DEAN v. BOROUGH OF GLASSBORO et al

Filing 59

OPINION. Signed by Judge Noel L. Hillman on 7/12/2021. (rss, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
TAHARQA DEAN,

Civil Action No. 17-7344
Plaintiff,

OPINION

v.
BOROUGH OF GLASSBORO, et al.,
Defendants.
APPEARANCES:
STANLEY O. KING
KING & KING, ESQS.
231 SOUTH BROAD STREET
WOODBURY, NEW JERSEY 08096
On behalf of Plaintiff
A. MICHAEL BARKER
TODD J. GELFAND
BARKER, GELFAN & JAMES
LINWOOD GREENE
210 NEW ROAD - SUITE 12
LINWOOD, NJ 08221
On behalf of Defendants
HILLMAN, District Judge

Before the Court is Defendant Michael Fanfarillo (“Officer
Fanfarillo”), Kyle Snyder (“Officer Snyder”), George Moore
(“Officer Moore”), Dominic Visceglia (“Officer Visceglia”),
Barry Gray (“Officer Gray”) (collectively “Individual
Defendants” or the “Officer(s)”), Police Chief Alex Fanfarillo
(“Chief Fanfarillo”), and the Borough of Glassboro’s
1

(“Glassboro”)(collectively “Defendants”) Motion for Summary
Judgment.

As set forth below, the Court will grant, in part,

and deny, in part, Defendants’ Motion for Summary Judgment.
BACKGROUND
This case concerns the alleged use of excessive force on
and false arrest of Plaintiff, Taharqa Dean (“Plaintiff”).

This

Court has before it video evidence capturing Defendants’
encounters with Plaintiff. 1
1. First Encounter with Plaintiff
On September 23, 2015, Officer Fanfarillo responded to a
report of a man lying on the ground having a seizure.

Officer

Snyder was also dispatched to the same location for a medical
call.

After assessing the scene, Officer Snyder testified he

had no reason to believe Plaintiff was involved in criminal
activity.

Officer Fanfarillo observed Plaintiff lying face down

on the ground semi-conscious, sweating profusely, breathing
heavily, and severely disoriented.

Officer Snyder told

Plaintiff to “focus on your breathing alright bud” and that help

The facts as depicted in the videotape are included because the
video is part of the record and, therefore, the Court must rely
on the video in ruling on summary judgment. See Scott v.
Harris, 550 U.S. 372, 381 (2007) (finding that the Court of
Appeals “should have viewed the facts in the light depicted by
the videotape”); Ference v. Township of Hamilton, 538 F. Supp.
2d 785, 789 (D.N.J. 2008)(“The videotape is also likely the best
available evidence of the events at issue in this case. Thus,
the videotape will be considered as part of the record.”).
1

2

was on the way.

Officer Fanfarillo asked the bystanders if they

knew Plaintiff’s name and explained “I have actually talked to
him before. He has told me he has seizures.”

Soon thereafter,

emergency medical technicians (“EMT”) Thomas Lamond (“EMT
Lamond”) and Jennifer Boos (“EMT Boos”) arrived at the scene and
a decision was made to transport Plaintiff to the hospital.
The EMTs rolled Plaintiff over and stated “hey hey” in
response to Plaintiff’s attempts to get up and asked Plaintiff
to remain sitting down.

The Officers and EMTs placed their

hands on Plaintiff’s shoulder to keep Plaintiff from standing up
and repeatedly stated “it is okay,” “don’t worry about it,” and
asked Plaintiff to “relax.”

Officer Fanfarillo reminded

Plaintiff that the two of them have talked before and that they
knew each other.

The EMTs informed Plaintiff that he recently

experienced a seizure and Officer Snyder notified him that “it
is okay bud.”
Eventually, the Officers helped the EMTs place Plaintiff on
the stretcher and strapped him in.

Officer Snyder again

explained “it is alright man don’t worry about it.”

Officer

Fanfarillo then asked about Plaintiff’s identification and
explained he remembered Plaintiff’s name started with a D.

The

EMTs and Officers then identified Plaintiff through a check EMT
Lamond found in Plaintiff’s pocket.

Officer Fanfarillo

confirmed that Plaintiff’s name was Dean and explained to the
3

EMTs that Plaintiff has lived in this area for about a year.
Officer Snyder then explained to the EMTs that he thought
someone saw Plaintiff have a seizure, that he fell on the
ground, and that when Officer Snyder arrived at the scene
Plaintiff was already on the ground.

