The opinion of the court was delivered by: Hon. Jerome B. Simandle
This action, brought pursuant to 42 U.S.C. § 1983, arises out of Plaintiff's allegations that certain individual Defendants used excessive force when arresting him and failed to provide him with medical treatment while he was in custody, and that the municipal Defendants had a policy or custom of tolerating or encouraging such violations. Presently before the Court is Defendants' motion for summary judgment [Docket Item 35]. For the reasons explained below, the Court will grant in part and deny in part Defendants' motion.
On the evening of October 10, 2005, John Pettiford was walking in a wooded area behind a bar called Belly Busters in Pemberton Township when he encountered three men who knocked him to the ground, removed his shoes and socks, rifled through his pockets and stole his personal property. (Defs.' Br. Ex. F at 4.) Mr. Pettiford recognized two of his assailants as Gary Taylor and Todd Wills, but did not recognize the third assailant, who was a heavy-set African-American man in a dark shirt and blue jeans. (Id.) After the three men fled, Mr. Pettiford made his way to a nearby Wawa store, from which he called 9-1-1 and informed the dispatcher that he had been assaulted. (Id.)
At 9:35 p.m. that evening, Defendants Phillips and Geibel--both Pemberton Township police officers--were dispatched to the Wawa from which Mr. Pettiford had placed the telephone call in order to respond to Mr. Pettiford's complaint. (Id.) Mr. Pettiford described the circumstances of the assault, identified the two attackers he recognized (Mr. Taylor and Mr. Wills), and described the third unknown assailant to the police officers. (Id.) Immediately after speaking with Mr. Pettiford, Officers Phillips and Geibel set out with flashlights for the wooded area where the assault had taken place. (Id.) Close to the site where the assault had occurred, behind Belly Busters bar, Officers Phillips and Geibel encountered Mr. Pettiford's shoes and socks, and, closer to the bar, a group of five or six men drinking beers and smoking cigarettes. (Id.; Morrison Dep. at 137-38.) Among this group of men were Mr. Taylor and Mr. Wills, whom Mr. Pettiford claimed had assaulted him, and Plaintiff, William T. Morrison, whom the officers thought matched Mr. Pettiford's description of a heavy-set African-American male in a dark shirt and blue jeans. (Defs.' Br. Ex. F at 4.)
Upon spotting the group of men behind the bar, Officers Phillips and Geibel approached the group, ordering them to "get down on the ground." (Morrison Dep. at 141.) All of the men except for Plaintiff complied with the officers' order. (Defs.' Br. Ex. F at 4.) Plaintiff, who observed that the police officers had their guns drawn, put his hands in the air and stated, "I'll do anything that you want me to do... but I'm not laying in this mud." (Morrison Dep. at 145.)
Mr. Morrison and Officers Phillips and Geibel offer conflicting accounts of what happened next. According to the police officers, Mr. Morrison "continued to walk towards [their] direction after being advised to stop several times" and was advised that he was being placed under arrest for failing to comply with the officers' directions. (Defs.' Br. Ex. F at 4.)
In the officers' account, Mr. Morrison proceeded to resist their efforts to arrest him, "struggling" with the officers, "pushing and shoving Officer Geibel and [Officer Phillips]," and was "eventually taken down to the ground" and sprayed in the face with mace in order to subdue him as he continued to resist the officers' efforts. (Id.)
Plaintiff denies having approached, pushed or struggled with the officers. (Morrison Dep. at 145-149.) Instead, according to Plaintiff, as soon as he informed the officers that he would do anything but lay in the mud, the officers immediately approached him, grabbed his arms, and kicked him repeatedly in the legs. (Id. at 145.) Once Plaintiff "realized they were trying to hurt [him, he] laid down on the ground," (id. at 164), at which point one of the officers "just went frantic": the officers punched Plaintiff's hand ten times to knock the cigarette out of it, and handcuffed his hands behind his back. (Id. at 146.) With Plaintiff lying on the ground with his hands handcuffed behind his back, an officer punched Plaintiff repeatedly in the back "while the other officer stood on top of [his] face," and sprayed mace in Plaintiff's face. (Id. at 146.) After the officer sprayed mace in Plaintiff's face, one of the officers stood on his back. (Id. at 170.) Throughout this entire course of events, Plaintiff claims, he was "submissive," he "didn't try to fight back," and "did not struggle at all." (Id.)
