WALKER v. BENDING et al

Filing 45

OPINION. Signed by Judge Renee Marie Bumb on 10/24/2017. (rtm, )

[Docket No. 41]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

KATHLEEN WALKER,
Plaintiff,

Civil No. 15-580 (RMB/KMW)
OPINION

v.
MICHAEL HELLER, et al.,
Defendants.

APPEARANCES:
THE O’HANLON LAW FIRM
By: Stephen T. O’Hanlon, Esq.
2 Penn Center Plaza, Suite 1850
1500 John F. Kennedy Blvd
Philadelphia, Pennsylvania 19102
Attorneys for Plaintiff
MAYFIELD TURNER O’MARA & DONNELLY, P.C.
By: Francis X. Donnelly, Esq.
Robert J. Gillispie, Jr., Esq.
2201 Route 38, Suite 300
Cherry Hill, New Jersey 08002
Attorneys for Defendants

BUMB, UNITED STATES DISTRICT JUDGE:
In this § 1983 suit, Plaintiff Kathleen Walker asserts that
Defendant Winslow Township police officers violated her federal
constitutional rights when they responded to a domestic dispute

1

call to Walker’s home, and subsequently arrested Walker on a
disorderly persons charge. 1
Defendants move for summary judgment. 2

For the reasons

stated herein, the motion will be granted in part and denied in
part.
I.

FACTUAL AND PROCEDURAL BACKGROUND
In the evening of July 28, 2014, Defendant Winslow Township

Police Officers Heller, Saunders, and Mueller responded to
Plaintiff Walker’s home, dispatched on a domestic dispute call.
(Gillispie Cert. Ex. A)

It is undisputed that Walker lived in

the house with her long-term boyfriend, Dante Wilson, their two
young children (aged 10 and 5 years old at the time), and
Wilson’s daughter, Chante Hitchens, who was approximately 20
years old at the time.

(Gillispie Cert. Ex. A; Defendants’

Statement of Undisputed Facts, “DSUF”, ¶ 2; Walker Dep. p. 6-7,
14-15, 34, 52, 71)

1

The Court exercises federal question subject matter
jurisdiction pursuant to 28 U.S.C. § 1331.
2

The Complaint also asserts municipal liability claims
against Winslow Township. However, in response to Winslow
Township’s Motion for Summary Judgment, Plaintiff states she
“agrees that Defendant Winslow Township can be released from the
present action.” (Opposition Brief, Dkt. No. 42, p. 2)
Accordingly, all claims against Winslow Township will be
dismissed with prejudice pursuant to Fed. R. Civ. P. 41(a)(2).

2

Hitchens was the person who called the police (DSUF ¶ 8),
asserting that Plaintiff Walker was denying her access to the
home.

(Gillispie Cert. Ex. A; Hitchens Dep. p. 13-15, 33)

Wilson, who serves in the New Jersey National Guard, was away on
a two-week training exercise.

(Wilson Dep. p. 48; Walker Dep.

p. 33)
When the officers arrived at the house, Hitchens was
standing by her car in the driveway.
Hitchens Dep. p. 16)

(Gillispie Cert. Ex. A;

The officers first spoke with Hitchens,

who explained that she wanted to get into the house to get her
belongings.

(Hitchens Dep. p. 16-17)

She also told the

officers that she had received “harassing” and “threatening text
messages” from Plaintiff, and that different police officers had
been called to the house the day before because Plaintiff was
not allowing Hitchens into the house.

(Saunders Dep. p. 10-11) 3

Defendant Saunders testified that he determined that
Hitchens lived at the house by looking at her driver’s license
(which listed the address of the house as her address), and that

3

See also Master Incident Report, Gillispie Cert. Ex. A,
“Hitchens advised that Walker had been texting her through out
[sic] the day on 7/28/2014. Hitchens advised that she felt
harassed by these text messages. In one of the messages Walker
advised that she was going to make Hitchens life [sic] a living
hell if she was to return to the residence.”
Plaintiff admits that she exchanged text messages with
Hitchens, but she did not testify about the messages’ content.
(Walker Dep. p. 66-67)
3

the officers were “invited onto the property” by Hitchens.
(Saunders Dep. p. 17, 13)

Officers Saunders and Heller then

went to the front door of the house.
Officer Mueller testified that while Saunders and Heller
were knocking on the front door, he “decided to walk around back
to see if I could see into the house and see if we could have
contact.”

(Mueller Dep. p. 7)

He further testified that he had

“no permission to go on the property,” but he walked from the
front yard, through the side yard and into the backyard of the
property in an “attempt to make contact with the other party in
a domestic dispute.”

