MICHAEL A. VALLONE v. TOWNSHIP OF HOLMDEL POLICE DEPARTMENT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-01452-12T3

MICHAEL A. VALLONE,

Plaintiff-Appellant,

v.

TOWNSHIP OF HOLMDEL POLICE

DEPARTMENT, TOWNSHIP OF HOLMDEL,

AND PATROLMAN MICHAEL MOORE,

Defendants-Respondents.

__________________________________

September 12, 2014

Argued October 17, 2013 - Decided

Before Judges Waugh, Nugent, and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No.

L-2196-10.

William E. Meyer argued the cause for appellant (Mr. Meyer and Michael S. Kasanoff, attorneys; Messrs. Meyer and Kasanoff, of counsel and on the brief).

David A. Schwartz argued the cause for respondents (Schwartz & Posnock, attorneys; Mr. Schwartz, on the brief).

PER CURIAM

This is a civil rights action in which plaintiff Michael A. Vallone alleges that he sustained severe injuries to his wrists as the result of being handcuffed too tightly by the Holmdel Township police officer who arrested him for driving under the influence of alcohol. Plaintiff appeals from two Law Division orders: one that denied his motion for a discovery extension, and the other that entered summary judgment dismissing his complaint. Having considered plaintiff's arguments in light of the record and controlling law, we conclude that the trial court did not misapply its discretion by denying plaintiff's motion to extend discovery. We also conclude that plaintiff's opposition to the summary judgment motion did not demonstrate the existence of a genuine issue of material fact that a jury had to resolve. Accordingly, we affirm.

I.

The record discloses the following procedural history. Holmdel Township patrolman Michael Moore arrested plaintiff early one May morning in 2008 for driving while under the influence of alcohol. Two years later, plaintiff filed a three-count complaint alleging: first, by handcuffing him too tightly and denying him treatment for his consequent injuries, Officer Moore, the Township, and the Township Police Department "negligently violated duties of care owed the plaintiff, including a duty not to expose him to unnecessary and unreasonable risk of injury and to afford him care for his injuries"; second, they violated the New Jersey Civil Rights Act (NJCRA), N.J.S.A. 10:6-2(c); and lastly, they violated the Federal Civil Rights Act, 42 U.S.C.A. 1983. Defendants filed an answer on September 20, 2010.

Between September 20, 2010, when defendants filed their answer, and February 14, 2012, when the court denied plaintiff's motion for an additional discovery extension, the parties exchanged some written discovery and filed several discovery motions. The record includes a not atypical exchange of allegations about who was at fault for delaying discovery. The ensuing motion practice resulted in several court orders. The first, entered on May 24, 2011, eight months after defendants answered the complaint, directed that defendants produce all recordings of plaintiff's arrest within ten days and three officers, including Moore, for depositions by June 30, 2011. Defendants produced the recordings.1 The depositions did not take place as ordered. The parties entered into a consent agreement to extend discovery for sixty days.

On August 30, 2011, the defendants moved to extend discovery. Plaintiff did not oppose the motion. The court initially denied it, noting that arbitration had been scheduled to take place on November 3, 2011, but reconsidered on October 24, 2011, and extended discovery for 120 days through February 16, 2012. The court ordered that fact depositions be completed by November 30, 2011,2 defendants serve liability and medical reports by December 30, 2011, and expert depositions be completed by the new discovery end date. Fact depositions did not take place. Defendants timely served expert reports written by Steven P. Lisser, M.D., a board-certified hand surgeon, and Dr. Jon M. Shane, an expert on police practices and procedures.

On December 21, 2011, plaintiff moved to extend discovery and compel depositions. He requested that the court extend the deadline for serving expert reports until March 30, 2012. Notwithstanding that request, on January 27, 2012, he served expert reports prepared by Frederick J. Rast, III and Frank C. Musumici.3 In his transmittal letter, plaintiff's counsel stated he was "scheduled to be out of state for approximately three weeks" and requested to be copied via email for any further correspondence. On February 14, 2012, the court denied plaintiff's motion, explaining in a rider attached to the order:

It is clear to this court that neither party in this matter has diligently pursued discovery during the initial discovery period or the two previous extensions. Virtually every deadline established by [the court has] been ignored.

