GLOVER v. CITY OF JERSEY CITY et al
Filing
72
OPINION. Signed by Judge Esther Salas on 11/27/2018. (sms)
Not for Publication
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ROBERT GLOVER,
Plaintiff
v.
CITY OF JERSEY CITY, et al.,
Defendants
:
:
:
:
:
:
:
:
:
:
Civil Action No. 11-5731 (ES) (CLW)
OPINION
SALAS, DISTRICT JUDGE
Before the Court is the second motion for summary judgment by police officers Anthony
Goodman, Hilburn, Sandwith, C. Lugo, G. Wojowicz, Michael Burgess (“Police Officer
Defendants”). (D.E. No. 68). The Court has considered the parties’ written submissions and
decides the matter without oral argument under Federal Rule of Civil Procedure 78(b). For the
following reasons, the Court GRANTS Police Officer Defendants’ motion.
I.
BACKGROUND
A.
Procedural History
On October 3, 2011, Plaintiff Robert Glover filed this civil rights action asserting violations
of his constitutional rights pursuant to 42 U.S.C. § 1983. (D.E. No. 1). As a result of this Court’s
sua sponte screening pursuant to 28 U.S.C. § 1915A, Plaintiff’s First and Eighth Amendment
claims, his claims under 42 U.S.C. § 1986, and his claim for “failure to discipline” were dismissed
with prejudice. (D.E. No. 6). Further, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), Plaintiff’s claims
against defendants City of Jersey City and the Jersey City Police Department, Plaintiff’s claims
based upon the filing of a false arrest report, and Plaintiff’s state law claims were dismissed without
prejudice. (Id.). Moreover, although the Court permitted Plaintiff to file a second amended
Complaint, Plaintiff did not amend his complaint. As a result, only Plaintiff’s Fourth Amendment
excessive force claim against the Police Office Defendants, and any “John Doe” police officers
who participated or were present during the alleged excessive force conduct, proceeded. (Id. at 2).
Thereafter, the Police Officer Defendants filed an Answer (D.E. No. 24) and the parties
engaged in discovery. On March 23, 2017, all Defendants filed a joint motion for summary
judgment (D.E. No. 64), and Plaintiff submitted a brief in opposition (D.E. No. 66). On March
14, 2018, the Court denied Defendants’ motion for summary judgment without prejudice on the
grounds that dismissed Defendants City of Jersey City and Jersey City Police Department
improperly moved for summary judgment together with the Police Officer Defendants. (D.E. No.
67).
On April 12, 2018, Police Officer Defendants filed a second motion for summary
judgment. (D.E. No. 68.). On May 4, 2018, Plaintiff sent a letter to the Court, explaining why he
did not timely file an opposition to the second motion for summary judgment. (D.E. No. 69.). 1
Plaintiff did not ask for additional time to file an opposition brief, but instead asked the Court to
grant default judgment (id. at 9), which is not appropriate here. See Fed. R. Civ. P. 55.
1
Local Rule 56.1(a) provides, in relevant part:
The opponent of summary judgment shall furnish, with its opposition papers, a
responsive statement of material facts, addressing each paragraph of the movant's
statement, indicating agreement or disagreement and, if not agreed, stating each
material fact in dispute and citing to the affidavits and other documents submitted
in connection with the motion; any material fact not disputed shall be deemed
undisputed for purposes of the summary judgment motion.
2
B.
Facts 2
On November 1, 2009, Defendant Officer Anthony Goodman (hereinafter “Defendant
Goodman”) was conducting visual drug surveillance in the area of Gardner and Monticello
Avenues in Jersey City when he first observed five men, one of which was later identified as
Plaintiff. (D.E. No. 68-1, Statement of Undisputed Material Facts In Support Of Jersey City
Defendants Motion For Summary Judgment (“Defs.’ SMF”) ¶ 2; D.E. No. 68-3, Ex. A). Defendant
Goodman observed an individual approach Plaintiff and hand him money. (Defs.’ SMF ¶¶ 4-5).
The same individual then met with Wayne Stafford, who was standing near Plaintiff, and accepted
two small bags of marijuana from Stafford and walked away. (Id. ¶ 8).