The EMTs attempted to hook

Plaintiff up to oxygen but he shook his head when they attempted
to place the oxygen up his nose.

During this time, Officer

Snyder explained to Plaintiff that the EMTs are “going to put
some oxygen on” him.

EMT Boos then told EMT Lamond to not worry

about it because he was breathing, to which Officer Snyder
responded, “he is breathing pretty good” to which the EMTs
agreed.

The EMTs then loaded Plaintiff onto the ambulance.

Plaintiff did not speak during this first encounter with the
Officers.
2. Second Encounter with Plaintiff
After Plaintiff was placed into the ambulance for
transport, the Officers were called back to the scene by 911 for
“an assault” and were informed Plaintiff was combative and
kicking and biting an EMT.

Officer Snyder testified that this

second call “was a different type of call” than the first one.
More specifically, Officer Snyder testified, “I didn't know what
was going on. We got a call, came back, I put myself in a
tactical position to either have to prevent any type of previous
as reported combativeness toward EMT personnel or assist with
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whatever was needed to be assisted with.”
Once back at the scene, Officer Fanfarillo opened the rear
door of the ambulance and found Plaintiff standing alone in the
ambulance with straps around his legs and standing next to the
stretcher.

Officer Fanfarillo explained to Plaintiff that he

has “got to lay down” and “Mr. Dean lay down man come on.”
Officer Fanfarillo then stepped into the ambulance, walked
towards Plaintiff, and placed his hand on Plaintiff’s arm
explaining that he needed to lie down and guiding him back to
the seated position on the stretcher.

Officer Fanfarillo then

said to Plaintiff “we talked before and we were on good terms,
me and you…. You have an issue going on alright? You’re having a
seizure… I just want to help you. Nobody wants to hurt you…. I
know what happened in the past but it ain’t happening now,
alright? We good? We gonna let them help you a little bit?”
Plaintiff did not response to Officer Fanfarillo, started
breathing heavily, looked side to side, and then tried to lie
his head down.

Officer Fanfarillo then radioed “we’re ok here”

to communications.

Officer Fanfarillo began to remove the leg

stretcher straps from Plaintiff while EMT Boos asked “what’s
your name bud?” Plaintiff failed to respond.

Around this time,

Officer Snyder entered the ambulance from the front and joined
Plaintiff and Officer Fanfarillo in the back of the ambulance.
Plaintiff then stood up and attempted to pull his pants up which
5

had fallen down perhaps in an attempt to remove himself from the
straps holding him to the stretcher.

Officer Snyder told

Plaintiff to “have a seat back down bud” and then Officer
Fanfarillo asked the EMTS “he can’t refuse at this point can
he?” Plaintiff tugged at his pants for approximately two
minutes.
During this time, Officer Snyder asked Plaintiff if he was
alright and EMT Boos explained “you had a seizure sir” and that
“someone saw you seizing on the side of the road.”

The Officers

asked if he was okay and said they were here to help explaining
“we’re here to help, we’re going to go to the hospital, you ok
with that?”

EMT Boos then asked “does anything hurt you?” and

“can you tell us your name?”

Plaintiff was completely

unresponsive and non-communicative during this entire time
despite repeated attempts to engage him in conversation.
As EMT Boos asked Plaintiff “do you know what happened?”
Plaintiff started to walk towards the back of the ambulance
despite continuing instructions from the Officers to sit back
down.

Plaintiff then attempted to step his right foot off the

ambulance onto a rear step, but hesitated placing his foot back
on the floor inside the ambulance.

Suddenly, Plaintiff’s left

leg extended outside of the ambulance contacting Officer
Fanfarillo.

It is unclear whether Plaintiff simply misperceived

the distance to the ground and used his extended leg to brace
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his fall or intentionally kicked Office Fanfarillo.
In any event, Plaintiff was soon on the pavement behind the
ambulance.

Once on the ground, the following exchange between

Officer Fanfarillo and Plaintiff occurs:
Officer Fanfarillo: What you’re gonna fucking bite me for?
What you gonna bite me for?
Plaintiff: I didn’t man!
Officer Fanfarillo: I talked to you like a person, treating
you normal
Plaintiff: Fuck off man.
The Officers attempted to turn Plaintiff onto his stomach
in order to handcuff him.

The Officers repeatedly said “relax”

to which Plaintiff says “alright.”

Plaintiff then started to

scream out “my leg,” “Alright! Alright! Alright!”

The Officers

asked Plaintiff to give them his right arm and told him to stop
resisting.

Plaintiff continued to say “alright” and scream.

