WHITE v. CITY OF TRENTON et al
Filing
132
OPINION filed. Signed by Judge Freda L. Wolfson on 3/23/2012. (eaj)
**FOR PUBLICATION**
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
__________________________________________
:
HALL WHITE,
:
:
Plaintiff,
:
:
v.
:
:
CITY OF TRENTON, TRENTON POLICE
:
:
DEPARTMENT, CHIEF OF POLICE, et al.,
:
:
Defendants.
:
__________________________________________:
Civil Action No. 06-05177
OPINION
WOLFSON, United States District Judge:
Presently before the Court is a Motion for Reconsideration brought by Defendants
City of Trenton (“the City”), Trenton Police Department (“TPD”) and former Director of
Police J. Santiago (“Director Santiago”)(collectively, the “City Defendants”) pursuant to
Local Civil Rule 7.1 (i). Through the instant motion, the City Defendants challenge this
Court’s December 27, 2011 decision in which the Court granted in part and denied in part
the City Defendants’ motion for summary judgment on Plaintiff Hall White’s (“Plaintiff’s”)
§ 1983 claims. The City Defendants’ motion focuses on the Court’s denial of summary
judgment to the City and Director Santiago on a Monell municipal liability claim related
to a November 8, 2004 excessive force incident (“November 2004 incident”) for which no
individual officers have been named as defendants. For the following reasons, the motion
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for reconsideration is granted but the Court affirms its prior denial of summary judgment.
I.
BACKGROUND
The factual background of this matter is set forth more fully in this Court’s prior
decision, thus, the Court will only recount the facts necessary for disposition of the instant
motion. Plaintiff’s claims arise out of two separate arrests during which Plaintiff alleges
that Trenton Police Department (“TPD”) Officers used excessive force and arrested him
without probable cause. The first incident took place on November 8, 2004, when Officers
Kmiec and Kurfuss were detailed to a Trenton residence based on a report that an
intoxicated individual, later identified as Plaintiff, was trying to kick in the front door.
Kmiec and Kurfuss physically restrained Plaintiff and arrested him for obstructing the
administration of law.
While effectuating the arrest, Plaintiff alleges Kmiec and/or
Kurfuss both physically and verbally abused him, at one point telling him to “shut the fuck
up.” White Dep. Tr. 215:12-13. Ultimately, all charges against Plaintiff were dismissed.
No other TPD officers, including Director Santiago, participated in the incident. The
second incident took place on February 4, 2005 (“February 2005 incident”) and involved
a different group of officers.
Importantly, Officers Kmiec and Kurfuss are not named defendants in this action.
In his original complaint and his First Amended Complaint, Plaintiff asserted a fourth
amendment excessive force claim against the officers involved in the November 2004
incident, referring to them as “P.O. John Doe I” and “P.O. John Doe II.” After his First
Amended Complaint was filed, Plaintiff moved to file a Second Amended Complaint
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pursuant to Federal Rule of Civil Procedure 15 that would substitute Officers Kmiec and
Kurfuss for the John Doe officers. On December 12, 2007, Magistrate Judge Bongiovanni,
the Magistrate Judge assigned to this action, denied Plaintiff’s motion for leave to amend
because, among other reasons, any claims against Kurfuss and Kmiec would be barred by
the applicable statute of limitations. Order dated December 12, 2007 at 7-8. Shortly after
Plaintiff’s motion for leave to amend was denied, the parties jointly moved to dismiss the
excessive force claim against “P.O. John Doe I” and “P.O. John Doe II” relating to the
November 2004 incident.1
Thereafter, the parties engaged in motion practice on the remaining counts of
Plaintiff’s First Amended Complaint. The subject of the City Defendants’ instant motion
for reconsideration is the most recent motion decided by this Court on December 27, 2011.
That summary judgment motion involved the Plaintiff’s Monell municipal liability claims
against the City Defendants relating to both the November 2004 and February 2005
incidents. The Monell claim was based on a failure to supervise and discipline (“failure to
supervise”) theory that the City Defendants failed to adequately track excessive force
complaints against TPD officers.
