1995 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-16-1995

Gorman vs. Twnshp Manalapan

Precedential or Non-Precedential:

Docket 94-5200

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Recommended Citation

"Gorman vs. Twnshp Manalapan" (1995). 1995 Decisions. Paper 57.

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 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 ___________ 

 No. 94-5200 

 ___________ 

 ALPHONSE W. GROMAN; JANE M. GROMAN, 

 Appellants 

v. 

TOWNSHIP OF MANALAPAN; 

CHIEF JIMMIE R. POTTS; HELEN K. KIRKLAND; 

THOMAS WHITE; MATTHEW TREMBOW; PETER VANDERWEIL; 

JOHN DOE, RICHARD ROE, Police Officers of the 

Township of Manalapan, the identity and number 

of whom is presently unknown to the plaintiffs; 

ENGLISHTOWN-MANALAPAN FIRST AID SQUAD; 

EDWARD T. MORIARTY; TRACIE ZACHARY; 

JANE A. DOE, JOHN A. DOE, JOHN B. DOE, JOHN C. DOE, 

JANE B. DOE, and JANE C. DOE, fictitious defendants 

(representing unlimited fictitious defendants); 

ABC CO., and XYZ COMPANY, a fictitious entity 

 (representing unlimited fictitious defendants) 

 _______________________________________________ 

 On Appeal from the United States District Court 

 for the District of New Jersey 

 (D.C. Civil Action No. 92-cv-00708) 

 ___________________ 

 Argued September 27, 1994 

 Before: SCIRICA, NYGAARD and McKEE, Circuit Judges

 (Filed February 16, 1995) 

CHARLES F. WETHERELL, ESQUIRE (Argued) 

Meinders & Wetherell 

555 Madison Avenue 

P.O. Box 900 

Lakewood, New Jersey 08701 
 Attorney for Appellants 
DAVID F. LUVARA, ESQUIRE (Argued) 

Slimm & Goldberg 

216 Haddon Avenue 

P.O. Box 2222 

Westmont, New Jersey 08108 

 Attorney for Appellees 

 Township of Manalapan, Chief Jimmie R. Potts, 

 Helen K. Kirkland, Thomas White, Matthew Trembow, 

 Peter Vanderweil, Thomas Wallace, Evelyn Schade, 

 Mary Caccamo, Officer Ascough, Officer Visconi, 

 Officer Bruno, Officer McCormick, Officer Rumolo 

 and Officer Cochran 

MARK T. STOPA, ESQUIRE 

Lushan, McCarthy, Goonan & Stopa 

284 Harvard Street 

P.O. Box 1604 

Brookline, Massachusetts 02146 

 Attorney for Appellee 

 Chief Jimmie R. Potts 

STEVEN B. PORTNOFF, ESQUIRE 

Law Office of Steven B. Portnoff 

26 Plaza Nine 

Manalapan, New Jersey 07726 

 Attorney for Appellee 

 Thomas White 

GEORGE WILGUS, III, ESQUIRE (Argued) 

Lenox, Socey, Wilgus, Formidoni & Casey 

3131 Princeton Pike 

Trenton, New Jersey 08648 

 Attorney for Appellees 

 Englishtown-Manalapan First Aid Squad, 

 Edward T. Moriarty, Tracie Zachary, 

 James Paulser and Joseph Bokenko 
 __________________ 

 OPINION OF THE COURT 

 __________________ 

SCIRICA, Circuit Judge. 

 Plaintiffs Alphonse W. Groman and Jane M. Groman appeal 

the district court's grant of summary judgment on their civil 

rights claims to defendants Township of Manalapan, the 

Englishtown-Manalapan First Aid Squad, members of the first aid 

squad and Manalapan Police Department, and several unknown 

defendants. 

 The dispute arises out of the arrest of Mr. Groman at 

his residence on February 17, 1990. Plaintiffs brought this 

civil rights action under 42 U.S.C. § 1983 (1988), alleging 

certain constitutional violations based on: use of excessive 

force, false arrest, false imprisonment, failure to provide 

necessary medical treatment, unlawful search and seizure, 

conspiracy to violate constitutional rights, and denial of right 

to counsel.1

 The district court granted summary judgment to all 

defendants on all constitutional claims and declined to exercise 

supplemental jurisdiction on the state law claims. We will 

affirm on all counts except the claim of excessive force against 

police officers Helen K. Kirkland, Matthew Trembow, and Peter 

 

1. Plaintiffs also alleged the following state law claims: 

trespassing, intentional and negligent infliction of emotional 

distress, assault, battery, loss of consortium, invasion of 

privacy, injury to good name and reputation, slander, libel, 

negligent hiring, and failure properly to train and supervise. 
Vanderweil, and the claims of false arrest and false imprisonment 

against police officer Kirkland. 

I. 

 On February 17, 1990, Alphonse W. Groman and his wife, 

Jane M. Groman, were in their home in Manalapan, New Jersey, when 

Mr. Groman, age seventy-five, allegedly suffered a minor stroke. 

Mrs. Groman telephoned her neighbor, James W. Thomson, who came 

over with his son, James E. Thomson, and then called the police 

for first aid. Officer Helen K. Kirkland of the Township of 

Manalapan Police Department was the first to respond. 

 When Kirkland arrived at the Groman residence, James W. 

Thomson and Mrs. Groman were attempting to place Mr. Groman into 

a chair. Kirkland entered the room and proceeded toward Mr. 

Groman, who resisted her contact and demanded to go outside. Mr. 

Groman admitted to consuming one alcoholic drink sometime 

earlier. 

 Exactly what happened next is hotly contested. 

Plaintiffs contend Mr. Groman was standing still, arms to his 

side, when Kirkland struck him in the mouth. This blow, 

plaintiffs maintain, was an unprovoked assault against a small 

elderly man, who, while uncooperative, did not deserve to be 

struck.2 Defendants assert Kirkland put a hand on Groman's 

 

2. Mrs. Groman's testimony at deposition included the following 

exchange: 

 Q: And what happened after you got the chair 

out? 
shoulder in an effort to get him to sit down. Immediately 

thereafter Groman punched Kirkland in the face, cutting and 

bruising her cheek, and began using abusive language. As he 

prepared to hit her again, Kirkland responded out of fear for her 

own safety and hit Groman. She observed that Groman was 

combative and that he smelled of alcohol.3 According to 

(..continued) 

 A: I was watching [Mr. Groman] all this time. 

