Michael Garrison v. William Porch ( 2010 )


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  •                                                              NOT PRECEDENTIAL
    
                            UNITED STATES COURT OF APPEALS
                                 FOR THE THIRD CIRCUIT
    
                                      _____________
    
                                       No. 08-2453
                                      _____________
    
                                  MICHAEL GARRISON,
    
                                                     Appellant
    
                                             v.
    
                          WILLIAM PORCH, Police Officer;
                           CITY OF NORTH WILDWOOD;
                     NORTH WILDWOOD POLICE DEPARTMENT;
                         DENISE WATSON; JOHN MCBRIDE;
                      ROBERT CARUSO; ROBERT MATTEUCCI;
                       PAUL SKILL; TED HINDES, Police Officers
    
                                      ______________
    
                       On Appeal from the United States District Court
                               for the District of New Jersey
                                (Civil No. 1-04-CV-01114)
                           District Judge: Hon. Noel L. Hillman
    
                                 Argued November 19, 2009
    
               Before: RENDELL, BARRY, and CHAGARES, Circuit Judges.
    
                                   (Filed: April 16, 2010)
    
    Paul R. D’Amato, Esq.
    D’Amato Law Firm
    401 New Road
    Suite 103
    Linwood, NJ 08221
    Donald P. Jacobs, Esq. (argued)
    Budd Larner
    150 John F. Kennedy Parkway
    3rd Floor
    Short Hills, NJ 07078-0999
    Counsel for Appellant
    
    Joseph M. Scott, Esq. (argued)
    Barker, Scott, & Gelfand
    210 New Road
    Linwood Greene, Suite 12
    Linwood, NJ 08221-0000
    Counsel for Appellee
    
                                           ______________
    
                                     OPINION OF THE COURT
                                         ______________
    
    CHAGARES, Circuit Judge.
    
             Michael Garrison appeals from the District Court’s entry of summary judgment as
    
    to his claims against William Porch. For the reasons set forth below, we will vacate and
    
    remand.
    
                                                   I.
    
             Because we write solely for the benefit of the parties, we will only briefly
    
    summarize the essential facts. Since the procedural posture is a grant of summary
    
    judgment, we construe all facts in the light most favorable to Garrison as the non-moving
    
    party.
    
             On the night of March 29, 2002, after consuming several alcoholic beverages and
    
    smoking marijuana at a friend’s home in North Wildwood, New Jersey, Garrison and
    
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    several of his friends took a cab to a nearby bar. At the bar, Garrison had several more
    
    alcoholic drinks and consumed a tablet of the illegal drug ecstasy. Throughout the rest of
    
    the evening, Garrison and his friends visited multiple local bars and continued to consume
    
    alcoholic beverages.
    
           At approximately 2:00 a.m., Garrison exited one such bar, walked into an
    
    adjoining alley, and began to urinate against a wall. Porch, a plainclothes police officer
    
    patrolling the area, noticed this and approached Garrison, intending to arrest him for
    
    public urination.
    
           When Porch attempted to handcuff Garrison, Garrison spun around, and raised up
    
    his hands in an aggressive manner as if to strike Porch. In response, Porch grabbed
    
    Garrison by his arm, forced him to the ground, and jumped on Garrison’s back, where
    
    Porch was able to place his handcuffs on Garrison.
    
           At this point, Garrison began to complain of neck pain. Porch called for medical
    
    attention, and Garrison was taken to a nearby hospital. It was ultimately determined that
    
    he had a cervical spine fracture, which required nearly a month of inpatient care and over
    
    four months of outpatient rehabilitation therapy.
    
           Garrison was charged with aggravated assault on a police officer, resisting arrest,
    
    disorderly conduct, and public urination. He pled guilty to an amended charge of simple
    
    
    
    
                                                 3
    assault1 and to purposefully resisting arrest, and the remainder of the charges were
    
    dropped.
    
