PARNELL v. JACKSON TOWNSHIP

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

VINCENT A. PARNELL,

Plaintiff,

Civil Action No. 21-19326 (GC) (RLS)

v.

OPINION

JACKSON TOWNSHIP, et al.,

Defendants.

CASTNER, U.S.D.J.

THIS MATTER comes before the Court upon two Motions for Summary Judgment

pursuant to Federal Rule of Civil Procedure (“Rule”) 56. The first motion is from Defendants

Michael Basso and Ernest Thomason, and the second motion is from Defendants Jackson

Township and Matthew Kunz. (ECF Nos. 19 & 20.) Plaintiff Vincent Parnell opposed both

motions, and Defendants Jackson Township and Matthew Kunz replied. (ECF Nos. 24 & 29.)

The Court has carefully considered the parties’ submissions, and it decides the matter without oral

argument pursuant to Rule 78(b) and Local Civil Rule 78.1(b). For the reasons set forth herein,

and other good cause shown, Defendants’ motions are GRANTED in part and DENIED in part.

Specifically, judgment is entered in Defendants’ favor on the official-capacity claims against

Kunz, on the failure-to-train claim against Jackson Township, as well as the intentional infliction

of emotional distress claim against all Defendants. The motions are denied at this time as to all

other claims.

I. BACKGROUND

A. PROCEDURAL BACKGROUND

On October 26, 2021, Plaintiff Vincent Parnell sued Jackson Township, New Jersey; Police

Chief Matthew Kunz; Officers Michael Basso and Ernest Thomason; as well as several other

unidentified personnel in the Jackson Township Police Department. (ECF No. 1.) Plaintiff, a

resident of Jackson, alleges that he was thrown to the ground, punched “numerous times,” and

struck in the head with a flashlight during a December 7, 2020 traffic stop on New Prospect Road

in Jackson. (d. at 3.')

Plaintiff asserts eight causes of action. The first four are pursuant to 42 U.S.C. § 1983 for

violations of the Fourth and Fourteenth Amendments: Counts One and Two against Basso and

Thomason for use of excessive force and for failure to intervene; Count Three against Kunz for

supervisory liability; and Count Four against Jackson Township and Kunz for unlawful policy,

custom, practice, and/or inadequate training. (/d. at 3-10.) The remaining four causes of action

are state-law claims against Basso and Thomason: Count Five for violations of the New Jersey

Civil Rights Act, N.J. Stat. Ann. § 10:6-1, et seg.; Count Six for assault and battery; Count Seven

for negligence; and Count Eight for intentional infliction of emotional distress. (Jd. at 10-13.)

Basso and Thomason moved for summary judgment on July 27, 2023. (ECF No. 19.) The

next day, Jackson Township and Kunz did the same. (ECF No. 20.) On September 18, Plaintiff

filed a single opposition to both motions. (ECF No. 24.) Jackson Township and Kunz replied on

October 27. (ECF No. 29.)

Page numbers for record cites (i.e., “ECF Nos.”) refer to the page numbers stamped by the

Court’s e-filing system and not the internal pagination of the parties.

B. UNDISPUTED FACTS AS TO DECEMBER 7, 2020 MOTOR VEHICLE STOP

Michael Basso and Ernest Thomason are police officers in the Jackson Township Police

Department. (ISMF & RISMF {ff 2, 35.”) Both officers graduated from the Ocean County Police

Academy, where they were trained on the use of force. (SMF & RISMF {ff 3-4, 36-37.) They

were taught about the six levels of force and have received biannual training on the use of force.

(ISMF & RISMF ff 5-6, 38-39.) Thomason was also trained to become a “use of force training

officer’ for the Jackson Township Police Department. (ISMF & RISMF { 7.)

On the evening of December 7, 2020, Thomason was “in the course of his duties as a police

officer.” (ISMF & RISMF ff 8-9.) Thomason heard a car traveling at a high rate of speed and

saw a pickup truck improperly pass a car on a double yellow line. (ISMF & RISMF {ff 11, 45.)

Thomason drove his patrol vehicle after the pickup, which pulled over and stopped. (ISMF &

RISMF { 12, 46-47.) As Thomason approached the driver side door, he heard “screaming” and

saw Plaintiff Vincent Parnell “punching” the steering wheel. (SMF & RISMF {ff 13, 48-49.)

When Thomason asked Plaintiff to exit the pickup, Plaintiff locked the doors and said that he was

not getting out. (SMF & RISMF ff 14-15, 17, 50.) Plaintiff gave his driving credentials to

Thomason. (ISMF & RISMF § 51.) After Thomason explained that Plaintiff would be arrested if

he did not exit, Plaintiff got out and went to the back of his pickup and faced the rear. (ISMF &

RISMF ff 18-19, 55-56.)

2 The Statement of Undisputed Material Facts from Basso and Thomason (ECF No. 19-1) is

referred to as “ISMF,” and Plaintiffs Response to their Statement of Material Facts (ECF No. 24-

1 at 5-11) is referred to as “RISMF.” The Statement of Undisputed Material Facts from Jackson

Township and Kunz (ECF No. 20-2) is referred to as “MSMF,” and Plaintiff's Response to their

Statement of Material Facts (ECF No. 24-1 at 12-19) is referred to as “RMSMF.” The

Supplemental Statement of Undisputed Material Facts from Plaintiff (ECF No. 24-1 at 19-32) is

referred to as “PSMF,” and Jackson Township and Kunz’s Response to Plaintiff's Supplemental

Statement of Material Facts (ECF No. 29-1) is referred to as “RPSMEF.” Basso and Thomason did

not respond to Plaintiff’s supplemental statement of material facts.

At that point, at about 8:12 p.m., Thomason and Basso (who had responded to the stop in

uniform and had a flashlight in hand) were with Plaintiff at the back of the pickup. (ISMF &

RISMEF f 20, 40, 43.) Plaintiff was not told he was under arrest. (PSMF & RPSMF { 64.) An

approximately thirty-second altercation then ensued that resulted in Plaintiff becoming

handcuffed. (ISMF & RISMF 28-29.) Plaintiff was put into a patrol car where Plaintiff

“thrash[ed] around” and threatened “to shoot and kill the officers.” (ISMF & RISMF 32-33,

66-67; MSMF & RMSMEF 88.) Plaintiff said insulting things as he was driven to the police

station. (ISMF & RISMF {ff 33, 68-69.)

Plaintiff was brought to Monmouth Medical Center Southern Campus, where he was

diagnosed with a scalp laceration that required four staples to repair. (PSMF & RPSMF { 6.) On

December 10, 2020, Plaintiff sought treatment at Jersey Shore Medical Center for headaches and

was diagnosed with a concussion. (PSMF & RPSMF 7.)

Plaintiff was charged with possession of marijuana under fifty grams, resisting arrest,

aggravated assault, possession of a weapon, terroristic threats, and other motor vehicle

summonses. (MSMF & RMSMF ff 3, 20.) The charges were resolved by Plaintiff's successful

application to the pre-trial intervention program.*? (MSMF & RMSMF 4.)

C. UNDISPUTED FACTS AS TO JACKSON TOWNSHIP POLICE DEPARTMENT

Matthew Kunz has been Chief of the Jackson Township Police Department since 2008.

(MSMF & RMSMF 4 91.) Kunz is responsible for training, supervising, and disciplining police

officers; ensuring the Attorney General guidelines are followed; and appointing personnel to

maintain the Department’s internal affairs process. (MSMF & RMSMEF f 92-94; PSMF &

RPSME 54-55.) Kunz requires all officers to receive use of force training twice a year in

3 A plaintiff's “enrollment in the PTI program does not bar [a] § 1983 claim.” Meza v.

Jackson Twp., Civ. No. 18-15206, 2021 WL 2549319, at *8 n.11 (D.N.J. June 22, 2021).

accordance with the Attorney General guidelines. (MSMF & RMSMF {f/f 95-96.) There is one

full-time lieutenant in charge of internal affairs who reports directly to Kunz and meets with Kunz

as needed to discuss investigations. (MSMF & RMSMF 4 97-100.)