As I say, I backed away, and Officer Kirkland 

looked at [Mr. Groman] and said to him, Do 

you know you hit an officer? 

 Q: Okay. 

 A: This is when I came forward with--I guess 

my mouth must have been opened ready to say 

he didn't touch you, because [Mr. Groman] was 

just standing there, his head down a bit, his 

arms to his side, he didn't move an inch, and 

there was no way in hell that he could have 

hit her. 

Jane Groman Dep., Plaintiffs' App. at 375. 

3. Kirkland testified at Groman's state trial to the following: 

 Q: What happened after [Mr. Groman] hit you? 

 A: Well, it seemed that we were going to--he 

was going to hit me again. I hit the subject 

back and then I grabbed both his hands with 

mine and locked them, and he got up, and he 

was--it was like he was going to fight me 

again. So I held his hands just like--almost 

like a kid, up in the air, and he was trying 

to bend my hands back . . . . 

Kirkland Test., Plaintiffs' App. at 120. Kirkland also 

testified: 

 Q: Did Mr. Groman do anything beyond his 

striking you that you testified to, ma'am, to 

put you in such fear of your safety? 

 . . . . 
plaintiffs, Groman was a stroke victim, disoriented and a bit 

aggressive, who was assaulted by a police officer dispatched to 

assist him. Defendants portray Groman as a violent drunk and 

claim Kirkland's response was the appropriate reaction to a 

dangerous situation. 

 Kirkland called the Manalapan Police Department for 

backup. Officer Matthew Trembow soon arrived to aid Kirkland and 

the local first aid squad arrived shortly thereafter, followed by 

Lieutenant Peter Vanderweil. Members of the first aid squad 

attempted to provide medical assistance to Groman but he rebuffed 

them. Groman continued to be belligerent and to curse at the 

police and first aid squad. The first aid squad members left 

without treating him. 

 The police officers proceeded to arrest Groman, but he 

was not cooperative. After a brief struggle which plaintiffs 

attribute to Groman's limited mobility in his right arm and 

defendants to Groman's attempt to resist arrest, the officers 

placed Groman in handcuffs. As the police took Groman out to the 

police car, he allegedly sustained an injury to his face and lost 

his dentures. 

 Upon arrival at the police station, the officers 

removed Groman from the car. Here again the parties vigorously 

dispute what occurred. Plaintiffs maintain, based on Groman's 

(..continued) 

 A: At this time he had started to stand up, 

and he had had his fist cocked back again. 

Kirkland Dep., Plaintiffs' App. at 752. 
hazy recollection, that the police officers dragged Groman out of 

the car feet first causing his head to hit the pavement. After 

picking him up, the officers stomped on his toe, allowed him to 

fall again, and then one of the officers jumped on him. 

Defendant police officers say that as they moved Groman from the 

police car to the station he fell, knocking his head against the 

ground, and that Kirkland lost her balance trying to hold Groman 

up and fell with him. Once inside the police station, plaintiffs 

contend the officers left Groman handcuffed for some time. The 

first aid squad was called again, but Groman again refused 

treatment. Groman's daughter asserts his pants were doused in 

alcohol when she picked him up from the police station. 

Plaintiffs maintain that during the course of these events Groman 

sustained black eyes and minor cuts and bruises to the face and 

hands. The police charged Groman with aggravated assault, 

disorderly conduct, and resisting arrest. He was acquitted on 

all counts after a bench trial in the Manalapan Township 

Municipal Court. 

II. 

 We exercise plenary review over the grant of a motion 

for summary judgment. Oritani Sav. & Loan Ass'n v. Fidelity & 

Deposit Co., 989 F.2d 635, 637 (3d Cir. 1993). We apply the same 

test required of the district court, viewing the facts from the 

evidence submitted in the light most favorable to the non-moving 

party, and taking the non-movant's allegations as true. Goodman 

v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976), cert.
denied, 429 U.S. 1038 (1977). We have jurisdiction over this 

appeal under 28 U.S.C. § 1291 (1988). 

 Summary judgment is appropriate when "the pleadings, 

depositions, answers to interrogatories, and admissions on file, 

together with the affidavits, if any, show that there is no 

genuine issue as to any material fact and that the moving party 

is entitled to a judgment as a matter of law." Fed. R. Civ. P. 

56(c). After one party has filed a properly supported summary 

judgment motion, the party opposing it must present sufficient 

evidence for a reasonable jury to find in its favor. Anderson v. 

Liberty Lobby, Inc., 477 U.S. 242, 250-52 (1986). The party 

contesting the motion must demonstrate a dispute over facts that 

might affect the outcome of the suit. Id. at 248. Plaintiffs 

contend they have presented sufficient evidence to survive 

summary judgment. 
III. 

 Section 1983 of 42 U.S.C.4 does not create substantive 

rights, but provides a remedy for the violation of rights created 

by federal law. Oklahoma City v. Tuttle, 471 U.S. 808, 816 

(1985). A prima facie case under § 1983 requires a plaintiff to 

demonstrate: (1) a person deprived him of a federal right; and 

(2) the person who deprived him of that right acted under color 

of state or territorial law. Gomez v. Toledo, 446 U.S. 635, 640 

(1980). 

A. Claims Against the Police

 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. Graham v. 

Connor, 490 U.S. 386, 394-95 (1989). A cause of action exists 

under § 1983 when a law enforcement officer uses force so 

excessive that it violates the Fourth and Fourteenth Amendments 

to the United States Constitution. Brown v. Borough of 

 

4. The text of 42 U.S.C. § 1983 provides, in part: 

 § 1983. Civil action for deprivation of 

rights 

 Every person who, under color of any 

statute, ordinance, regulation, custom, or 

usage, of any State . . . 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. . . . 
Chambersburg, 903 F.2d 274, 277 (3d Cir. 1990). Police officers 

are privileged to commit a battery pursuant to a lawful arrest, 

but the privilege is negated by the use of excessive force. 

