CONDE v. CITY OF ATLANTIC CITY et al, No. 1:2014cv07531 - Document 72 (D.N.J. 2017)
Court Description: OPINION. Signed by Judge Joseph H. Rodriguez on 12/5/2017. (tf, )
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CONDE v. CITY OF ATLANTIC CITY et al Doc. 72 UNITED STATES DISTRICT COURT DISTRICT OF NEW J ERSEY RUBY CONDE, as the Adm inistratrix ad Prosequendum , of the Estate of Derreck Denzel Mack, deceased, and Individually as the Surviving Mother and Heir at Law of Decedent, : : : : : : : : : : : : : : : : Plaintiff, v. City of Atlantic City, J ohn Doe Officer # 1 and J ohn and J ane Does # 2-10 , Defendants. Hon. J oseph H. Rodriguez Civil No. 14-7531 Opinion This m atter com es before the Court on Motions of the City of Atlantic City [Dkt. No. 54] and Defendants J ohn Sm ith and Michael Ruzzo [Dkt. No. 53] seeking sum m ary judgm ent, pursuant to Fed. R. Civ. P. 56. The Court has considered the written subm issions of the parties, as well as the argum ents advanced at the hearing on May 22, 20 17. For the reasons stated on the record that day, as well as those that follow, the City of Atlantic City’s m otion is granted and J ohn Sm ith’s and Michael Ruzzo’s m otion is granted. I. Backgro u n d Plaintiff Ruby Conde brings this action individually and on behalf of the Estate of, her son, Derrek Denzel Mack (“Mack”). Mack was shot and killed by Defendant Atlantic City Police Officer J ohn Sm ith on Decem ber 17, 20 12. According to the 1 Dockets.Justia.com Com plaint, law enforcem ent officers responded to the area of Baltic Avenue and Martin Luther King Boulevard, in Atlantic City, New J ersey, in response to inform ation that two individuals, with a concealed weapons, were observed in the area. See Sm ith Stat., Def. Ex.2; Am . Com pl., ¶ 16. Upon the arrival of Officer Tweedle, Mack ran. Am . Com pl. at ¶ 18. Mack, alleged as unarm ed, ran for approxim ately one block when Sm ith, who had arrived on the scene and began to pursue Mack on foot, drew his weapon. Id. at ¶¶ 18, 24. According to Plaintiff, Mack stopped running and signaled surrender by raising his arm s in the air. Id. at ¶ 21. Defendant Sm ith fired his weapon three tim es striking Mack twice in the back; a third shot m issed Mack and struck a nearby vehicle. Id. at ¶¶ 22, 23. As a result of the two bullet wounds, Mack collapsed on the sidewalk and rem ained in a prone position. There is video evidence of the scene, taken by a bystander’s cell phone, after Mack was shot. Defendant Atlantic City Police Officer Michael Ruzzo and other back up officers arrived on the scene of the shooting. See iPhone video, Ex. 7; Am . Com pl. at ¶ 26. As will be discussed infra, video evidence dem onstrates that for approxim ately five m inutes, no one provided m edical assistance to Mack, however, records indicate that Ruzzo called an am bulance approxim ately one m inute after Mack was shot. Instead of rendering m edical aid to Mack, Ruzzo took Sm ith to the hospital and left the scene. Am . Com pl. at ¶ 30 . Despite Ruzzo’s departure, several other law enforcem ent officers can be seen on the video in close proxim ity to Mack, who was face down on the ground. See iPhone video, Ex. 7. Mack succum bed to the injuries sustained in the shooting, but it is unclear from the record whether Mack was dead on arrival at the Atlantic City Medical Center Em ergency Room or he died at 2 the facility. As will be discussed in detail, there are som e disputed facts related to whether Mack was actually in possession of a gun on the day of the incident. Officer Sm ith claim s that he witnessed Mack holding a firearm during his pursuit of the fleeing Mack. See Sm ith Stat., Ex.2. In addition, there is testim ony from other Atlantic City police officers stating that Mack had a gun and that a gun was recovered from the area where Mack was shot and fell. None of the non-police witnesses testify that they saw Mack with a weapon; the testim ony does not confirm the presence of a weapon, but does not exclude the possibility that Mack was arm ed. Conde brings several causes of action against the Defendants, pursuant to 42 U.S.C. § 1983, including a deadly force claim against Sm ith (Count I), a state created danger claim against Ruzzo and Sm ith (Count II), a denial of m edical assistance claim against all of defendants (Count III), a m unicipal liability claim pursuant to Monell v. Dep't of Soc. Serv. of City of New York, 436 U.S. 658, 691-94, 98 S.Ct. 20 18, 56 L.Ed.2d 611 (1978) against Atlantic City (Count IV), a claim of battery against Sm ith (Count V), a wrongful death claim against all defendants (Count VI) and a Survivorship Action against all defendants (Count VII). During oral argum ent, Plaintiff conceded that she is not pursuing claim s against Atlantic City on a theory of failure to train. The thrust of Plaintiff’s case against Atlantic City rests on a failure to tim ely render m edical assistance. The Court will address the claim s against each defendant. 