NEWELL v. DOE

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

DONALD NEWELL, )

)

Plaintiff, )

)

v. ) 2:18cv1162

) Electronic Filing

STEVEN LAW, an individual acting in )

his official capacity, CHARLES )

HASSENFELDT, an individual acting in )

his official capacity, DANIEL BIDDLE, )

an individual acting in his official capacity, )

ANTHONY SVETZ, an individual acting )

in his official capacity, and HEATHER )

CLEM-JOHNSON, acting in her official )

capacity, )

)

Defendants. )

OPINION

Donald Newell ("plaintiff") commenced this civil rights action seeking redress for the

alleged use of excessive force on April 5, 2018, during an interaction between himself and

defendants. This interaction is alleged to have occurred as part of defendants' response to a 911

call reporting an incident of domestic violence involving plaintiff's younger son and the son's

domestic partner. Presently before the court is defendants' motion for summary judgment. For

the reasons set forth below, the motion will be granted in part and denied in part.

Federal Rule of Civil Procedure 56 provides that "[t]he court shall grant summary

judgment 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). Rule 56 "'mandates

the entry of summary judgment, after adequate time for discovery and upon motion, against a

party who fails to make a showing sufficient to establish the existence of an element essential to

that party's case, and on which that party will bear the burden of proof at trial.'" Marten v.

23 (1986)). Deciding a summary judgment motion requires the court to view the facts, draw all

reasonable inferences and resolve all doubts in favor of the nonmoving party. Doe v. Cnty. of

Centre, Pa., 242 F.3d 437, 446 (3d Cir. 2001).

The moving party bears the initial burden of identifying evidence which demonstrates the

absence of a genuine issue of material fact. When the movant does not bear the burden of proof

on the claim, the movant's initial burden may be met by demonstrating the lack of record

evidence to support the opponent's claim. Nat'l State Bank v. Fed. Reserve Bank of New York,

979 F.2d 1579, 1581-82 (3d Cir. 1992). Once that burden has been met, the non-moving party

must set forth "specific facts showing that there is a genuine issue for trial," or the factual record

will be taken as presented by the moving party and judgment will be entered as a matter of law.

Matsushita Electric Industrial Corp. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting

Fed. R. Civ. P. 56(E)) (emphasis in Matsushita). An issue is genuine only if the evidence is such

that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986).

In meeting its burden of proof, the "opponent must do more than simply show that there

is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. The non-

moving party "must present affirmative evidence in order to defeat a properly supported

motion" . . . "and cannot simply reassert factually unsupported allegations." Williams v.

Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989). Nor can the opponent "merely

rely upon conclusory allegations in [its] pleadings or in memoranda and briefs." Harter v.

GAF Corp., 967 F.2d 846, 852 (3d Cir. 1992); Sec. & Exch. Comm'n v. Bonastia, 614 F.2d

908, 914 (3d Cir. 1980) ("[L]egal conclusions, unsupported by documentation of specific facts,

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Likewise, mere conjecture or speculation by the party resisting summary judgment will not

provide a basis upon which to deny the motion. Robertson v. Allied Signal, Inc., 914 F.2d 360,

382-83 n.12 (3d Cir. 1990). If the non-moving party's evidence is merely colorable or lacks

sufficient probative force summary judgment may be granted. Anderson, 477 U.S. at 249-50;

see also Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992),

cert. denied, 507 U.S. 912 (1993) (although the court is not permitted to weigh facts or

competing inferences, it is no longer required to "turn a blind eye" to the weight of the

evidence).

The record as read in the light most favorable to plaintiff establishes the backdrop that

follows. On April 5, 2018, the Pennsylvania State Police (PSP) responded to a 911 call reporting

that an incident of domestic violence had occurred at 104 Upper Hulltown Road, Lower Tyrone

Township, Fayette County. (SMF (Doc. No. 73) at ¶ 111); Incident Reports (Doc. No. 74-4 at 1-

12). Plaintiff owns two homes at 104 and 108 Upper Hulltown Road ("104" and "108"). (Id. ¶

114). He has two sons named Donald James Newell ("Donald James") and Dustin Thomas

Newell (“Dustin”). (Id. ¶ 7). Donald James and his domestic partner live at 108; Dustin and his

domestic partner, Noell Brown, live at 104. Dustin and Noell have two children together and

have been in a relationship (on again, off again) over approximately ten years. (Id. ¶ 8). Prior to

April 5, 2018, Brown had been subjected to various degrees of physical and verbal abuse by

Dustin and had sought and obtained Protection from Abuse (PFA) orders on behalf of herself and

her children. (Id. ¶ 9). She did not have a PFA against Dustin on April 5, 2018. (Id. ¶ 10).

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convenience store.1 While they were gone, Noell discovered Dustin's cellular telephone and

began to peruse through its contents. When Dustin and his daughter returned home, Noell

confronted Dustin and accused him of being unfaithful with another woman. An argument

between the two ensued, and Noell then attempted to gather some personal items and leave with

her two daughters. The argument escalated and Noell came out of the house and headed into the

street. At that juncture Donald James and his significant other became aware of the disturbance

and came out of their home in an effort to intervene. As Noell left the house and ran toward the

street, Dustin followed her. Dustin caught up to her, grabbed her, and stabbed her in the chest

with a knife. Just after that Donald James tackled Dustin and pulled him of Noell. Noell then

ran to Donald James’ house at 108 and sought refuge inside. Dustin retreated to the basement at

104. Donald James' significant other assisted Noell and applied a towel to control the bleeding.

Donald James called 911 and reported the incident. He stated in the call that his brother

(Dustin) and Noell were fighting and when Donald James came out of the house with his

significant other they became aware that Noell, who was in her twenties, had been stabbed.

Donald James told the 911 operator that Dustin was the one who had stabbed Noell and she had

injuries in the left area of the chest and on her neck.

1 The portions of the record recounted without a specific citation to defendants' statement of

material facts are taken from a comprehensive review of the exhibits submitted by the parties,

with careful consideration being given to the content of the police reports (Doc. No. 74-4) and

the entirety of plaintiff's deposition testimony (Doc. No. 74-12). Of course, the entirety of the

record also was considered in adopting those portions of defendants' statement that recount the

record in a short, concise, accurate and non-zealous manner that the court found helpful.

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come down to the house. Donald James was then contacted by 911 dispatch. At this point

Donald James advised that Dustin was somewhere in the vicinity but his precise location was

unknown.

