NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

ROBERT KWIATKOWSKI,

Civil Action No. 11-3218 (JLL) (MAH)

Plaintiff,

v. I OPINION

CITY OF PATERSON, et al.

Defendants.

LINARES, District Judge.

This matter comes before the Court by way of Defendants Officer Jason English

(“Officer English”) and City of Paterson’s motions for summary judgment pursuant to Federal

Rule of Civil Procedure 56. The Court has considered the submissions made in support of and in

opposition to the instant motions and decides this matter without oral argument pursuant to

Federal Rule of Civil Procedure 78. For the reasons set forth below, Defendant Officer English’s

motion is DENIED and Defendant City of Paterson’s motion is GRANTED.

1. BACKGROUND

This Section § 1983 action centers on Robert Kwiatkowski (“Plaintiff’) and Defendants’

conflicting accounts of Defendant Officer English’s pursuit and subsequent arrest of Plaintiff on

September 9, 2010. The parties do not dispute that on that date, Plaintiff was on the sidewalk

near 709 East 18th Street, Paterson, New Jersey when Officer English questioned Plaintiff from

his police car. Def. Officer English’s 56.1 Stmt. ¶ 1, ECF No. 45. They also do not dispute that

Plaintiff next attempted to flee from Officer English on his bicycle. Id. at ¶ 2-3. However, the

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parties dispute almost all other facts concerning Officer English’s pursuit and arrest of Plaintiff.

Their accounts follow.

A. Plaintiffs Account’

Plaintiffmaintains that he first encountered Defendant Officer English after exiting a

restaurant with a cup of coffee, placing his leaf blower on his back, and preparing to ride his

bicycle. PL’s Decl. ¶ 3, ECF No. 49-1; P1. Dep. 28:21—29:2, 93:17—24, December 28, 2012, ECF

No. 44; Pl.’s Resp. to Defs.’ Interrog. No. 2, ECF No. 45. Officer English, alone at that time,

drove alongside Plaintiffin his police car and questioned him. Pl.’s Decl. ¶J 3-4; P1. Dep.

36:24—37:1. Plaintiffreacted by riding his bicycle down the sidewalk. P1. Dep. 38:1—7. Officer

English followed Plaintiff in his police car and repeatedly instructed Plaintiffto pull over. Pl.’s

Deci. ¶ 4. However, Plaintiff did not stop. Id. at ¶ 5. According to Plaintiff: “I thought I had a

warrant, or some old fines, I did not want to go to Jail. . . .“ Id. Plaintiff eventually got off of

his bicycle, dropped his leaf blower, ran, and hopped a fence. P1.’s Decl. ¶ 6; P1. Dep. 95:12—16.

In response, Officer English exited his police car and chased Plaintiff on foot. P1. Dep. 38:16—

23. Officer English allegedly cut his hand while hopping the same fence. Id. at 38:23—39:1.

After some time, Plaintiffstopped running and hid beneath a tarp draped over a car in a vacant

lot. Id. at 41 :20—42:16.

Officer English did not order Plaintiffto come out from beneath the tarp. Pl.’s Deci. ¶ 7;

P1.’s Resp. to Defs.’ Interrog. No. 4. Instead, he hit Plaintiffs head twice without warning. P1.

Dep. 45:12—46:1. Because the tarp obstructed Plaintiffs view, Plaintiff did not see Officer

English deliver the first blow and is uncertain whether Officer English used his police radio or

nightstick to do so. Id. at 44:20—24, 45:23—46:1. This first blow, however, caused Plaintiffto

l Plaintiff’s account is drawn from his declaration, deposition, and interrogatories, all of which have been sworn to

or submitted under oath. The Court notes that these documents are largely consistent.

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fall to the ground and roll out from beneath the tarp, enabling him to see Office English deliver

the second blow. Id. at 46:13—19. These blows to Plaintiffs head caused severe lacerations.

Pl.’s Decl. ¶ 7. Plaintiff maintains that he neither bit nor touched Officer English and that there

was no struggle between them. P1. Dep. 46:8—11, 50:11—17. Plaintiff and Officer English were

not alone at the scene. See id. at 46:17—19. Officer Otero was there with them and, according to

Plaintiff, told Officer English to stop hitting Plaintiff after the second blow. Id.\

The Officers handcuffed Plaintiff after subduing him. Id. at 46:20—24. They then

dragged Plaintiff a couple of feet before lifting him up, causing his knees to scrape against rocks

on the ground. Id. at 51:20—52:2. Emergency medical technicians later arrived at the scene and

bandaged Plaintiff’s head. Id. at 46:23—24. Another officer then transported Plaintiffto St.

