NORMAN v. HADDON TOWNSHIP et al
OPINION. Signed by Judge Noel L. Hillman on 6/29/2017. (tf, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Prosequendum of the ESTATE of
SHERRON J. NORMAN, Deceased,
HADDON TOWNSHIP, HADDON
TOWNSHIP POLICE CHIEF MARK
CAVALLO, BOROUGH OF OAKLYN,
OAKLYN POLICE CHIEF JOSEPH T.
ABBATE, WOODLYNNE BOROUGH,
WOODLYNNE POLICE DIRECTOR
EDWIN FIGUEROA, BOROUGH OF
POLICE CHIEF RICHARD J.
SARLO, CITY OF CAMDEN,
POLICE CHIEF JOHN
SCOTT THOMSON, and OFFICERS
WILLIAM BENHAM, JOSEPH
SULLIVAN, SCOTT DEMPSEY,
CHARLES BLANCHARD, PAUL
MASON, JOHN ROBINSON, BRIAN
DICUGNO, JON SIEROCINSKI,
YVETTE TRUITT, HERIBERTO
INOSTROZA and JAMES ALLEN,
individually and/or in their
official capacities, jointly,
severally, and/or in
SHARON A. KING
STANLEY O. KING
KING & KING, ESQS.
231 SOUTH BROAD STREET
WOODBURY, NJ 08096
On behalf of Plaintiff
FRANCIS X. DONNELLY
ROBERT J. GILLISPIE, JR.
MAYFIELD, TURNER, O’MARA, DONNELLY & MCBRIDE, PC
2201 ROUTE 38
CHERRY HILL, NJ 08002
On behalf of Defendants Haddon Township, Mark Cavallo,
William Benham, Joseph Sullivan, Scott Dempsey, Charles
WILLIAM F. COOK
WILLIAM M. TAMBUSSI
CHRISTOPHER ALBERT REESE
BROWN & CONNERY, LLP
360 HADDON AVENUE
PO BOX 539
WESTMONT, NJ 08108
On behalf of Defendants Borough of Collingswood, Chief
Richard J. Sarlo, Brian Dicugno, and Jon Sierocinski,
Borough of Oaklyn, Chief Joseph T. Abate, and Paul Mason,
and Borough of Woodlynne, Police Director Edwin Figueroa,
and Jon Robinson
DANIEL EDWARD RYBECK
JOHN C. EASTLACK, JR.
WEIR & PARTNERS LLP
215 FRIES MILL ROAD
TURNERSVILLE, NJ 08012
On behalf of Defendants City of Camden, Police Chief John
Scott Thomson, Yvette Truitt, Heriberto Inostroza and James
HILLMAN, District Judge
This case involves claims of excessive force, false arrest,
failure to intervene, and other state law torts by various
police officers, and claims of municipal liability against four
municipalities for their practices and customs, all of which led
to the death of Plaintiff’s brother.
Presently before the Court
are the motions of Defendants for summary judgment in their
For the reasons expressed below, Defendants’ motions
will be granted as to the Collingswood, Oaklyn, Woodlynne, and
Camden defendants, as well as Haddon Township police officers
Charles Blanchard and Scott Dempsey, and denied without
prejudice as to Haddon Township, Mark Cavallo, William Benham,
and Joseph Sullivan.
At 12:41 a.m. on September 29, 2012, an employee of Crown
Fried Chicken located at the intersection of Mount Ephraim
Avenue and Collings Avenue in Haddon Township, New Jersey called
911 to report that a male was causing a disturbance in the
According to the 911 call, the employee repeatedly
asked dispatch to send police “quickly” because the man was
breaking things in the store, including a machine and a door.
man is heard yelling loudly in the background.
At 12:43 a.m.,
the man, who was subsequently identified as Sherron Norman, the
brother of Plaintiff Juanita Norman, left Crown Fried Chicken
and walked out and onto the street. 1
The security camera footage of the events inside Crown Fried
Chicken reveals that Norman did not purchase anything from the
Crown Fried Chicken, slammed the counter on several occasions
without any apparent provocation, pulled his pants down and
walked around the store with his pants around his ankles,
allowing contents to spill out, slammed a cash register with his
Camden County Central Communications dispatched Defendant
William Benham, a Haddon Township police officer, and Defendant
Joseph Sullivan, a Haddon Township special law enforcement
The police dispatch stated that there was a “psych
emergency,” and per Haddon Township protocol, an ambulance was
dispatched at the same time.
At the time of his dispatch, Benham’s dash camera was
Benham arrived on scene at approximately 12:44 or
12:45 a.m. (recorded as “00:44:40”) 2 and immediately encountered
Norman, who was jogging toward Benham’s vehicle wearing only a
t-shirt and boxer shorts.
The dash camera was facing Crown
Fried Chicken, and the remainder of the footage captures only
the off-camera sounds of Benham’s and other officers’
interactions with Norman.
At 00:44:42, Benham exited his vehicle and asked, “What’s
From 00:44:42 to 00:46:40, Norman and Benham have an
inaudible discussion, and then a struggle.
Sullivan arrived on
right hand, causing a part of the register to fall to the floor,
slammed a cash register twice with his left hand, broke a door,
violently shoved an unidentified bystander after the bystander
tried to assist in removing Norman from the store, and made
continuous, unintelligible yelling noises throughout the
For ease of reference, we will refer infra to the time as
recorded by the dash camera.
the scene during the struggle, finding Norman lying on his
stomach and Benham on his knees.
At this same time, Benham
radioed for police assistance using code 10-26. 3
Benham handcuff Norman, and after one of the officers says
“Ready?”, they lifted him into the patrol car chest first on the
back seat and then picked up his legs and slid him into the car.
From approximately 00:46:47 to 00:47:28, Norman can be
heard as he is placed in the rear of Benham’s vehicle.
can be heard advising Benham on how to adjust Norman in the rear
of the vehicle.
The officers then closed the car door, with
Norman lying on his stomach with his head facing the back seat.
From 00:47:28 to approximately 00:48:18, Norman can be
heard muttering, kicking a door, and at 00:48:08 yelling.
Starting at approximately 00:48:18, Norman is quiet in the back
of the vehicle.
