NIBLACK v. DETECTIVE ANTHONY MURRAY et al

Filing 141

MEMORANDUM OPINION. Signed by Judge Michael A. Shipp on 7/29/2016. (km)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

STANLEY L. NIBLACK,
Civil Action No. 12-6910 (MAS) (TJB)
Plaintiff,

v.

MEMORANDUM OPINION

DETECTIVE ANTHONY MURRAY,
et al.,
Defendants.

SIDPP, District Judge
Pro se Plaintiff Stanley L. Niblack ("Plaintiff') filed the instant Complaint pursuant to 42
U.S.C. § 1983, alleging that, among other things, certain police-officer defendants in Bradley
Beach, New Jersey ("Defendants"), used excessive force_ or allowed excessive force to be used
when arresting Plaintiff. (ECF No. 1.) The Court previously dismissed the denial of medical
services and supervisory claims in the Complaint and dismissed Defendants Borough of Bradley
Beach, Mayor Julie Schreck, and Chief Leonard Guida from the case. (Order, Aug. 14, 2013, ECF
No. 4.) Presently before the Court is Defendants' summary judgment motion, which seeks final
resolution on all claims against them ("Motion"). (ECF No. 127.) The Court has carefully
considered the parties' submissions and decides the matter without oral argument pursuant to Local
Civil Rule 78.1. For the reasons stated below, the Court denies the Motion.

I.

BACKGROUND
For the purposes of this Opinion, the Court views all facts in the light most favorable to

Plaintiff, the non-moving party, and recites only the relevant facts herein. Unless otherwise noted,

the recited facts are undisputed. On March 8, 2012, Plaintiff went to the municipal courthouse
building in Bradley Beach, New Jersey, for unspecified reasons. (Pl. 's Statement of Facts ("SOF")

ir

18, ECF No. 132.) Upon arriving, Plaintiff proceeded through the security checkpoint, and

emptied the contents of his pockets. (Defs.' SOF if 16, ECF No. 127.) Among the contents of his
pockets was a single small, white packet. (Id.
contained heroin. (Id.

ir 21.)

ir 18.)

Defendants suspected that the white packet

Plaintiff denies that the package contained heroin and claims that it

may have been a napkin or tissue. (Pl.'s SOF irir 20-21.) Regardless, after retrieving his items,
Plaintiff proceeded to exit the courthouse after having just arrived. (Id.

ir 18.)

Pl~intiff asserts

that

he left because he had forgotten some documents in his car and was attempting to retrieve them.
(Id.) Defendants assert that they grabbed Plaintiff as he attempted to run away. (Defs.' SOF ir 23.)

What happened next is heavily disputed by the parties. 1 Plaintiff avers that two officers
approached him from behind, knocked him to the ground ·face-first, and started kicking and

1

Defendants argue that because Plaintiff does not explicitly refute every detail of their statement
of facts, all facts not addressed by Plaintiff must be accepted as uncontested. (Defs.' Reply Br. 1,
ECF No. 135.) The Court construes Defendants' argument as stating that Plaintiff has failed to
comply with the requirement, under Local Civil Rule 56.1, that a party opposing a summary
judgment motion shall furnish "a responsive statement of material facts, addressing each paragraph
of the movant's statement [of material facts], indicating agreement or disagreement." L. Civ. R.
56.l(a). However, a court is not required to construe Rule 56.1 so narrowly; especially when the
plaintiff is prose. See Sumner v. Schreck, No. 13-1840, 2015 WL 5646528, at *3 n.2 (D.N.J. Sept.
24, 2015) ("Plaintiffs opposition papers do not include a separate statement of material facts. The
Court is inclined to interpret this rule liberally, however, as [p]laintiff ... is appearingpro se[.]");
see also Obarski v. United Recovery Sys., LP, No. 12-7622, 2015 WL 179402, at *1 n.2 (D.N.J.
Jan. 13, 2015) ("Though [p]laintiff failed to address each of Defendant's material facts in
[p]laintiffs [Statement of Undisputed Facts], the [c]ourt liberally construes documents filed by
[p]laintiff in light of his pro se status."). Although Plaintiff may not have complied with the
technical requirements of Rule 56.1, it is obvious to the Court that the parties clearly dispute the
facts of this case. Furthermore, Plaintiff substantiates his allegations in his deposition testimony
(see Dep. of Stanley Niblack 129:16-147:10, Oct. 16, 2015, ECF No. 127-1at31), even ifhe does
not refer to it in his brief, which this Court will construe liberally. See Pratt v. Port Auth. ofN. Y.
& N.J., 563 F. App'x 132, 134 (3d Cir. 2014) ("[B]ecause [the plaintiff] is proceeding prose, we
will construe his brieflibetally."); see also Marcinek v. Comm 'r, 467 F. App'x 153, 154 (3d Cir.
2

