United States District Court, D. New Jersey
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.
JOSEPH H. RODRIGUEZ, UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
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).
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.
Summary Judgment Standard
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).
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
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
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).
Plaintiff's Constitutional Claims Against the
City of Atlantic City
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
Claims Under 42 U.S.C. § 1983 and Qualified
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
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
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).
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).
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)).
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).
Plaintiff alleges a violation of Mack's Fourth,
Fourteenth, and Eighth Amendment rights and there is no
dispute that the individual police ...