Plaintiff traveled to 108, went inside the house and saw that Noell was bleeding. Her

condition appeared to be stable so plaintiff went looking for Dustin. He went through all of the

rooms inside 104 but did not find Dustin. He looked for the keys to gain access to the basement,

but could not find them. He went outside and attempted to enter the basement through a locked

outside entrance. He broke the locked door open and went down a short flight of stairs and into

the basement. He discovered Dustin lying on the floor and bleeding. He was motionless and had

stab wounds that later were determined to be self-inflicted. There were keys, a jacket, and a

knife lying on the floor in close proximity to Dustin. Upon discovering Dustin in a pool of

blood, plaintiff began to scream "call 911."

Upper Hulltown Road is in close proximity to the border between the Belle Vernon and

Uniontown state police stations and troopers from both barracks were dispatched in response to

Donald James' 911 call. Defendant Lauren Vernail (“Vernail”) was the first defendant to arrive

at the scene. (SMF ¶ 26). She came in contact with a municipal police officer who advised her

about the status of the victim and then indicated that the assailant had ran off into the nearby

house at 104. She radioed for expedited backup and she and the municipal officer attempted to

secure the outside perimeter of 104 by stationing themselves at opposite corners on the front of

the house where they could see the front and the sides of the building.

Prior to arriving at the scene, defendant Svetz and his partner defendant Biddle (who was

training Svetz that day) received information that a white male with a knife had stabbed a

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another officer that other officers were in the back of the residence. They proceeded to the rear

and in the process were joined by Vernail. Vernail informed them that a white male was in the

house.

At the rear side of 104 officers Svetz, Biddle and Vernail came to discover the open door

with three or four steps leading down into the basement. Plaintiff was standing just beyond the

bottom of the steps and Dustin was lying on the floor just beyond plaintiff. Officers Svetz and

Biddle began to direct commands at plaintiff, telling him to reveal himself, show his hands and

get down on the ground.

At this juncture the parties' respective accounts of what happened diverge dramatically.

Plaintiff's testimony conveys the following. Plaintiff was ordered to reveal himself and show his

hands, which he did. He was then ordered to lie down on the ground, which he did. He was then

ordered to get up and show his hands, which he did. He tried to keep his hands in sight and was

able to do so except when he had to use them to get up and down as directed. He was not

defiant, confrontational, argumentative, or otherwise refusing to comply with the officers'

commands.

On the third time when the officers commanded him to get on the ground, they added a

new command to crawl up the stairs. Believing that his son was in need of immediate assistance

and further delay would only ensue if he tried to crawl up the stairs, plaintiff announced that he

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stairs slowly and tried to keep his hands up and in sight while doing so.

When he reached the top of the stairs, the officers directed plaintiff to get down on the

ground, which he did. They then directed him to put his hands behind his back, which he did. In

the process of placing the handcuffs on plaintiff, Svetz and Biddle were forcing plaintiff's arms,

and particularly his hands and fingers, way up into his shoulder blades, causing significant pain.

By this point in time Vernail and defendant Officer Martier had joined Svetz and Biddle

in their efforts to handcuff and secure plaintiff. Once plaintiff was cuffed, Svetz, Martier and

Biddle began to punch plaintiff in the back and took their knees and with the force of their

weight drove them down into plaintiff's back. Plaintiff could not breathe, began to struggle in

order to gain the ability to breathe and told the officers to get off his back. Throughout this time

Vernail restricted plaintiff by cradling his lower legs with her arms and using her weight in an

effort to keep him from moving. Biddle then jumped to his feet, kicked plaintiff in the back of

the head while he was lying on his stomach, and then directed the other two officers to raise

plaintiff up. Svetz and Martier then pulled up on plaintiff's handcuffed arms while plaintiff

remained on his stomach, raising and bending him up like a banana. Biddle then kicked plaintiff

in the face; as he did so plaintiff was able to turn his face somewhat. The bottom, flat part of

Biddle's boot struck plaintiff's face in the area between his forehead and temple. Shortly

thereafter Dustin walked up out of the basement in the escort of other officers.

2 A secondary reason for plaintiff walking instead of crawling up the stairs as directed was the

pain he would experience in his knees if he were to crawl on concrete.

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house. Plaintiff was given Miranda warnings and placed in a patrol car.

At one point plaintiff showed Officer Janosko where he had been kicked in the face and

told him about the mistreatment. Officer Janosko said he could get the badge numbers of the

officers and explained that plaintiff could file a claim with the State Police Bureau about being

beaten. Officer Janosko did not follow up or provide plaintiff with the badge numbers of the

officers who had seized, cuffed, kneed, punched and kicked him.

Plaintiff thereafter was asked by an officer, whom he believed to be officer Biddle, if he

wanted to be taken to the hospital. Initially plaintiff said yes and Biddle started the car. Plaintiff

then reconsidered because he was afraid due to what had just happened to him at the hands of

Biddle and the other officers, so plaintiff then told Biddle he did not need to go and he was

alright.

Corporal Heather Clem-Johnson arrived on the scene after things had subsided and was

briefed on the events by other officers. She made her way over to the vehicle where plaintiff was

being held. She directed that plaintiff be unhandcuffed. She then talked to plaintiff and asked

him what had occurred. Plaintiff told her what he knew about the events of the evening

involving the disturbance between Dustin and Noell and answered all her questions the best he

could. Corporeal Clem-Johnson then asked plaintiff for permission to search the two houses, and

he gave her consent to search.

Plaintiff may have briefly mentioned to Corporal Clem-Johnson the treatment he had

received at the hands of the officers, but he did not recall saying anything to her in detail.

During the exchange with her, his focus was on the events involving Dustin.

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drive him to the hospital. Plaintiff's sister took several pictures of the bruises and red marks on

plaintiff's face and head. Plaintiff's father drove him to the hospital around 2:00 a.m.

Plaintiff sought examination for pain in his face/head, ribs and right shoulder. Notes

from the examination indicate plaintiff presented with left facial, right posterior lower rib cage

and right anterior rib cage pain. Plaintiff's main concern was his facial pain. His rib cage pain

was aggravated with movement.

The emergency physician was concerned about the injuries to plaintiff's head and chest

and his breathing. The examination that ensued included a CT scan and x-rays. The x-rays

revealed that plaintiff had a broken rib at "rib 11", which is known as a floating rib and is located

near the bottom of the backside of the ribcage.

Defendants' version of the interaction between themselves and plaintiff differs

meaningfully with regard to plaintiff's actions and demeanor toward them as he came up the

stairwell from the basement. They posit the following.

