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Simmons v. Timek

December 19, 2007


The opinion of the court was delivered by: Hillman, District Judge



This matter has come before the Court on Defendants' motions for summary judgment, and Plaintiff's cross-motion for summary judgment. For the reasons expressed below, Defendants' motions will be granted, and Plaintiff's motion will be denied. Also pending before the Court are six discovery motions and a separate motion to dismiss all filed by Plaintiff. They will be addressed below as well.


Pursuant to 42 U.S.C. § 1983, plaintiff, Richard Simmons, pro se, filed several separate lawsuits, which have since been consolidated, concerning two arrests that occurred on October 28, 2003 and January 21, 2004 in Atlantic City, New Jersey. Simmons claims that on both occasions, the defendant police officers used excessive force in effecting his arrest, and they falsely arrested him. Simmons also claims that the City of Atlantic City and Mayor Langford failed to properly train the police officers, and they failed to enforce a strict policy against excessive force.

As a result of the pro se prisoner complaint screening process, which is conducted pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A, Simmons' false arrest claims were dismissed without prejudice.*fn1 Following a long and motion-filled discovery process on his remaining claims, all defendants have now moved for summary judgment in their favor. Simmons has stated that he does not oppose their motions, but he has filed his own cross-motion for summary judgment.


A. Jurisdiction

This Court's jurisdiction is pursuant to 28 U.S.C. § 1331.

B. Summary Judgment Standard

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, or vague statements. Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001). If review of cross-motions for summary judgment reveals no genuine issue of material fact, then judgment may be entered in favor of the party deserving of judgment in light of the law and undisputed facts. See Iberia Foods Corp. v. Romeo Jr., 150 F.3d 298, 302 (3d Cir. 1998) (citation omitted).

C. Analysis

1. The Two Incidents

Simmons' claims revolve around two arrests that occurred a few months apart. The first arrest took place on October 28, 2003. According to Officer Timek's police report, on that day, Timek observed Simmons, who Timek knew from previous unrelated CDS investigations, walking in the high crime area of Belfield and New York Avenues in Atlantic City. After observing Simmons, Timek discovered that Simmons had an active warrant, and he notified dispatch that he and Officer Dodson, who is not a defendant in this action, would be stopping Simmons. Timek pulled along side Simmons, who started screaming obscenities at the officers and stating that the police were harassing him for no reason. After Timek stopped and got out of his vehicle, Timek informed Simmons of his outstanding warrant, and asked him to put his hands on his head because Timek was placing him under arrest. Timek performed a protective pat down and found a open bottle of alcohol in Simmons' back pocket. As Timek retrieved the bottle, Timek reports that he felt Simmons' muscles flex in an attempt to turn his body around to face Timek. As Simmons turned, Simmons shouted obscenities and swung his elbows in the air in an attempt to strike Timek. Timek attempted to hold onto Simmons by his coat, but he could not hold on. Officer Dodson helped Timek bring Simmons to the ground.

While on the ground, Timek reports that Simmons began to violently resist the officers' control by twisting and turning his arms and body. Timek and Dodson told him numerous times to stop resisting, but Simmons did not comply. Timek reports that it was difficult to maintain a grip on Simmons because of his strength combined with Simmons being slippery with rain and sweat. While he was resisting, Simmons continued to shout, "Get the f--- off me," and Timek reports that at one point, Simmons struck him in the facial area with a closed fist. Timek also reports that Simmons tried to spit on the officers. Further, Timek reports that at one point, Simmons "took hold of Officer Dodson's shirt (by his neck area) and began pulling him down towards him. I attempted to deliver several knee strikes to the suspect's thigh area but am not sure how much contact I made due to the suspect's movement (resisting)." During this incident, Timek informed dispatch two times that Simmons was resisting arrest. Eventually, the K-9 officer arrived on the scene with back up units, and Timek reports that Simmons began to comply once he heard the police dog. Timek then handcuffed Simmons.

Dodson transported Simmons to the station, and Timek observed Simmons hit the divider and the windows. Once at the station, Timek reports that Simmons stated that if he was let go, he would "snitch" on someone who had narcotics in his possession. Simmons also stated that if he was not let go, he would go to Internal Affairs and tell them that the police "f---ed him up for no reason." Officer Dodson's police report relates the same events.

