BROWN v. CITY OF ATLANTIC CITY

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

ROSE BROWN, INDIVIDUALLY, AND

AS ADMINISTRATOR AD

PROSEQUENDUM OF THE ESTATE OF

SHAWN BROWN,

Plaintiffs, Civil No. 15-6711(RMB/AMD)

v. OPINION

CITY OF ATLANTIC CITY, DET.

JAMES HERBERT, DET. HOWARD

MASON, AND DET. MICHAEL RUZZO,

Defendants.

APPEARANCES:

LAW OFFICES OF ANDAIYE AL-UQDAH

By: Andaiye Al-Uqdah, Esq.

309 Fellowship Road, Suite 200

Mount Laurel, New Jersey 08054

Counsel for Plaintiffs Rose Brown and

the Estate of Shawn Brown

CARTER & MCKEE, LLC

By: James J. Carter, Esq.; Randy George McKee, Esq.

1100 Poydras Street, Suite 1475

New Orleans, Louisiana 70163

Counsel for Plaintiffs Rose Brown and

the Estate of Shawn Brown

HOAGLAND, LONGO, MORAN, DUNST & DOUKAS, LLP

By: Susan K. O’Connor, Esq.

40 Paterson Street, P.O. Box 480

New Brunswick, New Jersey 08903

Counsel for Defendant City of Atlantic City

MICHAEL A. ARMSTRONG & ASSOCIATES, LLC

By: Morrison Kent Fairbairn, Esq.

79 Mainbridge Lane

Willingboro, New Jersey 08046

Counsel for Defendant City of Atlantic City

SAPONARO LAW GROUP

By: George R. Saponaro, Esq.; Stephen E. Parrey, Esq.

27 Cedar Street

Mount Holly, New Jersey 08060

Counsel for Defendants James Herbert,

Howard Mason, and Michael Ruzzo

LAW OFFICES OF RILEY & RILEY

By: Tracy L. Riley, Esq.

100 High Street, Suite 302

Mount Holly, New Jersey 08060

Counsel for Defendants James Herbert,

Howard Mason, and Michael Ruzzo

RENÉE MARIE BUMB, UNITED STATES DISTRICT JUDGE:

Plaintiffs Rose Brown and the Estate of Shawn Brown

(“Plaintiffs”) bring this civil action in connection with a

shooting that resulted in the death of Shawn Brown (“Brown”) on

September 9, 2014. Now, this matter comes before the Court upon

Motions for Summary Judgment, filed by Defendant City of Atlantic

City (“Atlantic City”)[Dkt. No. 145] and Defendants Det. James

Herbert, Det. Howard Mason, and Det. Michael Ruzzo (the

“Detectives” or “Officers”)[Dkt. No. 151]. For the reasons set

forth herein, Atlantic City’s Motion for Summary Judgment will be

GRANTED. Additionally, the Officers’ Motion for Summary Judgment

will be GRANTED IN PART and DENIED IN PART.

I. FACTUAL AND PROCEDURAL BACKGROUND

On September 9, 2014, Detectives Herbert, Mason, and Ruzzo

were on duty in Atlantic City, New Jersey, wearing plain clothes

while undercover drug purchases with the assistance of a

confidential informant. See Atlantic City’s Statement of

Undisputed Material Facts (“AC SUMF”)[Dkt. No. 145-2], at ¶ 53.

Shortly after completing a drug purchase, the Officers were

traveling in their vehicle to another buy when Detective Herbert

heard gunshots in the vicinity. Id. at ¶ 57. The Officers

contacted dispatch for confirmation from “Shot Spotter” (an

acoustic device used to pinpoint the location of gunfire within

the city limits). See id. at ¶¶ 55, 57. Within a few minutes,

dispatch confirmed that multiple gunshots had been detected near

Drexel Avenue on Route 30; only two blocks away from the

Officers’ location.1 Id. at ¶ 58. Due to their proximity, the

Officers immediately rerouted their vehicle to the area of the

shooting. Id.

Upon turning onto Mediterranean Avenue, a confidential

informant gestured to indicate that the individual walking behind

1 The ShotSpotter report confirms that eleven (11) rounds were

fired in the parking lot of the Cedar Food Market at the corner

of Pennsylvania Avenue and Adriatic Avenue, by Route 30, at

approximately 12:55 p.m. on September 9, 2014. See AC SUMF, at ¶

55.

him, later identified as Shawn Brown, was the shooter.2 See AC

SUMF, at ¶¶ 64-65. The Officers observed that Brown “appeared

nervous, and was continuously looking over his shoulder.” Id.

After making eye contact with the Officers in their vehicle,

Brown began to flee down a nearby side street. Id. at ¶¶ 70, 72.