During this time, additional officers from
other jurisdictions respond to Benham’s 10-26 request for
At 00:49:30, Collingswood EMTs Timothy Tredanari and John
Fleming, who were dispatched at the same time as Benham, are
shown walking towards the driver’s side of Benham’s vehicle.
At 00:50:17, Defendant Haddon Township Officer Scott Dempsey is
10-26 is the radio code for assistance with detaining a
heard opening the door to Benham’s vehicle and saying “Yo!” on
multiple occasions in an apparent attempt to get Norman’s
At 00:50:43, Dempsey states, “I got nothing . . . I
got no pulse.”
At 00:50:49, Dempsey states, “Yo!” again.
00:50:57, Dempsey states to Defendant Woodlynne Officer
Robinson, “See if you can feel it on his arm. Do you feel a
pulse on his arm?”
At 00:51:03, Robinson states, “That’s a
An individual states, “I got no pulse,” after which
Norman is removed from the vehicle.
Officers are heard ordering
removal of handcuffs and initiating CPR.
At 00:56:47, EMTs
Tredanari and Fleming are observed wheeling Norman from the
scene on a stretcher towards an ambulance.
EMTs Tredanari and Fleming immediately initiated basic life
support, while Benham dispatched Virtua EMTs.
quickly arrived and transported Norman to Our Lady of Lourdes
Hospital in Camden, New Jersey by ambulance, as Tredanari
continued to provide CPR in the ambulance.
Norman could not be
revived by medical personnel, and was pronounced dead at 1:35
a.m. at the hospital.
It is undisputed that Norman had used
cocaine just before going to Crown Fried Chicken. 4
The state medical examiner who performed an autopsy on Norman
concluded that Norman’s final cause of death was “toxic effect
of cocaine,” and declared the death to be an “accident.”
Plaintiff’s expert also performed an autopsy, and he concluded
Plaintiff, as administratrix ad prosequendum of Norman’s
estate, has lodged numerous claims pursuant to 42 U.S.C. § 1983,
the New Jersey Civil Rights Act, New Jersey’s Wrongful Death Act
and the New Jersey Survivorship Statute, against all the
officers and municipalities that were involved in the events on
September 29, 2012.
Plaintiff’s original complaint brought the action against
Haddon Township, its police chief, Mark Cavallo, its police
officers William Benham, Joseph Sullivan, Scott Dempsey, and
Charles Blanchard (“Haddon Township defendants”); the Borough of
Oaklyn, its police chief Joseph T. Abate, and its police officer
Paul Mason (“Oaklyn defendants”); Woodlynne Borough, its police
chief, Kevin R. Cattell, and its police officer John Robinson
(“Woodlynne defendants”); the Borough of Collingswood, its
police chief, Richard J. Sarlo, and police officers Brian
Dicugno and Jon Sierocinski (“Collingswood defendants”); and the
City of Camden and its police chief John Scott Thomson (“Camden
As to defendants William Benham and Joseph Sullivan, she
alleged excessive use of force and false arrest/false
that Norman’s cause of death was “asphyxia and cardiopulmonary
arrest during restraint for bizarre behavior,” and declared the
death to be a “homicide.” As discussed below, a jury must
resolve this factual dispute.
imprisonment in violation of the Fourth Amendment.
As to all
defendants, she alleged failure to intervene to prevent the
excessive use of force in violation of the Fourth Amendment and
failure to provide medical attention by monitoring the decedent
in violation of the Fourteenth Amendment.
As to Haddon Township, Chief Cavallo, Borough of Oaklyn,
Chief Abate, Woodlynne Borough, Chief Cattell, Borough of
Collingswood, Chief Sarlo, City of Camden and Chief Thomson, she
alleged that these defendants adopted policies and customs of
failing to enforce the laws, and failing to supervise and train
their officers in the proper and lawful use of force, the
execution of lawful arrests, the proper use of restraints and
the provision of medical care for detainees.
She also alleged
that these municipal entities and their police chiefs failed to
properly investigate known incidents of use of force.
further alleged that all defendants violated the New Jersey
Civil Rights Act.
She also alleged common law claims of assault
and battery as to Defendants Benham, Sullivan, and Haddon
Township and Chief Cavallo; false arrest/false imprisonment as
to Defendants Benham, Sullivan, Truitt, Haddon Township, Chief
Cavallo, City of Camden and Chief Thomson; and negligence and
gross negligence as to all defendants.
On October 1, 2015, Plaintiff filed a First Amended
Complaint, where she substituted Camden police officers, Yvette
Truitt, Heriberto Inostroza and James Allen for John Doe
defendants 1 through 3, substituted Woodlynne Police Chief Kevin
R. Cattell with Police Director Edwin Figueroa.
All the Defendants have moved for summary judgment in their
favor on all of Plaintiff’s claims.
Plaintiff has opposed
defendants’ motions in all respects.
Plaintiff has brought her claims pursuant to 42 U.S.C. §
1983 and New Jersey state law.
This Court has jurisdiction over
Plaintiff’s federal claims under 28 U.S.C. § 1331, and
supplemental jurisdiction of Plaintiff’s state law claims under
28 U.S.C. § 1367.
Summary Judgment Standard
Summary judgment is appropriate where the Court is satisfied
that the materials in the record, including depositions,
documents, electronically stored information, affidavits or
declarations, stipulations, admissions, or interrogatory answers,
demonstrate that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of
Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986); Fed. R.
Civ. P. 56(a).
An issue is “genuine” if it is supported by evidence such
that a reasonable jury could return a verdict in the nonmoving
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
A fact is “material” if, under the governing
substantive law, a dispute about the fact might affect the
outcome of the suit.
In considering a motion for summary
judgment, a district court may not make credibility
determinations or engage in any weighing of the evidence;
instead, the non-moving party's evidence “is to be believed and
all justifiable inferences are to be drawn in his favor.”
Marino v. Industrial Crating Co., 358 F.3d 241, 247 (3d Cir.
2004)(quoting Anderson, 477 U.S. at 255).
Initially, the moving party has the burden of demonstrating
the absence of a genuine issue of material fact.
v. Catrett, 477 U.S. 317, 323 (1986).