Edwards v. City of Phila., 860 F.2d 568, 572 (3d Cir. 1988). 

 When a police officer uses force to effectuate an 

arrest that force must be reasonable. Graham, 490 U.S. at 396. 

The reasonableness of the officer's use 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." Id. The 

reasonableness inquiry is objective, but should give appropriate 

scope to the circumstances of the police action, which are often 

"tense, uncertain, and rapidly evolving." Id. at 397. 

 In this case, summary judgment is appropriate if, as a 

matter of law, the evidence would not support a reasonable jury 

finding that the police officers' actions were objectively 

unreasonable. Without commenting on the weight of the evidence, 

we believe it could support a finding that Kirkland hit Groman 

when Groman was suffering from a minor stroke, and that Groman's 

obstreperous behavior did not warrant Kirkland's reaction. We 

conclude there are material issues of disputed fact, and that a 

jury could decide that Kirkland and the other officers acted 

unreasonably and used excessive force. Further, a jury could 

find the officers used excessive force in transporting Groman to 

the police station. 
 Should a jury decide Groman did not hit Kirkland, then 

he could have committed only the crimes of disorderly conduct and 

resisting arrest. In evaluating the Graham factors under the 

facts of this case, we conclude that neither offense is 

particularly severe, and that a jury could determine Groman did 

not present a serious threat to Kirkland. Cf. Frohmader v. 

Wayne, 958 F.2d 1024, 1025-26 (10th Cir. 1992) (holding summary 

judgment on excessive force claim inappropriate when plaintiff's 

sworn account differed from police officer's regarding events 

after plaintiff's arrest); Wing v. Britton, 748 F.2d 494, 495-96 

(8th Cir. 1984) (jury decided excessive force claim when disputed 

fact was whether plaintiff punched police officer to provoke 

officer's response). 

 In sum, we hold only that there are material issues of 

disputed fact and credibility determinations that cannot be 

decided on a motion for summary judgment.5 We will reverse the 

district court's grant of summary judgment on plaintiffs' 

excessive force claim against officers Helen K. Kirkland, Matthew 

Trembow, and Peter Vanderweil.6 

 

5. This case is distinct from Brown v. Borough of Chambersburg, 

903 F.2d 274, 278 (3d Cir. 1990), in which we affirmed the 

district court's holding that plaintiff's claim was frivolous 

because it was based on plaintiff's bare assertion of police 

excessive force, was completely uncorroborated by other evidence, 

and plaintiff's recollection was dimmed by alcohol. Here, there 

is some corroboration from Mrs. Groman on the initial altercation 

and from others on the injuries sustained. 

6. Of course, the fact that we reverse as to officers Trembow 

and Vanderweil does not put them in the same posture as Kirkland 

on remand. Plaintiffs do not allege Trembow and Vanderweil were 

involved in the initial scrap where Kirkland hit Groman in the 

house. Thus, plaintiffs will have to prove that Trembow and 
 Our holding on the excessive force claim does not 

automatically compel reversal of the grant of summary judgment on 

plaintiffs' other claims against the police. To prevail on their 

false arrest claim, plaintiffs would have to demonstrate at trial 

that the police lacked probable cause to arrest Groman. "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." Dowling 

v. City of Phila., 855 F.2d 136, 141 (3d Cir. 1988). Groman was 

charged with aggravated assault,7 disorderly conduct,8 and 

(..continued) 

Vanderweil violated Groman's Fourth Amendment rights by using 

excessive force during his transport to the police station. 

7. The New Jersey statute provides in part: 

 2C:12-1. Assault 

 a. Simple Assault. A person is guilty of 

assault if he: 

 (1) Attempts to cause or purposely, knowingly 

or recklessly causes bodily injury to 

another; 

 . . . . 

 b. Aggravated Assault. A person is guilty of 

aggravated assault if he: 

 . . . . 

 (5) Commits a simple assault as defined in 

subsection a. (1) . . . of this section upon 

 (a) Any law enforcement officer acting 

in the performance of his duties while 

in uniform or exhibiting evidence of his 

authority . . . . 
resisting arrest.9 Generally, the existence of probable cause is 

(..continued) 

N.J. Stat. Ann. § 2C:12-1(a), (b)(5)(a) (West 1982 & Supp. 1994). 

8. The New Jersey statute provides: 

 2C:33-2. Disorderly conduct 

 a. Improper behavior. A person is 

guilty of a petty disorderly persons offense, 

if with purpose to cause public 

inconvenience, annoyance or alarm, or 

recklessly creating a risk thereof he 

 (1) Engages in fighting or threatening, 

or in violent or tumultuous behavior; or 

 (2) Creates a hazardous or physically 

dangerous condition by any act which serves 

no legitimate purpose of the actor. 

 b. Offensive language. A person is 

guilty of a petty disorderly persons offense 

if, in a public place, and with purpose to 

offend the sensibilities of a hearer or in 

reckless disregard of the probability of so 

doing, he addresses unreasonably loud and 

offensively coarse or abusive language, given 

the circumstances of the person present and 

the setting of the utterance, to any person 

present. 

 "Public" means affecting or likely to 

affect persons in a place to which the public 

or a substantial group has access; among the 

places included are highways, transport 

facilities, schools, prisons, apartment 

houses, places of business or amusement, or 

any neighborhood. 

Id. § 2C:33-2. 

9. The New Jersey statute provides in part: 

 2C:29-2. Resisting arrest; eluding officer

 a. A person is guilty of a disorderly 

persons offense if he purposely prevents a 
a factual issue. Deary v. Three Un-Named Police Officers, 746 

F.2d 185, 191 (3d Cir. 1984). Summary judgment can be granted in 

an appropriate case on probable cause, id. at 192, but it is not 

proper here. Because we find that a reasonable jury could find 

that the police did not have probable cause to arrest Groman, we 

reverse on this count as to police officer Helen K. Kirkland. 

 In order for the police to have properly arrested 

Groman, they must have had probable cause on the aggravated 

assault or disorderly conduct charges. This is because the 

resisting arrest charge could not have provided probable cause 

for the arrest ab initio. Additionally, should a jury decide 

that Groman did not hit Kirkland, it could determine that 

Kirkland lacked probable cause to arrest him on the aggravated 

assault charge.10 We are then left to consider the disorderly 

conduct charge. 

