Robert John Tuite, Jr.,

OPINION

Plaintiff,

V.

STATE OF NEW JERSEY, DIVISION

OF STATE POLICE OF THE NEW

JERSEY DEPARTMENT OF LAW

AND PUBLIC SAFETY, JASON

SOWINSKI, a New Jersey State

Trooper, IAN ROSENBERG, a New

Jersey State Trooper, JOSHUA

COPPOLA, a New Jersey State

Trooper, JOHN DOE 1-10, and JOHN

DOE CORPORATION 1-10,

Defendants.

MCNULTY, U.S.D.J.,

Plaintiff Ruth Tuite, as Administrator ad Prosequendum for the Estate of

Robert John Tuite, Jr. (“Tuite”), commenced this Section 1983 wrongful death

action against the State of New Jersey, the State Police of the New Jersey

Department of Law and Public Safety (“NJSP”) (collectively, “State defendants”),

and New Jersey State Troopers Jason Sowinksi, Ian Rosenberg, and Joshua

Coppola (collectively, the “Troopers”). The action arises from Tuite’s death

following his arrest by the Troopers. The complaint asserts claims under the

U.S. Constitution, state statutory law, and state common law. Now before the

Court are four motions for summary judgment, one filed by the State

defendants and one by each of the three Troopers. For the reasons set forth

below, this Court will grant the State defendants’ motion and deny the motions

filed by the Troopers.

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Sowinksi eventually roused him and ordered him to move the sedan over to theright shoulder of the highway. (Id.)

Once on the shoulder, Sowinski learned that Tuite was driving with a

suspended license. Sowinski radioed for assistance, and Troopers Coppola and

Rosenberg soon arrived. (RI. at ¶J31-33) Trooper Sowinski suspected that

Tuite was intoxicated, and ordered him out of his car. (Id. at ¶34) Tuite failed a

battery of field sobriety tests, and Sowinski advised him that he would be

placed under arrest for driving while intoxicated.

Trooper Sowin ski began to handcuff Tuite, and Tuite began to resist.

(Dkt. No. 59-3, at 9). Sowinski managed to handcuff Tuite’s right wrist, but he

refused to place his arms behind his back and his left wrist remained free.

Thite struggled to break free of the three troopers, who attempted to hold him

in place. (Dkt. No. 5 1-8) The troopers feared that both they and Tuite, who

stood six feet two inches tall and weighed over two hundred fifty pounds, mightstumble out of the narrow shoulder lane and into traffic. Despite repeated

commands to stop resisting, Tuite continued to try to wriggle loose. Trooper

Rosenberg compared Tuite to “a football player that you’re trying to tackle... andthe tacklers are holding onto the guy and [he’s] just kinda dragging them

along.” (Dkt. No. 59-3, at 10)

The scuffle lasted about ninety seconds (Dkt. No. 5 1-4, ¶44). The

troopers ultimately subdued Thite by pushing him toward the guardrail on the

right side of the shoulder lane. They pressed him forward over the railing in

order to expose his arms. (Dkt. No. 52-1, ¶J31-32) Tuite was then successfullyhandcuffed. Trooper Coppola noticed blood on his own hands and on Tuite’sface, and the troopers called for an ambulance. (Coppola Dep., 43:9-12, 53:16-

23; Dkt. No. 5 1-4, ¶45)

The Troopers state that, although Tuite was handcuffed, it was unsafe to

try to move him to a patrol car because he was “kicking his legs and attemptingto stand up” from the guardrail. (Dkt. No. 5 1-4, ¶49). To maintain control,

Trooper Rosenberg brought Tuite to the ground and positioned him face down

on his stomach. (Dkt. No. 56-1, ¶51; Rosenberg Dep., 33:5-17) Rosenberg thenplaced his right knee between Thite’s shoulder blades and pushed down on his

shoulders with his hands. At the same time, Trooper Coppola held Tuite’s legs.

(Dkt. No. 56-1, ¶53; Rosenberg Dep., 34:10-18; 41:7-16)

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condition. (Dkt. No. 59-7, at 15; Rosenberg Dep., 42:16-25). Trooper Coppoladescribed Tuite’s behavior as abruptly transitioning from “from kicking and

flailing and yelling to nothing.” (Dkt. No. 59-7, at 16). Concerned that Tuite’s

silence might indicate that he was having trouble breathing, TroopersRosenberg and Coppola stopped restraining him and propped him up against

the guardrail. (IcL; Coppola Dep., 60:3-7)

In the defendants’ version of events, the troopers detected a pulse. They

concluded from the rising and falling of his chest that Thite was still breathing.

