff argues that the Court
should employ the Eighth Amendment supervisory liability
analysis from Barkes v. First Correctional Medical, Inv., 766
F.3d 307, 316 (3d Cir. 2014), rev’d on other grounds sub nom,
Taylor v. Barkes, 124 S. Ct. 2042 (2015), which permits
supervisory liability where the supervisor acted with deliberate
indifference in maintaining a custom or policy that directly
caused the violation of the plaintiff’s constitutional rights.
In order to state a claim for supervisor liability under this
theory, Plaintiff must identify a supervisory policy or practice
that the supervisor failed to employ, and then prove that: (1)
the policy or procedures in effect at the time of the alleged
injury created an unreasonable risk of a constitutional
violation; (2) the defendant-official was aware that the policy
created an unreasonable risk; (3) the defendant was indifferent
to that risk; and (4) the constitutional injury was caused by
the failure to implement the supervisory practice or procedure.
Id. at 317. In Barkes, however, the Court held that under Iqbal,
“the level of intent necessary to establish supervisory
liability will vary with the underlying constitutional tort
53

alleged,” and left “for another day the question whether and
under what circumstances a claim for supervisory liability from
a violation of a different constitutional provision remains
valid.” Id. at 319-320.
Defendant Hall, on the other hand, relies on Ricker v.
Weston, 27 F. App’x 113 (3d Cir. 2002), which, while concededly
an unpublished decision, addresses supervisor liability in the
context of an allegation of excessive force. The Ricker court
held that a supervisor may be liable under § 1983 for his
subordinate’s lawful conduct “if he or she directed, encouraged,
tolerated, or acquiesced in that conduct,” but for liability to
attach, “there must exist a causal link between the supervisor’s
action or inaction and the plaintiff’s injury.” Id. at 119. In
other words, the supervisor “must be directly and actively
involved in the subordinate’s unconstitutional conduct.” Id. In
Ricker, the court granted the supervisors’ motion for summary
judgment because there was “simply no causal link” between
Plaintiff’s injuries and what the supervisors did or did not do.
Id. at 119-120.
Plaintiff has introduced evidence, through a November 28,
2012 memorandum from Sergeant Hall to Lieutenant Robert
DeGaetano, in which Hall stated that he had “completed [his]
review of all prospective applicants for the position of K9
54

handler,” and recommended “that the twenty-four applicants are
far too many personnel to send to attend the physical and the K9
Orientation that follows.” (Ex. G to Opp’n.) Hall later
recommends that “those who have tripped the Early Warning System
be re-evaluated by command to make that determination.” (Id.) He
ends the letter stating, “I am forwarding these recommendations
to you for a decision on this matter.” (Id.) Plaintiff argues
that this memo “reflects Hall’s supervisory and leadership role
in the [K9 handler selection] process,” and that it “seems
likely” that Hall “would have made a recommendation as to who
should fill the K9 spots in his final report.” (Opp’n at 16.)16
Furthermore, Hall’s failure to recollect one way or the other
during his deposition makes this a disputed factual issue. (Id.)
On the other hand, Hall claims that Wheaten’s name appears
nowhere in the memorandum and at no time did Hall specifically
recommend Wheaten, or any other candidate, for the position.
(Hall Reply Br. at 3.) Instead, Hall claims that Captain
Pasquale was the ranking officer who ultimately made the
recommendations to the Police Chief about the selection of
Wheaten for the K-9 assignment. (Id. at 4.) Hall merely
“participated in the interview process” when Wheaten was