While running away, the Officers observed Brown clutch at his

waistband and produce a handgun. Id. at ¶ 72. The Officers, who

were wearing badges around their necks, repeatedly identified

themselves as police and ordered Brown to stop, but he neither

stopped nor dropped the gun. Id. at ¶¶ 73-74.

The Officers pursued Brown in their vehicle as he rounded

the corner from North Bartlett Street onto Drexel Avenue, where

he stumbled into some vegetation. See AC SUMF at ¶¶ 75, 78. Det.

Mason stopped the vehicle at the corner of North Bartlett Street

and Drexel Avenue, where Det. Ruzzo exited the vehicle and moved

towards Brown. Id. at ¶ 79. At that point, Brown turned to face

the Officers with his gun pointed in their direction. Id. at ¶

81.3 In response, Det. Ruzzo fired four to six rounds at Brown.

Id. at ¶ 82. Detective Herbert sought cover behind the vehicle’s

2 Ballistics tests later confirmed that the shots near the Cedar

Food Market were, indeed, fired from Shawn Brown’s handgun. See

AC SUMF, at ¶ 63.

3 Although Plaintiffs disputed this statement in Atlantic City’s

SUMF, Plaintiffs’ expert conceded this fact. See infra, Section

III.A.

metal frame, but then exited the vehicle and fired one to two

shots at Brown. Id. at ¶¶ 83, 85. After Det. Ruzzo and Det.

Herbert had begun firing at Brown, still holding the handgun,

Brown turned and began running down Drexel Avenue. Id. at ¶ 89.

Det. Ruzzo fired one or two more rounds at Brown before he

observed blood on Brown’s shirt. Id. Brown fell to the sidewalk

and dropped his gun. Id.

The parties offer differing accounts of what occurred after

Brown fell to the ground. The Officers state that they observed

Brown attempt to stand up and move towards his gun, causing Det.

Ruzzo and Det. Herbert to each fire an additional round to subdue

the perceived threat. Id. at ¶ 91. However, two witnesses contend

that Brown was facing the Officers, with both hands raised

without a gun, yelling “don’t shoot,” when Det. Ruzzo and Det.

Herbert each fired their final shots at Brown.4 See Deposition

of Dekrex Davis (“Davis Deposition”)[Dkt. No. 155-4]; Gertrude

Pettus Statement to Investigators, Sept. 15, 2014 (“Pettus

Statement – 9/15/14”)[Dkt. No. 155-9]. After firing his final

round, Det. Herbert approached Brown with his gun drawn,

4 The witness accounts differ somewhat. Whereas Dekrex Davis

testified at his deposition that he heard Brown yell “I’m hit,

don’t shoot me,” the other witness, Gertrude Pettus, told

officers that she only heard Brown yell “don’t shoot.” Ms.

Pettus later told investigators that she had not heard any

yelling before the shots were fired. See Gertrude Pettus

Statement to Investigators, Oct. 7, 2014 (“Pettus Statement –

10/7/14”)[Dkt. No. 155-10].

instructed Brown not to move, and stood over Brown’s gun (which

was loose on the ground near his body). See AC SUMF, at ¶ 91.

After the last gunshots, Brown allegedly told the Officers he was

“done” and pushed himself further away from his weapon. Id. at ¶

105.

At approximately 12:57 p.m., Det. Herbert notified dispatch

that multiple shots had been fired and requested an ambulance.

See AC SUMF, at ¶ 93. Det. Ruzzo also requested an ambulance at

12:58 p.m. Due to the nature of Brown’s injuries, Det. Herbert,

at 12:58 p.m. once again emphasized to dispatch that an ambulance

was needed. Id. at ¶ 106. The entire sequence, from when the

Officers first witnessed Brown with a handgun to when an

ambulance was called, lasted approximately one minute. Id. at ¶

99. The Officers did not administer any medical assistance, such

as CPR, to Brown at the scene. Prior to the ambulance’s arrival,

Sergeant Craig Mulhern arrived at the scene, where he handcuffed

and searched Brown, finding that Brown had been carrying forty

(40) bags of heroin. Id. at ¶ 110.

Paramedics and EMTs arrived at the scene at approximately

1:01 p.m. and left for the hospital at 1:15 p.m., after Brown had

been intubated and administered epinephrine. See AC SUMF, at ¶

107. At that time, Brown was unresponsive, his pulse was weak, he

was unconscious, and he had agonal respiration. Id. When Brown

arrived at AtlantiCare Regional Medical Center, at 1:19 p.m., he

was asystolic, with his pupils fixed and dilated. Id. at ¶ 108.

Brown later coded in the operating room and was pronounced dead

at 2:16 p.m. Id. The record contains no evidence indicating that

Brown would have survived if he had received different, or more

expedient, medical care.

