POMALES v. COUNTY OF CAMDEN et al

Filing 26

OPINION. Signed by Judge Robert B. Kugler on 3/4/2019. (rss, )

NOT FOR PUBLICATION
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
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Yanellys POMALES,
Plaintiff,
v.
CAMDEN COUNTY METRO POLICE
DEPARTMENT; COUNTY OF CAMDEN;
OFFICER DIANA DEREN; OFFICER
JAMES JONES; JOHN/JANE DOES 1-100,
fictitious persons; ABC CORP. 1-100,
fictitious entities,
Defendants.

Civil No. 17-08084 (RBK/JS)
OPINION

KUGLER, United States District Judge:
This matter is before the Court on the unopposed motion of the County of Camden, the
Camden County Metro Police Department, Officer Diana Deren, and Officer Jason Jones
(collectively, “Defendants”) for summary judgment on Plaintiff Yanellys Pomales’ claims under
42 U.S.C § 1983 and related state laws. (Doc. No. 24.) Defendants’ motion is GRANTED.
I.

BACKGROUND
The excessive force and related state law claims in this matter stem from a domestic

incident between Plaintiff Yanellys Pomales and Alex Vega in Camden, New Jersey. (Defs.’
SMF at ¶ 1.) The incident escalated after Plaintiff refused to return Vega’s keys. (Id. at ¶ 2.)
Officers Deren and Jones responded to the scene and ultimately arrested Plaintiff for resisting
arrest and aggravated assault on a police officer. (Id. at ¶ 2.) Although Plaintiff’s Complaint
lacks many specifics, (Doc. No. 1 at Ex. A), Plaintiff claims that the officers used excessive
force against her during the parties’ interaction and broke two bones in her foot. (Id. at ¶ 9.)
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Of course, what happened between the officers’ arrival and Plaintiff’s injury are crucial
to resolving Defendants’ motion.1 But here, Plaintiff—who is represented by counsel—made
two serious blunders that significantly impact the Court’s assessment of those facts: (1) Plaintiff
did not timely respond to Defendants’ requests for admission under Federal Rule of Civil
Procedure 36; and (2) Plaintiff did not respond to Defendants’ summary judgment motion and
Statement of Material Facts. (Doc. No. 24.) The consequences are discussed below.
II.

STANDARD OF REVIEW
Summary judgment is appropriate if “there is no genuine dispute as to any material fact”

and “the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The movant
bears the burden of showing the absence of a “genuine issue of material fact.” Aman v. Cort
Furniture Rental Corp., 85 F.3d 1074, 1080 (3d Cir. 1996). If the movant makes this showing,
the nonmovant must “point to concrete evidence in the record that supports each and every
essential element of his case.” Orsatti v. N.J. State Police, 71 F.3d 480, 484 (3d Cir. 1995). The
Court’s role is not to weigh the evidence and decide the truth, but to determine if there is a
genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). In making
that decision, “[a]ll facts and inferences are construed in the light most favorable to the
nonmoving party.” Boyle v. Cnty. of Allegheny Pa., 139 F.3d 386, 393 (3d Cir. 1998).
III.

DISCUSSION
Defendants are entitled to summary judgment based on Plaintiff’s Rule 36 admissions.

See Langer v. Monarch Life Ins. Co., 966 F.2d 786, 803 (3d Cir. 1992) (“We have . . . held that

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Plaintiff brings the following claims: excessive force under Section 1983 and the New Jersey
Civil Rights Act (Count VI); a Monell claim against the Camden County Police and the County
of Camden (Count VII); and a host of state law claims against Defendants, including assault
(Count I), battery (Count II), intentional infliction of emotional distress (Count III), negligence
(Count IV), and what appears to be a claim for punitive damages (Count V).
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Rule 36 admissions are conclusive for purposes of the litigation and are sufficient to support
summary judgment.”). Plaintiff’s failure to file a Statement of Material Facts responsive to
Defendants’ further supports this result, as Defendants’ factual averments are thus undisputed
under Local Civil Rule 56.1. See Gregory v. Home Retention Servs., Inc., No. 14-cv-5366, 2015
WL 3490092, at *5 (D.N.J. June 2, 2015) (finding that assertions deemed undisputed under
Local Civil Rule 56.1 “further support[ed] the grant of summary judgment” in addition to Rule
36 admissions); accord Wylie v. TransUnion, LLC, No. 16-cv-102, 2017 WL 4386404, at *3
(W.D. Pa. Sept. 29, 2017).
Rule 36 sets forth the procedures for serving and responding to requests for admission.
See Fed. R. Civ. P. 36. Failure to timely respond within 30-days of service results in the
automatic admission of the matters requested. See Fed. R. Civ. P. 36(a)(3). Rule 36 admissions
are “conclusively binding and cannot be countered by other evidence.” Campmor, Inc. v.
Brulant, LLC, No. 09-cv-5465, 2013 WL 12147616, at *2 (D.N.J. Apr. 30, 2013). “The only
way that a party may undo the conclusive effect of a Rule 36 admission is to move the Court to
withdraw or amend it.” Gregory, 2015 WL 3490092, at *4 (citing Fed. R. Civ. P. 36(b)). Courts
“have great discretion” in deciding such motions. Certain Underwriters at Lloyd’s of London v.
Alesi, 843 F. Supp. 2d 517, 532 (D.N.J. 2011) (noting considerations in assessing motion to
amend or withdraw Rule 36 admissions).
Here, Defendants sent Plaintiff requests for admission during discovery on November 15,
2017. (Defs.’ SMF at ¶ 5.) Even though the requests for admission clearly explained the
consequence of not timely responding (Doc. No. 24-3 (“Cook Cert.”), Ex. D-3. at ¶ G), Plaintiff
failed to respond until February 28, 2018, over ninety days after service. (Defs.’ SMF at ¶¶ 5–6.)

