INGRAM v. COUNTY OF CAMDEN et al

Filing 232

OPINION. Signed by Judge Jerome B. Simandle on 3/29/19. (dd, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
XAVIER INGRAM and
DARREN A. DICKERSON,

HONORABLE JEROME B. SIMANDLE

Plaintiffs,

Civil Action No.
14-5519 (JBS-KMW)

v.
OPINION
COUNTY OF CAMDEN, et al.,
Defendants.

APPEARANCES:
Beth G. Baldinger, Esq.
MAZIE SLATER KATZ & FREEMAN, LLC
103 Eisenhower Parkway
Roseland, New Jersey 07068
Attorney for Plaintiff Ingram
William M. Tambussi, Esq.
William F. Cook, Esq.
BROWN & CONNERY, LLP
360 Haddon Avenue
Westmont, New Jersey 08108
Attorneys for County Defendants & Defendant Marchiafava
Jay J. Blumberg
BLUMBERG & WOLK, LLC
158 Delaware Street
Woodbury, New Jersey 08096
Attorney for Defendant Merck
Matthew B. Wieliczko
ZELLER & WIELICZKO, LLP
120 Haddontowne Court
Cherry Hill, New Jersey 08034
Attorney for Defendant Gennetta

SIMANDLE, District Judge:
On June 14, 2014, Plaintiff Xavier Ingram was allegedly
assaulted by several Camden County Police Officers resulting in
catastrophic injuries including quadriplegia, in violation of 42
U.S.C. § 1983. Presently before the Court are four motions for
summary judgment filed by Defendants County of Camden, Camden
County Police Department, Chief John Scott Thomson, Orlando Cuevas
(hereinafter,

“County

Defendants”),

and

Nicholas

Marchiafava

[Docket Item 143], Defendant Jeremy Merck [Docket Item 144],
Defendant Antonio Gennetta [Docket Item 145], and Plaintiff Ingram
[Docket Item 146]. All of the present motions have been opposed
and briefing has been completed. The Court has considered the
submissions and held oral argument on March 21, 2019. For the
reasons set forth below, the motion for summary judgment filed by
County Defendants and Defendant Marchiafava [Docket Item 143] will
be granted in part and denied in part, Defendant Merck’s motion
for summary judgment [Docket Item 144] will be denied, Defendant
Gennetta’s motion for summary judgment [Docket Item 145] will be
denied, and Plaintiff Ingram’s motion for summary judgment [Docket
Item 146] will be denied. The Court finds as follows:1

For purposes of the instant motion and pursuant to Local Civil
Rule 56.1, the Court looks to Plaintiff Ingram’s Second Amended
Complaint, [Docket Item 64], when appropriate, County Defendants’
Statement of Undisputed Material Facts, [Docket Item 143-2],
Defendant Merck’s Statement of Undisputed Material Facts, [Docket
Item 144-5], Defendant Gennetta’s Statement of Undisputed Material
1

2

I.
The

Factual and Procedural Background.
factual

and

procedural

background

of

this

case

was

previously detailed in the Court’s Memorandum Opinion of January
16, 2019, and shall not be repeated herein, except as necessary
for the determination of the present motion. See Ingram v. Cty. of
Camden, No. 14-5519, 2019 WL 231759 (D.N.J. Jan. 16, 2019).
Discovery extending over several years has been completed and the
motions are largely ripe for decision.
II.

Standard of Review.

At summary judgment, the moving party bears the initial burden
of demonstrating that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter
of law. FED. R. CIV. P. 56(a); accord Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). Once a properly supported motion for summary
judgment is made, the burden shifts to the non-moving party, who
must set forth specific facts showing that there is a genuine issue
for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250
(1986). In reviewing a motion for summary judgment, the court is

Facts, [Docket Item 145-2], Plaintiff Ingram’s Statement of
Undisputed Material Facts, [Docket Item 146-27], Defendant
Gennetta’s Response to Statement of Material Facts, [Docket Item
159-1], Defendant Merck’s Response to Statement of Material Facts,
[Docket Item 160-2], Defendant Marchiafava’s Response to Statement
of Material Facts, [Docket Item 164-1], Plaintiff Ingram’s
Response to Statement of Material Facts, [Docket Item 169], and
related exhibits and documents. Where not otherwise noted, the
facts are undisputed by the parties.

3

required to examine the evidence in light most favorable to the
non-moving party and resolve all reasonable inferences in that
party’s favor. Scott v. Harris, 550 U.S. 372, 378 (2007); Halsey
v. Pfeiffer, 750 F.3d 273, 287 (3d Cir. 2014).
A factual dispute is material when it “might affect the
outcome of the suit under the governing law,” and genuine when
“the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Anderson, 477 U.S. at 248. The nonmoving party “need not match, item for item, each piece of evidence
proffered by the movant,” but must present more than a “mere
scintilla” of evidence on which a jury could reasonably find for
the non-moving party. Boyle v. Cnty. of Allegheny, Pa., 139 F.3d
386, 393 (3d Cir. 1998) (quoting Anderson, 477 U.S. at 252).
III.

Discussion.

