The opinion
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
GERALD STABILE
Plaintiff,
Civ. No. 2:20-cv-02205 (WJM)
v.
SGT. EDWARD CONKLIN, OFFICER
SCOTT BAKER, OFFICER GUY OPINION
BOCCARDI, OFFICER MARCO
FERNANDEZ, JOHN DOES 1-30, Fictitious
Individuals, ABC CORPS 1-30, Fictitious
Corps, Jointly and Severally, Official and
Individual Capacities,
Defendants.
WILLIAM J. MARTINI, U.S.D.J.:
In this action for excessive use of force is a motion for summary judgment pursuant
to Fed. R. Civ. P. 56 filed by Defendants Sgt. Edward Conklin and Officers Scott Baker,
Guy Boccardi, and Mare Fernandez (“Defendants”), ECF No. 49. The Court decides this
motion without oral argument. Fed. R. Civ. P. 78(b). For the reasons set forth below,
Defendants’ motion for summary judgment is granted in part and denied in part.
I. BACKGROUND AND PROCEDURAL HISTORY
Plaintiff Gerald Stabile (“Plaintiff or “Stabile’”) is a gay man who is HIV positive.
See Pl.’s Opp’n Br., at 1. On January 18, 2018, Plaintiff traveled to Sonesta Suites Hotel
in Parsippany, New Jersey (“Hotel”) to visit his friend Ottillie Lee and her daughter Casey,
who were prostituting at the time and living at the Hotel. Def. Statement of Unconiraverted
[sic] Material Facts (““Def. SUMF”), § 2. The following day, Jose Dominguez arrived at
the Hotel room and displayed a plastic baggie containing bullets and a pistol, which caused
Plaintiff to have a panic attack. /d. at ff 3, 5, 6. Subsequently, Plaintiff called 911 to report
the gun and his panic attack. Jd. at § 13.
Plaintiff proceeded to the Hotel lobby to use the desk phone to call his family. Jd. at
{| 14. While speaking to his mother on the telephone, his anxiety increased and he began
crying hysterically. Jd. at { 17. In that time, Plaintiff was asked at least once by one or more
desk clerks to get off the phone. /d. at § 18; Pl. Dep. attached as Ex. E to Certification of
Alan J. Baratz (“Defs. Cert.”), at 56:15-21, 57:6-11. Officers had arrived by then and told
Plaintiff about four times to hang up the phone. /d. at § 20. Defendants claim Plaintiff was
using profanity, harassing a hotel staff member, and also spat in Officer Fernandez’s face,
which Plaintiff denies. /d. at 38, 42, 43, 48, 49. When Plaintiff refused to comply,
Officer Baker came up behind him and handcuffed his left wrist. /d, at §] 22, 51. Although
Plaintiff knew an officer was trying to arrest him, he “applied force against [an officer’s]
leg” and later pled guilty to resisting arrest in the third degree. Jd. at 4] 25-26. In response
to Plaintiff's conduct in resisting arrest, Defendants utilized a “leg sweep” and took
Plaintiff to the floor in about five or six seconds. Id. at [] 27-29, 53. Plaintiff does not know
how many officers were in physical contact with him when he hit the floor, but recalls
Fernandez was holding Plaintiff's left arm, Baker was holding his right arm, and Conklin
also had one of his arms. /a. at { 28; Pl.’s “Reply to Statement of Facts,” (“Reply Stmt.”),
at 28, Plaintiff sustained injuries including multiple comminuted nasal fractures. Jd. at {
29; St. Clare’s Hospital January 19, 2018 Emergency Room Record attached as Ex. K to
Dets. Cert., at 39.
Once Plaintiff was on the floor, officers completed his handcuffing. Jd. at | 55,
Plaintiff continued to fight and flail around in his own blood, and according to Defendants,
also gathered mouthfuls of blood from the floor attempting to spit his blood on the officers,
yelling that he was HIV positive and hoped officers would get AIDS and die. Id. at □□ 55,
56, 58. Conklin instructed Officer Boccardi to zip tie Plaintiff's feet. Jd. at 455. Plaintiff
was repositioned out of his blood puddle, which resulted in his face hitting the ground
again. ld. at { 59. Blood and urine tests performed at St. Clare’s Emergency Department
following Plaintiff's arrest on January 19, 2018 detected benzodiazepine, amphetamine,
cocaine, cannabinoid, alcohol, and other drugs in his system. Jd. at § 10; Ex. K at 38, 39.