As

they continued to attempt to place handcuffs on Plaintiff,
Officer Snyder can be heard saying “he’s biting.”

Defendants

contend that at this stage of the altercation the video depicts
Plaintiff grabbing Officer Snyder’s gun.

The Court is unable to

conclude that assertion is an uncontestable fact.

Viewing the

evidence in the light most favorable to the Plaintiff, the video
does not clearly depict Plaintiff’s hand on Officer Snyder’s
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gun.
As the Officers and Plaintiff continue to grapple, the
Plaintiff was warned a few times that he was going to get pepper
sprayed.

Officer Snyder told Officer Fanfarillo to back up

because he was going to spray Plaintiff.

From the video it is

not clear when the Officers were able to successfully handcuff
Plaintiff; however, it is depicted that once Officer Snyder
pepper sprayed Plaintiff, he turned over and his hands were
already handcuffed.
At this point the Officers disengaged; however, Plaintiff
started to harm himself by banging his head against the curb.
Other Officers Visceglia, Officer Gray, and Officer Moore
arrived at the scene and moved Plaintiff away from the curb.

On

the video, Plaintiff is clearly agitated, belligerent, and
vocal.

The Officers redouble their efforts to further

physically restrain and control Plaintiff who remained
handcuffed, a process that took several minutes.

Defendants

allege Plaintiff can be heard screaming “die, die, die,” which
Plaintiff disputes, contending he was merely calling out “John,
John” his father’s name.

It is unclear from the video whether,

on the one hand, Plaintiff’s obvious distress was caused by the
continuing efforts to restrain him, or, on the other hand,
whether the Officers were acting reasonably in reaction to
Plaintiff’s continuing resistance to those same efforts.
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Whatever may be cause or effect, the process of eventually
restraining Plaintiff plays out over a prolonged period.

The

Officers turn Plaintiff’s body over face down on the pavement
and several officers kneel and place their body weight on
various parts of his legs and backside while efforts are made to
tie and bind his ankles.

One officer bends Plaintiff’s cuffed

hands and into a cross position on his back.

During this time,

an Officer explained that Plaintiff bit him, the wound visible
on the video, and another Officer asked if Plaintiff was having
seizures.

Plaintiff is eventually given a shot of ketamine, a

tranquilizer, in the torso.
As the Officers awaited the effects of the ketamine they
continue their efforts to restrain Plaintiff.

Officer

Fanfarillo’s body camera footage shows a second Officer
continuing to place his weight into Plaintiff’s back while
another Officer places his body weight into other parts of
Plaintiff’s body.
handcuffs.

The Officers then locked Plaintiff’s

Almost two minutes after Plaintiff received his shot

of ketamine, one Officer twisted Plaintiff’s arm even further
back (in a wrist lock) at the same time two Officers are still
pushing their weight into his back and legs.

During this time,

Plaintiff continued to scream and attempted to move his hands
while officers continued their commands to Plaintiff to calm
down and that they would get off of him when he did so.
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Over the next minute and half Plaintiff, bound at the hands
and feet and face down on the pavement with the Officers still
pressing their body weight into him, appears to calm down when
the EMT and Officers realize he has apparently stopped
breathing.

EMT Boos orders “some oxygen on him” because “he is

not breathing” which the officers appear to acknowledge or at
least repeat.

EMT Boos instructed the Officers to “roll him

over because he is not breathing now.”

The Officers then rolled

Plaintiff onto his back while Plaintiff was hooked up to oxygen.
An officer uncuffs him.

Soon thereafter, EMT Boos observed

“he’s breathing more now” and Plaintiff was then loaded onto a
stretcher and placed into the ambulance.

In sum, from the time

the Plaintiff was handcuffed, laid face down, and had his ankles
secured, approximately six minutes passed with Officers
collectively pressing their body weight into the Plaintiff’s
body until he stopped breathing on his own.
Plaintiff was then taken to Cooper Trauma Unit for
treatment, and then transferred to the Gloucester County
Sheriff’s Office.

Plaintiff suffered lacerations to his head,

cuts, abrasions, and sustained pinched nerves and bulging discs
in the neck and lower back, nerve damage in both wrists, a groin
injury, and aggravation of a prior rotator cuff injury, which
required surgery.