           On March 3, 2004, Garrison brought suit in the District Court naming as
    
    defendants Porch, a number of other North Wildwood police officers, the North
    
    Wildwood Police Department and the city of North Wildwood. He sought damages under
    
    42 U.S.C. § 1983 for violation of his Fourth Amendment rights and under a number of
    
    state law causes of action. Defendants filed motions to dismiss Garrison’s claims. In
    
    separate orders, the District Court dismissed most of Garrison’s claims, and on November
    
    16, 2006, Garrison agreed to a stipulation of dismissal with prejudice as to his claims
    
    against all defendants except Porch, and the City only insofar as it may be vicariously
    
    liable for Porch’s actions.
    
           Porch filed a counterclaim against Garrison, seeking damages for assault and
    
    battery and several other state law claims. Porch moved for summary judgment as to both
    
    Garrison’s state and federal claims against him, and his counterclaim against Garrison.
    
    On March 9, 2007, the District Court granted Porch’s motion as to Garrison’s claims,2 but
    
    
           1
            New Jersey’s simple assault statute criminalizes intentional attempts to cause
    bodily injury, negligent bodily injury with a deadly weapon, or “[a]ttempts by physical
    menace to put another in fear of imminent serious bodily injury.” N.J. Stat. Ann. §
    2C:12-1a. Since no deadly weapon was used in the incident, we must conclude that
    Garrison was convicted of either attempting or threatening to cause bodily damage to
    Porch. There were no specific facts of the crime in the indictment or admitted by
    Garrison at the guilty plea, and Garrison denies actually striking Porch.
           2
            On appeal, Garrison does not contest the entry of judgment on his state law
    claims, and we therefore only consider whether the District Court’s entry of judgment on
    
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    denied the motion as to Porch’s counterclaim.
    
           Garrison filed a timely notice of appeal from the March 9 order, but it was
    
    voluntarily dismissed as an interlocutory appeal under Rule 42(b) of the Federal Rules of
    
    Appellate Procedure because Porch’s counterclaim had not been resolved. After the case
    
    was reopened, Garrison filed a Motion to Reconsider, which the District Court denied.
    
    The District Court then entered a consent order which provided that Porch’s counterclaim
    
    be dismissed without prejudice. The consent order stated that it allowed Garrison to
    
    appeal the District Court’s entry of summary judgment as to his excessive force claim, but
    
    that if he won the appeal and the case was remanded to the District Court, Porch could
    
    then reinstate his counterclaim.
    
           After the consent order was entered, Garrison again filed a notice of appeal. The
    
    Clerk of this Court informed the parties that the consent order may still not be a final
    
    appealable order under 28 U.S.C. § 1291 because Porch retained the ability to reinstate
    
    his counterclaim. Shortly thereafter, Porch consented to the dismissal of his counterclaim
    
    with prejudice, and a stipulation to that effect was filed in the District Court.
    
                                                  II.
    
           The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1343(a).
    
           The parties were directed to brief the issue of appellate jurisdiction. Both parties
    
    did so, and they agree that this Court has appellate jurisdiction over this matter. The issue
    
    
    
    Garrison’s § 1983 claim was in error.
    
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    is whether or not the consent order, in conjunction with the stipulation agreement, is a
    
    final judgment under 28 U.S.C. § 1291.
    
           This Court has previously held that we do not generally have appellate jurisdiction
    
    when there is still a chance, contingent upon the outcome of the appeal, that a claim
    
    dismissed without prejudice could be reinstated. Fed. Home Loan Mortgage Corp. v.
    
    Scottsdale Ins. Co., 
    316 F.3d 431
    , 438 (3d Cir. 2003). The consent order dismissed
    
    Porch’s counterclaim without prejudice, which meant that the counterclaim could be
    
    resurrected if Garrison won on appeal. The consent order was therefore not itself a final
    
    judgment under § 1291.
    
