POWELL v. CITY OF OCEAN CITY et al, No. 1:2014cv04395 - Document 91 (D.N.J. 2016)
Court Description: OPINION FILED. Signed by Judge Joseph H. Rodriguez on 9/28/16. (js)
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POWELL v. CITY OF OCEAN CITY et al Doc. 91 U N ITED STATES D ISTRICT COU RT D ISTRICT OF N EW JERSEY _________________ Norm a Powell, ____ : : Plaintiff, : : v. : : City of Ocean City, et. al. : : Defendants. : _______________________ : H o n . Jo s e p h H . Ro d rigu e z Civil Action No. 14-4395 Op in io n This m atter com es before the Court on Motion for Sum m ary J udgm ent [79] filed on behalf of Defendants City of Ocean City, Officer Laura Hall, and Sergeant D. Dubbs. The Court has considered the written subm issions of the parties, as well as the argum ents m ade on the record during the hearing on J uly 13, 20 16. For the reasons expressed on the record that day, as well as those that follow, Defendants’ m otion is granted in part and denied in part. I. Backgro u n d On J uly 11, 20 12 Plaintiff Norm a Powell was arrested and detained for driving under the influence after an eyewitness alerted police to the fact that Powell’s vehicle struck the Longport Bridge Toll Booth causing dam age 1 Dockets.Justia.com to her car and to the booth. See Officer Hall’s incident Report, Ex. 2. Powell failed two com ponents of a field sobriety test when she was unable to recite the alphabet and could not m aintain balance. Id. On her own volition, Powell unsuccessfully attem pted to perform the “Walk and Turn” test. Id. Officer Hall’s Drinking-Driving Report indicated that Powell was unable to walk and stand, was swaying, had slurred speech with a sleepy dem eanor, and that her eyes were bloodshot and her eyelids were droopy. See id. At the police station, Powell’s lung disease and prescription m edication prevented her from producing a reading on a breathalyzer and from producing a sufficient urine specim en despite being given and having consum ed ten cups of water.1 Id. Sergeant Dubbs, the City’s Drug Recognition Expert (“DRE”) perform ed an independent evaluation of Powell and noted that he could not detect a sm ell of alcohol and concluded that Powell was under the influence of a CNS Depressant and/ or a Narcotic Analgesic. See Drug Influence Evaluation Report, Ex. 7; Dubbs Dep. at 57:7-10 .2 Tim e passed without Powell producing a urine sam ple. As a result, she was taken to the Shore Mem orial Hospital, where her blood was drawn and a urine sam ple was 1 At some point Powell voided a small quantum of urine, but the sample spilled and was not tested. See Hall Dep. 94:24-25. There is no allegation that Powell was uncooperative at any time. 2 Powell volunteered that she was taking Protonix, Roxicet, Lexipro, Trazadone, Synthroid, Spiriva, and Albuterol. See Dubbs Dep. at 57:19-23. 2 procured by a catheter. See Officer Hall’s incident Report, Ex. 2. Defendant Officer Hall was present during the catheterization and held the collection cup. See Hall Dep. at 60 :1-25. Powell, who was unconscious at the tim e of the procedure, contends that she contracted an infection as a result of the catheter. On J uly 11, 20 14, Powell filed a sixteen (16) count Com plaint alleging various causes of action against the City of Ocean City, Office Laura Hall, and Sergeant Daniel Dubbs (Ocean City Defendants) and the Shore Mem orial Hospital, Nurse Page, and Nurse Ruiz (Hospital Defendants). The Court granted partial sum m ary judgm ent in favor of the Ocean City Defendants on April 28, 20 15. Then, on Decem ber 1, 20 15, the Court denied the m otions for sum m ary judgm ent and to dism iss of both Shore Mem orial Hospital and Kathryn Page, R.N. Defendant J essica Ruiz’s cross m otions were also denied, but without prejudice and with the right to refile upon the conclusion of discovery. Presently at issue are Defendants City of Ocean City’s, Officer Laura Hall’s, and Sergeant Daniel Dubbs’s m otion for sum m ary judgm ent as to Counts II (excessive force), VI (unreasonable search and seizure), VIII (conspiracy), X (m unicipal liability) and on the doctrine of qualified im m unity. 3 II. Stan d ard o f Re vie w 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 (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 (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 (198 6). 4 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 (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 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 256-57. 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). 