DITULLIO v. BOROUGH OF BERLIN et al

Filing 33

OPINION. Signed by Judge Joseph H. Rodriguez on 3/18/2019. (rss, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JAMES DITULLIO,

:

Hon. Joseph H. Rodriguez

Plaintiff,

:

Civil Action No. 16-2775

v.

:

BOROUGH OF BERLIN and
PATROLMAN RYAN HERON,

OPINION

:

Defendants.

:

This matter is before the Court on Defendants’ motion for summary
judgment [24] pursuant to Federal Rule of Civil Procedure 56. The Court
has reviewed the submissions and decides the matter based on the briefs
pursuant to Fed. R. Civ. P. 78(b). For the reasons stated here, the motion
will be granted.
Jurisdiction
This is a civil action over which the district court has original
jurisdiction based on a question “arising under the Constitution, laws, or
treaties of the United States.” See 28 U.S.C. § 1331. Plaintiff asserts a
violation of his civil rights pursuant to 42 U.S.C. § 1983.
Background
On May 18, 2014 at the Berlin Farmers Market in Berlin, New Jersey,
Plaintiff James DiTullio interjected himself into a situation where police
officers were questioning another patron attempting to sell puppies at the
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market without a permit. An altercation between the police officers and
Plaintiff ensued, resulting in Plaintiff’s arrest.
In this case, Plaintiff has asserted claims against Defendant Heron
under 42 U.S.C. § 1983 for false arrest/imprisonment, excessive force,
conspiracy, and bystander liability as well as a Monell claim against the
municipality. In briefing the opposition to the motion before the Court,
Plaintiff has conceded the Monell claim.
Summary Judgment Standard
“Summary judgment is proper if there is no genuine issue of material
fact and if, viewing the facts in the light most favorable to the non-moving
party, the moving party is entitled to judgment as a matter of law.” Pearson
v. Component Tech. Corp., 247 F.3d 471, 482 n.1 (3d Cir. 2001) (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)); accord Fed. R. Civ. P. 56
(a). Thus, the Court will enter summary judgment in favor of a movant who
shows that it is entitled to judgment as a matter of law, and supports the
showing that there is no genuine dispute as to any material fact by “citing to
particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations,
stipulations . . . admissions, interrogatory answers, or other materials.”
Fed. R. Civ. P. 56 (c)(1)(A).

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An issue is “genuine” if supported by evidence such that a reasonable
jury could return a verdict in the nonmoving party’s favor. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is “material” if, under
the governing substantive law, a dispute about the fact might affect the
outcome of the suit. Id. In determining whether a genuine issue of material
fact exists, the court must view the facts and all reasonable inferences
drawn from those facts in the light most favorable to the nonmoving party.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Initially, the moving party has the burden of demonstrating the
absence of a genuine issue of material fact. Celotex Corp. 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. Id.; Maidenbaum v. Bally’s
Park Place, Inc., 870 F. Supp. 1254, 1258 (D.N.J. 1994). 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. Andersen, 477 U.S. at 256-57. “A nonmoving
party may not ‘rest upon mere allegations, general denials or . . . vague
statements . . . .’” Trap Rock Indus., Inc. v. Local 825, Int’l Union of
Operating Eng’rs, 982 F.2d 884, 890 (3d Cir. 1992) (quoting Quiroga v.
Hasbro, Inc., 934 F.2d 497, 500 (3d Cir. 1991)). Indeed,
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the plain language of Rule 56(c) mandates the entry of
summary judgment, after adequate time for discovery and
upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential
to that party’s case, and on which that party will bear the
burden of proof at trial.
Celotex, 477 U.S. at 322. That is, the movant can support the assertion that
a fact cannot be genuinely disputed by showing that “an adverse party
cannot produce admissible evidence to support the [alleged dispute of]
fact.” Fed. R. Civ. P. 56(c)(1)(B); accord Fed. R. Civ. P. 56(c)(2).
In deciding the merits of a party’s motion for summary judgment, the
court’s role is not to evaluate the evidence and decide the truth of the
matter, but to determine whether there is a genuine issue for trial.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Credibility
determinations are the province of the factfinder. Big Apple BMW, Inc. v.
BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).
Discussion
42 U.S.C. § 1983
Plaintiff’s Constitutional claims are governed by Title 42 U.S.C. §
1983, which provides a civil remedy against any person who, under color of
state law, deprives another of rights protected by the United States
Constitution. See Collins v. City of Harker Heights, 503 U.S. 115, 120

