The opinion of the court was delivered by: Hon. Jerome B. Simandle
This matter is before the Court on the motion for summary judgment by Defendants Sean Malone and Township of Willingboro. [Docket Item 22.] The Plaintiff has filed opposition. [Docket Item 26.] The instant action arises out of the alleged use of excessive force by Defendant Police Officer Sean Malone ("Malone" or "Defendant") when arresting Plaintiff Jullian D. Booker ("Plaintiff") after a high speed chase.
The Plaintiff brought the instant action alleging a violation of his Fourth Amendment rights pursuant to 42 U.S.C. § 1983. The Plaintiff also brings two common law tort claims for assault and battery and malicious prosecution.
For the reasons discussed herein, the court will grant in part and deny in part Defendants' motion for summary judgment. The Court will grant summary judgment as to Plaintiff's common law tort claims as the court finds the Plaintiff has failed to satisfy the notice requirements of the New Jersey Tort Claims Act, N.J.S.A. 59:8-1, et seq. The court will also dismiss all claims against Defendant Township of Willingboro as the Plaintiff has not set forth sufficient evidence to support his § 1983 claim against the Township and consents to the dismissal of this claim. However, the court will not dismiss the Plaintiff's excessive force claim against Defendant Malone as the court finds there is a genuine issue of material fact which precludes summary judgment.
A. Statement of the Facts and Procedural History*fn1
The instant action arises out of an incident on the afternoon of April 2, 2009. The Plaintiff was a passenger in a Nissan Altima ("Altima") wherein the driver was later identified to be Silvester Inata Williams. At the time of the incident, Plaintiff was sixteen years old.
On April 2, 2009, Plaintiff was at a friend's house as he had been suspended from school. (Def.'s Ex. E, Deposition of Jullian Booker "Booker Dep.," at 19:7; 22:16-17.) The Plaintiff and Silvester were friends and the Plaintiff called Silvester to pick him up and give him a ride home. (Booker Dep. at 18:8-19:18.) Silvester then picked up the Plaintiff in the Altima and the Plaintiff rode in the passenger seat. (Booker Dep. at 21:7-11.)
Officer Lippincott observed the Altima traveling in a residential neighborhood at a high rate of speed. Officer Lippincott then turned his patrol vehicle around, activated his overhead lights and attempted to conduct a motor vehicle stop of the vehicle for speeding. (Defs.' Ex. A, April 2, 2009 Police Report by Officer Lippincott ("Lippincott Report") at 1).
Instead of pulling over, the Altima made a left turn away from the patrol car and accelerated to approximately 65 miles an hour. At this time, the Altima was traveling in a heavily residential neighborhood with a speed limit of 25 miles per hour. The driver of the Altima then lost control of the vehicle, went over a curb and came to a stop on a resident's lawn, causing damage to the property. Officer Lippincott exited his vehicle and ordered the driver out of his vehicle using loud verbal commands but the driver refused to exit. (Lippincott Report at 1.)
After approximately five seconds, the driver put his vehicle back into drive and began to drive away from the patrol car. The driver turned left further into the residential neighborhood and again accelerated to approximately 65 miles per hour. The driver of the Altima then attempted to turn right and lost control of the vehicle again. The driver regained control, put the vehicle in park and exited the vehicle. The driver then fled into the backyard of a residence and was pursued by Officer Lippincott. (Lippincott Report at 1.)
During the course of this pursuit, Officer Lippincott advised patrols that the suspect vehicle was fleeing from him in this residential neighborhood. (Defs.' Ex. C, Secondary Report by Officer Sean Malone "Malone Report," at 1.) Officer Malone and other Willingboro police officers responded to this call for assistance. Malone was near the residential area and drove his car to the intersection Officer Lippincott had indicated via radio. Upon entering the intersection, Malone immediately saw the Altima headed directly toward him at between 60 to 65 miles per hour and he had to swerve his vehicle to the right onto the grass and shoulder area in order to avoid a head on collision with the Altima. (Malone Report at 1.)
Malone then made a quick U-Turn and observed the Altima stopped in front of a residence and saw the driver exit the vehicle. Malone observed Officer Lippincott pursuing the fleeing driver. Malone then pulled his patrol car over, exited his vehicle and observed the Plaintiff, who was the passenger in the vehicle, beginning to open the passenger door to the vehicle. The passenger door opened partially and it appeared to Malone that the passenger had gotten caught in the seatbelt. (Malone Report at 1.)