16

The City of Atlantic City has not produced Hall’s “Final K-9
Report,” claiming it cannot be found.
55

applying, along with Captain Pasquale, Captain Anderson, Captain
DeGaetano, and Lieutenant Ritzel. (Hall Dep. at 69:15; 70:1113.) This included reviewing the internal affairs history of
Wheaten. (Id. 73:22 to 74:2.)
Defendant Hall further argues that even if some form of
supervisor liability in the context of an excessive force claim
still exists post Iqbal, Plaintiff’s claim still fails because
for liability to be established under a deliberate indifference
standard, the plaintiff must preliminarily establish that the
supervisor is a policymaker. A.M. ex rel. J.M.K. v. Luzerne
Cnty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004).
Defendant argues that Plaintiff has presented no evidence that
Hall was a policymaker, as he was a working police sergeant in a
large police department, whose only role was to gather
information on K-9 handler candidates and produce it to the
hiring committee. (Hall Br. at 20; Reply Br. at 10.)
The Court finds that Plaintiff has failed to raise any
genuine dispute of material fact as to Defendant Hall’s
supervisory liability. Defendant Hall was not the policymaker in
this situation, and there is no indication that Hall actually
selected Wheaten for the position of K9 Handler, nor that he
directed the officers to attack.
In the alternative, Defendant Hall asserts qualified
56

immunity, and Plaintiff does not oppose. Plaintiff has not
established that Defendant Hall violated a clearly established
constitutional right, as he has not identified a case where a
supervisor acting under similar circumstances as Hall was held
to have violated the Fourth Amendment. See White v. Pauly, 137
S. Ct. 548, 552 (2017)(reiterating that the clearly established
law must be “particularized” to the facts of the case, and
should not be defined “at a high level of generality”).
D. Plaintiff’s Monell Claims Against the City of Atlantic City
(Count II)
The City of Atlantic City moves for summary judgment on
Plaintiff’s five municipal liability claims.

Plaintiff brings

five claims against the City: (1) that Defendant Atlantic City
has a widespread, well-settled practice or custom of permitting
its officers, including the individually named officers, to
employ excessive force without fear of discipline; (2) Defendant
Atlantic City has a widespread, well-settled practice of
exonerating rogue officers by failing to meaningfully
investigate citizens’ internal affairs complaints; (3) Defendant
failed to supervise, discipline and train its officers with
regard to officers’ use of excessive force; (4) Defendant failed
to train, supervise and discipline its K9 handlers with regard
to the appropriate and constitutional use of patrol dogs for socalled “criminal apprehension;” and (5) Defendant has a
57

widespread, well-settled practice of condoning its K-9 handlers’
use of patrol dogs to bite non-threatening, non-violent and
often impaired petty offenders as a means of gratuitous
punishment causing serious and permanently disfiguring injuries.
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 their 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)
(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 decisionmaker with final authority issues an
official proclamation, policy, or edict. Bielevicz v. Dubinon,
58

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 Cty Comm'rs of Bryan Cty 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
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).17

17

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
59

a. Custom Permitting Officers to Employ Excessive Force
Without Fear of Discipline
In moving for summary judgment on Plaintiff’s first Monell
claim, Defendant points to the fact that Plaintiff’s expert
obtained all Atlantic City internal affairs and use of force
records from 2007 through 2014, and concluded, after significant
analysis and application of statistical science, that the
Atlantic City Police Department on the whole does not have any
pattern or practice of excessive use of force. (Def. Br. at 43.)
Additionally, Defendant argues that Plaintiff has not shown why
the prior incidents were wrongly decided and how the misconduct
in such prior incidents is similar to that involved in the
present action. See Franks v. Cape May Cty., No. 07-6005, 2010
WL 3614193 at *12 (D.N.J. Sept. 8, 2010)(“Rather than simply
reciting a number of complaints or offense, a plaintiff must
show ‘why these prior incidents deserved discipline and how the
misconduct in those cases is similar to that involved in the
similar action.”). Defendant adds that Plaintiff has only come
forth with complaints against officers for excessive force, but
does not identify a pattern of actual misconduct. (Def. Br. at

