GUARENTE v. MCMULLEN

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

JOHN GUARENTE, i HONORABLE KAREN M. WILLIAMS

Plaintiff,

v. Civil Action

CHRISTOPHER MCMULLEN, No. 22-4934 (KMW-AMD)

Defendant.

OPINION

Peter M. Kober, Esquire Matthew P. Lyons, Esquire

1864 Route 70 East Gebhardt & Keifer, PC

Cherry Hill, NJ 08003 1318 Route 31 North

Counsel for Plaintiff John Guarente Annandale, NJ 08801

Counsel for Defendant Christopher McMullen

WILLIAMS, District Judge:

1. INTRODUCTION

This matter arises out of an encounter Plaintiff John Guarente (“Plaintiff’) had with

Defendant Christopher McMullen (“Defendant McMullen”) and other officers of the Salem City

Police Department. On July 17, 2016, Defendant McMullen and Matthew Mease (“Mease”)

responded to a report that Plaintiff was lying unconscious on private property. When the officers

arrived at the scene, they woke Plaintiff up and engaged in a conversation with Plaintiff, during

which time Plaintiff admitted he had been “drinking all day.” The officers informed Plaintiff he

could not remain on the property, but Plaintiff refused to leave. A physical altercation ensued,

resulting in Plaintiff's arrest.

Plaintiff brings this action against Defendant McMullen alleging claims of excessive force

in his individual capacity under 42 U.S.C. § 1983 and the New Jersey Civil Rights Act (the “Civil

Rights Act”), N.J.S.A. 10:6-2.! Presently before the Court is Defendant McMullen’s Motion for

Summary Judgment (“Motion”) filed pursuant to Federal Rule of Civil Procedure 56, which

Plaintiff has opposed. For the reasons that follow, Defendant McMullen’s Motion is GRANTED.

H. FACTUAL BACKGROUND

Defendant McMullen submitted video footage of the officers’ interaction with Plaintiff

captured by Mease’s bodycam (the “Bodycam”). Matthew Mease Certification (“Mease Cert.”) J

2 at Ex. A. The Court must rely on the Bodycam footage as the best evidence of what actually

occurred on July 17, 2016, and, therefore, has drawn facts from that video where possible. See

Scott vy. Harris, 550 U.S. 372, 380-81 (2007). However, where the facts are not clearly depicted in

the Bodycam or the Bodycam does not show the events in question, the Court is required, on a

summary judgment motion, to draw reasonable inferences in favor of Plaintiff. See id.; Knight v.

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

In the early evening hours of July 17, 2016, Defendant McMullen and Mease received a

call from dispatch that a male, later identified as Plaintiff, was lying unconscious on a rock near

the Salem marina. Defendant McMullen’s Statement of Material Facts (“Def.’s SMF”) § 3;

Defendant McMullen’s Brief (“Def’s Br.”) at 2. When the officers approached Plaintiff, they

shook Plaintiff's arm to wake him up and were concerned as it appeared Plaintiff had been sleeping

and could have been unconscious or hurt, Def.’s SMF □ 7; Def.’s Br. at 2.

Plaintiff was intoxicated during his interaction with the officers, having shared he had

returned from a boat trip with his friends where he had been “drinking all day.” Def.’s SMF 4] 4.

When the officers informed Plaintiff that he could not stay on the rock because he was on private

' The Amended Complaint alleges Defendant McMullen violated Plaintiff's rights under Article 1, Paragraph 7 of

the New Jersey Constitution and the Civil Rights Act. Amended Compl. at 4. The Civil Rights Act is codified at

NALS.A. £0:6-2.

property, Plaintiff “resented” the officers’ request, stating he “didn’t really know where to go” and

refused to leave the area. Jd. [9 18, 19, 20, 22. During the course of Plaintiff’s interaction with the

officers, Plaintiff suggested that the officers give him a ride home, accused one of the officers of

acting “commando,” and asked if the officers were there “to beat him up.” Mease Cert. {2 at Ex.

A at 0:43-1:07. When police asked Plaintiff if he wanted an ambulance, Plaintiff “misunderstood”

and asked that police put him in handcuffs and take him away. Def.’s SMF § 26.