Upon arrival, Biddle and Svetz saw Vernail running towards 104, and as she was running

she described the stabbing to them. (SMF ¶ 17). Biddle and Svetz went to investigate the back

corner of the house. (Id. ¶ 64). It was very dark outside, and because it was outside of

Uniontown’s patrol area, they were unfamiliar with the area. (Id. ¶ 63). Biddle and Svetz saw

plaintiff and he matched the generic description of "a white male" they had received over the

radio. (Id. ¶ 64-65). Biddle was unable to see plaintiff's hands so he began directing plaintiff to

show his hands. (Id. ¶ 66). Upon hearing shouts of “show me your hands,” Vernail left her

position and made her way to the back of the house. (Id. ¶ 33).

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Uniontown Barracks already present and he saw troopers establishing a perimeter around 104.

(SMF ¶ 41). Hassenfeldt moved toward the back where he saw a white male (plaintiff) that he

believed matched the description of the suspect. (Id. ¶ 46). Hassenfeldt observed plaintiff refuse

to show his hands. (Id. ¶ 46).

From Vernail's perspective, plaintiff was confrontational, argumentative, and refused to

comply with instructions. (Id. ¶ 37). Trooper Martier arrived on the scene, approached the rear

of the building, and heard someone giving the command “show me your hands.” (Id. ¶ 75-76).

Martier too observed plaintiff "resisting." (Id. ¶ 76).

Plaintiff disobeyed the officers' instruction to crawl up the steps, instead walking up the

steps in "an aggressive manner, continuing to curse at troopers and act noncompliant." (Id. ¶ 71).

Once plaintiff reached the top of the stairs, Biddle and Svetz tried to "gain compliance." (Id. ¶

72). Plaintiff stiffened up and locked out his elbows, continuing to refuse to comply with Biddle

and Svetz’s instructions to place his hands behind his back and stop resisting. (Id. ¶ 77). Martier

then assisted Svetz and Biddle, joining with the two officers in instructing plaintiff to cease his

resistance. (Id. ¶ 78).

Meanwhile, Vernail made her way down to the basement to attend to the individual on

the basement floor, later identified as Dustin. (Id. ¶ 38). Hassenfeldt covered the basement door.

(Id. ¶ 53). Vernail and Hassenfeldt did not have any physical contact with plaintiff. (Id. ¶ 57-

59).

Biddle, Svetz, and Martier were able to get plaintiff on his stomach, but once on his

stomach, plaintiff held his arms underneath his stomach and chest and continued actively to

resist the troopers’ instructions. (Id. ¶ 79-80). Biddle and Martier did not use any compliance

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strength or a 5 out of 10) to plaintiff’s back area, and plaintiff responded by giving Svetz his

right arm, allowing Svetz to gain control in spite of plaintiff’s continued resistance.3 (Id. ¶ 83).

The officers were able to get control over plaintiff’s arms, place him in handcuffs, and roll him

over and place him in a seated position. (SMF ¶ 84). There was no need to gain compliance

once plaintiff was handcuffed so no further force was applied thereafter. (Id. ¶ 85).

Defendants move for summary judgment on the premise that the totality of the

circumstances demonstrates that their interactions with plaintiff were entirely reasonable. They

maintain that Vernail and Hassenfeldt did not come into physical contact with plaintiff and

therefore these two defendants did not "seize" plaintiff within the meaning of the Fourth

Amendment. Further, while Biddle, Svetz and Martier did have physical contact with plaintiff,

from each of these officers' subjective perspectives, it was reasonable to believe plaintiff

matched the description of the suspect; he refused to show his hands; he was confrontational,

argumentative and refused to comply with instructions; he walked up the stairs in an aggressive

manner, continuing to curse at the officers and act noncompliant; and once he reached the top of

the stairs, he continued "to resist." Thus, each of their actions was aimed at "gaining

compliance" over plaintiff and thus constituted a reasonable and necessary use of force.

As part of establishing the reasonableness of their actions under the totality of the

circumstances, defendants maintain that plaintiff's "versions" of what happened have shifted

from amendment to amendment during the pleading stage and the discrepancies that were

3 Plaintiff points out that Svetz's actual testimony was that he delivered between one and three

closed-fist strikes to gain plaintiff's compliance and although he could not recall the exact

number of blows, it definitely was more than one.

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believed by reasonable minds." And plaintiff purportedly may not sweep these inconsistencies

away by reliance on a failure to interview theory; nor may he collectively lump the officers

together in contradiction to the officers' separate and detailed accounts of the interaction.

Finally, defendants contend that qualified immunity shields them from liability because any

reasonable officer would have believed the conduct to be lawful and would not have recognized

beyond debate that their actions in gaining compliance over plaintiff and securing the scene

constituted a form of unconstitutional excessive force.

Plaintiff maintains that it is defendants' version of events as recounted in their brief that is

unworthy of credence and contradicted by the record. He notes that their accounts of his "non-

compliance" and aggressive defiance are belied by the lack of any reference of plaintiff engaging

in such conduct in the many pages of the police report summarizing the events of that night.

This supposedly is particularly telling given that defendants were required to report the use of

force under the applicable regulations and reporting policies and not one of them ever reported

either plaintiff's supposed defiant and belligerent conduct nor the use of any force in response

thereto or otherwise. And plaintiff's version of events is further corroborated by the fact that

plaintiff was not charged with any crime that night or thereafter. Further, while defendants have

highlighted cases that acknowledge the concept of "too incredible to be believed" in the

resolution of summary judgment motions, those cases either did not actually turn on that concept

or merely referenced the concept as part of a garden-variety determination that the opposing

party's proffered evidence was insufficient to withstand the motion for summary judgment.

Thus, from plaintiff's perspective, when the proper standards governing summary judgment are

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summary judgment and the application of qualified immunity.

As an initial matter, defendants' attempts to have plaintiff's testimony found to be and

thus pegged as "too incredible to be believed by reasonable minds" is unavailing. That language

commonly was utilized in evaluating summary judgment motions prior to the Supreme Court's

seminal 1986 cases of Celotex, Matsushita and Anderson. Those cases refocused the standards

on the sufficiency of the evidence proffered in opposition to a motion for summary judgment.

