EASTERLING v. THE CITY OF NEWARK, NEW JERSEY et al

Filing 60

OPINION. Signed by Judge John Michael Vazquez on 1/24/2019. (sm)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

DONALD EASTERLING,
Plaintiff,
v.
RICHARD PEREZ, et al.,
Defendants.

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Civil Action No. 16-4463 (JMV/MF)

OPINION

VAZQUEZ, District Judge:
I.

INTRODUCTION
This matter comes before the Court upon Defendants Barry Baker, Joao Oliveira, and

Richard Perez’s motion for summary judgment on all claims still pending against them in this civil
rights matter. (ECF No. 53.) Pro se Plaintiff Donald Easterling opposes the motion. (ECF No.
58.) For the reasons set forth below, Defendants’ motion is granted.
II.

PROCEDURAL AND FACTUAL BACKGROUND
Plaintiff is presently incarcerated at New Jersey State Prison, where he is serving a sentence

of twenty years to life, after being convicted in New Jersey state court of multiple charges related
to his July 30, 2014 armed robbery of a dollar store located in Newark, New Jersey (the “Store”).
(See Mar. 27, 2017 Crim. Hr’g Tr. 26, ECF No. 53-12 at PageID: 931.) Plaintiff’s present civil
action arises out of the gunshot injury he sustained in the course of that robbery. As previously
explained by the Court, Plaintiff’s July 22, 2016 Complaint (at ECF No. 1) contains the following
pertinent factual allegations:
On July 30, 2014, around 3:00 p.m., Plaintiff went to [the Store].

(ECF No. 1, ¶ 6(3).) The Store owner[, Lloyd Darby,] and two
accomplices attacked Plaintiff and beat him on the head and face,
without cause. (Id.) Captain Richard Perez of the Newark Police
Department arrived and shot Plaintiff in the back through the glass
window of the [S]tore. (Id., ¶ 6(4).) While bleeding profusely
from the gunshot wound, Plaintiff was handcuffed and placed in the
back of a patrol car. (Id., ¶ 6(7).) Officers Barry Baker and Joao
Oliveira of the Newark Police Department drove Plaintiff around in
the patrol car instead of immediately taking him to the hospital.
(Id., ¶ 6(8).)
(Aug. 29, 2017 Op. at 2, ECF No. 29.) 1
Based on those allegations, the Court found that Plaintiff stated viable excessive force and
delay in medical care claims under 42 U.S.C. § 1983 and its state law counterpart, the New Jersey
Civil Rights Act (“NJCRA”), as to Baker, Oliveira, and Perez (hereinafter, the “Remaining
Defendants”). (See Nov. 11, 2016 Op. and Order, ECF Nos. 7, 8.) Those are the only claims in
Plaintiff’s Complaint which the Court permitted to proceed past sua sponte screening under 28
U.S.C. § 1915(e)(2)(B), and those are the only claims which remain pending in this matter. (See
id.; see also Aug. 22, 2017 Order, ECF No. 30.)
On February 27, 2017, the Remaining Defendants filed a motion to dismiss Plaintiff’s
excessive force and denial of medical care claims under Federal Rule of Civil Procedure 12(b)(6).
(ECF No. 18.) The Remaining Defendants appended relevant portions of the record of Plaintiff’s
state criminal proceedings to that motion. The Court’s August 27, 2017 Opinion summarized the
information and testimony therein as follows:
The Honorable Siobhan A. Teare, J.S.C., presided over Plaintiff’s
criminal trial. (ECF No. 18-4 at 1.) On December 1, 2017, Judge
Teare held a Miranda hearing and reviewed the facts concerning
Plaintiff’s arrest, hospitalization, discharge from the hospital, and
interrogation. (ECF No. 18-3). Plaintiff did not testify or offer
witnesses on his behalf at trial. (ECF Nos. 18-4 – 18-7.) On July
30, 2014, Plaintiff pled guilty to second-degree possession of a
1

