FRANKLIN v. RIVERSIDE TOWNSHIP

[Docket No. 54]

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

ROBERT W. FRANKLIN, JR.,

Plaintiff, Civil No. 17-8838 (RMB/KMW)

v. OPINION

RIVERSIDE TOWNSHIP, et al.,

Defendants.

APPEARANCES:

THE RUSSELL FRIEDMAN LAW GROUP, LLP

By: Russell C. Friedman, Esq.

3000 Marcus Avenue, Suite 2E03

Lake Success, New York 11042

Attorneys for Plaintiff

RAYMOND COLEMAN HEINOLD, LLP

By: Douglas L. Heinold, Esq.

Stephen E. Raymond, Esq.

325 New Albany Road

Moorestown, New Jersey 08057

Attorneys for Defendants

BUMB, UNITED STATES DISTRICT JUDGE:

In this suit pursuant to 42 U.S.C. § 1983, Plaintiff Robert

W. Franklin, Jr. asserts that Defendants, Township of Riverside

Police Officers Michael Megara and Timothy Marano, violated

Franklin’s federal constitutional rights by allegedly using

excessive force during Franklin’s arrest, and then allegedly

delaying medical care for the injuries Franklin sustained during

the arrest. Franklin was also charged with, and later convicted

of, disorderly conduct and resisting arrest.

Defendants move for summary judgment. For the reasons

stated herein, the motion will be granted in part and denied in

part.

I. FACTUAL AND PROCEDURAL BACKGROUND

In the afternoon of May 28, 2016, Defendant Police Officers

Marano and Megara arrived at the Riverside Gas Station,

dispatched to respond to a payment dispute between the gas

station attendant and Plaintiff Franklin. (Defendants’ Statement

of Undisputed Facts ¶¶ 12-13) The encounter between Franklin

and Officers Marano and Megara was recorded by the gas station’s

surveillance camera. The surveillance camera’s recording

(Defendants’ Exhibit A) -- which contains only video; no audio--

shows the following.

When Defendant Marano first arrives at the gas station, a

few minutes before 3:20 p.m., Franklin and his elderly

godmother1, who was a passenger in Franklin’s Dodge Ram truck,

are standing immediately next to Franklin’s vehicle, which is

parked next to a gas pump, with the driver’s side door open.

(Defs’ Ex. A) Franklin appears to be talking calmly with

1 At the time of his deposition, Franklin testified that

his godmother was 74 years old. (Franklin Dep. p. 33)

Officer Marano as the gas station attendant approaches and

Officer Megara arrives in a separate police cruiser. (Id.)

Officer Megara exits his vehicle and appears to talk to

Franklin, his godmother, Officer Marano, and the gas station

attendant from approximately 4 to 6 feet away, on the other side

of the gas pump. (Id.) Then, Officer Megara walks with the gas

station attendant off camera. It is undisputed that Officer

Megara and the attendant went into the gas station to view the

surveillance video of Franklin’s payment to the gas station

attendant. (Defs’ Statement of Undisputed Facts ¶ 21) Officer

Marano remains with Franklin and his godmother standing next to

the vehicle. (Id.) Franklin appears calm as Officer Marano

walks off camera to join Officer Megara and the gas station

attendant inside the gas station. (Id.) Franklin then helps

his godmother around the vehicle, and she takes a seat in the

front passenger’s seat. (Id.) Franklin also takes a seat, in

the driver’s seat, and closes the door. (Id.)

Several minutes pass, during which Franklin and his

godmother appear to be simply sitting in the vehicle with the

car doors closed and the driver’s side window open. (Defs’ Ex.

A) Then Officer Marano speaks to Franklin through the open

window, with Officer Megara standing behind Marano, within

earshot. (Id.) Franklin and Officer Marano appear to talk

calmly to each other for several minutes while Officer Megara

simply observes. (Id.) Then, the gas station attendant

approaches the driver’s side window, joining Officer Marano.

(Id.) The attendant accepts cash from Franklin and then walks

away. (Id.) At this point, Franklin appears to become more

animated in his movements, although he remains seated in his

vehicle with the door closed. (Id.) Officer Megara steps

forward, next to Officer Marano, and both officers continue to

talk to Franklin through the open driver’s side window. (Id.)

Officer Megara then opens the driver’s side door, and Officer

Marano joins him such that both officers are standing inside the

open door, directly next to Franklin who remains seated. (Id.)

