BOCCHINO v. CITY OF ATLANTIC CITY et al

Filing 47

OPINION. Signed by Magistrate Judge Ann Marie Donio on 3/31/2016. (tf, )

[D.I. 28]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

ANTHONY BOCCHINO,

Civil No. 14-233 (AMD)

Plaintiff,
v.
CITY OF ATLANTIC CITY, et al.,
Defendants.

OPINION
APPEARANCES:
Timothy J. McIlwain, Esq.
McIlwain, LLC
McIlwain Professional Building
2020 New Road, Suite A
Linwood, NJ 08221
Attorney for Plaintiff Anthony Bocchino
John C. Hegarty, Esq.
Jasinski, P.C.
8025 Black Horse Pike
Suite 470
West Atlantic City, NJ 08232
Attorney for Defendants
DONIO, Magistrate Judge
In

this

action,

Plaintiff

Anthony

Bocchino

(hereinafter, “Plaintiff”) alleges Defendants City of Atlantic
City and Atlantic City Police Officers James Miltenberger 1 and

Defendant Officer James Miltenberger is incorrectly pled as
“Mittenberger.” (See Answer [D.I. 4].)
1

1

Donnell Holland (hereinafter, “Defendants”) violated his federal
civil

rights

in

the

course

of

arresting

him

following

his

removal from a nightclub in Atlantic City. (See Complaint [D.I.
1].)

Specifically,

Plaintiff

asserts

that

Defendant

Officers

used excessive force in arresting Plaintiff and that Defendants
failed to provide medical treatment. (Id.) Presently before the
Court is Defendants’ motion for summary judgment. (See Motion
for

Summary

Judgment

(hereinafter,

“Defs.’

Mot.

[D.I.

28].)

Defendants claim the force used was reasonable and Plaintiff was
provided medical care. (See generally Brief [D.I. 28-2].) The
incident

was

captured

on

surveillance

video. 2

The

Court

has

considered the parties’ submissions, held oral argument, and for
the

reasons

that

follow,

grants

in

part

and

denies

in

part

Defendants’ motion. 3
It is undisputed that in the early morning hours of
August 12, 2012 Plaintiff was “intoxicated while at The Pool

2

A compact disc containing the surveillance video from the
incident was included as an exhibit to Defendants’ motion. (See
Certification of John C. Hegarty, Esq. (hereinafter, “Hegarty
Certification”), Exhibit O [D.I. 28-3].) The surveillance video
does not contain audio. The Court has “relied on the
videotape[], where possible, to state the facts of this case.”
Green v. New Jersey State Police, 246 F. App’x 158, 159 n.1 (3d
Cir. 2007).
3
The parties have consented to this Court’s jurisdiction
pursuant to 28 U.S.C. § 636(c)(1), Federal Rule of Civil
Procedure 73(b), and Rule 73.1 of the Local Civil Rules for the
United States District Court, District of New Jersey. (See
Notice, Consent, and Reference of a Civil Action to a Magistrate
Judge [D.I. 8], May 27, 2014.)
2

After

Dark

Atlantic

at

Harrah’s

City.

Resort”

(Defendants’

(hereinafter,

Statement

of

“The

Pool”)

Undisputed

in

Material

Facts (hereinafter, “Defs.’ Facts”) [D.I. 28-1], ¶ 1; see also
Plaintiff’s

Response

to

Defendants’

Statement

of

Undisputed

Material Facts (hereinafter, “Pls.’ Response”) [D.I. 38], ¶ 1.)
The

parties

dispute

nearly

all

other

facts

related

to

the

incident. Defendants assert that on August 12, 2012 “Officers
Miltenberger and Holland were summoned to the rear of [The Pool]
in reference to a disorderly male[, Plaintiff,] who was arguing
and pushing one of the bouncers.” (Defs.’ Facts [D.I. 28-1], ¶
10(a).)

Defendants

(Brief

[D.I.

describe

28-2],

1),

Plaintiff
while

as

a

Plaintiff

“284

pound

asserts

he

man”
was

“overweight, of below average height and completely unarmed.”
(Response in Opposition (hereinafter, “Pl.’s Brief”) [D.I. 38],
17.)

Defendants

maintain

that

upon

arriving

at

The

Pool,

“[Defendant] Officer Miltenberger witnessed the intoxicated male
in

a

physical

attempting

to

altercation
remove

him

with
from

the

the

bouncers

rear

and

door.”

they

(Defs.’

were
Facts

[D.I. 28-1], ¶ 10(b).) Defendants assert “[Defendant] Officers
Miltenberger

and

Holland

assisted

the

bouncers

in

removing

[Plaintiff] and led him to the back of the house . . . away from
the hotel guests to minimize any danger to them.” (Id. at ¶
10(c).)

3

Defendants further claim that Plaintiff was disruptive
and yelled obscenities and racial epithets. (Id. at ¶¶ 10(g),
11(i), 13, 14, 16, 21.) Defendants maintain Defendant Officer
Holland “observed [P]laintiff raise his hands in a combative
stance.” (Id. at ¶ 17.) Defendants assert Defendant “Officer
Miltenberger placed his hand on top of [P]laintiff’s clenched
fists and told [P]laintiff to relax, that he was free to go to
any other casino but could not stay at Harrah’s.” (Id. at ¶ 28.)
Defendants maintain Plaintiff then spit on Officer Miltenberger
who in response, “struck [P]laintiff in the face several times
to prevent him from spitting in his face again.” (Id. at ¶
10(i).) According to Defendants “Plaintiff was then taken to the
ground where he resisted and was finally placed into handcuffs
and transported to the in-house holding cell” within the casino.
(Id. at ¶ 10(j).)
As it relates to the actions in the in-house holding
cell, Defendants maintain Plaintiff “was very disruptive,” spit
blood on the wall, and cursed at the security guards and police
officers.

(Id.

Plaintiff

was

at
in

¶
the

10(l).)

Defendants

in-house

holding

assert
cell

that

he

while

“refuse[d]

repeated lawful orders to remain seated.” (Id. at ¶ 22.) Officer
Holland

certifies

in

his

interrogatory

answers

that

“[w]hen

Plaintiff attempted to leave the holding area and refused my
instructions to sit down, fearing he would harm me, the security
4

officers or himself[,] I used reasonable force to get him to
comply.” (Hegarty Certification, Exhibit I [D.I. 28-3], ¶ 10.)
In their summary judgment brief, Defendants describe the contact
between Officer Holland and Plaintiff in the following way:
It was not until [P]laintiff left his seat
and walked out of the holding room – in
direct contravention of the officers’ lawful
orders – that Holland was constrained to use
physical force to direct him back to his
seat. And the force used was minimal;
Holland
placed
his
right
hand
on
[P]laintiff’s shoulder and left hand on
[P]laintiff’s chest to guide him. Holland
did not touch [P]laintiff after he was
seated until [P]laintiff again, only twentytwo seconds later, stood up and walked
toward the door. And Holland again acted
reasonably
in
response:
for
just
two
seconds, Holland placed his right hand on
the left side of [P]laintiff’s neck to guide
[P]laintiff back into the seat.”
(Defs.’ Brief [D.I. 28-2], 13-14.)
As it relates to the failure to provide medical care
claim,

Defendants

maintain

that

“[t]he

in-house

nurse

was

summoned to treat [P]laintiff

for bleeding from his mouth.” 4

(Defs.’

¶

Facts

[D.I.

28-1],

10(k).)

Defendants

contend

“Plaintiff was treated, released and transported to the station
for

processing.”

(Id.

at

¶

10(m).)

Defendants

maintain

that

following the incident, “[a]n X-Ray of [P]laintiff’s mandible
4

Defendants also contend, citing to the Harrah’s Incident File
Full Report, that “[a]n ambulance was dispatched to treat
[P]laintiff for a laceration on his face.” (See Defs.’ Facts
[D.I. 28-1] at ¶ 11(o).)
5

(his jaw) was normal[]” and “Plaintiff was diagnosed with a lip
contusion.” (Id. at ¶¶ 35-36.)
In

his

submission

opposing

the

motion,

Plaintiff

relies exclusively on the surveillance video. (See, e.g., Pl.’s
Response

[D.I.