3 II. Su m m ary Ju d gm e n t Stan d ard A court will grant a m otion for sum m ary judgm ent if there is no genuine issue of m aterial fact and if, viewing the facts in the light m ost favorable to the non-m oving party, the m oving party is entitled to judgm ent as a m atter of law. Pearson v. Com ponent Tech. Corp., 247 F.3d 471, 482 n.1 (3d Cir. 20 0 1) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, 10 6 S. Ct. 2548, 91 L.Ed.2d 265 (1986)); accord Fed. R. Civ. P. 56 (c). Thus, this Court will enter sum m ary judgm ent only when “the pleadings, depositions, answers to interrogatories, and adm issions on file, together with the affidavits, if any, show that there is no genuine issue as to any m aterial fact and that the m oving party is entitled to judgm ent as a m atter of law.” Fed. R. Civ. P. 56 (c). An issue is “genuine” if supported by evidence such that a reasonable jury could return a verdict in the nonm oving party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 10 6 S. Ct. 250 5, 91 L.Ed.2d 20 2 (1986). A fact is “m aterial” if, under the governing substantive law, a dispute about the fact m ight affect the outcom e of the suit. Id. In determ ining whether a genuine issue of m aterial fact exists, the court m ust view the facts and all reasonable inferences drawn from those facts in the light m ost favorable to the nonm oving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 10 6 S. Ct. 1348, 89 L.Ed.2d 538 (1986). Initially, the m oving party has the burden of dem onstrating the absence of a genuine issue of m aterial fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 10 6 S. Ct. 2548, 91 L.Ed.2d 265 (1986). Once the m oving party has m et this burden, the nonm oving party m ust identify, by affidavits or otherwise, specific facts showing that 4 there is a genuine issue for trial. Id.; Maidenbaum v. Bally’s Park Place, Inc., 870 F. Supp. 1254, 1258 (D.N.J . 1994). Thus, to withstand a properly supported m otion for sum m ary judgm ent, the nonm oving party m ust identify specific facts and affirm ative evidence that contradict those offered by the m oving party. Andersen, 477 U.S. at 25657. Indeed, the plain language of Rule 56(c) m andates the entry of sum m ary judgm ent, after adequate tim e for discovery and upon m otion, against a party who fails to m ake a showing sufficient to establish the existence of an elem ent essential to that party’s case, and on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322. In deciding the m erits of a party’s m otion for sum m ary judgm ent, the court’s role is not to evaluate the evidence and decide the truth of the m atter, but to determ ine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. Credibility determ inations are the province of the finder of fact. Big Apple BMW, Inc. v. BMW of N. Am ., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). A. Plain tiff’s Co n s titu tio n al Claim s Again s t th e City o f Atlan tic City Counts II and IV allege a violations of Mack’s constitutional rights against the City of Atlantic City pursuant to section 1983. Section 1983 does not provide any substantive rights, but is instead a vehicle for the enforcem ent of rights. In Monell, 436 U.S. at 691-94, the Suprem e Court stated that a m unicipality could not be held liable under Section 1983 pursuant to a theory of respondeat superior. Municipalities are only held responsible “for their own illegal acts.” Connick v. Thom pson, 131 S.Ct. 1350 , 1359 (20 11) (quoting Pem baur v. City of Cincinnati, 475 U.S. 469, 479 (1986)). As a result, Plaintiff’s Claim s in Counts II and IV as against Atlantic City, require a showing of 5 liability against the other two nam ed individual defendant police officers, Ruzzo and Sm ith. B. Claim s U n d e r 4 2 U .S.C. § 19 8 3 an d Qu alifie d Im m u n ity Plaintiff’s constitutional claim s are governed by Title 42 U.S.C. § 1983, which provides a civil rem edy against any person who, under color of state law, deprives another of rights protected by the United States Constitution. See Collins v. City of Harker Heights, 50 3 U.S. 115, 120 (1992). Any analysis of 42 U.S.C. § 1983 should begin with the language of the statute: Every person who, under color of any statute, ordinance, regulation, custom , or usage, of any State or Territory or the District of Colum bia, 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 im m unities 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. As the above language m akes clear, Section 1983 is a rem edial statute designed to redress deprivations of rights secured by the Constitution and its subordinate federal laws. See Baker v. McCollan, 443 U.S. 137, 145 n.3 (1979). By its own words, therefore, Section 1983 “does not . . . create substantive rights.” Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir. 20 0 6) (citing Baker, 443 U.S. at 145, n.3). To state a cognizable claim under Section 1983, a plaintiff m ust allege a “deprivation of a constitutional right and that the constitutional deprivation was caused by a person acting under the color of state law.” Phillips v. County of Allegheny, 515 F.3d 224, 235 (3d Cir. 20 0 8) (citing Kneipp v. Tedder, 95 F.3d 1199, 120 4 (3d Cir. 1996)). Thus, a plaintiff m ust dem onstrate two essential elem ents to m aintain a claim 6 under § 1983: (1) that the plaintiff was deprived of a “right or privileges secured by the Constitution or the laws of the United States” and (2) that the plaintiff was deprived of his rights by a person acting under the color of state law. William s v. Borough of West Chester, Pa., 891 F.2d 458, 464 (3d Cir. 1989). The doctrine of qualified im m unity provides that “governm ent officials perform ing discretionary functions . . . are shielded from liability for civil dam ages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person should have known.” Harlow v. Fitzgerald, 457 U.S. 80 0 , 818 (1982). Thus, governm ent officials are im m une from suit in their individual capacities unless, “taken in the light m ost favorable to the party asserting the injury, . . . the facts alleged show the officer’s conduct violated a constitutional right” and “the right was clearly established” at the tim e of the objectionable conduct. Saucier v. Katz, 533 U.S. 194, 20 1 (20 0 1). Courts m ay exercise discretion in deciding which of the two prongs of the qualified imm unity analysis should be addressed first in light of the circum stances in the particular case at hand. Pearson v. Callahan, 555 U.S. 223, 236 (20 0 9). This doctrine “balances two im portant interests—the need to hold public officials accountable when they exercise power irrespon sibly and the need to shield officials from harassm ent, distraction, and liability when they perform their duties reasonably” and it “applies regardless of whether the governm ent official’s error is a m istake of law, a m istake of fact, or a m istake based on m ixed questions of law and fact.” Id. (internal quotation om itted). Properly applied, qualified im m unity “protects ‘all but the plainly 7 incom petent or those who knowingly violate the law.’” Ashcroft v. al-Kidd, 131 S. Ct. 20 74, 20 85 (20 11) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). For a right to be clearly established, “[t]he contours of the right m ust be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Saucier, 533 U.S. at 20 2 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). That is, “[t]he relevant, dispositive inquiry in determ ining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he con fronted.” Couden v. Duffy, 446 F.3d 483, 492 (20 0 6). “If the officer’s m istake as to what the law requires is reasonable,” the officer is entitled to qualified im munity. Couden, 446 F.3d at 492 (internal citations om itted). Further, “[i]f officers of reasonable com petence could disagree on th[e] issue, im m unity should be recognized.” Malley, 475 U.S. at 341 (1986). See also Brosseau v. Haugen, 543 U.S. 194, 198 (20 0 4) (The general touchstone is whether the conduct of the official was reasonable at the tim e it occurred.) Finally, because qualified im munity is an affirm ative defense, the burden of proving its applicability rests with the defendant. See Beers-Capital v. Whetzel, 256 F.3d 120 , 142, n.15 (3d Cir. 20 0 1). Here, Plaintiff alleges a violation of Mack’s Fourth, Fourteenth, and Eighth Am endm ent rights and there is no dispute that the individual police officers were acting under the color of state law. III. An alys is Sum m ary judgm ent is granted in favor of Officer Sm ith because he is entitled to 8 qualified im m unity for his reasonable belief that Mack was arm ed and posed a threat during Sm ith’s on foot pursuit of Mack. Sum m ary judgem ent is granted in favor of Officer Ruzzo because there is no genuine issue of m aterial fact related to the claim that he was indifferent to the m edical needs of Mack. Sum m ary judgm ent is also granted on the claim s of state created danger, wrongful death, survivorship, and all claim s against the City of Atlantic City. A. Counts I (Excessive Force) and V (Battery) Sum m ary judgm ent is granted as to Count I, which alleges excessive force against Sm ith in violation of the Fourth Am endm ent. “[A]pprehension by the use of deadly force is a seizure subject to the reasonableness requirem ent of the Fourth Am endm ent.” Tennessee v. Garner, 471 U.S. 1, 7, 10 5 S.Ct. 1694, 85 L.Ed.2d 1 (1985). A claim for excessive force claim is reviewed under an objective reasonableness standard. Graham v. Connor, 490 U.S. 386, 397, 10 9 S.Ct. 1865, 1872, 10 4 L.Ed.2d 443 (1989). Under this standard, the Court m ust pay “careful attention to the facts and circum stances of each particular case, including the severity of the crim e at issue, whether the suspect poses an im m ediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attem pting to evade arrest by flight.” Id. at 396, 10 9 S.Ct. at 1872; see also Grom an, 47 F.3d at 634. “The calculus of reasonableness m ust em body allowance for the fact that ‘police officers are often forced to m ake split-second judgm ents—in circum stances that are tense, uncertain, and rapidly evolving—about the am ount of force that is necessary in a particular situation.’ ” Id. at 396– 97, 10 9 S. Ct. at 1871– 73; see also Sharrar v. Felsing, 128 F.3d 810 , 820 – 21 (3d Cir. 1997). 