SAMPSON et al v. BERGEN COUNTY PROSECUTOR'S OFFICE et al

Filing 122

OPINION. Signed by Judge Esther Salas on 7/7/2023. (jr)

Not for Publication
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

MICHAEL SAMPSON, et al.,
Plaintiffs,
Civil Action No.: 14-5983 (ES) (JSA)
v.
BERGEN COUNTY PROSECUTOR’S
OFFICE, et al.,

OPINION

Defendants.

SALAS, DISTRICT JUDGE
This action arises from an incident during which Defendant Joseph Hornyak, an
undersheriff with the Bergen County Sheriff’s Office, allegedly spit on Plaintiff Michael Sampson
during an arrest. In connection with this incident, Plaintiff has brought claims for excessive force
under (i) 42 U.S.C. § 1983 and (ii) the New Jersey Civil Rights Act (“NJCRA”), N.J.S.A. § 10:61, et seq. (D.E. No. 18 (“Second Amended Complaint” or “SAC”) ¶¶ 33–34 & 41–42).1 Before
the Court is Defendant Joseph Hornyak’s motion for summary judgment pursuant to Federal Rule
of Civil Procedure 56. (D.E. No. 95). Having considered the parties’ submissions, the Court
decides this matter without oral argument. See Fed. R. Civ. P. 78(b). For the reasons set forth
below, the Court GRANTS summary judgment in Defendant’s favor.

Though Sampson’s SAC brought numerous other claims against numerous other Defendants, the only claims
that survived the motion to dismiss Sampson’s SAC were Plaintiff Sampson’s excessive force claims under 42 U.S.C.
§ 1983 and the NJCRA regarding Defendant Hornyak’s alleged spitting. (See D.E. No. 28 (“Mar. 16, 2017 Op.”)).
1

I.

BACKGROUND2
A.

Factual History

According to Plaintiff Sampson, on July 8, 2012, at approximately 1:30 p.m., Defendant
Hornyak (an undersheriff with the Bergen County Sheriff’s Office); Robert Anzilotti, Brian
Griefer, and James McMorrow (detectives with the Bergen County Prosecutor’s Office); and Sean
MacKay (an officer employed by the Borough of Cliffside Park) conducted a traffic stop of
Plaintiff Sampson’s wife, Ms. Jacqueline Pierro, and Sampson and Pierro’s child in Lodi, New
Jersey. (SAC ¶¶ 3–6 & 12). The officers arrested Pierro and requested, under the threat of force,
that she remove her child from the vehicle and place the child in the custody of an acquaintance.
(Id. ¶ 12).
Thereafter, officers took Pierro to a “law enforcement building,” where Defendant Hornyak
and other officers interrogated her. (Id. ¶ 13). The officers allegedly threatened to take unlawful
custody of the child if Pierro did not waive her right to remain silent and her right to an attorney.
(Id. ¶ 14). Pierro subsequently waived her rights and answered the officers’ questions. (Id. ¶ 15).
The officers then used Pierro’s statements to obtain arrest warrants for her and Plaintiff Sampson.
(Id.).
That evening, the Bergen County S.W.A.T., which included Defendant Hornyak,
unlawfully entered a Bergen County residence in which Plaintiff Sampson was residing. (Id. ¶ 16;
Sampson Dep. at 16:11–17:8). The officers carried assault rifles and wore armor while they
arrested him. (SAC ¶ 16; Sampson Dep. at 16:11–17:19). Plaintiff Sampson contends that, during
his arrest, officers assaulted him while he was lying on his stomach, and Defendant Hornyak
The Court gathers the following facts primarily from Plaintiff’s Second Amended Complaint (SAC),
Defendant’s statement of undisputed material facts (D.E. No. 95-1 (“Def. SUMF”)), Plaintiff’s responses thereto (D.E.
No. 100-1 (“Pl. Resp. SUMF”)), and Plaintiff’s Deposition. (D.E. No. 95-3 (“Sampson Dep.”)).
2

