HARRISON v. CITY OF ATLANTIC CITY et al
OPINION. Signed by Judge Noel L. Hillman on 5/23/2017. (tf, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CITY OF ATLANTIC CITY,
MICHAEL OLDROYD, ANTHONY
ALOSI, MICHELLE CLARKE,
REBECCA SEABROOKE, and
JENNIFER ANN BONJEAN
ASHLEY BLAIR COHEN
BONJEAN LAW GROUP PLLC
1000 DEAN ST.
BROOKLYN, NY 11238
On behalf of Plaintiff
A. MICHAEL BARKER
TODD J. GELFAND
BARKER, GELFAND & JAMES
210 NEW ROAD
LINWOOD, NJ 08221
On behalf of Defendant City of Atlantic City
CHRISTINE P. O'HEARN
WILLIAM F. COOK
SHAWN C. HUBER
BROWN & CONNERY, LLP
360 HADDON AVENUE
PO BOX 539
WESTMONT, NJ 08108
On behalf of the individual officer Defendants
HILLMAN, District Judge
This case involves claims of excessive force by City of
Atlantic City police officers, and claims of municipal liability
against Atlantic City for its practices and customs which
allegedly foster a culture that permits use of excessive force.
Presently before the Court are the motions of Defendants for
summary judgment in their favor.
For the reasons expressed
below, Defendants’ motions will be denied in part and continued
Plaintiff, Charlie Harrison, alleges the following events
that serve as the basis for his Fourth Amendment violation
claims against the Defendant police officers and the City of
Atlantic City: 1
During the early morning hours of November 14, 2012,
Plaintiff was evicted from the Atlantic Club Casino where he had
been playing craps.
It is undisputed that Plaintiff was
intoxicated when he was escorted from the premises.
In his complaint, Plaintiff alleged numerous constitutional and
state law violations against various Defendants. By way of
stipulations of dismissal or concessions in his opposition
briefs, the only claims remaining in Plaintiff’s complaint are
his excessive force claims against the individual officers and
his municipal liability claims against Atlantic City.
Club Casino security called the Atlantic City Police Department
(“ACPD”) to report that Plaintiff was intoxicated and had left
the property driving a black Mercedes.
According to Defendant Oldroyd, at approximately 2:07 a.m.,
he spotted Plaintiff’s black Mercedes mini-van which matched the
description given out by police communications minutes earlier.
After following Plaintiff’s car for a period of time with his
emergency lights activated, Defendant Oldroyd effectuated a socalled “high risk” stop of Plaintiff’s car at Virginia and
What transpired after Plaintiff stopped his
vehicle is hotly contested.
Plaintiff testified that he was traveling east after
turning off Pacific Avenue and was forced to make a U-turn when
he reached the boardwalk.
After turning around and driving back
toward Pacific Avenue, Plaintiff noticed that he was being
followed by police vehicles with their emergency lights on.
Plaintiff did not hear any sirens and the officers gave
conflicting testimony about whether their sirens were on (e.g.,
Defendant Oldroyd testified that he activated his siren while
Defendant Alosi testified that no sirens were activated).
According to Plaintiff, after stopping his car at a red light, a
male officer walked up to the window and ordered him out of the
Plaintiff complied with the order and began to walk with
his hands up toward the male officer who was standing in front
of his police vehicle parked behind Plaintiff’s car.
to Plaintiff, when he reached the male officer, he was punched
in the face multiple times by the officer.
that he was then pulled to the ground by Defendant Clark’s K-9
partner who bit him on the back of the knee.
the ground, a gang of officers assaulted him.
When he fell to
testified that he did not resist and did not even defend
himself: “When I walked to them, my hands was up. I think they
told me to put my hands up. And when I got to them. It was just
a punch. Then it was another, and another punch, and I just
stood there like a speed bag, and I took punches, and then the
dog came, and the dog grabbed me behind the leg and then I fell.
And when I fell, the officer fell, and then it was, like, my arm
was bent all the way up.
And then it was like a knee in my
shoulder or something like that.
And then it was like a
headlock, and then it was, like, more punches.
And then I
Plaintiff recalls regaining consciousness when he was
thrown into the backseat of a police car.
hearing some of the officers laughing before he blacked out.
Plaintiff’s medical reports and photographs reveal that he
suffered significant physical injuries during his arrest.
Plaintiff received medical care at the AtlantiCare Regional
Medical Center immediately after his arrest.
emergency room physician noted that Plaintiff “sustained injury
to the head, contusion, hematoma, pain, swelling, tenderness,
lateral aspect of left and posterior aspect of left knee,
The physician further noted deep
lacerations to the posterior aspect of Plaintiff’s left leg and
that contusions to his right eye and right side of his face were
“deep” and “severe.”
The swelling to Plaintiff’s face was so
pronounced that the doctor was unable to assess his eyesight.
In his Atlantic County Justice Facility booking photo,
Plaintiff’s face reveals pronounced swelling, bruising, and a
significant abrasion to the right side of his face.
Plaintiff’s eyes are completely shut in his booking photo. (See
Docket No. 146 at 3-5.)
