NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

VINCENT LEE ROBINSON, 

Plaintiff,

v.

SGT. RICHARD ANDREWS, et al.,

Defendants.

Civil Action No. 11-252 (JAP)

OPINION

PISANO, District Judge:

This matter comes before the Court upon a motion for summary judgment [ECF No. 71] 

filed by Defendants Sgt. Richard Andrews (“Sergeant Andrews”) and Officer Michael R. Gavin

(“Officer Gavin”) (collectively, “Defendants” or “the officers”) on Pro Se Plaintiff Vincent Lee 

Robinson’s (“Plaintiff’s” or “Robinson’s”), excessive force claims against them. Plaintiff has 

opposed the motion, and has cross-moved to stay [ECF No. 86] the Court’s resolution of 

Defendants’ summary judgment motion. The Court decides the matter without oral argument 

pursuant to Federal Rules of Civil Procedure 78. For the reasons explained herein, the Court 

grants in part and denies in part Defendants’ motion and denies Plaintiff’s cross-motion.

I. BACKGROUND

Robinson brings an excessive force claim against both defendants based upon altercations 

that took place during his arrest at the Atlantic City Boardwalk (“the boardwalk”) on October 26, 

2010. In short, he alleged in his complaint that he was “beaten and abused” by two arresting 

officers and that, “once [he] was handcuffed,” he was “abused further by [the] police officers.” 

Compl., ECF No. 1 at 4. Both Plaintiff and the Defendants agree that there were two pre1

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handcuffing altercations between Robinson and them, but their accounts of the incidents diverge. 

For ease of reference, the Court will section the parties’ respective accounts into three parts: an

initial altercation with Officer Gavin, an altercation on the beach with Officer Gavin and 

Sergeant Andrews, and Officer Gavin’s post-handcuffing uses of force. As Robinson ultimately 

pled to aggravated assault of one of the officers, the Court will briefly recount the facts 

surrounding the plea as well.

In detailing the pertinent facts, the Court will draw from Robinson’s plea and deposition 

testimony, and Officer Gavin’s and Sergeant Andrew’s respective police reports. The defendants 

did not provide the Court with their own deposition testimony, if there is any.

A. The Initial Altercation

It is undisputed that, on October 26, 2010, Officer Gavin was investigating a civilian 

complaint that a male had threatened two people on the boardwalk with a knife a few days prior. 

According to Robinson’s deposition testimony, he was walking around the boardwalk area that 

day and heard a set of footsteps behind him. Robinson Dep. dated June 24, 2013, ECF No. 74 at 

44:7-45:14.

In his deposition, Robinson maintained that he was approached by Officer Gavin and 

that, once he disclosed that he was carrying a knife, the officer threatened to shoot him, before 

kicking him:

Well, when [Officer Gavin] approached me, he put his right hand 

on my right shoulder and he took my right wrist in his left hand 

and started to put it behind me. He said, Do you have any weapons 

on you that I need to know about? At that time I pointed to my 

back pocket and I said I have a knife in my back pocket It was at 

that moment that the officer freaked out. He spun me around, 

kicked me in my lower abdomen. He and I both went backwards. 

And I - he said get your goddamn hands up, I'll shoot you. And I 

told him I don't- I did -I held my hands up like this, like I was 

surrendering, and I said that the knife is not in my hands. And, 

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you know, and then I asked him why are you arresting me? And 

then I turn around and began to head towards the stairs on the east 

side of the patio.

Id. at 49:10-25. 

Robinson further testified, in his deposition, that, before he reached the stairs, Officer 

Gavin grabbed him by the shoulder but was not able to gain control of him. Id. at 53:13-54:2. 

So, the officer kicked him again. Id. at 54:3-12. Robinson “tumbled” down the stairs, landing 

with his hands out in front of him, and then ran down the boardwalk. Id. at 55:17-56:11. Officer 

Gavin gave chase, and told Robinson that “he was going to shoot [him] if it was the last thing he 

did.” Id. 56:12-20. 

Contrary to Robinson’s account, Officer Gavin states in his supplemental police report 

that Robinson reached for his knife and thrusted it toward him in their initial encounter. 

