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HILL v. ALGOR
January 18, 2000
ERNEST HILL, (AKA) ANTOINE HILL, PLAINTIFF,
JEFFREY ALGOR, INDIVIDUALLY AND AS A NEW JERSEY STATE POLICE OFFICER, DAVID HENRY MEYER, INDIVIDUALLY AND AS A NEW JERSEY STATE POLICE OFFICER, ROBERT KWAP, INDIVIDUALLY AND AS A NEW JERSEY STATE POLICE OFFICER, STEPHEN MAKUKA, INDIVIDUALLY AND AS A NEW JERSEY STATE POLICE OFFICER, AND JOHN DOES (1 THROUGH 6 INDIVIDUALLY AND AS NEW JERSEY STATE POLICE OFFICERS), DEFENDANTS.
The opinion of the court was delivered by: Brotman, District Judge.
OPINION ON MOTION FOR SUMMARY JUDGMENT
Presently before this Court is the motion of defendants Trooper
David Henry Meyer ("Meyer"), Trooper Robert Kwap ("Kwap") and
Trooper Stephen Makuka ("Makuka") for summary judgment pursuant
to Fed.R.Civ.P. 56.*fn1
I. FACTS AND PROCEDURAL BACKGROUND
This 42 U.S.C. § 1983 action arises out of events occurring in
the aftermath of a January 19, 1996 shootout between New Jersey
state troopers and drug suspects inside the Happy Dragon Chinese
Restaurant located at Twenty-Eighth and Mickle Streets in Camden,
New Jersey. On this night, troopers Algor, Meyer ("Meyer"), Roy
Baker ("Baker"), and Sgt. Stewart Whiteman ("Whitman"), pursuant
to the Camden Initiative,*fn2 were on patrol in the Camden area.
They responded to a report of drug activity at the restaurant. As
a result of the gunfire which ensued, Baker was severely wounded,
and a drug suspect was killed.
While these events were unfolding, plaintiff Ernest Hill
("Hill") was walking along Twenty-Eighth Street to the bus stop
to catch a bus to Pennsauken. As he walked, Hill heard gunfire.
Hill continued toward the bus stop but paused directly across the
street from the restaurant, noting the presence of state
troopers. Hill also noticed an African-American male lying in the
entrance to the restaurant. While Hill could not positively
identify the male, he believed the man to be his friend Moses
Clary. Hill yelled to the troopers to call an ambulance. The
parties dispute the events which followed Hill's arrival on the
scene, including both Hill's and the troopers' actions.
Ultimately, Hill was arrested for obstruction of justice. Algor
and Meyer were the officers who arrested Hill.
After his arrest, Hill was transported to the Camden Police
Administration Building. Shortly thereafter, Hill was transported
to the State Police Barracks in Bellmawr, New Jersey ("the
Barracks"). On this night, Kwap was the acting shift supervisor
of the Barracks. At the Barracks, Hill was placed in a holding
cell, where, handcuffed to a bench, he remained from 11:45 p.m.
until approximately 2:30 a.m. During this time, Hill claims that
he was beaten by a group of state troopers. Hill does not know
the identities of these troopers.
At around 2:45 a.m., Investigator Charles Bentham ("Bentham")
entered Hill's holding cell to move him to another room where his
official statement would be taken. Upon entering the cell,
Bentham noticed some blood on Hill's clothing, hands, and head
near the hairline. Bentham took Hill to a restroom to wash the
blood from his face and hands.
In the interrogation room Bentham and Makuka asked Hill
questions and took his statement, which process did not end until
approximately 4:30 a.m. Makuka, who was off-duty on this night,
was summoned to the Barracks to question Hill concerning the
circumstances surrounding the shooting of Trooper Baker.
Ultimately, Hill was charged with obstruction of justice in
violation of N.J.S.A. 2C:29-1 and released from the Barracks
between 4:30 a.m. and 5:30 a.m. on January 20, 1996. After his
release, Hill sought treatment at Cooper Medical Center. At the
hospital, Hill received stitches in his head. In addition, Hill
complains of spinal and knee injuries as a result of his assault.
On January 17, 1997, Hill filed a complaint against the State
of New Jersey, the New Jersey State Police Department, and John
Does 1-6 individually and as state police officers. On October
10, 1997, the Court granted Hill's motion to amend his complaint,
and on October 2, 1997, Hill filed an amended complaint naming
Algor as a defendant. On October 14, 1997, the
Court dismissed with prejudice all federal and state claims
against the State of New Jersey and the New Jersey State Police
Department. On February 23, 1999, Algor filed a motion seeking
summary judgment on all claims. In an Opinion and Order dated
June 1, 1999 ("the June Opinion"), the Court granted Algor's
motion for summary judgment as to the following claims:
(1) First Cause of Action (42 U.S.C. § 1983): that
part which alleges a violation of Hill's Fourth and
Fourteenth Amendment right to equal protection; and
(2) Second Cause of Action: Conspiracy based upon
discriminatory animus under 42. U.S.C. § 1985(3).
