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Conde v. City of Atlantic City

United States District Court, D. New Jersey

December 5, 2017

RUBY CONDE, as the Administratrix ad Prosequendum, of the Estate of Derreck Denzel Mack, deceased, and Individually as the Surviving Mother and Heir at Law of Decedent, Plaintiff,
City of Atlantic City, John Doe Officer #1 and John and Jane Does #2-10, Defendants.



         This matter comes before the Court on Motions of the City of Atlantic City [Dkt. No. 54] and Defendants John Smith and Michael Ruzzo [Dkt. No. 53] seeking summary judgment, pursuant to Fed.R.Civ.P. 56. The Court has considered the written submissions of the parties, as well as the arguments advanced at the hearing on May 22, 2017. For the reasons stated on the record that day, as well as those that follow, the City of Atlantic City's motion is granted and John Smith's and Michael Ruzzo's motion is granted.

         I. Background

         Plaintiff Ruby Conde brings this action individually and on behalf of the Estate of, her son, Derrek Denzel Mack (“Mack”). Mack was shot and killed by Defendant Atlantic City Police Officer John Smith on December 17, 2012. According to the Complaint, law enforcement officers responded to the area of Baltic Avenue and Martin Luther King Boulevard, in Atlantic City, New Jersey, in response to information that two individuals, with a concealed weapons, were observed in the area. See Smith Stat., Def. Ex.2; Am. Compl., ¶ 16. Upon the arrival of Officer Tweedle, Mack ran. Am. Compl. at ¶ 18. Mack, alleged as unarmed, ran for approximately one block when Smith, who had arrived on the scene and began to pursue Mack on foot, drew his weapon. Id. at ¶¶ 18, 24. According to Plaintiff, Mack stopped running and signaled surrender by raising his arms in the air. Id. at ¶ 21. Defendant Smith fired his weapon three times striking Mack twice in the back; a third shot missed Mack and struck a nearby vehicle. Id. at ¶¶ 22, 23.

         As a result of the two bullet wounds, Mack collapsed on the sidewalk and remained in a prone position. There is video evidence of the scene, taken by a bystander's cell phone, after Mack was shot. Defendant Atlantic City Police Officer Michael Ruzzo and other back up officers arrived on the scene of the shooting. See iPhone video, Ex. 7; Am. Compl. at ¶ 26. As will be discussed infra, video evidence demonstrates that for approximately five minutes, no one provided medical assistance to Mack, however, records indicate that Ruzzo called an ambulance approximately one minute after Mack was shot. Instead of rendering medical aid to Mack, Ruzzo took Smith to the hospital and left the scene. Am. Compl. at ¶ 30. Despite Ruzzo's departure, several other law enforcement officers can be seen on the video in close proximity to Mack, who was face down on the ground. See iPhone video, Ex. 7. Mack succumbed to the injuries sustained in the shooting, but it is unclear from the record whether Mack was dead on arrival at the Atlantic City Medical Center Emergency Room or he died at the facility.

         As will be discussed in detail, there are some disputed facts related to whether Mack was actually in possession of a gun on the day of the incident. Officer Smith claims that he witnessed Mack holding a firearm during his pursuit of the fleeing Mack. See Smith Stat., Ex.2. In addition, there is testimony from other Atlantic City police officers stating that Mack had a gun and that a gun was recovered from the area where Mack was shot and fell. None of the non-police witnesses testify that they saw Mack with a weapon; the testimony does not confirm the presence of a weapon, but does not exclude the possibility that Mack was armed.

         Conde brings several causes of action against the Defendants, pursuant to 42 U.S.C. § 1983, including a deadly force claim against Smith (Count I), a state created danger claim against Ruzzo and Smith (Count II), a denial of medical assistance claim against all of defendants (Count III), a municipal liability claim pursuant to Monell v. Dep't of Soc. Serv. of City of New York, 436 U.S. 658, 691-94, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) against Atlantic City (Count IV), a claim of battery against Smith (Count V), a wrongful death claim against all defendants (Count VI) and a Survivorship Action against all defendants (Count VII).

         During oral argument, Plaintiff conceded that she is not pursuing claims against Atlantic City on a theory of failure to train. The thrust of Plaintiff's case against Atlantic City rests on a failure to timely render medical assistance. The Court will address the claims against each defendant.

