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Castellani v. City of Atlantic City

United States District Court, D. New Jersey

July 21, 2017



          Jennifer Ann Bonjean, Esq. Ashley Blair Cohen, Esq. BONJEAN LAW GROUP PLLC 1000 Dean St., Suite 345 Brooklyn, NY 11238 Attorneys for Plaintiff

          A. Michael Barker, Esq. Todd J. Gelfand, Esq. Vanessa Elaine James, Esq. BARKER, GELFAND & JAMES Linwood Greene, Suite 12 210 New Road Linwood, N.J. 08221 Attorneys for Defendant City of Atlantic City

          Tracy Riley, Esq. LAW OFFICES OF RILEY & RILEY 100 High Street, Suite 302 Mt. Holly, N.J. 08060 Attorney for Defendant Police Officer Sterling Wheaten

          Franklin Barbosa, Jr., Esq. Richard D. Trenk, Esq. TRENK DISPASQUALE DELLA FERA & SODONO P.C. 347 Mt. Pleasant Ave. West Orange, N.J. 07052 Attorneys for Police Officers Darrin Lorady, Avette Harper, Kevin Law, Scott Sendrick, and Matthew Rogers

          John Charles Hegarty, Esq. JASINSKI, P.C. 707 White Horse Pike Suite A1 Absecon, N.J. 08201 Attorney for ACPD Sergeant Daryl Hall


          JEROME B. SIMANDLE U.S. District Judge


         I. INTRODUCTION .............................................. 3

         II. BACKGROUND .............................................. 4

         A. Summary Judgment Record ................................. 4

         B. Procedural Background .................................. 14

         III. STANDARD OF REVIEW ....................................... 15

         IV. DISCUSSION .............................................. 18

         A. Defendant Officers Lorady, Law, Sendrick, Rogers, and Harper ................................................. 18

         1. Qualified Immunity Overview ........................... 19

         2. Defendant Officers are Not Entitled to Qualified Immunity on the Excessive Force Claim, and Summary Judgment on that Claim is not Warranted. . ......................... 22

         3. Summary Judgment is Warranted on Plaintiff's Malicious Prosecution Claim (Count I) ........................... 30

         4. Summary Judgment is Not Warranted on Plaintiff's Due Process Claim (Count I) ............................... 32

         5. Summary Judgment is Not Warranted on Plaintiff's Civil Conspiracy Claim (Count III) .......................... 36

         6. Summary Judgment is Warranted on Plaintiff's Intentional Infliction of Emotional Distress Claim (Count III) .... 38

         B. Defendant Wheaten is Not Entitled to Qualified Immunity on the Excessive Force Claim, and Summary Judgment on That Claim is Not Warranted ................................. 39

         C. Summary Judgment is Warranted on Plaintiff's Claim Against Defendant Hall for Supervisory Liability (Count IV) .... 52 D. Plaintiff's Monell Claims Against the City of Atlantic ... City (Count II) ........................................ 57

         V. CONCLUSION ................................................. 78


         Plaintiff David Connor Castellani (hereinafter, “Plaintiff” or “Castellani”) filed suit against various Atlantic City Police Department (“ACPD”) officers and the City of Atlantic City arising out of an alleged assault outside the Tropicana Casino & Resort in the early morning of June 15, 2013. Castellani claims that after he was ejected from the casino for being underage, insults were exchanged between several ACPD officers and himself, that the officers crossed the street to assault him as he stood on the sidewalk, that he was punched, kicked, and hit on the ground with nightsticks, and that after he was subdued a police officer placed a police dog on his prone body, which inflicted severe bites to his chest and neck requiring hospitalization and several hundred stitches. Plaintiff has brought numerous claims for deprivation of constitutional rights including use of excessive and sadistic force by the arresting officers, supervisory liability by a canine unit supervisor, and municipal liability for constitutional violations by Atlantic City for adopting customs and policies that are indifferent to the rights of those being arrested and for use of canine force against arrestees, among other things. Surveillance video captures much but not all of the encounter at issue.

         Before the Court are four motions for summary judgment: (1) Sergeant Daryl Hall, (2) Police Officer Sterling Wheaten, (3) Police Officers Avette Harper, Darrin Lorady, Kevin Law, Matthew Rogers, and Scott Sendrick, and (4) the City of Atlantic City (collectively, “Defendants”). For the reasons set forth below, the Court denies Defendants' motions related to Plaintiff's excessive force and Monell claims, and it grants Defendant Hall's motion on supervisory liability.


