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Niarties D. Graham and Evelyn Graham v. Lewis F. Carini

May 2, 2011


The opinion of the court was delivered by: Honorable Joseph E. Irenas


IRENAS, Senior District Judge:

This suit arises out of Plaintiff Niarties Graham's arrest around midnight on July 15, 2007 in the City of Vineland, New Jersey. Plaintiffs*fn1 principally allege that the arresting officers used excessive force to effectuate Niarties' arrest and deliberately delayed medical treatment of his resulting injuries. Defendants, the four Vineland Police Officers present during the arrest, the City of Vineland, and the Vineland Police Department presently move for partial summary judgment. For the reasons stated herein, the Motion will be granted in part and denied in part.


Late at night on July 14, 2007, Plaintiffs Niarties and Evelyn Graham, husband and wife, were returning from a party.

(N. Graham Dep. p. 50, 53-54) By Niarties' own admission, he had consumed a lot of alcohol at the party, and his wife was driving their jeep home. (Id. p. 52, 54-55, 58) In the back seat of the jeep were Niarties' seven year-old daughter, two year-old son, and a family friend who was passed out drunk. (Id. p. 51-52, 58-59)

Niarties testified that his wife was mad at him "because I promised her I wouldn't drink like that," (N. Graham Dep. p. 56)*fn2 , and the couple began to argue. (Id. p. 60; E. Graham Dep. p. 29, 32-33) Eventually Evelyn pulled over to let Niarties out of the jeep,*fn3 whereupon she used his cell phone to call 911. (N. Graham Dep. p. 60-62; E. Graham Dep. p. 32-33) Niarties testified that after the jeep was stopped, he observed his daughter having an asthma attack. (Id. p. 62-63)

Vineland Police responded to a complaint of a "domestic dispute." (Defs' Ex. B; Pls' Response to Defs' Statement of Undisputed Facts ¶ 2) Defendant Sergeant Carini arrived at the scene around 12:30 a.m. on July 15, 2007, to find Niarties sitting in the front passenger seat of his jeep, while Evelyn was standing in the street next to the driver's side door. (Carini Dep. p. 25; Pls' Response to Defs' Statement of Undisputed Facts ¶ 4). Sergeant Carini testified that Evelyn was "yelling frantically" for "help," saying that Niarties was "crazy," "on drugs," and that he "assaulted" her. (Id. p. 25, 33) While Evelyn admits telling Carini that Niarties was "yelling . . . screaming . . . being obnoxious," (E. Graham Dep. p. 36), she also testified that she repeatedly told Carini that her husband had not touched her in a forceful way; that she just wanted him removed from the jeep. (E. Graham Dep. p. 37-38) The police report of the arrest, drafted by Defendant Patrolman Mercano, indicates that Evelyn told officers that Niarties had choked her and Mercano observed "redness to her neck." (Defs' Ex. B)

While Sergeant Carini spoke to Evelyn, Defendant Patrolman Tellado arrived and began to speak to Niarties through the open window of the car. (N. Graham Dep. p. 72; Defs' Ex. B; E. Graham Dep. p. 39-40) The parties dispute exactly what was said.

According to Plaintiffs, Patrolman Tellado directed Niarties to get out of the jeep, which Niarties refused to do, stating that he was tending to his daughter who was having an asthma attack. (E. Graham Dep. p. 39; N. Graham Dep. p. 71-72) Plaintiffs testified that Tellado then shouted "get the fuck out of the car." (E. Graham Dep. p. 39; N. Graham Dep. p. 72) Evelyn further testified that Tellado told Niarties to get his "fat nigger ass" out of the jeep. (E. Graham Dep. p. 39)

According to the police report,

Officer Tellado asked Niarties to show us his hands. Niarties was turned toward the back of the vehicle speaking with his children. Niarties immediately turned around and stated, 'Fuck you, I'm not doing anything' then stated 'fuck you guys, I'm talking with my daughter who's having an asthma attack. Sgt. Carini asked Graham if his daughter needed medical attention, when Graham replied again 'fuck you guys, I'll talk to you in a minute.' (Defs' Ex. B)

