Emil Jutrowski v. Township of Riverdale

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

No. 17-2594

_______________

EMIL JUTROWSKI,

Appellant

v.

TOWNSHIP OF RIVERDALE; STATE OF NEW JERSEY,

by and through the New Jersey State Police; JEFFREY

HEIMBACH, New Jersey State Police Trooper, individually

and in his representative capacity as a State Police Officer;

JAMES FRANCHINO, individually and in his representative

capacity as a new Jersey State Police Officer; TRAVIS

ROEMMELE, individually and in his representative capacity

as a Riverdale Police Officer; CHRISTOPHER BIRO,

individually and in his representative capacity as a Riverdale

Police Officer; JOHN DOES (1-20); COL. RICK FUENTES,

in his representative capacity as a commanding and Chief

Executive Officer of the New Jersey State Police; CHIEF

THOMAS SOULES, in his representative capacity as Chief

of the Riverdale Police Department,

_______________

On Appeal from the United States District Court

for the District of New Jersey

(D.N.J. Civil Action No. 2-13-cv-07351)

District Judge: Honorable John M. Vazquez

_______________

Argued: March 12, 2018

Before: JORDAN, KRAUSE, and

GREENBERG, Circuit Judges

(Opinion Filed: September 12, 2018)

Robert J. Degroot [Argued]

Ole Nekritin

56 Park Place

Newark, NJ 07102

Counsel for Appellant Emil Jutrowski

Anthony P. Seijas [Argued]

Cleary Giacobbe Alfieri & Jacobs

169 Ramapo Valley Road

Upper Level 105

Oakland, NJ 07436

Counsel for Appellees Township of Riverdale,

Christopher Biro, Travis Roemmele, and Chief

Thomas Soules

2

Matthew J. Lynch [Argued]

Office of Attorney General of New Jersey

Division of Law

25 Market Street

Richard J. Hughes Justice Complex

Trenton, NJ 08625

Robert P. Preuss

Office of Attorney General of New Jersey

Division of Law Tort Litigation and Judiciary

25 Market Street

P.O. Box 116

Trenton, NJ 08625

Christopher S. Porrino

Office of Attorney General of New Jersey

Melissa H. Raksa, Assistant Attorney General

Kai W. Marshall-Otto

Richard J. Hughes Justice Complex

25 Market Street

P.O. Box 112

Trenton, NJ 08625

Counsel for Appellees State of New Jersey,

Jeffrey Heimbach, James Franchino, and

Col. Rick Fuentes

3

_______________

OPINION OF THE COURT

_______________

KRAUSE, Circuit Judge.

This case arises from an undisputed constitutional

violation: an act of excessive force committed during the arrest

of Appellant Emil Jutrowski in which he was kicked in the

face, breaking his eye socket. Appellees—consisting of two

Riverdale, New Jersey Police Officers and two New Jersey

State Troopers involved in the arrest (the “Individual

Defendants”), and their respective employers, the Township of

Riverdale and the State of New Jersey (collectively, the

“Defendants”)—do not dispute that one of the officers kicked

Jutrowski. But each of the Individual Defendants asserts he

neither inflicted the blow himself nor saw anyone else do so,

and Jutrowski, whose face was pinned to the pavement when

the excessive force occurred, is unable to identify his assailant.

He therefore brought excessive force claims against all

Defendants and conspiracy claims against the four Individual

4

Defendants under 42 U.S.C. § 1983. The District Court,

however, relying on our precedent that a defendant in a civil

rights action must have “personal involvement” in the alleged

wrongs, Rode v. Dellarciprete, 845 F.2d 1195, 1207–08 (3d

Cir. 1988), determined that Jutrowski’s inability to identify his

attacker was fatal to his claims and granted summary judgment

in Defendants’ favor.

We are now called upon to outline the contours of this

“personal involvement” requirement in § 1983 cases and to

consider its application when a plaintiff who indisputably

suffered a constitutional injury at the hands of one officer

comes up against to the proverbial “blue wall of silence.”

Despite the unfortunate situation created for plaintiffs like

Jutrowski who are unable to identify their attackers through no

fault of their own, we hold that a plaintiff alleging that one or

more officers engaged in unconstitutional conduct must

establish the “personal involvement” of each named defendant

to survive summary judgment and take that defendant to trial.

Nonetheless, where a plaintiff adduces sufficient evidence of

an after-the-fact conspiracy to cover up misconduct, even of an

unidentified officer, he may be able to state a claim under

§ 1983 for the violation of a different constitutional right: the

due process right of access to the courts. Such is the case here.

Accordingly, we will affirm the District Court as to Jutrowski’s

excessive force claim but will reverse and remand as to his

conspiracy claim.

5

I. Background

A. Factual Background1

On June 23, 2010, Emil Jutrowski, after drinking

several vodka sodas at a bar in East Hanover, NJ, crashed his

sport utility vehicle along the shoulder of the highway. Other

than a small cut above his right eye, Jutrowski suffered no

injuries from the accident. Because his car was pinned up

against the left guardrail, however, he could not exit from the

driver’s side door and was still attempting to “pull away” when

police arrived. App. 285. The first two officers to arrive on the

scene were Officer Travis Roemmele and Officer Christopher

Biro of the Riverdale, New Jersey Police Department (the

“Riverdale Defendants”). Moments later, three State Troopers

arrived, including Appellees Jeffrey Heimbach and James

Franchino (the “State Trooper Defendants”).

The officers quickly deduced that Jutrowski was heavily

intoxicated. Heimbach, who first approached Jutrowski,

immediately detected “an overwhelming odor of an alcoholic

beverage emanating from the interior of [the] vehicle,” and

asked Jutrowski to produce his license and registration.

App. 285. Instead, Jutrowski attempted to light a cigarette and

1

The factual summary below draws from record

evidence and because the District Court granted summary

judgment in the defendants’ favor, we view the facts in the light

most favorable to Jutrowski. See, e.g., Pellegrino v. U.S.

Transp. Sec. Admin, No. 15-3047, 2018 WL 3371699, at *2 n.2

(3d Cir. 2018).

6

proceeded to rub liquid hand sanitizer on his face.2 As the smell

of alcohol became “stronger,” Heimbach determined that “it

was emanating directly from [Jutrowski’s] breath.” App. 285.