         A. Summary Judgment Record

         The Court begins with the summary judgment record.[1] On the evening of June 14, 2013, Plaintiff, a twenty-year-old male, took a limousine to the Tropicana in Atlantic City along with five of his friends after more than one but “somewhere around” five vodka mixed drinks at his friend's house. (Def. Wheaten SUMF at ¶¶ 6-7; Def. Atlantic City SUMF at ¶ 11.) Plaintiff and his friends brought alcohol with them as they rode in the limousine. (Def. Officers SUMF at ¶ 11.) When they arrived, Plaintiff and his friends, all under 21 years old, went to several bars inside the casino, and consumed several more alcoholic drinks there. (Def. Wheaten SUMF at ¶¶ 11-16; Def. Officers SUMF at ¶ 10.) Plaintiff testified that he was “overserved” at these bars. (Def. Officers SUMF at ¶ 14.)

         After midnight of that same night, Plaintiff went to Boogie Nights, a club located in the Tropicana and a place that he had visited at least five times prior to this particular night. (Def. Wheaten SUMF at ¶ 17; Def. Officers SUMF at ¶ 16.) Plaintiff obtained entry into the club, but once he was inside, a security guard who recognized him from previous ejections questioned Plaintiff about his identification. (Def. Officers SUMF at ¶ 17.) Plaintiff was upset with the security guard and accused him of harassing him. (Def. Atlantic City SUMF at ¶ 29.) After a verbal altercation in which Plaintiff swore at the guard and stated that the guard was “nothing but a rent-a-cop, ” Plaintiff was evicted from the club and the casino. (Def. Wheaten SUMF at ¶¶ 19-23; Castellani Dep. at 121:6-25.) Plaintiff was evicted from the casino three times that night, and he attempted to reenter the casino two times after being evicted. (Def. Wheaten SUMF at ¶¶ 24-25.)[2] Plaintiff stated that he continued to reenter the premises because he was “literally just trying to find [his] friends and go home because they were [his] ride.” (Castellani Dep. at 137:14-16.) At some point, Plaintiff was taken to the ground and handcuffed by casino security officers. (Atlantic City SUMF at ¶ 42.) Plaintiff was issued a disorderly conduct summons by Officer Lorady and after Plaintiff was released from handcuffs, he agreed to leave the premises. (Def. Wheaten SUMF at ¶¶ 32, 35.)[3] Plaintiff began to walk away from the premises after receiving his summons and started talking on his cell phone.

         However, a few minutes later, Plaintiff attempted again to return to the property. Surveillance video (without audio) begins to capture the scene around 3:04 A.M. Plaintiff told Officer Lorady that he needed to go back into the casino to look for a lost diamond earring, as the video shows Plaintiff checking the ground and his pockets around 3:05:33. (Id. at ¶ 37.) Plaintiff found his earring was actually in his pocket (around 3:05:49), and was told to leave the premises again.

         (Atlantic City SUMF at ¶ 60.) Plaintiff begins to walk away from the officers at 3:06:03.

         At 3:06:10, Plaintiff puts in his earring, takes out his cell phone and begins to text message on his cell phone. From 3:06:50 to 3:07:40, Plaintiff appears to be having a conversation on his cell phone. At 3:07:40, Plaintiff walks back towards Officers Lorady, Sendrick, Law, and Rogers, and begins have a short conversation with them. Plaintiff testified that he asked the group of officers present if they could escort him to his ride in front of the Tropicana, but they declined to do so.

         (Id. at ¶¶ 63-64.) At 3:08:03, Plaintiff walks away from the officers and crosses the street. At 3:08:13, from the other side of the street, Plaintiff begins to gesticulate and shout insults at the officers. Plaintiff testified:

I was upset and [the officers] said that the sidewalk in front of the Tropicana is also technically Tropicana property, and I had to go across the street and away from it. So I crossed the street and I put my hands up, said all right, now I'm off the f***ing property, you happy now, you a**holes. Now I'm stuck stranded out here. I'm trying to get my ride. And I was just yelling back at them and I was upset . . . [they] [k]ept saying go home, go home little boy.”

(Castellani Dep. 190:8-20.)

