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Abrahante v. Johnson

July 14, 2009


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


This action, brought pursuant to 42 U.S.C. § 1983, arises out of Plaintiff's allegations that police officers employed excessive force during his arrest and that Defendants Patrolman Joseph Johnson, Corporal Gerald Krivda, Sergeant Orlando Pagan, Patrolman Kirk Cooksey, and Patrolman Stephen Pagnotto (collectively, "Defendants") failed to intervene. Plaintiff does not claim that any particular Defendant is the officer who employed excessive force; rather, Plaintiff's theory of liability rests on Defendants' failure to intervene when Plaintiff was subjected to excessive force by unnamed police officers, despite having the duty and opportunity to do so. Presently before the Court is Defendants' motion for summary judgment on grounds of qualified immunity and upon the merits [Docket Item 31]. The principal issues are: (a) whether the Plaintiff has proffered sufficient evidence of the violation of his constitutional right to be free from excessive use of force in which bystander officers fail to intervene; and (b) whether a reasonable officer in Defendants' position under the circumstances presented herein would have known that the failure to intervene violated Plaintiff's constitutional rights. For the reasons discussed below, the Court will grant in part and deny in part Defendants' motion.


A. Facts

1. Facts Prior to Plaintiff's Arrest

On the morning of May 14, 2006, Plaintiff Arturo P. Abrahante, Jr. ("Plaintiff") committed an armed robbery of a Gulf gas station located on Route 130 in Carneys Point, New Jersey, armed with a handgun. (Abrahante Dep. at 21:21-22:2.) Plaintiff fled the scene on foot and entered a nearby wooded area. (Id. at 22:3-7.) Upon entering the woods, Plaintiff dropped a handgun, a cell phone and money. (Id. at 24:24-25:6.) When Plaintiff initially entered the woods, police were not yet in pursuit. (Id. at 22:8-11.) According to Plaintiff, on the day of the robbery he wore brown jeans, white sneakers, a black t-shirt and a baseball cap. (Id. at 24:12-15.)

While on patrol some time after 7:04 a.m., Defendants Cpl. Gerald Krivda and Ptlm. Joseph Johnson, officers of the Carneys Point Township Police Department, received a call from dispatch reporting that the Gulf gas station had just been robbed at gun point. (Defs.' Br. Ex. B at 1.) Dispatch reported that the subject was running southbound on Route 130. (Id.) The accused was described as a male subject approximately 5 feet 4 inches tall and wearing a brown jacket and jeans. (Defs.' Br. Ex. D at 1-2.) Krivda and Johnson traveled northbound on Route 130 seeking to intercept the suspect. (Defs.' Br. Ex. B at 1.)

Upon arrival at the scene, a male individual in the gas station parking lot pointed to the wooded area to the south near a softball field. (Id.) Krivda and Johnson initiated a search within the woods. (Id.) Krivda radioed his dispatcher and requested assistance from the New Jersey State Police and the Bridge police*fn1 in order to have K-9 units at the scene. (Id.) Police cars from neighboring districts and from Bridge police arrived at the scene to assist in the investigation and officers established a perimeter. (Defs.' Br. Ex. D at 2.)

At approximately 7:20 a.m., Defendant Sgt. Orlando Pagan of the Penns Grove Police Department responded as additional backup. (Defs.' Br. Ex. F.) Pagan took a position to the north of where the other officers had entered the wooded area to conduct their search. (Id.) While searching the area, Sgt. Pagan observed "a black male subject" approximately 300 feet from his position running northbound along the fence line of the softball field. (Id.) Pagan yelled for the subject to stop before giving chase and continuing to order the subject to stop. (Id.) The subject ignored Pagan's command and continued to run northbound before entering the woods, where Sgt. Pagan lost sight of him. (Id.) Sgt. Pagan radioed the other units to inform them of his pursuit and location, and that the suspect was now wearing "a dark color blue tee-shirt." (Id.)

Defendant Ptlm. Stephen Pagnotto also responded to the original dispatch regarding the robbery and assumed a stationary position near the intersection of Route 130 and Route 140. (Defs.' Br. Ex. E.) While stationed on Route 140 just east of the intersection, Pagnotto was approached by a female in a vehicle who alleged to have been at the gas station at the time of the robbery. (Id.) She gave an account of the suspect's escape route which conflicted with the information that the Carneys Point officers had received. (Id.) During Pagnotto's conversation with the female driver, he received Sgt. Pagan's transmission indicating the suspect's position and that Pagan was in pursuit. (Id.) Pagnotto then responded to the location that Sgt. Pagan reported and assisted in the investigation. (Id.)

Upon arrival of New Jersey State Police K-9 units, all other officers exited the woods. (Defs.' Br. Ex. B at 1.) Sgt. Pagan provided the K-9 units with information for their search and took position on the perimeter on Route 130. (Defs.' Br. Ex. F.) As the K-9 units were searching the woods, Cpl. Krivda observed "large amounts" of U.S. currency near the shoulder of road. (Defs.' Br. Ex. B at 2.) Approximately twenty minutes into the K-9 units' search, Krivda was informed that a silver handgun and a brown hooded sweatshirt had been found in the woods. (Id.) All responding law enforcement agencies continued the search for "several hours" before it was terminated pending further investigation. (Id.)