Plaintiff was hospitalized at Cooper for

approximately a week and a half during which time his wrists and
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ankles were handcuffed to the bed.
As a result of the foregoing actions, Plaintiff filed suit
against Defendants asserting the following causes of action: (1)
Count I – Excessive Force under 42 U.S.C. § 1983; (2) Count II –
False Arrest/False Imprisonment under 42 U.S.C. § 1983; (3)
Count III – Failure to Intervene under 42 U.S.C. § 1983; (4)
Count IV – Monell and Supervisory Liability under 42 U.S.C. §
1983; (5) Count V – Civil Rights Conspiracy under 42 U.S.C. §
1983; (6) Count VI – New Jersey Civil Rights Act; (7) Count VII
– Common Law Assault and Battery; (8) Count VIII – Common Law
False Arrest and False Imprisonment; (9) Count IX – Common Law
Negligence; and (10) Count X – Common Law “Pendent” Claim for
Gross Negligence. 2

On November 9, 2020, Defendants filed a

Motion for Summary Judgment.

The Motion has been fully briefed

and is ripe for adjudication. 3
In Plaintiff’s Response to Defendants’ Statement of Undisputed
Facts, Plaintiff admits these are the only causes of actions
asserted against Defendants. The Court is unsure why Defendants
provide arguments in their Reply Brief in support of dismissing
a malicious prosecution claim that Plaintiff does not assert.
Accordingly, the Court will not address the arguments regarding
a malicious prosecution claim.
2

In response to Defendants’ Motion for Summary Judgment,
Plaintiff consented to the dismissal of the following claims
and/or remedies: (1) civil rights conspiracy; (2) common law
torts; and (3) punitive damages against Glassboro only.
Accordingly, Defendants’ Motion for Summary Judgment is granted
to the extent it seeks dismissal of Plaintiff’s civil rights
conspiracy claims, common law torts claims, and Plaintiff’s
request of relief in the form of punitive damages against
3

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DISCUSSION
A. Subject Matter Jurisdiction
The Court has original federal question jurisdiction over
Plaintiff’s federal claims under 28 U.S.C. 1331, and has
supplemental jurisdiction over the New Jersey state law claims
pursuant to 28 U.S.C. 1367(a).
B. Legal Standard for Summary Judgment
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 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;
Glassboro.
12

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).
However, the Supreme Court has instructed that, in
qualified immunity cases, the existence of a videotape recording
presents an “added wrinkle” to the general standard requiring
the court to construe facts in the light most favorable to the
non-moving party.

Scott v. Harris, 550 U.S. 372, 378 (2007).

In that regard, “[w]here there is a video recording of the
relevant events, the Court views the facts as depicted in the
recording, rather than in the non-movant’s favor, whenever the
recording ‘blatantly contradict[s]’ the non-movant's version
such that ‘no reasonable jury could believe it.’”

Knight v.

Walton, 660 F. App’x 110, 112 (3d Cir. 2016) (quoting Scott, 550
U.S. at 380-81).
Initially, the moving party has the burden of demonstrating
the absence of a genuine issue of material fact.
477 U.S. at 323.

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 supported motion for summary

judgment, the nonmoving party must identify specific facts and
affirmative evidence that contradict those offered by the moving
13

party.

Anderson, 477 U.S. at 256-57.

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, 43 V.I. 361 (3d Cir. 2001).
C. Analysis
Plaintiff has brought his claims for excessive force,
failure to intervene, and false arrest/false imprisonment
pursuant to both 42 U.S.C. 1983 and the New Jersey Civil Rights
Act (“NJCRA”).

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
. . . .
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).
14

The NJCRA,

N.J.S.A. 10:6-1 et seq., was modeled after § 1983 and creates a
state law cause of action for violation of an individual’s
federal and state constitutional rights.
N.J. 607 (N.J. 2008).
§ 1983.”

Owens v. Feigin, 194

“The NJCRA is interpreted analogously to

Alexander v. Borough of Pine Hill, No. 17-6418, 2020

U.S. Dist. LEXIS 215661, at *13 (D.N.J. Nov. 18, 2020) (citing
Norman v. Haddon Township, No. 14-cv-06034-NLH-JS, 2017 U.S.
Dist. LEXIS 100707 (D.N.J. 2017)).
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 immunity analysis should be addressed first in light
of the circumstances in the particular case at hand.
Callahan, 555 U.S. 223, 236 (2009).
15

Pearson v.

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.”
(internal quotation omitted).

Id.

Properly applied, qualified

immunity “protects ‘all but the plainly incompetent or those who
knowingly violate the law.’”

Ashcroft v. al-Kidd, 563 U.S. 731,

741 (2011) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).
Here, Plaintiff alleges Defendants violated his
constitutional rights in using excessive force, falsely
arresting/imprisoning him, and failing to intervene.

