RODRIGUEZ et al v. CITY OF PATERSON et al
Filing
76
OPINION. Signed by Judge John Michael Vazquez on 06/25/2018. (ek)
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Not for Publication
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
RODRIGUEZ, et a!.,
Plaintiffs,
Civil Action No. 14-3450 (JMV) (JBC)
v.
OPINION
CITY Of PATERSON, et al.,
Defendants.
John Michael Vazg uez, U.S .D .1.
This case arises from the circumstances surrounding the response of two Paterson Police
Department officers to a domestic dispute.
Plaintiffs Carlos Rodriguez and Darline Espinal
(“Plaintiffs”) allege that Defendant police officers Victor Ungarian and David Baird
(“Defendants”) engaged in excessive force and other constitutional violations against Plaintiffs
when responding to a domestic dispute at Plaintiffs’ apartment. Defendants move for summary
judgment pursuant to federal Rule of Civil Procedure 56. D.E. 67, 68. The Court reviewed all
submissions,’ 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, Defendants’ motions for summary judgment
are GRANTED in part and DENIED in part.
‘In this Opinion, Plaintiffs’ Complaint (D.E. 1) will be referred to as “Compi.” Defendants’
brief will be referred to as “Baird Br.” (D.E. 67). Ungarian did not file a brief(D.E. 67), and
instead joined Baird’s motion. Plaintiffs’ brief in opposition (D.E. 71) will be referred to as
“Opp. Br.” Defendants filed no briefs in reply.
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I. BACKGROUND2
On June 9, 2012, Defendants responded to Plaintiffs’ apartment on a domestic violence
call. D.E. 67-3 Defendant Baird’s Statement of Material facts (“Baird SOMf”) at ¶ 1. Plaintiffs
had been having a verbal argument that started outside of their third-floor apartment and then
continued inside. Id. at
¶ 2. Because the noise was so loud, a second-floor neighbor, Moises
Perales, asked Plaintiff Espinal if she was okay. Id. at
due to Plaintiffs’ argument. Id. at
¶ 4. Soon afier, Perales called the police
¶ 6. Defendants Baird and Ungarian were dispatched to
Plaintiffs’ apartment. At this point, the parties’ versions differ significantly.
Defendants’ Account
Defendants claim that once they arrived at the premises, Perales told them that Plaintiffs
had been arguing for a long time and had been slamming and throwing things in the residence. Id.
at ¶ 7. Defendants knocked on Plaintiffs’ door, Id. at
¶ 8, and when the door was slightly open,
Defendants observed Rodriguez pull Espinal by her neck, Id. at ¶ 10. Defendants then entered the
apartment. Id. at
¶ 11. Rodriguez, in an aggressive and rude manner, advised the officers that
nothing was going on and that they could leave. Id. at
¶ 12. Rodriguez then swung at Ungarian.
Id. at ¶ 13. Ungarian struggled with Rodriguez to effectuate his arrest. Id. at ¶ 14. Baird witnessed
Rodriguez assault Ungarian, Id. at
¶ 16, but was unable to render assistance because he had been
assaulted by Espinal and was attempting to arrest her, Id. at ¶ 15-17. Espinal struggled with Baird
and bit Baird during her arrest. Id. at ¶J 19-20.
Baird was treated at the St. Joseph’s Medical Center emergency room for the bite, and
received a tetanus shot. Id. at ¶ 22. Based on the bite, Espinal voluntarily consented to having her
2
The Court cites to Defendant Baird’s Statement of Material Facts, D.E. 67-3, to the extent that
the facts are not in dispute.
2
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blood drawn and tested for antibodies to the HIV virus. Id. at
¶ 23. Espinal was interviewed at
the emergency room by another officer, and Espinal stated that she jumped on Defendants in an
attempt to protect Rodriguez. Id. at ¶ 24. The interviewing officer indicated that Espinal strongly
smelled of alcohol. Id. at ¶ 25.
As a result of the incident, Plaintiffs were charged with two counts of aggravated assault
on a police officer and resisting arrest, and Rodriguez was additionally charged with aggravated
assault “under domestic.” Id. at
¶ 26. Both Plaintiffs were granted admission into a pretrial
intervention program. Id. at ¶ 27.
