904 F.3d 280 (3rd Cir. 2018), 17-2594, Jutrowski v. Township of Riverdale

Docket Nº:17-2594
Citation:904 F.3d 280
Opinion Judge:KRAUSE, Circuit Judge.
Party Name:Emil JUTROWSKI, Appellant v. TOWNSHIP OF RIVERDALE; State of New Jersey, by and through the New Jersey State Police; Jeffrey Heimbach, New Jersey State Police Trooper, individually and in his representative capacity as a State Police Officer; James Franchino, individually and in his representative capacity as a New Jersey State Police Officer; ...
Attorney:Robert J. Degroot, Esq. [Argued], Counsel for Plaintiff-Appellant Emil Jutrowski Anthony P. Seijas, Esq. [Argued], Cleary Giacobbe Alfieri & Jacobs, Counsel for Defendant-Appellees Township of Riverdale, Travis Roemmele, Christopher Biro, and Chief Thomas Soules Gurbir S. Grewal, Attorney General...
Judge Panel:Before: JORDAN, KRAUSE, and GREENBERG, Circuit Judges
Case Date:September 12, 2018
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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904 F.3d 280 (3rd Cir. 2018)

Emil JUTROWSKI, Appellant

v.

TOWNSHIP OF RIVERDALE; State of New Jersey, by and through the New Jersey State Police; Jeffrey Heimbach, New Jersey State Police Trooper, individually and in his representative capacity as a State Police Officer; James Franchino, individually and in his representative capacity as a New Jersey State Police Officer; Travis Roemmele, individually and in his representative capacity as a Riverdale Police Officer; Christopher Biro, individually and in his representative capacity as a Riverdale Police Officer; John Does (1-20); Col. Rick Fuentes, in his representative capacity as a commanding and Chief Executive Officer of the New Jersey State Police; Chief Thomas Soules, in his representative capacity as Chief of the Riverdale Police Department,

No. 17-2594

United States Court of Appeals, Third Circuit

September 12, 2018

Argued: March 12, 2018

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On Appeal from the United States District Court for the District of New Jersey (D.N.J. Civil Action No. 2:13-cv-07351), Honorable John M. Vazquez, U.S. District Judge

Robert J. Degroot, Esq. [Argued], Counsel for Plaintiff-Appellant Emil Jutrowski

Anthony P. Seijas, Esq. [Argued], Cleary Giacobbe Alfieri & Jacobs, Counsel for Defendant-Appellees Township of Riverdale, Travis Roemmele, Christopher Biro, and Chief Thomas Soules

Gurbir S. Grewal, Attorney General of New Jersey, Matthew J. Lynch, Esq. [Argued], Robert P. Preuss, Esq., Office of the Attorney General of New Jersey, Counsel for Defendant-Appellees State of New Jersey, Jeffrey Heimbach, James Franchino, and Col. Rick Fuentes

Before: JORDAN, KRAUSE, and GREENBERG, Circuit Judges

OPINION

KRAUSE, Circuit Judge.

This case arises from an undisputed constitutional violation: an act of excessive force committed during the arrest of Appellant Emil Jutrowski in which he was kicked in the face, breaking his eye socket. Appellees— consisting of two Riverdale, New Jersey Police Officers and two New Jersey State Troopers involved in the arrest (the "Individual Defendants"), and their respective employers, the Township of Riverdale and the State of New Jersey (collectively, the "Defendants")— do not dispute that one of the officers kicked Jutrowski. But each of the Individual Defendants asserts he neither inflicted the blow himself nor saw anyone else do so, and Jutrowski, whose face was pinned to the pavement when the excessive force occurred, is unable to identify his assailant. He therefore brought excessive force claims against all Defendants and conspiracy claims against the four Individual Defendants under 42 U.S.C. § 1983. The District Court, however, relying on our precedent that a defendant in a civil rights action must have "personal involvement" in the alleged wrongs, Rode v. Dellarciprete, 845 F.2d 1195, 1207-08 (3d Cir. 1988), determined that Jutrowski’s inability to identify his attacker was fatal to his

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claims and granted summary judgment in Defendants’ favor.

We are now called upon to outline the contours of this "personal involvement" requirement in § 1983 cases and to consider its application when a plaintiff who indisputably suffered a constitutional injury at the hands of one officer comes up against to the proverbial "blue wall of silence." Despite the unfortunate situation created for plaintiffs like Jutrowski who are unable to identify their attackers through no fault of their own, we hold that a plaintiff alleging that one or more officers engaged in unconstitutional conduct must establish the "personal involvement" of each named defendant to survive summary judgment and take that defendant to trial. Nonetheless, where a plaintiff adduces sufficient evidence of an after-the-fact conspiracy to cover up misconduct, even of an unidentified officer, he may be able to state a claim under § 1983 for the violation of a different constitutional right: the due process right of access to the courts. Such is the case here. Accordingly, we will affirm the District Court as to Jutrowski’s excessive force claim but will reverse and remand as to his conspiracy claim.