. . . As I was walking out to find the best area, I observed a male 

standing near the wall overlooking the walk. As I got closer, male 

turned and I could positively identify him as the suspect. Without 

time to call for backup, I grabbed his right arm and told him he 

was under arrest. Male immediately yelled "I have a knife" and 

with his uncontrolled left hand, reached behind his waist and 

began coming out with a silver object, thrusting it in my direction.

I immediately kicked [him] away from me to create some distance, 

and pulled my gun, however [he] began running and I chose not to 

shoot because I could observe other people in the vicinity. I began 

to pursue him.

Atlantic City Police Rep. dated 10/27/10, ECF No. 77 at 29 (emphasis added). He, further, 

disputes that he kicked Robinson down the stairs and contends, instead, that Robinson fell during 

his attempt to flee. Id. Officer Gavin states in his report that he did not follow Robinson at that 

time, choosing to “wait[ ] for additional units to arrive.” Id.

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B. The Altercation on the Beach

Robinson testified in his deposition that, following his initial altercation with Officer 

Gavin, he ran under the boardwalk and hid there until later in the evening; he exited from under 

the boardwalk to the beach when he overheard voices from the boardwalk stating that the police 

had left the area. Id. at 56:25-58:3, 60:3-14. Robinson further testified that the following events 

took place.

A few minutes after he re-emerged, Robinson walked up to the Taj Mahal casino and 

encountered Sergeant Richard Andrews, who was dressed in plain clothes. Id. at 60:15-61:4. 

The sergeant asked him who he was, and Robinson gave a fictitious name in response. Id. at 

63:1-4. Office Gavin then stepped into the conversation and Sergeant Andrews asked the officer 

if he recognized Robinson. Id. at 63:16-22. After “looking at [Robinson] for a second,” Officer 

Gavin, who was also dressed in plain clothes, “stepped back and pulled out a gun.” Id. at 63:22-

64:2. Upon sight of the gun, and hearing Officer Gavin say “that’s him,” Robinson ran back to 

the beach. Id. at 65:7-15. 

According to Robinson, he did not recognize the officer as Officer Gavin at that time, and 

he did not realize that the officer or the sergeant were police officers. Id. at 64:7-11. Robinson 

“assumed [he] was being robbed or targeted for some act of violence of some sort” by the plain 

clothes officer and sergeant. Id. at 65:20-23. 

Before Robinson made it to the stairs on the beach, he was “jumped from behind” by 

Sergeant Andrews. Id. at 65:24-66:8. Robinson fell face down in the sand, the sergeant rolled 

him over “punched [Robinson] in his . . . groin . . . about six times,” and pinned down 

Robinson’s right hand. Id.at 66:17-67:13. Officer Gavin then joined in, pushing Robinson’s left 

hand into the sand and stomped on his “upper chest” and “lower throat area” with his foot. Id. at 

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68:7-23. Robinson was “able to get his right hand free” in order to move Officer Gavin’s boot 

from around his neck area; according to Robinson, he was “essentially choking to death” from 

the boot being placed there. Id. at 69:17-20. Robinson continued to resist because he still did 

not realize the officer and sergeant were police officers. Id. at 70:18-71:7. At that point in time,

uniformed police officers began arriving on the scene. Id. at 71:22-6. These officers “brought 

[him] under control,” by rolling him on his side and handcuffing him. Id. at 72:12-20. 

Both Officer Gavin and Sergeant Andrews dispute key aspects of Robinson’s version of 

events. By way of background, Gavin stated in his supplemental police report that, while 

Robinson was hiding under the boardwalk, he learned that Robinson was wanted in Maine for 

aggravated sexual assault of a 10 year old. Atlantic City Police Rep. dated 10/27/10, ECF No. 

77 at 30.1

 Officer Gavin and other officers who had arrived at the scene then set up surveillance; 

some officers, including him, were in plain clothes while others were uniformed. Id. Officer 

Gavin observed a suspicious male reappear on the boardwalk and, upon approaching him, 

positively identified him as Robinson, stating to Andrews “that’s him.” Id.