5 III. An alys is Defendants raise several argum ents in favor of sum m ary judgm ent. First, Defendants argue Plaintiff’s failure to dem onstrate that any force was em ployed during her catheterization and/ or blood draw m erits sum m ary judgm ent on the excessive force claim as plead in Count II. Second, Defendants contend that Plaintiff fails to dem onstrate that the search and seizure were unjustified warranting sum m ary judgm ent on Count VI. Third, Defendants argue that Plaintiff cannot establish that Defendants conspired or agreed to violate her civil rights as plead in Count VIII. Fourth, Defendants argue that sum m ary judgm ent is warranted on Plaintiff’s claim of m unicipal liability as plead in Count X. Finally, Defendants argue that they are entitled to qualified im m unity because Plaintiff cannot show that a constitutional right was violated or that the right was clearly established at the tim e of her arrest. The Court will analyze the argum ents within the context of the qualified im m unity fram ework. Qu alifie d Im m u n ity The doctrine of qualified im m unity provides that “governm ent officials perform ing discretionary functions ... are shielded from liability for 6 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, 10 2 S.Ct. 2727, 73 L.Ed.2d 396 (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, 121 S.Ct. 2151, 150 L.Ed.2d 272 (20 0 1). 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, 121 S.Ct. 2151 (quoting Anderson v. Creighton, 483 U.S. 635, 640 , 10 7 S.Ct. 30 34, 97 L.Ed.2d 523 (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 confronted.” 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 m unity. Couden, 446 F.3d at 492 (internal citations om itted). Further, “[i]f officers of reasonable com petence could disagree on th[e] 7 issue, im m unity should be recognized.” Malley v. Briggs, 475 U.S. 335, 341, 10 6 S.Ct. 10 92, 89 L.Ed.2d 271 (1986). See also Brosseau v. Haugen, 543 U.S. 194, 198, 125 S.Ct. 596, 160 L.Ed.2d 583 (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 m unity is an affirm ative defense, the burden of proving its applicability rests with the defendant. See Beers– Capitol v. Whetzel, 256 F.3d 120 , 142, n. 15 (3d Cir. 20 0 1). Courts m ay exercise discretion in deciding which of the two prongs of the qualified im m 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, 129 S.Ct. 80 8, 818, 172 L.Ed.2d 565 (20 0 9). Here, the Court will address whether the constitutional right Powell claim s was violated was clearly established before addressing whether a constitutional violation occurred. A. W h e th e r Th e Righ t W a s Cle arly Es tablis h e d Plaintiff argues that the right to be free from a warrantless catheterization search was clearly established on J uly 11, 20 12. In this regard, Plaintiff relies on J iosi v. Twp. Of Nutley, 332 N.J . Super. 169, 181, 753 A.2d 132 (20 0 0 ) to establish that a law enforcem ent officer who orders a m edical catheterization and whose participation in the procedure runs 8 afoul of m edically accepted standards violates the Fourth Am endm ent rights of the individual subjected to catheterization. Defendants argue that the law at the tim e of Powell’s was unclear as to whether the dissipation of evidence contained in bodily fluids qualifies as exigence per se. Recently, in Missouri v. McNeely, 133 S.Ct. 1552 (20 13), the Suprem e Court addressed “whether the natural m etabolization of alcohol in the bloodstream presents a per se exigency that justifies an exception to the Fourth Am endm ent's warrant requirem ent for nonconsensual blood testing in all drunk-driving cases.” Id. at 1577. The Court ruled that exigency, “consistent with general Fourth Am en dm ent principles, . . . m ust be determ ined case by case based on the totality of the circum stances.” Id. In so ruling, the Suprem e Court noted the previous uncertainty surrounding warrantless searches of bodily fluids in driving under the influence cases. Id. “[C]ase law, like that of m any sister states, had provided de facto, if not de jure, support for law enforcem ent to believe that alcohol dissipation in and of itself supported a finding of exigency for a warrantless search of bodily fluids in suspected driving-under-the-influence cases.” Id. Shortly after the holding in McNeely, the New J ersey Suprem e Court ruled in favor of retroactive application of McNeely and, in so doing, noted the historical uncertainty of the law with respect to “warrantless searches 9 involving blood draws of suspected DWI drivers[.]” State v. Adkins, 221 N.J . 