Defendants Baird and Ungarian both produced use of force reports. Baird reported that he
used a “[C] ompliance hold,” “[h]ands and/or fists,” and “[k]icks and/or feet” against both Plaintiffs.
D.E. 71, Ex. 6 (“Baird Force Report”). Ungarian reported that he used “[h]ands and/or fists” and
“[k]icks and/or feet” against Rodriguez, and used a “[c]ornpliance hold” and “[h]ands and/or fists”
against Espinal. D.E. 71. Ex. 5 (“Ungarian Force Report”). Both officers reported that Plaintiffs
“[r]esisted Police Officer control” and “[p]hysically attacked or threated Police Officer.” Id.
Plaintiffs’ Account
Plaintiffs have a very different version. While Plaintiffs admit that they were arguing
loudly, Plaintiffs deny that they were throwing things. Plaintiffs Response to Defendant Baird’s
Statement of Material Facts (“P1. Resp.”) at
¶ 7. Plaintiffs claim that Rodriguez never touched
Espinal after opening the door for the Defendants. Id. at
¶ 10. Instead, when Rodriguez opened
the door, Espinal was exiting her bedroom and saw Ungarian punch Rodriguez, causing him to fall
to the ground. Id. Rodriguez lost consciousness temporarily. Id. at
¶ 11. Espinal screamed and
asked why Ungarian struck Rodriguez, and then Ungarian turned and struck Espinal. Id. Espinal
fell to the ground, and Baird then repeatedly kicked her in the head and back. Id. Plaintiffs contend
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that Baird and Ungarian both participated in the arrest of Rodriguez. Id. at
¶ 15. Plaintiffs also
contend that Espinal did not struggle with Baird during her arrest and claim that Espinal never bit
Baird. Id. at ¶ 18-19, 23. Rather, Plaintiffs claim that Baird struck and kicked Espinal. Id. at ¶
19. In fact, Plaintiffs claim that Paterson Police Department Internal Affairs interviewed two
witnesses “that observed Officer Ungarian beat Rodriguez while he was handcuffed and on the
floor.” Id. at ¶ 27.
Plaintiffs claim that Rodriguez lost consciousness three times: (1) when Ungarian first
punched him, (2) when Ungarian kicked Rodriguez in the face, and (3) when Ungarian broke a
chair over Rodriguez’ back. Id. at
¶ 14. Afier his arrest, Rodriguez was diagnosed with a
concussion and had missing teeth. Id. Plaintiffs claim that Espinal signed the blood test consent
form without understanding what the document meant. Id. at
¶ 23. Espinal claims that she was
not drunk as she had only one drink more than eight hours before the incident. Id. at ¶ 25.
Lastly, Plaintiffs note that they were “admitted to Pretrial Intervention because
[] they had
no prior convictions, [there was] no apparent opposition by the Defendant police officers, and
[there was] a lack of evidence to prosecute
[] Plaintiffs.”
Id. at ¶ 27.
Perales’ Account
Perales, the superintendent of Plaintiffs’ building, testified that on June 9, 2012, Espinal
was in the hallway crying and Perales asked her if she was okay. D.E. 67, Ex. D (“Perales Dep.”)
at 17:12-15. Later, Perales observed Rodriguez shove Espinal up the steps of the hallway. Id. at
17:21-25. Perales stated that he could hear screaming, throwing of objects, and slamming doors.
Id. at 18:01-04. At this point, Perales called the police.
Plaintiffs also attach a number of internal investigation reports related to Defendants Baird and
Ungarian from 1999 to 2013. D.E. 71, Ex. 9. However, Plaintiffs no longer bring any claims
against the City of Paterson based on a pattern, practice, or custom of constitutional violations.
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When the police arrived, Perales told the police that Plaintiffs had been arguing for a while.