(Coppola Dep., 61:11-19; Dkt. 52-4, ¶43). Thite then began drifting in and out

of consciousness (Dkt. No. 5 1-4, ¶72), and Trooper Sowinski called to expedite

the ambulance that was already on its way. Before the ambulance arrived,

Trooper Coppola administered first aid by placing an oxygen mask over Tuite’s

mouth.

The plaintiff’s version is different. The plaintiff contends that Tuite can be

heard on the dashboard recording exclaiming “You guys are killing me!” (Dkt.

No. 57-1, ¶63) Despite that warning, Rosenberg continued to push his knee

between Tuite’s shoulder blades and Coppola continued to restrain his legs.

According to the plaintiff, when Tuite stopped making noise, it was because he

had stopped breathing. (Dkt. 56-1, at 12-13). According to the plaintiff,

Coppola then let approximately ten minutes go by before applying an oxygen

mask. (Dkt. 57-1, ¶119)

The ambulance arrived. The EMTs determined that Tuite was not

breathing and that there was a “bluish tinge to the area around his lips.” (Idler

Dep., 17:4-18) Thite went into cardiac arrest on the way to Englewood Hospital

and was pronounced dead on arrival at 12:3 1 a.m. (Id. at 19:12-16; 2 1:5-22;

Dkt. No. 5 1-9, at 14)

The autopsy report gave the cause of death as “cardiorespiratory arrest

following physical restraint and struggle” while under the influence of alcoholand a prescription muscle relaxer. As contributory causes the report lists

“asthma,” “stenosis of larynx,” and “obesity.” The plaintiff maintains that the

manner in which the troopers held Tuite to the ground caused him to die ofpositional asphyxiation, a form of suffocation that occurs when a person’sposition prevents him from breathing. According to the plaintiff, the troopers

deliberately withheld from the EMTs the information that Thite had been heldface down with a knee to his back. That omitted information would have been

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jurisdiction over the plaintiff’s state-law claims pursuant to 28 U.S.C. § 1367.

III. STANDARD

Federal Rule of Civil Procedure 56(a) provides that summary judgment

should be granted “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); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986); Kreschollek v. S. Stevedoring Co., 223 F.3d 202, 204 (3d Cir. 2000). In

deciding a motion for summary judgment, a court must construe all facts andinferences in the light most favorable to the nonmoving party. See Boyle z’.

County of Allegheny Pennsylvania, 139 F.3d 386, 393 (3d Cir. 1998). The

moving party bears the burden of establishing that no genuine issue ofmaterial fact remains. See Celotex Corp. v. Catrett, 477 U.S. 317, 322—23,

(1986). “[W]ith respect to an issue on which the nonmoving party bears the

burden of proof ... 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.” Id. at 325. In all cases, the

ultimate question is “whether a jury could reasonably find either that the

plaintiff proved his case by the quality and quantity of evidence required by the

governing law or that he did not.” Anderson, 477 U.S. at 254.

IV. ANALYSIS

A. Claims Against the State Defendants

Tuite’s claims against the State of New Jersey and the NJSP are barred

by the Eleventh Amendment and by case law interpreting the term “person” asused in 42 U.S.C. §1983.

The sovereign immunity conferred by the Eleventh Amendment shields

states and their agencies from suits brought in federal court. See Pennhurst

State School & Hosp. v. Haldermczn, 465 U.S. 89, 100 (1984). That jurisdictional

bar applies regardless of the particular relief requested. Id. at 100-01.

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that a state or its agencies violated state law. See Penhurst State School &

Hosp., 465 U.S. at 121.

Finally, there is a closely related bar to relief under 42 U.S.C. § 1983.

The State of New Jersey and the NJSP are not “persons” who may be liable

under that statute. Section 1983 provides:

Every person who, under color of any statute, ordinance,regulation, custom, or usage, of any State or Territory or the

District of Columbia, 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...

42 U.S.C. § 1983 (emphasis added). It is well established that states and their

agencies fall outside the definition of a “person” as that term is used in Section

1983. See Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71(1989) (holding

that neither a State nor its officials acting in their official capacities are

“persons” under § 1983); Smith v. New Jersey, 2012 WL 5465023, at *1 (D.N.J.

Nov. 7, 2012) (holding that New Jersey and the NJSP are not suable “persons”).

For all of these reasons, the State defendants are entitled to summary

judgment on all of Tuite’s claims.

B. Claims Against the Individual Trooper Defendants

1. §1983 Claims Against the Troopers

Section 1983 is a statutory vehicle to redress violations of federal law. A

Section 1983 plaintiff must show that a person acting under color of state law

See 28 U.S.C. § 1367 (supplemental jurisdiction). Based on the dismissal of all

federal-law claims against the State defendants, I would dismiss the state-law claims

on the alternative ground that supplemental jurisdiction is inappropriate.

