733 Fed.Appx. 587 (3rd Cir. 2018), 17-2204, Rivera v. Como

Docket Nº:17-2204
Citation:733 Fed.Appx. 587
Opinion Judge:VANASKIE, Circuit Judge.
Party Name:Richard RIVERA, Appellant v. Lake COMO; Kevin E. Jones, Jr.; Alex Fay; Adam Levine; John Does 1-5, (fictitious individuals), members of the Lake Como Police Department; Fred Hope, Chief of Police; John Does 6-10 (fictitious individuals), Personnel of the Lake Como Police Department, in their supervisory capacities
Attorney:Thomas J. Mallon, Esq., Law Offices of Mallon & Tranger, Freehold, NJ, for Plaintiff-Appellant Charles J. Uliano, Esq., Chamlin Rosen Uliano & Witherington, West Long Branch, NJ, for Defendants-Appellees
Judge Panel:Before: HARDIMAN, VANASKIE and SHWARTZ, Circuit Judges
Case Date:May 01, 2018
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

Page 587

733 Fed.Appx. 587 (3rd Cir. 2018)

Richard RIVERA, Appellant

v.

Lake COMO; Kevin E. Jones, Jr.; Alex Fay; Adam Levine; John Does 1-5, (fictitious individuals), members of the Lake Como Police Department; Fred Hope, Chief of Police; John Does 6-10 (fictitious individuals), Personnel of the Lake Como Police Department, in their supervisory capacities

No. 17-2204

United States Court of Appeals, Third Circuit

May 1, 2018

Submitted Under Third Circuit L.A.R. 34.1(a) January 26, 2018

NOT PRECEDENTIAL

Editorial Note:

This opinion is not regarded as Precedents which bind the court under Third Circuit Internal Operating Procedure Rule 5.7. (See Federal Rule of Appellate Procedure Rule 32.1)

On Appeal from the United States District Court for the District of New Jersey (D.C. Civil No. 3-16-cv-00318), District Judge: Honorable Peter G. Sheridan

Thomas J. Mallon, Esq., Law Offices of Mallon & Tranger, Freehold, NJ, for Plaintiff-Appellant

Charles J. Uliano, Esq., Chamlin Rosen Uliano & Witherington, West Long Branch, NJ, for Defendants-Appellees

Before: HARDIMAN, VANASKIE and SHWARTZ, Circuit Judges

OPINION[*]

VANASKIE, Circuit Judge.

Page 588

Appellant Richard Rivera claims the District Court erred by granting qualified immunity in favor of the Defendant Police Officers on his claims brought under 42 U.S.C. § 1983 for use of excessive force and failure to intervene during his arrest. For the reasons stated below, we will affirm the order of the District Court entered on May 9, 2017.

I.

On July 5, 2014, Rivera hosted a barbecue at his home. Alcoholic beverages were served, and Rivera had been drinking. That night, Rivera and several friends traveled to Bar Anticipation ("Bar A") in Lake Como, New Jersey. Around 10:30 p.m., a disturbance arose among the bar patrons. Bar A staff demanded that Rivera and his group leave, and there ensued "pushing and shoving in the group and yelling." (JA-53.)

Lake Como Police Officers Alex Fay and Adam Levine had been assigned to that area and were observing the commotion. Officer Levine testified that one could "smell the alcohol in the area, and "[t]he way [Rivera] was yelling and the manner [in which] he was acting" led the officers to believe that Rivera was intoxicated. (Id. ) Officer Fay decided to approach the group.

Officer Fay asked Rivera to leave the area multiple times, but Rivera refused to comply. According to Rivera, he had been trying to put his shoe back on, but Officer Fay continuously pushed him. In response, Rivera told Officer Fay to "cut it the f*** out[,]" (id. at 71), and that "if [Officer Fay] wasn’t a police officer, ... [Rivera] would kick his a**." (Id. at 72.) As noted by Officer Fay in his Investigation Report, Rivera also stated that "he did ten years in state prison, [and] if [Officer Fay] [would] take off [his] badge and gun[,] ... [they] could fight[,] and that if he saw [Officer Fay] off duty [he] would be done...." (Id. at 113.)1

Officer Fay then informed Rivera that he was being arrested, and attempted to place Rivera’s hands behind his back to handcuff him. Rivera was not compliant, at which point Officers Levine and Fay "brought [him] down to the ground" to handcuff and arrest him for disorderly conduct. (Id. at 114.) After the arrest, Officers Levine and Fay filled out Use of Force Reports noting that they used a "[c]ompliance hold" and "[h]ands/fists" techniques after Rivera "[r]esisted police officer control." (Id. at 116-17.)

Rivera was subsequently transported to Lake Como Police Station for fingerprints and photographs, and was released on his own recognizance. Upon his release from the police station, Rivera went to the Jersey Shore University Medical Center where he was treated for a sprained left hand and contusions to his face, head, knees, and hand. Rivera testified that he was tackled and "kicked in the side of [his] face" during the course of his arrest, and had to use his hands to break his fall. (Id. at 63.)

Rivera was found guilty in municipal court of Disorderly Conduct, in violation of N.J. Stat. Ann. § 2C:33-2(a), and Resisting Arrest, in violation of N.J. Stat. Ann. § 2C:29-2(a)(1). He subsequently filed this civil rights action against the municipality

Page 589

of Lake Como, Chief of Police Fred Hope, and Officers Fay, Levine, and Kevin Jones— who was also present during the arrest. Rivera voluntarily dismissed the claims against Lake Como and Chief Hope, as well as all but one of the state law claims against the officers. Only claims for excessive force by the officers and failure to intervene, as well as a claim brought under the New Jersey Civil Rights Act, remained.

The day before Officer Levine’s deposition in this case, Officers Levine and Fay exchanged the following text messages: Officer Levine: Hey, bro, how did the deposition bulls*** go? ...

Officer Fay: Kevin Jones had his yesterday....

Officer Levine: LOL, this whole thing is a joke. Did he [say] how it went?

Officer Fay: Said it was the same questions as the trial went. Pay the c*** and be done with it.

Officer Levine: Agree.

(JA-111-12) (altered to include speaker attributions and readability).

Officers Jones, Fay, and Levine moved for summary judgment, seeking qualified immunity. The District Court heard argument and issued an oral opinion from the bench. Regarding Rivera’s excessive force claim, the District Court considered the following factors and found that the officers’ actions were "objectively reasonable" under the circumstances: Rivera had been drinking; it was late in the night; Bar A staff asked Rivera’s group to leave; there was "friction between the bouncers and Mr. Rivera and his group"; Rivera used foul and threatening language toward Officer Fay; and the officers did not use weapons during Rivera’s arrest. (JA-14-15.) Additionally, the Court determined that the text message conversation between Officers Fay and Levine was inadmissible as evidence of excessive force because it occurred "way after the accident." (Id. at 16.) The Court thus granted qualified immunity in favor of the officers because, although they used force while effectuating Rivera’s arrest, it was not excessive under the circumstances. The Court similarly granted qualified immunity in favor of the officers on Rivera’s failure to intervene claim. Rivera timely appealed.2

II.

The District Court had subject matter jurisdiction under 28 U.S.C. § § 1331, 1343(a)(3), and 1367. We have jurisdiction under 28 U.S.C. § 1291. We review the District Court’s grant of summary judgment de novo . Burns v. Pa. Dep’t of Corr., 642 F.3d 163, 170 (3d Cir. 2011). We review the District Courts evidentiary ruling...

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