Jackson Township police officers are taught that they have a duty to intervene if another

officer uses excessive force; to avoid head strikes; and that excessive force is a violation of civil

rights. (MSMF & RMSMF ff 101, 103-104; PSMF & RPSMF □ 56, 59, 61.) The Department

has an early warning system to track excessive force, complaints against individual officers, and

internal affairs allegations. (MSMF & RMSMEF q 102; PSMF & RPSMF { 57.) Internal affairs

investigations may be initiated by either an external or internal complaint or an internal review of

an existing situation. (MSMF & RMSMF f 105.) A tort-claim notice or complaint alleging

excessive force does not automatically trigger an investigation. (MSMF & RMSMF 106.)

The Department monitors its officers’ use of force. (MSMF & RMSMF 108.) An officer

is required to produce a use-of-force report whenever there is “non-routine contact,” which is

contact greater than physically guiding a person into a police car. (MSMF & RMSMEF 110.)

These reports are sent directly to the officer’s supervisor and are saved in a portal. (MSMF &

RMSMF 111.) The Department’s early warning system examines officers’ involvement in

various incidents and looks for a trend of misconduct, including excessive use of force. (MSMF

& RMSMF ff 112-115.) The Department submits an annual report to the Attorney General’s

office on its officers’ use of force. (MSMF & RMSMF 108.)

Kunz and other Jackson Township police officers have been named as defendants in at

least eight prior lawsuits where individuals alleged either (1) to have been the victims of excessive

force, or (2) that the Department permitted an unconstitutional custom of approving its officers’

excessive use of force, including through a flawed internal affairs process. (PSMF & RPSMF □□□

45-48.)

In the present case, Kunz determined that an internal affairs investigation was unnecessary

because his review of the available evidence led him to conclude that “a reasonable officer could

believe that [Plaintiff] was attempting to disarm [the officer] and thus . . . justified in using force.”

(MSMF & RMSMF f 107; PSMF & RPSMF { 64.) Neither Basso nor Thomason were interviewed

by internal affairs. (PSMF & RPSMF ff 14, 34.)

D. DISPUTED FACTS AS TO DECEMBER 7, 2020 ALTERCATION

The parties disagree as to what precisely occurred during the thirty-second altercation that

led Plaintiff to become handcuffed after exiting his pickup truck on December 7, 2020.

Plaintiff contends that as he followed Thomason’s instructions and put his hands on the

back of the pickup, Thomason began to turn Plaintiff around, and “out of nowhere” Basso took

Plaintiff by his hoodie, grabbed him, and hit the top of Plaintiff's head with a flashlight and drove

Plaintiff to the pavement face-first. (PSMF □ 3.) Plaintiff asked how many times the officers were

going to hit him, and they told him to stop resisting. (PSMF § 3.) Plaintiff could not recall how

many times he was hit by Thomason and Basso until he watched the mobile video recorder

(“MVR”) footage of the incident. (PSMF □ 4.) Plaintiff claims that it was the strike with the

flashlight that left scars on the back of his head. (PSMF { 5.)

In contrast, Defendants contend that while Thomason was retrieving his handcuffs,

Plaintiff turned around, uttered curse words, and grabbed Thomason. (ISMF {f 21-22, 59; MSMF

q{ 39-40, 77-78.) Plaintiff grabbed Thomason around the neck and at one point Plaintiff had his

hand near Thomason’s firearm. (ISMF 9 30-31; MSMEF □□ 47-48.) Thomason and Basso tried

to control Plaintiff, with all three going to the ground. (ISMF 4 23-25, 60-61; MSMF 41-43,

79-80.) Thomason and Basso could not secure Plaintiff's arms so they punched Plaintiff to obtain

physical compliance, striking him in several places. (ISMF 4] 26-27, 62; MSMF {ff 44, 81.)

Although Basso had a flashlight in his hand, he denies that he used it to strike Plaintiff in the head.

(ISMF 42-43; MSMF 9 61-62.) Thomason believes the cut on Plaintiff's head was caused by

Plaintiff “thrashing around the back of the patrol vehicle.” (ISMF 4 34.)

I. LEGAL STANDARD

“Summary judgment is governed by Rule 56 of the Federal Rules of Civil Procedure.” In

re Lemington Home for Aged, 659 F.3d 282, 290 (3d Cir. 2011). Pursuant to Rule 56, “[s]ummary

judgment is proper when, viewing the evidence in the light most favorable to the nonmoving party

and drawing all inferences in favor of that party, there is no genuine issue of material fact and the

moving party is entitled to judgment as a matter of law.” Auto-Owners Ins. Co. v. Stevens & Ricci

Inc., 835 F.3d 388, 402 (3d Cir. 2016) (citing Fed. R. Civ. P. 56(a)). “A fact is material if—taken

as true—it would affect the outcome of the case under governing law.” M.S. by & through Hall v.

Susquehanna Twp. Sch. Dist., 969 F.3d 120, 125 (3d Cir. 2020) (citing Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986)). “And a factual dispute is genuine ‘if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.”” Id.

WW. DISCUSSION

A. COUNTS ONE AND TWO—EXCESSIVE FORCE AND FAILURE TO INTERVENE

Defendants Basso and Thomason argue that “the doctrine of qualified immunity should

protect .. . [them] from any claims of excessive force and of failure to intervene.” (ECF No. 19-

2 at 20.) They insist that their actions in this case were reasonable under the circumstances: “Not

knowing [Plaintiff’s] intentions, the officers had to make a split-second decision to ensure their

safety, [Plaintiff's] safety and the safety of passing motorist[s]. ... Because of [the officers’]

decisive actions, some 28 seconds after [Plaintiff] turned towards . . . Thomason, [Plaintiff] is

under the control of the officers . . . and handcuffed.” (Ud. at 19-20.) They claim that the failure

to take immediate action could have resulted in serious injury or an accident, and their actions are

further justified by the “erratic behavior” they had witnessed from Plaintiff. (/d.)

In opposition, Plaintiff argues that “the testimony of the parties and the police MVR

footage in this case creates sufficient genuine issues of material fact from which a jury could

conclude that Defendants (punching Plaintiff [several] times and striking him in the head with a

flashlight) acted unreasonably and used excessive force.” (ECF No. 24 at 9-10 (emphasis

removed).) And because “a reasonable jury could conclude that Defendants used excessive force

during their encounter with [P]laintiff, violating Plaintiffs Constitutional rights, there also exists

a genuine issue as to whether Defendants breached their duty to intervene and prevent the use of

excessive force on Plaintiff's person.” (/d. at 15.)

“Qualified immunity protects government officials from being held liable for damages

when their conduct does not violate a citizen’s clearly established rights. As the Supreme Court

has noted, qualified immunity advances a policy of ‘shield[ing] officials from harassment,

distraction, and liability when they perform their duties reasonably.’” James v. New Jersey State

Police, 957 F.3d 165, 166 (3d Cir. 2020) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)).

“When properly applied, [qualified immunity] protects all but the plainly incompetent or those

who knowingly violate the law.” Taylor v. Barkes, 575 U.S. 822, 825 (2015) (citations omitted).

Qualified immunity has two prongs: “First, a court must decide ‘whether the facts that a

plaintiff has . .. shown make out a violation of a constitutional right.’ And second, the court must

determine whether the right at issue was ‘clearly established’ at the time of defendant’s alleged

misconduct.” Jd. at 168 (quoting Spady v. Bethlehem Area Sch. Dist., 800 F.3d 633, 637 (3d Cir.