Id. at 19:05-15. Perales remained in his apartment, but heard a commotion coming from Plaintiffs’
apartment. Id. at 19:16-23. Perales then heard a police officer say “[h]e swung at me” and heard
a loud bang. Id. at 19:24-20:03. At this point, Perales lefi his apartment and ran upstairs to
Plaintiffs’ apartment. Id. Perales observed one officer on top of Rodriguez, and then observed
Espinal bite the officer on the arm. Id. at 20:08-14. Perales stated that Rodriguez was resisting
the officer and “kept on trying to get away from him by moving side-to-side, and the officer was
telling him he needs to calm down and to stop resisting.” Id. at 20:20-23. Afier Espinal bit the
officer, one of the officers attempted to hold her down. Id. at 2 1:05-10. According to Perales, the
officer
just took [Espinal] down, as I recall, just taking somebody to try to
keep them calm so they could put the handcuffs on her. He didn’t
slam her. He didn’t do nothing outrageous. He just took her down
to a laying position, and as soon as he took her down, had her two
hands in the back, put them in handcuffs and called for help at the
same time.
Id. at 22:03-10. At the same time, Rodriguez “was still trying to fight the other officer to get up.”
Id. at 22:11-12. Additional officers then arrived, and Perales went back to his apartment. Perales
later stated that both Plaintiffs were drunk at the time. Id. at 26:14-16.
II.
PROCEDURAL HISTORY
On May 30, 2014, Plaintiffs filed a Complaint against the City of Paterson, Ungarian, and
Baird.
D.E. 1.
The Complaint has three counts, alleging various federal and New Jersey
constitutional violations. All Defendants submitted Answers that included various crossclaims.
D.E. 5, 6, 7. On February 25, 2016, the case was reassigned to this Court. D.E. 34. On July 17,
2017, the City of Paterson was dismissed with prejudice per the parties’ stipulation. D.E. 65. The
current motions followed.
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III. SUMMARY JUDGMENT STANDARD
A moving party is entitled to summary judgment where “the movant shows that 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). A fact in dispute is material when it “might affect the outcome of the suit
under the governing law” and is genuine “if the evidence is such that a reasonable jury could return
a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Disputes over irrelevant or unnecessary facts will not preclude granting a motion for summary
judgment. 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 nomnoving
party’s evidence ‘is to be believed and all justifiable inferences are to be drawn in his favor.”
Marino v. Indtts. Crating Co., 358 f.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at
255)). In other words, a court’s role in deciding a motion for summary judgment is not to evaluate
the evidence and decide the truth of the matter but rather “to determine whether there is a genuine
issue for trial.” Anderson, 477 U.S. at 249.
A party moving for summary judgment has the initial burden of showing the basis for its
motion and must demonstrate that there is an absence of a genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). After the moving party adequately supports its motion,
the burden shifts to the nonrnoving party to “go beyond the pleadings and by [his] own affidavits,
or by the depositions, answers to interrogatories, and admissions on file, designate specific facts
showing that there is a genuine issue for trial.” Id. at 324 (internal quotation marks omitted). To
withstand a properly supported motion for summary judgment, the nonmoving party must identify
specific facts and affirmative evidence that contradict the moving party. Anderson, 477 U.S. at
250. “[I]f the non-movant’s evidence is merely ‘colorable’ or is ‘not significantly probative,’ the
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court may grant summary judgment.” Messa v, Omaha Prop. & Cas. Ins. Co., 122 F. Supp. 2d
523, 528 (D.N.J. 2000) (quoting Anderson, 477 U.S. at 249-50)).
Ultimately, there is “no genuine issue as to any material fact” if a party “fails to make a
showing sufficient to establish the existence of an element essential to that party’s case.” Celotex
Coip., 477 U.S. at 322. “If reasonable minds could differ as to the import of the evidence,”
however, summary judgment is not appropriate. See Anderson, 477 U.S. at 250-5 1.
IV. ANALYSIS
As an initial matter, the Court previously dismissed the City of Paterson per the parties’
stipulation.
D.E. 65.
pursuant to 42 U.S.C.
Accordingly, Plaintiffs’ Count Two, which asserts municipal liability
§ 1983 against the City, is dismissed as moot.
Consequently, only Counts One and Three remain. Count One is brought pursuant to 42
U.S.C.
at
§ 1981 and 1983, alleging violations of the fourth and Fourteenth Amendments. Compl.
¶J 18-24. Specifically, Count One alleges that Plaintiffs were “deprived of their right to equal
protection when they were selectively targeted by
[] Officer Ungarian.
.
