JUTROWSKI v. TOWNSHIP OF RIVERDALE et al

Filing 88

OPINION. Signed by Judge John Michael Vazquez on 7/11/17. (sr, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

EMIL JUTROWSKI,
Civil Action No. 13-735 1
Plainti;fl;
OPINION
V.

TOWNSHIP OF RIVERDALE, et al,
Defendants.

John Michael Vazguez, U.S.D.J.

This matter comes before the Court on the motion for reconsideration filed by Plaintiff
Emil Jutrowski, D.E. $3, of the Court’s grant of summary judgment in favor of Defendants. The
Court’s Opinion was issued on April 17, 2017, D.E. $1. (“Summary Judgment Opinion”). The
State of New Jersey, New Jersey State Trooper Jeffrey Heimbach, New Jersey State Trooper James
Franchino, and Colonel Rick Fuentes (collectively, the “State Defendants”), and the Township of
Riverdale, Riverdale Police Officer Travis Roemmele, Riverdale Sergeant Christopher Biro, and
Police Chief Thomas Soules (collectively, the “Riverdale Defendants”) filed briefs in opposition
to Plaintiffs motion. D.E. $6, $7. The Court reviewed all submissions made in support of the
motions and considered the motions without oral argument pursuant to Fed. R. Civ. P. 78(b) and
L. Civ. R. 78.1(b). For the reasons that follow, Plaintiffs motion is DENIED.
I.

RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

This case pertains to allegations of excessive force by a single, unidentified police officer.
The force was a kick to Plaintiffs face while Plaintiff was lying face down while multiple officers
were attempting to access Plaintiffs hands, which were under Plaintiffs body. The matter turns

not on whether the kick was impermissibly excessive; Plaintiff has presented sufficient evidence
to permit that issue to go to a jury. Instead, the crux of the Court’s prior decision, of which Plaintiff
currently seeks reconsideration, is Plaintiff’s inability to identify (directly or circumstantially) the
officer who kicked him.
Two Riverdale police officers (the “Individual Riverdale Officers”), two New Jersey State
Troopers (the “Individual Troopers,” and collectively the “Individual Officer Defendants”), and at
least one non-party New Jersey State Trooper responded to an accident involving Plaintiff, which
occurred on Route 287 North.1 Plaintiff was legally intoxicated at the time and at least one
Individual Officer Defendant stated that Plaintiff was being belligerent. During his interactions
with the Individual Officer Defendants, Plaintiff was eventually knocked to the ground by an
Individual Trooper Defendant because the Trooper feared for Plaintiff’s and his own safety. The
Individual Troopers and the non-party Trooper then began struggling with Plaintiff while he was
on the ground. After Plaintiff was already on the ground, the Individual Riverdale Officers came
over to the struggle. One Individual Riverdale Defendant assisted in restraining Plaintiff by
holding Plaintiff’s feet and the other stayed in the vicinity. Plaintiff alleges that during this
struggle, one Individual Officer Defendant kicked him in the face one or two times, causing
substantial injuries. Plaintiff cannot identify the alleged assailant.
In their motions for summary judgment, Defendants did not contest that Plaintiff was
kicked. And although Plaintiff did not conclusively establish that he was in fact kicked, the Court
“assume[d] that an Individual Officer kicked Plaintiff in the face after he was brought to the
ground.” Summary Judgment Opinion at 9. Plaintiff, however, provided no facts or circumstantial
evidence by which a jury could determine who kicked him, or even which entity the assailant

‘The citations supporting the facts were set forth in the Summary Judgment Opinion.
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worked for. Id. Consequently, the Court determined that Plaintiff was essentially asking the Court
(and as a result, a jury) to guess as to which Individual Defendant should be held liable. Due to
this lack of evidence, the Court granted summary judgment for Defendants as to Plaintiffs Section
1983 excessive force claims. Id. at 10.
Plaintiff also argued that summary judgment should be denied because the Riverdale
Defendants failed to produce a video recording of the incident. Plaintiff asked the Court to draw
an adverse inference that the Riverdale Defendants destroyed or concealed the recording because
it showed the individual who kicked Plaintiff.