He also observed that Jutrowski’s eyes were bloodshot and his

pupils extremely dilated, and that, although Jutrowski was still

seated in his vehicle, he was disoriented and moving slowly.

Id.3

It was also apparent that Jutrowski needed medical

attention. Heimbach noticed the cut above his right eye, and

Jutrowski told Heimbach that he was injured, that he had a

heart condition, and that he wanted to go to the hospital. Soon

after, emergency medical personnel arrived and administered

first aid while Jutrowski remained seated in his SUV. At the

point Jutrowski verbally refused further medical treatment but

also refused to sign a written waiver of further treatment,

Heimbach asked Jutrowski to exit his vehicle. Jutrowski

initially refused but eventually, because the driver’s side door

was inoperable, he climbed over the seat and exited the

passenger door without assistance. The officers acquiesced to

Jutrowski’s request not to be handcuffed on account of his

heart condition, and Troopers Heimbach and Franchino began

escorting him towards the ambulance on the other side of the

highway. Jutrowski, however, was unsteady on his feet and

2

According to the officers, Jutrowski took “liquid hand

sanitizer and rubbed it all over his face and head and attempted

to swallow s[o]me.” App. 285. Jutrowski testified that he was

merely trying to apply hand sanitizer to the gash over his eye.

3

Under the circumstances, Heimbach normally would

have performed a field sobriety test, but he declined to do so

on account of Jutrowski’s injuries.

7

wobbled, so Trooper Franchino, concerned about “the roadway

conditions and the proximity to traffic,” reached out for

Jutrowski’s right wrist to steady him.4 App. 281. In reaction,

Jutrowski “pulled his hand away in an upward fashion,

subsequently striking [Franchino] in the forehead with his

forearm,” App. 281, and Franchino, in turn, promptly executed

a “front leg sweep” maneuver that took Jutrowski to the

ground, App. 281, 424. Jutrowski fell “straight ahead,”

App. 425, with “some force,” App. 426, and “just kind of face-

planted, just like a tower falling over,” App. 336.

Lying on the ground on his stomach, Jutrowski’s face

was turned to his right, with his left cheek on the pavement.

With Troopers Franchino and Heimbach on Jutrowski’s right

side and a third trooper on his left, the officers attempted to

handcuff him—a difficult task because Jutrowski’s hands were

tucked underneath him and he was a “very strong, very big

man,” allegedly weighing over 300 pounds at the time.

App. 375, 427, 462. As Franchino used his baton to pry

Jutrowski’s arms from underneath him, Riverdale Officers

Biro and Roemmele ran over to assist. Biro knelt down at

Jutrowski’s feet to hold his legs, and Roemmele “assisted by

holding [Jutrowski’s] legs while the officers were finally able

to remove [his] hands from under his body.” App. 288.

Heimbach put his knee in the small of Jutrowski’s back to

subdue him and with Jutrowski still lying face down,

4

Jutrowski testified he was unsteady because he was

struck in the crotch by the stick shift when he climbed out of

the car and was therefore in severe pain, but Trooper Franchino

testified that Jutrowski was “stumbling and kind of staggering

. . . walking closer to the lane of traffic.” App. 435.

8

Heimbach began to search him. Franchino was positioned near

Jutrowski’s shoulders, and was thus “closest to his head.” App.

438.

At some point in the midst of this scuffle, one of the

officers kicked Jutrowski hard on the right side of his face,5

hard enough to inflict a “blow out fracture,” that is, a broken

nose and broken eye socket, requiring surgery. App. 262–63.6

After the kick, the officers turned Jutrowski over on his

back and Trooper Heimbach continued searching him. As

Heimbach was patting him down, however, Jutrowski

“kick[ed] his left leg up striking . . . Trooper [Heimbach] in the

face with his left foot.” App. 288. At that point, Jutrowski was

handcuffed and taken to the hospital. He ultimately pleaded

guilty to driving under the influence.

5

On appeal, the State Trooper Defendants concede that

Jutrowski was kicked, see State Trooper Br. 5. While the

Riverdale Defendants do not make this concession as

explicitly, they “d[id] not contest that Plaintiff was kicked”

before the District Court, App. 24, nor do they on appeal, see

Riverdale Br. 12.

6

A medical expert report indicates that it is unlikely

Jutrowski’s injury was the “result merely from a fall face first,”

but instead that it “would take either a kick or punch of

significant force to create the type” of injuries he suffered.

App. 262–62. To this day, Jutrowski’s injury causes him pain,

and he suffers from “frequent headaches, vertigo, dizziness,

vision problems, sinusitis, difficult concentrating, [and]

discharge from his nose . . . .” Appellant’s Br. 7.

9

B. Procedural History

Because he was unable to identify which of the officers

in his immediate vicinity was the one that kicked him,

Jutrowski filed suit against Officers Biro and Roemmele and

Troopers Franchino and Heimbach, along with the Township

of Riverdale and State of New Jersey (collectively, the

“Defendants”).7 His complaint, as relevant here, included in

Count I a claim for the use of excessive force, in violation of

the Fourth Amendment and 42 U.S.C. § 1983, and, in Counts

V and VI, claims of conspiracy, in violation of § 1983 and New

Jersey law, respectively, to violate federal and state civil rights

by using excessive force, by filing false and misleading police

reports, and by giving misleading grand jury testimony.8

7

The operative complaint here was originally filed in

state court and was removed by Defendants to the District

Court. Emil Jutrowski v. Township of Riverdale, et al., No. 13-

7351, 2017 WL 1395484, at *3 (D.N.J. Apr. 17, 2017).