Joseph’s Hospital, where doctors placed staples in his head. Id. at 49:4—14, 51:6—10. Officers

English and Otero stayed with Plaintiffin the hospital. Id. at 53:3—10. Plaintiff contends that

while there, Officer English threatened him about what to say: “He wanted me to say I bit him.

I didn’t bite him. [He] did that jumping over the fence and. . . trac[ing] the spoon on [his]

hand.” Id. at 70:17—71:4. After the hospital released Plaintiff, he was taken to the police station

and arraigned. See id. at 54:17—22. Plaintiffwas taken to the county jail the next day. Id.

B. Defendant Officer English’s Account 2

Defendant Officer English maintains that he first encountered Plaintiff while driving

down East 18th Street in his police car. Def. Officer English’s 56.1 Stmt. ¶ 1. At that moment,

Plaintiff was on the sidewalk carrying a leaf blower. Id. As Officer English approached

Plaintiff, he noted that his presence made Plaintiff nervous. Id. Officer English asked Plaintiffif

he lived in the area. Id. Plaintiff answered “no.” Id. Officer English then advised Plaintiffthat

he had more questions. Id. Rather than answer them, Plaintiff got on his bicycle with the leaf

2 Defendant Officer English’s account is drawn from his Section 56.1 Statement.

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blower and rode down 18th Street. Id. at ¶2. Plaintiff ignored Officer English’s order to stop,

and Officer English pursued Plaintiff. Id. at ¶J 2-3. During the pursuit, Plaintiff dropped his

bicycle and leaf blower in a vacant lot and ran. Id. at ¶ 3. He then jumped over a fence and ran

through private yards. Id. Officer English reported his location and a description of Plaintiff to

police dispatch while pursuing Plaintiff. Id.

Eventually, Officer English caught up with Plaintiffin a vacant lot and attempted to

arrest him. Id. at ¶ 4. Plaintiff resisted arrest and, as a result, there was a brief struggle between

them. Id. During the struggle, they both fell to the ground. Id. Plaintiff bit Officer English’s

wrist and scratched his arm while attempting to escape his grasp. Hunt Certification, Ex. G, Def.

Officer English’s Offense Report, ECF No. 45. Plaintiffsustained “a minor laceration to his

head which appear[ed] to be caused by a jagged rock he struck when tackled to the ground.” Id.

St. Joseph’s Hospital subsequently treated Plaintiff and Officer English’s injuries. Id.

Thereafter, Plaintiff was charged with aggravated assault, resisting arrest, and trespassing. Id.

C. Procedural Background

Plaintifffiled this § 1983 action against Defendants in the Superior Court of New Jersey,

Passaic County, on February 24, 2011. State Ct. Compl., ECF No. 1-i. Plaintiff proceeds pro se

and is currently a prisoner at South Woods State Prison in Bridgeton, New Jersey. Defendants

removed this action to this Court on June 1, 2011. Notice of Removal, ECF No. 1. The Court

has jurisdiction over this action pursuant to 28 U.S.C. § 1331. Defendants now motion for

summary judgment. Def. City of Paterson’s Mot. for Summ. J., ECF No. 44; Def. Officer

English’s Mot. for Summ. J., ECF No. 45.

II. LEGAL STANDARD

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A court shall grant summary judgment under Rule 56 of the Federal Rules of Civil

Procedure ifthe materials in the record show that there is “no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter oflaw.” Fed. R. Civ. P. 56(a). On a

summary judgment motion, the moving party must first show that there is no genuine dispute of

material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the

nonmoving party to present evidence that a genuine dispute ofmaterial fact compels a trial.

Ridgewood Rd. ofEduc. 1’. N.E. ex rel. ME., 172 F.3d 238, 252 (3d Cir. 1999) (citations

omitted). To do so, the nonmoving party must offer specific facts that establish such an issue,

and may not simply rely on unsupported assertions, bare allegations, or speculation. Id. (citation

omitted). The Court must consider all facts and the reasonable inferences therefrom in the light

most favorable to the nonmoving party. Pennsylvania Coal Ass ‘n v. Babbitt, 63 F.3d 231, 236

(3d Cir. 1995).