2

allegedly spit on Plaintiff. (Id. ¶ 17). The officers seized Plaintiff’s property, including a cell
phone and cash. (Id.; Sampson Dep. at 17:9–19). In addition, the officers, in concert with
Defendant Leticia Verpent, an employee of the New Jersey Division of Child Protection and
Permanency, allegedly seized Plaintiff Sampson’s child, who was at Sampson’s residence at the
time. (SAC ¶¶ 7 & 18).
Sampson testified that during his transportation to the Bergen County Prosecutor’s Office,
Defendant Hornyak, who was sitting next to him in the back seat of the car, made a number of
threatening remarks to get him to “talk.” (Sampson Dep. at 18:12–20:16; see also SAC ¶¶ 23–
26). Sampson further testified that during the course of his transport, Defendant Hornyak once
again spit on him. (Id. at 20:7–18; see also SAC ¶¶ 19 & 23). Sampson described the incident as
follows:
A: So I’m hot at this point. This guy is spitting. He’s saying all this
craziness . . . [W]e’re still in the car, he’s just acting completely
deranged, talking about: ‘If you don’t talk, we’re going to give you
three million dollar bail.’ Talking this nonsense, you know, saying
ridiculousness about my wife and my kids. So at this point, I’m just
trying to get his saliva off me. I’m mad.
(Sampson Dep. at 20:10–18). Sampson also alleged that Defendant Hornyak and another officer
made several racist remarks and comments to Sampson, who provides that he is of “Dominican
and Hispanic descent.” (SAC ¶ 21). According to Sampson, Defendant Hornyak and another
officer emphatically stated that they agreed to violate Plaintiff Sampson’s constitutional rights
because he was not white and was a minority in majority-white Bergen County. (Id. ¶ 21). The
officers then seized Plaintiff’s DNA through the use of a buccal swab without a warrant or consent.
(Id. ¶ 24; Sampson Dep. at 22:9–17). According to Sampson, Defendant Hornyak explicitly stated
that he would cause a judge to issue a $3,000,000 bail against Plaintiff if Plaintiff did not waive
his constitutional rights. (SAC ¶ 25; Sampson Dep. at 20:7–16).
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B.

Procedural History

On or around September 24, 2014, Plaintiff Sampson initiated this action pro se by filing
a civil rights complaint asserting various claims, purportedly on behalf of himself, his wife, and
their children, arising from the traffic stop and his arrest. (See D.E. No. 1). Initially, the Court
administratively terminated the case because he had failed to pay the filing fee or apply to proceed
in forma pauperis. (D.E. No. 2). Thereafter, Plaintiff Sampson submitted an amended complaint
in November 2014 against Defendants Anzilotti, Griefer, Hornyak, McMorrow, MacKay, Verpent,
the Bergen County Prosecutor’s Office, the New Jersey Division of Child Protection and
Permanency, Cliffside Park, and Lodi Borough Police Department (D.E. No. 4), and the Court
reopened the matter in June 2015 after Plaintiff paid the filing fee.
On August 21, 2015, Defendant MacKay answered the complaint and asserted crossclaims
against the other defendants. (D.E. No. 11). On August 28, 2015, Defendants Anzilotti, Griefer,
Hornyak, McMorrow, Verpent, the Bergen County Prosecutor’s Office, and the New Jersey
Division of Child Protection and Permanency moved to dismiss the amended complaint and
Defendant MacKay’s crossclaims. (D.E. No. 12).
On September 11, 2015, Plaintiff filed his Second Amended Complaint, which is the
operative complaint in this matter. (See SAC; D.E. No. 25). Accordingly, the motion to dismiss
filed by Defendants Anzilotti, Griefer, Hornyak, McMorrow, Verpent, the Bergen County
Prosecutor’s Office, and the New Jersey Division of Child Protection and Permanency was
terminated as moot. (Id.). The Second Amended Complaint asserts claims for false arrest on
behalf of Plaintiff Sampson (Count I); unlawful seizure of property on behalf of Plaintiff Sampson
and Ms. Pierro (Count II); excessive force pursuant to 42 U.S.C. § 1983 in violation of the Fourth
Amendment on behalf of Plaintiff Sampson (Count III); conspiracy pursuant to 42 U.S.C. § 1985
4