Captain Perez has since retired from the Newark Police Department.
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weapon by a convicted felon. (ECF No. 18-7 at 7T34:17-21;
7T39:23 to 40:8.) On December 13, 2016, a jury found Plaintiff
guilty of robbery, unlawful possession and unlawful use of a gun,
using the gun to assault or threaten the Store’s occupants,
aggravated assault of Mr. Darby and Officer Dominguez, and
possession of a large capacity ammunition magazine. (ECF No. 187 at 7T27:5 to 29:22.) . . . .
According to the testimony at trial, Plaintiff went into the Store on
July 30, 2014, in the presence of Mr. Darby, the Store’s Owner, and
others, one of whom was James Harris. (ECF No. 18-5 at 3T80:7
to 82:1; 3T116:2-5)). Plaintiff pulled a gun out of his bag, and told
everyone to get on the floor. (Id. at 3T81:15 to 82:1; 3T116:2-5.)
Mr. Harris was able to escape through the front door, lock it, and go
for help. (Id. at 3T81:10 to 82:22.) Mr. Darby ignored Plaintiff’s
command to drop to the floor. (Id. at 3T115:18 to 116:14.) Plaintiff
responded by putting the gun to Mr. Darby’s head and cocked the
trigger. (Id. at 3T114:20-22.) Plaintiff robbed the occupants of
the Store. (Id. at 3T116:15 to 117:6.)
In the meantime, Mr. Harris found Officer Perez nearby and told
him of the armed robbery. (Id. at 3T36:6 to 37:21; 3T82:20 to
84:13.) They proceeded to the front door of the Store, which was
made mostly of plexi-glass. (Id. at 3T43:14 to 44:3; 3T44:14-21;
3T45:16 to 46:2.) As they approached the front door from the
outside, Plaintiff was approaching from the inside, and Officer Perez
saw that Plaintiff had a gun pointed at them. (Id. at 3T43:14 to
44:3.) Officer Perez fired two shots at Plaintiff through the door.
(Id.) The plexi-glass door did not shatter. (Id. at 3T50:25 to 51-7.)
Unbeknownst to Officer Perez, a piece of the bullet hit Plaintiff in
the back when he turned. (Id. at 3T6:-9 to 70:23.) Shortly after
the shots were fired, Officer Dominguez arrived on the scene and
began to assist Officer Perez in opening the plexi-glass door. (Id.
at 3T71:21 to 72:6.) Meanwhile, Mr. Darby saw that Plaintiff had
been wounded, and he enlisted the help of other occupants of the
Store to attack Plaintiff. (Id. at 3T128:17 to 130:6.) They tried to
wrestle the gun from Plaintiff’s hand. (Id. at 3T147:14-19.)
Plaintiff resisted and moved towards the front door of the Store.
(Id.)
Meanwhile, Officers Baker and Dominguez tried to gain entry to the
Store after Officer Baker fired two shots. (Id. at 3T47:3 to 48:19.)
The robbery victims in the Store then successfully tossed Plaintiff
to the ground. (Id.; 3T53:1 to 16.) At this point, Plaintiff shot
Officer Dominguez in the knee. (Id.) Officer Baker then entered
the Store. (Id. at 3T161:14 to 20.) After Plaintiff was subdued by
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the Store occupants, Officer Baker handcuffed Plaintiff. (Id.) As
he was walking Plaintiff to a police car, Baker noticed for the first
time that Plaintiff was bleeding profusely from the back. (Id.) He
put Plaintiff in the police car and began to drive to the hospital, but
on the way, he saw an ambulance and waived down the driver.
(3T164:17 to 166:21.) The EMS driver preliminarily treated
Plaintiff and then transported him to University Hospital. (Id.)
Officer Baker arranged for police escorts and blocked traffic to
expedite Plaintiff’s transportation to the hospital. (Id.) Plaintiff
was discharged from the hospital at [or around] 6:55 p.m. (Id. at
1T8:17 to 9:4.)
(Aug. 29, 2017 Op. at 2-4, ECF No. 29.)
On August 29, 2017, the Court denied the Remaining Defendants’ Rule 12(b)(6) motion.
(ECF No. 30.) In so doing, the Court expressly noted that “for the purpose of ruling on [that]
motion to dismiss, the Court [could not] consider [testimony in Plaintiff’s criminal] trial transcripts
for the truth of the facts asserted therein.” (ECF No. 29 at 12.) The Court, however, also made
clear that it could properly consider such evidence in a “motion for summary judgment under
Federal Rule of Civil Procedure 56.” (Id. at 9.)
On July 13, 2018, the Remaining Defendants filed the present Rule 56 motion for summary
judgment. (ECF No. 53.) The Remaining Defendants have appended copies of the abovesummarized transcripts to that motion. (See ECF Nos. 53-6, 53-14 – 53-17.) The Remaining
Defendants have also appended the following: Plaintiff’s May 22, 2018 deposition transcript
(ECF 53-8); a certification from Officer Barry Baker executed on July 12, 2018 (ECF No. 53-2);
a certification from Officer Joao Oliveira executed on July 13, 2018 (53-3); relevant portions of
the Newark Police Department’s July 30, 2018 event chronology report (ECF No. 53-4); and
documents from University Hospital which speak to the medical treatment Plaintiff received on
July 30, 2014. (ECF No. 53-13.) The significance of this evidence is discussed infra.
Plaintiff filed opposition to the present motion on or about September 17, 2008. (ECF No.

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58.) Plaintiff’s opposition consists solely of a Brief (id. at PageID: 1282), and his Response to
Statement of Material Facts (id. at PageID: 1303); Plaintiff has not submitted any additional
evidence for consideration by the Court. Plaintiff’s opposition fails to appropriately dispute – or
otherwise credibly challenge – the truth of the factual assertions set forth in the Remaining
Defendants’ Statement of Undisputed Material Facts (at ECF No. 54). Plaintiff likewise fails to
“[cite] to the affidavits and other documents submitted in connection with the [Remaining
Defendants’ summary judgment] motion.” L. Civ. R. 56.1. In other words, Plaintiff does not
meaningfully challenge the significance of the evidentiary materials appended to the Remaining
Defendants’ summary judgment motion and provides no reason for the Court to question the
undisputed nature of the material facts derived therefrom. Indeed, in their December 6, 2018
Letter Reply, the Remaining Defendants correctly note that Plaintiff’s opposition consists entirely
of “unsworn, unsupported factual allegations[.]” (ECF No. 59 at PageID: 1337.)
III.

SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate 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 is material if it “might affect the outcome of the suit under the governing
law” and a dispute about a material fact 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 the Court from
granting a motion for summary judgment. Id.
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). “A party asserting that a fact [is not] genuinely

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disputed must support the assertion by . . . citing to particular parts of materials in the record,
including depositions, documents . . . , affidavits or declarations, stipulations (including those
made for purposes of the motion only), admissions, interrogatory answers, or other materials.”
Fed. R. Civ. P. 56(c)(1)(A). After the moving party adequately supports its motion, the burden
shifts to the nonmoving party to “go beyond the pleadings and by her 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.” Celotex, 477 U.S. 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 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)). “If reasonable
minds could differ as to the import of the evidence,” however, summary judgment is not
appropriate. See Anderson, 477 U.S. at 250-51.
“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 nonmoving party’s
evidence ‘is to be believed and all justifiable inferences are to be drawn in his favor.’” Marino v.
Indus. Crating Co., 358 F. 3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at 255)). In
that respect, the Court’s role in deciding a motion for summary judgment is simply “to determine
whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249. 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, 477 U.S. at 322.

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IV.

