MURPHY v. N.J. STATE POLICE et al
OPINION. Signed by Judge William J. Martini on 1/23/17. (gh, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civ. No. 14-7338
ADAM E. MURPHY,
NEW JERSEY STATE POLICE, et al.,
WILLIAM J. MARTINI, U.S.D.J.:
Plaintiff Adam E. Murphy (“Plaintiff” or “Mr. Murphy”) brings this Section 1983
action pro se against Trooper William Cisko of the New Jersey State Police (“Defendant”
or “Trooper Cisko”). The Complaint alleges that Trooper Cisko violated Plaintiff’s Fourth
Amendment rights by using excessive force during an arrest made inside the home of
Plaintiff’s friend in Montague, New Jersey, in August 2014. Defendant now moves for
summary judgment on the basis of qualified immunity. For the following reasons,
Defendant’s motion for summary judgment is DENIED. The Court requests that Plaintiff
be appointed pro bono counsel in preparation for trial.
Mr. Murphy is presently incarcerated in Pennsylvania for felony escape and reckless
endangerment. In July 2014, while residing at a community correctional facility in
Wernersville, P.A., Mr. Murphy pulled a fire alarm, ran out of the facility and escaped by
car with his then girlfriend. Deposition of Adam E. Murphy (“Murphy Dep.”), 25:14.1 Mr.
Murphy spent the next month in his hometown of Port Jervis, NY. Id. at 41:21.
One month later, on August 15, 2014, Mr. Murphy spent the night at the home of
friend Tasha Smith in Montague, New Jersey, along with childhood friends Joseph Mann
and Alyssa Daly. Early the next morning, Mr. Murphy used Mann’s purple Dodge Neon to
drive Daly to a local Shop-Rite. In the process, Mr. Murphy took a wrong turn and wound
During his deposition, Mr. Murphy described the Wernersville facility as a “a parole violator
center, kind of like a halfway house.” Murphy Dep. 23:19-23. He was initially incarcerated for
misdemeanor theft in 2010. Id. at 33:9.
up at a dead end, where he received directions from a resident who was outside walking
his dog. After Mr. Murphy drove away, that individual apparently alerted the police about
a suspicious vehicle in the area.2
Mr. Murphy returned to Smith’s residence and parked Mann’s vehicle in the
driveway. Murphy Dep. 66:4. Several minutes later, a number of police officers arrived at
the home in succession. One officer, a New Jersey State Trooper, “approached the house
and used his flashlight to push some blinds on an open window.” Defs.’ Rule 56.1, ¶ 17.
Seeing Mann and Murphy inside, the Trooper stated, “party’s over gentlemen, come out
with your hands up.” Id. The legal basis for the officer’s entrance onto the property is
unclear based on the current record, suffice it to say that Mann and Murphy declined to
exit the home. Not until Mr. Murphy was later apprehended did officers discover his status
as an escapee. Murphy Dep. 79:3-7.
Officers soon entered the home and discovered Murphy hiding in a crawlspace in
the basement. Murphy Dep. 105:23-106:11. In Defense counsel’s own words, “a State
Trooper grabbed [Murphy’s] foot and immediately ripped him out of the crawlspace,”
prompting Murphy to “flail his arms as he fell to the floor to prevent his head from
smashing off of the [concrete] floor.” Defs.’ Rule 56.1 ¶¶ 27-28. At least three Troopers
“landed on Murphy when he hit the floor,” and then handcuffed him. Id. at ¶ 29. After
arresting Murphy, Trooper Cisko allegedly struck him the face, provoking an exchange of
obscenities. Murphy Dep. 120:10-121:2. Murphy alleges that Cisko then struck him several
additional times in the face and ribs. Id.
Murphy was later taken to the hospital and diagnosed with a facial fracture, a “blow
out” orbital floor fracture,3 a concussion and contusions on his foot. Lynch Decl., Ex. C.
After two years and roughly seventeen visits to ophthalmologists, Murphy continues to
experience blurred vision and believes he may have sustained permanent nerve damage.
Murphy Dep. 186:1-187:6. Charges filed against Murphy subsequent to the arrest were
later downgraded or dismissed. ECF No. 32.
On November 20, 2014, Mr. Murphy filed a 42 U.S.C. § 1983 claim against Trooper
Cisko and other defendants for using excessive force in violation of the Fourth
Amendment. By Order dated January 14, 2015, the Court dismissed the other defendants
but determined that the Complaint adequately stated a § 1983 claim against Cisko. ECF.
No. 5. On February 10, 2015, the Court denied Murphy’s request for pro bono counsel,
without prejudice. ECF No. 11. A similar request for counsel was denied on April 8, 2016.
Evidently there had been a number of burglaries in the neighborhood around this time. Murphy
A “blow out” is when the force of impact collapses the inside wall of the orbital bone, such that
“the tissues around the eye . . . may become trapped within the fracture as the floor of the orbit
‘blows out’ into the sinus below.” Lynch Decl. Ex. C.