 A disorderly conduct charge under § 2C:33-2 requires 

that the behavior have been in "public." N.J. Stat. Ann. § 

2C:33-2 (West 1982 & Supp. 1994). In seeking to determine 

whether that element could be met here, we turn to New Jersey 

(..continued) 

law enforcement officer from effecting a 

lawful arrest . . . . 

Id. § 2C:29-2. 

10. This reasoning does not apply to officers Trembow and 

Vanderweil. Summary judgment is appropriate as to them because 

the uncontested evidence demonstrates that Kirkland told each of 

them that Groman had punched her. This is sufficient for them to 

have believed probable cause existed, and also insulates them 

from plaintiffs' claim of false imprisonment, Baker v. McCollan, 

443 U.S. 137, 143-44 (1979). 
case law. In State v. Finate, 80 A.2d 341, 341 (N.J. Super. Ct. 

Law Div. 1951), the police charged the first defendant with 

uttering "certain loud and offensive or indecent language from 

the [defendant's] yard," and the second defendant (his wife) with 

doing the same from her porch. They were charged with violating 

an earlier version of the statute under which Groman was 

arrested.11 The court held the statute "indicates that a person 

cannot be charged with an offense thereunder while on his own 

property" and reversed the convictions. Id. at 342. 

 The opinion in Finate, in conjunction with the current 

statutory text,12 leads us to conclude that Groman could not have 

committed the offense of disorderly conduct in his own home.13 

 

11. The statute provided: 

 Loitering in public places or on private 

property; offensive language therein or 

thereon.

 Any person who, being under the influence of 

intoxicating liquor, shall loiter in any 

public or quasi-public place, or in or upon 

any private property not his own within this 

state, or who, not being under the influence 

of intoxicating liquor, shall there indulge 

in and utter loud and offensive or indecent 

language, shall be adjudged a disorderly 

person. 

N.J. Rev. Stat. § 2:202-8 (1937). 

12. See supra note 8. 

13. Although New Jersey case law is sparse, case law from other 

jurisdictions supports this conclusion. In Commonwealth v. 

Weiss, 490 A.2d 853 (Pa. Super. Ct. 1985), the court dealt with a 

statute very similar to this one. The statute provided: 

 Disorderly conduct 
The police could not, therefore, have had probable cause to 

arrest him on that charge. Since it is a jury question whether 

(..continued) 

 (a) Offense defined.--A person is guilty 

of disorderly conduct if, with intent to 

cause public inconvenience, annoyance or 

alarm, or recklessly creating a risk thereof, 

he: 

 . . . . 

 (3) uses obscene language, or makes an 

obscene gesture; 

 . . . . 

 (c) Definition.--As used in this section 

the word "public" means affecting or likely 

to affect persons in a place to which the 

public or a substantial group has access; 

among the places included are highways, 

transport facilities, schools, prisons, 

apartment houses, places of business or 

amusement, any neighborhood, or any premises 

which are open to the public. 

(quoting 18 Pa. Cons. Stat. § 5503(a)(3)). In Weiss, the 

defendant had screamed epithets at the police officer who broke 

down her door to arrest her husband. Id. at 854. The court 

reversed defendant's conviction because the requirement that the 

conduct be in "public" was not satisfied. Id. at 855-57. 

 Likewise, in People v. Jerome, 168 N.Y.S.2d 452 (County 

Ct. 1957), the court reversed defendant's conviction for cursing 

at a police officer from inside a private residence, holding that 

the private residence could not be a "public place" for purposes 

of the New York disorderly conduct statute. Id. at 455. In 

Whittington v. State, 634 N.E.2d 526 (Ind. Ct. App. 1994), the 

defendant yelled at police officers who had gone to his house 

because of a report of a domestic disturbance there. The 

defendant had apparently punched his sister. Id. at 526. The 

officers charged him with violating the disorderly conduct 

statute because of his verbal attacks on the officers, and he was 

convicted. The court, in reversing his conviction, stressed that 

"[t]he forum employed by [defendant] was his own home. Thus, the 

potential for invading the right of others to peace and quietude 

was diminished." Id. at 527. Even though the statute did not 

have the "public" element that the New Jersey law contains, the 

court reversed his conviction on the basis that his behavior was 

not sufficiently public. Id.
the police had probable cause to arrest Groman on the aggravated 

assault charge, and since the other two charges could not have 

provided probable cause for Groman's arrest, we will reverse the 

district court's grant of summary judgment on the false arrest 

claim as to police officer Kirkland. 

 A false imprisonment claim under 42 U.S.C. § 1983 is 

based on the Fourteenth Amendment protection against deprivations 

of liberty without due process of law. Baker v. McCollan, 443 

U.S. 137, 142 (1979). The Court in Baker made it clear an arrest 

based on probable cause could not become the source of a claim 

for false imprisonment. Id. at 143-44. On the other hand, where 

the police lack probable cause to make an arrest, the arrestee 

has a claim under § 1983 for false imprisonment based on a 

detention pursuant to that arrest. Thomas v. Kippermann, 846 

F.2d 1009, 1011 (5th Cir. 1988). A false imprisonment claim 

under § 1983 which is based on an arrest made without probable 

cause is grounded in the Fourth Amendment's guarantee against 

unreasonable seizures. Barna v. City of Perth Amboy, 42 F.3d 

809, 820 (3d Cir. 1994); Guenther v. Holmgreen, 738 F.2d 879, 883 

(7th Cir. 1984), cert. denied, 469 U.S. 1212 (1985); Weber v. 

Village of Hanover Park, 768 F. Supp. 630, 634-36 (N.D. Ill. 

1991). If the jury found in plaintiffs' favor on the false 

arrest claim, it could also find that Groman suffered a violation 

of his constitutional rights by virtue of his detention pursuant 

to that arrest. See Pritchard v. Perry, 508 F.2d 423, 425 (4th 

Cir. 1975) (holding "[t]hat an infringement of personal liberty 

such as follows from an unconstitutional arrest has resulted in 
but a short period of restraint . . . manifestly cannot . . . 

abort an aggrieved plaintiff's right of action under Section 

1983."). We will reverse the grant of summary judgment on the 

false imprisonment claim as to police officer Kirkland. 