At some point during or shortly after Plaintiff's arrest, several other Pemberton Township police officers arrived at the scene. (Id. at 171.) Plaintiff was taken to a police vehicle operated by Defendant Schuler, who drove Plaintiff to the police station. (Id. at 177-78.) Mr. Taylor and Mr. Wills, who had also been arrested at the scene, were transported to the police station in separate vehicles. (Defs.' Br. Ex. F at 5.) At the police station, Mr. Pettiford made a positive identification through a two-way window of Messrs. Morrison, Taylor, and Wills as the men who had assaulted him earlier that evening. (Id.) Plaintiff was charged with robbery by force, resisting arrest, and obstructing the investigation of a crime.*fn1 (Id. at 1.)
After Plaintiff was charged and fingerprinted, he was taken to a cell in the police station. (Morrison Dep. at 186.) Once Plaintiff was in the cell, he felt his back stiffen up and began to experience "extreme pain," and he called out to the officers that his "back was hurting... [and that he] needed some help." (Id. at 187-89.) Forty-five minutes later, four officers--Defendants Phillips, Geibel, Doyle and Wehman--arrived at Plaintiff's cell to transport Plaintiff from the police station to the Burlington County Jail. (Id. at 191.) When the officers approached, Plaintiff was laying down on the bench and, according to his deposition testimony, was unable to move. (Id. at 189, 192.) Notwithstanding the fact that Plaintiff complained to the officers about the pain in his back and requested medical assistance, the officers pulled him off the bench and dragged him on his back along the ground "all the way out the station." (Id. at 190-93.) According to Plaintiff, once the officers had dragged him out of the police station and to the police vehicle, Defendant Doyle put his hands around Plaintiff's head and, with a "hard and quick" gesture, twisted Plaintiff's neck. (Id. at 192, 194-95.) The officers then "threw" Plaintiff into one police vehicle, took him out of that vehicle, and put him in a different vehicle.*fn2
Plaintiff was transported to the jail, where he was escorted to the admissions section. (Id. at 200.) At the admissions section, Plaintiff was interviewed by the admissions officer, Lieutenant Gains, to whom he complained that he was experiencing back pain and could not walk or stand. (Id.; Defs.' Br. Ex. I at 1.) Lieutenant Gains informed Officer Doyle that Plaintiff could not be admitted to the jail without first being examined by a doctor on account of his back pain, (Morrison Dep. at 200-01), and Lieutenant Gains completed an "Admission Refusal Form" noting that "prisoner is in pain" and "cannot walk due to back injuries." (Defs.' Br. Ex. I at 1.) Officer Doyle then transported Plaintiff to Virtua Health Memorial Hospital. (Morrison Dep. at 201.)
At the hospital, Defendant Doyle and another police officer wheeled Plaintiff inside in a wheelchair. (Id. at 202.) Plaintiff was examined by a nurse and a doctor, who had Plaintiff do "a range of motion test" to examine the extent of his back injuries. (Id. at 203-04.) The doctor determined that Plaintiff had a lower back strain and gave Plaintiff 800 milligrams of Motrin. (Id. at 203-04.) According to Plaintiff, he continued to experience pain in his back for approximately a year after the October 10, 2005 incidents. (Id. at 204.) Following the physician's examination of Plaintiff at the hospital, Defendant Doyle transported Plaintiff back to the Burlington County Jail, where he was admitted without further incident. (Id. at 204-05.)