punching him. (PL' s SOF il 19.) Plaintiff further avers that other officers joined in on the assault
and repeatedly struck him in the chest, abdomen, arms, and legs. (Id.

il 23.)

Plaintiff also avers

that other officers watched while he was assaulted and made no attempt to stop the assault. (Id.

if 26.)

Defendants dispute this version of the facts and assert that Plaintiff resisted arrest by placing

his hands underneath his body and refusing to be handcuffed. (Defs.' SOF ilil 26-27.) As such,
Defendants assert that some force was necessary to effectuate the arrest. (Id.

ifil 28-30.)

Plaintiff

avers that he was n?t trying to resist arrest, but was merely using his hands to shield himself from
the continuing assault by Defendants. (PL 's SOF

il 34.)

Although the parties dispute the types

and the amount of force used on Plaintiff, there is no dispute that Plaintiff suffered physical
injuries, in the form of an abrasion under his left eye, and multiple cuts, scratches, and bruises to
both legs. (Defs.' SOF il 42.)

II.

STANDARD OF REVIEW
Summary judgment is appropriate where the Court is satisfied that "there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter oflaw." Fed. R.
Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A factual dispute is genuine
only if there is "a sufficient evidentiary basis on which a reasonable jury could find for the nonmoving party," and it is material only if it has the ability to "affect the outcome of the suit under
governing law." Kaucher v. Cty. of Bucks, 455 F.3d 418, 423 (3d Cir. 2006); see also Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Disputes over irrelevant or unnecessary facts

will not preclude a grant of summary judgment. See Anderson, 477 U.S. at 248. "[I]n considering
a motion for summary judgment, a district court may not make credibility determinations or engage

2012) (holding that courts are ''under an obligation to liberally construe the submissions of a pro
se litigant").
3

in any weighing of the evidence; instead, the non-moving party's evidence is to be believed, and
all justifiable inferences are to be drawn in his favor." Montone v. City ofJersey City, 709 F.3d
181, 191 (3d Cir. 2013) (quoting Marino v. Indus. Crafting Co., 358 F.3d 241, 247 (3d Cir. 2004));

see Anderson, 477 U.S. at 255; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986); Curley v. Klem, 298 F.3d 271, 276-77 (3d Cir. 2002).
The burden of establishing that no "genuine dispute" exists is on the party moving for
summary judgment. Celotex, 4 77 U.S. at 330. "A nonmoving party has created a genuine [dispute]
of material fact if it has provided sufficient evidence to allow a jury to find in its favor at trial."

Gleason v. Norwest Mortg., Inc., 243 F.3d 130, 138 (3d Cir. 2001), abrogated on other grounds
by Ray Haluch Gravel Co. v. Cent. Pension Fund of Int 'l Union of Operating Eng 'rs &
Participating Eng'rs, 134 S. Ct. 773 (2014). The non-moving party must present "more than a
scintilla of evidence showing that there is a genuine [dispute] for trial." Woloszyn v. Cty. of

Lawrence, 396 F .3d 314, 319 (3d Cir. 2005). To do so, the non-moving party must "go beyond
the pleadings and by [his] own affidavits, or by the depositions, answers to interrogatories, and
admissions on file, designate specific facts showing that there is a genuine [dispute] for trial."