An autopsy, performed by Daksha Shah, M.D., Designated

Medical Examiner (the “DME”), on September 10, 2014, determined

that three (3) bullets struck Brown. See AC SUMF, at ¶ 114. The

DME found that the gunshot wound to the right side of Brown’s

chest caused his death. Id. According to the DME, the fatal shot

had a downward trajectory and hit Brown on the front side of his

chest, passing through his right lung and exiting out his back.

See Autopsy Report [Dkt. No. 145-8, Ex. 43], at 5. The DME noted

that Brown’s other two (2) gunshot wounds, to his lower back and

the lateral side of his left thigh, did not cause any internal

injuries or pass through any major organs. Id. Because the fatal

shot hit Brown on the front of his chest, the evidence suggests

that the fatal shot was likely one of the final shots fired by

Det. Ruzzo or Det. Herbert, occurring after Brown had fallen and

was turning towards the Officers. However, it is unknown whether

the fatal shot was fired by Det. Ruzzo or Det. Herbert.5 See AC

SUMF, at ¶ 114.

5 It is undisputed that Det. Mason did not fire his weapon at any

point during the incident. See AC SUMF, at ¶ 35.

The Atlantic County Prosecutor’s Office (“ACPO”) conducted

an extensive investigation into the events surrounding Brown’s

death. See AC SUMF, at ¶ 109. At the conclusion of the

investigation, the ACPO presented the case to a Grand Jury, which

heard testimony from multiple witnesses and examined evidence.

Id. at ¶ 133. Ultimately, the Grand Jury returned a “no bill,”

indicating that the Grand Jury found that the evidence was

insufficient to support criminal charges against Det. Herbert or

Det. Ruzzo. Id. at ¶ 134. Following the conclusion of the ACPO

investigation and the Grand Jury proceedings, the Internal

Affairs Unit of the Atlantic City Police Department performed its

own investigation into the shooting. Id. at ¶ 138. The Internal

Affairs investigation concluded that the Officers’ use of deadly

force was legal, proper, and justified. Id. at ¶ 139. The

investigation further concluded that neither Det. Herbert nor

Det. Ruzzo violated any rules, regulations, policies, or

procedures. Id.

On September 8, 2015, Plaintiffs commenced this action

against the City of Atlantic City, the Atlantic City Police

Department, and Police Officers John Does #1-3 [Dkt. No. 1],

alleging, among other things, constitutional violations for

failure to train, excessive force, and failure to render timely

and proper medical assistance. On May 30, 2016, Plaintiffs filed

an Amended Complaint, which contained five causes of action,6

specifically: (Count I) Violations of the Fourth, Fifth, and

Fourteenth Amendments of the U.S. Constitution under 42 U.S.C. §

1983 against the Defendant Officers; (Count II) Violations of the

Fourth, Fifth, and Fourteenth Amendments of the U.S. Constitution

under 42 U.S.C. § 1983 (a.k.a. Monell claims) against Atlantic

City; (Count 3) Assault, Battery, Negligence, Spoliation of

Evidence, Wrongful Death under N.J.S.A. § 2A:31, and a Survivor

Action under N.J.S.A. § 2A:15-3 against the Defendant Officers;

(Count IV) Conspiracy to Violate Civil Rights against the

Defendant Officers; and (Count V) Punitive Damages against the

Defendant Officers.7 Among other forms of requested relief,

Plaintiffs seek ten million dollars ($10,000,000) in damages.

The Atlantic City Police Department was dismissed as a defendant,

with prejudice, in January 2017. Discovery concluded in November

2018. Now, this matter comes before the Court upon Motions for

Summary Judgment, filed by the Officers and Atlantic City.

6 Although the Amended Complaint asserted causes of action

against the Officers, by name, they were not substituted into the

case caption until February 24, 2017.

7 The Amended Complaint alleges that the § 1983 claims in Counts

I and II are brought for violations of the “Fourth, Eighth, and

Fourteenth Amendments.” For purposes of this motion, the Court

assumes that these are misstatements, and that Plaintiffs

intended to allege violations of the “Fourth, Fifth, and

Fourteenth Amendments.”

II. LEGAL STANDARD

A. Summary Judgment Standard

Summary judgment shall be granted 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). A fact is “material” only if it might impact the

“outcome of the suit under the governing law.” Gonzalez v. Sec’y

of Dept of Homeland Sec., 678 F.3d 254, 261 (3d Cir. 2012). A

dispute is “genuine” if the evidence would allow a reasonable

jury to find for the nonmoving party. Id.

In determining the existence of a genuine dispute of

material fact, a court’s role is not to weigh the evidence; all

reasonable inferences and doubts should be resolved in favor of

the nonmoving party. Melrose, Inc. v. City of Pittsburgh, 613

F.3d 380, 387 (3d Cir. 2010). However, a mere “scintilla of

evidence,” without more, will not give rise to a genuine dispute

for trial. Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir.