Defendants2 move for summary judgment as to certain portions
of Plaintiff Ingram’s Second Amended Complaint [Docket Item 64].
Defendants assert that they are entitled to summary judgment as to
Plaintiff Ingram’s claim regarding the use of excessive force
because the force used by Officer Defendants against Plaintiff
Ingram was reasonable and because Officer Defendants are protected
by the doctrine of qualified immunity. (County Defs.’ Br. [Docket

Unless otherwise noted, the Court shall use the term “Defendants”
when referring to all Defendants named in Plaintiff Ingram’s Second
Amended Complaint [Docket Item 64].
2

4

Item

143-1],

15-27;

Merck’s

Br.

[Docket

Item

144-1],

5-8;

Gennetta’s Br. [Docket Item 145-1], 24-34.) Defendants further
assert that they are entitled to summary judgment as to all New
Jersey state law claims because they are rendered immune from suit
by New Jersey’s “pursuit immunity” statute. (County Defs.’ Br.
[Docket Item 143-1], 28 n.13; Merck’s Br. [Docket Item 144-1], 56; Gennetta’s Br. [Docket Item 145-1], 36.) County Defendants
assert that they are entitled to summary judgment as to all claims
against

Defendants

County

of

Camden,

Camden

County

Police

Department, John Scott Thomson, and Orlando Cuevas3 because County
Defendants’ training, policies, and discipline meet applicable
requirements and because they cannot be held liable for claims
under 42 U.S.C. § 1983 by way of a theory of respondeat superior.
(See County Defs.’ Br. [Docket Item 143-1], 28-30.) Defendant Merck
seeks summary judgment regarding Plaintiff Ingram’s claim against
him for supervisory liability under 42 U.S.C. § 1983. (See Merck’s
Br. [Docket Item 144-1], 8-11.) Finally, Defendants and Plaintiff
Ingram

all

seek

summary

judgment

in

their

respective

favors

regarding Plaintiff Ingram’s claim for failure to render medical
aid. (See County Defs.’ Br. [Docket Item 143-1], 27-28; Gennetta’s

During oral argument, counsel for Plaintiff Ingram withdrew all
of Plaintiff Ingram’s claims against Defendant Cuevas. Therefore,
the Court shall grant County Defendants’ present motion for summary
judgment insofar as it seeks summary judgment in favor of Defendant
Cuevas.
3

5

Br. [Docket Item 145-1], 34-35; Merck’s Br. [Docket Item 144-1],
11; Ingram’s Br. [Docket Item 148], 19-33.)4
A.

Excessive Force.

Defendants contend that they are entitled to summary judgment
in their favor as to Count I of Plaintiff Ingram’s Second Amended
Complaint [Docket Item 64], seeking damages under 42 U.S.C. § 1983
for excessive force, because Defendants are entitled to qualified
immunity and because Plaintiff Ingram has not established that he
has

suffered

a

constitutional

violation.

(County

Defs.’

Br.

[Docket Item 143-1], 15-27; Merck’s Br. [Docket Item 144-1], 5-8;
Gennetta’s Br. [Docket Item 145-1], 24-34.) Defendants assert that
each of the Officer Defendants5 is entitled to qualified immunity
and

that

the

force

used

against

Plaintiff

Ingram

was

not

unconstitutionally excessive. (See id.) Plaintiff Ingram opposes
this

request,

asserting

that

the

Officer

Defendants

are

not

entitled to qualified immunity and that there exist questions of
material fact in relation to whether the amount of force used on

Defendants also assert that Plaintiff Ingram has not presented
sufficient evidence to show that Officer Defendants were a
proximate cause of his injuries. (See, e.g., County Defs.’ Br.
[Docket Item 143-1], 25.) Defendants rely on their motions to
strike Plaintiff Ingram’s experts Dr. Yue and Dr. Ivancic to
support this request. (Id.) However, as the Court has largely
denied those motions to strike, (see Order [Docket Item 228],)
this portion of Defendants’ motions shall be denied.
4

Unless otherwise noted, the Court shall use the term “Officer
Defendants” when referring to Defendants Marchiafava, Gennetta,
and Merck, collectively.
5

6

Plaintiff

Ingram

was

objectively

reasonable

under

the

circumstances presented in this case. (See Pl.’s Opp’n [Docket
Item 170], 7-16, 18-19.)
1.

Qualified Immunity as to Excessive Force.

“Qualified immunity shields government officials from civil
damages liability unless the official violated a statutory or
constitutional right that was clearly established at the time of
the challenged conduct.” Taylor v. Barkes, 135 S. Ct. 2042, 2044
(2015)

(internal

citation

and

quotation

marks

omitted).

“In

resolving questions of qualified immunity at summary judgment,
courts engage in a two-pronged inquiry. The first asks whether the
facts, ‘[t]aken in the light most favorable to the party asserting
the injury, . . . show the officer’s conduct violated a [federal]
right[.]’” Tolan v. Cotton, 572 U.S. 650, 655–56 (2014) (citing
Saucier

v.

Katz,

533

U.S.

194,

201,

(2001)).