Moreover,

Plaintiff asserts Monell and supervisory liability claims
against Glassboro and Chief Fanfarillo.
a. False Arrest and False Imprisonment
Defendants argue the community caretaking doctrine defeats
Plaintiff’s false arrest claims because the Officers arrested
Plaintiff, who was in need of medical attention, to prevent
danger to Plaintiff, the Officers, and EMTs.

Plaintiff responds

that the community caretaking doctrine is inapplicable under the
facts of this case because the Officers were responding to the
second call for an “assault” and “combativeness,” which
16

indicates the response to the scene was for a law enforcement
purpose.

Plaintiff further argues that the failure of the

Officers to obtain approval from a medical control physician
before seizing Plaintiff is inconsistent with application of the
community caretaking doctrine.

On this issue, this Court agrees

with Defendants.
The community caretaking doctrine “is an exception to the
warrant requirement of the Fourth Amendment and allows police
with a non-law enforcement purpose to seize or search a person
or property ‘in order to ensure the safety of the public and/or
the individual, regardless of any suspected criminal activity.’”
Vargas v. City of Philadelphia, 783 F.3d 962, 971 (3d Cir. 2015)
(quoting United States v. King, 990 F.2d 1552, 1560 (10th Cir.
1993)).

In Vargas, the plaintiff dialed 911 to seek emergency

assistance for her daughter's asthma attack.
966.

Id., 783 F.3d at

While waiting for paramedics to arrive, the plaintiff and

other individuals placed the plaintiff’s daughter in a vehicle
and prepared to take the daughter to the hospital themselves.
Id.

Police officers, responding to a report of screaming

individuals, allegedly positioned their vehicle so that it
blocked the plaintiff’s vehicle.

Id.

The officers reportedly

ordered everyone out of the vehicle and knowing an ambulance was
nearby, instructed the plaintiff and the others to wait for the
paramedics.

Id. at 967.

The plaintiff claimed that the
17

officers unreasonably seized her in violation of the Fourth
Amendment.

Id. at 968.

The Third Circuit held that “the community caretaking
doctrine can apply in situations when . . . a person outside of
a home has been seized for a non-investigatory purpose and to
protect that individual or the community at large.”

Id. at 972.

The Vargas court agreed with the defendants’ argument that even
if there was a seizure, it was reasonable under the community
caretaking doctrine.

The Third Circuit held:

The undisputed facts show that the actions of
[the officers] were reasonable. They were
responding to a volatile situation which they
did not initially know involved a medical
emergency, and any brief seizure that may have
occurred was a result of the officers’ concern
for the safety of everyone involved. . . .
Once the officers realized [the plaintiff's
daughter] needed medical attention, it was
reasonable for them to direct [the plaintiff]
to wait because an ambulance was within
earshot and its arrival was apparently
imminent.
Here, similar to the officers in Vargas, even viewed in the
light most favorable to Plaintiff, the body camera footage
demonstrates conclusively that the Defendants’ initial focus was
the concern for the safety of Plaintiff as well as the others
around him.

As depicted on the video, Plaintiff attempted to

exit the ambulance after repeatedly being told in a benevolent
tone and professional manner that he was in need of medical
care.

His response was to ignore their reasonable directions
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and to give no verbal response whatsoever to the Officers and
EMTs at the scene endeavoring to help him.

The Officers were

aware he had previously experienced a seizure, appeared
continuously disorientated during the encounter with the
Officers, and had reason to believe that minutes before he had
kicked and bit EMT Lamond, who was attempting to provide him
with medical assistance.
The events depicted in the video confirm the applicability
to the community caretaking doctrine to the Defendant Officers’
initial seizure of the Plaintiff in light of the uncontested and
uncontestable events depicted in the body worn camera video.

It

would not have been proper for the Defendants to essentially
allow Plaintiff to leave and walk away while in the middle of
what any reasonable person would view as a medical emergency.
Such actions could put the public in danger as well as Plaintiff
himself.

The fact that Plaintiff was later charged with

offenses related to the struggle with the Officers attempting to
subdue Plaintiff does not mean the initial seizure of Plaintiff
is not governed the community caretaking doctrine.
The Court finds Plaintiff’s reliance on cases where there
were questions of fact regarding whether the initial stop of
Plaintiff was a pretext to investigate suspected criminal
activity unpersuasive.

As detailed above, the body camera

footage clearly depicts the Officers arrived at the scene in an
19

attempt to calm a volatile situation, called in a all-clear soon
after they arrived, and went about a concerted effort to protect
the Plaintiff from harming himself and others first by
encouraging him to agree to EMT transport and then forcing the
issue when he refused to comply.
Moreover, the Court finds the Plaintiff’s argument
meritless that the Officers should have received approval from a
medical control physician before seizing Plaintiff.