9 “Whether or not [an officer's] actions constituted application of ‘deadly force,’ all that m atters is whether [the officer's] actions were reasonable.” Scott v. Harris, 550 U.S. 372, 383 (20 0 7). While m istakes will invariably happen, the Fourth Am endm ent guarantees that m istakes will only be m ade after proper diligence and regard for our notions of liberty and justice is accorded. “Under qualified im m unity, police officers are entitled to a certain am ount of deference for decisions they m ake in the field [because they] m ust m ake split-second judgm ents—in circum stances that are tense, uncertain, and rapidly evolving.” Gilles v. Davis, 427 F.3d 197, 20 7 (3d Cir. 20 0 5) (internal quotations om itted)). “[S]ufficient probability, not certainty, is the touchstone of the Fourth Am endm ent[.]” Hill v. California, 40 1 U.S. 797, 80 3-0 4 (1971). Thus, the reasonableness of a seizure is assessed in light of the totality of the circum stances. Abraham v. Raso, 183 F.3d 279, 289 (3d Cir. 1999). Under this standard and viewing the facts in a light m ost favorable to the Plaintiff, the Court finds that although there are som e questions of fact related to whether Mack was actually in possession of a gun, Sm ith’s belief that Mack was arm ed was objectively reasonable and Sm ith enjoys qualified im m unity. On December 17, 20 12, the Stanley Holm es Village section of Atlantic City was under surveillance by several m em bers of various law enforcem ent agencies, including m em bers of the Atlantic City Departm ent. See Exs. B, C. Because the Village is a known area of frequent drug activity, it had been under physical and video surveillance for m any m onths prior to Mack’s death.1 For this reason, and because he had prior 1 Given the scope and duration of surveillance, the record includes video surveillance tapes which 10 interaction with the Atlantic City police, Mack and his brother Michael Mack, were known to law enforcem ent officers.2 Ex. B, p. 26. On the day in question, Derreck Mack was walking with Terry Davis through the Village in the area of Baltic Avenue and Martin Luther King Boulevard. Det. J am es Barrett was conducting surveillance in the Village and identified two m ales, one of which he believed to be a Mack brother and another individual nam ed Terry Davis. See Ruzzo Statem ent, Ex. 1, p. 2. Barrett radioed Atlantic City Police Detectives Dabney, Defendant Ruzzo, and Fair to alert them that both m en were arm ed and described an individual as wearing a black and white hat as well as a black and white Oakland Raiders jacket. See Ex. B., p. 26; Ex. C. The police descended upon the area and began to chase Davis and Mack across Baltic Avenue toward the Stanley Holm es Village. See Security Cam era 31 footage, Ex. 2. Detective Dabney apprehended Terry Davis without incident and recovered a handgun from Davis’ person. See Dabney Rpt., Ex. 4. Defendants claim that the video depicts Mack as possessing a handgun in his depict various individuals, possibly including Mack, on December 17, 20 12. Exs. B, C. There is notable confusion as to the date stam p on the video: the date stam p indicates a date of November 30 , 20 12, however, Assistant U.S. Attorney Elizabeth Pascal has represented that this video, which allegedly depicts Mack, is dated Decem ber 17, 20 12 and was introduced as adm issible evidence during the Dirty Blok Trials. See Ex. D. The Court has reviewed the video and finds it grainy and difficult to positively identify any of the individuals with certainty and/ or identify any objects that m ay or m ay not be in the possession of the depicted person. However, still shots of the video produced in Defendants’ Exhibit “C” which m ore clearly depict Mack with a gun in his waist band. This evidence suffers from the m islabeled date stam p on the top of the fram e; however, the Assistant United States Attorney’s statem ent alleges that the photo was taken on Decem ber 17, 20 12. According to Plaintiff, no surveillance video or photographs of Derreck Mack taken on December 17, 20 12 by any law enforcem ent officials has been produced. The date stam p of the FBI surveillance video is Novem ber 30 , 20 12. As a result, and despite the letter by the United States Attorney’s Office, Plaintiff claim s there is no proof that Mack was arm ed on Decem ber 17, 20 12. 2 Det. Dabney arrested Derreck Mack in May of 20 11; a handgun was recovered from both Mack and his brother, Michael. Ex. B., p. 26. 11 waistband and that he ran while being pursued by Officer Sm ith. See Ex. A., at ¶ 19; Ex. B. Officer Sm ith claim s that when Mack reached into his waistband, Officer Sm ith observed a handgun. See Sm ith Dep., Ex. E. Although Officer Sm ith ordered Mack to drop the gun, Mack continued to flee, but his pace eventually slowed. Id. Sm ith claim s that Mack began to turn toward him in a m anner suggesting that Mack was taking a stance. Id. Sm ith discharged his gun, sending Mack to the ground. In addition to the police officers, there were several eye-witnesses to the shooting. There is no video evidence of the shooting.3 Eyewitness Denyse Ridley had a visual on the chase but could not hear whether Sm ith gave any com m ands to Mack during the pursuit. See Ridley Dep., Ex. 6, pp. 7-8. From her vantage point, she describes Mack as running toward her with Sm ith in pursuit. Id. She saw Mack’s left hand raise in the air and turn his body toward Sm ith “like he was com ing around.” Id. at p. 2. Ridley further describes the series of events that lead her to conclude Mack had gun: Q. “But from your vantage point, you saw the left hand up, right hand was still tucked in front of his body, som ewhere in the stom ach or waist area?” Ridley: “Right. Like his, yeah, like com ing towards, like com ing from his stom ach, like if you have a cram p and you pull your hand aways from your stom ach, that’s how his hand cam e up. It didn’t com e straight up like this, this one cam e up. This one didn’t.” The fact that Mack did not com pletely stop and because he “swerved” with only one hand raised gave Ridley concern that Mack did not intend to surrender. Id. at 9. 