38],

¶¶

10(f)-(k),

13-22,

24-29

(stating,

in

part, “[v]ideo evidence contradicts”).) There is no dispute that
“Plaintiff only has a ‘vague’ memory of the evening ‘with many
gaps’” (Defs.’ Facts [D.I. 28-1], ¶ 3; see also Pl.’s Response
[D.I. 38], ¶ 3), and that Plaintiff’s only information about the
events

from

the

night

“is

from

the

police

report

and

the

surveillance video.” (Defs.’ Facts [D.I. 28-1], ¶ 5; see also
Pl.’s Response [D.I. 38], ¶ 5.) Plaintiff, citing only to the
surveillance video, denies that Plaintiff was disruptive in the
holding

cell

and

states

“Plaintiff

was

requesting

medical

attention.” (Pl.’s Response [D.I. 38], ¶ 10(l).) Plaintiff also
denies

Defendants’

assertion

that

“Plaintiff

was

treated,

released and transported to the station for processing” (Defs.’
Facts [D.I. 28-1], ¶ 10(m)), and contends that “Plaintiff was
treated in Northern New Jersey eight hours after injury.” (Pl.’s
Response [D.I. 38], ¶ 10(m).) Plaintiff also denies, in part,
Defendants’

facts

related

to

Plaintiff’s

medical

records

and

asserts “[t]he medical records indicate other contusions.” (Id.
at ¶¶ 35-36.)

6

The parties do not dispute that following the incident
Plaintiff was charged with aggravated assault in violation of
N.J.S.A.

2C:12-1b(5)(a);

N.J.S.A.

2C:29-a(3)(a);

resisting
and

arrest

throwing

in

bodily

violation

fluid

at

a

of
law

enforcement employee in violation of N.J.S.A. 2C:12-13. (Defs.’
Facts [D.I. 28-1], ¶¶ 6-8; see also Pl.’s Response [D.I. 38], ¶¶
6-8.) Also undisputed is the fact that following the incident
“Officer Miltenberger filed a Use of Force Report indicating
that

[P]laintiff

resisted

police

officer

control

and

that

Officer Miltenberger used a compliance hold and his hands/fists
toward [P]laintiff.” (Defs.’ Facts [D.I. 28-1], ¶ 9; see also
Pl.’s Response [D.I. 38], ¶ 9.)
Plaintiff filed this action on January 13, 2014 and
alleges generally that he was “without basis or provocation,
brutally beat,” “restrained,” “falsely imprisoned,” and “falsely
charged

[]

with

aggravated

assault”

by

Defendants

(Complaint

[D.I. 1], ¶ 8), following his removal from an Atlantic City
nightclub “after a non-violent word exchange with a bouncer at
the nightclub.” (Id. at ¶¶ 5-6.) Plaintiff asserts that “[a]s a
result of the actions of the individually named Officers, [he]
has suffered severe emotional trauma as well as physical injury,
loss

of

income

Specifically,
excessive

and

Plaintiff

force

in

other

expenses[.]”

alleges

violation

of
7

that
his

he

(Id.
was

Fourth

at

¶

subjected
and

9.)
to

Fourteenth

Amendment rights (id. at ¶¶ 11-19), he was denied medical care
(id. at ¶¶ 20-26), and that Defendant City of Atlantic City
engaged

in

“deliberately

indifferent

policies,

practices,

customs, training, and supervision in violation of the [F]ourth,
[F]ourteenth, and [F]irst [A]mendments and in violation of 42
U.S.C. § 1981.” (Id. at ¶¶ 27-43.) Plaintiff seeks compensatory
and

punitive

“further

damages,

relief

appropriate.”
allegations

as

(Id.
and

attorneys’

the
at

Court
¶

assert

may

44.)

a

costs

and

deem

just,

Defendants

number

of

fees,

and

any

proper,

and

deny

legal

Plaintiff’s

defenses.

(See

generally Answer [D.I. 4].) Fact discovery concluded on April
30,

2015

2015),

(see

and

Amended

Amended

Defendants

Scheduling

Scheduling
timely

Order

Order

filed

[D.I.

the

26],

[D.I.

20],

present

June

4,

Mar.

motion.

2015;

see

30,
(See
also

Defs.’ Mot. [D.I. 28].)
Defendants argue that “the record lacks any evidence
establishing the existence of [P]laintiff’s cause of action” and
that

consequently,

Plaintiff

“cannot

sustain

his

burden

of

proof.” (Brief [D.I. 28-2], 4.) Defendants’ brief presents the
following specific arguments: (1) that “Defendant officers []
did not use excessive force against [P]laintiff and [P]laintiff
fails to provide any evidence that Miltenberger, Holland, or any
Atlantic City police officer violated his constitutional rights”
(id.

at

6);

(2)

that

“Defendant
8

officers

are

entitled

to

qualified immunity” (id. at 14); (3) that “Plaintiff fails to
present any evidence to support his claim against the City of
Atlantic City” (id. at 17-23); and (4) that “[t]he record is
devoid of any evidence supporting [P]laintiff’s claim that he
was denied medical care.” (Id. at 24.) Plaintiff argues that
Defendants’ motion should be denied because “[p]olice officers
are clearly covered by the language of [§] 1983” (Pl.’s Brief
[D.I. 38], 15); the video evidence “unmistakabl[y]” demonstrates
that excessive force was used against Plaintiff” (id. at 15);
and generally, that “Plaintiff is entitled to every favorable
inference from the evidence that a genuine issue of fact exists
for a jury.” (Id. at 16.)
“[S]ummary judgment is appropriate where there is no
genuine issue as to any material fact and the moving party is
entitled

to

judgment

Carolina,

560

U.S.

quotation

marks

as

a

330,

matter

344

omitted);

of

(2010)

see

also

law.”

Alabama

(citations

and

v.

North

internal

FED. R. CIV. P. 56(a).

A

genuine issue of material fact exists only if “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). A fact is “material” if it “might affect the outcome
of the suit under the governing law[.]” Id. “Factual disputes
that are irrelevant or unnecessary will not be counted.” Id.

9

The

moving

“identifying
answers

to

those

party

portions

interrogatories,

bears
of
and

the

‘the

initial

pleadings,

admissions

on

burden

of

depositions,

file,

together

with the affidavits, if any,’ which it believes demonstrate the
absence of a genuine issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). “[W]ith respect to an issue
on which the nonmoving party bears the burden of proof[,] . . .
the burden on the moving party may be discharged by ‘showing’ –
that is, pointing out to the district court – that there is an
absence of evidence to support the nonmoving party’s case.” Id.
at

325.

A

non-moving

party

must

present

more

than

“‘bare

assertions, conclusory allegations or suspicions’ to show the
existence of a genuine issue.” McCabe v. Ernst & Young, LLP, 494
F.3d 418, 436-37 (3d Cir. 2007) (quoting Podobnik v. U.S. Postal
Serv., 409 F.3d 584, 594 (3d Cir. 2005)); see also Anderson, 477
U.S. at 249-50. The Court must view the evidence in a light most
favorable

to

the

non-moving

party

and

any

“justifiable

inferences” shall be extended to the non-moving party. Anderson,
477 U.S. at 255.
Section 1983 states in pertinent part,
[e]very person who, under color of any
statute, ordinance, regulation, custom, or
usage, of any State . . . subjects, or
causes to be subjected, any citizen of the
United States or other person within the
jurisdiction thereof to the deprivation of
any
rights,
privileges,
or
immunities
10

secured by the Constitution and laws, shall
be liable to the party injured in an action
at law, suit in equity, or other proper
proceeding for redress . . . .
42 U.S.C. § 1983. “To state a claim under § 1983, a plaintiff
must allege the violation of a right secured by the Constitution
and laws of the United States, and must show that the alleged
deprivation

was

committed

by

a

person

acting

under

color

of

state law.” West v. Atkins, 487 U.S. 42, 84 (1988) (citations
omitted).
The Court turns first to Defendants’ arguments that
the record “does not establish” Defendant Officers Miltenberger
and

Holland

Defendant

used

excessive

Officers

force

Miltenberger

against

and

Plaintiff

Holland

are

and

that

entitled

to

qualified immunity. (See Brief [D.I. 28-2], 6-17.) The first
count of Plaintiff’s complaint alleges in part, that Defendant
officers used excessive force in violation of Plaintiff’s Fourth
and Fourteenth Amendment rights. (See Complaint [D.I. 1], ¶¶ 1119.)

At

oral

Plaintiff
force:

(1)

argument,

complains
Defendant

of

Plaintiff’s
two

Officer

distinct

counsel

clarified

instances

Miltenberger

that

of

excessive

striking

Plaintiff

prior to Plaintiff being handcuffed; and (2) Defendant Officer
Holland pushing Plaintiff while he was handcuffed in the casino
in-house holding area.

11

Claims of excessive force at the time of an arrest are
evaluated based on the Fourth Amendment’s prohibition against
unreasonable

searches

and

seizures.

See

Rivas

v.

