JONES v. CITY OF VINELAND et al
OPINION. Signed by Judge Noel L. Hillman on 4/1/2016. (tf, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CIVIL NO. 13-7132(NLH)(AMD)
CITY OF VINELAND, GARY
MOLLIK, JOSE TORRES, POLICE
CHIEF TIMOTHY CODISPOTI, LOUIS
PLATANIA, POLICE OFFICER JAMES
DAY, WILLIAM BONTCUE, H.
CONNELLY, and JOHN DOES 1-10,
PAUL R. MELLETZ
BEGELMAN ORLOW & MELLETZ
411 ROUTE 70 EAST
CHERRY HILL, NJ 08034
On behalf of Plaintiff
BRIAN H. LEINHAUSER
JOHN PATRICK MCAVOY
MacMAIN LAW GROUP, LLC
101 LINDENWOOD DRIVE
MALVERN, PA 19355
On behalf of Defendants
HILLMAN, District Judge
This case involves claims of false arrest and excessive
force by law enforcement officers.
Presently before the Court
is the motion of Defendants for summary judgment.
reasons expressed below, Defendants’ motion will be granted in
part and denied in part.
Plaintiff, Noel Jones, was arrested by Vineland Police
Department officers on two occasions: December 1, 2011 (Arrest
No. 1) and June 23, 2013 (Arrest No. 2).
Arising from these
events, Plaintiff asserts claims for false arrest, excessive
force, and assault and battery against the officers, and against
the City of Vineland for fostering a policy of inappropriate use
of force by police officers.
Plaintiff describes the incidents as follows.
1, 2011, Plaintiff was a passenger in a vehicle that was driving
around the City of Vineland.
The vehicle was stopped by
Defendants Officers Gary Mollik and Jose Torres for having a
defective passenger side brake light.
After the vehicle was
stopped, Plaintiff and the driver were ordered out of the
Plaintiff complied with the requests of Mollik and
Torres to exit the vehicle.
Upon exiting the vehicle, Plaintiff
was told that he was going to be patted down for safety reasons.
When inquiring as to why his pockets were being searched, one of
the officers responded “shut up before I f**k you up.”
Mollik swung at Plaintiff with an open hand which caused him to
Rather than fleeing the scene, Plaintiff ran in a
circular direction in an attempt to alert neighbors as to what
was unfolding because Plaintiff feared for his safety due to
Mollik’s unprovoked assault.
Plaintiff to the ground.
Torres then proceeded to tackle
While Plaintiff’s hands were in front
of him, Torres choked Plaintiff by utilizing a chokehold
Plaintiff was unable to breathe.
While on the ground
in a chokehold, Plaintiff felt pain on the right side of his
face as he was being struck and kicked by Mollik.
maintains that he ultimately lost consciousness.
transported to Vineland South Jersey Regional Medical Facility
Plaintiff was diagnosed with having a fractured
orbital bone and later with a fractured jaw.
On June 23, 2013, Plaintiff arrived in the City of Vineland
at or around Landis and East Avenue by way of bus.
departing the bus, Plaintiff spoke with other individuals
standing near the bus stop.
As Plaintiff walked away from the
conversation, Officers Platania and Day approached him.
officers asked another individual whether Plaintiff had exited a
bus, to which the individual responded “no.”
placed under arrest and handcuffed.
Plaintiff claims that he was tackled to the ground by the
Officers when he refused to open his hands.
contends that he was then assaulted by Platania and Day.
Sergeant Bontcue arrived on the scene and Plaintiff contends
that Bontcue stomped on his hands, arms, and back.
was subsequently taken to the Vineland Police station, where
Plaintiff was held in custody for approximately a day and a
Defendants relate a mostly different version of events.
December 1, 2011, Officers Mollik and Torres stopped a vehicle
in which Plaintiff was a passenger for a taillight violation.
When the driver of the vehicle opened the glove box to produce
paperwork for the vehicle’s registration, Mollik and Torres
observed a small digital scale which they associated, based on
their experience, with the sale of drugs.
The officers asked
both the driver and Plaintiff to exit the vehicle.
patted down Plaintiff and checked his pockets for contraband.
Because Plaintiff protested and refused to allow Mollik to
search him, Mollik called for backup.
After the officers called for backup, and while Plaintiff
was being Mirandized, Plaintiff fled the scene to prevent an
The officers gave pursuit on foot.
Despite the fact
that the officers advised Plaintiff to stop and that he was
under arrest, he continued to run.
Plaintiff to the ground.
Ultimately, Mollik tackled
As Mollik tackled Plaintiff to the
ground, Mollik hit his knee on the pavement, which required
surgery and caused him to miss six months of work. 1
Once on the ground, Defendants claim that despite Mollik’s
verbal commands that Plaintiff stop resisting, Plaintiff hid his
arms under his body and refused to give up his hands so that
Mollik could place him in handcuffs.
During this struggle, and
when verbal commands proved unsuccessful, Mollik struck
Plaintiff about the face three times in order to gain control
over the actively resisting Plaintiff.
Plaintiff also resisted
Mollik’s efforts to gain control by pushing himself up off of
Torres then struck Plaintiff about the face three
When Plaintiff continued to resist, Mollik utilized
a rear headlock maneuver in a further attempt to subdue
Plaintiff did a pushup with Mollik on his back at
which time Mollik wrapped his legs around Plaintiff’s torso.