The Bodycam shows Plaintiff stood up from the rock where he was sitting, stumbling on

his left side, and then piaced his left hand on the rock to prop himself up. Mease Cert. J 2 at Ex. A

at 2:21-2:24. Plaintiff fell backwards in the direction of Mease and Mease applied his hands on

Plaintiff's back and upper arm, appearing to prop Plaintiff up. fd, at 2:24-2:27. At this point, the

video is partially obstructed by the activity that ensues. However, what can clearly be seen is

Plaintiff flailed his right elbow in Mease’s direction and collided with the Bodycam.? Jd. at 2:27-

2:28. Defendant McMullen placed his right arm around Plaintiff's shoulder and neck area and

turned Plaintiff toward the ground. fd. at 2:28-2:32. Plaintiff fell face first with Defendant

MeMullen’s arm wrapped around him. Jd.

A struggle then ensued between Plaintiff and Defendant McMullen as other officers

attempted to handcuff Plaintiff. 7d. at 2:30. An officer could be heard shouting “Give me your

hands.” Jd. at 2:33-2:34. Mease began to place handcuffs on Plaintiff's hands with assistance from

another officer. Jd. at 2:36-2:42, Plaintiff could be heard saying “Alright stop choking me, I’m

giving you my hands.” Jd. at 2:45-2:46, At the same time, the video clearly depicts Plaintiff

2 During his February 17, 2023 deposition, Plaintiff did not recall swinging his elbow at Mease but admitted

“(s}winging [his] elbow might have occurred as [he] was trying to get [his] balance from when [he] initially stood up.

Tha could be misconstrued as swinging [his] elbow.” Noel A. Lesica Certification (“Lesica Cert,”) at Ex. A at 67:9-

resisting submitting his left hand. Jd. An officer could be heard shouting again, “Give me your

hand,” and force was then used to handcuff Plaintiffs ieft hand. /d. at 2:46-2:50. Plaintiff could

then be heard saying “I can’t breathe. I can’t fuckin breathe.” Jd. at 2:53-2:56. An unidentified

officer said, “Well then stop resisting.”? Jd, at 2:56-2:57. After Plaintiff was handcuffed, Defendant

McMullen released his hold of Plaintiff. /d, at 3:05-3:06. Thirty-nine seconds transpires between

Plaintiff's contact with the Bodycam and Defendant McMullen releasing his hold of Plaintiff. Jd.

at 2:27-3:06.

Other than some scuffs and scrapes, Plaintiff did not require medical attention following

the arrest. Def.’s SMF § 40. On September 16, 2016, a grand jury indicted Plaintiff for aggravated

assault on a law enforcement officer and resisting arrest. /d. 36. Following participation in a pre-

trial intervention program and completion of community service, the charges against Plaintiff were

dismissed. /d. | 37.

On July 17, 2018, Plaintiff filed the instant action in New Jersey state court. See Notice of

Removal at Ex. A. The state court dismissed the complaint for lack of prosecution but restored the

case and granted Plaintiff leave to file an amended complaint, /d. at Exs. B, F. Plaintiff's Amended

Complaint alleges excessive force claims against Defendant McMullen in his individual capacity

pursuant to 42 U.S.C. § 1983 and the Civil Rights Act, N.J.S.A. 10:6-2, fd. at Ex. G. On August

5, 2022, Defendant McMullen removed the state action to this Court. See generally Notice of

Removal.

3 Tn his deposition, Plaintiff stated that during the arrest, “[his] hands wanted to come up to relieve the pressure around

[his] neck so [he} could get air. So that was what they called resisting arrest.” Lesica Cert. at Ex. A at 60:21-24,

Plaintiff's attempt to proffer after-the-fact argument does not undercut record evidence that the officers asked Plaintiff

for his hands several times and applied force to complete their arrest of Plaintiff.

On February 17, 2023, Plaintiff was deposed and testified that he did not belong on the

property where police found him, that police toid him he was there illegally, and that he directed

“foul and threatening language” towards the officers. Def.’s SMF 9 21, 24. Plaintiff relies on the

video to support his claims in this case, having testified that his “memory of the events is fuzzy,”

and that he reviewed the video “to understand... what happened.” /d. 38.

