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Adams v. City of Atlantic City

United States District Court, D. New Jersey

February 13, 2018

JULIUS ADAMS, Plaintiff,

          Jennifer Ann Bonjean, Esq. BONJEAN LAW GROUP PLLC Counsel for Plaintiff

          A. Michael Barker, Esq. Todd J. Gelfand, Esq. BARKER, GELFAND & JAMES Counsel for Defendant City of Atlantic City

          Tracy Riley, Esq. LAW OFFICES OF RILEY & RILEY Counsel for Defendants Timek, Dooley, Eisenbeis, and Hall


          JEROME B. SIMANDLE, U.S. District Judge


         This matter is before the Court on Defendant City of Atlantic City's (“Atlantic City”) Motion for Summary Judgment [Docket Item 200], as well as Defendants Atlantic City Police Department (“ACPD”) Officer Frank Timek, ACPD Officer Brent Dooley, ACPD Officer Kyle Eisenbeis, and ACPD Sergeant Daryl Hall's (“Individual Defendants”) Motion for Summary Judgment [Docket Item 195]. In this case, Plaintiff Julius Adams (“Adams”) claims his Fourth Amendment rights were violated when Atlantic City police officers conspired to use, and did use, excessive force against him during an encounter on the Atlantic City boardwalk. Plaintiff also claims that Atlantic City is liable under 42 U.S.C. § 1983 for failing to meaningfully investigate Internal Affairs complaints and failing to supervise, discipline, and train its officers with regard to officers' use of excessive force and use of K-9s (i.e., police dogs).

         Plaintiff filed his amended complaint in this Court on June 3, 2014, against, inter alia, Individual Defendants and Atlantic City. [Docket Item 34.] In due course, Defendants Timek, Dooley, Eisenbeis, Hall, ACPD Commander James V. Pasquale, and ACPD Officer Matthew Rogers filed their motion for summary judgment. [Docket Item 195.] Plaintiff subsequently filed stipulations of dismissal as to Defendant Pasquale [Docket Item 235] and Defendant Rogers [Docket Item 236], and a response in opposition to the Individual Defendants' Motion [Docket Item 230]. Atlantic City also filed its motion for summary judgment [Docket Item 200], and Plaintiff filed a response in opposition [Docket Item 228]. Individual Defendants filed a reply [Docket Item 234], as did Atlantic City [Docket Item 233].

         For the reasons stated herein, the Court will deny Individual Defendants' motion for summary judgment with regard to Plaintiff's excessive force and civil conspiracy claims and Atlantic City's motion for summary judgment with regard to Plaintiff's § 1983 municipal liability claim for failure to investigate, supervise, and discipline. The Court will also deny Atlantic City's motion for summary judgment with regard to the claim of failure to train K-9 handlers. The Court will grant Atlantic City's motion for summary judgment with regard to Plaintiff's § 1983 claim for failure to train non-K-9 officers regarding excessive force.

         II. BACKGROUND [1]

         A. Factual Background

         1. June 17, 2011 Incident

         On June 17, 2011, Plaintiff and a friend left a casino in Adams's car, when police stopped them. [Docket Item 195-7, Deposition of Julius Adams (“Adams Dep.”), at 18:7-11, 19:3-6.] Two police officers initially made the stop but many police cars quickly came to the scene. Adams testified that Officer Dooley, one of the police officers at the traffic stop, assaulted him by “slamming him into the hood of the car and roughing him up”. [Id. at 30:18-20.] Adams was taken back to the police station and charged with drunk driving.

         As a result of the traffic stop and encounter with Officer Dooley, Adams filed a complaint with the Internal Affairs Department of the ACPD sometime around September or October of 2011; however, he never received a response. [Id. at 34:14-25, 43:1-4.] In January of 2012, while in court for the drunk driving charge, Adams claims that Officer Dooley and other members of the police department threatened him by punching their fists into their hands, inside the courtroom while the judge was not present. [Id. at 48-49:24-25, 1-5.] He believed these threats occurred because the officers were displeased with him filing a complaint with Internal Affairs. [Id. at 50:10-11.]