on behalf of Plaintiff Sampson and Ms. Pierro (Count IV); violations of the right to familial
integrity on behalf of Plaintiff Sampson and Ms. Pierro (Count V); violations of the right to due
process on behalf of Ms. Pierro (Count VI); and violations of the NJCRA, N.J.S.A. §§ 10:6-1 to
10:6-2 on behalf of Plaintiff Sampson and Ms. Pierro (Count VII). The Second Amended
Complaint names Hornyak, Anzilotti, Griefer, McMorrow, MacKay, Verpent, the Borough of
Cliffside Park, and the Borough of Lodi, as defendants.3 (See SAC).
On October 6, 2015, Defendants Anzilotti, McMorrow, Hornyak, Griefer, and Verpent
(collectively, the “County and State Defendants”) once again moved to dismiss. (D.E. No. 22).
On March 16, 2017, the Court granted-in-part and denied-in-part the County and State
Defendants’ motion. (See D.E. No. 28 (“Mar. 16, 2017 Op.”)). The Court granted the motion as
to all claims except Plaintiff’s Fourth Amendment excessive force claim under 42 U.S.C. § 1983
and corresponding NJCRA claim in connection with Defendant Hornyak’s alleged spitting on
Plaintiff. (See id.). Thus, with respect to Defendant,4 the only claims that survived were those for
excessive force under 42 U.S.C. § 1983 (Count III) and the NJCRA (Count VII) regarding
Defendant Hornyak’s alleged spitting. (See id.; see also Pl. Resp. SUMF ¶ 7).

As the Second Amended Complaint does not assert claims on behalf of Sampson’s children, M.A.S., Jr. and
A.P.S.—individuals that were named in the Amended Complaint—those individuals are no longer plaintiffs in this
matter. Further, as the Second Amended Complaint does not assert claims against the Bergen County Prosecutor’s
Office or the New Jersey Division of Child Protection and Permanency—entities that were named in the Amended
Complaint—those entities are no longer defendants in this matter. See Fed. R. Civ. P. 15(a); West Run Student
Housing Assocs., LLC v. Huntington Nat’l Bank, 712 F.3d 165, 171 (3d Cir. 2013) (“[T]he amended complaint
‘supersedes the original and renders it of no legal effect, unless the amended complaint specifically refers to or adopts
the earlier pleading.”).
3

In a footnote, the Court also indicated that the County and State Defendants’ “motion to dismiss all crossclaims by Defendant MacKay will be dismissed as moot because the Court has determined that all claims involving
him fail to allege sufficient factual matter . . . and have been dismissed.” (See Mar. 16, 2017 Op. at 11 n.5) (emphasis
added). The Court reiterates its prior decision and dismisses those claims without prejudice in the order accompanying
this Opinion.
4

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On September 14, 2017, Plaintiff Sampson moved for leave to file a third amended
complaint. (D.E. No. 41). The Court ultimately denied Plaintiff’s motion because he had not
submitted a proposed amended pleading along with his motion. (D.E. No. 45).
On April 30, 2018, Plaintiff refiled a version of his Second Amended Complaint along with
a proposed third amended complaint. (D.E. No. 46). Mindful of Plaintiff’s pro se status, the Court
construed Plaintiff’s submission as another motion to amend. (D.E. No. 49). However, the Court
denied Plaintiff’s motion to amend without prejudice because the proposed third amended
complaint did not cure the deficiencies noted in the Court’s March 16, 2017 Opinion. (Id.).
On April 30, 2019, Plaintiff filed what the Court construed as a motion for leave to file a
fourth amended complaint. (D.E. No. 54). Before the Court ruled on Plaintiff’s motion for leave
to file a fourth amended complaint, however, Plaintiff filed what the Court construed as a motion
to compel discovery and for leave to file a fifth amended complaint. (D.E. No. 61). On November
26, 2019, the Court denied Plaintiff’s motion for leave to file a fourth amended complaint as moot.
(D.E. No. 63). On January 21, 2020, the Court denied Plaintiff’s motion for leave to file a fifth
amended complaint as futile because it once again did not cure the deficiencies noted in the Court’s
March 16, 2017 Opinion. (D.E. No. 67). This time, however, the Court appointed Plaintiff pro
bono counsel, and the matter proceeded to discovery. (See id.).
Following discovery and an unfruitful settlement conference, Defendant Hornyak filed the
instant motion for summary judgment. (See D.E. No. 95-2 (“Mov. Br.”)). In the motion,
Defendant Hornyak contends that the relevant statute of limitations bars Plaintiff Sampson’s
excessive force claim and that, in any event, Plaintiff Sampson has failed to set forth sufficient
evidence to show that Defendant Hornyak was in the vehicle that transported him to the Bergen
County Prosecutor’s Office or that it was Defendant Hornyak who had spit on him during the trip.
6