According to Gavin, Robinson took flight as soon as he heard those words, and reached 

for his knife. Specifically, Gavin contends that Robinson “reach[ed] towards his rear waistband, 

where he had pulled the knife from . . . earlier. Andrews tackled the male who began violently 

resisting arrest at one time striking Andrews on the head with his arm.” Id. at 31. See also 

Atlantic City Police Rep. dated 10/26/10, ECF No. 77 at 22 (stating, in initial police report, that 

“After positively identifying him, male again attempted to flee, when he was tackled by Sergeant 

Andrews. While resisting this arrest male again reached behind his waist and continued 

1 In his report, Gavin explains that he learned this from Robinson’s female companion who 

initially identified herself as “Rose Greenwood,” and was later confirmed to be Francine White. 

Id.

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physically resisting. During this confrontation suspect elbowed Sergeant Andrews in the head.”) 

Officer Gavin, further, explains that he kicked Robinson while he was on the ground in 

order to prevent him from accessing the knife:

With Andrews directly on top of him, [Robinson] began to again 

reach towards his back refusing to give up his arms. Fearing he 

would once again produce the knife and able to cut either Andrews 

or myself, I kicked [him] several times in the shoulder and head 

area. Officers Corson, Wenz and Russell arrived and we were able 

to handcuff [him]. After standing [him] up, we observed a silver 

folding knife directly beneath him. This appeared to be the knife 

that he used on me earlier. 

Id. 

Sergeant Andrews similarly describes the confrontation, Robinson’s reaching into his 

waistband, and how Robinson came to strike him:

Once the male heard [“that’s him”], he turned around taking flight 

back on to the beach. Officer Gavin and I chased the male. I was 

able to tackle the male who was reaching into his waistband as he 

fled. While on the ground the male violently resisted, striking me in 

the side of the head with his elbow. Officer Gavin and I attempted 

to subdue this male for some time before arriving Officers were 

able to assist in handcuffing the accused. 

Atlantic City Police Rep. dated 10/26/10, ECF No. 77 at 25 (emphasis added).

C. Post-handcuffing Use of Force

Lastly, Robinson asserts that Officer Gavin used force against him after he had been 

handcuffed. Robinson states in his deposition that, once he was handcuffed, Officer Gavin 

repeatedly kicked him in the face, rendering him unconscious for an unspecified period of time. 

Robinson Dep. dated June 24, 2013, ECF No. 74 at 73:12-74:5; id. at 81:5-7. Thereafter, he 

states in his deposition, unnamed officers transported him to the boardwalk to search his person, 

where Officer Gavin kicked him again. Id. at 74:6-75:6. According to Robinson, it was at this 

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place and time that the officers found a small pocket knife in his pocket. Id. at 75:7-16.2

 Neither 

Officer Gavin nor Sergeant Andrews address the alleged post-handcuffing use of force in their 

police reports and, as noted above, they have not provided the Court with any deposition 

testimony.

D. The Plea

Following his arrest, Plaintiff was subsequently charged in New Jersey state court with 

third-degree aggravated assault pursuant to N.J.S.A. 2C:12-1b(2), for attempting to cause bodily 

harm to Officer Gavin, and fourth-degree aggravated assault pursuant to N.J.S.A. 2C:12-1b(5), 

for attempting to cause bodily harm to Officer Gavin and Sergeant Andrews, among other 

charges. See Indictment No. 10-12-2767B dated Dec 7, 2010, ECF No. 72-1 at 3, 4.3

 On 

January 3, 2013, Plaintiff pled guilty only to the third-degree aggravated assault charge 

stemming from his altercation with Office Gavin. See generally Transcript of Plea dated Jan. 3, 

2013, ECF No. 72-3; id. at 2:9-3:4, 5:1-3. All other charges brought against him were dismissed. 

At the plea hearing, Plaintiff acknowledged that was in an altercation with Officer Gavin 

on October 26th. He specifically stated that he fled from the officer, and that, when he was 

caught, he resisted arrest. Id. at 8:9-25. Noticeably, he acknowledged that he struck the officer, 

2 Robinson also states in his deposition that, after he was placed in the back of a patrol car, 

an officer “put[ ] his right hand on the back of [Robinson’s] head — and he bashed [Robinson’s] 

face into the Plexiglas several times.” Id. at 80:5-13. He does not state, however, that either of 

the defendants in this action committed this act. Accordingly, the Court will not consider this 

assertion in its analysis.