(Id., p. 7-9)

Mueller further testified,

[w]hen we arrived and we were told of the incident
between mother and daughter, we needed to speak to
the mother.
So we went to the house to make contact with
the mom, make sure she was okay, there wasn’t some
kind of incident where she was injured or hurt.
. . .
Due to the situation being heated, the way
Hitchens was upset about things, we just had to speak
to both parties and make sure everything was okay.
(Mueller Dep. p. 6-7)

Officer Saunders’ report similarly

stated, “Ptlm. Muller [sic] walked around back and attempted to
make contact at the back door with negative results.”
(Gillispie Cert. Ex. A)
Plaintiff Walker testified that she was upstairs in the
house bathing her daughter when she heard “pounding,” or

4

“banging” on the front door.

(Walker Dep. p. 56, 71)

She

answered the door, and Officer Saunders “asked” if he and
Officer Heller could “come in[to the house] and talk.”
56)

(Id., p.

Walker undisputedly said yes, and allowed Officers Saunders

and Heller into the foyer of the house.

(DSUF ¶¶ 11-12)

Officer Saunders’ Master Incident Report states that “Walker
answered the door and invited all three (3) officers inside the
residence.”
46)

(Gillispie Cert. Ex. A; see also Saunders Dep. p.

Plaintiff Walker disputes that she invited the third

officer, Officer Mueller, into the house.

(See Hitchens Dep. p.

18; Walker Dep. p. 56)
Nonetheless, Walker testified that “about a minute after
[Officers Saunders and Heller] entered my house and shut the
door, about a minute later Officer Mueller entered.

So at that

time all three officers were standing right in the foyer area.”
(Walker Dep. p. 57)
Walker further testified,
[t]he only officer that spoke to me at all was
Officer Saunders.
I [told him] . . . Chante
[Hitchens] made an agreement . . . that she wasn’t
going to return [to the house] until her father got
home. . . . And [Saunders] said I don’t care. She
changed her mind. She has that right. This is her
residence. . . . And he said . . . she can come in
and out of here whenever she wants and . . . there’s
nothing you can do about it. And I said okay.
(Walker Dep. p. 56-57)

5

All parties agree that the situation escalated quickly. 4
According to Officer Mueller, “[o]nce we [spoke] to [Walker], we
don’t get a word in edgewise. . . . [A]sking questions and no
response and we’re not getting anywhere with our conversation
and she’s continuing to get louder and point and get closer.”
(Mueller Dep. p. 15-16)
Officer Saunders similarly testified, “[w]e tried to talk
to Ms. Walker but she was being aggressive towards us,
belligerent, yelling, invading my personal space, pointing her
finger, waving her arms.”

(Saunders Dep. p. 24)

Hitchens also testified that, from where she was standing
outside of the house, she could hear Walker “yelling and
screaming.”

(Hitchens Dep. p. 18)

Walker testified that after Officer Saunders told her that
she “didn’t have any right to forbid [Hitchens] from coming in,”
she “said, then get the hell out of my house because he kept
saying I don’t care.

I said get the hell out of my house.”

(Walker Dep. p. 57)
When asked at her deposition whether she “raised her voice”
at this time, Walker testified, “I might talk loud and somebody
might interpret that in a different way.

4

I did not believe I

Walker testified that the entire incident in the foyer
“didn’t last more than two minutes.” (Walker Dep. p. 71-72)
6

was raising my voice but [the officers] may have.”

(Id. p. 62) 5

Walker unequivocally testified, however, that she did not point
in the officers’ direction, nor walk towards them, nor invade
their personal space.

(Id. p. 63-64)

According to Walker,
[f]inally I said, get the hell out of my house. And
when I said get out of my house . . . Officer Mueller
charged me and pushed me up against the wall and then
turned me around and put handcuffs on me. And I said
what are you doing. He told me to shut up. He told
me he was going to take me . . . to jail. . . . And
I said you can’t take me to jail.
I didn’t do
anything.
He said, I’m sick of your mouth.
I’m
going to teach you a lesson. Then he took me out
[of the house].
(Walker Dep. p. 72-73)

Walker also testified that she “was

moving her hand away” as Mueller was attempting to handcuff her.
(Id. p. 57)
off guard.

She explained, “I pulled my arms -- he caught me
I was like what are you doing.”

(Id. p. 75)

Mueller testified,
she’s continuing to get louder and point and get
closer, [I made the] determination [] she should be
put under arrest. . . . I stepped toward Ms. Walker
and with my left hand reached out to grab around to
her left hand which she turned away. . . . She pulled
away again, as she continued her turn.
As I had
control of her left arm, Officer Saunders stepped up
and we were able to control her.
(Mueller Dep. p. 16)

5

Dante Wilson testified at his deposition, “Q: Did
[Walker] tell you she was courteous with the officers? A: Oh,
no. She said she yelled at the officers to get out.” (Wilson
Dep. p. 52)
7

Saunders’ report states that “Ptlm. Muller [sic] placed her
hands behind her back.