And it is those standards that must be utilized here.4

Moreover, the record as developed through discovery will support a finding that the

officers who had physical contact with plaintiff as part of their effort to "bring him into

compliance" engaged in the use of force as described by plaintiff. In this regard, plaintiff may

not have been a witness with great skills in articulating what he was saying or pinpointing the

moments in time to which he was referring. And he may not have communicated with precision

when he and counsel were discussing the details that gave rise to the amendments to the

pleadings. And he admittedly does not have great memory skills. But none of these skills or

attributes are needed to survive summary judgment and, at this juncture, the scope of review is

the evidentiary record as developed through discovery. A review of that record indicates without

4 Of course, a case where the proffered evidence in opposition to a summary judgment motion is

"too incredible to be believed by reasonable minds" would present a situation where the

objective evidence of record was insufficient to create a genuine material issue of fact for trial

and the movant would be entitled to judgment as a matter of law. But as explained in more detail

below, this case does not present a scenario where the evidence presented by the non-moving is

"inherently incredible" or "too incredible to be believed by a reasonable jury."

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against the other competing inferences in resolving the instant motion.

Under the applicable standards, a review of plaintiff's deposition testimony establishes

that he complied with the officers' demands in almost every regard, announced he would not

comply with the demand to crawl up the stairs and indicated he would walk up out of the

basement slowly with his hands in sight, which he did. He then submitted to the officers by

voluntarily going to the ground once he got to the top and placed his hands behind his back as

directed. It was only then that the officers handcuffed him while shoving his arms/hands up into

his should blades and, after he was handcuffed, kneed him, punched him, pulled him up by his

handcuffed arms while he was lying on his stomach - bending him like a banana - and kicked

him in the face.

A number of other aspects of the record might be credited by the jury in a manner that

would corroborate these aspects of plaintiff's account of the events. First, the information

provided to 911 dispatch made clear that the situation arose out of a domestic disturbance and

Dustin was known to be the assailant. Noell had obtained PFAs in the past as a result of similar

incidents and the jury may well infer that the police had been to the location on a number of

occasions in the past. A local officer was present and imparted information to Vernail when she

arrived and she in turn imparted information to Biddle and Svetz when they arrived. The jury

may consider these aspects of the record and reach an inference that defendants had reason to

believe that plaintiff was not the individual involved in the criminal activity reported in the 911

call. This would in turn undermine defendants' contention that all they knew was that the suspect

was "a white male." The potential for these findings and inferences is only augmented by the

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when he voluntarily responded to their verbal commands.

Moreover, the officers failed to mention any aspect of their interaction with plaintiff, his

purported defiance and belligerence, and their need to "bring him into compliance" in the

incident report from that night. As noted by counsel, defendants will be forced to admit they had

a duty to make a report of any such interaction. The fact that none of them did could be

interpreted by the jury to reflect a desire to avoid any inquiry into their handling of the situation

along with an inference that they recognized more force than necessary might have been

employed. And of course, resisting arrest and striking an officer are criminal offenses, and the

fact that plaintiff was never charged with any such offense might also be considered by the jury

as further supporting the determination that significant resistance by plaintiff did not occur.

Finally, the photographs taken of plaintiff's face assertedly on the night of the incident

can be interpreted as supplying yet another form of corroboration. The images of the left side of

plaintiff's forehead/face at Document Number 79-2 appear to depict bruising that reflects the

outline of a footprint – extending from the middle of the forehead around the cheek and over to

the left temple area – just as plaintiff described. Defendants' version of what occurred does not

provide an alternative explanation of how plaintiff came to have bruising on his face in the

outline of a footprint. Perhaps such an explanation exists. But at this juncture, a jury would be

entitled to interpret the photographs as a form of evidence which corroborates plaintiff's account

of being bent back like a banana and kicked in the face.

Having determined that plaintiff's version of what occurred is not as a matter of law

beyond what a jury could find to be credible, the issue remains as to whether plaintiff's version

can support a finding that the use of force at issue was unconstitutional. Claims of excessive

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Amendment. Rivas v. City of Passaic, 365 F.3d 181, 198 (3d Cir. 2004); Sharrar v. Felsing, 128

F.3d 810, 820 (3d Cir. 1997) ("When an 'excessive force claim arises in the context of an arrest

or investigatory stop of a free citizen, it is most properly characterized as one invoking the

protections of the Fourth Amendment . . . .'") (quoting Graham v. Connor, 490 U.S. 386, 394

(1989)). "The proper test for evaluating an excessive force claim is therefore one of objective

reasonableness," Sharrar, 128 F.3d at 820, which "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. at 821; accord Couden v.

Duffy, 446 F.3d 483, 497 (3d Cir. 2006).

To determine whether an officer acted with objective reasonableness, a court must

balance the “nature and quality of the intrusion on the individual’s Fourth Amendment interests

against the countervailing governmental interests at stake.” Graham, 490 U.S. at 396 (internal

citation omitted). In this setting appropriate attention must be given “to the circumstances of the

police action, which are often ‘tense, uncertain, and rapidly evolving.’” Groman, 47 F.3d at 634

(quoting Graham, 490 U.S. at 396). The question is whether, under the totality of the

circumstances, the officers' actions objectively were reasonable in light of facts and

circumstances confronting them, without regard to their underlying intent or motivation. Kopec

v. Tate, 361 F.3d 772, 776 (3d Cir. 2004); Graham, 490 U.S. at 397.

An officer's actions must be evaluated from the perspective of a reasonable officer on the

scene. Rivas, 365 F.3d at 198; Lamont v. New Jersey, 637 F.3d 177, 183 (3d Cir. 2011). In

undertaking this inquiry, the "calculus of reasonableness must embody allowance for the fact that

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circumstances] about the amount of force that is necessary in a particular situation." Graham,

490 U.S. at 396-97; Couden, 446 F.3d at 497. Furthermore, "the court should not apply 'the

20/20 vision of hindsight,' but should instead consider the 'perspective of a reasonable officer on

the scene.'" Couden, 446 F.3d at 497.

Assessing whether the use of force was reasonable in a particular setting is an

individualized and highly fact-specific undertaking, but three guiding factors are to be

considered: “(1) the severity of the crime at issue, (2) whether the suspect poses an imminent

threat to the safety of the police or others in the vicinity, and (3) whether the suspect attempt[ed]

to resist arrest or flee the scene.” Santini v. Fuentes, 795 F.3d 410, 417 (3d Cir. 2015). "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." Sharrar, 128 F.3d at 822; accord Kopec,

361 F.3d at 777; Couden, 446 F.3d at 497. “The reasonableness of the use of force is normally

an issue for the jury.” Rivas, 365 F.3d at 198 (quoting Abraham v. Raso, 183 F.3d 279, 290 (3d

Cir. 1999).