The open door partially obscures the camera’s view of which

officer grabbed which of Franklin’s arms first, however,

Franklin can be seen leaning away, or pulling one of his arms

away, from the officers.2 Next, in one swift motion, both

officers appear to pull Franklin by his arms from his car, and

in so doing, Franklin-- who does not appear to be entirely

cooperative, but may not be actively resisting-- somehow moves

forward headfirst into the gas pump. (Id.) The video is unclear

as to whether Franklin uncontrollably falls or trips into the

gas pump, or whether the officers deliberately slammed

2 At the time of his deposition in this case, Franklin was

six foot and a half and weighed 258 pounds. (Franklin Dep. p.

8)

Franklin’s head into the gas pump. (Id.) Thereafter, Officer

Megara handcuffs Franklin without incident, and both officers

help to place Franklin in the back of Officer Megara’s car.

(Id.; Defs’ Statement of Undisputed Facts ¶ 45)

Regarding the moments leading up to Franklin’s removal from

the vehicle, Officer Marano testified that he “repeatedly”--

“two or three times”-- “asked” Franklin, through the open

driver’s side window, to leave, as the payment dispute had been

resolved when Franklin gave cash to the attendant. (Marano Dep.

p. 88-89; see also Megara Dep p. 91-92) Franklin, however, did

not leave, and he “expressed his discontent” with having to pay

the attendant when he stated that he had already paid in full.

(Marano Dep. p. 90) When Franklin did not leave, Officer Megara

made the decision to arrest Franklin, advised that Franklin was

being placed under arrest, and then reached into the car to

handcuff Franklin’s left hand. (Id. at p. 91; Megara Dep. p.

101, 106-07) Officer Marano further testified that “Mr.

Franklin had ahold of the steering wheel . . . and despite being

told repeated times to get out of the vehicle by Officer Megara,

he did not release his hand from the steering wheel”; “[h]is

hands were fixed to the steering wheel and he was refusing to

let go.” (Marano Dep. p. 91, 103; Megara Dep. p. 106, 108)

When asked how Franklin “went headfirst into a gas pump,”

Officer Marano testified, “I’m not honestly sure.” (Marano Dep.

p. 108) Officer Megara testified that Franklin “voluntarily ran

into the gas pump.” (Megara Dep. p. 109, 112)

Franklin’s version of events is somewhat different.

Franklin testified that he was told he was under arrest

immediately after he paid the gas station attendant, and that he

does not recall being asked to leave the gas station. (Franklin

Dep. p. 42, 47) As to what happened next, Franklin testified,

“I’m like, What? . . . I guess I wasn’t moving fast enough for

him because they charged me with resisting arrest because I

wasn’t fast enough, and they put the handcuffs on me, jerked me

out [of the vehicle].” (Id. at p. 45) As to how Franklin hit

his head on the gas pump, Franklin testified, “when I tried to

[get out of my vehicle], I was led into the gas pump.” (Id. at

p. 51)3 Franklin further testified that once he was in Officer

Megara’s car-- under arrest but still at the gas station-- he

asked Officer Megara to “call the ambulance” for his injuries.

(Id. at p. 59) Officer Megara also testified that, immediately

after Franklin was injured, Franklin “stated that he . . .

wanted to go to the hospital” and Megara “immediately” called

for EMS. (Megara Dep. p. 113)

3 Franklin’s opposition brief uses words such as “slammed”

and “thrown” to describe how Defendants allegedly caused

Franklin’s head to hit the gas pump. However, Franklin, in his

deposition, repeatedly used the word “led” (Franklin Dep. p. 51,

55), and did not use any version of “slam” or “throw” to

describe what the Defendants allegedly did to him.

It is undisputed that Franklin received medical treatment

from Riverside EMS while being processed at the police station,

and that after processing was completed, EMS transported

Franklin by ambulance to the hospital. (Defs’ Statement of

Undisputed Facts ¶ 51) At the hospital, Franklin was diagnosed

with a fractured neck, and his treatment included wearing a

cervical collar. (Pl’s Counterstatement of Undisputed Facts ¶¶

58-59)

Franklin was eventually convicted of disorderly conduct and

resisting the arrest, and those convictions were affirmed on

appeal. (Defs’ Statement of Undisputed Facts ¶¶ 52-55) Notably,

Law Division Judge Kelly found, after watching the surveillance

video of Franklin’s arrest:

For whatever reason, Mr. Franklin decided he wasn’t

leaving. He stayed. He was directed to leave again, and

he did not. The police told him, look, if you don’t leave

we’re going to lock you up. We’re going to arrest you.

He refused to leave, and began yelling at the officers

. . . .

He was then arrested. He was told he was being

placed under arrest. . . . Then there became the physical

struggle to get him out. . . . [H]e refused to come out,

and [the officers] were pulling him out of the car, and

finally he came out, and ran, kind of strangely,

headfirst into the gas pump that was on the island . .

. .