III. DISCUSSION

The Court begins by noting that Plaintiff’s Complaint alleges that Defendant Officer

English unnecessarily hit Plaintiff’s head with his police radio causing “a deep laceration that

required medical attention and several staples to close the wound.” Since Plaintiff proceeds pro

se, the Court must liberally construe his Complaint. See, e.g., Higgs v. Attorney Gen., 655 F.3d

333, 339 (3d Cir. 2011) (citations omitted) (“The obligation to liberally construe apro se

litigant’s pleadings is well-established.”). This obligation requires the Court “to apply the

relevant legal principle even when the complaint has failed to name it.” Mala v. Crown Bay

Marina, Inc., 704 F.3d 239, 244 (3d Cir. 2013) (citing Diuhos v. Strasberg, 321 F.3d 365, 369

(3d Cir. 2003)). Accordingly, the Court construes Plaintiff’s Complaint as claiming that Officer

English used excessive force to arrest Plaintiff and, thus, violated Plaintiff’s Fourth Amendment

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right to be free from unreasonable seizure. The Court also construes Plaintiffs Complaint as

claiming that Defendant City of Paterson’s complicity resulted in said constitutional violation.

This Court assesses both claims pursuant to 42 U.S.C. § 1983.

To recover under § 1983, Plaintiff “must establish that the defendant acted under color of

state law to deprive [him] of a right secured by the Constitution.” Malleus v. George, 641 F.3d

560, 563 (3d Cir. 2011) (citations omitted). Here, the parties do not dispute that Officer English

acted under color ofstate law as an officer of the Paterson Police Department. At issue is

whether there are genuine disputes of material fact concerning Officer English’s purported

violation of Plaintiffs Fourth Amendment right to be free from unreasonable seizure and the

City of Paterson’s role in said violation.

A. Plaintiffs Fourth Amendment Claim Against Defendant Officer English

The Supreme Court has long recognized that an officer’s right to make an arrest

necessarily carries with it the right to use some degree of force. Graham v. Connor, 490 U.S.

386, 396 (1989) (citing Terry Ohio, 392 U.S. 1, 22-27 (1968)). However, an officer’s use of

force to effect an arrest is actionable under § 1983 when it is so excessive that it violates the

arrestee’s Fourth Amendment right to be free from unreasonable seizure. Groman v. Twp. of

Manalapan, 47 F.3d 628, 633-34 (3d Cir. 1995) (citing Brown v. Borough ofChambersburg, 903

F.2d 274, 277 (3d Cir. 1990)). Here, Plaintiff contends that Defendant Officer English’s actions

while arresting him—hitting his head with a police radio or nightstick without warning—passed

this threshold. See P1.’s Opp’n Br. 1, ECF No. 49. Conversely, Officer English maintains that

Section 1983 provides a remedy for the violation of constitutional rights. Oklahoma City v. Tuttle. 471 U.S. 808,

816 (1985) (plurality opinion). It provides:

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. . .

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this Court should grant summary judgment in his favor because he is entitled to qualified

immunity. Def. Officer English’s Br. 9-11. ECF No. 45.

Qualified immunity is “an entitlement not to stand trial or face the other burdens of

litigation.. . .“ Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Its availability to an officer

hinges on two questions. Pearson v. Callahan, 555 U.S. 223, 232 (2009) (citing Saucier v. Katz,

533 U.S. 194, 201 (2001)). The first question—the constitutional question—is “whether the

facts that a plaintiff has alleged or shown make out a violation of a constitutional right.”

Pearson, 555 U.S. at 232 (citations omitted); Southerland v. Pa., 389 Fed. App’x 166, 170 (3d

Cir. 2010). The second question—the qualified immunity question—is “whether the right at

issue was ‘clearly established’ at the time of defendant’s alleged misconduct.” Pearson, 555

U.S. at 232 (citation omitted); Southerland, 389 Fed. App’x at 170. The Court may consider

these questions in either order. Pearson, 555 U.S. at 236. The Court first addresses the

constitutional question.