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objectively reasonable and the defendants were sufficiently attentive to Thite

s

medical needs.

a. Qualified Immunity

The doctrine of qualified immunity balances two important interests: “the

need to hold public officials accountable when they exercise powerirresponsibly and the need to shield officials from harassment, distraction, and

liability when they perform their duties reasonably.” Pearson v. Callahan, 555

U.S. 223, 231 (2009). In Saucier u. Katz, 533 U.S. 194 (2001), the SupremeCourt articulated a two-step test for determining whether a government official

is entitled to qualified immunity. First, the court must ask whether “theofficer’s conduct violated a constitutional right.” Id. at 201. Second, the court

must ask whether the right at issue was so well established that “it would be

clear to a reasonable officer that his conduct was unlawful in the situation heconfronted.” Id. at 202. Both are required. District courts may consider these

questions in the order that will best facilitate the disposition of the case.

Pearson, 555 U.S. at 242

b. Excessive Force

A claim that the police used excessive force in the course of an arrest

must be analyzed under the Fourth Amendment standard of “objective

reasonableness.” Graham v. Connor, 490 U.S. 386, 395 (1989). That

“reasonableness” determination requires a court to balance several factors,

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 or attempting to evade arrest by flight.” Sharrar v. Felsing,

128 F.3d 810, 820-2 1 (3d Cir. 1997) (citing Graham, 490 U.S. at 396). “Other

relevant factors include the possibility that the persons subject to the police

action are themselves violent or dangerous, 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.” IcL

Qualified immunity on an excessive force claim presents an objective

question that may often be decided by the court as a matter of law. See Curley

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objective reasonableness when relevant factual issues are in dispute.”) (citing

Sharrar, 128 F.3d at 830-3 1).

Here, Mr. Tuite cannot testify on his own behalf. In such a case, I am

particularly cognizant of my duty to “examine all the evidence in the record,

such as medical reports, contemporaneous statements by the officer and the

available physical evidence, as well as any expert testimony proffered by the

plaintiff, to determine whether the officer’s story is internally consistent and

consistent with other known facts.” Tofano v. Reidel, 61 F.Supp.2d 289, 30].

(D.N.J. 1999) (citing Scott u. Henrich, 39 F.3d 912, 915 (9th Cir. 1994)).

After reviewing the evidence, I conclude that there are disputed material

facts relevant to the issue of whether the use of force was objectively

reasonable. Most significantly, it is unclear for how long Tuite resisted and

what level of force was reasonably necessary. In that connection, I note that the

use of force, even if initially justified, may become excessive as events unfold.

See Lamont v. New Jersey, 637 F.3d 177, 184 (3d Cir. 2011) (“Even where an

officer is initially justified in using force, he may not continue to use such force

after it has become evident that the threat justifying the force has vanished.”).

It may be true that the troopers had to use force to handcuff Thite. It

may even be true that some continuing application of force was required. Even

so, the court must consider whether, once Tuite was handcuffed, the degree of

force used to restrain him exceeded what was reasonably warranted.

The Troopers maintain that Tuite, even handcuffed and prone, continued

to resist. 2The degree of resistance may bear on whether it was reasonable to

plant a knee in his back and hold him down. See Bomstad v. Honey Brook

Twp., 211 F. App’x 118, 124 (3d Cir. 2007) (“Although officers—indeed, any

reasonable person—should [know] that squeezing the breath from a compliant,

prone, and handcuffed individual despite his pleas for air involves a degree of

force that is greater than reasonable, it is not so clearly unreasonable to exert

severe force on an individual who continues to violently resist arrest.”). On that

point, plaintiff claims that there is evidence that Thite told the officers that he

2 There is no contemporaneous visual evidence from anyone other than the

troopers. Once Thite was on the ground, the events were out of frame of the dashboard

video. The tow truck operator on the scene states that he does not recall what

happened once Tuite was brought down. (Brydson Dep., 7 1:9-72:15).

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but it is also true that he was prone and handcuffed. It may be that the officers

were justified in applying some force, but it may also be true that Tuite was in

distress and that the officers should have realized that. An assessment of thedanger posed by the defendant, based on, e.g., his physical size and theproximity of traffic, may require the exercise of a fact finder’s judgment. Therestraint went on for some time, Thite was unarmed, and the officers had no

other suspects to deal with. See generally Sharrar, supra (relevant factors).

