2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-31-2013

Megan Gunter v. Township of Lumberton

Precedential or Non-Precedential: Non-Precedential

Docket No. 12-3146

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1

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______________

No. 12-3146

______________

MEGAN GUNTER, Administratrix of the Estate of Albert Gunter, Decedent;

LARRY GUNTER, JR.

v.

THE TOWNSHIP OF LUMBERTON; BURLINGTON COUNTY;

BURLINGTON COUNTY POLICE ACADEMY; DOUGLAS W. LEMYRE, Ptl.;

ROBERT J. SLOCUM, Sgt.; PAUL M. CRAIG, Cpl.; RONALD J. SANNA, Ptl.;

BRIAN H. NORCROSS, Ptl.

Megan Gunter,

Appellant

______________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

(D.C. No. 1-07-cv-04839)

District Judge: Noel L. Hillman

______________

Submitted Under Third Circuit LAR 34.1(a)

July 12, 2013

______________

Before: GREENAWAY, JR., SHWARTZ, and BARRY, Circuit Judges.

(Filed: July 31, 2013)

______________

OPINION

______________
2

SHWARTZ, Circuit Judge.

This case arises from the unfortunate death of Albert Gunter while he was in 

police custody. Appellant Megan Gunter, the decedent’s daughter, brought suit against 

the arresting officers and related municipal entities as administratrix of Albert Gunter’s

estate. Appellant now appeals the District Court’s grant of summary judgment in favor 

of Defendants as to her deprivation of medical care claim and the District Court’s 

disposition of the motions for reconsideration as to the excessive force and wrongful 

death claims.

1

 We will affirm.

I.

As we write primarily for the benefit of the parties, we recite only the essential 

facts and procedural history. Just after midnight on November 10, 2006, Lumberton 

police officers responded to a 911 call from Larry Gunter, who reported that his uncle, 

Albert Gunter, had been drinking, was locked in the garage of Larry Gunter’s home, was 

“a little out of control,” and there was a warrant for his arrest. App. 278-81. Patrolman 

Brian Norcross was the first to arrive at the Gunter home, followed by Sergeant Robert 

Slocum, Patrolman Douglas Lemyre, Corporal Paul Craig, and Patrolman Ronald Sanna

(collectively, the “police officers”). Larry Gunter informed Norcross that Albert Gunter

had been drinking alcohol and smoking narcotics all night, and that he wanted Albert 

 

1

Larry Gunter was a co-plaintiff, but he does not join the appeal. Burlington 

County and Burlington County Police Academy were dismissed from the action by 

stipulation and are not parties to this appeal. Appellant also asserted a Monell claim

against the officers’ employer, the Township of Lumberton, New Jersey, but she 

conceded that claim at the summary judgment stage and does not raise it here.
3

Gunter removed from his house. Upon approaching the garage, the officers heard Albert 

Gunter yelling, grunting, and making banging noises.

The police officers entered the garage and observed what appeared to be drug 

paraphernalia. They told Albert Gunter he was under arrest and attempted to place him in 

handcuffs, but he refused to place his hands behind his back. The officers used a “leg 

sweep” to force Albert Gunter to the ground, but he continued to resist and struck several 

of the police officers. App. 341-42. The police officers eventually sprayed him with 

pepper spray three times and handcuffed him. Albert Gunter continued to kick the police 

officers and so they attempted to secure his legs with flex cuffs, but he twice broke 

through them. The police officers then placed a belt around his legs, but he continued to 

kick, so they further restrained him by attaching his cuffed hands to the belt with three 

connected sets of handcuffs.

2 At some time during the altercation, Albert Gunter

sustained a laceration over his right eye, and the police officers summoned paramedics. 

While he was restrained, he was placed face down on the ground. When the police 

officers observed that Albert Gunter was not breathing, they performed CPR, connected 

an automatic defibrillator, and requested an advanced life support paramedic team. The

paramedics arrived and transported Albert Gunter to Virtua Hospital, where he was 

pronounced dead. An autopsy concluded that the cause of death was “[e]xcited delirium 

due to cocaine” and “[s]truggle due to cocaine toxicity.” App. 167.

