The opinion of the court was delivered by: Wolfson, District Judge
Presently before the Court is a motion filed by Defendant Officer David Neiderman ("Neiderman" or "Defendant"), to dismiss Plaintiff Charles Hendrix, Sr.'s ("Hendrix" or "Plaintiff") Complaint.*fn1 Plaintiff's claims arise out of an alleged physical altercation between Hendrix and defendant officer which resulted in the arrest of Hendrix. Plaintiff was charged with aggravated assault and resisting arrest. In his Complaint, Plaintiff alleges excessive force and a state law claim of assault and battery. The issue presented in this motion is whether Heck v. Humphrey, 512 U.S. 477 (1994), applies to bar Plaintiff's claims when Plaintiff had resolved his criminal charges by participating in New Jersey's Pretrial Intervention Program ("PTI"). For the reasons that follow, Defendant's motion is DENIED.
I. BACKGROUND FACTS AND PROCEDURAL HISTORY
At the time of the pertinent events, Plaintiff was a fifty-three year old African-American male residing at 57 Daymond Street, Trenton, New Jersey. Compl. ¶¶ 6, 11. Defendants Neiderman and Jason Woodhead ("Woodhead") were police officers in the City of Trenton Police Department. Id. ¶¶ 8, 9. At or about 6:00 PM on September 2, 2004, Officers Neiderman and Woodhead were patrolling an area of Trenton known for drug trafficking when they observed what they believed was a drug transaction. See Neiderman Dep. T59:21-23. In front of Hendrix's house, the officers ordered the two men they believed to be drug dealers to place their hands on the police car. Then, Hendrix approached from nearby and confronted the officers because the two men were friends of Hendrix. Neiderman Dep. T92:2-93:4; 96:8-97:13. In response, the officers ordered Hendrix to go inside his house. Compl. ¶¶ 12, 13. After complying with the Officers' instructions, Hendrix opened his front screen door to advise some neighborhood children to leave the area. Id. ¶15. Allegedly, Neiderman screamed to Hendrix to shut the door and then simultaneously closed the door on Hendrix's head. Id. ¶¶ 16, 17. Neiderman then allegedly tore the screen door off its hinges, entered Hendrix's residence and punched him, causing Hendrix's nose to break. Id. ¶¶ 17, 18. Thereafter, Neiderman and Woodhead allegedly proceeded to beat, choke and spray Hendrix with pepper spray. Id. ¶¶ 19, 20. Neiderman then applied his knees to Hendrix's chest, which caused one or more of his ribs to break. Id. ¶ 23. Finally, the officers allegedly threw Hendrix down the front steps onto the street where they handcuffed and arrested him. Id. ¶¶ 24, 25. According to Hendrix, he did not resist arrest or provoke Neiderman or Woodhead throughout the encounter. Id. ¶ 27. However, the Officers' account of the event differs.
According to Neiderman, Hendrix initiated the physical confrontation by striking Neiderman with the screen door. Neiderman Dep. T102:4-104:21; 110:7-112:4; 114:10-20. At that point, Neiderman grabbed Hendrix's arm and advised him that he was under arrest for obstructing the investigation. Id. T114:21-24; 158:2-159:11. Then, Hendrix punched Neiderman's arm, causing Neiderman to lose his grip on Hendrix. Id. T160:4-161:20. After Hendrix retreated into his residence, Neiderman followed him in through the front door. Id.; Id. T115:22-116:3; 146:2-11; 161:1-7; 163:14-16; 207:16-208:14. Inside, as Neiderman approached to arrest Hendrix, Hendrix took a "boxing" stance with his fists up. Id. T163:22-164:7. Hendrix then swung at Neiderman but missed, prompting Neiderman to respond by punching Hendrix's face. Id. T163:23-165:15; T166:23-25. Neiderman then attempted to handcuff Hendrix, but he violently pulled away. Id. T173:3-6. In response, Defendant officer attempted to grab Hendrix, but Hendrix again pulled away, this time causing both men to fall to the couch and then onto the floor. Id. T173:7-174:1. At that time, Neiderman was able to get on top of Hendrix and ordered him to place his arms behind his back. Ignoring the order, Hendrix continued to struggle by flailing his arms and kicking Neiderman. Id. T174:6-176:19; 178:15-179:19. In the meantime, Woodhead was detaining the suspected drug dealers and in order to see inside Hendrix's house, he forced the door open, causing it to fall of its hinges. Woodhead Dep. T87:6-89:1. Woodhead initially remained outside the house to observe them; then, he approached close enough to spray Hendrix with pepper spray to subdue him, though this appeared to have no effect on him as Hendrix continued to kick Neiderman. Neiderman Dep. T180:5-11; Woodhead Dep. T114:3-6. Since the spray was ineffective, Neiderman applied his knee to the side of Hendrix to avoid his attacks, but Hendrix was nevertheless able to get up onto his knees. Neiderman Dep. T17:4-19; 192:19-193:8; T193:9-20. As Hendrix crawled to the door, Neiderman lost his grip and Hendrix fell to the sidewalk and the Officers were able to handcuff him. Id. T195:16-196:6; Woodhead Dep. T114:16-22.