(See id.). Plaintiff Michael Sampson filed an opposition, (D.E. No. 100 (“Opp. Br.”)), and
Defendant Hornyak filed a reply. (D.E. No. 101 (“Reply”)).
On June 9, 2022, in response to the parties’ briefing regarding the statute of limitations
defense, the Court directed the parties to file supplemental letters addressing whether the so-called
prisoner mailbox rule applies to save Plaintiff’s claim. (D.E. No. 102). Defendant and Plaintiff
submitted supplemental briefing on this issue on July 15, 2022. (D.E. Nos. 106–07). Defendant
also submitted a reply to Plaintiff’s supplemental briefing on July 22, 2022. (D.E. No. 108).
On October 21, 2022, the Court instructed the parties to submit supplemental briefing on
two issues that it raised sua sponte. (D.E. No. 112). Specifically, the Court instructed the parties
to provide supplemental briefing on whether Defendant Hornyak’s alleged spitting (i) constituted
more than de minimus force and (ii) was volitional. (See id.). On November 10, 2022, Defendant
Hornyak submitted supplemental briefing in accordance with the Court’s October 21, 2022 Order.
(See D.E. No. 113 (“Def. Suppl. Br.”)). Plaintiff and his counsel, however, failed to submit a
timely response. On February 21, 2023, Plaintiff filed an untimely pro se letter in response to the
Court’s October 21, 2022 Order. (See D.E. No. 115 (“Pl. Suppl. Br.”)). On March 3, 2023,
Defendant Hornyak responded to the letter, asking the Court to strike it as untimely and improperly
filed since Plaintiff Sampson’s counsel did not sign it. (D.E. No. 116).
Finally, on April 14, 2023, the Court issued a notice of call for dismissal as to the Borough
of Lodi and Borough of Cliffside Park for Plaintiff’s failure to effect service of summons and the
complaint pursuant to Fed. R. Civ. P. 4(m). (D.E. No. 117). After Plaintiff failed to show cause

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as to why the Court should not dismiss these defendants, the Court dismissed them without
prejudice on April 28, 2023. (D.E. No. 118).5
II.

STANDARDS OF REVIEW
A court should grant summary judgment if the evidence in the record, viewed with all

reasonable inferences in favor of the nonmoving party, demonstrates that there is no genuine issue
of material fact, and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56;
Brooks v. Kyler, 204 F.3d 102, 105 n.5 (3d Cir. 2000); Celotex Corp. v. Catrett, 477 U.S. 317,
322–23 (1986); Todaro v. Bowman, 872 F.2d 43, 46 (3d Cir. 1989). A dispute 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). The mere existence of an alleged disputed fact
is not enough. See id. at 247–248. A fact is “material” if under the governing substantive law, a
dispute about the fact might affect the outcome of the lawsuit. Id. at 248. Factual disputes that
are irrelevant or unnecessary will not preclude summary judgment. See id.
At summary judgment, the Court’s function is not to weigh the evidence and determine the
truth of the matter, but rather to determine whether there is a genuine issue for trial. Id. at 249.
The movant bears the burden of establishing that no genuine issue of material fact exists. Celotex
Corp., 477 U.S. at 323. The burden then shifts to the nonmoving party to present evidence that a
genuine issue of material fact compels a trial. Id. at 324. To satisfy this burden, the non-moving
party “may not rest upon the mere allegations or denials of his pleading,” Fed. R. Civ. P. 56(e),
and he “must do more than simply show that there is some metaphysical doubt as to the material

