GREENE v. PEREZ et al
OPINION. Signed by Judge William J. Martini on 4/17/17. (gh, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
RONALD B. GREENE,
Civ. No. 2:13-05493
MICHAEL PEREZ, et al.,
WILLIAM J. MARTINI, U.S.D.J.:
Pro se Plaintiff Ronald Greene brings this action against four detectives of the
Bergen County Prosecutor’s Office, namely Brian Kelly, Michael Perez, and unidentified
individuals John Doe #1 and John Doe #2 (collectively “Defendants”). Plaintiff alleges
that Defendants used excessive force against him during his arrest in violation of 42 U.S.C.
§ 1983. This matter comes before the Court on Defendants’ motion to dismiss pursuant to
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). There was no oral argument. Fed.
R. Civ. P. 78(b). For the reasons set forth below, Defendants’ motion to dismiss is
GRANTED, in part, and DENIED, in part.
The Court assumes the parties’ familiarity with the facts and procedural history of
this case, but will briefly summarize here. Plaintiff is a convicted and sentenced prisoner,
currently serving his sentence in East Jersey State Prison, Rahway, New Jersey. Op. 1,
ECF No. 39. On October 18, 2011, Plaintiff alleges that Defendants used excessive force
while arresting him during a police sting operation. See Am. Compl. 5–6, ECF No. 41.
Plaintiff originally complained of several other § 1983 claims in addition to his
excessive force claim, which this Court dismissed with prejudice because those claims
were not cognizable under Heck v. Humphrey, 512 U.S. 477 (1994). See Op. 3–4, ECF
No. 30. The Court found that Heck did not bar Plaintiff’s excessive force claim because it
did not necessarily undermine his conviction. Id. at 4. Nevertheless, the Court dismissed
the excessive force claim without prejudice because Plaintiff’s allegations failed to
describe specific facts as to how the use of force was excessive. Id.
Plaintiff later filed an amended complaint (the “Complaint”) in which he alleged the
following, in pertinent part:
After being handcuffed and while being held down on the ground, Det.
Kelly used his knee to spear plaintiff in the back, then repeatedly punched
plaintiff in his back, ribs and scrotum, doing this while Det. John Doe #1
kept his foot on plaintiff’s neck, increasing the pressure and grinding his
boot into plaintiff’s neck. This assaultive force used against plaintiff
while he was handcuffed and pinned to the ground lasted for 2–3 minutes.
Det. Kelly and Det. John Doe #1, each having both a realistic and
reasonable opportunity to intervene and prevent each other from using the
unnecessary and excessive force to seize and arrest plaintiff. At all times,
John Doe #2 was in close proximity, and having a realistic and reasonable
opportunity to do failed to intervene in the excessive force, and acquiesced
to the assaultive use of force . . . .
Am. Compl. at 6. Plaintiff further alleged that he was arrested “as he exited the parked
vehicle that he was in, while he was involved in committing no crime, and was talking on
his cell phone.” Id. at 5–6.
On December 5, 2013, Plaintiff was convicted by a jury on several charges,
including aggravated assault with a firearm. On April 11, 2014, Plaintiff was sentenced to
35 years of imprisonment, which he is currently serving. See ECF No. 36 at 1; Defs.’ Br.
in Opp’n to Pl.’s Mot. for Default, Ex. B, ECF No. 20-1. Under the aggravated assault
charge, the indictment describes that Plaintiff “did knowingly under circumstances
manifesting extreme indifference to the value of human life, point a firearm at, or in the
direction of, Detective Michael Perez . . . .” See id., Ex. A. Plaintiff does not mention that
he possessed a firearm during the course of his arrest in the Complaint.
