GREENE v. PEREZ

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

RONALD B. GREENE, Civ. No.: 2:13-cv-5493

Plaintiff,

OPINION

v.

THOMAS DOMBROSKI, BRIAN KELLY,

DAVIS VALDIVIA, and MATTHEW

ZABLOCKI,

Defendants.

WILLIAM J. MARTINI, U.S.D.J.:

THIS MATTER comes before the Court upon Defendants’ Motion for Summary

Judgment, ECF No. 104, Plaintiff’s Motion to Dismiss Defendants’ Summary Judgment

Motion, ECF No. 107, and Plaintiff’s Opposition brief to Defendants’ Summary

Judgment Motion, ECF No. 109. The Court construes Plaintiff’s Motion to Dismiss

Defendants’ Summary Judgment Motion, ECF No. 107, as an Opposition to Defendants’

Motion for Summary Judgment. The Court has reviewed the motions and all papers filed

in support and opposition, and no oral argument was held pursuant to Federal Rule of

Civil Procedure 78. For the reasons set forth below, the Defendants’ motion is

GRANTED.

I. FACTUAL BACKGROUND

On October 18, 2011, the Bergen County Prosecutor’s Office Narcotics Task

Force conducted an undercover operation in which Officer Perez posed as a buyer of two

kilograms of heroin for $100,000. ECF No. 104-1, ¶¶ 1–2. As Perez and the seller were

approaching Perez’s vehicle in a hotel parking lot to complete the transaction, Plaintiff

encountered Perez. Id. at ¶¶ 9–11. According to Perez, Plaintiff racked a firearm and

pointed it at Perez. Id. ¶ 14-15. Plaintiff maintains that he never had a firearm. ECF No.

104-7 at 21, ¶ 11. It is undisputed that Perez started shouting “gun, gun, gun. . . ”, ran

from the scene, and did not return until after the incident in question. ECF Nos. 104-1 ¶¶

15–17; 70-1 ¶ 15–16; 70-2 ¶ 15. Hearing Perez shouting, immediately several officers

rushed towards Plaintiff including Officers Kelly, Valdivia, and Dombroski. ECF Nos.

104-1 ¶¶ 17–20; 70-1 ¶ 19. Officer Kelly tackled Plaintiff from behind, hitting Plaintiff’s

head on the pavement after Plaintiff threw his gun underneath vehicle and attempted to

enter the passenger side of a Toyota Camry. ECF Nos. 104-1 ¶¶ 21–24; 70-1 ¶ 20, 24.

Kelly proceeded to double-cuff Plaintiff and put his knee on his back and neck as

Plaintiff attempted to look around. ECF Nos. 104-7 at 26; 66-1 ¶ 20; 66-10 at 86–88, 94;

70-1 ¶¶ 20–21, 23.

After Plaintiff was handcuffed, Officer Kelly gave him “a few little hits” to the

back of his head. ECF Nos. 104-7 at 26 & 31; 66-1 ¶¶ 23; 66-10 at 56–57, 70-1 ¶¶ 21.

According to Plaintiff, these hits were with an object, possibly a radio. ECF Nos. 104-7

at 31; 66-10 at 88. Plaintiff also testified that after he was handcuffed Officer Kelly

punched Plaintiff in the back and stomach. ECF Nos. 66-1 ¶¶ 1–2; 66-10 ¶¶ 72–76; 70-1

¶¶ 1–2. Officer Valdivia then stomped on Plaintiff’s face, sending his tooth through his

lip. ECF Nos. 104-7 at 24, 26, 35, 36; 66-10 ¶¶ 13, 22, 56, 72–76; 70-1 ¶¶ 21. Officer

Valdivia proceeded to grind Plaintiff’s face and neck into the pavement with his foot.

ECF Nos. 104-7 at 30; 66-10 at 72–76; 70-1 ¶ 21. Officer Valdivia denies doing this and

claims that he only used “enough force to overcome [Greene’s] force.” ECF 104-1 at 13.