In my ruling, I granted in part and denied in part the City Defendants’ motion. I
granted summary judgment on the claim related to the February 2005 incident but denied
summary judgment on the claim relating to the November 2004 incident. The reasoning
1
At that time, the parties jointly agreed to dismiss a false arrest/malicious
prosecution count of the First Amended Complaint also related to the November 2004
incident.
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underlying my decision was that, by the time of the February 2005 incident, the City
Defendants had implemented a system that tracked the number of complaints filed against
each police officer, certain details about the incident, and the disposition of the complaint,
inter alia. At the time of the November 2004 incident, in contrast, the City Defendants did
not have an effective tracking system in place.
II.
STANDARD OF REVIEW
Local Rule 7.1(i) allows a party to seek reconsideration of a court's decision if there
are “matters or controlling decisions which counsel believes the Judge ... has overlooked”
within ten business days following the entry of the order or judgment on the original
motion. L. Civ. R. 7.1(i); see also Interfaith Cmty. Org. v. Honeywell Int'l, Inc., 215
F.Supp.2d 482, 507 n. 12 (D.N.J. 2002). It is improper on a motion for reconsideration to
“ask the Court to rethink what it had already thought through—rightly or wrongly.”
Oritani Sav. & Loan Ass'n v. Fidelity & Deposit Co., 744 F.Supp. 1311, 1314 (D.N.J. 1990).
Rule 7.1(i) does not contemplate a recapitulation of arguments considered by the court
before rending its decision. See Bermingham v. Sony Corp. Of Am., Inc., 820 F.Supp. 834,
856 (D.N.J. 1992), aff'd, 37 F.3d 1485 (3d Cir. 1994). Instead, Rule 7.1(i) creates a procedure
by which a court may reconsider its decision upon a showing that dispositive factual
matters or controlling decisions of law were overlooked by the court in reaching its prior
decision. Relief by way of a motion for reconsideration is “an extraordinary remedy” that
is to be granted “very sparingly.” Interfaith Cmty. Org., 215 F.Supp.2d at 507.
A timely motion for reconsideration may be granted upon a finding of at least one
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of the following grounds: “(1) an intervening change in the controlling law; (2) the
availability of new evidence that was not available when the court granted the motion ...;
or (3) the need to correct a clear error of law or fact or to prevent manifest injustice.” Max’s
Seafood Café v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999); Boswell v. Eoon, No. 10–3493,
2011 WL 5597429, *2 (3d Cir. Nov. 17, 2011). The Court will grant such a motion only if the
matters overlooked might reasonably have resulted in a different conclusion. Bowers v.
Nat'l Collegiate Athletic Assoc., 130 F.Supp.2d 610, 613 (D.N.J. 2001).
III.
DISCUSSION
The City Defendants base their motion for reconsideration on what they perceive
to be an error of law. As noted, in my December 27, 2011 decision, I granted summary
judgment on the City Defendants’ motion with respect to the failure to supervise claim
related to the February 2005 incident. Summary judgment was appropriate on the Monell
claim against the City Defendants’ because, by the February 2005 date, a tracking system
that adequately tracked excessive force complaints against TPD officers was in place.
Summary judgment was denied, however, with respect to the November 2004 arrest
because the testimony of Director Santiago, when read in the light most favorable to
Plaintiff, could be read to indicate that no adequate tracking system was in place and
functioning by that date.
In the summary judgment briefing for that motion, neither party argued that
summary judgment should be granted with respect to one date and denied with respect
to the other. Each party treated the question of Monell liability as relating to both
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incidents. Moreover, the parties did not address that the individual officers who allegedly
used force in arresting and jailing Plaintiff are not named as defendants for their role in the
November 2004 incident.
