DEAN v. BOROUGH OF GLASSBORO

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

TAHARQA DEAN, Civil Action No. 17-7344

Plaintiff,

OPINION

v.

BOROUGH OF GLASSBORO, et al.,

Defendants.

APPEARANCES:

STANLEY O. KING

KING & KING, ESQS.

231 SOUTH BROAD STREET

WOODBURY, NEW JERSEY 08096

On behalf of Plaintiff

A. MICHAEL BARKER

TODD J. GELFAND

BARKER, GELFAN & JAMES

LINWOOD GREENE

210 NEW ROAD - SUITE 12

LINWOOD, NJ 08221

On behalf of Defendants

HILLMAN, District Judge

Before the Court is Defendant Michael Fanfarillo (“Officer

Fanfarillo”), Kyle Snyder (“Officer Snyder”), George Moore

(“Officer Moore”), Dominic Visceglia (“Officer Visceglia”),

Barry Gray (“Officer Gray”) (collectively “Individual

Defendants” or the “Officer(s)”), Police Chief Alex Fanfarillo

(“Chief Fanfarillo”), and the Borough of Glassboro’s

(“Glassboro”)(collectively “Defendants”) Motion for Summary

Judgment. As set forth below, the Court will grant, in part,

and deny, in part, Defendants’ Motion for Summary Judgment.

BACKGROUND

This case concerns the alleged use of excessive force on

and false arrest of Plaintiff, Taharqa Dean (“Plaintiff”). This

Court has before it video evidence capturing Defendants’

encounters with Plaintiff.1

1. First Encounter with Plaintiff

On September 23, 2015, Officer Fanfarillo responded to a

report of a man lying on the ground having a seizure. Officer

Snyder was also dispatched to the same location for a medical

call. After assessing the scene, Officer Snyder testified he

had no reason to believe Plaintiff was involved in criminal

activity. Officer Fanfarillo observed Plaintiff lying face down

on the ground semi-conscious, sweating profusely, breathing

heavily, and severely disoriented. Officer Snyder told

Plaintiff to “focus on your breathing alright bud” and that help

1 The facts as depicted in the videotape are included because the

video is part of the record and, therefore, the Court must rely

on the video in ruling on summary judgment. See Scott v.

Harris, 550 U.S. 372, 381 (2007) (finding that the Court of

Appeals “should have viewed the facts in the light depicted by

the videotape”); Ference v. Township of Hamilton, 538 F. Supp.

2d 785, 789 (D.N.J. 2008)(“The videotape is also likely the best

available evidence of the events at issue in this case. Thus,

the videotape will be considered as part of the record.”).

was on the way. Officer Fanfarillo asked the bystanders if they

knew Plaintiff’s name and explained “I have actually talked to

him before. He has told me he has seizures.” Soon thereafter,

emergency medical technicians (“EMT”) Thomas Lamond (“EMT

Lamond”) and Jennifer Boos (“EMT Boos”) arrived at the scene and

a decision was made to transport Plaintiff to the hospital.

The EMTs rolled Plaintiff over and stated “hey hey” in

response to Plaintiff’s attempts to get up and asked Plaintiff

to remain sitting down. The Officers and EMTs placed their

hands on Plaintiff’s shoulder to keep Plaintiff from standing up

and repeatedly stated “it is okay,” “don’t worry about it,” and

asked Plaintiff to “relax.” Officer Fanfarillo reminded

Plaintiff that the two of them have talked before and that they

knew each other. The EMTs informed Plaintiff that he recently

experienced a seizure and Officer Snyder notified him that “it

is okay bud.”

Eventually, the Officers helped the EMTs place Plaintiff on

the stretcher and strapped him in. Officer Snyder again

explained “it is alright man don’t worry about it.” Officer

Fanfarillo then asked about Plaintiff’s identification and

explained he remembered Plaintiff’s name started with a D. The

EMTs and Officers then identified Plaintiff through a check EMT

Lamond found in Plaintiff’s pocket. Officer Fanfarillo

confirmed that Plaintiff’s name was Dean and explained to the

EMTs that Plaintiff has lived in this area for about a year.

Officer Snyder then explained to the EMTs that he thought

someone saw Plaintiff have a seizure, that he fell on the

ground, and that when Officer Snyder arrived at the scene

Plaintiff was already on the ground. The EMTs attempted to hook

Plaintiff up to oxygen but he shook his head when they attempted

to place the oxygen up his nose. During this time, Officer

Snyder explained to Plaintiff that the EMTs are “going to put

some oxygen on” him. EMT Boos then told EMT Lamond to not worry

about it because he was breathing, to which Officer Snyder

responded, “he is breathing pretty good” to which the EMTs

agreed. The EMTs then loaded Plaintiff onto the ambulance.

Plaintiff did not speak during this first encounter with the

Officers.

2. Second Encounter with Plaintiff

After Plaintiff was placed into the ambulance for

transport, the Officers were called back to the scene by 911 for

“an assault” and were informed Plaintiff was combative and

kicking and biting an EMT. Officer Snyder testified that this

second call “was a different type of call” than the first one.