Once the moving party has
met this burden, the nonmoving party must identify, by
affidavits or otherwise, specific facts showing that there is a
genuine issue for trial.
Thus, to withstand a properly
supported motion for summary judgment, the nonmoving party must
identify specific facts and affirmative evidence that contradict
those offered by the moving party.
Anderson, 477 U.S. at 256-
A party opposing summary judgment must do more than just
rest upon mere allegations, general denials, or vague
Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir.
Plaintiff’s § 1983 claims
Section 1983 is not a source of substantive rights, but
provides a vehicle for vindicating the violation of other
Graham v. Connor, 490 U.S. 386, 393-94 (1989).
Section 1983 provides in relevant part:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
or Territory . . . 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
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 for relief under § 1983, a
plaintiff must allege the violation of a right secured by the
Constitution or laws of the United States, and that the alleged
deprivation was committed or caused by a person acting under
color of state law.
West v. Atkins, 487 U.S. 42, 48 (1988);
Piecknick v. Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir. 1994).
For Plaintiff’s claims against the individual defendants
acting in their personal capacity, the qualified immunity
doctrine governs the analysis.
“Qualified immunity shields
government officials from civil damages liability unless the
official violated a statutory or constitutional right that was
clearly established at the time of the challenged conduct.”
Reichle v. Howards, 566 U.S. 658, 132 S. Ct. 2088, 2093 (2012).
In order to determine whether a government official is entitled
to qualified immunity, two questions are to be asked: (1) has
the plaintiff alleged or shown a violation of a constitutional
right, and (2) is the right at issue “clearly established” at
the time of the defendant's alleged misconduct?
Callahan, 555 U.S. 223, 236 (2009).
Courts are “permitted to
exercise their sound discretion in deciding which of the two
prongs of the qualified immunity analysis should be addressed
It is the defendant's burden to establish
entitlement to qualified immunity.
Kopec v. Tate, 361 F.3d 772
(3d Cir. 2004).
Plaintiff’s excessive force, failure to
intervene, and failure to provide medical
attention claims against the
individual officers 5
Because the New Jersey Civil Rights Act was modeled after 42
U.S.C. § 1983, and creates a private cause of action for
violations of civil rights secured under either the United
States or New Jersey Constitutions, the NJCRA is interpreted
In determining whether excessive force was used in
effecting an arrest, the Fourth Amendment's “objective
reasonableness” test is applied.
Sharrar v. Felsing, 128 F.3d
810, 820–21 (3d Cir. 1997) (citing Graham v. Connor, 490 U.S.
386, 396 (1989)).
The objective reasonableness test “requires
careful attention to the facts and circumstances of each
particular case, including the severity of the crime at issue,
whether the suspect poses an immediate threat to the safety of
the officers or others, and whether he is actively resisting
arrest or attempting to evade arrest by flight.”
on Graham, 490 U.S. at 396; Groman v. Township of Manalapan, 47
F.3d 628, 634 (3d Cir. 1995)).
“Other 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
analogously to § 1983. See Pettit v. New Jersey, 2011 WL
1325614, at *3 (D.N.J. 2011). Thus, Plaintiff’s NJCRA violation
claims will proceed or fail for the same reasons as Plaintiff’s
§ 1983 claims.
“‘Courts have held that a police officer has a duty to take
reasonable steps to protect a victim from another officer's use
of excessive force, even if the excessive force is employed by a
Peterson v. Holmes, 2017 WL 1653949, at *8 (D.N.J.
May 2, 2017) (quoting Smith v. Mensinger, 293 F.3d 641, 650 (3d
A police officer is liable for failure to
intervene under § 1983 if the plaintiff demonstrates that: (1)
the officer had reason to know that excessive force was being
used; and (2) the officer had a realistic opportunity to
Id. (citing Smith, 293 F.3d at 650).
For Plaintiff’s claim that Defendants were deliberately
indifferent to Norman’s serious medical need by not monitoring
his condition while in the police vehicle, the Eighth Amendment
Cruel and Unusual Punishments Clause does not apply until an
inmate has been both convicted of and sentenced for his crimes.
Instead, a detainee, such as Norman, can bring a deliberate
indifference claim against a state actor pursuant to the
Bistrian v. Levi, 696 F.3d 352, 367 (3d
Although a detainee may be entitled to greater
protection than a convicted inmate, “it is well established
that, under the Constitution's guarantees of due process, an
unsentenced inmate is entitled, at a minimum, to no less
protection than a sentenced inmate is entitled to under the
Id. (citation, quotation marks and
alterations omitted); see also Groman v. Township of Manalapan,
47 F.3d 628, 637 (3d Cir. 1995) (“Failure to provide medical
care to a person in custody can rise to the level of a
constitutional violation under § 1983 only if that failure rises
to the level of deliberate indifference to that person's serious
medical needs.”); Del Tufo v. Township of Old Bridge, 685 A.2d
1267, 1272 (N.J. 1996) (“The police's duty of care to an
arrestee requires the exercise of reasonable care to preserve
the life, health, and safety of the person in custody.”).
Thus, in assessing Plaintiff’s deliberate indifference
claim in this case, the Court will apply the standard used for
assessing an inmate’s deliberate indifference claim:
For the delay or denial of medical care to rise to a
violation of the Eighth Amendment's prohibition against
cruel and unusual punishment, a prisoner must demonstrate
“(1) that defendants were deliberately indifferent to [his]
medical needs and (2) that those needs were serious.”
Rouse v. Plaintier, 182 F.3d 192, 197 (3d Cir. 1999).
Deliberate indifference requires proof that the official
“knows of and disregards an excessive risk to inmate health
or safety.” Natale v. Camden Cnty. Corr. Facility, 318
F.3d 575, 582 (3d Cir. 2003) (quoting Farmer v. Brennan,
511 U.S. 825, 837 (1994)). We have found deliberate
indifference where a prison official: “(1) knows of a
prisoner's need for medical treatment but intentionally
refuses to provide it; (2) delays necessary medical
treatment based on a nonmedical reason; or (3) prevents a
prisoner from receiving needed or recommended treatment.”