2015)). “The officers bear the burden of persuasion under each prong.” Anglemeyer v. Ammons,

92 F.Ath 184, 188 (3d Cir. 2024).

“To determine whether a right was ‘clearly established,’” courts must “define the right

allegedly violated at the appropriate level of specificity,’ and ask “whether the right was

‘sufficiently clear that a reasonable official would understand that what he is doing violates that

°

right.’” Peroza-Benitez v. Smith, 994 F.3d 157, 165 (3d Cir. 2021) (citations omitted). To

complete this inquiry, courts “first look to factually analogous precedents of the Supreme Court

and the Third Circuit. Then, [they] examine persuasive authorities, such as . . . nonprecedential

opinions and decisions from other Courts of Appeals. [Courts] may consider all relevant cases

under this inquiry, not just those cited by the parties.” Jd. (citations omitted). “[I]n some

exceptional cases the ‘violation [is] obvious’ such that general statements of law may suffice to

show that a right is ‘clearly established,’ even in the absence of factually analogous precedent.”

Peroza-Benitez, 994 F.3d at 166 (quoting Brosseau v. Haugen, 543 U.S. 194, 199 (2004)). For

example, “[i]n the excessive force context, an ‘obvious’ case is one where the general statements

of law articulated in Graham vy. Connor, 490 U.S. 386 (1989), and Tennessee v. Garner, 471 U.S.

1 (1985), provide the requisite notice.” Id.

I. EXCESSIVE FORCE

“The right to be free from the use of excessive force has been recognized under the Fourth

Amendment, which guarantees the right of citizens ‘to be secure in their persons . . . against

unreasonable... seizures.’” Anglemeyer, 92 F.4th at 188 (quoting Graham, 490 U.S. at 394).

The question to be answered when excessive force is alleged “is whether, under the totality

of the circumstances, ‘the officers’ actions are objectively reasonable in light of the facts and

circumstances confronting them, without regard to their underlying intent or motivation.’” □□□

(quoting Graham, 490 U.S. at 397). This question is analyzed “from the perspective of a

reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Jd. (quoting

Graham, 490 U.S. at 396). And courts “make ‘allowance for the fact 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.’” Jd. (quoting

Graham, 490 U.S. at 398).

90

Factors considered when assessing officers’ reasonableness are “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.” Jd. (quoting Graham,

A490 U.S. at 396). Courts “also consider ‘the physical injury to the plaintiff, the possibility that the

persons subject to the police action are themselves violent or dangerous, the duration of the action,

whether the action takes place in the context of effecting an arrest, the possibility that the suspect

may be armed, and the number of persons with whom the police officers must contend at one

time.’” Id. at 189 (quoting El v. City of Pittsburgh, 975 F.3d 327, 336 (3d Cir. 2020)).

At summary judgment, the facts must be viewed “‘in the light most favorable to . . . the non-

moving party,” here Plaintiff. Peroza-Benitez, 994 F.3d at 166-67. And a district court must

“analyze separately, and state findings with respect to, the specific conduct of each [defendant].”

Williams v. City of York, Pennsylvania, 967 F.3d 252, 255 (3d Cir. 2020) (quoting Grant v. City

of Pittsburgh, 98 F.3d 116, 126 (3d Cir. 1996)). When one party’s narrative of events is “blatantly

contradicted by the record,” including by video footage, “a court should not adopt that version of

the facts for purposes of ruling on a motion for summary judgment.” Ringgold v. Keller, 608 F.

App’x 102, 104 (3d Cir. 2015) (quoting Scott v. Harris, 550 U.S. 372, 380 (2007)); see also

Castellani v. City of Atl. City, Civ. No. 13-5848, 2017 WL 3112820, at *8 (D.N.J. July 21, 2017).

Here, there are genuine disputes of material fact that preclude summary judgment because

when viewed in the light most favorable to Plaintiff, a reasonable jury could find that Basso and

Thomason used objectively unreasonable force on the evening of December 7, 2020. There are

two primary factual disputes. First, as to what precipitated the altercation between the officers

and Plaintiff, and second, whether the officers’ response was objectively reasonable under the

circumstances.

According to Plaintiff's account, which the Court must credit at this stage, Plaintiff was

cooperating with the order to put his hands on his truck, had not been told he was under arrest, was

turned around by Thomason, and then Basso grabbed Plaintiff and hit him with a flashlight on the

top of the head and took Plaintiff to the ground face-first. (PSMF 3-4.) Both officers then

repeatedly punched Plaintiff, eventually handcuffed him, and put him in the back of the patrol

vehicle. (PSMF ff 3-4.) Plaintiff suffered a concussion and was left with a head wound that

required four staples and left a scar. (PSMF & RPSMF {J 5-7.)

According to Defendants’ account, Plaintiff is responsible for the altercation because while

Thomason was retrieving his handcuffs, Plaintiff “turned around, utter[ed] some kind of curse

words and grabbed ... Thomason.” (ISMF 21.) This required the officers to use force to gain

control of Plaintiff, particularly because Plaintiff “had his arm around . . . Thomason such that

[Plaintiff's] hand was near . . . Thomason’s firearm.” (ISMF Jf 23-31.) Defendants admit to

punching Plaintiff “in several places.” (ISMF ff 26-27, 62 (“Ernest Thomason and Michael Basso

do use punches to gain control of Mr. Parnell.’’); see also ECF No. 24-9 at 8 (Question: “Where

did you hit him with your fist?” Thomason: “Id have to refer to the report. I know it was in

several places, on his side, his face, his shoulder, neck area.”).) Defendants also admit that Basso

had a flashlight in his hand, but they deny that Basso struck Plaintiff in the head with the flashlight.

(ISMF 42-43.) During Basso’s deposition, however, he testified that the flashlight was in his

right hand as he struck Plaintiff with that hand. (ECF No. 24-6 at 8 (Question: “Would you agree

that you struck him several times with the flashlight?” Basso: “No, sir. The flashlight was in my

hand as I struck him.” Question: “Okay. The hand that you struck him with had a flashlight in it;

correct?” Basso: “Yes, sir.”).)

The Court has reviewed the MVR footage provided by the parties and does not find that

Plaintiff's account is clearly contradicted. The parties’ competing accounts are both plausible

11

interpretations of what the Court has viewed, which means the Court must accept Plaintiff's

account for purposes of summary judgment. See Rush v. City of Philadelphia, 78 F.4th 610, 618

(3d Cir. 2023) (“We disagree that any of these facts is irrefutably demonstrated from either the

record or the contemporaneous video, viewing them in the light most favorable to [the

plaintiff].... Officer Nicoletti offers merely one of several possible ‘interpretation[s]’ of the

events that unfolded, we are bound to choose the interpretation most favorable to [the plaintiff].”);

Greene v. Kelly, 2022 WL 1024611, at *2 (3d Cir. Apr. 6, 2022) (“[O]ur review leads us to

conclude that the video surveillance evidence does not clearly depict the events, as the District

Court also found. It does show the encounter was brief. But it does not contradict [the plaintiff’ s]

version of events.”).

Based on the MVR footage, a jury could find that Plaintiff was standing facing the back of

his truck with Basso and Thomason behind him. Plaintiff then turns, Thomason appears to grab

Plaintiff’ s upper body, and Plaintiff lifts his hands to grab Thomason in response. Basso then pulls

Plaintiff and appears to strike Plaintiff in the head with the flashlight that is in Basso’s right hand.

Basso and Thomason then push and pull Plaintiff to the ground and are on top of Plaintiff striking

him. Approximately thirty seconds after the physical altercation begins, Plaintiff is no longer

being struck and is in the process of being handcuffed.