.
because of the race and
ethnicity,” “were deprived of their right to be free from excessive use of force,” and “denied the
same privileges and immunities guaranteed
[] under the law based on their national origin and
ethnicity.” Id. at ¶ 20-22. Count Three brings an action pursuant to the New Jersey Civil Rights
Act, N.J.S.A. 10:6-2, alleging similar constitutional violations, including violations of equal
protection, the right to be free of unreasonable searches and seizures, the right to be free from
excessive force, and being “denied the same privileges, immunities and rights as white persons.”
Id. at ¶I 33-36.
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Plaintiffs indicate that they do not wish to proceed with any federal or state equal protection
claims against Baird. Opp. Br. at 18. Accordingly, Plaintiffs’ claims against Baird based on
violations of equal protection are dismissed with prejudice.
A. Count One
As noted, Count One brings three claims: equal protection, excessive force, and deprivation
of privileges and immunities. The Court examines each in turn.
i. Section 1983 Equal Protection Claim
42 U.S.C.
§ 1983 (“Section 1983”) provides, in relevant part:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of
Columbia, 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[.]
Section 1983 does not provide substantive rights; rather, Section 1983 provides a vehicle for
vindicating violations of other federal rights. Graham v. Connor, 490 U.S. 386, 393-94 (1989).
In order to state a claim under Section 1983, a plaintiff must demonstrate that “(1) a person
deprived him of a federal right; and (2) the person who deprived him of that right acted under color
of state or territorial law.” Bttrt v. CfG Health Svs., No. 1 5-2279, 2015 WL 1646849, at *2 (D.N.J.
Apr. 14, 2015).
The Fourteenth Amendment’s Equal Protection Clause provides that no State shall “deny
to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV
§
1. To establish an equal protection claim, plaintiff must show that the defendants’ actions: “(1)
had a discriminatory effect and (2) were motivated by a discriminatory purpose.” Bradley v.
Un ited States, 299 F.3d 197, 205 (3d Cir. 2002). “To prove discriminatory effect, plaintifffs] must
$
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show that [they are] a member of a protected class and that [they were] treated differently from
similarly situated individuals in an unprotected class.” Id. To prove discriminatory purpose.
plaintifffs] must show that “the decisionmaker
.
.
.
selected or reaffirmed a particular course of
action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable
group.” Lagitda v. City ofRahway, 2016 WL 1029789 at *8.9 (D. N.J. 2016) (citing Fers. Adm ‘r
ofMassachusetts v. feeney, 442 U.S. 256, 279 (1979)).
Plaintiffs are proceeding with their equal protection claims against Ungarian. As discussed
in note 1, supra, Ungarian failed to submit his own brief in support of his motion for summary
judgment. Instead, Ungarian submitted a notice of motion that indicated that he would rely on
Baird’s submissions. D.E. 68. Defendant Baird argues that Plaintiffs “have failed to provide a
scintilla of evidence of purposeful discrimination, or any examples of similarly situated individuals
in an unprotected class
—
or any similarly situated individuals, for that matter
—
who received
different treatment than they did.” Baird Br. at 12. Baird continues that “plaintiffs have made no
showing that the officers would have acted any differently with other similarly situated
individuals.” Id.
Plaintiffs do not submit any argument or analysis related to their equal protection claims.
Instead, Plaintiffs respond that they do “not intend to proceed with his federal and state equal
protection claims against Officer Baird, but only as to Officer Ungarian, who has not submitted
any motion for summaiy judgment.” Opp. Br. at 18 (emphasis added). In fact, Ungarian has filed
such motion, albeit by joining Baird’s motion. See D.E. 68.
The Court finds that Plaintiffs point to no evidence creating a genuine issue of material fact
to support their equal protection claim. Plaintiffs do not identify any evidence that they were
members of a protected class, that Defendants were motivated by a discriminatory purpose, or that
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Plaintiffs were treated differently from other similarly situated individuals in an unprotected class.
Accordingly, Defendant Ungarian is granted summary judgment on Plaintiffs’ equal protection
claims.
ii. Section 1983 Excessive Force Claim
Plaintiffs allege the Defendants engaged in excessive force in violation of the Fourth
Amendment, as applied to Defendants by way of the Fourteenth Amendment. “The Fourth
Amendment, which protects persons from ‘unreasonable searches and seizures’ prohibits false
arrest, false imprisonment, illegal search and seizure, and the use of excessive force.” Roman v.
