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Megan Gunter, Administratrix v. the Township of Lumberton

June 29, 2012


The opinion of the court was delivered by: Hillman, District Judge


This matter comes before the Court by way of Plaintiff's motion [Doc. No. 89] for reconsideration of the Court's November 7, 2011 Amended Order granting in part and denying in part Defendants' motion [Doc. No. 73] for summary judgment. Also before the Court is a motion [Doc. No. 88] by Defendants Township of Lumberton, Douglas W. Lemyre, Robert J. Slocum, Paul M. Craig, Ronald J. Sanna, and Bryan H. Norcross similarly seeking reconsideration of the Court's November 7, 2011 Amended Order and also seeking summary judgment with respect to newly raised issues in this case outlined in a hearing on November 1, 2011.

The Court has considered the parties' submissions, and decides this matter pursuant to Federal Rule of Civil Procedure 78. For the reasons expressed below, Plaintiff's motion for reconsideration is denied, and Defendants' motion for reconsideration and summary judgment is granted.


In this action, Plaintiff brought federal constitutional claims pursuant to 42 U.S.C. § 1983, as well as claims under New Jersey state law. This Court has jurisdiction over Plaintiff's federal claims under 28 U.S.C. § 1331, and may exercise supplemental jurisdiction over Plaintiff's related state law claims pursuant to 28 U.S.C. § 1367.


A. Background Presented on Defendants' Original Motion for Summary Judgment

In this case, Plaintiff Megan Gunter, daughter of the decedent, Albert Gunter, and administratrix of his estate, brought suit against Defendants, the Township of Lumberton, Douglas W. Lemyre, Sergeant Robert J. Slocum, Corporal Paul M. Craig, Patrolman Ronald J. Sanna, and Patrolman Bryan H. Norcross. Plaintiff originally alleged violations of Albert Gunter's (or, "the Decedent") federal constitutional rights, as well as a claim under New Jersey's Wrongful Death Act, N.J.S.A. § 2A:31-1 et seq. Plaintiff's claims arise out of the events which occurred in the early morning hours of November 10, 2006 and ended tragically with death of Albert Gunter.

As presented in the parties' briefing on Defendants' original motion for summary judgment, the record reveals that on or around the late evening hours of November 9, 2006, Albert Gunter was in the garage of the home of his nephew, Larry Gunter, Jr., making loud noises, and that Albert Gunter refused to stop despite Larry's request. Earlier that same day, Albert was disruptive and had engaged in a minor physical altercation with Larry, which led to Albert tumbling down a couple of stairs. After Albert Gunter refused Larry's request to quiet down, Larry called for emergency services to assist in removing his uncle from his home. During his 9-1-1 call, Larry explained that Albert was out of control, loud, and intoxicated, and had an outstanding warrant.

While traveling to Larry's home, police officers were advised that, according to the caller, Albert had an outstanding warrant.*fn1 Around 1:30 a.m., on the morning of November 10th, Patrolman Norcross arrived at Larry's home, joined soon thereafter by Sergeant Slocum and Patrolman Lemyre.*fn2 According to Norcross, Larry informed him that Albert had been drinking alcohol, had a history of drug use, and had an outstanding warrant. Larry asked the officers to remove his uncle from the premises. The officers heard Albert yelling, banging, and making loud grunting noises in the garage. Patrolmen Norcross and Lemyre ordered Albert to step away from the interior garage door so that they could enter the garage from inside Larry's home. Sergeant Slocum remained with Larry while Norcross and Lemyre went into the garage with Albert. Slocum told Larry that no matter what he heard in the garage, he was not to enter. Upon arrival, Corporal Craig and Patrolman Sanna also entered the garage.

By the officers' accounts, Albert appeared erratic, agitated, and to be sweating profusely. Norcross and Lemyre instructed Albert to sit down on a weight bench in the room. Albert sat for awhile but continued to rise up from the seat despite the officers' orders. Albert rambled incoherently from topic to topic and made exaggerated body and hand motions. During his interaction with the officers, he positioned himself in a "three-point stance" like in football, flailed his arms up and down, and paced as he spoke. (Defs.' Summ. J. Mot. [Doc. No. 73], Exs. I, at 30; AA, at 35.) In an effort to notice any contraband or potential weapons, the officers looked around the garage. They noticed empty beer cans, drug paraphernalia,*fn3 and drug residue, along with lumber, tools, weights, and other potentially dangerous objects. In response, Albert attempted to focus the officers' attention on him, asking, "What are you looking at?", "Don't look at that, look at me," "Talk to me," and "Don't you want to talk to me?" (Defs.' Summ. J. Mot. [Doc. No. 73], Ex. Y, at 24.) Corporal Craig moved toward the exterior garage door and, and concerned about Albert's behavior, hid his handcuffs behind his back.

