Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Davis v. Perez

United States District Court, D. New Jersey

May 8, 2018

NOEL DAVIS and DHAMEER WHITE, Plaintiffs,
v.
OFFICER MICHAEL PEREZ, Defendant.

          MATTHEW BENJAMIN WEISBERG WEISBERG LAW ON BEHALF OF PLAINTIFFS

          TIMOTHY R. BIEG MADDEN & MADDEN ON BEHALF OF DEFENDANT OFFICER MICHAEL PEREZ

          OPINION

          NOEL L. HILLMAN, U.S.D.J.

         This case concerns claims of excessive force and First Amendment violations arising from the execution of a search warrant. Presently before the Court is the motion of the individual police officer defendant for summary judgment in his favor.

         Also pending is Plaintiffs' appeal of the magistrate judge's denial of their motion to file an amended complaint. For the reasons expressed below, Defendant's motion will be granted, and Plaintiffs' motion will be denied.

         BACKGROUND

         Plaintiffs Noel Davis and Dhameer White allege[1] that at 3:30 p.m. on September 18, 2014 Davis arrived at the apartment of White, her boyfriend, in Voorhees, New Jersey. About a half hour later while Davis was in the shower, she heard a loud knock on the apartment's front door. Because White did not answer, Davis got out of the shower, wrapped herself in a towel, and opened the bathroom door. As she opened the door, Davis saw White approaching the front door with his cell phone in his hand recording. At that moment, a Voorhees police officer kicked in the front door and multiple officers entered the apartment with assault rifles drawn and pointed at White. One officer ordered White to get on the floor, and despite complying with the order, the officer ordered a canine unit to attack him. The canine mauled White, leaving him bleeding and crying.

         Davis was terrified and ran back into the bathroom and closed the door. Three male officers, including Defendant Michael Perez, entered the bathroom with their assault rifles drawn. With her hands raised, Davis asked the officers what was happening. They replied that it was a raid and they needed to detain her. Perez approached Davis, hyper-extended her hands behind her back, and handcuffed her.

         A week earlier Davis had undergone reconstructive breast surgery for treatment of ectodermal dysplasia, and her stiches and bandages were visible to the officers. Davis asked Perez to loosen the handcuffs because she had just had surgery and the handcuffs were hurting her. Another officer said, “No! Shut the fuck up!” and brought her into the living room, where she again saw White on the floor, bleeding and crying. She asked him if he was okay, and the officer told Davis, “I said shut the fuck up!” and made her leave the apartment wearing only a towel. Davis asked if she could dress herself, and the officer said that a towel was fine.

         Davis stood outside for an hour while police officers searched White's apartment as part of a drug raid. Davis's towel was slipping, exposing her body and medical condition to neighbors, and she was in severe pain from being handcuffed. After the raid was over, the handcuffs were removed from Davis. She asked if they found anything, and the officers replied that they had not, but that they were taking her iPad, prescription medication, and cell phone. Davis objected and told them she would sue them if they confiscated her property. The officers laughed, but they ultimately did not take her property. The officers confiscated White's cell phone, however, and deleted the video White had taken of the raid.

         Shortly after the incident, Davis remained in pain and noticed her stiches had loosened and started to bleed. Two weeks later, silicone began dripping around the loosened stitches and her pain worsened. Davis went to the doctor, who told her that her stitches had unraveled because of “excessive stretching” and he would need to redo her surgery, which was performed in March 2015. Davis was fired from her job because she was deemed unreliable due to two surgeries in less than one year.

         Based on the foregoing allegations, Davis and White filed numerous constitutional and state law claims against Defendant Perez and John Doe Officers, as well as the Township of Voorhees. Since they filed their complaint, Plaintiffs have dismissed their claims against Voorhees Township, and have conceded to the dismissal of several of their claims. Davis's claims pending against Perez include unconstitutional use of force and common law assault and battery. White's claims pending against Perez include unconstitutional use of force, common law assault and battery, and a violation of his First Amendment rights.

