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Charnette Holmes v. Brian Cushner and City of Millville

December 19, 2012


The opinion of the court was delivered by: Hon. Joseph H. Rodriguez


This matter is before the Court on motion of Defendants Brian Cushner and the City of Millville for summary judgment pursuant to Federal Rule of Civil Procedure 56. Oral argument was heard on the motion on November 8, 2012, and the record of that proceeding is incorporated here. For the reasons placed on the record that day, as well as those articulated below, the motion will be granted in part and denied in part.


On July 3, 2008, the Millville Police were called to Plaintiff Charnette Holmes's residence in the City of Millville due to a disturbance occurring outside. Defendant Officer Brian Cushner arrived on the scene along with Officer Angel Lopez. Lopez testified that when he arrived on scene, he "observed two females yelling at each other getting ready to fight." Lopez Dep., p. 26.

Plaintiff's niece, Destine Colvin, had been arguing loudly with another woman, LaToya Hadden in front of Plaintiff's house, where Colvin lived at the time. As the two officers walked toward Plaintiff's house, Plaintiff attempted to intercede, stating "Excuse me, sir, I'm the homeowner here." Pl. Dep., p. 74. According to Plaintiff, "I just touched him, 'Sir, you know,' he didn't want me to touch him. I was trying to tell him the person that created this had pulled off, who came here with the problem [Hadden] had pulled off, but he proceeded inside the gate up to the steps." Pl. Dep., p. 74. Cushner brushed Plaintiff's hand aside as she stated, "Sir, I'm trying to explain to you that the problem that was here just left. You let them drive off." Pl. Dep., p. 76, 77. "I was simply trying to explain to him that I'm the homeowner and the people that came -- that started the chaos was leaving. I was trying to explain the situation to him. And I don't know if he didn't want to hear it, I don't know, but he told me I was under arrest." Pl. Dep., p. 78-79. According to Plaintiff, Cushner also told her, "Don't put your hands on a fucking cop." Cushner denies using this language.

Cushner testified that when he began walking toward Colvin, Plaintiff approached him, saying she wanted to speak with him. Cushner Dep., p. 50-52. She grabbed his arm and he "yelled at her don't touch me." Cushner Dep., p. 54. Then, Plaintiff told Cushner he could not speak to her "that way." Cushner Dep., p. 62. Because Plaintiff stopped Cushner from approaching Colvin to question her, Cushner informed Plaintiff she was under arrest. Cushner Dep., p. 81-88.

Lopez testified that he observed Plaintiff "grab the patrolman's arm and place herself in between Patrolman Cushner and Destine Colvin." Lopez Dep., p. 37. Lopez did not observe any physical altercation between Plaintiff and Cushner and did not know exactly "what was transpiring" between the two because he was dealing with Plaintiff's son, but he has testified that Plaintiff placed herself between Cushner and Colvin, but she did not appear to be threatening in any way. Lopez Dep., p. 39, 46, 65, 68.*fn1

Cushner instructed Plaintiff to put her hands behind her back so he could handcuff her. Plaintiff testified, "I think I put both of them behind my back. I just think that I didn't put it back far enough so he pulled the one arm back further. Because I kept stating that my arms were behind my back." Pl. Dep., p. 105. In answer to Interrogatories, Plaintiff affirmed, "Officer Cushner sprayed Plaintiff with mace and stated now you're resisting. After Plaintiff was jumping all around after being sprayed at close range in her eyes, nose, and throat, he then slammed Plaintiff to the ground with great force." Pl. Dep., p. 105.

Cushner testified, "it was obvious that she wasn't going to give her arms up. So I took her to the ground, . . . reached around and sprayed her [with department-issued pepper spray]." Cushner Dep., p. 101, 105. Plaintiff was transported to the county jail, but the nurse there would not admit her until she was seen in the local emergency room. Cushner Dep., p. 137-38. A follow-up appointment with Plaintiff's doctor revealed "evidence of trauma" including an abrasion on her right elbow and a spot of blood in both ear canals that "could be from head trauma." Mortensen Dep., p. 30, 31, 35. Plaintiff also complained of neck pain and a bad headache; she exhibited a decreased range of motion in her neck, had a left shoulder injury, and was crying and very upset during the exam. Mortensen Dep., p. 37.

Plaintiff was convicted in Millville Municipal Court of hindering the apprehension of another and resisting arrest.


A. Summary Judgment Standard

"Summary judgment is proper if there is no genuine issue of material fact and if, viewing the facts in the light most favorable to the non-moving party, the moving party is entitled to judgment as a matter of law." Pearson v. Component Tech. Corp., 247 F.3d 471, 482 n.1 (3d Cir. 2001) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)); accord Fed. R. Civ. P. 56 (c). Thus, this Court will enter summary judgment only when "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 judgment as a matter of law." Fed. R. Civ. P. 56 (c).

An issue is "genuine" if 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 determining whether a genuine issue of material fact exists, the court must view the facts and all reasonable inferences drawn from those facts in the ...

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