The opinion of the court was delivered by: Irenas, Senior District Judge
This § 1983 suit arises out of Plaintiff's altercation with Mullica Township police, and subsequent arrest and prosecution for disorderly conduct. Before the Court are Defendants' presently unopposed Motions for Summary Judgment.*fn1 For the reasons set forth below, the Motions will be granted; however, the Court will provide Plaintiff 75 days within which to locate a new attorney and file a motion to vacate the judgment.
Plaintiff's claims arise out of an incident occurring during the third of three separate visits Mullica Township police made to Plaintiff's residence on September 22, 2004.
The first encounter occurred at approximately 1:18 p.m. (Scott Cert. Ex. 3) Police Officer Anthony Trivelli (who is not a Defendant to this suit) arrived at Plaintiff's house with Plaintiff's girlfriend, Theresa Ann Heath Logan, "in reference to a domestic stand-by." (Id.) It is undisputed that Plaintiff and Logan were having a disagreement over her personal belongings. Logan came with Trivelli in order to retrieve her property from Plaintiff's house. (Id.; Pl's Dep. at p. 86-89) Plaintiff acknowledges that he and Officer Trivelli had a verbal "argument" but "[n]othing transpired from that incident." (Pl's Dep. at p. 89)
The second encounter occurred at approximately 7:21 p.m. (Scott Cert. Ex. 4) Defendant Officer Joseph Barbera responded to a call "in reference to a harassment complaint." (Id.) The record does not indicate who made the complaint. Plaintiff admits that he had an "argument" with Barbera, generally relating to Plaintiff's tumultous relationship with Logan,*fn2 who was not at Plaintiff's residence at the time. (Pl's Dep. at p. 102) Barbera's police report, which is not contradicted by Plaintiff's testimony, states the following:
Mr. Schiereck became more enraged, walking in and out of [his] residence yelling obscenities at the undersigned. He approached the undersigned several times trying to provoke some type of altercation . . . The undersigned never exited the police unit, and at one point Mr. Schiereck approached the undersigned, handed me his house phone, and advised me that an F.B.I. agent wanted to speak with me. On the phone was a sheriff's officer, a friend of Mr. Schierick's who obviously did not want to be brought into this incident. After I finished speaking with this subject, I attempted to hand the phone back to Mr. Schiereck, when Mr. Schiereck ripped the phone from my hand in a violent manner, threw the phone up against the 2nd floor of his residence, shattering it into pieces, and again began to verbally yell obscenities at the undersigned. At this time, the undersigned advised Mr. Schiereck's son that his father was advised of his options, and the undersigned left the property. (Scott Cert. Ex. 4) Plaintiff admits that he threw his phone against his house because he was "disgusted with [Barbera's] attitude." (Pl's Dep. at p. 103)
The last encounter, which ended with Plaintiff's arrest, began around 8:14 p.m. (Scott Cert. Exs. 4, 5) Dispatch advised Barbera that "Mrs. Schierick" had called about an "unknown problem" at Plaintiff's residence. (Scott Cert. Ex. 4) Barbera, believing that the person identifying herself as Mrs. Schierick was "possibly" Plaintiff's girlfriend Logan,*fn3 radioed Defendant Officer Paul Register to also respond to the scene. (Id.) Barbera reports that he asked Register to respond because Barbera had "prior knowledge of domestic assaults at this residence." (Id.)
Register was the first to arrive at Plaintiff's house; Barbera arrived shortly thereafter. (Scott Cert. Exs. 4, 5; Pl's Dep. at p. 109-10) Plaintiff was inside his house when they arrived, while a few friends were grilling food on his front porch. (Pl's Dep. at p. 110-11) Plaintiff's adult son was speaking with Register when Plaintiff came out of the house. (Scott Cert. Ex. 4, 5; Pl's Dep. at p. 111-12) The undisputed record indicates that Plaintiff's son informed Register that "his father was a bit out of control earlier but everything was okay." (Register Dep. at p. 30)*fn4
According to Plaintiff, when he came out of his house, Register was "pretty much in my face and yelling at me." (Pl's Dep. at p. 113) Plaintiff repeatedly asked the officers to leave his property and then turned to go back into his house. (Pl's Dep. at p. 115) He described what happened next:
[A]s I was walking, [Register] told [me] to-- where the "F" are you going, turn around, I'm talking to you and you dirtbag lowlife, just on and on and on.
And with that I turned around and said, just fucking leave, just leave, you have no right to be here, something in the sense of those words.
And with that, I went up, started to get up . . . on my deck. . . .
. . . I have a [railing] on my house where it goes around the deck. I kicked [part of the railing] and broke it. . . . and a chunk of wood went over to at least 20 feet past the [police] cars, to the left. . . . I was pissed. . . . I kicked [the wood]. And ...