         2. February 28, 2012 Incident

         Adams's next encounter with the Atlantic City police occurred on February 28, 2012, when he was 50 years old. [Docket Item 200, Ex. F, at 17.] He was exiting Trump Plaza Casino by himself after gambling for approximately four hours. [Docket Item 195-7 at 53:20, 54:25, 55:1.] Adams walked out of the doors onto Pacific Avenue when he met up with Brian Norwood, a person he referred to as an acquaintance, and another man Adams had never met before. [Id. at 59:16-18, 62:9-10.] Adams and the two men took a left out of the casino and walked into a tunnel called Boardwalk Hall. Adams and the police officers who were present greatly dispute what happened next.

         According to Adams, while he was walking through Boardwalk Hall, Officer Dooley and another unnamed officer drove up in their patrol car, got out, stopped the three men, and asked for their identification. [Id. at 63:6-10, 66:4-6.] Simultaneously, four other officers pulled up to the scene in their patrol cars. [Id. at 71:9-12.] While the unnamed officer took the three ID cards back to his police car, Officer Dooley, Timek, and a third officer had Adams, Norwood, and the other unidentified man up against the wall, restraining their movement. [Id. at 70:18-19, 71:19-21.]

         The officer who first arrived at the scene with Officer Dooley then returned from checking the three men's ID cards at his car, pointed at Adams and said, “Is that him?” [Id. at 74:17-19.] Officer Timek went to his car and released his German Shepherd dog, Vader, who ran and attacked Adams on Timek's command. [Id. at 76:23-25, 77:1-4.] While the dog was biting Adams's leg, Officer Timek slammed Adams's head into the wall, dragged him to the ground, and put him in handcuffs. [Id. at 77:7-8.] Officer Dooley then left Norwood and started to hit Adams and drag him on the ground; the third officer who had initially arrived with Dooley left the third man joined in and “was on [Adams].” [Id. at 77:9-13.] The other three officers joined in and all six of them were began beating Adams, who described “flurries of hits and kicks and punches and hitting me with pipes.[2] I could feel them busting me across my head. . . . And it was a flurry of a good two and a half minutes of me almost being killed before the other cops came up. And I thought it was going to be over.” [Id. at 77:14-20.]

         At that point, Sergeant Hall and a handful of other officers arrived at the scene. [Id. at 77:19-24.) Adams pleaded with Sergeant Hall to make the officers stop and that he wasn't resisting arrest, to which Officer Timek “hollered: [‘]He kicked at my dog, Sarge.[']” [Id. at 77:21-24.] Sergeant Hall responded, “Oh, you like kicking dogs?” [Id. at 77:25, 78:1-6.) He opened the door to his patrol car, and let out another German Shepherd dog, Max, to attack Adams, and said “Let him kick this one.” [Id.] Adams described the dogs “playing tug-of-war with my legs.” [Id. at 78:3-6.] They then gave the dogs the command to stop, and Sergeant Hall kicked Adams twice in the side and “upside [Adams's] head.” [Id. at 78:10-18.] He instructed Norwood and the third man to leave the scene “before the same thing happen[s] to you, ” using a racial slur and stating that he knew where they lived and threatening them not to say anything or the same thing would happen to them. (Id. at 85:8-12, 91:23-25, 92:1-7.) Adams described the police officers who participated in beating him “high-fiv[ing] each other” after Hall kicked Adams and put an end to the assault. [Id. at 88:19-21.]

