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Bou v. State

United States District Court, Third Circuit

August 26, 2013

GREGORY BOU, Plaintiff,
v.
STATE OF NEW JERSEY, et al., Defendants.

Michael Cortese, Esq. PATRICK GECKLE, LLC, Philadelphia, PA., Counsel for Plaintiff.

Roshan Deven Shah, Deputy Attorney General STATE OF NEW JERSEY, OFFICE OF THE ATTORNEY GENERAL Trenton, NJ, Counsel for Defendants.

OPINION

JOSEPH E. IRENAS, Senior District Judge.

Plaintiff Gregory Bou initiated this action to recover for injuries sustained when two New Jersey State Police Troopers attempted to take him to the hospital following a 911 call from Plaintiff's school nurse. Plaintiff asserts statutory claims under 42 U.S.C. § 1983 ("§ 1983") and the New Jersey Civil Rights Act, N.J.S.A. 10:6-2, as well as common law claims for assault, battery and intentional infliction of emotional distress.[1] Pending before the Court is Defendants Michael DePinto and Charles Hurley's Motion for Summary Judgment. For the reasons stated herein, Defendants' motion will be granted in part and denied in part.

I.

Plaintiff Gregory Bou is a student at the Sequoia Alternative Program ("Sequoia") (Def.'s S.O.M.F. ¶ 1; Pl.'s Resp. to Def.'s S.O.M.F. ¶¶ 1-4.)[2] He suffers from bipolar disorder and schizoaffective disorder.[3] (Pl.'s Br. in Opp., Ex. C 16:11-17:18.)

On November 18, 2009, [4] New Jersey State Police Troopers Michael DePinto and Charles Hurley responded to a 911 call from Plaintiff's school nurse to provide security for a medical assist at Sequoia. (Def.'s S.O.M.F. ¶¶ 4-6; Pl.'s Resp. to Def.'s S.O.M.F ¶ 1.) Defendants assert that dispatch indicated the subject, who unbeknownst to Defendants at the time was Plaintiff Gregory Bou, had possibly over-medicated himself and was irate or belligerent. (Def.'s S.O.M.F. ¶ 5).

Earlier in the day, Plaintiff accepted an orange, octagonal pill, later identified as suboxone, from a classmate to help him relax. (Pl.'s Brief in Opp., Ex. C 24:20-24, 29:2-12.) Shortly thereafter, Plaintiff claims he began to feel anxious, which necessitated a visit to school nurse Therese Land. ( Id. at 30:8-22, 31:6-13.) Plaintiff did not tell Nurse Land that he had taken a classmate's suboxone, but instead that he was suffering from anxiety as a result of taking too much of his own medication. (Pl.'s Supplemental S.O.M.F. ¶ 2;[5] Def.'s Resp. to Pl.'s Counter-S.O.M.F. ¶ 2.)[6]

After meeting with Plaintiff, Nurse Land called 911. (Pl.'s Brief in Opp., Ex. F 31:17-19.) Troopers DePinto and Hurley reported to Sequoia in response to the 911 call. (Def.'s S.O.M.F. ¶ 7; Pl.'s Resp. to Def.'s S.O.M.F. ¶¶ 6-12.) Trooper DePinto was the first to arrive at the scene.[7] (Def.'s S.O.M.F. ¶¶ 11-12; Pl.'s Resp. to Def.'s S.O.M.F. ¶ 6-12.) Trooper DePinto first conversed with Nurse Land, who DePinto testified in his deposition told him that Plaintiff was acting disorderly and disruptive. (Pl.'s Br. in Opp., Ex. E 21:20-22:7-10.) After conversing with Nurse Land, Trooper DePinto stepped into the hallway to speak with Plaintiff, who had been notified that he was going to be transported to the hospital and was scared. (Def.'s S.O.M.F. ¶ 16, 18; Pl.'s Supplemental S.O.M.F. ¶ 5; Def.'s Resp. to Pl.'s Counter-S.O.M.F. ¶ 5.)

Next to arrive was Trooper Hurley, who met with the school principal upon arrival. (Def.'s S.O.M.F. ¶ 19; Pl.'s Resp. to Def.'s S.O.M.F. ¶ 15-19.) In his deposition, Trooper Hurley testified that the principal informed him that Plaintiff had possibly overmedicated and was "either not happy or irate." (Def.'s S.O.M.F. ¶¶ 19-20; Pl.'s Resp. to Def.'s S.O.M.F. ¶¶ 19-20.) However, neither the principal nor Nurse Land told Troopers DePinto and Hurley that Plaintiff was dangerous. (Pl.'s Supplemental S.O.M.F. ¶ 4; Def.'s Resp. to Pl.'s Counter-S.O.M.F. ¶ 4.)

