NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

ANDREW HINTON,

 Plaintiff,

 v.

SGT JEFFREY WHITE, et al.,

 Defendants.

 CIVIL ACTION NO. 10-3902 (MLC)

 MEMORANDUM OPINION

COOPER, District Judge

The pro se plaintiff, prisoner Andrew Hinton, brings this 

action against the defendants, Sgt Jeffrey White and Officer 

Lorenzo Pettway of the Asbury Park Police Department Street Crimes 

Unit (“SCU”), pursuant to 42 U.S.C. § 1983. (See generally dkt. 

entry no. 1, Compl.) Hinton appears to allege that the defendants

violated his rights under the Fourth, Eighth, and Fourteenth 

Amendments of the United States Constitution. (See id. at 5, 7.) 

The defendants move for summary judgment in their favor and 

against Hinton. (See dkt. entry no. 19.)1 Hinton has not filed 

opposition to the Motion.2

 

1 The defendants actually move for relief pursuant to Federal 

Rule of Civil Procedure (“Rule”) 12(b)(6). (See Mot. at 1.) But 

the Motion rests on matters presented outside of the pleadings. 

(See, e.g., dkt. entry no. 19-4, White Cert.; dkt. entry no. 19-5, 

Pettway Cert.) The Court thus treats the Motion as one seeking 

relief pursuant to Rule 56. See Fed.R.Civ.P. 12(d).

2 The Motion’s return date was extended from August 20, 2012 

to October 15, 2012 to accommodate Hinton’s request for additional 

time to file opposition materials. (See dkt. entry no. 21, 8-17-12 

Order.) The 8-17-12 Order and related request demonstrate that 

Hinton knew of but failed to take the opportunity to oppose the 

Motion. (See id.)

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The Court now resolves the Motion without oral argument. 

See L.Civ.R. 78.1(b). The Court will (1) grant the Motion, and (2) 

enter judgment in the defendants’ favor and against Hinton.

STANDARD OF REVIEW

A district court may not grant an unopposed motion for summary 

judgment unless the movants demonstrate, “on the basis of what 

[they] put before the court”, that “the facts set forth in the 

motion entitle [them] to judgment as a matter of law.” Anchorage 

Assocs. v. V.I. Bd. of Tax Rev., 922 F.2d 168, 176 (3d Cir. 1990); 

see also Fed.R.Civ.P. 56(e)(3). However, the Court may deem the 

movants’ factual assertions to be undisputed. See Fed.R.Civ.P. 

56(e)(2); L.Civ.R. 56.1; Kelvin Cryosys., Inc. v. Lightnin, 252 

Fed.Appx. 469, 472 (3d Cir. 2007). 

Hinton has not disputed the material facts set forth by the 

defendants in the Statement of Undisputed Facts (“SOF”) or 

supporting materials. (See dkt. entry no. 19-3, SOF.) The Court 

thus deems those facts to be undisputed. See L.Civ.R. 56.1; Kelvin 

Cryosys., 252 Fed.Appx. at 472.3 The sole question remaining is 

whether the defendants are entitled to judgment as a matter of law. 

See, e.g., Anchorage Assocs., 922 F.2d at 176.

 

3 Even if the record contains facts supporting Hinton’s 

position, the burden is on Hinton, not the Court, to cull the 

record and affirmatively identify genuine, material factual issues

sufficient to defeat the Motion. See, e.g., Ebron v. Oxley, No. 

06-1938, 2007 WL 2140056, at *2 (D.N.J. July 24, 2007).

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BACKGROUND

Hinton’s claims rise from events taking place on March 17, 

2009. (See generally Compl.; see SOF at ¶ 2.) On that date, SCU 

members White and Pettway were patrolling an apartment complex in 

Asbury Park, New Jersey in an unmarked patrol car (“Police Car”). 

(See SOF ¶ 2.) SCU members routinely wear black shirts with the 

word “POLICE” appearing on both the front and back in large, yellow 

letters, and wear badges on neck chains. (See Pettway Cert., Ex. 

A, Pettway Report at 1; White Cert., Ex. A, White Report at 1.) 

White drove the Police Car. (See SOF at ¶ 2.)

During their patrol, White and Pettway saw Hinton and a male 

associate (“the Buyer”) engage in an apparent drug transaction. 