Officer Valdivia was with Plaintiff for about seven seconds before he pursued the Toyota

Camry. See ECF No. 104 Ex. C at 13:06:07-14. Plaintiff alleges that Officer Zablocki

briefly followed Kelly and Valdivia in tackling him but quickly backed off. ECF No. 104

at 26 & 29. Officer Kelly then picked Plaintiff up by his handcuffs, injuring Plaintiff’s

shoulder. ECF Nos. 104-7 at 38; 66-2 at 17; 70-1 ¶ 23. According to Plaintiff, nearby

officer Dombroski and Zablocki, failed to intervene during the application of this force.

ECF No. 104-7 at 27; 66-10 at 86–88. After the incident, Plaintiff alleges that his scalp

and face were bleeding and his face was swollen. ECF No. 70-1 ¶ 23, 25. Plaintiff was

asked approximately twenty-one hours later if he would like to seek medical attention

and Plaintiff declined. ECF Nos. 104-7 at 43-44; 66-1 ¶¶ 25; 70-1 ¶¶ 23, 25. Based on

these facts, Plaintiff filed this Section 1983 action alleging defendants used excessive

force in violation of the Fourth Amendment. The Court assumes the parties’ familiarity

with the procedural history of this case.

II. LEGAL STANDARD

Summary judgment is appropriate if “there is no genuine issue as to any material

fact and . . . the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56. A fact is material if its determination might affect the outcome of the suit under the

applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49

(1986). A dispute is genuine if “a reasonable jury could return a verdict for the

nonmoving party.” Id. To make this determination, the Court views the facts in the light

most favorable to the nonmovant and all reasonable inferences must be drawn in the

nonmovant’s favor. Scott v. Harris, 550 U.S. 372, (2007); Green v. New Jersey State

Police, 246 F. App’x 158, 159 (3d Cir. 2007).

The moving party bears the burden of demonstrating the absence of a genuine

dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant

meets this burden by pointing to an absence of evidence supporting an essential element

as to which the non-moving party will bear the burden of proof at trial. Id. at 325. If the

moving party carries this initial burden, “the nonmoving party must come forward with

specific facts showing that there is a genuine issue for trial.” United States v. Donovan,

661 F.3d 174, 185 (3d Cir. 2011) (citing Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 586–87 (1986) (internal quotation marks omitted)).

III. DISCUSSION

The Court now turns to Defendants’ Motion for Summary Judgment.

a. Qualified Immunity

To assess whether qualified immunity is warranted, the Court engages in a two-

part inquiry. Forbes v. Twp. of Lower Merion, 313 F.3d 144, 148 (3d Cir. 2002). First,

the Court examines whether the officer violated a constitutional right. Id.; see also

Saucier v. Katz, 533 U.S. 194, 201–02 (2001). Second the Court examines whether that

right was “clearly established.” Saucier, 533 U.S. at 201. A right is clearly established

for purposes of qualified immunity if a reasonable state actor under the circumstances

would understand that his conduct violates that right. Williams v. Bitner, 455 F.3d 186,

190 (3d Cir. 2006) (citing Saucier, 533 U.S. at 202). Thus “the right allegedly violated

must be defined at the appropriate level of specificity.” Wilson v. Layne, 526 U.S. 603,

615 (1999). While there is no requirement that the “very action in question has previously

been held unlawful,” Wilson, 455 F.3d at 191 (quoting Hope v. Pelzer, 536 U.S. 730, 741

(2002)), “existing precedent must have placed the statutory or constitutional question

beyond debate.” Carroll v. Carman, 135 S. Ct. 348, 350 (2014) (quoting Ashcroft v. al-

Kidd, 563 U.S. 731, 741 (2011)). Accordingly, while “a qualified immunity defense does

not demand that there had been a precise preview of the applicable legal analysis

underlying the defense; what is required is that government officials have ‘fair and clear

warning’ that their conduct is unlawful.” Halsey, 750 F.3d at 295 (citation omitted)).

b. Section 1983 and Excessive Force

A claim for excessive force in the context of an arrest invokes the Fourth

Amendment’s guarantee of individuals “to be secure in their persons . . . against

unreasonable . . . seizures.” Graham v. Connor, 490 U.S. 386, 394 (1989). To state a

claim for excessive force under the Fourth Amendment, a plaintiff must show that a