Rouse, 182 F.3d at 197. Deference is given to prison
medical authorities in the diagnosis and treatment of
patients, and courts “disavow any attempt to second-guess
the propriety or adequacy of a particular course of
treatment ... (which) remains a question of sound
professional judgment.” Inmates of Allegheny Cnty. Jail v.
Pierce, 612 F.2d 754, 762 (3d Cir. 1979) (quoting Bowring
v. Godwin, 551 F.2d 44, 48 (4th Cir. 1977)). Allegations
of negligent treatment or medical malpractice do not
trigger constitutional protections. Estelle v. Gamble, 429
U.S. 97, 105–06(1976).
Pierce v. Pitkins, 520 F. App'x 64, 66 (3d Cir. 2013); see also
Mantz v. Chain, 239 F. Supp. 2d 486, 504 (D.N.J. 2002) (internal
quotation marks omitted) (“This standard is in effect a twopronged test requiring that plaintiff prove: (1) that his
medical needs were objectively serious and (2) that defendant
exhibited deliberate indifference to those needs.”).
Even though the determination of whether an officer acted
objectively reasonably or made a reasonable mistake of law, and
is thus entitled to qualified immunity, is a question of law
that is properly answered by the court, not a jury, the Third
Circuit has recognized that a judge should not decide the
objective reasonableness issue until all the material historical
facts are no longer in dispute.
211, 211 n.12 (3d Cir. 2007).
Curley v. Klem, 499 F.3d 199,
To do this, “[a] judge may use
special jury interrogatories, for instance, to permit the jury
to resolve the disputed facts upon which the court can then
determine, as a matter of law, the ultimate question of
In other words, “[w]hen the ultimate
question of the objective reasonableness of an officer's
behavior involves tightly intertwined issues of fact and law, it
may be permissible to utilize a jury in an advisory capacity,
but responsibility for answering that ultimate question
remains with the court.”
In this case, the Court must deny summary judgment and
employ the special interrogatory procedure for the jury to
resolve the disputed facts regarding Plaintiff’s excessive force
and failure to monitor claims as to Defendants Benham and
After the Court’s review of all the evidence in the
record, it is clear that Plaintiff has set forth sufficient
disputed material facts to send to a jury as to these two
officers’ use of force in effecting Norman’s seizure, and his
resulting condition in the car.
It is also clear that all of
the other officer Defendants are entitled to qualified immunity
on Plaintiff’s excessive force, failure to intervene, and
failure to monitor claims.
Benham and Sullivan
First, with regard to Benham and Sullivan, a jury must
determine what occurred during the time Benham stepped out of
his vehicle and Norman’s transport to the hospital.
claims that Norman appeared in a zombie-like state and there was
no doubt that Norman was under the influence.
When Benham asked
Norman, “What’s going on?,” Benham claims that Norman responded
with grunting, growling, and groaning.
Benham states that
Norman then came after him, swinging his arms and then slammed
him into the side of the patrol car.
Benham states that he
began to wrestle with Norman, and after they fell to the ground,
he attempted to hold him while broadcasting a call for
Sullivan arrived on the scene at this time, and he
states that he knelt on the back of Norman’s legs to prevent him
Benham claims that Norman bit him on the right
hand, and he struck Norman three or four times in an effort to
get Norman to release his bite.
Sullivan states that he also
struck Norman in the lower back with closed fists in an effort
to get Norman to release his bite on Benham.
assisted Benham in placing handcuffs on Norman.
While the officers were trying to put Norman into the back
of the patrol car, Benham states that Norman bit him again on
the right knee.
They placed Norman in the vehicle, stomach
down, and at that time the officers claim that Norman was out of
control and trying to kick the windows of the patrol car.
Benham states that he did not think Norman was kicking because
he was having difficulty breathing since the seats were hard
plastic and rigid.
For about one minute while Norman was in the
backseat, he kicked, muttered, and yelled.
During this time,
Benham informed Defendant Sergeant Blanchard that Norman had
bitten him twice, and he then went into Crown Fried Chicken to
obtain information from the employees and witnesses as to what
had occurred inside the restaurant.
Plaintiff’s asserts that what is observed and heard from
the dash camera footage conflicts with Benham’s and Sullivan’s
Plaintiff contends that at the time Benham arrives
there were no cuts or bruises to Norman’s face, and he does not
appear to be making noises or talking.
Plaintiff argues that
the patrol car vibrates contemporaneously with Norman’s scream,
suggesting that Norman, and not Benham, was slammed against the
car and hollered in response to the impact.
argues that the sounds on the video are evidence Benham struck
Norman, and Norman wailed in response.
Plaintiff also contends
that based on the location of the bite and Benham’s description
of how he was lying on top of Norman’s back with Benham’s arms
under Norman’s head/neck area, it is evident that Benham was
Plaintiff states that Benham agrees that Norman
did not punch, kick or otherwise strike any officer.
Plaintiff argues that when Sullivan arrived and also
punched Norman, he and Benham dragged Norman while handcuffed
into the car, which is evidenced by fresh bruising and scrapes
on his knees in the autopsy report.
Plaintiff states that the
process of placing Norman in the back seat lasted approximately
40 seconds, and that during the 40 seconds Benham and Sullivan
were positioning Norman in the back seat, there is no evidence
of the officers instructing Norman to sit up or any evidence
that Norman resisted attempts to sit him up.
Plaintiff also argues that Benham’s conflicting statements
to the Camden County Prosecutor’s Office and in his deposition
casts doubt on Benham’s account of what occurred.
further argues that the disparity in physical size between
Benham (6’5”, 270-280 lbs.), Sullivan (5’11”, 165-170 lbs.), and
Norman (5’8”, 196 lbs.) evidences the severity of force used on
Norman, particularly when these officers put their weight on top
We conclude that a jury must assess the differing scenarios
asserted by the parties order to determine what transpired
between Norman and the defendant officers.
Second, in addition to determining what occurred between
the time Norman appeared in front of Benham’s police vehicle and
his placement in the back seat, a jury must also consider the
conflicting autopsy reports and medical opinions as to Norman’s
cause of death to determine whether Norman’s position in the
police vehicle was problematic and warranted monitoring.
Gloucester/Salem/Camden medical examiner, Dr. Hisham A. Hashish,
determined Norman’s death to be caused by the toxic effects of
cocaine and an accident.