8

All told, Jutrowski’s complaint included seven counts:

(I) a § 1983 claim for excessive force (against the Individual

Defendants); (II) a § 1983 claim for failure to properly train,

supervise and control officers (against the police departments);

(III) a state law tort claim for excessive force, assault and

battery (against all Defendants); (IV) a state law tort claim for

failure to properly train, supervise and control officers (against

the police departments); (V) an alleged conspiracy to violate

federal civil rights (against the Individual Defendants); (VI) an

alleged conspiracy to violate state civil rights (against the

Individual Defendants); and (VII) a claim for assault and

battery (against the Individual Defendants). Counts II, III, IV,

10

After Defendants unsuccessfully moved for dismissal,

the case proceeded to discovery, where it was established that

Biro, Roemmele, Franchino, and Heimbach were each in

Jutrowski’s immediate presence when he was kicked. But

Jutrowski was not able in the course of the discovery to identify

which of these law enforcement officers inflicted the blow, and

none of the officers admitted to being either the perpetrator or

a witness. Even Heimbach—who testified that he had his knee

in Jutrowski’s back between his shoulder blades, that his “sole

focus” for “the entire time” was on Jutrowski’s head, and that

“if anything . . . struck [Jutrowski] in the face, he would

know”—allegedly saw nothing. App. 344. Likewise, Trooper

Franchino testified that he was the officer “closest to

[Jutrowski’s] head” and was “more than six inches [but] less

than three feet” away when Jutrowski was taken to the ground,

but he too saw nothing. App. 438.

Nor did any of the dashboard cameras (“dashcams”) on

the officers’ vehicles capture the incident. Officer Biro’s car

was parked closest to Jutrowski’s, and his dashcam presumably

would have had the best view of Jutrowski being escorted from

his car across the highway—except that it allegedly did not

record. According to Biro’s testimony, he did not manually

switch on the camera because he believed he was pulling over

to investigate a traffic accident, not to effectuate a vehicle stop.

Emil Jutrowski v. Township of Riverdale, et al., No. 13-7351,

2017 WL 1395484, at *1 (D.N.J. Apr. 17, 2017). Biro also

and VII are not at issue as Jutrowski does not challenge the

District Court’s entry of summary judgment on those counts on

appeal. Jutrowski, 2017 WL 1395474, at *6–7.

11

indicated that the camera should record automatically when the

emergency lights are activated, as they were here, but his

testimony was ambiguous as to whether that was true at the

time of the incident or was a more recent development, and

Jutrowski’s counsel did not seek clarification. For their part,

the State Troopers’ dashcams were activated but “did not

capture any of the critical alleged events” due to their poor

vantage points. Id.

In the absence of evidence identifying the perpetrator,

the District Court granted summary judgment on all counts for

all Defendants. Id. As for the use of excessive force, although

the Defendants “d[id] not contest that Plaintiff was kicked,” the

District Court reasoned that because Jutrowski could not

“identify which Defendant kicked him,” he was essentially

asking “the Court to guess which individual Officer Defendant

committed the alleged wrong.” Id. at *4. In its thorough and

thoughtful opinions granting summary judgment and denying

reconsideration, the District Court relied on this Court’s

precedents to conclude that absent an “evidentiary basis on

which to hold” any individual defendant liable, Defendants

were all entitled to judgment as a matter of law. Id. The District

Court also rejected Jutrowski’s request to fill the evidentiary

void with an adverse spoliation inference from the failure to

produce Officer Biro’s dashcam video because Jutrowski had

not made “a request for inspection pursuant to Federal Rule of

Civil Procedure 34(a)” or taken other steps to obtain evidence

of the video, and thus he failed “to provide sufficient evidence

demonstrating that the video actually existed.” Id. at *5.

As for the federal and state civil conspiracy counts, the

District Court found “no facts suggesting that [Individual]

Defendants spoke to each other concerning the alleged kick

12

before the incident occurred” and that it could not infer any

“after-the-fact” conspiracy because Jutrowski had not

identified specific facts to support the contention “that the

officers from Riverdale and the State Police colluded before

writing their reports or testifying before the grand jury.” Id. at

*8. It therefore granted summary judgment on these counts,

both to the extent they asserted a conspiracy to use excessive

force and to the extent they asserted a conspiracy to violate

Jutrowski’s rights afterwards.

Jutrowski now appeals, arguing that the District Court

erred in granting summary judgment on his claims of excessive

force and civil conspiracy.

II. Jurisdiction and Standard of Review9

We review the District Court’s grant of summary

judgment de novo. Faush v. Tuesday Morning, Inc., 808 F.3d

208, 215 (3d Cir. 2015). To warrant summary judgment, the

moving party must establish “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), and all facts should

be viewed “in the light most favorable to the non-moving

party,” with “all reasonable inferences [drawn] in that party’s

favor,” Scheidemantle v. Slippery Rock Univ. State Sys. of

Higher Educ., 470 F.3d 535, 538 (3d Cir. 2006). For its part,

“[t]he non-moving party must oppose the motion and, in doing

so, may not rest upon the mere allegations or denials of his

pleadings” but, instead, “must set forth specific facts showing

that there is a genuine issue for trial. Bare assertions,

9

The District Court had jurisdiction under 28 U.S.C.

§ 1331; we have jurisdiction under 28 U.S.C. § 1291.

13

conclusory allegations, or suspicions will not suffice.” D.E. v.

Central Dauphin School Dist., 765 F.3d 260, 268–69 (3d Cir.

2014) (citations omitted).

A factual dispute is genuine “if the evidence is such that

a reasonable jury could return a verdict for the nonmoving

party,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986), but “[c]onversely, where a non-moving party fails

sufficiently to establish the existence of an essential element of

its case on which it bears the burden of proof at trial, there is

not a genuine dispute with respect to a material fact and thus

the moving party is entitled to judgment as a matter of law.”

Goldenstein v. Repossessors Inc., 815 F.3d 142, 146 (citations

omitted).

We review the denial of an adverse spoliation inference

for abuse of discretion. In re Hechinger Inv. Co. of Del., 489

F. 3d 568, 574 (3d Cir. 2007). A district court abuses its

discretion if its decision not to draw the inference rests upon “a

clearly erroneous finding of fact, an errant conclusion of law

or an improper application of law to fact.” Meditz v. City of

Newark, 658 F.3d 364, 367 n.1 (3d Cir. 2011) (citations

omitted).

III. Discussion

On appeal, Jutrowski argues that the District Court erred

by granting summary judgment on his excessive force claim

against all Defendants because he set forth specific facts

showing a genuine issue for trial in two ways: by establishing

that excessive force was used and that the Individual

Defendants were all in close proximity, and by adducing

sufficient evidence (the absence of a dashcam video from

14

Officer Biro) to warrant an adverse inference against the

Defendants. He also claims error in the grant of summary

judgment on his claims against the Individual Defendants for

conspiracy to violate his federal and state civil rights. We

address these arguments in turn.