Walker did attempt to pull away,

however, I was able to place handcuffs on her without incident.”
(Gillispie Cert. Ex. A)
It is undisputed that after Walker was placed in handcuffs,
she was escorted outside the house and into the back of a patrol
car.

(DSUF ¶ 17)

Hitchens testified that Walker’s “children

were looking out the window and they were crying” as Walker was
being put into the police car.

(Hitchens Dep. p. 20-21)

At this time Hitchens was speaking to her father, Dante
Wilson, on her cell phone.

Wilson testified that he asked to

speak to “an officer” who told Wilson that Walker was being
arrested “to teach her a lesson.”

(Wilson Dep. p. 51) 6

Wilson

and Hitchens agreed that Hitchens would stay with the children
while Walker was taken to the station for processing.

(Wilson

Dep. p. 51; Hitchens Dep. p. 21-22)
Then, the officers received another call for a burglary in
progress and Saunders’ lieutenant directed Saunders “to just
issue [Walker a] Special Complaint and process her at the
scene,” rather than take her to the station.
34; Mueller Dep. p. 24-25)

(Saunders Dep. p.

The Special Complaint charged Walker

with disorderly conduct in violation of N.J.S.A. 2C:3-2A(1).

6

It

Officer Saunders testified that he was the officer that
spoke to Wilson on the phone. (Saunders Dep. p. 44)
8

is undisputed that the charge was dismissed at a municipal court
hearing in August, 2014.

(Walker Dep. p. 85-86)

Later in the night of July 28th and the following day,
Walker observed “redness” and later “bruises” on her arms, which
she contends were caused by the handcuffs that were placed on
her.

(Walker Dep. 19-22)

arms with her cell phone.

She took pictures of the marks on her
(DSUF ¶¶ 21-26)

It is undisputed

that the red marks and bruising “resolved within five days”
without any medical treatment.

(DSUF ¶ 20, 27)

Walker

testified that she sustained no other bodily injuries as a
result of her arrest.

(Walker Dep. p. 29)

Walker also

testified that she sustained emotional injuries in the form of
“humiliation” and “fear of the police.”

(Id.)

Walker has never

sought any treatment for any of her injuries, has been able to
“fully go about her activities of daily living,” and did not
miss any time from work as a result of her injuries.

(DSUF ¶¶

30-33)
The Complaint asserts four counts, all pursuant to § 1983:
(1) false arrest in violation of the Fourth Amendment; (2)
excessive force in violation of the Fourth Amendment; (3)
malicious prosecution in violation of the Fourth Amendment; and
(4) “Fourth Amendment trespass.”

9

II.

SUMMARY JUDGMENT STANDARD
Summary judgment shall be granted if “the movant shows that

there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Civ. P. 56(a).

Fed. R.

A fact is “material” if it will “affect the

outcome of the suit under the governing law[.]”
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Anderson v.
A dispute is

“genuine” if it could lead a “reasonable jury [to] return a
verdict for the nonmoving party.”

Id.

In determining the existence of a genuine dispute of
material fact, a court’s role is not to weigh the evidence; all
reasonable “inferences, doubts, and issues of credibility should
be resolved against the moving party.”

Meyer v. Riegel Prods.

Corps., 720 F.2d 303, 307 n. 2 (3d Cir. 1983).

However, a mere

“scintilla of evidence,” without more, will not give rise to a
genuine dispute for trial.

Anderson, 477 U.S. at 252.

Moreover, a court need not adopt the version of facts asserted
by the nonmoving party if those facts are “utterly discredited
by the record [so] that no reasonable jury” could believe them.
Scott v. Harris, 550 U.S. 372, 380 (2007).

In the face of such

evidence, summary judgment is still appropriate “where the
record . . . could not lead a rational trier of fact to find for
the nonmoving party[.]”

Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 587 (1986).

10

The movant “always bears the initial responsibility of
informing the district court of the basis for its motion, and
identifying those portions of ‘the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any,’ which it believes demonstrate the
absence of a genuine issue of material fact.”

Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ.
P. 56(c)).

Then, “when a properly supported motion for summary

judgment [has been] made, the adverse party ‘must set forth
specific facts showing that there is a genuine issue for
trial.’”
P. 56(e)).

Anderson, 477 U.S. at 250 (citing Fed. R. Civ.
In the face of a properly supported motion for

summary judgment, the nonmovant’s burden is rigorous: he “must
point to concrete evidence in the record”; mere allegations,
conclusions, conjecture, and speculation will not defeat summary
judgment.

Orsatti v. New Jersey State Police, 71 F.3d 480, 484

(3d Cir. 1995); accord Jackson v. Danberg, 594 F.3d 210, 227 (3d
Cir. 2010) (citing Acumed LLC v. Advanced Surgical Servs., Inc.,
561 F.3d 199, 228 (3d Cir. 2009) (“[S]peculation and conjecture
may not defeat summary judgment.”)).
III. ANALYSIS
All three officers move for summary judgment asserting that
they are entitled to qualified immunity.