         II. Summary Judgment Standard

         A court will grant a motion for summary judgment 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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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 light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

         Initially, the moving party has the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has met this burden, the nonmoving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id.; Maidenbaum v. Bally's Park Place, Inc., 870 F.Supp. 1254, 1258 (D.N.J. 1994). Thus, to withstand a properly supported motion for summary judgment, the nonmoving party must identify specific facts and affirmative evidence that contradict those offered by the moving party. Andersen, 477 U.S. at 256-57. Indeed, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322.

         In deciding the merits of a party's motion for summary judgment, the court's role is not to evaluate the evidence and decide the truth of the matter, but to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. Credibility determinations are the province of the finder of fact. Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).

         A. Plaintiff's Constitutional Claims Against the City of Atlantic City

         Counts II and IV allege a violations of Mack's constitutional rights against the City of Atlantic City pursuant to section 1983. Section 1983 does not provide any substantive rights, but is instead a vehicle for the enforcement of rights. In Monell, 436 U.S. at 691-94, the Supreme Court stated that a municipality could not be held liable under Section 1983 pursuant to a theory of respondeat superior. Municipalities are only held responsible “for their own illegal acts.” Connick v. Thompson, 131 S.Ct. 1350, 1359 (2011) (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986)). As a result, Plaintiff's Claims in Counts II and IV as against Atlantic City, require a showing of liability against the other two named individual defendant police officers, Ruzzo and Smith.

         B. Claims Under 42 U.S.C. § 1983 and Qualified Immunity

         Plaintiff's constitutional claims are governed by Title 42 U.S.C. § 1983, which provides a civil remedy against any person who, under color of state law, deprives another of rights protected by the United States Constitution. See Collins v. City of Harker Heights, 503 U.S. 115, 120 (1992). Any analysis of 42 U.S.C. § 1983 should begin with the language of the statute:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

42 U.S.C. § 1983. As the above language makes clear, Section 1983 is a remedial statute designed to redress deprivations of rights secured by the Constitution and its subordinate federal laws. See Baker v. McCollan, 443 U.S. 137, 145 n.3 (1979). By its own words, therefore, Section 1983 “does not . . . create substantive rights.” Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006) (citing Baker, 443 U.S. at 145, n.3).

         To state a cognizable claim under Section 1983, a plaintiff must allege a “deprivation of a constitutional right and that the constitutional deprivation was caused by a person acting under the color of state law.” Phillips v. County of Allegheny, 515 F.3d 224, 235 (3d Cir. 2008) (citing Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996)). Thus, a plaintiff must demonstrate two essential elements to maintain a claim under § 1983: (1) that the plaintiff was deprived of a “right or privileges secured by the Constitution or the laws of the United States” and (2) that the plaintiff was deprived of his rights by a person acting under the color of state law. Williams v. Borough of West Chester, Pa., 891 F.2d 458, 464 (3d Cir. 1989).

         The doctrine of qualified immunity provides that “government officials performing discretionary functions . . . are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person should have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Thus, government officials are immune from suit in their individual capacities unless, “taken in the light most favorable to the party asserting the injury, . . . the facts alleged show the officer's conduct violated a constitutional right” and “the right was clearly established” at the time of the objectionable conduct. Saucier v. Katz, 533 U.S. 194, 201 (2001). Courts may exercise discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand. Pearson v. Callahan, 555 U.S. 223, 236 (2009).

         This doctrine “balances two important interests-the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably” and it “applies regardless of whether the government official's error is a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.” Id. (internal quotation omitted). Properly applied, qualified immunity “protects ‘all but the plainly incompetent or those who knowingly violate the law.'” Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2085 (2011) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).

         For a right to be clearly established, “[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Saucier, 533 U.S. at 202 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). That is, “[t]he relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Couden v. Duffy, 446 F.3d 483, 492 (2006). “If the officer's mistake as to what the law requires is reasonable, ” the officer is entitled to qualified immunity. Couden, 446 F.3d at 492 (internal citations omitted). Further, “[i]f officers of reasonable competence could disagree on th[e] issue, immunity should be recognized.” Malley, 475 U.S. at 341 (1986). See also Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (The general touchstone is whether the conduct of the official was reasonable at the time it occurred.) Finally, because qualified immunity is an affirmative defense, the burden of proving its applicability rests with the defendant. See Beers-Capital v. Whetzel, 256 F.3d 120, 142, n.15 (3d Cir. 2001).

         Here, Plaintiff alleges a violation of Mack's Fourth, Fourteenth, and Eighth Amendment rights and there is no dispute that the individual police ...

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