On this record and considering the relevant factors in the light most favorable to Plaintiff,

a jury could find that the factors weigh in Plaintiff's favor and that the officers’ use of force was

not justified under the totality of the circumstances. If, as Plaintiff maintains, he promptly pulled

over when stopped for a traffic infraction, was cooperating with the officers’ orders, was not

resisting arrest or attempting to flee, and had not been informed he was under arrest, the officers’

decision to grab, repeatedly strike, and drive Plaintiff to the ground, with Basso utilizing his

flashlight to strike Plaintiff in the head, could very well be deemed to be objectively unreasonable

force. See, e.g., Green v. New Jersey State Police, 246 F. App’x 158, 161-62 (3d Cir. 2007)

(“Green was arrested for a nonviolent offense and was unarmed. Although Green was agitated

and had brought his handcuffs forward, an action certainly justifying a physical response from the

police, it would not have been reasonable for Parry to violently grab his neck without first using

lesser force. Similarly, although the officers were justified in using force to extract Green once he

refused to exit, it would not have been reasonable for Fife to strike him on the head twice with a

flashlight. Finally, if he was restrained on the ground after being pulled from the car, it would not

have been reasonable for the officers to continue kicking him.”’).

The Court also finds that there is a clearly established right that could preclude the defense

of qualified immunity if the facts are determined in Plaintiff's favor. The right at issue is whether

officers use unconstitutional force when they repeatedly strike (including with a flashlight) and

drive to the ground an unarmed motorist who is not resisting arrest or attempting to flee. There is

case law in this Circuit and others, pre-dating December 2020, that supports the conclusion that

law enforcement officers must limit their use of force when an unarmed individual not suspected

of a serious crime is cooperating and neither resisting arrest nor attempting to flee.* See, e.g., El

v. City of Pittsburgh, 975 F.3d 327, 340 (3d Cir. 2020) (“[A]n unarmed individual who is not

suspected of a serious crime—including one who is verbally uncooperative or passively resists the

police—has the right not to be subjected to physical force such as being grabbed, dragged, or taken

down.” (collecting cases)); see also Darden v. City of Fort Worth, Texas, 880 F.3d 722, 731-32

(Sth Cir. 2018) (“In the present case, eyewitnesses claim that [the plaintiff] put his hands in the air

when the officers entered the residence, complied with the officers’ commands, and did not resist

4 Both officers acknowledged during their depositions that if Plaintiff's accusations are

accepted, hitting Plaintiff in the head with a flashlight is unreasonable and lethal force. (ECF No.

24-6 at 7; ECF No. 24-9 at 8.)

13

arrest. Yet Officer Snow allegedly threw [the plaintiff] to the ground and twice shocked him with

a Taser while he was being beaten by Officer Romero. In light of our prior case law, Officer Snow

should have known that he could not use that amount of force on an individual who was not

resisting arrest.”); Rudlaff v. Gillispie, 791 F.3d 638, 642 (6th Cir. 2015) (“When a suspect actively

resists arrest, the police can use a taser (or a knee strike) to subdue him; but when a suspect does

not resist, or has stopped resisting, they cannot.”); Brown v. Lewis, 779 F.3d 401, 419 (6th Cir.

2015) (“This circuit has further concluded that, since at least 2009, the use of violence against a

subdued and non-resisting individual has been clearly established as excessive, regardless of

whether the individual had been placed in handcuffs.”); Shannon v. Koehler, 616 F.3d 855, 859

(8th Cir. 2010) (“[I]t is clearly established that force is least justified against nonviolent

misdemeanants who do not flee or actively resist arrest and pose little or no threat to the security

of the officers or the public.” (citation omitted)); Hill v. Algor, 85 F. Supp. 2d 391, 409 (D.N.J.

2000) (“The right to be free from an unprovoked beating while in police custody is clearly

established.”).

Thus, Defendants Basso and Thomason have not satisfied their burden of proving the

defense of qualified immunity because critical facts remain in dispute. See, e.g., Curley v. Klem,

298 F.3d 271, 278 (3d Cir. 2002) (“Just as the granting of summary judgment is inappropriate

when a genuine issue exists as to any material fact, a decision on qualified immunity will be

premature when there are unresolved disputes of historical fact relevant to the immunity

analysis.”). Accordingly, summary judgment is denied as to these Defendants.

2. FAILURE TO INTERVENE

“TA] police officer has a duty to take reasonable steps to protect a victim from another

officer’s use of excessive force.” El, 975 F.3d at 335 (quoting Smith v. Mensinger, 293 F.3d 641,

650 (3d Cir. 2002)). “If a police officer, whether supervisory or not, fails or refuses to intervene

44

when a constitutional violation such as an unprovoked beating takes place in his presence, the

officer is directly liable under Section 1983.” Merman v. City of Camden, 824 F. Supp. 2d 581,

600 (D.N.J. 2010) (quoting Smith, 293 F.3d at 650-51). An officer is only liable, however, where

“there is a realistic and reasonable opportunity to intervene” in the “use of force.” El, 975 F.3d at

335-36 (quoting Smith, 293 F.3d at 651). “[D]uration of the incident is key.” Jd. Where, for

example, “an incident is momentary, its ‘brevity’ may ‘defeat[] [a] .. . failure-to-intervene claim.’”

Id. (quoting Ricks v. Shover, 891 F.3d 468, 479 (3d Cir. 2018)).

Plaintiff's failure-to-intervene claim in Count Two raises issues as to whether there was a

“realistic and reasonable opportunity” for either Basso or Thomason to intervene to stop the other,

and whether the officers can be liable for failing to intervene when they both directly participated

in the alleged use of excessive force. The Court will address each issue in turn.

As to whether there was a “realistic and reasonable opportunity” to intervene, courts in the

Third Circuit routinely find that there is no realistic opportunity when the time to intervene is

“momentary” and merely a matter of seconds. See, e.g., El, 975 F.3d at 335 (holding that “no

reasonable jury could conclude that” an officer “had a realistic and reasonable opportunity to

intervene” where the incident (use of a taser) occurred “with a matter of roughly five seconds”);

Wenzel v. Bovee, Civ. No. 20-291, 2022 WL 4236715, at *5 (W.D. Pa. Sept. 14, 2022) (granting

summary judgment on failure-to-intervene claim when “the entire event from start to finish lasts a

few seconds”); Byrnes v. Moody, Civ. No. 15-570, 2016 WL 4508245, at *5 (W.D. Pa. Aug. 29,

2016) (no realistic opportunity to intervene “in the few seconds that elapsed between the time that

Plaintiff was brought down to the floor” and the “sudden and rapid succession of two hand strikes

followed by two knee strikes” that led to the excessive force claim); Williams v. Dzoba, Civ. No.

09-6355, 2014 WL 2926506, at *6 (D.N.J. June 26, 2014) (no realistic opportunity to intervene

15

when “a mere two or three seconds elapsed before [the officer] put his hands on [the plaintiff] and

flipped him to the ground”).

In contrast, courts have declined to grant summary judgment when the “use of force lasted

long enough to create a genuine issue of fact regarding whether there was an opportunity to

intervene.” El, 975 F.3d at 336. The length of time needed to create a genuine issue of fact is

specific to the circumstances of each case, with some courts declining to grant summary judgment

when the force occurred over a period of thirty seconds or more. See, e.g., Smith, 293 F.3d at 644,

650 (plaintiff's testimony created dispute of material fact where he alleged he was “rammed . . .

into walls[,] ... knocked. . . to the floor[,] .. . kicked and punched[,]... pulled... to his feet,”

and beaten some more (internal quotation marks omitted)); Witt v. City of Vineland, Civ. No. 20-

14678, 2024 WL 1928213, at *4 (D.N.J. Apr. 30, 2024) (declining to grant summary judgment on

failure-to-intervene claim when “‘the entire use of force incident in this case occurred in just over

thirty seconds”); Colon v. Kinnel, Civ. No. 21-03337-JMG, 2023 WL 1783774, at *11 (B.D. Pa.