The court finds that neither party has set forth exceptional circumstances warranting a further extension of discovery . . . . It is also notable that plaintiff's counsel served two expert reports beyond the time provided by [the previous] order and promptly advised defense counsel that he would be "unavailable" during the remaining time allotted under [the previous] order for the taking of expert depositions. It is also clear that plaintiff's counsel has sought to compel discovery which was already denied by [the court].

The case proceeded to mandatory arbitration. Following the arbitration, plaintiff filed a demand for trial de novo. Defendants thereafter moved for summary judgment, which the court granted on October 11, 2012. Plaintiff has appealed from the implementing order.

The parties developed the following facts on the summary judgment motion record.4 Holmdel Township patrolman Michael Moore arrested plaintiff early one May morning for driving while under the influence of alcohol. Officer Moore handcuffed plaintiff when he arrested him at 1:42 a.m. and removed the handcuffs after transporting him a short distance to the police station.

The parties produced both audio and video evidence of plaintiff's arrest. When handcuffing plaintiff, Officer Moore stood behind him, placed his hands on his head, and took each hand down while placing the handcuffs on his wrists. Before placing plaintiff in the patrol car, Officer Moore informed plaintiff that he was "being placed under arrest for driving while intoxicated." He then placed plaintiff in the patrol car, telling him to "have a seat right in there." Plaintiff responded "Okay sir." During that sequence of events, plaintiff made no complaints about the handcuffs. In a certification, however, plaintiff claimed that after he was initially handcuffed, and while he was standing alongside the patrol car out of the camera's view, Officer Moore tightened the handcuffs.

Approximately eighteen seconds after being placed in the patrol car, plaintiff attempted to get the officer's attention to inform him the handcuffs were too tight. He says in the video recording, "Excuse me sir. Excuse me sir. Sir. Sir. Sir. Can you lighten these up a little bit?" Officer Moore responds, "No, they're loose, you just can't sit on them, you gotta sit sideways okay?" Plaintiff replies, "Like that?" and Officer Moore replies, "Yup." One minute later plaintiff is heard saying, "They're a little bit tight sir," to which Officer Moore responds, "Like I just told you sir, [inaudible] between your arms, you just gotta sit sideways okay. We're going to headquarters in just a few minutes." Plaintiff replies, "I'm sittin' sideways sir."

During the next few minutes, plaintiff mumbles expletives. He alleges that the handcuffs were "ratcheted" tighter and that he "curse[d] after each ratcheting sequence in response to the pain." Yet, he makes no further complaints about the handcuffs during approximately eighteen seconds when Officer Moore enters the patrol car and begins to drive toward the station.

The parties dispute how long plaintiff remained handcuffed from the time Officer Moore arrested him until the officer removed the cuffs at the station. Officer Moore averred that plaintiff remained handcuffed for approximately fifteen minutes. Plaintiff, who claims he later measured the distance from where he was stopped to the police station at four and eight-tenths miles, calculates that he was handcuffed for at least thirty minutes. Yet, though plaintiff certified in opposition to defendants' summary judgment motion that he timed the trip to the police station and it took twelve minutes, and that the police took "a long time" to remove the cuffs once there, he did not say that he complained of pain while in the police car.

At the police station, though uncuffed, plaintiff told Officer Moore, "My fingers are numb." When the officer ignored him he repeated, "Sir," the officer responded, "Yes sir," and plaintiff repeated, "My fingers are numb." Officer Moore responded, "Okay. We just have to do a couple of things and then we'll get that taken care of, ok." Plaintiff said, extending his left hand, palm up, "This hand too. I mean, I know you guys are trying to do your job, but this is uh," at which time the officer interrupted so that he could read the requirement that plaintiff provide a breath sample.

After Officer Moore explained the consequences of refusing to provide a breath sample, plaintiff stated: "I want pictures taken. My lawyer's Jonathan Rudnick. And I think you guys . . . went beyond your means. And I want pictures taken of my bruises. And I refuse a breathalyzer at this time . . . . I understand you're doing your job, however, you guys went beyond."