Torres took ahold of Plaintiff’s left arm, but was unable to
handcuff Plaintiff who continued to flail his arms and disregard
the officers’ instructions that he stop resisting.
Defendants contend that neither of them used full force in
attempting to subdue and arrest Plaintiff.
Despite the use of
physical force, Plaintiff continued to resist until the K-9
According to Officer Mollik, he never regained use and full
mobility of his right knee and, as a result of this injury, he
is 25 percent disabled.
unit, Officer MacAfee and his partner Hasso, arrived and advised
Plaintiff that the dog would be released if his resistance
Plaintiff then gave up his hands and stated “I give
Once Plaintiff was successfully subdued, he was taken to
the back of Officer Ramos’ car.
While in the rear of Ramos’
patrol car, Plaintiff began to move around significantly.
Ramos shined his flashlight on Plaintiff and observed Plaintiff
with a clear plastic bag in his hands, which he was attempting
to stuff under his waistband in the back of his pants.
and Mollik opened the door and confiscated the bag from
The New Jersey State Police later confirmed
that the confiscated bag contained cocaine and heroin.
Plaintiff was subsequently transported to the South Jersey
Regional Medical Center for medical clearance for injuries to
Plaintiff was diagnosed as having a fractured orbital
bone and nose.
According to the intake patient report,
Plaintiff denied any loss of consciousness.
Plaintiff was charged with, inter alia, “resisting arrest,
specifically by refusing to give his hands and further attempt
to escape a lawful arrest in violation of N.J.S.A. 2C:292A(3)[,]” aggravated assault on a police officer in violation of
N.J.S.A. 2C:12-1b(5)a, as well as possession of various CDS with
the intent to distribute.
Prior to the incident on June 23, 2013, the owners of the
private property located at 106 W. Landis Avenue, Vineland, New
Jersey, commonly referred to as “the Vineland Bus Terminal,”
granted the City of Vineland Police Department power-of-attorney
over the Property to enforce their no trespassing policy.
Pursuant to its authority as attorney-in-fact, the City of
Vineland Police Department’s Street Crimes Unit, which consisted
of Officers Selby, Day, Connelly, Bergamo and Platania
(collectively “the Unit”), conducted an investigation of the
Vineland Bus Terminal on June 23, 2013.
In the months preceding
the June 23, 2013 incident, the Unit had received information
from numerous confidential informants as well as concerned
citizens regarding illegal narcotics activity in and around the
Vineland Bus Terminal.
As the Unit conducted the investigation, Officer Selby
informed Officers Day, Connelly and Platania that a subject who
each of the Unit members were familiar with from prior police
contact was loitering around the front of the Bus Terminal
Day and Platania were aware that this person, an
admitted heroin user and middleman for the distribution of
narcotics, routinely brokered transactions between drug dealers
and drug buyers in exchange for free heroin.
informed Day, Connelly and Platania that he observed an African
American male speaking with the middleman before the two of them
walked together to the southeast corner of the Bus Terminal
After the middleman walked away from the African
American male, the African American male walked toward and spoke
briefly with an unidentified Caucasian female and then a
Hispanic male who were also on the Property.
It was at this
time that Officer Platania decided to enter the Property in
order to speak with the four suspects.
As Officer Platania approached the Property from the north
side, Platania noticed that the African American male suspect
started walking through the east parking lot as soon as the
suspect spotted Platania’s patrol car.
Platania exited his
patrol car and approached the African American male suspect as
Day and Connelly moved toward the other three suspects.
distance, Platania inquired as to the African American male
The suspect hesitated and stated “Lee Jones.”
Officer Platania, who was now much closer to the suspect,
immediately recognized the suspect from previous police contacts
as the Plaintiff.
Platania knew him to be a drug dealer who
used the street name “Snowy.”
Plaintiff had been arrested by
the Unit for numerous narcotics related offenses.
frequently received information from informants that Plaintiff
was still selling narcotics in and around the City of Vineland.
When Officer Platania asked Plaintiff what he was doing on
the Property, Plaintiff responded that he had just arrived on a
bus from Bridgeton approximately ten minutes earlier.
then informed Plaintiff that the Unit had power-of-attorney on
the Property and anyone loitering was subject to arrest for
Plaintiff, who had become visibly nervous and
began breathing extremely heavily, yelled to other people
present at the Bus Terminal asking that the subjects advise
Platania that he just disembarked from a bus.
as to whether Plaintiff had a bus pass on him, and Plaintiff
stated he did not.
Around this time, Officer Day, who had already taken one of
the other suspects into custody for possession of heroin and
drug paraphernalia, approached Platania and Plaintiff.
Plaintiff encouraged Day to ask a nearby Caucasian man whether
he witnessed Plaintiff get off of the bus.
When the nearby
bystander failed to corroborate Plaintiff’s story, Day advised
Plaintiff that he was under arrest for defiant trespassing and
immediately took ahold of Plaintiff’s left arm.
Day ordered Plaintiff to put his hands behind his back.
Plaintiff pulled his arm from Day’s grasp and pushed Day in the
area of his chest and attempted to run away.
Officer Platania instantaneously tackled Plaintiff to the
ground and placed Plaintiff in a compliance hold.
Connelly were then able to gain control of Plaintiff’s arms and
placed him into handcuffs.
During this time, Plaintiff screamed
to the nearby bystanders asking them for their names.
searched Plaintiff’s person and located a digital scale in his
front right pocket of his pants.