Here, on the one-hand, the officers were investigating a domestic disturbance that

involved a reported stabbing between domestic partners. Thus, the reported crime bringing them

to the scene was a serious and violent one. On the other hand, the record contains information

from which the jury might infer and ultimately conclude that the officers who interacted with

plaintiff knew or had reason to know that he was not the individual suspected of committing the

domestic assault. Nevertheless, the scene had not yet been secured and thus the officers were

17

investigating what had occurred.

When the officers came upon plaintiff, he had just responded to their verbal commands to

come into sight and reveal himself. He was at the bottom of the stairs and followed their

repeated commands to get down and get up. After doing so three times, plaintiff announced to

the officers that he would not crawl up the stairs on his hands and knees, but instead would walk

up the basement stairs with his hands in the air. And plaintiff did ascend the stairs slowly with

his hands in the air. He was not brandishing a weapon nor did the officers become aware of any

information to suggest that plaintiff himself was armed and dangerous. Plaintiff then got down

on the ground at the officers' direction in order to submit to their authority. Thus, up until the

point that plaintiff went to the ground the officers had not observed any specific behavior by

plaintiff that indicated or suggested he posed a security risk or danger to the officers or anyone

else at the scene.5

Whether plaintiff resisted the officers' efforts to place him in handcuffs is hotly disputed.

But the court is obligated to read the record in the light most favorable to plaintiff at summary

judgment. And plaintiff testified that he did not resist when the officers went to handcuff him.

Instead, the officers began to administer force in the form of shoving his arms and hands up into

5 Of course, defendants' version is that plaintiff was defiant and belligerent throughout the entire

process and continually refused to comply with directives. He was swearing at them and telling

them to get off his property while failing to keep his hands continuously in sight. But

notwithstanding the dispute about plaintiff's demeanor during his verbal communications with

the officers, it appears to be undisputed that plaintiff was expressing concern about his son and

the need to get his son medical assistance, which further supports an inference that plaintiff's

actual behavior was exhibiting a desire for the officers to help and did not present or pose an

actual threat to them.

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and kicking him after he was cuffed.

Of course, the duration of the interaction was by its nature relatively short. It appears that

the officers intended to arrest plaintiff, even though they never formally charged him with a

crime. And during the entire process plaintiff was the only individual the officers saw on the

scene and the only person with whom they were interacting.

Under the totality of the circumstances, the officers' forceful manipulation of plaintiff's

arms and hands in the process of handcuffing him did not rise to the level of excessive force.

The objective reasonableness of each particular use of force must be evaluated from “the

perspective of the officer at the time of the incident and not with the benefit of hindsight.”

Santini, 795 F.3d at 417; accord Graham, 490 U.S. at 396 (same). In other words, in the context

of an excessive force claim, the “standard of reasonableness at the moment applies: ‘Not every

push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers,’

violates the Fourth Amendment.” Graham, 490 U.S. at 396 (quoting Johnson v. Glick, 481 F.2d

1028, 1033 (2d Cir. 1973)).

At the moment the officers were in the process of handcuffing plaintiff, they had just

arrived on the scene of a reported domestic disturbance involving a stabbing between domestic

partners. It was dark and they did not know the exact location of the perpetrator or whether

anyone else might be present. They were in the process of securing the scene and believed that

handcuffing plaintiff was a necessary step in achieving that objective. The forceful manipulation

of plaintiff's arms and hands in that process, while perhaps quite painful and alarming, falls short

of the type of force which transgresses the standards of reasonableness in violation of the Fourth

Amendment. Cf. Graham, 490 U.S. at 396-97 (the "calculus of reasonableness must embody

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[tense and rapidly evolving settings] - about the amount of force that is necessary in a particular

situation."); Groman v. Twp. of Manalapan, 47 F.3d 628, 634 (3d Cir. 1995) ("It is well settled

that '[p]olice officers are privileged to commit a battery pursuant to a lawful arrest.'").

The same is true of the efforts to cradle plaintiff's legs. Plaintiff indicated that a female

officer was forcefully grasping his legs and restricting the movement of his lower extremities

while the other officers were attempting to place him in handcuffs and directly thereafter when

the male officers were forcefully pinning him down by applying their knees to his back. The

forceful cradling of plaintiff's legs while in the process of placing him in handcuffs and even for

the immediate period thereafter to assure plaintiff had been restrained falls short of the type of

force which transgresses the standards of reasonableness in violation of the Fourth Amendment.

In contrast, the officers' kneeing, punching and kicking plaintiff in the face stands on

different footing. Plaintiff testified that he did not resist the officers' efforts to handcuff him and,

after the handcuffs were on, the officers on each side shoved their knees into his back in a

manner that significantly restricted his breathing. They also punched him repeatedly. Then, one

officer jumped up, kicked plaintiff in the back of the head as he jumped across him, and told the

other officers to "pull him up," which they did by pulling on his handcuffed arms that were

behind his back, bending him up like a banana. The officer that had jumped up then kicked

plaintiff across the front of his face/forehead with the flat part of his foot. And all of this

occurred while plaintiff was lying face down on the ground in handcuffs.

Given the import of plaintiff's testimony, a jury could conclude that no reasonable officer

would believe or perceive he was actively resisting the officers' efforts to restrain him or

attempting to flee at the time he was kneed, punched and kicked. Given that a jury could so find,

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in the form of kneeing, punching and kicking plaintiff could be found by a reasonable jury to

have been neither objectively necessary nor a reasonable use of force under the totality of the

circumstances. Compare Couden, 446 F.3d at 497 (finding excessive force was used where

“[t]here was no evidence that [the plaintiff] was resisting arrest or attempting to flee” at the time

the force was used); Castellani v. City of Atl. City, 2017 WL 3112820, at *14 (D. N.J. July 21,

2017) (holding that the officer’s conduct was objectively unreasonable under the Graham factors,

because “a reasonable jury could . . . find that [the officer] unreasonably came in after [the

plaintiff] was restrained and unleashed his K9 to attack [the plaintiff] . . . after [he] was already

subdued by five officers on the ground and offering no resistance.”); Green v. New Jersey State

Police, 246 F. App'x 158, 163 (3d Cir. 2007) (under the Graham and Sharrar factors, "it would be

excessive to grab and choke an arrestee's throat, especially before using lesser force; to hit him

on the head twice with a flashlight; and to kick him when he is already restrained and on the

ground"); Scully v. City of Jersey Police Department, 2018 WL 6804274, *7-8 (D. N.J. Dec. 27,

2018) ("a jury could conclude that it was not reasonable for Boamah to punch Plaintiff ten to

twelve times after he was already lying face down on the ground; the same conclusion applies to

Mitchell kicking Plaintiff repeatedly in the side") (collecting cases). Thus, plaintiff's evidence

that the officers kneed, punched and kicked him after he was handcuffed establishes a jury

question as to whether the use of that force was excessive under the totality of the circumstances.