ANALYSIS
a. Claims Under Section 1983 and the Doctrine of Qualified Immunity
(i) 42 U.S.C. § 1983
As noted above, Plaintiff asserts that Newark Police Officers Joao Oliveira, Barry Baker,

and Richard Perez used excessive force to effectuate his arrest and intentionally delayed his receipt
of medical care on July 30, 2014. These claims are actionable under federal law pursuant to 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 . . . 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[.]
42 U.S.C. § 1983.
To obtain relief under this statute, Plaintiff must establish: (i) that one of his rights secured
by the Constitution or laws of the United States was violated; and (ii) that this violation was caused
or committed by a person acting under color of state law. See West v. Atkins, 487 U.S. 42, 48
(1988); Graham v. Connor, 490 U.S. 386, 393-94 (1989) (noting that Section 1983 does not
provide substantive rights; rather, it provides a vehicle for vindicating violations of other federal
rights).
(ii) Qualified Immunity
The doctrine of qualified immunity provides that “government officials performing
discretionary functions . . . are shielded from liability for civil damages insofar as their conduct
does not violate clearly established statutory or constitutional rights of which a reasonable person
should have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Thus, government

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officials are immune from suit in their individual capacities unless, “taken in the light most
favorable to the party asserting the injury, . . . the facts alleged show the officer’s conduct violated
a constitutional right” and “the right was clearly established” at the time of the objectionable
conduct. Saucier v. Katz, 533 U.S. 194, 201 (2001). Courts may exercise discretion in deciding
which of the two prongs of the qualified immunity analysis should be addressed first in light of
the circumstances in the particular case at hand. Pearson v. Callahan, 555 U.S. 223, 236 (2009).
“If the plaintiff fails to make out a constitutional violation, the qualified immunity inquiry is at an
end; the officer is entitled to immunity.” Bennett v. Murphy, 274 F.3d 133, 136 (3d Cir. 2002).
This doctrine “balances two important interests—the need to hold public officials
accountable when they exercise power irresponsibly and the need to shield officials from
harassment, distraction, and liability when they perform their duties reasonably” and it “applies
regardless of whether the government official's error is a mistake of law, a mistake of fact, or a
mistake based on mixed questions of law and fact.” Id. (internal quotation omitted). Properly
applied, qualified immunity “protects ‘all but the plainly incompetent or those who knowingly
violate the law.’” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011) (quoting Malley v. Briggs, 475
U.S. 335, 341 (1986)).
For a right to be clearly established, “[t]he contours of the right must be sufficiently clear
that a reasonable official would understand that what he is doing violates that right.” Saucier,
533 U.S. at 202 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). That is, “[t]he
relevant, dispositive inquiry in determining whether a right is clearly established is whether it
would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.”
Couden v. Duffy, 446 F.3d 483, 492 (2006). “If the officer’s mistake as to what the law requires
is reasonable,” the officer is entitled to qualified immunity. Id. (internal citations omitted).

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Further, “[i]f officers of reasonable competence could disagree on th[e] issue, immunity should be
recognized.” Malley, 475 U.S. at 341 (1986); see also Brosseau v. Haugen, 543 U.S. 194, 198
(2004) (the general touchstone is whether the conduct of the official was reasonable at the time it
occurred). Finally, because qualified immunity is an affirmative defense, the burden of proving
its applicability rests with the defendant. See Beers-Capitol v. Whetzel, 256 F.3d 120, 142, n.15
(3d Cir. 2001).
b. Officer Joao Oliveira is Entitled to Summary Judgment; Nothing in the
Record Suggests That Oliveira Was Personally Involved in Plaintiff’s
Arrest or Transportation to University Hospital on July 30, 2014
In order for Section 1983 liability to attach to “[an individual] defendant in a civil rights
action[, that defendant] must have personal involvement in the alleged wrongdoing.” Evancho v.
Fisher, 423 F.3d 347, 353 (3d Cir. 2005). In addition to a defendant’s direct interactions with a
civil rights plaintiff, “[p]ersonal involvement can be shown through . . . personal direction or of
actual knowledge and acquiescence.” Id. This means that a civil rights defendant may be liable
under Section 1983 if he refuses to intervene when a constitutional violation takes place in his
presence and “there is a realistic and reasonable opportunity to intervene.”

Smith v. Mesinger,

293 F.3d 641, 651 (3d Cir. 2002) (internal quotation marks and citations omitted).
Here, the record evidence conclusively demonstrates that on July 30, 2014, Officer Oliveira
“never interacted with Plaintiff” – not “during the robbery, his arrest, or his transportation to the
hospital.” (See Oliveira July 13, 2018 Cert. at ¶ 7, ECF No. 53-3; accord Baker Cert., Ex. 1, ECF
No. 53-2 (Officer Baker making no reference to Officer Oliveira in his July 30, 2014 incident
report); Pl.’s May 22, 2018 Dep. Tr. 55-57, ECF No. 53-8 (Plaintiff testifying that he did not have
any direct interactions with Oliveira and affirming that “the only reason [he] attached [Officer]
Oliveira to the case is because [Plaintiff] believe[d] he was . . . in the car when [Plaintiff was]

9

being driven to the hospital.”).) Moreover, there is no record evidence to suggest that Officer
Oliveira was in a position to stop the allegedly unconstitutional acts committed by Captain Perez
and Officer Baker on July 30th. (See Antoine Cert. ¶ 15, ECF. No. 53-5 (counsel for Remaining
Defendants certifying that Plaintiff “represented [during his deposition] that he would produce
documents indicating [Oliveira’s] involvement in Plaintiff’s arrest and medical treatment, but he
[has] never produced any such documents.”); accord Pl.’s May 22, 2018 Dep. Tr. 56, ECF No. 538.)
In sum, there is nothing before the Court which suggests that Officer Oliveira directly
interacted with Plaintiff on July 30, 2014.