Platania then advised Police
Dispatch that he had one subject under arrest for resisting
arrest at which time several patrol units and supervisors
arrived on scene.
Officer Platania stood Plaintiff up.
instruction that he calm down, Plaintiff became increasingly
upset at the fact that he was under arrest and refused to
Platania noticed that both of Plaintiff’s hands were
Because the inside of Plaintiff’s hands were empty
when he was tackled to the ground, Platania became suspicious.
Based on his training and experience, Platania believed
Plaintiff had retrieved something from is body or clothing, as
there were no items inside Plaintiff’s pockets.
ordered Plaintiff to open his hands, the then-handcuffed
Plaintiff began to run away.
Plaintiff took approximately four
steps before Platania was able to grab ahold of him.
Platania grabbed Plaintiff, they both fell to the ground as a
result of Plaintiff’s forward momentum.
When Platania looked at
Plaintiff’s hands while on the ground, he noticed that Plaintiff
was rubbing his finger against his palms in order to grind a
white rock-like substance falling from his hands.
resisted Day and Platania’s efforts to pull his fingers back to
retrieve the any items in his hands.
Despite the efforts of Officers Day, Platania, and several
other officers and supervisors, they were unable to open
Sgt. Bontcue, who had recently arrived on
the scene, then took his expandable baton and gave two to three
small strikes to Plaintiff’s fingers which proved successful and
the Officers were able to retrieve the suspected contraband.
Day collected the white rock-like substance that fell from
Plaintiff’s hands while Platania stood Plaintiff up in order to
better search his person.
Plaintiff was soon after transported
Upon arrival at police headquarters and after a brief pat
down search, Plaintiff was advised to sit down and was
handcuffed to the wall.
Plaintiff complained of pain to his
head and arm at which time Officer Platania contacted Vineland
Emergency Medical Services (“EMS”) to respond to headquarters to
EMS arrived and transported Plaintiff to the
Plaintiff was later released from the hospital and
medically cleared for incarceration.
Plaintiff was subsequently charged with possession of drug
paraphernalia (digital scale) and hindering (giving false name),
aggravated assault on police, resisting arrest with force and
tampering with evidence, and possession of crack cocaine with
the intent to distribute within 1000 feet of a school.
Municipal Court Clerk approved this warrant and set bail at
$35,000 at ten percent.
Plaintiff was later transported to
Cumberland County Jail where he was lodged in lieu of bail.
On January 26, 2015, Plaintiff entered a negotiated guilty
plea that encompassed several criminal cases pending against
him, including the cases arising out of the events of Arrest No.
1 and Arrest No. 2.
It appears that Plaintiff entered a guilty
plea to two counts of resisting arrest charge in the third
degree in violation of N.J.S.A. 2C:29-2A along with two counts
of possession of CDS.
Pursuant to the negotiated guilty plea,
Plaintiff agreed to serve two to five years in a New Jersey
State Correctional Facility for the four counts he pled guilty
to 2 in exchange for the dismissal of several other counts. 3
Plaintiff filed a five-count complaint against the
Defendant officers and City of Vineland, asserting claims for
false arrest, false imprisonment, excessive force, conspiracy,
municipal liability, and assault and battery.
moved for summary judgment on all of Plaintiff’s claims.
Defendants argue: (1) Plaintiff’s false arrest and false
imprisonment claims are barred by the doctrine of collateral
estoppel and the Heck doctrine; (2) the undisputed facts
demonstrate that the officers did not use excessive force during
either of Plaintiff’s two arrests; (3) the doctrine of judicial
estoppel bars Plaintiff’s excessive force claims; (4) Plaintiff
has no proof to support his conspiracy claim; (5) the officers
are otherwise entitled to qualified immunity; (6) Plaintiff has
not provided any proof to support a municipal liability claim
against the City of Vineland for failure to train its officers
Plaintiff was initially scheduled to be sentenced by Superior
Court Judge Malestein on March 2015. Although the sentencing
date was adjourned on multiple occasions, Plaintiff was most
recently scheduled to be sentenced on May 4, 2015. Plaintiff
failed to appear in court on May 4, 2015. As a result, Judge
Malestein enforced the plea agreement and issued a bench warrant
for Plaintiff’s failure to appear. It appears that Plaintiff
began serving his sentence on May 5, 2015.
We note here, for reasons that will be apparent infra regarding
the Heck doctrine, two of the dismissed counts are charges of
in the proper use of force; and (7) Plaintiff cannot support his
state law assault and battery claim arising out of the December
Plaintiff has opposed Defendants’ motion in its
Plaintiff has brought his claims pursuant to 42 U.S.C. §
1983, as well as New Jersey state law.
This Court has
jurisdiction over Plaintiff’s federal claims under 28 U.S.C. §
1331, and supplemental jurisdiction over Plaintiff’s state law
claims under 28 U.S.C. § 1367.
Summary Judgment Standard
Summary judgment is appropriate where the Court is satisfied
that the materials in the record, including depositions,
documents, electronically stored information, affidavits or
declarations, stipulations, admissions, or interrogatory answers,
demonstrate that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of
Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986); Fed. R.
Civ. P. 56(a).
An issue is “genuine” if it is supported by evidence such
that a reasonable jury could return a verdict in the nonmoving
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
A fact is “material” if, under the governing
substantive law, a dispute about the fact might affect the
outcome of the suit.