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.
60

45-46.)
Defendant argues that the Court should rely on Katzenmoyer
v. Camden Police Dep’t, No. 08-1995, 2012 WL 6691746, at *1
(D.N.J. Dec. 21, 2012), because it is the “same exact case” for
Monell purposes. (Atlantic City Br. at 45.) In Katzenmoyer,
plaintiff’s decedent brought a § 1983 suit against the Camden
Police Department after her son was arrested and allegedly
beaten by two police officers at a concert. To support her
Monell claim, Plaintiff presented evidence that over a six year
period, the Camden Police Internal Affairs Department sustained
only one complaint against police officers out of 641 that were
filed, while prior to the incident involving plaintiff, the two
officers had a total of twelve complaints filed against them,
but only one involved an allegation of excessive force. Id. The
court granted summary judgment to City on the plaintiff’s Monell
claim because “[s]tanding alone . . . this is the type of
statistical evidence that cannot support a finding of municipal
liability under Section 1983.” The court reasoned that plaintiff
had not “offered a sample of these complaints for the Court’s
consideration,” as “such evidence is necessary to give rise to
the inference that the Internal Affairs Division rejected
civilian complaints in order to insulate officers from liability
. . . as opposed to some other, permissible reason (such as that
61

the claims were without evidentiary foundation.)” Id. at *5. The
Court further explained that neither of the two officers in
question had a history with multiple excessive force complaints,
and added that “the proper inquiry for determining whether
Defendant should have been on notice about this officer's
propensity to use excessive force should be the number of actual
written civilian complaints alleging the use of excessive force
or similarly serious infractions, rather than the number of
complaints in total, which might include allegations of
unpleasant demeanor, police rule infractions, and similar minor,
non-violent offenses.” Id. at *5 n.8.
Here, unlike Katzenmoyer, Plaintiff presents more than just
statistical evidence, as there is evidence that several of the
Defendant Officers hit the ACPD’s early warning list every year
and that the Chief of Police knew about it, but nobody ever
spoke to them about it or disciplined them. There are also
depositions from non-defendant officers in the record who were
on the early warning list, but nobody in authority ever spoke to
them either. Moreover, Retired Chief of Police Ernest Jubilee,
who served as chief between 2010 and November 2013, admitted
that there was no early warning system in place “really to speak
of.” (Ex. X to Opp’n at 170:21.) Additionally, Chief Jubilee
testified that ACPD “didn’t have a regulation in place to
62

address” when he received a memo informing him of an officer
having received an inordinate number of complaints. (Id. at
173:5-6.)
Moreover, unlike Katzenmoyer, where the two officers in
question had no history of multiple excessive force complaints,
here, the officers, particularly Defendants Wheaten and Lorady,
have had many such complaints. Defendant Wheaten has been
involved in a great deal of excessive force litigation in this
vicinage, including a 2013 case where a jury awarded Plaintiff
$250,000 after Wheaten assaulted a New Jersey Deputy Attorney
General. See Trosco v. City of Atlantic City, No. 10-1566, 2013
WL 1314738, at *1; see also Franks, 2010 WL 3614193, at *4-*5
(noting that a plaintiff can survive summary judgment if he
presents evidence, in addition to statistical evidence, “that
the officer whom a plaintiff accuses of using excessive force
has been the subject of multiple similar complaints,” or a
sample of excessive force complaints from the relevant police
department “bearing similarities to her own case and arguably
evincing a tendency on the part of the internal affairs division
to insulate officers from liability”).
Additionally, to bolster the weight of his statistical
evidence, and to contextualize the numbers, Plaintiff sets forth
a sample of various reports from Internal Affairs relating to
63

civilian complaints alleging officers’ use of excessive force
and other constitutional violations. See Merman v. City of
Camden, 824 F. Supp. 2d 581, 591-92 (D.N.J. 2010) (denying
summary judgment on plaintiff’s Monell claim after a review of
the Internal Affairs Records.)
Here, Plaintiff presents evidence that Defendants Wheaten,
Lorady, Law, Sendrick, Rogers and Harper accumulated a total of
84 internal affairs complaints between 2008 and 2014, and fifty
of these complaints involved allegations of excessive force, yet
not one complaint was sustained. (Ex. C to Opp’n.) Specifically,
Defendant Wheaten accumulated 33 internal affairs complaints in
his seven-year career (23 involving allegations of assault or
excessive force), and triggered the early warning system eight
times between October 2009 and September 2010, at least eight
times in 2011, six times in 2012, and three times in 2013, but
has never been disciplined. (Ex. C to Opp’n; Ex. I to Opp’n at
279:12; Ex. L to Opp’n).18

