The opinion of the court was delivered by: Hillman, District Judge
This action is brought pursuant to 42 U.S.C. § 1983, against the City of Atlantic City ("Defendant Atlantic City") and Officer Darryl Dabney of the Atlantic City Police Department (collectively "Defendants"). Plaintiff claims that Defendant Dabney used excessive and unreasonable force and arrested her without probable cause. Plaintiff claims that Defendant Atlantic City is vicariously liable because it failed to properly train its officers and conspired to deprive Plaintiff of her Fourth and Fourteenth Amendment rights. Plaintiff also brought various state law claims.*fn1
This action was removed to federal court on September 20, 2004, pursuant to 28 U.S.C. § 1441 et seq. (permitting a defendant to remove state actions to district court). Jurisdiction is proper under 28 U.S.C. § 1331 (establishing jurisdiction over actions arising under federal law). Defendant Atlantic City filed a motion for summary judgment on August 3, 2006, and Defendant Darryl Dabney filed a motion for summary judgment on August 18, 2006. The plaintiff failed to file a timely opposition to the motions or request an extension to file. On September 13, 2006, and September 18, 2006, Defendants filed letters opposing the filing of an untimely response by Plaintiff pursuant to Local Rule 7.1(d)(5). On September 18, 2006, Plaintiff filed a one page letter simply stating that Defendants' motions should be dismissed because a disputed issue of fact existed as to whether Officer Dabney used self-defense. Although Plaintiff did not request permission from the Court to file her untimely response, we grant Plaintiff an extension to file her letter response and, therefore, the letter response will be considered by the Court. The Defendants did not file replies to Plaintiff's letter response.
On March 16, 2007, counsel for the parties appeared before the Court and provided oral argument on the legal issues of whether Officer Dabney's conduct was "objectively reasonable," and whether the Plaintiff presented any proof against Defendant Atlantic City of failure to train its police officers. We find based upon the written briefs and subsequent argument provided by counsel that Plaintiff's claims fail as a matter of law and grant Defendants' motions for summary judgment.
The incident giving rise to this case occurred on the evening of July 14, 2002, at approximately 7:00 p.m., in Atlantic City, New Jersey close to Plaintiff Ellen Simpson's residence. According to testimony provided by Simpson, Simpson witnessed an altercation between her niece, Nydia, and the daughter of her neighbor, Tanisha, earlier that evening. The two teenage girls got into an argument after Nydia made the statement that Tanisha's son had fleas. Simpson heard Tanisha yelling and using profanity so she went outside to end the argument between the girls and told Tanisha that she would "take care of the situation." Tanisha returned to her home, although Simpson still heard her yelling from the porch. Eventually Tanisha went inside her house.
Simpson then drove a friend to the liquor store and returned approximately ten minutes later. When she arrived, she witnessed a large crowd, consisting of several teenaged boys, some of whom were running, one person in particular was running with a stick. She described the scene as "chaos." It was Simpson's impression that the previous altercation between Nydia and Tanisha had escalated and that others became involved. Certain male relatives of Simpson's were involved in altercations with other males on the street. Simpson stated she yelled to get their attention to make them stop chasing each other and told certain males who lived on the street to go back to their respective homes. Simpson observed one male whom she identified as the son of a neighbor, Lisa Bishop, reaching under his shirt, and was concerned he was reaching for a gun. Simpson exchanged words with Ms. Bishop and told her, "Lisa, get your son." Ms. Simpson also told Ms. Bishop to "get that girl" as Simpson was concerned that the girl was trying to fight with her niece.
Simpson then noticed that several police cars had pulled up and testified that she motioned for a police officer to come to where she and Ms. Bishop were standing. Simpson told the police officer that it was Tanisha that started the whole thing, but Ms. Bishop stated it was someone else. Simpson testified that the police officer yelled obscenities at them to which Simpson responded, "don't talk to me like that," or "who are you talking to like that." Simpson then states she turned to leave and three or four police officers jumped on her back, threw her up against a window, banged her head against the window, pulled her hands over her head and held her feet.
The officers' attention then turned toward Simpson's son who was in a physical altercation with another police officer. All of the officers except one female officer left Simpson to assist the other officer. While being restrained by the one female officer, Simpson states she was able to turn her head and observe that the crowd had grown and it "looked like hundreds" of people were present. She states she saw seven or eight police officers "beating up [her] son" by punching and kicking him while her son was lying on his stomach on the ground. Simpson then states that the female officer holding her let her go. She ran to her son yelling at the top of her lungs at the officers to stop kicking and hitting her son. She states she was standing still when she saw Officer Dabney kick her son, turn, take two steps, lunge and punch her in the face. She fell to the ground and was knocked out briefly. Simpson testified that a female officer then told her she was under arrest, handcuffed her, threw her in backwards in the back of a patrol car, and began kicking her. She then testified that either Officer Dabney or an unknown female officer pulled her hair braids from the other side of the car following which the officers shut the doors and she was taken to the police station.
Testimony provided by Officer Dabney, and not contradicted by Plaintiff, provides that he arrived on the scene and noticed Officer Fernald (a female police officer) attempting to take Simpson into custody. He also noticed that Officer Timek was injured and observed blood pouring down his head. Office Timek was struggling with Simpson's son who was resisting arrest. Dabney went over to Officer Timek and was assisting in the arrest when the son attempted to grab hold of Dabney's gun belt. Dabney broke free then heard Officer Fernald yell "Daryl watch out." He turned and saw Simpson, about two to three feet away from him, running toward him. He hit Simpson in the face with his left hand and Simpson fell to the ground.*fn2 Simpson was taken immediately into custody by other officers on the scene. Dabney returned to assisting in the arrest of Simpson's son. After Simpson's son was handcuffed and under control, Dabney saw Officer Fernald attempting to put Simpson in the back of the patrol car. Simpson was sitting in the back seat with her back facing the opposite door and her feet outside of the car. Dabney went to the opposite side of the car, opened up the back door, climbed in the car, grabbed Simpson by the arm and pulled her into the car so that Officer Fernald could shut the door. Dabney testified that from the time he arrived on the scene until Simpson was taken into custody lasted no more than two minutes.
A. Standard for Summary Judgment
Summary judgment is appropriate where the Court is satisfied that "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986); Fed. R. Civ. P. 56(c). An issue is "genuine" if it is supported by evidence such that a reasonable jury could return a verdict in the nonmoving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" if, under the governing substantive law, a dispute about the fact might affect the outcome of the suit. Id. In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the non-moving party's evidence "is to be believed and all justifiable inferences are to be drawn in his favor." Marino v. Industrial Crating Co., 358 F.3d 241, 247 (3d Cir. 2004)(quoting Anderson, 477 U.S. at 255).
Initially, the moving party has the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met this burden, the nonmoving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id. Thus, to withstand a properly supported motion for summary judgment, the nonmoving party must identify specific facts and affirmative evidence that contradict those offered by the moving party. Anderson, 477 U.S. at 256-57. A party opposing summary judgment must do more than just rest upon mere allegations, general denials, ...