(Id. at ¶ 3.)4 Hinton saw the Police Car, said something to the 

Buyer, and began walking away from the Police Car. (See id.) The 

Buyer walked in the opposite direction. (See id. at ¶ 5.)

White yelled at Hinton to “stop” while Pettway exited the 

Police Car and questioned the Buyer. (See id. at ¶¶ 5-6.) Hinton 

disregarded White’s instruction and began to run from the Police 

Car. (See id. at ¶ 6.) He turned the corner and ran between a 

laundromat and an apartment building. (See id.)

White, who was still driving the Police Car, followed Hinton. 

(See id.) Hinton circled the playground and ran back to the 

 

4 White recognized Hinton from an earlier narcotics 

investigation and arrest. (See Pettway Report at 2; SOF at ¶ 4.)

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street, through the space between the laundromat and the apartment 

building. (See id. at ¶¶ 6-7.) White continued to follow him in 

the Police Car, and Pettway -- who had instructed the Buyer to 

leave the scene -- approached the space between the laundromat and 

the apartment building. (See id. at ¶¶ 6-8.) 

Pettway met Hinton near the laundromat and attempted to grab 

him by the collar. (See id. at ¶¶ 7-8; Pettway Cert. at ¶ 4.) But

Hinton pushed Pettway, spun away, and fell into the path of the 

oncoming Police Car. (See SOF at ¶ 8.) White saw Hinton fall, but 

was unable to fully brake before the Police Car struck Hinton. 

(See id.; White Cert. at ¶ 6.)

Pettway approached Hinton and saw him throw several bundles of 

heroin under the Police Car and into the sewer drain. (See SOF at 

¶ 11.) He and White worked together to handcuff Hinton. (See id.) 

White then retrieved those bundles that were thrown under the 

Police Car. (See id. at ¶ 12; White Cert. at ¶ 9.) He also 

attempted to search Hinton, but Hinton began to scream. (See SOF 

at ¶ 12.) White thus called for an ambulance. (See id.)

The ambulance transported both Hinton and White to Jersey 

Shore University Medical Center, where hospital staff removed 

Hinton’s clothing and treated his wounds. (See id. at ¶ 13.) 

Hinton’s treating physician determined that Hinton broke a small 

bone in his lower leg, and urinalysis demonstrated the presence of 

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marijuana and cocaine. (See id.) Police discovered three more 

bundles of heroin and $217 in Hinton’s jacket. (See id.)

Hinton was charged with, inter alia, a third-degree violation 

of N.J.S.A. § 2C:35-7 for possession with the intent to distribute 

a controlled dangerous substance within one thousand feet of a 

school. (See id. at ¶ 14; White Cert., Ex. C, Offender Details at 

1.) He was sentenced to a mandatory minimum term of three years. 

(See id. at ¶ 15; White Cert., Ex. C, Offender Details at 1.)

Hinton thereafter commenced the action. (See generally

Compl.) He alleges that Pettway and White “used the means of 

excessive force to arrest on an illegal search and seizure”, and 

that “Officer Pettway illegally searched me after Sgt Jeffrey White 

ran me over” and that the search occurred while he “was in dire 

need of medical attention.” (Id. at 5, 7.) Hinton explicitly 

alleges that Pettway and White: (1) used excessive force when 

attempting to apprehend Hinton; (2) violated his right to be 

free of illegal search and seizure under the Fourth Amendment; 

(3) violated his “Eighth Amendment Rights of Cruel and Unusual 

Punishment”; and (4) violated his right to due process under the 

Fourteenth Amendment. (Compl. at 5.)5 

 

5 Hinton actually alleges a violation of his “1st and 14th

Amendment Rights of Due Process”. (Compl. at 5.) Because the 

facts underlying the action do not support a claim under the First 

Amendment, the Court will not further comment on or analyze 

Hinton’s reference to the First Amendment.