At approximately 2:11 p.m. that afternoon, Carneys Point Police received a phone call from Elaine M. Wright, owner of Clemente's Farm on Route 130. (Defs.' Br. Ex. D at 2.) Wright reported seeing a male wearing a dark shirt and dark pants exiting her barn and crossing her property eastbound toward Manor Avenue. (Defs.' Br. Ex. B at 2.) The barn was located "just a third of a mile" from the location of the earlier police search for the robbery suspect. (Id.) Cpl. Krivda, Ptlm. Johnson, and units from other districts responded to the location. (Defs.' Br. Ex. D at 2.) Krivda was proceeding on foot in a field behind Manor Avenue when a resident informed him that the suspect had run past the rear of his house. (Defs.' Br. Ex. B at 2.) There is some dispute as to what happened next with respect to Plaintiff's apprehension and arrest.

2. Defendants' Account of the Arrest

Cpl. Krivda reports that upon turning the corner around the resident's house, he "observed a Hispanic male wearing a black T-shirt [and] black pants running with mud totally covering his body." (Id.) According to Krivda, he "yelled at the subject for him to stop running and told him he was under arrest." (Id.) The suspect "looked back at [Krivda] and ran into a dense area of trees." (Id.) The suspect attempted "to elude [Krivda] by running further [into] the dense wooded area" (Id.) Believing that the suspect might still have been armed, Krivda waited for him to exit the woods. (Id.)

According to Cpl. Krivda, he again yelled and ordered the suspect to stop running, after which the suspect "appeared to be reaching into his waist band." (Id.) Krivda reports that "[o]ut of fear for [his] safety as well as [that of] other Officers at the scene" he tackled the suspect "to the ground with only enough force to lawfully effectuate his arrest." (Id.) According to Cpl. Krivda, Plaintiff "violently resisted and attempted to pull his hands from [Krivda's]" grasp. (Id.) Defendant Ptlm. Kirk Cooksey, of the Pennsville Township Police Department, "assisted [Krivda] further by handcuffing the suspect." (Id.)

Ptlm. Cooksey reported that he was "directly behind" Cpl. Krivda when Krivda tackled Plaintiff. (Defs.' Br. Ex. C at 1.) According to Cooksey, he "jumped on the subject" and he and Krivda "began to struggle with the subject as he would not comply with [their] instructions." (Id.) Cooksey states that "the suspect was reaching in his waistband as if he was attempting to conceal, discard evidence or produce a weapon." (Id.) Cooksey then "grabbed the accused's left arm and placed it in a wrist lock compliance hold and pulled it behind his back." (Id.) According to Cooksey's account, Cpl. Krivda "grabbed [Plaintiff's] right arm and after a brief struggle the accused was handcuffed successfully." (Id.)

After reporting to Clemente's Farm, Ptlm. Johnson heard a radio transmission reporting that a District 5 unit "had the suspect in a farm field just behind Manor Ave." (Defs.' Br. Ex. D at 2.) Johnson reported that "Cpl. Krivda also called out on location." (Id.) Upon arrival at Manor Avenue, Johnson received another radio transmission stating that the suspect was in custody. (Id. at 2-3.) Ptlm. Johnson reports that he advised the suspect (Plaintiff) of his Miranda rights as he, Cpl. Krivda and Ptlm. Cooksey escorted him to a patrol unit. (Id. at 3.)

Sgt. Pagan reports that at approximately 2:14 p.m. he reported to Manor Avenue in response to the possible sighting of the suspect. (Defs.' Br. Ex. F.) According to his account, Pagan assisted Carneys Point Police officers in the search at this location. (Id.) After the suspect was reported to be in custody, Sgt. Pagan went to the location of the arrest and identified Plaintiff as the same individual that ran from him earlier that day. (Id.)

According to Cpl. Krivda, after Plaintiff was transported to the police station, Plaintiff complained of pain in his left arm. (Defs.' Br. Ex. B at 2.) An ambulance was dispatched to the station and Plaintiff was transported to Salem County Hospital for diagnosis. (Id.) Cpl. Krivda escorted the ambulance to the hospital and while there he observed that Plaintiff had scratches on his arms and that his face was cut. (Id.) Cpl. Krivda's account surmises that the scratches and cut "could have occurred while running in the woods as [the officers] chased [Plaintiff] earlier in the day." (Id.)

3. Plaintiff's Account of the Arrest

According to Plaintiff, after he initially ran into the woods and dropped the handgun, he "kept running because [he] heard sirens." (Abrahante Dep. at 22:17-18.) Mr. Abrahante did not see any police officers on foot in the woods, but he saw a police vehicle and heard K-9 units. (Id. at 23:1-10.) Upon seeing the police vehicle and hearing the K-9 units, Mr. Abrahante did not voluntarily exit the woods. (Id. at 23:11-15.) During the several hours between the ...

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