5

Subsequently, Plaintiff submitted a pro se letter to the Court regarding the notice of call for dismissal. (D.E.
No. 119). Although the letter is unclear, it appears that Plaintiff claims that he had, in fact, effectuated service on the
Borough of Lodi and the Borough of Cliffside Park in 2014 and that the entities entered their appearance. However,
the docket bellies Plaintiff’s contentions, and Plaintiff fails to point to any evidence that he served these defendants
or that they entered an appearance.

8

facts.” Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992), cert.
denied, 507 U.S. 912 (1993) (internal quotation and citation omitted). The non-moving party must
go beyond the pleadings and point to specific factual evidence showing there is a genuine material
issue for trial. Celotex Corp., 477 U.S. at 323–24. He must “point to concrete evidence in the
record that supports each and every essential element of his case.” Orsatti v. N.J. State Police, 71
F. 3d 480, 484 (3d Cir. 1995). Speculation and conjecture will not suffice. See Jackson v.
Danberg, 594 F.3d 210, 227 (3d. Cir. 2010).
III.

DISCUSSION
The Court begins by addressing one of the issues that it raised sua sponte in its October 21,

2022 Order regarding whether Defendant Hornyak’s alleged spitting was volitional.6 (D.E. No.
112). As the Court concludes that the issue warrants summary judgment in favor of Defendant
Hornyak, the Court does not reach the other issues Defendant Hornyak raises in his motion for
summary judgment.
As noted above, the only claims against Defendant Hornyak that survived the Court’s
March 16, 2017 Opinion and Order are Plaintiff’s claims for excessive force under 42 U.S.C. §
1983 (Count III) and the NJCRA (Count VII) as they relate to Defendant Hornyak’s alleged acts
of spitting. For the reasons below, the Court concludes that the matter warrants summary judgment
in favor of Defendant Hornyak on Plaintiff’s claims for excessive force under 42 U.S.C. § 1983
(Count III) because Plaintiff Sampson fails to present evidence from which a reasonable jury could
find that the acts of spitting occurred, or were volitional and performed for the purpose of acquiring

6

Rule 56 of the Federal Rules of Civil Procedure permits a court to grant summary judgment on grounds not
raised by a party after giving notice and a reasonable time to respond. Fed. R. Civ. P. 56(f)(2); Celotex Corp., 477
U.S. at 326.

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physical control.

The Court declines to exercise supplemental jurisdiction with respect to

Plaintiff’s remaining claim under the NJCRA (Count VII).
Generally, “a cause of action exists under § 1983 when a law enforcement officer uses
force so excessive that it violates” the Fourth Amendment’s protection from unreasonable search
and seizure. Groman v. Township of Manalapan, 47 F.3d 628, 633-34 (3d Cir. 1995). When a
police officer uses force to effectuate an arrest, that force must be reasonable. Id. at 634 (citing
Graham v. Connor, 490 U.S. 386, 396 (1989)). The reasonableness of the force used is measured
by “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.” Id.
(quoting Graham, 490 U.S. at 396).
However, “[v]iolation of the Fourth Amendment requires an intentional acquisition of
physical control.” Brower v. County of Inyo, 489 U.S. 593, 596 (1989). The acquiring of physical
control need not occur in the manner originally intended by the police, but it must result from
volitional police activity performed for the purpose of acquiring physical control over something
or someone. See id. (“A seizure occurs even when an unintended person or thing is the object of
the detention or taking . . . but the detention or taking itself must be willful. This is implicit in the
word ‘seizure,’ which can hardly be applied to an unknowing act.”); Brice v. City of York, 528 F.
Supp. 2d 504, 514 (M.D. Pa. 2007) (“A plaintiff cannot maintain an excessive force [claim] against
a defendant based upon the defendant’s non-volitional acts.”); Troublefield v. City of Harrisburg,
789 F. Supp. 160, 166 (M.D. Pa. 1992) (“[S]ome nature of volitional act on the part of the state
actor must cause the harm to plaintiff for a [F]ourth [A]mendment excessive force claim to
sound.”), aff’d sub nom. Troublefield v. City of Harrisburg, 980 F.2d 724 (3d Cir. 1992).
10

