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Apata v. Howard

September 23, 2008


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



Presently before the Court are Motions for Summary Judgment filed individually by Officer James Howard of the Willingboro Police Department and Troy Davis, pro se. Plaintiff Mosimable Apata initiated this action pursuant to 42 U.S.C. §§ 1983, 1985, and 1986. Apata claims that Officer Howard violated his constitutional rights in the context of an investigatory stop and two arrests, all of which occurred during a two day span in June 2003. Apata also asserts state law claims against Officer Howard and Davis.*fn1 For the reasons stated below, the Court will grant in part and deny in part Officer Howard's Motion and will grant Davis's Motion.*fn2


On June 26, 2003, several events occurred, the earliest of which did not involve Apata. However, because the earliest incident is relevant to the events that followed, the Court begins its recitation of the facts there.

On the morning of June 26, Officer James Howard, a patrolman with the Willingboro Police Department, was dispatched to Torrington Lane in the Twin Hill Park section of Willingboro. (Def.'s Ex. A, 21:17-22-10.) According to the dispatcher, a large group of males was assaulting a single male at that location. (Id. at 21:21-22:4.) When Officer Howard arrived, he spoke with the victim, Tyrell Baker, and a witness to the assault, Eli Johnson. (Id. at 23:12-24:11.)

Baker and Johnson told Officer Howard that the group of males assaulted Baker by punching him, kicking him, and hitting him with sticks. (Def.'s Ex. B.) The victim told Officer Howard that his assailants were driving in a red Honda Civic and a red Dodge Neon before exiting the vehicles to assault him. (Id.) Another witness approached Officer Howard at the incident scene and reported that she observed the license plate number of the Dodge Neon, which she provided. (Id.)

While Officer Howard was searching for the Civic and the Neon, he received a radio call informing him that there was a man with a gun in Mill Creek Park. (Def.'s Ex. A, 30:13-31:6.) He responded to the call and was the first officer to arrive on the scene. (Id. at 31:7-32:8.) Before the Court discusses Officer Howard's actions at Mill Creek Park, it will outline how Apata arrived at the park and came to be associated with the individuals in the Civic and the Neon.

On June 26, Apata was scheduled to graduate from Willingboro High School. (Def.'s Ex. C, 58:9-59:3.) That morning, Apata went to the school at about 9:00 a.m. to obtain his tickets for the graduation ceremony. (Id. at 58:4-59:16.) Upon arrival, Apata was informed that it was too early to pick up the tickets and told to return to the school later. (Id. at 59:20-60:2.) Apata went back to the school twenty minutes later and was again instructed that it was too early to obtain his tickets. (Id. at 60:16-61:25) At that point, Apata departed the school grounds with friends, riding in a red Honda Civic. (Id. at 62:17-63:7; 63:18-64:9; 65:11-17.) The Civic was accompanied by a red Dodge Neon. (Id. at 81:9-22.)

As the Civic prepared to make a left turn, Apata saw another red Honda and a green Ford Explorer. (Id. at 68:8-19.) The passengers in those two cars were "waving" and "screaming" at the Civic in which Apata was traveling. (Id.) The individuals in the Civic responded in kind. (Id. at 70:20-71:3.) After the Civic completed the left turn, it proceeded to Mill Creek Park with the other red Honda and the green truck following behind. (Id. at 70:4-19.) Once all of the vehicles stopped inside the park, occupants of each Honda exited the vehicles and began arguing.*fn3 (Id. at 72:7-73:19.) Meanwhile, Apata observed that an individual from the other red Honda had a gun; Apata advised him to put the weapon away. (Id. at 74:5-75:2.) The gun possessor ran into the woods with the gun and returned immediately thereafter, apparently without the gun. (Id. at 74:18-75:2; 75:11-15.) As Apata and his friends prepared to leave Mill Creek Park in the red Civic, they saw Officer Howard running towards the assembled vehicles. (Id. at 82:18-83:1.)

Upon arriving at Mill Creek Park, Officer Howard observed several things, including a relatively large group of individuals,*fn4 the two vehicles that were described to him earlier at the scene of Baker's assault, and Baker and his mother "screaming that someone had pulled a gun out on them" and pointing at the large group of individuals.*fn5 (Def.'s Ex. A, 31:22-32:8.) Although Officer Howard was responding to the report of a man with a gun, he did not immediately observe anyone with a firearm. (Id. at 32:22-33:7.) The officer ordered everyone standing outside to the ground and ordered everyone inside a vehicle, including Apata, to put their hands up outside of the cars. (Id.)

Officer Howard approached the Honda Civic in which Apata was sitting with his weapon pointed towards Apata. (Id. at 33:17-34:4; Def.'s Ex. C, 85:4-19.) Apata heard Officer Howard instruct him to exit the vehicle. (Def.'s Ex. C, 86:13-16.) Initially, Apata responded to the officer by stating "I ain't getting out." (Id. at 86:23-87:2.) After observing at least ten additional police vehicles arriving to assist Officer Howard, Apata exited the Civic voluntarily. (Id. at 87:22-88:21.)