City ofNewark, No. 16-1110, 2017 WL436251, at *3 (D.N.J. Jan. 31, 2017) (quotingU.S. Const.
amend. IV). Reasonableness under the Fourth Amendment “depends on all of the circumstances
surrounding the search or seizure and the nature of the search or seizure itself.” Skinner v. Ry.
Labor Executives’ Ass ‘n, 489 U.S. 602, 618 (1988) (quoting United States v. Montoya de
Hernandez, 473 U.S. 531, 537 (1985)). “Thtis, the permissibility of a particular practice is judged
by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of
legitimate governmental interests.” Id. at 619 (quotation marks and citation omitted).
“The use of excessive force is itself an unlawful ‘seizure’ under the Fourth Amendment.”
Couden v. Du[fJ’, 446 F. 3d 483, 496 (3d Cir. 2006). In assessing the validity of an excessive force
claim, a court must determine the objective reasonableness of the alleged conduct. Id. A court
should pay “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.”
Groman, 47 F.3d at 634 (quoting Graham, 490 U.S. at 396).
following:
10
Courts may also consider the
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[T]he possibility that the persons subject to the police action are
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.
Kopec v. Tate, 361 F.3d 772, 777 (3d Cir. 2004). When more than one officer is sued on a Fourth
Amendment excessive force claim, the district court must evaluate each officer’s liability
separately. See Kaucher e. Cty. ofBucks, 455 f.3d 418, n.7 (3d Cir. 2006) (“In order to prevail on
a [Section] 1983 claim against multiple defendants, a plaintiff must show that each individual
defendant violated his constitutional rights.” (emphasis added) (quoting Estate of Smith v.
Marasco, 430 F.3d 140, 151 (3d Cir. 2005))).
Defendants argue that they are entitled to qualified immunity. In Section 1983 suits,
“[q]ualified immunity shields government officials from personal 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.” Paszkowski v. Roxbiuy Twp. Police Dep ‘t, No.
13-7088, 2014 WL 346548, at *2 (D.N.J. Jan. 30, 2014) (emphasis added). A court must engage
in a two-part inquiry to determine whether qualified immunity applies: (1) whether the allegations,
taken in the light most favorable to the party asserting the injury, show that defendant’s conduct
violated a constitutional right and (2) whether the constitutional right at issue was clearly
established at the time of the alleged violation. Pearson v. Callahan, 555 U.S. 223, 232 (2009).
Courts have the discretion to consider either prong of the two-part analysis first. Id. at 236. The
Supreme Court has ruled that the “contours of the right must be sufficiently clear that a reasonable
official would understand that what he is doing violates that right.” Sattcier v. Katz, 533 U.S. 194,
202 (2001). “To make that determination, [a court should] engage in another reasonableness
inquiry: ‘whether it would be clear to a reasonable officer that his conduct was unlawful in the
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situation he confronted.” Santini v. Fuentes, 795 f.3d 410, 417—18 (3d Cir. 2015) (quoting
Saucier, 533 U.S. at 202. This analysis is “undertaken in light of the specific context of the case.”
Saucier, 533 U.S. at 201.
“The issue of qualified immunity is generally a question of law, although a genuine issue
of material fact will preclude summary judgment on qualified immunity.” Giles v. Kearney, 571
F.3d 318, 326 (3d Cir. 2009). Generally, a court must view the facts in the light most favorable to
the non-moving party. Id. at 326; see Scott v. Harris, 550 U.S. 372, 378 (2007) (finding that when
the parties’ versions of the facts differ substantially at summary judgment, “courts are required to
view the facts and draw reasonable inferences in the light most favorable to the party opposing the
summary judgment motion,” and therefore, in “qualified immunity cases, this usually means
adopting
.
.
.
the plaintiffs version of the facts.” (internal quotations, citations, and brackets
omitted)). Qualified immunity is “an immunity from suit rather than a mere defense to liability”
so it is “effectively lost if a case is erroneously permitted to go to trial.” Pearson, 555 U.S. at 231
(quoting iVlitchell v. forsyth, 472 U.S. 511, 526 (1985)). Accordingly, qtialified immunity “is
considered at the earliest possible stage of proceedings, apart from the analysis of the underlying
claim itself.” Giles, 571 f.3d at 325—26.