A. The Excessive Force Claim

As Jutrowski would have it, so long as a plaintiff can

show that some officer used excessive force, he may haul

before a jury all officers who were “in the immediate vicinity

of where excessive force occurred” without any proof of their

personal involvement. Appellant’s Br. 13. That is simply not

the law. Instead, the tenet that a defendant’s § 1983 liability

must be predicated on his direct and personal involvement in

the alleged violation has deep historical roots in tort law

principles, is manifest in our excessive force jurisprudence,

and is reinforced by persuasive authority from our Sister

Circuits.

We begin with principles of tort liability, which

necessarily inform our interpretation of § 1983 as a statute

“sounding in tort.” Howell v. Cataldi, 464 F.2d 272, 278 n.10

(3d Cir. 1972); see Carey v. Piphus, 435 U.S. 247, 253 (1978)

(describing § 1983 as a “species of tort liability”). As the

Supreme Court has long recognized, a fundamental principle is

that a tortfeasor’s “liability . . . will only result from his own

neglect . . . .” Dunlop v. Munroe, 11 U.S. 242, 269 (1812). That

is because “[o]ur system of private liability for the

consequences of a man’s own acts . . . started from the notion

of actual intent and actual personal culpability.” Oliver

Wendell Holmes, Jr., The Common Law 4 (Boston, Little,

Brown, & Co. 1881). And, as a result, “[a]n essential element

15

of [a] plaintiff’s cause of action for negligence, or for that

matter for any other tort, is that there be some reasonable

connection between the act or omission of the defendant and

the damage which the plaintiff has suffered.” W. Page Keeton

et al., Prosser and Keeton on Torts 263 (5th ed., 1984); see

also Restatement (Second) of Torts § 430 (1965).

In the § 1983 context, these principles have led the

Supreme Court to require a “showing of direct responsibility”

by the named defendant and to eschew any “theory of liability”

in which defendants played “no affirmative part in depriving

any[one] . . . of any constitutional rights,” Rizzo v. Goode, 423

U.S. 362, 376–77 (1976)—including theories of vicarious or

respondeat superior liability, see Ashcroft v. Iqbal, 556 U.S.

662, 676 (2009); see also Merklin v. United States, 788 F.2d

172, 175 (3d Cir. 1986). Instead, “[b]ecause vicarious liability

is inapplicable to . . . § 1983 suits, a plaintiff must plead that

each Government-official defendant, through the official’s

own individual actions, has violated the Constitution.” Iqbal,

556 U.S. at 676 (emphasis added). “Each Government official,

his or her title notwithstanding, is only liable for his or her own

misconduct.” Id. at 677 (emphasis added). And, a fortiori, if

entities and supervisors may not be vicariously liable under

§ 1983 for the constitutional violation of a given individual,

neither may that individual’s cohorts who happen to be in the

immediate vicinity. See Anela v. City of Wildwood, 790 F.2d

1063, 1067–68 (3d Cir. 1986) (observing that defendants may

“not be held liable under section 1983 merely because they

were members of a group of which some other members were

guilty of abuses” (citing Rizzo, 423 U.S. at 370–71)).

We have imported these precepts into the excessive

force context in a trilogy of cases that squarely foreclose

16

Jutrowski’s argument today. In Howell, 464 F.2d 272, where

the plaintiff alleged that a single police officer exerted

excessive force in arresting him and sued two of the six officers

at the scene, alleging that one was the perpetrator, we affirmed

a directed verdict for the defendants because “[i]nsofar as the

two defendants are concerned, one of them is free of liability.”

Id. at 283. “At best,” we explained, “there was proof of

wrongful conduct of one, identified only as one of two possible

actors, without an explicit identification as to which of the

two,” and thus, “without more,” there was no way to know

which of them should be held to answer for the violation. Id. at

283.

In Sharrar v. Felsing, 128 F.3d 810 (3d Cir. 1997),

where the plaintiff alleged that an officer who handcuffed him

had dislocated his shoulder but could not identify which, out of

the 20 officers on the scene, was the perpetrator, we likewise

concluded that there was “no evidentiary basis on which to

hold the[] defendants liable” and affirmed the order of

summary judgment in their favor on that basis. Id. at 821.

In contrast, in Smith v. Mensinger, 293 F.3d 641 (3d Cir.

2002), we reversed the grant of summary judgment on an

Eighth Amendment claim where, although the plaintiff-inmate

conceded he could not see all five of the defendant-correctional

officers during his alleged beating, he testified that “all of them

. . . were pushing my head, right, into the cabinets . . . and

walls,” and “the full force of all the guards [was] behind me .

. . . I said all of them.” Id. at 650 (emphasis omitted). In that

circumstance, we explained, the “fact that Smith . . .

acknowledged that he could not see those defendants during

the beating neither negate[d] their involvement nor their

17

liability as a matter of law.”10 Id. Thus, 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,” id. (emphasis added),

while Howell and Sharrar involved a dispute about the

possibility of each officer’s participation, which we held is

insufficient, “without more,” Howell, 464 F.2d at 282; see

Sharrar, 128 F.3d at 821, to reach a jury and entitles defendants

to judgment as a matter of law.

The line we drew in these cases is consistent with the

approach of other Courts of Appeals. Indeed, just last year, our

colleagues on the Seventh Circuit wrestled with the “potential

tension” between the individual-responsibility requirement of

§ 1983 and “factual scenarios . . . [where] [i]t may be

problematic to require plaintiffs to specifically identify which

officers” committed the constitutional violation. Colbert v.