The record is likewise devoid of any evidence

demonstrating that Oliveira was otherwise personally “involved in Plaintiff’s handcuffing or [in]
the provision of medical services [to him].” (Defs’ July 13, 2018 Br., ECF No. 53-18 at PageID:
1232.) Summary judgment is accordingly granted in favor of Officer Joao Oliveira on Plaintiff’s
Section 1983 claims. See Baker v. City of Elizabeth, No. 11-360, 2017 WL 4220363, at *7 (D.N.J.
Sept. 22, 2017) (“Because Plaintiff has not produced evidence demonstrating that [two police
officers] had any personal involvement in the alleged constitutional violations or were in the
position to stop any alleged constitutional violations, Plaintiff’s claims cannot stand as to either
[of those defendants].”).
c. Captain Perez and Officer Baker’s Respective Actions on July 30, 2014
The following core facts as to Plaintiff’s Section 1983 denial of medical care and excessive
force claims are undisputed: Captain Perez is the individual who shot Plaintiff on July 30, 2014.
(See Remaining Defs.’ Statement of Undisputed Material Facts (“SUMF”) ¶ 14, ECF No. 56.)
Officer Baker is the individual who handcuffed Plaintiff on that date. (Id. at ¶ 29.) Officer Baker
placed Plaintiff in handcuffs after Plaintiff was shot. (See id.) Officer Baker then placed

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Plaintiff in a Newark Police Department patrol car and drove Plaintiff away from the Store. (Id.
at ¶¶ 30, 31.) Officer Baker thereafter transferred Plaintiff to the ambulance which ultimately
delivered Plaintiff to University Hospital for medical treatment. (Id. at ¶¶ 33-36.)
d. Plaintiff’s Section 1983 of Excessive Force Claims
“A cause of action exists under § 1983 when a law enforcement officer uses force so
excessive that it violates” the Fourth Amendment’s protection against unreasonable searches and
seizures. Groman v. Twp. of Manatapan, 47 F.3d 628, 633-34 (3d Cir. 1995) (emphasis added).
In that regard, “[p]olice officers are privileged to commit a battery pursuant to a lawful arrest, but
the privilege is negated by the use of excessive force.” Id. at 634 (citing Edwards v. City of
Philadelphia, 860 F.2d 568, 572 (3d Cir. 1988)). Ultimately, “[a] claim for excessive force under
the Fourth Amendment requires a plaintiff to show that a seizure occurred and that it was
unreasonable.” Curley v. Klem, 298 F.3d 271, 279 (3d Cir. 2002); see also Graham, 490 U.S. at
396.
Here, it is undisputed that Captain Perez shot Plaintiff on July 30, 2014 and that Officer
Baker thereafter placed Plaintiff in handcuffs. Both Defendants therefore undisputedly seized
Plaintiff in a manner which implicates the Fourth Amendment. Tennessee v. Garner, 471 U.S. 1,
7 (1985) (“apprehension by the use of deadly force is a seizure subject to the reasonableness
requirement of the Fourth Amendment.”); Kopec v. Tate, 361 F.3d 772, 778 (3d Cir. 2004) (a
police officer who “employ[s] excessive force in the course of handcuffing [violates] the Fourth
Amendment.”). As such, the lone issue that this Court must resolve on summary judgment with
respect to Plaintiff’s excessive force claims is whether Captain Perez and Officer Baker’s
respective actions on July 30th were “objectively reasonable in light of the facts and circumstances
confronting them, without regard to the officers’ underlying intent or motivation.” Norcross v.

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Town of Hammonton, 04-2536, 2008 WL 9027248, at *4 (D.N.J. Feb. 5, 2008) (quoting Graham,
490 U.S. at 397).
Resolution of this issue requires “careful attention to the facts and circumstances of [this]
particular case, including the severity of the crime at issue, whether the suspect pose[d] an
immediate threat to the safety of the officers or others, and whether he [was] actively resisting
arrest or attempting to evade arrest by flight.” Groman, 47 F.3d at 634 (quoting Graham, 490
U.S. at 396): see also Sharrar v. Felsing, 128 F.3d 810, 822 (3d Cir. 1997). Moreover, this
“calculus of reasonableness must embody allowance for the fact that police officers are often
forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly
evolving—about the amount of force that is necessary in a particular situation.” Graham, 490
U.S. at 396-97; see also Sharrar, 128 F.3d at 820-21. If there is any evidence in the record which
plausibly suggests that either Perez or Baker acted in an objectively unreasonable manner, as
viewed “from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision
of hindsight[,]” then an award of summary judgment in favor of that Defendant would be
inappropriate. See Graham, 490 U.S. at 396-97; Velez v. Fuentes, No. 15-6939, 2016 WL
4107689, at *4 (D.N.J. July 29, 2016).
(i) Captain Richard Perez is Entitled to Summary Judgment on
Plaintiff’s Section 1983 Excessive Force Claim; the Record
Demonstrates that His Use of Deadly Force Against Plaintiff was
Objectively Reasonable Based on the Facts Then Known to Him
As noted above, “apprehension by the use of deadly force is a seizure subject to the [Fourth
Amendment’s] reasonableness requirement[.]” Garner, 471 U.S. at 7. “Claims of excessive
force—deadly or not—are analyzed under the Fourth Amendment’s objective ‘reasonableness’
standard.” Gardner v. New Jersey State Police, No. 15-8982, 2018 WL 5342715, at *9 (D.N.J.
Oct. 29, 2018) (citing Graham, 490 U.S. at 395); accord Johnson v. City of Philadelphia, 837 F.3d
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343, 349 (3d Cir. 2016) (“the ultimate—and only—inquiry” in deadly force cases is whether the
officer’s actions were objectively reasonable); Scott v. Harris, 550 U.S. 372, 383 (2007) (same).
The Court finds that Captain Perez’s use of deadly force to effectuate Plaintiff’s arrest was
objectively reasonable in light of the particular circumstances of this case.