Patrolman Lemyre returned inside Larry's home and informed Sergeant Slocum that they intended to take Albert into custody.

According to Lemyre, he asked Larry if Albert had been drinking or using narcotics; Larry confirmed that Albert had been imbibing beer and may have smoked crack cocaine. Thereafter, Lemyre and Slocum entered the garage. Lemyre approached Albert and advised him that he was under arrest. Albert objected, repeating "no, no, no" and saying "You're not going to do this to me."*fn4 (Defs.' Summ. J. Mot. [Doc. No. 73], Exs. W, at 96; AA, at 36.) Albert then physically resisted by pulling away from and pushing Lemyre, and flexing his muscles and disallowing the officers to place his hands behind his back. Lemyre and Gunter engaged in a physical altercation, with Lemyre delivering several punches and a knee to Gunter's body. Corporal Craig and Patrolman Sanna tried to intercede and take Gunter to the ground. Patrolman Norcross also engaged Gunter by grabbing his left arm and executing a leg sweep and arm drag to take him to the ground. The officers and Gunter fell to the floor. Gunter flailed his arms and legs, punching and kicking at the officers. To subdue Gunter, Craig struck him with his fist about three times in the face, but Albert responded by saying, "Yeah, hit me again." (Defs.' Summ. J. Mot. [Doc. No. 73], Ex. AA, at 36.) Craig punched him again. The strikes appeared to have no effect on Gunter.

Gunter continued to resist arrest, disregard orders, and brawl with the officers. He attempted to push himself off the ground with the officers on top of him and, on a couple occasions, tossed Craig off of him. Norcross and Slocum tried to secure Gunter's legs and feet but failed. With Gunter resisting while on his hands and knees, Craig struck Gunter's left leg and side with his knee, but Gunter did not relent. Lemyre employed pepper spray against Gunter, but to no avail. Due to the discharge of pepper spray, one of the officers eventually opened the exterior garage door. Gunter tossed Craig off of him and told the officers, "If I'm gonna die, you're all gonna die." (Defs.' Summ. J. Mot. [Doc. No. 73], Ex. AA, at 37.)

Lemyre, Sanna, and Craig each attempted to restrain Gunter and keep him on the ground, but Gunter continued to resist. Craig discharged pepper spray directly into Gunter's face, but again it did not phase him. The officers rolled him onto his stomach, and Craig, with Lemyre's assistance, handcuffed Gunter's left wrist. Sanna secured Gunter's right wrist with a handcuff. Eventually, in spite of Gunter's resistance, the officers managed to handcuff his hands together. Gunter continued to flail and kick at the officers, and tried to maneuver his knees underneath him so that he could get up. Norcross attempted to lay across Gunter's legs, but could not do it. Craig struck Gunter's leg with his fist, but Gunter continued to resist. Sanna tried to push Gunter back to the ground and sprayed him with pepper spray.

The officers attempted to secure Gunter's legs together, but he repeatedly snapped the flex cuffs they used. Gunter resisted the officers' attempts to subdue him, angrily swore at them, and smeared his face in blood that accumulated on the floor. Lemyre, however, had moved Gunter's head to ensure that he could breathe.

From his vehicle Sanna retrieved three more sets of handcuffs with the intent to connect Gunter's belt to the flex cuffs restraining his legs. At one point, the officers also tried to use a white leather belt on the floor to inhibit Gunter's legs. Sanna delivered several blows with his fist to Gunter's right leg to try to control it. After several attempts, the officers finally were able to secure Gunter's hands and legs. Overall, the process of arresting Gunter endured approximately twelve minutes. During the fray, the officers noticed a bleeding laceration on Gunter's forehead. Officer Lemyre called for emergency services. After Gunter had been restrained, Lemyre checked on Gunter's respiration and ensured that he could breathe. The officers retrieved medical supplies from their vehicles to treat Gunter's cut. Gunter continued to threaten and insult the officers.

As the officers treated Gunter's wound, he no longer struggled, and gasped a few breaths. The officers then noticed that Gunter ceased to move. They checked his pulse and observed that Gunter had stopped breathing. The officers removed the restraints and attempted, unsuccessfully, to revive Gunter.