Plaintiff filed suit against Defendants, who are officers of the Township of
Parsippany-Troy Hills Police Department (“PPD”), John Does 1-30 (Fictitious
Individuals), and ABC Corps 1-30 (Fictitious Corps) for injuries he sustained during his
in violation of the Fourth and Fourteenth Amendments. Plaintiff alleges excessive
force (Count One), failure to intervene (Count Two), supervisory liability (Count Three),
and civil conspiracy (Count Six) pursuant to 42 U.S.C. § 1983 and the New Jersey Civil
Rights Act (““NJCRA”) (Count Four), as well as negligence under the New Jersey Tort
Claims Act (Count Five). In seeking summary judgment, Defendants argue that they are
entitled to qualified immunity on all the claims and that absent liability on the underlying
wrongs, the civil conspiracy claim must also be dismissed.
II. STANDARD
Federal Rule of Civil Procedure 56(a) provides that summary judgment is proper
when “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.” “A fact is ‘material’ . . . if its existence
or nonexistence might impact the outcome of the suit under the applicable substantive law.”
Santini v, Fuentes, 795 ¥.3d 410, 416 (3d Cir. 2015) (quoting Anderson v. Liberty Lobby,
Ine., 477 U.S, 242, 248 (1986)). “A dispute over a material fact is ‘genuine’ if‘a reasonable
jury could return a verdict for the nonmoving party.’” /d. (quoting Anderson, 477 U.S. at
248).
The moving party bears the initial burden of showing the basis for its motion and
identifying those portions of the record which it believes demonstrate the absence of a
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Ifthe
moving party meets its burden, the burden then shifts to the non-moving party to “come
forward with specific facts showing that there is a genuine issue for trial and do more than
simply show that there is some metaphysical doubt as to the material facts.” United States
v. Donovan, 661 F.3d 174, 185 3d Cir. 2011) (quoting Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)) (emphasis in original and internal
quotation marks omitted), In other words, “unsupported assertions, speculation, ot
conclusory allegations” are insufficient to defeat a summary judgment motion. Longstreet
v. Holy Spirit Hosp., 67 ¥. App’x 123, 126 Gd. Cir, 2003). “[T]here must be evidence on
which the jury could reasonably find for the [non-movant].” Anderson, 477 U.S. at 252.
The Court’s role at the summary judgment stage “is ‘not... to weigh the evidence
and determine the truth of the matter but to determine whether there is a genuine issue for
trial.’” Baloga v. Pittston Area Sch. Dist., 927 F.3d 742, 752 (3d Cir. 2019) (quoting
Anderson, 477 U.S, at 249). In evaluating a summary judgment motion, a court must view
all evidence in the light most favorable to the nonmoving party. Matsushita, 475 U.S. at
587; Boyle v. Cnty. of Allegheny Pennsylvania, 139 F.3d 386, 393 (3d Cir. 1998).!
Til, DISCUSSION
Under the theory of qualified immunity, “government officials performing
discretionary functions generally are shielded from liability for civil damages insofar as
their conduct does not violate clearly established statutory or constitutional rights of which
a reasonable person would have known.” Harlow v, Fitzgerald, 457 U.S. 800, 818 (1982);
Monticciolo v. Robertson, No. 15-8134, 2017 WL 4536119, at *18, n. 14 (D.N.J. Oct. 11,
2017) “courts in New Jersey have consistently looked at claims under the NJCRA through
the lens of § 1983.” (internal citation, and quotes omitted)). “The principles of qualified
immunity shield an officer from personal liability when an officer reasonably believes that
his or her conduct complies with the law.” Pearson v. Callahan, 555 U.S. 223, 244 (2009).
Qualified immunity encompasses mistaken judgments that are not plainly incompetent.
Gilles v. Davis, 427 F.3d 197, 207 (3d Cir. 2005),
A. Excessive Force
' The Court will not consider Plaintiff's “Counter Statement of Facts” as it is a 293-paragraph recitation of deposition
testimony and expert opinion rather than a statement of undisputed facts contemplated under Local Rule 56.1.