The following

undisputed facts are material to this conclusion: On July 30, 2014, at or about 3:00 p.m., Plaintiff
entered the Store, brandished a firearm, and proceeded to rob the occupants of the Store. (SUMF
¶¶ 1-2, ECF No. 54.) At that time, Captain Perez was driving his police vehicle near the vicinity
of the Store. (See Dec. 7, 2016 Crim. Trial. Tr. 36 (Perez’s testimony), ECF No. 53-15.) One of
the individuals who was inside the Store during the robbery, James Harris, escaped. (SUMF at ¶
9.) While Perez was sitting at a red light, Mr. Harris approached Perez’s vehicle and advised him
that a robbery involving one suspect and multiple victims was being committed inside the Store.
(See Dec. 7, 2016 Crim. Trial. Tr. 36-37 (Perez’s testimony), id. at 83-84 (Harris’s testimony).)
Captain Perez and Mr. Harris then headed to Store’s entrance. (SUMF at ¶ 11.)
Shortly thereafter, Plaintiff – who was then holding a firearm in his hand – attempted to
exit the Store. (Id. at ¶ 8.) At that time, Captain Perez observed – through a plexi-glass door –
that Plaintiff was brandishing a gun as he attempted to flee and perceived that Plaintiff was pointing
that gun in his and Mr. Harris’s direction. (Id. at ¶ 12.) Perez responded by firing two shots at
Plaintiff in quick succession. (Id. at ¶ 13.) A piece of Perez’s second bullet hit Plaintiff in the
back. (Id. at ¶ 14.) Captain Perez stopped shooting as soon as he realized Plaintiff was retreating
back inside the store. (Id. at ¶ 15) From the time Plaintiff reached the plexi-glass door with gun
in hand to the time Plaintiff began retreating back into the Store was “[three] seconds at most.”
(Id. at ¶ 16.; Pl.’s May 22, 2018 Dep. Tr. 35, ECF No. 53-8.)

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These undisputed facts find ample support in the record. For example, at Plaintiff’s
criminal trial, Captain Perez provided the following relevant testimony:
I exited my car. I took out my service weapon and . . . had it pointed
down. [A]s I approached the [Store’s] door, that’s when I saw
[Plaintiff] coming towards the door. I could see him clearly
through the door that he had a handgun, a Glock in his hands. I was
in immediate fear that he was going to kill me, so I fired. I fired
from low ready the first shot. Then I came up and I fired a second
shot, [while] he was turning, but he still had that weapon in his hand.
And then after that I couldn’t take anymore shots because he
retreated inside.
(Dec. 7, 2016 Crim. Trial. Tr. 43, ECF No. 53-15.)
Lloyd Harris’s trial testimony fully corroborates Perez’s account of these events. (Id. at
82-84 (testifying, among other things, that he saw Plaintiff holding a gun when Captain Perez
discharged his weapon and that Perez pushed Mr. Harris to the ground just before he fired his
service weapon).) This testimony – and the other facts of record detailed above – demonstrate
that as Captain Perez approached the Store with Mr. Harris, he understood that an armed robbery,
i.e., a crime of great severity, was being committed therein. There is also no dispute that Captain
Perez correctly observed that Plaintiff was holding a gun as he attempted to leave the Store. 2 The
facts of record likewise demonstrate that it was only after Captain Perez observed that weapon that
he – in the span of three seconds – fired two shots at Plaintiff. The foregoing facts show that

2

During his deposition, Plaintiff invoked his Fifth Amendment privilege against selfincrimination when asked if he was armed when Captain Perez shot him. (See Pl.’s May 22, 2018
Dep. Tr. 39-44, 84-85, ECF No. 53-8. Plaintiff’s invocation of the Fifth Amendment in response
to those inquiries does not preclude the Court from finding that the undisputed facts of record
demonstrate that Plaintiff was armed when Captain Perez shot him. See SEC v. Chester Holdings,
Ltd., 41 F.Supp.2d 505, 525 (D.N.J.1999) (“Invocation of one’s Fifth Amendment privilege in
civil cases, either in depositions or at trial, permits an adverse inference to be drawn against the
party invoking the privilege.” (citing Baxter v. Palmigiano, 425 U.S. 308, 318 (1976)); accord
SEC v. Cooper, 142 F. Supp. 3d 302, 312 (D.N.J. 2015). The adverse inference here is that
Plaintiff was in fact armed.
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Perez was objectively reasonable in his belief that Plaintiff posed an immediate threat to his safety
– as well as the safety of Lloyd Harris – and that his use of deadly force in this tense, uncertain,
and rapidly evolving situation was reasonable under the facts as he then understood them. See,
e.g., Gardner, 2018 WL 5342715, at *12-13 (the Constitution does not require [a police officer]
to wait to find out if he [is] the target of . . . gunfire before he may act on his reasonable belief that
he and others are in danger.”). Plaintiff fails to identify – and the Court has likewise been unable
to independently able to locate – any facts in the record which undermine this conclusion.
In light of the foregoing, Captain Perez is entitled to summary judgment on Plaintiff’s
Section 1983 excessive force claim. See Plumhoff v. Rickard, 572 U.S. 765, 768 (2014) (police
officers who fatally shot a fugitive whom they reasonably believed was “intent on resuming” a
chase that “pose[d] a deadly threat for others on the road” were entitled to summary judgment on
excessive force claim because the facts of record demonstrated that the police acted reasonably in
using deadly force to end that and thus, their actions did not violate the Fourth Amendment; those
same facts demonstrated that those officers were, “in the alternative[,]” entitled to qualified
immunity); see also Conde v. City of Atlantic City, 293 F. Supp. 3d 493, 505-06 (D.N.J. 2017)
(finding, as a matter of law, that officer who shot suspect in the back twice and fired a third shot
that missed acted in an objectively reasonable manner, notwithstanding that several witnesses
indicated that both of the suspect’s hands were raised in the air when he was shot because “the
undisputed evidence show[ed] that, at the very least, the possibility existed for [the suspect] to
reach into his waistband, where [the officer] and others state he holstered his weapon.”); see also
Gardner v. New Jersey State Police, No. 15-8982, 2018 WL 5342715, at *12-13 (D.N.J. Oct. 29,
2018) (suspect’s assertion that his back was to police and his hands were raised when police officer
fired did not preclude court from finding, as a matter of law, that “it was objectively reasonable

