ALCIUS v. CITY OF TRENTON et al

Filing 59

OPINION filed. Signed by Judge Anne E. Thompson on 4/20/2015. (eaj)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JACQUES ALCIUS,
Civ. No. 13-716
Plaintiff,
OPINION
v.
CITY OF TRENTON, et al.,
Defendants.
THOMPSON, U.S.D.J.

This matter comes before the Court upon two Motions for Summary Judgment, one by

the “City of Trenton Defendants” (City of Trenton, City of Trenton Police Department, and City
of Trenton Police Director), and the other by the remaining “individual officer Defendants”
(Zappley, Ponticello, DeHart, Flowers, Wyszynski, Ortiz, Dintale, and Medina). (Doc. Nos. 48,
50). Plaintiff Jacques Alcius opposes. (Doc. No. 54). The Court held oral arguments on the
motions on April 15 and 16 of 2015. (Doc. Nos. 57, 58). For the reasons stated herein, both
Motions for Summary Judgment by Defendants will be granted.
BACKGROUND
This case involves 42 U.S.C. § 1983 claims of excessive force, deliberate indifference to
medical needs, failure to train or supervise, and municipal policy/practice liability arising out of
an October 13, 2010 execution of a search warrant and arrest of Plaintiff in his home by officers
of the Trenton Police Department. Plaintiff alleges that he was unlawfully thrown to the ground
and kicked by officers during the arrest, which caused a pre-existing wound on his left thigh to
re-open. Upon being transported to the Trenton Police Station, Plaintiff claims that his wound
1

was leaking clear fluid, and he asked for medical care from officers but was repeatedly denied.
Plaintiff remained in custody overnight before being transported to the Mercer County
Correctional Facility (“MCC”), which refused to admit him due to his injury. Instead, Plaintiff
was taken to Capital Health System and then subsequently admitted to MCC, where he continued
to request medical treatment because “the oozing, clear liquid leaking from his wound had
drenched his clothing” and “fellow inmates began complaining of the stench emanating from the
Plaintiff’s wound.” (Doc. No. 1 at ¶¶ 23-24). MCC’s medical services changed the dressing on
his leg and gave him antibiotics. When Plaintiff made bail and was released after 10 days, he
immediately sought emergency medical treatment, spent days in the hospital, and underwent
surgeries to treat the open leg wound. On October 19, 2012 Plaintiff filed this action in Mercer
County Superior Court, which was removed to federal court on February 5, 2013. (Doc. No. 1).
DISCUSSION
A. Legal Standard
Summary judgment is appropriate only 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 will “affect the outcome of the suit under the governing
law . . . .” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is “genuine” if
it could lead a “reasonable jury [to] return a verdict for the nonmoving party.” Id. All
reasonable “inferences, doubts, and issues of credibility should be resolved against the moving
party.” Meyer v. Riegel Prods. Corp., 720 F.2d 303, 307 n. 2 (3d Cir. 1983). The movant
“always bears the initial responsibility of informing the district court of the basis for its motion,
and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,’ which it believes demonstrate the

2

absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Then, “when a properly supported motion for summary judgment [has been] made, the adverse
party ‘must set forth specific facts showing that there is a genuine issue for trial.’” Anderson,
477 U.S. at 250. The non-movant’s burden is rigorous: it “must point to concrete evidence in the
record;” mere allegations, conclusions, conjecture, and speculation will not defeat summary
judgment. Orsatte v. N.J. State Police, 71 F.3d 480, 484 (3d Cir. 1995); Jackson v. Danberg,
594 F.3d 210, 227 (3d Cir. 2010).
B. Analysis
Liability under 42 U.S.C. § 1983 cannot be based on respondeat superior; instead every
defendant must have personal involvement in the alleged wrongs. See Barkes v. First Corr.
Med., Inc., 766 F.3d 307, 316 (3d Cir. 2014). In addition to direct participation, “[p]ersonal
involvement can be shown through allegations of personal direction or of actual knowledge and
acquiescence” in the constitutional violation. Rode v. Dellarciprete, 845 F.2d 1195, 1208 (3d
Cir. 1988). For a municipality to be liable under § 1983, the plaintiff must demonstrate that the
constitutional violation was caused by the municipality’s policy or custom. See Natale v.
Camden Cnty. Corr. Facility, 318 F.3d 575, 584 (3d Cir. 2003) (defining policy and custom);
Barkes, 766 F.3d at 316 (failure to train or supervise is a subcategory of policy or practice
liability); Thomas v. Cumberland Cnty., 749 F.3d 217, 222 (3d Cir. 2014) (identifying three
situations where acts of an official are deemed to be the result of a government entity’s policy or
custom such that § 1983 liability attaches to the entity: (1) where an act is an implementation of a
“generally applicable statement of policy;” (2) where an entity’s policymaker violates a federal
law despite the absence of a policy; and (3) where an entity’s policymaker failed to act despite an
obvious need for a policy or an obvious inadequacy of existing practice).

3

Here, at oral arguments on April 15, 2015 Plaintiff conceded that the actual officers who
allegedly kicked Plaintiff have not been identified. Plaintiff readily admitted that all of the
individual officers besides Zappley should be dismissed from the case because discovery
revealed no evidence to support their personal involvement in the alleged assault. However,
even with respect to Zappley, who was the commanding officer at the scene, Plaintiff has not
identified anything in the record sufficient to create a genuine dispute of material fact as to
Zappley’s knowledge of and acquiescence in any alleged kicking. Indeed, Plaintiff’s own
deposition testimony contradicts any personal involvement by Zappley: Plaintiff claims that he
was kicked by the first two officers who entered the home, but Plaintiff admits that Zappley
seems to have entered the house later. (Doc. No. 50, Ex. B at 90–98; Doc. Nos. 57, 58).
Therefore, summary judgment will be granted for all individual officer Defendants.
Furthermore, Plaintiff has failed to identify any widespread policy, practice, custom or
lack thereof that may be the “moving force” behind any constitutional violation. See Thomas,
749 F.3d at 222 (“Liability is imposed when the policy or custom itself violates the Constitution
or when the policy or custom, while not unconstitutional itself, is the moving force behind the
constitutional tort of one of its employees.”) (internal citations omitted). Nor has Plaintiff been
able to attribute any constitutional tort to any “policymaker” of the City of Trenton or the City of
Trenton Police Department. Therefore, summary judgment will be granted for the City of
Trenton Defendants.
CONCLUSION
For the reasons above, both of Defendants’ Motions for Summary Judgment will be
granted. An appropriate Order follows.
/s/ Anne E. Thompson
ANNE E. THOMPSON, U.S.D.J.
4