Simmons was charged with resisting arrest, aggravated assault, and contempt of court. On February 16, 2005, Simmons pleaded guilty to resisting arrest, and sentenced to 60 days in prison.

Although not included in his original complaint, in his motion for summary judgment, Simmons sets forth a different version of events for his October 28, 2003 arrest. Simmons states that two marked police cars with their lights off followed him down an alley. Simmons claims that Timek jumped out of the vehicle and slammed him across the vehicle and told two other individuals to leave the area. Once the two people left, Simmons claims that Timek punched him on the side of the face, knocking him to the ground. While he was on the ground, Simmons states that Timek and Dodson kicked and punched him in the face, head, and body. Simmons relates that he grabbed the boots and fists of both officers to prevent further injury. Simmons states that he was knocked unconscious, and when he regained his consciousness, he was being lifted into the back of the patrol car. Simmons states that he vigorously requested medical treatment, but it was denied. Simmons also states that the transcripts of the dispatch communications tapes will show that Timek did not call two times for assistance. Simmons states that his injuries included a black eye and multiple abrasions on his face.

The second incident at issue here occurred on January 21, 2004. According to the police report of Officer Stites, who is not a defendant in this action, dispatch received a call reporting that a man had been assaulted by a group of males on Pacific Avenue. While on route to the scene, a female, who was standing next to an elderly male, flagged down Stites to report that the man next to her, who is legally blind, had been attacked and robbed by a black male. The female stated that she observed the black man throw the elderly man to the ground, put his knee on his back, and go through his pockets, stealing forty-two dollars. The female witness described the black man as wearing a silver colored jacket, and indicated that he had run away from the area. An unidentified person in a vehicle pulled up to the officer and informed him that a group of males with guns had run into Hermans Bar, which is located on New York Avenue around the corner from Pacific Avenue. Officer Stites reported this information to dispatch, and proceeded to Hermans Bar.

While Stites was on route to Hermans, Officers Timek and Miller had arrived on the scene and entered the bar. According to the officers' police reports, they saw a black male wearing a black jacket with a silver colored hooded sweatshirt underneath standing by the door. Timek identified the man as Simmons, and both he and Miller noted that Simmons looked nervous and began to back away. Timek observed Simmons drop several items from his left hand, and upon closer examination, Timek identified the items as U.S. currency. Timek also reports that he observed Simmons reach deeply into his front right pants pocket with his right hand, and fearing that Simmons might have a weapon, Timek took hold of Simmons right hand and ordered him to release it. At this point, Simmons began to physically resist Timek's control by flailing his arms with closed fists and shouting profanities. Timek then placed Simmons in a compliance hold and escorted Simmons outside the bar.

Stites arrived on the scene when Timek was coming out of the bar with Simmons. He reports that he saw Simmons physically resisting Timek. The female witness, who had also arrived outside the bar when Simmons was being escorted out by Timek, identified Simmons as the elderly man's attacker. Stites approached Timek, who was standing with Simmons and several other officers, and advised that the female witness had identified Simmons as the attacker. Stites reports that when officers attempted to handcuff Simmons, he resisted the officers. Timek also reports that as he attempted to handcuff Simmons, Simmons continued to physically resist. After several verbal commands, Simmons still did not comply. Timek reports that as he was about to lose his grip on Simmons, he managed to bring him to the ground, and with Stites' assistance, handcuffed Simmons. Timek found $7.00 in Simmons' right front pants pocket.

Stites then spoke again to the female witness and the elderly victim. The female witness again confirmed that it was Simmons who had robbed the man, and the elderly man realized that he still had some money in his pocket, and that only $12.00 had been stolen. Stites transported them to the station for statements.

At the same time, an ambulance had arrived to treat Simmons for an injury to his mouth area. Timek reports that because Simmons began spitting blood at the officers on the scene, was shouting, and was attempting to get up off the ground, Timek chose to transport Simmons to the Atlantic City Medical Center for treatment. Once there, Timek reports that Simmons spit blood at him and Miller, who had responded to the medical center to assist Timek. A spit mask was placed on Simmons by the medical staff, but Simmons continued to struggle and act "unruly." Simmons was placed on a stretcher, and he still continued to scream obscenities at the officers and hospital staff. At one point, Simmons ...

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