Whether the application of force was reasonable, then, depends on a

sensitive weighing of all the circumstances—the kind of weighing that only a

fact finder can perform. Because Mr. Tuite is deceased, the fact finder mayhave to consider circumstantial and medical evidence in assessing the troopers’testimony. In short, it is far from certain that a reasonable jury would find

excessive force, but it could. See, e.g., Estate ofAwkward v. Willingboro PoliceDept., 2010 WL 3906785, at *11 (D.N.J. Sept. 30, 2010) (“[Jjf [the decedenti had

been successfully handcuffed and the officers still remained on his back while

he pushed-up and yelled that he could not breathe, it would be clear that theofficers acted unreasonably.”).

Accordingly, in light of the disputed historical facts material to the

qualified immunity question, I cannot grant summary judgment as a matter oflaw. The Troopers’ summary judgment motion is denied as to the excessiveforce claim.

c. Failure to Provide Adequate Medical Care

Failure to provide medical care to a person in “custody” can rise to the

level of a constitutional violation if that failure amounts to “deliberateindifference to that person’s serious medical needs.” Groman v. Twp. of

Manalapan, 47 F.3d 628, 637 (3d Cir. 1995).3 A “serious medical need” is “one

In general, the Fourth Amendment “reasonableness” standard governs arrest

and seizure, while the Eighth Amendment “deliberate indifference” standard governsclaims arising from punitive imprisonment. In Groman, the Third Circuit applied theEighth Amendment “deliberate indifference” standard to the claims of an arrestee inpolice “custody.” Subsequent cases have applied the same standard to medical claims

arising at various points on the custodial continuum. See Pierce v. Cherry Hill Tp.,2013 WL 3283952 at n.8 (D.N.J. June 26, 2013) (collecting cases). The “deliberate

indifference” standard, at any rate, sets a minimum standard of care that must be

afforded to arrestees. Courts have therefore applied established deliberate-indifference

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F.2d at 346-47 (internal citations and quotations omitted). Where there is a

factual dispute material to the issue of deliberate indifference, a court cannot

grant summary judgment on the basis of qualified immunity. See Beers-Capitol

v. Whetzel, 256 F.3d 120, 142 n. 15 (3d Cir. 2001) (“Because there is a genuine issue of fact as to whether [defendant] was deliberately indifferent, she has not

carried her burden to establish that she is entitled to such immunity.”)

The parties do not dispute that Tuite’s condition evidenced a “serious

medical need.” They disagree on whether the Troopers’ conduct amounted to

deliberate indifference.

The plaintiff argues that the Troopers should have been aware that Tuite

was inert and had ceased breathing. (Dkt. No. 56, at 14; Dkt. No. 56-1, ¶J1 19)

Yet ten minutes passed before they attempted to provide first aid, and the aid

they did provide was inadequate (Dkt. No. 56-1, V}120-23, 129; (Dkt. No. 56,

at 14). Belatedly placing an oxygen mask over Tuite’s face, says plaintiff, was

ineffectual because he was no longer drawing air into his lungs. (Dkt. No. 56-

1, ¶[122-23) CPR would have been required.

The plaintiff also contends that the Troopers deliberately withheld from

the EMTs certain information—specifically, that Trooper Rosenberg had knelt

on Thite’s back. That omitted information allegedly would have been relevant to

the medical decisions that were made about Tuite’s care. (Dkt. No. 57, at 12).

The Troopers respond that, while Tuite was undoubtedly having medical

issues, he did not stop breathing and was able to respond when addressed by

name. (Dkt. No. 5 1-4, 81, 84, 85, 87). By providing basic medical care and

standards to Section 1983 medical care claims arising in the course of an arrest. See

Walmsley v. City ofPhiladelphia, 872, F.2d 546, 552-53 (3d Cir. 1989) (reversing a directed verdict and concluding that a jury could reasonably infer that certain officers

were deliberately indifferent to plaintiff-arrestee’s medical needs); Hill v. Algor, 85 F.Supp.2d 391, 409 (D.N,J. 2000) (“Groman and Walmsley [] provide that the deliberate indifference standard governs ] claims arising out of one’s arrest and post- arrest detention.”). I will therefore make the defendant-favorable assumption that the deliberate indifference standard applies.

9
y 

realized that CPR was necessary; and whether they compromised Thite’s

medical care by withholding pertinent information from the EMTs. In light of

those factual issues, the Troopers’ motions for summary judgment are denied

as to the medical claim.

2. State Law Claims

The Troopers do not press any independent arguments as to Tuite’s

state-law claims. Since I am denying the Troopers’ summary judgment motions

as to the federal Section 1983 claims, I will retain supplemental jurisdiction

over the related state law claims. See 28 U.S.C. § 1367.

V. CONCLUSION

For the reasons stated above, the State defendants’ motion for summary

judgment is GRANTED, and the Troopers’ motions for summary judgment are

DENIED.

An appropriate Order will issue.

Dated: October 8, 2014

MCNULTY

United States District Judge

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