Opinion
CIVIL NO. 00-1200 (JBS).
March 22, 2002
Paul J. Hirsh, Esquire, Paul J. Hirsh, P.C., Parsippany, New Jersey, and Rodney D. Ray, Esquire, Law Offices of Rodney D. Ray, Esquire, Marlton, New Jersey, Counsel for Plaintiffs.
Diana R. Sever, Esquire, PARKER, McKAY CRISCUOLO, P.A., Marlton, New Jersey, Counsel for Defendants.
OPINION
Presently before this Court are two motions: Defendants' motion for summary judgment on all claims made in plaintiffs' Complaint pursuant to Rule 56, Fed.R.Civ.P., and defendant Warren's motion for fees and sanctions pursuant to Rule 11, Fed.R.Civ.P. Plaintiffs bring this 42 U.S.C. § 1983 action against defendants for allegedly using excessive force, violating plaintiffs' equal protection rights, and unlawfully causing their dog Gizmo to be killed, in violation of their Fourth and Fourteenth Amendment rights. Plaintiffs also assert state law claims for false arrest and assault and battery against defendants. The Court has considered these motions on the papers and without oral argument pursuant to Rule 78, Fed.R.Civ.P. For the reasons discussed below, this Court will grant defendants' motion for summary judgment and dismiss plaintiffs' Complaint. Defendant Warren's motion for Rule 11 fees and sanctions will be denied.
In the introduction to their Complaint, plaintiffs assert that defendants violated their rights under the First, Fourth, Fifth, Eighth, Ninth and Fourteenth Amendments to the United States Constitution, but plead no facts in support of the First, Fifth, Eighth, or Ninth Amendment Claims. Additionally, in their opposition to defendants' motion for summary judgment, plaintiffs argue only in support of their excessive force and equal protection claims.
I. BACKGROUND
On March 14, 1998, plaintiff Donald Brown ("Brown") called 911 for emergency assistance with a leaf fire under his car, which was parked in his driveway, located at 63 Verbena Street, Browns Mills, New Jersey. Brown reported that the fire looked like a "big ball of fire . . . from underneath [his] car." (Defs.' Ex. A, Brown Dep., Tr. 127:20-25.) Defendant Craig Augustoni, Fire Chief for the Browns Mills Volunteer Fire Department ("Augustoni"), responded to the 911 call in his official fire department vehicle and indicated that he observed white smoke emanating from underneath the vehicle parked in Brown's driveway. (See Defs.' Mot. For Summ. J., Ex. B, Jun. 14, 2000 Pemberton Township Municipal Court Trial Tr., hereinafter "Trial Tr." at 11:-10.) Plaintiff Brown asserts that the fire was extinguished by the time Augustoni arrived at the scene, and that there was no longer a need for Augustoni to inspect the fire scene. (Pls.' Ex. A., Brown Dep., Tr. 131:1-25.)
When Augustoni arrived at the Brown home, he encountered the Browns' dog, Gizmo, a sixty-five pound mixed breed pitbull. Augustoni testified that he perceived the dog to be a threat to his safety, and therefore he stood behind the Browns' front gate and fence for protection. (Trial Tr. at 12:20-14:18.) Brown disputes that Gizmo posed a threat to Augustoni. (Brown Dep., Tr. 154:4-6.) While attempting to reach the car fire scene, Augustoni kicked at Gizmo and Gizmo allegedly bit Augustoni on the left calf and broke the skin. (Trial Tr. at 16:8-17:11; 27:1-20.) Brown denies that Gizmo bit Augustoni. (Brown Dep., Tr. 177:7-11.) After the interaction between Gizmo and Augustoni, Brown put Gizmo inside his house because the dog was "upset and frustrated." (Brown Dep., Tr. 171:2-172:21.) Brown then refused to allow Augustoni onto his property, stating that the fire was out and that he had a pet dog, which Augustoni should avoid for his own safety. (See Compl., ¶ 17.)
After retreating from Brown's property, Augustoni met up with the police back-up for the 911 call as defendant Officer Hale arrived. Once Officer Hale was on scene, Augustoni again attempted to get to the scene of the reported fire. Augustoni alleges that Brown obstructed him and bumped him on the shoulder. (Trial Tr. 86:13-87:9.) Brown asserts that Augustoni rammed into his shoulder and called him an "uppity nigger," causing left shoulder pain. (Brown Dep., 158:4-11.) At the time of this physical contact between Brown and Augustoni, Officer Hale arrested Brown for obstruction. Hale asserts that Brown resisted arrest and required Hale to push Brown against a fence and handcuff him before taking him to his police vehicle. (Trial Tr. 50:15-51:17.) Brown testified at his deposition that he felt right hip and back pain after his encounter with Hale, but sought no medical treatment for that pain. (Brown Tr. 164:19-165:9.)
