The opinion of the court was delivered by: Hon. Joseph H. Rodriguez
MEMORANDUM OPINION & ORDER
This matter is before the Court on a motion for summary judgment filed by Defendants Michael R. Parsons, Felix Rivera, Jr., and the City of Millville , joined by Defendant Gavin Phillips . Oral argument was heard on the motions on November 20, 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 motions will be granted.
Plaintiff Alejandro Rivera ("Plaintiff") filed the Complaint in this matter on July 9, 2010 as the result of a March 9, 2009 altercation with Defendant police officers Michael Parsons, Felix Rivera, Jr. ("Rivera"), and Gavin Phillips, who were employed by Defendant The City of Millville. Plaintiff contends he was visiting family members in Millville that night when the Millville Police Department was called due to a "family dispute." Compl., ¶ 12. Plaintiff went to his sister's apartment that evening and got into an argument with his sister and mother regarding the preparation of food for his wife's upcoming baby shower. Pl. Dep., p. 13. Plaintiff was on Percocet at the time. Pl. Dep., p. 7. His sister "threw [him] out of the apartment and then [he] left, disturbed, bothered." Pl. Dep., p. 13.
Through her open kitchen window, Plaintiff's sister instructed him to leave the premises or she would call the police. P. Dep., p. 15. She closed the window and Plaintiff hit it with an open hand, breaking the window and cutting his hand. Pl. Dep., p. 15-16. He also broke a window on the other side of his sister's front door. Pl. Dep., p. 18-19. At that point, Plaintiff's sister called the police. Yaris Rivera Dep., p. 21. Next, Plaintiff got on top of the hood of his sister's van, denting the hood and shattering the windshield with his legs, and Rivera arrived on the scene. Pl. Dep., p. 16.
Rivera "saw a Hispanic male pacing back and forth in the front of that building and he was being -- yelling. He was yelling, basically being real loud when he was talking." Rivera Dep., p. 24. When Rivera attempted to speak to Plaintiff, first in English and then in Spanish, Plaintiff made clear that he did not want to talk to Rivera, and told Rivera not to touch him. Rivera Dep., p. 25-28. Plaintiff's sister allegedly informed Rivera that Plaintiff had been drinking and had broken her windows. Rivera Dep., p. 32.
Plaintiff, who did not speak or understand English, Pl. Dep., p. 21, 42, testified that he put his hands in front of him and told Rivera, who spoke Spanish, "if you are going to handcuff me, put the handcuffs through the front because I have a surgery." Pl. Dep., p. 20. Plaintiff's brother-in-law also testified to this. Leon Dep., p. 21. Then Phillips arrived at the scene and allegedly twisted Plaintiff's arm to the back, Plaintiff pushed Phillips with an open hand to the face, and he punched Plaintiff in the nose. Pl. Dep., p. 19, 49, 86. Plaintiff testified that Parsons and Phillips then kneed him in the groin area to get him to bend down, threw him on the floor, and climbed on top of his shoulder, handcuffing Plaintiff behind his back. Pl. Dep., p. 19-20, 31, 33.
Plaintiff also testified that, at the time, he heard Rivera warn the other officers that Plaintiff had had shoulder surgery. Pl. Dep., p. 21-22. See also Leon Dep., p. 23. Rivera, however, testified that as Phillips and Parsons approached, Rivera signaled to them that Plaintiff was going to have to be placed under arrest. Rivera Dep., p. 38; accord Parsons Dep., p. 10. Rivera grabbed Plaintiff's left wrist and began to pull it behind Plaintiff to place him under arrest. Rivera Dep., p. 43. Rivera testified that Plaintiff then pulled his left arm out of Rivera's grasp and struck Phillips in the face with an open hand. Rivera Dep., p. 43-44. See also Phillips Dep., p. 27. Rivera then attempted to knock Plaintiff off balance and took him to the ground on his left side in a "controlled manner" and Parsons was able to handcuff him. Rivera Dep., p. 51-52. During that time, Rivera was not made aware of any problem with Plaintiff's left arm, Rivera Dep., p. 54, but in the processing room of the police station, Plaintiff "simply stated that he had some kind of surgery recently." Rivera Dep., p. 55. Similarly, Parsons and Phillips testified that at no point during the arrest did they hear anyone say anything about Plaintiff having recently had surgery. Parsons Dep., p. 48; Phillips Dep., p. 37-38.
Plaintiff described the pace of the situation as follows: "When more patrol arrived, then I calmed down. I was calming myself down, and that's when I said to [Rivera], put the handcuffs in front, but that's when [Phillips and Parsons] came out very quickly on top of me. They came out very quickly, and then just came on top of me." Pl. Dep., p. 28. Plaintiff's sister concurred, "everything happened so fast." Yaris Rivera Dep., p. 30. "He started struggling until they threw him to the ground." Yaris Rivera Dep., p. 45. Parsons characterized Plaintiff's actions as struggling and resisting.
Parsons Dep., p. 21. He estimated that the struggle lasted about a minute. Parsons Dep., p. 47. Phillips also testified, "Alejandro began to struggle with [Rivera and Parsons], just moving about, not allowing them to place handcuffs on him." Phillips Dep., p. 20.
Plaintiff recalls that there were "a lot" of people who had gathered, his sister and mother were yelling in Spanish, and his brother-in-law was speaking English and Spanish, saying the word "surgery." Pl. Dep., p. 28-29, 46, 51.*fn1 See also Leon Dep., p. 25. Parsons also observed that upon his arrival at the apartment, approximately ten people had gathered. Parsons Dep., p. 12-13. Phillips testified that by the time Plaintiff was on the ground with Rivera and Parsons, twenty to thirty people had gathered. Phillips Dep., p. 22.
Plaintiff admits that although he had a sling to stabilize his shoulder from the surgery he had 13-15 days prior, it "had rolled back to the back of [his] back" when he "went on the van to start jumping on the hood." Pl. Dep., p. 37.
As a result of the March 9, 2009 incident, Plaintiff was charged with resisting arrest, disorderly conduct, aggravated assault, and criminal mischief. On March 3, 2010, he pled guilty to criminal mischief and disorderly conduct and the charges of assault and resisting arrest were dismissed. Also allegedly as a result of the incident, Plaintiff had to undergo a second shoulder surgery. His physician, however, reported on March 12, 2009 that "It is difficult to tell whether he has sustained an injury to his shoulder from his arrest but it is unlikely." Gelfand Certif., Ex. 12.
The Complaint originally consisted of ten counts, but through briefing on the instant motions, Plaintiff has "concede[d] that his failure to comply with tort claim notice requirements compels dismissal of his state common law causes of action." Pl. Opp'n Br., p. 1. The remaining claims at issue here are: Count III - excessive force by Parsons and Phillips in violation of Plaintiff's Fourth Amendment rights; Count IV -failure by Rivera to intervene to prevent the use of excessive force; Count V - conspiracy among the individual Defendants to deprive Plaintiff of his civil rights; Count IX -municipal liability by Millville for failure to train and/or supervise its ...