In

this

case,

Plaintiff Ingram has alleged a violation of his Fourth Amendment
right to be free of excessive force during the course of an arrest
and failure to provide medical care.6 (See Second Amended Complaint

The parties dispute whether this claim falls under the Fourth
Amendment or the Fourteenth Amendment, as described below. It is
Plaintiff Ingram’s position that the Fourth Amendment provides the
proper test for his claim. Additionally, Defendant Merck argues
that the Eighth Amendment, which protects individuals who are
serving sentences after having been convicted of a crime, is
inapplicable in this context. (See Merck’s Br. [Docket Item 160],
4-5.) Neither Plaintiff Ingram nor any other party appears to
assert that the Eighth Amendment applies in the context of this
6

7

[Docket Item 64], ¶ 27; see also Graham v. Connor, 490 U.S. 386,
393 (1989).) Plaintiff Ingram alleges that as he walked out of a
liquor store, nearby police officers started to chase him, he
assumed that it was because of an outstanding warrant he had, got
scared, and ran. (Ingram Dep. [Docket Item 146-10], 11:16-12:2.)
After running for some distance, Plaintiff Ingram alleges he tried
to surrender to police on the slippery pavement by going down to
the ground. (Id. at 12:5-6.) In the process of getting down, Ingram
claims his feet slipped from under him and he landed on his side.
(Id. at 12:6-8.) As soon as he hit the ground, an officer jumped
on his back and two officers started punching and kicking him.
(Id. at 12:9-12.) After the officers started beating him, Plaintiff
Ingram asserts that he could feel the blows, was in extreme pain,
and was screaming that he could not breathe and that he could not
feel his legs. (Id. at 12:12-15.) Then Defendant Merck walked over
to Ingram, told him to “shut up,” stepped on his neck, and
Plaintiff Ingram heard it crack. (Id. at 12:15-18.) According to
Ingram, the officers tried to sit him up, but when they released
him, he collapsed onto his stomach. (Id. at 12:21-23.) Ingram then
blacked out. (Id. at 20-24.) As described below, the parties have
identified a number of eyewitnesses to these events and there is
a video surveillance recording of the events. Taking these into

case. Therefore, the Court shall not address any Eighth Amendment
protections at this time.
8

account, in the light most favorable to Plaintiff Ingram, show
that the Officer Defendants violated a federal right.
The second prong of the qualified immunity inquiry requires
the Court to determine
whether the right in question was “clearly
established” at the time of the violation.
Hope v. Pelzer, 536 U.S. 730, 739, []
(2002). . . . “[T]he salient question . . .
is whether the state of the law” at the time
of an incident provided “fair warning” to the
defendants “that their alleged [conduct] was
unconstitutional.” Id. at 741.
Tolan, 572 U.S. at 655–56. Regarding claims of excessive force
during the process of arrest, the Third Circuit has stated that
we have relied on the factors set forth in
Graham and Sharrar in evaluating whether an
officer made a reasonable mistake. See Estate
of Smith v. Marasco, 430 F.3d 140, 149-150 (3d
Cir.2005); Couden v. Duffy, 446 F.3d 483, 497
(3d Cir.2006). We have stated that these
factors “are well-recognized,” Couden, 446
F.3d at 497, and that when an officer applies
them in “an unreasonable manner, he is not
entitled to qualified immunity.” Estate of
Smith, 430 F.3d at 150.
Green v. New Jersey State Police, 246 F. App’x 158, 162–63 (3d
Cir. 2007). As the Court shall determine, below, neither the Graham
nor the Sharrar factors indicate that, taking the evidence in the
light most favorable to Plaintiff Ingram, the Officer Defendants’
use of allegedly deadly force (especially kneeling on Ingram’s
neck and kicking or stomping on the neck of a non-resisting
suspect) would have been reasonable under the circumstances in

9

this case. Because the Court finds that “it would be unreasonable
for [an officer] to believe these actions would not constitute
excessive force, we hold that [Plaintiff Ingram’s] rights were
‘clearly established.’” Green, 246 F. App’x at 163.
2.

Qualified
Immunity
as
to
Deliberate
Indifference to Serious Medical Need of a
Detainee

Plaintiff also alleged a second constitutional violation
arising after he was seized and immobile on the ground. He alleges
that, after his neck was broken, and he was handcuffed, that he
was “seized” for constitutional purposes, and that the officers
were aware of the profound seriousness of his injuries. When
Officer Defendants nonetheless rolled him over, and then sat him
up, despite hearing his complaints that he could not feel his legs
and despite seeking that he could not cooperate to support himself,
and his body was contorted and he fell face forward on his face,
that further injury to his spinal cord was the result. Plaintiff’s
expert, Dr. Yue, inter alia, opines how these maneuvers probably
caused additional damage to Plaintiff’s cervical area. Plaintiff
alleges that he had a constitutional right, whatever the source of
his injuries, once he was seized, to be free from the deliberate
indifference of the arresting officers to his serious medical needs
as a detainee in violation of the Fourth (or alternatively the
Fourteenth) Amendment.

10

At step one of the qualified immunity inquiry, taking the
evidence in the light most favorable to Plaintiff Ingram, he has
alleged a violation of his federal right to be free from deliberate
indifference

to

his

serious

medical

needs

while

a

pretrial

detainee. (Second Amended Complaint [Docket Item 64], ¶¶ 36-43.)
With regard to claims for inadequate medical care by pretrial
detainees, the Third Circuit has held 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. [City of Revere v.
Massachusetts Gen. Hosp., 463 U.S. 239, 244,
(1983).] In previous cases, we have found no
reason to apply a different standard than that
set forth in Estelle (pertaining to prisoners’
claims of inadequate medical care under the
Eighth Amendment) when evaluating whether a
claim for inadequate medical care by a pretrial detainee is sufficient under the
Fourteenth Amendment. See, e.g., Boring v.
Kozakiewicz, 833 F.2d 468, 472 (3d Cir.1987).
Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 581 (3d Cir.
2003). The Third Circuit went on to say that
[i]n Estelle, [429 U.S. 97, 102-04 (1976),]
the Supreme Court held that the Eighth
Amendment proscribes deliberate indifference
to prisoners’ serious medical needs. . . . In
order
to
establish
a
violation
of
[plaintiff’s]
constitutional
right
to
adequate medical care, evidence must show (i)
a serious medical need, and (ii) acts or
omissions by prison officials that indicate
deliberate indifference to that need.