City

of

Passaic, 365 F.3d 181, 189 (3d Cir. 2004) (noting “[t]he Supreme
Court has held that all claims of excessive force by police
officers, in the context of an arrest, investigatory stop, or
other ‘seizure,’ should be analyzed under the Fourth Amendment”
(citing Graham v. Connor, 490 U.S. 386, 395 (1989))). Claims of
excessive force at the time an individual is a pretrial detainee
are evaluated based on the Due Process Clause of the Fifth or
Fourteenth Amendment. See Kingsley v. Hendrickson, 135 S. Ct.
2466, 2473 (2015) (noting “[w]e have said that ‘the Due Process
Clause protects a pretrial detainee from the use of excessive
force that amounts to punishment’” (quoting Graham, 490 U.S. at
395 n.10)). The Third Circuit has recently noted that the exact
point

at

pretrial

which

an

detainee

individual

has

not

been

transitions
expressly

from
ruled

arrestee
upon

by

to
the

Circuit. See Halsey v. Pfeiffer, 750 F.3d 273, 291 (3d Cir.
2014) (noting “[i]n the future . . . we might be required to
decide
process

precisely
.

.

.

when

an

[violation]

unlawful
begins”

seizure

ends

(alterations

and
in

[a]

due

original)

(internal quotation marks omitted)). Under Third Circuit law,
force used by a police officer “in the police station garage,
after [the arrestee] had been transported from the scene of the
12

initial beating” although, “the closest – both temporally and
spatially – to pre-trial detention at the station house . . .
[was

found

to

have]

occurred

during

the

course

of

[a]

defendant’s arrest.” United States v. Johnstone, 107 F.3d 200
(3d Cir. 1997). 5 Recently, a court in this district, relying on
Johnstone,

found

that

alleged

excessive

force

against

an

individual “during his transport to the police station must be
analyzed

under

the

Amendment.” 6

Fourth

Panarello

v.

City

of

Vineland, No. 12-4165, 2016 WL 475246, at *14 (D.N.J. Feb. 8,
2016).
Defendants

argue

that

the

Fourth

Amendment

governs

Plaintiff’s excessive force claims. (See Defs.’ Brief [D.I. 282], 6-14.) While Plaintiff’s complaint alleges excessive force
in violation of both Plaintiff’s Fourth and Fourteenth Amendment
rights (see Complaint [D.I. 1], ¶¶ 11-12), Plaintiff’s brief
references

that

Plaintiff’s

excessive

force

claims

should

be

governed by the Fourth Amendment. (See Pl.’s Brief [D.I. 38], 16
(stating that the video evidence “establishes that under color
of

state

rights”).)

law
The

Defendants
Court

violated

concludes

5

Plaintiff’s

that,

here,

4th

amendment

Plaintiff

was

an

In so ruling, the Johnstone court did not decide “where an
arrest ends and pretrial detention begins[.]” 107 F.3d at 205.
6
The Panarello court also concluded that “because [the
defendant] was arrested without a warrant, relying on the weight
of authority from the other [] circuits, the Fourth Amendment
applies to the alleged use of force while in the police station
booking room.” 2016 WL 475246, at *14.
13

arrestee at the time of the alleged excessive force, because at
that time Plaintiff had not yet been transported to the police
station. Consequently, Plaintiff’s excessive force claims will
be evaluated under the Fourth Amendment.
In

determining

whether

the

force

used

violates

the

Fourth Amendment, the Court employs an objective standard and
“scrutinizes

the

reasonableness

of

the

challenged

conduct.”

Carswell v. Borough of Homestead, 381 F.3d 235, 240 (3d Cir.
2004). This standard “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 flight.” Graham v. Connor, 490 U.S. at 396 (citing
Tennessee

v.

Garner,

471

U.S.

1,

8-9

(1985)).

Whether

a

particular use of force is reasonable “must be judged from the
perspective of a reasonable officer on the scene, rather than
with the 20/20 vision of hindsight.” Id. (citing Terry v. Ohio,
392 U.S. 1, 20-22 (1968)). Moreover, “[n]ot every push or shove,
even if it may later seem unnecessary in the peace of a judge’s
chambers

.

.

.

violates

the

Fourth

Amendment

[and]

[t]he

calculus of reasonableness must embody allowance for the fact
that

police

judgments

–

officers
in

are

often

circumstances

forced

that
14

are

to

make

tense,

split-second

uncertain,

and

rapidly evolving – about the amount of force that is necessary
in a particular situation.” Graham, 490 U.S. at 396 (internal
citation and quotation marks omitted).
Additionally,
discretionary
for

civil

‘clearly
which

functions

damages

generally

insofar

established’

a

“government

reasonable

as

person

are

their

statutory

officials

or

would

shielded
conduct

performing

from

does

liability

not

violate

constitutional

rights

of

have

Harlow

v.

known.”

Fitzgerald, 457 U.S. 800, 818 (1982). In determining whether
qualified
facts,

immunity

taken

demonstrate

in
a

constitutional
Couden

v.

applies,

the

the

light

most

constitutional
right

Duffy,

446

in

court

favorable

violation”

question

F.3d

“decide[s]

483,

was
492

to

the

and

clearly
(3d

whether

Cir.

the

plaintiff,

“whether

the

established.”
2006).

“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.” Saucier v. Katz, 533 U.S. 194, 201 (2001). “If the
officer’s mistake as to what the law requires is reasonable, the
officer is entitled to qualified immunity. Couden, 446 F.3d at
492. Courts have discretion to determine which prong “of the
qualified immunity analysis should be addressed first in light
of the circumstances in the particular case at hand.” Pearson v.
Callahan, 555 U.S. 223, 226 (2009). Furthermore, “[a]lthough it
15

is

important

earliest

to

resolve

possible

stages

qualified
of

immunity

litigation,

questions

the

at

the

importance

of

resolving qualified immunity questions early ‘is in tension with
the

reality

before

that

factual

determining

disputes

whether

often

need

defendant’s

to

be

conduct

resolved

violated

a

clearly established constitutional right.’” Phillips v. Cty. of
Allegheny, 515 F.3d 224, 242 n.7 (3d Cir. 2008) (quoting Curley
v. Klem, 298 F.3d 271, 277-78 (3d Cir. 2002)). Accordingly, “[a]
decision as to qualified immunity is ‘premature when there are
unresolved disputes of historical facts relevant to the immunity
analysis.’” Id. (quoting Curley, 298 F.3d at 278).
Defendants assert that under the circumstances of the
present case Defendant Officers Miltenberger and Holland “did
not use excessive force against [P]laintiff” (Brief [D.I. 28-2],
6) and that the force used against Plaintiff was reasonable.
(Id.

at

14.)

Defendants

maintain

that

Plaintiff

“raised

his

hands in a combative stance,” that Plaintiff was asked “several
times”

by

Defendant

“[b]ut

instead

of

Officer
doing

so,

Miltenberger

to

[P]laintiff

lower

attempted

his
to

arms,
push

Miltenberger backwards and charge the bouncers who evicted him
from the club” and “spit in Miltenberger’s face.” (Id. at 11.)
Defendants

contend

that

“[u]naware

if

[P]laintiff

had

any

infectious diseases, Miltenberger struck [P]laintiff in the face
several times, in rapid succession, in both self-defense and to
16

subdue him.” (Id.) With respect to Defendant Officer Holland,
Defendants contend that “[i]t was not until [P]laintiff left his
seat

and

walked

out

of

the

holding

room

–

in

direct

contravention of the officers’ lawful orders – that Holland was
constrained to use physical force to direct him back into his
seat.” (Id. at 13.) Defendants also argue Defendant Officers
Miltenberger

and

Holland

are

entitled

to

qualified

immunity

because there was no constitutional violation and the Defendant
Officers’ actions “were also objectively reasonable and lawful
under the circumstances.” (Id. at 15.) Plaintiff contends “the
video in this case directly contradicts [D]efendants’ papers and
provides

compelling

excessive

force.”

evidence,

(Pl.’s

if

Brief

not

[D.I.

proof,
38],

of

15.)

the

use

of

Furthermore,

Plaintiff asserts generally, “[b]ased on the standard provided
to

us

[by]

[D]efendants,

the

Defendant

Police

Officers

are

clearly not qualifiedly immune.” (Id. at 20.)
The Court finds that there remain genuine issues of
material fact precluding entry of summary judgment with respect
to Plaintiff’s excessive force claims against Defendant Officers
Miltenberger and Holland. From the surveillance video footage,
the

Court

Officer

concludes

Miltenberger

that
or

a

jury

could

Defendant

find

Officer

either
Holland

Defendant
or

both

Defendant Officers used excessive force. See, e.g., Ringgold v.
Keller, 608 F. App’x 102, 104 (3d Cir. 2015) (concluding in an
17

excessive

force

case

officers,

from

video

plaintiff

down

filed

footage

and

plaintiff

“to

the

“swinging

his

arm

by

one

inmate

showing

defendant

ground”
in

an

as

what

well

may

against

one

defendant

appear
as

to

one

of

been

have

corrections

a

pull

“tackle”
the

the
the

defendants

punch”

at

the

plaintiff, that a jury could find either of the defendants or
both used excessive force on the plaintiff). As it relates to
Officer

Miltenberger,

the

surveillance

video

shows

Plaintiff

being pulled from the door of the nightclub and into the casino
hallway by two security guards. The video shows the security
guards, while holding Plaintiff’s arms, walk Plaintiff to an
area Defendants describe as “the back of the house” which was
separated
10(c).)

by

a

set

of

doors.