3 Plaintiff claim s that the lack of video evidence of the shooting in an area under constant surveillance is suspect. 12 Ridley states: But I saw the young m an put his left arm up but slowly com e up with his right arm but in like a slant, his body slanted, not fully straight back to the officer. So I don’t know if the officer assum ed that he was pulling som ething from his front to com e up with, com e around or whatever, but the officer started shooting[] . . . I would’ve shot him because I don’t know if he is pulling som ething from his waistband or he was com ing to give up.” Id. at 9, 11. Ridley explained that the reason for her concern was the fact that both hands did not com e straight up in the air in a surrender posture. Rather, the left cam e up first and then the right began to rise as Mack appeared to turn toward the officer. Id. Plaintiff claim s that the record also reflects testim ony of other witnesses who state that Mack was “unarm ed.” This m ischaracterizes the testim ony of these witnesses. Witness Darlene Newell- Clem ents states that she “heard the officer when he said halt, stop, he told him . And the guy stopped, he put his hands up and the cop shot him in the back.” Newell-Clem ents Dep., Ex. 4, 41:1-5. Newell-Clem ents “can’t say” that Mack had a gun or that she saw a gun because Mack was “in line with the m ailbox” when she witnessed the shooting, obscuring her view. Id. at 55:20 -22; 49:11-14. Q. Did the guy that was running have anything in his hands? A. I can’t say that. Q. Do you know if he had reached in his waistband or any other area before he put his hands up? A. Again, I can’t say that because I was at a little distance. Id. at 50 :17-24. Witness Kaleef Shabazz gave a statem ent to the Atlantic County Prosecutor’s Officer and detailed his eyewitness account to Sm ith’s pursuit of Mack. According to 13 Shabazz, he saw Mack’s hands in the air when Sm ith shot him . See Shabazz Stat., Ex. 3. Shabazz acknowledged that his view of the incident was obstructed by a bush and that he could only see Mack from the shoulders up. Id. There is no evidence that Shabazz knew Mack to be unarm ed; only the absence of an allegation that Shabazz saw a gun. And Shabazz is unable to determ ine if Mack’s hand went to his waistband before it was raised. Id. The record indicates that several police officers either observed Mack with a handgun prior to the shooting or saw a handgun on the ground next to Mack after he was shot and fell. Detective Kevin Fair was part of the pursuit of Mack. He states that when he first observed Mack, he did not see a gun. Fair Dep., Ex. 5, p. 6. Mack was running and then tripped in the street. Id. Once Mack got up, Fair saw a silver handgun and alerted police by way of radio and verbal shout. Id. Fair testifies that he yelled to Sm ith that Mack was arm ed when Sm ith joined the pursuit and was within a closer proxim ity to Mack than Fair. Id. at 8. After Mack was shot, Fair states that “there was a handgun that was on the ground, a large silver handgun that was on the ground next to Mack[.]” Id. at 9. Officer Sparks was also part of the pursuit of Mack and observed a silver handgun on Mack’s person. See Sparks’ Rpt., Ex. 4. Sparks further states that both Mack and Davis failed to abide by officers’ com m ands to stop. Id. Detective Lieutenant Sarkos arrived on the scene to find Mack on the ground, handcuffed, and with a handgun just nearby. See Sarkos’ Rpt., Ex. 4. When Detective Barrett arrived at the scene of the shooting, he observed Mack in handcuffs with a gun nearby. See Barrett Rpt., Ex. 4. 14 The non-law enforcem ent eyewitness accounts support the notion that Sm ith’s conclusion that Mack was arm ed was reasonable. Not only did Sm ith observe Mack with a gun, but his recitation of the facts is consistent with that of Ridley and Fair. Im portantly, the testim ony of Shabazz and Newell-Clem ents does nothing to underm ine Sm ith’s reasonable belief that Mack was either arm ed or reaching for som ething in his waistband.4 Plaintiff claim s that the fact that the gun was rem oved from the scene without being photographed creates a genuine issue of m aterial fact related to whether Mack was arm ed. See Atl. Cnty. Prosecutor’s Office Inv. Rep., Atlantic City/ 0 0 0 246-253, Ex. 8. At the scene of the shooting, Sgt. String states that observed Officer Tweedle “straddling over a large silver handgun[.]” See String Rpt., Ex. 4. String rem oved the gun from the scene because the crowd was growing and he feared for the “officer[‘]s safety.” Id. The iPhone video confirm s that a crowd was growing and becoming loud. Understandably, there was tension as gatherers tried to approach the injured Mack and questioned the police as law enforcem ent officers attem pted to secure the scene, which by all accounts was becom ing hostile. String