(Order dated June 1, 1999.) In addition, pursuant to Hill's
decision not to pursue against Algor the following claims, the
Court dismissed these claims with prejudice:
(1) First Cause of Action (42 U.S.C. § 1983): those
parts which allege a violation of Hill's:
i. Eighth Amendment right to protection from cruel
and unusual punishment;
ii. Sixth Amendment right to be informed of the
nature and cause of the accusations against
iii. Fourth Amendment right to be protected against
punishment disproportionate to any crime;
(2) Third Cause of Action (42 U.S.C. § 1983);
(3) Fourth Cause of Action (42 U.S.C. § 1983);
(4) Sixth Cause of Action (Negligence). Order dated
June 1, 1999.
Thus, the remaining claims against Algor which survived summary
judgment and may proceed to trial include:
(1) First Cause of Action (42 U.S.C. § 1983): that
part alleging violation of Hill's Fourth and
Fourteenth Amendment right to protection from false
arrest and excessive force;
(2) Fifth Cause of Action alleging common law
(3) Ninth Cause of Action alleging common law false
On March 22, 1999, the Court granted Hill's motion to amend his
complaint for a second time, and the following day Hill filed a
second amended complaint. The second amended complaint adds
Meyer, Kwap, Makuka, and John Does 1-6 as defendants. It alleges
that defendants violated 42 U.S.C. § 1983 and
42 U.S.C. § 1985(3). It also contains state law causes of action for
assault, negligence, respondeat superior, malicious prosecution, and
false arrest. On October 8, 1999 defendants Meyer, Kwap, and Makuka
filed the summary judgment motion that is presently before the
The Court has jurisdiction over this matter pursuant to
28 U.S.C. § 1331 and 1367.
B. SUMMARY JUDGMENT STANDARD
The standard for granting a motion for summary judgment is a
stringent one, but it is not insurmountable. Fed.R.Civ.P. 56
provides that summary judgment may be granted only when materials
of record "show that there is no genuine issue as to any material
fact and that the moving party is entitled to judgment as a
matter of law." Serbin v. Bora Corp., 96 F.3d 66, 69 n. 2 (3d
Cir. 1996). In deciding whether there is a disputed issue of
material fact, the court must grant all reasonably inferences
from the evidence to the non-moving party. The threshold inquiry
is whether there are "any genuine factual issues that properly
can be resolved only by a finder of fact because they may
reasonably be resolved in favor of either party." Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91
L.Ed.2d 202 (1986).
Supreme Court decisions mandate that a summary judgment motion
must be granted unless the party opposing the motion "provides
evidence `such that a reasonable jury could return a verdict for
the nonmoving party.'" Lawrence v. National Westminster Bank New
Jersey, 98 F.3d 61, 65 (3d Cir. 1996) (quoting Anderson, 477
U.S. at 248, 106 S.Ct. 2505). Once the moving party has carried
its burden of establishing the absence of a genuine issue of
material fact, "its opponent must do more than simply show that
there is some metaphysical doubt as to material facts."
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The non-moving
party must "make a showing sufficient to establish the existence
of [every] element essential to that party's case, and on which
that party will bear the burden of proof at trial." Serbin, 96
F.3d at 69 n. 2 (quoting Celotex Corp. v. Catrett,
477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)); see also
Quiroga v. Hasbro, Inc., 934 F.2d 497, 500 (3d Cir. 1991)
(declaring that non-movant may not "rest upon mere allegations,
general denials, or . . . vague statements"). Thus, if the
non-movant's evidence is merely "colorable" or is "not
significantly probative," the court may grant summary judgment.
Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505.
C. COUNT ONE: VIOLATION OF 42 U.S.C. § 1983
In count one of his second amended complaint, Hill alleges that
defendants violated 42 U.S.C. § 1983 by infringing on his Fourth
and Fourteenth Amendment rights to protection from false arrest
and excessive force. See Second Am. Compl. ¶ 20.