Wi. STANDARD OF REVIEW

Summary judgment is appropriate “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’ under Rule 56 ifits existence or nonexistence might impact the outcome

of the suit under the applicable substantive law.” Santini v, Fuentes, 795 F.3d 410, 416 Gd Cir,

2015) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)); see also MS. by &

through Hall v. Susquehanna Twp. Sch, Dist., 969 F.3d 120, 125 (3d Cir, 2020) (“A fact is material

if— taken as true — it would affect the outcome of the case under governing law.”). Moreover, “[a]

dispute over a material fact is ‘genuine’ if ‘a reasonable jury could return a verdict for the

nonmoving party.’” Santini, 795 F.3d at 416 (quoting Anderson, 477 U.S. at 248).

In considering a summary judgment motion, the district court “may not make credibility

determinations or engage in any weighing of the evidence.” Montone y. City of Jersey City, 709

F.3d 181, 191 Gd Cir. 2013) (quoting Marino v. Indus. Crafting Co,, 358 F.3d 241, 247 3d Cir.

2004)). The moving party has the initial burden of showing the basis for its motion and must

demonstrate that there is an absence of a genuine issue of material fact. Celofex Corp. v, Catrett,

477 USS, 317, 323 (1986). While the nonmoving party is entitled to the benefit of all justifiable

inferences from the evidence, it “may not, in the face of a showing of a lack of a genuine issue,

withstand summary judgment by resting on mere allegations or denials in the pleadings.” United

States y. Premises Known as 717 S. Woodward St., Allentown, Pa., 2 F.3d 529, 533 (3d Cir, 1993).

The nonmoving party must “go beyond the pleadings” and “designate ‘specific facts showing that

there is a genuine issue for trial’” by way of affidavits, depositions, answers fo interrogatories, or

admissions on file, Celofex Corp., 477 U.S, at 324. Failure by the nonmoving party “to make a

showing sufficient to establish the existence of an element essential to the party’s case, and on

which .. . [it has] the burden of proof at trial” entitles the moving party to judgment as a matter of

law, fd, at 322-23,

IV. DISCUSSION

Section 1983 provides a cause of action for an individual whose constitutional or federal

rights are violated by those acting under color of state law:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any

State or Territory or the District of Columbia, 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, shali be liable to the

party injured in an action at law, suit in equity, or other proper proceeding for redress... .

42 US.C, § 1983. Section 1983 does not on its face create substantive rights. Kneipp v. Tedder,

95 F.3d 1199, 1204 (3d Cir, 1996), Rather, “it provides only remedies for deprivations of rights

established elsewhere in the Constitution or federal laws.” /d¢. To establish a claim under Section

1983, a plaintiff “must demonstrate a violation of a right secured by the Constitution and the laws

of the United States [and] that the alleged deprivation was committed by a person acting under

color of state law.” Mosca v. Cole, 217 F. App’x 158, 163 (3d Cir. 2007) (alteration in original)

(quoting Mark v. Borough of Hatboro, 31 F.3d 1137, 1141 (3d Cir, 1995)).

The Civil Rights Act “is a state law corollary to 42 U.S.C. § 1983 — it creates a private right

of action for the violation of civil rights secured under the New Jersey Constitution.” Roberson vy.

Borough of Glassboro, 570 F. Supp. 3d 221, 226 (D.N.J. 2021) (quoting Armstrong v. Sherman,

No. 09-716, 2010 WL 2483911, at *5 (D.N.J. June 4, 2010)). This District “has repeatedly

interpreted [the Civil Rights Act] analogously to § 1983.” Jd. (quoting Trafion v. City of Woodbury,

799 F. Supp. 2d 417, 443 (D.N.J. 2011)). The Court wiil, therefore, analyze Plaintiff's Section

1983 and Civil Rights Act claims together, under Section 1983 precedent. See Witt v. City of

Vineland, No. 20-14678, 2021 WL 3465597, at *3 (D.N.J, Aug. 6, 2021); see also Roberson, 570