Additionally, Defendant Lorady

triggered the early warning system in 2009, 2010 and in 2012;

18

The Third Circuit has found that where five excessive force
complaints had been filed against a police officer over a period
of five years, the “written complaints were sufficient for a
reasonable jury to infer that the Chief of Police of Pittsburgh
and his department knew, or should have known, of [the
Officer's] violent behavior in arresting citizens....” Beck v.
City of Pittsburgh, 89 F.3d 966, 973 (3d Cir. 1996).
64

Defendant Sendrick triggered three times in 2012; Defendant
Harper triggered in 2013. (Exs. A, L to Opp’n.) Plaintiff has
also offered evidence that other ACPD officers not involved in
this case, including Michael Oldroyd, Frank Timek, John Devlin,
Glenn Abrams Jr, and Anthony Alosi accumulated dozens of
internal affairs complaints over their respective careers, but
none of their complaints were ever sustained even though they
triggered the early warning system. (Exs. J, N, O, Q, AAA, BBB
to Opp’n.) Plaintiff argues that “[t]his array of testimony from
a number of ACPD officers who have a history of triggering the
EWS shows that ACPD’s EWS exists in name only.” (Opp’n at 20.)
Overall, between 2007 and 2014, the ACPD accumulated a total of
570 complaints for excessive force, yet only two of those
complaints were ever sustained (Ex. E at 107-108.) Plaintiff
suggests that this “strongly suggests that using force is
condoned and seen as normal operating procedure.” (Opp’n at 22.)
Moreover, the New Jersey Office of the Attorney General,
Department of Law and Safety (“OLEPS”) studied the use of force
by ACPD from January 1, 2012 to December 31, 2013, and found
that “[m]any officers were involved in a large proportion of
those [excessive force] incidents,” yet Chief White testified
that he “did not focus in on individual officers” who were
accumulating excessive force complaints, and that it was better
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to focus on “the whole picture.”(Ex. T to Opp’n at 7; Ex. E to
Opp’n at 273.) Chief Jubilee further testified that the ACPD did
not use their knowledge of complaints to institute any remedial
action, training, policy changes, modifications to assignment or
supervision. (Jubilee Dep. 13-17; 45:16-20; 90:1-17.)
Defendant blames the Attorney General guidelines for the
Chief of Police’s inability to take into account the officers’
prior history of unsubstantiated complaints to sustain
complaints against them. (Def. Br. at 47-49.) Plaintiff replies
that the ACPD “had an obligation to track officer conduct,
identify any concerning patterns or trends, and address them.”
(Opp’n at 11.) Plaintiff offers the expert testimony of Dr. Jon
Shane, who explains that “merely counting complaints without any
action is tantamount to managerial indifference . . . ACPD did
not use their knowledge of complaints to institute any remedial
action, training, policy changes, modifications to assignment or
supervision, despite the fact that an internal affairs
investigator could recommend remedial training upon completing
an investigation.” (Ex. B to Opp’n at 61 ¶d.) Dr. Shane analyzed
content from thirty-three randomly-selected internal affairs
investigations from the ACPD, and found that the ACPD “did not
properly implement the internal affairs program as required by
the New Jersey Attorney General’s Office and did not follow
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accepted industry standards in effect at the time for conducting
internal affairs investigations.” (Id. at 28.)
Viewing the evidence in a light most favorable to
Plaintiff, a reasonable jury could find from this evidence that
the City had a custom of ignoring or failing to properly and
promptly investigate unconstitutional excessive force complaints
against Atlantic City 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 89 F.3d at 971 (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 (D.N.J. 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 find evidence in the
record connecting the failure to investigate and the ACPD
condoning the use of excessive force by its officers without
fear of discipline with the constitutional violation at issue in
this case.