30 0 , 313, 113 A.3d 734, 741– 42 (20 15). Defendants here argue that the historical am biguity of the need for a warrant in the collection of bodily fluids, as recognized by McNeely and Adkins, m erits attachm ent of qualified im m unity. On this record, the Court disagrees. Plaintiff here com plains of an unreasonable intrusion by catheter in an effort to collect bodily fluids that was allegedly accom plished with the m echanical participation of the police. The use of a catheter sets this case apart from the facts of McNeely and Adkins, both of which involved blood draws. In addition, Defendants’ proposed application of the dicta in McNeely with respect to the collection of bodily fluids m isses the m ark. While both cases suggest qualified im m unity for the blood draw and the attem pt to collect urine by way of a suspect urinating in a cup, catheterization, as the New Appellate Division recognized in J iosi, is intim ately intrusive and m ust be perform ed in a m edically acceptable m anner. 332 N.J . Super. at 177. “Because it is clear that the collection and testing of urine intrudes upon the expectations of privacy that society has long recognized as reasonable ... these intrusions m ust be deem ed searches under the Fourth Am endm ent.” Skinner v. Railway Labor Executives' Assoc., 489 U.S. 60 2, 617, 10 9 S.Ct. 140 2, 1413, 10 3 L. Ed.2d 639, 660 10 (1989). Likewise, the Suprem e Court in Schm erber held “that the Constitution does not forbid the States['] m inor intrusions into an individual's body under stringently lim ited circum stances in no way indicates that it perm its m ore substantial intrusions, or intrusions under other conditions.” Schm erber v. California, 384 U.S. 757, 772, 86 S. Ct. 1826, 1835– 36, 16 L. Ed. 2d 90 8 (1966). In New J ersey, at the tim e of Powell’s arrest the Appellate Division had established the m agnitude of the intim acy of the intrusion of catheterization and the special consideration it m erits as to the necessity of a warrant. “As the physical intrusion m oves from the sim ple to the m ore elaborate, from the less to the m ore intrusive, we also consider the nature of the crim e, the relevance of the evidence sought, the degree of risk to the person undergoing the procedure and the m agnitude of the intrusion upon the dignity, privacy and bodily integrity of the individual.” J iosi, 332 N.J . Super. at 179, 753 A.2d at 137– 38 (citing Winston v. Lee, 470 U.S. 753, 10 5 S.Ct. 1611, 84 L.Ed.2d 662 (1985) (no com pelling need shown to rem ove a bullet from suspect's chest in light of other available evidence); State v. Lawson, 187 N.J . Super. 25, 28– 29, 453 A.2d 556 (App. Div. 1982) (judicial support sought for the surgical rem oval of a bullet from suspect's thigh)). 11 The Court’s dicta in McNeely did not abrogate the J iosi’s application of Fourth Am endm ent protections in cases involving the use of a catheter. As a result, the question of exigency becom es critical as the law at the tim e of Plaintiff’s arrest was clearly established that a warrant was necessary for the use of a catheter absent exigent circum stances; there is no exigency per se.3 Both the United States Suprem e Court and the New J ersey Appellate Division establish standards for exigency in the collection of bodily fluids. In Schm erber, the Court noted that the type of crim e and urgency for results inform s the exigency analysis. The officer in the present case, however, m ight reasonably have believed that he was confronted with an em ergency, in which the delay necessary to obtain a warrant, under the circum stances, threatened ‘the destruction of evidence,’ Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 883, 11 L.Ed.2d 777. We are told that the percentage of alcohol in the blood begins to dim inish shortly after drinking stops, as the body functions to elim inate it from the system . Particularly in a case such as this, where tim e had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no tim e to seek out a m agistrate and secure a warrant. Given these special facts, we conclude that the attem pt to secure evidence of blood-alcohol content in this case was an appropriate incident to petitioner's arrest. Id. at 771. Likewise, in J iosi, the Appellate Division articulated special concerns with m edical procedures such as catheterization, that m ust be satisfied to justify a warrantless search. 3 The unsettled question of law was whether a warrant is always required, despite exigent circumstances. 12 In reversing the trial court’s grant of sum m ary judgm ent, the Appellate Division opined: In our view it is not enough to dem onstrate that the procedure can be accom plished without harm to the “patient.” Under the present circum stances where the sam ple is being taken, not for an accepted m edical purpose but to further a crim inal prosecution, constitutional rights of privacy are im plicated “[b]ecause it is clear that the collection and testing of urine intrudes upon the expectations of privacy that society has long recognized as reasonable ... these intrusions m ust be deem ed searches under the Fourth Am endm ent.” Skinner v. Railway Labor Executives' Assoc., 489 U.S. 60 2, 617, 10 9 S.Ct. 140 2, 1413, 10 3 L. Ed.2d 639, 660 (1989). In this