Thus, before proceeding to analyze the reasonableness of police conduct under the Fourth
Amendment, a court must first determine as a threshold inquiry whether the challenged police
conduct constituted a volitional act performed for the purpose of acquiring physical control over
someone. Brice, 528 F. Supp. 2d at 513. Moreover, “[t]he requirement of volitional action is no
less integral to the excessive force claim of a plaintiff already in police custody, and such a plaintiff
must produce evidence of a volitional act sufficient to bring about a ‘second seizure’ of the
plaintiff.” Id. at 510.
For example, in Brice, the plaintiff filed a civil rights complaint asserting a Fourth
Amendment excessive force claim against a city and several of its police officers after one officer’s
gun brushed up beside plaintiff’s head and discharged as the officer assisted others in subduing
plaintiff without holstering his weapon first. See id. at 507. The court in Brice granted the officer’s
motion for summary judgment because the plaintiff failed to present any evidence that the officer
had volitionally fired the gun. See id. at 513–514.
Here, Plaintiff Sampson claims that Defendant Hornyak spit on him on two occasions: after
officers entered his residence and while en route to the Bergen County Prosecutor’s Office. (See
SAC ¶¶ 17 & 23). As to the former incident, Plaintiff simply fails to come forward with any
evidence demonstrating that Defendant Hornyak spit on him. For example, Plaintiff did not testify
during his deposition regarding any spitting that occurred at his residence (see Sampson Dep. at
16:15–17:25), and Plaintiff points to no other record evidence to demonstrate that Defendant
Hornyak spit on him at his residence. (See Opp. Br. at 3).7

7

In fact, during his deposition, Sampson only testified as to the alleged spitting by Defendant Hornyak that
occurred while Plaintiff was being transported to the Bergen County Prosecutor’s Office. (Sampson Dep. at 18:12–
21:25). And when asked whether he had any other interaction with Defendant Hornyak other than what he went over
in his deposition, Sampson testified: “No, not that I’m aware of.” (Id. at 34:6–10).

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With respect to Defendant Hornyak’s alleged spitting during the transportation of Plaintiff
to the Bergen County Prosecutor’s Office, the only evidence presented is Plaintiff’s deposition
testimony regarding a heated conversation between Defendant Hornyak and Plaintiff in the back
seat of the police vehicle. (See id.). When asked “[w]ho had spit on you?[,]” Plaintiff stated,
“[t]hat would be Hornyak.” (See Sampson Dep. at 30:16–18). However, Plaintiff did not provide
further details about the incident such that a reasonable jury could find that the spitting was
volitional as opposed to an incidental effect of a heated discussion in a confined space. (See id. at
30:19–31:14).8 Plaintiff further testified that another officer sitting in the front passenger seat
“must have felt a couple of droplets himself,” (see id. at 32:3–13), suggesting that the alleged
spitting was incidental and not directed at a particular person.9 Moreover, there is simply no record
evidence from which a reasonable jury could conclude that Defendant Hornyak spit on Plaintiff
Sampson for the purpose of acquiring physical control, even if the spitting was sufficient as a
matter of law to bring about a “second seizure” of him.10 See Brice, 528 F. Supp. 2d at 510, 513.