Defendants now move to dismiss the Complaint, arguing: (1) that Plaintiff’s claims
regarding a lack of probable cause to effect an arrest are barred by Heck, see Br. in Supp.
of Defs.’ Mot to Dismiss (“Defs.’ Mot.”) 7–9, ECF No. 43; (2) Plaintiff’s claims against
Defendants Perez and Kelly are conclusory and not entitled to the assumption of truth, see
id. at 9–10, 13–15; and (3) that Defendant Kelly is entitled to qualified immunity in light
of the factual circumstances—i.e., Plaintiff’s possession of a firearm during his arrest, see
id. at 15–19. Plaintiff opposes, arguing that he is entitled to discovery and emphasizing
that he alleges the use of excessive force after he was secured and handcuffed. See Pl.’s
Opp’n 2–3, ECF No. 47. Defendants filed a reply. ECF No. 48.
Federal Rule of Civil Procedure 12(b)(1) provides for the dismissal of a complaint
for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). There are two types of
challenges to subject-matter jurisdiction: (1) facial attacks, which challenge the allegations
of the complaint on their face; and (2) factual attacks, which challenge the existence of
subject-matter jurisdiction, quite apart from any pleadings. Mortensen v. First Fed. Sav.
& Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977). In reviewing a factual attack, such as the
ones presented here, the court may consider evidence outside the pleadings, and no
presumptive truthfulness attaches to the plaintiff’s allegations. Gould Electronics Inc. v.
United States, 220 F.3d 169, 176 (3d Cir. 2000). The plaintiff bears the burden of proving
that jurisdiction exists. Id. at 178.
Federal Rule of Civil Procedure 12(b)(6) provides for dismissal of a complaint, in
whole or in part, if the plaintiff fails to state a claim upon which relief can be granted. The
moving party bears the burden of showing that no claim has been stated. Hedges v. United
States, 404 F.3d 744, 750 (3d Cir. 2005). In deciding a motion to dismiss under Rule
12(b)(6), a court must take all allegations in the complaint as true and view them in the
light most favorable to the plaintiff. See Warth v. Seldin, 422 U.S. 490, 501 (1975); Trump
Hotels & Casino Resorts, Inc. v. Mirage Resorts Inc., 140 F.3d 478, 483 (3d Cir. 1998).
Although a complaint need not contain detailed factual allegations, “a plaintiff’s
obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels
and conclusions, and a formulaic recitation of the elements of a cause of action will not
do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, the factual allegations
must be sufficient to raise a plaintiff’s right to relief above a speculative level, such that it
is “plausible on its face.” See id. at 570; see also Umland v. PLANCO Fin. Serv., Inc., 542
F.3d 59, 64 (3d Cir. 2008). A claim has “facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly,
550 U.S. at 556). While “[t]he plausibility standard is not akin to a ‘probability
requirement’ . . . it asks for more than a sheer possibility.” Id.
The Court will first consider Defendants’ argument that Heck bars Plaintiff’s claim
before turning to their arguments concerning the deficiencies of the Complaint. In Heck,
the Supreme Court held that “when a state prisoner seeks damages in a § 1983 suit, the
district court must consider whether a judgment in favor of the plaintiff would necessarily
imply the invalidity of his conviction or sentence . . . .” See 512 U.S. at 487. The Court
has previously held that Plaintiff’s excessive force claim was not barred by Heck. See ECF
No. 30 at 4. Upon further consideration, the Court now finds that any claim of excessive
force relating to Defendants’ conduct prior to his handcuffing is also barred under Heck.
As mentioned, Plaintiff was convicted of aggravated assault with a firearm, among
several other charges. The assault occurred when Plaintiff pointed his handgun at
Defendant Perez during Plaintiff’s attempted robbery of him. To succeed on his claim
relating to Defendants’ conduct prior to his arrest, Plaintiff would have to show that the
use of non-deadly force to disarm and secure him was unreasonable or that he was unarmed
in the first instance. By logical extension, such a showing would contradict the jury’s
finding that Plaintiff committed aggravated assault by pointing a firearm at Defendant
Perez and would necessarily imply the invalidity of Plaintiff’s conviction. See Jennings v.