On reconsideration, the City Defendants now argue that since Plaintiff did not name
as defendants the individual officers who allegedly used excessive force during the
November 2004 arrest no determination of their liability may be made. According to the
City Defendants, this means that Monell liability may not attach and summary judgment
should be granted in their favor. The City Defendants rely primarily upon City of Los
Angeles v. Heller, 475 U.S. 796 (1986), to support their argument.
At the outset, Plaintiff argues that the City Defendants’ motion is an impermissible
attempt to argue a point that could have been raised in the underlying motion. Plaintiff is
correct that motions for reconsideration are not the vehicle for a party to “argue what could
have been, but was not, argued in the original set of moving and responsive papers.”
Bowers, 130 F.Supp.2d at 613. Plaintiff relies on Bowers, supra, in support of this
proposition. The City Defendants respond that they could not have raised this issue in
their summary judgment papers because it was only after the Court denied summary
judgment on the Monell claim solely with respect to the November 8, 2004 incident that
they were faced with the prospect of liability relating to an incident for which there were
no officers named as defendants in the suit.
As explained in Bowers, the impetus for the rule that reconsideration may not be
used to raise an issue ignored in the underlying motion was that “ motions for reargument
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ha[d] become quite the matter of course within the District of New Jersey ....” 130
F.Supp.2d at 613. When Bowers was decided in 2001, parties were filing such motions
“even where the Judges of this District ha[d] explicitly considered a party's argument or
explicitly considered a certain fact ....” Id. Moreover, Bowers notes, the rule against
rearguing issues that could have been raised was also created to ensure that parties do not
treat reconsideration motions as “a substitute for the appellate process ....” Id.
In my view, the City Defendants’ motion is not an inappropriate use of the
reconsideration vehicle. Even assuming the City Defendants could have anticipated the
Court’s denial of summary judgment only with respect to the November 8, 2004 incident,
this is not a case where the Court has already addressed the defendants’ arguments or
where the defendants are using the motion as a substitute for an appeal. Rather, the City
Defendants are now raising a legal issue that could have significant implications on the
instant suit and, if I were to agree with their interpretation of the law, a reversal of my prior
grant of summary judgment would be appropriate. As such, the motion fits within those
category of motions that express a “need to correct a clear error of law or fact or to prevent
manifest injustice.” Max’s Seafood, 176 F.3d at 677. Therefore, I find that the motion for
reconsideration is properly brought and now turn to whether reversal of my prior denial
of summary judgment is warranted.
The City Defendants hinge their argument on language in the Supreme Court’s
decision in Heller that
neither Monell [ ] nor any other of our cases authorizes the
award of damages against a municipal corporation based on
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the actions of one of its officers when in fact the jury has
concluded that the officer inflicted no constitutional harm. If
a person has suffered no constitutional injury at the hands of
the individual police officer, the fact that the departmental
regulations might have authorized the use of constitutionally
excessive force is quite beside the point.
475 U.S. at 799. The Third Circuit relied upon Heller in Grazier ex rel. White v. City of
Philadelphia, when it reasoned in a case in which a jury found no constitutional violation
that “[t]here cannot be an award of damages against a municipal corporation based on the
actions of one of its officers when in fact the jury has concluded that the officer inflicted no
constitutional harm.” 328 F.3d 120, 124 (3d Cir. 2003). See also Williams v. City of
Philadelphia, --- Fed.Appx. ----, 2011 WL 6017967, *3 (3rd Cir. Dec. 5, 2011). “This
conclusion follows naturally from the principle that municipal liability will only lie where
municipal action actually caused an injury.” Grazier, 328 F.3d at 124.
But, contrary to the City Defendants’ assertion, this does not mean that a plaintiff
must always name the individual officers who allegedly inflicted the constitutional harm.