3 The Court notes that Defendants have provided a copy of what appears to be the second 

indictment against Robinson—not the first—because the copy attached as Exhibit A to 

Defendants’ motion is titled Indictment No. 10-12-2767B. Id. (emphasis added). This 

distinction is noteworthy because the plea transcript indicates that Robinson pled guilty “to the 

first count of . . . 10-12-2767, [which is] the older indictment.” Transcript of Plea dated Jan. 3, 

2013, ECF No. 72-3 at 4:23-5:3. Nevertheless, because the plea transcript makes clear that 

Robinson pled to a third-degree charge of aggravated assault resulting from his altercation with 

Officer Gavin, the Court need not rely on the indictment in its analysis.

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and that Officer Gavin “was in uniform ....” Id. at 9:1-8; 9:3-5. The judge found these 

admissions to comprise a sufficient factual predicate for the third-degree aggravated assault 

charge. Id. at 9:11-18 (“I find . . .that he has, in fact, committed the third degree crime of 

aggravated assault.”)

II. DISCUSSION

A. Summary Judgment Standard

Summary judgment is appropriate “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). Where the nonmoving party bears the burden of persuasion at trial, the moving party may 

be entitled to summary judgment merely by showing that there is an absence of evidence to 

support an essential element of the nonmoving party’s case. Fed.R.Civ.P. 56(c)(1)(B); Celotex 

Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “Facts that could 

affect the outcome are ‘material facts,’ and a dispute about a material fact is ‘genuine’ if the 

evidence is sufficient to permit a reasonable jury to return a verdict for the non-moving party.” 

Lamont v. New Jersey, 637 F.3d 177, 181 (3d Cir. 2011) (citing Anderson v. Liberty Lobby, Inc., 

477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp., 477 U.S. at 322–23)).

B. Section 1983 and Fourth Amendment Law

Section 1983 provides that

[e]very 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. To succeed on a section 1983 claim, a plaintiff must demonstrate “the 

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violation of a right secured by the Constitution and laws of the United States,” and “that the 

alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 

487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988); see also Robinson v. Temple Univ. 

Health Servs., 506 F. App’x 112, 114 (3d Cir. 2012). 

All “claims that law enforcement officers have used excessive force ... in the course of an 

arrest,” as here, “should be analyzed under the Fourth Amendment and its ‘reasonableness' 

standard....” Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). 

“To state a claim for excessive force as an unreasonable seizure under the Fourth Amendment, a 

plaintiff must show that a ‘seizure’ occurred and that it was unreasonable.” Abraham v. Raso, 

183 F.3d 279, 288 (3d Cir. 1999). The Fourth Amendment reasonableness test is “‘whether, 

under the totality of the circumstances, ‘the officers’ actions are ‘objectively reasonable’ in light 

of the facts and circumstances confronting them, without regard to their underlying intent or 

motivations.” Estate of Smith v. Marasco, 318 F.3d 497, 515 (3d Cir. 2003) (quoting Graham, 

490 U.S. at 397). The “‘reasonableness’ of a particular use of force must be judged from the 

perspective of a reasonable officer on the scene ....” Id.

C. Plaintiff’s Cross-Motion to Stay

At the outset, the Court addresses Plaintiff’s cross-motion to stay the Court’s resolution 

of Defendants’ summary judgment motion and, apparently, to strike portions of Defendants’ 

summary judgment papers. In Plaintiff’s view, Defendants inappropriately attached copies of an 

uncharged indictment to their moving papers, which referenced criminal charges that were never 

lodged against him. Defendants note, in response, that the attached documents are matters of 

public record, and that attachment of the documents does not provide any legal basis for staying 

the Court’s disposition of the pending summary judgment motion. Indeed, Plaintiff has not cited 

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any legal basis for staying this action. Moreover, the Court need not rely on the uncharged 

indictment to render its ruling, thus, Plaintiff’s motion to stay is denied.4

D. Defendants’ Motion for Summary Judgment

Turning now to Defendants’ summary judgment motion, Defendants’ primary argument 

is that Plaintiff’s excessive force claim is barred by Heck v. Humphrey, 512 U.S. 477, 486-87 

