Bocchino v. City of Atl. City

Citation179 F.Supp.3d 387
Decision Date31 March 2016
Docket NumberCivil No. 14-233 (AMD)
Parties Anthony Bocchino, Plaintiff, v. City of Atlantic City, et al., Defendants.
CourtU.S. District Court — District of New Jersey

179 F.Supp.3d 387

Anthony Bocchino, Plaintiff,
v.
City of Atlantic City, et al., Defendants.

Civil No. 14-233 (AMD)

United States District Court, D. New Jersey, Camden Vicinage.

Signed March 31, 2016


179 F.Supp.3d 390

Timothy J. McIlwain, Esq., McIlwain, LLC, McIlwain Professional Building, 2020 New Road, Suite A, Linwood, NJ 08221, Attorney for Plaintiff Anthony Bocchino.

John C. Hegarty, Esq., Jasinski, P.C., 8025 Black Horse Pike, Suite 470, West Atlantic City, NJ 08232, Attorney for Defendants.

OPINION

DONIO, UNITED STATES MAGISTRATE JUDGE

In this action, Plaintiff Anthony Bocchino (hereinafter, “Plaintiff”) alleges Defendants City of Atlantic City and Atlantic City Police Officers James Miltenberger1 and Donnell Holland (hereinafter, “Defendants”) violated his federal civil rights in the course of arresting him following his removal from a nightclub in Atlantic City. (See Complaint [D.I.1].) Specifically, Plaintiff asserts that Defendant Officers used excessive force in arresting Plaintiff and that Defendants failed to provide medical treatment. (Id.) Presently before the Court is Defendants' motion for summary judgment. (See Motion for Summary Judgment (hereinafter, “Defs.' Mot. [D.I. 28].)) Defendants claim the force used was reasonable and Plaintiff was provided medical care. (See generally Brief [D.I. 28-2].) The incident was captured on surveillance video.2 The Court has considered the parties' submissions, held oral argument, and for the reasons that follow, grants in part and denies in part Defendants' motion.3

It is undisputed that in the early morning hours of August 12, 2012 Plaintiff was “intoxicated while at The Pool After Dark at Harrah's Resort” (hereinafter, “The Pool”) in Atlantic City. (Defendants' Statement of Undisputed Material Facts (hereinafter, “Defs.' Facts”) [D.I. 28-1], ¶ 1; see also Plaintiff's Response to Defendants' Statement of Undisputed Material Facts (hereinafter, “Pls.' Response”) [D.I. 38], ¶ 1.) The parties dispute nearly all other facts related to the incident. Defendants assert that on August 12, 2012 “Officers Miltenberger and Holland were summoned to the rear of [The Pool] in reference to a disorderly male[, Plaintiff,] who was arguing

179 F.Supp.3d 391

and pushing one of the bouncers.” (Defs.' Facts [D.I. 28-1], ¶ 10(a).) Defendants describe Plaintiff as a “284 pound man” (Brief [D.I. 28-2], 1), while Plaintiff asserts he was “overweight, of below average height and completely unarmed.” (Response in Opposition (hereinafter, “Pl.'s Brief”) [D.I. 38], 17.) Defendants maintain that upon arriving at The Pool, “[Defendant] Officer Miltenberger witnessed the intoxicated male in a physical altercation with the bouncers and they were attempting to remove him from the rear door.” (Defs.' Facts [D.I. 28-1], ¶ 10(b).) Defendants assert “[Defendant] Officers Miltenberger and Holland assisted the bouncers in removing [Plaintiff] and led him to the back of the house ... away from the hotel guests to minimize any danger to them.” (Id. at ¶ 10(c).)

Defendants further claim that Plaintiff was disruptive and yelled obscenities and racial epithets. (Id. at ¶¶ 10(g), 11(i), 13, 14, 16, 21.) Defendants maintain Defendant Officer Holland “observed [P]laintiff raise his hands in a combative stance.” (Id. at ¶ 17.) Defendants assert Defendant “Officer Miltenberger placed his hand on top of [P]laintiff's clenched fists and told [P]laintiff to relax, that he was free to go to any other casino but could not stay at Harrah's.” (Id. at ¶ 28.) Defendants maintain Plaintiff then spit on Officer Miltenberger who in response, “struck [P]laintiff in the face several times to prevent him from spitting in his face again.” (Id. at ¶ 10(i).) According to Defendants “Plaintiff was then taken to the ground where he resisted and was finally placed into handcuffs and transported to the in-house holding cell” within the casino. (Id. at ¶ 10(j).)