Plaintiff makes several allegations that Augustoni shouted racial epithets at him on March 14, 1998, and vaguely alleges that his arrest and the shooting of Gizmo were racially motivated. Additionally, Brown references an earlier encounter between himself and Augustoni, unrelated to this incident, during which plaintiff claims Augustoni called him a derogatory name. Only one of the unsworn statements submitted in support of plaintiffs' claims, which are not admissible evidence, by Ms. Burns, refers to a racial insult made by Augustoni. (See Pls.' Opp., Exs. D-F, Unsworn statements of Jim Gates, Jarene Johnson, and Caroline V. Burns.) Ms. Burns asserted that Augustoni, after the dog was shot, stated that "these niggers think they can get away with anything." (Pls.' Ex. F, Burns Statement at 2.) In their opposition plaintiffs assert, in their own characterization, that Hale and Augustoni were involved in a conspiracy to "get the nigger" and "get the nigger's dog," plaintiffs point to no admissible evidence in the record in support of that claim. (Pls.' Br. at 6, 7, 10.) These allegations, while disturbing, are not adequately developed by the plaintiffs' submissions or supported in the record, sufficient to support an constitutional Equal Protection violation claim, as discussed more fully in Section II.C.a.II.
As discussed in greater detail below, Brown was charged with and convicted of preventing a public servant from lawfully performing an official duty in violation of N.J.S.A. 2C:29-1 as a result of his obstruction of Augustoni, who was responding to Brown's 911 call and fire report. The Court has trouble understanding why Mr. Brown would call 911 and request assistance with a car fire, and then refuse to grant the responding fire official access to the fire. Even accepting Mr. Brown's assertion that the fire had been extinguished as true, it is undisputed, yet it makes no sense, that he requested that Augustoni not examine the smoldering fire scene, in order to ensure the safety of the Brown home and other surrounding residential structures.
Before being placed into the patrol car, Brown requested permission to secure his home and Hale escorted him to the door. (Trial Tr. 65:1-23.) Hale testified that Brown opened the door, rather than locking it, and released Gizmo, who allegedly bit Hale on the thigh. (Trial Tr. 56:7-57:23; 75:9-10.) Hale then testified that he retreated from the dog, which he perceived was again about to attack, and fired one fatal shot at it. (Id.) Plaintiff alleges that Hale opened the door, stepped back and took aim at Gizmo and fatally shot the dog without cause. (Brown Dep. at 184:23-185:3.) It is undisputed that Ms. Westerband-Brown was not home at the time of these events, however she asserts that she became ill and vomited as a result of Gizmo's death.
Plaintiff, in his deposition testimony, vehemently disputes that Gizmo ever bit Augustino or Hale, but offers no evidence to dispute the municipal trial testimony of Hale and Augustoni, supplemented by the photographs of their alleged bite injuries, which were moved into evidence in the municipal trial. (Trial Tr. 27:1-25, 59:11-63:4.) Brown's attorney objected to the photographs as irrelevant, asserting that the dog bite was not the subject of the assault, obstruction, or resisting arrest charges then pending against Brown, but those objections appear to have been overruled. (Id.) It does not appear that Augustoni or Hale were cross-examined about the truthfulness of their testimony about the dog bites they sustained on March 14, 1998.
After the shooting of Gizmo, defendant Sharon Warren, the Animal Control Officer for Pemberton Township, arrived at the Brown home. (Defs.' Ex. C, Warren Aff., ¶¶ 1-2.) Warren was told by Augustoni and/or Hale that the dog, which she knew belonged to plaintiffs, had attacked and bitten Hale and Augustoni. (Warren Aff., ¶ 3.) Warren indicated that she acted upon the report of the bites and had the already dead dog removed for rabies testing, which requires removal of the animal's brain, as she believed was required by state law. (Warren Aff., ¶¶ 4-5.)
Defendants cite several New Jersey statutes that govern the quarantine of animals who have bitten a person. See Defs.' Br. at 10-11 (citing N.J.S.A. 4:19, et al.; N.J.S.A. 26:4-82, 86.) Defendants also cite N.J.A.C. 8:23A-1.10(a)4, which details the procedure for protecting the public against rabies when an animal is already dead. (Defs.' Br. at 11, incorrectly citing to N.J.S.A. 8:23A-10.)
Plaintiffs allege that they sustained physical injuries as a result of the incident on March 14, 1998. Plaintiff Brown alleges left shoulder pain and high blood pressure as a result of the contact between him and Augustoni, but admits that he received no medical care until several months after the incident. (Brown Dep., Tr. 246:17-247:2.) Plaintiff testified during his deposition that he felt right hip and back pain after Hale handcuffed him (Brown Tr. 164:19-165:9), but submits no evidence that he received any treatment for that alleged injury. Plaintiff submitted several medical reports, dated July, 1998 — September, 1998, regarding his left shoulder pain. (Pls.' Ex. G.) Plaintiff admits that he has a history of high blood pressure and that he was recovering from a left hip replacement on March 14, 1998, necessitated by his preexisting avascular necrosis and degenerative joint disease. (Defs.'s Br. at 6-7, ¶ 38; Pls.' Br. at 8, ¶ 38.) Ms. Westerband-Brown reported nausea, vomiting, and chest pains after the incident. (Brown Dep. 51:23 — 54:20.)
On June 14, 2000, as a result of the physical contact that transpired between Augustoni and Brown on March 14, 1998, Brown was tried for assault in violation of N.J.S.A. 2C:12-1, preventing a public servant from lawfully performing an official function in violation of N.J.S.A. 2C:29-1, and resisting arrest in violation of N.J.S.A. 2C:29:2. (See Defs.' Ex. B; Pls.' Ex. B; Trial Tr.) The trial occurred before the Honorable James A. Yocum, J.M.C., in Pemberton Township Municipal Court and Mr. Brown was represented by his present attorney, Rodney D. Ray, Esquire. Augustoni and Hale testified at trial and Brown did not.