Trooper Hurley testified that on his way to the nurse's office, he heard Plaintiff yelling, "I'm not going to the fucking hospital. You're not fucking taking me. I'm not going. I want to go home." (Def.'s S.O.M.F. ¶ 21.) At this point, Plaintiff was seated in a desk facing the nurse's office. (Def.'s S.O.M.F. ¶ 17; Pl.'s Resp. to Def.'s S.O.M.F. ¶¶ 15-19.) Once he arrived at Nurse Land's office, Trooper Hurley positioned himself to Plaintiff's left, while Trooper DePinto stood in front of the desk in which Plaintiff was seated. (Def.'s S.O.M.F. ¶¶ 22-23; Pl.'s Resp. to Def.'s S.O.M.F. ¶¶ 22-23.) Trooper Hurley testified that while Plaintiff was seated in the desk, the two troopers allowed Plaintiff to "vent out and yell." (Def.'s S.O.M.F. ¶ 24.)

Plaintiff, however, maintains that he was not acting disorderly and disruptive. Instead, he claims that during the 10 to 20 minutes he was seated outside of the nurse's office, he was listening to music and talking to the school security guard, a substitute teacher at the school, and his cousin Tony Paz, also a student at Sequoia. (Pl.'s Supplemental S.O.M.F. ¶ 3; Pl.'s Br. in Opp., Ex. C 34:10-35:1-10; 39:18-40:2.)

Both parties agree that Paz, who was now down the hall, aggravated the situation by yelling, "[w]hat are you doing with my fucking cousin? What are you doing? Why don't you just let him go?" (Def.'s S.O.M.F. ¶ 26; Pl.'s Resp. to Def.'s S.O.M.F. ¶¶ 26-37.) Consequently, Paz was removed from the scene. (Def.'s SOMF ¶ 27; Pl.'s Resp. to Def.'s S.O.M.F. ¶¶ 26-37.)

Plaintiff then asked the troopers if he could call his mother. (Def.'s S.O.M.F. ¶ 28; Pl.'s Resp. to Def.'s S.O.M.F. ¶¶ 26-37.) After being given permission, he used his cell phone to see if his mother could drive him "wherever [h]e had to go." (Def.'s S.O.M.F. ¶ 29; Pl's Resp. to Def.'s S.O.M.F. ¶¶ 26-37.) Plaintiff's mother told him this would not be possible.[8] (Def.'s S.O.M.F. ¶ 30; Pl.'s Resp. to Def.'s S.O.M.F. ¶¶ 26-37.) Plaintiff testified that during the phone conversation his mother got a little angry, causing him to get a little angry back. (Def.'s S.O.M.F. ¶¶ 31-32; Pl.'s Resp. to Def.'s S.O.M.F. ¶¶ 26-37.) Trooper Hurley asserts that none of Plaintiff's anger during the call was directed at either trooper. (Pl.'s Supplemental S.O.M.F. ¶ 8; Def.'s Resp. to Pl.'s Counter-S.O.M.F. ¶ 8.)

After hearing a door open in a hallway on his left, Trooper Hurley's attention was diverted away from Plaintiff. (Def.'s S.O.M.F. ¶¶ 34-37; Pl.'s Resp. to Def.'s S.O.M.F. ¶¶ 26-37.) As Trooper Hurley focused on the hallway, Plaintiff rose out of his chair, cocked his arm back, and threw his cell phone to the ground. (Def.'s S.O.M.F. ¶¶ 37, 41; Pl.'s Resp. to Def.'s S.O.M.F. ¶¶ 26-37, 41-42.)

Trooper Hurley testified that when Plaintiff stood up to throw his cellphone, Hurley thought Plaintiff was attempting to throw an object at him. (Def.'s S.O.M.F. ¶¶ 38-39.) Trooper Hurley further testified that he did not know at the time that the object in Plaintiff's hand was a cell phone. (Def.'s S.O.M.F. ¶ 39.) Thus, Trooper Hurley testified that he felt Plaintiff threatened his safety. ( Id. at ¶ 43.) Additionally, Trooper DePinto asserts that Plaintiff ...


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