ALVAREZ et al v. TROPICANA HOTEL AND CASINO et al

Filing 64

OPINION. Signed by Judge Noel L. Hillman on 7/24/2017. (rtm, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

NORMA ALVAREZ and TIFFANY
BAEZ,
1:15-cv-02061-NLH-JS
Plaintiffs,
OPINION
v.
CITY OF ATLANTIC CITY and
OFFICER JOSE GONZALEZ,
Defendants.

APPEARANCES:
DAVID R. CASTELLANI
CASTELLANI LAW FIRM, LLC
450 TILTON ROAD
SUITE 245
NORTHFIELD, NJ 08225
On behalf of Plaintiffs
MORRISON KENT FAIRBAIRN
MICHAEL A. ARMSTRONG & ASSOCIATES, LLC
79 MAINBRIDGE LANE
WILLINGBORO, NJ 08046
On behalf of Defendant City of Atlantic City
TRACY L. RILEY
RACHEL M. CONTE
LAW OFFICES OF RILEY & RILEY
100 HIGH STREET
SUITE 302
MT. HOLLY, NJ 08060
On behalf of Defendant Officer Jose Gonzalez
HILLMAN, District Judge
This case involves claims of excessive force by an Atlantic
City police officer at an Atlantic City casino nightclub, and

claims of municipal liability against the City of Atlantic City
for having a policy and custom of condoning the use of excessive
force.

Presently before the Court is the motion of the

individual police officer defendant for summary judgment in his
favor.

For the reasons expressed below, Defendant’s motion will

be denied.
BACKGROUND
In the early morning hours of March 23, 2013, Plaintiff
Tiffany Baez and a group of female friends, including former
plaintiff Norma Alvarez who has now settled her claims with the
defendants, went to the Providence nightclub in the Tropicana
Hotel and Casino in Atlantic City, New Jersey.

An incident took

place in the women’s restroom between one of the members of
Baez’s group and the ladies’ room attendant. 1

As a result of

that incident, a Providence security guard and defendant Officer
Jose Gonzalez, an Atlantic City police officer who was working a
special detail at the nightclub, told the entire group to leave
the club.

The women left the club through the valet area

without incident, and Baez asked Gonzalez how they could reenter

1

Defendant contends that one of the members of the group, but
not Baez or Alvarez, stole the money out of the attendant’s tip
jar.
2

the casino.

A few minutes later, Baez and the rest of the group

returned to the Providence nightclub.
Those are the only relevant facts that the parties agree on
with regard to what occurred at the nightclub.

Baez claims that

her acquaintance, a Providence security guard named Nestor
stationed at the entrance, allowed Baez and the group to reenter
the club.

Baez claims that even though the group was talking

peacefully between themselves, and she had only consumed one or
two alcoholic drinks the entire night, within minutes Gonzalez
approached them to again escort them from the club.

Because the

music was so loud, Baez leaned into Gonzalez to tell him that
they were going to leave when suddenly and without provocation
Gonzalez pushed her and Alvarez into the crowd of people,
causing them to stumble backwards.
Baez further claims that Gonzalez hit her hand, and then
punched her directly in the face, causing her to fall to the
ground, where Gonzalez pounced on her with his knee on her back,
and continued to punch her numerous times in the face.

Baez

asserts that Gonzalez ripped her shirt tight to her neck,
popping the first button, in effect choking her.

Gonzalez then

handcuffed Baez while she was on the ground, and directed her to
a back room, where Baez claims that Gonzalez stated, “That’s
right bitch, you just got fucked by a cop.”
3

In contrast to Baez’s account, Gonzalez claims that the
women, including Baez, were visibly intoxicated and “mouthy”
from the time they were escorted out of the nightclub and also
when they returned.

Gonzalez provides the testimony of the

security guard Nestor, who states that he did not allow Baez and
her friends back into the club.

However they got back in,

Gonzalez was again asked by Providence security for assistance
in escorting the group out of the club.

When Gonzalez

approached the group and told them to leave, everyone ignored
his command.

He claims that Baez moved toward him and shouted,

“Get the fuck off my girl,” referring to Alvarez.

Gonzalez

claims that Baez used the palm of her hand to strike him, which
caused his radio mic to fall to the ground.

Gonzalez claims

that he tried to create space between him and Baez by using a
swiping motion.

Gonzalez claims that Baez grabbed onto his

shirt, at which time he struck her one time, causing her to
stumble backwards.

Because of Baez’s grip on his shirt,

Gonzalez stumbled with her onto the ground.

Gonzalez struggled

with Baez before he was finally able to handcuff her and bring
her into a back room for transport to the police station.
From that point, Baez was taken to the Atlantic City Police
Department, locked in a holding cell, and then transported to
the Atlantic City Medical Center emergency room to be treated
4

for her injuries.

After receiving medical care, Baez went to

the Atlantic County jail, where $15,000 bail was set.

Baez was

indicted for aggravated assault and resisting arrest.

After

being initially rejected from the pre-trial intervention
program, a judge ordered that Baez be permitted to enter the PTI
program.

Baez brought criminal charges against Gonzalez for

assault.

The matter was tried before a municipal court judge,

who granted Gonzalez’s motion to dismiss, finding him not guilty
of assault.
Based on these events, Baez brought suit against Gonzalez
and the City of Atlantic for various constitutional and state
law violations.