More specifically, Officer Snyder testified, “I didn't know what

was going on. We got a call, came back, I put myself in a

tactical position to either have to prevent any type of previous

as reported combativeness toward EMT personnel or assist with

whatever was needed to be assisted with.”

Once back at the scene, Officer Fanfarillo opened the rear

door of the ambulance and found Plaintiff standing alone in the

ambulance with straps around his legs and standing next to the

stretcher. Officer Fanfarillo explained to Plaintiff that he

has “got to lay down” and “Mr. Dean lay down man come on.”

Officer Fanfarillo then stepped into the ambulance, walked

towards Plaintiff, and placed his hand on Plaintiff’s arm

explaining that he needed to lie down and guiding him back to

the seated position on the stretcher. Officer Fanfarillo then

said to Plaintiff “we talked before and we were on good terms,

me and you…. You have an issue going on alright? You’re having a

seizure… I just want to help you. Nobody wants to hurt you…. I

know what happened in the past but it ain’t happening now,

alright? We good? We gonna let them help you a little bit?”

Plaintiff did not response to Officer Fanfarillo, started

breathing heavily, looked side to side, and then tried to lie

his head down. Officer Fanfarillo then radioed “we’re ok here”

to communications. Officer Fanfarillo began to remove the leg

stretcher straps from Plaintiff while EMT Boos asked “what’s

your name bud?” Plaintiff failed to respond. Around this time,

Officer Snyder entered the ambulance from the front and joined

Plaintiff and Officer Fanfarillo in the back of the ambulance.

Plaintiff then stood up and attempted to pull his pants up which

had fallen down perhaps in an attempt to remove himself from the

straps holding him to the stretcher. Officer Snyder told

Plaintiff to “have a seat back down bud” and then Officer

Fanfarillo asked the EMTS “he can’t refuse at this point can

he?” Plaintiff tugged at his pants for approximately two

minutes.

During this time, Officer Snyder asked Plaintiff if he was

alright and EMT Boos explained “you had a seizure sir” and that

“someone saw you seizing on the side of the road.” The Officers

asked if he was okay and said they were here to help explaining

“we’re here to help, we’re going to go to the hospital, you ok

with that?” EMT Boos then asked “does anything hurt you?” and

“can you tell us your name?” Plaintiff was completely

unresponsive and non-communicative during this entire time

despite repeated attempts to engage him in conversation.

As EMT Boos asked Plaintiff “do you know what happened?”

Plaintiff started to walk towards the back of the ambulance

despite continuing instructions from the Officers to sit back

down. Plaintiff then attempted to step his right foot off the

ambulance onto a rear step, but hesitated placing his foot back

on the floor inside the ambulance. Suddenly, Plaintiff’s left

leg extended outside of the ambulance contacting Officer

Fanfarillo. It is unclear whether Plaintiff simply misperceived

the distance to the ground and used his extended leg to brace

his fall or intentionally kicked Office Fanfarillo.

In any event, Plaintiff was soon on the pavement behind the

ambulance. Once on the ground, the following exchange between

Officer Fanfarillo and Plaintiff occurs:

Officer Fanfarillo: What you’re gonna fucking bite me for?

What you gonna bite me for?

Plaintiff: I didn’t man!

Officer Fanfarillo: I talked to you like a person, treating

you normal

Plaintiff: Fuck off man.

The Officers attempted to turn Plaintiff onto his stomach

in order to handcuff him. The Officers repeatedly said “relax”

to which Plaintiff says “alright.” Plaintiff then started to

scream out “my leg,” “Alright! Alright! Alright!” The Officers

asked Plaintiff to give them his right arm and told him to stop

resisting. Plaintiff continued to say “alright” and scream. As

they continued to attempt to place handcuffs on Plaintiff,

Officer Snyder can be heard saying “he’s biting.” Defendants

contend that at this stage of the altercation the video depicts

Plaintiff grabbing Officer Snyder’s gun. The Court is unable to

conclude that assertion is an uncontestable fact. Viewing the

evidence in the light most favorable to the Plaintiff, the video

does not clearly depict Plaintiff’s hand on Officer Snyder’s

gun.

As the Officers and Plaintiff continue to grapple, the

Plaintiff was warned a few times that he was going to get pepper

sprayed. Officer Snyder told Officer Fanfarillo to back up

because he was going to spray Plaintiff. From the video it is

not clear when the Officers were able to successfully handcuff

Plaintiff; however, it is depicted that once Officer Snyder

pepper sprayed Plaintiff, he turned over and his hands were

already handcuffed.

At this point the Officers disengaged; however, Plaintiff

started to harm himself by banging his head against the curb.

Other Officers Visceglia, Officer Gray, and Officer Moore

arrived at the scene and moved Plaintiff away from the curb. On

the video, Plaintiff is clearly agitated, belligerent, and

vocal. The Officers redouble their efforts to further

physically restrain and control Plaintiff who remained

handcuffed, a process that took several minutes. Defendants

allege Plaintiff can be heard screaming “die, die, die,” which

Plaintiff disputes, contending he was merely calling out “John,

John” his father’s name. It is unclear from the video whether,

on the one hand, Plaintiff’s obvious distress was caused by the

continuing efforts to restrain him, or, on the other hand,

whether the Officers were acting reasonably in reaction to

Plaintiff’s continuing resistance to those same efforts.

