AYALA v. MCCORMICK et al

Filing 93

MEMORANDUM OPINION. Signed by Judge Mary L. Cooper on 3/28/2014. (gxh)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JOHN AYALA,
Plaintiff,

CIVIL ACTION NO. 09-3484 (MLC)
MEMORANDUM OPINION

v.
KENNETH McCORMICK, et al.,
Defendants.
COOPER, District Judge
The plaintiff, John Ayala (the “plaintiff”), commenced this
action against the defendants Kenneth McCormick (“Sergeant
McCormick”) and Thomas Fisher (“Officer Fisher”) (collectively, the
“defendants”), police officers within the Raritan Borough Police
Department, as well as the fictitious defendants, “3 John Doe
Official[s],” alleging, inter alia, (1) excessive, unlawful, and
deadly force, and (2) denial of medical care (the “Remaining
Claims”), in violation of 42 U.S.C. § (“Section”) 1983.

(See dkt.

entry no. 1, Compl.; dkt. entry no. 84-1, Defs.’ Br. at 6, 31
(explaining that Complaint, though vague, can be read to assert
that defendants violated Section 1983 by engaging in excessive,
unlawful, and deadly force, and denying plaintiff medical care).)1

1

The plaintiff subsequently filed a document that listed his
causes of action as follows: “2C:5-2, official misconduct”; “2C:121A, excessive force by law enforcement”; “2C:12-1, serious bodily

The defendants now move for summary judgment in their favor and
against the plaintiff, pursuant to Federal Rule of Civil Procedure
(“Rule”) 56, as to the Remaining Claims (the “Motion”).
entry no. 84, Notice of Defs.’ Mot.)
Motion.

(See dkt.

The plaintiff opposes the

(See generally dkt. entry no. 91, Opp’n Br.)

The Court will resolve the Motion on the papers and without
oral argument pursuant to Local Civil Rule 78.1(b).

The Court, for

the reasons stated herein, will grant the Motion.
I.

SUMMARY JUDGMENT STANDARD
Motions for summary judgment are governed by Rule 56, which

provides that the Court “shall grant 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).

The movant has the initial burden of proving

the absence of a genuinely disputed material fact relative to the
claims in question.
(1986).

Celotex Corp. v. Catrett, 477 U.S. 317, 330

Material facts are those “that could affect the outcome”

of the proceeding, and “a dispute about a material fact is
injury”; “2C:24-8, endangering the welfare of disabled”; “2C:12-1,
endangering an injured victim”; “2C:28-4, falsifying police
reports; medical neglect”; “gross neglect”; “excessive force”;
“deadly force”; “unlawful force”; “discrimination”; and “denial of
medical attention.” (See dkt. entry no. 1-5, Pl. Cause of Action
List.) In the plaintiff’s opposition to this motion for summary
judgment, the plaintiff – now represented by pro bono counsel –
concedes all of the previously pleaded causes of action except for
(1) excessive, unlawful, and deadly force, and (2) denial of
medical care. (See dkt. entry no. 91, Opp’n Br. at 15-16.)
2

‘genuine’ if the evidence is sufficient to permit a reasonable jury
to return a verdict for the non-moving party.”

Lamont v. New

Jersey, 637 F.3d 177, 181 (3d Cir. 2011) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

The burden on the

movant may be discharged by pointing out to the district court that
there is an absence of evidence supporting the nonmovant’s case.
See Celotex, 477 U.S. at 323.
If the movant demonstrates an absence of genuinely disputed
material facts, then the burden shifts to the nonmovant to
demonstrate the existence of at least one genuine issue for trial.
See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475
U.S. 574, 586–87 (1986); Williams v. Bor. of W. Chester, Pa., 891
F.2d 458, 460–61 (3d Cir. 1989).

“Where the record taken as a

whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.”

Matsushita

Elec. Indus. Co., 475 U.S. at 587 (internal quotation marks
omitted).

The nonmovant cannot, when demonstrating the existence

of issues for trial, rest upon argument; the nonmovant must show
that such issues exist by referring to the record.

See

Fed.R.Civ.P. 56(c)(1).
When determining whether a genuine issue of material fact
exists, the court must view the evidence in the light most
favorable to the nonmovant and draw all reasonable inferences in
that party’s favor.

Scott v. Harris, 550 U.S. 372, 380 (2007);
3

Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir. 2007).

