Rodriguez v. City of Passaic

Decision Date21 February 1990
Docket NumberCiv. A. No. 85-1911 (MTB).
Citation730 F. Supp. 1314
PartiesJuan RODRIGUEZ, Plaintiff, v. The CITY OF PASSAIC, The City of Passaic Police Department, Police Officer Detective Judith Kicha, and Police Officers "John Does" Whose Names are Unknown to Plaintiff, Defendants.
CourtU.S. District Court — District of New Jersey

Kliegerman & Friess, New York City by Rosemary Carroll, for plaintiff.

Morgan, Melhuish, Monaghan, Arvidson, Abrutyn & Lisowski, Livingston, N.J. by

Robert John Aste, for defendants City of Passaic and City of Passaic Police Dept.

John A. Gurdak, Clifton, N.J., for defendant Judith Kicha.

OPINION

BARRY, District Judge.

INTRODUCTION

No doubt motivated at least in part by the serious nature of plaintiff's injuries, this court has accorded him the benefit of every call along the way, most particularly with reference to a serious statute of limitations problem. The problem is this: although plaintiff was shot on January 8, 1978, he did not file this civil rights action until December 21, 1984, almost seven years later and, absent tolling of the statute of limitations for almost five years, well out of time.1

First, this court determined that the judge to whom this case was formerly assigned had erred in concluding that, in the federal courts, a hearing as to whether plaintiff was "insane" within the meaning of N.J.S.A. 2A:14-21 and, if so, whether the statute of limitations should be tolled was for the court and not for the jury. (Letter Opinion and Order, May 1, 1986). Certainly, had this court not effectively reversed its brother judge but, rather, tried the statute of limitations issue to the bench, the evidence at that time would most likely have led this court to find that plaintiff was not "insane," and certainly not insane for the requisite five years.

Second, defendants subsequently moved for summary judgment on the statute of limitations issue, a motion which was denied. Again, had this court been trying that issue rather than determining whether defendants' motion for summary judgment should be granted, the evidence submitted by defendants at that time would have produced a very different result. The court stated:

I am unable to conclude on the basis of the record before me that no reasonable person could find under the Kyle standard Kyle v. Green Acres at Verona, Inc., 44 N.J. 100, 207 A.2d 513 (1965) as interpreted and extended in Sobin v. M. Frisch and Sons, 108 N.J.Super. 99, 260 A.2d 228 (App.Div.1969), certif. denied, 55 N.J. 448, 262 A.2d 702 (1970), that plaintiff was insane under N.J.S.A. 2A:14-21 or that he was insane for the lengthy period of time during which the statute must be tolled. The affidavits and medical evidence are conflicting and the issues of whether and for how long plaintiff was insane must go to the jury. While this result is compelled under the rigorous summary judgment standard, plaintiff should be aware that, at least in this court's view, a most difficult task awaits him at trial. (Opinion, Feb. 27, 1987 at 13), (emphasis added).

Subsequent discovery has made defendants' position even stronger. Without pausing to set forth the additional evidence that has been submitted, suffice it to say that there is now medical evidence that within days after the shooting, plaintiff was alert and responsive without any indication of confusion and evidence that the investigating detectives elicited clear verbal and non-verbal responses from him. Another witness, who found plaintiff during the month after the shooting to be alert, focused, and coherent, observed that plaintiff achieved some notoriety among his attending nurses for what was described as foul language, the fact that he was getting "kind of fresh", and his continual demands of his nurses that his body be rubbed with alcohol. (Mejia Dep. at 112-15, 149-50). That same witness, a Spanish-speaking social worker, recalled that in early 1978 she urged plaintiff's mother, who spent much time with her son then and thereafter and may well have communicated what she was told to him, to seek legal advice regarding the shooting and provided the names of Spanish-speaking attorneys in the area. However, because there is still some minimal basis for plaintiff's claim that this action is not time-barred, this court will again deny defendants' motion for summary judgment on this ground, although it has even less confidence than before that plaintiff would ultimately prevail were the issue to go to the jury.

Because the complaint was filed years after the shooting and because this court has permitted the case to continue nonetheless, the case has become complicated, not as a factual matter but as a legal matter. Thus, currently before the court are defendants' motions for summary judgment raising a host of the usual grounds. Virtually every Supreme Court case on which defendants base a particular defense or on which plaintiff bases a particular claim was decided well after the shooting at issue here,2 arguably requiring a determination as to whether at least some of those cases should or should not be applied retroactively and whether the applicable law was "clearly established" at the time of the shooting for the purpose of determining whether the individual defendant's motion for summary judgment based on qualified immunity should be granted — assuming, of course, that Harlow v. Fitzgerald is applied retroactively.

It is to the morass which plaintiff and the court have created that I now turn.

I.