(1994). Defendants further argue that record evidence does not demonstrate that Plaintiff’s 

excessive force claims satisfy the fourth amendment “objective reasonableness” test. Lastly, 

Defendants contend that they are entitled to qualified immunity. The Court addresses each 

argument in turn.5

1. Heck Bar

Heck bars plaintiffs from bringing fourth amendment excessive force claims where a 

“judgment in favor of [the] plaintiff . . . would necessarily imply the invalidity of a prior criminal 

conviction ....” Lora-Pena v. FBI, 529 F.3d 503 (3d Cir. 2008) (quoting Heck, 512 U.S. at 484-

87). In Defendants’ view, Plaintiff’s guilty plea to aggravated assault should trigger Heck’s bar

here, and preclude Plaintiff from bringing his excessive force claims against both officers.

This Court addressed this precise issue recently in Grande v. Keansburg Borough, Civil 

Action No. 12–1968(JAP), 2013 WL 2933794, at *5 (D.N.J. Jun. 13, 2013). In that case, this 

4 The Court further notes that it has reviewed Plaintiff’s letter request for complaint forms 

that he may use to file “’Three individual complaints’ concerning the unethical conduct of Two 

District Court Judges as well as The Clerk of the U.S. District Court.” ECF No. 91. This Court 

has no jurisdiction to consider ethical complaints against District Judges or the Clerk of Court, 

accordingly, no complaint forms will be provided to Plaintiff.

5 The Court further notes Defendants’ request that the Court strike Plaintiff’s opposition 

for being submitted late; however, the Court declines to do so in light of Plaintiff’s pro se status. 

Moreover, Plaintiff’s opposition does not alter the Court’s analysis. The Court further notes that 

Plaintiff referenced, in passing, a request for the appointment of counsel in his opposition papers. 

To the extent that Plaintiff seeks the appointment of counsel, he must make a written request 

addressing the factors set forth in Tabron v. Grace, 6 F.3d 147 (1993). 

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Court held that, when a plaintiff has been convicted of aggravated assault in New Jersey, Heck

may bar that plaintiff’s excessive force claim:

Under New Jersey law, the elements of aggravated assault on a 

police officer are “(1) the defendant attempted to cause bodily 

injury to a law enforcement officer acting in performance of his 

duties while in uniform or exhibiting evidence of his authority; and 

(2) the defendant knew that the victim was a law enforcement 

officer acting in performance of his duties, while in uniform or 

exhibiting evidence of his authority.” Self-defense is a defense to a 

charge of assault in the context of “fighting back during an arrest” 

if “the person arrested uses no greater force than that employed by 

the officer.” In other words, “to be guilty of assault, the person 

being arrested must ‘use[ ] an amount of force greater than the 

amount of force used by an officer allegedly using excessive 

force.” Id. Thus, an aggravated assault conviction is “fatally at 

odds with [a] ... Fourth Amendment claim” for excessive force. 

Thus, in cases where there is an aggravated assault conviction, the 

Heck doctrine applies to bar the excessive force claim. 

Id. at *5 (internal citations omitted). 

This Court further noted, in Grande, that there are exceptions to this rule, namely, that 

Heck will not bar an excessive force claim based on the officer’s use of force after the suspect 

has been subdued. Id. (“Heck does not bar a plaintiff's excessive force claim against the 

arresting officer, even when that plaintiff has pled guilty to, or was convicted of assault .... 

[where] the officer applies excessive force when plaintiff has already been subdued.”) (internal 

quotation marks and citation omitted). The rationale underlying this exception is that “the 

officer’s force may be excessive because the plaintiff is no longer a threat to the officer's safety.” 

Id. (internal quotation marks and citation omitted).