If the

nonmovant fails to demonstrate that at least one genuine issue
exists for trial, then the Court must determine whether the movant
is entitled to judgment as a matter of law.

See McCann v. Unum

Provident, 921 F.Supp.2d 353, 357 (D.N.J. 2013).

“A movant is

entitled to judgment as a matter of law if, at trial, no reasonable
jury could find for the non-moving party.”
II.

Id.

FINDINGS OF FACT
On August 1, 2007, Sergeant McCormick was dispatched to an ice

cream parlor located in Raritan, New Jersey, in response to a
report of a man acting in a disorderly manner.

(See dkt. entry no.

84-2, Defs.’ Statement of Undisputed Material Facts (“Defs.’ SOF”)
at ¶¶ 5, 15; dkt entry no. 91-1, Pl.’s Response to Statement of
Undisputed Material Facts (“Pl.’s SOF”) at ¶¶ 5, 15.)

When

Sergeant McCormick arrived at the scene, he was briefed by Officer
Kathleen Sausa.

(See Defs.’ SOF at ¶ 16; Pl.’s SOF at ¶ 16.)

Officer Sausa informed Sergeant McCormick that witnesses observed
the plaintiff crawling around on all fours near the ice cream
parlor, approaching a pole while on all fours and lifting his leg
as if he was urinating, and sitting down in front of the front door
of the ice cream parlor just prior to the Officer Sausa’s arrival.
(See id.)

Sergeant McCormick observed the plaintiff sitting on the

ground blocking the ice cream parlor’s entrance, preventing

4

customers from entering and exiting.

(See Defs.’ SOF at ¶ 17;

Pl.’s SOF at ¶ 17.)
Sergeant McCormick then radioed for additional officers to
converge on the scene; he was motivated to radio for assistance
because the plaintiff was very muscular and he believed having a
greater police presence was in his best interests due to the amount
of bystanders present.
19.)

(See Defs.’ SOF at ¶ 19; Pl.’s SOF at ¶

The parties’ versions of events diverge at this point.

The

defendants allege that while Sergeant McCormick awaited Officer
Fisher’s arrival, he attempted to communicate with the plaintiff.
(See Defs.’ SOF at ¶ 20; Pl.’s SOF at ¶ 20.)

Sergeant McCormick

alleges that while the plaintiff did not respond to verbal
commands, the plaintiff did make eye contact with him and tracked
Sergeant McCormick with his eyes.

(See Defs.’ SOF at ¶ 20, 22.)

When Officer Fisher arrived on the scene, he was briefed by
Sergeant McCormick and Officer Sausa.
Pl.’s SOF at ¶ 24.)

(See Defs.’ SOF at ¶ 24;

The defendants proceeded to ask the plaintiff

a series of questions, including whether he understood English,
whether he was hurt, and whether he needed assistance.
SOF at ¶¶ 25, 27-28.)

(See Defs.’

The defendants allege that the plaintiff did

not respond verbally to any of the commands, but he did nod his
head “yes” when the officers asked whether he understood English.
(See id.)

Officer Fisher then told the plaintiff that he would

help him up if he needed assistance.
5

(See Defs.’ SOF at ¶ 29.)

When he received no reply, Officer Fisher said “please stand up and
try to move to the bench to get out of peoples’ way so they can go
about their business going in and out.”

(See dkt. entry no. 84-3,

Certification of Richard H. Bauch, Esq., Ex. B, Fisher Dep. 34:6-9,
May 20, 2013.)

The plaintiff again did not respond, and Officer

Fisher proceeded to walk to the plaintiff’s right side where he
noticed a half marijuana cigar under the plaintiff’s pocket on the
ground.

(See Defs.’ SOF at ¶¶ 33-34.)

Officer Fisher then advised the plaintiff that if he did not
stand up he would be placed under arrest for disorderly conduct
because he was restricting the flow of patrons in and out of the
ice cream parlor and causing a commotion.

(See id. at ¶ 35.)

When

the plaintiff still did not respond, Officer Fisher reached out to
assist the plaintiff and touched his arm.

(See id. at ¶ 36.)

The

plaintiff’s arm immediately tensed up, and he pulled his arm away
from Officer Fisher’s grasp in a willful and violent manner.
id.)

(See

Sergeant McCormick testified that he thought the plaintiff

was going to start fighting the officers “with everything he had.”
(See id. at ¶ 37.)
As soon as the plaintiff pulled his arm away, Officer Fisher
rolled the plaintiff onto his stomach and verbally instructed him
to stop resisting arrest.
39:9.)