Regarding Plaintiffs’ excessive force claims, the parties provide fundamentally
incompatible and contradictory accounts of what happened on June 9, 2012. These differing
accounts preclude the Court from finding that Defendants are entitled to qualified immunity.
According to Plaintiffs’ testimony, there was no physical altercation between Plaintiffs before the
officers arrived.
D.E. 71, Ex. 2 (“Espinal Dep.”) at 102:14-21.
Once the officers arrived,
Rodriguez claims that the “big, stocky” officer punched Rodriguez in the face without any
provocation. D.E. 71, Ex. 1 (“Rodriguez Dep.”) at 59:6-8; 61:17-23. At one point in her deposition
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Espinal stated that she “believe[d this officer] was Ungarian, the bigger one.” Espinal Dep. at
29:11. Espinal later clarified that the shorter, “more muscular [officer], not the taller [officer]”
was the officer that struck Rodriguez. Id. at 38:25-39:07; 42:02-10. Ungarian indicated in his use
of force report that he used “[h]ands and/or fists” and “[k]icks and/or feet” in his interaction with
Rodriguez. D.E. 71, Ex. 5 (“Ungarian force Report”). Rodriguez recalls that he was unconscious,
and that when he woke up, one of the officers kicked him in the eye. Rodriguez Dep. at 62:1163:14. Rodriguez did not know which officer kicked him. Id. at 63:07-09. An officer then broke
a chair over Rodriguez’s back. Id. at 63:16-23. Espinal testified that after the shorter officer hit
Rodriguez, he then hit her. Espinal Dep. at 42:04-10. Espinal recalled that she fell to the floor
and started screaming and yelling, while the taller officer began to kick her in the back and head
while Espinal was facedown on the ground. Id.
On the other hand, Baird states that Rodriguez pulled Espinal by her neck and that when
Ungarian attempted to place Rodriguez under arrest, “[t]he suspect struck officer Ungarian about
the body and shoulder area with closed fists” and later in the side of the face with a closed fist.
D.E. 67, Ex. F (“Baird Report”).
Baird continues that while Ungarian attempted to secure
Rodriguez, Espinal jumped on Ungarian and scraped his neck. Id. Baird notes that when he tried
to arrest Espinal, Espinal bit his left arm. Id. Baird’s narrative report recounts the incident in a
similar manner. D.E. 67, Ex. G (“Baird Narrative”).4
The superintendent of the building, Moises Perales, appears to support the officers’
recollection as to the events Perales witnessed. Perales indicates that Rodriguez was resisting
Defendants state that “both plaintiffs were granted admission in that pretrial intervention
[program] as a result of the charges” and that “[i]nherent in the PTI plea is the acknowledgement
that defendants did not use unlawful force during the actual arrest.” Def Br. at 7. However,
Defendant provides no support for this statement and does not attach any documents related to
any charges or plea.
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arrest and that Espinal bit one of the officers. D.E. 67, Ex. D (“Perales Dep.”) at 20:04-21:19.
Perales also states that the officer who was arresting Espinal “didn’t slam her” and “didn’t do
nothing outrageous.” Id. at 22:03-10. Perales adds that both Rodriguez and Espinal were drunk.
Id. at 26:12-16.
In sum, Plaintiffs and Defendants offer vastly differing accounts of what happened on June
9, 2012. According to Plaintiffs, the Defendants engaged in excessive force without provocation.
According to Defendants, Plaintiffs resisted arrest and physically assaulted Defendants, requiring
the officers to use necessary and proportionate force. These factual disputes preclude summary
judgment on Plaintiffs’ excessive force claims. If Plaintiffs’ version of events is to be believed,
Ungarian struck both Rodriguez and Espinal without any provocation, and Baird subsequently
struck and kicked both Plaintiffs without justification. There are genuine issues of material fact
that preclude judgment for Defendants as to the excessive force claim. Thus, the Court denies
Defendants’ summary judgment on qualified immunity grounds. See Curtey
v. Kiem,
29$ f.3d
271, 278 (3d Cir. 2002) (holding that “the existence of disputed, historical facts material to the
objective reasonableness of an officer’s conduct will give rise to a jury issue”).