“[Q]ualified immunity

protects government officials from liability for civil damages

11

insofar as their conduct does not violate clearly established .
. . constitutional rights of which a reasonable person would
have known.”

Pearson v. Callahan, 555 U.S. 223, 231 (2009)

(internal citation and quotation omitted).

The qualified

immunity analysis first considers whether there was a
constitutional violation and, if so, whether the right violated
was clearly established at the time of the misconduct.
232.

Id. at

“A right is clearly established only if its contours are

sufficiently clear that ‘a reasonable official would understand
that what he is doing violates that right.’”

Carroll v. Carman,

135 S.Ct. 348, 350 (2014)(quoting Andersen v. Creighton, 483
U.S. 635, 640 (1987)).
A. False arrest
The Fourth Amendment prohibits arrests without probable
cause.

Berg v. Cty. of Allegheny, 219 F.3d 261, 269 (3d Cir.

2000).

Walker argues that Defendants lacked probable cause to

believe that she committed the offense of disorderly conduct
because her conduct took place behind a closed door in the foyer
of her own home, and disorderly conduct, under New Jersey law,
requires that a person act “with purpose to cause public
inconvenience, annoyance or alarm.”

N.J.S.A. § 2C:33-2(a)

(emphasis added).
Defendants appear to concede this point but argue, however,
that even if they lacked probable cause to believe Walker

12

engaged in disorderly conduct, they are nonetheless entitled to
summary judgment because “[i]n analyzing false arrest claims, a
court, in order to insulate a defendant from liability, need
find only that ‘[p]robable cause . . . exist[ed] as to any
offense that could be charged under the circumstances.’” (Reply
Br., Dkt. No. 44, p. 3)(quoting Johnson v. Knorr, 477 F.3d 75,
84-85 (3d Cir. 2007)). 7

According to Defendants, the undisputed

record demonstrates that they had probable cause to believe that
Plaintiff obstructed justice in violation of N.J.S.A. 2C:291(b). 8

7

See also, Devenpeck v. Alford, 543 U.S. 146 (2004)(holding
that “an arrest is lawful under the Fourth Amendment [even] when
the criminal offense for which there is probable cause to arrest
is not ‘closely related’ to the offense stated by the arresting
officer at the time of arrest.”).
8

Defendants also argue that “even if an individual’s
actions do not rise to the level of prohibited conduct under
N.J.S.A. 2C:33-2 (disorderly conduct), they could still be
considered a breach of the peace” in violation of N.J.S.A.
40A:14-152. (Reply Br., Dkt. No. 44, p. 5) It does not appear,
however, that 40A:14-152 creates an independent substantive
criminal offense under the New Jersey Criminal Code. The
statute provides, “officers of a police department . . . within
the territorial limits of the municipality, shall have all the
powers of peace officers and upon view may apprehend and arrest
any disorderly person or any person committing a breach of the
peace.” New Jersey courts have treated 40A:14-152 as a
jurisdictional statute. See, e.g., State v. Dangerfield, 171
N.J. 446, 460 (2002)(“In this case, N.J.S.A. 40A:14–152
authorizes municipal police officers to arrest any ‘disorderly
person’ who commits such an offense in the presence of the
arresting officer.”); State v. Montalvo, 280 N.J. Super. 377,
381 (App. Div. 1995)(“N.J.S.A. 40A:14-152 provides ‘the powers’
of police officers within the municipality which employs them.
But it is clear that the Legislature contemplated that police
13

The statute provides, in relevant part, “[a] person commits
an offense if he purposely obstructs, impairs or perverts the
administration of law or other governmental function or prevents
or attempts to prevent a public servant from lawfully performing
an official function by means of flight, intimidation, force,
violence, or physical interference or obstacle, or by means of
any independently unlawful act.”

N.J.S.A. 2C:29-1.

This Court has previously held that, to support an
obstruction of justice charge, “defendant must have
affirmatively done something to physically interfere or place an
obstacle to prevent the police from performing an official
function.”

Batiz v. Detullio, No. CV 12-581 (RMB/AMD), 2016 WL

299198, at *2 (D.N.J. Jan. 25, 2016)(citing State v. Camillo,
382 N.J. Super. 113, 121-22 (App. Div. 2005); State v. Berlow,
284 N.J. Super. 356, 360 (App. Div. 1995)). 9

The physical act

may include “failure to follow instructions of an officer,” or
“fail[ing] to engage in some physical conduct that causes
interference;” “physical contact” is not required.

Id. at *2-3.

officers would often have to act beyond their traditional
jurisdiction.”).
9 Aff’d on other grounds by Batiz v. Brown, 676 F. App’x 138
(3d Cir. 2017).

14

Thus, even relatively subtle physical acts may suffice,
depending on the particular situation. 10
The summary judgment record is unclear on this key element
of Plaintiff’s false arrest claim.