“seizure” occurred and that it was unreasonable. Kopec v. Tate, 361 F.3d 772, 776 (3d

Cir. 2004) (quoting Abraham v. Raso, 183 F.3d 279, 288 (3d Cir. 1999)). A seizure is

reasonable if, under the totality of the circumstances, “the officers’ actions are

‘objectively reasonable’ in light of the facts and circumstances confronting them, without

regard to their underlying intent or motivations.” Graham, 490 U.S. at 396–97. “The

‘reasonableness’ of a particular use of force must be judged from the perspective of a

reasonable officer on the scene, rather than with the 20/20 vision of hindsight,” and must

recognize “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.” Id.

District courts consider several factors in determining the reasonableness of the

officer’s force including the severity of the crime, whether the suspect posed an

immediate threat to the safety of officers or others, and whether the suspect actively

resisted arrest or tried to flee the scene. Graham, 490 U.S. at 396. The Third Circuit has

also provided additional relevant factors for the district court to consider, including “the

duration of the action, whether the action takes place in the context of effecting an arrest,

the possibility that the suspect may be armed, and the number of persons with whom the

police officers must contend at one time.” Sharrar v. Felsing, 128 F.3d 810, 822 (3d Cir.

1997). While the Court may consider the injuries sustained in assessing whether force

was excessive, lack of injury does not necessarily signify that the force used was not

unconstitutional. Id. However, this Circuit had repeatedly found that hitting, beating, or

otherwise striking an already-handcuffed individual who is not resisting arrest may

constitute unconstitutionally excessive force. Couden v. Duffy, 446 F.3d 483, 497 (3d Cir.

2006) (finding force excessive as a matter of law where plaintiff was not “resisting arrest

or attempting to flee” at the time force was used).

An officer may be liable under Section 1983 “not only if he personally participates

in the violation, but also if he directs others to so violate, or had knowledge of and

acquiesced in his subordinates’ violations.” Sharrar, 128 F.3d at 821 (citing Baker v.

Monroe Twp., 50 F.3d 1186, 1190–91 (3d Cir. 1995)). Thus, a Section 1983 plaintiff may

assert a “failure to intervene” claim when “ ‘a police officer, whether supervisory or not,

fails or refuses to intervene when a constitutional violation such as an unprovoked

beating takes place in his presence.” Smith v. Mensinger, 293 F.3d 641, 650–51 (3d Cir.

2002) (citation omitted). In such circumstances, a police officer who is present when

another officer violates an individual’s constitutional rights is liable if that officer had

reason to know the acting officer’s conduct constituted a constitutional violation and the

observing officer had “a reasonable and realistic opportunity to intervene.” Smith, 293

F.3d at 651; Johnson v. De Prospo, No. 08–1813, 2010 WL 5466255, at *4 (D.N.J. Dec.

30, 2010).

c. Application

1. Defendants Kelly and Validivia

Since this Court’s order of March 19, 2019 denying summary judgment with

regard to Officers Kelly and Valdivia, Defendants have added new evidence to the

record—namely, the August 15, 2019 deposition of Plaintiff Greene, ECF No. 104-7, and

surveillance video footage of the incident, ECF No. 104, Ex. C. Considering the new

evidence and viewing it in the light most favorable to Plaintiff, the Court concludes that

no reasonable jury could determine that Officers Kelly and Valdivia used excessive force

when arresting Plaintiff. After Plaintiff was tackled and handcuffed, he repeatedly

attempted to turn his shoulders and neck around in order to see what was going on. ECF

No. 104-11 at 81-82. Plaintiff testified, “That’s when my face got stomped, when I tried

to turn my head to look and see who stomped me the first time. The second time— . . .”

Plaintiff states that Kelly “hit me with something. Actually his knee—after that, he put

his knee at the center of spine and that’s when I got extra hits.” ECF No. 104-7 at 37.