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Under Rule 36, Plaintiff has thus conclusively admitted the following matters. On July
21, 2015, Plaintiff refused to provide Alex Vega with his car keys and continued to do so even
after police arrived and asked her to return them. (Cook Cert., Ex. D-3, at ¶¶ 4–8.) Plaintiff then
yelled and cursed at the officers, refused to cooperate with them, and eventually swung her fist at
Defendant Deren. (Id. at ¶¶ 9–12.) As Deren informed Plaintiff that she was under arrest,
Plaintiff walked backwards from Deren and kicked Deren’s right knee. (Id. at ¶¶ 13–14.)
The undisputed facts as contained in Defendants’ Statement of Material Facts further
state that after Plaintiff kicked Deren, Deren and Defendant Officer Jones brought Plaintiff to the
ground where Plaintiff was handcuffed and arrested. (Defs.’ SMF at ¶ 2.) Plaintiff broke two
bones in her foot from kicking Deren’s knee. (Id.) Plaintiff also admitted, under Rule 36, that
neither Deren nor Jones used excessive force on Plaintiff or punched, struck, kicked, or used any
other force on her at any time. (Cook Cert. at Ex. D-3, at ¶¶ 17–25, 28–36.) Plaintiff similarly
admitted that the Defendants had probable cause for their actions, acted reasonably, and that no
Defendant is liable in this matter. (Id. at ¶¶ 40–46.)
The Court will hold Plaintiff to these admissions.

Although Plaintiff responded to

Defendants’ requests for admission over ninety days after service, Plaintiff made no motion at
any time to withdraw or amend her admissions as Rule 36 requires: not after the initial 30 days
lapsed; not after Defendants’ February 9, 2018 letter informing Plaintiff of her non-compliance
and that the matters were deemed admitted; and not after Defendants’ February 26, 2018 letter
repeated the same to the Court. (Cook Cert., Ex. D-9, 5–8; see also Doc. No. 14.) As of this
Opinion, over a year and two months have passed since the matters became admitted by default.
Yet Plaintiff repeatedly did nothing.

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In fact, Plaintiff continued to do nothing even after Defendants moved for summary
judgment based in part on her admissions. See Gregory, 2015 WL 3490092, at *4. Defendants
suggest that this is because Plaintiff is not serious about litigating this case, for she took no
depositions, retained no experts, and pursued no Monell discovery. (Cook Cert., Ex. D-9, at ¶¶
10–13.) That may be. But whatever the case, Plaintiff must now contend with her complete
disregard for Rule 36—absent any communication, much less a motion, her admissions stand.
See Sec’y U.S. Dep’t of Labor v. Kwasny, 853 F.3d 87, 91 (3d Cir. 2017) (noting that “the
District Court was correct to treat Kwasny’s admissions as established fact” in granting summary
judgment when “Kwasny never sought to amend or withdraw the admissions”); Gregory, 2015
WL 3490092, at *4 (“Under the plain terms of Rule 36(b), absent a formal motion for
withdrawal or amendment, Plaintiff’s admission stands.”); Warren v. Wells Fargo Bank, N.A.,
No. 15-cv-1067, 2017 WL 1133421, at *3 (W.D. Pa. Mar. 9, 2017) (holding plaintiffs to their
Rule 36 admissions because plaintiffs “have not moved (formally or otherwise) to withdraw their
admission”).
Plaintiff’s admissions resolve this case. No reasonable jury could find that the officers
used excessive force under Section 1983 or the New Jersey Civil Rights Act, which are analyzed
analogously. See Gardner v. N.J. State Police, No. 15-cv-08982, 2018 WL 5342715, at *15
(D.N.J. Oct. 29, 2018). This, in turn, defeats Plaintiff’s Monell claims. See Mulholland v. Gov’t
Cty. of Berks, Pa., 706 F.3d 227, 238 n.15 (3d Cir. 2013) (“It is well-settled that, if there is no
violation in the first place, there can be no derivative municipal claim.”). Nor could a reasonable
jury find Defendants liable for any asserted state law claim.

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IV.

CONCLUSION
For the foregoing reasons, the Court GRANTS Defendants’ motion for summary

judgment on Plaintiff’s claims. An Order shall issue.

Dated: 3/4/2019

/s/ Robert B. Kugler
ROBERT B. KUGLER
United States District Judge

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