(See id. at ¶ 40; Fisher Dep. 38:19-

The plaintiff instead kept his arms underneath him, tried

to twist and pull away from the officers, and began kicking.
6

(See

Fisher Dep. 39:10-12.)

At this time, the officers were unaware of

whether the plaintiff had any weapons, as he had not yet been
searched.

(See Defs.’ SOF at ¶ 39.)

While Officer Fisher

attempted to gain control of the plaintiff’s right arm, Sergeant
McCormick tried to gain control of the plaintiff’s left side
through the use of a compliance hold.

(See id. at ¶¶ 40-41.)

Sergeant McCormick utilized a straight arm bar, a type of
compliance hold he was taught during his police training.

(See id.

at ¶¶ 42-43; dkt. entry no. 84-3, Certification of Richard H.
Bauch, Esq., Ex. A, McCormick Dep. 47:3-7, May 20, 2013.)

During

the time the officers attempted to handcuff the plaintiff, his
arms, neck, and head were providing resistance to the officers and
were straining against their efforts.

(See Defs.’ SOF at ¶ 45.)

Because the plaintiff was kicking his legs, a third officer,
Officer Raniere restrained the plaintiff’s legs.

(See id. at ¶¶

48-49.)
Sergeant McCormick eventually used an additional compliance
hold on the plaintiff by placing his knee on the plaintiff’s back
and neck.

(See id. at ¶ 50.)

Sergeant McCormick learned this type

of compliance hold during his police training.

(See id. at ¶ 51.)

Soon after, the plaintiff exclaimed: “enough, you have me already,”
and the defendants were then able to get both of the plaintiff’s
arms behind his back, handcuff him, and arrest him.

(See id.)

Sergeant McCormick testified that the plaintiff’s arms were not
7

ripped backwards, his shoulders were free to rotate during the act
of handcuffing, and that once the plaintiff was handcuffed, the
officers ceased the use of all compliance holds.
52-53.)

(See id. at ¶¶

Officer Fisher testified that the plaintiff did not fall

to the ground at any point during the arrest.

(See Fisher Dep.

41:25-42:2.)
Once the plaintiff was handcuffed, he was conversant with the
officers and responsive to them.

(See Defs.’ SOF at ¶ 56.)

After

the arrest, Sergeant McCormick cancelled the ambulance which had
been dispatched automatically.

(See id.)

The plaintiff was then

transported to the police station, which was approximately .1 miles
or 500-600 feet away from the ice cream parlor.

(See id. at ¶ 57.)

While at the police station, the plaintiff was compliant and
responded to all verbal commands. (See id. at ¶ 61.) The plaintiff
informed Officer Fisher that he suffers from a seizure disorder.
(See id. at ¶ 59.)

Officer Fisher asked the plaintiff if he needed

medical attention, which the plaintiff declined.

(See id.)

Sergeant McCormick similarly asked the plaintiff whether he needed
either medication to control his seizures or an ambulance, and the
plaintiff declined both offers.

(See id. at ¶ 60.)

The defendants

both testified that even after learning that the plaintiff suffers
from a seizure disorder, there was nothing about the plaintiff’s
demeanor during the encounter in front of the ice cream parlor that

8

led them to think that he was having a seizure.

(See McCormick

Dep. 50:1-7; Fisher Dep. 47:25-48:5.)2
The plaintiff, on the other hand, testified that he does not
recall any of the events that occurred prior to or during his
arrest because he was having a seizure.
Pl.’s SOF at ¶ 82.)

(See Defs.’ SOF at ¶ 82;

The plaintiff argues that the seizure rendered

him incoherent, and thus he denies making eye contact with the
officers, nodding his head in response to their questions, and
resisting.

(See e.g., Pl.’s SOF at ¶¶ 14, 22, 28, 41.)

The

plaintiff states that the only thing he recalls from his arrest was
waking up at the police station handcuffed to a bench.
SOF at ¶¶ 65, 82; Pl.’s SOF at ¶¶ 65, 82.)

(See Defs.’