 Plaintiffs also assert a claim under § 1983 based upon 

a failure to provide necessary medical treatment. Failure to 

provide medical care to a person in custody can rise to the level 

of a constitutional violation under § 1983 only if that failure 

rises to the level of deliberate indifference to that person's 

serious medical needs. Walmsley v. City of Phila., 872 F.2d 546, 

551-52 (3d Cir.), cert. denied, 493 U.S. 955 (1989) (citing 

Estelle v. Gamble, 429 U.S. 97 (1976)). The record clearly 

establishes that the police offered Groman medical assistance 

which he consistently and obstinately rejected. Defendants were 

not deliberately indifferent to Groman's medical needs. 

 Plaintiffs' three other claims against the police under 

§ 1983--unlawful search and seizure, conspiracy, and denial of 

right to counsel--may be disposed of briefly. While plaintiffs 

raised the first two claims in their complaint, the district 

court properly observed that they have provided no factual basis 

upon which a reasonable jury could find in their favor. Indeed, 

plaintiffs present these claims in the form of conclusory 

allegations, and a close review of the record reveals no factual 

basis upon which they could be sustained. Accordingly, we will 

affirm the district court on these claims. Finally, plaintiffs 

have not appealed the grant of summary judgment on the claim of a 

denial of the right to counsel. 
B. Claim Against the Township of Manalapan 

 Plaintiffs urge us to sustain their cause of action 

against the Township of Manalapan under § 1983 for negligent 

supervision. Plaintiffs recognize the Supreme Court in Monell v. 

Department of Social Services, 436 U.S. 658, 694-95 (1978), held 

a plaintiff must prove the existence of a policy or custom that 

has resulted in a constitutional violation in order to make a 

municipality liable under § 1983. A municipality cannot be held 

liable under § 1983 on a respondeat superior theory. Id. at 691. 

The Court has also stated that liability for failure to train 

subordinate officers will lie only where a constitutional 

violation results from "deliberate indifference to the 

constitutional rights of [the municipality's] inhabitants." City 

of Canton, Ohio v. Harris, 489 U.S. 378, 392 (1989). This 

deliberate indifference standard applies to plaintiffs' 

allegations of negligent supervision and failure to investigate. 

Cf. San Filippo v. Bongiovanni, 30 F.3d 424, 445-46 (3d Cir. 

1994) (holding deliberate indifference standard applies to 

failure to investigate dismissal of an employee that may have 

been in violation of that employee's First Amendment rights), 

cert. denied, 115 S. Ct. 735 (1995). Further, in Oklahoma City 

v. Tuttle, 471 U.S. 808, 823-24 (1985), the Court held that "a 

single incident of unconstitutional activity is not sufficient to 

impose liability under Monell, unless proof of the incident 

includes proof that it was caused by an existing, 

unconstitutional municipal policy, which policy can be attributed 

to a municipal policymaker." See also Colburn v. Upper Darby 
Township, 838 F.2d 663, 672 (3d Cir. 1988), cert. denied, 489 

U.S. 1065 (1989) (holding allegations of three similar incidents 

enough to sustain a claim where a single incident presumably 

would not be). 

 It is clear that plaintiffs' claim against the 

municipality is unsubstantiated. Plaintiffs assert two bases for 

their claim of liability based on municipal policy. First, they 

make vague assertions about the police department's failure to 

investigate other wrongdoings, and second, they point to the 

incident in this case. Plaintiffs' allegations about the 

Township's failure to investigate have virtually no evidentiary 

support in the record, and this case standing alone does not 

provide sufficient proof of a policy or custom to satisfy the 

dictates of § 1983. Tuttle, 471 U.S. at 823-24. The record will 

not support a reasonable jury finding of a municipal policy or 

custom of "negligent supervision" which rises to the level of 

deliberate indifference required for § 1983 liability. 

C. Claims Against the Englishtown-Manalapan First Aid Squad

 and its Members

 We turn now to plaintiffs' claims against defendants 

Englishtown-Manalapan First Aid Squad and squad members Edward T. 

Moriarty, Tracie Zachary, James Paulser, and Joseph Bokenko14 for 

 

14. Plaintiffs also named paramedics from the Centra State 

Medical Center as defendants in their second amended complaint. 

Second Am. Compl. ¶ 1. But the evidence fails to show that the 

Centra State paramedics had anything to do with the allegations 

in this case. Further, as plaintiffs have failed to address the 

grant of summary judgment to these defendants on appeal, their 

claims are abandoned. Travitz v. Northeast Dept. ILGWU Health & 

Welfare Fund, 13 F.3d 704, 711 (3d Cir.), cert. denied, 114 S. 

Ct. 2165 (1994). See also Simmons v. City of Phila., 947 F.2d 
conspiracy to violate constitutional rights and for failure to 

provide necessary medical treatment. The first aid squad's 

involvement in the alleged conduct forming the basis of these 

claims was minimal. 

 The first aid squad attempted to treat Groman at his 

house and later at the police station. Both times the police 

caused the squad to be dispatched. It is uncontroverted that 

Groman adamantly refused the squad members' medical attention, 

although at the police station one squad member was able to take 

Groman's blood pressure. Groman repeatedly and insistently 

called the squad members incompetent and rejected their medical 

attention at the police station even after they informed him he 

could go to the hospital even though he had been arrested. 

 As we have noted, a suit under § 1983 requires the 

wrongdoers to have violated federal rights of the plaintiff, and 

that they did so while acting under color of state law. 42 

U.S.C. § 1983. As the "under color of state law" requirement is 

part of the prima facie case for § 1983, the plaintiff bears the 

burden of proof on that issue. West v. Atkins, 487 U.S. 42, 48 

(1988). The color of state law element is a threshold issue; 

there is no liability under § 1983 for those not acting under 

color of law. Versarge v. Township of Clinton, N.J., 984 F.2d 

1359, 1363 (3d Cir. 1993). 