context the question of whether the procedure was done in a “m edically accepted m anner” entails m ore than the m echanics of the procedure. It m ust also encom pass the question of whether the procedure was necessary for its intended purpose. The record before the m otion judge was not fully developed in this regard, but on the proofs provided a jury could find that the period of tim e plaintiff was given to voluntarily urinate was insufficient to justify involuntary catheterization. The tim e lapse between plaintiff's last glass of water an d the involuntary catheterization m ay have been as little as sixteen m inutes. Overall, the tim e between when plaintiff began taking water and the catheterization was only around forty-six m inutes. What problem s m ight have arisen by allowing plaintiff m ore tim e to voluntarily urinate were not explored at the sum m ary judgm ent hearing. J iosi, 332 N.J . Super. at 177. Here, Plaintiff was arrested for driving under the influence. She failed a field test perform ed at the police station. She also exhibited behaviors that Sgt. Dubbs states were consistent with drug use. At this point, when coupled with the evidence of the dam age to her car and the 13 eyewitness testim ony that Powell struck the Longport Bridge Toll Booth, Powell could have been charged with reckless driving. Thus, because the catheterization was done for the purpose of furthering a crim inal investigation, that other factors m ay have already justified arrest, and the fact that there is insufficient evidence as to the necessity to catheterize Plaintiff after only an hour of waiting for her to produce a urine sam ple, there are questions of fact regarding exigency that preclude attachm ent of qualified im m unity at this tim e. Sgt. Dubbs states that the decision to send Powell to the hospital was m ade because they “had waited awhile” without offering any em ergency circum stances or concerns about dissipation of evidence. See Dubbs Dep., 52:21-25-53:1-25. In this regard, the Court consideration of whether there are exigent circum stances is “ ‘highly fact sensitive.’ ” State v. Alvarez, 238 N.J . Super. 560 , 568– 569, 570 A.2d 459 (App. Div. 1990 ) (quoting State v. Lewis, 116 N.J . 477, 487, 561 A.2d 1153 (1989)). Therefore, questions related to whether a legitim ate need for a urine sam ple existed at the tim e it was involuntarily taken.4 Moreover, Officer Hall participated in the catheterization procedure and questions of facts rem ain as to whether her conduct of holding the 4 There are questions of fact related to consent. Dubbs testifies that Powell gave consent at police headquarters to collect her urine. Dubbs Dep., 66:16-21. Hall claims she inferred consent at the hospital because Powell did not object. Hall Dep. at 125:14-21. 14 collection tube and cup broke the sterile field and caused the procedure to be accom plished in violation of m edically accepted standards. See Hall Dep. at 60 :1-25; Powell v. City of Ocean City, No. 13-CV-4395 (D.N.J . Decem ber 1, 20 15) (Dkt. Nos. 72, 73). Finally, to the extent that Defendants argue that the law was unsettled or that they m istakenly believed they had the authority to perform a warrantless search under the present circum stances, there are questions of facts related to what the Defendants knew at the tim e, particularly given the fact that both police officers state that they did not receive any training regarding the procedures and circum stances perm itting catheterization. See Dubbs Dep. 13:4, 15:7-11, 16:1—17:2; 19:1719, 20 :1-25, 27:19-25, 27:17-22 (no training on collection of urine), 28:6-11, 28:16-25; Hall Dep. at 20 -21, 24:17-20 , 32:12-25, 33:1-8 (collection of bodily fluid evidence), Chief Callahan Dep., 17:6-10 . Reasonableness of the officers’ belief m ust be inform ed by facts. As a result, the Court finds that the law was clearly established that a warrantless search by catheter was perm itted at the tim e of Plaintiff’s arrest upon a showing of exigent circum stances. Here, there are genuine issues of fact related to whether such circum stances are present in this case and whether the police officer Defendan ts believed that their conduct 15 com ported with the established requirem ents of the law at the tim e of Plaintiff’s arrest. Sum m ary judgm ent is denied as to this prong of the qualified im m unity analysis. B. W h e th e r Plain tiff’s Co n s titu tio n al Righ ts W e re Vio late d 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 , 112 S.Ct. 10 61, 117 L.Ed.2d 261 (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. See 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, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979). By its own words, therefore, Section 1983 “does not ... create substantive rights.” Kaucher v. 16 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 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 plaintiff was deprived of her 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). There is no dispute here that Sgt. Dubbs and Officer Hall were acting under the color of state law on J uly 11, 20 12. Therefore, the question confronting the Court is whether Plaintiff suffered deprivation of her Constitutional rights. 