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(1992). Any analysis of 42 U.S.C. § 1983 should begin with the language of
the statute:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia,
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.
See 42 U.S.C. § 1983.
As the above language makes clear, Section 1983 is a remedial statute
designed to redress deprivations of rights secured by the Constitution and
its subordinate federal laws. See Baker v. McCollan, 443 U.S. 137, 145 n.3
(1979). By its own words, therefore, Section 1983 “does not . . . create
substantive rights.” Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir.
2006) (citing Baker, 443 U.S. at 145, n.3).
To state a cognizable claim under Section 1983, a plaintiff must allege
a “deprivation of a constitutional right and that the constitutional
deprivation was caused by a person acting under the color of state law.”
Phillips v. County of Allegheny, 515 F.3d 224, 235 (3d Cir. 2008) (citing
Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996)). Thus, a plaintiff must
demonstrate two essential elements to maintain a claim under § 1983: (1)
that the plaintiff was deprived of a “right or privileges secured by the
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Constitution or the laws of the United States” and (2) that plaintiff was
deprived of his rights by a person acting under the color of state law.
Williams v. Borough of West Chester, Pa., 891 F.2d 458, 464 (3d Cir. 1989).
[W]hen a state prisoner seeks damages in a § 1983 suit, the
district court must consider whether a judgment in favor of the
plaintiff would necessarily imply the invalidity of his conviction
or sentence; if it would, the complaint must be dismissed unless
the plaintiff can demonstrate that the conviction or sentence
has already been invalidated. But if the district court
determines that the plaintiff's action, even if successful,
will not demonstrate the invalidity of any outstanding criminal
judgment against the plaintiff, the action should be allowed to
proceed, in the absence of some other bar to the suit.
Heck v. Humphrey, 512 U.S. 477, 486-87 (1994).
In this case, Plaintiff was indicted and charged with obstructing the
administration of law in violation of N.J. Stat. Ann. § 2C:29-1A; assault on a
police officer in violation of N.J. Stat. Ann. § 2C:12-1B(5)(A); resisting
arrest in violation of N.J. Stat. Ann. § 2C:29-2A(3)(A); and simple assault
in violation of N.J. Stat. Ann. § 2C:12-1a. He completed New Jersey’s PreTrial Intervention Program (PTI) in October of 2015 and, as a result, the
charges against him were dismissed. However, this does not constitute a
favorable termination; for Heck purposes, it is akin to a conviction. See
Fernandez v. City of Elizabeth, 468 F. App’x 150, 154 (3d Cir. 2012);
Bustamante v. Borough of Paramus, 994 A.2d 573, 582 (N.J. Super. Ct.
App. Div. 2010).
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Plaintiff’s claims of false arrest and excessive force are barred by Heck
because a favorable outcome on those claims here would be inconsistent
with the admissions Plaintiff made in State court in order to enter into the
PTI program. By pleading guilty to resisting arrest, Plaintiff acknowledged
that Defendants did not use unlawful force in effectuating his arrest, see
Bustamante, 994 A.2d at 585-86, and there are no allegations of force
subsequent to the arrest. Accordingly, a judgment in favor of the Plaintiff
on his claims here would necessarily imply the invalidity of his underlying
criminal “conviction” in State court.
Additionally, the doctrine of qualified immunity provides that
“government officials performing discretionary functions . . . are shielded
from liability for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable
person should have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982). Thus, government officials are immune from suit in their individual
capacities unless, “taken in the light most favorable to the party asserting
the injury, . . . the facts alleged show the officer’s conduct violated a
constitutional right” and “the right was clearly established” at the time of
the objectionable conduct. Saucier v. Katz, 533 U.S. 194, 201 (2001). Courts
may exercise discretion in deciding which of the two prongs of the qualified