Defendants consistently

testified that Plaintiff was invading their personal space and
pointing at them. (Mueller Dep. p. 15-16; Saunders Dep. p. 24;
see also Gillispie Cert. Ex. A)

Plaintiff, however,

categorically denies invading the Defendants’ personal space and
pointing at them. (Walker Dep. p. 63)
Beyond these deposition soundbites however, the record is
unclear as to what happened, and when, in those critical minutes
between the Defendants entering the foyer and Plaintiff’s
arrest.

While the parties testified as to what they said in the

moments prior to the arrest, the testimony is vague as to what
each person did.

Moreover, the Court lacks important facts such

as the dimensions of the foyer, who stood where, and the amount
of space between each person, to place the parties’ testimony in
context. 11

While it would seem reasonable-- given the parties’

10

For example, in Batiz, the Court held “that
actions-- refusing to move aside from Defendant or
as instructed-- are sufficient physical acts . . .
cause” supporting obstruction of justice. 2016 WL
11

Plaintiff’s
take a seat
for probable
299198 at *4.

Plaintiff’s testimony in this regard is difficult to
discern. The deposition transcript reads: “Q: What was the
closest distance that you got to any of the officers while you
were-- before an effort was made to put you in handcuffs? Was it
as close as I am to you sitting at this table? A: Probably
15

portrayal of their interaction leading up to the arrest-- that
Defendants had asked Plaintiff to back away and/or stop pointing
and Plaintiff did not comply (i.e., facts that would support
probable cause to believe that Plaintiff violated 2C:29-1), the
Court cannot find the material facts undisputed at this stage of
the litigation.
As a result, the Court cannot make a ruling on the first
step of the qualified immunity analysis. 12
Thus, summary judgment must be denied.

See Curley v. Klem,

298 F.3d 271, 278 (3d Cir. 2002) (“a decision on qualified
immunity will be premature when there are unresolved disputes of
historical fact relevant to the immunity analysis.”); see also,
Reitz v. County of Bucks, 125 F.3d 139, 147 (3d Cir. 1997).

The

Court will use special jury interrogatories to guide the Court

about-- no, maybe a little bit closer because I was in my-they were standing in front of me and I was like standing maybe
five, five feet. I don’t know. I’m not exactly sure. But
maybe I was a little bit closer, like maybe this. Q: Like
three feet? A: Yes. That’s fair. Q: So while you were speaking
to them you were at some point five feet and then you moved
closer to three feet and then move back or tell me how it went?
A: I don’t think either way. I don’t even think I moved but I’m
not exactly sure of every move that I made but I don’t-- I did
not walk towards them pointing my finger and invading their
personal space.” (Walker Dep. p. 63-64)
12

As to the second step, this Court has already held that
the physical act requirement for obstruction of justice under
New Jersey law was clearly established prior to the relevant
time period here. Batiz, 2016 WL 299198 at *2-3.

16

in its ultimate determination of Defendants’ qualified immunity
defense.

See Curley, 298 F.3d at 279.

In the event the jury’s

answers establish that Plaintiff failed to comply, Defendants
will be entitled to qualified immunity.
B. Excessive Force
Plaintiff asserts that “Defendants Saunders and Mueller
used excessive force in charging at Plaintiff, pushing her
against the wall, grabbing her arm, and handcuffing Plaintiff
thereby causing bruising to Plaintiff’s arms.” (Opposition
Brief, Dkt. No. 42, p. 10) 13

Defendants respond that the force

used “was so minimal” that a reasonable factfinder could only
conclude that the Defendants’ actions were objectively
reasonable.
The Fourth Amendment permits the use of “reasonable” force.
Graham v. Connor, 490 U.S. 386, 396 (1989).

“[E]ach case

alleging excessive force must be evaluated under the totality of
the circumstances.”

Sharrar v. Felsing, 128 F.3d 810, 822 (3d

Cir. 1997).
While it is true that the undisputed record demonstrates
that Plaintiff’s injuries were relatively minimal, the Third

13

Plaintiff’s opposition papers concede that Defendant
Heller is entitled to summary judgment as to the excessive force
claim. Accordingly, Defendant Heller’s motion in this regard
will be granted.

17

Circuit has stated that “the absence of physical injury” does
not “necessarily signif[y] that the force has not been
excessive.”

Sharrar, 128 F.3d at 822.

The extent of the

resulting injuries from the force used is but one of many
factors that must be considered in evaluating reasonableness.
See id.
•

In this case, the jury will also be asked to consider:
the severity of the crime at issue;

•
whether Plaintiff posed an immediate threat to
the safety of Defendants or others;
•

the possibility that Plaintiff was armed;

•
the possibility that other persons subject to
the police action were violent or dangerous;
•
whether Plaintiff was actively resisting arrest
or attempting to evade arrest by flight;
•

the duration of Defendants’ action; [and]

•
the number of persons with whom Defendants had
to contend.