The

Officers were responding to a situation where they received
information that the Plaintiff has already bit and kicked EMT
Lamond.

While the officers were clearly not coming back to the

scene to arrest Plaintiff for such actions and instead were
coming back to help calm the situation, the Court cannot
conclude that they should have not used any force to arrest
Plaintiff in light of the clear possibility, even likelihood,
that he might harm himself or another individual if not
restrained immediately.
Accordingly, the Court concludes as a matter of law that
the undisputed facts show that the Officers’ actions from the
beginning of the second encounter up until the point they
initially subdued him by handcuffing him are protected from
liability by the community caretaking doctrine.

Accordingly,

the Court will grant Defendants’ Motion for Summary Judgment
regarding Plaintiff’s false arrest claims and false imprisonment
20

claims pursuant to 42 U.S.C. § 1983 and NJCRA to the extent
based on the Plaintiff’s initial detention. 4
However, the same cannot be said for the events that
followed the initial detention regarding Plaintiff’s claims for
the use of excessive force.
b. Excessive Force and Failure to Intervene
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.

The Court will deny without prejudice Defendants’ Motion for
Summary Judgment regarding Plaintiff’s NJCRA and 42 U.S.C. §
1983 claims to the extent based on Plaintiff’s alleged false
imprisonment after the initial detention to the extent that
exists as a standalone claim. In Defendants’ initial papers in
support of their Motion for Summary Judgment, Defendants focus
on the reasons why the court must dismiss Plaintiff’s false
arrest claim not Plaintiff’s false imprisonment claim. It is
not until the Defendants’ reply brief that Defendants argue
dismissal of the false imprisonment claim is warranted because
“the continued suggestion of any viable ‘false arrest; is
frivolous and should be explicitly dismissed by this motion.”
This is because, according to Defendants, false imprisonment
claims are “only properly asserted for damages for confinement
imposed pursuant to legal process up until the time of trial.”
(ECF No. 56 at 25.) “However, it is well-established that new
arguments cannot be raised for the first time in reply briefs.”
Spence v. New Jersey, No. 19-21490 (NLH/KMW), 2021 U.S. Dist.
LEXIS 70128, at *12 (D.N.J. Apr. 12, 2021) (quoting Pitman v.
Ottehberg, No. 10-2538 (NLH/KMW), 2015 U.S. Dist. LEXIS 4438,
(D.N.J. Jan. 14, 2015)). Accordingly, this “[a]rgument[] raised
for the first time in [Defendants’] reply brief will be
disregarded.” Id. (quoting Thomas v. Correctional Medical
Services, Inc., No. 1:04-cv-3358 (NLH), 2009 U.S. Dist. LEXIS
21762 at *13 (D.N.J. March 17, 2009)).
4

21

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.

In order to establish a claim for failure to intervene in
another’s use of excessive force, a plaintiff must show that:
(1) the defendant failed or refused to intervene when a
constitutional violation took place in his or her presence or
with his or her knowledge; and (2) there was “a realistic and
reasonable opportunity to intervene.”

Smith v. Mensinger, 293

F.3d 641, 651 (3d Cir. 2002).
Even though the determination of whether an officer acted
in an objectively reasonable manner or made a reasonable mistake
of law, and is thus entitled to qualified immunity, is a
22

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.
F.3d 199, 211, 211 n.12 (3d Cir. 2007).

Curley v. Klem, 499

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
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 Court first notes that as found above “[b]ased on
Defendants’ knowledge that the Plaintiff [kicked and bit] the
EMT — whether intentional or not — and Plaintiff’s resistant to
the EMT’s attempts at providing medical care, Defendant[s were]
justified in employing some amount of force to take control of
the situation to prevent Plaintiff from harming others or
himself.”

Keller v. Crawford, 465 F. Supp. 3d 472, 479 (E.D.

Pa. June 4, 2020); see also Anthony v. Seltzer, 696 F. App’x 79,
82 (3d Cir. 2017) (drawing a distinction between using force to
subdue a noncompliant person having a seizure and using force
23

once the person was subdued, and holding the latter, but not the
former, to be excessive).

