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Kevin Bozarth v. Township of Deptford

August 4, 2011


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


SIMANDLE, District Judge:


This civil rights case involves the arrest and post-arrest treatment of Plaintiff Kevin Bozarth on November 28, 2006. Bozarth claims that Deptford Township police officers used excessive force against him while arresting him and when he was brought to the police station. The matter is before the Court on the motion for summary judgment by Officers Kiermeier, Kerby, and Bittner. [Docket Item 37.]*fn1 The principal issue is whether a reasonable jury could find from the evidence adduced in this case that Kerby and Bittner were among the officers who stomped on Plaintiff shortly after his initial capture, or could reasonably have intervened in that excessive use of force.


On November 28, 2006, Plaintiff Kevin Bozarth was residing in Deptford Township with his fiancee Nancy McCoy, Nancy's twin sons Brian and Tim, and Plaintiff's son Kevin Whitehouse. (Second Am. Compl. ¶ 14.) Bozarth had consumed alcohol with his co-workers after work that day and prior to returning home.

(Bozarth Dep. 166:8-24.)*fn2

When he arrived home, Nancy's twin sons Brian and Tim were fighting. (Ex. G ¶ 2.) Bozarth became involved in the scuffle, and at some point during the fight, the police were called by Nancy McCoy. Bozarth fled out the back door as the police arrived, fearing he would be arrested for his failure to pay child support. (Bozarth Dep. 171:15-22.) He ran through the woods, across a shallow creek, and up an embankment. (Bozarth Dep. 175:15-176:2.)

Bozarth claims that as he came walking up the embankment, police officers blinded him with flashlights, causing him to put his hands up and surrender. (Bozarth Dep. 176:10-177:5.) He says one of the male officers, whom he cannot identify, clotheslined him, knocking him onto his back on the ground. (Bozarth Dep. 178:6-16.) Bozarth testified that three or four officers then began stomping him on his ribs. (Bozarth Dep. 180:8-183:16.) Bozarth was then stood up, handcuffed, placed in a police car, and transported to the police station.

Bozarth has maintained that he is not certain who was present at this initial encounter. He admitted in interrogatories that if the officers' own reports were accurate - which he does not concede - that this would mean that only Officer Magee was present for the initial alleged beating. Officer Magee died shortly after this complaint was brought, and he was never deposed.*fn3

Bozarth claims that when he arrived at the station, he was also subjected to multiple uses of excessive force, but as explained below, the facts regarding those alleged incidents are not at issue in this motion.

The Second Amended Complaint contains seven counts. Count I brings an excessive force claim, presumably pursuant to 42 U.S.C. § 1983, though it does not specify as much. Count II pleads a violation of the New Jersey Constitution, without specifying any particular part of that document. Based on the parties' briefing, it appears that the count is meant to mirror the excessive force claim. Counts III and IV seek to establish municipal and supervisory liability (imputed to unnamed supervisors) for the use of excessive force. Count V pleads a claim for negligence based on the allegations of excessive force. Count VI pleads "state law torts" without identifying them, but vaguely referring to assault and battery. And Count VII is labeled "conspiracy," and alleges that "Some or all of the aforesaid acts of the defendants were conducted recklessly or with the intent of causing the plaintiff severe emotional distress," and that "The conduct of the defendants was extreme and outrageous, which caused the Plaintiff to suffer severe emotional distress as a result of the previously mentioned conduct." This Court has federal question jurisdiction under 28 U.S.C. § 1331 and supplemental jurisdiction of related state-law claims under 28 U.S.C. § 1367.

Defendants Kiermeier and Kerby seek summary judgment as to all of Plaintiff's claims, arguing that there is no evidence that either officer was present during any of the alleged instances of excessive force. Defendant Bittner seeks partial summary judgment as to the claims against him arising out of the initial arrest of ...

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