Dr. Hashish’s autopsy did not reveal
any life-threatening injuries, and he ruled out occult trauma to
the back, occult airway injury, or evidence of neck compression.
In contrast, the autopsy performed by Plaintiff’s medical
expert, Dr. Michael Baden, revealed prominent fresh bruises and
abrasions on Norman’s face, right side of the head, elbows,
knees, right hand, right side of the back of the neck, and on
the inner aspects of both upper arms.
He also concluded that
Norman died from asphyxia and cardiopulmonary arrest during
restraint for bizarre behavior, and ruled the death a homicide.
Moreover, Dr. Hashish also testified that the absence of
physical findings of trauma does not mean that trauma was not
applied to the body.
After a jury has answered special interrogatories regarding
what occurred from the time Norman appeared in front of Benham’s
police car until Norman is taken away from the scene, the Court
will then determine whether Benham’s and Sullivan’s use of force
was objectively reasonable, and whether they were deliberately
indifferent to Norman’s serious medical need, in order to
ultimately determine whether Benham and Sullivan are entitled to
qualified immunity. 6
Such a course is especially important in a
case like this, where the alleged victim died during the course
of his seizure and cannot provide his account of what occurred.
See, e.g., Ortiz v. City of Camden, 2015 WL 3603933, at *5
(D.N.J. 2015) (stating that whether the officers acted in an
objectively reasonable manner in their use of force on the
decedent and are therefore entitled to qualified immunity could
only be determined by the Court after a jury resolved the
factual disputes, and that it was particularly necessary in that
case, where the decedent could not provide his own account of
what happened) (citing Tuite v. New Jersey, 2014 WL 5035707, *5
(D.N.J. 2014) (stating that because the alleged victim of
The Court will also consider Plaintiff’s false imprisonment
claim against Benham and Sullivan after the jury answers its
special interrogatories because Plaintiff’s false imprisonment
claim is factually intertwined with Plaintiff’s excessive force
claim. See Wright v. City of Philadelphia, 409 F.3d 595, 602
(3d Cir. 2005) (quoting Beck v. Ohio, 379 U.S. 89, 91 (1964)
(citations omitted)) (just like with a false arrest claim, a
claim for false imprisonment is that a seizure is made without
probable cause, and probable cause exists if “‘at the moment the
arrest was made . . . the facts and circumstances within [the
officers'] knowledge and of which they had reasonably
trustworthy information were sufficient to warrant a prudent man
in believing that [the suspect] had committed or was committing
an offense’”; moreover, the constitutional validity of the
arrest does not depend on whether the suspect actually committed
any crime, and it is irrelevant to the probable cause analysis
what crime a suspect is eventually charged with, as probable
cause need only exist as to any offense that could be charged
under the circumstances).
excessive force by a police officer died as a result of the use
of force, and therefore could not testify on his own behalf, the
court was “particularly cognizant” of the duty “to examine all
the evidence in the record
. . . to determine whether the
officer’s story is internally consistent and consistent with
other known facts”) (citing Tofano v. Reidel, 61 F. Supp. 2d
289, 301 (D.N.J. 1999) (Lamont v. New Jersey, 637 F.3d 177, 184
(3d Cir. 2011) (“Even where an officer is initially justified in
using force, he may not continue to use such force after it has
become evident that the threat justifying the force has
vanished.”)) (other citations omitted).
Consequently, Benham and Sullivan’s motion for summary
judgment must be denied at this time.
Remaining Defendant Officers - Scott
Dempsey, Charles Blanchard, Brian Dicugno,
Jon Sierocinski, Paul Mason, Jon Robinson,
Yvette Truitt, Heriberto Inostroza, and
Plaintiff’s failure to intervene and monitor claims against
the nine other officers who came to the scene cannot survive
Haddon Township police sergeant Charles Blanchard arrived
at the scene at the same time as the EMTs, and he saw Norman in
the back of Benham’s patrol car.
While Benham told Blanchard
his version of what had happened, Haddon Township officer Scott
Dempsey arrived at the scene.
Benham went to Crown Fried
Chicken to gather information, and Dempsey looked in the car and
noticed that Norman was not moving.
Blanchard told Dempsey to
check for a pulse, and finding none, Dempsey removed Norman from
the vehicle with the help of Woodlynne officer Jon Robinson.
Dempsey and Robinson began to render CPR, and at the same
moment, the EMTs also came to Norman’s aid.
Brian Dicugno and Jon Sierocinski of the Collingswood
Police Department also arrived at the scene after Norman was
already in Benham’s police car, and they saw several officers
from Haddon Township and other jurisdictions handling the scene.
They observed the EMTs arrive and they started to depart.
noticing the need for Norman to have medical attention, they
returned to the area of Benham’s car, with Sierocinski helping
to remove the handcuffs from Norman so he could receive medical
Oaklyn police officer Paul Mason did not respond to the
initial dispatch, but came to the scene after Benham’s 10-26
When he arrived, Norman was already in Benham’s vehicle,
and he could hear Norman kicking the car door.
thereafter, Mason saw the EMTs arrive, and he continued to help
with crowd control.
Woodlynne police officer Jon Robinson arrived in response
to Benham’s 10-26 call.
He encountered Benham, who told him
about his struggle with Norman.
Robinson checked on Norman in
the back of the vehicle and saw Norman kicking the driver’s side
Robinson then went to assist in crowd control, and
within a couple of minutes, the EMTs arrived to assist Norman as
per the “psych call” protocol.
After Haddon Township officer
Dempsey checked on Norman’s pulse, Dempsey asks Robinson to see
if he could feel a pulse.
When he did not feel a pulse,
Robinson helped Dempsey remove Norman from the vehicle, and,
with the help of Collingswood officer Sierocinski, he removed
Norman’s handcuffs so that the EMTs could provide medical
attention to Norman.
Camden City police officers Yvette Truitt, Heriberto
Inostroza, and James Allen arrived earlier than the other
responding officers, coming on the scene when Norman was face
down and struggling with Benham and Sullivan.
They observed the
scene next to each other about 30-40 yards away.
was put into the vehicle, Inostroza left the scene.
the vehicle move because of Norman’s kicking.