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b. Practice of Exonerating Rogue Police Officers by Failing
to Meaningfully Investigate Internal Affairs Complaints
Next, Plaintiff argues that genuine issues of material fact
exist regarding its second Monell claim, whether ACPD has a sham
internal affairs process that is designed to exonerate rouge
police officers. (Opp’n at 26.) Plaintiff relies on the expert
report of Dr. Shane, who concluded that the ACPD “did not
properly implement this internal affairs program as required by
the New Jersey Attorney General Office and did not follow
accepted industry standards in effect at the time for conducting
internal affairs investigations. The Atlantic City Police
Department also did not follow accepted industry standards for
identifying and addressing patterns and trends of complaints
against police officers.” (Ex. B to Opp’n at 26.)
Additionally, Plaintiff presents evidence that Atlantic
City mislabeled civilian complaints alleging criminal conduct;
for instance, Defendant Wheaten has been accused of stealing or
destroying evidence on at least two occasions, but ACPD failed
to acknowledge these complaints on Wheaten’s IA card; instead,
it identified the complaint as an excessive force and “other
rule violation” and “performance of duty.” (Ex. C to Opp’n.)
Additionally, Officer Oldroyd allegedly left love notes and
flowers at a complainant’s door step, but IA only noted a
“standard of conduct” complaint and Oldroyd was disciplined for
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“misusing property.” (Ex. R to Opp’n.) Plaintiff provides
evidence that when the City is confronted with evidence that an
officer has committed a crime, it disciplines the officer for a
rule violation rather than referring the case for a criminal
investigation. (Opp’n at 38.) Defendant replies that “[t]here is
no logical basis to suggest that the alleged mislabeling of
files in the internal affairs index log relates to knowledge and
acquiescence/deliberate indifference by the Police Chief of the
officers’ customary practice of using excessive and unreasonable
force.” (Reply Br. at 8.”) But such mislabeling provides a
“plausible nexus” or “affirmative link” between the City’s
custom and Plaintiff’s injuries, because if officers are
consistently reprimanded for minor administrative violations (or
not reprimanded at all) instead of disciplined for excessive
force or other potential criminal violations, “then a heightened
inclination of police officers to use excessive force would be a
‘highly predictable consequence’ of the City’s inaction.” Monaco
v. City of Camden, 2008 WL 8738213, at *9 (quoting Bd. of Cty.
Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397, 409 (1997)).
The City, surely, will have an opportunity at trial to
undermine the inferences Plaintiff seeks to show about an
alleged policy of deliberate indifference to complaints of
police misconduct at the time of the incident in this case in
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June 2013. This Court, upon summary judgment, does not weigh the
relative likelihoods of success by Plaintiff and the City of
Atlantic City. It is sufficient to note that the matter presents
a genuine issue of material fact.
As a result, the Court finds that factual issues preclude
summary judgment on whether Atlantic City has a well-settled
custom or practice of conducting sham internal affairs
investigations.
c. Failure to Supervise, Discipline and Train Officers
Regarding Use of Excessive Force
Next, Defendant moves for summary judgment on the failure
to supervise, discipline or train Monell claim with regard to
officers’ use of excessive force. Plaintiff argues that “ample
evidence” demonstrates that Atlantic City “not only failed to
take any action with respect to officers who repeatedly used
excessive force but systematically concealed evidence of their
officers’ criminal conduct.” (Opp’n at 47.) Additionally, at
least five officers testified that despite triggering the early
warning system several times, they had never been disciplined,
ordered for remedial training, or even told that they had
triggered the early warning system in 2015. (Id. at 43.) Also,
Plaintiff presents evidence that the ACPD was not in compliance
with its own policy for conducting yearly performance
evaluations, as it ordered only three evaluations over a five
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year period from 2010-2015. (Ex. GG to Opp’n.)
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.
Plaintiff offers the testimony of its use of force expert
Van Ness Bogardus, who opined that the ACPD’s Use of Force
Policy “did not offer adequate guidance to line level officers
or dog handlers to prevent issues of unreasonable, unnecessary
and excessive use of force in the form of preemptive aggravated
assaults, intentional head strikes, closed fist compliance
strikes to limbs and body, expandable baton strikes to the legs,
knee strikes to the upper body and torso region and unwarranted
attack dog bites on an unarmed and non-threatening “‘drunk
suspect.’” (Ex. NN to Opp’n.)
The Court finds Worrall v. City of Atlantic City, No. 113750, 2013 WL 4500583, at *1 (D.N.J. Aug. 20, 2013) instructive.
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There, plaintiff sued Defendant Wheaten and the City of Atlantic
City arising out of an alleged assault at a nightclub. Id.
Plaintiff alleged that the City “negligently trained and failed
to adequately supervise the defendant police officers,” and
provided evidence that “[b]etween September 19, 2008 and June 8,
2011, Officer Wheaton (sic) was the subject of twenty-one
complaints,” and “fifteen complaints are characterized as having
involved either excessive force or some level of assault.” Id.
at *3. The court denied the City’s motion for summary judgment
on this Monell claim because of the “number of complaints”
against Wheaten, the “related subject matter, and relatively
short time span within which the various complaints were filed.”
Id. at *5. As a result, the Court found that plaintiff had
provided “sufficient evidence for a jury to find that Atlantic
City’s deliberate indifference contributed, at least in part, to
Plaintiff’s injuries,” as “[u]nder Plaintiff’s narrative, policy
makers were made aware of [Wheaten’s] ‘similar unlawful conduct
in the past through the successive complaints, but failed to
take precautions against future violations.’” Id.at *5 (citing
Beck, 89 F.3d at 972.)
While there is ample evidence to support Plaintiff’s claim
with respect to failure to supervise or failure to discipline,
there is less evidence regarding the failure to train aspect of
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the claim, as Plaintiff does not appear to allege negligent
training.19