         Plaintiff further stated, at 3:08:37, “f*** you guys, you're all a bunch of idiots, bunch of losers who are cops now because you couldn't do anything else.” (Id. at 191:16-18.)[4]Plaintiff testified that in response, the officers were “calling me a drunk idiot and a kid and I had to go home to my mom and stuff. And just kept telling me to leave, that I should f*** off and stuff of that nature.” (Id. at 191:25 to 192:9.)[5]

         As Plaintiff continues to yell at the officers, at 3:08:47, the video shows, and Plaintiff admits, that he put his hands up in the air with his fingers closed for several seconds. (Id. at 192:22-23.) At 3:08:58, Plaintiff begins to walk away from the officers. At 3:09:04, he turns around, standing in his place from across the street, and starts gesticulating and shouting at the officers again. He continues walking away for several more seconds, but stops at 3:09:12 and begins to yell again, and Plaintiff concedes that his hands are in the air and his fists “may be clenched.” (Id. at 196:20.) He explained that the officers “wouldn't stop talking to me, ” he was “drunk and upset” and told them “I'm not doing anything. I'm going on my way.

         Thanks. Now I can't get home.” (Id. at 196:3-4, 17.) He further testified that he hadn't left at this point because “I was being antagonized. I was a drunk underage kid.” (Id. at 198:10:11.) Plaintiff points at the officers at 3:09:13 and intermittently continues to walk away and yell from 3:09:23 to 3:09:33. At 3:09:34, Plaintiff appears “very emotional” and is “speaking with his hands.” (Id. at 199:6-7.)

         At 3:09:36, Plaintiff walks closer to the officers, but stays on the opposite side of the street. He testified that as he started walking back towards the officers, one of them said, “I'll beat your a** if you come back here.” (Id. at 160:6-9.) At 3:09:44, Plaintiff stops walking, but continues to shout at them; he puts his hands straight down and remains in place.[6] At 3:09:49, as the shadow of the emerging officers appears in the video, Plaintiff extends his hands out to the side.

         Plaintiff is standing on the sidewalk alone when suddenly Officer Lorady appears at 3:09:50, and immediately engages physically with Plaintiff. Officers Sendrick, Law and Rogers emerge immediately behind Officer Lorady in an attempt to restrain Plaintiff. A scuffle ensues at 3:09:51 and Plaintiff is on the ground by 3:10:01.[7] Plaintiff states that at this point, he was “severely beat and assaulted by [the officers] with sticks, clubs, punches, knees to the head, [and] kicks . . .” (Id. at 162:14-16.)[8] Defendant Wheaten states in his police report that at 3:10, he was dispatched “in reference to a male who was fighting police, ” and the officers requested a K-9 unit “due to the violent struggle they were in attempting to subdue the male and place him in custody.” (Ex. I to Def. Wheaten SUMF at 12.) Defendant Wheaten further wrote that he “could hear in their voices an elevated tone of stress and knew they were in trouble.” (Id.)

         From 3:10:14, the video shows that Plaintiff is curled up in the fetal position while the officers continue to kick, knee and punch him. Officer Harper joins at 3:10:34 and begins to knee Plaintiff. By 3:10:40, Plaintiff's legs are extended and he is completely lying on his stomach.

         At 3:10:41, the K-9 van arrives, and at 3:10:49, Defendant Wheaten emerges with his K-9, Hagan.[9] As Defendant Wheaten holds Hagan's collar, without hesitation, he places Hagan directly onto Plaintiff's chest at 3:50:51. Hagan moves Plaintiff to his right, and the dog bites Plaintiff in the back of the neck repeatedly from 3:10:55 to 3:11:00. The biting continues behind the K-9 van (and thus partially obstructed from the viewer, who can only see Hagan's moving hindlegs and wagging tail, and Wheaten's backside over Hagan) starting at 3:11:00 for at least another fifteen seconds. By 3:11:20, the entire incident is completely obstructed by the van. Officers begin to step away from Plaintiff at 3:11:26, but Wheaten and his K-9 do not emerge again until 3:12:20. Defendant Wheaten finally puts his K-9 back into the van at 3:12:43. The officers then congregate next to the van, but Plaintiff does not appear in the video again.