Third Circuit Model Jury Instruction 4.9 for Section 1983
Excessive Force Claims (March 2017)(citing Graham, 490 U.S. at
396; Kopec v. Tate, 361 F.3d 772, 777 (3d Cir. 2004)). 14

14

None of these factors require specialized knowledge for
which expert testimony would be required. Thus, the Court
rejects Defendants’ argument that they are entitled to summary
judgment because Plaintiff has produced no expert to opine that
the force used was excessive. (Moving Brief, Dkt. No. 41-1, p.
12-13)

18

At summary judgment the Court may not make credibility
determinations and must accept Plaintiff’s somewhat unlikely
version of events.

As set forth above, Plaintiff contends she

was not physically aggressive in any way with Defendants.
Indeed, Plaintiff denies even shouting at Defendants-notwithstanding her admission that she told Defendants to “get
the hell out”-- explaining that she “might talk loud and
somebody might interpret that in a different way,” (Walker Dep.
p. 57, 63) 15, and Hitchens’ testimony to the contrary.
Granting all inferences in favor of Plaintiff, if a jury
were to credit all of Plaintiff’s testimony (and discredit the
conflicting testimony), the jury could reasonably find that the
force used was unreasonable, and therefore summary judgment on
the constitutional question must be denied. 16

15

To provide full context, Plaintiff testified at her
deposition: “Q: Did you raise your voice to the police? A: I
don’t recall. Q: So there’s aspects of what happened in your
foyer on July 28th that you don’t remember, correct? A: No. . .
. That’s not correct. Q: So you do remember everything that
happened in your foyer on July 28th, correct? A: Yes, I do. Q;
But when I just asked you whether you raised your voice you said
that’s something you do not recall, is that correct, that you do
not recall that? A: My raising my voice, somebody – I might
talk loudly and somebody might interpret that in a different
way. I did not believe I was raising my voice but they may
have.” (Walker Dep. p. 62-63)
16

The Court also rejects Defendants’ argument that
Plaintiff’s evidence cannot support a finding that Defendants
caused the injuries to Plaintiff’s arms. (Moving Brief, Dkt. No.
41-1, p. 14) Again, although Defendants may prevail on this
issue at trial, this Court must grant all inferences in favor of
19

Additionally, the Court holds that Defendants are not
entitled to qualified immunity at this stage of the case.

The

Third Circuit has explained,
[i]n the context of excessive force claims, we have
relied on the factors set forth in Graham and Sharrar
in evaluating whether an officer made a reasonable
mistake.
We have stated that these factors are
‘well-recognized,’ and that when an officer applies
them in ‘an unreasonable manner, he is not entitled
to qualified immunity.’
Green v. New Jersey State Police, 246 Fed. App’x 158, 162-63 (3d
Cir. 2007).

Thus, the Court will resolve the issue of qualified

immunity by way of special interrogatories to the jury, and, if
necessary, Defendants may make an appropriate motion at the
appropriate time. 17
Defendants Saunders’ and Mueller’s Motion for Summary
Judgment on the excessive force claim will be denied.
C. Malicious Prosecution
“To prove malicious prosecution under § 1983, a plaintiff
must show that: (1) the defendants initiated a criminal

Plaintiff. The undisputed location of the marks and bruises, as
well as the temporal proximity between the time of Plaintiff’s
arrest and the development of the marks and bruises, is
sufficient evidence to support an inference that Defendants
caused Plaintiff’s physical injuries during the arrest.
17

To be clear, the Court is not denying Defendants Mueller
and Saunders qualified immunity on the excessive force claim.
Rather, the Court is simply deferring its qualified immunity
decision until the historical facts necessary to the qualified
immunity analysis are found by the jury. See Curley, 298 F.3d
at 279.
20

proceeding; (2) the criminal proceeding ended in plaintiff's
favor; (3) the proceeding was initiated without probable cause;
(4) the defendants acted maliciously or for a purpose other than
bringing the plaintiff to justice; and (5) the plaintiff
suffered deprivation of liberty consistent with the concept of
seizure as a consequence of a legal proceeding.” Kossler v.
Crisanti, 564 F.3d 181, 186 (3d Cir. 2009)(en banc).
Defendants argue they are entitled to summary judgment
because, as to the last element, the undisputed record shows
that Plaintiff suffered no post-arrest deprivation of liberty
consistent with the concept of seizure.

Plaintiff argues,

without citation to any legal authority, that “Plaintiff’s
liberty was [] curtailed, constituting a seizure, because she
was issued a Disorderly Conduct Summons which required her
attendance at court until her case was dismissed at court.”
(Opposition Brief, Dkt. No. 42, p. 14)

Plaintiff’s argument

fails.
In order to sustain a malicious prosecution claim,
Plaintiff must put forward evidence that, “between arrest and
pretrial detention,” she was subject to a “seizure significant
enough to constitute a Fourth Amendment violation.” DiBella v.
Borough of Beachwood, 407 F.3d 599, 603 (3d Cir. 2005)(emphasis
added).