placed the gun in his vehicle and, once the scene was secured, he personally took it to the forensic unit. Id. As a result of rem oving the gun from the scene, the gun is not listed in the Prosecutor’s Investigation Report as evidence recovered or 4 Plaintiffs’ claim that none of the eight individuals interviewed by the Atlantic County Prosecutor’s Office on the day of the shooting mentioned seeing a gun possessed by Derreck Mack either before or after the shooting does not underm ine the Court’s determination that Sm ith’s belief was reasonable. See Atlantic City/ 0 0 0 714-721, Ex. 6. While none of the witnesses state that they observed a gun, none testified that Mack was unarm ed or that Mack was not in possession of a gun. 15 identified at the scene and there are no photographs of the gun near the area where Mack fell after being shot. See Atl. Cnty. Prosecutor’s Office Inv. Rep., Atlantic City/ 0 0 0 246-253, Ex. 8. In addition, there is no DNA evidence linking Mack to the gun that was retrieved; however, DNA taken from the alleged gun sam ples cannot exclude Mack as a partial contributor to the m ixed DNA profile obtained from the gun.5 See Forensics Rep., Ex. N. The Court agrees that there m ay be a genuine issue of fact related to whether Mack was actually arm ed on the day in question. However, the test is not whether Mack was arm ed; qualified im m unity affords police officers deference for split-second decisions in rapidly evolving circum stances. Gilles, 427 F.3d at 20 7. The Fourth Am endm ent dem ands Sm ith act reasonably and with a “sufficient probability, not certainty[.]” Hill, 40 1 U.S. at 80 3-0 4. “It is unreasonable for an officer to use deadly force against a suspect unless the officer has good reason to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.” Lam ont v. New J ersey, 637 F.3d 177, 183 (3d Cir. 20 11) (quotation om itted). Therefore, as long as Sm ith’s belief that Mack was arm ed is reasonable, qualified im m unity applies even if Sm ith was m istaken. Pearson, 555 U.S. at 236. Proceeding with the qualified imm unity analysis regarding Officer Sm ith's use of deadly force, the Court finds that Mack’s right to be free from excessive, deadly force was clearly established on the night of the shooting. “It has long been the law that an 5 Plaintiffs’ expert opines that the DNA analysis cannot exclude or include approximately 50% of the African American, Caucasian or Hispanic populations. See DNA Report of Arthur Young, Ex. 15. 16 officer m ay not use deadly force against a suspect unless the officer reasonably believes that the suspect poses a threat of serious bodily injury to the officer or others.” Lam ont, 637 F.3d at 185; see also Weinm ann, 787 F.3d at 450 (“Graham and Garner stand for the proposition that a person has a constitutional right not to be shot unless an officer reasonably believes that he poses a threat to the officer or som eone else.”) In this case, the issue is whether Sm ith’s use of deadly force was objectively reasonable, given the totality of the circum stances. The Court finds that Sm ith’s belief that Mack was arm ed and that Mack poses a threat and the use of deadly force was necessary was objectively reasonable under the circum stances. Although not determ inative and with each action applying different standards of review, three different investigations support this conclusion. The Altantic City Police Departm ent conducted an internal review and took no action against the officers. The Atlantic County Prosecutor’s Office brought the case before a Grand J ury that found the conduct was “lawful and justified” and issued a no bill. An independent expert also reviewed the case and concluded that Officer Sm ith operated within the bounds of policy and protocol and his actions were justified. See Report of Em anuel Kapolsohn, Ex. 12In addition, the expert claim s that Officer Sm ith’s version of events are consistent with the autopsy findings in relation to the bullet entry wounds and Mack’s slightly turned position. See id., p. 8; Postmortem Examination Photographs, Ex. 5. The Court, “[i]n qualified im m unity cases, [m ust] adopt[] ... the plaintiff's version of the facts.” Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (20 0 7). Once the Court has “determ ined the relevant set of facts and drawn all inferences in 17 favor of the nonm oving party to the extent supportable by the record,” the reasonableness of a police officer's actions “is a pure question of law.” Id., 550 U.S. at 381, n. 8. To determ ine whether Sm ith’s use of force was reasonable, the Court applies the “perspective of a reasonable officer on the scene, rather than with the 20 / 20 vision of hindsight.” Graham , 490 U.S. at 396. Here, Sm ith was inform ed by other officers at the scene that Mack was arm ed, an observation Sm ith alleges he also m ade personally. Even assum ing all of the officers and Ms. Ridley were lying about the presence of the gun and the video evidence is perhaps unreliable, Sm ith arrives on the scene with inform ation that the m an he is pursuing is arm ed. Mack, despite dem ands to stop, continues to flee and evade arrest and, according to several witnesses, slows his pace as he raises his hands. Of the witnesses who could see both