(Defs’ Ex. H at p. 23-24)4

4 The Law Division’s judgment was affirmed on appeal by the

Appellate Division. (See Defs’ Ex. K) Franklin contends that

“the [resisting arrest] conviction is wholly irrelevant to the

circumstances of this case.” (Opposition Brief, p. 8) To the

The Complaint asserts ten counts, however, in opposition to

Defendants’ instant Motion for Summary Judgment, Plaintiff

states that he “withdraws” all of his claims (Opposition Brief,

p. 1-2) except three claims against Defendants Marano and

Megara: (1) § 1983 / Fourth Amendment excessive force; (2) §

1983 / Fourteenth Amendment delay of medical care; and (3)

assault and battery.5

II. 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” 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.

In determining the existence of a genuine dispute of

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

reasonable “inferences, doubts, and issues of credibility should

contrary, “whether [Plaintiff was] actively resisting arrest or

attempting to evade arrest by flight” is a factor the jury will

be asked to consider. Graham v. Connor, 490 U.S. 386, 396

(1989).

5 As to the “withdrawn” claims, the Court expects that

Plaintiff will promptly file a stipulation of dismissal. See

Fed. R. Civ. P. 41(a)(1)(A)(2).

be resolved against the moving party.” Meyer v. Riegel Prods.

Corps., 720 F.2d 303, 307 n. 2 (3d Cir. 1983). However, a mere

“scintilla of evidence,” without more, will not give rise to a

genuine dispute for trial. Anderson, 477 U.S. at 252.

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 . . . could not lead a rational trier of fact to find for

the nonmoving party[.]” Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 587 (1986).

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

absence of a genuine issue of material fact.” Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ.

P. 56(c)). 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 (citing Fed. R. Civ.

P. 56(e)). 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.”)).

III. ANALYSIS

A. Qualified Immunity

Defendants move for summary judgment asserting that they

are entitled to qualified immunity. “[Q]ualified immunity

protects government officials from liability for civil damages

insofar as their conduct does not violate clearly established .

. . constitutional rights of which a reasonable person would

have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009)

(internal citation and quotation omitted). The qualified

immunity analysis first considers whether there was a

constitutional violation and, if so, whether the right violated

was clearly established at the time of the misconduct. Id. at

232. “A right is clearly established only if its contours are

sufficiently clear that ‘a reasonable official would understand

that what he is doing violates that right.’” Carroll v. Carman,

135 S.Ct. 348, 350 (2014) (quoting Andersen v. Creighton, 483

U.S. 635, 640 (1987)).

(1) Excessive Force

The Fourth Amendment permits the use of “reasonable” force.

Graham v. Connor, 490 U.S. 386, 396 (1989). “[E]ach case

alleging excessive force must be evaluated under the totality of

the circumstances.” Sharrar v. Felsing, 128 F.3d 810, 822 (3d

Cir. 1997).

The extent of the resulting injuries from the force used is

one of many factors that must be considered in evaluating

reasonableness. See Sharrar, 128 F.3d at 822. In this case,

Franklin’s injury is relatively severe; the undisputed record

demonstrates that Franklin fractured his neck. However, there

is an issue of disputed fact as to how the injury occurred--

i.e., whether the Defendants forced Franklin forward, head

first, into the gas pump or whether Franklin uncontrollably fell

or tripped into to gas pump while Defendants were attempting to

control and handcuff Franklin. Thus, the record evidence raises

sufficient issues of material fact as to the reasonableness of

the seizure at issue to support submitting the excessive force

claim to the jury.

Additionally, the Court holds that Defendants are not

entitled to qualified immunity at summary judgment. The Third

Circuit has explained,

[i]n the context of excessive force claims, we have

relied on the factors set forth in Graham and Sharrar

in evaluating whether an officer made a reasonable

mistake. We have stated that these factors are well-

recognized, and that when an officer applies them in

an unreasonable manner, he is not entitled to

qualified immunity.

Green v. New Jersey State Police, 246 F. App’x 158, 162-63 (3d

Cir. 2007). Disputes of historical material fact exist as to

how Franklin hit his head. Thus, the Court will resolve the

issue of qualified immunity by way of special interrogatories to

the jury, and, if necessary, Defendants may make an appropriate

motion at the appropriate time.

The Motion for Summary Judgment on the § 1983 excessive

force claim will be denied.6

(2) Delay of Medical Care

Franklin also asserts that Defendants violated his

constitutional rights when they allegedly delayed treatment for

the injuries Franklin sustained during his arrest.