Defendants' efforts to invoke qualified immunity for the conduct of kneeing, punching

and kicking plaintiff is unavailing. 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

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818 (1982). Under this doctrine government officials are immune from suit in their individual

capacities unless, “taken in the light most favorable to the party asserting [a deprivation of a

constitutional violation resulting in harm or injury], . . . the facts alleged show the officer’s

conduct violated a constitutional right” and “the right was clearly established” at the time of the

deprivation. Saucier v. Katz, 533 U.S. 194, 201 (2001).

Qualified immunity is “an entitlement not to stand trial or face the burdens of litigation.”

Saucier, 533 U.S. at 200 (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). A

government official performing discretionary functions is immune from claims for damages

unless the evidence of record as read in the light most favorable to the non-moving party will

support findings that (1) the official violated the plaintiff’s constitutional rights, and (2) the

constitutional right that was violated was clearly established. Id. at 201. The courts retain

discretion in deciding which of the two prongs of this analysis should be addressed first. Pearson

v. Callahan, 555 U.S. 223, 236 (2009).

Qualified immunity is an affirmative defense and the burden of proving the prerequisites

for its application rests with the party seeking to invoke it. Thomas v. Independence Twp., 463

F.3d 285, 292 (3d Cir. 2006); Hicks v. Feeney, 850 F.2d 152, 159 (3d Cir. 1988). "The issue of

qualified immunity is generally a question of law, although a genuine issue of material fact will

preclude summary judgment on qualified immunity." Giles v. Kearney, 571 F.3d 318, 326 (3d

Cir. 2009). In deciding qualified immunity questions at summary judgment, a court must view

the facts in the light most favorable to the plaintiff. Id.

The doctrine “balances two important interests - the need to hold public officials

accountable when they exercise power irresponsibly and the need to shield officials from

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U.S. at 231; accord Burns v. Pa. Dept. of Corrections, 642 F.3d 163, 176 (3d Cir. 2011). And

where its protections are appropriate, the immunity “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.” Pearson, 555 U.S. 231 (internal quotation omitted). Thus, when

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, 743 (2011) (quoting Malley v.

Briggs, 475 U.S. 335, 341 (1986)).

Under the first prong of a qualified immunity analysis, the use of force is contrary to the

Fourth Amendment "if it is excessive under objective standards of reasonableness." Green, 246

F. App’x at 161 (quoting Saucier, 533 U.S. at 202). As discussed above, the courts in this

jurisdiction assess whether a seizure of a citizen involved the use of force that was not

objectively reasonable under the Fourth Amendment by examining the totality of the

circumstances confronting the officer(s) through the lens of the Graham and Sharrar factors.

See, e.g., Kopec, 361 F.3d at 776; Santini, 795 F.3d at 417; Monticciolo v. Robertson, 2017 WL

4536119, *6 (D. N.J. Oct. 11, 2017).

Here, an examination of the totality of the circumstances pursuant to an application of

those factors supports plaintiff's account that the officers kneeing, punching and kicking plaintiff

while he was not resisting their efforts to secure the scene and after he was placed in handcuffs

will support a finding that this conduct violated plaintiff's right to be free from the use of

excessive force. Thus, under the first prong, a jury may determine the facts in a manner that will

establish a violation of plaintiff's rights as protected by the Fourth Amendment.

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violated by the use of excessive force when plaintiff was not resisting and/or after he was

handcuffed, the second prong of the qualified immunity analysis asks whether "at the time of the

officer’s conduct, the law was sufficiently clear that every reasonable official would understand

that what he is doing is unlawful." District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018).

The purpose of this inquiry is to account for "the reality that 'reasonable mistakes can be made as

to the legal constraints on particular police conduct.'" Hickman v. Borough, 2017 WL 1197806,

at *11 (D.N.J. Mar. 31, 2017) (quoting Santini, 795 F.3d at 418).

“Clearly established means that, at the time of the officer's conduct, the law was

sufficiently clear that every reasonable official would understand that what he is doing is

unlawful.” James v. New Jersey State Police, 957 F.3d 165, 169 (3d Cir. 2020) (quoting Wesby,

138 S. Ct. at 589). This assessment involves "an 'objective (albeit fact-specific) question,' under

which '[an officer]’s subjective beliefs . . . are irrelevant." Id. (quoting Anderson v. Creighton,

483 U.S. 635, 641 (1987)). The inquiry is undertaken from the perspective of a reasonable

officer, and "only the facts that were knowable to the defendant officer" are taken into account.

Id. (quoting White v. Pauly, -- U.S. --, 137 S. Ct. 548, 550 (2017) (citation omitted).

A plaintiff might be able to show that a right is clearly established if the violation in

question "[is] ‘obvious.’" Id. (citing Brosseau v. Haugen, 543 U.S. 194, 199 (2004) (quoting

Hope v. Pelzer, 536 U.S. 730, 738 (2002)). "In the excessive-force context, 'obvious cases' are

those that obviously violate Graham . . . and Tennessee v. Garner, 471 U.S. 1 [] (1985)." Id.

(citing Brosseau, 543 U.S. at 199). But the fact that a particular use of force can be found to be

unreasonable and excessive under the general principles of Graham or Garner is not in itself

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outside 'an obvious case.'" White, 137 S. Ct. at 552.

It follows that "in most cases, a plaintiff must show that a right is clearly established

because 'the violative nature of [the] particular conduct [was] clearly established.'" James, 957

F.3d at 169 (quoting Ziglar v. Abbasi, -- U.S. --, 137 S. Ct. 1843, 1866 (2017) (quoting

Mullenix, 136 S. Ct. at 308)). In other words, “'settled law' . . . must 'squarely govern[ ]' the

specific facts at issue." Id. (quoting Wesby, 138 S. Ct. at 590 and Kisela v. Hughes, -- U.S. --,

138 S. Ct. 1148, 1152 (2018)). This standard can be satisfied by identifying a case where an

officer acting under similar circumstances was held to have violated the constitutional provision

at issue. James, 957 F.3d 169-70 (quoting White, 137 S. Ct. at 552).