8

As described above, Sampson described the incident as follows:
A: So I’m hot at this point. This guy is spitting. He’s saying all this craziness . . .
[W]e’re still in the car, he’s just acting completely deranged, talking about: ‘If
you don’t talk, we’re going to give you three million dollar bail.’ Talking this
nonsense, you know, saying ridiculousness about my wife and my kids. So at this
point, I’m just trying to get his saliva off me. I’m mad.
(Sampson Dep. at 20:7–18).
To be sure, when asked “[W]hat pain and suffering are you alleging because of [Defendant Hornyak’s
spitting]?,” Plaintiff responded: “You ever been tied up? Had an itch you couldn’t scratch, wanting with all your will
to reach for something you could not reach. Imagine all that being deliberate? Tying you up, spitting on you and you
want to do anything and everything to just wipe it off your face.” (Sampson Dep. at 41:5-13) (emphasis added).
However, Plaintiff’s vague assertion in his testimony that Defendant Hornyak deliberately spit on him, without
providing further details or specifics about the incident, is conclusory and, therefore, insufficient to survive summary
judgment. See Paladino v. Newsome, 885 F.3d 203, 208 (3d Cir. 2018) (“[C]onclusory, self-serving affidavits [or
witness’s testimony] are insufficient to withstand a motion for summary judgment.”).
9

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On this point, the Court notes that, even if Plaintiff Sampson met his burden of demonstrating that the alleged
spitting occurred and constituted a volitional act performed for the purpose of acquiring physical control, the matter
nevertheless would warrant dismissal because the alleged acts of spitting, although regrettable if true, are de minimus.
“Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers, violates
the Fourth Amendment.” Graham, 490 U.S. at 396. “The force used must be more than a de minimus amount of force
for a constitutional claim to arise.” Smith v. Cpl. Louriero, No. 16-741, 2017 WL 2952819, at *5 (M.D. Pa. June 9,

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Accordingly, the Court finds that Plaintiff Sampson fails to present evidence demonstrating
that Defendant Hornyak’s alleged acts of spitting were volitional and performed for the purpose
of acquiring physical control over someone. As these constitute essential elements of his Fourth
Amendment excessive force claims for which he bears the burden of proof at trial, see id. at 510,
the Court concludes that the matter warrants summary judgment in favor of Defendant Hornyak
on his excessive force claim under 42 U.S.C. § 1983. See Celotex Corp., 477 U.S. at 322–23.
Upon dismissal of a plaintiff’s federal claims, a district court may decline to exercise
supplemental jurisdiction over any remaining state law claims. 28 U.S.C. § 1367(c)(3); see also
Kramer v. Kubicka, 222 F. App’x 184, 186 (3d Cir. 2007). Because the Court dismisses Plaintiff’s
federal claim against Defendant under 42 U.S.C. § 1983, the Court declines to exercise
supplemental jurisdiction over Plaintiff’s remaining claim against Defendant under the NJCRA.
IV.

CONCLUSION
For the reasons stated above, the Court GRANTS summary judgment in Defendant’s favor

on Plaintiff Sampson’s excessive force claims brought pursuant to 42 U.S.C. § 1983 (Count III)
as it relates to Defendant Hornyak’s spitting on Plaintiff. An appropriate Order follows.11

2017) report and recommendation adopted sub nom. Smith v. Louriero, No. 16-0741, 2017 WL 2926020 (M.D. Pa.
July 7, 2017) (citing Nolin v. Isbell, 207 F.3d 1253, 1257 (11th Cir. 2000) (“[T]he application of de minimus force,
without more, will not support a claim for excessive force in violation of the Fourth Amendment.”)).
Here, the allegations of spitting are de minimus and do not constitute excessive force under the Fourth
Amendment. See Damiani v. Duffy, 277 F. Supp. 3d 692, 698 n.4 (D. Del. 2017), aff’d, 754 F. Appx. 142 (3d Cir.
2018) (noting that allegations that an officer “wound up and spat at Plaintiff” were de minimus and did not violate
Plaintiff’s constitutional rights, including under the Fourth Amendment).
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Following the instant motion for summary judgment, and notwithstanding that he was then represented by
counsel, Plaintiff Sampson submitted a pro se motion for leave “to amend and consolidate all complaints” along with
a proposed sixth amended complaint. (See D.E. No. 96). Plaintiff Sampson then filed another series of letters with
the Court on June 8, 2023. (D.E. No. 120). However, as these submissions were not personally signed by the attorney

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Dated: July 7, 2023

s/ Esther Salas
Esther Salas, U.S.D.J.

of record representing Plaintiff Sampson the Court directs the Clerk of the Court to strike them as improperly filed.
See Fed. R. Civ. P. 11(a).

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