Approximately

two

(Defs.’

seconds

Facts

later,

[D.I.

the

28-1],

video

¶

shows

Defendant Officer Miltenberger joining the security guards and
Plaintiff, and the security guards letting go of Plaintiff’s
arms, but remaining either directly adjacent to or within armslength

of

guards

and/or

with

Plaintiff.

The

Defendant

Plaintiff.

While

video

appears

Officer

this

to

Miltenberger

exchange

is

show

the

security

exchanging

occurring,

the

words
video

shows Defendant Officer Holland entering the area and putting on
a

pair

of

black

gloves.

The

surveillance

video

then

shows

Defendant Officer Miltenberger holding Plaintiff’s hands and an
exchange and movement by both Plaintiff and Defendant Officer
18

Miltenberger
Defendants

that

a

reasonable

contend,

was

juror

Plaintiff

could

conclude,

“spit[ting]

in

as

Officer

Miltenberger’s face.” (Defs.’ Facts [D.I. 28-1], ¶ 10(i)). The
surveillance

video

then

shows

Defendant

Officer

Miltenberger

striking Plaintiff directly in the face, then again directly in
the

face,

and

once

more

grazing

Plaintiff’s

cheek

before

Plaintiff falls to the ground. 7 The surveillance video shows, as
Plaintiff

is

falling

to

the

ground,

Defendant

Officer

Miltenberger moving his arm as if to strike Plaintiff again, but
it

is

unclear

from

the

video

whether

he

makes

contact

with

Plaintiff. Additionally, as Plaintiff is falling to the ground,
the video shows Defendant Officer Holland cradling Plaintiff’s
head as Plaintiff falls to the ground. The video then shows
Defendant Officers Miltenberger and Holland dragging Plaintiff
away

from

the

wall,

rolling

Plaintiff

onto

his

stomach,

and

handcuffing Plaintiff behind his back. The video shows Plaintiff
lying

on

the

ground

for

approximately

one

(1)

minute

and

thirteen (13) seconds and being brought to his feet with the
assistance of the Defendant Officers less than one (1) minute
after

being

handcuffs,

handcuffed.
being

led

The
by

video

then

Defendant

7

shows

Officers

Plaintiff,
to

what

in
the

Plaintiff asserts in his brief that he “was completely
unconscious after being punched to the ground” (See Pl.’s Brief
[D.I. 38], 19), and Plaintiff’s counsel represented at oral
argument that Plaintiff had been “knocked out.”
19

Defendants describe as the “in-house holding cell area.” (Defs.’
Facts [D.I. 28-1], ¶ 10(l).) The video shows Plaintiff, while
handcuffed,

being

led

to

and

seated

on

a

small

bench

large

enough for only one person, enclosed in a recessed area of the
wall.
The

alleged

excessive

force

involving

Defendant

Officer Holland relates to contact while Plaintiff is in the inhouse

holding

area.

The

surveillance

video

shows

Plaintiff

standing up, taking several steps away from the bench area, and
attempting to walk into a hallway area approximately one (1)
minute and fifteen (15) seconds after sitting down. As Plaintiff
attempts to walk into the hallway, the video shows Defendant
Officer Holland placing both of his hands on Plaintiff’s chest
and pushing Plaintiff towards the bench and Plaintiff falling
backwards towards the bench, sliding off the bench, and hitting
his

head

against

the

wall.

The

video

then

shows

Defendant

Officer Holland placing both of his hands on Plaintiff’s chest
and

pushing

Plaintiff

towards

the

bench

while

Plaintiff

is

kneeling on the ground. The video then shows Plaintiff standing
up and sitting on the bench. Less than one (1) minute later, the
video shows Plaintiff again standing up, taking several steps
away

from

the

bench

area,

and

attempting

to

walk

into

the

hallway area. The video then shows Defendant Officer Holland
placing one hand on Plaintiff’s neck and pushing Plaintiff onto
20

the

bench.

While

Plaintiff

is

sitting,

the

video

then

shows

Defendant Officer Holland placing his hand on Plaintiff’s neck
and pushing Plaintiff against the wall.
The surveillance video is not a complete version of
the events giving rise to Plaintiff’s excessive force claims
because it does not contain audio. Although Defendants maintain
that Defendant Officer Miltenberger “struck [P]laintiff in the
face several times to prevent him from spitting in his face
again” (Defs.’ Facts [D.I. 28-1], ¶ 10(i)) and that while in the
in-house

holding

cell,

Plaintiff

“refuse[d]

repeated

lawful

orders to remain seated” (Id. at ¶ 22), in viewing the evidence
in the light most favorable to Plaintiff, the Court finds that a
reasonable juror could conclude that Plaintiff, who at all times
relevant to the alleged excessive force was isolated from the
public, and was either surrounded by two security guards and two
police officers or handcuffed and in close proximity to at least
one police officer, was subjected to excessive force by either
Defendant Officer Miltenberger or Defendant Officer Holland or
both Defendant Officers. See Patterson v. City of Wildwood, 354
F. App’x 695, 698 (3d Cir. 2009) (finding that a jury could
conclude
version

that
of

inferences

a

the
where

videotape
relevant
the

was

events

video

inconsistent
or

“[did]

give
not

with

rise
portray

a

to

party’s

different

the

actual

incident”); see also Fried v. Tetzlaff, No. 11-2578, 2014 WL
21

2861098, at *7 (D.N.J. June 24, 2014) (concluding that the jury
must resolve the issues of fact as to what happened during an
alleged struggle between the plaintiff and the defendant in an
excessive force case where the plaintiff had no memory of the
events

and

an

audio

tape

without

accompanying

video

of

the

alleged events existed); see also Sorrell v. Tropicana Atl. City
Corp., No. 12-2369, 2014 WL 7336699, at *2-3 (D.N.J. Dec. 19,
2014)

(concluding

that

“to

grant

summary

judgment

where

the

video evidence provided is incomplete would be in error” where
“the video cuts out” and was “not accompanied by any audio”).
The

cases

cited

by

Defendants

in

support

of

their

motion, Davis v. Twp. of Paulsboro, 421 F. Supp. 2d 835 (D.N.J.
2006), Reyes v. Chinnici, 54 F. App’x 44 (3d Cir. 2002), Wardlaw
v. Pickett, 1 F.3d 1297 (D.C. Cir. 1993), cert. denied, 512 U.S.
1270 (1994), and Winters v. Adams, 254 F.3d 758 (8th Cir. 2001)
are

distinguishable

importantly,

the

from

cases

the

present

relied

on

by

case.

First,

Defendants

and

most

reflect

that

there was no video evidence of the alleged incidents. In Davis,
the

court

concluded,

in

part,

that

the

plaintiff

who

“was

visibly agitated, acting aggressively and yelling profanities”;
“bang[ing] the walls in his house”; and who “shoved” an officer
three times “posed an immediate threat to [the police officer
who was present] and possibly others in the house” and that
“therefore, spraying [the plaintiff] once with pepper spray was
22

objectively reasonable” and did not constitute excessive force
under the circumstances.
in

Davis,

unlike

the

421 F. Supp. 2d at 854-55. The arrest
arrest

in

the

present

case,

involved

spraying of pepper spray at a time where the plaintiff was in a
private home where other individuals may have been present and
at

risk.

testimony

Furthermore,
presented

in

the
the

Davis

court

summary

noted

judgment

that

the

only

motion

was

from

police officers and that “Plaintiffs have failed to put forth
any admissible evidence from which th[e] [c]ourt might at least
infer that the alleged misdeeds actually occurred[.]” Id. at
854. In Reyes, the Third Circuit affirmed the district court’s
grant

of

summary

judgment

to

the

defendants

in

a

convicted

prisoner excessive force case, in which the court considered
“whether force was applied in a good-faith effort to maintain or
restore
harm”

discipline,

pursuant

to

or
the

maliciously
Eighth

and

sadistically

Amendment,

54

F.

to

App’x

cause
at

47

(citations and internal quotation marks omitted), and not, as
the claims are here, pursuant to the objective reasonableness
standard of the Fourth Amendment. In Wardlaw, the D.C. Circuit
affirmed the district court’s grant of summary judgment in an
excessive force case where one defendant punched the plaintiff
“once in the jaw and two or three times in the chest.” 1 F.3d at
1300. In Wardlaw the defendants, United States Marshals, were in
a stairwell in the process of removing the plaintiff’s friend
23

from the courthouse when the plaintiff “rushed down the stairs”
towards

the

defendants,

“shouting

‘[d]on’t

hurt

him

please’

[and] ‘he’s totally nonviolent’” and was punched by one of the
defendants.