Whatever may be cause or effect, the process of eventually

restraining Plaintiff plays out over a prolonged period. The

Officers turn Plaintiff’s body over face down on the pavement

and several officers kneel and place their body weight on

various parts of his legs and backside while efforts are made to

tie and bind his ankles. One officer bends Plaintiff’s cuffed

hands and into a cross position on his back. During this time,

an Officer explained that Plaintiff bit him, the wound visible

on the video, and another Officer asked if Plaintiff was having

seizures. Plaintiff is eventually given a shot of ketamine, a

tranquilizer, in the torso.

As the Officers awaited the effects of the ketamine they

continue their efforts to restrain Plaintiff. Officer

Fanfarillo’s body camera footage shows a second Officer

continuing to place his weight into Plaintiff’s back while

another Officer places his body weight into other parts of

Plaintiff’s body. The Officers then locked Plaintiff’s

handcuffs. Almost two minutes after Plaintiff received his shot

of ketamine, one Officer twisted Plaintiff’s arm even further

back (in a wrist lock) at the same time two Officers are still

pushing their weight into his back and legs. During this time,

Plaintiff continued to scream and attempted to move his hands

while officers continued their commands to Plaintiff to calm

down and that they would get off of him when he did so.

Over the next minute and half Plaintiff, bound at the hands

and feet and face down on the pavement with the Officers still

pressing their body weight into him, appears to calm down when

the EMT and Officers realize he has apparently stopped

breathing. EMT Boos orders “some oxygen on him” because “he is

not breathing” which the officers appear to acknowledge or at

least repeat. EMT Boos instructed the Officers to “roll him

over because he is not breathing now.” The Officers then rolled

Plaintiff onto his back while Plaintiff was hooked up to oxygen.

An officer uncuffs him. Soon thereafter, EMT Boos observed

“he’s breathing more now” and Plaintiff was then loaded onto a

stretcher and placed into the ambulance. In sum, from the time

the Plaintiff was handcuffed, laid face down, and had his ankles

secured, approximately six minutes passed with Officers

collectively pressing their body weight into the Plaintiff’s

body until he stopped breathing on his own.

Plaintiff was then taken to Cooper Trauma Unit for

treatment, and then transferred to the Gloucester County

Sheriff’s Office. Plaintiff suffered lacerations to his head,

cuts, abrasions, and sustained pinched nerves and bulging discs

in the neck and lower back, nerve damage in both wrists, a groin

injury, and aggravation of a prior rotator cuff injury, which

required surgery. Plaintiff was hospitalized at Cooper for

approximately a week and a half during which time his wrists and

ankles were handcuffed to the bed.

As a result of the foregoing actions, Plaintiff filed suit

against Defendants asserting the following causes of action: (1)

Count I – Excessive Force under 42 U.S.C. § 1983; (2) Count II –

False Arrest/False Imprisonment under 42 U.S.C. § 1983; (3)

Count III – Failure to Intervene under 42 U.S.C. § 1983; (4)

Count IV – Monell and Supervisory Liability under 42 U.S.C. §

1983; (5) Count V – Civil Rights Conspiracy under 42 U.S.C. §

1983; (6) Count VI – New Jersey Civil Rights Act; (7) Count VII

– Common Law Assault and Battery; (8) Count VIII – Common Law

False Arrest and False Imprisonment; (9) Count IX – Common Law

Negligence; and (10) Count X – Common Law “Pendent” Claim for

Gross Negligence.2 On November 9, 2020, Defendants filed a

Motion for Summary Judgment. The Motion has been fully briefed

and is ripe for adjudication.3

2 In Plaintiff’s Response to Defendants’ Statement of Undisputed

Facts, Plaintiff admits these are the only causes of actions

asserted against Defendants. The Court is unsure why Defendants

provide arguments in their Reply Brief in support of dismissing

a malicious prosecution claim that Plaintiff does not assert.

Accordingly, the Court will not address the arguments regarding

a malicious prosecution claim.

3 In response to Defendants’ Motion for Summary Judgment,

Plaintiff consented to the dismissal of the following claims

and/or remedies: (1) civil rights conspiracy; (2) common law

torts; and (3) punitive damages against Glassboro only.

Accordingly, Defendants’ Motion for Summary Judgment is granted

to the extent it seeks dismissal of Plaintiff’s civil rights

conspiracy claims, common law torts claims, and Plaintiff’s

request of relief in the form of punitive damages against

DISCUSSION

A. Subject Matter Jurisdiction

The Court has original federal question jurisdiction over

Plaintiff’s federal claims under 28 U.S.C. 1331, and has

supplemental jurisdiction over the New Jersey state law claims

pursuant to 28 U.S.C. 1367(a).

B. Legal Standard for Summary Judgment

Summary judgment is appropriate where the Court is

satisfied that the materials in the record, including

depositions, documents, electronically stored information,

affidavits or declarations, stipulations, admissions, or

interrogatory answers, demonstrate that there is no genuine

issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law. Celotex Corp. v.

Catrett, 477 U.S. 317, 330 (1986); Fed. R. Civ. P. 56(a).

