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Wurtzbacher v. Winslow Township

United States District Court, D. New Jersey, Camden Vicinage

March 18, 2019

Bernard WURTZBACHER, Plaintiff,
WINSLOW TOWNSHIP, et al., Defendants.



         This matter is before the Court on the summary judgment motion (Doc. No. 22) of Winslow Township, former Chief of Police Robert Stimelski, and Winslow Township Police Officers Robert Gauntt, James Rausch, and Justin Valentino (collectively, “Defendants”). For the reasons below, Defendants' motion is GRANTED as to Plaintiff's claims under 42 U.S.C. § 1983 (“Section 1983”) and the New Jersey Civil Rights Act (“NJCRA”). Because Plaintiff's federal claims fail as a matter of law, the Court declines to exercise supplemental jurisdiction over the remaining state law claims.

         I. BACKGROUND [1]

         This case involves the use of force against Plaintiff Bernard Wurtzbacher, who re-injured his surgically repaired shoulder when officers Gauntt and Rausch stopped his distinctive car and arrested him. The events began when a brazen robber, Katie Wilson, exploited Plaintiff's kindness and duped him into making his vehicle her “getaway” car. This, unfortunately, made the officers believe that Plaintiff was involved in the armed robbery and also a rape. The events unfolded as follows.

         A. Plaintiff Helps a Distressed Pedestrian

         Around noon on May 1, 2016, Plaintiff and his wife, Kathleen Wurtzbacher, were driving to the Camden Aquarium in their yellow Nissan Xterra. (Defs.' SMF at ¶¶ 8-10.) Because two months prior, Plaintiff had surgery to repair his right rotator cuff, his wife drove the car. (Pl.'s Dep., Pl.'s Ex. A, Defs.' Ex. B, at 32:23-33:2; see also Rep. of Dr. Martin Riss, Pl.'s Ex. B at 1, Feb. 5, 2018.) Plaintiff is a large white man who weighs about 200 pounds. (Pl.'s Dep. at 54:5- 7.) According to his wife, Plaintiff is an HVAC technician and dressed as if he was going to work on the day in question, hanging a flashlight and a knife from his pocket. (Kathleen Wurtzbacher, Video Statement, Defs.' Ex. D at 15:20-16:55.)

         While in Winslow Township, Plaintiff and his wife noticed a female running in the road, waiving her hands in the air, yelling for help, and being chased by another person. (Defs.' SMF at ¶¶ 16-17.) Plaintiff's wife pulled the vehicle over and Plaintiff exited the front passenger side seat to let the woman in the backseat. (Id.) As Plaintiff and his wife drove away towards a nearby Wawa with the woman in tow, the unidentified female passenger stated that the man was “going to rape her.” (Id. at ¶¶ 17-18, 20.)

         B. Dispatch to Police Officers

         Plaintiff then called 9-1-1 and explained that the woman was running, claimed that she was “being raped, ” and that they would meet responding officers at Wawa. (Id. at ¶¶ 21-22.) The operator instructed Plaintiff to wait for the police at the Wawa. (Id. at ¶ 23.)

         Unbeknownst to Plaintiff and his wife, the woman that they just picked up had robbed a gas station at knifepoint and was fleeing the scene. (Id. at ¶¶ 19, 27.) As reflected in the Master Incident Report, the robbery victim described the perpetrator as a “white male.” (Id. at ¶ 27.)

         According to recordings from Central Dispatch, a witness identified the yellow Nissan as being involved in the armed robbery, stating that “they stole money and pulled off, ” and that “the car who robbed the guy pulled off.” (Id. at ¶ 26.)

         As Gauntt and Rausch began responding to the armed robbery, dispatch advised them that Plaintiff's yellow Nissan was involved. (Id. at ¶¶ 26, 28; Pl.'s SMF at ¶ 38.) Dispatch also relayed to Gauntt and Rausch that a male committed the armed robbery and fled in the Nissan. (Gauntt's Resp. to Pl.'s Interrog., Pl.'s Ex. E at No. 6; Rausch's Resp. to Pl.'s Interrog., Pl.'s Ex. H at No. 6.) While en route to the scene, dispatch provided Gauntt and Rausch additional information from another call that Plaintiff's yellow Nissan was involved in a rape. (Defs.' SMF at ¶ 29; Pl.'s SMF at ¶ 38.)

         C. Vehicle Stop and Officers' Commands

         While waiting in the Wawa parking lot, the female occupant became upset and asked Plaintiff and his wife to take her to either her or her girlfriend's house. (Defs.' SMF at ¶ 30.) Plaintiff and his wife then contacted 9-1-1 to advise that they were leaving the Wawa. (Id. at ¶ 32.)