Id.

The

D.C.

Circuit,

relying

on

a

qualified

immunity standard, concluded that “no reasonable jury could find
that [the defendant’s] use of force was so excessive that no
reasonable officer could have believed it to be lawful.” Id. at
1304.

In

so

holding,

the

Wardlaw

court

reasoned

that

the

defendants “were in a vulnerable position, caught in a stairwell
and

moving

an

uncooperative

individual”;

that

the

plaintiff

“shouted” at the defendants “raising a fear that he was about to
attack”; and that “once it became apparent that [the plaintiff]
was not going to attack, [the defendant] did not hit him”; and
the plaintiff “did not consider his injuries to be severe enough
to require medical attention.” Id. Here, the alleged excessive
force did not occur in a public place and Defendants were not in
such a “vulnerable” position, the only individual the Defendant
Officers were dealing with was Plaintiff and, for at least part
of the time, additional security guards were present. Finally,
in Winters, the Eighth Circuit found that an officer’s “single
blow to [an arrestee’s eye] was objectively reasonable” where
the arrestee was “behaving quite erratically”; “was kicking and
flailing at the officers in an attempt to prevent the officers
from removing him from [a] car”; “struck [the officer] in the
24

face prior to being struck himself”; and “continued to act in an
unresponsive

and

violent

manner

and

had

to

be

restrained

in

leather straps . . . for several hours for the protection of the
staff” after being taken to the hospital, where he was diagnosed
with

“‘methamphetamine

intoxication.’”

264

F.3d

at

765.

Plaintiff was struck by Defendant Officer Miltenberger multiple
times and the Court shall leave to the jury whether, from the
video,

Plaintiff

Consequently,

the

is
Court,

acting
giving

violently
all

or

reasonable

erratically.
inferences

to

Plaintiff, finds that the issue of whether Defendant Officers
Miltenberger

and

Holland’s

physical

contact

with

Plaintiff

constitutes excessive force cannot be resolved by way of summary
judgment and the Court denies Defendants’ motion on this ground.
Likewise,
exist

with

regard

because
to

the

genuine
conduct

issues
of

of

material

Defendant

fact

Officers

Miltenberger and Holland, the Court will not make a finding on
the issue of qualified immunity at this time. See Fried, 2014 WL
2861098, at *7 (concluding, in an excessive force case, that
“[b]ecause a jury must resolve the issues of fact with respect
to what happened during the struggle, this Court cannot render a
decision on qualified immunity as to [a defendant officer] at
this time”); see also Prince v. Aiellos, No. 09-5429, 2013 WL
6865619, at *6 (D.N.J. Dec. 20, 2013) (finding that because “the
[c]ourt has concluded that there are material issues of fact in
25

dispute as to whether [the] [d]efendant’s actions . . . violated
[the] [p]laintiff’s constitutional rights . . . [i]t naturally
follows that the [c]ourt cannot determine, as a matter of law,
whether a constitutional violation has occurred for purposes of
assessing [the] [d]efendant’s entitlement to qualified immunity
until such time as the foregoing factual issues are resolved by
the jury”).
The

Court

next

considers

Defendants’

motion

for

summary judgment on behalf of Defendant City of Atlantic City.
(See

Defs.’

Brief

[D.I.

28-2],

17-23).

Plaintiff’s

complaint

contains a number of allegations with respect to Defendant City
of Atlantic City concerning the establishment of policies and
procedures

that

constitutional

are

rights

of

deliberately
arrestees,

indifferent

improper

to

training,

the
and

a

policy or practice of the Internal Affairs Bureau of failing to
investigate complaints. (See Complaint [D.I. 1], ¶¶ 14-16, 23,
36-41, 43-44.) Defendants argue Plaintiff insufficiently pleads
a Monell claim. 8 See, e.g., Monell v. N.Y. Dep’t of Soc. Servs.,
436

U.S.

658

Specifically,

(1978).

Defendants

(Defs.’
assert

8

Brief

that

[D.I.

28-2],

“[P]laintiff’s

19.)

complaint

The Court agrees with Defendants that Plaintiff raises only
three counts in his complaint and does not plead any state
claims or assert any claims under the First Amendment, 42 U.S.C.
§ 1981, or 42 U.S.C. § 1988. (See Brief [D.I. 28-2], 5 n.3.)

26

fails to identify what policy or custom was the moving force
behind the excessive force [D]efendant [O]fficers allegedly used
when arresting [P]laintiff, aside from a vague reference to the
Internal

Affairs

Bureau’s

alleged

failure

to

investigate

and

handle complaints.” (Id. at 22; see also Complaint [D.I. 1], ¶
43.) Defendants also assert that “[t]he record is devoid of any
evidence that the City adopted a policy or custom that caused
[P]laintiff’s

injury.”

(Defs.’

Brief

[D.I.

28-2],

22.)

Specifically, Defendants assert “[P]laintiff neither identified
any

criticism

report.

of

Simply,

the
there

City’s
is

no

training
evidence

nor

produced

whatsoever

an
to

expert
support

[P]laintiff’s Monell claim.” (Id. at 23.) Plaintiff argues that
an expert is not needed to establish its Monell claim and the
claim should be decided by a jury. (Pl.’s Brief [D.I. 38], 20.)
“[A] municipality cannot be held liable under § 1983
on a respondent superior theory.” 9 Monell, 436 U.S. at 691. A
municipality may, however, be sued directly under § 1983 where
“the action that is alleged to be unconstitutional implements or
executes a policy statement, ordinance, regulation or decision
officially adopted and promulgated by that body’s officers.” Id.

9

Accordingly, the Court dismisses Plaintiff’s claim that
“Defendant [City of Atlantic City] is responsible for the
conduct of Defendants Mi[l]tenberger and Holland under the
doctrine of respondent superior due to the master-servant
relationship which existed at the time of the incident[.]”
(Complaint [D.I. 1] ¶ 44 (emphasis omitted).)
27

at 690. Municipal liability under § 1983 may be premised on
policy or custom. McTernan v. City of York, PA, 564 F.3d 636,
657

(3d

Cir.

possess[ing]
with

final

respect

policy,

or

Phila.,

2009).

895

to

authority

the

edict.’”
F.2d

“‘Policy

action
Id.

1469,

at

is

to

made

establish

issues
658

1480

when

an

decisionmaker

municipal

official

(quoting
(3d

a

a

Cir.

policy

proclamation,

Andrews

v.

City

of

1990)).

Conduct

is

considered a custom “‘when, though not authorized by law, such
practices

of

state

officials

[are]

so

permanently

and

well-

settled as to virtually constitute law.’” Id. (quoting Andrews,
895

F.2d

at

1480.

“Custom

requires

proof

of

knowledge

and

acquiescence by the decisionmaker.” Id.
The plaintiff must “show that ‘through its deliberate
conduct, the municipality was the moving force behind the injury
alleged.’” Wicks v. Lycoming Cty., 456 F. App’x 112, 115 (3d
Cir. 2012) (quoting Bd. of Cty. Comm’rs v. Brown, 520 U.S. 397,
404 (1997)). Specifically, the plaintiff must show “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.” Bd. of Cty. Comm’rs,
520 U.S. at 407 (internal citation omitted). “Where the policy
‘concerns a failure to train or supervise municipal employees,
liability under section 1983 requires a showing that the failure
amounts to ‘deliberate indifference’ to the rights of persons
28

with whom those employees will come into contact.’” Thomas v.
Cumberland

Cty.,

749

F.3d

217,

222

(3d

Cir.

