Bocchino v. City of Atlantic City
Bocchino v. City of Atlantic City
Opinion of the Court
OPINION
In this action, Plaintiff Anthony Bocchi-no (hereinafter, “Plaintiff’) alleges Defendants City of Atlantic City and Atlantic City Police Officers James Miltenberger
It is undisputed that in, the early morning hours of August 12, 2012 Plaintiff was “intoxicated while at The Pool After Dark at Harrah’s Resort” (hereinafter, “The Pool”) in Atlantic City. (Defendants’ Statement of Undisputed Material Facts (hereinafter, “Defs.’ Facts”) [D.I. 28-1], ¶ 1; see also Plaintiffs Response to Defendants’ Statement of Undisputed Material Facts (hereinafter, “Pis.’ Response”) [D.I. 38], If 1.) The parties dispute nearly all other facts related to the incident. Defendants assert that on August 12, 2012 “Officers Miltenberger and Holland were summoned to the rear of [The Pool] in reference to a disorderly male[, Plaintiff,] who was argu
Defendants further claim that Plaintiff was disruptive and yelled obscenities and racial epithets. (Id. at ¶¶ 10(g), ll(i), 13,14, 16, 21;) Defendants maintain Defendant Officer Holland “observed [P]laintiff raise his hands in a combative stance.” (Id. at ¶17.) Defendants assert Defendant “Officer Miltenberger placed his hand on top of [Plaintiffs clenched fists and told [Plaintiff to relax, that he was free to go to any other casino but could not stay at Har-rah’s.” (Id. at ¶28.) Defendants maintain Plaintiff then spit on Officer Miltenberger who in response, “struck [P]laintiff in the face several times to prevent him from spitting in his face again.” (Id. at ¶ 10(i).) According to Defendants “Plaintiff was then taken to the ground where he resisted and was finally placed into handcuffs and transported to the in-house holding cell” within the casino. (Id at ¶ 10(j).)
As it relates to the actions in the . in-house holding cell, Defendants maintain Plaintiff “was very disruptive,” spit blood on the wall, and cursed at the security guards and police officers. (Id. at 1M0(i).) Defendants assert that while Plaintiff was in the in-house holding cell he “refuse[d] repeated lawful orders to remain seated.” (Id. at ¶ 22.) Officer Holland certifies in his interrogatory answers that “[w]hen Plaintiff attempted to, leave the holding area and refused my instructions to sit down, fearing he would harm me, the security officers or himself[,] I used reasonable force to get him to comply.” (Hegarty Certification, Exhibit I. [D.I. 28-3], ¶ 10.) In their summary judgment brief, Defendants describe the contact between Officer Holland and Plaintiff in the following way:
It was not until [P]laintiff left his seat and walked out of the holding room—in direct contravention of the officers’ lawful orders—that Holland was constrained to use physical force to direct him back to his seat. And the force used was minimal; Holland placed his right hand on [P]laintiffs shoulder and-left hand on [P]laintiff s chest to guide him. Holland did not touch [P]laintiff after he was seated until [P]laintiff again, only twenty-two seconds later, stood up and walked toward the door. And Holland again acted reasonably in response: for just two seconds, Holland placed his right hand on the left side of [P]laintiff s neck to guide [P]laintiff back into the seat.”
(Defs.’ Brief [D.I. 28-2], 13-14.)
As it relates to the failure to provide medical care claim, Defendants' maintain that “[t]he in-house nurse was summoned to treat [P]laintiff for bleeding from his mouth.”
In his submission opposing the motion, Plaintiff'relies exclusively on the surveillance video. (See, e.g.; Pl.’s Response [D.I. 38], ¶¶ 10(f)-(k), 13-22,-24-29 (stating, in part, “[v]ideo evidence contradicts”).) There is no dispute that “Plaintiff only has a ‘vague’ memory.- of the evening ‘with many gaps’ ” (Defs.’ Facts [D.I. 28-1], ¶ 3; see also PL’s Response [D.I. 38], ¶ 3), and that Plaintiffs only-information about the events from the night “is from the police report and the surveillance video.” (Defs.’ Facts [D.I. 28-1], ¶5; see also PL’s Response [D.I. 38], ¶ 5.) Plaintiff, citing only to the surveillance video, denies that Plaintiff was disruptive in the holding cell and states “Plaintiff was requesting medical attention.” (PL’s Response [D.I. 38], ¶10(l).) Plaintiff also denies Defendants’ assertion that “Plaintiff was treated, released and transported to the station for processing” (Defs.’ Facts [D.I. 28-1], ¶ 10(m)), and contends that “Plaintiff was treated in Northern New Jersey eight hours after injury.” (PL’s Response [D.I. 38], ¶ 10(m).) Plaintiff also denies, in part, Defendants’ facts related to Plaintiffs medical records and asserts “[t]he medical records indicate other contusions.” (W. at ¶¶ 35-36.)