An issue is “genuine” if it is supported by evidence such

that a reasonable jury could return a verdict in the nonmoving

party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986). A fact is “material” if, under the governing

substantive law, a dispute about the fact might affect the

outcome of the suit. Id. In considering a motion for summary

judgment, a district court may not make credibility

determinations or engage in any weighing of the evidence;

Glassboro.

instead, the non-moving party's evidence “is to be believed and

all justifiable inferences are to be drawn in his favor.”

Marino v. Industrial Crating Co., 358 F.3d 241, 247 (3d Cir.

2004)(quoting Anderson, 477 U.S. at 255).

However, the Supreme Court has instructed that, in

qualified immunity cases, the existence of a videotape recording

presents an “added wrinkle” to the general standard requiring

the court to construe facts in the light most favorable to the

non-moving party. Scott v. Harris, 550 U.S. 372, 378 (2007).

In that regard, “[w]here there is a video recording of the

relevant events, the Court views the facts as depicted in the

recording, rather than in the non-movant’s favor, whenever the

recording ‘blatantly contradict[s]’ the non-movant's version

such that ‘no reasonable jury could believe it.’” Knight v.

Walton, 660 F. App’x 110, 112 (3d Cir. 2016) (quoting Scott, 550

U.S. at 380-81).

Initially, the moving party has the burden of demonstrating

the absence of a genuine issue of material fact. Celotex Corp.,

477 U.S. at 323. Once the moving party has met this burden,

the nonmoving party must identify, by affidavits or otherwise,

specific facts showing that there is a genuine issue for trial.

Id. Thus, to withstand a properly supported motion for summary

judgment, the nonmoving party must identify specific facts and

affirmative evidence that contradict those offered by the moving

party. Anderson, 477 U.S. at 256-57. A party opposing summary

judgment must do more than just rest upon mere allegations,

general denials, or vague statements. Saldana v. Kmart Corp.,

260 F.3d 228, 232, 43 V.I. 361 (3d Cir. 2001).

C. Analysis

Plaintiff has brought his claims for excessive force,

failure to intervene, and false arrest/false imprisonment

pursuant to both 42 U.S.C. 1983 and the New Jersey Civil Rights

Act (“NJCRA”). Section 1983 is not a source of substantive

rights, but provides a vehicle for vindicating the violation of

other federal rights. Graham v. Connor, 490 U.S. 386, 393-94

(1989). Section 1983 provides in relevant part:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of

any State or Territory ... 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

. . . .

To state a claim for relief under § 1983, a plaintiff must

allege the violation of a right secured by the Constitution or

laws of the United States, and that the alleged deprivation was

committed or caused by a person acting under color of state law.

West v. Atkins, 487 U.S. 42, 48 (1988); Piecknick v.

Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir. 1994). The NJCRA,

N.J.S.A. 10:6-1 et seq., was modeled after § 1983 and creates a

state law cause of action for violation of an individual’s

federal and state constitutional rights. Owens v. Feigin, 194

N.J. 607 (N.J. 2008). “The NJCRA is interpreted analogously to

§ 1983.” Alexander v. Borough of Pine Hill, No. 17-6418, 2020

U.S. Dist. LEXIS 215661, at *13 (D.N.J. Nov. 18, 2020) (citing

Norman v. Haddon Township, No. 14-cv-06034-NLH-JS, 2017 U.S.

Dist. LEXIS 100707 (D.N.J. 2017)).

The doctrine of qualified immunity provides that

“government officials performing discretionary functions . . .

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 should have

known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Thus,

government officials are immune from suit in their individual

capacities unless, “taken in the light most favorable to the

party asserting the injury, . . . the facts alleged show the

officer’s conduct violated a constitutional right” and “the

right was clearly established” at the time of the objectionable

conduct. Saucier v. Katz, 533 U.S. 194, 201 (2001). Courts may

exercise discretion in deciding which of the two prongs 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, 236 (2009).

This doctrine “balances two important interests — the need

to hold public officials accountable when they exercise power

irresponsibly and the need to shield officials from harassment,

distraction, and liability when they perform their duties

reasonably” and it “applies regardless of whether the government

official’s error is a mistake of law, a mistake of fact, or a

mistake based on mixed questions of law and fact.” Id.

(internal quotation omitted). Properly applied, qualified

immunity “protects ‘all but the plainly incompetent or those who

knowingly violate the law.’” Ashcroft v. al-Kidd, 563 U.S. 731,

741 (2011) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).

Here, Plaintiff alleges Defendants violated his

constitutional rights in using excessive force, falsely

arresting/imprisoning him, and failing to intervene. Moreover,

Plaintiff asserts Monell and supervisory liability claims

against Glassboro and Chief Fanfarillo.

a. False Arrest and False Imprisonment

Defendants argue the community caretaking doctrine defeats

Plaintiff’s false arrest claims because the Officers arrested

Plaintiff, who was in need of medical attention, to prevent

danger to Plaintiff, the Officers, and EMTs. Plaintiff responds

that the community caretaking doctrine is inapplicable under the

facts of this case because the Officers were responding to the

second call for an “assault” and “combativeness,” which

indicates the response to the scene was for a law enforcement

purpose. Plaintiff further argues that the failure of the

Officers to obtain approval from a medical control physician

before seizing Plaintiff is inconsistent with application of the

community caretaking doctrine. On this issue, this Court agrees

with Defendants.