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DISCUSSION

The Motion rests on two grounds. Pettway and White first 

argue that they are entitled to qualified immunity. (See dkt. 

entry no. 19-2, Br. in Supp. at 7-13.) They also argue that 

Hinton’s claims sounding in illegal search and seizure are barred 

by the Heck doctrine. (See id. at 13-14.) See Heck v. Humphries,

512 U.S. 477 (1994). The Court will address both arguments.

I. The Heck Doctrine

The defendants argue that the Heck doctrine bars Hinton’s 

Fourth Amendment claim of illegal search and seizure. (Br. in 

Supp. at 13-14.) The United States Court of Appeals for the Third 

Circuit (“Third Circuit”) has summarized the doctrine.

In Heck, the Supreme Court announced that “in order to 

recover damages for . . . harm caused by actions whose 

unlawfulness would render a conviction or sentence 

invalid,” the plaintiff must, as a threshold matter, 

show that there has been a “favorable termination” of 

his prior proceedings by demonstrating that “the 

conviction or sentence has been reversed on direct 

appeal, expunged by executive order, declared invalid by 

a state tribunal authorized to make such determination, 

or called into question by a federal court’s issuance of 

a writ of habeas corpus.” 512 U.S. at 486–87, 114 S.Ct. 

2364. As the United States Court of Appeals for the 

Second Circuit has explained, the Supreme Court's 

rationale in Heck “was based, in part, on a desire to 

‘avoid [ ] parallel litigation over the issues of 

probable cause and guilt,’ prevent ‘the creation of two 

conflicting resolutions arising out of the same or 

identical transaction,’ and preclude ‘a convicted 

criminal defendant [from making a] ... collateral attack 

on the conviction through the vehicle of a civil suit.’” 

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Huang v. Johnson, 251 F.3d 65, 73 (2d Cir. 2001) 

(quoting Heck, 512 U.S. at 484, 114 S.Ct. 2364). 

Royal v. Durison, 254 Fed.Appx. 163, 165 (3d Cir. 2007).

This action presents a textbook application of the Heck 

doctrine. Hinton has failed to present evidence demonstrating that 

the criminal charges related to the action (i.e., those arising 

from his March 17, 2009 arrest) ended in a favorable termination. 

See Royal, 254 Fed.Appx. at 165. The Heck doctrine thus bars 

Hinton from now raising his Fourth Amendment claim of illegal 

search and seizure, which, if proven, could call into question the 

validity of the related state criminal conviction. See Heck, 512 

U.S. at 486-87; Royal, 254 Fed.Appx. at 165. A contrary holding 

would impermissibly allow Hinton to collaterally attack that

conviction. See Heck, 512 U.S. at 484; Huang, 251 F.3d at 73. 

II. The Doctrine of Qualified Immunity

The Third Circuit has recently summarized the doctrine of 

qualified immunity.

The doctrine of qualified immunity insulates 

government officials who are performing discretionary 

functions “from liability for civil damages insofar as 

their 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). 

The Supreme Court has established a two-part analysis 

that governs whether an official is entitled to 

qualified immunity. Saucier v. Katz, 533 U.S. 194, 201, 

121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). We ask: (1) 

whether the facts alleged by the plaintiff show the 

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violation of a constitutional right; and (2) whether the 

right at issue was clearly established at the time of 

the alleged misconduct. Id.; Kelly v. Borough of 

Carlisle, 622 F.3d 248, 253 (3d Cir. 2010). Courts may 

address the two Saucier prongs in any order, at their 

discretion. Pearson v. Callahan, 555 U.S. 223, 236, 129 

S.Ct. 808, 172 L.Ed.2d 565 (2009). 

James v. City of Wilkes-Barre, No. 11-3345, 2012 WL 5954632, at *3

(3d Cir. Nov. 29, 2012). If Hinton has failed to satisfy either 

prong, then the defendants are entitled to judgment as a matter of 

law. See id. (citing Pearson, 555 at 232).

The first question of the Saucier analysis is whether a 

constitutional violation occurred. This “is not a question of 

immunity, but whether there is any wrong to address.” James, 2012 

WL 5954632, at *2 (quoting Ray v. Twp. of Warren, 626 F.3d 170, 174 

(3d Cir. 2010)). Here, the remaining claims raise issues 

concerning (1) the alleged use of excessive force, in violation of 

the Fourth Amendment; (2) the alleged deprivation of Hinton’s right 

to substantive due process under the Fourteenth Amendment; and 

(3) Hinton’s right to be free from cruel and unusual punishment 

under the Eighth Amendment. (See Compl. at 5, 7.)

