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Jutrowski v. Township of Riverdale

United States Court of Appeals, Third Circuit

September 12, 2018

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,

          Argued: March 12, 2018

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

          Robert J. Degroot [Argued] Ole Nekritin Counsel for Appellant Emil Jutrowski

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

          Matthew J. Lynch [Argued] Office of Attorney General of New Jersey Division of Law Robert P. Preuss Office of Attorney General of New Jersey Division of Law Tort Litigation and Judiciary Christopher S. Porrino Office of Attorney General of New Jersey Melissa H. Raksa, Assistant Attorney General Kai W. Marshall-Otto Richard J. Hughes Justice Complex Counsel for Appellees State of New Jersey, Jeffrey Heimbach, James Franchino, and Col. Rick Fuentes

          Before: JORDAN, KRAUSE, and GREENBERG, Circuit Judges



         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 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 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 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 ultimately pleaded guilty to driving under the influence.

         B. Procedural History

         Because he was unable to identify which of the officers in his immediate vicinity was the one that kicked him, Jutrowski filed suit against Officers Biro and Roemmele and Troopers Franchino and Heimbach, along with the Township of Riverdale and State of New Jersey (collectively, the "Defendants").[7] His complaint, as relevant here, included in Count I a claim for the use of excessive force, in violation of the Fourth Amendment and 42 U.S.C. § 1983, and, in Counts V and VI, claims of conspiracy, in violation of § 1983 and New Jersey law, respectively, to violate federal and state civil rights by using excessive force, by filing false and misleading police reports, and by giving misleading grand jury testimony.[8]

         After Defendants unsuccessfully moved for dismissal, the case proceeded to discovery, where it was established that Biro, Roemmele, Franchino, and Heimbach were each in Jutrowski's immediate presence when he was kicked. But Jutrowski was not able in the course of the discovery to identify which of these law enforcement officers inflicted the blow, and none of the officers admitted to being either the perpetrator or a witness. Even Heimbach-who testified that he had his knee in Jutrowski's back between his shoulder blades, that his "sole focus" for "the entire time" was on Jutrowski's head, and that "if anything . . . struck [Jutrowski] in the face, he would know"-allegedly saw nothing. App. 344. Likewise, Trooper Franchino testified that he was the officer "closest to [Jutrowski's] head" and was "more than six inches [but] less than three feet" away when Jutrowski was taken to the ground, but he too saw nothing. App. 438.

         Nor did any of the dashboard cameras ("dashcams") on the officers' vehicles capture the incident. Officer Biro's car was parked closest to Jutrowski's, and his dashcam presumably would have had the best view of Jutrowski being escorted from his car across the highway-except that it allegedly did not record. According to Biro's testimony, he did not manually switch on the camera because he believed he was pulling over to investigate a traffic accident, not to effectuate a vehicle stop. Emil Jutrowski v. Township of Riverdale, et al., No. 13-7351, 2017 WL 1395484, at *1 (D.N.J. Apr. 17, 2017). Biro also indicated that the camera should record automatically when the emergency lights are activated, as they were here, but his testimony was ambiguous as to whether that was true at the time of the incident or was a more recent development, and Jutrowski's counsel did not seek clarification. For their part, the State Troopers' dashcams were activated but "did not capture any of the critical alleged events" due to their poor vantage points. Id.

         In the absence of evidence identifying the perpetrator, the District Court granted summary judgment on all counts for all Defendants. Id. As for the use of excessive force, although the Defendants "d[id] not contest that Plaintiff was kicked," the District Court reasoned that because Jutrowski could not "identify which Defendant kicked him," he was essentially asking "the Court to guess which individual Officer Defendant committed the alleged wrong." Id. at *4. In its thorough and thoughtful opinions granting summary judgment and denying reconsideration, the District Court relied on this Court's precedents to conclude that absent an "evidentiary basis on which to hold" any individual defendant liable, Defendants were all entitled to judgment as a matter of law. Id. The District Court also rejected Jutrowski's request to fill the evidentiary void with an adverse spoliation inference from the failure to produce Officer Biro's dashcam video because Jutrowski had not made "a request for inspection pursuant to Federal Rule of Civil Procedure 34(a)" or taken other steps to obtain evidence of the video, and thus he failed "to provide sufficient evidence demonstrating that the video actually existed." Id. at *5.

         As for the federal and state civil conspiracy counts, the District Court found "no facts suggesting that [Individual] Defendants spoke to each other concerning the alleged kick before the incident occurred" and that it could not infer any "after-the-fact" conspiracy because Jutrowski had not identified specific facts to support the contention "that the officers from Riverdale and the State Police colluded before writing their reports or testifying before the grand jury." Id. at *8. It therefore granted summary judgment on these counts, both to the extent they asserted a conspiracy to use excessive force and to the extent they asserted a conspiracy to violate Jutrowski's rights afterwards.

         Jutrowski now appeals, arguing that the District Court erred in granting summary judgment on his claims of ...

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