11

Natale v. Camden Cty. Corr. Facility, 318 F.3d 575, 582 (3d Cir.
2003) (citing Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999)).
As described, supra, Plaintiff alleges, and a reasonable jury could
so find, that Plaintiff was suffering from a serious medical need
related to the neck injury he sustained and Officer Defendants’
acts and omissions by ignoring his cries that he could not feel
his legs and ignoring the signs that he was unable to physically
support himself and nevertheless choosing to roll him over, pull
his

body

upright,

deliberate

and

indifference

then
to

drop
that

him

on

serious

his

face

medical

constitute

need.

Thus,

Plaintiff has alleged a constitutional violation of his right to
be free from deliberate indifference to his serious medical needs.
With regard to this the second prong of the qualified immunity
analysis, the right of persons in police custody to be free from
deliberate indifference to their medical need was recognized by
the Supreme Court at least as early as Estelle in 1976, and this
right was clearly established with respect to pretrial detainees
at least as early as City of Revere in 1983, a reasonable police
officer

should

know
the

that

indifferent

to

serious

detainees.

Therefore,

the

they

are

not

to

be

medical

needs

of

Court

finds

that

deliberately

their
the

pretrial
second

constitutional right which Plaintiff Ingram alleges was violated
was indeed “clearly established.”

12

Therefore, Defendants’ motions shall be denied to the extent
that they seek summary judgment in Officer Defendants’ favor on a
theory of qualified immunity pertaining to both excessive force
and deliberate indifference to the serious medical need of a person
in custody.
3.

Excessiveness of Force.

In the present case, there are significant factual disputes
about the exact amount and type of force used by Officer Defendants
against Plaintiff Ingram. Plaintiff Ingram alleges that as he
walked out of a liquor store, nearby police officers started to
chase him, he assumed that it was because of an outstanding warrant
he had, got scared, and ran. (Ingram Dep. [Docket Item 146-10],
11:16-12:2.) After running for some distance, Plaintiff Ingram
alleges he tried to surrender to police by going down to the
ground. (Id. at 12:5-6.) In the process of getting down, Ingram
claims his feet slipped from under him and he landed on his side.
(Id. at 12:6-8.) As soon as he hit the ground, an officer jumped
on his back and two officers started punching and kicking him.
(Id. at 12:9-12.) After the officers started beating him, Plaintiff
Ingram asserts that he could feel the blows, was in extreme pain,
and was screaming that he could not breathe and that he could not
feel his legs. (Id. at 12:12-15.) Then Defendant Merck walked over
to Ingram, told him to “shut up,” stepped on his neck, and
Plaintiff Ingram heard it crack. (Id. at 12:15-18.) According to

13

Ingram, he told the officers he could not breathe and could not
move. Nonetheless, the officers tried to sit him up, but when they
released him, he collapsed onto his face and stomach. (Id. at
12:21-23.) Ingram then blacked out. (Id. at 20-24.) He alleges
this

post-seizure

conduct

showed

indifference

to

his

serious

medical needs and worsened his condition.
Meanwhile,

Defendants

assert

that

Plaintiff

Ingram’s

catastrophic injuries were caused not by the actions of Officer
Defendants, but rather as a result of Plaintiff Ingram’s slip-andfall. (See County Defs.’ Br. [Docket Item 143-1], 25.) Indeed,
there is a dispute between expert witnesses whether the injuries
were more likely caused by the slip-and-fall (which occurred before
any

officer

touched

Plaintiff)

or

by

the

force

applied

to

Plaintiff’s cervical vertebrae and spinal cord by police kneeing
and/or stomping on the side of his neck.
There is a surveillance video of the events in question, and
Defendants contend that it clearly shows that Officer Defendants’
actions were reasonable under the circumstances. (See id. at 2022.) The Court has reviewed the surveillance video and finds that
it is of such low quality that it cannot be used to definitively
ascertain the amount of force that Officer Defendants used in
arresting Plaintiff Ingram. There are also a number of witnesses,
including Officer Defendants,
third

parties,

with

Plaintiff Dickerson and

conflicting

14

testimony.

It

certain

would

be

inappropriate at this time for the Court to determine the veracity
or credibility of these conflicting witnesses.
Under Graham, 490 U.S. 386, a plaintiff has the burden of
showing that the amount of force directed at him by an arresting
officer was constitutionally excessive. What is “excessive” is
determined

under

all

the

circumstances

then

confronting

the

arresting officer, considering the Graham factors, among others,
namely: “[1] the severity of the crime at issue, [2] whether the
suspect poses an immediate threat to the safety of the officers or
others,

and

[3]

whether

he

is

actively

resisting

arrest

or

attempting to evade arrest by flight.” Graham, 490 U.S. at 396.
The Third Circuit expounded upon the Graham factors in Sharrar v.
Felsing, 128 F.3d 810 (3d Cir. 1997), stating that
[o]ther
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.
Sharrar, 128 F.3d at 822.
In this case, taking the evidence in the light most favorable
to Plaintiff Ingram, the Graham factors do not indicate that deadly
force would have been reasonable under the circumstances, as