F, Supp. 3d at 226,

There is no dispute that Defendant McMuilen acted under color of state law when he put

his arm around Plaintiff's neck and shoulder area and brought Plaintiff to the ground so officers

could handcuff him, The issue before the Court is whether Defendant McMullen violated

Plaintiff's constitutional rights in doing so. Plaintiff alleges that “[t]he use of excessive force

against him by Defendant [McMullen] .. . violated” his rights under the Fourth Amendment and

the Civil Rights Act. Amended Compl. at 4, Accordingly, the specific question before the Court is

whether Defendant McMullen’s use of force was excessive and, thus, violated Plaintiffs rights

under the Fourth Amendment and the Civil Rights Act during the effectuation of Plaintiffs arrest.

It is beyond cavil that police officers are permitted to use a reasonable amount of force to

effectuate an arrest. See Groman v. Twp. of Manalapan, 47 F.3d 628, 634 (3d Cir. 1995) (“When

a police officer uses force to effectuate an arrest that force must be reasonable.”). However, the

Fourth Amendment prohibits police officers from using excessive force to arrest a suspect. See

Abraham vy. Raso, 183 F.3d 279, 288 Gd Cir. 1999). “To prevail on a Fourth Amendment

excessive-force claim, a plaintiff must show that a seizure occurred and that it was unreasonable

under the circumstances.” #7 v. City of Pittsburgh, 975 F.3d 327, 336 (3d Cir. 2020) (quoting

Lamont v. New Jersey, 637 F.3d 177, 182-83 (3d Cir. 2011)). “A ‘seizure’ triggering the Fourth

Amendment’s protections occurs only when government actors have, ‘by means of physical force

or show of authority, . . . in some way restrained the liberty of a citizen.’”” Graham vy. Connor, 490

U.S. 386, 395 n.10 (1989) (quoting Terry y. Ohio, 392 U.S. 1, 19 n.16 (1968)). Because it is

undisputed that Plaintiff was arrested, the first element is satisfied. Thus, the only question

remaining before the Court is the reasonableness of the seizure,

To determine the reasonableness of a seizure, the Court asks whether the officer’s conduct

was “objectively reasonable” in light of the totality of the circumstances, without regard to the

underlying intent or motivation. Graham, 490 U.S. at 397; Kopec v. Tate, 361 F.3d 772, 776 (3d

Cir. 2004). The “objective reasonableness” inquiry requires an examination of 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 [or she] is

actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S, at 396. The

Court may also consider “the possibility that the persons subject to the police action are themselves

violent or dangerous, the duration of the [officer’s| action, whether the action takes place in the

context of effecting an arrest, the possibility that the suspect may be armed, and the number of

persons with whom the police officers must contend at one time.” Sharrar v. Felsing, 128 F.3d

810, 822 (3d Cir, 1997); see also El, 975 F.3d at 336. “[T]he central issue is the force the officers

employed (and whether it was reasonable under the circumstances), not the injury they caused.”

Flood v. Schaefer, 439 F. App’x 179, 182 (3d Cir. 2011). In evaluating reasonableness, the Court

must take into consideration 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 in a particular situation.” Couden v. Duffy, 446 F.3d 483, 497 (3d Cir. 2006) (quoting

Graham, 490 U.S, at 397). The Court should not apply “the 20/20 vision of hindsight,” but should

instead consider the “perspective of a reasonable officer on the scene.” see also Kopec, 361

F.3d at 777.

In evaluating the Graham and Sharrar factors against the record before this Court, the

Bodycam footage of the interaction between Plaintiff and Defendant McMullen shows that

Defendant McMullen’s conduct was objectively reasonable in light of the totality of the

circumstances. Here, although the suspected crime which prompted Defendant McMullen and the

other officers to continue questioning Piaintiff was trespassing on private property — undoubtedly,

not a severe crime -- it is undisputed that Plaintiff was intoxicated, used foul and threatening

language towards the officers, and refused to leave the area when the officers asked him to leave.