Officer Moore then explained that he had to read additional information. While he again explained the consequences of refusing to provide a breath sample, plaintiff twice declared, "this is bull****." Plaintiff again refused to submit to a breath test, stating: "No sir. On the basis that this is like f****** Rodney King here . . . . You cut my blood off, my fingers are numb, this is bullshit, this is bullshit, I got a good lawyer, and you guys do what you want, I hope you're filming this, you got black and blues [sic] marks on me, this is bullshit. With all due respect . . . ."

Plaintiff refused to perform additional field sobriety tests. Officer Moore then handcuffed plaintiff and left the room to do some paperwork. When he returned, plaintiff told him, "You guys put the cuffs a little too tight. I'm already bruising."

While at the station, plaintiff periodically asked that pictures be taken of his wrists. In the video recording, his right wrist appears to be bruised and swollen, and to have a circular indentation in the skin around it.

The Township had adopted the Attorney General's Policy on Use of Force prior to the morning of plaintiff's arrest. The policy, as adopted by the Township, stated that "all prisoners who are transported shall be properly searched and handcuffed in accordance with Chapter 186[.]" The Township's policy, implemented "to promote uniformity in handcuffing," stated: "The handcuffs should be tightened securely, but not overly tight (you should be able to slide the tip of a finger completely around the cuff)." Additionally, the policy provides, "The handcuffs are to be double locked."

Officer Moore had received training in the use of force, handcuffing, and transportation of prisoners. He received a 100% score for his handcuffing training on October 1, 2007, seven months before the morning he arrested plaintiff. He has been trained

to secure the person of an arrestee before double locking the handcuffs, because retrieving the lock pin from my shirt pocket and feeling the handcuffs for the point of insertion for the locking pin, especially in dark, roadside conditions, without proper light, requires me to give up control of the person before I am assured that he does not have access to a weapon or instrumentality that may be a danger to me.

The parties presented expert reports to support their arguments for and against summary judgment. Defendants submitted the report of Dr. Jon M. Shane, Assistant Professor at John Jay College of Criminal Justice. Dr. Shane concluded "that the arrest and handcuffing of [plaintiff] was proper in ways that indicate regard for accepted industry standards and judgment." Dr. Shane found that Officer Moore was authorized to apply handcuffs and did so "in a manner consistent with accepted policy and industry practice guidelines for restraining prisoners." Dr. Shane stated explicitly that the officer applied the handcuffs in a manner consistent with the Township Police Department's policies on handcuffs and transportation of prisoners, and the New Jersey Attorney General's policy on use of force.

Plaintiff's expert, Frank C. Musumici, a certified handcuff instructor, found that when Officer Moore applied the handcuffs, he did not double lock them, causing plaintiff's injuries. Musumici stated he could quite audibly hear the handcuffs ratchet when plaintiff was in the back of the patrol car, and such a sound would indicate that the handcuffs were not double locked. As to the importance of double locking the handcuffs, Musumici explained in his report:

Once cuffs are on the subject's wrist, the officer must pinch his finger to his thumb between the cuffs and the wrist. Then at that point in time, the handcuffs should be double locked. The method of double locking is that handcuff keys have not only a key portion, but on the base of the key have a straight pin, which is part of the handcuff key. That pin is used to depress a tiny locking pin inside the handcuffs base. Once that is depressed, the handcuffs are properly applied. It is impossible for the ratchet to continue to close, thus tightening up on the subject. If the cuffs are not double locked, the ratchet can close as a subject moves, which can cause damage and injury to the individual.

Plaintiff's expert faulted Officer Moore for, among other things, failing to follow the Township's handcuffing procedures, failing to perform pinch tests, failing to recheck the handcuffs following plaintiff's complaints, and increasing the length of time plaintiff was handcuffed by conducting a search of plaintiff's vehicle at the scene.

The parties also produced the reports of medical experts, who had different opinions about whether plaintiff was injured as the result of being handcuffed. Plaintiff's experts concluded that he had sustained a chronic right radial nerve injury as well as carpal tunnel syndrome. Defendants' medical expert reported, "there is no basis to conclude there was any injury" that resulted from plaintiff being handcuffed.