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for [that officer] to believe that his use of force was necessary”); accord Bennett, 274 F.3d at 136
(“If the plaintiff fails to make out a constitutional violation . . . the officer is entitled to immunity.”).
(ii) Officer Barry Baker is Entitled to Summary Judgment on
Plaintiff’s Section 1983 Excessive Force Claim; No Record Evidence
Suggests that Baker’s Handcuffing of Plaintiff Violated the Fourth
Amendment
The Supreme Court has explained that making an arrest “necessarily carries with it the
right to use some degree of physical coercion or threat thereof to effect it.” Graham, 490 U.S. at
396; see also Ference v. Twp. of Hamilton, 538 F.Supp.2d 785, 809 (D.N.J. 2008) (holding that
some physical contact, alone, by police during arrest insufficient to show excessive force because
“[w]ere it otherwise, police officers might have to rely on verbal instructions alone to effect an
arrest for fear of section 1983 liability”). Indeed, “[i]f an officer has probable cause to believe
that an individual has committed even a very minor criminal offense in his presence, he may,
without violating the Fourth Amendment, arrest the offender.” Atwater v. City of Lago Vista, 532
U.S. 318, 354 (2001). It accordingly follows that viable Section 1983 excessive force claims
based on handcuffing are the exception, not the rule. See Kopec, 361 F.3d at 777 (disavowing
any notion of “open[ing] the floodgates to a torrent of handcuff claims.”); see also Leibner v.
Borough of Red Bank Police Dep’t, No. 12-4104, 2013 WL 1065927, at *11 n.26 (D.N.J. Mar. 12,
2013) (delineating the facts necessary to prevail on an excessive force claim based on handcuffing
and detailing the extreme facts in Kopec which supported such a claim). Ultimately, “[t]he
unreasonableness of handcuffing requires some indication that it was done unnecessarily or
excessively.” Graham-Smith v. Wilkes-Barre Police Dep’t, 739 F. App’x 727, 732 (3d Cir. 2018).
In analyzing such a claim, the Court considers the totality of the facts, including whether the
arrestee was in obvious pain or visible discomfort at the time he was handcuffed, and whether

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there were any resulting injuries or necessary medical treatment. Giles v. Davis, 427 F.3d 197,
207-08 (3d Cir. 2005).
Here, Plaintiff claims that Officer Baker is liable under Section 1983 because he used
excessive force when he placed Plaintiff in handcuffs on July 30, 2014. Summary judgment is
granted in favor of Officer Barry Baker on this claim because there is no evidence in the record
which indicates that it was improper for Baker to handcuff Plaintiff or that Baker utilized excessive
force when he placed those handcuffs on Plaintiff. The following undisputed facts support this
conclusion: Officer Baker arrived at the Store with the understanding that a violent felony had
just been committed there. (See, e.g., SUMF ¶ 23, ECF No. 54; accord Baker Cert., Ex. 1, ECF
No. 53-2.) Officer Baker did not arrive at the Store until after Plaintiff had been subdued by
Captain Perez and Plaintiff’s robbery victims. (Id. at ¶ 25; accord Baker Cert., Ex. 1.) Upon his
arrival, Baker “found Captain Perez standing over Plaintiff with a gun trained on Plaintiff, while
Plaintiff lay on the ground.” (Id.) Officer Baker then proceeded to handcuff Plaintiff. (Id. at ¶
29.) There is no indication that Baker placed the handcuffs on Plaintiff in a manner which caused
him any physical discomfort, much less resulted in permanent injury to Plaintiff. (See, e.g., id. at
¶ 38; accord Antoine Cert., Ex. H (copies of relevant portions of University Hospital’s July 30,
2014 records), ECF No. 53-13.) The undisputed facts further show that at the time Officer Baker
placed handcuffs on Plaintiff, he was unaware that Plaintiff had been shot. (Id. at ¶¶ 26-27;
accord Baker Cert., Ex. 1.) Indeed, “Plaintiff never advised Officer Baker that he had been shot[]
while Plaintiff was being handcuffed” and “never complained about any pain from being shot.”
(Id. at ¶¶ 27-28.) It was only when Baker placed Plaintiff in a patrol car, after Plaintiff was
already in handcuffs, that Officer Baker noticed Plaintiff was bleeding from his back and learned
that Plaintiff had been shot. (Id. at ¶ 30; accord Baker Cert., Ex. 1.)

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These undisputed facts in no way suggest that it was improper for Officer Baker to handcuff
Plaintiff or that Baker otherwise utilized excessive force to effectuate the arrest. Plaintiff has
therefore failed to present “sufficient evidence to establish a dispute as to the excessiveness or
unreasonableness of [Baker’s] handcuffing of [him, and] there [accordingly] exists no question of
fact for a jury to decide.” Graham-Smith, 739 F. App’x at 732; accord Leibner, 2013 WL
1065927, at *11 n.26 (dismissing excessive force claim where “Plaintiff [failed to allege] that he
was in obvious discomfort or pain during handcuffing, that he sustained any injuries other than
‘marks,’ or that he needed treatment for any complications relating to his being handcuffed.”).
Summary judgment is therefore granted in favor of Officer Barry Baker on Plaintiff’s Section 1983
excessive force claim. Graham-Smith, 739 F. App’x at 732-33 (affirming entry of summary
judgment on excessive force handcuffing claim because plaintiff failed to present “sufficient
evidence establish a dispute as to the excessiveness or unreasonableness of police officer’s
handcuffing” and additionally affirming district court’s finding that officer was entitled to
qualified immunity because plaintiff failed to “establish[] the violation of any of her constitutional
rights by [that officer’s] reasonable use of force).
e. Summary Judgment is Granted on Plaintiff’s Section 1983 Delay of
Medical Care Claim; No Record Evidence Suggests that Any of the
Remaining Defendants Acted with Deliberate Indifference to Plaintiff’s
Serious Medical Needs
Government officials are required to provide appropriate medical care to injured arrestees
in their custody. Conde, 293 F. Supp. 3d at 506. The deliberate indifference of police officers
to the serious medical needs of such arrestees “constitutes the unnecessary and wanton infliction
of pain proscribed by the Eighth Amendment.” Id. (citing Estelle v. Gamble, 429 U.S. 97, 104
(1976) (internal quotations and additional citations omitted).