A. The Excessive Force Claim

A plaintiff will prevail on an excessive force claim if he 

demonstrates that: (1) a seizure occurred; and (2) the seizure was 

unreasonable under the circumstances. See Brower v. Cnty. of Inyo,

489 U.S. 593, 599 (1989); Lamont v. New Jersey, 637 F.3d 177, 182-

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83 (3d Cir. 2011). “As in other Fourth Amendment contexts, 

however, the ‘reasonableness’ inquiry in an excessive force case is 

an objective one: the question is whether the officers’ actions are 

‘objectively reasonable’ in light of the facts and circumstances 

confronting them, without regard to their underlying intent or 

motivation.” Graham v. Connor, 490 U.S. 386, 397 (1989). 

“Determining whether the force used to effect a particular 

seizure is ‘reasonable’ . . . requires . . . 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.” Brown v. Cwynar, No. 11-1948, 2012 WL 2045764, 

at *3 (3d Cir. June 7, 2012) (quoting Graham, 490 U.S. at 396). In 

evaluating reasonableness, the Court must consider the fact that 

“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.” Graham, 490 U.S. at 397. Thus, “[t]he reasonableness 

of a particular use of force must be judged from the perspective of 

a reasonable officer on the scene; Monday morning quarterbacking is 

not allowed.” Lamont, 637 F.3d at 183 (citation omitted) (internal 

quotation marks omitted); see also Carswell v. Bor. of Homestead,

381 F.3d 235, 240 (3d Cir. 2004) (“Reasonableness is to be 

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evaluated from the perspective of a reasonable officer on the 

scene, rather than with the 20/20 vision of hindsight.”)

The Court has thus reviewed the undisputed facts underlying 

the action from “the perspective of a reasonable officer on the 

scene”, and considered “whether the officers’ actions were 

‘objectively reasonable’ in light of the facts and circumstances 

confronting them”. Graham, 490 U.S. at 397; Lamont, 637 F.3d at 

183. The Court concludes that both defendants are entitled to 

judgment on the Excessive Force Claim in their favor and against 

Hinton.

The Excessive Force Claim, insofar as it is raised against 

Pettway, appears to relate to the moment when he grabbed (or 

attempted to grab) Hinton by the collar. (See SOF at ¶ 7.) The 

Court considers the following facts to be relevant. On the night 

in question, the defendants saw Hinton -- an individual known from 

past narcotics investigations -- participate in an apparent drug 

transaction. (See id. at ¶ 3.) When the defendants attempted to 

speak to or otherwise detain Hinton, he fled from the scene. 

(See id. at ¶¶ 5-8.) It thus appears as a matter of law that: 

(1) Pettway was aware that Hinton engaged in serious criminal 

activity; and (2) Hinton attempted to evade Pettway by flight. 

(See id. at ¶¶ 3, 5-8.) Under those circumstances, Pettway used 

justifiable force when grabbing (or attempting to grab) Hinton’s 

collar, to detain him. See Brown, 2012 WL 2045764, at *3; cf.

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Davis v. Beers, 421 Fed.Appx. 179, 180-81 (3d Cir. 2011) (federal

agent did not use excessive force when striking a fugitive “who had 

fled from a prosecution for serious drug charges”); Gannaway v. 

Karetas, 438 Fed.Appx. 61, 67 (3d Cir. 2011) (police used 

reasonable force when chasing after and tackling suspect who 

committed a “severe” crime and then fled from the police).

The Excessive Force Claim, insofar as it is raised against 

White, relates to the moment when the Police Car struck Hinton. 

(See Compl. at 5, 7; SOF at ¶ 8.) The Court is mindful that White, 

like Pettway, was reacting to circumstances in which: (1) he was 

aware that Hinton engaged in serious criminal activity; and 

(2) Hinton attempted to flee from the police. (See SOF at ¶¶ 3, 

5-8.) The Court also considers it highly relevant that Hinton, in 

his efforts to evade detention: (1) pushed Pettway; (2) spun away 

from Pettway; and (3) stumbled into the path of the moving Police 

Car. (Id. at ¶ 8.) The undisputed facts demonstrate that White 

attempted to stop the Police Car before it struck Hinton. (Id.; 

White Cert. at ¶ 6.) 