 

2 As described below, the parties dispute whether this restraint constituted a “hogtie” or a “hobble tie.”
4

Appellant asserted claims against the police officers under 42 U.S.C. § 1983 for

excessive force and deprivation of medical care, and a claim under the New Jersey 

Wrongful Death Act, N.J. Stat. Ann. § 2A:31-1.

The District Court initially denied the police officers’ motion for summary 

judgment on all claims. After a subsequent hearing, the District Court granted summary 

judgment in favor of the police officers on the excessive force claim but denied summary 

judgment on the wrongful death and deprivation of medical care claims. Appellant and 

the police officers moved for reconsideration. Thereafter, the District Court issued an

order, from which Appellant now appeals, that: (1) denied Appellant’s motion for 

reconsideration of the District Court’s grant of summary judgment in favor of the police 

officers on Appellant’s excessive force claim and for punitive damages; (2) granted the 

police officers’ motion for reconsideration of the order denying summary judgment as to 

Appellant’s wrongful death claim, and granted summary judgment to the police officers

on that claim; and (3) granted the police officers’ motion for summary judgment on the 

issue of deprivation of medical care.

II.

The District Court exercised jurisdiction over Appellant’s federal claims pursuant 

to 28 U.S.C. § 1331, and supplemental jurisdiction over Appellant’s state law claim

pursuant to 28 U.S.C. § 1367. We have jurisdiction over this appeal pursuant to 28 

U.S.C. § 1291.

This appeal requires us to review an order that resolves motions for 

reconsideration and a motion for summary judgment. We generally review a District 
5

Court’s rulings on motions for reconsideration for an abuse of discretion. Long v. Atl. 

City Police Dep’t, 670 F.3d 436, 446-47 (3d Cir. 2012). To the extent that a district 

court’s ruling on a motion for reconsideration involves an issue of law, we review the 

underlying legal determination de novo.3 Burtch v. Milberg Factors, 662 F.3d 212, 220 

(3d Cir. 2011); see also Long, 670 F.3d at 446 n.20 (explaining that our plenary review of 

legal determinations “stems from the understanding that an appeal from a denial of a 

Motion for Reconsideration brings up the underlying judgment for review”) (internal 

quotation marks omitted). 

With respect to the review of the portion of the order granting summary judgment, 

we will review it de novo, Fed. Kemper Ins. Co. v. Rauscher, 807 F.2d 345, 348 (3d Cir. 

1986), applying the same standard as the District Court, Slagle v. Cnty. of Clarion, 435 

F.3d 262, 263 (3d Cir. 2006). Summary judgment is proper “if the movant shows that 

there is no genuine dispute as to any material fact and the movant is entitled to judgment 

as a matter of law.” Fed. R. Civ. P. 56(a). We draw all reasonable factual inferences in 

favor of the party opposing summary judgment. Pastore v. Bell Tel. Co. of Pa., 24 F.3d 

508, 511-12 (3d Cir. 1994).

III.

A. Excessive Force

The Fourth Amendment’s protection against unreasonable searches and seizures 

guarantees freedom from the use of excessive force during an arrest. Graham v. Connor, 

 

3

If the ruling on the motion for reconsideration involved factual findings, we 

would review those findings for clear error. Burtch, 662 F.3d at 220; Max Seafood Café 

ex rel Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 673 (3d Cir. 1999).
6

490 U.S. 386, 394 (1989). Courts apply an objective reasonableness standard when 

reviewing the force used to effect a seizure, and carefully balance “the nature and quality 

of the intrusion on the individual’s Fourth Amendment interests against the 

countervailing governmental interests at stake.” Id. at 396-97 (internal quotation marks 

omitted). Because officers are often called upon “to make split-second judgments—in 

circumstances that are tense, uncertain, and rapidly evolving—about the amount of force 

that is necessary in a particular situation,” id. at 397, we must evaluate the arrest “from 

the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of 

hindsight,” id. at 396;see also Carswell v. Borough of Homestead, 381 F.3d 235, 240 (3d 

Cir. 2004).

Under Graham and its totality of the circumstances test, the factors courts consider 

are “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 actively is resisting arrest or 

attempting to evade arrest by flight.” Kopec v. Tate, 361 F.3d 772, 776-77 (3d Cir. 2004)

(citing Graham, 490 U.S. at 396). Other factors we have considered include “the duration 

of the action, whether the action takes place in the context of effecting an arrest, the 

possibility that the suspect may be armed, and the number of persons with whom the 

police officers must contend at one time.” Id. at 777.

