NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

________________________________

 :

NICHOLAS PAPPAS, :

: Civil Action No. 10-3327 (RBK)

Plaintiff, :

:

v. : O P I N I O N

:

LEONARD ZACAMY, et al., :

 :

Defendants. :

________________________________:

APPEARANCES:

Nicholas Pappas, Pro Se

#549894/512524D

New Jersey State Prison

P.O. Box 861

Trenton, NJ 08625

Anne E. Walters, Esq.

Shimberg & Friel

20 Brace Road, Suite 350

Cherry Hill, NJ 08034

Attorney for Defendant Robert Kraft

KUGLER, District Judge

Plaintiff, Nicholas Pappas, currently incarcerated at the

New Jersey State Prison, Trenton, New Jersey, filed a complaint

under 42 U.S.C. § 1983, alleging that defendants violated his

constitutional rights by engaging in excessive force during the

course of his arrest.

Defendant Robert Kraft was served with the complaint on

January 4, 2011 (see docket entry 14). On February 8, 2011,

counsel for defendant Kraft filed a motion to dismiss the

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complaint as to defendant Kraft, in lieu of an answer, which

remains pending (docket entry 21). Plaintiff has not opposed the

motion. The Court has reviewed defendant Kraft’s submission and

decided the motion without oral argument pursuant to Federal Rule

of Civil Procedure 78. For the following reasons, the motion

will be denied.

BACKGROUND

The following facts are taken from Plaintiff’s complaint. 

Plaintiff states:

On July 15 , 2008, I, Nicholas Pappas, was th

involved in a brief car pursuit by patrolman Leonard

Zacamy of the Haddon Twp PD and Robert Kraft of the

Gloucester City PD.

This pursuit ended on the same block in which it

began, after I lost control of the car I was driving

and hit a bus. I could not exit through the driver’s

side door and so I climbed out of the sun-roof of the

vehicle. Once I was out of the vehicle and on the

ground, I responded to an order by Patrolman Zacamy to

raise my hands in the air. I was directly in front of

the bus I hit and went no further. By now, Patrolman

Robert Kraft was assisting Zacamy. I complied by

raising my hands and awaiting further orders. Zacamy

then came up behind me and choked me, punched me, and

slammed me into the concrete, even though I did not

resist in any way. Zacamy punched me repeatedly in my

face and would not stop. The only move I made was to

put my hands to protect my bleeding face. Zacamy

cuffed my hands behind my back and even after that

continued to beat me. The bus driver, along with

several passengers were yelling at Zacamy to stop. 

Officer Kraft made no moves to make Zacamy stop. 

Zacamy charged me with resisting arrest to justify

beating me. Zacamy and Kraft also stated in their

reports that I ran from them, But I was apprehended 5

feet away from the vehicle I was driving, in front of

the bus I hit (the vehicle hit the front side tire of

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the bus). Zacamy beat me so bad that he himself had to

get medical treatment for his hands.

Zacamy also stated that I was throwing packets of drugs

during the foot pursuit, when in fact the drugs were found

on my person in my cigarette pack, and 1 inside the vehicle

I was driving. Zacamy has caused me nerve damage and loss

of feeling in my face, and thousands of dollars worth of

hospital bills for past and present treatments.

See Complaint, ¶ 10. Besides charging defendant Kraft with

violating his constitutional rights with regard to the pursuit

and alleged beating, Plaintiff also accuses defendant Kraft of

“failing to admit pertinent details of apprehension conduct of

Officer Zacamy (ASSAULT) failing to complete truthful reports of

apprehension methods.” See Complaint, ¶ 4(c). Plaintiff asks

for monetary and other relief. See Complaint, ¶ 13.

DISCUSSION

A. Standard of Review

Under Federal Rule of Civil Procedure 12(b)(6), a court may

dismiss an action for failure to state a claim upon which relief

can be granted. With a motion to dismiss, “‘courts accept all

factual allegations as true, construe the complaint in the light

most favorable to the plaintiff, and determine whether, under any

reasonable reading of the complaint, the plaintiff may be

entitled to relief.’” Fowler v. UPMC Shadyside, 578 F.3d 203,

210 (3d Cir. 2009) (quoting Phillips v. Cnty. of Allegheny, 515

F.3d 224, 233 (3d Cir. 2008)). In other words, a complaint

survives a motion to dismiss if it contains sufficient factual

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matter, accepted as true, to “state a claim to relief that is

plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007).

In making that determination, a court must conduct a

two-part analysis. See Ashcroft v. Iqbal, ––– U.S. ––––, –––– –

––––, 129 S. Ct. 1937, 1949–50 (2009); Fowler, 578 F.3d at

210–11. First, the court must separate factual allegations from

legal conclusions. See Iqbal, 129 S. Ct. at 1949. “Threadbare

recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” Id. Second, the court

must determine whether the factual allegations are sufficient to

show that the plaintiff has a “plausible claim for relief.” Id.

at 1950. Determining plausibility is a “context-specific task”

that requires the court to “draw on its judicial experience and

common sense.” Id. A complaint cannot survive where a court can

only infer that a claim is merely possible rather than plausible.