City of Chicago, 851 F.3d 649, 657–58 (7th Cir. 2017), cert.

denied sub nom. Colbert v. City of Chicago, Ill., 138 S. Ct. 657

(2018). In that case, the plaintiff sued four of the ten officers

who searched his bedroom, causing property damage, though

he “admitted that he was unable to identify which of the ten

10

Jutrowski focuses on other language in Smith—

specifically, our observation that “it is undisputed that all of

the named officers were in the vicinity at some point when

Smith alleges he was beaten,” id. at 651—to argue that mere

presence creates “a sufficient issue of material fact to deny . . .

summary judgment,” Appellant’s Br. 18, but in context, this

merely indicated there was objective corroboration for the

plaintiff’s testimony that “all of them” were involved, Smith,

293 F.3d at 650.

18

searching officers had caused the alleged property damage

because he was not allowed in the rooms while the officers

conducted their search.” Id. at 657. Despite the “acceptable

reasons” for the officers to clear the search area which risked

“effectively immunizing officers from property-damage

claims by preventing a plaintiff from observing the person

responsible for the damage,” the court held that the plaintiff

was “unable to satisfy § 1983’s personal-responsibility

requirement at summary judgment.” Id. at 657–68. At the same

time, it observed that plaintiffs in this situation might have

recourse “by including in their complaint allegations of

misconduct that are unaffected at summary judgment by the

inability to observe the search,” such as “a ‘conspiracy of

silence among the officers’ in which defendants refuse to

disclose which of their number has injured the plaintiff.” Id.

(citations omitted).

Other Courts of Appeals likewise have held that

personal involvement of each defendant is a prerequisite to

liability in § 1983 cases. See, e.g., Burley v. Gagacki, 729 F.3d

610, 619 (6th Cir. 2013) (“To establish liability against an

individual defendant acting under color of state law, a plaintiff

must show that the defendant was ‘personally involved’ in the

use of excessive force.”); Dodds v. Richardson, 614 F.3d 1185,

1195 (10th Cir. 2010) (“[I]ndividual liability under § 1983

must be based on personal involvement in the alleged

constitutional violation.”) (citations omitted); see also Jones v.

Williams, 297 F.3d 930, 935 (9th Cir. 2002) (“[A] plaintiff

could not hold an officer liable because of his membership in

a group without a showing of individual participation in the

unlawful conduct.”).

19

The authorities on which we rely—tort law principles

informing § 1983 liability, our own precedent, and the wisdom

of our Sister Circuits—are thus unanimous that, in the face of

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. But Jutrowski has not done so: As he concedes, after

significant discovery, he has narrowed the potential universe

of actors to those that were in his immediate vicinity, but he

filed suit against only four of the five of them and still cannot

“identify the actor that kicked him.” Appellant’s Br. 12. Put

another way, he admittedly seeks to proceed to trial against at

least three defendants who are “free of liability,” Howell, 464

F.2d at 283, without any “ascertainment of [which] individual

charged was the perpetrator of the constitutional deprivation,”

id. at 282. As the foregoing discussion teaches, that is not a

sufficient basis to survive summary judgment.

Nor is that deficiency remedied by the potential adverse

inference Jutrowski contends should be drawn from Officer

Biro’s failure to produce his dashcam video. At summary

judgment, “the trier of fact generally may receive the fact of . .

. nonproduction or destruction [of relevant materials] as

evidence that the party that has prevented production did so out

of the well-founded fear that the contents would harm him,”

see Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326,

334 (3d Cir. 1995). But a spoliation inference requires, among

other things, “actual suppression or withholding of evidence,”

Bull v. United Parcel Serv., Inc., 665 F.3d 68, 73 (3d Cir.

2012), and here, the District Court found, it would have to

“assume[] there was a recording of the incident” because

Jutrowski “fail[ed] to provide sufficient evidence

20

demonstrating that the video actually existed.” Jutrowski, 2017

WL 1395474, at *5.

That evidence is indeed starkly absent. On appeal, as at

summary judgment, Jutrowski posits the existence of an

automatic recording based entirely on Biro’s statement at his

deposition that the recording device “activates with [the

emergency] lights.” App. 396. This statement, however, was in

the present tense, while moments later, Biro made cryptic

reference to events “back then” and a “different system.” Id.

Yet Jutrowski neither asked follow-up questions at that point,11

nor sought afterwards to confirm the existence of the video

through “a request for inspection pursuant to Federal Rule of

11

Jutrowski’s counsel did not seek to clarify, for

example, whether Biro’s dashcam was programmed at the time

of the incident to automatically record upon activation of

emergency lights or that was only a more recent development;

whether there were circumstances in which the dashcam would

not automatically record with the lights activated; whether it

recorded with the lights activated at other stops that day; or

whether he had filed any report concerning a malfunction. Nor

does the record on appeal reflect any interrogatories or requests

for admission to this effect. Moreover, we have held that “[n]o

unfavorable inference” is warranted “when the circumstances

indicate” that the failure to turn over the relevant evidence is

“otherwise properly accounted for,” Brewer, 72 F.3d at 334,

and Biro “accounted for” his failure to manually record the

events, testifying that he “wasn’t thinking” about “go[ing] back

to [his] car to hit a button” and that he was not required to do

so because he initially considered the incident only as a motor

vehicle accident. App. 396.

21

Civil Procedure 34(a)” or other discovery devices. Jutrowski,

2017 WL 1395474, at *5. Having failed to establish the

existence of the video, Jutrowski necessarily failed to show it

was “actual[ly] suppress[ed].” Bull, 665 F.3d at 73. Thus,

whatever inferences a reasonable jury might draw from the

absence of this dashcam footage at trial, see infra Section III.B,

the District Court’s refusal to draw an adverse inference at

summary judgment was not an abuse of discretion.

The upshot is a record insufficient for any reasonable

jury to identify which, if any,12 of the Individual Defendants

used excessive force. Jutrowski does not contend that all them

kicked him, only that one did; he does not purport to raise a

dispute about the extent of each officer’s participation, but

rather the possibility of it; and what he tenders to fill the

evidentiary gap—an adverse inference to be drawn from the

absence of a dashcam video—itself lacks support in the record.

Laid bare, Jutrowski’s argument is that “an issue of material

fact as to the identity of the Appellee that kicked,” Appellant’s

Br. 13, is sufficient to reach a jury, and even if it is not under

Howell, Sharrar, and Smith, it should be. But in view of those

cases, the District Court correctly concluded that all

Defendants were entitled to summary judgment on Count I of

the complaint. And, though we share the concern expressed by

the Seventh Circuit in Colbert that our holding could

“effectively immunize” perpetrators of constitutional

violations who successfully “prevent[] a plaintiff from

observing the person responsible for” the harm, 851 F.3d at

12

The third State Trooper in the immediate vicinity

when Jutrowski was being arrested was not named as a

defendant.