Upon observing the drug transaction, Defendant Goodman notified the “perimeter units”
of what had just occurred. (Id. ¶ 10.). Shortly thereafter, Officer Lugo (hereinafter “Defendant
Lugo”) and Officer Wojtowicz, (hereinafter “Defendant Wojtowicz”) stopped Stafford and
arrested him. (Id. ¶ 12). They recovered a clear bag containing suspected marijuana and $714.00
from him. (Id.). Meanwhile, Officer Sandwith, (hereinafter “Defendant Sandwith”) and Officer
Hilburn, (hereinafter “Defendant Hilburn”) stopped Jason Smith, recovered suspected drugs from
him, and arrested him. (Id. ¶ 13).
Defendant Goodman then stopped Plaintiff, who resisted arrest and prompting Defendant
Wojtowicz to assist. (Id. ¶¶ 14-15; D.E. No. 68-3, Exs. C & H). When Plaintiff continued to resist,
Defendant Wojtowicz employed the use of his baton and struck Plaintiff’s left leg. (Defs.’ SMF).
2
Because Plaintiff did not oppose the second motion for summary judgment, the Court assumes the facts
provided by the moving party as true. See L. Civ. R. 56.1 (providing that “any material fact not disputed shall be
deemed undisputed for the purposes of the summary judgment”); Fed. R. Civ. P. 56(e)(3)(“If a party fails to properly
support an assertion of fact or fails to properly address another party’s assertion of fact as required by Rule 56(c), the
court may: (3) grant the summary judgment motion if the motion and supporting materials—including the facts
considered undisputed—show that the movant is entitled to it. . . .”); Ruth v. Selective Ins. Co. of Am., No. 15-2616,
2017 WL 592146, at *3 (D.N.J. Feb. 14, 2017) (“[A] movant who files a proper Local Civil Rule 56.1 statement of
undisputed material facts . . . receives the benefit of the assumption that such facts are admitted for purposes of the
summary judgment motion.”).
3
The officers then recovered $1,018.00 from Plaintiff. (Id. ¶ 17; D.E. No. 68-3, Ex. D). Plaintiff
was arrested and charged with resisting arrest and conspiracy. (Defs.’ SMF ¶ 19; D.E. No. 68-3,
Ex. D).
On July 30, 2015, during the course of the instant litigation, Plaintiff testified at a
deposition that just hours before he was arrested on November 1, 2009, he was robbed by
individuals “who were under the impression that I still had major drugs. . . .” (D.E. No. 68-3, Ex.
B (“2015 Glover Dep.”) at 45:1-4; Defs.’ SMF ¶ 20). One of the robbers hit him in the head with
a gun. (Defs.’ SMF ¶ 21). The robber assumed Plaintiff had more drugs and money at his home,
but Plaintiff led him to his girlfriend’s house instead. (Id. ¶ 22). When Plaintiff told the robber
that he did not have any more money, the robber told him to go “back to Jersey City for the rest of
the money and the drugs to bring it back here.” (Id.).
Plaintiff explained that later that day he pulled over on Monticello and Jewett Avenues “to
get something to drink and figure out how I was going to get drugs and money.” (Id. (citing 2015
Glover Dep. 46:5-13)). When Plaintiff returned to the car, he saw that he had locked the keys
inside the car. (2015 Glover Dep. 46:14-19). He phoned a man who lived on Gardner Avenue
and asked him to bring a clothes hanger so Plaintiff could pry the car door open. (Id. 23:19-21).
Plaintiff walked over to the man’s house and found him sitting on his porch. (Id. 23:22-23).
Plaintiff shook the man’s hand, and the man said he would go in and get the clothes hanger, so
Plaintiff waited on the porch. (Id. 23:23-25). This is when Plaintiff noticed cars pulling up and
officers jumping out and grabbing guys on the corner. (Id. 24:2-3).