Appellant argues that the police officers’ use of a sweeping kick to force Albert 

Gunter to the ground constituted excessive force. We disagree. The undisputed facts 

indicate Albert Gunter made wild arm motions, spoke angrily, and refused to comply 

with the officers’ efforts to place him in handcuffs to effectuate the arrest.
7

Appellant also contends that administering pepper spray three times constituted 

excessive force. The record indicates that the officers only applied pepper spray in the 

first instance when Albert Gunter resisted arrest, and that they administered it additional 

times because it appeared to have no effect in subduing Albert Gunter as he continued to 

strike and resist the officers.4

Appellant also contends that the police officers applied excessive force in 

subduing and restraining Albert Gunter, and that this application of force led to his death. 

Appellant urges that Albert Gunter was hog-tied and that this restraint was objectively 

unreasonable in light of some cases indicating a danger to arrestees placed in this 

position. See Cruz v. City of Laramie, 239 F.3d 1183, 1188-89 (10th Cir. 2001) 

(collecting cases describing evidence of the danger of the hog-tie restraint). We reject 

that contention for two reasons. First, Appellant adduces no evidence that Albert Gunter

was placed in a hog-tie position, as defined by Cruz. See id. at 1186 (distinguishing hogtying, where the distance between the handcuffs and ankle cuffs is less than twelve 

inches, from hobble tying, where the distance is greater and the danger to arrestees is 

significantly less). Moreover, while the length of time that Albert Gunter was placed face 

down on the ground is disputed, there is no indication in the record that his death was 

caused by positional asphyxia, which is the cause of death associated with hog-tying. Id.

at 1188-89. 

 

4

The record indicates that Albert Gunter’s resistance “escalate[d]” after the pepper 

spray was administered, App. 345, and Larry Gunter told the police that he heard Albert 

Gunter stating to the police officers, “I’m not going, you’re not going to take me alive 

. . . .” App. 417.
8

Second, we cannot say that the use of restraints was objectively unreasonable in 

light of Albert Gunter’s extreme resistance, as detailed in the uncontroverted record. The 

police officers have adduced evidence that Albert Gunter repeatedly kicked the officers 

after his hands were restrained and that they applied the restraints only after he twice 

broke flex cuffs applied to his legs and continued to kick at the officers even after his legs 

were tied together. Cf. Mayard v. Hopwood, 105 F.3d 1226, 1228 (8th Cir. 1997) 

(holding use of hobble tie objectively reasonable when arrestee resisted being placed in a 

police car).

In short, the record demonstrates that Albert Gunter posed an immediate danger to 

the arresting officers, and that he actively and forcefully resisted arrest. The officers 

responded incrementally to Albert Gunter’s violent resistance in their application of 

force, administration of pepper spray, and use of restraints. The District Court correctly 

held that, under these circumstances, the officers’ conduct was objectively reasonable.

B. Wrongful Death

Appellant appeals from the District Court’s grant of the police officer’s motion to 

reconsider its decision denying summary judgment on Appellant’s claim under the New 

Jersey Wrongful Death Act, N.J. Stat. Ann. § 2A:31-1.5

 

5

The Wrongful Death Act provides, in relevant part: 

When the death of a person is caused by a wrongful act, neglect or default, 

such as would, if death had not ensued, have entitled the person injured to 

maintain an action for damages resulting from the injury, the person who 

would have been liable in damages for the injury if death had not ensued 

shall be liable in an action for damages, notwithstanding the death of the 
9

The District Court twice denied the police officers’ motion for summary judgment 

on the wrongful death claim. On reconsideration, however, the District Court found that 

the only wrongful act that Appellant alleged caused Albert Gunter’s death was the

purported use of excessive force, and that Appellant could not establish the “wrongful 

act” element of a wrongful death claim because the District Court found the police did 

not use excessive force, and therefore summary judgment for the police officers was 

warranted.