         Rausch then spotted Plaintiff's yellow Nissan and pulled it over by the roadside's grass. (Id. at ¶¶ 33-34; Pl.'s Dep. at 45:9-21.) Officer Gauntt followed behind in his own vehicle. (Defs.' SMF at ¶ 34.) Gauntt testified that as he and Rausch arrived at the scene, he believed that the person “doing either the robbery, the rape or both” was “in that vehicle.” (Gauntt Dep., Pl.'s Ex. F, Defs.' Ex. F, at 18:7-17.)

         From their vehicles about fifteen to twenty feet away, Gauntt and Rausch drew their weapons and commanded the driver-Plaintiff's wife-to shut off and exit the vehicle. (Gauntt Dep. at 22:2-17; see also Defs.' SMF at ¶ 35.) Gauntt testified that he drew his weapon “because of the report of the armed robbery.” (Gauntt Dep. at 22:1-11.) After Plaintiff's wife complied with the commands and walked backwards towards the officers with her hands in the air, the officers placed her in the back of Gauntt's vehicle. (Defs.' SMF at ¶¶ 36-37, 39.) Plaintiff's wife testified that as she went into the car, she said to the officers, “[p]lease don't hurt my husband.” (Kathleen Wurtzbacher Dep., Pl.'s Ex. C, Defs.' Ex. C, at 26:5-8; Pl.'s Resp. to Defs.' SMF at ¶ 57.) Meanwhile, Plaintiff remained on the phone with 9-1-1. (Defs.' SMF at ¶ 41.) Plaintiff testified that he remained on the phone with 9-1-1 because he was “trying to explain to them what was going on” so that dispatch “could relay the information to the police officer.” (Id. at ¶ 54.)

         After securing Plaintiff's wife in his vehicle, Gauntt again drew his weapon and began ordering the front passenger-Plaintiff-out of the vehicle. (Id. at ¶ 44.) Rausch drew his gun and did the same. (Rausch Dep., Pl.'s Ex. I, Defs.' Ex. E, at 22:3-15.) Gauntt and Rausch testified that they ordered Plaintiff out of the car “several” and “numerous, numerous times, ” without compliance. (Id. at 22:23-25; Gauntt Dep. at 25:3-9.) Thus, the officers moved closer to the vehicle and banged on the back fender to get Plaintiff's attention. (Defs.' SMF at ¶ 45.) As Gauntt neared the front passenger side door, Rausch noticed an additional passenger-the woman-in the backseat. (Id. at ¶¶ 46-47.) Plaintiff testified that at this point, he was sitting with his legs out of the passenger side, still on the phone with 9-1-1. (Id. at ¶ 48.) Plaintiff testified that he may have opened the door on his own, but does not fully recall why he opened the door to sit like that. (Pl.'s Dep. 47:7-48:4.)

         Plaintiff testified that the officers, who were now by him on the front passenger side, were “yelling and forceful” and told him to exit the vehicle. (Id. at 48:5-49:6; see also Defs.' SMF at ¶¶ 49-50.) Plaintiff stated that he tried to explain what had occurred to the officers but they did not want to speak with him. (Pl.'s SMF at ¶ 13.) Ronald Lombardo, an off-duty police officer who observed most of the events from his shop directly across the street, testified that an officer “was yelling for the gentleman to get out of the vehicle” between two and four times. (Defs.' SMF at ¶¶ 42-43, 51-52.) Plaintiff's wife also testified that she heard the officers tell Plaintiff to exit the vehicle, and in her post-incident video statement, stated that Plaintiff “did not comply” in exiting the vehicle, though she could not recall what she meant by that statement when asked in her deposition. (Kathleen Wurtzbacher Dep. at 26:16-28:9; Defs.' Resp. to Pl.'s SMF at ¶ 27.) In Rausch's eventual report of the incident, he stated that the vehicle's door was open, making him believe that it was “possible for all occupants to hear our commands.” (Rep. of James Rausch, Pl.'s Ex. G at 4.)

         Plaintiff admitted that although the officers were yelling and forceful in ordering him to exit the vehicle, he did not exit when they first asked. (Pl.'s Dep. at 49:1-6; see also Pl.'s Resp. to Defs.' SMF at ¶ 53.) Gauntt testified that it was possible that Plaintiff did not hear his “several” orders to exit the vehicle because he was some distance away when he began issuing them, and because as he got closer, Plaintiff was on the phone and stated, “I'm on the phone with your people.” (Gauntt Dep. at 25:3-26:4; Pl.'s SMF at ¶ 44.) When asked how much time elapsed between the officers' first and last command to exit the vehicle, Lombardo testified that it was “quick.” (Id. at ¶ 62.)