Allen and Truitt
saw an officer next to the vehicle, and they observed another
officer tap the window and say “hey buddy.”
Norman being taken out of the vehicle and one officer began
performing CPR, while another officer said that EMS was on its
Plaintiff claims that all of these officers failed in their
duty to intervene in the use of force used by Benham and
Sullivan against Norman, and were deliberately indifferent to
Norman’s serious medical condition while he was in the police
The timeline of events in conjunction with the undisputed
facts of the situation cannot support Plaintiff’s claims against
Benham first engaged Norman at 00:44:42.
later, Norman was handcuffed and being placed in the car by
Benham and Sullivan.
These two minutes are when Plaintiff
claims the other officers should have intervened to stop the
alleged excessive force being used on Norman.
Blanchard, Dempsey, Dicugno, Sierocinski, Mason, and
Robinson could not have intervened in the use of force because
they arrived to the scene after Norman was already in the
Truitt, Inostroza, and Allen arrived during the
struggle between Norman and Benham, but Norman was already facedown.
The undisputed facts establish that these officers would
have been objectively reasonable in concluding that Officers
Sullivan and Benham had Norman and the situation under control.
Even when viewing the evidence during this less-than-two-minute
time frame in the light most favorable to Plaintiff, it does not
support that these three officers either had reason to know that
excessive force was being used by Benham and Sullivan, or that
they had a realistic opportunity to intervene.
Thus, all of
these nine officers are entitled to qualified immunity on
Plaintiff’s failure to intervene claims against them.
With regard to Plaintiff’s deliberate indifference claims
against these officers, the undisputed timeline of events also
supports a finding of qualified immunity.
is left in the police vehicle.
At 00:47:28, Norman
For about 50 seconds, from
00:47:28 – 00:48:18, Norman is heard yelling and kicking the
door and window.
Norman becomes quiet, and remains silent for
about 50 seconds, the point at which the EMTs arrive.
forty seconds later, after the EMTs receive a quick briefing on
what has occurred, they come to Benham’s police car at the same
time Dempsey is pulling Norman from the car at 00:50:17.
Even accepting as true that Norman’s position lying
sideways, handcuffed, with his face toward the back seat was
improper, the evidence does not support that the officers who
viewed Norman kicking or heard him yelling intentionally refused
to provide Norman with medical treatment, delayed medical
treatment, or prevented his medical treatment during those 50
This is also true for the time period when Norman
became still and silent, because the EMTs arrived when Norman
had been silent for less than a minute.
Plaintiff claims that these officers just “stood around”
doing nothing instead of intervening in Norman’s deteriorating
condition when they knew his positioning could be fatal.
facts do not support that contention.
Norman was in Benham’s
police car for a total of two minutes and forty-nine seconds
(00:47:28 – 00:50:17).
During this short time, the other
officers who responded to the call were apprised of what
transpired and undertook other duties, such as crowd control.
The officers from other towns also knew that Haddon Township
officers were primarily handling the scene, that the EMTs were
on their way, and that the EMTs had arrived, all within a couple
To support Plaintiff’s claims that these nine officers were
deliberately indifferent to Norman’s serious medical need,
Plaintiff must demonstrate that each of these nine officers
acted with “‘obduracy and wantonness,’” “which has been likened
to conduct that includes recklessness or a conscious disregard
of a serious risk.”
Rouse v. Plantier, 182 F.3d 192, 197 (3d
Cir. 1999) (quoting Whitley v. Albers, 475 U.S. 312, 319
The nine officer defendants have discharged their
burden as the parties seeking summary judgment of showing that
the evidence, even when considered in the light most favorable
to Plaintiff, does not support the finding that the officers
failed to monitor Norman’s condition in violation of Norman’s
See, e.g., Gunter v. Township of
Lumberton, 2012 WL 2522883, at *14 (D.N.J. 2012) (citing
Singletary v. Pennsylvania Dept. of Corrections, 266 F.3d 186,
193 n.2 (3d Cir. 2001)) (noting that in order to survive a
summary judgment motion in which the movant argues that there is
an absence of evidence to support her case, the plaintiff must
point to some evidence beyond her raw claim that the officer was
deliberately indifferent); id. (granting summary judgment in
favor of the defendant officers when “the total time span of the
incidents in question - from Larry Gunter's 9–1–1 call at 1:29
a.m. to the arrival of the second ambulance at 2:05 a.m. constitutes a period of only thirty-six minutes”; and “[d]uring
that time, the officers responded to Mr. Gunter's medical needs
as they arose—first for the head laceration with the call for
medical assistance at approximately 1:43 a.m.- and second for
advanced life support medical assistance when Mr. Gunter became
unresponsive at the conclusion of the twelve minute struggled
where he resisted arrest”); Hinton v. White, 2012 WL 6089476, at
*6 (D.N.J. 2012) (quoting Groman v. Township of Manalapan, 47
F.3d 628, 637 (3d Cir. 1995) (“The record clearly establishes
that the police offered [the plaintiff] medical assistance....
Defendants were not deliberately indifferent to [the
plaintiff's] medical needs.”)) (where a police car struck the
plaintiff, both defendant officers handcuffed the plaintiff,
secured bundles of heroin that the plaintiff tossed away from
his body, attempted to search the plaintiff’s body, and then the
plaintiff then began screaming, finding that because the
undisputed facts demonstrated that the officers ceased their
search and called for an ambulance when it was apparent the
plaintiff was injured, the officers did not act with deliberate
Consequently, in addition to Plaintiff’s failure to
intervene claims, Scott Dempsey, Charles Blanchard, Brian
Dicugno, Jon Sierocinski, Paul Mason, Jon Robinson, Yvette
Truitt, Heriberto Inostroza, and James Allen are entitled to
qualified immunity on Plaintiff’s deliberate indifference
b. Plaintiff’s Monell claims against the four
Municipalities and other local government units are among
those “persons” to which § 1983 liability applies.