Due to the alleged incident, Neiderman filed a criminal complaint against Hendrix for aggravated assault and resisting arrest. According to the criminal complaint, Hendrix struck Neiderman's left arm, kicked him, and physically struggled with the officer to avoid being handcuffed. Crim. Compl. On March 31, 2005, Hendrix was indicted for (1) aggravated assault in the third degree and; (2) resisting arrest in the third degree. Ultimately, these charges were dismissed because Hendrix chose to participate in, and completed, the PTI program pursuant to N.J.S.A. 2C:43-12. Plaintiff filed the instant Complaint in August 2006. Subsequently, the Court granted summary judgment in favor of Defendant on Counts IV, V and VII and dismissed other defendants in this case. The only remaining claims before the Court are Counts I and II asserted against Neiderman. Specifically, Count I alleges excessive force in violation of 42 U.S.C. § 1983; and Count II avers a common law claim of assault and battery.
After the conclusion of discovery, the Court conducted a pre-trial conference wherein the Court questioned the parties with respect to the effect of Plaintiff's participation in the PTI program in connection with the Supreme Court's holding of Heck v. Humphrey and its progeny of cases in the Third Circuit. In response to this inquiry, Defendant filed the instant motion to dismiss based upon the preclusive effect of the PTI program pursuant to the Heck principles. It is this issue that the Court addresses in this motion.
As a preliminary matter, since Defendant moves to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the Court must take the allegations as set forth in Plaintiff's Complaint as true. However, the disputed incident which gives rise to Plaintiff's claims against Defendant, Plaintiff's arrest and subsequent criminal charges, were subject to a state criminal proceeding whereby Plaintiff resolved his charges through the PTI program. As such, the Court will not draw inferences in Plaintiff's favor that are inconsistent with the criminal complaint. See Scott v. Harris, 127 S.Ct. 1769, 1776 (2007). Second, in accordance with Heck v. Humphrey, 512 U.S. 477 (1994), the Court will not draw inferences in Plaintiff's favor that would necessarily negate Plaintiff's criminal charges. Accordingly, the Court will construe the allegations in Plaintiff's Complaint as true only insofar as they do not undermine the basis of Plaintiff's charges resolved through the PTI program, as it will be discussed below.
When reviewing a motion to dismiss on the pleadings, courts "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir.2008) (citation and quotations omitted). In Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), the Supreme Court clarified the 12(b)(6) standard. Specifically, the Court "retired" the language contained in Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Id. at 1968 (quoting Conley, 355 U.S. at 45-46). Instead, the factual allegations set forth in a complaint "must be enough to raise a right to relief above the speculative level." Id. at 1965. As the Third Circuit has stated, "[t]he Supreme Court's Twombly formulation of the pleading standard can be summed up thus: 'stating . a claim requires a complaint with enough factual matter (taken as true) to suggest' the required element. This 'does not impose a probability requirement at the pleading stage,' but instead 'simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of' the necessary element." Phillips, 515 F.3d at 234 (quoting Twombly, 127 S.Ct. at 1965).
In affirming that Twombly standards apply to all motions to dismiss, the Supreme Court recently explained the principles. First, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1948-49 (2009). Second, "only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. Therefore, "a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Id. at 1949. Moreover, in deciding a motion to dismiss, the Court may consider the allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of Plaintiffs' claim. Lum v. Bank of Am., 361 F.3d 217, 222 n. 3 (3d Cir. 2004).
B. Whether PTI Constitutes a Favorable Termination Under Heck
Defendant's motion is premised on the notion that Plaintiff's claims are barred under the principles enunciated by the Supreme Court in Heck that Plaintiff's participation in the PTI program resulted in an unfavorable termination of the underlying criminal charges against him. In response, Plaintiff contests the applicability of Heck here since his participation in the program resulted in the dismissal of the charges against him. As such, he was not convicted of the underlying crimes, a necessary condition prior to a Heck bar.
In Heck, the Supreme Court held, inter alia, that: in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a §1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under §1983.
Heck, 512 U.S. at 486-87. Thus, the essential inquiry is whether the claims asserted by the plaintiff would "necessarily imply the invalidity of his conviction." Wallace v. Kato, 549 U.S. 384, 398 (2007) (Stevens, J., concurring) (quoting Heck, 512 U.S. at 486-87). Further, a plaintiff generally cannot maintain a § 1983 action unless the "termination of the prior criminal proceeding [was resolved] in favor of the accused." Gilles v. Davis, 427 F.3d 197, 210 (3d Cir. 2005) (quoting Heck).
In light of these precepts, the Court must first determine whether participation in the PTI program constitutes a "favorable" termination of the charges against Hendrix. Plaintiff claims that no Third Circuit case is on point; instead he relies on out-of-circuit cases, S.E. v. Grant County Bd. of Educ., 544 F.3d 633 (6th Cir. 2008) and Butts v. City of Bowling Green, 374 F. Supp. 2d 532 (W.D. Ky. 2005), to support his argument that where charges against a plaintiff are dismissed after the completion of a pretrial diversion program, Heck does not apply to bar subsequent civil claims.
Contrary to Plaintiff's assertions, the Third Circuit has clearly held that participation in a substantially similar type of program in the state of Pennsylvania, the Accelerated Rehabilitative Disposition ("ARD") program, is not a favorable termination under Heck.*fn2 Gilles 427 F.3d at 211.*fn3 In so holding, the circuit court found that under the ARD program, a criminal defendant avoids both trial and incarceration and, ultimately, receives expungement of the record, provided that the defendant completes a probationary period. Id. at 209. As such, a defendant participating in the ...