As it relates to the actions in the in-house holding cell, Defendants maintain Plaintiff “was very disruptive,” spit blood on the wall, and cursed at the security guards and police officers. (Id. at ¶ 10(l).) Defendants assert that while Plaintiff was in the in-house holding cell he “refuse[d] repeated lawful orders to remain seated.” (Id. at ¶ 22.) Officer Holland certifies in his interrogatory answers that “[w]hen Plaintiff attempted to leave the holding area and refused my instructions to sit down, fearing he would harm me, the security officers or himself[,] I used reasonable force to get him to comply.” (Hegarty Certification, Exhibit I [D.I. 28-3], ¶ 10.) In their summary judgment brief, Defendants describe the contact between Officer Holland and Plaintiff in the following way:

It was not until [P]laintiff left his seat and walked out of the holding room—in direct contravention of the officers' lawful orders—that Holland was constrained to use physical force to direct him back to his seat. And the force used was minimal; Holland placed his right hand on [P]laintiff's shoulder and left hand on [P]laintiff's chest to guide him. Holland did not touch [P]laintiff after he was seated until [P]laintiff again, only twenty-two seconds later, stood up and walked toward the door. And Holland again acted reasonably in response: for just two seconds, Holland placed his right hand on the left side of [P]laintiff's neck to guide [P]laintiff back into the seat.”

(Defs.' Brief [D.I. 28-2], 13-14.)

As it relates to the failure to provide medical care claim, Defendants maintain that “[t]he in-house nurse was summoned to treat [P]laintiff for bleeding from his mouth.”4 (Defs.' Facts [D.I. 28-1], ¶ 10(k).) Defendants contend “Plaintiff was treated, released and transported to the station for processing.” (Id. at ¶ 10(m).) Defendants

179 F.Supp.3d 392

maintain that following the incident, “[a]n X-Ray of [P]laintiff's mandible (his jaw) was normal[ ]” and “Plaintiff was diagnosed with a lip contusion.” (Id. at ¶¶ 35-36.)

In his submission opposing the motion, Plaintiff relies exclusively on the surveillance video. (See, e.g., Pl.'s Response [D.I. 38], ¶¶ 10(f)-(k), 13-22, 24-29 (stating, in part, “[v]ideo evidence contradicts”).) There is no dispute that “Plaintiff only has a ‘vague’ memory of the evening ‘with many gaps' ” (Defs.’ Facts [D.I. 28-1], ¶ 3; see also Pl.'s Response [D.I. 38], ¶ 3), and that Plaintiff's only information about the events from the night “is from the police report and the surveillance video.” (Defs.' Facts [D.I. 28-1], ¶ 5; see also Pl.'s Response [D.I. 38], ¶ 5.) Plaintiff, citing only to the surveillance video, denies that Plaintiff was disruptive in the holding cell and states “Plaintiff was requesting medical attention.” (Pl.'s Response [D.I. 38], ¶ 10(l).) Plaintiff also denies Defendants' assertion that “Plaintiff was treated, released and transported to the station for processing” (Defs.' Facts [D.I. 28-1], ¶ 10(m)), and contends that “Plaintiff was treated in Northern New Jersey eight hours after injury.” (Pl.'s Response [D.I. 38], ¶ 10(m).) Plaintiff also denies, in part, Defendants' facts related to Plaintiff's medical records and asserts “[t]he medical records indicate other contusions.” (Id. at ¶¶ 35-36.)

The parties do not dispute that following the incident Plaintiff was charged with aggravated assault in violation of N.J.S.A. 2C:12–1b(5)(a); resisting arrest in violation of N.J.S.A. 2C:29–a(3)(a); and throwing bodily fluid at a law enforcement employee in violation of N.J.S.A. 2C:12–13. (Defs.' Facts [D.I. 28-1], ¶¶ 6-8; see also Pl.'s Response [D.I. 38], ¶¶ 6-8.) Also undisputed is the fact that following the incident “Officer Miltenberger filed a Use of Force Report indicating that [P]laintiff resisted police officer control and that Officer Miltenberger used a compliance hold and his hands/fists toward [P]laintiff.” (Defs.' Facts [D.I. 28-1], ¶ 9; see also Pl.'s Response [D.I. 38], ¶ 9.)

Plaintiff filed this action on January 13, 2014 and alleges generally that he was “without basis or provocation, brutally beat,” “restrained,” “falsely imprisoned,” and “falsely charged [ ] with aggravated assault” by Defendants (Complaint [D.I. 1], ¶ 8), following his removal from an Atlantic City nightclub “after a non-violent word exchange with a bouncer at the nightclub.” (Id. at ¶¶ 5-6.) Plaintiff asserts that “[a]s a result of the actions of the individually named Officers, [he] has suffered severe emotional trauma as well as physical injury, loss of income and other expenses[.]” (Id. at ¶ 9.) Specifically, Plaintiff alleges that he was subjected to excessive force in violation of his Fourth and Fourteenth Amendment rights (id. at ¶¶ 11-19), he was denied medical care (id. at ¶¶ 20-26), and that Defendant City of Atlantic City engaged in “deliberately indifferent policies, practices, customs, training, and supervision in violation of the [F]ourth, [F]ourteenth, and [F]irst [A]mendments and in violation of 42 U.S.C. § 1981.” (Id. at ¶¶ 27-43.) Plaintiff seeks compensatory and punitive damages, attorneys' costs and fees, and any “further relief as the Court may deem just, proper, and appropriate.” (Id. at ¶ 44.) Defendants deny Plaintiff's allegations and assert a number of legal defenses. (See generally Answer [D.I. 4].) Fact discovery concluded on April 30, 2015 (see Amended Scheduling Order [D.I. 20], Mar. 30, 2015), and Defendants...

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