In considering a motion for summary
judgment, a district court may not make credibility
determinations or engage in any weighing of the evidence;
instead, the non-moving party's evidence “is to be believed and
all justifiable inferences are to be drawn in his favor.”
Marino v. Industrial Crating Co., 358 F.3d 241, 247 (3d Cir.
2004)(quoting Anderson, 477 U.S. at 255).
Initially, the moving party has the burden of demonstrating
the absence of a genuine issue of material fact.
v. Catrett, 477 U.S. 317, 323 (1986).
Once the moving party has
met this burden, the nonmoving party must identify, by
affidavits or otherwise, specific facts showing that there is a
genuine issue for trial.
Thus, to withstand a properly
supported motion for summary judgment, the nonmoving party must
identify specific facts and affirmative evidence that contradict
those offered by the moving party.
Anderson, 477 U.S. at 256-
A party opposing summary judgment must do more than just
rest upon mere allegations, general denials, or vague
Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir.
For the reasons that follow, the Court finds that
Defendants are entitled to summary judgment on all of
Plaintiff’s claims, except for his claims of excessive force and
assault and battery arising out of the December 1, 2011 arrest.
Plaintiff’s false arrest/false imprisonment and
excessive force claims against the individual
Before addressing the facts of the two incidents,
Defendants argue that Plaintiff’s claims for false arrest/false
imprisonment and excessive force are barred by either the
doctrine of judicial estoppel, the Heck doctrine, or both.
the reasons discussed below, while they are largely moot because
we find probable cause existed for both arrests, we disagree
with these arguments.
Moreover, neither of these two doctrines
bar Plaintiff’s claims of excessive force.
First, with regard to plaintiff’s false arrest/false
imprisonment claims, “‘[a]n arrest made without probable cause
creates a cause of action for false arrest under 42 U.S.C. §
In addition, where the police lack probable cause to make
an arrest, the arrestee has a claim under § 1983 for false
imprisonment based on a detention pursuant to that arrest.’”
Ference v. Twp. of Hamilton, 538 F. Supp. 2d 785, 800 (D.N.J.
2008) (quoting O'Connor v. City of Philadelphia, 233 F. App’x
161, 164 (3d Cir. 2007)); see also Montgomery v. De Simone, 159
F.3d 120, 126 (3d Cir. 1998) (citing Heck v. Humphrey, 512 U.S.
477, 484 (1994)) (explaining that a claim for false arrest
covers damages only for the time of detention until the issuance
of process or arraignment, and not more, and a false
imprisonment claim relates only to the arrest and the few hours
the arrestee was detained immediately following his arrest).
“Probable cause to arrest requires more than mere
suspicion; however, it does not require that the officer have
evidence sufficient to prove guilt beyond a reasonable doubt.
Rather, probable cause to arrest exists when the facts and
circumstances within the arresting officer's knowledge are
sufficient in themselves to warrant a reasonable person to
believe that an offense has been or is being committed by the
person to be arrested.”
Orsatti v. New Jersey State Police, 71
F.3d 480, 482-83 (3d Cir. 1995) (citations omitted).
For a §
1983 claim based on false arrest, the inquiry is “not whether
the person arrested in fact committed the offense but whether
the arresting officers had probable cause to believe the person
arrested had committed the offense.”
Dowling v. City of
Philadelphia, 855 F.2d 136, 141 (3d Cir. 1988).
For the December 1, 2011 arrest, Plaintiff was a passenger
in a car that was pulled over because of a broken taillight.
When the driver retrieved his documents from the glove
compartment, the officers observed a small digital scale, which
they associated with the sale of drugs.
The events that
followed, detailed above, resulted in Plaintiff being charged
for resisting arrest, aggravated assault on a police officer,
and possession of CDS with intent to distribute.
For the June 23, 2013 arrest, the special unit performing
an investigation of the bus terminal, over the course of several
months, received information from informants and citizens
regarding illegal narcotic activity.
The officers observed
Plaintiff speaking with several people, including a known
middleman who brokered transactions between drug dealers and
drug buyers in exchange for free heroin.
The officer eventually
recognized Plaintiff, who was trying to walk away by then,
because he had been arrested previously by the unit for drug
When asked for a bus ticket to confirm that
he was lawfully on the property, Plaintiff could not produce
one, and one of the bystanders did not corroborate Plaintiff’s
story at his request.
Plaintiff was arrested for defiant
trespassing, with the subsequent events leading to other
charges, including resisting arrest and possession of CDS.
These facts compel a finding that probable cause supported
both the December 1, 2011 and June 23, 2013 arrests.
Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001) (“If an
officer has probable cause to believe that an individual has
committed even a very minor criminal offense in his presence, he
may, without violating the Fourth Amendment, arrest the
This finding alone is fatal to Plaintiff’s false
arrest/false imprisonment claims.
In addition to the existence of probable cause, Defendants
also argue that Plaintiff’s false arrest/false imprisonment
claims cannot be maintained because a finding in his favor on
those claims would imply the invalidity of his guilty plea to
In Heck v. Humphrey, 512 U.S. 477 (1994), the
United States Supreme Court provided an example of an
unsupportable § 1983 action whose successful prosecution would
necessarily imply that the Plaintiff's criminal conviction was
A state Defendant is convicted of and sentenced for the
crime of resisting arrest, defined as intentionally
preventing a peace officer from effecting a lawful arrest.