Feb. 6, 2023) (declining to grant summary judgment on failure-to-intervene claim when the

defendants argued that “the short duration of the incident (approximately 35 seconds) prevented

... the officers from intervening”’).

Based on the above case law, the Court cannot find that no reasonable jury could conclude

that the duration of the excessive force in this case—approximately thirty seconds from when the

first physical contact occurred to when the officers stopped striking Plaintiff—is too short to

present a realistic or reasonable opportunity to intervene. Based on the Court’s review of the MVR

footage, a jury could reasonably determine that the officers had a realistic opportunity to intervene

to stop each other from further striking Plaintiff after he was initially driven to the ground but

failed to do so and, instead, unconstitutionally struck him. Therefore, summary judgment on this

basis alone cannot stand.

{fe

As to whether Basso and Thomason can be held liable for failing to intervene when they

both directly participated in the alleged use of excessive force, the only appellate guidance that

this Court has identified is an unreported decision from the Second Circuit Court of Appeals, which

enunciated the principle that “[w]here an alleged use of excessive force is a single, indivisible

assault, it makes little or no sense to say that the same defendant has both used excessive force and

failed to intervene—or, to put it more generally, that a defendant can be held liable for failing to

intercede in and prevent an unlawful act in which she herself was the principal.” Walker v. City

of New York, 638 F. App’x 29, 32 (2d Cir. 2016). How this principle should be applied has led to

some conflict amongst district courts.

Almost universally, district courts hold that a single defendant cannot be liable for failing

to intervene to stop his or her own unconstitutional actions. See, e.g., Dixon v. Schweizer, Civ.

No. 18-5403, 2020 WL 4600187, at *8 (E.D. Pa. Aug. 11, 2020) (granting summary judgment on

failure-to-intervene claim where the officer was accused of excessive force by tackling the

plaintiff, “because a single defendant cannot be liable for both excessive force and failure to

intervene where the ‘alleged use of excessive force is a single, indivisible assault’” (citation

omitted)); Mazur v. Twp. of Marlboro, Civ. No. 16-05527, 2020 WL 373343, at *5 (D.N.J. Jan.

23, 2020) (“Because it is undisputed that Officer Gonzalez punched Mazur, and that punch is the

basis of the failure to intervene claim, Mazur cannot assert such claim against officer Gonzalez.”);

Holliday v. City of Elizabeth, Civ. No. 13-1006, 2018 WL 953346, at *9 (D.N.J. Feb. 20, 2018)

(“Plaintiff has presented the Court with no authority, nor could the Court find any, indicating that

a police officer allegedly using excessive force is also liable under a theory of failure to intervene

by not stopping herself.”); see also Williams v. City of Grand Rapids, 672 F. Supp. 3d 395, 411

(W.D. Mich. 2023) (noting that the plaintiff “cite[d] no caselaw demonstrating that an officer may

be held liable for both actively using excessive force and failing to intervene to stop the same force

17

that he or she was likewise applying”). The Court finds these decisions persuasive. To hold a

defendant liable for failing to intervene to stop his or her own excessive force would be both

counterintuitive and redundant—the defendant could only be liable for failing to intervene if he or

she has first been found liable for excessive force.

The case law is less clear where multiple defendants are alleged to have directly

participated in a single incident of excessive force. Some district courts have taken the position

that so long as a defendant was a direct participant, the defendant cannot be liable as a matter of

law for failing to intervene—even if other defendants engaged in unconstitutional force

simultaneously. See, e.g., Gordon v. Carter, Civ. No. 15-396, 2019 WL 7485328, at *4-5 (N.D.

Fla. Dec. 9, 2019), report and recommendation adopted, 2020 WL 61043 (N.D. Fla. Jan. 6, 2020)

(granting summary judgment on failure-to-intervene claim to several defendants who were accused

of “punching” the plaintiff “everywhere,” because the defendants “cannot be liable for both using

excessive force and failing to intervene”); see also Case v. City of New York, 233 F. Supp. 3d 372,

402 (S.D.N.Y. 2017) (“Plaintiffs may not assert a failure to intervene claim against a defendant

who they have plausibly alleged was personally involved in the underlying violation.”).

Not every court has agreed with this approach, with some district courts recognizing a

tension between the two theories of liability but finding nothing in the law that bars a defendant

who directly participates in the use of excessive force from also being liable for failing to intervene

to stop others from acting unconstitutionally. See, e.g., Polanco v. City of New York, Civ. No. 14-

7986, 2018 WL 1804702, at *10 (S.D.N.Y. Mar. 28, 2018) (declining to grant summary judgment

on failure-to-intervene claim because there were “genuine issues of material fact as to the extent

of each defendant’s role in the use of excessive force against plaintiff’). Notably, in Conforti v.

City of Franklin, the plaintiff accused two officers of, among other things, throwing him “face-

first onto the ground and pummel[ing] him with as many as twenty knee strikes and punches to

10

the head.” 559 F. Supp. 3d 815, 817 (E.D. Wis. 2021). The plaintiff brought claims for excessive

force and failure to intervene against both officers. On summary judgment, the two officers argued

that they could not be liable for failing to intervene when the plaintiff alleged that “they both

directly participated in the alleged uses of excessive force.” Id. at 819.

The district court disagreed with the officers. It wrote:

If both officers used excessive force, a jury could reasonably find

that they each failed to intervene to prevent the other officer from

kicking and punching the plaintiff, for an officer who actively kicks

and punches a suspect has a realistic opportunity to prevent the other

officer from simultaneously kicking and punching the same suspect.

Simply put, instead of joining in the use of force, the officer could

have restrained his partner “or at least cautioned [him] to stop.”

Thus, . . . [the two officers] could each be liable for both the injuries

that the plaintiff suffered from his own use of force and the injuries

the plaintiff suffered from the other officer’s use of force.

[Id. at 819-20 (citation omitted).

The district court rejected a rule that would insulate all officers who directly participate in a use of

excessive force from liability on a failure-to-intervene claim, fearing that it “would lead to perverse

results.” Id. at 821. “For example, an officer who fails to intervene to prevent his partner from

repeatedly striking a suspect in the head with a baton could avoid liability for the suspect’s

resulting head injuries by striking the suspect’s leg and causing a small bruise.” Jd. Even though

the court thought that as a “practical matter” it was unnecessary for the plaintiff to pursue a failure-

to-intervene claim against the two officers (because the plaintiff was pursuing a theory that both

officers were liable for excessive force and would be jointly liable for all injuries), the court

reasoned that “even if the failure-to-intervene claims are unnecessary, they are not legally

defective” and could not be eliminated on summary judgment. Id. at 820.

Having carefully reviewed relevant precedent and based on the facts in this case, the Court

agrees with the district court’s analysis in Conforti. To hold as a matter of law that Plaintiff here

DD

cannot assert both an excessive force and failure-to-intervene claim against the officers could lead

to perverse results. An officer could know that another officer is using unconstitutional force and

could have a realistic opportunity to prevent that other officer from continuing to use that force

notwithstanding the officer’s own participation in the incident. In the present case, for example,

if the jury were to determine that Basso struck Plaintiff with a flashlight and that this was

unconstitutional force under the circumstances, the jury might also determine that Thomason is

liable for failing to intervene to stop the use of force with a flashlight—even though Thomason

was a direct participant. Similarly, if ajury were to determine that Thomason engaged in excessive

force, it could determine that Basso is liable for failing to intervene to stop Thomason.” That said,

this Court agrees that an officer cannot be liable for failing to intervene to stop his or her own use

of excessive force. See, e.g., Dixon, 2020 WL 4600187, at *8. Thus, to the extent that either Basso

or Thomason are determined to have used excessive force, they may not also be held liable for

failing to intervene to stop their own actions.