Although defendants objected to the court considering evidence plaintiff had served belatedly and expert reports the court had barred because of discovery violations, the judge who heard the summary judgment motion considered that evidence. Nevertheless, the judge granted summary judgment to defendants and dismissed the complaint with prejudice. This appeal followed.

II.

When a party appeals from an order granting summary judgment, our review is de novo and we apply the same standard as the trial court under Rule 4:46-2. Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). First, we determine whether the moving party has demonstrated there were no genuine disputes as to material facts, and then we decide whether the motion judge's application of the law was correct. Atl. Mut. Ins. Co. v. Hillside Bottling Co., Inc., 387 N.J. Super. 224, 230-31 (App. Div.), certif. denied, 189 N.J. 104 (2006). In doing so, we view the evidence in the light most favorable to the non-moving party, Brill, supra, 142 N.J. at 540, and review the legal conclusions of the trial court de novo, without any special deference, Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Plaintiff first argues that he presented sufficient evidence as to his civil rights actions under the Federal Civil Rights Act, 42 U.S.C.A. 1983, and the New Jersey Civil Rights Act, N.J.S.A. 10:6-1 to -2, to defeat defendants' summary judgment motion. Defendants counter that the court correctly dismissed plaintiff's complaint on summary judgment because he failed to identify a violation of a constitutionally-protected right and he failed to overcome Officer Moore's qualified immunity.

The Federal Civil Rights Act provides in pertinent part that "[e]very person who, under color of [state law], subjects . . . any citizen . . . to the deprivation of any rights . . . secured by the Constitution and laws, shall be liable . . . in an action at law . . . ." 42 U.S.C.A. 1983. The NJCRA provides in pertinent part:

Any person who has been deprived of any substantive due process or equal protection rights, privileges or immunities secured by the Constitution or laws of the United States, or any substantive rights, privileges or immunities secured by the Constitution or laws of this State, or whose exercise or enjoyment of those substantive rights, privileges or immunities has been interfered with or attempted to be interfered with, by threats, intimidation or coercion by a person acting under color of law, may bring a civil action for damages and for injunctive or other appropriate relief.

[N.J.S.A. 10:6-2(c).]

Plaintiff does not dispute "that the arrest itself . . . in connection with the alleged DUI was reasonable," nor does he "dispute the reasonableness of handcuffing in connection with a lawful arrest." Rather, he claims that the force used in effectuating his arrest was unreasonable and excessive.

A plaintiff's claim that a police officer has used excessive force in effectuating a lawful arrest is "properly analyzed under the Fourth Amendment's 'objective reasonable' standard, rather than under a substantive due process standard." Graham v. Connor, 490 U.S. 386, 388, 109 S. Ct. 1865, 1867-68, 104 L. Ed. 2d 443, 450 (1989).

[T]he question is whether the officers' actions are 'objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. An officer's evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer's good intentions make an objectively unreasonable use of force constitutional.

[Id. at 397, 190 S. Ct. at 1872, 104 L. Ed. 2d at 456 (citations omitted).]

Moreover, a plaintiff's right of action is subject to a police officer's qualified immunity. See Saucier v. Katz, 533 U.S. 194, 200-01, 121 S. Ct. 2151, 2155-56, 150 L. Ed. 2d 272, 281 (2001), overruled in part by Pearson v. Callahan, 555 U.S. 223, 236, 129 S. Ct. 808, 818, 172 L. Ed. 2d 565, 576 (2009); Ramos v. Flowers, 429 N.J. Super. 13, 33 (App. Div. 2012) (holding that qualified immunity is an affirmative defense under the NJCRA). "Qualified immunity balances two important interests the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably." Pearson, supra, 555 U.S. at 231, 129 S. Ct. at 815, 172 L. Ed. 2d at 573.

In determining whether a police officer is entitled to qualified immunity, a court must decide whether the facts alleged by a plaintiff establish a violation of a constitutional right and, if so, whether that constitutional right was "clearly established" when the defendant committed the alleged misconduct. Id. at 232, 129 S. Ct. at 815-16, 172 L. Ed. 2d at 573. Judges may exercise their discretion when deciding which of those two prongs to address first in light of the circumstances of a particular case. Id. at 236, 129 S. Ct. at 818, 172 L. Ed. 2d at 576.