Malone approached the vehicle and drew his service weapon. In accordance with his training, Malone rushed forward with his canine partner, Milo, opened the passenger door fully, grabbed the occupant out of the vehicle, re-holstered his weapon and spun the Plaintiff to the ground in order to affect his arrest. (Malone Report at 1; Defs.' Ex. D, Deposition of Sean Malone "Malone Dep.," at 25:18-20.) Upon taking the Plaintiff to the ground, Malone placed his right knee on the Plaintiff's back while controlling Milo with his left hand. (Malone Report at 1.)
Malone then commanded the Plaintiff to place his hands behind his back and told the Plaintiff not to move. (Malone Report at 1.) Malone, in both his report and his deposition testimony, maintains that the Plaintiff refused to comply with his command and resisted arrest by attempting to push himself off the ground and dislodge Malone from his back. (Malone Report at 1, Malone Dep. at 36:25-37:7.) Malone then delivered two strikes to the Plaintiff. Malone alleges these strikes were PPCT strikes to the back of the Plaintiff's shoulders. (Malone Dep. at 37:16-17.) Malone maintains that two strikes were given to keep the Plaintiff from moving since Malone was alone on the scene and had only his canine partner, Milo, for back up. (Malone Dep. at 37:23-38:2.)
After the two strikes were given, Malone stayed on top of the Plaintiff and waited for an additional officer. (Malone Dep. at 38:7-10.) Shortly thereafter, Sgt. Bowman arrived, took Office Malone's handcuffs from the back of his utility belt and handcuffed the Plaintiff. (Malone Report at 1.)
The Plaintiff disputes Defendant Malone's version of events. The Plaintiff testified during his deposition that he had cracked open the passenger door and was waiting for the officer's commands before exiting the vehicle. (Booker Dep. at 30:22-31:2.) The Plaintiff alleges that Officer Malone opened the passenger door with a gun in one hand and his dog on his side and grabbed him by the collar of his T-shirt. (Booker Dep. at 31:4-10.) Plaintiff maintains that during this interaction, Officer Malone told him to "Get the fuck out of the car" and to "Get the fuck on the ground." (Booker Dep. at 30:25-31:10.) Then Malone pulled the Plaintiff to the ground so he was lying face down on the concrete. (Booker Dep. at 31:12-14.)
Plaintiff next testified that after he was pulled to the ground, Malone put his gun away and grabbed his dog, Milo and said, "If you fucking move I'll have my fucking dog bite your fucking face off." While he was saying this, Plaintiff maintains that Malone pulled his dog close to his face and he could feel the slobber from the dog's tongue dripping on his face. (Booker Dep. at 31:18-25.) It is undisputed by the parties that Milo, Malone's canine partner, did not bite or physically harm the Plaintiff during this encounter.
After the Plaintiff was face down on the concrete, Plaintiff testified that Malone struck Plaintiff twice in the left backside of his head. (Booker Dep. at 32:2-4.) Plaintiff stated that the blows to the back of his head bruised the left side of his face and caused his teeth to sink into the inside of his mouth leaving a big gash. (Booker Dep. at 32:9-12.) The Plaintiff denies that at any time during this encounter he was resisting arrest or attempting to escape. (Booker Dep. at 36:11-13.) The Plaintiff maintains that he was complying with all of Officer Malone's orders. (Booker Dep. at 36:10.)
The Plaintiff did not suffer any permanent physical injuries as a result of this incident. The Plaintiff testified that he gets headaches a lot, but he did not know if the headaches are a result of this incident with Officer Malone. (Booker Dep. at 76:23-77:3.)
The entire interaction between Officer Malone and the Plaintiff was captured on video from Officer Lippincott's police car. (Defs.' Ex. G.) The entirety of the interaction between Malone and the Plaintiff lasted 74 seconds. Malone was able to gain control of the Plaintiff in 24 seconds. However, while Officer Malone is visible at all times, once the Plaintiff is on the ground, most of Plaintiff's body is blocked from view by Officer Lippincott's car, with the exception of his legs. Consequently, the video does not resolve the factual disputes at issue, specifically whether Malone struck the ...