Fetterman, 197 F. App’x 162, 164 (3d Cir. 2006) (finding that plaintiff’s excessive force
claim would necessarily imply the invalidity of his conviction for attempted homicide and
was, therefore, barred by Heck because it would negate the jury’s finding that defendant
shot plaintiff in self-defense). The Court, therefore, finds that Plaintiff’s claim of excessive
force as related to Defendants’ conduct prior to his handcuffing is barred by Heck.
After Plaintiff was disarmed and physically restrained, however, Plaintiff’s claim of
excessive force from that point forward would not necessarily imply the invalidity of his
conviction. As a threshold matter, the Court rejects Defendants’ argument that Plaintiff’s
allegations are conclusory and not entitled to an assumption of truth at this stage. Plaintiff
described in detail the specific actions taken by Defendant Kelly and another unidentified
individual in beating Plaintiff after he was handcuffed and pinned to the ground. See Am.
Compl. at 6. Additionally, the Court emphasizes that Plaintiff is a pro se litigant, which
requires a liberal construction of his Complaint. See Alexander v. Gennarini, 144 F. App’x
924, 926 (3d Cir. 2005) (“pro se pleadings must be liberally construed”). For this reason,
the Court declines to dismiss the claim against Defendant Perez because the Complaint
clearly establishes that Defendant Perez was at the scene. Viewing the facts in the light
most favorable to Plaintiff, it is plausible that Defendant Perez failed to intervene in the
other Defendants’ use of excessive force.
Defendants assert qualified immunity, which requires a two-step inquiry. First, a
court must determine “whether the facts—taken in the light most favorable to the
nonmoving party—show that a government official violated a constitutional right.” See
Santini v. Fuentes, 795 F.3d 410, 417 (3d Cir. 2015) (citing Saucier v. Katz, 533 U.S. 194,
201 (2001)). Second, a court decides whether the right violated was clearly established at
the time of the violation—i.e., whether the official made a reasonable mistake as to the
legal constraints of his or her actions. See id. at 417–18 (citations omitted). “Although
qualified immunity is a question of law determined by the Court, when qualified immunity
depends on disputed issues of fact, those issues must be determined by the jury.” Monteiro
v. City of Elizabeth, 436 F.3d 397, 405 (3d Cir. 2006). In deciding whether excessive force
was used, a court must determine whether the conduct in question was objectively
reasonable and consider “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.” Couden v. Duffy, 446 F.3d 483, 496–97 (3d
Cir. 2006) (quotation omitted).
Defendants are not entitled to qualified immunity at present. Once again, taking
Plaintiff’s allegations as true, the Court finds that Plaintiff has clearly established a
violation of his Fourth Amendment right because the continued beating of Plaintiff after
he was handcuffed and physically detained could be viewed as unreasonable, excessive
and serving no legitimate law enforcement purpose. See Hurt v. City of Atlantic City, No.
08-cv-3053, 2010 WL 703193, at *8 (D.N.J. Feb. 24, 2010). Furthermore, a reasonable
officer in 2011 would have known that continuing to beat a suspect after he was physically
restrained, no longer posed a threat to others and was no longer a risk of flight was
excessive and unconstitutional. See id. Accordingly, Defendants’ motion to dismiss as
related to Plaintiff’s claims after his handcuffing is DENIED.
For the reasons stated above, Defendants’ motion to dismiss is GRANTED, in part,
and DENIED, in part. The motion to dismiss is granted with respect to all events occurring
prior to Plaintiff being disarmed and handcuffed. Any portion of Plaintiff’s claims related
to those events is DISMISSED WITH PREJUDICE. The motion to dismiss is denied
with respect to events occurring after Plaintiff was disarmed and handcuffed. An
appropriate order follows.
/s/ William J. Martini
WILLIAM J. MARTINI, U.S.D.J.
Date: April 17, 2016
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