Because he does not

recall the arrest, the plaintiff relies exclusively on the
eyewitness testimony of James Sorace and Paul Gsell (collectively
the “eyewitnesses”) as evidence for his excessive force claim.
(See Defs.’ SOF at ¶ 83; Pl.’s SOF at ¶ 83; dkt. entry no. 84-3,
Certification of Richard H. Bauch, Esq., Ex. C, Ayala Dep. 489:417, Feb. 26, 2013.)
2

The defendants also submit the affidavit of Candace Bauer, an
employee at the ice cream parlor and eyewitness to the arrest.
(See generally dkt. entry no. 84-8, Aff. of Candace Bauer.) Bauer
corroborates the defendants’ version of the events. (See generally
id.) Bauer also averred that: (1) the plaintiff resisted the
officers’ attempts to move him and handcuff him; (2) she did not
believe the plaintiff was suffering from a seizure; (3) she never
saw the officers hit, beat, or slam the plaintiff or rip his arms
back; and (4) she believed the police acted appropriately. (See
id. at ¶¶ 10-14, 17.)
9

Sorace testified he was standing in his business across the
street from the ice cream parlor at the time of the plaintiff’s
arrest.

(See Defs.’ SOF at ¶ 85; Pl.’s SOF at ¶ 85.)

He testified

that he saw a man on his stomach being arrested by one officer who
was sitting or kneeling on the man.

(See Defs.’ SOF at ¶¶ 86-87;

Pl.’s SOF at ¶¶ 86-87; dkt. entry no. 84-3, Certification of
Richard H. Bauch, Esq., Ex. R, Sorace Dep. 7:1-8:2, Mar. 4, 2013.)
Sorace further testified that he did not see anything inappropriate
with regard to the plaintiff’s arrest, and he never saw the
plaintiff being lifted off of the ground.

(See Defs.’ SOF at ¶ 89;

Pl.’s SOF at ¶ 89.)
Gsell testified that when he arrived at the scene he saw the
plaintiff – whom he described as “a really well-put together dude,
a very muscular guy” – seated directly in front of the entrance of
the ice cream parlor.

(See Defs.’ SOF at ¶ 98; Pl.’s SOF at ¶ 98.)

Gsell noted in his deposition that he knew both of the defendants.
(See Defs.’ SOF at ¶ 107; Pl.’s SOF at ¶ 107.)3

In regard to the

arrest, Gsell testified that an unknown male officer attempted to
pick the plaintiff up, but could not.
Pl.’s SOF at ¶ 108.)

(See Defs.’ SOF at ¶ 108;

Gsell stated that when the officer “tried to

pull[] him one way, he went the other way. . . .

3

[he would] just

Gsell testified that he knew Officer Fisher since he was ten
years old, and that they went to school together. (See Defs.’ SOF
at ¶ 107; Pl.’s SOF at ¶ 107.) Gsell further testified that he
knew Sergeant McCormick from seeing him in Court. (See id.)
10

lock up. . . . [I]t was like a sling shot.”

(See Defs.’ SOF at ¶¶

117-18; Pl.’s SOF at ¶¶ 117-18; dkt. entry no. 84-3, Certification
of Richard H. Bauch, Esq., Ex. T, Gsell Dep. 151:13-14, 151:17,
157:20-21, Dec. 13, 2012.)

He stated that a second unknown male

officer came over, and together the two officers picked the
plaintiff up and either slammed or dropped him to the ground.
Defs.’ SOF at ¶ 108; Pl.’s SOF at ¶ 108.)

(See

The plaintiff testified

that it was Officer Raniere who picked him up and slammed him to
the ground.

(See Ayala Dep. 489:19-490:4.)

He further testified

he was never told that it was either of the defendants who slammed
him.

(See id. at 490:5-8.)
Gsell testified that once the plaintiff was on the ground, the

two unknown officers attempted to handcuff him; “one of them had
his knee directly in the back of his neck. . . .

And the other

officer was trying to get his arms and trying to get him
handcuffed.”

(See Defs.’ SOF at ¶ 119; Pl.’s SOF at ¶ 119; Gsell

Dep. 86:1-7.)

Gsell acknowledged both that he did not have any

knowledge of the level of tension the officers were experiencing as
they were pulling his arms back, and that he did not recall how the
plaintiff was handcuffed.

(See Gsell Dep. 88:22-89:1, 161:2-5.)

Gsell stated that the plaintiff may have been having a seizure at
some point during the arrest.

(See Gsell Dep. 149:2-6.)

The plaintiff was charged with disorderly conduct, resisting
arrest, and possession of a controlled dangerous substance under 50
11

grams.