1. The Constitutional Question: Whether Defendant Officer English

Violated Plaintiffs Fourth Amendment Right to be Free From

Unreasonable Seizure

Whether an officer’s use of force against an arrestee is excessive and, thereby, violates

the arrestee’s constitutional rights turns on “whether the officer’s actions are ‘objectively

reasonable’ in light of the facts and circumstances” known to the officer. Graham, 490 U.S. at

397 (citations omitted); see also Maryland v. Garrison, 480 U.S. 79, 85 (1987) (“[W]e must

judge the constitutionality of [the officers’] conduct in light ofthe information available to them

at the time they acted.”). At bottom, the constitutional question “focuses on the factual

circumstances of the incident and asks whether the officer made a reasonable mistake of fact.”

Curley v. Kiem, 499 F.3d 199, 215 (3d Cir. 2007). “A mistake of fact is an officer’s

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misperception ofthe circumstances by which he is surrounded.” Southerland, 389 Fed. App’x at

170 (citations omitted). Relevant factual circumstances include “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 (citing Tennessee v. Garner, 471 U.S. 1, 8-9 (1985). In assessing the relevant factual

circumstances, this Court must consider them and the reasonable inferences therefrom in the

light most favorable to Plaintiff, the nonmovant. Curley, 499 F.3d at 203; see also Scott v.

Harris, 550 U.S. 372, 378 (2007) (“In qualified immunity cases [on summary judgment], this

usually means adopting. . . plaintiff’s version of facts.”).

This Court begins by considering the severity ofthe crime at issue and whether Plaintiff

attempted to evade arrest by flight. Here, Plaintiff admits that he attempted to flee from Officer

English and, hence, resisted arrest. Pl.’s Deci. ¶ 5. Plaintiff’s admission, however, is not

dispositive. See Groman, 47 F.3d at 634 (concluding that resisting arrest was not a particularly

severe offense given the facts of that case). Plaintiff’s attempt to flee certainly did not afford

Officer English the right to restrain Plaintiff by any and all means. See Garner, 471 U.S. at 11

(“A police officer may not seize an unarmed, nondangerous suspect by shooting him dead.”).

The Court, accordingly, considers Officer English’s reaction to Plaintiff’s flight together with the

immediate threat that Plaintiff posed to Officer English and others. See Abraham v. Raso, 183

F.3d 279, 289 (3d Cir. 1999) (“How much force is permissible to effectuate an arrest. . . is

determined based on the ‘totality of the circumstances.”)

Plaintiff has sworn to five material facts which, if believed, could lead a reasonable jury

to conclude that Plaintiff posed no threat to Officer English or others and that Officer English

used excessive force to restrain Plaintiff. First, Plaintiff testified that he did not touch Officer

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English and that there was no physical struggle between them. P1. Dep. 50:14—20. Relatedly,

there is no evidence in the record suggesting that Officer English had a reason to believe that

Plaintiffwas armed. Second, Plaintifftestified that Officer English provided no warning before

striking his head. See id. at 43:18—20. Third, the magnitude of Officer English’s strikes to

Plaintiff’s head caused severe lacerations that required stiches. Pl.’s Deci. ¶J 7-8. Fourth,

Officer Otero was available as backup at the scene at the time. P1. Dep. 46:17— 19. Thus, help

was then available to Officer English had he resorted to less intrusive means to apprehend

Plaintiff Finally, Plaintifftestified that Officer English resorted to a particularly jarring method

to restrain Plaintiff—striking his head twice with a police radio or nightstick. P1. Dep. 45:23—

46:1; see, e.g., Baker v. City ofHamilton, 471 F.3d 601, 609 (6th Cir. 2006) (finding it

“significant” in § 1983 excessive force claim that defendant officer struck plaintiff’s head).

Plaintifftestified that Officer English’s first strike to his head left him dazed and on the ground

and that Officer English, nonetheless, struck his head a second time. P1. Dep. 45:17—21. This

testimony, if credited, could lead a reasonable jury to conclude that Officer English’s second

strike to Plaintiff’s head was unnecessary and, therefore, excessive. See, e.g., Baker, 471 F.3d at

607 (citations omitted) (“[Al jury could find that [defendant officer] acted unreasonably in

striking [plaintiff’s] knee after [he] had fallen to the ground. We have held repeatedly that the

use of force after a suspect has been incapacitated or neutralized is excessive as a matter of

law.”); cf Green v. New Jersey State Police, 246 Fed. App’x 158, 161-62 (3d Cir. 2007)

(concluding that it would not have been reasonable for an officer to twice hit an arrestee’s head

with a flashlight, causing lacerations that required stiches, when he refused to exit a police car).