The parties do not dispute that following the incident Plaintiff was charged with aggravated assault in violation of N.J.S.A. 2C:12-lb(5)(a); resisting arrest in violation of N.J.S.A.. 2C:29-a(3)(a); and throwing bodily fluid at a law enforcement employee in violation of N.J.S.A, 20:12-13. (Defs.’ Facts [D.I. 28-1], ¶¶ 6-8; see also PL’s Response [D.I. 38], ¶¶ 6-8.) Also undisputed is the fact that following the .incident “Officer Miltenberger filed a Use of Force Report indicating that [P]laintiff resisted police officer control and that Officer Miltenber-ger used a compliance hold and his hands/ fists toward [P]laintiff.” (Defs.’ Facts [D.I. 28-1], ¶ 9; see also PL’s Response [D.I. 38], ¶ 9.)
Plaintiff filed this action on January 13, 2014 and alleges generally that he was “without basis or provocation, brutally beat,” “restrained,” “falsely imprisoned,” and “falsely charged [] with aggravated assault” by Defendants (Complaint [D.I. 1], ¶ 8), following his removal from an Atlantic City nightclub “after a non-violent word exchange with a bouncer at the nightclub.” (Id, at ¶¶ 5-6.) Plaintiff asserts that “[a]s a result of the actions of the individually named Officers, [he] has suffered severe emotional trauma as well as physical injury, loss of income and other expenses[.]” (Id. at ¶ 9.) Specifically, Plaintiff alleges that he was subjected to excessive force in violation of his Fourth and Fourteenth Amendment rights (id. at ¶¶ 11-19), he was denied medical care (id. at ¶¶ 20-26), and that Defendant City of Atlantic City engaged in “deliberately indifferent policies, practices, customs, training, and supervision 'in violation of the [F]ourth, [F]ourteenth, ' and [F]irst [Amendments and in violation of 42 U.S.C. § 1981.” (Id. at ¶¶ 27-43.) Plaintiff seeks compensatory and punitive damages, attorneys’ costs and fees, and any “further relief as the Court may deem just, proper, and appropriate.” (M. at ¶ 44.) Defendants deny Plaintiff’s allegations and assert a number of legal defenses. (See generally Answer [D.I.' 4].) Fact discovery concluded on April 30, 2015 (see Amended Scheduling Order [D.I. 20], Mar. 30, 2015), and Defendants timely filed the present motion. (See Amended Scheduling Order [D.I. 26], June 4, 2015; see also Defs.’ Mot. [D.I. 28].)
Defendants argue that “the record lacks any evidence establishing the existence of
“[Sjummary judgment is appropriate where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” Alabama v. North Carolina, 560 U.S. 330, 344, 130 S.Ct. 2295, 176 L.Ed.2d 1070 (2010) (citations and internal quotation marks omitted); see also Fed. R. Civ. P. 56(a). A genuine issue of material fact exists only if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is “material” if it “might affect the outcome of the suit under the governing law[.j” Id. “Factual disputes that are irrelevant or unnecessary will not be counted.” Id.
The moving party bears the initial burden of “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 absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “[Wjith respect to an issue on which the nonmoving party bears the burden of proof[,j .... the burden on the moving party may be discharged by ‘showing’—that is, pointing out to the district court—that there is an absence of evidence to support the nonmoving party’s case.” Id. at 325, 106 S.Ct. 2548. A non-moving party must present more - than “ ‘bare assertions, eonclusory allegations or suspicions’to show the existence of a genuine issue.” McCabe v. Ernst & Young, LLP, 494 F.3d 418, 436-37 (3d Cir. 2007) (quoting Podobnik v. U.S. Postal Serv., 409 F.3d 584, 594 (3d Cir. 2005)); see also Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505. The Court must view the evidence in a light most favorable to the non-moving party and any “justifiable inferences” shall be extended to the non-moving party. Anderson, 477 U.S. at 255, 106 S.Ct. 2505.
Section 1983 states in pertinent part,
[ejvery person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ....
42 U.S.C. § 1983. “To state a claim under § 1983, a plaintiff must allege the violation of a right secured by -the Constitution and laws of the United States, and must show
The -Court turns ■ first to Defendants’ arguments that the record “does not establish” Defendant Officers Miltenberger and Holland used excessive force against Plaintiff and that Defendant Officers Miltenber-ger and Holland are entitled to qualified immunity. (See Brief [D.I. 28-2], 6-17.) The first count of Plaintiffs complaint alleges in part,..that Defendant officers used excessive force in violation of Plaintiffs Fourth and Fourteenth Amendment rights. (See Complaint [D.I. 1], ¶¶ 11-19.) At oral argument, Plaintiffs counsel clarified that Plaintiff complains of two distinct instances of excessive force: (1) Defendant Officer Miltenberger striking Plaintiff prior to Plaintiff being handcuffed; and (2) Defendant Officer Holland pushing Plaintiff while he was handcuffed in the casino in-house holding area.
