HARVEY v. GZPLINSKI et al

Filing 32

OPINION. Signed by Judge Renee Marie Bumb on 5/8/2019. (tf, n.m.)

[Dkt. No. 24]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

WARDELL HARVEY,
Plaintiff,
Civil No. 16-8181(RMB/AMD)
v.
PETE CZPLINSKI; et al.,

OPINION

Defendants.

RENÉE MARIE BUMB, United States District Judge:
Pro se Plaintiff Wardell Harvey (“Plaintiff”) brings this
civil rights action under 42 U.S.C. § 1983, alleging that
various Egg Harbor Township police officers used excessive force
during his arrest in November 2014.

Now, this matter comes

before the Court upon a Motion for Summary Judgment (“MSJ”)[Dkt.
No. 24], filed by Defendants Sergeant Charles Super, Officer
Gary Johnson, and Officer Jon D’Augustine (“Defendants”) on
October 25, 2017, seeking the dismissal of Plaintiff’s
complaint.

Despite this Court’s repeated extensions, over a

year and a half later, Plaintiff has never submitted a
substantive opposition to Defendants’ motion.

For the reasons

set forth herein, Defendants’ Motion for Summary Judgment will
be GRANTED and Plaintiff’s complaint will be DISMISSED.

I.

FACTUAL BACKGROUND
Late in the evening of November 1, 2014, officers from the

Egg Harbor Township Police Department responded to 911 call from
Marlene Delarosa, who reported that “2 dudes” were trying to get
into her residence. Defendants’ Statement of Facts
24-6], at ¶ 1.

1(“DSOF”)[Dkt.

Upon responding to the scene, officers observed

a white Mercedes backing out of the driveway. Id. at ¶ 2. The
officers proceeded to pull over the white Mercedes and observed
that there were two black males in the vehicle, which displayed
New Jersey registration number H86DSX. Id.

As the officers

began approaching the Mercedes, the vehicle abruptly fled the
scene, nearly striking several parked cars on the street. Id.
The officers returned to their vehicle and advised dispatch
about what had occurred. Id. at ¶ 3.

The officers also advised

dispatch that Ms. Delarosa had informed them that the Mercedes

1

The Court notes that Defendants’ Statement of Facts was
contained within the summary judgment brief. This fails to
formally comply with Local Rule 56.1, which requires the movant
to furnish a statement of material facts as “a separate document
(not part of a brief).” See L. Civ. R. 56.1(a). However, as
Defendants’ Statement of Facts is unopposed and structured “in
separately numbered paragraphs citing to the affidavits and
other documents submitted in support of the motion,” the Court
will accept the statement of facts in this instance.
Furthermore, because Plaintiff failed to respond to Defendants’
Motion for Summary Judgment, the facts contained in Defendants’
Statement of Facts shall be “deemed undisputed for the purposes
of the summary judgment motion.” L. Civ. R. 56.1(a).
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had bullet holes and had been outfitted with bullet-proof glass.
Id. at ¶ 4.
After receiving notification from dispatch that the white
Mercedes was last seen on Zion Road entering Egg Harbor
Township, Sergeant Charles Super observed the vehicle in
question heading westbound on Zion Road at a high rate of speed
with a complete disregard for the safety of others. See DSOF, at
¶ 6.

After an approximately 15-minute pursuit, two patrol cars

forced the white Mercedes to stop by eliminating escape routes.
Id.

During this process, Sergeant Super pulled his patrol car

in front of the Mercedes and Officer Gary Johnson pulled his
patrol car approximately 20-feet behind the Mercedes. Id. at ¶¶
7-8.
Sergeant Super exited his vehicle with his weapon drawn and
instructed the occupants of the Mercedes to put their hands up.
See DSOF, at ¶ 7. However, the driver, later identified as the
Plaintiff, put the car in reverse and began to back his car
towards Officer Johnson’s vehicle. Id. at ¶ 8.

Observing the

Mercedes reversing towards his own patrol vehicle, Officer
Johnson exited his car with his gun drawn and ordered Plaintiff
to turn off the vehicle and exit with his hands up. Id.

As

Plaintiff continued to reverse the Mercedes, Officer Jon
D’Augustine approached the scene. Id.