The statute for simple assault provides:
A person is guilty of assault if he:
(1) Attempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or
(2) Negligently causes bodily injury to another with a deadly weapon; or
(3) Attempts by physical menace to put another in fear of imminent serious bodily injury.
N.J.S.A. 2C:12-1(a).
The statute for obstruction provides, in relevant part:
A person commits an offense if he . . . prevents or attempts to prevent a public servant from lawfully performing an official function by means of intimidation, force, violence, or physical interference or obstacle, or by means of any independently unlawful act. . . .
N.J.S.A. 2C:29-1.
The statute for resisting arrest provides, in relevant part:
A person is guilty of a disorderly persons offense if he purposely prevents a law enforcement officer from effecting a lawful arrest . . .
N.J.S.A. 2C:29-2.
Although not essential elements to any of the municipal charges against Brown, both Hale and Augustoni testified about the nature and extent of their bite injuries, and several photographs of such injuries were moved into evidence. (Trial Tr. 27:1-24; 59:8-63:4.) Plaintiff has not asserted that either witness was cross-examined about the infliction or severity of the bites. The judge determined that Brown was guilty of obstruction because Augustoni had a duty and a right to ensure that the fire was out. (Trial Tr. 86:24-87:9.) The judge determined that Brown was not guilty of assault or resisting arrest because there was no evidence that the "minor skirmish" between Augustoni and Brown was intended to inflict harm or was anything more than "incidental." (Trial Tr. 86:13-87:22.) Brown did not appeal his conviction for obstruction.
On June 15, 1998, plaintiff Brown filed a "Claim for Damages Against Pemberton Township," presumably meant to be a Notice of Tort Claim, with the Pemberton Township Municipal Court. On March 13, 2000, plaintiffs filed the Complaint in this action. On June 7, 2000, defendants answered the Complaint and raised multiple defenses. On June 4, 2001, defendants filed a motion for summary judgment on all claims against all defendants in the Complaint. Also on June 4, 2001, defendant Warren moved for Rule 11 fees and sanctions.
Plaintiffs oppose the motion in part, but explicitly concede that the excessive force, false arrest, and all state law claims against Warren (Counts I, II, and X) and all claims against the Township of Pemberton and the Pemberton Township Chief of Police should be dismissed. (See Pls.' Opp. Br. at 12, 14, 23.) Additionally, plaintiffs do not substantively oppose defendants' motion for summary judgment on Ms. Westerband-Brown's state law claims. Summary judgment will be granted on those claims and they will be dismissed with prejudice. The remaining claims by plaintiffs arising under 42 U.S.C. § 1983 against Hale and Augustoni for excessive force and violation of equal protection, and against Warren for the beheading of Gizmo, and also Mr. Brown's state law claims of false arrest and assault and battery are discussed herein.
II. DISCUSSION
A. Summary Judgment Standard
Summary judgment is appropriate when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the non-moving party." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" only if it might affect the outcome of the suit under the applicable rule of law. Id. Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. Id.
In deciding whether there is a disputed issue of material fact, the court must view the evidence in favor of the non-moving party by extending any reasonable favorable inference to that party; in other words, "[T]he nonmoving party's evidence `is to be believed, and all justifiable inferences are to be drawn in [that party's] favor.'" Hunt v. Cromartie, 526 U.S. 541, 552 (1999) (quoting Anderson, 477 U.S. at 255). The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Liberty Lobby, 477 U.S. at 250; Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 329-330 (3d Cir. 1995) (citing Anderson, 477 U.S. at 248) ("[T]he nonmoving party creates a genuine issue of material fact if it provides sufficient evidence to allow a reasonable jury to find for him at trial.").
The moving party, here the defendants, always bears the initial burden of showing that no genuine issue of material fact exists, regardless of which party ultimately would have the burden of persuasion at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Jalil v. Avdel Corp., 873 F.2d 701, 706 (3d Cir. 1989), cert. denied, 493 U.S. 1023 (1990). However, where the nonmoving party bears the burden of persuasion at trial, as in the present case, "the burden on the moving party may be discharged by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Celotex Corp., 477 U.S. at 325.
The non-moving parties, here the plaintiffs, "may not rest upon the mere allegations or denials of" its pleading in order to show the existence of a genuine issue. Fed.R.Civ.P. 56(e). It must do more than rely only "upon bare assertions, conclusory allegations or suspicions." Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985), cert. denied, 474 U.S. 1010 (1985) (citation omitted); see Liberty Lobby, 477 U.S. at 249-50; Celotex, 477 U.S. at 324-25. Once the moving party has carried its burden of establishing the absence of a genuine issue of material fact, "its opponent must do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Thus, if the non-movant's evidence is merely "colorable" or is "not significantly probative," the court may grant summary judgment. Anderson, 477 U.S. at 249-50.