2001). Moreover, a court need not adopt the version of facts

asserted by the nonmoving party if those facts are “utterly

discredited by the record [so] that no reasonable jury” could

believe them. Scott v. Harris, 550 U.S. 372, 380 (2007). In the

face of such evidence, summary judgment is still appropriate

“where the record taken as a whole could not lead a rational

trier of fact to find for the nonmoving party.” Walsh v. Krantz,

386 F.App’x 334, 338 (3d Cir. 2010).

The movant has the initial burden of showing through the

pleadings, depositions, answers to interrogatories, admissions on

file, and any affidavits “that the non-movant has failed to

establish one or more essential elements of its case.” Connection

Training Servs. v. City of Phila., 358 F. App’x 315, 318 (3d Cir.

2009). “If the moving party meets its burden, the burden then

shifts to the non-movant to establish that summary judgment is

inappropriate.” Id. In the face of a properly supported motion

for summary judgment, the nonmovant’s burden is rigorous: he

“must point to concrete evidence in the record”; mere

allegations, conclusions, conjecture, and speculation will not

defeat summary judgment. Orsatti v. New Jersey State Police, 71

F.3d 480, 484 (3d Cir. 1995); accord. Jackson v. Danberg, 594

F.3d 210, 227 (3d Cir. 2010) (citing Acumed LLC. v. Advanced

Surgical Servs., Inc., 561 F.3d 199, 228 (3d Cir.

2009)(“[S]peculation and conjecture may not defeat summary

judgment.”). Moreover, “the court need only determine if the

nonmoving party can produce admissible evidence regarding a

disputed issue of material fact at trial”; the evidence does not

need to be in admissible form at the time of summary judgment.

FOP v. City of Camden, 842 F.3d 231, 238 (3d Cir. 2016).

B. Qualified Immunity Standard

The doctrine of qualified immunity “exempts a police

officer, who is sued for a violation of an individual’s

constitutional rights, from trial and liability for the alleged

wrong.” Goode v. City of Philadelphia, 2018 WL 827425, at *3

(E.D. Pa. Feb. 12, 2018)(citing Carswell v. Borough of Homestead,

381 F.3d 235, 241 (3d Cir. 2004)). To determine the doctrine’s

applicability, a court must ascertain whether the facts shown by

the plaintiff “make out a violation of a constitutional right”

and assess whether that right “was ‘clearly established’ at the

time of the defendant’s alleged misconduct.” Martin for Estate of

Webb v. City of Newark, 762 F. App'x 78, 82–83 (3d Cir.

2018)(quoting Pearson v. Callahan, 555 U.S. 223, 232). If both of

these factors are present, the Court must assess whether the

officer “made a reasonable mistake as to what the law requires.”

Carswell, 381 F.3d at 242. “[I]f the officer’s mistake ... is

reasonable, [then] the officer is entitled to the immunity

defense.” Id. (quoting Saucier, 533 U.S. at 205).

III. ANALYSIS

In moving for summary judgment, the Officers argue that they

are entitled to qualified immunity because their use of deadly

force was objectively reasonable under the circumstances and they

were not indifferent to Brown’s medical needs. The Officers also

argue that Plaintiffs’ state law tort claims must be dismissed

because they were never served with a notice of claims under the

New Jersey Tort Claims Act (“NJTCA”). Additionally, Atlantic

City argues that Plaintiffs’ Monell claims have no basis for

municipal liability under § 1983, because they have failed to

establish that the City itself caused the alleged constitutional

violation.

A. Qualified Immunity

Plaintiffs contend that the Officers violated Brown’s

constitutional rights by unreasonably using excessive force that

resulted in Brown’s death. Indeed, one of the “clearly

established” protections afforded by the Fourth Amendment of the

U.S. Constitution is the right to be free from the use of

excessive force by a law enforcement officer. See Carswell v.

Borough of Homestead, 381 F.3d 235, 240 (3d Cir. 2004)(citing

Graham v. Connor, 490 U.S. 386, 395 (1989)).

In their Motion for Summary Judgment, the Officers argue

that they are entitled to qualified immunity because their

actions were objectively reasonable under the circumstances. On

this issue, the Court finds that the Officers’ actions during

their pursuit of Brown, including the use of deadly force, were

objectively reasonable from the moment the pursuit began, until

Brown fell to the ground and dropped his gun. However, the Court

finds that genuine issues of material fact preclude summary

judgment as to whether it was objectively reasonable for Det.

Herbert and Det. Ruzzo to use deadly force after Brown had fallen

to the ground and dropped his weapon.

