The opinion of the court was delivered by: Hillman, District Judge
This matter has come before the Court on Defendant's motion for summary judgment on Plaintiff's claims that Defendant violated his Fourth Amendment rights when Defendant used excessive force in effecting his arrest. For the reasons expressed below, Defendant's motion for summary judgment on Plaintiff's claim against him will be denied.
I. SUMMARY OF THE FACTS*fn1
According to the parties' uncontested statement of facts, on the evening of March 29, 2002, Plaintiff Michael Garrison and several friends met each other at a North Wildwood, New Jersey home, and from there they all took a cab to Moore's Bar. Prior to arriving at Moore's Bar, Plaintiff had consumed one or two beers and had smoked marijuana. At the bar, Plaintiff consumed two or three mixed drinks and took an ecstasy pill. From Moore's Bar, the group walked to one or two other bars, at which Plaintiff consumed more alcoholic beverages. After midnight, the group walked to Keenan's Bar, where Plaintiff, already intoxicated, consumed a beer. At approximately 1:50am, Plaintiff and the rest of the group exited Keenan's Bar, and Plaintiff began to urinate outside the bar. Plaintiff's zipper was down and his pants were unbuttoned while he was urinating. Defendant William Porch, a City of Wildwood police officer who was dressed in plain clothes for a suspicious person/burglary detail, observed Plaintiff urinating outside of the bar.
At this point, the parties' version of events diverge. According to Plaintiff's deposition testimony, Defendant approached Plaintiff, grabbed his bicep, turned him around, and held both of Plaintiff's fists in his hands. When Plaintiff turned around, he had both fists clenched up near his chin with the knuckles facing away from his body. Plaintiff next remembers Defendant pulling him to the ground, but does not recall how he was forced to the ground, which part of his body hit the ground first, or in what position he landed. Once he was on the ground, Plaintiff recalls his ear and stomach being on the sidewalk. At this point, Plaintiff cannot specifically remember what occurred, but he does recall that his face was forced into the ground and that he heard the bones breaking in the back of his neck, he went warm, and then totally limp. Plaintiff does not recall resisting arrest.
According to Defendant, he approached Plaintiff as he was just walking away from the building after urinating. Defendant states that he identified himself as a police officer and illuminated his badge with his flashlight, but Plaintiff continued to walk away. When Plaintiff was about eight feet away, Defendant told Plaintiff that he was not free to go and asked him to produce identification. Defendant states that Plaintiff used expletives and refused to comply. Defendant told Plaintiff that he was not free to leave, he must produce identification, grabbed Plaintiff's left wrist with both hands using a "soft-touch empty-hand" technique, and told him he was under arrest. According to Defendant, Plaintiff's body began to get rigid and he began to pull away and turn around in an attempt to face Defendant. Defendant states that he repeated several times that Plaintiff was under arrest and commanded him to stop resisting. At this point, Defendant states that he thought Plaintiff was going to strike him, so he used Plaintiff's spinning momentum to sidestep him and place him up against the wall. Defendant states that Plaintiff attempted to head-butt Defendant "in reverse" and continued to resist arrest. In order to avoid Plaintiff's head-butt, Defendant states that he moved away and Plaintiff spun around with his fist raised in a motion to hit Defendant. Defendant then used a pulling technique to Plaintiff's arm to pull him to the ground. While he was on the ground, Defendant states that Plaintiff continued to thrash his entire body, kick his legs, and pull his arms toward his chest to avoid handcuffing. According to Defendant, Plaintiff's five friends were completely surrounding them and shouting and gesturing in rage toward Defendant's attempts to effect Plaintiff's arrest.
Defendant was able to secure one handcuff, but he had to move from Plaintiff's left side to his right side because Plaintiff kicked him several times. Defendant then radioed for back-up. When another officer arrived, Defendant sat down below Plaintiff's knees to stop him from kicking. During this encounter, Defendant states that Plaintiff kicked him repeatedly, trashed his head back and forth, "continuously trying to spin out of control," and continued to yell obscenities. At this point, Plaintiff began to complain of neck and back pain and his body became limp and stationary. Plaintiff told Defendant that Defendant broke his neck. Defendant was then able to secure Plaintiff's right arm and complete handcuffing. An ambulance was called and Plaintiff was transported to the hospital.*fn2
Plaintiff was charged with aggravated assault on a police officer, resisting arrest, disorderly persons conduct, and urinating in public. The grand jury indicted Plaintiff on the aggravated assault and resisting arrest charges. On May 30, 2003, Plaintiff pled guilty to an amended charge of simple assault in violation of N.J. Stat. Ann. 2C:12-1A, and purposefully resisting arrest, in violation of N.J. Stat. Ann. 2C:29-2A.*fn3
Defendant's motion for summary judgment was first filed in early 2007. Defendant had moved for summary judgment on all of Plaintiff's claims, which, in addition to his excessive force claim, included claims for unreasonable seizure, conspiracy, and state law violations. Defendant had also moved for summary judgment on his counterclaim against Plaintiff for the intentional tort of assault and battery. On March 9, 2007, the Court granted Defendant's motion for summary judgment on all of Plaintiff's claims, but denied without prejudice Defendant's motion for summary judgment on his assault and battery counterclaim, and stayed the action to await the outcome of a dispositive case pending before the New Jersey Supreme Court.
In granting Defendant's motion for summary judgment on Plaintiff's claims against him, the Court found that Plaintiff's unreasonable seizure and excessive force claims were barred by Heck v. Humphrey, 512 U.S. 477 (1994). Under Heck, if a favorable judgment on a § 1983 damages claim would "necessarily imply the invalidity" of the plaintiff's conviction or sentence, the claim must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. Heck, 512 U.S. at 486-87. This Court found that a finding in favor of Plaintiff on his unreasonable seizure claim and excessive force claim would imply the invalidity of his guilty pleas for the disorderly persons offenses of simple assault and resisting arrest.
Plaintiff filed an immediate appeal of the Court's decision, but the appeal was dismissed by agreement by the parties, obsensibly because of the pending counterclaim. In July 2007, the Court ordered that the counterclaim was ripe for resolution due to the decision issued by the New Jersey Supreme Court, ordered the case to be reopened, and directed Defendant to refile his motion for summary judgment. Defendant complied, and the briefing was completed in early October 2007.
Also in October 2007, Plaintiff filed a motion for reconsideration of the Court's March 9, 2007 Opinion that dismissed his excessive force claim pursuant to Heck.*fn4 Although the motion was untimely under the Local Rules, the Court nonetheless addressed Plaintiff's arguments in support of reconsideration of the Court's decision. Ultimately, the Court reaffirmed the finding that Heck barred Plaintiff's excessive force claim.
Following this decision, Defendant withdrew his motion for summary judgment and stipulated to the dismissal of his counterclaim so that the Heck issue could be appealed by Plaintiff. On May 26, 2010, the Third Circuit Court of Appeals issued its mandate, which reversed this Court's finding that the Heck doctrine barred Plaintiff's excessive force claim, and remanded the case for further proceedings. In contrast to this Court's analysis, the Third Circuit found that Plaintiff's conviction for assaulting Defendant did not automatically preclude him from ...