B. Remaining Claims Alleged in the Complaint
As noted above, plaintiffs do not oppose the entry of summary judgment on all counts in favor of defendants Pemberton Township and the Pemberton Police Chief, entry of summary judgment in favor of defendant Warren on the excessive force constitutional claim and state law claims, or in favor of defendants Hale and Augustoni on plaintiff Ms. Westerband-Brown's state law claims. Those claims, therefore, will be dismissed with prejudice as unopposed. Remaining are plaintiffs' constitutional claims for excessive force and equal protection violations against Hale and Augustoni, plaintiff Brown's state law claims for false arrest and assault and battery against Hale and Augustoni, and plaintiffs' equal protection constitutional violation claim against defendant Warren for the beheading of plaintiffs' dog. Those claims are analyzed herein.
This Court does not consider or decide whether a constitutional deprivation of property without due process occurred (or did not occur) as a result of the March 14, 1998 incident. Plaintiffs are represented by counsel and have not plead or briefed the deprivation of property issue, although the Third Circuit recently spoke on that issue where the destruction of a pet dog by a police officer occurred. See Brown v. Muhlenberg Township, 269 F.3d 205 (3d Cir. 2001) (finding genuine issue of material fact which precluded summary judgment on plaintiff's Fourth Amendment deprivation of property claim for the police shooting of their pet Rottweiler, Immi). This opinion makes no determination of whether such a claim would be viable on these facts under New Jersey law.
C. Analysis
The statute invoked, 42 U.S.C. § 1983, is a powerful legislative "sword" providing injunctive relief and damages for the benefit of citizens whose Federal Constitutional rights have been violated by persons acting on behalf of a state or local government. Since its enactment, § 1983 has become Congress's primary means of protecting United States citizens from illegal state action. Sheldon H. Nahmod, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 § 1.1 (4th ed. 1997).
Section 1983 provides, in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
Thus, to properly assert a claim for alleged violations of his constitutional rights pursuant to 42 U.S.C. § 1983, a plaintiff must allege (1) a violation of a right secured by the Constitution and laws of the United States, and (2) that the alleged deprivation was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
Plaintiffs concede that their 42 U.S.C. § 1983 claims against defendants Pemberton Township and the Pemberton Township Chief of Police, and therefore all claims against the improperly named Pemberton Township Police and Fire Departments, should be dismissed. (See Pls.' Opp. at 14.) Plaintiffs also concede that their Section 1983 claim for excessive force against defendant Warren should be dismissed. Plaintiffs, however, oppose summary judgment on their § 1983 excessive force and equal protection claims against Officer Hale and Fire Chief Augustoni, and their § 1983 equal protection claim against Animal Control Officer Sharon Warren.
a) Mr. Donald Brown
I. Excessive Force Claims
Plaintiff Brown alleges that defendants Augustoni and Hale used excessive force against him on March 14, 1998 and therefore violated his constitutional rights pursuant to 42 U.S.C. § 1983. An excessive force claim under § 1983 arising out of law enforcement conduct is based on the Fourth Amendment's protection from unreasonable seizures of the person. See Groman v. Township of Manalapan, 47 F.3d 628, 633 (3d Cir. 1995) (citingGraham v. Connor, 490 U.S. 386, 394-95, 109 S. Ct. 1865, 1870-71, 104 L. Ed.2d 443 (1989)). When a law enforcement officer uses force so excessive that it violates the Fourth and Fourteenth Amendments, a cause of action exists under 42 U.S.C. § 1983. Groman, 47 F.3d at 633-34 (citing Brown v. Borough of Chambersburg, 903 F.2d 274, 277 (3d Cir. 1990)). In the course of effectuating a lawful arrest, police officers are privileged to commit a battery, however that privilege is negated by the use of excessive force. Groman, 47 F.3d at 634 (citing Edwards v. City of Philadelphia, 860 F.2d 568, 572 (3d Cir. 1988)).If force is necessary to effectuate an arrest, the force applied must be reasonable. Groman, 47 F.3d at 634 (citingGraham, 490 U.S. at 396, 109 S. Ct. at 1871). Reasonableness of force is measured by "careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Groman, 47 F.3d at 634 (quoting Graham, 490 U.S. at 396, 109 S. Ct. at 1871). The reasonableness inquiry is an objective one, but should consider the circumstances of the police action, which is often "tense, uncertain, and rapidly evolving." Groman, 47 F.3d at 634 (quoting Graham, 490 U.S. at 397, 109 S. Ct. at 1872); see also Mellott v. Heemer, 161 F.3d 117, 122 (3d Cir. 1998) (citing Graham, 490 U.S. at 396).
In contrast to the way the physical contact between Brown and Augustoni was characterized by Brown's lawyer during Brown's trial for assault, Brown testified at his deposition in this action that he was under attack by Augustoni on March 14, 1998, and that Augustoni ran into his left shoulder and spun him around. (Brown Tr. 162:12-23.) As a result of that contact Brown reported left shoulder pain. This contact is the sole allegation of excessive force by Brown against Augustoni.
Brown also alleges that Hale used excessive force against him when he was arrested and handcuffed for obstructing Augustoni from conducting a fire investigation. Brown also asserts that Hale falsely arrested him. Brown testified that "[Hale] ran directly to me, grabbing me, throwing me up against the side fence. He put handcuffs on me and brought me to his car." (Brown Tr. 163:4-6.) Hale testified that he had to exert a little extra effort to handcuff Brown and effectuate the arrest because Brown pulled away from him after he advised him he was under arrest. (Trial Tr. 50:15-51:11.)