“To prevail on a Fourth Amendment excessive-force claim, a

plaintiff must show that a seizure occurred and that it was

unreasonable under the circumstances.” Lamont v. New Jersey, 637

F.3d 177, 182-83 (3d Cir. 2011). As stated by the Third Circuit,

the “use of deadly force is a seizure, and it is unreasonable

‘unless the officer has good reason to believe that the suspect

poses a significant threat of death or serious physical injury to

the officer or others.’” Goode v. City of Philadelphia, 2019 WL

2393794, at *2 (3d Cir. June 6, 2019)(quoting Lamont, 637 F.3d at

183).

In deciding whether the conduct at issue rises to the level

of “excessive,” a court must use an objective reasonableness

standard, which “requir[es] 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.” Saucier v. Katz, 533 U.S. 194, 205 (citing Graham, 490

U.S. at 396). Other factors include, “the duration of the

[officer’s] 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.” Couden v. Duffy, 446 F.3d 483, 497 (3d

Cir. 2006)(quoting Sharrar v. Felsing, 128 F.3d 810, 822 (3d Cir.

1997)). In evaluating these factors, a court may not apply “the

20/20 vision of hindsight,” but must instead recognize that

police officers are often faced with split-second decisions in

“circumstances that are tense, uncertain, and rapidly evolving.”

Graham, 490 U.S. at 396–97.

The facts in the record support a finding that the Officers’

initial pursuit of Brown, along with the use of deadly force,

were objectively reasonable until the moment Brown first fell to

the sidewalk. Indeed, when the Officers first arrived in the

area of the Cedar Food Market shooting, the Officers reasonably

(based on the assistance of a confidential informant), and

correctly, believed that Brown was the perpetrator of the nearby

shooting. As such, the Officers did not unreasonably “target”

Brown, as alleged in the Amended Complaint. On the contrary, the

facts demonstrate that the Officers had a legitimate reason to

pursue Brown.8

During the Pursuit, Det. Ruzzo and Det. Herbert identified

themselves as police and only began firing at Brown after they

observed him remove a gun from his waistband and turn it towards

the Officers. The Supreme Court has held that, when “the suspect

threatens the officer with a weapon ..., deadly force may be used

if necessary to prevent escape, and if, where feasible, some

warning has been given.” Tennessee v. Garner, 471 U.S. 1, 11-12,

105; see also Abraham v. Raso, 183 F.3d 279, 289 (3d Cr.

1999)(explaining that courts must ask whether it was “objectively

reasonable for the officer to believe ... that deadly force was

necessary to prevent the suspect’s escape, and that the suspect

posed a significant threat of death or serious physical injury to

the officer or others”). On this issue, Plaintiffs have failed

to point to any evidence in the record to refute the Officers’

reports that during the pursuit, Brown removed the gun from his

waistband and turned it towards the Officers. In fact,

Plaintiffs’ own expert seemingly concedes that Brown pointed the

8 Throughout the Amended Complaint, Plaintiffs make various

allegations that insinuate that the manner in which the Officers

pursued Brown (initially in their police vehicle) was objectively

unreasonable and excessive. However, given that the officers had

a legitimate reason to pursue Brown and it is undisputed that no

shots were fired from the police vehicle during the pursuit, the

Court finds Plaintiffs’ arguments about the Officers’ use of the

vehicle irrelevant in the excessive force analysis.

gun at the Officers. See Report of W. Lloyd Grafton (“Grafton

Report”)[Dkt. No. 145-8, Ex. 47], at 5 (stating that“[a]t the

point where Brown was fleeing and being shot at, the officers

only knew he was in the area where shots were fired, he was

running from them – and he had pointed the gun in their

direction”).

Considering that a confidential informant had already

identified Brown as the perpetrator of a nearby shooting, the

Officers had reason to believe that Brown was willing to use his

gun. Therefore, once the Officers observed Brown turn towards

them with the gun in his hand, it was reasonable for the Det.

Ruzzo and Det. Herbert to use deadly force until the threat had

been neutralized. To that end, the use of deadly force was

objectively reasonable until the Officers saw Brown fall to the

ground with blood on his shirt and drop his gun.

Although this Court finds that the Officers’ initial use of

deadly force was objectively reasonably, genuine issues of

material fact prevent this Court from determining the

reasonableness of the final shots fired by Det. Ruzzo and Det.

Herbert. Notably, the Third Circuit has held that “[e]ven where

an officer is initially justified in using force, he may not

continue to use such force after it has become evident that the

threat justifying the force has vanished.” Lamont, 637 F.3d at

184. In Lamont, state troopers began firing upon when a suspect,

who was later found to be unarmed, when the suspect “yanked his

right hand out of his waistband” as if drawing a pistol. Id.

There, the Third Circuit found that the troopers reasonably

believed that the suspect was armed and pulling a gun when they

began firing. However, because the suspect’s weaponless hand had

been fully visible immediately after the troopers began firing,

the Third Circuit held that “a reasonable jury could conclude

that the troopers should have recognized that [the suspect] was

unarmed and stopped firing sooner.” Id. Furthermore, because

some of the bullets had hit the suspect from behind, the Third

Circuit opined that “a jury may find that the troopers improperly

continued firing after [the suspect] had turned away from them

and no longer posed a threat.” Id. at 184-85.