Fearing that Plaintiff

would continue to accelerate and flee the scene, Officer Johnson
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opened the door to the Mercedes and grabbed Plaintiff’s arm to
pull him out of the car. Id.

At this point, the officers could

smell the “overwhelming odor of alcohol” emanating from the
vehicle. Id.

Despite the officers’ warnings that Plaintiff was

under arrest and numerous verbal commands to exit the vehicle,
Plaintiff continued to resist. Id.
During the ensuing struggle, Officers Johnson and
D’Augustine, as well as Plaintiff, fell to the ground, causing
Plaintiff to hit his face on the asphalt. See DSOF, at ¶ 8.
While on the ground, Plaintiff continued to resist for
approximately one minute, until the officers successfully gained
control of the situation and handcuffed Plaintiff. Id.

At this

point, Plaintiff was searched and officers found a glass pipe
for smoking cocaine with residue. Id.

Meanwhile, Sergeant Super

took the vehicle’s passenger, Douglas Edwards, into custody
without incident. See Sgt. Super’s Investigative Report (“Ehibit
F”)[Dkt. No. 24-12], at 3.
An ambulance was requested on the scene to treat Plaintiff
for injuries sustained during the struggle. See DSOF, at ¶ 9.
Plaintiff was first transported to Hammonton Hospital, where he
refused to consent to giving blood and urine samples. Id.

At

the hospital, Plaintiff’s breath continued to smell strongly of
alcohol. Id.

Plaintiff was then transferred to Cooper Hospital

for treatment of an orbital fracture sustained during the
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struggle with the officers. Id.

Officer D’Augustine also

suffered injuries to his back during the struggle. Id. at ¶ 11.
The Egg Harbor Township Police Department issued the
following warrants to Plaintiff in relation to his arrest on
November 2, 2014: possession of cocaine(N.J.S.A. 2C:35-10A(1)),
knowingly fleeing and eluding police (N.J.S.A. 2C:29-2B),
possession of drug paraphernalia (N.J.S.A. 2C:36-2), possession
of a weapon (N.J.S.A. 2C:39-9D), and assault against a law
enforcement officer(N.J.S.A. 2C:12-1B(5)(A). DSOF, at ¶ 10.

The

Northfield Police Department also issued warrants to Plaintiff
for various motor vehicle offenses, in addition to eluding under
N.J.S.A. 2C:29-2B. Id.
On November 4, 2016, Plaintiff appeared in the Criminal
Division of New Jersey Superior Court, Atlantic County, for plea
proceedings in relation to his November 2, 2014 arrest.
Plaintiff pleaded guilty to knowingly fleeing and eluding police
(N.J.S.A. 2C:29-2B) and refusal to submit to a breath test
(N.J.S.A. 39:4-50.4(a)). DSOF, at ¶ 11.

In exchange for the

plea agreement, state prosecutors agreed that Plaintiff would be
sentenced as a third degree offender to three years in New
Jersey state prison and ordered to pay $32,629.03 in restitution
for workers’ compensation medical costs related to the injuries
suffered by Officer D’Augustine. Id.

At the plea proceeding,

Plaintiff admitted on the record that he failed to stop his
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vehicle as requested by the officers and operated his vehicle in
a manner that created a substantial risk of injury or death to
others. Id.

II.

PROCEDURAL HISTORY
On November 2, 2016, Plaintiff commenced this action by

filing a pro se Complaint [Dkt. No. 1], along with an
application to proceed in forma pauperis (“IFP”).

Accordingly,

the Court screened Plaintiff’s complaint and granted Plaintiff’s
IFP application on December 22, 2016 [Dkt. Nos. 3, 4].

In the

same Opinion and Order, the Court dismissed Plaintiff’s
purported § 1983 claims against Officers Pete Czplinski,
Christopher Ruef, Benjamin Kollman, and S. Hiltner.

The Court

also dismissed Plaintiff’s § 1983 false arrest claim against
Defendants, but allowed Plaintiff’s § 1983 excessive force claim
against Defendants to proceed.
On January 26, 2017, Plaintiff filed a Motion to Appoint Pro
Bono Counsel [Dkt. No. 8], which was denied by Magistrate Judge
Ann Marie Donio on February 9, 2017 [Dkt. No. 9].