In this setting "clearly established rights are derived either from binding Supreme Court

and Third Circuit precedent or from a ‘robust consensus of cases of persuasive authority in the

Courts of Appeals.'" Id. (quoting Bland v. City of Newark, 900 F.3d 77, 84 (3d Cir. 2018)

(citation omitted)); accord Wesby, 138 S. Ct. at 589–90 (“To be clearly established, a legal

principle must ... [be] dictated by controlling authority or a robust consensus of cases of

persuasive authority[.]”). A case directly on point is not required to show a right is clearly

established, but “existing precedent must have placed the statutory or constitutional question

beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). In other words, “there must be

sufficient precedent at the time of the action, factually similar to the plaintiff’s allegations, to put

defendant on notice that his or her conduct is constitutionally prohibited.” McLaughlin v.

Watson, 271 F.3d 566, 572 (3d Cir. 2001).

There was sufficient precedent to place defendants on notice that kneeing, punching

and/or kicking a detainee while the detainee is not resisting or after the detainee is handcuffed

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be free from the use of excessive force. It is well settled that a police officer effectuating an

arrest may only use the amount of force that is necessary under the circumstances. See, e.g.,

Thomas v. City of Erie, 236 F. App'x 772, 776 (3d Cir. 2007) (“A plaintiff may bring a claim

pursuant to § 1983 where the police use more force than is necessary to arrest him.”). And the

use of such force would extend to the need to secure the scene where officers are in the process

of responding to a call reporting a domestic disturbance involving physical violence. But where

the Graham and Sharrar factors no longer support the need for extraordinary force, such as where

the detainee is immobilized and neither resisting nor attempting to flee, the degree of force that

an officer can use is reduced.

On a more specific level, a collection of persuasive authority within this jurisdiction has

supplied adequate notice for every reasonable officer to understand that subjecting an unarmed

individual being detained for the purpose of securing an investigation scene (or effectuating an

arrest) to the use of blunt, traumatic force in the form of kneeing, punching and/or kicking the

individual after the individual 1) has his arms handcuffed behind his back, is lying prone on his

or her stomach and is not resisting or 2) has casually submitted to the officer's authority by lying

down on his or her stomach and is not resisting - when no other individuals are actively present

on the scene, violates the Fourth Amendment's prohibition of the use of excessive force.

Numerous cases have recognized that the gratuitous use of such force is unconstitutional. See,

e.g., Gulley v. Elizabeth City Police Dep’t, 340 F. App'x 108, 110 (3d Cir. 2009) (finding it

clearly established that “beating a suspect on the face and head, who is lying down and not

resisting arrest, would constitute excessive force in violation of the Fourth Amendment.”);

Green, 246 F. App'x at 163 (holding it clearly established that choking, hitting on the head and

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force); Noble v. City of Camden, 112 F. Supp. 3d 208, 228-29 (D. N.J. 2015) (“At the time

Defendants acted, the law was clear that beating an unarmed suspect who was not resisting arrest

violates the Fourth Amendment’s prohibition against excessive force.”); see also Morrison v. Bd.

of Trustees of Green Twp., 583 F.3d 394, 404 (6th Cir. 2009) (“This Court has consistently held

in light of the reasonableness standard that ‘use of force after a suspect has been incapacitated or

neutralized is excessive as a matter of law.’”) (citation omitted); Wade v. Colaner, 2010 WL

1490590, *7-10 (D. N.J. April 13, 2010) (in contrast to the brandishing of a weapon in

effectuating an arrest, the officer’s use of blunt force and pepper spray after the plaintiff

already had been subdued and partially restrained was unreasonable and thus could be

found to be excessive); Scully, 2018 WL 6804274 at *7 (holding that the repeated

kicking and punching of the plaintiff after he was lying on the ground and not resisting

the officers' authority could be found by a jury to be excessive use of force and opining

that when the incident occurred "the law was clear that beating an unarmed suspect who

was not resisting arrest violates the Fourth Amendment’s prohibition against excessive

force."); cf. Giles v. Kearney, 571 F.3d 318, 326 (3d Cir. 2009) (“[A]t the time of the incident in

2001, it was established that an officer may not kick or otherwise use gratuitous force against an

inmate who has been subdued.”).

It follows that the defendants had adequate notice that the use of kneeing plaintiff to the

point where he could not breathe and punching and kicking him after he submitted to the

officers' authority and was not resisting and/or had been handcuffed with his arms behind his

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establish at trial that such where the facts when plaintiff interacted with defendants.

Having determined that the above-asserted conduct presents a claim for excessive force

that survives defendants' substantive and qualified immunity challenges at summary judgment,

defendants' remaining grounds for summary judgment must be considered. More specifically,

defendants contend that plaintiff has failed to advance sufficient facts to demonstrate that

defendants Vernail and/or Hassenfeldt engaged in physical contact with plaintiff, thus defeating

any claim for use of excessive force. Relying on these officers' accounts of what happened,

defendants assert that plaintiff has failed to establish that these officers "seized" plaintiff within

the meaning of the Fourth Amendment. Plaintiff maintains that defendant Vernail assisted

officers Biddle, Martier and Svetz in administering the excessive force by cradling the lower

portion of plaintiff's legs while the others kneed, punched and kicked him and Hassenfeldt was

present when the same occurred and failed to stop it.

“[I]n the face of a motion for summary judgment, a § 1983 plaintiff must produce

evidence supporting each individual defendant's personal involvement in the alleged violation to

bring that defendant to trial." Jutrowski v. Township of Riverdale, 904 F.3d 280, 291 (3d Cir.

2018). This principle is grounded in the historical roots of tort law, the jurisprudence governing

excessive force cases and the current consensus of the appellate courts. Id. at 289-92.

In Jutrowski, the court held that where a § 1983 plaintiff's evidence at summary judgment

was insufficient to identify which of several officer officers in the vicinity actually kicked the

plaintiff and thus inflicted the claimed excessive force, all of the potential actors were entitled to

summary judgment due to the failure to meet the personal involvement requirement. Id. at 293.

This must necessarily be the result even though the cost might be immunizing a responsible

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information needed to make a positive identification. Id.

