2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-25-2009

Dennis Patterson v. City of Wildwood

Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2987

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Recommended Citation

"Dennis Patterson v. City of Wildwood" (2009). 2009 Decisions. Paper 198.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

__________

No. 08-2987

__________

DENNIS PATTERSON,

 Appellant

v.

CITY OF WILDWOOD; 

SGT. CHRISTOPHER HOWARD;

PATROLMAN KENNETH PHILLIPS;

PATROLMAN KEVIN FRANCHVILLE;

PATROLMAN DANIEL ROSIELLO

__________

Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil No. 06-cv-04334)

District Judge: Honorable Renee M. Bumb

__________

Submitted Under Third Circuit LAR 34.1(a)

on November 20, 2009

Before: RENDELL, BARRY, and CHAGARES, Circuit Judges.

(Filed : November 25, 2009)

__________

OPINION OF THE COURT

__________
 The District Court had subject matter jurisdiction over the federal claims pursuant to 1

28 U.S.C. §§ 1331 and 1343. We have appellate jurisdiction under 28 U.S.C. § 1291, as

this matter is on appeal from the final order of the District Court.

Patterson is appealing from an order granting summary judgment and dismissing

the case. The standard of review is therefore plenary. Couden v. Duffy, 446 F.3d 483,

491 n. 3 (3d Cir. 2006); Abraham v. Raso, 183 F.3d 279, 287 (3d Cir. 1999). 

2

RENDELL, Circuit Judge.

Dennis Patterson appeals from the District Court’s grant of summary judgment on

the basis of qualified immunity, contending that the District Court erred in determining, in

reliance on language from Scott v. Harris, 550 U.S. 372 (2007), that it could not adopt

Patterson’s version of the facts for purposes of its ruling. We agree with Patterson and

will therefore vacate and remand for further proceedings.1

Patterson instituted a § 1983 civil action against the City of Wildwood and several

individuals, including Sgt. Christopher Howard, alleging violations of his Fourth

Amendment right to be free from unreasonable seizure. His complaint arose out of an

incident that occurred in September 2004 at the Fairview Café in Wildwood, New Jersey,

where, he contends, he was illegally arrested and excessive force was used against him

during the course of an illegal seizure. 

At issue is the District Court’s grant of summary judgment on Patterson’s

excessive force claim against Sgt. Howard. As the District Court noted, the facts

regarding the events of the evening in question, and the alleged use of force, were “highly
3

disputed.” The District Court accurately summarized the facts as contended by each

party:

The parties dispute whether Plaintiff was resisting arrest and

whether he was unconscious while on the ground. Plaintiff

asserts that when Defendant told him he was under arrest and

ordered him to turn around, Plaintiff attempted to comply

with the order, but Defendant “grabbed [him] by the collar

and into the – to the ground [he] went.” (Pl. Dep. 43:5-6). 

Plaintiff further claims that when he was slammed to the

ground, he hit the ground face first and was momentarily

knocked unconscious. Thus, Plaintiff argues, it was

unreasonable for Defendant to punch Plaintiff in the face.

Defendant contests Plaintiff’s version of the facts and claims

that Plaintiff was resisting arrest. Specifically, Defendant

asserts that Plaintiff assumed a fighting stance and had to be

pulled away from a glass window, which caused both Plaintiff

and Defendant to fall to the ground. Defendant further claims

that once on the ground, Plaintiff was not unconscious but,

rather, continued to resist arrest by flailing his arms about. At

that point, Defendant punched Plaintiff in the face one time to

subdue him.

(Dist. Ct. Op., pp. 8-9.)