Plaintiff, initially proceeding pro se, filed two lawsuits arising out of the events of October 10, 2005 described above, which the Court consolidated in an Order entered on March 19, 2007 [Docket Item 26]. Plaintiff alleges that Defendant Officers Phillips, Geibel, Doyle, and Wehman violated his constitutional rights by using excessive force during his arrest and incarceration and by failing to provide Plaintiff with medical treatment; that Defendant Schuler violated Plaintiff's constitutional rights by failing to intervene when she witnessed Defendants Phillips and Geibel using excessive force upon Plaintiff; and that Pemberton Township and a number of its employees*fn3 violated Plaintiff's constitutional rights by promoting a policy or custom of encouraging police officers to use excessive force.
At the close of the pretrial discovery period, on February 29, 2008, Defendants filed the motion for summary judgment presently under consideration [Docket Item 35]. Plaintiff failed to timely oppose Defendants' motion, but in a letter dated April 1, 2008, he wrote the Court to request an enlargement of time to file his opposition to Defendants' motion. On April 24, 2008, the Court issued a Letter Order in which it noted that Plaintiff's request for an enlargement was untimely, but nonetheless granted Plaintiff an additional fourteen days to submit his opposition.
In a letter dated May 8, 2008--the day Plaintiff's opposition was due--Calvin Taylor, Esq., informed the Court that on May 7, 2008, he had been retained to represent Plaintiff, and requested an extension of two weeks to file his opposition to Defendants' motion. The Court replied to Mr. Taylor in a Letter Order dated May 15, 2008, wherein the Court stated:
It appears that you are not a member of the New Jersey bar. Accordingly, you can appear before this Court only if local counsel who is a member of the New Jersey bar (but who need not have an office in New Jersey) moves your admission pro hac vice and assumes the responsibilities of counsel in the case pursuant to Local Civil Rule 101.1 of the United States District Court for the District of New Jersey. If you do not have a copy of these rules, they are available on this Court's website, www.njd.uscourts.gov....
Under all the circumstances, and to eliminate any future confusion regarding Mr. Morrison's obligation to respond to the pending dismissal motion, I will enlarge Mr. Morrison's time to submit his opposition until May 22, 2008. No further extensions will be granted in light of the long delays already experienced. (Docket Item 37.) Mr. Taylor appears to have made no effort seek pro hac vice admission until May 22, 2008, the final date for Plaintiff to have filed his long-delayed opposition to Defendants' motion. On that date, Craig L. Thorpe, Esq., filed a motion in which Mr. Thorpe, a member of the New Jersey bar, agreed to act as co-counsel on behalf of Plaintiff and requested that Mr. Taylor be admitted to appear pro hoc vice on behalf of Plaintiff [Docket Item 39]. That same day, the Clerk of the Court terminated Mr. Thorpe's motion due to the fact the pleading did not contain a proper electronic signature. Five days later, on May 29, 2008, Mr. Thorpe filed a properly signed motion for pro hoc vice admission [Docket Item 38].*fn4
Mr. Taylor also attempted to submit a response in opposition to Defendants' motion. This document was allegedly hand-delivered to the Clerk of the Court on May 22, 2008.*fn5 The document was signed by Mr. Taylor, but not by Mr. Thorpe, who was required to "personally sign all papers submitted to the Court or filed with the Clerk" under Local Civil Rule 11.1.*fn6
A. Plaintiff's Opposition
As a threshold matter, the Court addresses Defendants' argument that their motion should be deemed unopposed on account of the deficiencies in the pleading submitted by Mr. Taylor. In support of this argument, Defendants note that the document submitted by Mr. Taylor was not signed by Mr. Thorpe, in violation of L. Civ. R. 11.1, and, owing to Mr. Taylor's delay in seeking pro hoc vice admission, Mr. Taylor was not permitted to serve as Mr. Morrison's counsel at the time he attempted to file his opposition brief. In addition, Defendants note, Mr. Taylor's submission fails to comply with Local Civil Rule 56.1, in that his pleading contains no "statement which sets forth material facts ...