On May 4,

2017, Plaintiff filed a renewed Motion to Appoint Pro Bono
Counsel [Dkt. No. 15], which was denied by Magistrate Judge
Donio on May 12, 2017 [Dkt. No. 16].

The deadline for pretrial

factual discovery passed on June 30, 2017, without Plaintiff
producing any documents or affidavits.

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Defendants filed this Motion for Summary Judgment on October
25, 2017, seeking dismissal of Plaintiff’s remaining § 1983
excessive force claim against Defendants.

After learning that

Defendants had served the motion upon Plaintiff at an outdated
address,2 this Court issued an Order, on May 21, 2018 [Dkt. No.
25], instructing Defendants to personally serve the Motion for
Summary Judgment upon Plaintiff at his new address and file a
certificate of service.

On June 3, 2018, Defendants filed a

certificate of service [Dkt. No. 26], indicating that the motion
had been personally served at Plaintiff’s new address on May 28,
2018.
After this Court issued an Order, on June 7, 2018 [Dkt. No.
27], instructing Plaintiff to respond to the Summary Judgment
Motion within one month, Plaintiff submitted a letter, dated
July 7, 2018 [Dkt. No. 28], claiming that he still had not
received a copy of the motion.
On February 15, 2019, this Court issued an Order [Dkt. No.
29] requiring Plaintiff to file a response by March 11, 2019 and
warned Plaintiff that it would treat the Motion for Summary
Judgment as unopposed if no response was filed.

Noting

2

Defendants initially attempted to serve the Motion for Summary
Judgment to Plaintiff at the New Jersey state prison where he
had been serving the sentence for his conviction that stemmed
from the arrest at issue in this case. However, Plaintiff was
released from state prison on September 18, 2017, approximately
one month before Defendants filed their motion.
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Plaintiff’s pro se status, the Court also took the extraordinary
step of instructing the Clerk of the Court to mail a copy of the
Motion for Summary Judgment and all exhibits to Plaintiff’s
address.
On March 12, 2019, Plaintiff filed a letter requesting an
additional forty days to respond to the motion [Dkt. No. 30].
In that letter, Plaintiff claimed that he was “working
diligently on putting together [his] response,” and noted that
his letter was late because he had difficulty finding a ride to
the courthouse in Camden.
On March 13, 2019, this Court issued an Order, granting
Plaintiff an extension to respond until March 29, 2019 [Dkt. No.
31].

The Court also apprised Plaintiff of his ability to file

his response through First Class Mail and provided mailing
instructions, in the event Plaintiff had difficulty traveling to
the courthouse in Camden.

The Court reiterated its warning that

if Plaintiff failed to respond, the Motion for Summary Judgment
would be treated as unopposed.

As of the date of this Opinion,

Plaintiff has still not filed a substantive response.

III. STANDARD OF REVIEW
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.”

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Fed. R.

Civ. P. 56(a).

A fact is “material” only if it might impact the

“outcome of the suit under the governing law.” Gonzalez v. Sec’y
of Dept of Homeland Sec., 678 F.3d 254, 261 (3d Cir. 2012).

A

dispute is “genuine” if the evidence would allow a reasonable
jury to find for the nonmoving party. Id.
The movant has the initial burden of showing through the
pleadings, depositions, answers to interrogatories, admissions
on file, and any affidavits “that the non-movant has failed to
establish one or more essential elements of its case.”
Connection Training Servs. v. City of Phila., 358 F. App’x 315,
318 (3d Cir. 2009).

“If the moving party meets its burden, the

burden then shifts to the non-movant to establish that summary
judgment is inappropriate.” Id.

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)(“speculation and conjecture may not defeat summary
judgment”).

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When a plaintiff fails to respond to a summary judgment
motion, the moving party’s statement of material facts “shall be
deemed undisputed for purposes of the summary judgment motion.”
See L. Civ. R. 56.1(a).

Although a plaintiff’s failure to

respond is “not alone a sufficient basis for the entry of a
summary judgment,” the Court may grant summary judgment if the
undisputed facts establish that judgment is “appropriate” as a
matter of law under the standards of Rule 56.

See Anchorage

Assocs. v. Virgin Islands Bd. of Tax Review, 922 F.2d 168, 175
(3d Cir. 1990).

IV.

DISCUSSION
In the Motion for Summary Judgment, Defendants argue that

dismissal is warranted because there are no facts upon which a
jury could hold Defendants liable for excessive force against
Plaintiff.