Plaintiff Brown's claim for a constitutional violation arising from Hale's alleged false arrest is without merit. The Fourth Amendment prohibits the arrest of a person except with probable cause. See Orsatti v. New Jersey State Police, 71 F.3d 480, 482 (3d Cir. 1995) (citing cases). "The proper inquiry in a section 1983 claim based on false arrest . . . is not whether the person arrested in fact committed the offense but whether the arresting officers had probable cause to believe the person arrested had committed the offense." Groman, 47 F.3d at 634 (citing Dowling v. City of Philadelphia, 855 F.2d 136, 141 (3d Cir. 1988)). "[P]robable cause to arrest exists when the facts and circumstances within the arresting officer's knowledge are sufficient in themselves to warrant a reasonable person to believe that an offense has been or is being committed by the person to be arrested." Id. Hale arrested Brown after he observed him obstruct Augustoni from investigating the reported fire. It is undisputed that Brown was charged and convicted of obstructing Augustoni from performing his official duties in connection with investigating the fire that Brown had reported on March 14, 1998. It is also undisputed that Brown never appealed that conviction. Therefore, no reasonable factfinder could conclude that Hale was without probable cause to arrest Brown, having just observed the obstruction, or that he falsely arrested Brown on March 14, 1998. Summary judgment on that claim, therefore, will be granted.
In this case, summary judgment in favor of Augustoni and/or Hale is appropriate if, as a matter of law, the evidence presented would not support a reasonable jury finding that the force used by Augustoni and/or Hale was excessive under the circumstances. This Court finds that the physical contact that occurred between Augustoni and Brown, and also the limited force exerted by Officer Hale to handcuff Brown after his arrest, could not be found to be excessive by any reasonable factfinder. Plaintiff admittedly obstructed Augustoni from getting to the fire scene, which required his arrest. The slight contact between Augustoni and Brown and the minimal force used by Hale to effectuate arrest was reasonable under the circumstances for the protection of Brown and his property, as well as for his neighbors and their property. There being no genuine issue of disputed material fact remaining on plaintiffs' excessive force claims, summary judgment in favor of defendants is appropriate and will be entered.
II. Equal Protection Claims
Plaintiff Brown additionally alleges that defendants Augustoni, Hale, and Warren violated his equal protection rights on March 14, 1998 and therefore violated his constitutional rights pursuant to 42 U.S.C. § 1983. In support of his equal protection claims plaintiff asserts that Augustoni, Hale, and Warren treated him differently because he is an African American."To bring a successful claim under 42 U.S.C. § 1983 for a denial of equal protection, plaintiffs must prove the existence of purposeful discrimination. . . . They must demonstrate that they received different treatment from that received by other individuals similarly situated." Estate of Smith v. Marasco, 2002 WL 54507, *25 (E.D. Pa. Jan. 11, 2002) (quoting Andrews v. City of Philadelphia, 895 F.2d 1469, 1478 (3d Cir. 1990) (internal quotations and citations omitted)). Proof of discriminatory intent is required. See Stehney v. Perry, 101 F.3d 925, 932 (3d Cir. 1996).
Plaintiffs contend that defendants Augustoni, Hale, and Warren treated them unfavorably and caused their dog to be decapitated because they are African American. Brown also alleges that defendant Hale called him by a racial epithet during their encounter on March 14, 1998. The only evidence submitted by plaintiff in support of his claim is his own deposition testimony that Augustoni called him "an uppity nigger" during their encounter on March 14, 1998. (Brown Dep. Tr. 162:20-22.) Plaintiff also argues in his brief in opposition to summary judgment that all three defendants were out to "get the nigger and get his dog" and also that the decapitation of Gizmo for rabies testing was part of "the overall racial animosity that pervades the incident of March 14, 1998." (See Pls.' Opp. at 12, 21-22.)
Plaintiff has failed to meet his burden of proving the existence of purposeful discrimination during the March 14, 1998 incident and also that plaintiffs were treated differently from other individuals similarly situated. Based on the evidence submitted to this Court, no reasonable juror could conclude that defendants violated plaintiffs' constitutional equal protection rights. Plaintiffs have offered no evidence that others similarly situated who are not African American were treated more favorably. Lack of any evidence that non-minority residents are treated more favorably than plaintiffs under similar circumstances is fatal to this equal protection claim. Summary judgment, therefore, is appropriate and will be entered in favor of all defendants.
1. Ms. Nancy Westerband-Brown
Plaintiffs concede that Ms. Westerband-Brown was not at home at the time of the aforementioned occurrences. Ms. Westerband-Brown, therefore, cannot reasonably show that either defendant Augustoni or Hale used excessive force against her, since they never even encountered her on March 14, 1998. Plaintiff Westerband-Brown has no standing to assert the constitutional violations she alleges were perpetrated against her husband and/or dog. See Coon v. Ledbetter, 780 F.2d 1158 (5th Cir. 1986) (holding that wife could not assert claim for violation of her civil rights related to the use of excessive force by officers against her husband);Dye v. Wargo, 253 F.3d 296 (7th Cir. 2001) (holding that K-9 officer dog is not a "person" within the meaning of 42 U.S.C. § 1983); Miles v. Augusta City Council, 710 F.2d 1542 (11th Cir. 1983) (holding that a talking cat is not a "person" and therefore not protected by the Bill of Rights). Additionally, as discussed above with respect to Mr. Brown, plaintiffs have failed to offer any admissible evidence of an equal protection violation by Hale or Augustoni against plaintiff Ms. Westerband-Brown.