During their depositions and statements, Larry and his wife, Theresa Gunter (collectively, "the Gunters"), attested to certain facts that were omitted by the officers or differed from their testimony and reports. For example, the Gunters recalled that during the altercation between Albert and the officers, Albert yelled for Larry and Theresa. Also, after the exterior garage door had been opened, the Gunters went outside so they could view the altercation inside the garage. Larry saw Albert restrained on the ground, conscious, and with blood underneath his head. Theresa also noticed that Larry was bleeding, moaning, and having difficulty breathing. When Larry and Theresa, a professional nurse, each stepped forward to check on Albert, both were told by officers to step back and not get involved, or risk arrest. Theresa asked the officers to call for an ambulance. According to Larry, at the end of the altercation, once the officers had hogtied Albert, they left him on the floor for approximately ten or fifteen minutes before checking on him or calling for emergency services. Larry asserts that once the officers finally checked him, the officers learned that Albert Gunter did not have a pulse and was unresponsive and then contacted the paramedics.

Paramedics arrived at the scene and escorted Albert to the hospital. Despite attempts to revive him, Gunter was pronounced dead around 2:26 a.m. Following his death, a coroner documented between fifteen to twenty contusions, bruises, and abrasions on his body. On his amended certificate of death, the immediate cause of Albert Gunter's death reads, "EXCITED DELIRIUM DUE TO COCAINE," and a contributing cause is listed as "STRUGGLE DUE TO COCAINE TOXICITY." (Defs.' Summ. J. Mot. [Doc. No. 73], Ex. C.)

B. Relevant Procedural History

Plaintiff's complaint originally alleged five counts, the following three of which are relevant here:*fn5 (1) a Monell claim pursuant to 42 U.S.C. § 1983 against the Township of Lumberton for failure to adequately train and supervise its officers under ("Count One" or "Monell Claim"); (2) a claim for excessive force pursuant to 42 U.S.C. § 1983 against the five Defendant Lumberton police officers ("Count Three" or "Excessive Force Claim"); and

(3) a claim for wrongful death under New Jersey state law ("Count Four" or "Wrongful Death Claim"). (See Pl.'s Br. in Supp. of Reconsideration [Doc. No. 89] 1; see also Pl.'s Compl. [Doc. No. 1] ¶¶ 25-35, 47-56, 57-58.)

On November 1, 2011, the Court conducted a hearing in this matter in relation to a September 30, 2011 Order which originally denied Defendants' motion [Doc. No. 73] for summary judgment. At the November 1, 2011 hearing, the Court clarified the denial of summary judgment with respect to certain claims.

(1) Excessive Force Claim

At the November 1, 2011 hearing, the Court amended the September 30, 2011 Order and granted summary judgment with respect to Count Three - Plaintiff's Excessive Force Claim finding that "as it relate[d] to the use of excessive force, at least up until the point that ... Mr. Gunter was restrained, ... there [were] no material issues of fact on that aspect of plaintiffs' claim." (Hearing Tr. [Doc. No. 90] 4:18-22, Nov. 1, 2011; see also id. at 17:17-20.) The Court did not find "any evidence to suggest that the officers were unreasonable in initiating --- or responding to [Albert Gunter's] resisting arrest with some reasonable force to restrain him, including the use of leg restraints when he continued to kick after being handcuffed." (Id. at 7:23-8:2.) The Court confirmed these findings in its November 7, 2011 Order. (See Order [Doc. No. 87] 2, Nov. 7, 2011.)

However, the Court expressed concerns at the November 1, 2011 hearing "about the material issues of fact as to when [Mr. Gunter] was finally restrained, how ... the officers responded after that event." (Id. at 9:15-17.) The Court framed the issue as follows, was Albert Gunter: left on the floor to die for 15 minutes while he was breathing, and [Defendants] refused a reasonable request to help from someone who is trained in medicine ... or, after having restrained him, [did Defendants] immediately call[] the EMTs, and [thus Mr. Gunter's] death ... is simply an unfortunate, unintended, and tragic consequence of a violent struggle? (Id. at 12:3-10.) The Court concluded that these "two very different scenarios, ... meant that there was a material issue of fact that needed to be resolved" relating to whether or not there was a "constitutionally unreasonable deprivation of medical attention" after Mr. Gunter was restrained. (Id. at 12:11-13, 16:19-24.) Accordingly, the Court invited the parties to file motions for reconsideration or renewed motions ...

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