22

657–78, ours is not to break from controlling Circuit

precedent.13

As the Colbert court also observed, however, there may

be other “avenue[s] for relief,” like a conspiracy claim, that

“sufficiently construct[] the necessary causal connection

between the official and some wrongdoing, regardless of

whether the plaintiff was able to observe” the constitutional

violation. See Colbert, 851 F.3d at 658. It is to such a claim

that we now turn.

B. The Conspiracy Claims Against the Individual

Defendants

In his complaint, Jutrowski alleges both a conspiracy to

violate his federal civil rights, in violation of § 1983 (Count V),

and a conspiracy to violate his state civil rights, in violation of

New Jersey law (Count VI). Tracking each other nearly

verbatim, each of those Counts pleads two distinct conspiracies

among the Individual Defendants: one before he was kicked,

to arrest him using excessive force, and another after the fact,

to cover up the use of that force.14 We agree with the District

13

“[I]t is the tradition of this court that the holding of a

panel in a precedential opinion is binding on subsequent

panels,” Joyce v. Maersk Line Ltd, 876 F.3d 502, 508 (2017)

(en banc), and we are not free to overrule a prior precedential

opinion absent en banc hearing, see Reilly v. City of

Harrisburg, 858 F.3d 173, 177 (3d Cir. 2017); 3d Cir. I.O.P.

9.1.

14

Unlike in a criminal indictment, where charging

multiple conspiracies in the same count is forbidden by the

doctrine of duplicity, U.S. v. Morrow, 717 F.3d 800, 804 (3d

23

Court that Jutrowski did not proffer sufficient evidence to

create a triable issue of fact as to whether the officers “reached

an[y] illicit agreement prior to the alleged kick.” Jutrowski,

2017 WL 1395474, at *8. For the reasons explained below,

however, we cannot agree that he failed to raise a fact issue

concerning “a conspiracy . . . to violate [his] constitutional

rights through after-the-fact evidence.” Id.

i. Requirements to Establish a § 1983

Conspiracy

To prevail on a conspiracy claim under § 1983, a

plaintiff must prove that persons acting under color of state law

“reached an understanding” to deprive him of his constitutional

rights. Adickes v. S.H. Kress & Co., 398 U.S. 144, 150-52

(1970).15 Such rights include, of course, those protected by the

Cir. 1983), multiple conspiracies may be charged in a single

count of a civil complaint. See, e.g., Hampton v. Hanrahan,

600 F.2d 600, 621, 627 n.27 (7th Cir. 1979), rev’d in part on

other grounds by Hanrahan v. Hampton, 466 U.S. 754 (1980).

That is because, in the civil context, “[f]ederal pleading rules

call for ‘a short and plain statement of the claim showing that

the pleader is entitled to relief,’ Fed. Rule Civ. Proc. 8(a)(2);

they do not countenance dismissal of a complaint for imperfect

statement of the legal theory supporting the claim asserted.”

Johnson v. City of Shelby, Miss., 135 S. Ct. 346, 346 (2014).

Jutrowski’s conspiracy claims meet this standard.

15

The elements of a claim of conspiracy to violate

federal civil rights are that “(1) two or more persons conspire

to deprive any person of [constitutional rights]; (2) one or more

of the conspirators performs . . . any overt act in furtherance of

24

Due Process Clause of the Fourteenth Amendment, such as the

“right to be heard in an impartial forum,” Great W. Mining &

Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 161 (3d Cir.

2010), and the “right of access to the courts,” Monroe v. Beard,

536 F.3d 198, 205 (3d Cir. 2008).16 Those rights “assure[] that

no person will be denied the opportunity to present to the

judiciary allegations concerning violations of . . . constitutional

rights.” Wolff v. McDonnell, 418 U.S. 539, 579 (1974).

the conspiracy; and (3) that overt act injures the plaintiff in his

person or property or deprives the plaintiff of any right or

privilege of a citizen of the United States,” with the added gloss

under § 1983 that “the conspirators act ‘under the color of state

law.’” Barnes Foundation v. Township of Lower Merion, 242

F.3d 151, 162 (3d Cir. 2001) (quoting 42 U.S.C. § 1983).

Under New Jersey law, the elements of a claim of conspiracy

to violate civil rights are essentially the same. See Banco

Popular N.A. v. Gandi 184 N.J. 161, 177-78 (2005) (“In New

Jersey . . . the principal element of [civil conspiracy] is

agreement between parties to inflict wrong against or injury

upon another, and an overt act that results in damage.”)

(citations omitted). Thus, although we focus our discussion

below on Jutrowski’s § 1983 conspiracy claims, their

resolution also dictates our disposition of his state conspiracy

claims.

16

See Marshall v. Jerrico, Inc., 446 U.S. 238, 242

(1980) (observing that “[t]he Due Process Clause entitles a

person to an impartial and disinterested tribunal in both civil

and criminal cases”); Bounds v. Smith, 430 U.S. 817, 828

(1977) (describing access to the courts as a “fundamental

constitutional right”).

25

Although deprivations of the right of access to the

courts arise most often in the prison context,17 see, e.g.,

Peterkin v. Jeffes, 855 F.2d 1021, 1036 (3d Cir. 1988), this

right is also denied when law enforcement officers conspire to

cover up constitutional violations, see, e.g., Colbert, 851 F.3d

at 657–58 (holding that the plaintiff could allege under § 1983

that “the named officers participated in something akin to a

‘conspiracy of silence among the officers’ in which defendants

refuse to disclose which of their number has injured the

plaintiff”). A “conspiracy of silence” among officers is

actionable as a § 1983 conspiracy because the coordinated

officer conduct “impede[s] an individual’s access to courts ”

and renders “hollow” a victim’s right to redress in a court of

law. Vasquez v. Hernandez, 60 F.3d 325, 328–29 (7th Cir.