Claims of excessive force at the time of an arrest are evaluated based on the Fourth Amendment’s prohibition against unreasonable searches and seizures. See Rivas v. City of Passaic, 365 F.3d 181, 189 (3d Cir. 2004) (noting “[t]he Supreme Court has held that all claims of excessive force by police officers, in the context of an arrest, investigatory stop, or other ‘seizure,’ should be analyzed under the Fourth Amendment” (citing Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989))). Claims of excessive force at the time an individual is a pretrial detainee are evaluated based on the Due Process Clause of the Fifth or Fourteenth Amendment. See Kingsley v. Hendrickson, — U.S. -, 135 S.Ct. 2466, 2473, 192 L.Ed.2d 416 (2015) (noting “[w]e have said that ‘the Due Process Clause protects a pretrial detainee from the use of excessive force that amounts to punishment’” (quoting Graham, 490 U.S. at 395 n. 10, 109 S.Ct. 1865)), The Third Circuit has recently noted that the exact point at which. an individual transitions from arrestee to pretrial detainee has not been expressly ruled upon by the Circuit. See Halsey v. Pfeiffer, 750 F.3d 273, 291 (3d Cir. 2014) (noting “[i]n the future ... we might be required to decide precisely when an unlawful seizure ends and [a] due process ... [violation] begins” (alterations in original) (internal quotation marks omitted)). Under Third Circuit law, force used by a police officer “in the police station garage, after [the arrestee] .had been transported from the scene of the initial beating” although, “the closest—both temporally and spatially—to pre-trial detention at the station house ... [was found to have] occurred during the course of [a] defendant’s arrest.” United States v, Johnstone, 107 F.3d 200 (3d Cir. 1997).
Defendants argue that the Fourth Amendment governs Plaintiffs excessive force claims. (See Defs.’ Brief [D.I. 28-2], 6-14.) While Plaintiffs complaint alleges excessive force in violation of both Plain
In determining whether the force used violates the Fourth Amendment, the Court employs an objective standard and “scrutinizes the reasonableness of the challenged conduct.” Carswell v. Borough of Homestead, 381 F.3d 235, 240 (3d Cir. 2004). This standard “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.” Graham v. Connor, 490 U.S. at 396, 109 S.Ct. 1865 (citing Tennessee v. Garner, 471 U.S. 1, 8-9, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985)). Whether a particular use of force is reasonable “must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Id. (citing Terry v. Ohio, 392 U.S. 1, 20-22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). Moreover, “[n]ot every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers ... violates the Fourth Amendment [and] [t]he calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.” Graham, 490 U.S. at 396, 109 S.Ct. 1865 (internal citation and quotation marks omitted).
Additionally, “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate ‘clearly established’ statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). In determining whether qualified immunity applies, the court “decide[s] whether the facts, taken in the light most favorable to the plaintiff, demonstrate a constitutional violation” and “whether the constitutional right in question was clearly established.” Couden v. Duffy, 446 F.3d 483, 492 (3d Cir. 2006). “The relevant, dispositive inquiry in determining, whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). “If the officer’s mistake as to what the law requires is reasonable, the officer is entitled to qualified immunity”, Couden, 446 F.3d at 492. Courts have discretion to determine which prong “of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Pearson v. Callahan, 555 U.S. 223, 226, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). Furthermore, “[although it is important to resolve qualified immunity questions at the earliest possible stages of litigation, the importance of resolving qualified immunity questions early ‘is in tension with the reality that factual disputes often need to be resolved before determining whether defendant’s conduct violated a clearly established constitutional right.’” Phillips v. Cty. of Allegheny, 515 F.3d 224,
Defendants assert that under the circumstances of the present case Defendant Officers Miltenberger and Holland “did not use excessive force against [P]laintiff” (Brief [D.I. 28-2], 6) and that the force used against Plaintiff was reasonable. (Id. at 14.) Defendants maintain that Plaintiff “raised his hands in a combative stance,” that Plaintiff was asked “several times” by Defendant Officer Miltenberger to lower his arms, “[b]ut instead of doing so, [P]laintiff attempted to push Miltenber-ger backwards and charge the bouncers who evicted him from the club” and “spit in Miltenberger’s face.” (Id. at 11.) Defendants contend that “[u]naware if [P]laintiff had any infectious diseases, Miltenberger struck [P]laintiff in the face several times, in rapid succession, in both self-defense and to subdue him.” (Id.) With respect to Defendant Officer Holland, Defendants contend that “[i]t was not until [P]laintiff left his seat and walked out of the holding room—in direct contravention of the officers’ lawful orders—that Holland was constrained to use physical force to direct him back into his seat.” (Id at 13.) Defendants also argue Defendant Officers Miltenber-ger and Holland are entitled to qualified immunity because there was no constitutional violation and the Defendant Officers’ actions “were also objectively reasonable and lawful under the circumstances.” (Id. at 15.) Plaintiff contends “the video in this case directly contradicts [Defendants’ papers and provides compelling evidence, if not proof, of the use of excessive force.” (Pi’s Brief [D.I. 38], 15.) Furthermore, Plaintiff asserts generally, “[b]ased on the standard provided to us [by] [Defendants, the Defendant Police Officers are clearly not qualifiedly immune.” (Id. at 20.)
