The opinion of the court was delivered by: Hillman, District Judge
This matter has come before the Court on the motion for reconsideration by defendant Charles Miller of the Court's June 6, 2008 Order and Opinion denying his motion for summary judgment on plaintiff's excessive force and assault and battery claims.
For the reasons expressed below, defendant's motions will be granted in part and denied in part.
The following facts were included in the Court's prior Opinion, and are helpful to restate here.
This case arises out of the shooting of plaintiff Anthony Owens by defendant Atlantic City Police Officer Charles Miller on July 19, 2003. On that day, plaintiff and his friend, Clifton Dees, had been gambling and drinking at several casinos on the Atlantic City, New Jersey boardwalk. At approximately 4:30 p.m., five minutes after plaintiff and Dees had left the Caesars Casino, plaintiff assaulted and attempted to rob a man who was walking on the boardwalk with his friends. Without getting any money from the man, plaintiff and Dees ran down a ramp and off the boardwalk.
At the same time, Officer Miller, who was dressed in a bike patrol uniform, had been on route to a call regarding a lost child on the boardwalk. Bystanders to the robbery flagged down Miller and informed him that a man had been assaulted and robbed by two black males, who had fled on foot down the ramp leading to Indiana Avenue. Miller radioed the station to report the robbery and that he had identified the suspects as two black males, one wearing a white t-shirt and jean shorts (Dees) and the other wearing a white t-shirt and jeans (plaintiff). Miller bicycled north on Indiana Avenue in the direction of the loading dock and valet area of Bally's Hotel and Casino. Miller spotted plaintiff and Dees running into the loading dock area, approached them from behind, alighted from his bicycle and drew his gun. The parties agree that the plaintiff approaches Miller from the loading dock area, they converge near the corner of a truck parked in the loading dock, and that a confrontation occurs.
At this point, the parties' version of events diverge and diverge dramatically. Plaintiff claims that Miller shot him in the back while he was trying to flee after the initial confrontation. Miller relates that after he identified himself as a police officer, plaintiff turned to face Miller and advanced in his direction. Miller contends that plaintiff did not heed Miller's warning to stop, and he brought his gun close to his body and attempted to kick plaintiff and push him away with his foot. Miller then contends that plaintiff grabbed Miller's leg, threw him onto the ground, and attempted to grab his gun. While plaintiff was trying to take Miller's gun, Miller claims that he fired four shots in rapid succession, with one bullet hitting plaintiff in the back. Miller relates that plaintiff then attempted to run away, but a short distance later fell, got up again, and then got down onto the ground in a prone position. Miller claims that he got to his feet, radioed dispatch that shots had been fired and that plaintiff had attempted to take his gun. Miller continued to point his gun at plaintiff until additional police units arrived.
A Bally's security camera captured the incident in the loading dock, and both parties agree that this incident lasted less than three seconds. Plaintiff claims that as a result of being shot in the back, he suffered "severe, permanent physical injuries, including but not limited to, the following: fractures of the posterior sixth and seventh ribs; a fracture of the sixth thoracic vertebrae; bilateral punctured lungs; significant lung damage, resulting in the need for a left-sided lobectomy; permanent diminished lung capacity . . . ." (Compl. ¶ 17.)
Plaintiff was indicted for robbery, conspiracy to commit robbery, and aggravated assault on a police officer. He pleaded guilty to robbery in violation of N.J.S.A. 2C:15-1 and resisting arrest by physical force or violence in violation of N.J.S.A. 2C:29-2(a)(3)(a). Plaintiff was sentenced to seven years for robbery and four years for resisting arrest, with the sentences to run concurrently. The shooting was investigated by the Atlantic County Prosecutor's Office and presented to the grand jury, who determined that the shooting of Owens was justified. The prosecutor's office also cleared Miller of any wrongdoing.
In the Court's June 6, 2008 Opinion and Order, the Court granted summary judgment in favor of all defendants on all of plaintiff's claims, except for plaintiff's claims against Officer Miller for excessive force in violation of plaintiff's state and federal constitutional rights and assault and battery under state law. Miller is seeking reconsideration of the Court's decision on these claims.*fn1 Specifically, Miller asks the Court to reconsider its decision that plaintiff's excessive force claim is not barred under Heck v. Humphrey, 512 U.S. 477 (1994),*fn2 and that there are issues of disputed fact with regard to whether Miller is entitled to qualified immunity. Plaintiff has opposed Miller's motion.
A. Standard for Motion for Reconsideration
Local Civil Rule 7.1(i) governs a motion for reconsideration. It provides, in relevant part, that "[a] motion for reconsideration shall be served and filed within 10 business days after the entry of the order or judgment on the original motion by the Judge or Magistrate Judge. A brief setting forth concisely the matter or controlling decisions which the party believes the Judge or Magistrate Judge has overlooked shall be filed with the Notice of Motion." A judgment may be altered or amended only if the party seeking reconsideration shows: (1) an intervening change in the controlling law; (2) the availability of new evidence that was not available when the court granted the motion for summary judgment; or (3) the need to correct a clear error of law or fact or to prevent manifest injustice. Max's Seafood Cafe ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999).
The purpose of a motion for reconsideration "is to correct manifest errors of law or fact or to present newly discovered evidence." Id. The motion may not be used to re-litigate old matters or argue new matters that could have been raised before the original decision was reached. P. Schoenfeld Asset Mgmt., L.L.C. v. Cendant Corp., 161 F. Supp. 2d 349, 352 (D.N.J. 2001). Mere disagreement with the Court will not suffice to show that the Court overlooked relevant facts or controlling law, United States v. Compaction Sys. Corp., 88 F. Supp. 2d 339, 345 (D.N.J. 1999), and should be dealt with through the normal appellate process, S.C. ex rel. C.C. v. Deptford Twp Bd. of Educ., 248 F. Supp. 2d 368, 381 (D.N.J. 2003).
1. Whether Heck v. Humphrey, 512 U.S. 477 (1994) Bars Plaintiff's Excessive Force Claim
Under Heck v. Humphrey, 512 U.S. 477 (1994), if a favorable judgment on a § 1983 damages claim would "necessarily imply the invalidity" of the plaintiff's conviction or sentence, the claim must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. Heck, 512 U.S. at 486-87. In determining that Heck did not bar plaintiff's excessive force claim by virtue of plaintiff pleading guilty to resisting arrest by physical force or violence, N.J.S.A. 2C:29-2(a)(3)(a), Miller argues that the Court did not properly consider that self-defense is a defense to that crime, and because plaintiff did not argue self-defense, a finding in favor of plaintiff on his excessive force claim would be inconsistent with his guilty plea. To support his argument, Miller contends that (1) the Court's reliance on a Third Circuit case, Nelson v. Jashurek, 109 F.3d 142 (3d Cir. 1997), which analyzed Pennsylvania law, and not New Jersey law, was in error, (2) the Court should follow its decision in another case addressing the Heck doctrine, Garrison v. Porch, ...