1995) (“[W]hen police officers conceal or obscure important

facts about a crime from its victims rendering hollow the right

to seek redress, constitutional rights are undoubtedly

abridged.”); see also Swiggett v. Upper Merion Twp., No. 08-

2604, 2008 WL 4916039, at *4 (E.D. Pa. Nov. 17, 2008)

(“[C]ourts have found that concealing a constitutional

violation, including use of excessive force, does not amount to

17

The right of access to the courts is sourced from both

“the First and Fourteenth Amendments,” Monroe, 536 F.3d at

205, and is typically framed as a due process right in the inmate

context, see id. at 209, but in other contexts as “an aspect of the

First Amendment right to petition the Government for redress

of grievances,” Bill Johnson’s Rests., Inc. v. NLRB, 461 U.S.

731, 741 (1983); but see Pennsylvania v. Finley, 481 U.S. 551,

557 (1987) (describing the right to “meaningful access” to the

courts as an “equal protection guarantee”).

26

a separate constitutional violation unless the victim of the

concealment was deprived of his right of access to the

courts.”).

After a plaintiff establishes that the object of the

conspiracy was the deprivation of a federally protected right,

“the rule is clear that” the plaintiff “must provide some factual

basis to support the existence of the elements of a conspiracy:

agreement and concerted action.” Capogrosso v. Supreme

Court of N.J., 588 F.3d 180, 184–85 (3d Cir. 2009) (citing

Crabtree v. Muchmore, 904 F.2d 1475, 1481 (10th Cir. 1990)).

To show agreement, he must demonstrate that “the state actors

named as defendants in the[] complaint somehow reached an

understanding to deny [the plaintiff] his rights,” Kost v.

Kozakiewicz, 1 F.3d 176, 185 (3d Cir. 1993), and in the absence

of direct proof, that “meeting of the minds” or “understanding

or agreement to conspire” can be “infer[red]” from

circumstantial evidence, Startzell v. City of Philadelphia, 533

F.3d 183, 205 (3d Cir. 2008). Such circumstantial evidence

may include that the alleged conspirators “did or said

something . . . to create an understanding,” “the approximate

time when the agreement was made, the specific parties to the

agreement[,] the period of the conspiracy, or the object of the

conspiracy.” Great W. Mining, 615 F.3d at 178–79 (citations

omitted). And in the context of an alleged conspiracy among

police officers, it may manifest as “conversations” between

officers about the incident, “allegedly distorted” stories that

“emerged,” an “awareness of conflicting stories” and

“irregularities in the series of official investigations” into the

incident. Hampton v. Hanrahan, 600 F.2d 600, 627–28 (7th

Cir. 1979), rev’d in part on other grounds by Hanrahan v.

Hampton, 466 U.S. 754 (1980).

27

Because “inferring mental state from circumstantial

evidence is among the chief tasks of factfinders,” Kedra v.

Schroeter, 876 F.3d 424, 444 (3d Cir. 2017) (citing United

States v. Wright, 665 F.3d 560, 569 (3d. Cir. 2012)), an

allegation of conspiracy can only be overcome at summary

judgment when “the moving parties’ submissions foreclose[]

the possibility of the existence of certain facts from which ‘it

would be open to a jury . . . to infer from the circumstances’

that there had been a meeting of the minds,” Anderson, 477

U.S. at 249 (citing Adickes, 398 U.S. 144).

ii. The Conspiracy Claims Against the

Individual Defendants

We dispense quickly with Jutrowski’s argument that he

sufficiently established an agreement among the Individual

Defendants, before the fact, to use excessive force. While this

claim meets the threshold requirement that the alleged

conspiracy had the goal of violating a constitutional right,

Jutrowski’s assertion of a “common plan” among the officers,

based on (1) an alleged “reloc[ation] [of] the ambulances so

that EMT personnel would not be able to witness the[] attack,”

and (2) the officers “simultaneously grabbing” him to take him

down, is not supported by any specific facts in the record. App.

276.18 To survive summary judgment, however, “specific facts

18

With respect to the moving of the ambulances, the

record is devoid of discovery from EMT personnel, and neither

Jutrowski’s summary judgment opposition below nor his brief

on appeal provide any record support for his allegations. Nor

does the record support that the officers “simultaneously

grabb[ed]” him to take him down. App. 276. Franchino, the

officer who effectuated the take-down, testified that he was the

28

showing that there is a genuine issue for trial” are precisely

what a plaintiff must show, and “[b]are assertions, conclusory

allegations, or suspicions” will not suffice. D.E., 765 F.3d at

268–69 (citations omitted). The District Court therefore did not

err in granting summary judgment on Counts V and VI to the

extent they allege before-the-fact conspiracies.

The record paints a different picture, however, for

Jutrowski’s claims of a conspiracy after the fact. As a threshold

matter, we reject Defendants’ argument that Jutrowski failed to

assert a cognizable conspiratorial objective because “[t]he only

injur[y] [he] alleges is . . . to his eye” so that post-injury

“actions with regard to [the officers’] paperwork and grand

jury testimony cannot possibly form the basis of a conspiracy

that led to [his] injuries.” State Troopers’ Br. 25. The “injury”

Jutrowski asserts with respect to this conspiracy is not the

application of excessive force but the denial of “access to the

courts.” Monroe, 536 F.3d at 205. And drawing all reasonable

inferences, as we must, in Jutrowski’s favor, we cannot agree

with the District Court that there is insufficient evidence of

“only . . . [one who] took [Jutrowski] to the ground,” App. 437,

and that not all of the officer-defendants were even near

Jutrowski when he executed the “front leg sweep” maneuver,

App. 424. The testimony of other officers was consistent with

that account. See, e.g., App. 396–97 (Roemmele testifying that

he “was walking back” to his vehicle when Jutrowski was

initially apprehended). Further, the deposition testimony

shows that the takedown “happened instantly,” App. 335, after

Jutrowski flailed his arm, making it implausible that there was

time for a proverbial “meeting of the minds” before he was

kicked moments later.

29

“collu[sion]” among “the officers from Riverdale and the State

Police” to deprive him of that access. Jutrowski, 2017 WL

1395474, at *8.