(This is a common definition of that offense.) He then
brings a § 1983 action against the arresting officer,
seeking damages for violation of his Fourth Amendment right
to be free from unreasonable seizures. In order to prevail
in this § 1983 action, he would have to negate an element
of the offense of which he has been convicted. Regardless
of the state law concerning res judicata, the § 1983 action
will not lie.
Heck v. Humphrey, 512 U.S. 477, 487 n.6 (1994) (internal
While defendants’ invocation of the Heck bar may be proper
in this case, we are unable to reach that conclusion on this
It does appear from Defendants’ submissions that
Plaintiff pled guilty to two counts of violating N.J.S.A. 2C:292, Resisting arrest; eluding officer, which provides that a
person is guilty of a third degree offense if he “purposely
prevents or attempts to prevent a law enforcement officer from
effecting an arrest” and “[u]ses or threatens to use physical
force or violence against the law enforcement officer or
another,” or “[u]ses any other means to create a substantial
risk of causing physical injury to the public servant or
However, we know nothing else about those convictions and
the facts underlying them.
We do not know, for example, that
they relate to Arrest No. 1, Arrest No. 2 or neither of them.
Moreover, we do know that two additional counts of resisting
arrest were dismissed as part of the plea agreement.
do not know whether those dismissed counts relate to Arrest No.
1, Arrest No. 2 or neither of them.
Nor have we been provided
copies of the charging documents or transcript of a plea
proceeding to determine what facts Plaintiff admitted to and
which counts were abandoned with or with accompanying admissions
by the Plaintiff.
It is generally true that a Plaintiff who pleads guilty to
purposely attempting to prevent an officer from arresting him
cannot later maintain a claim against the officer on the premise
that the officer had no basis to arrest him.
See Nelson v.
Jashurek, 109 F.3d 142, 145 (3d Cir. 1997) (“[W]e believe that
the Supreme Court intended to demonstrate that a civil suit for
an unreasonable seizure predicated on a false arrest would be
barred so long as a conviction for resisting the same arrest
However, here we do not have similar assurances of the same
symmetry between the convictions obtained and the claims
asserted in this case for false arrest.
As Plaintiff points
out, Heck does not bar all civil rights claims that merely
relate to later convictions; rather, it bars only those claims
that would necessarily undermine a criminal conviction.
differently, the mere fact that Plaintiff pled guilty to some
counts of resisting arrest as part of a plea deal does not mean
that Heck necessarily bars all claims related to the dismissed
For all we know on this record, the State could have
dismissed the resisting arrest counts arising from Arrest No. 1
and Arrest No. 2 in exchange for guilty pleas to other conduct.
Here, defendants have simply failed to provide enough
information about the guilty pleas for us to fully and
accurately assess to what extent Heck bars these claims.
e.g., Brenner v. Twp. of Moorestown, No. CIV. 09-219, 2011 WL
1882394, at *6 (D.N.J. May 17, 2011) (“Because Plaintiff pled
guilty to obstructing the administration of law - the very same
offense that Officers Mann, Jr. and Pascal arrested him for - a
finding that the officers lacked probable cause would
necessarily invalidate Plaintiff's guilty plea.
forecloses Plaintiff's false arrest claim.”).
decline to enter summary judgment on the basis of Heck as to
Plaintiff’s false arrest/false imprisonment claims.
Nor does the Heck doctrine bar Plaintiff’s excessive force
See, e.g., Garrison v. Porch, 376 F. App'x 274, 278 (3d
Cir. 2010) (finding that Heck did not bar Plaintiff’s excessive
force claim even though he pleaded guilty to simple assault on a
police officer, explaining that even though “the fact that
Garrison was acting in an unruly and threatening manner
certainly factors into the totality of the circumstances and may
have justified a greater use of force than would have been
reasonable had Garrison been peaceful and cooperative, it
certainly did not dispense with the reasonableness requirement
Acknowledging this, Defendants argue instead that
Plaintiff’s excessive force claims are barred by the doctrine of
The doctrine of judicial estoppel, “sometimes called the
‘doctrine against the assertion of inconsistent positions,’ is a
judge-made doctrine that seeks to prevent a litigant from
asserting a position inconsistent with one that she has
previously asserted in the same or in a previous proceeding.
is not intended to eliminate all inconsistencies, however slight
or inadvertent; rather, it is designed to prevent litigants from
playing ‘fast and loose with the courts.”
Ryan Operations G.P.
v. Santiam-Midwest Lumber Co., 81 F.3d 355, 358 (3d Cir. 1996)
“The basic principle . . . is that absent
any good explanation, a party should not be allowed to gain an
advantage by litigation on one theory, and then seek an
inconsistent advantage by pursuing an incompatible theory.”
Defendants argue that Plaintiff’s excessive force claims
are barred because he pleaded guilty to N.J.S.A. 2C:29-2, where
he admitted he “purposely prevent[ed] or attempt[ed] to prevent
a law enforcement officer from effecting an arrest” and
“[u]se[d] . . .
physical force or violence against the law
By pleading guilty to that offense,
Defendants contend that he also admitted that the officers did
not act unlawfully in making the arrest.
Defendants argue that
Plaintiff cannot now assert the opposite, and inconsistent,
position that how the officers acted was unlawful.