1. Co u n t II Exce s s ive Fo rce 17 Sum m ary judgm ent is denied as to Count II because there are questions of fact related to exigency and whether the catheterization was perform ed in a m edically acceptable m anner. A Fourth Am endm ent excessive force claim calls for an evaluation of whether police officers' actions are objectively reasonable in light of the facts and circum stances confronting him . Graham v. Connor, 490 U.S. 386, 397, 10 9 S.Ct. 1865, 10 4 L.Ed.2d 443 (1989). While the question of reasonableness is objective, the court m ay consider 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 the suspect is actively resisting arrest or attem pting to evade arrest by flight. Id. Furtherm ore, appropriate attention should be given “to the circum stances of the police action, which are often ‘tense, uncertain, and rapidly evolving.’ ” Grom an v. Township of Manalapan, 47 F.3d 628, 634 (3d Cir. 1995) (quoting Graham , 490 U.S. at 396, 10 9 S.Ct. 1865). See also Graham , 490 U.S. at 396, 10 9 S.Ct. 1865 (“Not every push or shove, even if it m ay later seem unnecessary,” violates the constitution.). There is no dispute here that the blood draw and the catheterization were done without physical restraint of Plaintiff. In this regard, this is not a circum stance where the defendant police officers em ployed force to restrain 18 a com bative suspect during the course of their arrest and/ or investigation. Com pare, Cook v. Olathe Medical Center, Inc., 773 F.Supp.2d 990 (D. Kan. 20 11) (catheterizing a com bative DUI suspect by forcibly restraining and holding down the suspect). Rather, the alleged use of force is use of the catheter itself and the fact that Officer Hall participated in the procedure, which Plaintiff argues violates the New J ersey Attorney General’s Use of Force Policy. That policy, in relevant part, provides: In situations where law enforcem ent officers are justified in using force, the utm ost restraint should be exercised. The use of force should never be considered routine. In determ ining to use force, the law enforcem ent officer shall be guided by the principle that the degree of force em ployed in any situation should be only that reasonably necessary. Law enforcem ent officers should exhaust all other reasonable m eans before resorting to the use of force. It is the policy of the State of New J ersey that law enforcem ent officers will use only that force which is objectively reasonable and necessary. D. Mechanical Force 1. Mechanical force involves the use of som e device or substance, other than a firearm , to overcom e a subject’s resistance to the exertion of the law enforcem ent officer’s authority. 2. Exam ples include the use of a baton or other object, canine physical contact with a subject, or chem ical or natural agent spraying. Prior to being transported to Shore Mem orial Hospital, Plaintiff was given ten cups of water and attem pted, but was unable, to produce a urine sam ple at the police station. See Dep. Officer Hall, 19:13-22. According to Officer Hall, Plaintiff could not sufficiently urinate and was then taken to 19 the hospital where she was catheterized so that a urine sam ple could be collected and blood was drawn for analysis. See id., 19:2-6. Officer Hall testified that Plaintiff was not given another opportunity to urinate at the hospital. Id. at 19:23-25. Plaintiff claim s she contracted a serious infection as a result of the catheterization. Sum m ary judgm ent is not warranted at on Count II because questions of fact exist as to whether the catheterization was necessary and/ or perform ed in a m edically acceptable m anner. As previously discussed in the Court’s Opinion and Order denying the Hospital Defendants’ m otion for sum m ary judgm ent, pursuant to J iosi questions of exigency and whether the catheterization was perform ed in a m edically acceptable m anner preclude sum m ary judgm ent on this claim . See Powell v. City of Ocean City, No. 13-CV-4395 (D.N.J . Decem ber 1, 20 15) (Dkt. Nos. 72, 73); J iosi, 332 N.J . Super. 169. In J iosi, the plaintiff was arrested and charged with driving under the influence. J iosi, 332 N.J . Super. 