Vincent McCrudden v. United States ( 2019 )


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  •                                                                 NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    ___________
    No. 18-2343
    ___________
    VINCENT MCCRUDDEN,
    Appellant
    v.
    UNITED STATES OF AMERICA;
    LIEUTENANT ANDERSON;
    FOUR JOHN DOES
    ____________________________________
    On Appeal from the United States District Court
    for the District of New Jersey
    (D.N.J. Civil Action No. 1-14-cv-03532)
    District Judge: Honorable Robert B. Kugler
    ____________________________________
    Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
    January 2, 2019
    Before: GREENAWAY, JR., RESTREPO and FUENTES, Circuit Judges
    (Opinion filed February 19, 2019)
    ___________
    OPINION*
    ___________
    PER CURIAM
    *
    This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
    constitute binding precedent.
    Pro se appellant Vincent McCrudden appeals the District Court’s grant of
    summary judgment for defendants in an action he brought pursuant to Bivens v. Six
    Unknown Named Agents of Federal Bureau of Narcotics, 
    403 U.S. 388
    (1971), and the
    Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671-80. For the reasons that follow,
    we will affirm the District Court’s judgment.
    I.
    Because we write primarily for the benefit of the parties, we will recite only the
    facts necessary for our discussion; these facts are undisputed unless otherwise noted.
    During the time relevant to this suit, McCrudden was incarcerated at the Federal
    Correctional Institution at Fort Dix. On August 31, 2012, McCrudden exchanged his
    identification card for a basketball in his housing unit to use in the recreation area.
    Officer James-Devon Darville signed out the basketball to McCrudden.
    Later that day, officers instructed inmates to return to their housing units for count;
    McCrudden carried the basketball out from the recreation area. Officer David Harrell
    approached McCrudden and told him to return the basketball to the recreation area by
    throwing it over the fence. McCrudden refused, stating that he would not get his
    identification card back if he did so. After a brief exchange, Harrell ordered McCrudden
    to accompany him to Lieutenant Joseph Anderson’s office. Harrell never touched
    McCrudden. At Anderson’s office, Harrell told Anderson that McCrudden had
    disobeyed an order and spoken to him disrespectfully. McCrudden laughed, interrupted
    Harrell, and said that he was lying.
    2
    At this point, the parties’ accounts diverge; McCrudden’s account follows. After
    McCrudden accused Harrell of lying, Anderson became angry and ordered officers to
    handcuff McCrudden and get him out of his office. McCrudden turned and was pulled
    from the room by several unidentified officers. He felt many hands pulling on him and
    tugging on his clothing from behind. He was thrown or pushed against a cinderblock
    wall in an outside hallway and handcuffed while he was facing the wall. He stayed
    upright while he was being handcuffed, and felt constant pressure from several officers.
    McCrudden does not indicate that Anderson saw him being initially pushed into the wall.
    Anderson was yelling from his office about McCrudden disrespecting him while he was
    being handcuffed. At some point, when McCrudden was turned to face away from the
    wall, Anderson came into the hall, yelled at him, and told officers to turn him back to
    face the wall. McCrudden remained handcuffed for between fifteen and forty-five
    minutes.
    According to Anderson, McCrudden was acting belligerently when he entered his
    office. McCrudden interrupted Harrell and Anderson as they attempted to discuss the
    situation, and moved around. Anderson handcuffed McCrudden himself and kept him in
    handcuffs for several minutes until he calmed down. Harrell submitted an affidavit
    indicating that Anderson handcuffed McCrudden, and he testified that he saw
    McCrudden standing facing a wall after he was handcuffed. Another officer testified in a
    deposition that someone turned McCrudden around and briefly handcuffed him while he
    was in Anderson’s office.
    3
    After McCrudden’s handcuffs were removed, he walked to his unit and got his
    identification card back from Darville. Darville testified in a deposition that when
    McCrudden came to get his identification card, McCrudden stated that he had been
    verbally disrespected by an officer.
    McCrudden contends that as a result of this incident, he had an abrasion on his
    cheek and a cut on the inside of his lip, as well as a sore shoulder, nose, and knee.
    McCrudden claims that he sought medical treatment the next day, but that the medical
    unit was closed over the weekend. He has not sought any additional medical treatment
    for his injuries, but maintains that he experiences lingering pain.
    McCrudden filed a complaint in the District Court in April 2014, which he later
    amended after the District Court dismissed his initial complaint. McCrudden brought
    Bivens claims against Anderson and four John Doe defendants and a claim for assault
    and battery pursuant to the FTCA against the United States. The United States and
    Anderson filed an answer, completed discovery with McCrudden, and moved for
    summary judgment, which the District Court granted. The District Court also dismissed
    the four still-unnamed John Doe defendants pursuant to Federal Rule of Civil Procedure
    21. McCrudden timely appealed.
    II.
    We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We review a
    district court’s decision to drop parties pursuant to Rule 21 for abuse of discretion.
    DirecTV, Inc. v. Leto, 
    467 F.3d 842
    , 844 n.1 (3d Cir. 2006). We exercise plenary review
    4
    over a district court’s grant of summary judgment. Blunt v. Lower Merion Sch. Dist.,
    
    767 F.3d 247
    , 265 (3d Cir. 2014). Summary judgment is appropriate “if the movant
    shows that there is no genuine dispute as to any material fact and the movant is entitled to
    judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine dispute of material fact
    exists if the evidence is sufficient for a reasonable factfinder to return a verdict for the
    non-moving party. Anderson v. Liberty Lobby, Inc., 
    477 U.S. 242
    , 248 (1986).