In this case, there are vastly different accounts about what

transpired in the moments immediately preceding the fatal shots.

Whereas the Officers claim that Brown was attempting to stand up

and move towards his gun, Plaintiffs offer testimony from two

witnesses who claim that Brown was attempting to surrender by

raising his hands and yelling “don’t shoot.”9

9 The Court acknowledges that Plaintiffs’ witnesses have

substantial credibility issues. Indeed, Gertrude Pettus has

given conflicting statements regarding the shooting. On

September 15, 2014, Ms. Pettus told investigators that she saw

“three people shooting their guns as a young man faced them with

both hands up” and yelled “don’t shoot!” However, on October 7,

2014, Ms. Pettus told investigators that “the shots seemed to be

happening while the victim was turning towards the white males”

At the summary judgment stage of litigation, where there is

a genuine issue of material fact, the Court must “adopt[ ] ...

the plaintiff’s version of the facts,” for purposes of assessing

qualified immunity. Scott v. Harris, 550 U.S. 372, 378 (2007);

and that “she did not hear any yelling or screaming prior to the

shots or during the shots.” At the time of her second statement,

Ms. Pettus also requested that her name not be disclosed, because

she feared for her life if anyone in her community learned of her

involvement in this case.

Meanwhile, the other witness, Dekrex Davis, has an extensive

criminal record and served eleven and a half years in prison for

attempted murder. Additionally, in a cell phone video, recorded

by Mr. Davis at the scene following the shooting, Mr. Davis can

be overheard making disparaging comments about the police, which

could suggest bias against the police and motivation to be

untruthful. Mr. Davis’ testimony is also questionable from a

factual perspective. Specifically, Mr. Davis contends that Brown

“got up” with his hands in the air at the time he was shot. This

testimony is somewhat inconsistent with the autopsy report, which

showed that the fatal shot hit Brown with a downward trajectory,

suggesting that Brown was not standing upright at the time.

However, the Court recognizes that a jury could excuse the

discrepancies as imprecise phrasing by Mr. Davis.

Although these inconsistencies raise credibility issues, “in

considering a motion for summary judgment, a district court may

not make credibility determinations or engage 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.’” Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir.

2004)(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255

(1986)). That being said, if a jury ultimately finds no

liability due to credibility issues (which would be the second

similar finding, following the Grand Jury’s decision to “no bill”

the Officers), “District courts are entitled to award reasonable

attorneys’ fees to prevailing defendants in § 1983 matters ‘upon

a finding that the plaintiff’s action was frivolous,

unreasonable, or without foundation.’” Arneault v. O'Toole, 718

F. App'x 148, 152 (3d Cir. 2017)

see also Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014); Brosseau

v. Haugen, 125 S. Ct. 596, 195 n.2 (2004); Saucier, 533 U.S. at

201. As such, for purposes of this motion, the Court must make

all reasonable inferences in favor of Plaintiffs. See Pratt v.

City of Camden, 2018 WL 3201785, at *8–9 (D.N.J. June 29, 2018).

Certainly, if Brown was surrendering to police, further shots

would not be objectively reasonable or entitled to qualified

immunity protections. Accordingly, this Court finds that a

reasonable jury could conclude that Brown no longer posed a risk

to the Officers after he had fallen to the ground and dropped his

gun.

Although Plaintiffs’ § 1983 claim against Det. Ruzzo and

Det. Herbert survives, as it relates to the reasonableness of the

final shots, the Court will dismiss all aspects of the § 1983

claim against Det. Mason because it is undisputed that Det. Mason

never fired any shots at Brown during the incident. The Court

will also dismiss any aspects of Plaintiffs’ claims that relate

to constitutional violations for handcuffing Brown after the

shooting or failing to render proper medical assistance.

Significantly, Brown was handcuffed by Sergeant Craig Mulhern;

not any of the Officers in this case. Additionally, Plaintiffs

fail to point to any evidence in the record suggesting that the

Officers would have been able to provide any meaningful medical

assistance or waited too long to call for help. Furthermore,

there is no evidence that the Officers conspired with each other,

either explicitly or implicitly, to deprive of Brown of his

constitutional rights. As such, dismissal is warranted on those

claims.

B. The New Jersey Tort Claims Act

Next, the Officers argue that the state law tort claims must

be dismissed because Plaintiffs failed to properly serve them

with a notice of claim. The New Jersey Tort Claims Act (“NJTCA”)

requires notice of a claim of injury against a public entity or

employee to be presented within ninety days of the accrual of a

cause of action. See N.J.S.A. 59:8–3 (“No action shall be brought

against a public entity or public employee under this act unless

the claim upon which it is based shall have been presented in

accordance with the procedure set forth in this chapter”). After

the notice of claim is filed, a plaintiff must wait six months

before filing suit against the public entity or employee in an

appropriate court. Id. A plaintiff is forever barred from

recovering damages from a public entity if “he fail[s] to file

his claim with the public entity within ninety (90) days.”