Plaintiff described his encounter with the Police Officer Defendants, whom he could not
identify at the time. An officer grabbed Plaintiff, pushed him to the wall and threw him on the
floor. (Id. 24:4-12). Plaintiff put his hands out to brace himself as he hit the ground. (Id. 24:124
13). The officer was “trying to man handle me” and Plaintiff was trying not to resist. (Id. 24:1314). Another officer came over and started hitting Plaintiff with a baton. (Id. 24:15-18). Plaintiff
tried to block his face. (Id. 24:18-19). An officer twisted Plaintiff’s arm “until he finally got it
behind my back and he cuffed me.” (Id. 24:20-21).
On August 10, 2016, Plaintiff was again deposed and he described the incident as follows:
Okay. I would for certainty say that Officer Goodman was the first
one that pushed me up against the wall
....
Woj[t]owicz came after the other officer had tried to put his knee in
my back and hit me in the back of the head with a radio. I didn’t
identify which officer that was. But it was three officers that were
grabbing me.
When I went to the ground to try to protect myself, I guess they
thought I was trying to resist or whatever. But I was just trying to
stop myself from the fall. And that’s when everything just went
crazy from there.
One guy is pulling my arm, one guy is trying to push me down to
make me still. I’m telling them, “I’m not trying to resist,” I’m just,
don’t want to hurt myself more than they already did.
(D.E. No. 68-3, Ex. E (“2016 Glover Dep.”) 13:18-25, 14:1-9). Plaintiff alleges injuries to his
arms, leg, and back:
When I slid down to the ground I tried to brace myself. You got my
elbows on the ground. You got him on my back. You got the other
officers hitting me with the baton and me trying to give him my arm
so he can go ahead and cuff me. The injuries that I sustained they
weren’t life threatening, but I felt them for days on end.
....
Specifically, one had his knee in my back twisting my arm, trying
to get it from under my chest, the other one had his foot on my ankle
while he was hitting me on my calf area.
(2015 Glover Dep. at 43:11-23.). Plaintiff did not seek any psychiatric, psychological, or medical
attention due to the alleged emotional distress and physical injuries, and has not provided any
5
medical evidence or reports of the alleged injuries. (Defs.’ SMF ¶¶ 24-26). Plaintiff stated that
he did not seek medical attention because he did not have medical insurance, and that he instead
took over-the-counter pain medication for about a week. (2015 Glover Dep. 44:4-10 (noting that
the swelling lasted for a little over a month)).
II.
Legal Standard
A.
Summary Judgment Standard
Summary judgment is appropriate where the Court is satisfied that “‘the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law.’” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing Fed. R.
Civ. P. 56).
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.” 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 considering a motion for summary judgment, a district court
may not make credibility determinations or engage in any weighing of the evidence; instead, the
nonmoving party’s evidence ‘is to be believed and all justifiable inferences are to be drawn in his
favor.’” Marino v. Indus. Crating, Co., 358 F.3d 241, 247 (3d Cir. 2004) (citing Anderson, 477
U.S. at 255); see also Pignataro, v. Port Auth. Of New York & New Jersey, 593 F.3d 265, 268 (3d
Cir. 2010).
Initially, the moving party bears the burden of demonstrating the absence of genuine issue
of material fact. Celotex, 477 U.S. at 323 (“[A] party seeking summary judgment always bears
the initial responsibility of informing the district court of the basis for its motion, and identifying
6
those portions of the ‘the pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine
issue of material fact.”) (citation omitted); see also Singletary v. Pa. Dept. of Corr., 266 F.3d 186,
192 n.2 (3d Cir. 2001) (“Although the initial burden is on the summary judgment movant to show
the absence of a genuine issue of material fact, ‘the burden on the moving party may be discharged
by ‘showing’—that, is pointing out to the district court—that there is an absence of evidence to
support the nonmoving party’s case’ when the nonmoving party bears the ultimate burden of
proof.”)(quoting Celotex, 477 U.S. at 325).
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. Celotex, 477
U.S. at 324. A “party opposing summary judgment may not rest upon the mere allegations or
denials of the . . . pleading[s.]” Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001) (internal
quotations omitted). 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. Woloszyn v. County of Lawrence, 396 F.3d 314, 319 (3d Cir. 2005).
B.