While Defendants’ rely heavily on Grande in their motion papers, Grande is not helpful 

to them in this case. As an initial matter, Defendants fail to recognize that Robinson pled solely 

to the aggravated assault claim stemming from his altercation with Officer Gavin—he did not

plead to any conduct relating to his altercation with Sergeant Andrews. Thus, at best, Heck

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would operate to bar Plaintiff’s excessive force claim against Officer Gavin. But his claim 

against Officer Gavin is not fully barred by Heck for another reason. As Grande notes, Heck

does not bar an excessive force claim stemming from an instance of excessive force that takes 

place after the suspect is subdued. See Grande, 2013 WL 2933794, at *5. Here, Robinson 

asserts in his deposition that, after he was handcuffed and subdued, Officer Gavin repeatedly 

kicked him in the face. See Robinson Dep. dated June 24, 2013, ECF No. 74 at 73:12-74:5; id. at 

74:6-75:6.; id. at 81:5-7. 

Therefore, Heck does not bar Plaintiff’s excessive force claims in toto. As for Sergeant 

Andrews, the excessive force claim against him is not affected by Heck since Plaintiff did not 

plead to an aggravated assault charge relating to his altercation with the sergeant. Hence the 

sergeant is not entitled to summary judgment on Heck grounds. Summary judgment is granted, 

in part, however, on the claim against Officer Gavin, to the extent that Robinson’s claim against 

him is based on the officer’s pre-handcuffing conduct. 

In connection with their Heck argument, Defendants further suggest that Robinson’s 

complaint allegations are undermined by his plea to aggravate assault. Specifically, Defendants 

state that Plaintiff failed to acknowledge in his complaint that he struck Officer Gavin, or any 

officer for that matter, and that the inconsistency between his complaint allegations and plea 

testimony is troublesome. 

That Plaintiff was silent about his own aggressive actions in the complaint is not 

inconsistent with his plea testimony that he struck Officer Gavin while resisting arrest; the Court 

declines to construe his silence as an affirmative statement that he did not strike an officer. More 

to the point, any silence in the complaint about his own resistive conduct is not contradictory to 

his deposition testimony that Officer Gavin kicked him in the face several times after he was 

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subdued. Indeed, as in his deposition, Plaintiff alleged in his complaint that after the officers 

“placed [his] hands behind [his] back into hand cuffs,” he was “kicked [ ] in the face several 

times until [he] passed out.” Compl., ECF. No. 1-1 at 2. Therefore, Defendants’ argument does 

not alter the Court’s Heck analysis, and summary judgment is granted only in part on Heck

grounds, as described above.

2. “Objective Reasonableness”

As noted, for Plaintiff to withstand summary judgment on his excessive force claims, he 

“must show that a ‘seizure’ occurred and that it was unreasonable.” Abraham, 183 F.3d at 288. 

Defendants do not dispute that a seizure occurred, but argue that, even viewing the evidence in 

the light most favorable to Robinson, the record evidence fails to establish that the officers’ 

actions were objectively unreasonable. In determining whether the force used was objectively 

reasonable, the Court must pay careful attention to the pertinent facts and circumstances, 

including: the severity of the crime at stake, whether the suspect posed an immediate threat to the 

officers’ safety, and whether the individual actively resisted arrest or attempted to evade arrest 

by flight. See Graham, 490 U.S. at 396. In weighing these factors, “[t]he ‘reasonableness’ of a 

particular use of force must be judged from the perspective of a reasonable officer on the scene, 

rather than with the 20/20 vision of hindsight . . . [because] police officers are often forced 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. (citation omitted).

Because the Court has found that Heck limits Plaintiff’s claim against Officer Gavin to 

his post-handcuffing conduct, the following discussion will applies only to that aspect of the 

claim against Officer Gavin, along with the claim against Sergeant Andrews. Defendants hinge 

their argument on the following facts, which they contend are undisputed. Prior to their 

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altercations with Robinson, Defendants viewed Robinson as armed and dangerous. Robinson 

fled and struggled with them, and Robinson struck Officer Gavin, as he acknowledged in his plea 

acceptance. In addition, Robinson reached for his waist band to pull out a knife. Once Robinson 

reappeared from beneath the boardwalk, he fled from both officer and struggled with Sergeant 

Andrews, striking him with his elbow. According to Defendants, these facts demonstrate that the 

officers’ conduct was objectively reasonable under the circumstances.