(See Defs.’ SOF at ¶ 58; Pl.’s SOF at ¶ 58.)

The plaintiff

testified that after he was charged, his brother-in-law, Glenn
Marton, picked him up from the police station and took him to
Marton’s house.

(See Defs.’ SOF at ¶ 70; Pl.’s SOF at ¶ 70.)

He

claims that when he awoke the next day, he felt soreness in his
head, face, and back, and his tongue was chewed up.
SOF at ¶ 72; Pl.’s SOF at ¶ 72.)

(See Defs.’

The plaintiff proceeded to walk

two miles to Somerset Medical Center, where he was diagnosed with a
back strain, abrasions, and bruising.
Pl.’s SOF at ¶¶ 72-74.)

(See Defs.’ SOF at ¶¶ 72-74;

The plaintiff did not break any bones,

receive any stitches, undergo any surgery, experience any
dislocations, receive any treatment for his tongue, or sustain a
concussion as a result of his arrest.

(See Defs.’ SOF at ¶¶ 74,

76; Pl.’s SOF at ¶¶ 74, 76.)
III. ANALYSIS
Section 1983 provides a private cause of action against any
person who, acting under color of state law, deprives another of
rights, privileges, or immunities secured by the Constitution or
laws of the United States.

The statute, in and of itself, is not a

source of substantive rights, but provides “a method for
vindicating federal rights elsewhere conferred.”

See Graham v.

Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks
omitted).

For a Section 1983 claim to survive a motion for summary

judgment, there must be a genuine issue of material fact as to
12

whether the defendant (1) acted under color of state law, and (2)
deprived the plaintiff of a federal right.

See Groman v. Twp. Of

Manalapan, 47 F.3d 628, 633 (3d Cir. 1995).
“The color of state law element is a threshold issue; there is
no liability under [Section] 1983 for those not acting under color
of law.”

Id. at 638.

There is no dispute here that the defendants

acted under the color of state law.
Once it has been established that the defendants acted under
color of state law, the Court must identify the federal right the
defendants allegedly violated.

See Groman, 47 F.3d at 633.

As

discussed in more detail below, the Court finds that the plaintiff
has not sufficiently demonstrated that the defendants violated any
of his constitutional rights.
under Section 1983.

Thus they cannot be held liable

See Reyes v. City of Trenton, No. 05-1882,

2007 WL 1038482, at *3 (D.N.J. Mar. 30, 2007).
A.

The Plaintiff’s Excessive Force Claim

The plaintiff claims that the defendants violated his
constitutional rights by subjecting him to excessive force during
the course of the August 1, 2007 arrest.
Pl. Cause of Action List.)

(See generally Compl.;

The defendants argue that (1) the

plaintiff does not assert any allegations of excessive force
against the defendants, (2) the record is devoid of any competent
evidence establishing that the defendants used excessive force, and
(3) even if the Court finds that the defendants used excessive
13

force, they are entitled to qualified immunity.
11-24.)

(See Defs.’ Br. at

The plaintiff’s excessive force claim fails here because

the plaintiff has not shown that the defendants violated a
constitutional right in effecting his arrest.
Claims of excessive force by a police officer are evaluated
under the Fourth Amendment’s “objective reasonableness” standard.
See Brosseau v. Haugen, 543 U.S. 194, 197 (2004); see also Graham
490 U.S. at 397 (“As in other Fourth Amendment contexts, however,
the ‘reasonableness’ inquiry in an excessive force case is an
objective one: the question is whether the officers’ actions are
‘objectively reasonable’ in light of the facts and circumstances
confronting them, without regard to their underlying intent or
motivation.”).

In Graham, the Supreme Court of the United States

expounded on the reasonableness inquiry, stating that it “requires
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.”

See id. at 396.

The Third Circuit

Court of Appeals has noted other relevant factors including “the
duration of the action, whether the action takes place in the
context of effecting an arrest, the possibility that the suspect
may be armed, and the number of persons with whom the police
officers must contend at one time.”
14

See Sharrar v. Felsing, 128

F.3d 810, 822 (3d Cir. 1997), abrogated on other grounds, Curley v.
Klem, 499 F.3d 199 (3d Cir. 2007).
When weighing these factors, courts should evaluate the
officers’ conduct from the officers’ vantage point at the time of
the incident.

See Graham, 490 U.S. at 396.