Section 1983 Actions
A plaintiff may have a cause of action under 42 U.S.C. § 1983 for certain violations of his
constitutional rights. 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. Thus, to state a claim for relief under § 1983, a plaintiff must allege, 1) the
violation of a right secured by the Constitution or laws of the United States and, 2) that the alleged
7
deprivation was committed or caused by a person acting under color of state law. West v. Atkins,
487 U.S. 42, 48 (1988); Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).
C.
Fourth Amendment Excessive Force Claim
Plaintiff’s claim is analyzed under the under the Fourth Amendment's “objective
reasonableness” standard. Graham v. Connor, 490 U.S. 386, 395 (1989). To determine objective
reasonableness, courts must balance the “nature and quality of the intrusion on the individual’s
Fourth Amendment interests against the countervailing governmental interests at stake.” Graham,
490 U.S. at 396 (quoting Tennessee v. Garner, 471 U.S. 1, 8 (1985)) (internal quotation marks
omitted). While this inquiry is “highly individualized and fact specific,” the Supreme Court has
provided three factors to guide courts through it:
(1) the severity of the crime at issue,
(2) whether the suspect poses an imminent threat to the safety of the police or others in the
vicinity, and
(3) whether the suspect attempts to resist arrest or flee the scene.
Santini, 795 F.3d at 417 (quoting Graham, 490 U.S. at 396). See also Sharrar v. Felsing, 128 F.3d
810, 822 (3d Cir. 1997) (providing additional factors including “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”).
Furthermore, “objective reasonableness” is evaluated “from the perspective of the officer
at the time of the incident and not with the benefit of hindsight.” Santini, 795 F.3d at 417 (citing
Maryland v. Garrison, 480 U.S. 79, 85 (1987)). The Third Circuit has summarized this standard,
evaluating all of the Graham factors and additional Sharrar considerations, as employing a
8
“totality of the circumstances” approach for evaluating objective reasonableness. Id. (citing
Curley, 499 F.3d at 207).
III.
Analysis
Police Officer Defendants assert two arguments in support of summary judgment. (See
D.E. No. 68-2, Brief in Support of Jersey City Defendants Motion for Summary Judgment, (“Def’s
Mov. Br.”)). First, that the Police Officer Defendants are entitled to qualified immunity because
their allegedly unlawful action was objectively reasonable. (Id. at 6-19). Second, that Plaintiff
has not established evidence of actual injuries sustained as a result of the alleged use of excessive
force, and is therefore not entitled to compensatory damages. (Id. at 19). The Court finds that the
Police Officers Defendants are entitled to qualified immunity and therefore, does not reach the
second argument.
“[G]overnment officials performing discretionary functions generally 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 would have known.” Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982). “When 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 (2011)
(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).
Courts have the discretion to perform the two-step qualified immunity test in the order
deemed most appropriate in the particular case at issue:
[T]he first step of the analysis addresses whether the force used by
the officer was excessive, and therefore violative of the plaintiff’s
constitutional rights, or whether it was reasonable in light of the
facts and circumstances available to the officer at the time. This is
not a question of immunity at all, but is instead the underlying
question of whether there is even a wrong to be addressed in an
analysis of immunity. The second step is the immunity analysis and
addresses whether, if there was a wrong, such as the use of excessive
9
force, the officer made a reasonable mistake about the legal
constraints on his actions and should . . . be protected against suit[.]
Santini v. Fuentes, 795 F.3d 410, 418 (3d Cir. 2015) (quoting Curley v. Klem, 499 F.3d 199, 207
(3d Cir. 2007)). “[W]hether an officer has used excessive force ‘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.’” Kisela v. Hughes, 138 S. Ct.
1148, 1152 (2018) (citing Graham, 490 U.S. at 396.)) “Qualified immunity attaches when an
official’s conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Id. (quoting White v. Pauly, 137 S.Ct. 548, 551 (2017)
(per curiam)) (alterations and internal quotation marks omitted). “‘Because the focus is on whether
the officer had fair notice that her conduct was unlawful, reasonableness is judged against the
backdrop of the law at the time of the conduct.’” Id. (quoting Brosseau v. Haugen, 543 U.S. 194,
198 (2004)) (per curiam). The excessive force alleged here occurred on November 1, 2009.