Plaintiff maintained that when the incident

occurred, cameras in Riverdale Police cars automatically recorded when the emergency lights were
activated. Plaintiff further asserted that the emergency lights on a Riverdale patrol car were on
and, thus, the incident was recorded. The cameras in Riverdale Police cars could also record if an
officer pressed the record button. Although Riverdale law enforcement personnel were required
to record all vehicle stops, the Individual Riverdale Officer who was driving the car at issue did
not press the record button when he exited the vehicle because he thought he was responding to an
accident rather than a traffic stop.
In requesting that the Court draw an adverse inference as to the recording, Plaintiff assumed
that there was a recording of the incident but that it was destroyed. The Court, however, refused
to draw such an inference because Plaintiff failed to produce sufficient evidence establishing that
a video even existed. Summary Judgment Opinion at 11-12.
II.

RECONSIDERATION STANDARD

In the District of New Jersey, motions for reconsideration can be made pursuant to Local
Civil Rule 7.1(i). The rule provides that such motions must be made within fourteen days of the
entry of an order. Substantively, a motion for reconsideration is viable when one of three scenarios

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is present: (1) an intervening change in the controlling law, (2) the availability of new evidence
not previously available, or (3) the need to correct a clear error of law or prevent manifest injustice.
Carmichael v. Everson, No. 03-4787, 2004 WL 1587894, at *1 (D.N.J. May 21, 2004) (citations
omitted). A motion for reconsideration, however, does not entitle a party to a second bite at the
apple. Therefore, a motion for reconsideration is inappropriate when a party merely disagrees with
a court’s ruling or when a party simply wishes to re-argue or re-hash its original motion. Sch.
Specialty, Inc. v. Ferrentino, No. 14-4507, 2015 WL 4602995, *2.3 (D.N.J. July 30, 2015); see
also Florham Park Chevron, Inc. v. Chevron US.A., 680 F. $upp. 159, 162 (D.N.J. 198$).
III.

ANALYSIS
A. Excessive Force Claims

Plaintiff argues that the Court should reconsider its decision as to his claims for excessive
force against the Individual Officer Defendants because it is not supported by case law. Plaintiff
contends that the Court ignores cases holding that a plaintiff need not identify the specific
wrongdoer as long as the plaintiff can demonstrate that a defendant was in the vicinity when
excessive force occurred and had an opportunity to inflict the force. PH’s Br. at 7.
In its summary judgment Opinion, the Court relied on two precedential Third Circuit
opinions, Sharrar v. Felsing, 128 F.3d 810 (3d Cir. 1997), abrogated on other grounds by Curley
v. Klem, 499 F.3d 199, 209-11 (3d Cir. 2007) and Howell v. Cataldi, 464 F.2d 272 (3d Cir. 1972).
Summary Judgment Opinion at 9-10. In Sharrar and Felsing, the Third Circuit determined that
there was insufficient evidence to hold individual defendants liable for Section 1983 excessive
force claims because the plaintiff did not have sufficient evidence to identify the wrongdoer. See
Sharrar, 128 F.3d at $21; Howell, 464 F.2d at 282-83; see also McNeil v. City ofEaston, 694 F.
Supp. 2d 375, 399 (E.D. Pa. 2010) (“I am constrained to grant defendants’ motion for summary

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judgment because plaintiff has not provided any evidence as to which officer kicked him in the
head.”).
In making his argument for reconsideration, Plaintiff discusses a number of cases that were
not addressed in his opposition to Defendants’ motions for summary judgment. Because the Court
based its ruling on cases that were not discussed at length by any party, Plaintiff maintains2 that
the Court should consider these new cases as “the Court’s ruling was the first exposure Plaintiff
had” to the Court’s legal theory. Plfs Br. at 8. Generally, parties are only permitted to present
new case law in a motion for reconsideration when there is an intervening change in the controlling
law. See In re Human Tissue Prods. Liab. Litig., No. 06-135, 2009 WE 1560161, at *2 (D.N.J.

June 1, 2009). The Court, however, is cognizant of Plaintiffs concerns, see note 2 supra, and will
therefore consider the cases cited by Plaintiff in his current motion. See Yurecko v. Port Auth.
Trans-Hudson Corp., 279 F. Supp. 2d 606, 612 (D.N.J. 2003) (concluding that when deciding a
motion for reconsideration a court may, “in its discretion, consider arguments not made at the time
of the original decision”). But, as will be discussed, Plaintiffs additional cases do not alter the
Court’s summary judgment decision.
At the outset, Plaintiff does not cite to any cases that overrule Sharrar or Howell, or
otherwise demonstrate they are no longer good law. Although Plaintiff argues that Sharrar and

