United States District Court, D. New Jersey
OPINION DKT. NO. 24
Renée Marie Bumb, United States District Judge.
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.
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(“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.
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 ¶¶
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.
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.
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.
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.
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.
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.
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.
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,  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 ...