Defendant argues that it is absurd to suggest that

this incident happened because the officers were not properly
trained “not to beat a defenseless person and instruct a dog to
maul him for sport or out of uncontrolled anger.” (Reply Br. at
10.) The Court agrees, as the City has produced records
indicating that ACPD officers regularly undergo yearly inservice training specifically in the area of use of force. (Exs.
NN, OO, PP to Reply Br.) Accordingly, the Court will deny
summary judgment on the aspect of Plaintiff’s Monell claim
dealing with failure to supervise and failure to discipline, but
will grant summary judgment with respect to failure to train.
d. Monell Claims Related to K9 Handlers
Plaintiff brings a fourth Monell claim arguing that
Plaintiff’s dog-bite injuries were caused by not only Defendant
Wheaten’s excessive force, but also by Atlantic City’s failure
to train, supervise and discipline its K-9 handlers in
accordance with accepted national norms governing K-9 use for
“criminal apprehension.” (Opp’n at 47.) Relatedly, Plaintiff’s
fifth Monell claim states that the ACPD has a practice of
condoning K-9 handlers’ use of patrol dogs to bite non-

19

At oral argument, Plaintiff conceded that its failure to train
Monell claim was the weakest.
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threatening, non-violent and impaired petty offenders.(Opp’n at
70.) Plaintiff argues that Atlantic City showed deliberate
indifference to the safety and well-being of the citizens of
Atlantic City when the ACPD re-deployed the K-9 patrol units in
2010 (after the Mayor suspended the unit in 2009) without
satisfying the re-training and re-certification criteria for
their return as set forth in public safety director Christine
Peterson’s Directive 025-2010 on May 4, 2010. (Opp’n at 48; Ex.
OO to Opp’n.)20

This directive stated that K9 officers were to

undergo medical and psychological examinations and have their
“personnel records and Internal files [reviewed] to determine
present suitability.” (Ex. KK to Opp’n.) Moreover, Plaintiff
argues that the City rewarded officers with prodigious complaint
histories, including Officers Wheaten, Timek, Jacques and
Devlin, with assignments to the K9 Unit.
Defendant replies that the “Mayor’s decision to suspend the
unit, re-evaluate whether to have a K9 unit and whether policy
changes were necessary, along with re-certifying and requiring
psychological evaluations of all of the K9 officers, is the
antithesis of deliberate indifference.” (Reply Br. at 12-13.)