N.J.S.A. 59:8–8.

The Officers contend that the notice of claim submitted to

the City of Atlantic City was improper because it did not name

the Officers, even under John Doe designations, and because

Atlantic City was not a proper entity to accept service of a

notice of claim on behalf of the Officers. Plaintiffs seemingly

concede that a notice of claim was only served upon the City of

the Atlantic City, not upon the Atlantic City Police Department

or the individual Officers. However, Plaintiffs argue that the

notice of claim submitted to Atlantic City was sufficient and

they should be relieved of the notice of claim obligation because

the identities of the Officers were unknown to Plaintiffs and

“Atlantic City and the Atlantic City Prosecutor’s Office would

not provide the names of the officers involved in the incident.”

Pls.’ Opp. to Officers’ MSJ [Dkt. No. 155], at 15. Furthermore,

Plaintiffs contend that “the Defendant Officers have not been

prejudiced by not receiving the notice under the [NJTCA]” and

“have waived the right to make this argument by not filing a Rule

12(b)(6) Motion to Dismiss and conceding jurisdiction in this

matter to the Plaintiffs.” Id.

The Court finds Plaintiffs’ arguments, that they should be

relieved of the notice of claim requirements, unpersuasive,

because Courts have repeatedly held that plaintiffs must strictly

adhere to the NJTCA’s language, regardless of circumstances. See,

e.g., Baker v. Allen, 2006 WL 1128712, at *16 (D.N.J. Apr. 24,

2006)(“Strict compliance is required to satisfy the Tort Claims

Act, and the filing of a complaint is not a substitute for a

notice of claim”); Noble v. City of Camden, 112 F. Supp. 3d 208,

232–34 (D.N.J. 2015)(“the filing of the Complaint in this case

does not satisfy the notice requirement”).

The Officers cite compelling case law, which suggests that a

city and its police department are distinct entities for purposes

of serving of a notice of claim under the NJTCA. See Forcella v.

City of Ocean City, 70 F. Supp. 2d 512, 521 (D.N.J. 1999)(holding

that “the Ocean City Police Department should have received a

separate notice of claim from all other public entities,

including the City of Ocean City and DPS”). However, it is not

immediately clear to this Court whether that is true for all

municipalities, or if the cited case involved a city with a

unique municipal structure. Without further briefing, the Court

is unable to determine whether the same distinction applies to

Atlantic City and the ACPD, as it relates to service under the

NJTCA.

Unfortunately, the Court has been unable to evaluate the

sufficiency of the actual notice of claims in this instance.

Despite the Court’s best efforts, it could not locate the

document anywhere in the record.10 Without the ability to review

10 Although the Officers’ Memorandum in Support of their Motion

for Summary Judgment has a placeholder citation for an exhibit,

it appears that, in an apparent error, the number of the exhibit

was never filled-in and was, perhaps, left out of the record

entirely. The Court acknowledges the possibility that it

overlooked the document among the voluminous exhibits submitted

to this Court, but, at this time, the Court does not believe that

the notice of claims was ever entered into the record.

the actual notice of claims, the Court cannot reach this issue.

As such, the Court will deny this aspect of the Officers’ Motion

for Summary Judgment, but without prejudice. If the Officers

wish to renew their Motion for Summary Judgment on the NJTCA

issue, they must submit a copy of the notice of claims for this

Court’s inspection. Additionally, the Court would encourage both

parties to provide more precise and responsive briefing on this

issue, if the motion is renewed.

C. Municipal Liability

Finally, Atlantic City argues that Plaintiffs’ Monell claims

against the city must be dismissed. It is well established that

municipal liability under § 1983 “may not be proven under the

respondeat superior doctrine, but must be founded upon evidence

that the government unit itself supported a violation of

constitutional rights.” Bielevicz v. Dubinon, 915 F.2d 845, 850

(3d Cir. 1990)(citing Monell v. New York City Dep’t of Soc.

Servs., 436 U.S. 658 (1978)). Thus, a municipality is liable

under § 1983 only when “execution of a government’s policy or

custom, whether made by its lawmakers or by those whose edicts or

acts may fairly be said to represent official policy, inflicts

the injury.” Monell, 436 U.S. at 694. In this case, Plaintiffs’

Monell claims are based on an Atlantic City’s alleged failure to

properly train, supervise, discipline, and enact policies, which

allows police officers to conduct arrests with “the use of

illegal and excessive force.”