Discovery ended on October 12, 2016. ECF No. 37. Defendant Cisko now moves for
STANDARD OF REVIEW
Federal Rule of Civil Procedure 56 provides for summary judgment “if 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 is ‘material’ under Rule 56 if
its existence or nonexistence might impact the outcome of the suit under the applicable
substantive law.” Santini v. Fuentes, 795 F.3d 410, 417 (3d 2015) (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “A dispute over a material fact is ‘genuine’
if ‘a reasonable jury could return a verdict for the nonmoving party.’” Santini, 795 F.3d at
416. The court considers the record in the light most favorable to the non-moving party,
while drawing all reasonable inferences in that party's favor. Bowers v. NCAA, 475 F.3d
524, 535 (3d Cir. 2007).
Trooper Cisko moves to dismiss on the basis of qualified immunity. Officers
carrying out official duties are entitled to immunity unless they violate “clearly established
law.” Pearson v. Callahan, 555 U.S. 223, 243 (2009). The question here is whether it
would have been “clear to a reasonable officer” at the time of the incident that Cisko’s
alleged conduct violated the Fourth Amendment’s ban on “unreasonable . . . seizures.”
Const. amend. IV. See Graham v. Connor, 490 U.S. 386, 394-95 (1989) (The Fourth
Amendment “provides an explicit textual source of constitutional protection against . . .
If Mr. Murphy’s statements are accurate—if he was struck multiple times while in
handcuffs—then Trooper Cisko violated Murphy’s “clearly established” constitutional
right to be free from excessive force. To repeatedly beat a small handcuffed man in the
basement of a house crowded with police officers is objectively unreasonable. Surely it
would have been “clear to a reasonable officer that his conduct was unlawful in the
situation he confronted.” Saucier v. Katz, 533 U.S. 194, 202 (2001). This was “an obvious
case” of an official violating “a ‘clearly established’ right.” See White v. Pauly, 2017 WL
69170, at *5 (Jan. 9, 2017). In Mr. Murphy’s own words, “it doesn’t take a rocket scientist
to figure this stuff out.” Tr. 124:19-20.
Police who enter unknown environments in pursuit of potentially dangerous
suspects must be permitted considerable discretion. But there is simply no government
interest in striking an unarmed, handcuffed arrestee. See Santini, 495 F.3d at 416 (quoting
Graham, 490 U.S. at 386) (“To determine objective reasonableness, we must balance the
‘nature and quality of the intrusion on the individual's Fourth Amendment interests against
the countervailing governmental interests at stake.’”); Kopec v. Tate, 361 F.3d 772, 778
(3d Cir. 2004) (recognizing a “‘clearly established’ right to be free from the use of
excessive force in the course of [handcuffing]”). Of course, a jury must determine whether
these events actually occurred as described in Mr. Murphy’s complaint. See, e.g., Kopec v.
Tate, 361 F.3d 772, 777 (3d Cir. 2004) (“[R]easonableness under the Fourth Amendment
should frequently remain a question for the jury . . .”) (citations omitted); Rosenberg v.
Homoki, 2009 WL 982146, at *1 (E.D. Pa. Apr. 9, 2009) (“[E]xcessive force [cases] often
depend on issues of sequence and timing that can only be resolved by a jury.”).
Appointment of Pro Bono Counsel4
Section 1915(e)(1) provides that a “court may request an attorney to represent any
person unable to afford counsel.” 28 U.S.C. § 1915(e)(1). District courts have “broad
discretion” to request the appointment of pro bono counsel, and may do so sua sponte at
any point during litigation. See Montgomery v. Pinchak 294 F.3d 492, 498 (3d Cir. 2002).
The Court must first assess whether a given case or defense has merit. Tabron, 6
F.3d. at 155. If the case has merit, the Court must next weigh specific factors, including
(1) the litigant’s ability to present his or her own case; (2) the difficulty of the particular
legal issues; (3) the degree to which factual investigation will be necessary and the ability
of the litigant to pursue that investigation; (4) the litigant’s capacity to retain counsel on
his or her own behalf; (5) the extent to which a case is likely to turn on credibility
determinations; and (6) whether the case will require testimony from expert witnesses. Id.
at 155-57. The list is non-exhaustive, and the Court may consider other facts or factors it
determines are important or helpful. Montgomery, 294 F.3d at 499.
The Court will appoint pro bono counsel in this case. On its face, the Complaint has
merit. Mr. Murphy cannot afford counsel and is unlikely to try the case effectively himself.
He plans to introduce expert medical testimony regarding his injuries, see ECF No. 44, and
the case rests largely on determinations of credibility. Further, none of the Tabron factors
weighs against appointing counsel.
For the reasons foregoing, Defendant’s motion for summary judgment is DENIED.
Pursuant to the accompanying Order, the Court also requests that Plaintiff be appointed
pro bono counsel in preparation for trial.
/s/ William J. Martini
WILLIAM J. MARTINI, U.S.D.J.
January 23, 2017
Mr. Murphy’s previous two requests for pro bono counsel were denied without prejudice. ECF.
No. 11, 29.
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