Accordingly, the Court declines to grant summary judgment on Count Two for failure to

intervene against Defendants Basso and Thomason.

5 If either Basso or Thomason is not found liable for excessive force, then the other officer

could not be liable for failure to intervene. In addition, if neither officer is determined to have

used excessive force, then the failure to intervene claim necessarily fails against both officers. See

Zier v. Braconi, Civ. No. 09-5479, 2012 WL 254061, at *4 (D.N.J. Jan. 27, 2012) (“[B]ecause the

Court concludes that there was no excessive force ... , Plaintiff’s § 1983 claims... for supervisory

liability and failure to intervene also necessarily fail.”’).

20

B. COUNT THREE—SUPERVISORY LIABILITY

Plaintiff seeks to hold Kunz liable as a supervisor, in his official and individual capacities,

for his subordinates’ excessive use of force. The Court addresses each basis for supervisory

liability in turn.

I. OFFICIAL CAPACITY

Plaintiff's claims against Kunz in his official capacity as Chief of the Jackson Township

Police Department are dismissed as duplicative of Plaintiff's claims against Jackson Township.

“A § 1983 suit against a government official in his or her official capacity ‘represent[s] only

another way of pleading an action against an entity of which an officer is an agent.’” Hernandez

v. City of Paterson, Civ. No. 22-6763, 2023 WL 6876008, at *10 (D.N.J. Oct. 18, 2023) (quoting

Kentucky v. Graham, 473 U.S. 159, 165 (1985)). “Accordingly, where claims against an officer

in his official capacity are duplicative of claims against the municipality, those claims will be

properly dismissed as redundant.” Id.; see also Perciavalle v. City of Aliquippa, Civ. No. 20-474,

2021 WL 269792, at *5 (W.D. Pa. Jan. 27, 2021) (“[B]ecause the City of Aliquippa is named as a

defendant in this action, [the plaintiffs] official-capacity claims against Walker will be

dismissed.’’); Khalil v. City of Paterson, Civ. No. 18-3241, 2018 WL 6168191, at *3 (D.N.J. Nov.

26, 2018) (“Because of the ‘inherent redundancy’ of suing both the City as well as Chief Fraher in

his official capacity, Plaintiffs claims against Chief Fraher in his official capacity are dismissed.”).

Here, the claims against Kunz in his official capacity are functionally identical to the

municipal liability claims against Jackson Township in Count Four. Plaintiff offers no justification

51

for retaining both.® Thus, the official capacity claims against Defendant Kunz are dismissed with

prejudice as duplicative.

2. INDIVIDUAL CAPACITY

“(T]wo theories of supervisor liability” are available under section 1983 upon a proper

factual showing. Santiago v. Warminster Twp., 629 F.3d 121, 129 n.5 (3d Cir. 2010). First,

“supervisors can be liable if they ‘established and maintained a policy, practice or custom which

directly caused [the] constitutional harm.’” Jd. (quoting A.M. ex rel. J.M.K. v. Luzerne Cnty. Juv.

Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004)). Second, supervisors can be liable if “they

‘participated in violating plaintiff’s rights, directed others to violate them, or, as the person[s] in

charge, had knowledge of and acquiesced in [their] subordinates’ violation.” Id.

Here, Plaintiff seeks to hold Kunz individually liable under the first theory of supervisor

liability based on Kunz “permit[ing] an unconstitutional custom to exist of tacitly approving his

officers’ use of excessive force as evidenced by how he presides over a flawed Internal Affairs

process in violation of the New Jersey Attorney General Internal Affairs Guidelines.”’ (ECF No.

Plaintiff writes in his opposition brief that he “offered to dismiss the claims against

Defendant Kunz in his official capacity, but Defendants never responded to the offer.” (ECF No.

24 at 33.)

7 Plaintiff does not contend that Kunz is liable for participating in the excessive force,

directing Basso or Thomason to engage in excessive force, or having knowledge of or acquiescing

in their alleged excessive force. Even if Plaintiff did so contend, there does not appear to be any

support for this theory of supervisor liability in this case. See, e.g., See Stringer v. Cnty. of Bucks,

Civ. No. 22-1525, 2023 WL 2163871, at *5 (E.D. Pa. Feb. 22, 2023) (“[B]ecause [the plaintiff]

includes no facts showing Sergeant Mander authorized or participated in any of the incidents

alleged in the Amended Complaint, the Court will dismiss Count I—l[the plaintiffs] supervisory

liability claim.”); Washington v. Albiano, Civ. No. 19-12190, 2022 WL 17039293, at *4 (D.N.J.

Nov. 17, 2022) (dismissing supervisory liability claim where “Plaintiff d[id] not allege Defendants

.. . were personally involved in the alleged assault . . . or that they had contemporaneous

knowledge of the assault and approved or acquiesced to it”); cf. Stabile v. Conklin, Civ. No. 20-

02205, 2023 WL 5371721, at *4 (D.N.J. Aug. 22, 2023) (“testimony that Conklin had one of

Plaintiffs arms during the take down is sufficient for . . . supervisory liability”).

Iy~

24 at 32.) Defendants argue that Plaintiff has not presented “‘any fact to support a finding of

deliberately indifferent conduct by Chief Kunz.” (ECF No. 29 at 6.) They contend that Kunz “and

his Department have an Internal Affairs Policy which complies with and mirrors the Attorney

General Guidelines.” (Id.)

Once policymaking authority is established, “the standard for personal liability under

section 1983 is the same as that for municipal liability.” Carter v. City of Philadelphia, 181 F.3d

339, 356 (3d Cir. 1999); see also D.B. v. Tredyffrin/Easttown Sch. Dist., Civ. No. 17-2581, 2020

WL 6262181, at *16 (E.D. Pa. Oct. 23, 2020). The record in this case is clear that Kunz had

policymaking authority over Jackson Police Department’s internal affairs procedures. It is

undisputed that Kunz is responsible for training, supervising, and disciplining police officers;

appointing personnel to maintain the Department’s internal affairs process; and there is only one

full-time lieutenant in charge of internal affairs who reports directly to Kunz and meets with Kunz

as needed to discuss investigations. (MSMF & RMSMF ff 92-94, 97-100; PSMF & RPSMF □□□

54-55.) Kunz confirmed during his deposition that he has “the final say concerning all Internal

Affairs policies and investigations.” (ECF No. 24-17 at 4.)

Thus, for the reasons given below as to Jackson Township’s municipal liability for an

unconstitutional custom, genuine issues of fact exist as to whether Defendant Kunz can also be

held liable as a policymaker for the Jackson Township Police Department’s alleged custom of

tacitly approving the use of excessive force by creating an atmosphere in which the use of

excessive force was tolerated. See, e.g., Cordial v. Atl. City, Civ. No. 11-01457, 2014 WL

1095584, at *10 (D.N.J. Mar. 19, 2014). Accordingly, the motion for summary judgment on Count

Three for supervisory liability against Defendant Kunz in his individual capacity is denied.

72

C. COUNT FOUR—UNLAWFUL POLICY, CUSTOM, PRACTICE, OR INADEQUATE

TRAINING

Plaintiff claims that Jackson Township is liable for (i) developing and maintaining customs

exhibiting deliberate indifference to the constitutional rights of suspects exposed to excessive

force, and (ii) failing to adequately train its police officers with respect to the use of force.®

To find a municipality liable under § 1983, a plaintiff must prove the existence of a policy

or custom that resulted in a constitutional violation. Monell v. Dep’t of Soc. Servs. of City of New

York, 436 U.S. 658, 694-95 (1978). Liability “must be founded upon evidence that the government

unit itself supported a violation of constitutional rights.” Bielevicz v. Dubinon, 915 F.2d 845, 850

(3d Cir. 1990). A plaintiff can show the existence of a policy when a decisionmaker with final

authority “issues an official proclamation, policy, or edict.” Jd. (quoting Andrews v. City of

Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990)). Custom may be established by showing that

a “course of conduct, although not specifically endorsed or authorized by law, is so well-settled

and permanent as virtually to constitute law.” Jd. A plaintiff must also “demonstrate that, through

its deliberate conduct, the municipality was the ‘moving force’ behind the injury alleged.” Bd. of

Cnty. Comm’rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397, 404 (1997) (emphasis in original).