I. Background

A. Factual Background 1

On June 23, 2010, Emil Jutrowski, after drinking several vodka sodas at a bar in East Hanover, NJ, crashed his sport utility vehicle along the shoulder of the highway. Other than a small cut above his right eye, Jutrowski suffered no injuries from the accident. Because his car was pinned up against the left guardrail, however, he could not exit from the driver’s side door and was still attempting to "pull away" when police arrived. App. 285. The first two officers to arrive on the scene were Officer Travis Roemmele and Officer Christopher Biro of the Riverdale, New Jersey Police Department (the "Riverdale Defendants"). Moments later, three State Troopers arrived, including Appellees Jeffrey Heimbach and James Franchino (the "State Trooper Defendants").

The officers quickly deduced that Jutrowski was heavily intoxicated. Heimbach, who first approached Jutrowski, immediately detected "an overwhelming odor of an alcoholic beverage emanating from the interior of [the] vehicle," and asked Jutrowski to produce his license and registration. App. 285. Instead, Jutrowski attempted to light a cigarette and proceeded to rub liquid hand sanitizer on his face.2 As the smell of alcohol became "stronger," Heimbach determined that "it was emanating directly from [Jutrowski’s] breath." App. 285. He also observed that Jutrowski’s eyes were bloodshot and his pupils extremely dilated, and that, although Jutrowski was still seated in his vehicle, he was disoriented and moving slowly. Id.3

It was also apparent that Jutrowski needed medical attention. Heimbach noticed the cut above his right eye, and Jutrowski told Heimbach that he was injured, that he had a heart condition, and

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that he wanted to go to the hospital. Soon after, emergency medical personnel arrived and administered first aid while Jutrowski remained seated in his SUV. At the point Jutrowski verbally refused further medical treatment but also refused to sign a written waiver of further treatment, Heimbach asked Jutrowski to exit his vehicle. Jutrowski initially refused but eventually, because the driver’s side door was inoperable, he climbed over the seat and exited the passenger door without assistance. The officers acquiesced to Jutrowski’s request not to be handcuffed on account of his heart condition, and Troopers Heimbach and Franchino began escorting him towards the ambulance on the other side of the highway. Jutrowski, however, was unsteady on his feet and wobbled, so Trooper Franchino, concerned about "the roadway conditions and the proximity to traffic," reached out for Jutrowski’s right wrist to steady him.4 App. 281. In reaction, Jutrowski "pulled his hand away in an upward fashion, subsequently striking [Franchino] in the forehead with his forearm," App. 281, and Franchino, in turn, promptly executed a "front leg sweep" maneuver that took Jutrowski to the ground, App. 281, 424. Jutrowski fell "straight ahead," App. 425, with "some force," App. 426, and "just kind of face-planted, just like a tower falling over," App. 336.

Lying on the ground on his stomach, Jutrowski’s face was turned to his right, with his left cheek on the pavement. With Troopers Franchino and Heimbach on Jutrowski’s right side and a third trooper on his left, the officers attempted to handcuff him— a difficult task because Jutrowski’s hands were tucked underneath him and he was a "very strong, very big man," allegedly weighing over 300 pounds at the time. App. 375, 427, 462. As Franchino used his baton to pry Jutrowski’s arms from underneath him, Riverdale Officers Biro and Roemmele ran over to assist. Biro knelt down at Jutrowski’s feet to hold his legs, and Roemmele "assisted by holding [Jutrowski’s] legs while the officers were finally able to remove [his] hands from under his body." App. 288. Heimbach put his knee in the small of Jutrowski’s back to subdue him and with Jutrowski still lying face down, Heimbach began to search him. Franchino was positioned near Jutrowski’s shoulders, and was thus "closest to his head." App. 438.

At some point in the midst of this scuffle, one of the officers kicked Jutrowski hard on the right side of his face,5 hard enough to inflict a "blow out fracture," that is, a broken nose and broken eye socket, requiring surgery. App. 262-63.6

After the kick, the officers turned Jutrowski over on his back and Trooper

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Heimbach continued searching him. As Heimbach was patting him down, however, Jutrowski "kick[ed] his left leg up striking ... Trooper [Heimbach] in the face with his left foot." App. 288. At that point, Jutrowski was handcuffed and taken to the hospital. He...

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