20

On March 1, 2010, Mayor Lorenzo Langford directed Ms.
Peterson, his Public Safety Director, to undertake a review of
the ACPD’s K9 units and provide recommendations to improve the
unit.
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Additionally, it argues that Plaintiff cannot establish
causation because “[t]here is no logical basis to tie in the
alleged imperfections in the suspension and re-evaluation of the
K9 unit in 2009 through 2010 to have some causal connection to
Officer Wheaten’s asserted excessive use of K9 force in June
2013, where Wheaten was not even a K9 officer when the
suspension and re-evaluation of the unit occurred.” (Reply Br.
at 13.)
However, while the Mayor may have authorized an examination
of the K9 Unit in 2009, Plaintiff presents evidence that the K9
unit has essentially ignored the new protocols that Ms. Peterson
recommended in Directive 025-2010. Plaintiff states that ACPD
has produced no writing from any officer confirming that they
complied with Directive 025-2010, and that “most of the
directive was completely ignored” by handlers. (Opp’n at 60, 64;
Exs. RR and TT to Opp’n.) Officer Joseph Rodriguez, the head K9
Trainer at the ACPD between 2010 and 2015, stated that “nothing
really special happened before these canines were returned to
the street in 2010.” (Ex. RR to Opp’n at 131:4-19.)
Additionally, Directive 025-2010 required that all K-9 handlers
must undergo psychological evaluations before returning to the
streets, and when the psychologist who performed those
evaluations “found some concerns” with three candidates and
75

wanted to re-interview them, the ACPD never followed up. (Ex. NN
to Opp’n.)
Moreover, Plaintiff presents evidence that the ACPD
rewarded officers with vast complaint histories through
Wheaten’s tenure in 2013. Officer Rodriguez, voiced concerns
about the appointment of Frank Timek and Andrew Jacques to the
K9 unit given their checkered pasts, but was largely ignored by
his supervisors. When Officer Rodriquez told his supervisors
that Timek “wasn’t a good choice for canine” because of his
temperament, they told him “to go to blow basically.” (Ex. RR to
Opp’n at 156:11-15.) Similarly, Officer Rodriguez told his
supervisors that Andrew Jacques was not suitable for the
position, but he was chosen anyway. (Id. at 157:2.) Officer
Rodriguez further stated that once he voiced his concerns about
Timek and Jacques, his complaints “just [fell] on deaf ears” and
he was “nixed out of the [K-9 training] program was the easiest
way to [remove him].” (Id. at 158:14-16.)
For Plaintiff’s fifth Monell claim, he presents a study of
ACPD K9 handler apprehensions from 2009, 2011 and 2012. (Ex. YY
to Opp’n.) Plaintiff concludes that out of the 42 apprehensions
reviewed, (1) less than 10% involved the use of any weapon or
object that could be used as a weapon, (2) only two cases
involved an on-scene officer or civilian who sought medical
76

treatment for physical injuries, (3) less than 5% of cases
involved the K9 actually “finding” the suspect, (4) greater than
50% of cases involved impaired or “under the influence”
suspects, and (5) in all but a handful of cases, the
precipitating offense was a non-violent offense or merely an
investigatory stop that uncovered no offense whatsoever. (Id.)
Plaintiff argues, in conjunction with his expert Van Ness
Bogardus that, “[w]ithout clear guidelines regarding
felony/misdemeanor distinctions or active/passive resistance
distinctions exhibited by suspects, ACPD permitted its K9
handlers, like Defendant Wheaten, to order their dogs to bite
just about anyone they deemed necessary.” (Opp’n at 75.) Such
conduct, if proved, amounts to deliberate indifference by the
municipality to the protection of rights to be free from wanton
and excessive force against suspects who are unarmed, impaired
and charged with minor offenses, presenting a jury issue. A
reasonable jury could find that this indifference to proper
management of the K-9 unit was the “moving force” behind the
constitutionally excessive force launched upon Castellani by
Officer Wheaten and his canine partner. The Court finds genuine
disputes of material fact on Plaintiff’s fourth and fifth Monell
claims; thus, summary judgment is denied.

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V. CONCLUSION
For the foregoing reasons, the Court grants in part and
denies in part Defendants’ motions for summary judgment.

July 20, 2017
Date

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

78