The reasonableness of

a particular use of force therefore
must be judged from the perspective of a reasonable
officer on the scene, rather than with the 20/20 vision
of hindsight. . . . Not every push or shove, even if it
may later seem unnecessary in the peace of a judge’s
chambers, violates the Fourth Amendment. The calculus
of reasonableness must embody allowance for the fact
that police officers are often forced to make splitsecond judgments - in circumstances that are tense,
uncertain, and rapidly evolving - about the amount of
force that is necessary in a particular situation.
See id. at 396-97 (internal citations and quotation marks omitted).
The plaintiff’s excessive force claim is based exclusively on
the testimony of the eyewitnesses, as the plaintiff himself has no
independent recollection of the arrest.
Pl.’s SOF at ¶ 83; Ayala Dep. 489:4-17.)

(See Defs.’ SOF at ¶ 83;
While the plaintiff

concedes that it was Officer Raniere, and not either of the
defendants, who allegedly picked him up and slammed him on the
ground, the plaintiff asserts that Sergeant McCormick, Officer
Fisher, and Officer Raniere restrained him in such a manner that
caused numerous cuts and bruises across his body.
at 8; Ayala Dep. 489:19-490:8.)

(See Opp’n Br.

The plaintiff further argues that

because his movements were involuntary and caused by a seizure
15

rather than resisting arrest, “[p]inning [him] to the ground and
restricting his movement was not a reasonable response to his
behavior.”

(See Opp’n Br. at 10.)

Contrary to the plaintiff’s assertions, the evidence in the
record does not substantiate his contention that the defendants
violated his constitutional rights.

It is undisputed that the

plaintiff suffered at least some injuries from the arrest, however,
there is insufficient evidence to support the plaintiff’s
contention that his injuries were caused by excessive force
perpetrated by the defendants.

Plaintiff testified that (1) his

claim of excessive force against the defendants is based
exclusively on the testimony of the eyewitnesses, and (2) Sergeant
McCormick, Officer Fisher, and Officer Raniere restrained him in
such a manner that caused numerous cuts and bruises across his
body.

(See Opp’n Br. at 8; Ayala Dep. 489:19-490:8.)

Yet, neither

of the eyewitnesses positively identified either of the defendants
as the officers who restrained him.

While Gsell’s testimony is

clear that he knew both of the defendants, not only did Gsell say
that it was two unknown male officers that slammed the plaintiff to
the ground, but he also did not identify the defendants as the
officers who were applying the compliance holds when the plaintiff
was on the ground.

(See Defs.’ SOF at ¶¶ 107, 119; Pl.’s SOF at ¶¶

107, 119; Gsell Dep. 86:1-7.)

16

While this, in and of itself, may not be enough of a
deficiency for the Court to grant the Motion, the Court notes that
Gsell’s testimony is riddled with uncertainty.

Even the plaintiff

concedes that “Gsell’s testimony may seem to be inconclusive.”
(See Opp’n Br. at 9.)

See generally Hennings v. Twp. of

Blairstown, No. 08-3735, 2010 WL 2179507, at *7-8 (D.N.J. May 28,
2010) (finding that eyewitness testimony was “riddled with
uncertainty” regarding whether plaintiff was pushed by officer
during arrest, and thus plaintiff could not make out excessive
force claim).
The plaintiff moreover does not identify which injuries were
sustained as a result of the arrest and which were sustained as a
result of the alleged seizure.

The plaintiff’s testimony itself

discloses that the alleged seizure was the source of many of his
injuries:
Q.
. . . . Earlier you noted that you were in pain
when you woke up in the police station?
A.

Um-hum.

Q.
Do you recall what hurt specifically, which parts
of your body, if anywhere?
A.

My face, my back, my tongue, my head.

. . . .
Q.

And you said your tongue hurt?

A.
My tongue, during the seizure, the body jerks and
my tongue was bitten pretty bad.
17

Q.
Would you describe the pain in your face [as]
muscle pain from clenching your jaw?
A.
My tongue, just lumps and bumps on my head and
bruises and scratches on my face.
Q.
What about the rest of your body, were you hurting
anywhere else?
A.

Yes, I was.

Q.

Where?

A.
My back was hurting. I had indentations on my
wrist from being handcuffed.
Q.

Okay.

Where else?

A.
I was sore all over. During a seizure, your body
goes through involuntary muscle spasms, so, my legs, my
back.
(Ayala Dep. 468:10-469:24.)