New York City Dep’t of Social Services, 436 U.S. 658, 690
Local governments, however, cannot be held liable for
the actions of their employees solely based on the doctrine of
Id. at 691-95; Bielevicz v. Dubinon, 915
F. 2d 845, 849-50 (3d Cir. 1990).
In order to successfully
state a claim for municipal liability, a plaintiff must allege
that the employees’ actions were pursuant to a policy or custom
of the municipality itself.
Monell, 436 U.S. at 694; Watson v.
Abington, 478 F.3d 144, 155 (3d Cir. 2007).
To show the existence of a policy or custom under Monell, a
plaintiff must allege that the municipality acted or failed to
act in any one of three ways.
First, the municipality adopted
an official policy that deprives citizens of their
Monell, 436 U.S. at 694.
tolerated or adopted an unofficial custom that results in the
unlawful stripping of constitutional rights.
Natale v. Camden
County Correctional Facility, 318 F.3d 575 (3d Cir. 2003).
Third, it failed to “train, supervise, or discipline” its
employees so as to prevent them from unlawfully depriving
citizens of their constitutional rights.
Tuttle, 471 U.S. 808 (1985).
City of Oklahoma v.
“A municipality’s failure to train
its employees in a relevant respect must amount to ‘deliberate
indifference to the rights of persons with whom the [untrained
employees] come into contact.’”
Connick v. Thompson, 131 S. Ct.
1350, 1359 (2011) (citation omitted).
As a primary matter, Collingswood, Oaklyn, Woodlynne, and
Camden, and their named policy makers, Chief Richard J. Sarlo,
Chief Joseph T. Abate, Director Edwin Figueroa, Chief John Scott
Thomson, respectively, as entitled to judgment in their favor on
Plaintiff’s Monell claims.
This is because the lack of evidence
to support Plaintiff’s constitutional violation claims against
these municipalities’ officers also negates Plaintiff’s claims
against the municipalities.
See City of Los Angeles v. Heller,
475 U.S. 796, 799 (1986) (“Neither Monell v. New York City Dept.
of Social Services, 436 U.S. 658 (1978), nor any other of our
cases authorizes the award of damages against a municipal
corporation based on the actions of one of its officers when in
fact the jury has concluded that the officer inflicted no
constitutional harm. If a person has suffered no constitutional
injury at the hands of the individual police officer, the fact
that the departmental regulations might have authorized the use
of constitutionally excessive force is quite beside the
point.”); Smith v. Gransden, 553 F. App’x 173, 178 (3d Cir.
2014) (“Because we will not disturb the jury's verdict that
Frampton is not liable for any constitutional violations, there
can accordingly be no derivative municipal claim based on
Further, to the extent that Smith argues
that Camden is nevertheless liable under § 1983 because its
unwritten policy caused a constitutional violation through
officers on the scene other than Frampton, her argument is
similarly unavailing, as it requires proof that a CPD officer on
the scene violated Kashon Smith's constitutional rights by being
deliberately indifferent to his medical needs.
Here, the jury
found Smith did not prove any officer violated Kashon Smith's
rights and thus, Camden could not be found liable and we will
not disturb the District Court's ruling in favor of Camden.”
(internal citations and quotations omitted)); Reiff v. Marks,
511 Fed. App’x 220, 222–23 (3d Cir. 2013) (affirming the
district court’s dismissal of the plaintiff’s failure-to-train
municipal liability claim against West Reading Borough after a
jury trial determined that the defendant officer’s use of a
TASER on the plaintiff was reasonable use of force because a
municipality may not be held liable on a failure to train theory
when a jury has found that the plaintiff has suffered no
constitutional violation); cf. City of Canton, Ohio v. Harris,
489 U.S. 378, 391–92 (1989) (“[F]or liability to attach in this
circumstance the identified deficiency in a city's training
program must be closely related to the ultimate injury.
the case at hand, respondent must still prove that the
deficiency in training actually caused the police officers'
indifference to her medical needs . . . . [W]hile claims such as
respondent's - alleging that the city's failure to provide
training to municipal employees resulted in the constitutional
deprivation she suffered - are cognizable under § 1983, they can
only yield liability against a municipality where that city's
failure to train reflects deliberate indifference to the
constitutional rights of its inhabitants.”).
With regard to Plaintiff’s Monell claim against Haddon
Township, and its policy maker, Chief Mark Cavallo, the Court
will bifurcate that claim from Plaintiff’s claims against Benham
See Fed. R. Civ. P. 42(b) (“For convenience, to
avoid prejudice, or to expedite and economize, the court may
order a separate trial of one or more separate issues, claims,
crossclaims, counterclaims, or third-party claims.
ordering a separate trial, the court must preserve any federal
right to a jury trial.”).
If, after a jury has answered its
special interrogatories as to Plaintiff’s § 1983 claims against
Benham and Sullivan, the Court concludes that Benham and
Sullivan did not violate Plaintiff’s constitutional rights and
they are entitled to qualified immunity, the principle announced
in Heller and applied by the Third Circuit could warrant the
dismissal of Plaintiff’s municipal liability claims against
Haddon Township and Cavallo.
At a minimum, it would be a waste
of judicial resources to assess Plaintiff’s Monell claims
against Haddon Township and Cavallo now if such claims
ultimately are not viable based on how the jury assesses the
evidence of Benham’s and Sullivan’s alleged wrongdoing. 7
For example, if a jury concludes that the positioning of Norman
in the police vehicle did not cause his death, then Haddon
Township cannot be held liable for Norman’s death based on its
policies or training regarding a detainee’s positioning in a
police vehicle. Conversely, if a jury determines that Norman’s
death was caused by how he was placed in the police vehicle,
Haddon Township could be liable if an infirm policy or training
program on that issue is found to exist. This is true even if
Benham and Sullivan are ultimately entitled to qualified
immunity, because a jury may find that they properly followed
Haddon Township’s policy or training on detainee positioning,
but that the policy or training itself was so inadequate that it
violates the constitution. Haddon Township would not be liable
under Monell, however, if Benham and Sullivan are found to have
harmed Norman by how they positioned him in the police vehicle
because they failed to follow a constitutionally appropriate
policy or training on detainee positioning. These various
scenarios - and there are many more depending on how the jury
views the evidence - illustrate that a jury’s resolution of the
facts is a necessary prerequisite to Haddon Township’s liability
under Monell. See, e.g., Fagan v. City of Vineland, 22 F.3d
1283, 1292 (3d Cir. 1994) (in a case where a high-speed police
pursuit of a car attempting to evade police officers crashed
into an innocent bystander’s vehicle, killing three people and
injuring three people, and the survivors of the innocent
bystanders brought § 1983 claims for substantive due process
violations against the officers for their recklessness and the
town for its lack of proper training on high-speed pursuits, the
court noted that a finding of municipal liability did not depend
automatically or necessarily on the liability of any police
officer because, in a substantive due process case arising out
of a police pursuit, an underlying constitutional tort can still
exist even if no individual police officer violated the
constitution so long as it could be shown that the plaintiff
suffered the deprivation of life or liberty because the officer
was following a city policy reflecting the city policymakers'
deliberate indifference to constitutional rights, thus making
the city directly liable under § 1983 for causing a violation of
Accordingly, the Court will consider Haddon Township and
Cavallo’s motion for summary judgment on Plaintiff’s Monell
claims against them after the jury has resolved the disputed
facts and the Court has determined whether Benham or Sullivan
are entitled to qualified immunity.