Defendants’ argument fails for two reason.
judicial estoppel doctrine applied under these circumstances is
simply a different application of the Heck doctrine.
prevents a person who pleaded guilty to a crime from maintaining
a civil suit that, if successful, would imply the invalidity of
In other words, under Heck, a person cannot be
victorious in a civil suit based on a position that is
inconsistent with that person’s criminal conviction – e.g.,
pleading guilty to purposefully resisting arrest and then suing
the arresting officer for unreasonable seizure.
of the judicial estoppel doctrine in this case would yield the
Thus, because the Heck doctrine and the doctrine
of judicial estoppel are effectively the same under these
circumstances, Defendants cannot apply the judicial estoppel
doctrine to make an end-run around Heck, which does not preclude
an excessive force claim where a plaintiff has pleaded guilty to
Second, the statute does not require Plaintiff to have
admitted that the officers did not act unlawfully in effecting
N.J.S.A. 2C:29-2 provides in relevant part:
Resisting arrest; eluding officer
a. (1) Except as provided in paragraph (3), a person is
guilty of a disorderly persons offense if he purposely
prevents or attempts to prevent a law enforcement officer
from effecting an arrest. (2) Except as provided in
paragraph (3), a person is guilty of a crime of the fourth
degree if he, by flight, purposely prevents or attempts to
prevent a law enforcement officer from effecting an arrest.
(3) An offense under paragraph (1) or (2) of subsection a.
is a crime of the third degree if the person:
(a) Uses or threatens to use physical force or violence
against the law enforcement officer or another; or
(b) Uses any other means to create a substantial risk of
causing physical injury to the public servant or another.
It is not a defense to a prosecution under this subsection
that the law enforcement officer was acting unlawfully in
making the arrest, provided he was acting under color of
his official authority and provided the law enforcement
officer announces his intention to arrest prior to the
The only reference to an officer’s unlawful
conduct is that it “is not a defense to a prosecution under this
subsection that the law enforcement officer was acting
unlawfully in making the arrest.”
Thus, Defendants’ argument -
that when Plaintiff pleaded guilty to N.J.S.A. 2C:29-2a(3) he
was required to admit that the law enforcement officers did not
act unlawfully in making the arrest - is unsupported by the
plain language of the statute.
The statute actually provides
that even if a law enforcement officer acted unlawfully in
effecting the arrest (which is Plaintiff’s claim in this case),
a person may still be guilty of the resisting arrest offense.
Contrary to Defendants’ argument, Plaintiff never admitted that
the Defendant officers acted lawfully in effecting his arrest.
Absent admissions by the Plaintiff in the criminal
proceedings that the officers did not use excessive force,
Plaintiff’s excessive force claims are not precluded under Heck
or the judicial estoppel doctrine.
Consequently, the Court must
assess the facts surrounding the two incidents to determine the
viability of Plaintiff’s excessive force claims.
As a primary matter, the qualified immunity doctrine
governs the analysis of Plaintiff’s Fourth Amendment claims
against the individual Defendants acting in their personal
“Qualified immunity shields government officials from
civil damages liability unless the official violated a statutory
or constitutional right that was clearly established at the time
of the challenged conduct.”
Reichle v. Howards, ––– U.S. ––––,
––––, 132 S. Ct. 2088, 2093 (2012).
In order to determine
whether a government official is entitled to qualified immunity,
two questions are to be asked: (1) has the plaintiff alleged or
shown a violation of a constitutional right, and (2) is the
right at issue “clearly established” at the time of the
defendant's alleged misconduct?
223, 236 (2009).
Pearson v. Callahan, 555 U.S.
Courts are “permitted to exercise their sound
discretion in deciding which of the two prongs of the qualified
immunity analysis should be addressed first.”
It is the
defendant's burden to establish entitlement to qualified
Kopec v. Tate, 361 F.3d 772 (3d Cir. 2004).
With regard to Plaintiff's excessive force claim, in
determining whether excessive force was used, the Fourth
Amendment's “objective reasonableness” test is applied.
v. Felsing, 128 F.3d 810, 820–21 (3d Cir. 1997) (citing Graham
v. Connor, 490 U.S. 386, 396 (1989)).
reasonableness test “requires careful attention to the facts and
circumstances of each particular case, including the severity of
the crime at issue, whether the suspect poses an immediate
threat to the safety of the officers or others, and whether he
is actively resisting arrest or attempting to evade arrest by
Id. (relying on Graham, 490 U.S. at 396; Groman v.
Township of Manalapan, 47 F.3d 628, 634 (3d Cir. 1995)).
relevant 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.”
The Court finds that Defendants are entitled to qualified
immunity regarding the use of force in Plaintiff’s June 23, 2013
The Court also finds that material disputed facts
remain regarding the use of force in Plaintiff’s December 1,
2011 arrest that require resolution of a jury prior to the
Court’s determination of whether the officers are entitled to
For the June 23, 2013 arrest, Plaintiff claims that after
he was handcuffed at the bus terminal he was tackled to the
ground and his hands were stomped on numerous times.
All of the
evidence in the record, however, shows that Plaintiff tried to
run away as he was being handcuffed, which caused Plaintiff and
the officer to fall to the ground.
The evidence also shows that
after he was handcuffed, Plaintiff refused to reveal the
substance in his hands, which he was grinding, causing white
rocks to fall.
Even though Plaintiff claims that his hand were
stomped on, all the other testimony reveals that numerous
attempts to pry open Plaintiff’s hands did not work, and a
couple baton strikes to Plaintiff’s hands finally caused
Plaintiff to release the substance, which was crack cocaine.