Defendants relate a different version of events.
Defendants contend that Plaintiff failed to adhere to their
signals and continued driving ignoring the clear direction to
pull his care over.
When Plaintiff’s vehicle eventually came to
a stop, Defendant Clark, who had also responded to the scene,
pulled alongside Plaintiff’s vehicle and ordered him to exit.
After responding in a verbally assaultive and aggressive manner,
Plaintiff exited his vehicle and approached Defendant Oldroyd.
Defendant Oldroyd attempted to handcuff Plaintiff, but Plaintiff
pulled away causing both men to fall to the ground.
after hitting the ground, Defendant Oldroyd became incapacitated
when he temporarily lost feeling in his right arm.
continued to resist and ignored commands of Defendant Oldroyd
and additional officers who had arrived to assist.
incapacitated officer on the ground and a resisting arrestee,
Defendant Clark made the split-second decision to utilize her K9 partner to apprehend Plaintiff. (See Docket No. 133-19 at 2.)
Plaintiff was charged and subsequently indicted for
aggravated assault in violation of N.J.S.A. 2C:12-1(b)(5),
resisting arrest through physical force or violence in violation
of N.J.S.A. 2C:29-2(a)(3)(a), and eluding in violation of
Pursuant to a negotiated settlement with
the Atlantic County prosecutor, Plaintiff pled guilty to and was
convicted of eluding.
All other charges were dismissed.
Plaintiff alleges that the defendant officers used
excessive force in his arrest in violation of the Fourth
Plaintiff also contends that Atlantic City is liable
under Monell v. New York City Dep’t of Social Services, 436 U.S.
658, 690 (1978) because Atlantic City has a widespread practice
or custom of permitting its officers, including the individual
defendants here, to employ excessive force without fear of
Defendants have moved for summary judgment on Plaintiff’s
The individual Defendants argue that they are entitled
to qualified immunity on Plaintiff’s Fourth Amendment claims
because no reasonable jury would conclude that their use of
force was not objectively reasonable.
Atlantic City argues that
it cannot be held liable under Monell because no material
disputed facts support Plaintiff’s claim that a policy or custom
of Atlantic City caused Plaintiff harm.
Plaintiff has opposed
When Plaintiff filed his complaint, he brought his claims
pursuant to 42 U.S.C. § 1983, as well as New Jersey state law.
Plaintiff’s only remaining claims at this point in the case are
based on violations of federal law.
Consequently, this Court
has jurisdiction over Plaintiff’s federal claims under 28 U.S.C.
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.
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).
1. Plaintiff’s excessive force claims against the
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.
(3d Cir. 2004).
Kopec v. Tate, 361 F.3d 772
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
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.
Curley v. Klem, 499 F.3d 199,
211, 211 n. 12 (3d Cir. 2007).
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
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 each officer’s
use of force in effecting his arrest.
Defendant Officer Thavisack refutes that he struck or
kicked Plaintiff, but on his Use of Force (“UOF”) police report
he checked the box for “compliance hold” and “hands/fists,” and
he testified that he assisted the other officers in placing
handcuffs on Plaintiff.
Defendant Officer Alosi contends that when he arrived
on scene he got out of his vehicle and took cover behind his
After taking cover, Alosi saw Plaintiff walking
towards Oldroyd and, upon reaching him, Oldroyd attempted to
place a handcuff on Plaintiff.
Once Alosi saw Plaintiff and
Oldroyd fall to the ground, he ran to support Oldroyd.
Alosi arrived at the struggle, Oldroyd was on the ground and
Alosi placed his left hand on Plaintiffs shoulder and pushed
At this point Plaintiff opened his mouth and attempted to
bite his hand so Alosi had to deliver two strikes to Plaintiff’s
face in response to Plaintiff’s attempt to bite him.
UOF report checked the box for “hands/fists.”
Defendant Officer Seabrook refutes punching or kicking
Plaintiff, but she checked the boxes for “compliance hold” and
“hands/fists” on her UOF report, and testified that she, with
the help of the other officers, completed handcuffing Plaintiff
after he was bitten by the K-9.
Defendant Officer Oldroyd was the first officer to
make contact with Plaintiff and refutes that he struck Plaintiff
in the face, but Oldroyd states that he brought Plaintiff to the
ground in an effort to complete handcuffing, they wrestled on
the ground, and Oldroyd “went out of the fight” because he had
injured his elbow.
Oldroyd checked the boxes for “compliance
hold” and “hands/fists” on his UOF report.
Defendant Officer Clark was working the midnight shift
as a K-9 officer and directed her dog to bite Plaintiff on the
leg at some point during the incident.
Defendants contend that they had legitimate reasons for
their interactions with Plaintiff – namely, Plaintiff’s
resistance to being arrested - and their use of force was
completely reasonable under the circumstances.
They also argue
that because Plaintiff blacked out and does not completely
remember the incident, only their testimony should be credited.
Neither of Defendants’ positions is availing.
jury must weigh Plaintiff’s testimony and evidence against
Defendants’ testimony and evidence to determine what occurred
during the incident.