To make out a claim under a failure to train or supervise theory, the plaintiff must show

that “the failure amounts to ‘deliberate indifference’ to the rights of persons with whom those

employees will come into contact.” Thomas v. Cumberland Cnty., 749 F.3d 217, 222 (3d Cir.

2014) (citation omitted). “Additionally, ‘the identified deficiency in a... training program must

be closely related to the ultimate injury;’ or in other words, ‘the deficiency in training [must have]

Because the Court granted judgment in favor of Kunz on all official-capacity claims, Count

Four is now only against Jackson Township.

TA

actually caused’ the constitutional violation.” Jd. (quoting City of Canton, Ohio v. Harris, 489

U.S. 378, 391 (1989)).

The Court will begin by addressing Plaintiffs failure-to-train claim followed by the

unconstitutional custom claim.

I. FAILURE TO TRAIN

To survive summary judgment on a failure-to-train claim, a plaintiff “must identify a

failure to provide specific training that has a causal nexus with their injuries and must demonstrate

that the absence of that specific training can reasonably be said to reflect a deliberate indifference

to whether the alleged constitutional deprivations occurred.” Reitz v. Cnty. of Bucks, 125 F.3d

139, 145 (3d Cir. 1997). “Establishing municipal liability on a failure to train claim under § 1983

is difficult and applies in narrow situations.” Cooper v. City of Paterson, Civ. No. 23-03566, 2024

WL 1298917, at *5 (D.N.J. Mar. 27, 2024) (citation omitted).

Plaintiff argues that “there is sufficient evidence to create a genuine issue of material fact

with respect to the adequacy of .. . Jackson Township’s use of force training,” but he points to

nothing in the record that identifies any specific deficiency with the training that either Basso or

Thomason received. (ECF No. 24 at 29-30.) Nor is there evidence suggesting that additional

training would have made a difference in this case. To the contrary, the undisputed record

establishes that both officers graduated from the Ocean County Police Academy where they were

trained on the use of force, including about the six levels of force, and they have received biannual

training since joining the Jackson Township Police Department. (SMF & RISMF 3-6, 36-39.)

Thomason was also trained to be a “use of force training officer. (ISMF & RISMF J 7.)

Without an evidentiary basis, Plaintifi’s failure-to-train claim must be dismissed. It cannot

simply be inferred that there is a “causal nexus” between the alleged deprivation of Plaintiff's

rights and Jackson Township’s training regime when there is “no proof. . . that implementing

95

different training practices ‘would have made any difference.’” Mills v. City of Philadelphia, Civ.

No. 14-593, 2024 WL 1253688, at *11 (E.D. Pa. Mar. 22, 2024) (citation omitted); see also

Williams v. Ponik, 822 F. App’x 108, 113 (3d Cir. 2020) (affirming grant of summary judgment

on failure-to-train claim where the officers “attended the police academy”; “were trained on the

use of force under the New Jersey Attorney General guidelines”; were “trained in the use of pepper

spray at the academy”; and attended “mandatory bi-annual training that include[d] instruction on

use of force and pepper spray”); Altidor v. Toms River Police Dep’t, Civ. No. 18-14834, 2022 WL

17155698, at *14 (D.N.J. Nov. 22, 2022) (“[A]Il police officers on the scene were trained in use

of force.... Thus, [the plaintiff] cannot argue that Toms River was ‘deliberat[ely] indifferen[t]’

to ensuring the police officers were trained in use of force procedures.”); Meza v. Jackson Twp.,

Civ. No. 18-15206, 2021 WL 2549319, at *13 (D.N.J. June 22, 2021) (granting summary judgment

on failure-to-train claim where the plaintiff had “not provided proof indicating a specific training

failure exist[ed] which [could] be causally connected to Defendants’ actions”).

Accordingly, judgment is entered in Defendant Jackson Township’s favor on the failure-

to-train claim in Count Four.

2. UNCONSTITUTIONAL CUSTOM

For a section 1983 claim based on a municipal custom to survive past summary judgment,

a plaintiff must “show ‘a municipal custom coupled with causation—e., that policymakers were

aware of similar unlawful conduct in the past, but failed to take precautions against future

violations, and that this failure, at least in part, led to [Plaintiff's] injury.’” Adams v. City of All.

City, 294 F. Supp. 3d 283, 303 (D.N.J. 2018) (quoting Bielevicz v. Dubinon, 915 F.2d 845, 851

(3d Cir. 1990)). The custom must demonstrate “‘deliberate indifference’ toward the class of

persons who might suffer a constitutional injury as a result of the conduct in question.” Benhaim

v. Borough of Highland Park, 79 F. Supp. 3d 513, 521 (D.N.J. 2015) (quoting Simmons v. City of

96

Philadelphia, 947 F.2d 1042, 1070 (3d Cir. 1991)). “‘[D]eliberate indifference’ is a stringent

standard of fault, requiring proof that a municipal actor disregarded a known or obvious

consequence of his action.” Connick v. Thompson, 563 U.S. 51, 61 (2011) (citation omitted).

However, “[a]s long as the causal link is not too tenuous, the question whether the municipal policy

or custom proximately caused the constitutional infringement should be left to the jury.” Ewing

v. Cumberland Cnty., 152 F. Supp. 3d 269, 302 (D.N.J. 2015) (citation omitted).

Plaintiff points out that on at least two prior occasions, courts in this District have allowed

municipal liability claims against Jackson Township to proceed past summary judgment in the

excessive-force context. In 2013, the district court allowed a Monell claim to be maintained based

on the allegation that “Jackson’s Internal Affairs procedures were part of a custom which showed

deliberate indifference to [the] rights of those who might interact with its officers.” Day v. Jackson

Twp., Civ. No. 10-4011, 2013 WL 394151, at *11 (D.N.J. Jan. 30, 2013). The court characterized

Jackson’s internal affairs investigations as “lackadaisical,” and it noted that the undisputed facts

“demonstrate[d]| that the Jackson Police Department, in some instances, ha[d] failed to follow the

New Jersey Attorney General Guidelines related to internal affairs investigations.” Jd. at 10-11.

For example, it was alleged that “Jackson fail[ed] to interview all of the parties to excessive force

complaints, as required by the Guidelines.” Jd. It was also alleged that Jackson did “not adequately

track complaints lodged against individual officers and use that history as either a factor in

subsequent excessive force investigation or as part of an ‘Early Warning System’ that might alert

the Department to the presence of officers with a propensity to use excessive force.” Id.

Then, in 2021, the district court again allowed a Monell claim against Jackson based on the

allegation that “Jackson Township had a custom of failing to properly investigate internal affairs

complaints preceding this incident.” Meza, 2021 WL 2549319, at *13. The court highlighted the

following evidence as supporting the plaintiff's claim: Kunz’s testimony that “internal affairs

979

investigations are ‘not routinely’ started when . . . [Jackson] receives notices of claims or potential

claims”; several lawsuits had been filed against Jackson “all of which involved allegations of

excessive force” and “no policy changes were made in response”; and “[i]mportantly, .. . Kunz

testified that despite these prior excessive force lawsuits, the Jackson Township Police Department

does not track the outcomes of .. . lawsuits”; “when a lawsuit is initiated against the Department,

it leaves internal affairs complaint investigations incomplete while litigation is pending”; and no

internal affairs investigation was completed in Meza. Id. at 12. It found this evidence “sufficient”

for “a reasonable jury . . . [to] find [that] Jackson Township was deliberately indifferent in

investigating claims of excessive force against its police department.” Jd. at 13 (collecting cases).