6 The parties dispute the admissibility of the expert

report and testimony of Defendants’ witness, Frank Locantore,

who opines that Defendants did not use excessive force. The

Court need not, and does not, resolve this evidentiary issue at

summary judgment. Disputed issues of material fact preclude

summary judgment regardless of whether Mr. Locantore’s report

and testimony are admissible. Indeed, Mr. Locantore’s opinion

is based on Defendants’ version of events, which Franklin

disputes. In particular, Mr. Locantore’s opinion is based on

the asserted fact that Franklin “lurch[ed] or stumble[d] forward

striking his head against the gas pump.” (Defs’ Ex. 1, p. 4) As

noted above, Franklin asserts that he did not lurch or stumble,

but rather was led into the gas pump by Defendants.

Franklin was a pretrial detainee-- as opposed to a

convicted prisoner-- thus, the Fourteenth Amendment’s Due

Process Clause governs his claim for inadequate medical care.

Although “the contours of a state’s due process obligations to

[pretrial] detainees with respect to medical care have not been

defined by the Supreme Court. . . . , it is clear that detainees

are entitled to no less protection than a convicted prisoner is

entitled to under the Eighth Amendment.” A.M. v. Luzerne County

Juvenile Detention Center, 372 F.3d 572, 584 (3d Cir. 2004); see

also Hubbard v. Taylor, 399 F.3d 150, 166-67 (3d Cir. 2005).

Franklin must therefore establish that: (1) his injuries were

“sufficiently serious,” Wilson v. Seiter, 501 U.S. 294, 298

(1991), and (2) Defendants were “deliberately indifferent to

[Franklin’s] health or safety.” Farmer v. Brennan, 511 U.S. 825,

834 (1994). Deliberate indifference is “intentionally denying

or delaying access to medical care or intentionally interfering

with the treatment once prescribed.” Estelle v. Gamble, 429

U.S. 97, 104-05 (1976).

It is undisputed that: (1) Franklin received emergency

medical attention at the Riverside Police Station while he was

being processed for his arrest; and (2) after processing was

completed, Franklin was immediately transported to the hospital

by ambulance. All of the record evidence indicates that

Defendant Megara requested EMS while en route to the police

station from the gas station. (Defs’ Ex. D-- Marano Dep. p. 125-

26; Defs’ Ex. C-- Dispatch Narrative; Defs’ Ex. I-- EMS Report;

Megara Dep. p. 113) Indeed, Franklin himself testified:

Q: . . . how long after you were arrested did you ask

for medical attention?

A: Immediately.

. . .

Q: How long was it before you received medical attention?

A: I can’t put an accurate time now on it, but I know it

was awhile, but they probably did the best they could,

but I don’t know exactly.

(Franklin Dep. p. 122)

Franklin attempts to create an issue of fact by pointing to

minor time discrepancies between the Dispatch Narrative (Defs’

Ex. C), the EMS Report (Defs’ Ex. I), and the time stamps on the

gas station’s surveillance video (Defs’ Ex. A)-- all of which,

as Defendants observe, came from different sources. The

discrepancies, however, cannot overcome the undisputed evidence

that Franklin received emergency medical attention shortly after

his injury occurred. No reasonable factfinder could find on

this record that Defendants unreasonably and unconstitutionally

delayed medical care to Franklin. Accordingly, Defendants’

Motion for Summary Judgment as to the § 1983 / Fourteenth

Amendment delay of medical care claim will be granted.

B. Assault and Battery Claim

As discussed above with respect to the excessive force

claim, issues of fact exist as to whether Defendants “led”

Franklin forward, head first, into the gas pump or whether

Franklin uncontrollably fell or tripped into to gas pump while

Defendants were attempting to handcuff and control Franklin.

Thus, summary judgment will be denied the assault and battery

claim for the same reasons that summary judgment will be denied

as to the § 1983 excessive force claim.

IV. CONCLUSION

For the foregoing reasons, Defendants’ Motion for Summary

Judgment will be granted as to the § 1983 delay of medical care

claim, and denied as to all other remaining claims-- i.e., the §

1983 excessive force claim, and attendant assault and battery

claim. In light of the age of this case, a trial date will be

set promptly. As discussed, the record presents two sides to

this story which the jury will be called upon to evaluate. The

jury will be required to answer the questions that remain in

dispute, as set forth supra. The Court hastens to note-- for

the benefit of the parties-- that while Franklin has “won the

battle” at summary judgment, he may well “lose the war” at trial

where, surely, witness credibility will be a key factor. In

this regard, the Court notes that the Law Division found, after

viewing the surveillance video, that Franklin “ran . . .

headfirst into this gas pump.” (Defs’ Ex. H, p. 24). The issue

of witness credibility was not before this Court at summary

judgment. An appropriate Order shall issue on this date.

Dated: July 22, 2020 s/ Renée Marie Bumb

RENĚE MARIE BUMB, U.S.D.J.