The community caretaking doctrine “is an exception to the

warrant requirement of the Fourth Amendment and allows police

with a non-law enforcement purpose to seize or search a person

or property ‘in order to ensure the safety of the public and/or

the individual, regardless of any suspected criminal activity.’”

Vargas v. City of Philadelphia, 783 F.3d 962, 971 (3d Cir. 2015)

(quoting United States v. King, 990 F.2d 1552, 1560 (10th Cir.

1993)). In Vargas, the plaintiff dialed 911 to seek emergency

assistance for her daughter's asthma attack. Id., 783 F.3d at

966. While waiting for paramedics to arrive, the plaintiff and

other individuals placed the plaintiff’s daughter in a vehicle

and prepared to take the daughter to the hospital themselves.

Id. Police officers, responding to a report of screaming

individuals, allegedly positioned their vehicle so that it

blocked the plaintiff’s vehicle. Id. The officers reportedly

ordered everyone out of the vehicle and knowing an ambulance was

nearby, instructed the plaintiff and the others to wait for the

paramedics. Id. at 967. The plaintiff claimed that the

officers unreasonably seized her in violation of the Fourth

Amendment. Id. at 968.

The Third Circuit held that “the community caretaking

doctrine can apply in situations when . . . a person outside of

a home has been seized for a non-investigatory purpose and to

protect that individual or the community at large.” Id. at 972.

The Vargas court agreed with the defendants’ argument that even

if there was a seizure, it was reasonable under the community

caretaking doctrine. The Third Circuit held:

The undisputed facts show that the actions of

[the officers] were reasonable. They were

responding to a volatile situation which they

did not initially know involved a medical

emergency, and any brief seizure that may have

occurred was a result of the officers’ concern

for the safety of everyone involved. . . .

Once the officers realized [the plaintiff's

daughter] needed medical attention, it was

reasonable for them to direct [the plaintiff]

to wait because an ambulance was within

earshot and its arrival was apparently

imminent.

Here, similar to the officers in Vargas, even viewed in the

light most favorable to Plaintiff, the body camera footage

demonstrates conclusively that the Defendants’ initial focus was

the concern for the safety of Plaintiff as well as the others

around him. As depicted on the video, Plaintiff attempted to

exit the ambulance after repeatedly being told in a benevolent

tone and professional manner that he was in need of medical

care. His response was to ignore their reasonable directions

and to give no verbal response whatsoever to the Officers and

EMTs at the scene endeavoring to help him. The Officers were

aware he had previously experienced a seizure, appeared

continuously disorientated during the encounter with the

Officers, and had reason to believe that minutes before he had

kicked and bit EMT Lamond, who was attempting to provide him

with medical assistance.

The events depicted in the video confirm the applicability

to the community caretaking doctrine to the Defendant Officers’

initial seizure of the Plaintiff in light of the uncontested and

uncontestable events depicted in the body worn camera video. It

would not have been proper for the Defendants to essentially

allow Plaintiff to leave and walk away while in the middle of

what any reasonable person would view as a medical emergency.

Such actions could put the public in danger as well as Plaintiff

himself. The fact that Plaintiff was later charged with

offenses related to the struggle with the Officers attempting to

subdue Plaintiff does not mean the initial seizure of Plaintiff

is not governed the community caretaking doctrine.

The Court finds Plaintiff’s reliance on cases where there

were questions of fact regarding whether the initial stop of

Plaintiff was a pretext to investigate suspected criminal

activity unpersuasive. As detailed above, the body camera

footage clearly depicts the Officers arrived at the scene in an

attempt to calm a volatile situation, called in a all-clear soon

after they arrived, and went about a concerted effort to protect

the Plaintiff from harming himself and others first by

encouraging him to agree to EMT transport and then forcing the

issue when he refused to comply.

Moreover, the Court finds the Plaintiff’s argument

meritless that the Officers should have received approval from a

medical control physician before seizing Plaintiff. The

Officers were responding to a situation where they received

information that the Plaintiff has already bit and kicked EMT

Lamond. While the officers were clearly not coming back to the

scene to arrest Plaintiff for such actions and instead were

coming back to help calm the situation, the Court cannot

conclude that they should have not used any force to arrest

Plaintiff in light of the clear possibility, even likelihood,

that he might harm himself or another individual if not

restrained immediately.

Accordingly, the Court concludes as a matter of law that

the undisputed facts show that the Officers’ actions from the

beginning of the second encounter up until the point they

initially subdued him by handcuffing him are protected from

liability by the community caretaking doctrine. Accordingly,

the Court will grant Defendants’ Motion for Summary Judgment

regarding Plaintiff’s false arrest claims and false imprisonment

claims pursuant to 42 U.S.C. § 1983 and NJCRA to the extent

based on the Plaintiff’s initial detention.4

However, the same cannot be said for the events that

followed the initial detention regarding Plaintiff’s claims for

the use of excessive force.

b. Excessive Force and Failure to Intervene

In determining whether excessive force was used in

effecting an arrest, the Fourth Amendment’s “objective

reasonableness” test is applied. Sharrar v. Felsing, 128 F.3d

810, 820-21 (3d Cir. 1997) (citing Graham v. Connor, 490 U.S.