As explained by the First Circuit in Wilson v. Town of Mendon, “[t]here is . . . nothing to
prevent a plaintiff from foregoing the naming of an individual officer as a defendant and
proceeding directly to trial against the municipality....” 294 F.3d 1, 7 (1st Cir. 2002).2
2
Indeed, while not addressing the issue of unnamed officers explicitly, the
Third Circuit’s ruling in Beck v. City of Pittsburgh, 89 F.3d 966 (3d Cir. 1996), involved a
claim brought solely against the municipal where, after bifurcation, the plaintiff’s case
against the defendant officer ended in a mistrial. Id. at 967. Following the mistrial, the
plaintiff dismissed his claim against the officer, and proceeded against the city on the claim
that it had tolerated a custom and policy of condoning the use of excessive force by its
officers, including the force allegedly used by the original officer defendant.
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Plaintiffs do not often choose this route because “[t]he predicate burden of proving a
constitutional harm on the part of a municipal employee remains an element of the case
regardless of the route chosen and is much easier to flesh out when the tortfeasor is a party
amenable to the full powers of discovery.” Id. at 8. Morever, proving a Monell claim based
on constitutional harm inflicted by unnamed officers is difficult; a plaintiff must show not
only that he suffered constitutional harm but also that the municipality had a policy or
custom that encouraged excessive force and that said policy or custom was a motivating
factor in the officers’ unconstitutional conduct. Id. (“The burden of placing that harm in
the context of a causative municipal custom and policy is significantly more onerous than
the task of simply proving that an actionable wrong occurred.”).3
Wilson, while explaining that a Monell claim may proceed where a plaintiff has not
named the officers who inflicted the alleged constitutional harm, acknowledges that
“[t]here is, at first blush, a visceral unease at the idea that a person’s conduct can be the
subject of a jury’s condemnation in a case to which the person is not a party.” Wilson, 294
F.3d at 8. By analogizing to unindicted co-conspirators who are frequently the subject of
adverse jury findings, and to private employers sued under respondeat superior liability
while the employee is unnamed, the Wilson Court reasons that situations where not all
3
By way of example, the Fifth Circuit granted summary judgment on a Monell
liability claim predicated on excessive force by two unnamed officers. The circuit granted
summary judgment even though the plaintiff presented sufficient evidence that the officers
used excessive force because the plaintiff failed to present sufficient evidence of a
municipal policy or custom. See Peterson v. City of Fort Worth, Texas, 588 F.3d 838, 850
(5th Cir. 2009).
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culpable parties are named as defendants are generally permitted by our law. See id. at 8,
n.17.
Moreover, Wilson explains, a plaintiff who fails to name the officers who allegedly
inflicted the unconstitutional harm foregoes the opportunity to seek a judgment against the
unnamed officers that would be personally binding upon the officers. Id. at 8. And, where
a plaintiff initially brings suit against the officer and subsequently dismisses him to
proceed solely against the municipality, the dismissal could have the claim preclusive effect
of barring the plaintiff from attempting to re-litigate the same claim against the officer in
another proceeding. See Young v. City of Providence, 404 F.3d 4, 25 n.17 (1st Cir. 2005).
But a plaintiff’s decision not to name the officers has no legal “effect on the factual question
whether [the officers] violated [the plaintiff’s] constitutional rights ....” Id. A plaintiff who
does not name an officer as a defendant may still “seek[ ] a factual finding regarding the
implications of [the officer’s] conduct for the possible liability of the [municipality] as her
employer ....” Wilson, 294 F.3d at 8.