169. He was taken to the hospital where blood was drawn with the plaintiff’s perm ission. Id. Like Plaintiff, J iosi was involuntarily catheterized and there was a factual question as to whether m ore tim e could have been allotted for him to produce a urine sam ple without catheterization and or the results of the blood test to present. Id. 20 Powell continuously consum ed water at the police station and could not void for approxim ately an hour and she was not given a chance to attem pt to void her urine at the hospital before she was catheterized. Like J iosi, there are questions of fact related to whether the police could have waited m ore tim e for Powell to produce a urine sam ple. The presence of these sim ilar factual disputes caused the Appellate Division in J iosi to rem and the m atter to the trial court for further exploration. The Court finds that reasoning persuasive. In addition, there is a question of fact as to whether the catheterization procedure was perform ed in a m edically acceptable m anner. See Aff. of Cheryl McKnight, Ex. D; Hall Dep. 60 :1-25 (agreeing that holding the collection cup with a finger on the catheter tubing was im provident). Moreover, none of the factors inform ing reasonableness tilt toward sum m ary judgm ent. Here, the severity of the crim e at issue is a driving under the influence charge; Powell ultim ately plead to reckless driving. Given that Powell was taken to the station and rem oved from harm , there is no evidence that she posed an im m ediate threat to the safety of the officers or others, and the tests were not conducted for her own health em ergency. Rather, the defendant officers state that they grew tired of waiting. Hall Dep. 83-84, 96:22-25-97:1-14; Dubbs Dep., 52:21-25-53:1-25. 21 In deposition, Dubbs testified that urinalysis is the best way to test for drugs and that he believed, based upon his assessm ent of Powell, that she was altered by drugs and not alcohol. Dubbs Dep. 34:19-25-35:1-13. Balancing “the nature and quality of the intrusion on the individual's Fourth Am endm ent interests” against “the countervailing governm ental interests at stake[, t]he question is whether the officers' actions are ‘objectively reasonable’ in light of the facts and circum stances confronting them , without regard to their underlying intent or m otivation.” Graham , 490 U.S. at 396-397. Here, given the relatively short lapse of tim e between Powell’s consum ption of water and her catheterization, there is a question of exigency that inform s this claim ; if exigency did not exist, Plaintiff m ay prevail at trial. On the other hand, if exigency can be established at trial and it can be established that the procedure was perform ed in a m edically acceptable m anner, then given the absence of physical force used, catheterization standing alone is not sufficient grounds for an excessive force claim . See, e.g. Hooper v. Pearson, 20 10 WL 2990 80 9 (D. Utah J uly 26, 20 10 ) (granting sum m ary judgm ent on an excessive force claim where forcible catheterization was perform ed while police physically restrained an uncooperative DUI suspect). 22 On this record, there are questions of fact related to exigency and the m anner in which the catheterization was perform ed. Sum m ary judgm ent is denied. 2 . Co u n t VI U n re a s o n a ble Se arch an d Se izu re For the reasons articulated in Section III.A., the Court finds that there are questions of fact related to the reasonableness of the police officers’ decision to draw blood and catheterize Plaintiff at the tim e the procedures were conducted and the m anner in which Hall participated in the catheterization. Sum m ary judgm ent is denied as to Count VI. 3 . Co u n t VIII Co n s p iracy p u rs u an t to 4 2 U .S.C. §§ 19 8 3 , 19 8 5 an d 19 8 6 . Sum m ary judgm ent is granted as to Plaintiff’s conspiracy claim s as plead in Count VIII because Powell fails to point to evidence in the record that dem onstrates any “com bination, agreem ent, or understanding am ong all or between any of the defendants to plot, plan or conspire to carry out the alleged chain of events in order to deprive plaintiff of a federally protected right.” Fioriglio v. City of Atlantic City, 996 F. Supp. 379, 385 (D.N.J . 1998). As a result, an essential elem ent of conspiracy is m issing and sum m ary judgm ent is granted. A plaintiff m ust establish the following for such a cause of action 42 U.S.C. § 1985(3):(1) A conspiracy; (2) for the purpose of depriving, either 23 directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and im m unities under the laws; and (3) act in furtherance of the conspiracy; an d (4) whereby a person is injured in his person or property or deprived of any right or privilege of a citizen of the United States. Farber v. City of Paterson, 440 F.3d 131, 134 (3d Cir. 20 0 6) (quoting United Brotherhood of Carpenters & J ointers v. Scott, 463 U.S. 825, 828– 29, 10 3 S.Ct. 3352, 77 L.Ed.2d 10 49 (1983)). “It is well established that § 