Even if the Court were to find that plaintiff Westerband-Brown was somehow injured by the alleged actions of Officer Hale or Fire Chief Augustoni, a police action [the arrest of Mr. Brown for interference and/or the shooting of Gizmo] that negligently causes injury to bystanders [Mrs. Westerband-Brown] does not equate to an excessive use of force toward those bystanders.See Claybrook v. Birchwell, 199 F.3d 350, 360-61 (6th Cir. 2000) (finding that the negligent actions of police officers resulting in the unintentional shooting of a bystander did not warrant Fourteenth Amendment substantive due process liability under Section 1983); Popow v. City of Margate, 476 F. Supp. 1237, 1242-43 (D.N.J. 1979) (citing cases holding that simple negligence, even on the part of a police officer, is not sufficient to establish Section 1983 liability). Ms. Westerband-Brown cannot show that Officer Hale, Fire Chief Augustoni, or Animal Control Officer Warren violated her constitutional rights by arresting her husband or shooting her dog. There being no genuine issue of material fact remaining regarding Ms. Westerband's constitutional claims under Section 1983, summary judgment in favor of defendants is proper and will be granted.
As discussed above, police officers do not have carte blanche to kill domesticated pets. The Third Circuit in Brown, supra, when evaluating the deprivation of property claims asserted by those plaintiffs, held that "the killing of a person's dog by a law enforcement officer constitutes a seizure under the Fourth Amendment." 269 F.3d at 210. Therefore, to be constitutionally permissible, such a seizure must be reasonable.Id. There is, however, no claim presently before this Court which alleges that defendants deprived plaintiffs of any property right.
1. State Law Claims
Plaintiff Brown next alleges that Hale and Augustoni are liable to him for the state common law torts of assault and battery and false arrest for the incident on March 14, 1998.
As discussed above, plaintiff Ms. Westerband-Brown does not substantively oppose defendants' motion for summary judgment on her state law claims. Because Ms. Westerband-Brown does not allege that she sustained injury sufficient to impose liability on a public official pursuant to the New Jersey Tort Claims Act, 59:9-1, et. seq. ("NJTCA"), and also because Ms. Westerband-Brown was not even present during the March 14, 1998 incident, summary judgment will be entered in favor of defendants Hale and Augustoni on her claims for assault and battery and false arrest.
Under New Jersey law, a person may be liable for battery if he acts intending to cause a harmful or offensive contact . . . or an imminent apprehension of such contact and a harmful or offensive contact directly or indirectly results. See 1 Restatement (Second) of Torts §§ 13, 18 (1965). A person who acts with the same intent may be liable for assault even if no contact actually results if the victim is placed in "imminent apprehension" of a harmful or offensive contact. Id. at § 21;Giovine v. Giovine, 284 N.J. Super. 3, 33 (App.Div. 1995).
False arrest, or false imprisonment, is the constraint of a person against his will without legal justification. See Mesgleski v. Oraboni, 330 N.J. Super. 10, 24 (App.Div. 2000) (citing cases); Fleming v. United Parcel Serv., Inc., 255 N.J. Super. 108, 155 (Law Div. 1992).
Before considering whether plaintiff alleges facts which support each of the elements of their claims, this Court must first determine whether plaintiff has met the threshold limitations contained in the New Jersey Tort Claims Act, 59:9-1, et. seq. ("NJTCA"). The NJTCA provides that:
no damages shall be awarded against a public entity or public employee for pain and suffering resulting from any injury; provided, however, that this limitation on the recovery of damages for pain and suffering shall not apply in cases for permanent loss of a bodily function, permanent disfigurement or dismemberment where the medical treatment expenses are in excess of $3,600.00.
N.J.S.A. 59:9-2(d). The New Jersey Supreme Court has held that in order to recover damages from a public entity or employee, "a plaintiff must prove by objective medical evidence that the injury is permanent." Brooks v. Odom, 150 N.J. 395, 406 (1997).
The New Jersey Supreme Court recently further determined that under N.J.S.A. 59:9-2d, a permanent injury requires a loss of bodily function that is both permanent and substantial, such that even an injury consisting of a torn medial meniscus that required arthroscopic surgery, but that did not result in any limitation of the range of motion or other function, does not meet this statutory threshold. Ponte v. Overeem, ___ N.J. ___, A-99-00, 2002 WL 272395 (Feb. 27, 2002). In contrast, in Kahrar v. Borough of Wallington, ___ N.J. ___, 2002 WL 272365 (Feb. 27, 2002), the New Jersey Supreme Court found that the threshold may be satisfied where the injury complained of consisted of a massive tear of her rotator cuffs necessitating surgery, requiring $25,000 in medical treatment, and leaving her with substantially reduced range of motion, and necessitating 100 days lost from work. Ponte and Kahrar are highly instructive here.
Plaintiff Mr. Brown alleges that he sustained left shoulder pain as a result of the incident and that a shoulder replacement might be necessary in the future. Plaintiff Brown submitted six medical reports of treatment for this pain, discussed in greater detail below. Plaintiff Brown also alleges that he felt right hip and back pain after his arrest by Hale, but submits no evidence of treatment for such injury.