42 U.S.C. § 1983 provides in relevant part as follows:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
or Territory or the District of Columbia subjects, or
causes to be subjected, any citizen of the United
States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at
law, suit in equity, or other proper proceeding for
This statute "is not itself a source of substantive rights, but a
method for vindicating parts of the United States Constitution
and federal statutes that it describes." Alexander v. Whitman,
114 F.3d 1392, 1400 (3d Cir.), cert. denied, 522 U.S. 949, 118
S.Ct. 367, 139 L.Ed.2d 286 (1997) (quoting Baker v. McCollan,
443 U.S. 137, 145 n. 3, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979)).
An arrest that is made without probable cause violates the
Fourth Amendment. See Skevofilax v. Quigley, 586 F. Supp. 532,
545 (D.N.J. 1984). The Third Circuit has defined probable cause
Hill was charged with obstruction of justice pursuant to
N.J.S.A. § 2C:29-1, which states in pertinent part:
A person commits an offense if he purposely
obstructs, impairs or perverts the administration of
law or other governmental function or prevents or
attempts to prevent a public servant from lawfully
performing an official function by means of
intimidation, by force, violence or physical
interference or obstacle, or by means of any
independently unlawful act.
N.J.S.A. § 2C:29-1. Hill alleges that Meyer and Algor arrested
him for obstruction of justice without probable cause,
effectuating a false arrest.
In the June Opinion, the Court denied Algor's motion for
summary judgment as to Hill's false arrest claim, noting
significant differences in the accounts given by Hill and
defendants Algor and Meyer regarding the events leading up to
Hill's arrest. See Op. and Order dated June 1, 1999.
Specifically, the Court noted the following matters in dispute:
1. Algor and Meyers both testified in their
respective depositions that "Hill made threatening
movements while in proximity to the crime scene.
These movements included reaching down into his
waistband and failing to retreat when instructed to
do so by the officers on the scene." (citations
2. Hill testified in his deposition that he was
"moving" but "does not address the troopers'
allegation that Hill repeatedly moved his hands
toward his waistband. Hill attempts to explain away
this allegation in his opposition brief by arguing
that `the allegation that Mr. Hill moved his arms
about is a completely natural action for someone
requesting medical assistance.'" (citation
The Court went on to explain why summary judgment was not proper:
While it is clear that Hill failed to retreat when
asked to do so — either once or multiple times — it
is unclear whether Hill responded to the officers'
requests by moving closer to the crime scene or
simply by remaining stationary. This uncertainty is
the result of confusion regarding what Hill meant by
his admission that he was "moving"; he could have
been moving just his arms as he yelled for someone to
call an ambulance and/or he could have been moving
his feet. It is also unclear whether Hill reached
down to his waistband, as Algor and Meyer allege, or
whether Hill simply flailed his arms about as part of
the emotional outburst he was purportedly having.
Op. dated June 1, 1999 at 9.
Meyer, who was added as a defendant in Hill's second amended
complaint, now seeks summary judgment as to the false arrest
claim, asserting identical arguments as those launched by Algor
in his summary judgment motion, namely that there existed
probable cause to arrest Hill. Thus, for the same reasons stated
in the June Opinion denying Algor's motion for summary judgment,
Meyer's motion as to Hill's false arrest claim also will be
Hill alleges that defendant Meyer used excessive force in
effectuating his arrest. "In addressing an excessive force claim
brought under § 1983, analysis begins by identifying the specific
constitutional right allegedly infringed by the challenged
application of force." Graham v. Connor, 490 U.S. 386, 109
S.Ct. 1865, 104 L.Ed.2d 443 (1989). Relevant to this inquiry is
the status of the plaintiff at the time of the alleged violation.
In Graham, the Supreme Court made explicit that the Fourth
Amendment governs excessive force claims arising out of an arrest
or investigatory stop. 490 U.S. at 395, 109 S.Ct. 1865. As Hill's
excessive force claim against Meyer arises from events occurring
during his arrest, a Fourth Amendment analysis is appropriate.
Under the Fourth Amendment, whether an officer used excessive
force is assessed by the "objective reasonableness" of that
officer's conduct. Graham v. Connor, 490 U.S. 386, 109 S.Ct.
1865, 104 L.Ed.2d 443 (1989). Whether the force used to
effectuate an arrest is reasonable depends upon "the facts and
circumstances of each particular case, including the severity of
the crime at issue, whether the suspect poses an immediate threat
to the safety of the officers or others, and whether he is
actively resisting arrest or attempting to evade arrest by
flight." Id. at 396, 109 S.Ct. 1865. The reasonableness of the
force used "must be judged from the perspective of a reasonable
officer on the scene, rather than with the 20/20 vision of
In the June Opinion, the Court denied Algor's motion for
summary judgment on the excessive force claim, finding genuine
issues of material fact as to "the actual events leading up to
Hill's arrest, the extent of Hill's resistance to arrest, and the
amount of force that Algor used in arresting Hill." (Op. dated
June 1, 1999 at 12.) For the ...