Plaintiff testified, “I’m pinned to the ground. I turned my face and looked like this. I

didn’t my body. I turned my face to look. . . . After I was cuffed and I tried to see who

was on my back, that’s when Valdivia showed up and stomped my face.” Id. On the

basis of the Defendant’s own testimony, the Court concludes that after Plaintiff was

handcuffed, he repeatedly attempted to turn his shoulders and neck. The Court also

agrees with Defendants’ description of the surveillance video footage: “The surveillance

footage clearly shows a chaotic swirl of activity in which officers are in near constant

motion, attempting to wrangle multiple different suspects in a large open area.” While

the video evidence does not clearly depict the events at issue, they do show that the time

that elapsed after Plaintiff was tackled and before he was subdued was only seconds in

length. Plaintiff’s mugshots, taken at different times on the day of his arrest do not

evidence a use of excessive force, such as bruising or abrasions, and he subsequently

failed to request any kind of medical treatment for his injuries. See ECF No. 104-12.

Greene consistently testified that Officer Valdivia “stomped” on his face, but this

descriptor suggests a use of force that is completely inconsistent with lack of any sign of

physical injury. This lack of any sign of injury, in consideration with Plaintiff’s behavior

after he was handcuffed and the presence of a firearm at the then-active crime scene,

requires this Court to conclude that there is no genuine issue of material fact as to

whether Officers Kelly and Valdivia used excessive use of force in arresting Plaintiff

Greene. For these reasons, Defendants’ motion is GRANTED as to Defendant Kelly and

Valdivia

2. Defendant Dombroski and Zablocki

The Plaintiff alleges that Officers Dombroski and Zablocki failed to supervise

Valdivia, thereby proximately causing him to be deprived of his Fourth Amendment

rights. Am. Compl., 4. “Vicarious liability is inapplicable to § 1983 suits,” meaning that

“a plaintiff must plead that each Government-official defendant, through the official's

own individual actions, has violated the Constitution.” Ashcroft v. Iqbal, 556 U.S. 662,

676 (2009). In light of Iqbal, the Third Circuit has held that under a theory of supervisor

liability, “personal involvement by a defendant remains the touchstone for establishing

liability for the violation of a plaintiff's constitutional right.” Park v. Veasie, 720 F.

Supp.2d 658, 667 (3d Cir. 2010). Plaintiff testifies that “two other officers [Officers

Dombroski and Zablocki] came and jumped on me . . . but after they seen that I wasn’t

resisting, they backed up. After they jumped on me first, they backed up.” ECF No. 104-

7, at 26:10-25. Plaintiff also testified that Officer Dombroski never touched him. 27:1-9.

Plaintiff’s claim against Dombroski is a supervisory liability claim because “he should

have stopped them from, because, there was no accusation that I did anything to anybody

before they jumped on me.” Id. However, Plaintiff also testified that he remembered

Dombroski was approximately four cars away from his arrest, in front of the Malibu. Id.

at 27:23-25. At the same time that plaintiff was being arrested, other individuals were

attempting to flee the scene. There is no evidence that Dombroski participated in or

directed any subordinate to employ excessive force. Similarly, there are no facts that

would suggest Dombroski was even aware that any excessive force was being used.

When Plaintiff was asked where Defendant Zablocki was during the arrest, he did not

answer. ECF No. 104-7, at 28:13-24. Plaintiff states repeatedly that Zablocki tackled

him after Valdivia and that “[o]nce he came up and seen that I was being assaulted and I

wasn’t resisting, he should have stopped” Defendants Kelly and Valdivia. Id. at 29:15-

23. Plaintiff fails to state details about Officer Dombroski or Zablocki’s proximity to

him, or other factors probative of their knowledge of Officer Kelly and Valdivia’s

conduct with any specificity or consistently. Plaintiff fails to raise any additional

evidence to support his claim apart from generalized assertions that Officers Dombroski

and Zablocki railed to intervene. Consequently, Defendants’ motion is GRANTED as

to Defendant Dombroski and Zablocki. Defendant Dombroski and Zablocki are

DISMISSED from the matter with prejudice.

IV. CONCLUSION

For the reasons stated above, Defendant’s Motion for Summary Judgment, ECF

No. 104 is GRANTED. The matter is DISMISSED WITH PREJUDICE.

Dated: August 12, 2020

/s/ William J. Martini

WILLIAM J. MARTINI, U.S.D.J.