After his arrest on March 14, 1998, plaintiff Brown reported left shoulder and chest pain. (Brown Dep. Tr. 232:9-23.) Plaintiff requested that his wife bring pain medication to the precinct where he was being held, and his wife arrived shortly thereafter with plaintiff's Oxycodone prescription. (Brown Dep. Tr. 233:1-23.) Plaintiff was then transported to the hospital, but indicated that the hospital doctors did not make any findings about his alleged injury. (Brown Dep. Tr. 233:25-246:1.) No medical records associated with this hospital visit were submitted.
Several months later, in June, 1998, plaintiff consulted Dr. Koenig at the Veteran's Administration Hospital for left shoulder pain. Dr. Koenig referred Brown to Dr. Bruce Wulfsberg, who saw plaintiff on July 1, 1998. (Pls.'s Ex. G.) Plaintiff reported a history of high blood pressure, heart, and thyroid problems. Wulfsberg diagnosed impingement syndrome and prescribed physical therapy and Tylenol. (Id.) On July 13, 1998 and again on July 22, 1998, Dr. Wulfsberg noted that x-rays revealed left shoulder sclerotic changes, indicative of avascular necrosis. (Id. at 2-3.) On August 19, 1998, examination and an MRI revealed left humeral head avascular necrosis. (Id. at 4-6.) On September 29, 1998, plaintiff consulted Raymond A. Adelizzi, D.O. at the Arthritis Center of New Jersey. (Id. at 7-9.) Plaintiff reported left shoulder pain, which he attributed to the March 14, 1998 incident. (Id. at 7.) Plaintiff reported a history of bilateral hip avascular necrosis. Examination revealed some left shoulder pain. Dr. Adelizzi discussed several treatment options with plaintiff.
Although plaintiff did receive medical treatment for the left shoulder pain he attributes to the March 14, 1998 incident, no expert ever specifically linked the injury to the incident or concluded that the injury was permanent. Plaintiff never reported to Dr. Koenig, Dr. Wulfsberg, or Dr. Adelizzi that his shoulder pain prevented him from conducting certain activities. Plaintiff has failed to raise a material factual dispute that he sustained a "permanent" loss of a "substantial" bodily function sufficient to meet the NJTCA threshold for his state law false arrest and assault and battery claims. Like the Ponte case discussed above, this injury, assuming it occurred, does not meet the New Jersey Tort Claims Act threshold. Mr. Brown's state tort law claims are therefore barred.
Additionally, although it is not necessary to reach the merits of the state law torts claims asserted, a preliminary review of the evidence submitted on this motion reveals that plaintiff Brown would have great difficulty proving the prima facie elements of each state tort alleged, even if the permanent injury threshold of the NJTCA had been met, which it has not. On the assault and battery issue, there is no clear admissible evidence that shows that the physical interaction between Brown and Augustoni was anything but incidental and slight. Indeed, when Mr. Brown was on trial in municipal court for assault against Augustoni, involving the exact same incident, his attorney argued that the contact was "ever so slight." (Trial Tr. 64:11-15.) Finding no evidence that bodily injury was intended from the bump, the judge found Brown not guilty of assault. (Trial Tr. 86:13-23.) If somehow Mr. Brown managed to hurt himself from bumping Augustoni in the performance of his firefighting duties, it was his own doing, without justification as found by the Municipal Court. On the false arrest issue, plaintiff has introduced no evidence that would suggest that Hale's arrest of him, after he obstructed Augustoni from investigating the fire, was not justified. Brown was convicted of obstruction in violation of N.J.S.A. 2C:29-1 after the judge found that Augustoni had a duty and a right to investigate the reported fire, which Brown attempted to prevent him from doing. (Trial Tr. 86:24-87:9.) No reasonable jury could find that Hale's arrest for obstruction was without legal justification. Summary judgment in favor of all defendants on all of plaintiffs' state law claims is appropriate and, therefore, Counts IV, V, VII, IX, and X will be dismissed with prejudice.
2. Rule 11 Fees and Sanctions
Defendant Warren also moves for attorneys fees and sanctions pursuant to Rule 11, Fed.R.Civ.P. Defendant Warren asserts that plaintiffs violated Rule 11(b) when they asserted claims against defendant Warren for excessive force, false arrest, and equal protection violations. Warren seeks an award of attorneys fees in the amount of $700.00, the amount expended drafting the summary judgment motion and reply papers. (See Sever Aff., ¶¶ 12-13.) Plaintiffs oppose Warren's motion for Rule 11 sanctions and fees, stating that "racial motivation tainted the actions of defendant Warren." (Pls.' Opp. at 24.)
Rule 11, Fed.R.Civ.P., "imposes on counsel a duty to look before leaping and may be seen as a litigation version of the familiar railroad crossing admonition to `stop, look, and listen.'" Lieb v. Topstone Indus., 788 F.2d 151, 157 (3d Cir. 1986); Carlino, 57 F. Supp.2d at 36-37. In other words, Rule 11 requires that an attorney who submits a complaint certify that it is not asserted for improper purposes, such as delay or harassment, and that there is a reasonable basis in fact and law for the claims made. See Carlino, 57 F. Supp.2d at 37 (citingNapier v. Thirty or More Unidentified Federal Agents, etc., 855 F.2d 1080, 1090 (3d Cir. 1988)). Rule 11 is intended to discourage the filing of frivolous, unsupported, or unreasonable claims. See id.
