The opinion of the court was delivered by: Dickinson R. Debevoise, U.S.S.D.J.
DEBEVOISE, Senior District Judge
This matter arises out of the arrest of Plaintiff, Michelle Williams,
by Elizabeth Police Officers Johanna Rivera and Rodney Dorilus (the
"Officers"). Williams instituted this 42 U.S.C. § 1983 action against
the Officers and the City of Elizabeth (the "City") asserting, in
general, excessive use of force, invasion of privacy, failure to
provide adequate medical treatment, and malicious prosecution. By
Order dated September 9, 2010 this court granted summary judgment for
the Officers and dismissed all claims against them. Presently before
the court are the City's Motion for Summary Judgment and Plaintiff's
Cross-Motion for a Continuance pursuant to Rule 56(f).*fn1
For the reasons set forth below, the City's Motion will be
granted and Plaintiff's Amended Complaint will be dismissed with
prejudice. Plaintiff's Cross-Motion will be denied.
On Sunday morning, November 18, 2007 at 12:15 a.m., the Officers were on duty as uniformed police officers employed by the City. They were dispatched to assist Joshua Karp and his wife Elissa Karp, who are tenants of 801 North Broad Street #5D on the fifth floor of the building.
When the Karps came home late on Saturday night, they found a woman they did not recognize "passed out" in front of the door to their apartment. (Joshua Karp Dep. 34:16, Mar. 11, 2010.). The woman was Williams, the 25-year-old tenant of #8B on the eighth floor of the building. She smelled of alcohol. (Id. 34:23.) Williams appeared to be wearing a pants suit, with the shirt up over her head so she was topless and was not wearing undergarments. She may have been wearing the suit jacket over the shirt. She was not wearing shoes. (Elissa Karp Dep. 7:23-8:16, Mar. 11, 2010.) The Karps assumed she was "a homeless person that got into the building from the bus stop." (J. Karp Dep. 14:24-15:3.) They called the building superintendant but he did not answer so they went down to the lobby of the building and called the police to report a suspicious person.
When the Officers arrived at the scene and the Karps took them upstairs, Williams had not moved. (J. Karp Dep. 37:8-38:15.) Rivera touched her shoulder and checked her wrist for vital signs. (Johanna Rivera Dep. 65:8-20, Nov. 13, 2009.) The Officers attempted to wake her up by calling to her, "[w]ake up, get up," for about a minute and she did not respond. (J. Karp Dep. 38:24-39:15.) Next, Dorilus shook her foot while Rivera touched her hand and tapped on her shoulder. (Rivera Dep. 66:13-14.) Williams still did not respond. (J. Karp Dep. 40:14-21.)
Williams woke up suddenly. The accounts of the incident offered by Joshua Karp, Elissa Karp, Rivera and Dorilus all concur in describing that as soon as Williams woke up, she began to flail her arms and legs, kick, and yell at the officers.
Joshua Karp observed: "[s]he jumped up.it appeared to be someone who was highly intoxicated plus probably on a few drugs trying to get up." (J. Karp Dep. 43:12-19.) She started "[s]winging [her arms], [in a] windmill motion" and "kick[ing] her legs, like a baby temper tantrum." (Id. 49:16-23.) The Karps retreated to the stairwell, which was "very close," about "two doors from their apartment" for protection and observed the scene from there. (Id. 13:14-15; 14:17-22.) Elissa Karp observed that "[Williams] was running back and forth to our apartment door trying to open the door. At that point they were just holding her to try to stabilize her." (E. Karp Dep. 12:9-14.) "She was resisting them, flailing her arms and legs, and he pinned her against the wall holding her arms down to prevent her from hitting him." (J. Karp Dep. 19:17-20.) The Officers informed Williams that she "had to come, she didn't live here." (J. Karp Dep. 13:13-14.) When "the officers told her that she had to leave  she tried banging on the [Karps' apartment] door." (J. Karp Dep. 13:11-12.) "She was  shouting and screaming for a whole bunch of the time." The only word Joshua Karp could make out that she said was "bitch." (Id. 31:17-24.) It appeared to Joshua Karp that Williams was "attacking" the Officers. (Id. 51:12.) Joshua Karp testified that he did not see either Officer hit Williams, but he did see her kick and hit them. (20:10-16.) "She got it together somewhat to where she was able to walk without the officers forcing her to walk. Once they let go of her, she ran back to the door and started ringing the doorbell that we had and smashing on the door." (J. Karp Dep. 14:12-16.)
According to Dorilus, "when she finally turned over.she attacked us." (Rodney Dorilus Dep. 73:15-16, Nov. 9, 2009.) "We were never able to help this lady in any way..[s]he started kicking, punching, fighting. When she turned over, it was a fight that we didn't expect." (Id. 75:17-24.) Rivera stated in the police report, "we advised Ms. Williams to calm down.or she would be placed under arrest for disorderly conduct." (Antonelli Cert. App. B.) At some point, she kicked him in the groin and punched Rivera. (Dorilus Dep. 76:7-8; Antonelli Cert. App. B.) Rivera stated that she was "combative" and "began kicking and punching myself and my partner" and "flailing." (Johanna Rivera Dep. 77:20-78:19.) Dorilus recalls:
I think she tried to stand up. I don't remember exactly. I think she was trying to get up. It was a fight and she was trying to get away from us, I believe..She was fighting, constantly fighting, kicking, crawling, trying to bite. She was acting like a crazy woman. (Dorilus Dep. 96:16-22.)
When the Officers advised Williams that she was under arrest, she continued to fight and kick. (Id. 97:5-10.) While they were attempting to arrest her, Williams repeatedly tried to stand up, and they "took her back down." (Id. 97:17-98:4.) Dorilus struck Williams "to get her under control." (Id. 99:22-23.) Dorilus stated,
She might have got struck in the face. That wasn't the intended target. I threw punches. I wasn't intending to hit her in the face, but she might have ...