(..continued) 

1042, 1065-66 (3d Cir. 1991) (observing a mere passing reference 

is insufficient to bring an issue before the court on appeal), 

cert. denied, 112 S. Ct. 1671 (1992). 
 Where the actors are not state or municipal officials, 

but are private individuals or associations, we still must 

address whether their activity can nevertheless be deemed to be 

under color of law. The inquiry is fact-specific. Lugar v. 

Edmondson Oil Co., 457 U.S. 922, 939 (1982); Krynicky v. 

University of Pittsburgh, 742 F.2d 94, 97-98 (3d Cir. 1984), 

cert. denied, 471 U.S. 1015 (1985). The first aid squad's 

relationship to the Township therefore is crucial to our analysis 

under § 1983. The first aid squad members here were not employed 

by the Township. They were volunteers, and the squad itself was 

a private organization. The first aid squad received at least 

$25,000 annually from the Township, but it is not clear how much 

of the squad's total budget this amount comprised, nor what, if 

any, oversight the Township exercised over the squad's 

operations. Defendants' unrebutted assertion is that the first 

aid squad received no health benefits or insurance coverage from 

either Manalapan or Englishtown and that the squad was not under 

the formal direction or control of either municipality. 
 The color of state law15 analysis can be difficult, but 

is grounded in a basic and clear requirement, "that the defendant 

in a § 1983 action have exercised power 'possessed by virtue of 

state law and made possible only because the wrongdoer is clothed 

with the authority of state law.'" West, 487 U.S. at 49 (quoting 

United States v. Classic, 313 U.S. 299, 326 (1941)). A private 

action is not converted into one under color of state law merely 

by some tenuous connection to state action. The issue is not 

whether the state was involved in some way in the relevant 

events, but whether the action taken can be fairly attributed to 

the state itself. Jackson v. Metropolitan Edison Co., 419 U.S. 

345, 351 (1974). As the Supreme Court has stated: "we ask 

whether the State provided a mantle of authority that enhanced 

the power of the harm-causing individual actor." NCAA v. 

Tarkanian, 488 U.S. 179, 192 (1988). 

 Supreme Court jurisprudence outlines several approaches 

or discrete tests for detecting the presence of action under 

color of state law.16 The tests have included the exclusive 

 

15. The "under color of state law" inquiry under 42 U.S.C. § 

1983 and the "state action" requirement under the Fourteenth 

Amendment to the United States Constitution are identical in most 

contexts. Robison v. Canterbury Village, Inc., 848 F.2d 424, 427 

n.3 (3d Cir. 1988). Conduct satisfying the state action 

requirement under the Fourteenth Amendment will satisfy the § 

1983 requirement as well, but the reverse is not necessarily 

true. Lugar v. Edmondson Oil Co., 457 U.S. 922, 935 n.18 (1982). 

For convenience we will use the terms interchangeably. 

16. We note initially that, as one commentator has observed: 

 Imposing categories and labels on the 

Court's different approaches to state action 

issues is somewhat arbitrary and potentially 
government function approach, see Flagg Bros., Inc. v. Brooks, 

436 U.S. 149, 157-58 (1978), the joint participation or symbiotic 

relationship approach, see Rendell-Baker v. Kohn, 457 U.S. 830, 

842 (1982); Blum v. Yaretsky, 457 U.S. 991, 1010-11 (1982), and 

the nexus approach, see Jackson, 419 U.S. at 351.17

(..continued) 

misleading. The Court seldom describes its 

decisions as creating a structure of discrete 

state action theories. Rather, the Court's 

decisions follow the more traditional 

judicial style of deciding each case based on 

the facts of the case, guided by similarly 

fact-specific decisions of the past. In 

addition, the Court uses different phrases to 

refer to the same or similar theories. . . . 

Nonetheless, the Court's state action 

decisions do create some clearly 

distinguishable approaches to the state 

action issue. 

Henry C. Strickland, The State Action Doctrine and the Rehnquist

Court, 18 Hastings Const. L.Q. 587, 596-97 (1991) (citations 

omitted). We also observe that lower courts have routinely 

treated the state action inquiry as including several discrete 

tests. See, e.g., McKeesport Hosp. v. Accreditation Council, 24 

F.3d 519, 524 (3d Cir. 1994); Conner v. Donnelly, 42 F.3d 220, 

223-24 (4th Cir. 1994); Sherman v. Consolidated Sch. Dist. 21, 8 

F.3d 1160, 1168 (7th Cir. 1993), cert. denied, 114 S. Ct. 2109 

(1994); Lopez v. Department of Health Serv., 939 F.2d 881, 883 

(9th Cir. 1991) (per curiam); Yeager v. City of McGregor, 980 

F.2d 337, 339 (5th Cir.), cert. denied, 114 S. Ct. 79 (1993). 

17. Although the Supreme Court's recent pronouncement on the 

state action inquiry in Edmonson v. Leesville Concrete Co., 500 

U.S. 614 (1991), does not explicitly restate these approaches, it 

does refer approvingly to past state action jurisprudence and 

cites favorably to its own precedent, including Lugar in which 

the Court had observed: 

 [That] which would convert [a] private party 

into a state actor might vary with the 

circumstances of the case. . . . [T]he Court 

has articulated a number of different factors 

or tests in different contexts . . . . 

Whether these different tests are actually 

different in operation or simply different 
(..continued) 

ways of characterizing the necessarily factbound inquiry that confronts the Court in 

such a situation need not be resolved here. 

Lugar, 457 U.S. at 939. After citing favorably to Lugar, the 

Edmonson Court noted: 

 [O]ur cases disclose certain principles of 

general application. Our precedents 

establish that, in determining whether a 

particular action or course of conduct is 

governmental in character, it is relevant to 

examine the following: the extent to which 

the actor relies on governmental assistance 

and benefits; whether the actor is performing 

a traditional governmental function; and 

whether the injury caused is aggravated in a 

unique way by the incidents of governmental 

authority. Based on our application of these 

three principles to the circumstances here, 

we hold that the exercise of peremptory 

challenges by the defendant in the District 

Court was pursuant to a course of state 

action. 