4 The Court will deny without prejudice Defendants’ Motion for

Summary Judgment regarding Plaintiff’s NJCRA and 42 U.S.C. §

1983 claims to the extent based on Plaintiff’s alleged false

imprisonment after the initial detention to the extent that

exists as a standalone claim. In Defendants’ initial papers in

support of their Motion for Summary Judgment, Defendants focus

on the reasons why the court must dismiss Plaintiff’s false

arrest claim not Plaintiff’s false imprisonment claim. It is

not until the Defendants’ reply brief that Defendants argue

dismissal of the false imprisonment claim is warranted because

“the continued suggestion of any viable ‘false arrest; is

frivolous and should be explicitly dismissed by this motion.”

This is because, according to Defendants, false imprisonment

claims are “only properly asserted for damages for confinement

imposed pursuant to legal process up until the time of trial.”

(ECF No. 56 at 25.) “However, it is well-established that new

arguments cannot be raised for the first time in reply briefs.”

Spence v. New Jersey, No. 19-21490 (NLH/KMW), 2021 U.S. Dist.

LEXIS 70128, at *12 (D.N.J. Apr. 12, 2021) (quoting Pitman v.

Ottehberg, No. 10-2538 (NLH/KMW), 2015 U.S. Dist. LEXIS 4438,

(D.N.J. Jan. 14, 2015)). Accordingly, this “[a]rgument[] raised

for the first time in [Defendants’] reply brief will be

disregarded.” Id. (quoting Thomas v. Correctional Medical

Services, Inc., No. 1:04-cv-3358 (NLH), 2009 U.S. Dist. LEXIS

21762 at *13 (D.N.J. March 17, 2009)).

386, 396 (1989)). The objective reasonableness test “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.” Id. (relying

on Graham, 490 U.S. at 396; Groman v. Township of Manalapan, 47

F.3d 628, 634 (3d Cir. 1995)). “Other relevant factors include

the possibility that the persons subject to the police action

are themselves violent or dangerous, 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.” Id.

In order to establish a claim for failure to intervene in

another’s use of excessive force, a plaintiff must show that:

(1) the defendant failed or refused to intervene when a

constitutional violation took place in his or her presence or

with his or her knowledge; and (2) there was “a realistic and

reasonable opportunity to intervene.” Smith v. Mensinger, 293

F.3d 641, 651 (3d Cir. 2002).

Even though the determination of whether an officer acted

in an objectively reasonable manner or made a reasonable mistake

of law, and is thus entitled to qualified immunity, is a

question of law that is properly answered by the court, not a

jury, the Third Circuit has recognized that a judge should not

decide the objective reasonableness issue until all the material

historical facts are no longer in dispute. Curley v. Klem, 499

F.3d 199, 211, 211 n.12 (3d Cir. 2007). To do this, “[a] judge

may use special jury interrogatories, for instance, to permit

the jury to resolve the disputed facts upon which the court can

then determine, as a matter of law, the ultimate question of

qualified immunity.” Id. In other words, “[w]hen the ultimate

question of the objective reasonableness of an officer’s

behavior involves tightly intertwined issues of fact and law, it

may be permissible to utilize a jury in an advisory capacity, .

. . but responsibility for answering that ultimate question

remains with the court.” Id.

The Court first notes that as found above “[b]ased on

Defendants’ knowledge that the Plaintiff [kicked and bit] the

EMT — whether intentional or not — and Plaintiff’s resistant to

the EMT’s attempts at providing medical care, Defendant[s were]

justified in employing some amount of force to take control of

the situation to prevent Plaintiff from harming others or

himself.” Keller v. Crawford, 465 F. Supp. 3d 472, 479 (E.D.

Pa. June 4, 2020); see also Anthony v. Seltzer, 696 F. App’x 79,

82 (3d Cir. 2017) (drawing a distinction between using force to

subdue a noncompliant person having a seizure and using force

once the person was subdued, and holding the latter, but not the

former, to be excessive). Accordingly, in line with this case

law and consistent with the Court’s previous finding that the

community caretaking doctrine protects the Officers up until the

time the Officers handcuffed the Plaintiff, the Court will grant

Defendants’ Motion for Summary Judgment regarding Plaintiff’s

excessive force claims under 42 U.S.C. § 1983 and NJCRA to the

extent based on force applied to subdue and handcuff Plaintiff

initially.

However, the same cannot be said for the force applied

after Plaintiff was subdued and handcuffed. Defendants rely

heavily on the video evidence to argue that it clearly depicts

their version of the encounter with Plaintiff and that the

videos support that their use of force was reasonable.

Plaintiff, in contrast, argues that the video speaks for itself,

supports his version of the events, and it is subject to the

review and perception of the jury. The Court has viewed the

video evidence several times, and finds that a jury must watch

and assess the footage because a jury could find that it

supports the Defendants’ version of events rather than the

Plaintiff’s, or could interpret what it sees to support

Plaintiff’s account of what occurred.