Defendants concede that the right to be free from physical force when not resisting
arrest was a clearly established right at the time of the January 19th arrest. Thus, the Court
need only decide whether Plaintiff has alleged facts that support a reasonable jury finding
that in effectuating arrest, Defendants used excessive force in violation of Plaintiffs Fourth
Amendment rights. See Pearson v. Callahan, 555 U.S. 223, 232 (2009). “Reasonableness
under the Fourth Amendment should frequently remain a question for the jury.” Kopec vy.
Tate, 361 F.3d 772, 777 Gd Cir, 2004) (internal quotes and citation omitted), However, a
defendant may still win on summary judgment if after all inferences are drawn in favor of
the nonmoving party “to the extent supportable by the record,” Scott v. Harris, 550 U.S.
372, 381, n.8 (2007), an officer’s use of force was objectively reasonable under the
circumstances. Kopec, 361 I'.3d at 777,
The reasonableness inquiry should give appropriate scope to the circumstances of
the police action, which are often “tense, uncertain, and rapidly evolving.” Groman v. Twp,
of Manalapan, 47 F.3d 628, 634 (3d Cir.1995) (citing Graham v. Connor, 490 U.S. 386,
397 (1989)). The officer's use of force is measured by “careful attention to the facts and
circumstances of each particular case,” id. (citing Graham, 490 U.S. at 396), and “from the
perspective of a reasonable officer on the scene, rather than with the 20/20 vision of
hindsight,” Kopec, 361 F.3d at 777 (citing Graham, 490 U.S. at 396-97). Factors to
consider include: “’the relationship between the need for the use of force and the amount
of force used; the extent of the plaintiff ’s injury; any effort made by the officer to temper
or to limit the amount of force; the severity of the security problem at issue; the threat
reasonably perceived by the officer; and whether the plaintiff was actively resisting.’”
Lombardo v. City of St. Louis, Missouri, 141 8, Ct. 2239, 2241 (2021) (citing Kingsley v.
Hendrickson, 576 U.S. 389, 397 (2015)). Other considerations may be the duration of the
action, the possibility that the suspect may be armed, and the number of persons with whom
the police officers must contend at one time. Kopec, 361 F.3d at 777.
In this case, genuine issues of fact exist as to the factors material to the
reasonableness inquiry, such as whether: 1) Plaintiff spat in Officer Fernandez’s face and
was harassing a Hotel staff member; 2) Plaintiff's conduct in resisting arrest warranted a
leg sweep; 3) Defendants reasonably perceived Plaintiff as a threat since he had not been
patted down for weapons and a gun and bullets had been retrieved from one of the Hotel
rooms; and 4) Plaintiff was gathering mouthfuls of blood from the floor attempting to spit
his blood on the officers. Resolving all such factual disputes in Plaintiff's favor, triable
issues of fact exist regarding whether under the totality of the circumstances, Defendants’
use of force in effectuating arrest was objectively reasonable. Summary judgment based
on qualified immunity as to the excessive force claim under §1983 and NJCRA is denied
as to each of the four Defendant officers.”
? Denying qualified immunity at summary judgment requires courts to “analyze separately, and state findings with
respect to, the specific conduct of each defendant.” Dean v, Borough of Glassboro, No. 21-2468, 2023 WL 2597586,
at *3 (3d Cir, Mar. 22, 2023) (citing Williams v. City of York, 967 F.3d 252, 257 (3d Cir. 2020)). Genuine issues of
B. Failure to Intervene
In a failure to intervene claim, a “police officer has a duty to take reasonable steps
to protect a victim from another officer's use of excessive force, but only if there is a
realistic and reasonable opportunity to intervene.” El y, City of Pittsburgh, 975 F.3d 327,
335 (3d Cir, 2020) (internal quotes and citation omitted)), While “the duration of the
incident is key to determining whether there was a reasonable opportunity,” the relevant
inquiry is not whether officers had an opportunity to intervene in the “entire incident,” but
in the “use of force.” Jd, at 335-36. Although Plaintiff testified at his deposition that his
initial take down occurred in about five or six seconds. See Def. SUMF » {| 27, Defendants
have not presented any evidence as to the duration of any alleged remaining use of force.
Moreover, given that factual disputes exist regarding the underlying excessive force claim,
summary judgment is denied on the failure to intervene claim.