The Court finds that there remain genuine issues of material fact precluding entry of summary judgment with respect to Plaintiffs excessive force claims against Defendant Officers Miltenberger and Holland. From the surveillance video footage, the Court concludes that a jury could find either Defendant Officer Miltenberger or Defendant Officer Holland or both Defendant Officers used excessive force. See, e.g., Ringgold v. Keller, 608 Fed.Appx. 102, 104 (3d Cir. 2015) (concluding in an excessive force case filed by an inmate against corrections officers, from video footage showing one defendant pull the plaintiff down and one defendant appear to “tackle” the plaintiff “to the ground” as well as one of the defendants “swinging his arm in what may have been a punch” at the plaintiff, that a jury could find either of the defendants or both used excessive force on the plaintiff). As it relates to Officer Miltenberger, the surveillance video shows Plaintiff being pulled from the door of the nightclub and into the casino hallway by two security guards. The video shows the security guards, while holding Plaintiffs arms, walk Plaintiff to an area Defendants describe as “the back of the house” which was separated by a set of doors. (Defs.’ Facts [D.I. 28-1], ¶ 10(c).) Approximately two seconds later, the video shows Defendant Officer', Miltenberger joining the security guards and Plaintiff, and the security guards letting go of Plaintiffs arms, but remaining either directly adjacent to or within arms-length of Plaintiff. The video appears to show the security guards and/or Defendant Officer Milten-berger exchanging words with Plaintiff. While this exchange is occurring, the video shows Defendant Officer Holland entering the area and putting on a pair of black gloves. The surveillance video then shows Defendant Officer Miltenberger holding
The alleged excessive force involving Defendant Officer Holland relates to contact while Plaintiff is in the in-house holding area. The surveillance video shows Plaintiff standing up, taking several steps away from the bench area, and attempting to walk into a hallway area approximately one (1) minute and fifteen (15) seconds after sitting down. As Plaintiff attempts to walk into the hallway, the video shows Defendant Officer Holland placing both of his hands on Plaintiff’s chest and pushing Plaintiff towards the bench and Plaintiff falling backwards towards the bench, sliding off the bench, and hitting his head against the wall. The video then shows Defendant Officer Holland placing both of his hands on Plaintiffs chest and pushing Plaintiff towards the bench while Plaintiff is kneeling on the ground. The video then shows Plaintiff standing up and sitting on the bench. Less than one (1) minute later, the video shows Plaintiff again standing up,. taking several steps away from the bench area, and attempting to walk into the hallway area. The video then shows Defendant Officer Holland placing one hand on Plaintiffs neck and pushing Plaintiff onto the bench. While Plaintiff is sitting, the video then shows Defendant Officer Holland placing his hand on Plaintiff’s neck and pushing Plaintiff against the wall.
The surveillance video is not a complete version of the events giving rise to Plaintiffs excessive force claims because it does not contain audio. Although Defendants maintain that Defendant Officer Milten-berger “struck [P]laintiff in the face several times to prevent him from spitting in his face again” (Defs.’ Facts [D.I. 28-1], ¶ 10(i)) and that while in the in-house holding cell, Plaintiff “refuse[d] repeated lawful orders to remain seated” (Id. at ¶22), in viewing the evidence in the light most favorable to Plaintiff, the Court finds that a reasonable juror could conclude that Plaintiff, who at all times relevant to the alleged excessive force was isolated from
The cases cited by Defendants in support of their motion, Davis v. Twp. of Paulsboro, 421 F.Supp.2d 835 (D.N.J. 2006), Reyes v. Chinnici, 54 Fed.Appx. 44 (3d Cir. 2002), Wardlaw v. Pickett, 1 F.3d 1297 (D.C.Cir. 1993), cert. denied, 512 U.S. 1270, 115 S.Ct. 11, 129 L.Ed.2d 911 (1994), and Winters v. Adams, 254 F.3d 758 (8th Cir. 2001) are distinguishable from the present case. First, and most importantly, the cases relied on by Defendants reflect that there was no video evidénce of the alleged incidents. In Davis, the court concluded, in part, that the plaintiff who “was visibly agitated, acting aggressively and yelling profanities”; “bang[ing] the walls in his house”; and who “shoved” an officer three times “posed an immediate threat to [the police officer who was present] and possibly others in the house” and that “therefore, spraying [the plaintiff] -once with pepper spray was objectively reasonable” and did not constitute excessive force under the circumstances. 421 F.Supp.2d at 854-55. The arrest in Davis, unlike the arrest in the present case, involved spraying of pepper spray at a time where the plaintiff was in a private home where other individuals may have been present and at risk. Furthermore, the Davis court noted that the only testimony presented in the summary judgment motion was from police officers and that “Plaintiffs have failed to put forth any admissible evidence from which th[e] [c]ourt might at least infer that the alleged misdeeds actually occurred[.]” Id. at 854. In Reyes, the Third Circuit affirmed the district court’s grant of summary judgment to the defendants in a convicted prisoner excessive force case, in which the court considered “whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm” pursuant to the Eighth Amendment, 54 Fed.Appx. at 47 (citations and internal quotation marks omitted), and not, as the claims are here, pursuant to the objective reasonableness standard of the Fourth Amendment. In Wardlaw, the D.C. Circuit affirmed the district court’s grant of summary judgment in an excessive force case where one defendant punched the plaintiff “once in the jaw and two or three times in the chest.” 1 F.3d at 1300. In Wardlaw the defendants, United States Marshals, were in a stairwell in the process of removing the plaintiffs friend from the courthouse when the plaintiff “rushed down the stairs” towards the defendants, “shouting ‘[d]on’t hurt him please’ [and] ‘he’s totally nonviolent’ ” and was punched by one of the defendants. Id. The D.C. Circuit, relying on a qualified immunity standard, concluded that “no reasonable jury could find that [the defendant’s] use of force was so exces
Likewise, because genuine issues of material fact exist with regard to the conduct of Defendant Officers Miltenber-ger and Holland, the Court will not make a finding on the issue of qualified immunity at this time. See Fried, 2014 WL 2861098, at *7 (concluding, in an excessive force case, that “[b]ecause a jury must resolve the issues of fact with respect to what happened during the struggle, this Court cannot render a decision on qualified immunity as to [a defendant officer] at this time”); see also Prince v. Aiellos, No. 09-5429, 2013 WL 6865619, at *6 (D.N.J. Dec. 20, 2013) (finding that because “the [c]ourt has concluded that there are material issues of fact in dispute as to whether [the] [defendant's actions ... violated [the] [p]laintiff s constitutional rights ... [i]t naturally follows that the [c]ourt cannot determine, as a matter of law, whether a constitutional violation has occurred for purposes of assessing [the] [defendant’s entitlement to qualified immunity until such time as the foregoing factual issues are resolved by the jury”).