1985(3) does not itself create any substantive rights; rather, it serves only as a vehicle for vindicating federal rights and privileges which have been defined elsewhere.” Brown v. Philip Morris Inc., 250 F.3d 789, 80 5 (3d Cir.20 0 1). A “m eeting of the m inds” is required for a civil rights conspiracy cause of action. Starzell v. City of Philadelphia, 533 F.3d 183, 20 5 (3d Cir. 20 0 8). Here, Plaintiff m erely suggests that Sgt. Dubbs and Officer Hall “acted in concert and conspired to violate plaintiff’s . . . constitutional rights.” See Pl. Opp. Br., p. 10 . Without pointing to any evidence in the record, Plaintiff states that because Officer Hall failed to question her sergeant’s orders to catheterize and draw blood from Plaintiff, she was acting as his “m inion” and argues such conduct creates a genuine issue of m aterial fact for trial. Id. at p. 11. Such conjecture is insufficient on a 24 m otion for sum m ary judgm ent. Andersen, 477 U.S. at 256-57. The record is devoid of evidence of an agreem en t am ong the Defendants to em ploy excessive force on Plaintiff or to illegally search her person. As a result, sum m ary judgm ent is granted as to Plaintiff’s claim in Count VIII brought pursuant to 42 U.S.C. § 1985. Likewise, sum m ary judgm ent is granted as to Plaintiff’s claim bought pursuant to 42 U.S.C. § 1986 as plead in Count VIII because a Section 1986 claim cannot survive in the absence of a viable Section 1985 claim . See Lee– Patterson v. N.J . Transit Bus Operations, Inc., 957 F. Supp. 1391, 140 3 (D.N.J . 1997) (citing Black v. Bayer, 672 F.2d 30 9, 312– 13, n. 4 (1982)). In this regard, 42 U.S.C. § 1986 does not create an independent cause of action; section 1986 creates a cause of action against those “having knowledge that any of the wrongs conspired to be done, and m entioned in section 1985 of this title, are about to be com m itted, and having power to prevent or aid in preventing the com m ission of the sam e, neglects or refuses so to do, if such wrongful act be com m itted[.]” 42 U.S.C. § 1986. Without a viable Section 1985 claim , a Section 1986 claim cannot survive. Because Plaintiff's § 1985 claim is without m erit, sum m ary judgm ent is granted on her § 1986 claim . 4 . Co u n t X Mu n icip al Liability again s t th e City o f Oce an City 25 Sum m ary judgm ent is denied as to Count X because there are questions of fact related to whether the City was deliberately indifferent to the obvious consequences of failing to train on the procedures for collecting urine. A m unicipality is not liable under 42 U.S.C. § 1983 on a respondeat superior theory. Monell v. Dept. Soc. Servs. of New York, 436 U.S. 658, 691, 98 S.Ct. 20 18, 56 L.Ed.2d 611 (1978). However, a governm ent entity m ay be liable for its agent's actions upon a dem onstration that a policy or custom of the m unicipality caused, or was a “m oving force” behind, the alleged violation of Plaintiff's rights. Kentucky v. Graham , 473 U.S. 159, 166, 10 5 S.Ct. 30 99, 87 L.Ed.2d 114 (1985) (quoting Polk County v. Dodson, 454 U.S. 312, 326, 10 2 S.Ct. 445, 70 L.Ed.2d 50 9 (1981)); Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996). Thus, in order to prevail against the governm ent entity, “[a] plaintiff m ust identify the challenged policy, attribute it to the city itself, and show a causal link between execution of the policy and the injury suffered.” Losch v. Parkesburg, 736 F.2d 90 3, 910 (3d Cir. 1984). Further, a plaintiff m ust show that the m unicipality acted with “deliberate indifference” to the known policy or custom . Canton v. Harris, 489 U.S. 378, 388, 10 9 S.Ct. 1197, 10 3 L.Ed.2d 412 (1989). “A showing of 26 sim ple or even heightened negligence will not suffice.” Board of County Com m 'rs of Bryan County, Okl. v. Brown, 520 U.S. at 397, 40 7 (1997). Here, Plaintiff has alleged a “failure-to-train” claim . The record reflects and Plaintiff does not dispute that Defendants have provided am ple evidence of training for DUI investigatory stops. Plaintiff argues that the failure to specifically train with regards to involuntary, warrantless catheterization “m ay fairly be said to represent a policy for which the city is responsible, and for which the city m ay be held liable if it actually causes injury.” City of Canton, Ohio v. Harris, 489 U.S. 378, 390 , 10 9 S. Ct. 1197, 120 5, 10 3 L. Ed. 2d 412 (1989). In this regard, Plaintiff’s allegation is closely related to her ultim ate injury. Id. The Defendants agree that no specific training regarding the use of catheterization to collect urine sam ples was provided by the City. See Dubbs Dep. 13:4, 15:7-11, 16:1—17:2; 19:17-19, 20 :1-25, 27:19-25, 27:17-22 (no training on collection of urine), 28 :6-11, 28 :16-25; Hall Dep. at 20 -21, 24:17-20 , 32:12-25, 33:1-8 (bodily fluid