Rule 11 provides, in relevant part: (b) Representations to Court. By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances . . . [that]
(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;
(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;
(3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; . . .(c) Sanctions. If, after notice and a reasonable opportunity to respond, the court determines that subdivision (b) has been violated, the court may, subject to the conditions stated below, impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b) or are responsible for their violation.
(1) . . .
(A) By Motion. A motion for sanctions under this rule shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subdivision (b). It shall be served as provided in Rule 5, but shall not be filed with or presented to the court unless, within 21 days after service of the motion . . . the challenged . . . claim . . . is not withdrawn or appropriately corrected. . . .
The Third Circuit has written that "[t]he legal standard to be applied when evaluating conduct allegedly violative of Rule 11 is reasonableness under the circumstances." Ford Motor Co. v. Summit Motor Products, Inc., 930 F.2d 277, 289 (3d Cir.) (citations omitted), cert. denied, 502 U.S. 939, 112 S. Ct. 373, 116 L. Ed.2d 324 (1991); Carlino, 57 F. Supp.2d at 37. Reasonableness in the context of a Rule 11 inquiry has been defined as "an objective knowledge or belief at the time of the filing of a challenged paper that the claim was well grounded in law and fact." Ford Motor Co., 930 F.2d at 289; Clement v. Public Serv. Elec. Gas Co., 198 F.R.D. 634, 637 (D.N.J. 2001). Bad faith is not required for a Rule 11 violation, see Clement, 198 F.R.D. at 637 (citing Martin v. Brown, 63 F.3d 1252, 1264 (3d Cir. 1995), and thus there can be no `empty head, pure heart' justification for the filing of frivolous claims. See Clement, 198 F.R.D. at 637 (quoting Fed.R.Civ.P. 11, adv. cmte. notes (1993)).
Defendant Warren served the instant Rule 11 motion upon Plaintiffs on May 7, 2001, and filed the motion with the Court more than 21 days after, on June 4, 2001. Plaintiffs did not withdraw the challenged claims against defendant Warren during the safe harbor period. Plaintiffs, however, did concede in their papers opposing summary judgment that their constitutional excessive force claim and all state law claims against Warren should be dismissed. (Pls.' Opp. at 12, 23.)
Defendant Warren has failed to show that sanctions are appropriate in this case. Plaintiffs agreed not to oppose summary judgment on the constitutional excessive force claim and all state law claims (for false arrest and assault and battery), and oppose only what appears to be plaintiffs' constitutional claim for violation of equal protection rights against defendant Warren. Although plaintiffs' claims against Warren did not survive summary judgment, there is no evidence to suggest that they were asserted for improper purposes, such as harassment or delay. Additionally, because plaintiffs assert that there was some racial motivation behind defendant Warren's alleged actions, including Warren's transport of Gizmo's body for decapitation and rabies testing, there is some arguable for a claim that they were singled out for unequal treatment sufficient to defeat this motion for Rule 11 sanctions and fees. That such facts did not materialize does not show that the claim was frivolous when it was made. Defendant Warren's motion for Rule 11 sanctions and fees will therefore be denied.
III. CONCLUSION
For the reasons stated above, defendants' motion for summary judgment on all claims will be granted. Plaintiffs may, if appropriate, move to amend their pleadings to assert a claim for unconstitutional deprivation of property related to the destruction of their dog, Gizmo. Defendant Warren's motion for Rule 11 sanctions and attorney's fees will be denied. The accompanying Order is entered.
ORDER
This matter having come before the court upon a motion for summary judgment [Docket Item 9-1] on all claims in the Complaint by defendants Pemberton Township, Pemberton Township Police Department, Pemberton Township Fire Department, and the Pemberton Chief of Police (collectively "the Pemberton defendants") pursuant to Rule 56, Fed.R.Civ.P.; and upon defendant Warren's separate motion for Rule 11, Fed.R.Civ.P., fees and sanctions [Docket Item 10-1]; and this Court having considered all submissions made by the parties; and for the reasons expressed in the Opinion of today's date;IT IS this ____ day of March 2002 hereby
ORDERED that defendants' motion for summary judgment on all claims by plaintiffs in the Complaint [Docket Item 9-1] be, and hereby is, GRANTED ; IT IS FURTHER ORDERED that all 42 U.S.C. § 1983 claims for excessive force and equal protection violations by plaintiffs against the Pemberton defendants be, and hereby are, DISMISSED WITH PREJUDICE ;
IT IS FURTHER ORDERED that all 42 U.S.C. § 1983 claims for excessive force and equal protection violations by plaintiffs against Officer Hale, Fire Chief Augustoni, and Animal Control Officer Warren be, and hereby are, DISMISSED WITH PREJUDICE ;
IT IS FURTHER ORDERED that all state tort claims for false imprisonment and assault and battery by plaintiffs against defendants be, and hereby are, DISMISSED WITH PREJUDICE ; and
IT IS FURTHER ORDERED that defendant Warren's motion for Rule 11, Fed.R.Civ.P., fees and sanctions be, and hereby is, DENIED.