These facts alone do not permit this Court to conclude that Plaintiff posed a serious threat to the

officers. Notably, initially the officers were nonplussed by Plaintiff's responses to them. However,

in viewing the Bodycam footage in the light most favorable to Plaintiff, it is clear that Plaintiff

escalated the situation when he made physical contact with Mease’s Bodycam. Plaintiff's initiation

of physical contact with Mease’s Bodycam, which followed his continued failure to obey the

officers’ requests that he leave the area, permitted the officers to “graduate their response” to

Plaintiff's behavior. See Bornstad v. Honey Brook Twp., 211 F. App’x 118, 125 (Gd Cir. 2007)

(finding plaintiff “initiated the physical encounter [with the officers] and prompted a continued

physical response by the officers by failing to submit to their authority”); see also United States v,

Montoya de Hernandez, 473 U.S. 531, 542 (1985) (“Authorities must be allowed ‘to graduate their

response to the demands of any particular situation.’” (quoting United States v. Place, 462 U.S.

696, 709 n.10 (1983))). Even after Defendant McMullen put his arm around Plaintiff's neck and

shoulder area, Plaintiff resisted as the officers were trying to handcuff him.

Moreover, Plaintiff does not provide any facts to demonstrate that Defendant McMullen

placing his arm around Plaintiff's neck and shoulder area was indeed the controversial and often

forbidden chokehold that may constitute an unreasonable use of force. Rather, Plaintiffs

conclusory allegation that he was placed in an illegal chokehold is simply unsupported by the

record. Indeed, Plaintiff does not identify the kind of chokehold Defendant McMullen placed him

in or argue that Defendant McMullen’s securing of Plaintiff meets the definition of a chokehold.

Nor does Plaintiff provide Salem City’s policy on police officers’ use of chokeholds. Furthermore,

Plaintiff fails to identify the portion of the Bodycam footage during which time the alleged

chokehold took place. To this end, Plaintiff admitted his memory of events that occurred on July

17 was “fuzzy” and reviewed the Bodycam footage “to understand . .. what happened.” Indeed,

even after relying on his review of the Bodycam footage, Plaintiff does not specify times in the

video when the use of the alleged chokehold occurred.

Finally, although the Third Circuit acknowledges “the right of an unarmed, uncooperative

individual, who is not suspected of a serious crime, to be free from being dragged, slammed, or

taken to the ground,” H/, 975 F.3d at 341, the undisputed facts here are quite different. Unlike in

El, Plaintiff in the instant action was uncooperative and resisted the requests of the officers on

multiple fronts. Plaintiff refused to leave the area after the officers requested that he do so,

proceeded to initiate physical contact with the officers by way of colliding with Mease’s Bodycam,

and then resisted arrest as the officers were attempting to handcuff him. Consequently, this Court

finds that Defendant McMullen’s actions in a rapidly evolving situation — a situation involving

Plaintiff's continued failure to obey the officers’ requests and Defendant McMullen necessarily

graduating his response to Plaintiff's physical behavior — were reasonable. Thus, the Court will

not evaluate the circumstances “with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396.

10

Accordingly, the Court finds that no reasonable factfinder could find that Plaintiff has

established all of the requisite elements to sustain viable claims that his rights under the Fourth

Amendment and the Civil Rights Act were violated. Simply stated, this case reflects officers using

the requisite amount of force to effectuate an arrest of Plaintiff after he refused to leave the area

despite their requests that he do $0, Indeed, Plaintiff, in his inebriated state, escalated an otherwise

minor trespassing situation by losing control of his own actions. Moreover, Plaintiff has not

pointed the Court to any case law, Salem City policy, practice or procedure demonstrating that

Defendant McMullen acted contrary to or engaged in an impermissible use of force. Consequently,

the Court finds that Plaintiff has not met his burden of establishing that Defendant McMullen’s

actions were objectively unreasonable. Therefore, summary judgment is granted.

V. CONCLUSION

For all of the reasons set forth above, Defendant McMullen’s Motion for Summary

Judgment is GRANTED. An accompanying Order shall issue,

Dated: March □□□ , 2023

ifs SN M. WILLIAMS

U.S. DISTRICT COURT JUDGE

1]