evidence), Chief Callahan Dep., 17:6-10 . To this extent, Plaintiff has created a genuine issue of fact regarding the City’s failure to train. However, to prove a § 1983 constitutional violation for failure to train, Plaintiff m ust also show that Defendant's conduct am ounted to 27 deliberate indifference. “[A]bsent a pattern of sim ilar constitutional violations by untrained em ployees, [deliberate indifference] require[s] proof that a m unicipal actor disregarded a known or obvious consequence of his action.” Brown, 520 U.S. at 410 , 117 S.Ct. 1382. “ ‘[D]eliberate indifference’ is a stringent standard of fault, requiring proof that a m unicipal actor disregarded a known or obvious consequence of his action.” Id., at 410 . In addition, Plaintiff m ust show that the deliberate indifference was the m oving force behind Plaintiff’s injuries. In m ost cases, to qualify as the “m oving force,” the plaintiff needs to show that a pattern of tortious conduct, “rather than a one-tim e negligent adm inistration of the program or factors peculiar to the officer involved in a particular incident,” caused her injury. Brown, 520 U.S. at 40 7-0 8. The deliberate indifference “necessary to trigger m unicipal liability” likely requires the public entity to display “continued adherence to an approach that [it] know[s] or should know has failed to prevent tortious conduct by em ployees.” Id. at 40 7; see also Bonenberger v. Plym outh Twp., 132 F.3d 20 , 25 (3d Cir. 1997). Finally, Plaintiff is tasked with identifying specific training or policies that would prevent future harm and dem onstrate that “the risk reduction ... is so great and so obvious that failure of those responsible for the content of 28 the training to provide [the proposed training or policy] can reasonably be attributed to a deliberate indifference....” Woloszyn v. Cnty. of Lawrence, 396 F.3d 314, 325 (3d Cir. 20 0 5) (quoting Colburn v. Upper Darby Twp., 946 F.2d 10 17, 10 29– 30 (3d Cir. 1991)). The unrefuted evidence in the record dem onstrates that Plaintiff’s case was the first tim e a police officer in the City em ployed a catheter to extract a urine sam ple. There is no pattern of sim ilar constitutional violations and Plaintiff has not dem onstrated m ore than a one-tim e negligent act. However, the Suprem e Court in Brown, noted the possibility to prove an allegation of failure to train without evidence of a pattern. 520 U.S. at 40 9, 117 S. Ct. at 1391; see also Canton, 489 U.S., at 390 , and n. 10 , 10 9 S.Ct., at 120 5, and n. 10 (“[I]t m ay happen that in light of the duties assigned to specific officers or em ployees the need for m ore or different training is so obvious ... that the policym akers of the city can reasonably be said to have been deliberately indifferent to the need”). Thus, a failure to train m ay be proven in the absence of a pattern of constitutional violations only in a “narrow range of circum stances” where a “violation of federal rights m ay be a highly predictable consequence of a failure to equip law enforcem ent officers with specific tools to handle recurring situations.” Brown, 520 U.S. at 40 9 (pattern not necessary to 29 show deliberate indifference where it would be “obvious that a policy or custom would lead to constitutional violations.”). In this regard, the Court finds that the fact that Powell has not established a pattern of Fourth Am endm ent violations by the City is not dispositive of her claim s. The Defendant police officers' jobs require them to collect bodily fluid sam ples and the Defendants have testified to a lack of training with respect to the collection of urine, which even when perform ed by urinating into a cup creates an obvious need for “specific tools to handle” the intim acy of the situation. Brown, 520 U.S. at 410 . Here, Powell was involuntarily catheterized and Officer Hall participated in the m edical procedure. The Court finds that questions of facts exists precluding sum m ary judgm ent as to whether the “glaring om ission” of failing to train on the collection of urine including the use of a catheter caused Officer Hall to inappropriately participate in the catheterization of Powell was a highly predictable consequence of the om ission. Sum m ary judgm ent is denied. IV. Co n clu s io n For the reasons stated above and those set forth on the record during the hearing, sum m ary judgm ent is denied as to Counts II, VI and Count X. Sum m ary judgm ent is granted as to Count VIII. In addition, the Court 30 finds that the presence of genuine issues of m aterial fact precludes attachm ent of qualified im m unity. An appropriate Order shall issue. Dated: Septem ber 28, 20 16 s/ J oseph H. Rodriguez Hon. J oseph H. Rodriguez, UNITED STATES DISTRICT J UDGE 31 32
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