For starters, material omissions in contemporaneous

police reports can reasonably be seen by a jury as evidence that

the officers “agreed to abide by [a] claim” about what

happened and “agreed to represent [it] falsely,” Bell v. City of

Milwaukee, 746 F.2d 1205, 1256 (7th Cir. 1984), rev’d on

other grounds by Russ v. Watts, 413 F.3d 783 (7th Cir. 2005),

and omissions specifically as to the infliction of an injury or

“reference to the use of force” that indisputably occurred

during an arrest “can be as dishonest as an outright lie,” United

States v. Seymour, 472 F.3d 969, 970 (7th Cir. 2007) (finding

the omission, in an arrest report, regarding the use of force

against a jaywalker to be material because “[t]he test is whether

what is omitted is something the intended reader would have

expected to see included if it had occurred . . .”). Here, none

of the reports by Heimbach, Franchino or Roemmele19

indicated that Jutrowski suffered significant injuries during the

course of his arrest, yet several of the officers admitted in their

depositions that Jutrowski’s injuries noticeably worsened

during his apprehension.20 Moreover, notwithstanding the

19

It appears that Biro did not prepare a separate report,

as the one report produced by the Riverdale Police Department

was prepared by Roemmele. The State Troopers produced

three reports: a Supplemental Investigation Report and

Reportable Use of Force report, both prepared by Franchino;

and a Drinking Driving Report, prepared by Heimbach,

20

See App. 338 (Heimbach testifying that after his

arrest, Jutrowski’s “eye was a lot worse than the initial

30

District Court’s reasonable rejection of an adverse spoliation

inference on the summary judgment record, a reasonable jury

considering the inconsistent accounts of the vantage point from

Biro’s vehicle21 and the absence of Biro’s dashcam footage

when “all of the [other] automobiles on scene recorded the

encounter and all recording[s] but Biro’s were produced,”

Appellant’s Br. 23, might infer evidence of a cover-up.22

Jutrowski’s after-the-fact conspiracy allegations also

find support in the time that was available to reach an

laceration”); App. 368, 380 (Roemmele testifying that before

arrest, Jutrowski’s injury was a “[s]mall laceration; nothing

major” but that afterwards his face looked “different” and it

was “[s]wollen [with] more abrasions”); App. 402 (Biro

testifying that after being taken to the ground, “there was blood

on [Jutrowski’s] face, more than what he had”); App. 429

(Franchino testifying that he does not “recall looking at

[Jutrowski’s] face” but that he “would hope [to] notice[]” if the

injuries had worsened).

21

Biro testified in his deposition that he “kn[e]w [he]

was either one or two cars behind” Jutrowski’s disabled SUV.

App. 394. However, testimony from Heimbach, who arrived

on the scene after Biro, as well as dashcam footage from

Heimbach’s vehicle indicates that Biro was parked behind

Jutrowski upon arrival.

22

Decisions regarding the admissibility and admission

of such evidence rest in the sound discretion of the District

Court. See U.S. v. Finley, 726 F.3d 483, 491 (3d Cir. 2013)

(noting that “[a] district court is generally afforded broad

discretion on evidentiary rulings”).

31

agreement, see Great W. Mining, 615 F.3d at 178, and evidence

of “conversations” between officers before the filing of reports,

Hampton, 600 F.2d at 627. That is, there was undoubtedly time

in the unhurried period after the incident and before the

finalization of reports and deposition appearances for a

“meeting of the minds,” Startzell, 533 F.3d at 205, and

Heimbach acknowledged at his deposition that he “discussed”

Jutrowski’s case with Franchino and the third trooper involved

in the arrest “while . . . going over the reports,” and that “prior

to writing the narrative report,” he “discussed [with them]

everything that happened” concerning “the scene and the arrest

and subduing of Mr. Jutrowski” in order to straighten out the

“sequence of events,” App. 341. Franchino also testified that

he “remember[ed] speaking about” Jutrowski’s injuries with

Heimbach within a few weeks of the incident, App. 429, and

that before submitting his report, it was “possible” that he

discussed the “facts of the case” with Heimbach, App. 431.

Moreover, what emerged from these conversations

might well be viewed by a reasonable jury as “irregularities”

and “distorted” or “conflicting” accounts that suggest “a

concerted effort to suppress facts.” Hampton, 600 F.2d at 628.

For example, Roemmele’s report, the lone Riverdale Police

report as none was produced by Biro, makes reference to the

presence of State Troopers, but it does not mention the

presence of Biro, who not only participated in the arrest but

was also Roemmele’s supervisor. Heimbach’s report omits any

reference to the use of excessive force, although he does not

dispute that someone kicked Jutrowski and that his “sole

focus” for “the entire time” was on Jutrowski’s head, so that

“if any[one] . . . struck [Jutrowski] in the face, [he] would

[have] know[n].” App. 344. For his part, Trooper Franchino

testified that he was the officer “closest to [Jutrowski’s] head,”

32

and was “less than three feet” away when Jutrowski was taken

to the ground, App. 438, but professed that he did not ever

“look[] at [Jutrowski’s] face,” App. 432, and that he checked

the box for “moderate injury” on his use of force report only

because “possib[ly] someone told” him to do it, App. 434. The

Riverdale officers, who were also in Jutrowski’s immediate

vicinity, likewise do not contest that a kick occurred, but

Roemmele made no reference to it in the one report produced

by the Riverdale Police Department, and both officers contend

that they did not see it. Furthermore, all of this may be

considered against the backdrop of the other evidence in the

record on summary judgment, including the report of a medical

expert, who averred that Jutrowski’s injury most likely resulted

from “either a kick or punch of significant force.” App. 263.

In short, what Jutrowski put forward concerning alleged

federal and state conspiracies to deprive him of access to the

courts was sufficient to create a genuine issue of material fact.

And he did so, consistent with Smith, for each of the Individual

Defendants. That is, Jutrowski alleged that “all” of “Defendant

officers . . . did act together and in concert” to conspire to

violate his civil rights, App. 269, that all “[t]he police officers”

are implicated in a cover-up, App. 493, and that each of them

“perjured themselves,” App. 492, in “covering up” the use of

excessive force and “protecting each other,” App. 495.

Because he adduced evidence to support those allegations

“such that a reasonable jury could return a verdict” in his favor,

Anderson, 477 U.S. at 248, we will reverse District Court’s

entry of summary judgment on Counts V and VI to the extent

they allege after-the-fact conspiracies, and we will remand for

further proceedings on those claims against the Individual

Defendants.

33

IV. Conclusion

For the foregoing reasons, we will affirm in part and

reverse in part and will remand for proceedings consistent with

this opinion.

34