The District Court noted that in the usual case, on summary judgment, in

determining whether a constitutional violation occurred, the Court must take the facts in

the light most favorable to Patterson and make all reasonable inferences in his favor. The

District Court then noted an exception to this rule: “However, the court need not accept

Plaintiff’s version of the facts to the extent it is contradicted by the evidence in the

record.” (Dist. Ct. Op. p. 9.) The Court then referenced language from Scott v. Harris,

supra, for the proposition that when a “blatant contradiction” renders a plaintiff’s version
4

essentially unbelievable, the court should not apply the usual standard: “[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.” (Dist. Ct. Op. p. 9, quoting

Scott v. Harris, 550 U.S. 372, 380, 127 S. Ct. 1769, 1776 (2007).) 

The District Court then proceeded to point to two aspects of the record that

contradicted the version offered by Patterson, so as to cause the Court not to view the

evidence in a light most favorable to him. One such contradiction was presented by the

video taken of Patterson when he was in the back seat of the police car. In the video,

Patterson stated that he “does not like being punched in the face,” and his manner of

speech suggested that he was intoxicated at the time. From this, the District Court

concluded that Patterson was not unconscious when he was punched in the face, since he

was able to recall the punch while sitting in the police car, and further, that his inability to

remember could alternatively be attributed to intoxication, rather than unconsciousness.

The second source of contradiction was the testimony of the club’s bouncer, who

witnessed the arrest. He testified that Patterson was resisting arrest and was not

cooperative with the officers. 

The District Court concluded that “no reasonable jury could find that Plaintiff was

unconscious while on the ground. Rather, the evidence shows that Plaintiff actively

resisted arrest and Defendant acted reasonably to subdue him. Therefore, no
 See, e.g., Re: Buber v. Township of Old Bridge, 2007 U.S. Dist. LEXIS 93841, *8 2

(D.N.J., Dec. 21, 2007) (noting that a 911 call and radio transmission did not conclusively

demonstrate whether police officers had repeatedly hit the plaintiff and holding that

5

constitutional violation occurred and Defendant is entitled to summary judgment on this

charge.” (Dist. Ct. Op. p. 11.) 

Patterson contends that the District Court improperly applied the limited exception

set forth in Scott v. Harris, and also improperly weighed evidence in a manner not

appropriate at the summary judgment stage. We agree. The limited exception set forth by

the Supreme Court in Scott v. Harris does not apply in the instant fact pattern. Unlike

the videotape relied upon by the Supreme Court in Scott, which depicted the actual

incident, the videotape in this case did not capture the incident and could not therefore

contradict, let alone “blatantly contradict,” the record as to what occurred. While the jury

might conclude that the videotape was inconsistent with, or gave rise to different

inferences regarding, Patterson’s version of events, the videotape in this case does not

portray the actual incident; it cannot, and does not, “blatantly contradict” Patterson’s

version of events as the video did in Scott v. Harris. There, the video of the police chase

contradicted Scott’s version of the key event on which the claim was based. As Patterson

notes, courts have declined to apply the limited exception set forth in Scott v. Harris

where a videotape or other mechanical depiction does not capture the whole incident or

the entire arrest, or where the videotape or mechanical depiction is susceptible to multiple

reasonable interpretations.2
“[t]his is not an instance, as was in Scott, where the entire arrest was recorded by video,

and the video failed to demonstrate that Plaintiff had been punched or kicked as

alleged.”); Mills v. City of Harrisburg, 589 F. Supp. 2d 544, 553 n.5 (M.D. Pa. 2008)

(declining to apply Scott v. Harris because the relevant audio recording was “susceptible

to multiple reasonable interpretations” unlike the videotape in Scott). 

6

We agree, further, that crediting the testimony of the club’s bouncer, and

concluding that it contradicts Patterson’s version in such a way as to alter the standard

and preclude Patterson from proceeding to trial, was improper. The bouncer’s testimony,

together with all other testimony, should be heard by a jury, and its credibility judged

accordingly. Accepting the bouncer’s version over Patterson’s at the summary judgment

stage was error. 

In light of the foregoing, the District Court’s grant of summary judgment in favor

of Sgt. Howard based on qualified immunity in light of the absence of a constitutional

violation will be VACATED and the matter REMANDED for further proceedings in the

District Court.