The Court next considers Defendants’ motion for surnmary judgment on behalf of Defendant City of Atlantic City. (See Defs.’ Drief [D.I. 28-2], 17-23). Plaintiffs complaint contains a number of allegations with respect to Defendant City of Atlantic City concerning the establishment of policies and procedures that are deliberately indifferent to the constitutional rights of arrestees, improper training, and a policy or practice of the Internal Affairs Bureau of failing to investigate complaints. (See Complaint [D.I. 1], ¶¶ 14-16, 23, 36-41, 43-44.) Defendants argue Plaintiff insufficiently pleads a Monell claim.
“[A] municipality cannot be held liable under § 1983 on a respondent superior theory.”
The plaintiff must “show that ‘through its deliberate conduct, the municipality was the moving force behind'the injury alleged.’ ” Wicks v. Lycoming Cty., 456 Fed.Appx. 112, 115 (3d Cir. 2012) (quoting, Bd. of Cty. Comm’rs v. Brown, 520 U.S. 397, 404, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997)). Specifically, the plaintiff must show “that the municipal action was taken with ‘deliberate indifference’ as to its known or obvious consequences. A showing of simple or even heightened negligence will not suffice.” Bd. of Cty. Comm’rs, 520 U.S. at 407, 117 S.Ct. 1382 (internal citation omitted). “Where the policy ‘concerns a failure to train or supervise municipal employees, liability under section 1983 requires a showing that the failure amounts to ‘deliberate indifference’ to the rights of persons with whom those employees will come into contact.’ ” Thomas v. Cumberland Cty., 749 F.3d 217, 222 (3d Cir. 2014) (quoting Carter v. City of Phila., 181 F.3d 339, 357 (3d Cir. 1999)). A failure to train claim also requires that “the identified deficiency in a city’s training program must be closely related to the ultimate injury; or in other words, the deficiency in training [must have] actually caused the constitutional violation.” Id. (internal quotation marks omitted) (quoting City of Canton v. Harris, 489 U.S. 378, 391, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989)).
The Court notes that courts in this district have denied summary judgment motions filed by the City of Atlantic City in excessive force cases where the plaintiff alleged municipal liability pursuant to § 1983 against the City of Atlantic City. See Worrall v. City of Atl. City, No. 11-3750, 2013 WL 4500583 (D.N.J. Aug. 20, 2013); see also Cordial v. Atl. City, No. 11-1457, 2014 WL 1095584 (D.N.J. Mar. 19, 2014). In Worrall, the plaintiff provided a record of citizen complaints for one defendant officer which stated that, over a three year and nine month period, the defendant officer was the subject of twenty-one complaints, and of those complaints, fifteen involved excessive force or some level of assault and the remainder involved harassment, standard of conduct, or an improper search. 2013 WL 4500583, at *3. The Wor-rall plaintiff also provided an internal affairs report on the complaint of another individual who alleged to have been assaulted at the same location and on the same evening as the plaintiff. Id. The Court found in Worrall that although the plaintiffs submissions “teeter[ed] on the border of insufficiency,” the evidence presented was nonetheless sufficient to withstand the City of Atlantic City’s motion for summary judgment with respect to plaintiffs claim that the City of Atlantic City was “deliberately indifferent to the violent propensities of its police officers” including those named as individual defendants in that case. Id. at *3-4. The Worrall court reasoned that “[g]iven the number of complaints against [the defendant officer], the related subject matter, and relatively short time span within which the various complaints were filed, the [c]ourt [found] that [p]laintiff ha[d] presented sufficient evidence to create a triable issue of fact” and “[although all of the complaints were either ‘not sustained’ or [the defendant officer] was deemed ‘exonerated,’ the [c]ourt [found] in accordance with Beck
On the record presented here, howevér, Plaintiff has not made any showing to support his municipal liability claims pursuant to § 1983 against Defendant City of Atlantic City. While Plaintiff has provided evidence that Defendant City of Atlantic City has a use of force policy (see Declaration of Timothy J. Mcllwain, Esq., Exhibit A (D.I. 38-1), 3-16 on the docket), Plaintiff has failed to set forth any evidence, whether it be in the form of certification, affidavit, or deposition testimony, from which a reasonable juror -could conclude that Defendant City of Atlantic City established a policy or custom that caused Plaintiffs injury. The Court agrees with Defendants’ position that “[s]imply, there is no evidence whatsoever to support [Plaintiffs Monell claim.” (Defs.’ Brief [D.I. 28-2], 23.) In considering the summary judgment record, the Court finds no facts and can draw no inferences to support Plaintiffs Monell claims. The Court will therefore enter summary judgment in favor of Defendants as to all Monell claims against Defendant City of Atlantic City.
