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Harvey v. Czplinski

United States District Court, D. New Jersey

May 8, 2019

WARDELL HARVEY, Plaintiff,
v.
PETE CZPLINSKI; et al., Defendants.

          OPINION DKT. NO. 24

          Renée Marie Bumb, United States District Judge.

         Pro se Plaintiff Wardell Harvey (“Plaintiff”) brings this civil rights action under 42 U.S.C. § 1983, alleging that various Egg Harbor Township police officers used excessive force during his arrest in November 2014. Now, this matter comes before the Court upon a Motion for Summary Judgment (“MSJ”)[Dkt. No. 24], filed by Defendants Sergeant Charles Super, Officer Gary Johnson, and Officer Jon D'Augustine (“Defendants”) on October 25, 2017, seeking the dismissal of Plaintiff's complaint. Despite this Court's repeated extensions, over a year and a half later, Plaintiff has never submitted a substantive opposition to Defendants' motion. For the reasons set forth herein, Defendants' Motion for Summary Judgment will be GRANTED and Plaintiff's complaint will be DISMISSED.

         I. FACTUAL BACKGROUND

         Late in the evening of November 1, 2014, officers from the Egg Harbor Township Police Department responded to 911 call from Marlene Delarosa, who reported that “2 dudes” were trying to get into her residence. Defendants' Statement of Facts[1](“DSOF”)[Dkt. 24-6], at ¶ 1. Upon responding to the scene, officers observed a white Mercedes backing out of the driveway. Id. at ¶ 2. The officers proceeded to pull over the white Mercedes and observed that there were two black males in the vehicle, which displayed New Jersey registration number H86DSX. Id. As the officers began approaching the Mercedes, the vehicle abruptly fled the scene, nearly striking several parked cars on the street. Id. The officers returned to their vehicle and advised dispatch about what had occurred. Id. at ¶ 3. The officers also advised dispatch that Ms. Delarosa had informed them that the Mercedes had bullet holes and had been outfitted with bullet-proof glass. Id. at ¶ 4.

         After receiving notification from dispatch that the white Mercedes was last seen on Zion Road entering Egg Harbor Township, Sergeant Charles Super observed the vehicle in question heading westbound on Zion Road at a high rate of speed with a complete disregard for the safety of others. See DSOF, at ¶ 6. After an approximately 15-minute pursuit, two patrol cars forced the white Mercedes to stop by eliminating escape routes. Id. During this process, Sergeant Super pulled his patrol car in front of the Mercedes and Officer Gary Johnson pulled his patrol car approximately 20-feet behind the Mercedes. Id. at ¶¶ 7-8.

         Sergeant Super exited his vehicle with his weapon drawn and instructed the occupants of the Mercedes to put their hands up. See DSOF, at ¶ 7. However, the driver, later identified as the Plaintiff, put the car in reverse and began to back his car towards Officer Johnson's vehicle. Id. at ¶ 8. Observing the Mercedes reversing towards his own patrol vehicle, Officer Johnson exited his car with his gun drawn and ordered Plaintiff to turn off the vehicle and exit with his hands up. Id. As Plaintiff continued to reverse the Mercedes, Officer Jon D'Augustine approached the scene. Id. Fearing that Plaintiff would continue to accelerate and flee the scene, Officer Johnson opened the door to the Mercedes and grabbed Plaintiff's arm to pull him out of the car. Id. At this point, the officers could smell the “overwhelming odor of alcohol” emanating from the vehicle. Id. Despite the officers' warnings that Plaintiff was under arrest and numerous verbal commands to exit the vehicle, Plaintiff continued to resist. Id.

         During the ensuing struggle, Officers Johnson and D'Augustine, as well as Plaintiff, fell to the ground, causing Plaintiff to hit his face on the asphalt. See DSOF, at ¶ 8. While on the ground, Plaintiff continued to resist for approximately one minute, until the officers successfully gained control of the situation and handcuffed Plaintiff. Id. At this point, Plaintiff was searched and officers found a glass pipe for smoking cocaine with residue. Id. Meanwhile, Sergeant Super took the vehicle's passenger, Douglas Edwards, into custody without incident. See Sgt. Super's Investigative Report (“Ehibit F”)[Dkt. No. 24-12], at 3.