The plaintiff also does not identify

which injuries were sustained as a result of Officer Raniere
allegedly slamming or dropping the plaintiff, and which injuries
were sustained as a result of the defendants’ act of restraining
the plaintiff.4

Such uncertainty calls into question which of the

plaintiff’s injuries were solely the result of the defendants’
conduct.

4

The plaintiff does argue that he sustained “numerous cuts and
bruises across his body” from being restrained, but he states that
it was not only the defendants that restrained him but also
nonparty Officer Raniere. (See Opp’n Br. at 8.)
18

The Court has nevertheless considered the reasonableness of
the level of force the defendants used to arrest the plaintiff and
finds that such force was objectively reasonable under the
circumstances.

The defendants responded to a report of a man

acting in a disorderly manner, and when they arrived on the scene,
they witnessed a muscular man blocking the entrance of an ice cream
parlor.
17.)5

(See Defs.’ SOF at ¶¶ 5, 15, 17; Pl.’s SOF at ¶¶ 5, 15,

The defendants repeatedly instructed the plaintiff to move

away from the entrance of the ice cream parlor, so as not to
disrupt patrons.

(See e.g., Defs.’ SOF at ¶¶ 27-29.)

When Officer

Fisher attempted to assist the plaintiff, the plaintiff pulled away
from Officer Fisher’s grasp in what Sergeant McCormick described as
a willful and violent manner.

(See id. at ¶ 36.)

At that point,

Sergeant McCormick believed that the plaintiff was going to start
fighting the officers “with everything he had.”

(See id. at ¶ 37.)

Officer Fisher then attempted to arrest the plaintiff, but the
plaintiff began moving in a fashion that caused the officers and at
least one eyewitness – Candace Bauer - to believe he was resisting
arrest.

(See McCormick Dep. 60:8-13; Fisher Dep. 39:10-12; dkt.

entry no. 84-3, Certification of Richard H. Bauch, Esq., Ex. I,
Raniere Dep. 26:19-27:10, May 20, 2013; Aff. of Candace Bauer at ¶¶
10-12.)
5

The plaintiff himself described his actions prior to the
officers’ arrival as being a “public outburst.” (See Opp’n Br. at
1.)
19

The defendants testified that they (1) are trained to
recognize an individual who is experiencing a seizure, (2) know the
characteristics an individual experiencing a seizure would exhibit,
and (3) have witnessed more than ten people in the midst of a
seizure during their tenure as police officers.
Dep. 20:3-21:25; Fisher Dep. 19:21-21:16.)

(See McCormick

The defendants further

testified that even after learning that the plaintiff suffers from
a seizure disorder – which they learned after the arrest - there
was nothing about the plaintiff’s demeanor during the encounter in
front of the ice cream parlor that led them to think that he was
having a seizure at that time.
Dep. 47:25-48:5.)

(See McCormick Dep. 50:1-7; Fisher

Bauer also did not believe that the plaintiff

was suffering from a seizure.

(See Aff. of Candace Bauer at ¶ 13.)

Given that the defendants were trained to recognize an individual
who is experiencing a seizure, have seen numerous seizures in the
past, did not know the plaintiff had a seizure disorder, and did
not think that the plaintiff’s behavior was consistent with that of
an individual experiencing a seizure, it was not unreasonable for
them to believe that the plaintiff was resisting arrest rather than
having a seizure.

As such, it was objectively reasonable for the

defendants to use at least some level of force to arrest the
plaintiff.
The considerations set forth in Graham and Sharrar suggest
that the defendants also acted reasonably with regard to the amount
20

of force used under the circumstances.

Weighing in favor of the

plaintiff is the fact that the crimes at issue were not
particularly severe and the officers did not need to contend with a
number of individuals at one time.

See Graham, 490 U.S. at 396;

Sharrar, 128 F.3d at 822.
These considerations, however, are outweighed by several
factors that favor the defendants.

The defendants’ use of force

took place in the context of effecting an arrest, and the
defendants perceived the plaintiff to be actively resisting arrest.
See id.

Although the plaintiff argues - albeit by deferring to

eyewitness testimony – that the officers violently tugged at his
arms in order to force them behind his back to apply handcuffs and
that Sergeant McCormick pinned the plaintiff down with his knee,
the plaintiff has not offered any evidence that the defendants’
restraint tactics went beyond the compliance holds they learned in
their police training.