(Defs.’ SMF ¶ 1).
“‘[E]xisting precedent must have placed the statutory or constitutional question beyond
debate.’” Id. (quoting White, 137 S.Ct., at 551) (internal quotation marks omitted). “An officer
‘cannot be said to have violated a clearly established right unless the right’s contours were
sufficiently definite that any reasonable official in the defendant's shoes would have understood
that he was violating it.’” Id. at 1153 (quoting Plumhoff v. Rickard, 134 S.Ct. 2012, 2023 (2014)).
Here, even assuming that Plaintiff meets the first step of the qualified immunity analysis—
that is, that the following constituted excessive force in violation of Plaintiff’s constitutional rights:
pushing Plaintiff into a wall, throwing him to the ground, hitting him in the leg with a baton while
twisting his arm behind his back in order to cuff him, in response to observing Plaintiff participate
10
in what was believed to be a drug transaction—the Police Officer Defendants have shown, as a
matter of law, that they made a reasonable mistake about the legal constraints on their actions.
It is clearly established that “the right to make an arrest . . . necessarily carries with it the
right to use some degree of physical coercion or threat thereof to effect it” even if the arrest is
invalid or the suspect is innocent. Graham, 490 U.S. at 396. However, an officer may not use
gratuitous force against a person who was already subdued. Giles v. Kearney, 571 F.3d 318, 326
(3d Cir. 2009) (citing example Skrtich v. Thornton, 280 F.3d 1295, 1303 (11th Cir. 2002)).
Here, even if the officers were mistaken in arresting him, as Plaintiff alleges, they
reasonably believed they had observed Plaintiff engage in a drug transaction, then attempt to flee
as arrests were being made, and appeared to resist arrest when officers stopped him. Indeed, even
Plaintiff admitted in his second deposition that “I guess they thought I was trying to resist or
whatever.” (2016 Glover Dep. 14:3). Further, Plaintiff does not assert that he was handcuffed or
was otherwise cooperating and holding still at the time the arresting officers used force. (See
generally D.E. No. 4; 2015 Glover Dep.; 2016 Glover Dep.). In fact, he testified that once he had
had been cuffed, the officers ceased using force and simply asked him some questions. (See 2015
Glover Dep. 24:20-22). Thus, there is no dispute that Plaintiff reasonably appeared to be resisting
and had not been handcuffed or subdued from movement at the time the officers used force,
including when Defendant Goodman hit Plaintiff on the leg with a baton. (See id; see also D.E.
No. 68-3, Ex. C ¶ 6 & Ex. H 11:18-21). This gave the officers the right to use some physical force
to effect an arrest. See Graham, 490 U.S. at 396; see also Santini v. Fuentes, 739 F. App’x 718,
721 (3d Cir. 2018) (noting officers’ use of force was appropriate to effect an arrest when the facts
suggested “some level of resistance to” the officers “at all stages of the physical interaction and
continued resistance, even as officers instructed him to stop resisting.”).
11
Further, at the time of the arrest in question there was no case law establishing that officers
cannot use some force, including briefly using a baton to strike the legs of an arrestee who appears
to be resisting, in an attempt to handcuff the suspect before he is fully cooperating with the arrest.
See e.g., Santini, 739 F. App’x 718, 721 (3d Cir. 2018) (affirming summary judgment on the basis
of qualified immunity in a 2009 arrest of a non-suspect witness who was pepper-sprayed and struck
with nightsticks prior to being handcuffed when it appeared he was resisting). Accordingly, there
was no existing precedent that “placed the statutory or constitutional question beyond debate.”
Kisela, 138 S. Ct. at 1148.
Therefore, the Police Officer Defendants are entitled to qualified immunity and their
motion for summary judgment is granted.
IV.
CONCLUSION
For the foregoing reasons, the Court grants the Police Officer Defendants’ motion for
summary judgment on the basis of qualified immunity.
An appropriate Order accompanies this Opinion.
s/Esther Salas
Esther Salas, U.S.D.J.
12
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?