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immunity analysis should be addressed first in light of the circumstances in
the particular case at hand. Pearson v. Callahan, 555 U.S. 223, 236 (2009).
This doctrine “balances two important interests—the need to hold
public officials accountable when they exercise power irresponsibly and the
need to shield officials from harassment, distraction, and liability when
they perform their duties reasonably” and it “applies regardless of whether
the government official’s error is a mistake of law, a mistake of fact, or a
mistake based on mixed questions of law and fact. Id. (internal quotation
omitted). Properly applied, qualified immunity “protects ‘all but the plainly
incompetent or those who knowingly violate the law.’” Ashcroft v. al-Kidd,
5623 U.S. 731, 743 (2011) (quoting Malley v. Briggs, 475 U.S. 335, 341
(1986)).
For a right to be clearly established, “[t]he contours of the right must
be sufficiently clear that a reasonable official would understand that what
he is doing violates that right.” Saucier, 533 U.S. at 202 (quoting Anderson
v. Creighton, 483 U.S. 635, 640 (1987)). That is, “[t]he relevant, dispositive
inquiry in determining whether a right is clearly established is whether it
would be clear to a reasonable officer that his conduct was unlawful in the
situation he confronted.” Couden v. Duffy, 446 F.3d 483, 492 (3d Cir,
2006). “If the officer’s mistake as to what the law requires is reasonable,”
the officer is entitled to qualified immunity. Id. (internal citations omitted).
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Further, “[i]f officers of reasonable competence could disagree on th[e]
issue, immunity should be recognized.” Malley, 475 U.S. at 341. See also
Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (The general touchstone is
whether the conduct of the official was reasonable at the time it occurred.).
Finally, because qualified immunity is an affirmative defense, the burden of
proving its applicability rests with the defendant. See Beers-Capital v.
Whetzel, 256 F.3d 120, 142, n.15 (3d Cir. 2001).
A Fourth Amendment excessive force claim calls for an evaluation of
whether police officers’ actions are objectively reasonable in light of the
facts and circumstances confronting him. Graham v. Conner, 490 U.S. 386,
397 (1989). While the question of reasonableness is objective, the court
may consider the severity of the crime at issue, whether the suspect poses
an immediate threat to the safety of the officers or others, and whether the
suspect is actively resisting arrest or attempting to evade arrest by flight. Id.
In a claim for excessive force, “the central question is ‘whether force was
applied in a good faith effort to maintain or restore discipline, or
maliciously and sadistically to cause harm.’” Brooks v. Kyler, 204 F.3d 102,
106 (3d Cir. 2000) (quoting Hudson v. McMillian, 503 U.S. 1, 7 (1992)). 
Furthermore, appropriate attention should be given “to the
circumstances of the police action, which are often ‘tense, uncertain, and
rapidly evolving.’” Groman v. Township of Manalapan, 47 F.3d 628, 634
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(3d Cir. 1995) (quoting Graham, 490 U.S. at 396). See also Graham, 490
U.S. at 396-97 (analyzing reasonableness of use of force “from the
perspective of a reasonable officer on the scene, rather than with the 20/20
vision of hindsight”).
A § 1983 claim for the failure to stop the use of excessive force rises to
the level of a constitutional violation if excessive force was used and
defendants had a reasonable opportunity to prevent the use of excessive
force. See, e.g., Smith v. Mensinger, 293 F.3d 641, 650 (3d Cir. 2002).
In this case, Defendant Heron enjoys qualified immunity as the
undisputed facts support the arresting officer’s probable cause to arrest the
Plaintiff. In addition, because the Court finds no basis for constitutional
violations, there can be no conspiracy or bystander liability.
Conclusion
For these reasons, Defendants’ motion for summary judgment [24]
pursuant to Federal Rule of Civil Procedure 56 will be granted.
An appropriate Order will accompany this Opinion.

Dated: March 18, 2019

s/ Joseph H. Rodriguez
JOSEPH H. RODRIGUEZ
U.S.D.J.

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