         D. Plaintiff's Arrest

         The parties agree that after Plaintiff did not exit the vehicle, he was pulled out of the car and subsequently handcuffed on the ground. (Id. at ¶ 14; Defs.' SMF at ¶ 59.) Their accounts diverge, however, on some of the particulars.

         According to Plaintiff, he stood up, and as he stood, one officer reached into his vehicle, grabbed one of his arms, and pulled him out of the car. (Pl.'s Dep. at 51:24-52:23.) Plaintiff testified that he was then “taken down” face first “by two officers.” (Id. at 52:20-25.) Plaintiff testified that while on the ground, he was handcuffed “in the front, ” but could not recall if the officers used two sets of handcuffs. (Id. at 53:6-54:4.)

         Plaintiff's wife described the events similarly, but with some differences. According to her, two officers “pulled him out of the car” by “his arms” and “threw him on the ground, ” and he was “yelling about his arms, not to put them all the way back.” (Pl.'s SMF at ¶ 30; Kathleen Wurtzbacher Dep. at 29:10-24.) Plaintiff's wife explained that two officers were on top of Plaintiff on the ground, where they were “trying to pull his arms back.” (Id.) But because Plaintiff's “one arm didn't go that far yet . . . they stretched it back” and “pulled his arms back” to get the handcuffs on. (Id.)

         Gauntt and Rausch recall differently. According to Gauntt, he was the officer who grabbed Plaintiff and removed him from the car. (Defs.' SMF at ¶ 57.) In his report on the matter, Gauntt stated that he “grabbed [Plaintiff] by the front of his shirt and physically removed him from the seat and placed him on the ground.” (Rep. of Robert Gauntt, Pl.'s Ex. D at 6; Pl.'s SMF at ¶ 32.) In his interrogatory responses, Gauntt stated that he “grabbed [Plaintiff] by his arm, removed him from the vehicle, placed him on the ground and handcuffs were applied.” (Pl.'s SMF at ¶ 34.) Gauntt testified that he merely “put” Plaintiff-a large man-on the ground; he did not throw him. (Gauntt Dep. at 27:22-28:16.) Gauntt also testified that from what he recalled, Rausch did not assist in any way with handcuffing Plaintiff, though he was in the immediate vicinity to ensure Plaintiff did not resist or fight. (Id. at 28:25-29:13.) Rausch, by contrast, indicated in his incident report that as Gauntt grabbed Plaintiff and took him to the ground, Rausch opened the back passenger door to cover that subject. (Rep. of James Rausch at 4.) Rausch's report further noted that Gauntt “was able to get [Plaintiff's] one hand cuffed, ” but Rausch “had to assist him with getting the subject's other hand behind his back to secure him.” (Id.) Both officers stated that Plaintiff was secured with two sets of handcuffs. (Id.; Defs.' SMF at ¶ 60.)

         For his part, Valentino stated that he arrived on scene as Gauntt removed Plaintiff from the vehicle. (Defs.' SMF at ¶ 62.) According to Rausch's report, when Valentino arrived on the scene, he proceeded to secure the yellow Nissan's back passenger, later identified as the true robbery suspect, Katie Wilson. (Rep. of James Rausch at 4-5.)

         Plaintiff's encounter with the officers unfolded quickly. Plaintiff estimated that five to six minutes elapsed from the time when the officers stopped his vehicle to the time when they handcuffed him. (Pl.'s Dep. at 54:11-18.) According to Gauntt, “[f]rom the time plaintiff was placed on the ground until handcuffs were applied, less than 30 seconds elapsed.” (Pl.'s SMF at ¶ 35.) Rausch stated the same. (Rausch's Resp. to Pl.'s Interrog. at No. 11.) Plaintiff estimated that about three minutes elapsed between the time he was removed from the vehicle and eventually put into a police vehicle. (Pl.'s Dep. at 54:11-14.)

         E. Plaintiff's Shoulder Injury

         Plaintiff re-injured his surgically repaired shoulder in the course of his arrest. After the incident, Plaintiff visited Dr. Martin Riss, who opined that Plaintiff aggravated his prior right shoulder condition, suffering a right shoulder sprain, complete right shoulder infraspinatus and supraspinatus tears, and a right biceps tendon tear with a SLAP tear. (Pl.'s SMF at ¶ 17.) According to Dr. Riss, these injuries are ...

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