         An ambulance was requested on the scene to treat Plaintiff for injuries sustained during the struggle. See DSOF, at ¶ 9. Plaintiff was first transported to Hammonton Hospital, where he refused to consent to giving blood and urine samples. Id. At the hospital, Plaintiff's breath continued to smell strongly of alcohol. Id. Plaintiff was then transferred to Cooper Hospital for treatment of an orbital fracture sustained during the struggle with the officers. Id. Officer D'Augustine also suffered injuries to his back during the struggle. Id. at ¶ 11.

         The Egg Harbor Township Police Department issued the following warrants to Plaintiff in relation to his arrest on November 2, 2014: possession of cocaine(N.J.S.A. 2C:35-10A(1)), knowingly fleeing and eluding police (N.J.S.A. 2C:29-2B), possession of drug paraphernalia (N.J.S.A. 2C:36-2), possession of a weapon (N.J.S.A. 2C:39-9D), and assault against a law enforcement officer(N.J.S.A. 2C:12-1B(5)(A). DSOF, at ¶ 10. The Northfield Police Department also issued warrants to Plaintiff for various motor vehicle offenses, in addition to eluding under N.J.S.A. 2C:29-2B. Id.

         On November 4, 2016, Plaintiff appeared in the Criminal Division of New Jersey Superior Court, Atlantic County, for plea proceedings in relation to his November 2, 2014 arrest. Plaintiff pleaded guilty to knowingly fleeing and eluding police (N.J.S.A. 2C:29-2B) and refusal to submit to a breath test (N.J.S.A. 39:4-50.4(a)). DSOF, at ¶ 11. In exchange for the plea agreement, state prosecutors agreed that Plaintiff would be sentenced as a third degree offender to three years in New Jersey state prison and ordered to pay $32, 629.03 in restitution for workers' compensation medical costs related to the injuries suffered by Officer D'Augustine. Id. At the plea proceeding, Plaintiff admitted on the record that he failed to stop his vehicle as requested by the officers and operated his vehicle in a manner that created a substantial risk of injury or death to others. Id.

         II. PROCEDURAL HISTORY

         On November 2, 2016, Plaintiff commenced this action by filing a pro se Complaint [Dkt. No. 1], along with an application to proceed in forma pauperis (“IFP”). Accordingly, the Court screened Plaintiff's complaint and granted Plaintiff's IFP application on December 22, 2016 [Dkt. Nos. 3, 4]. In the same Opinion and Order, the Court dismissed Plaintiff's purported § 1983 claims against Officers Pete Czplinski, Christopher Ruef, Benjamin Kollman, and S. Hiltner. The Court also dismissed Plaintiff's § 1983 false arrest claim against Defendants, but allowed Plaintiff's § 1983 excessive force claim against Defendants to proceed.

         On January 26, 2017, Plaintiff filed a Motion to Appoint Pro Bono Counsel [Dkt. No. 8], which was denied by Magistrate Judge Ann Marie Donio on February 9, 2017 [Dkt. No. 9]. On May 4, 2017, Plaintiff filed a renewed Motion to Appoint Pro Bono Counsel [Dkt. No. 15], which was denied by Magistrate Judge Donio on May 12, 2017 [Dkt. No. 16]. The deadline for pretrial factual discovery passed on June 30, 2017, without Plaintiff producing any documents or affidavits.

         Defendants filed this Motion for Summary Judgment on October 25, 2017, seeking dismissal of Plaintiff's remaining § 1983 excessive force claim against Defendants. After learning that Defendants had served the motion upon Plaintiff at an outdated address, [2] this Court issued an Order, on May 21, 2018 [Dkt. No. 25], instructing Defendants to personally serve the Motion for Summary Judgment upon Plaintiff at his new address and file a certificate of service. On June 3, 2018, Defendants filed a ...


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