         Defendants' account regarding what happened that night varies greatly from Adams's testimony. According to Defendants, Officer Timek responded to the Boardwalk Hall's Georgia Avenue tunnel regarding a report made by a Boardwalk Hall security employee about “three black males in the Boardwalk Hall tunnel drinking/doing CDS [i.e., controlled dangerous substance] and requested that police respond”; Plaintiff states that the “Boardwalk Hall security personnel called stating, it's not an emergency but three black males walked into the tunnel and he thinks they are either going to be doing drugs or drinking. Caller asked if ACPD can send an officer to send them away.” [Docket Items 200-2 ¶ 3; 229 ¶ 3.] When the men saw the marked patrol car, Officer Timek saw one man shove his hand into his waistband and then immediately remove it, indicating to Officer Timek that he was trying to conceal something. [Docket Item 195-8 at 11.] Officer Timek got out of his patrol car, unholstered his gun, pointed it at the men, and told them to get against the wall. Timek stated that he was alone at this time. Id. As he approached, one of the men, who turned out to be Adams, began shouting profanities loudly. Id.

         Officer Timek's police report is unclear as to when exactly Sergeant Hall arrived; however, it seems to suggest that Hall was there prior to when he arrived in Adams' version of events. To that effect, Timek's report states: “I called for my canine partner who exited my patrol vehicle and approached to assist. Simultaneously, I observed that Sergeant Hall was on scene and with his canine partner on lead. I placed my canine partner back into my patrol vehicle.” Id. Timek approached Adams, requested that he calm down and not move, but instead Adams attempted to turn around and continued shouting profanities. Timek then states, without specifying when Officer Dooley arrived on the scene, “Officer Dooley advised me that he had been in possession of a knife. For my safety, I took hold of the suspect and attempted to keep him facing away from my direction. I felt his upper body muscles tighten and heard him shout[, ] ‘You wanna grab on me, I[']m going to fuck you up!'” Id.

         Officer Timek then states that Adams “abruptly attempted to spin around combatively into my direction, ” so Timek took Adams to the ground as Adams “violently resisted [Timek's] control.” Id. Officer Timek, “unable to physically gain control of [Adams's] hands to successfully place handcuffs on him[, ]” “advised [Adams] that he was under arrest and to stop resisting but he refused to comply”; nevertheless, Timek was able to get one handcuff on Adams during the struggle. Id. With regard to his fear of Adams, Timek noted Adams's large stature; physical strength; “thick winter coat with its pockets filled with various items[, ]” which could possibly have included “another weapon”[3]; and the possibility that Adams, if he broke free “could have used the [unfastened second] handcuff as a weapon against [the police officers].” Id.

         Timek then states that Sergeant Hall “approached with his canine partner, ” told Adams he was under arrest, and to stop resisting “or his canine partner would be deployed several times.” [Id. at 11-12.] Timek states that, in response to Adams's continued “violent resist[ance], ” “a canine apprehension was made on the suspect, ” though Adams continued to resist by “pulling his hands away, attempting to recover from the ground[, ] and kicking at the canine.” [Id. at 12.] Hall's report describes this as his canine “engag[ing] Adams['s] right thigh pant leg area as he rolled around with Timek on his back. Adams was able to get his left knee up and strike the K9 in the snout causing him to disengage and yelp. . . . K9 Max re-engaged Adams on the right upper calf. Adams now kicked K9 Max again in the face not once but twice with his left foot.” [Id. at 14.] Hall describes Adams fighting not only with his dog, Max, but also with Timek, Dooley, and Eisenbeis. Id. Officer Eisenbeis admitted to “strik[ing]” Adams in the face one time and holding him down in order to subdue him. Id. at 18. Once the officers had subdued Adams, an ambulance was called and Adams was taken to the AtlantiCare Regional Medical Center. [Id. at 12.]

         The EMS report states that Adams was bleeding from his right leg and reported having been bitten several times; EMS noted a “1 ½ to 2 inch” injury to Adams's right calf, noted on the diagram to have been inflicted to the back of Adam's calf. [Docket Item 200, Ex. E.]