This is not to say that a plaintiff may make a mockery of the judicial process through
pleading gamemanship. While the Wilson Court rejected the general proposition that a
plaintiff must name the municipal employees who allegedly inflicted the constitutional
harm as a defendant in order to sue the municipality, the circuit affirmed the lower court’s
refusal to submit to the jury a special verdict form on the unnamed officer’s alleged
constitutional harm in that case. This was because the plaintiff intentionally did not name
the officer as a defendant in order to prevent the municipality from presenting evidence
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of a prior perjury in another case that called into question the officer’s veracity. On the eve
of trial, the plaintiff also dropped all claims that would have permitted the municipality
to introduce evidence of the officer’s perjury. Throughout the trial, the officer’s name was
mentioned several times and testimony was admitted as to her excessive-force related
actions. Following closing arguments, the plaintiff requested that the jury render a special
verdict on the officer’s infliction of constitutional harm. The lower court denied the
request, erroneously holding that a Monell claim may not stand when the officer who
allegedly inflicted the constitutional harm is not named as a defendant. Rejecting the lower
court’s reasoning, the circuit nonetheless affirmed on the alternate ground that the
plaintiff’s “mid-trial switch in strategy [was] troubling and ultimately unfair” to the
defendants. Wilson, 294 F.3d at 13. In the circuit’s view, the plaintiff sought to obtain a
factual ruling on the officer’s conduct without allowing the municipality to present
unfavorable evidence about that officer.
Here, Plaintiff does not dispute that his Monell claim is predicated on Officers
Kurfuss’ and Kmiec’s conduct, nor that he failed to name these officers as defendants.4
4
The First Amended Complaint makes clear that Plaintiff’s Monell claim
against the City Defendants is explicitly based on these officers’ use of excessive force,
which he asserts violated the fourth amendment. See First Am. Compl., ¶ 25-6. To be sure,
Plaintiff’s claim against the City Defendants is not a substantive due process claim under
the fourteenth amendment for which these defendants may be independently liable “even
in situations where none of [the officers] are liable.” Brown v. Commonwealth of
Pennsylvania, 318 F.3d 473, 482 (3d Cir. 2003) (discussing Fagan v. City of Vineland, 22 F.3d
1283, 1292 (3d Cir. 1994)).
In this connection, the Court further notes that there is a line of cases in the
Third Circuit beginning with Fagan, supra, that stand for the proposition that “a
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However, the record in this case does not suggest that Plaintiff engaged in pleading
gamemanship. As noted, Plaintiff attempted to amend his First Amended Complaint to
substitute the officers names for the “John Doe” defendants he originally named. Unlike
the plaintiff in Wilson, Plaintiff sought to name the individuals officers but simply failed
to do so in timely fashion. There is no indication in the record that Plaintiff sought some
sort of competitive advantage in not naming the officers as defendants. Hence the sort of
unfairness present in Wilson is not a concern here.
Returning to the reconsideration question at hand, I conclude that there is no error
of law in my prior ruling denying summary judgment to the City Defendants for the
November 2004 incident. Because Plaintiff was not permitted to substitute the unnamed
officers for the John Doe defendants, no judicial determination as to the officers’ liability
has been made. This distinguishes Heller and its progeny because, in those cases, there had
been a judicial determination that the officers did not inflict constitutional harm. So, while
the general rule is that “municipal liability will only lie where municipal action actually
caused an injury,” Grazier, 328 F.3d at 124, see also Simmons, 947 F.2d at 1064, until a
municipality’s liability under section 1983 for a substantive due process violation does not
depend upon an individual officer’s liability.” 22 F.3d at 1293. See e.g., Kniepp v. Tedder,
95 F.3d 1199, 1213 (3d Cir. 1996) (“The precedent in our circuit requires the district court
to review the plaintiffs’ municipal liability claims independently of the section 1983 claims
against the individual officers, as the City’s liability for a substantive due process violation
does not depend upon the liability of any police officers.”). This line of cases, however, has
been questioned. See Brown v. Commonwealth of Pennsylvania, 318 F.3d 473, 482 (3d Cir.
2003) (discussing circuit split and rejection of Fagan’s reasoning by other courts). As noted,
the plaintiff here has not asserted a substantive due process claim against the City
Defendants.
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judicial determination as to whether Officers Kurfuss and Kmiec inflicted constitutional
harm is made on summary judgment or at trial, there is no basis for granting summary
judgment at this juncture on Plaintiff’s Monell claim.
In this connection, the Court notes that the City Defendants have not moved in prior
motions or the instant motion on the question of whether Officers Kmiec or Kurfuss
inflicted constitutional injury on Plaintiff.