15

Plaintiff Ingram was arrested under false pretenses,7 he did not
have

a

weapon,

was

not

threatening

violence,

or

otherwise

constituting a threat to safety. Plaintiff Ingram was attempting
to flee, but in the absence of any other Graham factors, this alone
does not support the Officer Defendants’ use of deadly force
against Plaintiff Ingram’s neck as he lay on the ground. Likewise,
taking the evidence in the light most favorable to Plaintiff
Ingram, none of the Sharrar factors indicate that the degree of
force would have been reasonable under the circumstances, as there
is no evidence that Plaintiff Ingram was acting violently, there
is no evidence that there was insufficient time for

Officer

Defendants to have refrained from exerting deadly force against
Plaintiff Ingram’s neck or spine, Plaintiff Ingram was not armed
(although there is evidence he discarded a gun during the foot
chase, which Plaintiff disputes), nor is there evidence that
Officer

Defendants

were

outnumbered.

Therefore,

taking

the

evidence in the light most favorable to Plaintiff Ingram, the Court
finds that a reasonable officer would know that it would be
excessive to jump on a suspect who had fallen to the ground, punch

As highlighted at oral argument, Plaintiff Ingram has never been
convicted of or pled guilty to any crime resulting from the arrest
at issue, he maintains that all evidence against him was planted,
and that Officer Defendants had no probable cause to pursue or
arrest him. Count IX of Plaintiff Ingram’s Second Amended Complaint
[Docket Item 64] asserts a claim for false arrest, and no party
has yet sought summary judgment as to that claim.
7

16

and kick him, step on or knee his neck, and to lift and drop him
in spite of Plaintiff Ingram’s vocal cries that he lost feeling in
his extremities.
Plaintiff Ingram, as the party opposing summary judgment, is
entitled to the facts and reasonable inferences most favorable to
him. In Plaintiff Ingram’s best case, a reasonable jury could find
that he was pursued by police under false pretenses, that he never
threatened an officer, never displayed something like a weapon,
never advanced toward an officer, never touched an officer, never
assumed

a

fighting

posture,

that

after

his

fall

he

was

not

resisting whatsoever, that after his fall Officer Defendants beat
Plaintiff Ingram while he lay on the ground, that Plaintiff
Ingram’s neck injury was sustained by force applied by the Officer
Defendants, that he told Officer Defendants that he could not feel
his

legs

prior

to

Officer

Defendants

disregarding

Plaintiff

Ingram’s cries that he was in pain, could not breathe, and could
not feel his legs, and picking him up and dropping his limp body
causing him to fall onto his face. A reasonable jury could find
that Officer Defendants exercised a degree of force that was not
only improper but unconstitutionally excessive. Under this version
of the facts, a jury could reasonably find that this force was not
for the purpose of arresting Plaintiff Ingram, but rather for the
purpose of summarily punishing him. The Fourth Amendment permits
the use of force, sometimes even deadly force, to accomplish an

17

arrest

in

especially

aggravated

circumstances

presenting

demonstrable danger to the law enforcement officer or others. In
Plaintiff Ingram’s circumstances, looking at disputed evidence in
the light most favorable to him for the purposes of this motion,
a jury could reasonably find for Plaintiff. Therefore, Defendants’
motion shall be denied to the extent that it seeks summary judgment
with respect to the issue of excessive force.
B.

Deliberate Indifference to Serious Medical Needs of
Detainee

As noted, supra, Plaintiff claims that, whatever the causes
of his injuries were, Defendant Officers made them worse due to
deliberate indifference to his serious medical needs when the
seizure was complete and he was in their custody. Plaintiff does
not appear to allege that the officers failed to promptly seek
medical care, as the evidence shows that an ambulance was summoned
and arrived quickly. Plaintiff alleges, and the facts viewed in
the light most favorable to him, that the officers knew he was
unable to move and complained he had no feeling but nonetheless
moved him twice, for no medical reason, without support for his
neck, causing further injury.
Defendants Marchiafava, Gennetta, and Merck all assert that
they are entitled to summary judgment in their favor with respect
to Plaintiff Ingram’s claims for failure to render medical aid
under 42 U.S.C. § 1983. (See County Defs.’ Br. [Docket Item 143-

18

1], 27-28; Gennetta’s Br. [Docket Item 145-1], 34-35; Merck’s Br.
[Docket Item 144-1], 11.) Conversely, Plaintiff Ingram asserts
that he is entitled to summary judgment in his favor with respect
to his claims for failure to render medical aid under 42 U.S.C.
§ 1983. (See Ingram’s Br. [Docket Item 148], 19-33.) The parties
strongly dispute whether this claim falls under the Fourth or
Fourteenth Amendment. (See Ingram’s Br. [Docket Item 148], 21-33;
Gennetta’s Opp’n [Docket Item 159], 9; Merck’s Opp’n [Docket Item
160], 5-16; County Defs.’ Opp’n [Docket Item 164], 14-17.) The
Honorable Judge Irenas previously held that the Fourth Amendment’s
reasonableness standard applies when a plaintiff claims a failure
to render medical aid at the time of their arrest, while the
Fourteenth Amendment’s deliberate indifference standard applies
after arrest has been affected and the individual is considered a
pretrial detainee. Davis v. Twp. of Paulsboro, 421 F. Supp. 2d
835, 855 (D.N.J. 2006) (citing James v. York Cty. Police Dep’t,
160 F. App’x 126, 131 n.3 (3d Cir. 2005)).
In the present case, the moment of seizure is in dispute, and
therefore the Court cannot simply choose the appropriate test to
apply with regard to Plaintiff Ingram’s claim for failure to render
medical aid. “It is a question of fact precisely when, in each
case, the arrest took place.” Sibron v. New York, 392 U.S. 40, 67
(1968) (citing