Accordingly, the Court denies Defendants’ motions for summary judgment on Count One’s
excessive force claims.
iii. Section 1981 Claim
Count One lastly alleges that “Plaintiffs were further deprived of their constitutional rights
as protected under 42 U.S.C.
§ 1981 in that they were denied the same privileges and immunities
guaranteed by under [sic] the law based on their national origin and ethnicity.” Compl. at
Section 1981 provides, in relevant part:
All persons within the jurisdiction of the United States shall have
the same right in every State and Territory to make and enforce
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¶ 22.
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contracts, to sue, be parties, give evidence, and to the full and equal
benefit of all laws and proceedings for the security of persons and
property as is enjoyed by white citizens, and shall be subject to like
punishment, pains, penalties, taxes, licenses and exactions of every
kind, and to no other.
(b) ‘Make and enforce contracts’ defined. For purposes of this
section, the term ‘make and enforce contracts’ includes the making,
performance, modification, and termination of contracts, and the
enjoyment of all benefits, privileges, terms, and conditions of the
contractual relationship.
(c) Protection against impairment. The rights protected by this
section are protected against impairment by nongovernmental
discrimination and impairment under color of State law.
42 U.S.C.
§ 1981.
Section 1981 is generally understood to “prohibit[] racial discrimination in the making and
enforcement of contracts and property transactions.” Brown v. Phihp Morris Inc., 250 F.3d 789,
796 (3d Cir. 2001). A Section 1981 plaintiff must prove the following elements: “(1) that plaintiff
is a member of a racial minority; (2) intent to discriminate on the basis of race by the defendant;
and (3) discrimination concerning one or more of the activities enumerated in the statute, which
includes the right to make and enforce contracts.” Id. at 797 (internal quotations and brackets
omitted). Even if Plaintiffs could bring a claim pursuant to Section 1981 based on excessive force,5
The parties disagree as to the scope of Section 1981. The United States Supreme Court has
suggested, as recently as 2006, that “ES 1981, originally § 1 of the Civil Rights Act of 1866..
has a specific function: It protects the equal right of ‘[a]ll persons within the jurisdiction of the
United States’ to ‘make and enforce contracts’ without respect to race.” Dominos Pizza, Inc. v.
McDonald, 546 U.S. 470, 474—75 (2006) (citation omitted); accord Adams v. Officer Eric
Selhorst, 449 F. App’x 198, 204 n.4 (3d Cir. 2011) (citing Brown v. Philip Morris, Inc., 250 F.3d
1981 prohibits race discrimination in making
789, 796 (3d Cir. 2001) for the proposition that
and enforcing contracts”). There is clearly no contract between Plaintiffs and Defendants here.
“
However, the Third Circuit and some courts in this District have suggested that the scope
of Section 1981 may extend beyond contract-related discrimination. See, e.g., Mahone v.
Waddle, 564 F.2d 1018, 1028 (3d Cir. 1977) (holding that Section 1981, fourteen years before
the addition of subsections (b) and (c), encompassed claims for false arrest and false
15
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as described above, Plaintiffs fail to raise any genuine issues of material fact that they were treated
differently based on their national origins, etlmicities, or races. Such discrimination is required in
claims brought pursuant to Section 1981. See Brown, 250 f.3d at 797. In fact, Plaintiffs fail to
substantively address this issue at all. See
Opp.
Br. at 18. Accordingly, Defendants are granted
summary judgment on Count One’s Section 1981 claims.
B. Count Three
Count Three6 makes similar allegations as in Count One, but is brought pursuant to the
New Jersey Civil Rights Act (“NJCRA”), N.J.S.A. 10:6-2. The NJCRA provides a private cause
of action to
[a]ny person who has been deprived of any substantive due process
or equal protection rights, privileges or immunities secured by the
Constitution or laws of the United States, or any substantive rights,
privileges or immunities secured by the Constitution or laws of this
State, or whose exercise or enjoyment of those substantive rights,
imprisonment); Brittingham v. fiore, No. 18-3453, 2018 WL 1919833, at *2 (D.N.J. Apr. 23,
2018) (citing Ma/zone for the proposition that “[t]he Court of Appeals for the Third Circuit has
found that a plaintiff may bring a claim pursuant to § 1981 for improperly race-motivated law
enforcement by a state government official”); Estate of Oliva v. New Jersey, 579 F. Supp. 2d
643, 666 (D.N.J. 2008) (finding that, based on Ivfahone, “a reasonable factfinder could conclude
that motorists were stopped without probable cause because of their race, searched, and in some
cases, arrested. [and therefore] the motorists would have a valid claim under § 1981 and
Mahone”) affd sttb nom. Estate of Otiva ex ret. IvlcHttgh v. New Jersey, 604 F.3d 788 (3d Cir.