Defendants also move for summary judgment in connection with Plaintiffs claim that he was denied medical care. Plaintiff alleges pursuant to 42 U.S.C. § 1983, that “Defendants[ ] failed to provide Plaintiff medical care in the wake of the beating despite Plaintiffs extensive injuries” and that “Defendants’ denial of medical care exacerbated Plaintiffs physical injuries and caused Plaintiff increased trauma, mental and emotional distress, and increased pain and suffering.” (Complaint [D-.1.1], ¶¶ 21-22.) Defendants again assert that there is no evidence to support this claim. (Brief [D.I. 28-2], 24-25.)
A deliberate indifference standard under the Due Process Clause of the Fourteenth Amendment applies to an individual’s claim for inadequate medical care during the course of an arrest. See Smith v. Gransden, 553 Fed.Appx. 173, 177 (3d Cir. 2014) (noting “[d]eliberate indifference to the medical needs of arrestees violates their Fourteenth Amendment right to due
The Third Circuit has found deliberate indifference “where there was ‘objective evidence that [a] plaintiff had serious need for medical care,’ and prison officials ignored that evidence!,]” Natale, 318 F.3d at 582 (3d Cir. 2003) (quoting Nicini v. Morra, 212 F.3d 798, 815 n. 14 (3d Cir. 2000)), and “where ‘necessary medical treatment is delayed for non-medical reasons.’ ” Id (quoting Monmouth Cty. Corr. Institutional Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987)).
In Hill v. Algor, the plaintiff, who was found by the court to be an arrestee at the time he was allegedly denied medical care, sought the “applications of the Fourth Am-endent ‘objective reasonableness’ standard to his medical care claims.”
At least two courts in this district have held that the Fourth Amendment applies to denial of medical care claims asserted by an arrestee and thus have applied an objective reasonableness standard under the Fourth Amendment to denial of medical care claims that arose during a plaintiffs arrest. See Davis, 421 F.Supp.2d at 856-57 (“applying] the Fourth Amendment’s reasonableness standard rather than the Fourteenth Amendment deliberate indifference standard applied to pretrial detainees” to a denial of medical treatment claim for “actions [that] took place during [the plaintiffs] arrest,” but applying the Fourteenth Amendment’s deliberate indifference standard to the plaintiffs denial of medical .care claims for conduct which occurred after the plaintiff arrived at the police station); see also Pierce v. Cherry Hill Twp., No. 09-6487, 2013 WL 3283952, a$ *8 (D.N.J. June 26, 2013) (citing Davis and concluding that a claim for denial of medical care that was allegedly requested during the course of an arrest was “appropriately viewed through the prism of the Fourth Amendment’s ban of unreasonable seizures”).
The parties’ submissions do- not reconcile the standard to apply to Plaintiffs denial of medical qare claim. Defendants cite to Davis in asserting that Plaintiffs denial of medical care claim is governed by the Due Process Clause of the Fourteenth Amendment (Defs.’ Brief [D.I. 28-2], 24), and argue that in order to succeed on his denial of medical care claim, Plaintiff must provide “ ‘evidence of a serious medical need and acts or omissions by prison officials indicating deliberate indifference to those needs.’” (Id. (quoting Davis, 421 F.Supp.2d at 856-57).) Defendants then cite to the Davis court’s finding that it was reasonable for police officers to wait thirty-five minutes to wash pepper spray out of the plaintiffs eyes.
Plaintiffs submissions do not address what standard should govern Plaintiffs denial of medical care claim.
In light of Smith and Suarez, the Court shall consider Plaintiffs claims pursuant to the deliberate indifference standard under the Fourteenth Amendment. Plaintiff asserts in his brief that he “was completely unconscious after being punched to the ground” (Pl.’s Brief [D.I. 38], 19) and Plaintiffs counsel argued at oral argument that Plaintiff had been “knocked out.” Plaintiff contends, that while in the in-house holding area, “Plaintiff was requesting medical attention” (Pl.’s Response [D.I. 38], ¶ 10(i)), and denies Defendants’ assertion that Plaintiff was treated by the in-house nurse.
The surveillance video shows Plaintiff being handcuffed approximately thirty (30) seconds after falling to the ground and being brought to his feet by the Defendant Officers approximately fifteen (15) seconds after being handcuffed. The video also shows approximately (20) minutes after Plaintiff was struck by Defendant Officer Miltenberger, an individual wearing what appears to be medical gloves, wiping off the lip and chin area of Plaintiff’s face which appears to be bleeding.