         While in the emergency room, Adams allegedly told the medical personnel that he was “busted by cops for buying drugs.” [Docket Item 200, Exhibit F, at 18 of 60.] Timek stated that he “heard [Adams] state that he had been smoking CDS and drinking alcohol all day prior to arrest.” [Docket Item 195-8 at 12.] Officer Rogers stated that Adams stated “he was ‘high on cocaine' . . . repeatedly . . . [and] went on to state that ‘I am just a user not a dealer, I shouldn't be here.'” [Id. at 20.] Adams disputes that he made those statements. [Docket Item 232 ¶ 19.]

         Adams's medical records from AtlantiCare's ER reflect soft tissue damage to his right lower thigh; soft tissue swelling of the right lower leg; “leg laceration, closed head injury, chest wall injury, blunt abdominal trauma”; and bruised ribs, inter alia. [Docket Item 200, Ex. F, at 14-17.] Adams also got five stitches to his right calf. [Id. at 17.] The medical records also note: “MULTIPLE SUPERFICIAL BITES TO RIGHT LATERAL LEG, laceration(s), the wound is approximately 6 cm(s) [2.4”], of the right calf[, ]” as well as a “SMALL PUNCTURE WOUND NOTED” to the “RIGHT LOWER THIGH.” [Id. at 20 of 60 (emphasis in original).] Elsewhere, they describe Adams's report of “pain in mouth since [d]ried blood in mouth[, ]” “pain with respiration, ” an abdomen that was “tender to palpation[, ]” swelling, and a laceration on the “left wrist, [d]ried blood[.]” [Id. at 28 of 60.] Adams also reported to the medical staff that the police kicked him “over and over again in the stomach until I pissed on myself”; the staff noted the presence of urine on his underpants. Id. At discharge, his diagnosis was described as follows: “Dog Bite; Chest Wall Injury; Leg Laceration; Blunt Abdominal Trauma; Closed Head Injury[.]” [Id., “Discharge Instructions.”]

         Adams's mug shot was taken at some point after he was treated at AtlantiCare; it shows his face and neck area. [Docket Item 195-17.] Defendants submit that the mug shot does not reflect the injuries Adams alleges he sustained. [Docket Items 234 at 3; 200-2 ¶ 41; 195-5 ¶ 42.] Plaintiff disputes this. [Docket Items 229 ¶ 41; 232 ¶ 42.]

         On March 3, 2012, Adams returned to AtlantiCare because, hospital records reflect, “he [did] not know about the results of his testing because police took his papers.” [Docket Item 200, Ex. H.] He reported “low back pain left thigh and calf pain. Patient was arrested 2/28 for buying drugs.[4] States police kicked him in chest and abdomen, k 9 dogs bit his right leg. . . . Has sutures right calf, and pain swelling right thigh.” Id.

         3. ACPD's Internal Affairs Policies

         Citizens may file complaints they have about encounters with Atlantic City police officers with ACPD's Internal Affairs Department. ACPD has an Early Warning System (“EWS”) that notifies the Chief of Police whenever an officer triggers the system by accumulating more than three internal affairs complaints within a calendar year. However, the former ACPD chief of police between 2010 and 2013, Chief Ernest C. Jubilee, testified in his deposition that although he was made aware “every time a complaint is made against an officer” as well as when an officer would trigger the EWS, he did nothing to respond to those complaints or discipline the officer. [Docket Item 228-24 at 31, Ex. X, Jubilee Dep. at 116:3-5; 45, dep. at 170:17-172:25; 46, dep. at 173:1-6.)

         Plaintiff retained Dr. Jon Shane, an associate professor of criminal justice at John Jay College of Criminal Justice, who submitted an expert report that examined ACPD's internal-affairs functioning and concluded that: “The Atlantic City Police Department did not properly implement this internal affairs program as required by the New Jersey Attorney General's Office and did not follow accepted industry standards in effect at the time for conducting internal affairs investigations. The Atlantic City Police Department also did not follow accepted industry standards for identifying and addressing patterns and trends of complaints against police officers.” [Docket Item 200-10 at 32.]

         Additionally, Plaintiff's expert provided statistical analysis that showed the national rate of sustained complaints for excessive force in a department of similar size to ACPD is 12%, while ACPD's sustain rate for excessive force is 0.219%. Id. at 56.