On October 14, 1977, the Villa Nova Tavern in Passaic was robbed by three or four Puerto Rican males. (Pardo Dep. at 8, 9, 22). The owner of the bar, Juan Pardo, had returned from the bank that morning with approximately $1000 in cash and was alone in the bar when the men entered. Id. at 8-9. As Pardo was serving drinks to two of the men, plaintiff pulled a revolver on Pardo and held it to his head, forcing him into a small office in the rear of the bar. Id. at 9-10, 23. Plaintiff and one of his accomplices then proceeded to take the cash from a security box, place it in a bag, and handcuff Pardo to a stationary steam pipe. Id. at 10-11, 24. One of the men also assaulted a patron, striking him on the back of the head with such force that he fell to the floor and bled profusely. Id. at 11. The men escaped with the money.

Detective Judith Kicha of the Passaic Police Department investigated the robbery. On January 8, 1978 she received a phone call from Pardo advising her that one of the individuals who had been involved was upstairs at 7-9 Third Street. (Final Pretrial Order, Stipulation of Facts at 10; Pardo Dep. at 15, 42). Kicha, together with her partner, Detective Martin Kemp, drove to the Tavern and picked up Pardo. (Final Pretrial Order, Stipulation of Facts at 10; Kemp Dep. at 81, 83). Kemp radioed for Detective Andrew Risko to meet them at an intersection near the building. (Final Pretrial Order, Stipulation of Facts at 10-11; Kemp Dep. at 81). Upon arriving at the intersection, Kicha, Kemp and Pardo were met by Risko and Officers Ronald Martinelli and Richard Williams. (Final Pretrial Order, Stipulation of Facts at 11; Kemp Report at 1).

Martinelli and Williams positioned themselves in the front and rear of 7-9 Third Street while Kicha, Kemp, Pardo and Risko proceeded inside the building and up the stairs to the right front apartment on the second floor. (Final Pretrial Order, Stipulation of Facts at 11; Kemp Dep. at 81-82, 84; Williams Dep. at 32). In response to their knock, a child opened the door and the detectives and Pardo were permitted to enter the kitchen of the apartment. (Rodriguez Dep. at 9; Pardo Dep. at 17; Kemp Dep. at 84-86). The door of an adjacent bedroom was open and plaintiff, clad only in his underwear, was in bed with a woman. (Rodriguez Dep. at 9-10, 17; Pardo Dep. at 17-18; Kemp Dep. at 86-87).

The detectives entered the bedroom, identified themselves as police officers, and directed plaintiff to sit up. (Rodriguez Dep. at 11-14). Pardo also entered the bedroom and was asked if plaintiff was the one who "did the holdup." (Rodriguez Dep. at 13; Pardo Dep. at 18-19). He responded, "Yes, it was." (Pardo Dep. at 18). The detectives then instructed plaintiff to get dressed. (Rodriguez Dep. at 13). As plaintiff was in the process of dressing, a struggle ensued between the detectives, plaintiff, and the women occupants of the apartment. (Rodriguez Dep. at 13; Kicha Dep. at 136). Plaintiff broke free and ran out of the apartment. (Rodriguez Dep. at 27; Kicha Dep. at 136). Kicha gave chase. (Kicha Dep. at 136).

Plaintiff ran down the stairs, exited the building through the side door into an alleyway, and followed the alleyway to the enclosed yard behind 7-9 Third Street, with Kicha in pursuit.3 (Rodriguez Dep. at 28-29; Kicha Dep. at 136-138, 140). He then ran across the yard and vaulted a six-foot chain-link fence into the enclosed backyard of 3-5 Third Street. (Bethea Dep. at 3-4; Kicha Dep. at 138; Kutchmanich Dep. at 113). He climbed onto a doghouse adjacent to a section of chain-link fence which separated the yard from a garage and prepared to scale that fence. (Rodriguez Dep. at 30, 34; Bethea Dep. at 4, 7).4 It was then, plaintiff alleges, when he heard Kicha yell "Stop, police!" that he realized for the first time that he was being followed. (Rodriguez Dep. at 30-32). Having ordered plaintiff to halt, Kicha, who was still in the alleyway, fired a warning shot into the air. (Bethea Dep. at 8; Kicha Dep. at 138, 140). Plaintiff did not turn around but "jumped on up ... fixing to go over the top...." (Bethea Dep. at 8-9). He concedes that his hands were raised when he heard "Stop, police" and that he was thinking of jumping. (Rodriguez Dep. at 34-35).5 Within a matter of seconds, Kicha fired twice from the yard of 7-9 Third Street at a distance of approximately 23 feet.6 (Rodriguez Dep. at 33-34; Kicha Dep. at 145; Kutchmanich Dep. at 115). Plaintiff was struck in the back left...

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