This Court agrees.

A § 1983 excessive force claim is analyzed under the Fourth
Amendment’s “objective reasonableness” standard, which
scrutinizes the reasonableness of the challenged conduct under
the circumstances.

Reasonableness is to be evaluated from the

“perspective of a reasonable officer on the scene, rather than
with the 20/20 vision of hindsight.” See Carswell v. Borough of
Homestead, 381 F.3d 235, 240 (3d Cir. 2004)(citing Graham v.
Connor, 490 U.S. 386, 396 (1989)).

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The facts to be examined

include “the severity of the crime at issue, whether the suspect
poses an immediate threat to the safety of the officer or
others, and whether he is actively resisting arrest or
attempting to evade arrest by flight.” Graham, 490 U.S. at 396.
Plaintiff bears the burden of proof to establish the elements of
an excessive force claim. See Edwards v. City of Philadelphia,
860 F.2d 568, 572 (3d Cir. 1988).
Because the burden of proof is on Plaintiff, Defendants
need not support their position with affidavits or other
evidence.

Although it would be enough for them to argue that

Plaintiff lacks evidence to support his claim, Defendants have
submitted police reports and transcripts from Plaintiff’s plea
and sentencing proceedings.

Based on the contents of the police

reports, Plaintiff’s admissions in his plea and sentencing
proceedings, and Plaintiff’s failure to submit any evidence into
the record, Defendants argue that there are no facts to support
Plaintiff’s claims.

Furthermore, Defendants argue that the

evidence supports a finding that Defendants’ conduct during
Plaintiff’s arrest, on November 2, 2014, was reasonable under
the circumstances.

Indeed, the evidence set forth by Defendants

suggests that: (1) the officers had reasonable cause to pursue
Plaintiff’s vehicle; (2) Plaintiff attempted to elude police;
(3) Plaintiff was under the influence of alcohol (and possibly
other illegal substances); (4) Plaintiff ignored the officers’
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repeated instructions to stop, exit his vehicle, and surrender
to police; (5) the officers reasonably feared for their safety;
and (6) the officers acted reasonably under the circumstances
and did not intentionally injure Plaintiff.
Plaintiff has failed to provide a substantive response to
Defendants’ arguments.

Plaintiff claimed, in his March 12, 2019

letter, that along with his opposition, he would be submitting
photos from Defendants’ “body cam and dash cam,” photos of the
alleged injuries to his face, and evidence that Defendants
“tamper[ed] with body cams so that they could not record.”
However, Plaintiff never submitted a response, let alone any of
this purported evidence.

In fact, Plaintiff did not even submit

an affidavit from himself.

Even if Plaintiff could produce such

evidence, the deadline for factual discovery passed almost two
years ago.
Given the absence of any factual support in the record,
Plaintiff’s claims rest solely upon his allegations in his pro
se complaint.

“The nonmoving party may not, in the face of a

showing of a lack of a genuine issue, withstand summary judgment
by resting on mere allegations or denials in the pleadings.”
Warner v. Kuzob, 2009 WL 90385, at *2 (D.N.J. Jan. 12,
2009)(citing U.S. v. Premises Known as 717 S. Woodward Street,
Allentown, Pa., 2 F.3d 529, 533 (3d Cir.1993)). Rather, “that
party must set forth specific facts showing that there is a
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genuine issue for trial,” otherwise “summary judgment, ‘if
appropriate,’ will be entered.” Id.
The Court has done its best to cull the facts from the pro
se Plaintiff's filings and to construe Plaintiff's claims
liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007).
However, Defendants have set forth factual evidence
demonstrating that they acted reasonably under the
circumstances.

Therefore, the Court will grant Defendants'

motion because there is nothing in the record to support
Plaintiff's excessive force claim. See West v. Garcia, 2010 WL
3952273, at *3 (D.N.J. Oct. 8, 2010).

V.

CONCLUSION
For the foregoing reasons, Defendants’ Motion for Summary

Judgment will be GRANTED.

Plaintiff’s Complaint will be

DISMISSED with prejudice.

An appropriate Order shall issue on

this date.

DATED: May 8, 2019

_s/_Renee Marie Bumb
RENÉE MARIE BUMB
United States District Judge 

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