Celotex, 477 U.S. at 324; see also Matsushita, 475 U.S. at 586; Guidotti v. Legal Helpers Debt
Resolution, L.L.C., 716 F.3d 764, 773 (3d Cir. 2013). In deciding the merits of a party's motion
for summary judgment, the court's role is not to evaluate the evidence and decide the truth of the
matter, but to determine whether there is a genuine dispute for trial. Anderson, 477 U.S. at 249.
Credibility determinations are the province of the factfinder. Vento v. Dir. of V.I. Bureau of

Internal Revenue, 715 F.3d 455, 477 (3d Cir. 2013).
There can be "no genuine [dispute] as to any material fact," however, if a party fails "to
make a showing sufficient to establish the existence of an element essential to that party's case,

4

and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. "[A]
complete failure of proof concerning an essential element of the nonmoving party's case
necessarily renders all other facts immaterial." Id. at 323; see Brightwell v. Lehman, 637 F.3d 187,
194 (3d Cir. 2011 ). While courts must hold pro se pleadings to "less stringent standards than
formal pleadings drafted by lawyers," Erickson v. Pardus, 551 U.S. 89, 94 (2007), at summary
judgment, a pro se plaintiff is not exempt from his burden of providing some affirmative evidence,
i.e. not just mere allegations, to establish a prima facie case, and to show that there is a genuine
dispute for trial. See Barnett v. NJ. Transit Corp., 573 F. App'x 239, 243 (3d Cir. 2014) (holding
that pro se plaintiff was still "required to designate specific facts by use of affidavits, depositions,
admissions, or answers to interrogatories ... sufficient to convince a reasonable fact finder to find
all the elements of [her] prima facie case"); see also Mitchell v. Gershen, 466 F. App'x 84, 87 (3d
Cir. 2011) (upholding a district court's grant of summary judgment against a prose plaintiff for
his failure to submit expert testimony in a denial of medical services suit); Siluk v. Beard, 395 F.
App'x 817, 820 (3d Cir. 2010) ("[T]he right of self-representation does not exempt a party from
compliance with relevant rules of procedural law.").

III.

DISCUSSION
A.

Qualified Immunity

Defendants argue that summary judgment should be granted in their favor on all claims
against them because they are entitled to qualified immunity.

"Qualified immunity shields

government officials from civil damages liability unless the official violated a statutory or
constitutional right that was clearly established at the time of the challenged conduct." Taylor v.

Barkes, 135 S. Ct. 2042, 2044 (2015) (quoting Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012)).
To determine whether a defendant is entitled to qualified immunity, the Court must decide:

5

(1) "whether the facts that a plaintiff has alleged ... or shown ... make out a violation of a
constitutional right," and (2) ''whether the right at issue was 'clearly established' at the time of
defendant's alleged misconduct." Pearson v. Callahan, 555 U.S. 223, 232 (2009) (citation
omitted). "To be clearly established, a right must be sufficiently clear that every reasonable official
would have understood that what he is doing violates that right." Taylor, 135 S. Ct. at 2044
(citation omitted). However, for a right to be clearly established, the doctrine does not "require a
case directly on point, but existing precedent must have placed the statutory or constitutional
question beyond debate." Id. (citation omitted).
Here, Defendants' argument fails on both prongs. As to the first prong of the qualified
immunity analysis, Plaintiff has sufficiently made out a violation of a constitutional right. 2 "A
claim that law-enforcement officers used excessive force to effect a seizure is governed by. the
Fourth Amendment's 'reasonableness' standard." Plumhoff v. Rickard, 134 S. Ct. 2012, 2020
(2014) (citations omitted). To determine whether an officer's actions were objectively reasonable,
the Court must balance the "nature and quality of the intrusion on the individual's Fourth
Amendment interests against the countervailing governmental interests at stake." Santini v.
. Fuentes, 795 F.3d 410, 417 (3d Cir. 2015) (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)).