Accordingly, in line with this case

law and consistent with the Court’s previous finding that the
community caretaking doctrine protects the Officers up until the
time the Officers handcuffed the Plaintiff, the Court will grant
Defendants’ Motion for Summary Judgment regarding Plaintiff’s
excessive force claims under 42 U.S.C. § 1983 and NJCRA to the
extent based on force applied to subdue and handcuff Plaintiff
initially.
However, the same cannot be said for the force applied
after Plaintiff was subdued and handcuffed.

Defendants rely

heavily on the video evidence to argue that it clearly depicts
their version of the encounter with Plaintiff and that the
videos support that their use of force was reasonable.
Plaintiff, in contrast, argues that the video speaks for itself,
supports his version of the events, and it is subject to the
review and perception of the jury.

The Court has viewed the

video evidence several times, and finds that a jury must watch
and assess the footage because a jury could find that it
supports the Defendants’ version of events rather than the
Plaintiff’s, or could interpret what it sees to support
Plaintiff’s account of what occurred.
The following are examples of disputed facts that require a
jury’s resolution, although there may be many other facts
24

requiring a jury’s consideration: 5
1. Did Plaintiff intentionally try to kick Officer
Fanfarillo while Plaintiff was on the edge of the
ambulance?
2. Did Plaintiff purposefully attempt to disarm Officer
Snyder while the Officers were attempting to subdue
Plaintiff?
3. Did Plaintiff purposefully attempt to bite the Officers
while the Officers were attempting to subdue him?
4. Was Plaintiff repeatedly yelling at the Officers to “die”
or was Plaintiff repeatedly calling out for his father
“John” and screaming because of the pain he was
experiencing and/or because Plaintiff was experiencing or
recovering from an epileptic seizure?
5. Was Plaintiff continuing to move while the Officers
applied pressure on his body because he was experiencing
or recovering from an epileptic seizure and/or because of
the pain of the Officers’ weight applied to his body as
opposed to Plaintiff resisting arrest?
6. Did Plaintiff continue to pose a threat after his hands
The Court provides these examples of jury interrogatories only
to show that disputed facts need to be resolved before the Court
can undertake the qualified immunity analysis. At trial, the
actual special interrogatories submitted to the jury will be
posed by the parties and approved by the Court, and they will
not necessarily be framed as presented here.
5

25

were bound by handcuffs?
7. Did Plaintiff continue to pose a threat after Plaintiff’s
feet were bound while Plaintiff laid in a prone position
with his hands bound by handcuffs?
8. Did Plaintiff continue to pose a threat before the
ketamine was administered and after he was handcuffed,
after the ketamine was administered, or only after a
certain time had passed?
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 videos, in combination with the other
evidence, through the use of special interrogatories on the
issues set forth above or perhaps others, must be performed so
that the Court may make the ultimate determination as to whether
Defendants’ use of force on Plaintiff was reasonable. 6
Consequently, because disputed material facts must be
resolved by a jury prior to the Court’s determination of whether
Defendants are entitled to qualified immunity, Defendants’
This is not a case where even if all of the Plaintiff’s claims
are accepted as true, the Officers’ actions following the
handcuffing of Plaintiff could be found to be objectively
reasonable. Cf. 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 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.”).
6

26

Motion for Summary Judgment to dismiss Plaintiff’s excessive
force claims under 42 U.S.C. § 1983 and NJCRA to the extent
based on the force applied after Defendants handcuffed Plaintiff
is denied without prejudice.

For similar reasons, the Court

will also deny without prejudice Defendants’ Motion for Summary
Judgment regarding Plaintiff’s failure to intervene claims.

At

this time, the Court is unable to determine, as a matter of law,
the ultimate question of qualified immunity as to Plaintiff’s
failure to intervene claim, which is dependent on the facts
underlying Plaintiff’s excessive force claim.

As such, and

according to Curley, the Defendants’ motion seeking a
determination that Defendants are entitled to qualified immunity
on Plaintiff’s excessive force and failure to intervene claims
pursuant to the NJCRA and 42 U.S.C. § 1983 must be denied
without prejudice. 7
“Since there is a dispute of material fact concerning the
events during the arrest that must be decided by a jury, the
Court does not reach the issue of whether the right was clearly
established.” Gibson v. Mueller, No. 09-6486, 2012 U.S. Dist.
LEXIS 44853, at *38 n.9 (D.N.J. Mar. 29, 2012); see also Curley,
499 F.3d at 225-26 (dissenting opinion) (internal citations
omitted) (“[I]f factual disputes relevant to [the step-two]
legal analysis do exist, the court will have to postpone making
this determination until the jury resolves all the relevant
factual disputes, because determining what actually happened is
a prerequisite to determining whether the law clearly
established that a particular action was permitted or prohibited
by the Fourth Amendment under those circumstances. After the
jury resolves these relevant fact disputes, presumably through
the use of special interrogatories, the court is then capable of
deciding whether or not the law clearly permitted or prohibited
7

27

c. Monell and Supervisory Liability
Municipalities and other local government units are among
those “persons” to which § 1983 liability applies.