On appeal, Appellant argues only that we should reverse the District Court’s 

decision on the wrongful death claim because the police officers used excessive force, 

thereby committing a wrongful act. Because we will uphold the District Court’s decision 

that the police officers did not use excessive force, and that is the only ground on which 

Appellant seeks to reverse the District Court’s decision on the wrongful death claim, 

Appellant has not demonstrated a genuine dispute of material fact that precludes the entry 

of summary judgment. We therefore will affirm the decision granting summary 

judgment to the police officers on Appellant’s Wrongful Death Act claim.

C. Deprivation of Medical Care

Appellant also appeals the District Court’s decision granting summary judgment 

on the claim of deprivation of medical care, claiming there are disputed material facts 

 

person injured and although the death was caused under circumstances 

amounting in law to a crime.

N.J. Stat. Ann. § 2A:31-1.
10

concerning whether the police officers failed to promptly provide medical assistance to 

Albert Gunter.

Deprivation of medical care to arrestees violates their Fourteenth Amendment 

right to due process if it constitutes deliberate indifference to medical needs. See City of 

Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983) (holding that the Due Process 

Clause confers arrestees a right to prompt medical treatment); Natale v. Camden Cnty. 

Corr. Facility, 318 F.3d 575, 582 (3d Cir. 2003) (evaluating a Fourteenth Amendment 

claim for inadequate medical care under the deliberate indifference standard); Groman v. 

Twp. of Manalapan, 47 F.3d 628, 636-37 (3d Cir. 1995) (applying the deliberate 

indifference test to an arrestee’s claim). To demonstrate deliberate indifference to 

medical needs, a plaintiff must show “(i) a serious medical need, and (ii) acts or 

omissions by prison officials that indicate deliberate indifference to that need.” Natale, 

318 F.3d at 582. We have held that “[d]eliberate indifference is a ‘subjective standard of 

liability consistent with recklessness as that term is defined in criminal law.’” Id.

(quoting Nicini v. Morra, 212 F.3d 798, 811 (3d Cir. 2000)). Appellant must therefore 

show that the police officers knew of the risk to Albert Gunter and disregarded it. Id.; 

Singletary v. Pa. Dep’t of Corr., 266 F.3d 186, 192 n.2 (3d Cir. 2001).

The record demonstrates that the police officers provided prompt medical care to 

Albert Gunter and that they sought emergency medical assistance both after he sustained 

the cut on his head and after they discovered that he was unresponsive. It is undisputed 

that Larry Gunter called the police at 1:29 a.m., and the first officer arrived just one 

minute later, with other officers arriving over the next ten minutes. The dispatch report 
11

shows officers first called for paramedics at 1:43 a.m. Ten minutes later, the police 

officers called for advanced life support assistance. Just two minutes later, the officers 

attached the defibrillator to Albert Gunter and attempted to revive him.

Appellant’s reliance on Larry Gunter’s deposition testimony does not undermine 

the District Court’s decision. Larry Gunter testified that the officers struggled to control 

Albert Gunter for ten to fifteen minutes, while the garage door was closed and his view 

was obstructed, and that after the officers opened the garage door, they waited an 

additional ten to fifteen minutes before calling for medical assistance. This account is 

inconsistent with the objective evidence recorded by the defibrillator and the dispatch 

service, and no reasonable jury could believe it.

6

 As the Supreme Court has stated, 

“[w]hen opposing parties tell two different stories, one of which is blatantly contradicted 

by the record, so that no reasonable jury could believe it, a court should not adopt that 

version of the facts for purposes of ruling on a motion for summary judgment.” Scott v. 

Harris, 550 U.S. 372, 380 (2007). The District Court therefore correctly declined to rely 

on those statements and properly found Appellant failed to adduce facts showing the 

police officers were deliberately indifferent to Albert Gunter’s medical needs.

 

6

Larry Gunter’s account is also contradicted by the testimony of every other 

witness, including Larry Gunter’s wife, who testified that, as soon as the officers realized 

Albert Gunter was not breathing, “[t]hey got the stuff off his hands real fast” and 

“[f]lipped him over and started CPR immediately.” App. 646.
12

IV.

For the foregoing reasons, we will affirm the decision of the District Court 

granting summary judgment to the police officers.

7

 

7 Because we will affirm the District Court’s decision on summary judgment as to 

all claims, we need not reach the Court’s decision concerning punitive damages.