2010); Tucker i’. New YorkFolice Dep’t, No. 08-2156, 2008 WL 4935883, at *7 (D.N.J. Nov. 18,
200$) (“An allegation that one has been subjected to false arrest and imprisomnent on the basis
of race states a claim under § 1981.”); Ramsey v. Dintino, No. 05-5492, 2007 WL 979845. at *7
(D.N.J. Mar. 30, 2007) (holding that, pursuant to Ma/tone, “Third Circuit precedent permits
plaintiffs to file suit under subsection (a) against police officers for violation of their
constitutional rights”).
.
.
Nevertheless, even if Section 1981 provides a vehicle for claims based on any of the
conduct alleged in this case, Plaintiffs fail to raise any genuine issues of material fact regarding
differential treatment based on Plaintiffs’ national origins, etlmicities, or races. Accordingly, the
Court declines to address the scope of Section 1981.
6
Count Three refers to a “Plaintiff’ in the singular rather than “Plaintiffs” in the plural. Compl.
at ¶IJ 33-35. No party addresses this issue in their briefing, and all parties appear to assume that
Count 3 is meant to apply to both Rodriguez and Espinal.
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privileges or immunities has been interfered with or attempted to be
interfered with, by threats, intimidation or coercion by a person
acting under color of law, may bring a civil action for damages and
for injunctive or other appropriate relief.
N.J.S.A. 10:6-2. The “NJCRA was modeled afler
§ 1983, [and so] ‘courts in New Jersey have
consistently looked at claims under the NJCRA through the lens of § 1983’ and ‘have repeatedly
construed the NJCRA in terns nearly identical to its federal counterpart.” Velez v. Fuentes, No.
15-6939, 2016 WL 4107689, at *5 (D.N.J. July 29, 2016) (quoting Samoles v. Lacey Twp., No.
12—3066, 2014 WL2602251, at *15 (D.N.J. June11, 2014) (internal quotation marks omitted)).
Given that Plaintiffs have shown genuine issues of material fact as to their Section 1983
excessive force claims, Count Three’s state law NJCRA claims based on excessive force remain.
However, as described above, Plaintiffs fail to show any genuine issues of material fact regarding
their claims based on equal protection or Section 1981.
Therefore, Defendants are granted
summary judgment on Count Three’s state law NJCRA claims based on equal protection and New
Jersey’s Section 1981 analog.
Remaining is Count Three’s allegation that “Plaintiff was deprived of his right to be free
of unreasonable search and seizure,” pursuant to the NJCRA. Compl. at ¶ 34. Plaintiffs later state
that “these rights are secured under the Fourth and Fourteenth Amendments to the United States
Constitution.” Id. at
¶ 36. Defendants fail to address this claim in their motions for summary
judgment, and accordingly, Count Three’s NJCRA claim based on unreasonable search and seizure
remains.
In sum, Defendants are granted summary judgment on Count Three’s NJCRA claims
except for claims based on excessive force and unreasonable search and seizure.
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V. CONCLUSION
F or the reasons set forth above, the motions for summary judgment made by Defendants
Baird (D.E. 67) and Ungarian (D.E. 68) are GRANTED in part and DENIED in part. Defendants’
motions are GRANTED as to Plaintiffs’ federal and state law claims based on equal protection
and Section 1981. Defendants’ motions are DENIED as to Plaintiffs’ federal and state law claims
based on excessive force and illegal search and seizure pursuant to Section 1983 and the NJCRA.
Count Two is dismissed as moot. Remaining are Count One’s excessive force claims brought
pursuant to Section 1983 and Count Three’s excessive force and illegal search and seizure claims
brought pursuant to the NJCRA. An appropriate Order accompanies this Opinion.
Date: June 25, 2018
/
John Michael VazquejU.)D.J.
18
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