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Peschko v. City of Camden

June 28, 2006

ROBERT PESCHKO, JR., ROBERT HON. JEROME B. SIMANDLE REILLY, PLAINTIFFS,
v.
CITY OF CAMDEN, ET AL., DEFENDANTS.
STEVEN HUGG, PLAINTIFF,
v.
CITY OF CAMDEN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Simandle, U.S. District Judge

OPINION

On July 20, 2002, Plaintiffs attended a Phil Lesh and Friends concert at the Tweeter Center in Camden, New Jersey. Plaintiff Peschko arrived to the Tweeter Center at approximately 3:00 P.M., well in advance of the scheduled 7:30 P.M. start time, and remained in the parking lot for a short while after the concert let out at roughly 11:30 P.M. Peschko had been drinking throughout the day, and had taken several "hits" of nitrous oxide after the concert.*fn1 He was taking one of those hits when several officers approached him. The events that followed give rise to this litigation.

Plaintiffs filed this action under 42 U.S.C. § 1983, the New Jersey Constitution, and New Jersey state law.*fn2 The matter is currently before the Court upon the motions for summary judgment by Defendants Frucci, Martinez, Frampton, Uff, Allenbach, City of Camden, and the City of Camden Police Department ("Camden Police Department" or "Department"). For the following reasons, the motions will be granted in part and denied in part.

I. BACKGROUND

On July 20, 2002, Plaintiffs attended a Phil Lesh and Friends concert at the Tweeter Center in Camden, New Jersey. Plaintiff Peschko arrived to the Tweeter Center at approximately 3:00 P.M., and following the concert remained in the parking lot with some friends, including Plaintiff Hugg, while the lot emptied. By that time, Peschko had consumed over the course of the day a total of 6 or 7 12-ounce beers and part of a strawberry daiquiri. Additionally, Peschko had taken several "hits" of nitrous oxide.*fn3 Peschko was holding a "nitrous balloon" in each hand when five or six police officers approached him.*fn4 (Peschko Dep. Tr. at 41:2-6; Hugg Dep. Tr. at 46:19-47:12.)

A. Plaintiff Peschko

As the officers approached, they split up and three started walking directly towards Peschko. At that point, according to Plaintiff, Officer Borodziuk told him to get rid of the balloons, which he did, but not before taking a "small hit." (Peschko Dep. Tr. at 41:2-6.) Plaintiff maintains that Officer Borodziuk then walked up and said: "That hit just cost you a lot of money mother fucker," at which point Borodziuk hit Peschko over the head with his baton.*fn5 (Id. at 42:10-20; Hugg Dep. Tr. at 47:23-25.)

Then, Peschko maintains, as Officer Borodziuk attempted to strike him again, Peschko grabbed the baton with his left hand and pushed the officer's chest away with his right hand. (Id. at 42:22-25, 44:6-8; Hugg Dep. Tr. at 49:1-10.) Plaintiff then said to the officer: "I . . . didn't do nothing wrong, what the hell are you hitting me for." (Id.) The two then "stumbled" to the ground, Plaintiff landing on his knees. According to Peschko, five or six other officers then jumped on top of him. While on the ground, Plaintiff claims he was struck in his legs and head approximately fifty times. (Peschko Dep. Tr. at 57:24-25.) Plaintiff Hugg, who testified that he was standing roughly twenty-five feet from where Peschko was being arrested, corroborates Peschko's account. (Hugg Dep. Tr. at 56:25-57-5; DellaBarba Dep. Tr. at 11:18-12:18.) Peschko has identified officers Borodziuk, Martinez, Frucci and Reese as among those involved in the incident. (See also DellaBarba Dep. Tr. at 12:11-18.) According to Peschko, the incident lasted roughly one and a half to two minutes.

As he was being handcuffed, Plaintiff claims that the officers sprayed pepper spray in his eyes. (Peschko Dep. Tr. at 59:4-60:13.) An amateur videotape reveals that Peschko was lying on his stomach as the officers attempted to secure the handcuffs. While lying face down on the ground, Officer Martinez executed three "knee-strikes" to Plaintiff's lower-right side. Defendant Martinez testified that the knee-strikes were necessary to subdue Plaintiff because he was actively struggling and resisting. (Martinez Dep. Tr. at 116:10-13.) Plaintiff testified, however, and the video seems to corroborate, that Peschko was lying motionless on the ground as these events transpired.