While this inquiry is highly individualized and fact specific, the
Supreme Court [in Graham] has provided three factors to guide [the
Court] through it: (1) the severity of the crime at issue, (2) whether
the suspect poses an imminent threat to the safety of the police or
others in the vicinity, and (3) whether the suspect attempts to resist
arrest or flee the scene.
Id. Additional factors may also be relevant to the reasonableness analysis, such as:

2

Because Defendants' assertion of qualified immunity on the failure to intervene claims hinges
entirely on their argument that there was no excessive force (see Defs.' Moving Br. 14, ECF No.
127), the Court's analysis of the excessive force claim is dispositive of both the excessive force
claim and the failure to intervene claim.
6

the possibility that the persons subject to the police action are
themselves violent or dangerous, 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.
Id. (quoting Sharrar v. Fe/sing, 123 F.3d 810, 822 (3d Cir. 1997)). In sum, courts employ a

''totality of the circumstances" approach in evaluating objective reasonableness. Plumhoff, 134 S.
Ct. at 2020; see Santini, 795 F .3d at 417.
Here, genuine disputes of material fact remain as to whether Defendants' use of force was
objectively reasonable. To begin, the parties do not dispute that in effectuating Plaintiffs arrest
force was in fact used; and that the use of force caused Plaintiff physical injuries. The parties do,
however, dispute the specific types of force used and whether the use of force was objectively
reasonable. Looking to the Graham factors, evidence shows that Plaintiffs crime-suspected
possession of a single small package of heroin-.was not particularly severe. Additionally, there
did not appear to be any imminent threat to the safety of the police or others in the vicinityPlaintiff was, at best, seeking to flee the courthouse, and there was no evidence that he was in
possession of a weapon of any kind. Assessing the last Graham factor, the parties dispute whether
Plaintiff was attempting to flee; taking Plaintiffs version of the facts as true, Plaintiff asserts that
he was merely trying to return to his car to retrieve some documents. At the summary judgment
stage, this Court does not make its own determination regarding the truthfulness of the evidence
presented. Rather, the proper analysis is whether a reasonable jury could find for Plaintiff, given
his version of the facts. For the first prong of the qualified immunity analysis, the Court finds that
a reasonable jury could find for Plaintiff. See Santini, 795 F.3d at 420 (reversing a district court's
grant of summary judgment and finding that a reasonable jury could find that the Graham factors
weighed in plaintiffs favor, given plaintiffs averment of the facts).

7

As to the second prong of the qualified immunity analysis, Defendants make the untenable
argument that because probable cause existed to arrest Plaintiff, they are entitled to summary
judgment. (See Defs.' Reply Br. 15 ("Since the officers acted with probable cause, they are entitled
to summary judgment pursuant to the doctrine of qualified immunity.").) However, current
established law is clear that even if a police officer has irrefutable probable cause to arrest an
individual, the force used to effectuate that arrest must still be objectively reasonable. See Graham,
490 U.S. at 394 (holding that an excessive force claim arising in the context of an arrest is
actionable "notwithstanding the existence of probable cause to arrest"); Tennessee v. Garner, 4 71
U.S. 1, 8 (1985) ("[I]t is plain that reasonableness depends on not only when a seizure is made,
but also how it is carried out."); Fitzgerald v. Santoro, 707 F.3d 725, 733 (7th Cir. 2013) ("[The
plaintiff] also claims that the seizure, even
through the use of excessive force.