The officers also believed that the

plaintiff, because of his actions and muscular physique, posed an
immediate threat to their safety and to the safety of the patrons
witnessing the confrontation.

See Graham, 490 U.S. at 396.

The

officers moreover could not rule out the possibility that the
plaintiff was armed, particularly in light of the fact that he had
not yet been searched, and he was keeping his hands underneath him.
Sharrar, 128 F.3d at 822.

The defendants thus have demonstrated

that their decision to use sufficient force to arrest the plaintiff
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- including the use of various compliance holds - was objectively
reasonable in light of the facts and circumstances they confronted.
The Court accordingly will grant summary judgment in favor of the
defendants as to the plaintiff’s excessive force claim.
B.

The Plaintiff’s Denial of Medical Care Claim

The plaintiff claims that the defendants violated his
constitutional rights by denying him medical care immediately
following the August 1, 2007 arrest.
Cause of Action List.)

(See generally Compl.; Pl.

“Failure to provide medical care to a

person in custody can rise to the level of a constitutional
violation under [Section] 1983 only if that failure rises to the
level of deliberate indifference to that person’s serious medical
needs.”

Groman, 47 F.3d at 637.

“This standard is in effect a

two-pronged test requiring that plaintiff prove: (1) that his
medical needs were objectively serious and (2) that defendant
exhibited deliberate indifference to those needs.”

Mantz v. Chain,

239 F.Supp.2d 486, 504 (D.N.J. 2002) (internal quotation marks
omitted).
The plaintiff has not proffered sufficient evidence to prove
that his medical needs were objectively serious.

As an initial

matter, the plaintiff had the opportunity to go to the hospital the
same day he was arrested.

Yet, instead of immediately going to the

hospital when he was released from the police station, the
plaintiff went to his brother-in-law’s home and went to bed.
22

(See

Defs.’ SOF at ¶¶ 70-71; Pl.’s SOF at ¶¶ 70-71.)

The plaintiff did

not seek out any medication or treatment before he went to bed.
(See Ayala Dep. 461:2-9.)

It was not until the plaintiff woke up

the next day feeling sore that he decided to go to the hospital.
(See Defs.’ SOF at ¶ 72; Pl.’s SOF at ¶ 72.)

The plaintiff walked

two miles to the hospital, stopping at his sister’s work along the
way.

(See Ayala Dep. 462:21-23, 463:9-25, 464:18-20.)

The

plaintiff also testified that he may have stopped on the way to the
hospital to purchase a cup of coffee.

(See Ayala Dep. 464:9-12.)

Once at the hospital, the plaintiff was only diagnosed with a
back strain, abrasions, and bruising.
Pl.’s SOF at ¶¶ 72-74.)

(See Defs.’ SOF at ¶¶ 72-74;

The plaintiff did not break any bones,

receive any stitches, undergo any surgery, experience any
dislocations, receive any treatment for his tongue, or sustain a
concussion as a result of his arrest.
76; Pl.’s SOF at ¶¶ 74, 76.)

(See Defs.’ SOF at ¶¶ 74,

Considering these facts, the Court

finds that the plaintiff has not established that his medical needs
were objectively serious.
Given that the plaintiff cannot establish on the record before
the Court that his medical needs were objectively serious, the
Court need not proceed to the second inquiry under the deliberate
indifference analysis.

The Court accordingly will grant summary

judgment in favor of the defendants as to the plaintiff’s denial of
medical care claim.
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IV.

THE FICTITIOUS DEFENDANTS
The parties were earlier ordered to complete fact discovery in

the action by March 29, 2013.
Scheduling Order.)

(See dkt. entry no. 76, 12-14-12

That deadline passed twelve months ago.

The

plaintiff has nonetheless failed to identify the fictitious
defendants.
“The case law is clear that fictitious parties must eventually
be dismissed, if discovery yields no identities.”

Hindes v. FDIC,

137 F.3d 148, 155 (3d Cir. 1998) (internal quotation marks
omitted).

Because the plaintiff has failed to name the fictitious

defendants, the Court will dismiss the claims asserted against
those defendants from the action.
V.

CONCLUSION
The Court, for good cause appearing: (1) will dismiss the

claims asserted against the fictitious defendants from the action;
and (2) will grant the motion for summary judgment.

The Court will

issue an appropriate order and judgment.

s/ Mary L. Cooper
MARY L. COOPER
United States District Judge
Dated: March 28, 2014

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