In the earlier summary judgment motion
decided in 2009, the City Defendants admitted for the purpose of that motion that these
officers used excessive force. See White v. City of Trenton, No. 06-05177, 2009 WL 1442765,
*1 (D.N.J. May 20, 2009). With regard to the December 27, 2011 summary judgment
decision, the City Defendants moved on causation grounds and did not argue in their
papers that Plaintiff did not suffer a constitutional deprivation of his Fourth Amendment
rights at the hands of Officers Kmeic and Kurfuss. Hence, while the issue of whether
Officers Kmiec and Kurfuss actually used excessive force against Plaintiff may be ripe for
summary judgment, it is not before the Court today.
In the event the City Defendants do not successfully move for summary judgment
on whether Plaintiff has proven constitutional harm and this matter advances to trial, I may
exercise my discretion to bifurcate the trial. See In re Bayside Prison Litigation, 157
Fed.Appx. 545, 547 (3d Cir. 2005) (“A district judge may bifurcate a trial ‘in furtherance of
convenience or to avoid prejudice, or when separate trials will be conducive to expedition
and economy.’”) (quoting Fed.R.Civ.P. 42(b)). Should the Court bifurcate, Plaintiff will first
be required to establish that Officers Kurfuss and Kmiec used excessive force and that he
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suffered constitutional harm during the November 2004 incident. Only after a jury returns
a verdict in his favor will Plaintiff then be allowed to present evidence on the Monell claim
and submit that claim to the jury.
Even if I elect not to bifurcate the trial, Plaintiff is reminded that he will be required
to first establish he suffered constitutional harm in order for his claim against the
municipality to succeed. See Bayside, 157 Fed.Appx. at 548 n. 7 (noting that district court
used a special verdict form instructing the jury to first consider whether a constitutional
harm had been demonstrated and that “[i]f your answer is ‘No’ to [that q]uestion . . . cease
your deliberation and return your verdict.”) See also Brown v. Commonwealth of
Pennsylvania, 318 F.3d 473, 482 (3d Cir. 2003) (“The threshold issue presented by any §
1983 case is whether a plaintiff has sufficiently alleged a deprivation of a right secured by
the Constitution.”).
The Court further reiterates that, in addition to the constitutional harm element of
his Monell claim, Plaintiff must establish existence of the custom that implicitly encouraged
excessive force and that the custom was a motivating factor in the officers’ use of excessive
force in the November 2004 incident. See Canton, 489 U.S. at 385 (“[O]ur first inquiry in
any case alleging municipal liability under § 1983 is the question whether there is a direct
causal link between a municipal policy or custom and the alleged constitutional
deprivation.”); cf. id. at 391 (noting that, for a failure to train theory based on certain
officers’ refusal to obtain medical care for the plaintiff, the plaintiff “must . . . prove that the
deficiency in training actually caused the police officers’ indifference to her medical
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needs”). “Municipalities . . . may be liable for constitutional torts [only] if two prerequisites
are met: (1) the plaintiff’s harm was caused by a constitutional deprivation; and (2) the
municipal entity is responsible for that violation.” Vargo ex rel. Vargo v. Plum Borough,
376 Fed.Appx. 212, 215 (3d Cir. 2010) (citing Collins v. City of Harker Heights, 503 U.S.
115, 120, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992)).
In sum, summary judgment on Plaintiff’s Monell claim is not appropriate at this
juncture under Heller and, consequently, there is no basis for reversing my prior denial of
summary judgment.
IV.
CONCLUSION
For the reasons set forth above, the City Defendants’ motion for reconsideration is
granted. However, the Court affirms its prior denial of summary judgment on Count III
of Plaintiff’s First Amended Complaint against Director Santiago in his official capacity and
against the City on that same count.
Dated: March 23, 2012
/s/Freda L. Wolfson______
Freda L. Wolfson, U.S.D.J.
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