After a short time, Niarties did exit the jeep and started to walk toward Sergeant Carini who was standing at the rear of the jeep with Evelyn. (N. Graham Dep. p. 79-80; Defs' Ex. B*fn4

Niarties says his palms were open in a "surrender pose" (N. Graham Dep. p. 80), but the police report states that Niarties approached with "fists clenched." (Defs' Ex. B)

According to the police report, the following transpired:

[Niarties] said 'I did not fucking touch that bitch.' Sgt. Carini advised Graham to calm down and get back away from the victim and him. Evelyn then stated Niarties "[y]ou need to stop drinking.' Niarties then looked at Evelyn with his fists clenched and began to charge at Evelyn. Sgt. Carini then got in between Niarties and Evelyn. Niarties then grabbed Sgt. Carini by his shoulders and attempted to push him backwards. Sgt. Carini then 'shock shoved' Graham off of him causing [Graham] to fall backwards onto the ground. (Defs' Ex. B)

According to Niarties, Sergeant Carini asked him "'what's the problem tonight?'" and Niarties replied, "nothing." (N. Graham Dep. p. 84) He further testified that Carini said something else he could not remember, and then someone*fn5 "jumped on me with their whole body and they put their whole weight around my neck and I just say a bright light and everything went upside down and then total black." (Id. p. 88) Niarties stated that he "never touched" Sergeant Carini. (Id. p. 89)

The parties agree that Niarties was face down on the ground with Patrolman Tellado on his back. (Defs' Ex. B; N. Graham Dep. p. 93) Niarties also testified that Tellado was choking him from behind and that blood was coming out of his mouth (N. Graham Dep. p. 93, 106), but Defendants dispute those assertions.*fn6 The police report states that Niarties was physically resisting the officers' attempts to handcuff him (Defs' Ex. B), but Niarties testified that he was pinned to the ground, with his arm stuck under his body, and could not move. (N. Graham Dep. p. 96-97) According to Niarties, one of the officers "ripped his arm out from underneath [him]" and he felt is elbow "pop." (Id. p. 96) According to the police report, Sergeant Carini "placed Niarties in a 'shoulder lock' to gain control of his left arm." (Defs' Ex. B) Niarties testified that during the whole time he was on the ground he was "being choked [and] going in and out of consciousness." (N. Graham Dep. p. 105) Niarties was subsequently handcuffed, placed in the back of Defendant Patrolman Houbary's car, and transported to Vineland Police headquarters. (Defs' Ex. B; N. Graham Dep. p. 110)

Once Niarties was transported to headquarters, he testified that his elbow area started "swelling up like a grapefruit" and he told Sergeant Carini that he "need[ed] medical attention."

(N. Graham Dep. p. 114) At the direction of an unidentified "lieutenant," Carini then called an EMT who arrived "in about 10, 15 minutes." (Id. p. 114-15) The EMT determined that Niarties needed to be transported to the hospital, which was done immediately after the police finished processing Niarties. (Id. p. 115; Defs' Ex. B) Hospital records indicate that Niarties arrived at the emergency room at 2:26 a.m. (Pls' Ex. C) He was diagnosed with an elbow fracture (Id.), and released "ROR" to Evelyn after being discharged from the hospital. (Def's Ex. B)

Niarties was charged with simple assault, assaulting a police officer, and resisting arrest. (Defs' Ex. B) The parties apparently do not dispute that a jury acquitted Niarties of those charges.

The Amended Complaint is not a model of clarity. It appears that Niarties asserts the following claims against all Defendants: (1) negligence; (2) assault and battery; (3) use of excessive force in violation of the United States and New Jersey constitutions; (4) delay of medical care / deliberate indifference to Niarties' medical needs in violation of the United States and New Jersey constitutions; (5) false arrest; (6) false ...

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