“Being required to post bail, restrictions on travel,

and other types of onerous non-custodial restrictions may

21

satisfy the fifth element.

Merely being required to appear at

trial, however, is not a sufficient deprivation of liberty to
meet this requirement.” Wiltz v. Middlesex County Office of
Prosecutor, 249 F. App’x 944, 949 (3d Cir. 2007)(emphasis
added)(citing Gallo v. City of Philadelphia, 161 F.3d 217, 222
(3d Cir. 1998), and DiBella, 407 F.3d at 603).
In DiBella, the Third Circuit affirmed the district court’s
vacating of a jury award, holding that “there had been no Fourth
Amendment seizure as required in a malicious prosecution action
under [] § 1983.” 407 F.3d at 600.

In that case, the defendant

police officer issued the plaintiffs “a summons for defiant
trespass under N.J.S.A. 2C:18-3B, a petty disorderly persons
offense.”

Id.

The plaintiffs appeared for their municipal

court trial and were convicted, but the convictions were later
reversed on appeal.

Id.

Afterwards, the plaintiffs filed suit

for malicious prosecution.
The Third Circuit explained that the plaintiffs “failed to
state a cause of action for malicious prosecution because their
attendance at trial did not qualify as a Fourth Amendment
seizure.” DiBella, 407 F.3d at 603.

The Court further

elaborated, plaintiffs “were only issued a summons; they were
never arrested; they never posted bail; they were free to
travel; and they did not have to report to Pretrial Services.”
Id.

22

Applying DiBella’s holding to this case, the undisputed
record cannot support a malicious prosecution claim.

Just like

the plaintiffs in DiBella, Plaintiff in this case was merely
issued a summons for a disorderly persons offense.

She was not

required to post bail, or report to Pretrial Services, nor was
she subject to any other type of “onerous” pretrial restriction
on her liberty.

Wiltz, 249 F. App’x at 949; see also, Mantz v.

Chain, 239 F. Supp. 2d 486, 503 (D.N.J. 2002)(Brotman, S.D.J.)
(in a pre-DiBella case, granting summary judgment on plaintiff’s
malicious prosecution claim, explaining, “[t]his Court is
inclined to agree with those courts which have held, as has the
Court of Appeals for the First Circuit, that the issuance of a
summons requiring a criminal defendant to appear in court on a
specific date does not, by itself, amount to a ‘seizure’ under
the Fourth Amendment.”); Fernandez v. Stack, 2006 WL 777033 at
*8 (D.N.J. Mar. 27, 2006)(granting summary judgment on a
malicious prosecution claim, following DiBella and Mantz). 18

18

The short period of time that Plaintiff was seated,
handcuffed in the back of Defendant Mueller’s patrol vehicle
(Saunders Dep. p. 32-34), is not a seizure considered in the
malicious prosecution analysis because it undisputedly occurred
prior to the issuance of the summons. See Johnson v. Knorr, 477
F.3d 75, 82 (3d Cir. 2007)(“Malicious prosecution differs from
false arrest inasmuch as a claim for false arrest, unlike a
claim for malicious prosecution, covers damages only for the
time of detention until the issuance of process or arraignment,
and not more.”); Taylor v. Officer Joseph Mazzone, 2016 WL
4272266 at *4 (E.D. Pa. Aug. 12, 2016)(“Additionally, Taylor has
failed to allege she suffered a deprivation of liberty
23

Accordingly, Defendants’ Motion for Summary Judgment will
be granted as to the malicious prosecution claim.
D. “Fourth Amendment Trespass”
Plaintiff asserts three distinct Fourth Amendment
violations.

First, she asserts that she never gave Defendant

Mueller (as opposed to Defendants Heller and Saunders)
permission to enter her house, therefore, Plaintiff claims,
Defendant Mueller violated the Fourth Amendment by entering her
house.

Second, Plaintiff asserts that all three Defendants

violated the Fourth Amendment by not leaving the house upon
Plaintiff telling them to “get the hell out.”

Third, Plaintiff

asserts that Defendant Mueller violated the Fourth Amendment
when he walked around her house to knock on the back door.
1. Defendant Mueller’s entry into the house
No Fourth Amendment violation occurs when police officers
obtain consent to enter a person’s home. Illinois v. Rodriguez,
497 U.S. 177, 181 (1990); see also, United States v. Givan, 320
F.3d 452, 459 (3d Cir. 2003)(“a search conducted pursuant to
consent is one of the specifically established exceptions to the
warrant requirement.”).