C, Supervisory Liability
One theory under which a supervisor may be personally liable under § 1983 for a
subordinate’s unconstitutional acts is “if he or she participated in violating the plaintiff's
rights, directed others to violate them, or, as the person in charge, had knowledge of and
acquiesced in his subordinates’ violations.” 4.44 ex rel J.M.K. v. Luzerne Cnty. Juv. Det.
372 F.3d 572, 586 3d Cir. 2004). As evidence of a failure to supervise, Plaintiff
argues in his opposition brief that Sgt. Conklin failed to ensure that body worn microphone
recordings were “secured in place and evidence” or to take photographs of Plaintiff's
injuries, See Pl.’s Opp’n Br. at 24-25, Failure to secure evidence is insufficient to permit
inference of participation in, the directing of others, or acquiescence in the use of excessive
force. However, testimony that Conklin had one of Plaintiff's arms during the take down
is sufficient for a jury to find supervisory liability. Moreover, since supervisory liability
depends on whether those who were supposedly directed to violate Plaintiff's rights
actually did so, summary judgment on the supervisory liability claim is denied. See e. □□□
Santiago v. Warminster Tp., 629 F.3d 121, 130 Gd Cir, 2010).
In contrast, any attempt by Plaintiff to invoke a second theory of supervisory
liability necessarily fails. Plaintiff argues for the first time in his opposition brief that □ gt.
Conklin failed (o train his subordinates and that his failure to take photographs and secure
evidence shows deliberate indifference to Plaintiffs constitutional harms. See P1.’s Opp’n
Br, at 24-25. Supervisory liability may attach where the official “with deliberate
indifference to the consequences, established and maintained a policy, practice or custom
which directly caused [the] constitutional harm.” A.M. ex rel. JM.K., 372 F.3d at 586
(citing Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 725 Gd Cir. 1989)); Neals v.
fact exist as to whether Defendants Conklin, Baker, and Fernandez, by taking Plaintiff down and holding his arm
and/or performing the leg sweep, used excessive force. See supra. Whether Officer Boccardi was even present at that
time is a disputed fact material to his participation. Compare Baker Tr. at 16:1 1-23 with Conklin Tr. at 71:8-72:7,
Stromberg, No. 16-7141, 2020 WL 5088226, at *16 (D.NJ. Aug. 28, 2020) (“failure to
train” claims are generally considered subcategory of “policy or practice liability”),
However, the Complaint does not allege that Conklin, with deliberate indifference to the
consequences, established and maintained a policy, practice, or custom that caused the use
of excessive force. See Waugaman v, City of Greensburg, 841 F, App'x 429, 433 (3d Cir.
2021) (noting that plaintiff may not amend complaint through arguments in brief in
opposition to summary judgment motion). Thus, the only theory of supervisory liability
Plaintiff may pursue is the one he has pled. See e.g, Compl. {| 37 (alleging knowledge and
acquiescence). Even if Plaintiff had alleged this other theory of liability in his Complaint,
_ the failure to take photographs or secure evidence does not show deliberate indifference to
a substantial risk of the use of excessive force since the alleged violation had already
occurred. See A.M. ex rel. .M.K., 372 F.3d at 587 (noting deliberate indifference standard
“requires evidence that the Defendants were deliberately indifferent to a substantial risk of
harm to [Plaintiff] and did nothing to prevent it.”).
D. Negligence and Civil Conspiracy
Defendants move for summary judgment based on qualified immunity under the
Tort Claims Act, N.J.S.A. § 59:3-3, which states: “A public employee is not liable if he
acts in good faith in the execution or enforcement of any law.” Often, “good faith” is a
question of fact, but summary judgment under § 3-3 “is appropriate if public employees
can establish that their acts were objectively reasonable or that they performed them with
subjective good faith.” Canico v. Hurtado, 144 N.J. 361, 365 (1996), Because genuine
issues of material fact exist as to whether Defendants’ conduct in effectuating Plaintiff's
arrest was reasonable, see supra, Defendants’ motion for summary judgment on the
negligence claim is denied,
Lastly, to the extent that summary judgment is denied on the predicate allegations
of wrongdoing, Defendants’ motion for summary judgment of Plaintiff's civil conspiracy
claim is also denied.
IV. CONCLUSION
For the reasons noted above, summary judgment in favor of Defendants is granted
in part and denied in part. LEA
WILLIAM/J. MARTINI, U.S.D.J.
Dated: Aug 22, 2023