The following are examples of disputed facts that require a

jury’s resolution, although there may be many other facts

requiring a jury’s consideration:5

1. Did Plaintiff intentionally try to kick Officer

Fanfarillo while Plaintiff was on the edge of the

ambulance?

2. Did Plaintiff purposefully attempt to disarm Officer

Snyder while the Officers were attempting to subdue

Plaintiff?

3. Did Plaintiff purposefully attempt to bite the Officers

while the Officers were attempting to subdue him?

4. Was Plaintiff repeatedly yelling at the Officers to “die”

or was Plaintiff repeatedly calling out for his father

“John” and screaming because of the pain he was

experiencing and/or because Plaintiff was experiencing or

recovering from an epileptic seizure?

5. Was Plaintiff continuing to move while the Officers

applied pressure on his body because he was experiencing

or recovering from an epileptic seizure and/or because of

the pain of the Officers’ weight applied to his body as

opposed to Plaintiff resisting arrest?

6. Did Plaintiff continue to pose a threat after his hands

5 The Court provides these examples of jury interrogatories only

to show that disputed facts need to be resolved before the Court

can undertake the qualified immunity analysis. At trial, the

actual special interrogatories submitted to the jury will be

posed by the parties and approved by the Court, and they will

not necessarily be framed as presented here.

were bound by handcuffs?

7. Did Plaintiff continue to pose a threat after Plaintiff’s

feet were bound while Plaintiff laid in a prone position

with his hands bound by handcuffs?

8. Did Plaintiff continue to pose a threat before the

ketamine was administered and after he was handcuffed,

after the ketamine was administered, or only after a

certain time had passed?

Because the video could support various outcomes, a jury

must decide which version to believe. Either way it decides, a

jury’s assessment of the videos, in combination with the other

evidence, through the use of special interrogatories on the

issues set forth above or perhaps others, must be performed so

that the Court may make the ultimate determination as to whether

Defendants’ use of force on Plaintiff was reasonable.6

Consequently, because disputed material facts must be

resolved by a jury prior to the Court’s determination of whether

Defendants are entitled to qualified immunity, Defendants’

6 This is not a case where even if all of the Plaintiff’s claims

are accepted as true, the Officers’ actions following the

handcuffing of Plaintiff could be found to be objectively

reasonable. Cf. Feldman v. Community College of Allegheny

(CCAC), 85 F. App’x 821, 826 (3d Cir. 2004) (“[W]e agree with

the District Court’s assessment that, even accepting Feldman’s

description of the arrest, the force resulted as part of the

struggle and was not excessive in light of Feldman’s physical

resistance. The force was reasonable under Groman and fails to

amount to a § 1983 violation.”).

Motion for Summary Judgment to dismiss Plaintiff’s excessive

force claims under 42 U.S.C. § 1983 and NJCRA to the extent

based on the force applied after Defendants handcuffed Plaintiff

is denied without prejudice. For similar reasons, the Court

will also deny without prejudice Defendants’ Motion for Summary

Judgment regarding Plaintiff’s failure to intervene claims. At

this time, the Court is unable to determine, as a matter of law,

the ultimate question of qualified immunity as to Plaintiff’s

failure to intervene claim, which is dependent on the facts

underlying Plaintiff’s excessive force claim. As such, and

according to Curley, the Defendants’ motion seeking a

determination that Defendants are entitled to qualified immunity

on Plaintiff’s excessive force and failure to intervene claims

pursuant to the NJCRA and 42 U.S.C. § 1983 must be denied

without prejudice.7

7 “Since there is a dispute of material fact concerning the

events during the arrest that must be decided by a jury, the

Court does not reach the issue of whether the right was clearly

established.” Gibson v. Mueller, No. 09-6486, 2012 U.S. Dist.

LEXIS 44853, at *38 n.9 (D.N.J. Mar. 29, 2012); see also Curley,

499 F.3d at 225-26 (dissenting opinion) (internal citations

omitted) (“[I]f factual disputes relevant to [the step-two]

legal analysis do exist, the court will have to postpone making

this determination until the jury resolves all the relevant

factual disputes, because determining what actually happened is

a prerequisite to determining whether the law clearly

established that a particular action was permitted or prohibited

by the Fourth Amendment under those circumstances. After the

jury resolves these relevant fact disputes, presumably through

the use of special interrogatories, the court is then capable of

deciding whether or not the law clearly permitted or prohibited

c. Monell and Supervisory Liability

Municipalities and other local government units are among

those “persons” to which § 1983 liability applies. Monell v.