In contrast to a situation where the plaintiff's proof merely presents the possibility of each

actor's participation in the alleged wrongdoing, an evidentiary proffer that is sufficient to support

a finding that each actor had at least some role in the alleged wrongdoing is sufficient. For

example, in Smith v. Mensinger, 293 F.3d 641 (3d Cir. 2002), the plaintiff conceded that he

could not see all five of the defendants when they were pushing his head into cabinets and walls

and applied force to him from behind. Id. at 650. But his testimony was that "all of them" had

participated in beating him, even though he could not see them during the interaction. Under

these circumstances the court held that his inability to see the officers inflict the actual blows

"neither negate[d] their involvement nor their liability as a matter of law." Id. Thus, the

situation in Smith "ultimately involved nothing more than a dispute about '[t]he extent of each

officer's participation,' which 'is . . . a classic factual dispute to be resolved by the fact finder,'”

whereas the circumstances in Jutrowski "involved a dispute about the possibility of each officer's

participation," which was insufficient. Jutrowski, 904 F.3d at 290-91.

Here, plaintiff repeatedly emphasized that all of the officers were involved with the

beating that occurred as he was lying face-down in the dark, prone on his stomach and

submitting to their authority. Specifically, he identified Biddle as the officer who 1) jumped up

after plaintiff had been handcuffed, kneed and punched 2) directed the other two officers at

plaintiff's side to pull him up and 3) then kicked him after they did so. His testimony as to

Vernail was that she cradled his legs while the officers were placing the handcuffs on him, and

with the benefit of favorable reading, as the kneeing and punching directly ensued thereafter.

Plaintiff did not identify any specific conduct undertaken by Hassenfeldt.

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were in the process of placing him in handcuffs does not rise to the level of excessive force under

the totality of the circumstances. The kneeing and punching purportedly ensued immediately

thereafter, and there is a lack of record evidence to demonstrate that Vernail purposefully

continued to restrict plaintiff's movements in order for the other officers to beat plaintiff or

otherwise subject him to excessive force. The evidence of record and the reasonable inferences

drawn therefrom point only to the proposition that this series of events transpired very quickly.

Thus, the evidence pertaining to Vernail's personal involvement in the unconstitutional conduct

of kneeing, punching and kicking plaintiff is insufficient and she is entitled to summary

judgment.

Hassenfeldt is entitled to summary judgment as well. In an effort to overcome the lack of

evidence identifying Hassenfeldt's personal role in the alleged unconstitutional use of force,

plaintiff resorts to the contention that Hassenfeldt testified that the entire interaction with

plaintiff lasted two to five minutes. From this piece of testimony, plaintiff posits that

Hassenfedlt properly can be held liable for his failure to intervene and stop the other officers'

unconstitutional conduct. But this proposition is based upon unwarranted extrapolations from

generalized information that falls short of the evidence needed to sustain such a theory of

liability.

A police officer can have a duty to intervene to prevent a constitutional violation that

occurs in his or her presence. See Smith, 293 F.3d at 650 ("'If 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, the officer is directly liable under Section

1983.'") (quoting Byrd v. Clark, 783 F.2d 1002, 1007 (11th Cir. 1986)). However, liability for

30

intervene" and fails to do so. Id. at 651. Thus, to establish a Fourth Amendment violation for

failure to intervene against Hassenfeldt, plaintiff must demonstrate that he specifically (1)

observed and understood that a constitutional violation was taking place; (2) had a reasonable

and realistic opportunity to intervene; and (3) failed to do so. See Williams v. Guard Bryant

Fields, 535 F. App'x. 205, 210 (3d Cir. 2013); see also Fears v. Beard, 532 F. App'x. 78, 82 (3d

Cir. 2013) ("An officer’s failure to intervene can be the basis of [a constitutional] violation under

§ 1983 if the officer, upon witnessing another’s use of excessive force . . ., 'had a reasonable

opportunity to intervene and simply refused to do so.'") (quoting Smith, 293 F.3d at 651).

Plaintiff has the burden of producing sufficient evidence to support these requirements. Lora-

Pena v. Denney, 760 F. Supp. 2d 458, 468 (D. Del. 2011); Koutsogiannis v. Rogalski, 2019 WL

669803, *9 (D. N.J. Feb. 19, 2019).

Plaintiff's contention that Hassenfeldt's testimony will support a finding that he sat back

and idly watched as the other officers beat plaintiff for a length of time that created a reasonable

and realistic opportunity to intervene is unsupported by the actual testimony given by

Hassenfeldt. While Hassenfeldt did estimate that the entire interaction with plaintiff

encompassed at least two minutes or so, a fair and detached review indicates that the estimate of

time entailed from the moment plaintiff became the focus of the officers' attention through the

removal and securing of plaintiff in a manner that then permitted the officers to proceed into the

basement to investigate plaintiff's statements that his son had just attempted suicide and was

lying on the basement floor bleeding. During this process Hassenfeldt was leaning on or near the

house and focused on the entrance to the basement in order to assure that Dustin did not emerge

from the basement unexpectedly. And during this entire time Hassenfeldt denied ever seeing

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Charles Hassenfeldt (Doc. No. 74-8) at 21-31.

Plaintiff's reference to Hassenfeldt's testimony indicating he was on the scene while the

interaction with plaintiff occurred falls short of presenting sufficient evidence to show 1)

Hassenfeldt witnessed the specific use of excessive force at issue, 2) had a reasonable and

realistic opportunity to intervene, and 3) failed to do so. Plaintiff's testimony or any of the other

evidence of record fails to rectify this deficiency of evidence. It follows that Hassenfeldt is

entitled to summary judgment.

Plaintiff's testimony when read pursuant to the governing standards supplies a sufficient

basis for the personal involvement of the remaining officers. Defendants Biddle, Matier and

Svetz admitted having interacted with plaintiff in putting him in handcuffs and "bringing him

into compliance." Plaintiff testified that four officers were involved in the process, one of whom

was Vernail. He identified Biddle as the officer that got up, jumped across him, and then kicked

him in the face. The other two officers were kneeing him in a way that was depriving him of air

and then punching him, all of which occurred after he voluntarily submitted to their authority and

was handcuffed. This testimony, although choppy and somewhat disjointed due in part to

defense counsel's persistent demands that plaintiff stop testifying about the collective actions of

the officers while working together and provide specific defendant-by-defendant descriptions of

who was doing what and when, provides a sufficient basis to submit the matter to a jury to

determine the extent to which each of the three remaining defendants contributed to any post-

submission kneeing, punching and kicking that the jury finds to have occurred gratuitously.

32

granted as to defendants Vernail and Hassenfeldt. The motion will be denied in all other aspects.

An appropriate order will follow.

Date: March 21, 2022

s/David Stewart Cercone

David Stewart Cercone

Senior United States District Judge

cc: Joel Sansone, Esquire

Elizabeth Tuttle, Esquire

Massimo A. Terzigni, Esquire

Sarah J. Simkin, Esquire

Justin A. Gayle, Esquire

33