         Perez has moved for summary judgment on all the claims pending against him, and he points to the facts developed through discovery that contradict Plaintiffs' claims against him. Perez relates that a Voorhees Township detective conducted an investigation of White concerning the distribution of marijuana from White's apartment. The investigation, which lasted two months, was conducted because of numerous citizens' complaints and information from a confidential informant.

         The detective obtained a search warrant and gathered a team to execute it. Perez was assigned a role in the initial entry team, which required him to secure the scene and detain any individuals within the residence so the detectives could perform the search. According to Perez's deposition testimony:

The initial Officers - Detectives that were making contact at the door, they head upstairs first followed by other Officers followed by myself. Then they knock on the door. I remember Detective Hawkins using a bullhorn to announce that it was a search warrant and to answer the door several times. Eventually, entry was made in by the Detectives. As they come in, I kind of just followed behind until we make entry.
Once inside, I veered to the left where the stair portion is because we have Officers already inside on the first level. So I hold the stairs to ensure that no one is coming down those stairs while they make the scene safe on the first floor. While doing so, the first floor bathroom door opened up suddenly, and that's where I encountered Ms. Davis.

(Docket No. 52-2 at 5.)

         Perez further testified that after he placed Davis in handcuffs, she was detained in the kitchen area just as a confrontation between White and the other officers ensued. The police report of the K-9 officer details the struggle between White and the officers and their efforts to apprehend him. (See Docket No. 52-3.) After White was secured, Davis was brought outside to the patio, and provided with a large shirt to wear, while the officers and detectives searched the apartment.

         Voorhees Township EMS transported White to the hospital for treatment of his injuries. Perez accompanied EMS to the hospital, and after he was treated, Perez transported White to the Camden County Correctional Facility. Perez's only interaction with Davis was handcuffing her - he did not detain her outside - and Perez's only interaction with White was transporting him to and from the hospital.

         With regard to Davis's claims, Perez argues that his handcuffing of Davis does not constitute excessive force or assault and battery because his initial securing of Davis under the circumstances was reasonable. Perez does not deny that Davis informed him of her surgery or that the handcuffs were too tight, but in addition to the reasonableness of the handcuffing to secure the premises for the execution of the search warrant and his very limited interaction with Davis, Davis's alleged injuries are not supported by the evidence. Perez points out that Davis did not seek treatment for her alleged injuries, and when she returned to her doctor almost two months later, her doctor did not note any problems associated with stretching, and an ultrasound report showed no evidence of leaking silicone.

         With regard to White, Perez argues that he cannot be held liable for excessive use of force because he had no part in his apprehension. Perez also argues that he cannot be held liable for a First Amendment violation because White has provided no proof that his cell phone video was deleted and, if it was deleted, that Perez deleted it.

         During the pendency of Perez's motion for summary judgment, Plaintiffs filed an appeal of the magistrate judge's denial of their motion for leave to file an amended complaint. Plaintiffs' appeal is also pending before this Court.

         In their motion to amend, Plaintiffs had sought to add as defendants six officers and detectives who were involved in the incident. After setting forth the appropriate standard of review under Federal Civil Procedure Rule 15, the magistrate judge observed:

Although the incident in question occurred on September 18, 2014, plaintiffs did not seek to join the new defendants until they filed their motion on April 10, 2017. This was almost one year after the complaint was filed (May 17, 2016) and six months after the deadline to amend pleadings (November 1, 2016) expired. Further, the motion was filed after the expiration of the original fact discovery deadline of March 31, 2017. Plaintiffs' delay is not excusable. Plaintiffs could have easily identified the police officers at issue before the complaint was filed by obtaining copies of the relevant police report(s). Further, Voorhees' September 14, 2017 Rule 26 disclosures named Voorhees, Brennan and the existence of arrest reports, police narratives and use of force reports. In addition, Voorhees' November 15, 2016 answers to interrogatories disclosed the identities of officers plaintiffs now want to join and stated they were involved with plaintiff's incident - ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.