The opinion of the court was delivered by: Hillman, District Judge
Plaintiff Dawud Ali brings a claim pursuant to 42 U.S.C. § 1983 for excessive force during his arrest in violation of his Fourth Amendment rights.*fn1 Before the Court is defendants' motion for summary judgment. For the reasons expressed below, defendants' motion will be granted.
Plaintiff Dawud Ali submitted his complaint to the Clerk of the Court on September 23, 2009. The matter was administratively terminated on October 8, 2009 because Plaintiff's in forma pauperis application was deficient. After the deficiency was cured and after pre-filing screening under 28 U.S.C. §§ 1915 and 1915A, the Court directed the Clerk to file the complaint on January 28, 2010. The complaint, filed pursuant to 42 U.S.C. § 1983, alleged an unprovoked attack by the defendant police officers and their K-9 partner. More specifically, Plaintiff alleged that on February 24, 2009, while he was waiting for an elevator at the High Gate Apartment Building in Atlantic City, New Jersey, K-9 Officer Salvatore J. Rando exited an arriving elevator and "immediately confronted plaintiff with his K-9 dog 'Sonto' and ordered his canine partner to attack plaintiff." Ali states he "...did not resist arrest at any point" and that "Defendant Rando canine partner attacked plaintiff and commenced biting plaintiff up and down his left leg and groin area." Ali further alleged that as the canine partner was biting him, police officers James Herbert and Salvatore Rando began punching, kicking and hitting plaintiff with a heavy object. Ali states he sustained permanent injuries from the canine bites.
Defendants proffer the following uncontested facts. On February 24, 2009, the officers were responding to a call of a home invasion and stabbing at the residence of Richard Carozzoni and Daniel Tavarez. The officers saw Ali in the building sweating and out of breath. Officer Rando asked Ali to wait until the police could assess the scene. Officer Herbert took Carozzoni, who had been stabbed, to the elevator where Ali was standing and he positively identified Ali. Officer Herbert told Ali to place his hands on his head and that he was under arrest. Defendants state that Ali refused to comply and placed his arms in his jacket. Officer Herbert then attempted to subdue Ali to handcuff him but Ali resisted arrest. Officer Rando repeatedly warned Ali to stop resisting or the K-9 would be released. Officer Rando was attempting to aid Officer Herbert who was on the ground underneath Ali, and that the K-9 subdued Ali until handcuff restraints were in place. After the handcuffs were in place, defendants state that Officer Rando directed the K-9 partner to release Ali. Ali was taken to the hospital from the scene for treatment of his dog bite wound.
On March 16, 2010, less than two months after this Court accepted his complaint for filing based on an allegation of an unprovoked and brutal attack by law enforcement officers and their canine partner a very different set of facts emerged. On that date, Ali plead guilty to first-degree robbery and resisting arrest as part of a plea deal offered by the prosecution. Ali testified during his plea hearing that while in the course of committing a theft, or attempted theft, he used force upon Carazzoni while armed with or threatening the immediate use of a weapon known to be capable of deadly harm. Ali also admitted that the police officers announced that he was under arrest and that he did not cooperate. Ali stated "I refused to be handcuffed" and that he "pushed off on [the officer]." Ali testified he pushed the officer hard enough to get him away so that he could not put handcuffs on him.
During the hearing, Ali was asked by the state court judge if he realized he was under oath, and Ali responded "yes." The state court judge also confirmed that he had no hesitation whatsoever in pleading guilty, that he was not forced or threatened to do so, that no promises were made to get him to plead guilty other than those on the plea forms, and that he was satisfied with all the advice and service of his counsel. On April 16, 2010, Ali was sentenced to 15 years' incarceration in state prison.
The facts Plaintiff admitted in his plea colloquy in state court stand in stark contrast to the facts alleged in his complaint. Rather than being the seemingly innocent bystander who, while simply waiting for an elevator, was accosted and assaulted by police officers and their dog, Plaintiff was actually in the process of fleeing a violent robbery who, when positively identified on the scene by the victim and ordered by law enforcement to submit, responded with acts of physical resistance to the officers.
A. Summary Judgment Standard
Summary judgment is appropriate where the Court is satisfied that "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986); Fed. R. Civ. P. 56(c).
An issue is "genuine" if it is supported by evidence such that a reasonable jury could return a verdict in the nonmoving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" if, under the governing substantive law, a dispute about the fact might affect the outcome of the suit. Id. In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the non-moving party's evidence "is to be believed and all justifiable inferences are to be drawn in his favor." Marino v. Industrial Crating Co., 358 F.3d 241, 247 (3d Cir. 2004)(quoting Anderson, 477 U.S. at 255).
Initially, the moving party has the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met this burden, the nonmoving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id. Thus, to withstand a properly supported motion for summary judgment, the nonmoving party must identify specific facts and affirmative evidence that contradict those offered by the moving party. Anderson, 477 U.S. at 256-57. A party opposing summary judgment must do more than just rest upon mere allegations, general denials, or vague statements. Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001).
B. Motion for Summary Judgment
Defendants filed a motion for summary judgment seeking to dismiss Ali's complaint on grounds that: (1) Ali cannot sustain a cause of action under Section 1983 pursuant to the Heck doctrine, (2) the Atlantic City Police Department and Officers Rando and Herbert are entitled to qualified immunity; (3) the Atlantic City Police Department is entitled to summary judgment under the Heck doctrine; and (4) plaintiff failed to comply with discovery. The discovery period in this matter ended on December 30, 2010, and defendants filed their summary judgment motion after the discovery period ended. Ali did not respond to defendants' discovery requests within the discovery period*fn2 and defendants did not depose Ali.