According to Apata, Officer Howard "grabbed" him, "threw [him] on the ground and then he had his knee inside [Apata's] back." (Id. at 88:13-89:8.) In the midst of this sequence, Apata alleges, Officer Howard "ripped [his] shirt right off." (Id. at 90:13-20.) Finally, Apata claims that Officer Howard handcuffed him and "threw [him]" in the rear of the police vehicle. (Id. at 89:12-90:4.) Officer Howard provided a contrasting version of this sequence; he testified that he "ordered" Apata to lay on the ground, handcuffed him, searched him for a weapon, and "placed" Apata in a patrol car. (Def.'s Ex. A, 37:1-13.) No weapon or other contraband was found on Apata's person. (Id. at 42:5-10.)

While Apata remained in the rear of the patrol car, Willingboro police officers handcuffed a number of his companions and placed them on the ground. (Def.'s Ex. C, 89:12-90:4.) Officer Howard brought the victim of the morning assault at Torrington Lane, Tyrell Baker, to view the people in handcuffs. (Id. at 89:23-90:4.) Baker informed Officer Howard that Apata was not involved in the morning incident. (Id. at 90:6-12.) About four minutes later, Officer Howard released Apata from the patrol car and instructed him to go home. (Id. at 90:6-12; 94:24-95:5.) Apata estimated his total confinement lasted no more than ten minutes. (Id. at 94:20-23.) Apata retrieved his torn shirt and began walking home with Daytomus Harris, who had also been permitted to leave by the police officers. (Id. at 95:11-96:12.) Contrary to Apata's testimony about an orderly exit from the park, Officer Howard testified that Apata was yelling and initially refused to leave. (Def.'s Ex. A, 46:10-18.) Officer Howard confirmed that Apata ultimately left the incident scene. (Id. at 48:25-49:4.)

With any imminent threat at Mill Creek Park defused, Apata (on foot) and Officer Howard (in his vehicle) were each leaving the park when a second interaction between the pair ensued. (Def.'s Ex. C, 96:1-97:2.) According to Apata, Officer Howard exited his vehicle and told Apata "I need to speak to you for a second." (Id. at 96:13-97:2.) Apata explained that he did not wish to speak with Officer Howard and thus attempted to walk away, but Officer Howard blocked his walking path three times. (Id. at 97:4-21.) After Apata's third attempt to walk past Officer Howard, the officer arrested him for disorderly conduct. (Id.) Officer Howard disputes the foregoing description of the events preceding Apata's arrest, instead testifying that he arrested Apata for yelling, cursing, and behaving in a disorderly fashion. (Def.'s Ex. A, 51:1-52:4.) Apata claims that Officer Howard carried out the arrest by pushing him onto the hood of the police vehicle, applying handcuffs, throwing him into the rear of the police car, and slamming the car door onto his left knee, which had been protruding through the open door. (Def.'s Ex. C, 98:3-13.) Officer Howard denies applying any physical force to Apata beyond handcuffing him. (Def.'s Ex. A, 53:3-4.) Apata was transported to the police station where he was detained for no more than thirty minutes and issued a citation for disorderly conduct. (Def.'s Ex. C, 102:11-15; 104:14-17.) After being released from the police station, Apata walked home. (Id. at 107:17-108:1.)

Apata then returned to Mill Creek Park at the request of his friend, Aldo Palmer, to retrieve Palmer's red Dodge Neon.*fn6

Driving the Neon, Apata returned to Willingboro High School to pick up his graduation tickets. (Id. at 108:15-109:18.) Upon exiting the school, Apata was confronted by two men he had never met before, whom he later learned were co-Defendants David Fortenberry and Troy Davis. (Id. at 109:20-110:6; 113:8-13.) According to Apata, one of the men accused Apata of attacking his nephew and called Apata a "little nigger." (Id. at 109:20-110:6.) Apata responded that he was not involved in attacking the man's nephew. (Id.) After a further exchange of words, Davis threw the keys to the red Neon onto the roof of the school. (Id. at 116:17-117:14.) At that point, Apata ran back inside the school building. (Id. at 117:16-19.) Apata then returned outside; he and the two men resumed directing hostilities at each other. (Id. at 117:16-21; 120:21-121:18.) All three men assumed fighting postures, but no physical altercation ultimately ensued. (Def.'s Ex. D; Def.'s Ex. C, 119:24-25.) School security personnel intervened to separate Apata and the two men; two Willingboro police officers, neither of whom was Officer Howard, arrived shortly thereafter. (Def.'s Ex. C, 123:23-124:20; 125:20-126:8.) The officers spoke to all three men briefly but no arrests were made. (Id. at 124:13-125:2; 126:17-127:6.)

Later in the afternoon, still on June 26, Fortenberry went to the Willingboro police station to file a criminal complaint against Apata for threats purportedly made during the confrontation at the high school. (Def.'s Ex. E, 31:15-32:6.) Officer Howard directed Fortenberry to return the next day if he wished to file a complaint because the officer was occupied with paperwork related to the Mill Creek Park incident. (Id. at 32:7-33:5.) Apata also went to the Willingboro police station on June 26 with the intent of filing a complaint about his dispute with Fortenberry and Davis, but he did not ultimately do so. (Def.'s Ex. C, 141:14-25.)