The Court cannot assess the evidence or
the parties’ credibility to form a narrative of what happened in
the course of Plaintiff’s arrest.
The jury must make that
assessment so that the Court may then determine whether the
defendant officers acted in an objectively reasonable manner and
are thus entitled to qualified immunity.
Second, the fact that Plaintiff cannot precisely identify
which officer struck him during his arrest and to what degree is
not fatal to his excessive force claims.
demonstrated that each individual officer handled him in some
way, either through their efforts to handcuff him, by striking
him, pressing down on him, or ordering the K-9 to bite him.
jury must determine how each defendant handled Plaintiff – in
the manner they admit, in the way Plaintiff describes, or in
Plaintiff having eyes swollen shut so he could not
see and ultimately losing consciousness as a result of the
officers’ use of excessive force, if true, cannot serve to
shield the officers from liability.
Such a standard would be
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
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, whether the officers acted in an objectively
reasonable manner in their use of force on Plaintiff – and are
therefore entitled to qualified immunity 2 - can only be
determined by the Court after a jury resolves the material
The defendant officers’ motion for summary
judgment must be denied.
2. Plaintiff’s Monell claims against the City of
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
The parameters of the constitution’s prohibition of excessive
force are firmly established. Thus, the only issue for the
Court to ultimately determine is whether, as a matter of law,
defendants were objectively reasonable with regard to that
clearly established right.
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).
Plaintiff argues that genuine issues of material fact exist
as to the following Monell claims: (1) Defendant Atlantic City
has a widespread, well-settled practice or custom of permitting
its officers, including the individually named officers, to
employ excessive force without fear of discipline; (2) Defendant
Atlantic City has a widespread, well-settled practice of
exonerating rogue officers by failing to meaningfully
investigate citizens’ internal affairs complaints; (3) Defendant
Atlantic City failed to supervise, discipline and train its
officers with regard to officers’ use of force; (4) Defendant
Atlantic City failed to supervise, discipline and train its
officers with regard to the appropriate and constitutional use
of patrol dogs for so-called criminal apprehension; (5)
Defendant Atlantic City has a widespread, well-settled practice
of condoning its K-9 handlers’ use of patrol dogs to bite nonthreatening, non-violent, often impaired petty offenders as a
means of gratuitous punishment causing serious and permanently
disfiguring injuries; and that (6) this practice is directed
overwhelmingly at people of color.
Atlantic City argues that Plaintiff cannot maintain his
municipal liability claim for two main reasons.
City argues that Plaintiff’s complaint alleges improper
“policies,” but his purported evidence and arguments to support
his claims only pertain to “customs and practices.”
Atlantic City argues that even if Plaintiff’s complaint can be
read to plead allegations of Atlantic City’s “customs and
practices,” Plaintiff’s proffered evidence in the form of
internal affairs complaints, while provocative, does not connect
the required dots – that is, that the Chief of Police knew or
acquiesced to insufficient IA investigations, that reports of
excessive force have not been investigated, that complaints
about an officer’s use of force mean that the force was
unreasonable, that concerns over a few “rogue” officers renders
the IA process a sham, that the Chief knew or should have known
about any of these particular officer defendants’ propensity to
using excessive force, or that the Chief was deliberately
indifferent to the need for properly training the officers in
the proper use of force.
Before assessing the parties’ arguments, the Court
questions whether Plaintiff’s Monell claims should not be
decided until after Plaintiff’s excessive force claims are
In City of Los Angeles v. Heller, 475 U.S. 796, 799
(1986), the Supreme Court stated,
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
The Third Circuit has affirmed the application of Heller in
§ 1983 cases where the plaintiff alleged constitutional
violations against individual police officers and also asserted
a claim for municipality liability against the city under
See, e.g., 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
In this case, if, after a jury has answered its special
interrogatories as to Plaintiff’s excessive force claims, the
Court concludes that none of the defendant officers violated
Plaintiff’s Fourth Amendment rights and they are entitled to
qualified immunity, the principle announced in Heller and
applied by the Third Circuit would appear to warrant the
dismissal of Plaintiff’s municipal liability claims against
It would seem to be, at a minimum, a waste of
judicial resources to assess Plaintiff’s Monell claims against
Atlantic City now if such claims ultimately may not be viable.
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.
When ordering a separate
trial, the court must preserve any federal right to a jury
Accordingly, the Court will direct the parties to show
cause as to why Plaintiff’s claims against the officers and
Plaintiff’s claims against Atlantic City should not be
bifurcated, where the Court will consider Atlantic City’s motion
for summary judgment only if Plaintiff prevails on his excessive
force claims against at least one defendant officer.
For the reasons expressed above, the motion for summary
judgment by the defendant officers on Plaintiff’s claims of
excessive force must be denied.
Atlantic City’s motion for
summary judgment shall be continued pending the parties’
submissions in response to the Court’s Order to Show Cause on
the issue of whether Plaintiff’s claims against the officers and
the City should be bifurcated.
An appropriate Order will be entered.
Date: May 23, 2017
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
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