2014)

(quoting

Carter v. City of Phila., 181 F.3d 339, 357 (3d Cir. 1999)). A
failure

to

train

claim

also

requires

that

“the

identified

deficiency in a city’s training program must be closely related
to the ultimate injury; or in other words, the deficiency in
training

[must

have]

actually

caused

the

constitutional

violation.” Id. (internal quotation marks omitted) (quoting City
of Canton v. Harris, 489 U.S. 378, 391 (1989)).
Without
pleading,

the

addressing

Court

agrees

the

sufficiency

with

of

Defendants’

Plaintiff’s

contention

that

Plaintiff has not set forth any facts to support a Monell claim
against Defendant City of Atlantic City. See Baker v. United
States, No. 15-1521, 2016 WL 496045, at *2 (3d Cir. Feb. 9,
2016)

(finding

discretion

in

plaintiffs’
plaintiffs

that

district

rejecting

expert,
had

allegations

the

and

“offered

that

Monell

[the

no

court

testimony

consequently,
other

defendant

did

not

offered

that

evidence

abuse

to

municipality]

its

by

the

because

the

support
had

their

failed

to

train the law enforcement officers,” the district court properly
dismissed the plaintiffs’ Monell claim); see also Simmons v.
Timek, Nos. 04-0572, 05-5080, 06-0445, 2007 WL 4556955, at *11
(D.N.J.

Dec.

19,

2007)

(granting

the

defendants’

motion

for

summary judgment as to the plaintiff’s Monell claims where the
29

plaintiff identified the city’s policy against excessive force,
but did “not demonstrate[] how the [defendants] ha[d] failed to
train the officers on this policy”); see also Trafton v. City of
Woodbury,

799

F.

Supp.

2d

417,

431

&

n.11

(D.N.J.

2011)

(granting the defendant’s motion for summary judgment, finding
that the plaintiff’s complaint did not assert a Monell claim
against the defendant municipality and the “[p]laintiff failed
to provide any evidence of a policy of deliberate indifference
to constitutional rights”).
The

Court

notes

that

courts

in

this

district

have

denied summary judgment motions filed by the City of Atlantic
City

in

municipal

excessive
liability

force

cases

pursuant

to

where
§

1983

the

plaintiff

against

the

alleged
City

of

Atlantic City. See Worrall v. City of Atl. City, No. 11-3750,
2013 WL 4500583 (D.N.J. Aug. 20, 2013); see also Cordial v. Atl.
City, No. 11-1457, 2014 WL 1095584 (D.N.J. Mar. 19, 2014). In
Worrall, the plaintiff provided a record of citizen complaints
for one defendant officer which stated that, over a three year
and nine month period, the defendant officer was the subject of
twenty-one complaints, and of those complaints, fifteen involved
excessive

force

or

some

level

of

assault

and

the

remainder

involved harassment, standard of conduct, or an improper search.
2013 WL 4500583, at *3. The Worrall plaintiff also provided an
internal affairs report on the complaint of another individual
30

who alleged to have been assaulted at the same location and on
the

same

evening

as

the

plaintiff.

Id.

The

Court

found

in

Worrall that although the plaintiff’s submissions “teeter[ed] on
the

border

of

insufficiency,”

the

evidence

presented

was

nonetheless sufficient to withstand the City of Atlantic City’s
motion for summary judgment with respect to plaintiff’s claim
that the City of Atlantic City was “deliberately indifferent to
the violent propensities of its police officers” including those
named as individual defendants in that case. Id. at *3-4. The
Worrall court reasoned that “[g]iven the number of complaints
against [the defendant officer], the related subject matter, and
relatively short time span within which the various complaints
were filed, the [c]ourt [found] that [p]laintiff ha[d] presented
sufficient

evidence

to

create

a

triable

issue

of

fact”

and

“[a]lthough all of the complaints were either ‘not sustained’ or
[the

defendant

officer]

was

deemed

‘exonerated,’

the

[c]ourt

[found] in accordance with Beck 10, that a jury could still infer
knowledge and acquiescence and deliberate indifference.” Id. at
*5. Similarly, in Cordial, the plaintiff provided evidence that,
10

See Beck v. City of Pittsburgh, 89 F.3d 966, 973-74 (3d Cir.
1996) (concluding that because six complaints of excessive force
within a five-year period against the defendant officer “came in
a narrow period of time and were of similar nature, a reasonable
jury could have inferred that the Chief of Police knew, or
should have known, of [the defendant officer’s] propensity for
violence when making arrests”).

31

over a four-year period, 426 excessive force complaints were
filed, but only four of those complaints were sustained and that
during that time there were seven excessive force complaints
filed against one of the defendant officers. 2014 WL 1095584, at
*5. The evidence presented by the Cordial plaintiff showed that
many of the excessive force complaints and the internal affairs
investigation

reports

against

the

defendant

officer

were

“similar in nature to the instant matter,” although none of the
complaints were sustained. Id. The plaintiff in Cordial also
presented evidence that the Atlantic City police chief reviewed
many of the internal affairs investigative reports before they
were forwarded to the prosecutor’s office. Id. The Cordial court
concluded, citing to Beck, that “a reasonable jury could infer
from the narrow time period and similar allegations ‘that the
Chief of Police knew, or should have known, of [the defendant
officer’s] propensity for violence when making arrests.’” Id. at
*5. Consequently, the Cordial court found that the plaintiff
“presented sufficient evidence to demonstrate genuine issues of
material fact regarding whether Atlantic City has a custom of
acquiescing in the use of excessive force by its officers.” Id.
The

Cordial

court

also

found

that

plaintiff’s

submission

of

testimony from a former internal affairs investigator, as well
as the IA investigation reports themselves were sufficient such
that “a reasonable jury could infer that the IA investigation
32

process

is

designed

penalty.”

Id.

Worrall,

that

establish

that

at

to

*6.

“‘[t]he

insulate

The

Cordial

evidence

Atlantic

the

City

accused

court

concluded,

presented
was

the

officers

from

“moving

to

sufficient

[was]

citing

to

force”

behind

[p]laintiff’s injuries due to its failure to act despite prior
notice.’” Id.
On the record presented here, however, Plaintiff has
not made any showing to support his municipal liability claims
pursuant

to

§

1983

against

Defendant

City

of

Atlantic

City.

While Plaintiff has provided evidence that Defendant City of
Atlantic City has a use of force policy (see Declaration of
Timothy J. McIlwain, Esq., Exhibit A (D.I. 38-1), 3-16 on the
docket), Plaintiff has failed to set forth any evidence, whether
it be in the form of certification, affidavit, or deposition
testimony, from which a reasonable juror could conclude that
Defendant City of Atlantic City established a policy or custom
that

caused

Defendants’

Plaintiff’s
position

that

injury.

The

“[s]imply,

Court

there

is

agrees
no

with

evidence

whatsoever to support [P]laintiff’s Monell claim.” (Defs.’ Brief
[D.I. 28-2], 23.) In considering the summary judgment record,
the Court finds no facts and can draw no inferences to support
Plaintiff’s

Monell

claims.

The

Court

will

therefore

enter

summary judgment in favor of Defendants as to all Monell claims
against Defendant City of Atlantic City.
33

Defendants

also

move

for

summary

judgment

in

connection with Plaintiff’s claim that he was denied medical
care.

Plaintiff

alleges

pursuant

to

42

U.S.C.

§

1983,

that

“Defendants[] failed to provide Plaintiff medical care in the
wake of the beating despite Plaintiff’s extensive injuries” and
that “Defendants’ denial of medical care exacerbated Plaintiff’s
physical injuries and caused Plaintiff increased trauma, mental
and

emotional

distress,

and

increased

pain

and

suffering.”

(Complaint [D.I. 1], ¶¶ 21-22.) Defendants again assert that
there is no evidence to support this claim. (Brief [D.I. 28-2],
24-25.)
A
Process

deliberate

Clause

of

indifference

standard

Fourteenth

Amendment

the

under
applies

the
to

Due
an

individual’s claim for inadequate medical care during the course
of an arrest. See Smith v. Gransden, 553 F. App’x 173, 177 (3d
Cir.

2014)

(noting

“[d]eliberate

indifference

to

the

medical

needs of arrestees violates their Fourteenth Amendment right to
due process”); see also Suarez v. City of Bayonne, 566 F. App’x
181,

187

standard

(3d
to

Cir.
a

2014)

plaintiff’s

(applying
claim

a

for

deliberate
denial

of

indifference
medical

care

allegedly suffered during the course of an arrest). Under this
standard, a plaintiff must provide evidence of “(i) a serious
medical need, . . . (ii) acts or omissions by [law enforcement]
officials that indicate deliberate indifference to that need, .
34

. . and (iii) a causal connection between the indifference and
the plaintiff’s injury.” Smith, 553 F. App’x at 177 (internal
citations

and

quotation

marks

omitted).

This

standard

also

governs a pretrial detainee’s denial of medical care claim. 11
Natale v. Camden Cty. Corr. Facility, 318 F.3d 575, 581 (3d Cir.
2003).
The
“where

there

Third
was

Circuit

has

‘objective

found

evidence

deliberate
that

[a]

indifference

plaintiff

had

serious need for medical care,’ and prison officials ignored
that

evidence[,]”

Natale,

318

F.3d

at

582

(3d

Cir.