The next day, June 27, Fortenberry and Davis returned to the Willingboro police station. (Def.'s Ex. E, 35:2-12.) They filed separate affidavits, each certifying that Apata threatened to summon gang members from Trenton to kill them. (Id.; Def.'s Ex. F; Def.'s Ex. G.) Apata is uncertain of exactly what he said to the two men during the argument, but denies threatening their lives. (Def.'s Ex. C, 121:19-122:2.) He did recall telling the two men he would "F [them] up." (Id. at 121:12-18.) Principal Tull of Willingboro High School pointed to Fortenberry and Davis as the instigators of the confrontation, but admitting hearing Apata say "he was going to kill [Fortenberry]." (Def.'s Ex. D.)

Officer Howard read the sworn statements and Apata's criminal history to a magistrate over the telephone. (Def.'s Ex. A, 75:3-77:5.) The judge determined there was probable cause to support a charge of terroristic threats and issued a warrant for Apata's arrest, which Officer Howard executed at Apata's home on the same day. (Id. at 77:6-15.) Apata was transported to the Willingboro police station and then to the Burlington County Jail where he remained for six hours, until posting bail. (Def.'s Ex. C, 136:13-20; 138:14-139:12.) Ultimately, Apata entered into a mediation agreement with Fortenberry and Davis whereby the terroristic threats and disorderly conduct charges were resolved without convictions. (Def.'s Ex. J.)

As a result of the June 26 arrest, Apata reports continuing soreness in his left knee. (Def.'s Ex. C, 105:10-20.) In response to interrogatories, Apata claimed that he suffered bruises and contusions on his knee and wrists during the June 26 arrest, but he stated during his deposition that he did not suffer any knee bruising and did not mention any trauma to his wrists. (Def.'s Ex. I ¶ 10; Def.'s Ex. C, 105:5-9.) Apata indicated that he fears the Willingboro police as a result of the foregoing events and is hesitant to leave his home because of that fear. (Def.'s Ex. I. ¶ 10; Def.'s Ex. C, 151:25-153:2.) Lastly, Apata claims his "reputation has been soiled." (Def.'s Ex. I. ¶ 10.)


"Under Rule 56(c), summary judgment is proper 'if 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, 322 (1986) (quoting Fed. R. Civ. P. 56(c)).

In deciding a motion for summary judgment, the Court must construe the facts and inferences in a light most favorable to the nonmoving party. Pollock v. Am. Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986). "'With respect to an issue on which the nonmoving party bears the burden of proof, the burden on the moving party may be discharged by 'showing'-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case.'" Conoshenti v. Pub. Serv. Elec. & Gas, 364 F.3d 135, 145-46 (3d Cir. 2004) (quoting Celotex, 477 U.S. at 325). The role of the Court is "not . . . to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).


Officer Howard raises a procedural concern that requires attention before proceeding to the merits of this action. Specifically, he argues that Apata failed to provide a statement of material facts in conformity with Local Civil Rule 56.1. (Def.'s Reply Br. at 2.) Thus, according to Officer Howard, Apata cannot defeat this motion for summary judgment. (Id.)

At the time the litigants submitted their filings, Rule 56.1 required each party contesting a motion for summary judgment to submit a statement of material facts that specifically identifies "material facts as to which there exists or does not exist a genuine issue." L. Civ. R. 56.1 (2008) (amended Sep. 4, 2008).*fn7

Rule 56.1 is intended to facilitate the expeditious resolution of matters before the Court. See Cataldo v. Moses, 361 F.Supp.2d 420, 426 (D.N.J. 2004). When parties adhere to the Rule, the Court's burden to scour the record to identify the pertinent facts is commensurately reduced. See Comose v. N.J. Transit Rail Operations, Inc., No. 98-2345, 2000 WL 33258658, at *1 (D.N.J. Oct. 6, 2000). Although compliance with Rule 56.1 is mandatory, the Court retains discretion to excuse a party's non-compliance when the interests of justice so require, particularly when there is no evidence of bad faith. Kee v. Camden County, No. 04-0842, 2007 WL 1038828, at *5 (D.N.J. Mar. 30, 2007).

Here, Apata submitted a paragraph-by-paragraph response to Officer Howard's Rule 56.1 statement. The Court agrees with Officer Howard that Apata's document included a number of ambiguous assertions and raised legal arguments that have no place in a Rule 56.1 statement. Although Apata's filing could be more clear, the Court was provided with sufficient guidance to understand his version of the facts and there is no indication of bad faith on his part. Thus, the Court exercises its discretion to proceed to the merits of this motion.


Apata raises a series of federal claims against Officer Howard pursuant to 42 U.S.C. ยงยง 1983, 1985, and 1986. Those claims include excessive force (Count I), unlawful detention (Count II), false ...

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