         During his deposition, current ACPD Chief of Police Henry White engaged in the following colloquy:

Attorney Bonjean: Would you agree that two sustained findings of in excess of 550 complaints of excessive force between the years of 2007 and 2014 might have contributed to the public's perception that the Atlantic City Police Department was covering up or not taking internal affairs complaints seriously?
Chief White: Yes.

[White Dep., Docket Item 228-5 at 16, 108:6-12.]

         All of this, Plaintiff asserts, amounts to “deliberate indifference” on the part of Defendant Atlantic City, allowing a reasonable jury to conclude that the city is liable under § 1983 for failure to investigate complaints of excessive force.

         4. Suspension of the K-9 Unit

          In August of 2009, Atlantic City Mayor Lorenzo Langford suspended ACPD's K-9 units from the streets, due to citizen complaints over their misuse. [Docket Item 228-35 at 12-15, Langford Dep. at 39:7-51:21.] Mayor Langford testified during his deposition that a number of factors contributed to his decision to suspend the unit, including: (1) members of the community had repeatedly complained that dogs were being misused and a large, vocal group of concerned citizens had stormed the City Council demanding their removal from the streets; (2) he was privy to the disproportionate number of civil rights cases involving K9 “criminal apprehensions” that came before the City Council for settlement approval and was sensitive to the expense associated with litigating and resolving those cases; and (3) he, personally, had witnessed an incident where ACPD K9 officers were all too eager to release their K9s into a crowd as a means of “crowd control”. Id.

         Christine Peterson[5] was hired as public safety director in March of 2010 and was tasked with conducting a review of ACPD's K-9 unit. [Docket Item 228-41, Peterson Dep., at 3-6.] At the conclusion of Peterson's review, she authorized the return of the patrol dogs on the condition that certain criteria were satisfied as set forth in her Directive 025-2010. [Docket Item 228-37, Directive 025-2010 and Revised K-9 Policy.] The directive first required officers to undergo medical and psychological examinations, and have their “personnel records and Internal Affairs files [reviewed] to determine present suitability” for reassignment to the K-9 Unit. Id. at 2. Second, the directive required that “all K-9 teams are required to be evaluated at an outside police K-9 training facility, by a recognized K-9 training expert . . . prior to authorization for return to active duty status.” Id. at 3.

         Plaintiff asserts that extensive discovery reveals that ACPD returned the dogs to the streets without satisfying the criteria set forth in Directive 025-2010. Chief White testified that he conducted a diligent search for any documents that would reflect compliance with the portion of the directive relating to the re-evaluation of the handlers and could find no document in ACPD's control that reflected that the K-9 handlers were reevaluated pursuant to Section IV of the selection criteria set forth in the K-9 policy, per Directive 025-2010. [Docket Item 228-48 at 9-12, 19, 24.] Additionally, the city is unable to produce any documentation that reflects that all of the K-9 units were evaluated by an outside facility and passed that evaluation. [Docket Item 228, Plaintiff's Resp., at 65-66.]

         B. Procedural Background

         On August 28, 2012, Adams entered a guilty plea in New Jersey State Court to an amended charge of fourth-degree harm to a law enforcement animal under N.J.S.A. 2C:29-3.1. [Docket Item 200-9 at 3-10.] During his court appearance on that date, the presiding judge asked, “What was the [law enforcement] animal's name?” before he began allocuting Adams. Id. at 3. The assistant prosecutor responded, “That's a good question, your Honor[, ]” and Adams's public defender said, “It may have been Vader.” Id. at 4. Adams was subsequently sworn in by the court and engaged in the following plea colloquy:

THE COURT: Do you in fact understand what's happening here? You're entering a guilty plea to an amended charge of fourth-degree harm to a law enforcement animal.
. . .
THE COURT: Are you pleading guilty because you believe you are guilty?
. . .
THE COURT: Let's talk about the offense. Count 2 amended on February 28, 2012, were ...

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