Edmonson, 500 U.S. at 621-22 (citations omitted). We and other 

circuits have not read this passage as necessarily mandating one 

specific method of performing the state action inquiry. See

McKeesport Hosp., 24 F.3d at 524; Connor, 42 F.3d at 223-24; 

Sherman, 8 F.3d at 1168; Lopez, 939 F.2d at 883; Yeager, 980 F.2d 

at 339. The opinion in Edmonson appears neither to restrict 

courts to one specific approach nor to foreclose them from 

employing various approaches as warranted by the particular 

circumstances of the cases before them. The state action inquiry 

is "necessarily fact-bound," Lugar, 457 U.S. at 939, and the 

approach a court uses to conduct that inquiry should likewise be 

tailored to the facts of the case before it. 

 But any approach a court uses must remain focused on 

the heart of the state action inquiry, which, as we noted above, 

is to discern if the defendant "exercised power 'possessed by 

virtue of state law and made possible only because the wrongdoer 

is clothed with the authority of state law.'" West v. Atkins, 

487 U.S. 42, 49 (1988) (quoting United States v. Classic, 313 

U.S. 299, 326 (1941)). Edmonson emphasized the importance of 

this inquiry. 500 U.S. at 620. 
 Plaintiffs assert the first aid squad was performing an 

exclusive government function in its treatment of Groman. The 

Supreme Court has made clear that the scope of exclusive 

government functions is limited, reaching only those activities 

that have been "traditionally the exclusive prerogative of the 

State." Rendell-Baker, 457 U.S. at 842 (quoting Jackson, 419 

U.S. at 353). See also Flagg Bros., 436 U.S. at 158 (stating 

"[w]hile many functions have been traditionally performed by 

governments, very few have been 'exclusively reserved to the 

State'"); cf. Evans v. Newton, 382 U.S. 296, 299 (1966) (holding 

"when private individuals or groups are endowed by the State with 

powers or functions governmental in nature, they become agencies 

or instrumentalities of the State and subject to its 

constitutional limitations").18

 

18. Although the Supreme Court in Edmonson framed the inquiry as 

the "traditional government function" inquiry, 500 U.S. at 621, 

rather than as the "exclusive government function" test, the 

Court also held "[t]he selection of jurors represents a unique

governmental function . . . ." Id. at 627 (emphasis added). The 

word "unique" in this context appears synonymous with 

"exclusive," and thus it seems probable the Court did not intend 

to alter the test for all purposes but rather to permit different 

analyses depending on the circumstances. Most appellate cases 

are in accord with this reading. We note especially the opinion 

in UAW, Local 5285 v. Gaston Festivals, Inc., No. 94-1387, 1995 

WL 7677, at *9 n.2 (4th Cir. Jan. 10, 1995), in which the court 

declined to read the Edmonson Court's odd omission of the 

"exclusivity" requirement as adopting a new test. The court 

observed: 

 The Court in Edmonson seemed to ignore the 

"exclusivity" requirement of the 

"traditionally exclusive government function" 

test, Edmonson, 500 U.S. at 621, 624-28, and 

was criticized by the dissent for having 

"misstated the law," see id. at 639 

(O'Connor, J., dissenting). The Court's 
 In the course of enunciating the contours of what 

constitutes an exclusive government function, the Supreme Court 

(..continued) 

omission of this requirement raises a 

question as to whether the standard still 

includes such a requirement. See, e.g., 

McKeesport Hospital v. Accreditation Council, 

24 F.3d 519, 528 (3d Cir. 1994) (Becker, J., 

concurring). However, we do not believe the 

Supreme Court would have attempted to change 

radically the government function standard 

set forth in Jackson, 419 U.S. at 353, and 

thereafter applied consistently in Flagg 

Bros., 436 U.S. at 157-58, Rendell-Baker, 457 

U.S. at 842, Blum v. Yaretsky, 457 U.S. 991, 

1005, 1011-12 (1982), [San Francisco Arts & 

Athletics, Inc. v. United States Olympic 

Committee], 483 U.S. [522,] 544-45 (1987), 

and NCAA v. Tarkanian, 488 U.S. 179, 197-98 

n.18 (1988), through the transparent 

puerilism of simple omission. If it had 

intended to change the law in this respect, 

we believe it would have said so explicitly. 

Moreover, the ultimate reasoning of the Court 

in Edmonson was that juror selection was 

traditionally an exclusive governmental 

function. See, e.g., Edmonson, 500 U.S. at 

627 ("The selection of jurors represents a 

unique governmental function delegated to 

private litigants by the government and 

attributable to the government . . . ."). 

Accordingly, we proceed on the understanding 

that the "exclusivity" requirement must be 

satisfied. 

Gaston Festivals, 1995 WL 7677, at *9 n.2 (emphasis omitted); see 

also McKeesport Hosp., 24 F.3d at 524; Black by Black v. Indiana 

Area Sch. Dist., 985 F.2d 707, 710-11 (3d Cir. 1993); Andrews v. 

Federal Home Loan Bank, 998 F.2d 214, 217 (4th Cir. 1993); 

Yeager, 980 F.2d at 340. But cf. Sherman, 8 F.3d at 1169 

(formulating the inquiry as one into the existence of a 

"traditional state function," but also citing to Flagg Bros. Inc. 

v. Brooks, 436 U.S. 149, 158 (1978), where the Supreme Court 

stated: "While many functions have been traditionally performed 

by governments, very few have been 'exclusively reserved to the 

State'"). 
has held that receipt of public funds and the performance of a 

function serving the public alone are not enough to make a 

private entity a state actor. Rendell-Baker, 457 U.S. at 840, 

842. Our decision in Black by Black v. Indiana Area School 

District, 985 F.2d 707, 710-11 (3d Cir. 1993), follows RendellBaker and holds a school bus driver is not performing an 

exclusive government function even though paid by the state and 

performing a service for the public. Plaintiffs' reliance then 

on two factors--public funding and service to the public--is by 

itself insufficient, and plaintiffs have presented no other 

evidence which might persuade us that the first aid squad here 

was performing an exclusive government function. 

 Plaintiffs also urge us to follow by analogy a decision 

from the Court of Appeals for the Second Circuit that held a 

volunteer fire company to be an exclusive government actor. 