By way of stipulation, the remaining claims in

the case are for violation of Baez’s Fourth Amendment rights due
to Gonzalez’s alleged use of excessive force and Atlantic City’s
policies and customs which plaintiff contends condone its
officers’ use of excessive force. 2

2

Baez’s claims against Atlantic City are premised on Monell v.
New York City Dep’t of Social Services, 436 U.S. 658, 690
(1978), which provides that local governments cannot be held
liable for the actions of their employees solely based on the
doctrine of respondeat superior, but rather, 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. Atlantic City has
not moved for summary judgment on Baez’s Monell claims against
it.
5

Gonzalez has moved for summary judgment in his favor,
arguing that no reasonable juror could find that his use of
force was unreasonable under the circumstances, as supported by
his and his witnesses’ testimony, along with the video
surveillance that captured the events in the nightclub.

Baez

has opposed Gonzalez’s motion, arguing that her version of what
happened is supported by photographs of her injuries, her
testimony, the testimony of Alvarez, and the video, which does
not support Gonzalez’s account of the incident as he contends.
DISCUSSION
A.

Jurisdiction

Because Plaintiff has brought her claims pursuant to 42
U.S.C. § 1983, this Court has jurisdiction over these claims
under 28 U.S.C. § 1331. 3
B.

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,

3

Plaintiff’s complaint alleged violations of New Jersey state
law, over which this Court exercised supplemental jurisdiction
under 28 U.S.C. § 1367. Plaintiff has stipulated to the
dismissal of those state law claims.
6

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
law.

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
party’s favor.
248 (1986).

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.

Id.

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).

Celotex Corp.

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.

Id.

Thus, to withstand a properly

7

supported motion for summary judgment, the nonmoving party must
identify specific facts and affirmative evidence that contradict
those offered by the moving party.
57.

Anderson, 477 U.S. at 256-

A party opposing summary judgment must do more than just

rest upon mere allegations, general denials, or vague
statements.

Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir.

2001).
C.

Analysis

Section 1983 is not a source of substantive rights, but
provides a vehicle for vindicating the violation of other
federal rights.

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);

8

Piecknick v. Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir. 1994).
For Plaintiff’s claims against the individual defendant
acting in his 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).

Pearson v.

Courts are “permitted to

exercise their sound discretion in deciding which of the two
prongs of the qualified immunity analysis should be addressed
first.”

Id.

It is the defendant's burden to establish

entitlement to qualified immunity.

Kopec v. Tate, 361 F.3d 772

(3d Cir. 2004).
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.
9

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.”

Id. (relying

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
one time.”

Id.

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
10

to resolve the disputed facts upon which the court can then
determine, as a matter of law, the ultimate question of
qualified immunity.”

Id.

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.”

Id.

The evidence in the record, most of which is in dispute in
light of the two very different accounts of what occurred,
prevents the Court from determining at this time whether
Gonzalez’s use of force was objectively reasonable.

The Graham

factors employed to determine the objective reasonableness of
Gonzalez’s actions cannot be assessed without the Court
crediting one party’s version of events over the other party’s
version, which is impermissible for the Court to do on summary
judgment.

A jury must weigh the credibility of the parties and

their witnesses to determine what occurred between Baez and
Gonzalez at the casino club that night.
Unlike the parties’ and other witnesses’ testimony, the
video surveillance of the encounter, which is the primary piece
of evidence in the case, is not subject to a credibility
assessment.

Gonzalez relies heavily on this video, arguing that
11

it clearly depicts what happened as he says it happened, and
that the video supports that his use of force was reasonable.
Baez, in contrast, argues that the video speaks for itself, it
support her version of events, and it is subject to the review
and perception of the jury.
The Court has viewed the video several times, and finds
that a jury must watch and assess the footage because it is not
as unequivocal as Gonzalez contends.

A jury could find that it

supports Baez’s version of events rather than Gonzalez’s, or a
jury could interpret what it sees to support Gonzalez’s account
of what occurred over Baez’s.

Because the video could support

various outcomes, a jury must decide which version to believe.
Either way it decides, a jury’s assessment of the video, in
combination with the other evidence, including testimony,
photographs, and other documents, must be performed so that the
Court may make the ultimate determination as to whether
Gonzalez’s use of force on Baez was reasonable. 4

4

This is not a case where even if all of the plaintiff’s claims
are accepted as true, the defendant officer’s actions could be
found to be objectively reasonable. Cf. Couden v. Duffey, 412
F. App’x 476, 482 (3d Cir. 2011) (affirming the district court,
which found that the facts, even when viewed most favorably to
the plaintiff, did not support a claim of excessive force, as
the officer’s actions were objectively reasonable even if he
acted as the plaintiff contended); Feldman v. Community College
of Allegheny (CCAC), 85 F. App’x 821, 826 (3d Cir. 2004) (“[W]e
agree with the District Court's assessment that, even accepting
12

Consequently, because disputed material facts must be
resolved by a jury prior to the Court’s determination of whether
Gonzalez is entitled to qualified immunity, Gonzalez’s motion
for summary judgment must be denied. 5
An appropriate Order will be entered.

Date:
July 24, 2017
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

Feldman's description of the arrest, the force resulted as part
of the struggle and was not excessive in light of Feldman's
physical resistance. The force was reasonable under Groman and
fails to amount to a § 1983 violation.”). In this case, if the
Court accepted as true Baez’s version of events, and also
considered the photographs and medical records of her injuries,
it would be clear that the force used under those circumstances
would not be objectively reasonable.
5

The parties do not dispute Baez’s right to be free from
excessive force in her seizure and subsequent arrest. Since
that right is clearly established, it appears that if the Court
ultimately determines that Gonzalez used excessive force on
Baez, the second step of the analysis would be resolved against
a finding of qualified immunity.
13