of Mack’s hands raise in the air and Mack’s torso, the undisputed evidence shows that, at the very least, the possibility existed for Mack to reach into his waistband, where Sm ith and others state he holstered the weapon. The bullet wounds are consistent with Sm ith’s account that Mack was turning toward him . See Report of Em anuel Kapolsohn, Ex. 12. On sum m ary judgm ent, if “a reasonable officer could have believed that his conduct was justified,” the police officer is entitled to qualified im munity. San Francisco v. Sheehan, – – – U.S. – – – – , – – – – , 135 S.Ct. 1765, 1777, 191 L.Ed.2d 856 (20 15). The Court finds that Officer Sm ith’s use of deadly force was objectively reasonable under the totality of the circum stances. B. Counts II (State Created Danger) and III (Denial of Medical Assistance) The essence of Plaintiff's constitutional claim s in Counts II and III is that the 18 police officers unlawfully delayed m edical care to Mack by failing to call em ergency m edical services, failing to tim ely and properly transport Mack to the hospital, and filing to adm inister care as Mack lay on the ground. Governm ent officials are required to provide an arrestee, in their custody, m edical care for injuries. The Eighth Am endm ent's “deliberate indifference” standard, applies, through the Fourteenth Am endm ent, to Plaintiff’s claim that Mack was denied m edical attention after he was shot twice in the back by Sm ith. See, e.g., City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244, 10 3 S. Ct. 2979, 2983, 77 L. Ed. 2d 60 5 (1983) (noting that “the due process rights of a person [who was injured while being apprehended by the police] are at least as great as the Eighth Am endm ent protections available to a convicted prisoner”); Estelle v. Gam ble, 429 U.S. 97, 10 4, 97 S. Ct. 285, 291, 50 L.Ed.2d 251 (1976). “[D]eliberate indifference to serious m edical needs of prisoners [and arrestees] constitutes the ‘unnecessary and wanton infliction of pain’ proscribed by the Eighth Am endm ent.” Estelle, supra, 429 U.S. at 10 4, 97 S. Ct. at 291, 50 L. Ed. 2d at 260 (citations om itted) (quoting Gregg v. Georgia, 428 U.S. 153, 173, 96 S. Ct. 290 9, 2925, 49 L.Ed.2d 859, 875 (1976)). To succeed under the “deliberate indifference” standard, the plaintiff m ust prove: (1) that his m edical needs were “objectively serious” and (2) that the defendants exhibited “deliberate indifference” to Plaintiff's m edical needs. Monm outh County Correctional Inst. Inm ates v. Lanzaro, 834 F.2d 326, 346 (3d Cir.1987) (citing Estelle, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)). A “serious m edical need” is “one that has been diagnosed by a physician as requiring treatm ent or one that is so obvious that a 19 lay person would easily recognize the necessity for a doctor's attention” or “where the denial of treatm ent would result in the unnecessary and wanton infliction of pain or a life-long handicap or perm anent loss.” Atkinson v. Taylor, 316 F.3d 257, 272– 73 (3d Cir. 20 0 3) (internal citations om itted). There is no video depiction of Sm ith’s interaction with Mack, but the audio reflects that at 2:0 4 p.m ., som eone yelled “Shots fired, one m an down.” Ex. B., p. 3. Approxim ately one m inute later a call of “56” was m ade by Ruzzo; “56” is a code to call an am bulance. Id.; see also Ex. I. Then, Ruzzo escorted Sm ith to the hospital in a police vehicle.6 Plaintiff alleges that Ruzzo’s decision to leave the scene of the shooting and abandon Mack in favor of escorting Sm ith to the hospital dem onstrates deliberate indifference. Plaintiff contends that Ruzzo should have placed Mack in the vehicle and taken him to the hospital because he had been, shot unlike Sm ith who did not present with any life threatening injuries. Ruzzo states in deposition that the reason he did not attend to Mack is because he believed that Mack was already dead. See Ruzzo Dep., Ex. I, p. 7. Video taken by a bystander on an iPhone depicts several unnam ed persons, believed to be Atlantic City police officers or m em bers of the Atlantic County Prosecutor’s Office, standing in close proxim ity to Mack following the shooting. The video begins after the shooting has happened and Mack is already on the ground, lying still. None of the persons in the video touch Mack for several m inutes, although it 6 Ruzzo’s removal of Smith from the scene is consistent with the Atlantic City Police Department Use of Force Policy. That Policy states that in the event of serious injury or death as a result of the use of force, the employee shall be removed from the scene as soon as practicable. Ex. O. 20 appears they are aware of him . The am bulance log indicates that an am bulance was dispatched at 2:0 6 p.m . and arrived at Mack’s position at 2:10 p.m . See Ex. F. Then after five m inutes an officer begins CPR. The video also depicts, through com m entary and sound, that som eone claim ing to be a nurse asked to assist Mack but was denied access to the scene. See iPhone Video, Ex. 7. Plaintiff identifies the failure to let a m edical professional access Mack as indicative of deliberate indifference. There is som e discrepancy as to Mack’s arrival tim e at the hospital; am bulance records indicate an arrival tim e of 2:18 