The Eighth Amendment’s

deliberate indifference standard, applies, through the Fourteenth Amendment, to Plaintiff’s
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Section 1983 delay of medical care claim.

Id. (applying that standard to claim that law

enforcement officials denied appropriate medical care to arrestee after he was shot twice in the
back by a police officer); Suarez v. City of Bayonne, 566 F. App’x 181, 187 (3d Cir. 2014)
(applying deliberate indifference standard to a arrestee’s denial of medical care claim); accord
Smith v. Gransden, 553 F. App’x 173, 177 (3d Cir. 2014) (“[d]eliberate indifference to the medical
needs of arrestees violates their Fourteenth Amendment right to due process”); see also City of
Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244 (1983) (noting that “the due process rights
of a person [who was injured while being apprehended by the police] are at least as great as the
Eighth Amendment protections available to a convicted prisoner”).
In accordance with the foregoing, Plaintiff will prevail on his Section 1983 delay of
medical care claim only if he can prove that his medical needs were “objectively serious” and that
the Remaining Defendants exhibited “deliberate indifference” to those needs. Monmouth County
Correctional Inst. Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987) (citing Estelle, 429 U.S.
at 97); Conde, 293 F. Supp. 3d at 506 (same). Objectively serious medical needs include, inter
alia, “one[s] that [are] so obvious that a lay person would easily recognize the necessity for a
doctor’s attention[.]” Atkinson v. Taylor, 316 F.3d 257, 272-73 (3d Cir. 2003) (internal citations
omitted).

For purposes of the present summary judgment motion, the Court accepts that

Plaintiff’s medical needs on July 30, 2014 were “objectively serious.”
The Court nonetheless grants summary judgment on Plaintiff’s Section 1983 delay of
medical care claim because nothing in the record suggests that any of the Remaining Defendants
intentionally delayed medical treatment or otherwise acted with deliberate indifference to
Plaintiff’s serious medical needs on July 30th. Initially, the Court notes that the sole factual
allegation as to this claim is that the Remaining Defendants intentionally took a circuitous route to

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University Hospital to delay medical treatment to Plaintiff for the injuries he sustained on July 30,
2014. (See Pl.’s May 22, 2018 Dep. Tr. 60, ECF No. 53-8.) The evidence of record conclusively
demonstrates that Officer Baker is the only Remaining Defendant who had any involvement in
transporting Plaintiff on that date. Thus, at the outset, summary judgment on this claim as to
Captain Perez and Officer Oliveira is appropriate because it is undisputed that neither of these
Defendants had “personal involvement” in the transportation of Plaintiff from the Store to
University Hospital. Evancho, 423 F.3d at 353.
The following additional undisputed facts are material to the Court’s conclusion that
summary judgment is also appropriate as to Officer Baker: Plaintiff entered the Store at or about
3:00 p.m. and was shot by Captain Perez shortly thereafter. (SUMF ¶¶ 1-2, ECF No. 54.) Officer
Baker did not know that Plaintiff had been shot when he subsequently handcuffed Plaintiff and
removed him from the Store. (Id. at ¶¶ 29-30.) It was only when Officer Baker placed Plaintiff
in the back of a patrol car that Baker “noticed for the first time that Plaintiff was bleeding profusely
from the back.” (Id. at ¶ 30; accord Baker Cert., Ex. 1, ECF No. 53-2.) In response to this
discovery, “[Officer] Baker immediately set about driving Plaintiff to the hospital in [a] patrol car
at about 3:10pm, rather than waiting for an ambulance.” (Id. at ¶ 31; accord Johns Cert., Ex. AA
(relevant portions of Newark Police Department’s July 30th event chronology report), ECF No.
53-4 at PageID: 709.) At 3:13 p.m., while on the way to the hospital, Officer Baker flagged down
an ambulance, and helped transfer Plaintiff to that vehicle for preliminary medical treatment. (Id.
at ¶¶ 33-34; accord Baker Cert., Ex. 1; Antoine Cert., Ex. H, ECF No. 53-13 at PageID: 940.)
Officer Baker thereafter arranged for police escorts and the blocking of traffic to expedite
Plaintiff’s transportation to the hospital. (Id. at ¶ 35; accord Baker Cert., Ex. 1.) Plaintiff was
admitted to University Hospital’s emergency department at 3:28 p.m. (Id. at ¶ 42; but see Antoine

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Cert., Ex. H at PageID: 944 (indicating that Plaintiff arrived in emergency room at 3:25 p.m.).)
Plaintiff was ready to be discharged from University Hospital just over three hours later, at 6:45
p.m. (Id. at ¶ 43; accord Antoine Cert., Ex. H at PageID: 945 (confirming same and further
showing that Plaintiff was formally discharged at 7:05 p.m.).)
These undisputed facts demonstrate that Officer Baker responded promptly and
appropriately upon learning that Plaintiff had been shot. Indeed, Officer Baker began driving
Plaintiff to University Hospital at 3:10 p.m., i.e., within ten minutes, at most, of Plaintiff being
shot. At 3:13 p.m., i.e., three minutes after Baker began driving Plaintiff from the Store, Plaintiff
was transferred from Baker’s vehicle to the passing ambulance which Baker flagged down, at
which point trained medical personnel began treating Plaintiff’s injuries. Officer Baker thereafter
ensured that the ambulance carrying Plaintiff promptly arrived at University Hospital through the
use of police escorts and by blocking traffic. The record conclusively shows that Plaintiff arrived
at University Hospital for treatment no later than 3:28 p.m., i.e., within 28 minutes, at most, of
being shot. This undisputed timeline of events in no way suggests that Officer Baker – or any
member of the Newark Police Department, for that matter – acted with deliberate indifference to
Plaintiff’s medical needs, particularly where those injuries, while apparently quite serious,
ultimately required Plaintiff to be hospitalized for just over three hours. See Conde, 293 F. Supp.
3d at 507-08 (summary judgment awarded on deliberate indifference to medical needs claim where
undisputed facts showed that victim who was fatally shot by police “was on his way to a hospital
in an ambulance within seven minutes of being shot.”); Jennings v. Fetterman, 197 F. App’x 162
(3d Cir. 2006) (affirming summary judgment in favor of two police officers on plaintiff’s claim
that they deliberately delayed medical treatment for two hours because the uncontroverted “record