This restatement of the facts is not completely undisputed, however. To be clear, 

Robinson has not pointed to evidence that would create a genuine issue of fact regarding the 

officers’ perception that he was armed and dangerous. Robinson has also acknowledged that he 

fled, resisted arrest, and “accidentally” struck the sergeant. Yet, there remains a genuine issue of 

fact as to whether Robinson reached for the knife during the initial altercation with Officer Gavin 

and/or during the altercation on the beach with both officers.6

 The genuine issue of fact is 

created by Robinson’s deposition testimony that he disclosed to Officer Gavin that he was 

carrying a knife, that the officer threatened to shoot him, and that the officer then kicked him 

down a flight of stairs. See Robinson Dep. dated June 24, 2013, ECF No. 74 at 49:10-25. 

Robinson has also created a genuine issue of fact with respect to whether he reached for his knife 

during the struggle with the sergeant. See id. at 65:24-72:20 (describing altercation with 

Sergeant Andrews and use of force by Officer Gavin). In addition, there are other factual 

disputes regarding whether Plaintiff fell down the stairs or was kicked down them by Officer 

Gavin, whether Officer Gavin stomped him on his chest while he was pinned down by Sergeant 

6 Although the Court has granted summary judgment to Officer Gavin on his prehandcuffing conduct, based on the Heck bar created by Robinson’s guilty plea to aggravated 

assault, the Court may still consider Plaintiff’s deposition testimony regarding the initial 

altercation with Officer Gavin as it relates to the reasonableness of Sergeant Andrew’s use of 

force.

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Andrews, and whether he was kicked by Officer Gavin after he was subdued. See id.

Resolving all factual disputes in Plaintiff’s favor, as this Court must on summary 

judgment, the relevant facts are that the officers believed Robinson was armed and dangerous, 

and that Robinson resisted and fled and struck Officer Gavin (as Robinson admitted in his plea). 

In response, according to Robinson’s deposition testimony, Officer Gavin kicked him in the face, 

repeatedly, after he was subdued. Id. at 73:12-74:5; id. at 81:5-7. Further, Sergeant Andrews 

punched him repeatedly in the groin area and forcibly held down his hands while pinning him in 

the sand. Id.at 66:17-67:13.

The question, then, is whether these facts could demonstrate that the officers’ actions 

were objectively unreasonable. The Court concludes that a reasonable jury faced with these facts 

could find that Officer Gavin’s post-handcuffing conduct was unreasonable. Robinson asserts 

that the officer kicked him after he was already subdued, handcuffed and unable to pose any 

threat to the officers’ safety. Even assuming Officer Gavin believed that Robinson might be 

carrying a gun, based on the citizen complaint from a few days prior, there was no objective, 

rational basis for the officer to assume that he or his fellow officers were still in danger once 

Robinson was subdued. 

Courts have denied summary judgment in such instances, and summary judgment is 

likewise not appropriate here for the officer’s post-handcuffing conduct. See, e.g., Suarez v. City 

of Bayonne, 566 F. App’x 181 (3d Cir. 2014) (reversing grant of summary judgment where 

plaintiff testified that he was handcuffed and hit by officers); Hare v. Woodhead, Civil Action 

No. 08–5894 (FLW), 2011 WL 1748469 (D.N.J. May 6, 2011) (denying summary judgment 

where issue of fact remained as to whether officer kicked and punched plaintiff after he was 

handcuffed). For example, in Couden v. Duffy, 446 F.3d 483 (3d Cir. 2006), the Court of 

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Appeals for the Third Circuit held that “the participation of so many officers and the use of 

mace, several guns pointed at [plaintiff's] head, and handcuffs constituted excessive force against 

a cooperative and unarmed subject” where “[t]here was no evidence that [plaintiff] was resisting 

arrest or attempting to flee.” Id. at 497. This same reasoning applies in this case.

Conversely, Sergeant Andrews is entitled to summary judgment on the claim against him. 

While Robinson testified that Andrews punched him repeatedly in the groin area, it is important 

to note that Robinson’s own deposition testimony establishes that he continued to actively resist 

the sergeant while he was pinned to the sand, believing that he was being attacked. Robinson

Dep. June 24, 2013, ECF No. 74 at 66:17-71:7. See id. at 69:17-20 (stating that he “was able to 

get [his] right hand free from the officer ....”) According to Robinson, it was not until after 

other officers arrived to assist Sergeant Andrews that Robinson was actually restrained and 

subdued. Id. at 71:22-72:20. Thus, this is not a case in which a suspect was punched in the groin 

while he was no longer resisting and did not pose a threat to the officers. Compare Johnson v. 