         Plaintiff was eventually handcuffed, arrested, and charged. (Def. Wheaten SUMF at ¶ 51.) He was taken to the hospital where his blood alcohol level was .21. (Def. Officers SUMF at ¶¶ 60-61.) He was subsequently hospitalized for four days because of serious injuries to the back of his head and chest, which required over two hundred stiches. (Ex. E to Def. Wheaten Opp'n; Castellani Dep. at 219:2-4.) After an investigation by the Atlantic County Prosecutor into the conduct of Plaintiff and Defendant Officers, Plaintiff was indicted by a grand jury for Aggravated Assault - Police Officer, in violation of N.J.S.A. 2C:12-1b(5), Resisting Arrest - Threats/Force, in violation of N.J.S.A. 2C:29-2a(3)(a) and Inflicting Harm on a Law Enforcement Animal, in violation of N.J.S.A. 2C:29-3.1. (Id. at ¶ 57; Atlantic City SUMF at ¶ 115.) Subsequent to Plaintiff's indictment, he applied to New Jersey's Pretrial Intervention Program, and he was admitted to the program on July 23, 2015. (Id. at ¶ 62.)

Expert Reports

         Regarding excessive force, Plaintiff submitted two expert reports: one from Brian T. Weaver, P.E., President & Principal Engineer at Explico Engineering Co., who provided a biomechanical analysis of the surveillance video and concluded that “there was no contact between Mr. Castellani's left hand and Officer Lorady's face” during the initial encounter. (Ex. H to Officer Opp'n.) Additionally, Plaintiff submitted the declaration of Van Ness H. Bogardus, III, a retired Los Angeles County Deputy Sheriff and an advisor and trainer of police dogs and their handlers. (Ex. K to Def. Officers Opp'n.) Regarding the initial contact between Plaintiff and Defendant Lorady, Mr. Bogardus opined that “[b]y running toward and attempting to intentionally punch/strike Mr. Castellani in the head or face, Officer Lorady's conduct stands in gross violation of generally accepted police use of force training standards requiring that an officer must be responding to an immediate and a credible threat of sustaining a serious injury . . . before any use of potentially injuring force can be justified.” (Id. at 39.) After a detailed examination of the six police reports, Mr. Bogardus opined that “Officer Lorady falsely portrays himself as a victim of aggravated assault on a police officer by embellishing his report with facts and actions about Mr. Castellani that were not observed by the three assisting officers directly behind him.” (Id. at 44.) Additionally, Mr. Borgadus opined that it is “shocking to see that officer Wheaten permitted the dog to bite Mr. Castellani's chest and the back of Mr. Castellani's head and back for two minutes, ” which violates the ACPD's Use of Force Policies. (Id. at 18.)

         Regarding municipal liability, Plaintiff submitted two expert reports from Dr. Jon Shane, an associate professor of criminal justice at John Jay College of Criminal Justice in New York, NY. The first is a report “regarding the pattern of complaints against Atlantic City Police Officers Sterling Wheaten and Darrin Lorady, ” and the second is a report “regarding the Atlantic City Police Departments Internal Affairs Process and the pattern of complaints against Atlantic City police officers between 2009-2013.” (Exs. A and B to Atlantic City Opp'n.)

         No contrary expert reports have been submitted on behalf of Defendants.

         B. Procedural Background

         Plaintiff filed a Second Amended Complaint on August 13, 2015. [Docket Item 94.] Count I is a 42 U.S.C. § 1983 excessive force and unlawful search and seizure claim against Defendants Wheaten, Lorady, Sendrick, Law, Rogers, and Harper. Count II is a § 1983 municipal liability claim against the City of Atlantic City. Count III is a claim against Defendants Wheaten, Lorady, Sendrick, Law, Rogers, and Harper alleging various state law tort violations. Count IV is a failure to supervise claim against Defendant Hall. Count V is a punitive damage claim against Defendants Wheaten, Lorady, Sendrick, Law, Rogers, and Harper. Plaintiff withdrew his claim for unlawful arrest on November 12, 2015. (Atlantic City SUMF at ¶ 114.) The Court conducted oral argument on all of the pending summary judgment motions on July 12, 2017. [Docket Item 363.]


         At summary judgment, the moving party bears the initial burden of demonstrating that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); accord Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once a properly supported motion for summary judgment is made, the burden shifts to the non-moving party, who must set forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). In reviewing a motion for summary judgment, the court is required to examine the evidence in a light most favorable to the ...

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