See id.

B. 42 U.S.C. § 1983

A plaintiff may have a cause of action under 42 U.S.C.

§ 1983 for certain violations of his or her constitutional

rights. Section 1983 provides in relevant part:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State

or Territory ... 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

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Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity, or other

proper proceeding for redress ... .

Thus, to establish a violation of 42 U.S.C. § 1983, a plaintiff

must demonstrate that the challenged conduct was committed by (1)

a person acting under color of state law and (2) that the conduct

deprived him of rights, privileges, or immunities secured by the

Constitution or laws of the United States. See Parratt v.

Taylor, 451 U.S. 527, 535 (1981), overruled in part on other

grounds by Daniels v. Williams, 474 U.S. 327 (1986); Adickes v.

S.H. Kress & Co., 398 U.S. 144, 152 (1970); Piecknick v.

Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir. 1994). 

C. Analysis

A claim of excessive force by law enforcement officials in

the course of an arrest, investigatory stop, or other seizure of

a free citizen is analyzed under the Fourth Amendment's

reasonableness standard. See Graham v. Connor, 490 U.S. 386, 395

(1989); Nelson v. Jashurek, 109 F.3d 142, 145 (3d Cir. 1997);

United States v. Johnstone, 107 F.3d 200, 204 (3d Cir. 1997). 

The reasonableness inquiry 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, 490

U.S. at 397; see also Mosley v. Wilson, 102 F.3d 85, 94 (3d Cir.

1996); Baker v. Monroe Tp., 50 F.3d 1186, 1193 (3d Cir. 1995). 

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It "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." 

Graham, 490 U.S. at 396.

Furthermore, a police officer may be liable under section

1983 for violating an individual’s Eighth Amendment rights if the

officer fails to intervene and take reasonable steps when an

individual is subjected to excessive force at the hands of

another officer, even if that officer is a superior. See Smith

v. Mensinger, 293 F.3d 641, 650 (3d Cir. 2002)(citing Byrd v.

Clark, 783 F.2d 1002, 1007 (11th Cir. 1986)(other citations

omitted)). However, the officer must have a "realistic and

reasonable opportunity to intervene." Id. at 651 (citing Clark,

783 F.2d at 1007 (instructing the district court upon remand to

determine whether the officer was in a position to intervene);

Byrd v. Brishke, 466 F.2d 6, 11 (7th Cir. 1972)(liability for

failure to intervene exists only if the beating occurred in the

officer's presence or was otherwise within his knowledge); Putman

v. Gerloff, 639 F.2d 415, 423-24 (8th Cir. 1981)(liability exists

only if the non-intervening officer saw the beating or had time

to reach the offending officer)).

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Here, Defendant Kraft argues that the complaint should be

dismissed because Plaintiff has failed to state a claim upon

which relief may be granted, or because defendant Kraft is

entitled to qualified immunity for his actions. Defendant Kraft

cites the police reports attached to Plaintiff’s complaint for

the proposition that “the actions of the police officers were

reasonable because the Plaintiff actively resisted arrest and/or

attempted to evade arrest by running.” (Brief, p. 7). Defendant

argues that “there is no evidence whatsoever that Defendant

violated any of Plaintiff’s rights. Defendant Kraft pursued the

Plaintiff’s vehicle and assisted with his arrest. Defendant

Zacamy’s Report states that the Plaintiff fled on foot after

striking two vehicles. Accordingly, Plaintiff’s civil rights

claim must fail.” (Brief, p. 8). 

This Court disagrees. At this stage of litigation, where

discovery has not been conducted and where Plaintiff’s complaint

disputes the statements made in the police report, dismissal is

not proper. The argument that Kraft pursued the vehicle and

assisted with the arrest may be accurate. Nonetheless,

Plaintiff’s claim is that Defendant Kraft stood by and watched as

Defendant Zacamy assaulted him. Whether or not Plaintiff fled is

a matter for discovery, which Plaintiff’s complaint disputes. 

Plaintiff states in his complaint that he did not flee, and that

the reports are inaccurate. Thus, whether or not the actions of

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the officers were “reasonable” in order to justify the force

used, or warrant qualified immunity, cannot be determined from

the complaint. Nor can the issue of whether Officer Kraft failed

to intervene be determined at this stage in litigation.

This Court finds that Plaintiff has stated enough facts to

withstand the motion to dismiss. Under Iqbal, Plaintiff has pled

factual allegations sufficient to show that the plaintiff has a

“plausible claim for relief.”

CONCLUSION

For the foregoing reasons, Defendant Kraft’s motion to

dismiss is denied and Defendant Kraft will be ordered to answer

the allegations of the complaint. An appropriate Order

accompanies this Opinion.

s/Robert B. Kugler 

ROBERT B. KUGLER

United States District Judge

Dated: September 28, 2011

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