2. Plaintiff’s Tort, Wrongful Death, and Survivorship
Plaintiff has asserted several claims against the
individual officers under New Jersey state law: assault and
battery, false arrest/false imprisonment, negligence, gross
negligence, wrongful death, and survivorship.
New Jersey’s Tort Claims Act (NJTCA) governs tort claims
against public employees.
Under the NJTCA, “A public employee
is not liable if he acts in good faith in the execution or
enforcement of any law.
Nothing in this section exonerates a
public employee from liability for false arrest or false
The NJTCA strips a public
employee of any immunity, however, if that employee is found to
have engaged in "willful misconduct."
the plaintiff's Fourteenth Amendment rights – in other words,
where “[t]he pursuing police officer is merely the causal
conduit for the constitutional violation committed by the
For Benham and Sullivan, whether these defendants acted in
good faith cannot be determined at this time for the same
reasons as Plaintiff’s constitutional violation claims.
because the same "objective reasonableness” standard that is
used to determine whether a defendant enjoys qualified immunity
from actions brought pursuant to 42 U.S.C. § 1983 is used to
determine questions of good faith arising under N.J.S.A. 59:3-3.
See Mantz v. Chain, 239 F. Supp. 2d 486, 507-08 (D.N.J. 2002)
(citing Lear v. Township of Piscataway, 566 A.2d 557 (N.J.
Super. Ct. App. Div. 1989)).
Furthermore, willful misconduct is
“the commission of a forbidden act with actual (not imputed)
knowledge that the act is forbidden . . . . [I]t requires much
more than an absence of good faith and much more than
PBA Local No. 38 v. Woodbridge Police Dep't, 832
F. Supp. 808, 830 (D.N.J. 1993) (internal quotations omitted)).
Because there exists a genuine issue of material fact regarding
whether Benham and Sullivan engaged in willful misconduct, the
Court cannot determine as a matter of law whether the NJTCA
shields them from liability for their interaction with Norman. 8
Plaintiff’s claim for punitive damages may be maintained for
both Plaintiff’s claims under § 1983 and N.J. state law. See
Paige v. City of New Brunswick, 2015 WL 3452480, at *7 (D.N.J.
2015) (citing Smith v. Wade, 461 U.S. 30, 56 (1983) (“[A] jury
may be permitted to assess punitive damages in an action under §
1983 when the defendant's conduct is shown to be motivated by
Plaintiff’s wrongful death and survivorship claims may also
proceed against Benham and Sullivan.
Under the Wrongful Death
Act, N.J.S.A. 2A:31–1 to –6, the heirs of a person who has died
by virtue of “a wrongful act, neglect or default” may assert a
claim for their “pecuniary injuries,” N.J.S.A. 2A:31–1, –5.
New Jersey survivorship statute provides, “Executors and
administrators may have an action for any trespass done to the
person or property, real or personal, of their testator or
intestate against the trespasser, and recover their damages as
their testator or intestate would have had if he was living. In
those actions based upon the wrongful act, neglect, or default
of another, where death resulted from injuries for which the
deceased would have had a cause of action if he had lived, the
executor or administrator may recover all reasonable funeral and
burial expenses in addition to damages accrued during the
lifetime of the deceased.”
facts exist as to whether Norman’s death was caused by “a
evil motive or intent, or when it involves reckless or callous
indifference to the federally protected rights of others.”);
Toto v. Ensuar, 952 A.2d 463 (N.J. 2008) (a plaintiff may
recover punitive damages against public employees if the
employee engaged in “willful misconduct”)) (finding summary
judgment not appropriate on punitive damages where there is a
genuine dispute of material fact as to the defendant officers’
actions relating to the plaintiff’s claims of excessive force
and police misconduct).
wrongful act, neglect or default,” summary judgment cannot be
entered in these Defendants’ favor on Plaintiff’s wrongful death
and survivorship claims.
In contrast, the evidence, as discussed at length above,
does not support a finding of willful misconduct for the other
nine officers such that those officers are stripped of their
good faith immunity.
Consequently, Scott Dempsey, Charles
Blanchard, Brian Dicugno, Jon Sierocinski, Paul Mason, Jon
Robinson, Yvette Truitt, Heriberto Inostroza, and James Allen
are each entitled to judgment in their favor on all the state
law claims asserted by Plaintiff against them.
For the reasons expressed above, the motions for summary
judgment by Scott Dempsey, Charles Blanchard, Brian Dicugno, Jon
Sierocinski, Paul Mason, Jon Robinson, Yvette Truitt, Heriberto
Inostroza, James Allen, Richard J. Sarlo, Joseph T. Abate, Edwin
Figueroa, John Scott Thomson, Borough of Collingswood, Borough
of Oaklyn, Woodlynne Borough, and City of Camden will be
The motion for summary judgment by William Benham, Joseph
Sullivan, Haddon Township, and Police Chief Mark Cavallo will be
denied without prejudice and will be reactivated following the
jury’s resolution of special interrogatories regarding the
events that transpired on September 29, 2012.
An appropriate Order will be entered.
June 29, 2017
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
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