2003)

(quoting Nicini, 212 F.3d at 815 n.14), and “where ‘necessary
medical

treatment

is

delayed

for

11

non-medical

reasons.’”

Id.

In Natale, the court applied the deliberate indifference
standard to a pretrial detainee’s claim for inadequate medical
care and noted that the Third Circuit has “[i]n previous cases .
. . found no reason to apply a different standard than set forth
in Estelle[v. Gamble, 429 U.S. 97 (1976)] . . . when evaluating
whether a claim for inadequate medical care by a pre-trial
detainee is sufficient under the Fourteenth Amendment.” 318 F.3d
at 581 (citation omitted). In Estelle, the Supreme Court held
that a convicted prisoner’s right to medical care is afforded by
the Eighth Amendment and that “deliberate indifference to
serious medical needs of prisoners” is the standard that governs
a convicted prisoner’s claim for denial of such care. 429 U.S.
at 104 (1976). The Natale court noted that “the Supreme Court
has concluded that the Fourteenth Amendment affords pretrial
detainees protections ‘at least as great as the Eighth Amendment
protections available to a convicted prisoner,’ without deciding
whether the Fourteenth Amendment provides greater protections.”
318 F.3d at 581 (quoting City of Revere v. Massachusetts Gen.
Hosp., 463 U.S. 239, 244 (1983)).

35

(quoting Monmouth Cty. Corr. Institutional Inmates v. Lanzaro,
834 F.2d 326, 347 (3d Cir. 1987)).
In Hill v. Algor, the plaintiff, who was found by the
court to be an arrestee at the time he was allegedly denied
medical care, sought the “application of the Fourth Amendment
‘objective

reasonableness’

standard

to

his

medical

care

claims.” 12 85 F. Supp. 2d 391, 409 (D.N.J. 2000). The Hill court

12

The standard that should be applied to arrestee and pretrial
detainee denial of medical care claims made pursuant to § 1983
varies in other circuits. See Ortiz v. City of Chicago, 656 F.3d
523, 530 (7th Cir. 2011) (finding that the Fourth Amendment
objective reasonableness standard governs denial of medical
cases where there has not yet been a judicial determination of
probable cause); see also Hernandez v. City of Beaumont, No. 13967, 2014 WL 688183, at *3 (C.D. Cal. Feb. 21, 2014) (observing
that “[t]he Ninth Circuit ‘treats the failure to provide
adequate medical care during and immediately following an arrest
as a claim properly brought under the Fourth Amendment and
subject to the Fourth Amendment’s objective reasonableness
standard’”); see also Burks v. Perrotta, No. 13-5879, 2015 WL
2340641, at *7-8 (S.D.N.Y. May 15, 2015) (observing that “this
Court previously determined that the Fourth Amendment should
apply to pre-arraignment denial of medical care claims” and that
“[u]nder
the
Fourth
Amendment
standard,
the
Court
must
[determine] whether the asserted denial of medical treatment was
objectively unreasonable” (internal quotation marks omitted);
see also Miranda-Rivera v. Toledo-Dávila, 813 F.3d 64, 74 (1st
Cir. 2016) (reasoning that “Fourteenth Amendment substantive due
process requires the government to provide medical care to
persons who are injured while being apprehended by the police”
and
applying
a
deliberate
indifference
standard
to
the
plaintiff’s denial of medical care claim where the alleged
denial of medical care occurred during the plaintiff’s arrest
and while plaintiff was in a holding cell at the police
station); see also Goodwin v. Kennedy, No. 13-1774, 2015 WL
1040663, at *7 (E.D.N.Y. Mar. 10, 2015) (recognizing that
“[t]here is a split of authority in [the Second] Circuit
regarding the proper constitutional basis for denial of medical
care
claims
brought
by
pre-trial
arrestees
against
law
36

concluded that under existing Third Circuit precedent, it “must
deny

[the

plaintiff’s]

indifference’

standard”

care

Id.

claims.

The

request
to

Hill

the

and

apply

plaintiff’s

court

noted

the

‘deliberate

denial

that

the

of

medical

plaintiff’s

excessive force claims and medical care claims were consequently
“assessed

under

different

standards”

and

articulated

that

“[w]hether a uniform standard should be applied to both types of
claims arising out of post-arrest but pre-arraignment detention,
however, is a matter best resolved by the court of appeals.” Id.
at 409 n.27.
At least two courts in this district have held that
the Fourth Amendment applies to denial of medical care claims
asserted

by

an

arrestee

and

thus

have

applied

an

objective

enforcement officials[]” and concluding that the deliberate
indifference standard under the Fourteenth Amendment should be
applied to a plaintiff’s denial of medical care claim where the
plaintiff alleged the defendants “act[ed] with deliberate
indifference to his injuries by denying his requests for medical
care after his arrest”); see also Weatherford ex rel. Thompson
v. Taylor, 347 F. App’x 400, 403 (10th Cir. 2009) (noting that a
deliberate indifference standard under the Fourteenth Amendment
applies to a pretrial detainee’s claims alleging inadequate
medical care); see also Shaver v. Brimfield Twp., 628 F. App’x
378, 381 n.3 (6th Cir. 2015) (noting that the Sixth Circuit has
“not yet resolved whether claims of inadequate medical care by
[pretrial] detainees . . . are . . . cognizable under the Fourth
Amendment’s objective reasonableness standard” and declining to
resolve
the
issue
in
that
case
because
the
plaintiff
specifically brought a deliberate indifference claim under the
Fourteenth Amendment); see also Bailey v. Feltmann, 810 F.3d
589, 593 (8th Cir. 2016) (observing “this court has not resolved
whether an arrestee’s claim alleging denial of medical care is
analyzed under the Due Process Clause or the Fourth Amendment”).
37

reasonableness standard under the Fourth Amendment to denial of
medical care claims that arose during a plaintiff’s arrest. See
Davis,

421

F.

Supp.

2d

at

855-57

(“apply[ing]

the

Fourth

Amendment’s reasonableness standard rather than the Fourteenth
Amendment deliberate indifference standard applied to pretrial
detainees” to a denial of medical treatment claim for “actions
[that] took place during [the plaintiff’s] arrest,” but applying
the Fourteenth Amendment’s deliberate indifference standard to
the plaintiff’s denial of medical care claims for conduct which
occurred after the plaintiff arrived at the police station); see
also Pierce v. Cherry Hill Twp., No. 09-6487, 2013 WL 3283952,
at *8 (D.N.J. June 26, 2013) (citing Davis and concluding that a
claim for denial of medical care that was allegedly requested
during the course of an arrest was “appropriately viewed through
the

prism

of

the

Fourth

Amendment’s

ban

of

unreasonable

seizures”).
The parties’ submissions do not reconcile the standard
to apply to Plaintiff’s denial of medical care claim. Defendants
cite to Davis in asserting that Plaintiff’s denial of medical
care

claim

is

governed

by

the

Due

Process

Clause

of

the

Fourteenth Amendment (Defs.’ Brief [D.I. 28-2], 24), and argue
that in order to succeed on his denial of medical care claim,
Plaintiff must provide “‘evidence of a serious medical need and
acts

or

omissions

by

prison

officials
38

indicating

deliberate

indifference to those needs.’” (Id. (quoting Davis, 421 F. Supp.
2d

at

856-57).)

finding

that

Defendants

it

was

then

reasonable

cite
for

to

police

the

Davis

officers

court’s
to

wait

thirty-five minutes to wash pepper spray out of the plaintiff’s
eyes. 13 (Id. at 24-25 (citing Davis, 855-57).) Defendants argue
that in this case “there was no evidence that [P]laintiff had an
objectively serious medical need” and that Plaintiff was not
denied medical treatment because Plaintiff “was examined and his
face cleaned.” (Id. at 25.)
Plaintiff’s submissions do not address what standard
should

govern

Plaintiff’s

Plaintiff’s

counsel

denial

represented

of

at

medical

oral

care

argument

claim. 14
that

the

surveillance video set forth the disputed material facts from
which

the

complaint

Court
does

should

not

set

deny

summary

forth

the

judgment.

Plaintiff’s

constitutional

right

or

standard to be applied to Plaintiff’s denial of medical care
claim.
pursuant

(Complaint
to

§

[D.I.