The medical records provided by Defendants are dated August 12, 2012 at 19:56, after the incident. (See, e.g., Hegarty Cert., Exhibit K [D.I. 28-3], 96 on the docket.) The physician notes from Plaintiffs hospital visit following the alleged excessive force provide Plaintiff was diagnosed with a “jaw contusion;” a “lip contusion”; and a “knee contusion.” (Hegarty Cert., Exhibit L [D.I. 28-3], 99 on the docket.) The Aftercare Instructions state that “[c]ontusion is the medical term for a bruise”; “[t]he doctor does not believe you have injured essential organs, like, your eyes, brain or spine[;]” and “[fjollow up with Dr. in 3 Day(s)” (Hegarty Cert., Exhibit M [D.I. 28-3], 101 on the docket.) The Aftercare Instructions also provide “[o]ne concern after a facial injury is the possibility of other injuries to the head or neck. The doctor has determined that you do not have any other serious injuries and that it
The Court concludes that Plaintiffs der nial of medical care claim against Defendant Officers Miltenberger and Holland fails because Plaintiff has not provided evidence from which a reasonable juror could conclude that he suffered from a serious medical need. See Monmouth Cty. Corr. Institutional Inmates, 834 F.2d at 346 (reasoning that a “[a] medical need is serious ... if it is one that has been diagnosed by a physician as requiring treatment or one that is so obvious that a lay person would easily recognize the necessity for a doctor’s attention” (citations and internal quotation marks omitted)); see also Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011) (noting that to establish a serious medical condition, “the alleged deprivation must be sufficiently serious, in the sense that a condition, of urgency, one that may produce death, degeneration, or extreme pain exists”). While a reasonable juror may conclude that Plaintiff briefly lost consciousness and suffered from several contusions, Plaintiff has failed to submit any evidence from which a jury could conclude that Plaintiff suffered an objectively serious medical need and Defendant has demonstrated a lack of such evidence. See Mohorcic v. Hogue, No. 11-575, 2013 WL 6118693, at *3-4 (W.D.Pa. Nov. 21, 2013) (finding the plaintiff failed to demonstrate an objectively serious medical need where the plaintiff received no medical care after he alleged that he tripped, hit his head on a concrete wall, temporarily lost consciousness, and had “blurry vision” upon regaining consciousness and concluding that while the plaintiffs injuries may have been “mildly uncomfortable,” the plaintiff had “not alleged that he suffered any more than just minimal temporary discomfort or that he later complained about any pain or lingering injuries that he suffered as a result of the fall” nor that “he in fact suffered any lasting nr permanent injuries as a result of not receiving medical treatment”); see also McClendon v. Cty. of Nassau, No. 11-0190, 2012 WL 4849144, at *6 (E.D.N.Y. Oct. 11, 2012) (noting “[b]ruises and lacerations alone are generally insufficient to support a claim of constitutional deprivation”). Moreover, Plaintiff has provided no evidence that any delay or denial of medical care “ ‘exacerbated his medical condition, caused infection, or otherwise subjected him to an increased risk of harm.’ ” See Horvath v. City of New York, No. 12-6005, 2015 WL 1757759, at *6 (E.D.N.Y. Apr. 17, 2015). Notably Plaintiff ffers “no evidence that his condition worsened” as a result of the alleged delay or denial of medical care. Id. Furthermore, Plaintiff has presented no evidence that any injury he suffered was the result of the alleged delay or denial of medical care as opposed to the alleged excessive force. See id. (granting a motion for summary judgment with respect to a denial of medical care claim where the plaintiff “offer[ed] evidence of a number of injuries resulting from [an] alleged assault[,]” but made “no attempt to connect [those injuries] to the alleged delay in medical attention”). Plaintiff has provided no facts to refute the contents of the medical records or to suggest that Plaintiff received any further treatment other than that which was provided while Plaintiff was in the in-house holding cell. Consequently, the Court concludes that Plaintiff has not demonstrated a serious medical need and in light of this finding, “it is unnecessary for the [c]ourt to consider whether the subjective element of [pjlaintiffs deliberate indifference claim
Likewise, to the extent Plaintiffs claim for denial of medical care is asserted against Defendant City of Atlantic City, summary judgment shall be granted in favor of Defendant City of Atlantic City. See Mulholland v. The Gov’t Cty. of Berks, 706 F.3d 227, 238 n. 15 (3d Cir. 2013) (noting “[i]t is well-settled that, if there is no [constitutional] violation in the first place, there can be no derivative municipal claim” under § 1983).
Consequently, for the reasons set forth, and for good cause shown, Defendants’ motion for summary judgment [D.I. 28] is granted in' part and denied in part. An appropriate order will'be entered.
. Defendant Officer James Miltenberger is incorrectly pled as "Mittenberger." (See Answer [D.I. 4].)
. A compact disc containing the surveillance vidéo from the incident was included as an exhibit to Defendants' motion. (See Certification of John C. Hegarty, Esq. (hereinafter, "Hegarty Certification”), Exhibit O [D.I. 28-3].) The surveillance video does not contain audio. The Court has "relied on the videotape[], where possible, to state the facts of this case.” Green v. New Jersey State Police, 246 Fed.Appx. 158, 159 n. 1 (3d Cir. 2007).
.The parties have consented to this Court's jurisdiction pursuant to 28 U.S.C. § 636(c)(1), Federal Rule of Civil Procedure 73(b), and Rule 73.1 of the Local Civil Rules for the United States District Court, District of New Jersey. (See Notice, Consent, and Reference of a Civil Action to a Magistrate Judge [D.I. • 8], May 27, 2014.)
. Defendants also contend, citing to the Har-rah's Incident File Full Report, that "[a]n ambulance was dispatched to treat [PJlaintiff for a laceration on his face.” (See Defs.' Facts [D.I. 28-1] at ¶ ll(o).)