Ali filed a response to the summary judgment motion that was approximately four months late without requesting, or being granted, an extension. Although untimely and not in compliance with Rule 56, this Court will allow Ali to file his response and affidavit in response to summary judgment. See Crews v. Petrosky, 509 F.Supp 1199 (W.D.Pa 1981) (court considered a letter attached to plaintiff's amended complaint in ruling on a motion for summary judgment even though it did not comply with Rule 56(e)).
In his response, Ali states for the first time that he was assaulted "before and after he was handcuffed by way of a police K-9 dog." He also states in his affidavit in support of his response that the defendants told the dog to bite him after he was handcuffed "for no reason," and that he did not resist after he was handcuffed. Not only is this the first time that Ali makes such allegations, the allegations contradict what he stated in his complaint. In his complaint, Ali alleges that he was standing by an elevator when the K-9 dog immediately attacked him, presumably before he was handcuffed, or under arrest. Even liberally construing Ali's allegations in his complaint as we must, see Haines v. Kerner, 404 U.S. 519, 520 (1972), reh'g denied, 405 U.S. 948 (1972)(pro se complaints must be construed liberally, and all reasonable latitude afforded pro se litigants), the factual assertions differ with Ali's response and create confusion over Ali's version of the events. In addition, and significantly, the affidavit is inconsistent with Ali's testimony during his plea hearing. At the hearing, Ali admitted to resisting arrest and pushing the police officer, but did not testify that the K-9 partner bit him after he was handcuffed, or that he did not resist arrest after he was handcuffed.
Sworn testimony can be corrected by a subsequent affidavit in certain situations, such as when a witness was confused at an earlier deposition or for some other reason misspoke, and the subsequent correcting or clarifying affidavit may be sufficient to create a material dispute of fact. Martin v. Merrell Dow Pharmaceuticals, Inc., 851 F.2d 703,705 (3d Cir. 1988) (affirming district court's decision to disregard plaintiff's affidavit submitted only after she faced almost certain defeat in summary judgment and which flatly contradicted no less than eight of her prior sworn statements). However, in cases where there is no reasonable explanation for the contradictory affidavit and its purpose is to merely attempt to defeat summary judgment, such an affidavit, sometimes called a "sham affidavit" is properly disregarded. Id. (stating that "... the objectives of summary judgment would be seriously impaired if the district court were not free to disregard the conflicting affidavit.") (citations omitted); Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001) ("Factual allegations that might otherwise defeat a motion for summary judgment will not be permitted to do so when they are made for the first time in the plaintiff's affidavit opposing summary judgment and that affidavit contradicts [his] own prior deposition testimony.").
The Third Circuit has defined a "sham affidavit" as: ... a contradictory affidavit that indicates only that the affiant cannot maintain a consistent story or is willing to offer a statement solely for the purpose of defeating summary judgment. A sham affidavit cannot raise a genuine issue of fact because it is merely a variance from earlier deposition testimony, and therefore no reasonable jury could rely on it to find for the non-movant.... [I]f it is clear that an affidavit is offered solely for the purpose of defeating summary judgment, it is proper for the trial judge to conclude that no reasonable jury could accord that affidavit evidentiary weight and that summary judgment is appropriate.
EBC, Inc. v. Clark Bldg. Systems, Inc., 618 F.3d 253, 269 (3d Cir. 2010) (citing Jiminez v. All American Rathskeller, Inc., 503 F.3d 247, 253 (3d Cir. 2007). "[N]ot all contradictory affidavits are necessarily shams," however, "when there is independent evidence in the record to bolster an otherwise questionable affidavit...." Id. Before a court may deem a contrary affidavit a sham, it shall apply a "flexible approach." Jiminez, 503 F.3d at 254. This two-part inquiry focuses on whether an affiant can prove the bona fides of his affidavit through either 1) independent evidence on the record or 2) a satisfactory explanation for the discrepancy between the prior deposition testimony and the affidavit. Id. An affiant's failure to either explain contradictory statements or offer independent bolstering evidence indicates the affidavit is a sham, thus removing that impediment to the court's entry of summary judgment. Id.; O'Bryant v. City of Reading, 197 Fed.Appx. 134, 138 (3d Cir. 2006).
Applying a flexible approach to Ali's affidavit, he has not shown: 1) any independent evidence in the record that would support his claim that the K-9 bit him after he was handcuffed,*fn3 or 2) provided a satisfactory explanation for the discrepancy between the affidavit and his prior statements in his signed complaint, or his prior testimony during the state criminal proceeding. In his complaint, Ali states that he was waiting for an elevator when Officer Rando exited the arriving elevator and "immediately confronted plaintiff with his K-9 dog 'Sonto' and ordered his canine partner to attack plaintiff." Ali alleges that Officer Rando's canine partner attacked him and bit him "up and down his left leg and groin area." He also alleges that while the canine partner was biting him, the police officers began punching, kicking and hitting plaintiff with a heavy object.
Ali does not mention that he was handcuffed at any time during this altercation. His statement that the K-9 partner attacked him "immediately" suggests that he was not handcuffed since the police officer would not have had time to handcuff him and "immediately" have his K-9 partner attack him upon exiting the elevator. In addition, Ali's testimony given under oath during his plea hearing contradicts both the averments in his complaint and in his affidavit. Ali admitted at his plea hearing to resisting arrest and admitted to pushing the police officer. At no time during the plea hearing did Ali state that the K-9 partner had bit him after he was handcuffed, or that the officers had punched, kicked or hit him with a heavy object.
Thus, there is no reasonable explanation for the contradicting statements in Ali's affidavit other than an attempt by Ali to defeat summary judgment. Under these circumstances, the affidavit may be disregarded. See Martin, 851 F.2d at 705. Accordingly, the Court will not consider the statements in Ali's affidavit. However, the Court will consider Ali's testimony given at his plea hearing since ...