Janusaitis v. Middlebury Volunteer Fire Dep't, 607 F.2d 17 (2d 

Cir. 1979). But Janusaitis predates the seminal cases RendellBaker and Blum, and its holding is ambiguously grounded in both 

the exclusive government function and the symbiotic relationship 

tests. Janusaitis, 607 F.2d at 23. Recently, the Court of 

Appeals for the Fifth Circuit reached a contrary result to 

Janusaitis in Yeager v. City of McGregor, 980 F.2d 337, 343 (5th 

Cir.), cert. denied, 114 S. Ct. 79 (1993). The Yeager court 

found the volunteer fire company did not serve an exclusive 

government function on two grounds: first, since Texas law 

allowed but did not compel the city to establish a fire 

department it could hardly be called an exclusive government 
function; and second, it took "judicial notice of the fact that 

there are a variety of private sector fire fighting alternatives; 

and fire fighting is not generally an exclusive government 

function." Id. at 340-41 (footnotes omitted). The court also 

observed that the state action determination was important to the 

extent it helps protect voluntary organizations from needless 

lawsuits. Id. at 339. 

 While there are similarities between volunteer fire 

departments and volunteer first aid squads, there are sufficient 

differences that may counsel against adopting this analogy. 

First aid squads perform different functions from fire 

departments.19 To the extent we do find similarities, we find 

the court's analysis in Yeager more persuasive than the court's 

in Janusaitis and more consonant with controlling precedent, 

 

19. Among other differences, first aid squads usually render 

assistance when they have a person's actual or implied consent. 

First aid squad member Moriarty's testimony demonstrates that the 

squad members were aware of that consensual relationship: 

 Q: Why did you elect not to treat Mr. Groman, 

even over his objection, whether verbal or 

physical? 

 A: Part of the treatment would be to 

transport the patient; and if I were to 

transport the patient without his consent, it 

would be kidnaping. 

 We cannot force anybody to be treated. 

We can recommend, for their good and welfare, 

that they allow us to treat them, but we 

cannot force them to allow us to treat them. 

That's why I elected to obtain or attempted 

to obtain a medical release. 

Moriarty Dep., Defendant's App. at 51-52. 
although we do not explicitly adopt the analysis in Yeager. We 

must keep in mind the Supreme Court's admonition to pay close 

attention to the facts of each case while conducting the state 

action inquiry. Lugar, 457 U.S. at 939. Accordingly, we cannot 

accept Groman's contention that a volunteer first aid squad would 

be deemed to perform an exclusive government function merely 

because a volunteer fire department had been held to perform one. 

We find plaintiffs have failed to meet their burden of 

demonstrating the first aid squad here was performing an 

exclusive government function. 

 Plaintiffs' other theories to ground a finding of state 

action can be analyzed under a general conceptual inquiry, in 

which we seek to ascertain "the degree to which the state and the 

[private] entity exist in a 'symbiotic relationship' or under 

circumstances where the conduct of the private actor can be 

fairly imputed as that of the state." Yeager, 980 F.2d at 342 

(citing Jackson, 419 U.S. at 351; San Francisco Arts & Athletics, 

Inc. v. United States Olympic Comm., 483 U.S. 522, 556 (1987)). 

The Supreme Court has frequently discussed the boundaries of this 

branch of the state action doctrine. In Rendell-Baker, the 

Supreme Court held a private school which was carrying out a 

state-sponsored program and which received at least ninety 

percent of its funds from the state was nevertheless not a state 

actor. 457 U.S. at 840-43. In Blum, the Court held private 

nursing homes were not state actors even though they were 

extensively funded and regulated by the state. 457 U.S. at 1011-

12. While the exact contours of this state action inquiry are 
difficult to delineate, the interdependence between the state and 

private actor must be pronounced before the law will transform 

the private actor into a state actor. See id. at 1004; Boyle v. 

Governor's Veterans Outreach & Assistance Ctr., 925 F.2d 71, 76 

(3d Cir. 1991). The first aid squad, though financially assisted 

by the Township and (we assume here) functioning as support to 

the police, nevertheless did not have its professional decisions 

dictated or guided by the state. There is no evidence that the 

Township controlled the first aid squad's professional conduct. 

See Polk County v. Dodson, 454 U.S. 312, 324-25 (1981). 

 Given the relationship between the first aid squad and 

the Township here, we find no symbiotic relationship, joint 

participation, or other connection sufficient to demonstrate the 

first aid squad was acting under color of state law. Neither the 

squad's receipt of public funds, nor the police's request for the 

first aid squad, nor Groman's status as a person in custody at 

the time of the squad's second response is enough to create state 

action on the part of the first aid squad. Even if the events 

created an affirmative obligation under the Due Process Clause 

for the police to provide medical care, City of Revere v. 

Massachusetts Gen. Hosp., 463 U.S. 239, 244-45 (1983), this 

obligation did not transform the first aid squad into a state 

actor. As we have held, the police fulfilled their 

constitutional obligation by calling the first aid squad, and the 

first aid squad's actions do not make them state actors for 

purposes of § 1983. 
 Accordingly, we will affirm the district court's grant 

of summary judgment on plaintiffs' claims against the 

Englishtown-Manalapan First Aid Squad, Edward T. Moriarty, Tracie 

Zachary, James Paulser, and Joseph Bokenko. Although our 

disposition of the color of state law requirement makes it 

unnecessary for us to reach the issue of whether plaintiffs have 

a colorable claim of a violation of federal rights by the first 

aid squad and its members, we are compelled to note that the 

record contains no evidence of a valid claim. 

IV. 

 We will reverse the district court's grant of summary 

judgment on plaintiffs' claim of excessive force under 42 U.S.C. 

§ 1983 as to officers Kirkland, Trembow, and Vanderweil, and on 

plaintiffs' false arrest and false imprisonment claims against 

officer Kirkland. We will remand these claims to the district 

court. We will affirm the district court's grant of summary 

judgment on all other federal claims. The district court 

declined to exercise supplemental jurisdiction over plaintiffs' 

state law tort claims because it found no cognizable federal 

claim. We will vacate that portion of the district court's order 

so it can determine whether to hear the state claims along with 

the federal claims.