Here, too, there is sufficient evidence regarding the rigor, or lack thereof, of the Jackson

Township Police Department’s internal affairs procedures to permit Plaintiff's Monell claim to

proceed to trial. A jury could reasonably conclude that the Department’s manner of investigating

and tracking claims of excessive force shows a deliberate indifference of the constitutional rights

of those who might interact with Jackson Township’s officers and that there is a causal connection

between this custom and the injuries suffered by Plaintiff.

Indeed, despite the allegation of excessive force in this case, both officers involved testified

that they were never interviewed by Jackson Township’s internal affairs. (PSMF & RPSMEF

14, 34.) And itis undisputed that no internal affairs investigation was opened or conducted because

Kunz decided based on his own review of the available evidence that “a reasonable officer could

believe that [Plaintiff] was attempting to disarm [the officer] and thus . . . justified in using force.”

(MSMF & RMSMF { 107; PSMF & RPSMF { 64.) The failure to investigate appears to conflict

with Jackson’s own internal affairs policy that states that “[i]t is the policy of the Jackson Township

Police Department to accept and investigate all complaints of alleged officer misconduct or

wrongdoing from any citizen... or any other source.” (ECF No. 24-18 at 1.)

IQ

According to Kunz, tort-claims notices and civil complaints against officers for excessive

force do not necessarily prompt internal affairs investigations in Jackson Township. (ECF No. 24-

17 at 6.) He testified that Jackson Township’s Police Department does not have an “institutional

process” for reviewing such claims internally. (/d.) Kunz “look[s] at them” and recommends an

investigation only if he sees “anything that appears worth investigating.” Cd.) The usual process

is for the Department to forward the notices and complaints to its “attorneys for them to handle.”

Ud.) And once in the hands of the Department’s attorneys, Kunz testified that the attorneys will

not always tell the Department the outcome of the complaints. (/d. at7.) When asked, Kunz could

not recall the outcomes of several excessive-force complaints filed against him and the Jackson

Township Police Department over several years, and he further testified that the Department does

not track the outcome of the lawsuits against its officers, even though the Attorney General’s

Internal Affairs Policy & Procedures direct that, “at a minimum,” an agency must track “[c]ivil

actions filed against [an] officer.” (id. at 7-9; ECF No. 24-19 at 17.) Finally, Kunz testified that

no changes were made to Jackson’s internal affairs procedures in response to the district court’s

2021 decision in Meza that identified various deficiencies with the procedures. (ECF No. 24-17

at 2.) Kunz could not even recall reviewing the district court’s decision in Meza. (d.)

Based on this evidence, a reasonable jury could conclude that the series of excessive-force

complaints against Kunz and Jackson Township over several years, the failure to track the outcome

of civil actions, and the lack of an internal affairs investigation in the present case support the

finding that Jackson Township has had a custom of failing to properly investigate excessive-force

complaints. See Adams, 294 F. Supp. 3d at 302 (“Plaintiff points out several deficiencies in the

investigative process of Internal Affairs .... All of this together is enough for a reasonable jury

to conclude that the ACPD maintained a deficient internal affairs department and failed to

meaningfully investigate complaints made by civilians regarding officers’ use of excessive force.”

990

(collecting cases)). And a reasonably jury could also conclude that Jackson Township’s custom

proximately caused Plaintiff's injuries by fostering an environment that led the officers in this case

to believe it unlikely that they would face repercussions for the unconstitutional use of force.

Accordingly, summary judgment is denied on the claim for municipal liability in Count

Four against Defendant Jackson Township arising from its Police Department’s alleged failure to

adequately investigate and monitor complaints of excessive force against its officers.

D. COUNT FIVE—NEW JERSEY CIVIL RIGHTS ACT

Defendants do not argue that judgment should be entered in their favor on Count Five under

the New Jersey Civil Rights Act. (See generally ECF Nos. 19-2 & 20-1.) Accordingly, judgment

is not entered in any party’s favor on Count Five.

E. COUNTS SIX AND SEVEN—ASSAULT AND BATTERY & NEGLIGENCE

Defendants Jackson Township and Kunz argue that they should not be held vicariously

liable for the intentional torts of their employees, which includes any finding that Basso and

Thomason committed the torts of assault and battery. (ECF No. 20-1 at 23-25.) Basso and

Thomason are silent in their briefing as to Count Six (for assault and battery) and Count Seven

(for negligence). (See generally ECF No. 19-2.) In opposition, Plaintiff writes that these state-

law claims “are against Defendants Basso and Thomason, not Defendant Jackson Township.”

(ECF No. 24 at 5.) Plaintiffs position tracks the Complaint, which asserts the claims against Basso

and Thomason. (ECF No. 1 at 11-12.) Thus, Counts Six and Seven shall not be read to be asserted

against Jackson Township and Kunz. Because neither Basso nor Thomason argue that they are

entitled to summary judgment on these claims, judgment is not entered in any party’s favor.

F. COUNT EIGHT—INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

All Defendants argue that Plaintiffs intentional infliction of emotional distress (“ILED”’)

claim fails because Plaintiff did not “suppl[y] any fact in discovery to... establish a nexus between

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any alleged emotional distress and his . . . arrest.” (ECF No. 20-1 at 37-38; see also ECF No. 19-

2 at 21-22.) For example, Plaintiff did not provide “a diagnosis or an expert opinion to demonstrate

that he has suffered severe and emotional distress within the meaning” set forth in case law. (ECF

No. 20-1 at 38; see also ECF No. 19-2 at 22.) In opposition, Plaintiff writes that he is not

responding to Defendants’ arguments and is no longer “pursuing an Intentional Infliction of

Emotional Distress claim.” (ECF No. 24 at 5.) Because Plaintiff has abandoned his IIED claim,

judgment is entered in Defendants’ favor on Count Eight. See, e.g., Wurtzbacher v. Winslow Twp.,

Civ. No. 17-05026, 2019 WL 1238825, at *6 (D.N.J. Mar. 18, 2019) (“Plaintiff appears to abandon

any excessive force claim against Valentino. ... Accordingly, the Court grants summary judgment

to Valentino on the excessive force claims against him.”’).

G. ATTORNEY’S FEES

Defendants ask the Court to grant them attorney’s fees pursuant to 42 U.S.C. § 1988 on the

basis that the claim for supervisor liability against Kunz is “frivolous” as well as that Plaintiff was

advised that the official-capacity claim was redundant. (ECF No. 20-1 at 38-40.) Ultimately, the

application is premature and denied at this time without prejudice. The Court has not granted

summary judgment on the supervisor liability claim, and Plaintiff has submitted correspondence

indicating that he informed Defendants that he was willing to consent to the dismissal of the

official-capacity claims against Kunz subject to certain conditions. (ECF No. 24-20.) Plaintiff

writes that Defendants did not reply to his correspondence, and Defendants do not dispute this

representation. (ECF No. 24 at 33.) In any event, any application for attorney’s fees can be

renewed later. See Fed. R. Civ. P. 54(d)(2)(B); see also White v. New Hampshire Dep’t of Emp.

Sec., 455 U.S. 445, 454 (1982).

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IV. CONCLUSION

For the reasons set forth above, and other good cause shown, Defendants’ Motions for

Summary Judgment (ECF Nos. 19 & 20) are GRANTED in part and DENIED in part. An

appropriate Order follows.

Dated: May 30, 2024 (nates

GEORGETTE CASTNER

JNITED STATES DISTRICT JUDGE

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