1983

that

1],

¶¶

he

was

20-26.)
denied

Plaintiff
medical

alleges
care

and

specifically alleges “Defendants[] failed to provide Plaintiff
13

Defendants cite to Davis at a section of the opinion where the
Davis court was applying the Fourth Amendment objective
reasonableness standard to the plaintiff’s claims. See Davis,
421 F. Supp. 2d at 855-57.
14 Defendants argue “Plaintiff does not challenge Defendants’
request for summary judgment on his claim that he was denied
medical care. Because this portion of Defendants’ motion is
unchallenged, it should be granted.” (Defs.’ Reply Brief [D.I.
44], 13.)
39

medical

care

in

the

wake

of

the

beating

despite

Plaintiff’s

extensive injuries.” (See Complaint [D.I. 1], at ¶ 21.)
In light of Smith and Suarez, the Court shall consider
Plaintiff’s

claims

pursuant

to

the

deliberate

indifference

standard under the Fourteenth Amendment. Plaintiff asserts in
his

brief

punched

that

to

he

the

“was

ground”

completely
(Pl.’s

unconscious

Brief

[D.I.

after

38],

being

19)

and

Plaintiff’s counsel argued at oral argument that Plaintiff had
been “knocked out.” Plaintiff contends that while in the inhouse holding area, “Plaintiff was requesting medical attention”
(Pl.’s

Response

[D.I.

38],

¶

10(l)),

and

denies

Defendants’

assertion that Plaintiff was treated by the in-house nurse. 15
(See id. at ¶ 10(i).)
The

surveillance

video

shows

Plaintiff

being

handcuffed approximately thirty (30) seconds after falling to
the

ground

Officers

and

being

approximately

handcuffed.

The

video

brought

to

fifteen
also

shows

his
(15)

feet

by

seconds

approximately

the

Defendant

after
(20)

being
minutes

after Plaintiff was struck by Defendant Officer Miltenberger, an
individual wearing what appears to be medical gloves, wiping off

15

Defendants’ statement of material facts provides “[t]he inhouse nurse was summoned to treat [P]laintiff for bleeding from
his mouth” (Defs.’ Facts [D.I. 28-1], at ¶ 10(k) and that “[a]n
ambulance was dispatched to treat [P]laintiff for a laceration
on his face. (Id. at ¶ 11(o).)
40

the lip and chin area of Plaintiff’s face which appears to be
bleeding. 16
The medical records provided by Defendants are dated
August

12,

2012

at

19:56,

after

the

incident.

(See,

e.g.,

Hegarty Cert., Exhibit K [D.I. 28-3], 96 on the docket.) The
physician notes from Plaintiff’s hospital visit following the
alleged excessive force provide Plaintiff was diagnosed with a
“jaw

contusion;”

a

“lip

contusion”;

and

a

“knee

contusion.”

(Hegarty Cert., Exhibit L [D.I. 28-3], 99 on the docket.) The
Aftercare Instructions state that “[c]ontusion is the medical
term for a bruise”; “[t]he doctor does not believe you have
injured essential organs, like your eyes, brain or spine[;]” and
“[f]ollow up with Dr. in 3 Day(s)” (Hegarty Cert., Exhibit M
[D.I. 28-3], 101 on the docket.) The Aftercare Instructions also
provide “[o]ne concern after a facial injury is the possibility
of other injuries to the head or neck. The doctor has determined
that you do not have any other serious injuries and that it is
safe for you to go home. If you develop symptoms of a head or
neck

injury,

return

immediately

to

the

nearest

Emergency

Department.” (Id. at 102 on the docket.) Additionally, a “Final
Report”

from

Clara

Maass

Medical

16

center

provides

“NO

At oral argument Plaintiff’s counsel suggested that he had not
seen any evidence in the video of Plaintiff being provided with
any type of medical care while inside of the holding cell. The
video belies this assertion.
41

RADIOGRAPHIC EVIDENCE OF AN ACUTE FRACTURE.” (See Hegarty Cert.,
Exhibit N [D.I. 38-3], 105 on the docket.)
The Court concludes that Plaintiff’s denial of medical
care claim against Defendant Officers Miltenberger and Holland
fails because Plaintiff has not provided evidence from which a
reasonable juror could conclude that he suffered from a serious
medical need. See Monmouth Cty. Corr. Institutional Inmates, 834
F.2d at 346 (reasoning that a “[a] medical need is serious . . .
if it is one that has been diagnosed by a physician as requiring
treatment or one that is so obvious that a lay person would
easily

recognize

the

necessity

for

a

doctor’s

attention”

(citations and internal quotation marks omitted)); see also Hill
v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011) (noting that to
establish a serious medical condition, “the alleged deprivation
must be sufficiently serious, in the sense that a condition of
urgency, one that may produce death, degeneration, or extreme
pain

exists”).

While

a

reasonable

juror

may

conclude

that

Plaintiff briefly lost consciousness and suffered from several
contusions, Plaintiff has failed to submit any evidence from
which

a

jury

could

conclude

that

Plaintiff

suffered

an

objectively serious medical need and Defendant has demonstrated
a lack of such evidence. See Mahoric v. Hogue, No. 11-575, 2013
WL

6118693,

at

*3-4

(W.D.

Pa.

Nov.

21,

2013)

(finding

the

plaintiff failed to demonstrate an objectively serious medical
42

need

where

alleged

the

that

temporarily
regaining

plaintiff

he

lost

received
hit

tripped,

no

head

his

consciousness,

consciousness

and

and

medical

had

on

a

care

concrete

“blurry

concluding

after

he

wall,

vision”

that

upon

while

the

plaintiff’s injuries may have been “mildly uncomfortable,” the
plaintiff had “not alleged that he suffered any more than just
minimal temporary discomfort or that he later complained about
any pain or lingering injuries that he suffered as a result of
the fall” nor that “he in fact suffered any lasting or permanent
injuries as a result of not receiving medical treatment”); see
also McClendon v. Cty. of Nassau, No. 11-0190, 2012 WL 4849144,
at

*6

(E.D.N.Y.

Oct.

11,

2012)

(noting

“[b]ruises

and

lacerations alone are generally insufficient to support a claim
of

constitutional

deprivation”).

Moreover,

Plaintiff

has

provided no evidence that any delay or denial of medical care
“‘exacerbated
otherwise

his

medical

subjected

him

to

condition,
an

caused

increased

risk

infection,
of

harm.’”

or
See

Horvath v. City of New York, No. 12-6005, 2015 WL 1757759, at *6
(E.D.N.Y. Apr. 17, 2015). Notably Plaintiff offers “no evidence
that his condition worsened” as a result of the alleged delay or
denial of medical care. Id. Furthermore, Plaintiff has presented
no evidence that any injury he suffered was the result of the
alleged

delay

or

denial

of

medical

care

as

opposed

to

the

alleged excessive force. See id. (granting a motion for summary
43

judgment with respect to a denial of medical care claim where
the

plaintiff

“offer[ed]

evidence

of

a

number

of

injuries

resulting from [an] alleged assault[,]” but made “no attempt to
connect

[those

attention”).

injuries]

Plaintiff

to

has

the

alleged

provided

no

delay

facts

to

in

medical

refute

the

contents of the medical records or to suggest that Plaintiff
received

any

further

provided

while

Consequently,
demonstrated

Plaintiff
the

a

treatment

Court

serious

was

other

in

the

concludes
medical

than

in-house

that

need

that

and

which

holding

Plaintiff
in

light

was
cell.

has

not

of

this

finding, “it is unnecessary for the [c]ourt to consider whether
the subjective element of [p]laintiff’s deliberate indifference
claim has been satisfied.” Goodwin, 2015 WL 1040663, at *14; see
also, Mahoric,

2013

WL

6118693,

at

*4

(concluding

“there

is

nothing in the record from which a reasonable jury could find
that the objective component of a deliberate indifference claim
has been satisfied . . . even assuming [that the] [d]efendant []
deliberately dismissed [the] [p]laintiff’s requests for medical
care without regard to his health or safety”). In considering
the summary judgment record, the Court finds no facts and can
draw

no

inferences

to

support

a

finding

that

the

Defendant

Officers Miltenberger and Holland were deliberately indifferent
to Plaintiff’s medical needs. Accordingly, the Court will enter

44

summary judgment in favor of Defendants Miltenberger and Holland
as to Plaintiff’s denial of medical care claim.
Likewise, to the extent Plaintiff’s claim for denial
of medical care is asserted against Defendant City of Atlantic
City, summary judgment shall be granted in favor of Defendant
City

of

Atlantic

City.

See

Mulholland

v.

The

Gov’t

Cty.

of

Berks, 706 F.3d 227, 238 n.15 (3d Cir. 2013) (noting “[i]t is
well-settled that, if there is no [constitutional] violation in
the first place, there can be no derivative municipal claim”
under § 1983).
Consequently, for the reasons set forth, and for good
cause shown, Defendants’ motion for summary judgment [D.I. 28]
is granted in part and denied in part. An appropriate order will
be entered.

s/ Ann Marie Donio
ANN MARIE DONIO
UNITED STATES MAGISTRATE JUDGE
Dated: March 31, 2016

45