Here, plaintiff does not contend that it was unreasonable for Officer Moore to handcuff him at the time of his arrest. Indeed, it is undisputed that plaintiff did not complain that the handcuffs were too tight when the officer first applied them and when the officer placed plaintiff in the patrol car. Thus, the narrow issue is whether the officer's inaction in the face of plaintiff's complaints that the handcuffs were too tight was objectively reasonable under all of the circumstances. We conclude that the trial court properly determined that it was, and granted summary judgment based on qualified immunity.

Significantly, when plaintiff was seated in the patrol car he did not complain of pain to Officer Moore. He initially asked whether the officer could "lighten these up a little bit." Plaintiff does not allege that the officer was acting in bad faith when he explained that plaintiff had to sit sideways. A short time later, plaintiff informed the officer only that "they're a little bit tight Sir." The officer's response again indicates his belief that plaintiff thought they were tight because of the way he was sitting. There was no evidence to suggest otherwise. Thus, there was no reason at that time for the officer to believe defendant's handcuffs were causing excessive pain because they were too tight or because a double pin had not been inserted. This is particularly so in view of plaintiff's comments, not that he was in pain, but that the handcuffs were "a little bit tight."

The first time plaintiff complained of any pain was in the police station when he showed the officer his right wrist and said that his fingers were numb. By then, however, Officer Moore had removed the handcuffs. During the intervening time, the officer was dealing with an intoxicated detainee who voiced his criticism of the officer and made veiled threats about filing a lawsuit more than he complained about the pain that he claimed to have been experiencing. The doctrine of qualified immunity serves the interests of permitting officers to work without fear of precisely such insubstantial threats. Ramos, supra, 429 N.J. Super. at 27.

Plaintiff's remaining arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(E). We add only the following brief comments. Having determined that Officer Moore did not violate plaintiff's constitutional rights, neither the Township nor its police department can be vicariously liable. In any event, a municipality cannot be held liable in a civil rights action under a theory of respondeat superior for an injury inflicted solely by an employee or agent. Monell v. Dept. of Soc. Servs., 436 U.S. 658, 694, 98 S. Ct. 2018, 2037, 56 L. Ed. 2d 611, 638 (1978). Plaintiff has offered no competent evidence to demonstrate that handcuffing arrestees too tightly represented a policy or practice. Id. at 694, 98 S. Ct. 2037-38, 56 L. Ed. 2d at 638.

As to plaintiff's claim that he was denied emergency medical attention, nothing in the record suggests that he was in need of emergency medical care. As we have previously pointed out, plaintiff was much more emphatic in his criticism of Officer Moore and in making implied threats of a lawsuit than he was in conveying that he had been seriously injured or was in need of medical treatment.

We also reject plaintiff's claim that the trial court abused its discretion when it denied plaintiff's motion to extend discovery. The record fully supports the court's finding that the parties had not diligently pursued discovery during the initial discovery period or the extended discovery periods.

Affirmed.

1 The DVD copy reproduced from the patrol car camera is choppy and skips at times. This has been a point of contention between the parties. Defendants provided a certification that the DVD is an exact duplicate copy of the events recorded by the patrol car camera.

2 The actual order states 2009, but we assume the judge meant 2011.

3 At times throughout the record Mr. Musumici is referred to as "Mucumici."

4 Defendants supported their summary judgment motion with a statement of material facts "together with a citation to the portion of the motion record establishing the fact or demonstrating that it is uncontroverted." R. 4:46-2(a). Plaintiff did not file a responding statement that complied with Rule 4:46-2(b) by supporting his denials with citations to the portion of the motion record that supported his denials. Defendants' "facts" are therefore deemed to have been admitted. Ibid. Plaintiff also included unsworn statements and hearsay in his opposition papers. See R. 1:6-6. Nevertheless, where plaintiff's competent evidence demonstrates a dispute as to a material fact, we resolve that fact in favor of plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).