New York City Dep’t of Social Services, 436 U.S. 658, 690

(1978). “Local governments, however, cannot be held liable for

the actions of their employees solely based on the doctrine of

respondeat superior.” Norman, 2017 U.S. Dist. LEXIS 100707, at

*29 (citing Monell, 436 U.S. at 691-95; Bielevicz v. Dubinon,

915 F. 2d 845, 849-50 (3d Cir. 1990)).

the conduct constituting the constitutional violation.”). The

Court notes, however, the significance of Rivas v. City of

Passaic, 365 F.3d 181 (3d Cir. 2004) to the present case. In

Rivas, the evidence showed that the defendant officers

collectively pressed their body weight into the back of a

plaintiff, who was experiencing seizures, while he was

handcuffed, had his ankles secured, and laid in a prone

position. This continued until the plaintiff became unconscious

and soon thereafter, the paramedics at the scene noticed the

plaintiff had stopped breathing. Id. at 200. The Third Circuit

noted that a reasonable jury could find that the plaintiff “did

not present a threat to anyone’s safety as he lay in a prone

position on the enclosed porch, hands and ankles secured behind

his back.” Id. For these reasons, the Third Circuit concluded

“[a]ssuming that [plaintiff] was handcuffed and had his ankles

tied at that time, a reasonable jury could find that the

continued use of force against [plaintiff] was excessive.” Id.

Following Rivas, the Third Circuit has recognized “[u]nder the

circumstances, where the victim ‘did not present a threat to

anyone’s safety,’ we had no hesitation in concluding that the

‘continued use of force’ made out a violation of the victim’s

clearly established rights.” Anthony, 696 Fed. App’x at 83

(quoting Rivas, 365 F.3d at 200). Moreover, “a police officer’s

duty to intervene to prevent excessive force was well-

established by” 2015. Sanders v. Jersey City, No. 18-1057, 2021

U.S. Dist. LEXIS 78681, *30 (citing Smith v. Mensinger, 293 F.3d

641, 650-51 (3d Cir. 2002); Baker v. Monroe Township, 50 F.3d

1186, 1193 (3d Cir. 1995)).

“Neither Monell v. New York City Dept. of Social Services,

436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978), nor any

other of our cases authorizes the award of damages against a

municipal corporation based on the actions of one of its

officers when in fact the jury has concluded that the officer

inflicted no constitutional harm.” City of Los Angeles v.

Heller, 475 U.S. 796, 799 (1986). “If a person has suffered no

constitutional injury at the hands of the individual police

officer, the fact that the departmental regulations might have

authorized the use of constitutionally excessive force is quite

beside the point.” Id.; see also Smith v. Gransden, 553 F.

App’x 173, 178 (3d Cir. 2014) (“Because we will not disturb the

jury’s verdict that Frampton is not liable for any

constitutional violations, there can accordingly be no

derivative municipal claim based on Frampton’s actions. Further,

to the extent that Smith argues that Camden is nevertheless

liable under § 1983 because its unwritten policy caused a

constitutional violation through officers on the scene other

than Frampton, her argument is similarly unavailing, as it

requires proof that a CPD officer on the scene violated Kashon

Smith's constitutional rights by being deliberately indifferent

to his medical needs. Here, the jury found Smith did not prove

any officer violated Kashon Smith’s rights and thus, Camden

could not be found liable and we will not disturb the District

Court’s ruling in favor of Camden.”)(internal citations and

quotations omitted); Reiff v. Marks, 511 Fed. App’x 220, 222-23

(3d Cir. 2013) (affirming the district court’s dismissal of the

plaintiff’s failure-to-train municipal liability claim against

West Reading Borough after a jury trial determined that the

defendant officer’s use of a TASER on the plaintiff was

reasonable use of force because a municipality may not be held

liable on a failure-to-train theory when a jury has found that

the plaintiff has suffered no constitutional violation).

Moreover, regarding the supervisory liability claim against

Chief Fanfarillo, Chief Fanfarillo can only be held liable if

there is an actual underlying constitutional violation. Allen

v. Eckard, 804 Fed. App’x 123, 127 (3d Cir. Mar. 11, 2020)

(“There are several ways to establish supervisory liability

under § 1983. However, all of them require a showing that there

was an actual constitutional violation at the hands of

subordinates.”)(citations omitted).

Regarding Plaintiff’s Monell and supervisory liability

claims against Glassboro and Chief Fanfarillo, the Court will

bifurcate these claims from Plaintiff’s claims against the

Officers. See Fed. R. Civ. P. 42(b) (“For convenience, to avoid

prejudice, or to expedite and economize, the court may order a

separate trial of one or more separate issues, claims,

crossclaims, counterclaims, or third-party claims. When ordering

a separate trial, the court must preserve any federal right to a

jury trial.”). If, after a jury has answered its special

interrogatories as to Plaintiff’s claims against the Officers,

the Court concludes that the Officers did not violate

Plaintiff’s constitutional rights and they are entitled to

qualified immunity, the principle announced in Heller and

applied by the Third Circuit could warrant the dismissal of

Plaintiff’s municipal and supervisory liability claims. At a

minimum, it would be a waste of judicial resources to assess

Plaintiff’s Monell and supervisory claims now if such claims

ultimately are not viable based on how the jury assesses the

evidence of the Officers’ alleged wrongdoing.

Accordingly, the Court will deny without prejudice and

consider Glassboro and Chief Fanfarillo’s Motion for Summary

Judgment on Plaintiff’s Monell and supervisory liability claims

against them after the jury has resolved the disputed facts and

the Court has determined whether the Officers are entitled to

qualified immunity.

CONCLUSION

For the foregoing reasons, Defendants’ Motion for Summary

Judgment is granted, in part, and denied, in part. An

appropriate Order will be entered.

Date: July 12, 2021 s/ Noel L. Hillman

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.