Eventually, the officers handcuffed Peschko and then, according to Plaintiff, sprayed him again with pepper spray.*fn6 While the officers were placing the handcuffs on Plaintiff, Officer Frucci placed his knee on Plaintiff's neck to keep him secure on the ground.*fn7 (Frucci Dep. Tr. at 46:6-8; Hugg Dep. Tr. at 60:21-24; Reilly Dep. Tr. at 50:8-17.) Once he was handcuffed, the officers assisted Plaintiff to his feet and walked him to the paddy wagon. As Plaintiff was being escorted, he claims an officer punched him in the back of the head. (Id. at 56:21-67:23.) According to Peschko, Plaintiffs Reilly and Hugg were in the paddy wagon in custody by the time he was put inside.*fn8 (Id. at 67:24-68:2.)

Plaintiff was later charged with the following crimes in connection with the incident: disarming a law enforcement officer, 2nd degree; resisting arrest, 3rd degree; aggravated assault on a police officer, 3rd degree; and inhaling a toxic chemical. All charges were ultimately dismissed on July 21, 2005. (Pl. Opp. Br. ¶ 13.) Peschko claims he suffered the following injuries related to the July 20th events: a broken right patella, two broken ribs, head lacerations, liver injury, back and neck damage, and general aches and pains.*fn9

B. Plaintiff Reilly

Robert Reilly also attended the concert on July 20, 2002, though separately from Peschko. Following the concert, as Reilly and his friends waited for the parking lot to empty, they remained by their car drinking beer and eating food. (Reilly Dep. Tr. at 1-10.) During this time, Reilly noticed a commotion several cars away. Reilly went to his car to retrieve his camera, and then, according to his testimony, proceeded to where he saw Peschko being beaten. (Id. at 47:2-48:5.) At some point, Reilly, who was standing approximately twelve feet from Peschko, took a picture of the events transpiring. At that moment, apparently upon seeing the camera flash, Officer Borodziuk turned towards Reilly and started towards him. As he back-peddled away from Borodziuk, Reilly took another picture. Then, according to Reilly, the officer grabbed the camera and hit Reilly with his baton in Reilly's back side. (Reilly Dep. Tr. at 68:11-69:23.) Borodziuk then told Reilly to "Get the fuck out of here," at which point Reilly retreated to a location several cars away. (Id. at 70:6-7, 81:11.)

After relaying the story to his friends, one of them approached an officer about trying to have the camera returned. While she was talking to that officer, Reilly noticed Borodziuk across the lot. Reilly proceeded to walk up to the officer and asked for his camera. (Id. at 83:1-84:11.) Borodziuk then allegedly grabbed Reilly's left arm, and twisted it to the side while kicking his leg out from under him to force him to the ground. Reilly claims he landed on his chest and head, and was then handcuffed. Borodziuk then picked Reilly up from the ground and escorted him to the paddy wagon. (Id. at 85:12-87-15.)

C. Procedural History

Plaintiffs Peschko and Reilly filed this action on December 6, 2002. Plaintiff Hugg filed a separate complaint on April 16, 2003. The actions were consolidated by Order dated August 19, 2003. Plaintiffs have asserted claims under 42 U.S.C. § 1983, the New Jersey Constitution, and New Jersey state law.

II. SUMMARY JUDGMENT STANDARD OF REVIEW

Summary judgment is appropriate when the 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." Fed. R. Civ. P. 56(c). In deciding whether there is a disputed issue of material fact, the court must view the evidence in favor of the non-moving party by extending any reasonable favorable inference to that party; in other words, "the nonmoving party's evidence 'is to be believed, and all justifiable inferences are to be drawn in [that party's] favor.'" Hunt v. Cromartie, 526 U.S. 541, 552 (1999) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). 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." Liberty Lobby, 477 U.S. at 250; Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 329-30 (3d Cir. 1995) (citation omitted).

III. DISCUSSION

A. Plaintiffs Peschko and Reilly

Plaintiff Peschko asserts the following claims against Defendants Frucci, Martinez, Uff, Frampton, Reese, and Borodziuk: (1) excessive force in violation of the Fourth, Fifth, and Fourteenth Amendments (Count I); excessive force in violation of Article I, paragraph 7 of the New Jersey Constitution (Count II); state law claims for assault and battery (Count III), intentional infliction of emotional distress (Count IV), and false imprisonment (Count V).*fn10 Additionally, Plaintiffs Peschko and Reilly allege claims against Defendants Allenbach, City of Camden and the Camden Police Department for failure to train (Count VI & XIII) and negligent hiring (Counts VII & XV) under 42 U.S.C. § 1983. Currently pending before the Court are motions for summary judgment by Defendants, Frucci, Martinez, Uff, Frampton, Allenbach, City of Camden and the Camden Police Department.

1. Excessive Force Claims

a. Defendants Frucci and Martinez

Plaintiff Peschko asserts an excessive force claim under the Fourth Amendment.*fn11 For the reasons now explained, the Court finds that there are questions of fact as to whether Defendants Frucci and Martinez used excessive force on Plaintiff and, therefore, the Court will deny the motion as to ...


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