Rios v. United States, 364 U.S. 253, 261-262

(1960)). Therefore, as this issue is currently in dispute, the

19

question of when Plaintiff Ingram was actually seized cannot be
decided in the context of the present motions, but rather must
wait for the jury to determine. If “seizure” pursuant to the arrest
was completed by subduing and handcuffing Plaintiff on the ground,
then this second phase of constitutional violation may be said to
have occurred post-seizure, that is, while in custody, and rights
of a pretrial detainee apply. See Natale, 318 F.3d at 581. On the
other hand, if he was not yet a “detainee” because seizure was not
yet complete, then this second phase of injurious contact occurred
pursuant to the arrest and would be analyzed as part of the
“excessive force” claim, as above.
In the version of events most favorable to Plaintiff Ingram,
as described, supra, his need for medical attention stemming from
a spinal injury became apparent to the Officer Defendants prior to
or during the course of arrest, as a result of Plaintiff Ingram
having loudly stated that he could not feel his legs, and rather
than rendering immediate medical aid, the Officer Defendants, all
of

whom

are

trained

first

responders,

proceeded

to

pick

up

Plaintiff Ingram, drop him on his face, pick him up again, and
then finally call for an ambulance. In this version of events,
Officer

Defendants

knew

or

should

have

known

that

a

person

suffering from a spinal injury should not be moved whatsoever, and
rather should be stabilized in place, prior to the arrival of
paramedics. A reasonable jury could find these facts and, were

20

they to do so, they could also reasonably find in favor of
Plaintiff

Ingram

with

respect

to

this

claim.

Therefore,

Defendants’ motions must be denied with respect to this claim.
Likewise,
Defendants,

in

the

the

version

Officer

of

Defendants

events
did

most

not

favorable

become

aware

to
of

Plaintiff Ingram’s medical need until after he was seized. Officer
Defendants,

still

unaware

of

Plaintiff

Ingram’s

neck

injury,

attempted to get Plaintiff Ingram to stand in order to escort him
to a patrol car. Once aware that Plaintiff Ingram’s reason for not
standing was an injury to his neck, Officer Defendants immediately
stabilized Plaintiff Ingram in place and requested an ambulance.
A reasonable jury could find these facts and, were they to do so,
they could also reasonably find in favor of Defendants with respect
to this claim. Therefore, Plaintiff’s motion for summary judgment
must be denied.
C. Municipal liability.
County Defendants also contend that they are entitled to
summary judgment in favor of Defendants County of Camden, Camden
County Police Department, John Scott Thomson, and Orlando Cuevas
as

to

Counts

IV

and

V

of

Plaintiff

Ingram’s

Second

Amended

Complaint [Docket Item 64], seeking damages under 42 U.S.C. § 1983
for inadequate policies, procedures, and customs (Count IV) and

21

for inadequate training and supervision (Count V).8 (See County
Defs.’ Br. [Docket Item 143-1], 28-30.) Plaintiff has confirmed
that his Monell claims arise only with respect to the excessive
use of force by the arresting officers, and not the claim of
deliberate

indifference

to

a

serious

medical

need.

County

Defendants assert that these claims for municipal and supervisory
liability are barred because County Defendants’ expert, Mr. Ryan,
opines

that

Camden

County

Police

Department’s

training

and

policies meet all applicable standards and Defendant Shockley
received such training and supervision.9 (See id. at 29.) County

Additionally, County Defendants contend that they are entitled
to summary judgment in favor of Defendants County of Camden and
Camden County Police Department with respect to Counts I, II, and
III of Plaintiff Ingram’s Second Amended Complaint [Docket Item
64], because they each appear to seek damages under 42 U.S.C.
§ 1983 from these two defendants on a theory of respondeat
superior. County Defendants rightly assert that public entities
are not subject to § 1983 liability by way of respondeat superior,
rather such liability can only be brought by way of a Monell claim,
as in Counts IV and V of Plaintiff Ingram’s Second Amended
Complaint [Docket Item 64]. (See County Defs.’ Br. [Docket Item
143-1], 28 n.14. (citing Monell v. Department of Social Services,
436 U.S. 658, 691 (1978); Fagan v. City of Vineland, 22 F.3d 1283,
1291 (3d Cir. 1994)).) Plaintiff Ingram does not appear to oppose
this request. (See generally Pl.’s Opp’n [Docket Item 170].) The
Court finds that public entities are not liable for § 1983
violations by way of a respondeat superior theory, and therefore
County Defendants’ motion shall be granted to this extent.
8

County Defendants additionally contend that they are entitled to
summary judgment as to these issues because there is no underlying
liability against the Officer Defendants for excessive force, and
therefore there can be no municipal or supervisory liability
against Defendants County of Camden, Camden County Police
Department, John Scott Thomson, and Orlando Cuevas. (See Defs.’ Br
[Docket Item 143-1], 28-29; County Defs.’ Reply [Docket Item 183],
9

