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Hurt v. City of Atlantic City

February 24, 2010


The opinion of the court was delivered by: Honorable Jerome B. Simandle


This matter is before the Court on the motion for summary judgment of Defendants Frank Timek,*fn1 Heidi Clayton, and William Warner, all officers with the Atlantic City Police Department (collectively, "the police officer defendants") [Docket Item 14].*fn2 The police officer defendants ask this Court to dismiss all claims of Plaintiff Howard Hurt, which arise out of Plaintiff's arrest on July 11, 2006 in Atlantic City, New Jersey. Plaintiff asserts that the police officer defendants used excessive force, thereby violating the Fourth Amendment*fn3 and as well as Plaintiff's substantive and procedural due process rights and his right to equal protection under the Fourteenth Amendment.*fn4 Plaintiff seeks relief pursuant to 42 U.S.C. § 1983. Plaintiff also asserts, and seeks relief for, violations of Article I of the New Jersey Constitution*fn5 and New Jersey tort law. For the reasons set forth below, the Court will grant summary judgment in favor of all the police officer defendants on Plaintiff's claims pursuant to the Fifth (which he has abandoned) and Fourteenth Amendments, as well as any claim for false arrest, but deny summary judgment to Defendants Timek and Warner on Plaintiff's claims arising out of the Fourth Amendment, Article I of the New Jersey Constitution, and tort. The Court will grant summary judgment to Defendant Clayton as to all of Plaintiff's claims.


A. Facts

On this motion for summary judgment, the Court will construe all facts in favor of Plaintiff and assume those facts submitted by Plaintiff to be true. Where Plaintiff has failed to submit any contrary facts, the Court must accepted the uncontroverted facts as presented by the police officer defendants.*fn6

On July 11, 2006, at approximately 4:30 in the afternoon, Defendant Timek pulled his patrol vehicle into the intersection of North Carolina and Adriatic Avenues in Atlantic City. (Initial Police Report, Defs. Exh. 1 at 7.) Plaintiff road his bike into the back of the police car. (Id.) Plaintiff then moved his bike out of the street, because there was on-coming traffic. (Pl. Dep. at 54.) As Timek got out of his police car, Timek claims that Plaintiff began shouting threats and profanities at Timek, (Initial Police Report, Defs. Exh. 1 at 7), but Plaintiff denies yelling profanities, (Pl. Dep. at 56). Timek recognized Plaintiff, who smelled of alcohol and was slurring his speech, as a former boxer with a history of fighting with police officers and resisting arrest. (Initial Police Report, Defs. Exh. 1 at 7.) Plaintiff did not recognized Timek. (Pl. Dep. at 54-55.) One of Plaintiff's hands was bleeding and his elbow appeared to be injured. (Initial Police Report, Defs. Exh. 1 at 7.) Timek called for emergency medical services ("EMS") and for back up. (Id.)

Timek ordered Plaintiff not to touch his bicycle and two bottles of alcohol lying on the ground, and ordered him to sit down. (Id.) Despite Timek's "numerous" orders, Plaintiff refused to comply*fn7 and instead got into a "combative stance," said "You watch now, I'm going to fuck you up," and approached Timek "aggressively raising his fists." (Id.) Timek, fearing for his safety, gave Plaintiff several orders to calm down and back up, but Plaintiff did not comply. (Id.) Timek then told Plaintiff that Plaintiff was under arrest and then Timek used his impact weapon to hit Plaintiff approximately two times on his legs. (Id.) Plaintiff continued to move towards Timek and Timek struck Plaintiff twice on his hands, which allowed Timek to bring Plaintiff to the ground. (Id.) Once on the ground, Timek continued to order Plaintiff to stop resisting and to put up his hands, but Plaintiff did not comply. (Id.) Plaintiff attempted to spit at Timek. (Id.) At some point, Defendant Warner arrived at the scene and helped Timek to put handcuffs on Plaintiff. (Id.)

After the police officers handcuffed Plaintiff, they allegedly began to beat him. (Pl. Dep. at 134-37.) Several other officers arrived and surrounded Plaintiff on the ground, so that passerby could not see him. (Id. at 137.) Both Timek and Warner punched Plaintiff and an officer kicked him in the jaw. (Id. at 135, 137.) The beating lasted at least six or seven minutes. (Id. at 135.)

Eventually, EMS arrived and Defendant Clayton brought Plaintiff to the hospital for treatment. (Initial Police Report, Defs. Exh. 1 at 8.) Defendant Clayton's only interaction with Plaintiff was to bring him to the hospital and she did not use any force while transporting him.*fn8 (Clayton Affidavit, Defs. Exh. 9 ¶¶ 7, 8, 11.) The police charged Plaintiff with obstruction, aggravated assault on police, and resisting arrest, and issued a summons for failure to observe a traffic signal. (Initial Police Report, Defs. Exh. 1 at 8; Criminal Complaint, Defs. Exh. 2.)

On April 11, 2007, Plaintiff appeared before the Honorable Matthew H. Powals in Atlantic City Municipal Court on the charges arising out of the July 11, 2006 incident. (Court Transcript, Defs. Exh. 4.) At that hearing he was represented by present plaintiff's counsel. (Id.) Plaintiff pled guilty to simple assault, N.J. Stat. Ann. § 2C:12-1(a)(1),*fn9 resisting arrest, N.J. Stat. Ann. § 2C:29-2(a)(1),*fn10 and failure to observe a traffic signal, N.J. Stat. Ann. § 39:4-81.*fn11 (Id. at 2-6.) Plaintiff admitted that he "prevented the officer from effecting a lawful arrest by refusing to surrender his hands to be handcuffed." (Id. at 4.) Plaintiff also admitted that he took "a fighting stance with both fists raised, advancing towards Officer Timek." (Id.) It is undisputed that Plaintiff has not challenged those convictions.

B. Procedural History

On June 18, 2008, Plaintiff brought suit against the City of Atlantic City, the Atlantic City Police Department, and Officers Timek, Warner, and Clayton. On July 31, 2009, the defendant police officers submitted this motion for summary judgment, to which they have attached multiple police reports, the transcript of Plaintiff's guilty pleas, and an affidavit from Officer Clayton. Plaintiff opposes and has provided sixteen pages of his deposition in support of his opposition for summary judgment.


A. Standard of Review

Summary judgment is appropriate when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the non-moving party." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" only if it might affect the outcome of the suit under the applicable rule of law. Id. Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. Id.

"[T]he nonmoving party may not, in the face of a showing of a lack of a genuine issue, withstand summary judgment by resting on mere allegations or denials in the pleadings; rather, that party must set forth 'specific facts showing that there is a genuine issue for trial,' else summary judgment, 'if appropriate,' will be entered." U.S. v. Premises Known as 717 S. Woodward Street, Allentown, Pa., 2 F.3d 529, 533 (3d Cir. 1993) (quoting Fed. R. Civ. P. 56(e))(citations omitted).

Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.

Celotex, 477 U.S. at 323. Additionally, pursuant to Local Civil Rule 56.1(a), any facts set forth in Defendants' statement of material facts that are not disputed are deemed undisputed ...

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