The Court is mindful police officers “are often forced to make 

split-second judgments -- in circumstances that are tense, 

uncertain, and rapidly evolving”. Graham v. Connor, 490 U.S. at 

397. White was forced to make such a judgment. While driving the 

Police Car in pursuit of Hinton -- a suspect who fled the scene of 

a serious crime, and continued to actively evade police custody --

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he saw Hinton stumble into the path of the Police Car. (See SOF at 

¶¶ 3, 5-8.) White then attempted to do something objectively 

reasonable; he attempted to stop the car before it struck Hinton. 

(See id. at ¶ 9.) See Lamont, 637 F.3d at 183 (question before the 

Court is whether defendant officer’s actions were objectively 

reasonable in light of the facts and circumstances confronting 

him). The fact that White could not fully stop the Police Car 

before it struck Hinton does not render his actions unreasonable, 

and does not transform the incident from an unfortunate accident 

into a cognizable constitutional claim.

B. The Cruel and Unusual Punishment Claim

It appears that the Cruel and Unusual Punishment Claim relates 

to the Police Car striking Hinton, and Hinton’s resultant injuries. 

(See Compl. at 7.) Hinton alleges in the Complaint that: 

I was run over from behind . . . [.] When I awoke I had 

no leg movement and bruises and abrasions. . . . 

[N]umerous officers . . . were trying to move me when I 

was in dire need of medical attention. One of my legs 

where [sic] severely broken while the other was bruised 

and contused due to injury[.]

(Id.) However, Hinton is ineligible for relief under the Eighth 

Amendment. 

Eighth Amendment scrutiny is appropriate only after 

the State has complied with the constitutional 

guarantees traditionally associated with criminal 

prosecutions. . . . [T]he State does not acquire the 

power to punish with which the Eighth Amendment is 

concerned until after it has secured a formal 

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adjudication of guilt in accordance with due process of 

law. 

City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983) 

(citation omitted); see Navolio v. Lawrence Cnty., 406 Fed.Appx. 

619, 622 (3d Cir. 2011)

Because there had been no formal adjudication of guilt against 

Hinton at the time he required medical care, the Eighth Amendment 

does not apply to the action. See City of Revere, 463 U.S. at 244. 

The Court will thus grant judgment on the Cruel and Unusual 

Punishment Claim against Hinton and in the defendants’ favor.

C. The Substantive Due Process Claim

It appears, however, that Hinton’s allegations relating to his 

wounds and need for treatment are properly considered as a 

substantive due process claim. See id.; A.M. ex rel. J.M.K. v. 

Luzerne Cnty. Juv. Det. Ctr., 372 F.3d 572, 584 (3d Cir. 2004.) 

Failure to provide medical treatment to an individual in police 

custody may constitute a violation of the individual’s Fourteenth 

Amendment rights. See Groman v. Twp. of Manalapan, 47 F.3d 628, 

637 (3d Cir. 1995). But such a failure only rises to the level of 

a constitutional violation if it demonstrates a deliberate 

indifference to the individual’s serious medical needs. See id.

The undisputed facts demonstrate that the defendants were not 

deliberately indifferent to Hinton’s medical needs. After the 

Police Car struck Hinton, both the defendants handcuffed Hinton, 

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secured bundles of heroin that Hinton had thrown away from his 

person, and attempted to search his body. (See SOF at ¶¶ 11-12.) 

At that point, Hinton began to scream, and White requested an 

ambulance. (See id. at ¶ 12.) Because the undisputed facts 

demonstrate that the defendants ceased their search and called for 

an ambulance when it was apparent that Hinton was injured, the 

Court concludes that they did not act with deliberate indifference. 

Cf. Groman, 47 F.3d at 637 (“The record clearly establishes that 

the police offered [the plaintiff] medical assistance . . . . 

Defendants were not deliberately indifferent to [the plaintiff’s] 

medical needs.”).

CONCLUSION

The Court, for the reasons stated above, will: (1) grant the 

Motion; and (2) enter judgment in favor of the defendants and 

against Hinton on all counts. The Court will issue a separate 

Order and Judgment.

 s/ Mary L. Cooper .

MARY L. COOPER

United States District Judge

Date: December 6, 2012

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