The Court next addresses the qualified immunity question.

2. The Qualified Immunity Question: Whether Plaintiff’s Fourth

Amendment Right to be Free From Unreasonable Seizure Was Clearly

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Established at the Time of Defendant Officer English’s Alleged

Misconduct

The Supreme Court has explained that “[a] Government official’s conduct violates

clearly established law when, at the time ofthe challenged conduct, ‘[t]he contours of [a] right

[are] sufficiently clear’ that every ‘reasonable official would have understood that what he is

doing violates that right.” Ashcroft v. al-Kidd, U.S. ---, 131 S. Ct. 2074, 2083 (2011) (citing

Anderson ‘. Creighton, 483 U.S. 635, 640 (1987)). In order for a right to be clearly established,

“existing precedent must have placed the statutory or constitutional question beyond debate.” Id.

(citations omitted). This does not require “precise factual correspondence’ between the case at

issue and a previous case. . . .“ Kopec v. Tate, 361 F.3d 772, 778 (3d Cir. 2004) (citation

omitted). As this inquiry is focused on established legal standards and requires a review of

relevant case law, it “is a question of law that is exclusively reserved for the court.” Curley, 499

F.3d at 211 n. 12. However, “when qualified immunity depends on disputed issues offact, those

issues must be determined by the jury.” Monteiro v. City ofElizabeth, 436 F.3d 397, 405 (3d

Cir. 2006) (citation omitted).

Here, the Court finds that a reasonable officer in Officer English’s shoes on September 9,

2010, would have perceived federal law as precluding him from using a police radio or nightstick

to strike Plaintiffs head a second time after he fell to the ground. The Third Circuit has

suggested that a reasonable officer would know that it is excessive to hit an arrestee’s head twice

with a blunt instrument. Green, 246 Fed. App’x at 163 (citations omitted) (noting that officer,

“to his credit, even acknowledged that striking [arrestee] on the head with a flashlight would

have been ‘inappropriate,’ and would have constituted excessive force; he explained, in fact, that

such an action would constitute ‘deadly force.”). The Sixth Circuit has likewise concluded that

arrestees have “a constitutional right to be free from gratuitous strikes to the head and knee.”

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Baker, 471 F.3d at 608; see also McDowell v. Rogers, 863 F.2d 1302, 1307 (6th Cir. 1988)

(“[Ojur court has repeatedly found that a totally gratuitous blow with a policeman’s nightstick

may cross the constitutional line.. .“). Lastly, the Eleventh Circuit has concluded that a

reasonable officer would not violently strike an arrestee’s head with a blunt instrument ifthere

was no indication that the arrestee could escape, even when confronted by a hostile crowd. See

Baltimore v. City ofAlbany, Georgia, 183 Fed. App’x 891, 899 (11th Cir. 2006). Accordingly,

Defendant Officer English is not entitled to qualified immunity at this time.

B. Plaintiff’s Fourth Amendment Claim Against Defendant City of Paterson

Although the City of Paterson is named as a defendant in Plaintiff’s Complaint, Plaintiff

articulated no claims against it therein. In the interest ofjustice, this Court closely reviewed

Plaintiff’s deposition to determine the substance of Plaintiff’s claim against the City of Paterson.

Plaintifftestified that the City of Paterson is a defendant in this case because it employed Officer

English. P1. Dep. 69:15—21. In Monell v. Department ofSocial Services ofthe City ofNew York,

the Supreme Court held “that a municipality cannot be held liable solely because it employs a

tortfeasor-or, in other words, a municipality cannot be held liable under § 1983 on a respondeat

superior theory.” 436 U.S. 658, 691 (1978) (emphasis in original). Since Plaintiff’s claim

against the City of Paterson is founded on a respondeat theory, Defendant City of Paterson is

entitled to summary judgment.

IV. CONCLUSION

For the reasons discussed herein, the Court GRANTS Defendant City of Paterson’s

motion for summary judgment and DENIES Defendant Officer English’s motion for summary

judgment.

An appropriate Order accompanies this Opinion.

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DATED: of October, 2013.

JOSE ARES

U.S. DISTRICT JUDGE

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