    In evaluating a motion for summary judgment, “all justifiable inferences are to be
    drawn in . . . favor” of the non-moving party. 
    Id. at 255.
    However, a mere “scintilla of
    evidence” in support of the non-moving party does not create a genuine issue of material
    fact. 
    Id. at 252.
    Further, “the non-movant may not rest on speculation and conjecture in
    opposing a motion for summary judgment.” Ramara, Inc. v. Westfield Ins. Co., 
    814 F.3d 660
    , 666 (3d Cir. 2016).
    III.
    First, the District Court did not abuse its discretion in dismissing the four John
    Doe defendants after discovery was complete. “On motion or on its own, [a] court may
    at any time, on just terms, add or drop a party.” Fed. R. Civ. P. 21. “The case law is
    clear that [f]ictitious parties must eventually be dismissed, if discovery yields no
    identities.” Hindes v. FDIC, 
    137 F.3d 148
    , 155 (3d Cir. 1998) (internal quotation marks
    omitted). The only argument that McCrudden appears to make challenging the District
    Court’s dismissal of the John Doe defendants is his unsupported belief that correctional
    officials purposely destroyed video or audio surveillance of his alleged assault. The
    5
    undisputed record indicates that there was no surveillance equipment in the area where
    McCrudden was allegedly assaulted. The parties spent months completing discovery,
    and McCrudden participated in depositions of numerous correctional officers at Fort Dix
    who he identified as potential witnesses to his alleged assault. Under these
    circumstances, we affirm the District Court’s dismissal of the four John Doe defendants.
    See 
    Leto, 467 F.3d at 844
    n.1 (“Under [the abuse of discretion] standard, we must affirm
    the District Court’s ruling unless we are left with a definite and firm conviction that the
    trial court committed a clear error of judgment.”) (internal quotation marks omitted).
    Next, the District Court correctly concluded that McCrudden’s Eighth Amendment
    excessive force claim against Anderson cannot survive summary judgment. “A
    defendant in a civil rights action must have personal involvement in the alleged wrongs;
    liability cannot be predicated solely on the operation of respondeat superior.” Rode v.
    Dellarciprete, 
    845 F.2d 1195
    , 1207 (3d Cir. 1988). “Personal involvement can be shown
    through . . . personal direction or . . . actual knowledge and acquiescence.” 
    Id. Under McCrudden’s
    version of events, Anderson never touched him, and did not direct any
    correctional officers to hurt him; Anderson ordered McCrudden to be removed from his
    office and handcuffed and then later ordered that McCrudden be turned to face the wall.
    There is also no record evidence that Anderson acquiesced to other officers hurting
    McCrudden, as McCrudden indicated that Anderson was yelling while other officers
    handcuffed him in the hall, but not that Anderson saw or approved of the way the other
    officers acted.
    6
    Under Anderson’s version of events — in which he handcuffed McCrudden for
    several minutes after he was acting belligerently, interrupting Anderson and Harrell, and
    moving around — McCrudden also cannot sustain an excessive force claim. The Eighth
    Amendment prohibits the “unnecessary and wanton infliction of pain” that violates
    “contemporary standards of decency.” Hudson v. McMillian, 
    503 U.S. 1
    , 8 (1992). On
    these facts, Anderson’s decision to briefly handcuff McCrudden was employed “in a
    good-faith effort to maintain or restore discipline” rather than “maliciously and
    sadistically to cause harm.” See 
    id. at 6-7.
    McCrudden does not argue that he was
    subjected to excessive force under Anderson’s version of events. Accordingly, the
    District Court properly granted Anderson summary judgment on McCrudden’s excessive
    force claim.
    McCrudden’s final claim is his FTCA claim against the United States for assault
    and battery, based on Anderson’s actions. Pursuant to 28 U.S.C. § 1346(b)(1), the FTCA
    “allows plaintiffs to bring claims based on the action[s] of Government employees when
    private persons engaging in analogous behavior would be liable under state law.” See
    CNA v. United States, 
    535 F.3d 132
    , 138 (3d Cir. 2008). The FTCA’s waiver of
    immunity generally “does not apply to claims of assault [and] battery,” but “that rule is
    not applicable to investigative or law enforcement officers.”1 Couden v. Duffy, 
    446 F.3d 483
    , 499 (3d Cir. 2006). New Jersey tort law applies here. See 28 U.S.C. § 1346(b)(1)
    1
    It appears undisputed that Anderson qualifies as a law enforcement officer under the
    circumstances of this case.
    7
    (providing that the applicable law is “the law of the place where the act or omission
    occurred”).
    Under New Jersey law, a plaintiff pursuing an assault and battery claim against a
    law enforcement officer must show that the officer used unreasonable force against him.
    See State v. Williams, 
    148 A.2d 22
    , 29 (N.J. 1959); Noback v. Town of Montclair, 
    110 A.2d 339
    , 342-43 (N.J. Super. Ct. Law. Div. 1954). As explained above, under either set
    of facts presented by McCrudden or Anderson, McCrudden has not shown that Anderson
    used unreasonable force against him. Accordingly, we will affirm the District Court’s
    judgment.
    8