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Plaintiff also complains that the Court should not have addressed the issue Plaintiffs inability
to identify the officer who kicked him because it was not raised in the summary judgment briefs.
The Court disagrees. The Riverdale Defendants and the State Defendants both argued there was
no evidence to support an excessive force claim as to the individual Riverdale or State Defendants,
respectively. Riverdale SJ Br. at 3-7; State SJ Br. at 15-16. Thus, the Riverdale and State
Defendants each asserted that Plaintiff could not identify any Individual Defendant from within
their respective departments who kicked Plaintiff. In response, Plaintiff argued that a reasonable
jury could infer that either a Riverdale Defendant or a State Defendant kicked him. Plfs Br. at 810. Plaintiff did not disagree with the Defendants’ position or, more importantly, point to any
direct or circumstantial evidence indicating that a specific officer kicked him. Nevertheless, as
discussed, the Court will review the merits of Plaintiffs motion for reconsideration.
—

—

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Howell are factually distinguishable to the case at hand, these factual discrepancies do not alter the
clear holding that to support a claim for excessive force, a party must provide facts that reasonably
identify the alleged wrongdoer. Moreover, the only published case that Plaintiff cites to in his
motion for reconsideration, Smith v. Mensinger, is factually distinguishable and does not alter clear
Third Circuit precedent. In vacating judgment for a number of corrections officer defendants in
Smith v. Mensinger, the Third Circuit concluded that the extent of each officer’s involvement was
a factual dispute. Although the plaintiff could not see these officer defendants when the assault
occurred, he alleged that every named defendant guard participated in the assault. 293 F.3d 641,
650 (3d Cir. 2002) (noting that Plaintiff testified three times that “all” of the named guards were
involved in the alleged assault). In addition, the Smith court observed that it was uncontroverted
that all of the defendant guards were in the area when the plaintiff was beaten. Id. at 650. Here,
Plaintiff alleges that a single, unidentified officer kicked him. Yet, it is undisputed that at the time
of the kick, five officers from two different entities were involved in the attempt to restrain
Plaintiff. As noted, Plaintiff has not presented any direct or circumstantial evidence as to whom
delivered the kick.
Plaintiff also cites to a number of unpublished cases. The cited cases, however, are not
binding precedent. Moreover, all are clearly distinguishable from the facts presented in this matter.
First, in Godnig v. Stroud Area Regional Police Department, the court rejected the
defendants’ argument that the complaint should be dismissed because the plaintiff failed to identify
which officers were responsible for the alleged excessive force. No. 15-2292, 2016 WL 4440282,
at *6 (M.D. Pa. Aug. 23, 2016).

Instead, the court concluded that the plaintiff sufficiently

identified four officers from a single police department, and at the motion to dismiss stage,
appropriately identified the personal involvement of each defendant. Id. Importantly, all four

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named officers were involved in the allegedly improper conduct. Id. at *1. Similarly, in Cottden
v. Duf, the plaintiff identified each of the three officers who allegedly used excessive force. No.
03-369, 2011 WE 6151411, at *6 (D. Del. Dec. 12, 2011). Ofnote, there were only four officers
present, three of whom were alleged to have engaged in the excessive force. Id. at *6. The Plaintiff
in Cottden also had a witness who confirmed the identity of the officer who was not involved. Id.
In D ‘A rn go v. Gloucester City, the court also rejected two individual officers’ arguments
that summary judgment should be granted on excessive force claims because the plaintiff was
unable to identify the officers who punched and kicked him. No. 04-5967, 2007 WE 1755970, at
*11 (D.N.J. June 19, 2007). In that case, the plaintiff could not identify his assailants. However,
a police report and eyewitness testimony (in the form of another law enforcement officer)
sufficiently identified the two defendant officers as the wrongdoers. Consequently, the court
concluded that there was a genuine issue of material fact that precluded summary judgment as to
these two defendants. Id. at *12.
In Hudgon v. LaFlettr, the plaintiff could not identify the individual defendants by name.
No. 07-3626, 2010 WE 2950004, at *4..5 (D.N.J. July 22, 2010). Nevertheless, Judge Kugler
denied summary judgment for the defendant officers as to the excessive force claim. Among other
things, Judge Kugler noted that multiple officers were involved in the allegedly improper conduct
and admitted to taking the plaintiff to the ground and holding him there, which the plaintiff asserted
was excessive. Id. at *43 Similarly, in Spencer v. Biggins, although the plaintiff could not
personally identify the individual officer defendants, he was clear that two officers were