Monell v.

New York City Dep’t of Social Services, 436 U.S. 658, 690
(1978).

“Local governments, however, cannot be held liable for

the actions of their employees solely based on the doctrine of
respondeat superior.”

Norman, 2017 U.S. Dist. LEXIS 100707, at

*29 (citing Monell, 436 U.S. at 691-95; Bielevicz v. Dubinon,
915 F. 2d 845, 849-50 (3d Cir. 1990)).
the conduct constituting the constitutional violation.”). The
Court notes, however, the significance of Rivas v. City of
Passaic, 365 F.3d 181 (3d Cir. 2004) to the present case. In
Rivas, the evidence showed that the defendant officers
collectively pressed their body weight into the back of a
plaintiff, who was experiencing seizures, while he was
handcuffed, had his ankles secured, and laid in a prone
position. This continued until the plaintiff became unconscious
and soon thereafter, the paramedics at the scene noticed the
plaintiff had stopped breathing. Id. at 200. The Third Circuit
noted that a reasonable jury could find that the plaintiff “did
not present a threat to anyone’s safety as he lay in a prone
position on the enclosed porch, hands and ankles secured behind
his back.” Id. For these reasons, the Third Circuit concluded
“[a]ssuming that [plaintiff] was handcuffed and had his ankles
tied at that time, a reasonable jury could find that the
continued use of force against [plaintiff] was excessive.” Id.
Following Rivas, the Third Circuit has recognized “[u]nder the
circumstances, where the victim ‘did not present a threat to
anyone’s safety,’ we had no hesitation in concluding that the
‘continued use of force’ made out a violation of the victim’s
clearly established rights.” Anthony, 696 Fed. App’x at 83
(quoting Rivas, 365 F.3d at 200). Moreover, “a police officer’s
duty to intervene to prevent excessive force was wellestablished by” 2015. Sanders v. Jersey City, No. 18-1057, 2021
U.S. Dist. LEXIS 78681, *30 (citing Smith v. Mensinger, 293 F.3d
641, 650-51 (3d Cir. 2002); Baker v. Monroe Township, 50 F.3d
1186, 1193 (3d Cir. 1995)).
28

“Neither Monell v. New York City Dept. of Social Services,
436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (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.”
Heller, 475 U.S. 796, 799 (1986).

City of Los Angeles v.
“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 point.”

Id.; see also 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 Frampton’s actions. 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
29

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 constitutional violation).
Moreover, regarding the supervisory liability claim against
Chief Fanfarillo, Chief Fanfarillo can only be held liable if
there is an actual underlying constitutional violation.

Allen

v. Eckard, 804 Fed. App’x 123, 127 (3d Cir. Mar. 11, 2020)
(“There are several ways to establish supervisory liability
under § 1983. However, all of them require a showing that there
was an actual constitutional violation at the hands of
subordinates.”)(citations omitted).
Regarding Plaintiff’s Monell and supervisory liability
claims against Glassboro and Chief Fanfarillo, the Court will
bifurcate these claims from Plaintiff’s claims against the
Officers.

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
30

a separate trial, the court must preserve any federal right to a
jury trial.”).

If, after a jury has answered its special

interrogatories as to Plaintiff’s claims against the Officers,
the Court concludes that the Officers did not violate
Plaintiff’s constitutional rights and they are entitled to
qualified immunity, the principle announced in Heller and
applied by the Third Circuit could warrant the dismissal of
Plaintiff’s municipal and supervisory liability claims.

At a

minimum, it would be a waste of judicial resources to assess
Plaintiff’s Monell and supervisory claims now if such claims
ultimately are not viable based on how the jury assesses the
evidence of the Officers’ alleged wrongdoing.
Accordingly, the Court will deny without prejudice and
consider Glassboro and Chief Fanfarillo’s Motion for Summary
Judgment on Plaintiff’s Monell and supervisory liability claims
against them after the jury has resolved the disputed facts and
the Court has determined whether the Officers are entitled to
qualified immunity.
CONCLUSION
For the foregoing reasons, Defendants’ Motion for Summary
Judgment is granted, in part, and denied, in part.

An

appropriate Order will be entered.
Date: July 12, 2021
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
31