The evidence further shows that Plaintiff suffered no injury to
his hands or body that required medical treatment.
All of the Graham factors weigh in favor of a conclusion
that they acted in an objectively reasonable manner under the
totality of the circumstances.
statements about being tackled and stomped on are not supported
by the credible evidence in the record and therefore are
insufficient to create a genuine dispute of material fact.
Accordingly, the individual officers involved in the June 23,
2013 arrest – Officers Platania and Day and Sgt. Bontcue – are
entitled to qualified immunity on Plaintiff’s excessive force
claim relating to the June 23, 2013 arrest. 4
The December 1, 2011 arrest of Plaintiff is a different
In this incident, the officers involved candidly admit
that they used force in effecting Plaintiff’s arrest.
Defendants admit that (1) one of the Defendant officers tackled
Plaintiff to the ground, (2) Officer Mollik struck Plaintiff in
the face three times, (3) Officer Torres struck Plaintiff in the
Plaintiff has asserted a claim of conspiracy pursuant to 28
U.S.C. § 1985 against the officers arising out of the June 23,
2013 arrest. This claim fails for two reasons: (1) Plaintiff
has not provided any evidence to support a conspiracy claim, and
(2) because the Court has found that Defendants did not violate
the Fourth Amendment with regard to this arrest, it cannot be
found that Defendants conspired to violate Plaintiff’s
face three times, (4) Officer Mollik put Plaintiff in a rear
headlock, and (5) Officer Mollik wrapped his legs around
Defendants argue that their use of force was reasonable
under the circumstances to effect the arrest of Plaintiff who
tried to run away from the scene and was violently resisting
arrest, to the extent that Officer Mollik was permanently
injured during the incident.
Defendants also argue that all use
of force ceased once Plaintiff was subdued by the threat of the
Plaintiff, however, maintains that he did not try to
flee the scene, but rather ran in a circle to escape Mollik’s
attempts to strike Plaintiff during his pat-down and to alert
the neighbors because he feared for his safety.
claims that he was kicked in the face, choked, unable to
breathe, and lost consciousness.
He also suffered from a
fractured orbital bone and fractured jaw.
It is clear that the December 1, 2011 incident was
The Court cannot determine at this time whether the
officers’ use of force was objectively reasonable because the
circumstances surrounding the incident are in dispute.
as true, Plaintiff’s version of events could support a finding
that the officers’ actions exceeded the bounds of reasonable use
In contrast, if Defendants’ version of events is
believed, then it could support the finding that their use of
force was reasonable.
The parties’ credibility is the key to determining what
transpired on December 1, 2011.
A jury – not this Court – must
assess the situation as related by Plaintiff and Defendants and
determine what happened on that day.
For example, did Office
Mollik threaten and attempt to strike the peaceably cooperating
Plaintiff during the pat-down, which made him fear for his
Did Plaintiff run in a circle to alert the neighbors,
or did he try to flee the scene?
Did Plaintiff continuously
resist arrest, or was he beaten while passively lying face down
on the ground?
Even though the determination of whether an officer acted
objectively reasonably or made a reasonable mistake of law, and
is thus entitled to qualified immunity, is a question of law
that is properly answered by the court, not a jury, the Third
Circuit has recognized that a judge should not decide the
objective reasonableness issue until all the material historical
facts are no longer in dispute.
211, 211 n. 12 (3d Cir.2007).
Curley v. Klem, 499 F.3d 199,
To do this, “[a] judge may use
special jury interrogatories, for instance, to permit the jury
to resolve the disputed facts upon which the court can then
determine, as a matter of law, the ultimate question of
In other words, “[w]hen the ultimate
question of the objective reasonableness of an officer's
behavior involves tightly intertwined issues of fact and law, it
may be permissible to utilize a jury in an advisory capacity,
but responsibility for answering that ultimate question
remains with the court.”
In this case, the Court must deny summary judgment and
employ the special interrogatory procedure for the jury to
resolve the disputed facts regarding Plaintiff’s excessive force
claim arising out of the December 1, 2011 arrest.
officers acted in an objectively reasonable manner in their use
of force on Plaintiff – and are therefore entitled to qualified
immunity 5 - can only be determined by the Court after a jury
assess the parties’ credibility and resolves the factual
See, e.g., Lamont v. New Jersey, 637 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
The parameters of the constitution’s prohibition of excessive
force is firmly established. Thus, the only issue for the Court
to ultimately determine is whether, as a matter of law,
Defendants acted objectively reasonably with regard to that
clearly established right.
Plaintiff’s Monell claim against the City of Vineland
Under Monell v. New York City Department of Social
Services, 436 U.S. 658, 694 (1978), a municipality cannot be
subjected to liability solely because injuries were inflicted by
its agents or employees.
Rather, “it is when execution of a
government's policy or custom, whether made by its lawmakers or
by those whose edicts or acts may fairly be said to represent
official policy, inflicts the injury that the government as an
entity is responsible under § 1983.”
There must be a
“direct causal link between a municipal policy or custom and the
alleged constitutional deprivation” to support municipal
City of Canton v. Harris, 489 U.S. 378, 385 (1989).