Where the policy at issue “concerns a failure to train or

supervise municipal employees, liability under § 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 City of Canton v. Harris, 489 U.S. 378, 388

(1989)). Moreover, “the deficiency in training must have actually

caused the constitutional violation.” Thomas, 749 F.3d at 217

(quoting Canton, 489 U.S. at 391).

The Supreme Court has made clear that “[d]eliberate

indifference is a stringent standard of fault, requiring proof

that a municipal actor disregarded a known or obvious consequence

of his action.” Bd. of Cty. Comm’rs of Bryan Cty., Okl. v. Brown,

520 U.S. 397, 410 (1997)(internal quotations omitted). “A pattern

of similar constitutional violations by untrained employees is

‘ordinarily necessary’ to demonstrate deliberate indifference for

purposes of failure to train.” Connick v. Thompson, 131 S. Ct.

1350, 1360 (2011)(internal citation omitted). Nevertheless, in

certain situations, the need for training “can be said to be ‘so

obvious,’ that failure to do so could properly be characterized

as ‘deliberate indifference’ to constitutional rights.” Canton,

489 U.S. at 490 n.10 (internal citation omitted). Liability in

single-incident, failure-to-train cases thus depends on “[t]he

likelihood that the situation will recur and the predictability

that an officer lacking specific tools to handle that situation

will violate citizens’ rights.” Bryan Cty., 520 U.S. at 409.

In the present case, Plaintiffs have offered no evidence in

the record of a history or pattern of excessive force by the

Atlantic City Police Department against armed suspects who are

attempting to evade arrest. Therefore, Plaintiffs would need to

rely on a single-incident theory of liability. See Pratt, 2018 WL

3201785, at *11. Even under a single-incident theory of

liability, Plaintiffs still have not offered any evidence that

would allow a reasonable jury to find that the risk of Brown’s

death was a “highly predictable consequence” of Atlantic City’s

failure to train its Officers or medical personnel. See Bryan

Cty., 520 U.S. at 409 (citing Canton, 489 U.S. at 390 n.10).11

Indeed, there was no evidence in the record suggesting that

11 Plaintiffs offer testimony suggesting that Atlantic City failed

to properly train officers on how to pursue a suspect, who is on

foot, while the officers are in a vehicle. However, as

previously noted, the pursuit itself was lawful and no shots were

fired while the Officers were in their vehicle. Thus, the manner

in which the pursuit was initiated had no impact on the alleged

excessive force, which occurred after Det. Ruzzo and Det. Herbert

had already exited the vehicle. Furthermore, to the extent

Plaintiffs’ claim that Atlantic City failed to properly train the

Officers, EMTS, or paramedics on rendering medical assistance,

Plaintiffs have failed to offer any evidence that better medical

care would have avoided Brown’s death or alleviated pain and

suffering.

Atlantic City failed to properly train officers on the use of

firearms. Accordingly, Plaintiffs’ Monell claims against

Atlantic City must be dismissed.

D. Additional Matters

On August 15, 2019, this Court entered an Order [Dkt. No.

164], temporarily granting Defendant Atlantic City’s request to

seal various grand jury and internal affairs documents. However,

this Court notes that Atlantic City’s Motion to Seal [Dkt. No.

147] never addressed why a less restrictive alternative, such as

redactions, would not suffice for these documents. Accordingly,

the Court will order Atlantic to file redacted versions of these

exhibits with thirty (30) days, or provide a justification as to

why redactions would not provide sufficient protection.

IV. CONCLUSION

For the foregoing reasons, Atlantic City’s Motion for

Summary Judgment will be GRANTED and Plaintiffs’ claims against

Atlantic City will be DISMISSED WITH PREJUDICE. Additionally,

the Officers’ Motion for Summary Judgment will be GRANTED IN

PART, and DENIED IN PART.

All claims against Det. Mason, the conspiracy claim, the

state law claim (regarding failure to render timely medical

assistance), and the § 1983 claim against Det. Ruzzo and Det.

Herbert (to the extent it pertains to any aspect of the incident

other than the moments between when Brown fell to the ground,

dropping his gun, and when the Officers called for medical

assistance) will be DISMISSED WITH PREJUDICE.

Plaintiffs’ § 1983 claim shall remain against Det. Ruzzo and

Det. Herbert as it relates to the moment that the fatal shot was

fired. Additionally, the Officers’ motion is denied, without

prejudice, as it pertains to the state law tort claims (except

for those related to failure to render medical assistance, which

are dismissed for a failure of proof). The Officers will be

permitted twenty-one (21) days from the date of this Opinion to

renew their motion regarding the NJTCA issue, with more

responsive briefing, accompanied by a copy of the notice of

claims. An appropriate Order shall issue on this date.

DATED: August 30, 2019

s/Renée Marie Bumb

RENÉE MARIE BUMB

UNITED STATES DISTRICT JUDGE