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evidence showed that [plaintiff] was medically treated at the scene for his injuries, initially by a
firefighter . . . , and later by a second ambulance which had been called.”).
In addition, the record is devoid of evidence which suggests that any of Plaintiff’s injuries
on July 30th were the result of Baker’s alleged delay in providing medical care or that Plaintiff’s
condition worsened because of that unsubstantiated delay. That consideration provides additional
support for the Court to award summary judgment in favor of Officer Baker. See Bocchino v.
City of Atlantic City, 179 F. Supp. 3d 387, 406 (D.N.J. 2016) (fact that “[p]laintiff has provided
no evidence that any delay or denial of medical care ‘exacerbated his medical condition, caused
infection, or otherwise subjected him to an increased risk of harm’” supported summary judgment
on plaintiff’s denial of medical care claim) (citations omitted); see also Horvath v. City of New
York, No. 12-6005, 2015 WL 1757759, at *6 (E.D.N.Y. Apr. 17, 2015) (granting summary
judgment on plaintiff’s denial of medical care claim where plaintiff “offer[ed] evidence of a
number of injuries resulting from [an] alleged assault[,]” but made “no attempt to connect [those
injuries] to the alleged delay in medical attention”).
As the foregoing demonstrates, there is no record evidence which suggests that any of the
Remaining Defendants intentionally delayed medical treatment to Plaintiff or otherwise acted with
deliberate indifference to Plaintiff’s medical needs on July 30, 2014 in a manner giving rise to
Section 1983 liability. The undisputed facts of record instead show that Officer Barry Baker, i.e.,
the only Remaining Defendant who had personal involvement in the provision of medical care to
Plaintiff on July 30th, responded promptly and appropriately upon learning that Plaintiff was shot;
Summary judgment is accordingly granted in favor of all Remaining Defendants on Plaintiff’s
Section 1983 delay of medical care claim. See Bennett, 274 F.3d at 136 (“If the plaintiff fails to
make out a constitutional violation . . . the officer is entitled to immunity.”).

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f. Summary Judgment is Granted on Plaintiff’s Parallel State Law
Excessive Force and Delay of Medical Care Claims
Section 1983’s state law counterpart, the New Jersey Civil Rights Act, provides, in relevant
part, that:
Any 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 . . . 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(c).
The language of NJCRA § 10:6-2(c) mirrors the language set forth in 42 U.S.C. § 1983.
That is because “[NJCRA] was intended to serve as an analog to 42 U.S.C. § 1983; it was designed
to ‘incorporate and integrate seamlessly’ with existing civil rights jurisprudence.” See Slinger v.
New Jersey, No. 07-5561, 2008 WL 4126181, at *5 (D.N.J. Sept. 4, 2008), rev’d on other grounds,
366 F. App’x 357 (3d Cir. 2010). In other words, “[c]ourts have repeatedly construed the NJCRA
in terms nearly identical to its federal counterpart: Section 1983.” Chapman v. N.J., No. 08-4130
2009 WL 2634888, at *3 (D.N.J. Aug. 25, 2009) (citing Newport v. Fact Concerts, 453 U.S. 247,
259-261, (1981); Allen v. Fauver, 167 N.J. 69, 74 (N.J. 2001)).
As the above-cited cases suggest, the Court’s foregoing analysis regarding the viability of
Plaintiff’s federal section 1983 claims against the Remaining Defendants applies with equal force
to Plaintiff’s parallel state law claims under NJCRA. See Trafton v. City of Woodbury, 799 F.
Supp. 2d 417, 443–44 (D.N.J. 2011); Gardner, 2018 WL 5342715, at *15; Hedges v. Musco, 204
F.3d 109, 120 n.12 (3d Cir. 2000) (concluding that New Jersey’s constitutional provision
concerning unreasonable searches and seizures is interpreted analogously to the Fourth
Amendment); Bayette v. Ricci, 489 F. App’x 540, 543 n. 2 (3d Cir. 2012) (utilizing same analysis

23

for NJCRA and Section 1983 denial of medical care claims “because the test for cruel and unusual
punishment under the New Jersey state Constitution ‘is generally the same as that applied under
the federal Constitution.’”) (citation omitted); Pierce v. Cherry Hill Twp., No. 09-6487, 2013 WL
3283952, at *11 n.15 (D.N.J. June 26, 2013) (noting that the “[New Jersey] Legislature anticipated
that New Jersey courts would apply the well-established law concerning the affirmative defense
of qualified immunity in adjudicating damage claims under the [New Jersey Civil Rights] Act.”)
(citing Ramos v. Flowers, 56 A.3d 869, 876 (N.J. Super. Ct. App. Div. 2012)). It accordingly
follows that summary judgment on Plaintiff’s NJCRA excessive force and delay of medical care
claims is granted in favor of all Remaining Defendants based on the same factual and legal
considerations, detailed above, which support the Court’s award of summary judgment on
Plaintiff’s parallel federal Section 1983 claims.
V.

CONCLUSION
For the foregoing reasons, the Remaining Defendants’ motion for summary judgment is

granted. There is no genuine dispute of material fact precluding summary judgment. In addition,
and alternately, because there were no constitutional violations, the Remaining Defendants are also
entitled to qualified immunity. All remaining claims against all Remaining Defendants are
dismissed with prejudice. An appropriate Order accompanies this Opinion.

Date: January 24, 2019
At Newark, New Jersey

s/ John Michael Vazquez
JOHN MICHAEL VAZQUEZ
United States District Judge

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