In the Third Circuit, there are three situations where acts
of a government employee may be deemed to be the result of a
policy or custom of the governmental entity for whom the
employee works, thereby rendering the entity liable under §
(1) where the appropriate officer or entity promulgates a
generally applicable statement of policy and the subsequent act
complained of is simply an implementation of that policy; (2)
where no rule has been announced as policy but federal law has
been violated by an act of the policymaker itself, and (3) where
the policymaker has failed to act affirmatively at all, although
the need to take some action to control the agents of the
government is so obvious, and the inadequacy of existing
practice so likely to result in the violation of constitutional
rights, that the policymaker can reasonably be said to have been
deliberately indifferent to the need.
Jiminez v. All Am.
Rathskeller, Inc., 503 F.3d 247, 249-50 (3d Cir. 2007)
A government policy or custom can be established in two
One way is if a plaintiff shows that a “‘decisionmaker
possess[ing] final authority to establish municipal policy with
respect to the action’” issued an official statement of policy.
Jiminez, 503 F.3d at 250 (quoting Pembaur v. City of Cincinnati,
475 U.S. 469, 481 (1986)).
Another way is if a plaintiff
establishes that a course of conduct constitutes a “custom”
when, though not authorized by law, “‘such practices of state
officials [are] so permanent and well settled’” that they
operate as law.
Id. (quoting Monell, 436 U.S. at 690).
either method, a plaintiff has the burden of showing that a
government policymaker is responsible by action or acquiescence
for the policy or custom, and that the government acted, at a
minimum, with deliberate indifference to the purported
constitutional deprivation in order to ground liability.
In this case, Plaintiff claims that the City of Vineland
has a policy of not training its officers in the proper use of
Other than this conclusory statement, Plaintiff has
failed to produce any evidence to support his theory.
Plaintiff characterizes the deposition testimony of Chief of
Police, Timothy Codispoti, regarding various practices used by
the Vineland Police Department to be evidence of an excessive
force policy simply because he deems those practices to be
unlawful, cannot support a Monell claim against the City of
See, e.g., Persico v. City of Jersey City, 67 F.
App'x 669, 676 (3d Cir. 2003) (holding that the Plaintiff’s
Monell claim had no merit because he submitted no evidence other
than his own assertions of a municipal policy or custom to
Consequently, the City of Vineland and Chief
Codispoti are entitled to judgment in their favor on Plaintiff’s
claim of municipal liability.
Plaintiff’s state law assault and battery claim
A person is subject to liability for the common law tort of
assault if: “(a) he acts intending to cause a harmful or
offensive contact with the person of the other or a third
person, or an imminent apprehension of such a contact, and (b)
the other is thereby put in such imminent apprehension.”
v. Jersey City Bd. of Educ., 969 A.2d 1097, 1117 (N.J. 2009)
The tort of battery rests upon a
Id. (citation omitted).
Based on the
events as described by the parties relating to the December 1,
2011 arrest, Plaintiff’s assault and battery claim arising out
of that arrest may proceed. 6
The notice provision of the New Jersey Tort Claims Act,
N.J.S.A. 59:8-3, applies to both intentional and non-intentional
torts asserted against public employees. Lassoff v. New Jersey,
414 F. Supp. 2d 483, 490 (D.N.J. 2006) (citing Velez v. City of
Jersey, 180 N.J. 284, 286, 850 A.2d 1238 (2004)). Moreover,
under the NJTCA, “A public employee is not liable if he acts in
good faith in the execution or enforcement of any law. Nothing
in this section exonerates a public employee from liability for
false arrest or false imprisonment.” N.J.S.A. 59:3-3. The
NJTCA strips a public employee of any immunity, however, if that
employee is found to have engaged in "willful misconduct."
It is not clear in this case whether Plaintiff complied
with the NJTCA. The defense of failure to file notice under the
Tort Claims Act is an affirmative one which must be pleaded in
order to avoid surprise, and a defendant may be found to have
waived the protection thereof by failing to plead it as a
defense. Hill v. Board of Educ. of Middletown Tp., 443 A.2d
225, 227-28 (N.J. Super. Ct. App. Div. 1982). Regardless,
whether Defendants could be immune under the NJTCA cannot be
determined at this time for the same reasons as Plaintiff’s
excessive force claim. This is because the same "objective
reasonableness” standard that is used to determine whether a
Defendant enjoys qualified immunity from actions brought
pursuant to 42 U.S.C. § 1983 is used to determine questions of
good faith arising under N.J.S.A. 59:3-3. See Mantz v. Chain,
239 F. Supp. 2d 486, 507-08 (D.N.J. 2002) (citing Lear v.
Township of Piscataway, 566 A.2d 557 (N.J. Super. Ct. App. Div.
1989)). Furthermore, N.J.S.A. 59:3-14(a) strips a public
employee of any immunity if that employee is found to have
engaged in "willful misconduct."
Willful misconduct is "the
For the reasons expressed above, Plaintiff’s excessive
force claim and assault and battery claim arising out of the
December 1, 2011 arrest may proceed against Defendants Mollik
Summary judgment is granted as to all other claims
by Plaintiff against the other Defendants.
An Order will be entered.
April 1, 2016
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
commission of a forbidden act with actual (not imputed)
knowledge that the act is forbidden . . . . [I]t requires much
more than an absence of good faith and much more than
negligence." PBA Local No. 38 v. Woodbridge Police Dep't, 832
F. Supp. 808, 830 (D.N.J. 1993) (internal quotations omitted)).
Because there exists a genuine issue of material fact regarding
whether Defendants engaged in willful misconduct, the Court
cannot determine as a matter of law whether the NJTCA would
shield them from liability for their conduct during the December
1, 2011 incident.
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