22

Defendants further assert that the Court should disregard the
opinions and testimony of Plaintiff Ingram’s expert, Dr. Chapman,
and filed a motion to strike same. (See id. at 29-30.) That motion
has

been

addressed

in

part,

but

approximately

48

additional

objections by Defendant need to be resolved to ascertain Daubert
admissibility. [Docket Item 229.]
Plaintiff Ingram contends that there exists a genuine dispute
of material fact with respect to his claims for municipal and
supervisory liability on the part of Defendants County of Camden,
Camden County Police Department, John Scott Thomson, and Orlando
Cuevas. (See Pl.’s Opp’n [Docket Item 170], 20-38.) Plaintiff
Dickerson relies heavily on the expert report prepared by Dr.
Chapman

and

asserts

that

County

Defendants

employ

inadequate

investigatory practices, that they ignore citizens’ complaints of
excessive force, that they have ignored prior incidents of officers
inappropriately using force against an arrestee’s neck, that they
failed to properly implement their “early warning” system with
respect to Defendant Merck, that they failed to properly supervise
and monitor officers’ use of force, that they failed to properly

1-3.) However, as the Court shall not grant summary judgment in
Officer Defendants’ favor as to their liability for the alleged
use of excessive force, as explained, supra, the question of
Officer Defendants’ liability is still to be determined and the
Court need not address this argument at this time.
23

train their officers, and that they had a policy and custom of
sanctioning officer misconduct. (See id.)
County Defendants assert that all Monell claims should be
dismissed,

because

Camden

County

Police

Department

is

in

compliance with all guidelines and policies with regard to the use
of force. (See County Defs.’ Br. [Docket Item 143-1], 29; County
Defs.’

Reply

[Docket

Item

183],

6-7,

11.)

Further,

County

Defendants assert that Plaintiff Ingram’s claim under a failure to
investigate theory must be dismissed, because Officer Defendants
had too few prior complaints of excessive force to put County
Defendants on notice regarding a potential problem, (see County
Defs.’ Reply [Docket Item 183], 4), and Dr. Chapman’s criticisms
of Camden County Police Department’s “early warning” and internal
affairs systems are overstated. (See id. at 5-9.) County Defendants
also assert that Plaintiff Ingram’s claim under a failure to train
theory must be dismissed, because Plaintiff Ingram has failed to
show a pattern of violations by untrained officers. (See id. at
10-11.) As noted, supra, County Defendants’ motion to strike the
opinion and testimony of Dr. Chapman is still pending in part,10
and there remains substantial disagreement between the parties as

An Order clarifying the status of the many dozens of objections
to Chapman’s expert opinions and the pared-down list of some 48
objections remaining in dispute was entered earlier at [Docket
Item 229], today.
10

24

to admissibility of Dr. Chapman’s opinion and testimony regarding
Monell issues. Therefore, the Court shall reserve judgment as to
this portion of County Defendants’ motion, until such time as the
remaining disagreements with respect to Dr. Chapman’s opinion and
testimony regarding Monell issues have been resolved.
D. New Jersey’s Statutory Pursuit Immunity.
Defendants also assert that they are entitled to summary
judgment with respect to Plaintiff Ingram’s claims under New Jersey
state law, because they are immune from suit as to these issues as
a result of New Jersey’s statutory “pursuit immunity,” codified at
N.J. STAT. ANN. § 59:5-2.11 (County Defs.’ Br. [Docket Item 143-1],
28 n.13; Merck’s Br. [Docket Item 144-1], 5-6; Gennetta’s Br.
[Docket Item 145-1], 36.) Plaintiff Ingram opposes this portion of

N.J. STAT. ANN. § 59:5-2 states:
Neither a public entity nor a public employee is
liable for:
a. An injury resulting from the parole or
release of a prisoner or from the terms
and conditions of his parole or release or
from the revocation of his parole or
release;
b. any injury caused by:
(1) an escaping or escaped prisoner;
(2) an escaping or escaped person;
(3) a person resisting arrest or evading
arrest;
(4) a prisoner to any other prisoner; or
c. any injury resulting from or caused by a
law enforcement officer’s pursuit of a
person.
N.J. STAT. ANN. § 59:5-2.
11

25

Defendants’

motions,

asserting

that

New

Jersey’s

“pursuit

immunity” statute does not immunize police officers from injuries
caused by the pursuing police alone, (see Pl.’s Opp’n [Docket Item
170], 19-20 (citing Tice v. Cramer, 133 N.J. 347, 371 (1993)), and
that the immunity statute is also inapplicable where the officers’
use of force is greater than or equal to willful misconduct. (Id.
at

20

(citing

substantively

N.J.

STAT.

responded

to

ANN.