District of Columbia, 528 F.3d 969, 974-75 (D.C. Cir. 2008) (concluding that repeated kicks to 

groin area constituted excessive force even where suspect initially resisted arrest but was 

restrained at the time kicks were delivered); Kilmartin v. Schaffer, No. 9:12–CV–1167, 2013 WL 

5929447 (N.D.N.Y. Nov. 1, 2013) (denying summary judgment where plaintiff alleged that he 

was kicked in groin “without provocation” and there was no evidence that the plaintiff had 

resisted arrest). Accordingly, Plaintiff’s own testimony supports a finding that Sergeant 

Andrews acted with objective reasonableness, and the sergeant is entitled to summary judgment 

on the excessive force claim against him. See, e.g., Feldman v. Community Coll. of Allegheny, 

85 F. App'x 821 (3d Cir. 2004) (holding that wrestling plaintiff to the ground and kicking him in 

the head during the course of an arrest was objectively reasonable, in light of plaintiff’s 

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resistance to arrest and active struggle with the officers); cf. Hughes v. Smith, 237 F. App’x 756, 

759 (3d Cir. 2007) (affirming grant of summary judgment on eighth amendment excessive force 

claim where plaintiff asserted that officer put him in a headlock and punched him while he 

resisted arrest and scuffled with the officer). 

3. Qualified Immunity

Lastly, Defendants argue that they are entitled to qualified immunity. A police officer is 

entitled to qualified immunity if his “conduct does not violate clearly established statutory or 

constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 

457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). See also Reichle v. Howards, –––

U.S. ––––, 132 S.Ct. 2088, 2093, 182 L.Ed.2d 985 (2012). The qualified immunity analysis is 

two-pronged, considering “(1) whether the facts alleged by the plaintiff show the violation of a 

constitutional right; and (2) whether the right at issue was clearly established at the time of the 

alleged misconduct.” James v. City of Wilkes–Barre, 700 F.3d 675, 679 (3d Cir. 2012).

All that remains of Plaintiff’s claims is that aspect directed at Officer Gavin’s posthandcuffing conduct. Officer Gavin is not entitled to qualified immunity because there is a 

genuine issue of material fact as to whether he kicked Robinson in the face after he was 

subdued,

7 and in October 2010, it was clearly established that using force against a subdued

arrestee amounts to a constitutional violation. Accord Marshall v. Keansburg Burough, Civil 

Action No. 13–0533 (JAP), 2013 WL 6095475, at *7 (D.N.J. Nov. 20, 2013) (collecting cases); 

Hurt v. City of Atlantic City, No. 08–3053, 2010 U.S. Dist. LEXIS 16383, at *25–26, 2010 WL 

7 As explained in Giles v. Kearney, 571 F.3d 318, 327 n. 4 (3d Cir. 2009), denying 

summary judgment on qualified immunity grounds is appropriate in an excessive force case 

where “the disputed facts are material to the qualified immunity analysis.” Here, as in Giles, the 

“question of whether [the plaintiff] was . . . subdued . . . makes a difference as to whether a 

reasonable official would have considered the force used reasonable and necessary under the 

circumstances.” Id.

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703193 (D.N.J. Feb. 24, 2010) (concluding that, in 2006, a reasonable officer would have known

it to be unconstitutional to beat a plaintiff whom no longer posed a safety risk to the officers). 

While Officer Gavin contends that he did not kick Plaintiff once he was handcuffed, the Court 

must view the facts in the light most favorable to Plaintiff. Accordingly, Officer Gavin’s request 

for summary judgment on his post-handcuffing conduct, on qualified immunity grounds, is 

denied.

III. CONCLUSION

For the reasons above, Defendants’ motion for summary judgment is granted in part and 

denied in part, and Plaintiff’s cross-motion to stay is denied. An appropriate Order will follow.

/s/ Joel A. Pisano

JOEL A. PISANO, U.S.D.J.

Dated: September 18, 2014

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