Judge Kugler also focused on the fact that the plaintiff could not identify by “name” the officers
involved in allegedly (and repeatedly) “punching, kneeing, and kicking” the plaintiff after he had
been taken to the ground. Id. at *5 In this matter, by comparison, Plaintiff cannot identify the
alleged perpetrator by any means, including by name.
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responsible for the excessive force used against him. No. 11-1850, 2013 WL 5702312, at (M.D.
Pa. Oct. 18, 2013). The two officers were named in an accompanying police report. Moreover,
the actions of one of the defendant officers were not denied. Id. at at *7
In all these cases relied on by Plaintiff, there was some evidence from which a jury could
reasonably conclude that the named defendants had in fact engaged in excessive force. Here,
although Plaintiff knows that the two Individual Troopers, a non-party State Trooper, and the two
Individual Riverdale Officers were in the vicinity and could conceivably be the wrongdoer, he is
unable to identify or point to evidence that create a material issue of fact as to which one of these
five individuals actually kicked him. Thus, the facts at hand are materially different than those
present in these unpublished cases.
Plaintiff also cites to Abrahante v. Johnson, which involved claims for failure to intervene4
because the plaintiff could not identify the officer who used excessive force. No. 07-5701, 2009
WL 2152249, at *7 (D.N.J. July 14, 2009). Miller v. Woodhead, also relied on by Plaintiff,
*5 (D.N.J.
similarly addressed failure to intervene claims.3 No. 08-3092, 2011 WL 817556, at
Mar. 2, 2011). In this instance, Plaintiff did not assert failure to intervene claims. Consequently,
Abrahante and Mit/er are inapposite.

Failure to intervene is a cognizable theory of liability which applies to a law enforcement officer’s
duty to prevent another officer from using excessive force. Smith v. Messinger, 293 F.3d 641,
650-5 1 (3d Cir. 2002). A threshold issue is whether excessive force was in fact used. If there is
excessive force, then an officer must have a “realistic and reasonably opportunity to intervene”
before the officer can be liable for failing to intervene. Id. (citation omitted).

‘

Miller also involved an excessive force claim; the plaintiff alleged that multiple police officers
punched, kicked, and maced him. Mit/er, 2011 WL 817556, at * I. The Miller court also denied
the motion for summary judgment as to the excessive force count because the evidence
demonstrated that the officers participated in and had physical contact with the plaintiff. One of
the officers also admitting to punching and macing the plaintiff while another admitted to putting
a knee on the plaintiffs neck. Id. at *5•
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In sum, the additional cases cited by Plaintiff do not alter the Court’s decision granting
summary judgment as to the excessive force claims.
B. Spoliation

Plaintiff argues that the Court also failed to correctly apply the summary judgment
standard when it refused to make an adverse inference as to the Riverdale Defendants’ failure to
produce a video recording of the incident. Plaintiff maintains that he met his burden of establishing
that the dashboard camera was recording and that the recording would have shown an unobstructed
view of the events. P1? s Br. at 18. Thus, Plaintiff contends that at the summary judgment stage
the Court should have rendered all inferences in his favor, as the non-moving party, and concluded
that the Riverdale Defendants “willfully failed to produce the recording.” Id. at 8.
In making this argument, however, Plaintiff does not contend that the Court committed a
clear error of law or that reconsideration is necessary to prevent manifest injustice. Consequently,
Plaintiff does not assert a proper basis upon which the Court could reconsider its decision regarding
the video recording. See, e.g., Leja v. Schmidt Mfg., Inc., 743 F. Supp. 2d 444, 456 (D.N.J. 2010)
(“A decision suffers from ‘clear error’ only if the record cannot support the findings that led to
that ruling.”); Sabbagh v. City ofHackensack, No. 10-900, 2013 WL 3336757, at *2 (D.N.J. June
28, 2013) (“To prevail under the manifest injustice prong, the movant must show that dispositive
factual matters or controlling decisions of law were brought to the court’s attention but not
considered.”) (quoting Mason v. Sebelius, No. 11-2370, 2012 WL 3133 801, at *2 (D.N.J. July 31,
2012))) (internal quotations and brackets omitted).

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IV.

CONCLUSION
For the reasons set forth above, Plaintiffs motion for reconsideration (D.E. 83) is

DENIED. An appropriate Order accompanies this Opinion.
Dated:

July 11,2017

John ‘Michael VazquezU.S..J.

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