. In so ruling, the Johnstone court did not decide "where an arrest ends and pretrial detention begins[.]” 107 F.3d at 205.
. The Panarello court also concluded that "because [the defendant] was arrested without a warrant, relying on the weight of authority from the other [ ] circuits, the Fourth Amendment applies to the alleged use of force while in the police station booking room.” 160 F.Supp.3d at 756, 2016 WL 475246, at *14.
. Plaintiff asserts in his brief that he "was completely unconscious after being punched to the ground” (See Pl.'s Brief [D.I. 38], 19), and Plaintiff’s counsel represented at oral argument that Plaintiff had been "knocked out.”
. The Court agrees with Defendants that Plaintiff raises only three counts in his complaint and does not plead any state claims or assert any claims under the First Amendment, 42 U.S.C. § 1981, or 42 U.S.C. § 1988. (See Brief [D.I. 28-2], 5 n.3.)
. Accordingly, the Court dismisses Plaintiff’s claim that "Defendant [City of Atlantic City] is responsible for the conduct of Defendants Mi[l]tenberger and Holland under the doctrine of respondent superior due to the master-servant relationship which existed at the time of the incident[.]” (Complaint [D.I. 1] ¶ 44 (emphasis omitted).)
. See Beck v. City of Pittsburgh, 89 F.3d 966, 973-74 (3d Cir. 1996) (concluding that because six complaints of excessive force within a five-year period against the defendant officer "came in a narrow period of time and were of similar nature, a reasonable jury could have inferred that the Chief of Police knew, or should have known, of [the defendant officer’s] propensity for violence when making arrests").
. In Natale, the court applied the deliberate indifference standard to a pretrial detainee's claim for inadequate medical care and noted that the Third Circuit has "[i]n previous cases ... found no reason to apply a different standard than set forth in Estelle [v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)] ... when evaluating whether a claim for inadequate medical care by a pre-trial detainee is sufficient under the Fourteenth Amendment.” 318 F.3d at 581 (citation omitted). In Estelle, the Supreme Court held that a convicted prisoner's right to medical care is afforded by the Eighth Amendment and that "deliberate indifference to serious medical needs of prisoners” is the standard that governs a convicted prisoner’s claim for denial of such care. 429 U.S. at 104, 97 S.Ct. 285 (1976). The Natale court noted that "the Supreme Court has concluded that the Fourteenth Amendment affords pretrial detainees protections 'at least as great as the Eighth Amendment protections available to a convicted prisoner,' without deciding whether the Fourteenth Amendment provides greater protections,” 318 F.3d at 581 (quoting City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244, 103 S.Ct. 2979, 77 L.Ed.2d 605 (1983)).
. The standard that should be applied to arrestee and pretrial detainee denial of medical care claims made pursuant to § 1983 varies in other circuits. See Ortiz v. City of Chicago, 656 F.3d 523, 530 (7th Cir. 2011) (finding that the Fourth Amendment objective reasonableness standard governs denial of medical cases where there has not yet been a judicial determination of probable cause); see also Hernandez v. City of Beaumont, No. 13-967, 2014 WL 688183, at *3 (C.D.Cal. Feb. 21, 2014) (observing that "[t]he Ninth Circuit 'treats the failure to provide adequate medical care'during and immediately following an arrest as a claim properly brought under the Fourth Amendment and subject to the Fourth Amendment's objective reasonableness standard’ ”); see also Burks v. Perrotta, No. 13-5879, 2015 WL 2340641, at *7-8 (S.D.N.Y. May 15, 2015) (observing that "this Court previously determined that the Fourth Amendment should apply to pre-arraignment denial of medical care claims” and that "[u]nder the Fourth Amendment standard, the Court must [determine] whether the asserted • denial of medical treatment was objectively unreasonable” (internal quotation marks omitted)); see also Miranda-Rivera v. Toledo-Dávila, 813 F.3d 64, 74 (1st Cir. 2016) (reasoning that "Fourteenth Amendment substantive due process requires the government to provide medical care to persons who are injured while being apprehended by the police” and applying a deliberate indifference standard to the plaintiff's denial of medical care claim where the alleged denial of medical care occurred during the plaintiff's arrest and while plaintiff was in a holding cell at the police
. Defendants cite to Davis at a section of the opinion where the Davis court was applying the Fourth Amendment objective reasonable
. Defendants argue “Plaintiff does not challenge Defendants’ request for summary judgment on his claim that he was denied medical care. Because this portion of Defendants’ motion is unchallenged, it should be granted.” (Defs.’ Reply Brief [D.I. 44], 13.)
. Defendants' statement of material facts provides ”[t]he in-house nurse was summoned to treat [P]laintiff for bleeding from his mouth” (Defs.’ Facts [D.I. 28-1]),- at ¶ 10(k) and that ”[a]n- ambulance was dispatched to treat [PJlaintiff for a laceration on his face. (Id at ¶ 1 l(o).)
.At oral argument Plaintiff’s counsel suggested that he had not seen any evidence in the video of Plaintiff being provided with any type of medical care while inside of the holding cell. The video belies this assertion.
Reference
- Full Case Name
- Anthony BOCCHINO v. CITY OF ATLANTIC CITY
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- 22 cases
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- Published