if supported by probable

cause, was accomplished

If true, this too would be a violation of the Fourth

Amendment.") (emphasis added); Raiche v. Pzetroski, 623 F.3d 30, 38 (1st Cir. 2010) (holding
that a finding of probable cause to arrest is not inconsistent with a finding of excessive force);
Reese v. Herbert, 527 F.3d 1253, 1272 (11th Cir. 2008) (applying the objective reasonable standard

to an excessive force claim "[ w]here probable cause or arguable probable cause to arrest existed");
Bornstad v. Honey Brook Twp., 211 F. App'x 118, 123 (3d Cir. 2007) ("Although the defendant

officers had probable cause for [the plaintiffs] arrest, 'the fact that the defendants had probable
cause to arrest . . . does not mean that they could use any amount of force in that process."')
(quoting Estate of Smith v. Marasco, 318 F.3d 497, 515 (3d Cir. 2003)); Craighead v. Lee, 399
F.3d 954, 961 (8th Cir. 2005) ("Notwithstanding probable cause to seize a suspect, an officer may
not always do so by killing him."); Beier v. City ofLewiston, 354 F.3d 1058, 1064 (9th Cir. 2004)
("Because the excessive force and false arrest factual inquiries are distinct, establishing a lack of

8

probable cause to make an arrest does not establish an excessive force claim, and vice-versa.");

Monday v. Oullette, 118 F.3d 1099, 1104 (6th Cir. 1997) ("[E]ven when ap officer has probable
cause to seize an individual, the officer must employ a reasonable amount of force when effecting
the seizure."). Here, the Court finds it is clearly established that probable cause to arrest is not a
cognizable defense to an excessive force claim. Because Defendants' argument fails both prongs
of the qualified immunity analysis, the Court finds that they are not entitled to qualified immunity.

B.

Identity of Defendants

Defendants also argue that Plaintiffs claims fail because he cannot identify, among the
various Defendants, who actually used excessive force and who actually failed to intervene.
However, case law does not support Defendants' argument that Plaintiff must identify the exact
perpetrators of the constitutional violations. Although the Third Circuit has not ruled on this issue,
a majority of the circuit courts have applied the doctrine ofjoint and several liability and indivisible

'
injury to § 1983 claims. As the Seventh Circuit held in addressing a plaintiffs § 1983 claims,
"[j]oint and several liability is a theory of recovery which requires that the plaintiffs, in an action
alleging tortious or constitutionally repugnant conduct by multiple actors, establish that each
defendant acted in concert to 'produce a single, indivisible injury."' Harper v. Albert, 400 F .3d
1052, 1061-62 (7th Cir. 2005); see Jackson v. City of Pittsburg, 518 F. App'x 518, 520-21 (9th
Cir. 2013) (finding a defendant in a§ 1983 case liable for the entire damages award because his
unconstitutional retaliation was a proximate cause of plaintiffs indivisible injuries); Northington

v. Marin, 102 F.3d 1564, 1569 (10th Cir. 1996) ("Multiple tortfeasors who concurrently cause an
indivisible injury are jointly and severally liable; each can be held liable for the entire injury....
These rules apply in § 1983 actions."); Koster v. Perales, 903 F.2d 131, 139 (2d Cir. 1990)
(upholding the district court's application of joint and several liability in a § 1983 action); Finch

9

v. City of Vernon, 877 F.2d 1497, 1503 (11th Cir. 1989) (finding the municipality defendant jointly
and severally liable for plaintiff's indivisible injury stemming from a First Amendment violation);

Lugar v. Edmondson Oil Co., 639 F.2d 1058, 1065 n.14 (4th Cir. 1981), aff'd in part, rev 'din part
on other grounds, 457 U.S. 922 (1982) (holding that a § 1983 plaintiff "may establish joint and
several liability for indivisible injury against all defendants whose conduct can be shown to have
concurred in causing the ultimate injury"). At least one court irt this district has also applied joint
and several liability to a § 1983 claim. See Carter v. Georgevich, 78 F. Supp. 2d 332, 335-36
(D.N.J. 2000), abrogated by Hector v. Watt, 235 F.3d 154 (3d Cir. 2000). Indeed, since§ 1983
claims are essentially tort claims in nature, City of Monterey v. Del Monte Dunes at Monterey,