The issue is whether Plaintiff, through

consistent with the concept of seizure as
legal proceeding. Taylor alleges she was
being held in custody before charges were
Malicious prosecution permits damages for
liberty imposed pursuant to legal process
Johnson).
24

a consequence of a
deprived of liberty by
filed against her.
deprivations of
only.”)(citing

her actions, implicitly consented to Defendant Mueller’s
entrance into the foyer of her home.

See United States v.

Walker, 529 F. App’x 256, 263 (3d Cir. 2013)(“Hull argues that
he never specifically consented to the officers’ search of the
purse.

That is not determinative.

would be no less valid.”). 19

An implied consent to search

The Court holds yes.

The Court considers the totality of the circumstances to
determine implied consent.

Walker, 529 F. App’x at 263 (citing

United States ex rel. Harris v. Hendricks, 423 F.2d 1096 (3d
Cir. 1970)).

“[I]if [Plaintiff] said or did something that

permitted the officers to form a reasonable belief that
[Plaintiff] was authorizing them to [enter her home] then
[Plaintiff] may be deemed to have impliedly consented.”

Id.

It is undisputed that Plaintiff gave Defendants Saunders
and Heller permission to enter her home.

Plaintiff further

testified that “about a minute after [Officers Saunders and
Heller] entered my house and shut the door, about a minute later
Officer Mueller entered.

So at that time all three officers

were standing right in the foyer area.” (Walker Dep. p. 57)
When Plaintiff allowed Defendants Heller and Saunders into
her home, and then did not object when “about a minute later”

19

For this reason, the dispute of fact concerning whether
Plaintiff affirmatively invited Defendant Mueller into the house
does not preclude summary judgment on this claim.
25

Defendant Mueller joined them, Defendant Mueller had reasonable
grounds to believe that Plaintiff had consented to Defendant
Mueller’s entrance.

Therefore, the Court holds Plaintiff

impliedly consented to Defendant Mueller’s entry into her home,
and no Fourth Amendment violation occurred.
Alternatively, Defendant Mueller is entitled to qualified
immunity.

A reasonable officer in Defendant Mueller’s position

could have reasonably believed that Plaintiff impliedly
consented to Defendant Mueller’s entrance into the house along
with the other two officers.

The Motion for Summary Judgment

will be granted as to this claim.
2. Plaintiff’s revocation of consent
Plaintiff contends that all three Defendants violated her
Fourth Amendment rights when they did not leave her house upon
her order to get out.

This argument somewhat distorts the

record insofar as according to Plaintiff’s own testimony, all
three Defendants could not have been in the house “more than two
minutes.” (Walker Dep. p. 71-72)

Thus, a more accurate framing

of the issue is whether Defendants violated Plaintiff’s Fourth
Amendment rights by not immediately leaving the house-- i.e.,
overstaying their welcome by a minute, perhaps-- when Plaintiff
supposedly told them to get out.
Without deciding the constitutional question, the Court
holds that Defendants are entitled to qualified immunity.

26

It

would be not be clear to a reasonable official in the situation
he confronted that leaving Plaintiff’s house within
approximately a minute of her revocation of consent violated the
Fourth Amendment.

The Motion for Summary Judgment will be

granted as to this claim.
3. Defendant Mueller’s walk to the back of the house
Plaintiff contends that Defendant Mueller violated her
Fourth Amendment rights when he “went into the backyard, the
curtilage of Plaintiff’s home.” (Opposition Brief, Dkt. No. 42,
p. 16)

According to Plaintiff, this was a “trespass” which

violated the Fourth Amendment.

Plaintiff cites no legal

authority for this particular argument.
The undisputed record demonstrates that Hitchens lived at
the house, the officers knew she lived at the house because they
checked her identification, and Hitchens “invited [the officers]
onto the property.” (Saunders Dep. p. 17, 13)

As already

stated, “a search conducted pursuant to consent is one of the
specifically established exceptions to the warrant requirement.”
United States v. Givan, 320 F.3d 452, 459 (3d Cir. 2003).

A

reasonable factfinder could only find on this record that
Hitchens consented to Officer Mueller walking onto the property
in an attempt to make contact at the back door.
Officer Mueller’s testimony that he “had no permission to
go onto the property” when he walked around to the back of the

27

house (Mueller Dep. p. 7-8) does not preclude summary judgment
on this claim.

As set forth above, express verbal permission is

not required to establish consent.

See Walker, 529 F. App’x at

263.
The Motion for Summary Judgment will be granted as to this
claim.
IV.

CONCLUSION
For the foregoing reasons, Defendants’ Motion for Summary

Judgment will be granted in part and denied in part as follows.
The Motion will be granted as to the malicious prosecution
claim, all “Fourth Amendment trespass” claims, and the excessive
force claim against Defendant Heller only.
denied in all other respects.

The Motion will be

An appropriate Order shall issue

on this date.

Dated: October 24, 2017
__s/ Renée Marie Bumb_______
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE

28