§ 59:3-14).)12

Plaintiff

Ingram’s

No

Defendant

position

with

respect to Tice, 133 N.J. 347, or N.J. STAT. ANN. § 59:3-14 in their
reply briefs. Pursuit immunity was mentioned in reply briefs filed
by Defendant Marchiafava, (see Marchiafava Reply [Docket Item
184], 11), and by Defendant Gennetta, (see Gennetta Reply [Docket
Item 194], 10), but these briefs only state that pursuit immunity
should apply for the same reasons that were stated in the original
moving briefs; neither reply attempts to rebut Plaintiff Ingram’s
arguments with respect to Tice, 133 N.J. 347, or N.J. STAT. ANN.
§ 59:3-14.13

N.J. STAT. ANN. § 59:3-14 states, in relevant part:
a. Nothing in this act shall exonerate a
public employee from liability if it is
established that his conduct was outside the
scope of his employment or constituted a
crime, actual fraud, actual malice or willful
misconduct.
N.J. STAT. ANN. § 59:3-14.
13 The reply briefs filed by Defendant Marchiafava and Defendant
Gennetta also claim that they are entitled to summary judgment in
their favor based on New Jersey’s state qualified immunity
doctrine. (See Marchiafava Reply [Docket Item 184], 11; Gennetta
12

26

The Court first notes that Plaintiff is not claiming that he
suffered injury during the foot chase itself including his slipand-fall, but rather that the “pursuit” continued as the officers
jumped on him after the fall until he was seized. Nonetheless, the
Court finds that N.J. STAT. ANN. § 59:3-14 permits plaintiffs to
recover for state law claims against police officers in pursuit of
a person evading arrest, where the officers’ actions rise to or
above the level of willful misconduct. The Court further finds
that, in the version of events most favorable to Plaintiff Ingram,
as described, supra, a reasonable jury could find that Defendant
Officers’

treatment

of

Plaintiff

Ingram

constituted

willful

misconduct. The Court further finds that, in the version of events
most

favorable

to

Plaintiff

Ingram,

as

described,

supra,

a

reasonable jury could find that Plaintiff Ingram’s injuries were
sustained after he fell but before the pursuit ended with his
violent seizure. Therefore, this portion of Defendants’ motions
for summary judgment will be denied.
E. Supervisory Liability.
Defendant Merck asserts that he is entitled to judgment as a
matter of law with regard to Plaintiff Ingram’s allegations of

Reply [Docket Item 194], 10.) However, this argument was not raised
in any party’s initial moving brief and it is inappropriate for a
party to raise a legal argument for the first time in a reply
brief. Therefore, the Court shall not address this issue at this
time.
27

supervisory

liability

against

him

contained

in

Count

III

of

Plaintiff Ingram’s Second Amended Complaint [Docket Item 64]. (See
Merck’s Br. [Docket Item 144-1], 8-11.) Defendant Merck asserts
that Plaintiff Ingram is unable to satisfy the three requirements
to sustain such a claim: (1) Plaintiff Ingram’s constitutional
rights

were

violated,14

(2)

Defendant

Merck

participated

or

directed others to violate Plaintiff Ingram’s rights, and (3)
Defendant

Merck

knew

of

and

acquiesced

in

his

subordinates’

violation of Plaintiff Ingram’s rights. (See id.)
Defendant Merck argues that Plaintiff Ingram cannot establish
that Defendant Merck participated in, directed, or had knowledge
of and acquiesced in his subordinates’ alleged violations of
Plaintiff Ingram’s constitutional rights. (Id. at 10.) Defendant
Merck asserts that the alleged violation of rights took place prior
to his arrival on the scene, that Defendant Merck arrived after
Plaintiff Ingram was handcuffed, and that there is no evidence
that any excessive force was used after Defendant Merck arrived.
(Id. at 10-11.)

While Defendant Merck claims that Plaintiff Ingram cannot show
that he suffered a violation of his constitutional rights, (see
Merck’s Br. [Docket Item 144-1], 9-10), as the Court has already
held, supra, that Plaintiff Ingram is able to show at a minimum
genuine disputes of material fact as to whether he suffered a
violation of his constitutional rights, sufficient to survive a
motion for summary judgment, the Court shall not address this
portion of Defendant Merck’s argument, or Plaintiff Ingram’s
response thereto, at this time.
14

28

Plaintiff Ingram opposes Defendant Merck’s request, asserting
that Defendant Merck was present at the scene when Plaintiff Ingram
sustained his catastrophic injury and was subsequently moved. (See
Pl.’s Opp’n [Docket Item 170], 3-5.) In the version of events most
favorable to Plaintiff Ingram, as described, supra, a reasonable
jury could find that Defendant Merck was present on the scene and
participated in causing Plaintiff Ingram’s injuries and acquiesced
to his subordinates’ (i.e. Marchiafava’s and Gennetta’s) actions
which

violated

Plaintiff

Ingram’s

constitutional

rights.

Therefore, the Court shall deny Defendant Merck’s motion insofar
as it seeks summary judgment as to Plaintiff Ingram’s claim against
him for supervisory liability.
IV.

Conclusion.

For the reasons stated above, Defendants County of Camden,
Camden County Police Department, Chief John Scott Thomson, Orlando
Cuevas, and Nicholas Marchiafava’s motion for summary judgment,
[Docket Item 143], will be granted in part and denied in part. The
motion is granted with respect to all claims against Defendant
Cuevas and with respect to Defendants County of Camden and Camden
County Police Department as to Counts I, II, and III. County
Defendants’ arguments with respect to Plaintiff Ingram’s Monell
claims

will

be

addressed

after

the

outstanding

disagreements

regarding Dr. Chapman’s opinion and testimony have been resolved.
Defendant Jeremy Merck’s motion for summary judgment, [Docket Item

29

144], Defendant Antonio Gennetta’s motion for summary judgment,
[Docket Item 145], and Plaintiff Ingram’s motion for summary
judgment, [Docket Item 146], will be denied. An accompanying Order
shall be entered.

March 29, 2019
Date

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

30