while the hospital records reflect an arrival tim e of 2:20 p.m . See Exs. F., G. Giving Plaintiff the benefit of every inference, an am bulance was sum m oned im m ediately following the shooting and Mack was on his way to a hospital in an am bulance within seven m inutes of being shot. During that tim e, he was given CPR and several officers testified that he was breathing while he was on the ground. Officer Halvorson reports that upon arriving that the scene, he rolled Mack onto his back. See Halvorson Rpt., Ex. 4. Mack was breathing until he was fully on his back. Id. Officer Spark’s states that Mack began to lose consciousness so he rem oved the handcuffs. See Sparks’ Rpt., Ex. 4. Then, Sarkos took Mack’s pulse and started perform ing CPR. See Sarkos Rpt., Ex. 4. There is no evidence that Mack’s chance of survival would have im proved had Ruzzo taken him to the hospital instead of Sm ith or that such a protocol was appropriate. Likewise, there is no evidence that any of the officers in the vicinity of Mack could have done anything to im prove his chance of survival. The record is likewise devoid of m edical testim ony related to actions that could have potentially saved Mack’s 21 life at any point during the nearly seven m inutes between his shooting and the arrival of m edical professionals. To the extent that the person on video claiming to be a nurse was in fact m edically trained, there is nothing in the record to suggest that the nurse could have perform ed any intervention to curtail Mack’s condition from worsening. Finally, when Ruzzo left the scene, the video evidence depicts a num ber of other police officers who could have rendered aid to Mack during the seven m inutes it took the am bulance to arrive on the scene. As a result, the facts of this case do not arise to the level of deliberate indifference on the part of Officer Ruzzo. Sum m ary judgm ent is granted in favor of Defendant Ruzzo as to Count III. Sum m ary judgm ent is granted as to Count II, state created danger. As to the state-created danger theory, Graham v. Connor appears to foreclose such a claim . 490 U.S. 386, 388 (1989) (“This case requires us to decide what constitutional standard governs a free citizen's claim that law enforcem ent officials used excessive force in the course of m aking an arrest, investigatory stop, or other ‘seizure’ of his person. We hold that such claim s are properly analyzed under the Fourth Am endm ent's ‘objective reasonableness' standard, rather than under a substantive due process standard.”) Accord Abraham , 183 F.3d at 288 (“excessive force in the course of an arrest is properly analyzed under the Fourth Am endm ent, not under substantive due process”) (citing Graham , 490 U.S. at 393-94); see also Wilson v. Borough of Bellm awr, No. CV 13-5437, 20 16 WL 7377114, at *12 (D.N.J . Dec. 20 , 20 16). To the extent that such a claim is properly analyzed under the Fourteenth 22 Am endm ent under the facts of this case, the Due Process Clause does not im pose an affirm ative obligation on the state to protect its citizens. Phillips v. County of Allegheny, 515 F.3d 224, 235 (3d. Cir. 20 0 8). In this regard, the state-created danger theory of liability operates as an exception to that general rule and requires plaintiffs to m eet a four part test: “(1) the harm ultim ately caused was foreseeable and fairly direct; (2) the state actor acted with a degree of culpability that shocks the conscience; (3) a relationship between the state and the plaintiff existed such that the plaintiff was a foreseeable victim of the defendant's acts ...; and (4) the state actor affirm atively used his or her authority in a way that created a danger to the citizen or that rendered the citizen m ore vulnerable to danger than had the state not acted at all.” Sanford v. Stiles, 456 F.3d 298, 30 4 (3d Cir. 20 0 6). As noted above, there is nothing in the record to suggest that any of the Defendants in this case acted in a m anner that shocks the conscience with respect to Mack’s m edical treatm ent. The state created danger theory rests on the denial of m edical care. Because there is nothing in the record to support a claim of actions that shock the conscience, and sum m ary judgm ent has been granted on the excessive force claim , sum m ary judgm ent is granted on the state created danger theory. C. Claim s Against The City of Atlantic City, (Count IV), Wrongful Death (Count VI) and Survivorship (Count VII). Plaintiff’s Claim s in Counts II and IV as against Atlantic City are predicated upon a showing of liability against Ruzzo and Sm ith. Connick, 131 S.Ct. at 1359. As a result, sum m ary judgm ent is granted as to these claim s because there is no underlying 23 constitutional violation by either Sm ith or Ruzzo. For the sam e reasons, sum m ary judgm ent is granted as to Plaintiff’s Wrongful Death and Survivorship Action as plead in Counts VI and VII. IV. Conclusion For the reasons stated herein, sum m ary judgm ent is granted in favor of Defendants Ruzzo, Sm ith and The City of Atlantic City as to all counts. An appropriate Order shall issue. Dated: Decem ber 5, 20 17 s/ J oseph H. Rodriguez Hon. J oseph H. Rodriguez, UNITED STATES DISTRICT J UDGE 24
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