Ltd., 526 U.S. 687, 689 (1999) ("There can be no doubt that § 1983 claims sound in tort."), the
Court sees no reason why such fundamental tort principles should not apply to the § 1983 claims
in this case.
Here, although Defendants accuse Plaintiff of obtaining their names from a police report
and not from his own recollection of their involvement, Defendants have not denied that all of
them were present at the scene of Plaintiffs arrest. 3 Given the circumstances of the arrest that
Plaintiff describes, where he was lying face-down on the ground while several officers surrounded
him, it would be impossible for Plaintiff to discern exactly which officer threw which punch, made
which kick, and initiated which shove. It is also unlikely that anyone, even experts, could discern
exactly which of those punches, kicks, and shoves caused each of Plaintiffs physical injuries. It
is enough that all of the Defendants were present at the arrest, and that each had personal

3

Furthermore, record evidence belies Defendants' contention that Plaintiff did not recall who was
involved. During Plaintiffs deposition, he provided a detailed account of the events, including
the names of some of the officers involved. (See, e.g., Dep. of Stanley Niblack 129:16-21 & 137:48.)
10

involvement in the alleged constitutional violations-each of them either participated in the
alleged use of excessive force, or acquiesced in the use of that force. See White v. Bell, No. 100863, 2015 WL 5123984, at *6 (M.D. Tenn. Aug. 31, 2015) (adopting a joint and several liability
instruction for the jury on an excessive force claim, stating that "[i]f two or more persons
perfonned excessive force that may have produced. the plaintiffs injury, but it is impossible to
know which one really did, the two defendants may be jointly liable for that single injury");
Restatement (Third) of Torts§ Cl8 (2000) ("When an injury is indivisible and legally caused by
the tortious conduct of two or more persons, each is jointly and severally liable."). Accordingly,
the Court rejects Defendants' argument and finds that summary judgment is not warranted. 4

4

Defendants also seem to argue that PlaintifP s injuries are inconsistent with his description of the
force applied. (See Defs.' Moving Br. at 13 ("Kicking and punching generally causes red marks
or bruising to the area affected; certainly, if Plaintiffs allegations were true, Plaintiff would have
had marks or bruising consistent with fists or feet, but none were noted on his injured admittance
form.").) Defendants submit no evidence, such as an expert report, showing that the injuries are
in fact inconsistent with Plaintiffs claims of excess force. Furthermore, it is not clear to the Court
why the injuries are inconsistent with Plaintiffs version of the events-to the extent Defendants
argue that the force applied was reasonable because it did not cause serious injury, they cite to no
authority stating that serious injury is a requirement for an excess force claim. But see Wilkins v.
Gaddy, 559 U.S. 34, 34 (2010) (holding that, in a claim of excess force by a prisoner, "the use of
excessive physical force ... may constitute [a constitutional violation] [even] when the [plaintiff]
does not suffer serious injury.") (citation omitted); Pannell v. Miller, 131 F .3d 144 (8th Cir. 1997)
(holding that "lack of serious injury [is] not dispositive" of an excessive force claim); Piper v. City
of Elmira, 12 F. Supp. 3d 577, 589 (W.D.N.Y. 2014) ("[T]he absence of a serious injury is not
dispositive of the [excessive force] claim[.]"); Antoine ex rel. Antoine v. Rucker, No. 03-3738,
2006 WL 1966649, at *10 (D.N.J. July 12, 2006) ("[A]lthough relevant, permanent or serious
injury is neither a requirement nor a dispositive factor in an excessive force claim under§ 1983.").
11

IV.

CONCLUSION
For the reasons set forth above, Defendants' summary judgment motion is DENIED. 5

UNITED STATES DISTRICT JUDGE

~

Dated:

July~ , 2016

5

Because the Court is denying summary judgment, the Court need not address Plaintiffs argument
regarding the need for additional discovery. (See PL 's Opp'n Br. 65, ECF No. 132.)
12