           However, the stipulation agreement provided that the dismissal of Porch’s
    
    counterclaim was with prejudice, making the dismissal a final judgment. We have
    
    previously held that a party whose claims had been dismissed without prejudice may
    
    explicitly agree that claims be dismissed with prejudice. When the party does so, the
    
    claims may not be reinstated, the judgment is final within the meaning of § 1291, and this
    
    Court properly has appellate jurisdiction. See id. (holding that the exercise of appellate
    
    jurisdiction was proper under § 1291 where original order dismissed certain claims
    
    without prejudice, but the party bringing those claims agreed that the claims at issue
    
    should be dismissed with prejudice at oral argument and obtained an order from the
    
    district court shortly thereafter to that effect). This explicit agreement does not
    
    necessarily have to be a court order dismissing the claim or claims with prejudice in order
    
    
    
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    to be valid. See Tiernan v. Devoe, 
    923 F.2d 1024
    , 1031 (3d Cir. 1991) (holding that
    
    appellate jurisdiction was appropriate where initial dismissal was without prejudice, but
    
    “plaintiffs renounced, through letter briefs, any intention to take further action against the
    
    . . . Defendants.”). We therefore have appellate jurisdiction pursuant to § 1291.
    
           We apply a plenary standard of review to a district court’s grant of summary
    
    judgment. See Lightning Lube, Inc. v. Witco Corp., 
    4 F.3d 1153
    , 1166 (3d Cir. 1993).
    
                                                 III.
    
           Garrison asserts that the District Court erred in granting summary judgment on his
    
    excessive force claim against Porch under § 1983. We agree.
    
           The District Court based its entry of summary judgment on the Supreme Court’s
    
    decision in Heck v. Humphrey, in which the Court held that a plaintiff may not recover
    
    damages under § 1983 if doing so would imply the invalidity of a prior conviction. 
    512 U.S. 477
    , 487 (1994); see also Gilles v. Davis, 
    427 F.3d 197
    , 208-09 (3d Cir. 2005)
    
    (“Under Heck, a § 1983 action that impugns the validity of the plaintiff’s underlying
    
    conviction cannot be maintained unless the conviction has been reversed on direct appeal,
    
    or impaired by collateral proceedings.”). A claim for damages under § 1983 will only be
    
    barred under Heck when the claim, if successful, necessarily invalidates the prior
    
    conviction. The District Court held that Garrison could not possibly succeed on his
    
    excessive force claim without implying the invalidity of his conviction for simple assault.
    
           The Fourth Amendment requires police officers to use only the degree of force that
    
    
    
                                                  7
    is reasonably necessary to place a suspect under arrest. See Tennessee v. Garner, 
    471 U.S. 1
    , 9-10 (1985). If the force used in effecting an arrest is beyond what was
    
    reasonably necessary, the arrestee may seek monetary damages for the infringement of his
    
    or her constitutional rights under § 1983. In determining whether or not the force used in
    
    effecting an arrest was unreasonably excessive, a finder of fact is to consider the totality
    
    of the circumstances surrounding the arrest. Sharrar v. Felsing, 
    128 F.3d 810
    , 822 (3d
    
    Cir. 1997).
    
           This Court has previously determined that a conviction for resisting arrest does not
    
    necessarily preclude an arrestee for recovering damages on a § 1983 excessive force
    
    claim. Nelson v. Jashurek, 
    109 F.3d 142
    , 145-46 (3d Cir. 1997). In doing so, we
    
    reversed the district court, which had informed the jury that the arrestee could only
    
    recover damages on his claim if he showed that his actions did not justify the use of
    
    “substantial force” by the police officer. However, we observed that “there undoubtedly
    
    could be ‘substantial force’ which is objectively reasonable and ‘substantial force’ which
    
    is excessive and unreasonable.” Id. at 145. We ultimately held that a reasonable juror,
    
    considering the totality of the circumstances, could find that the arrestee resisted arrest,
    
    but was still subjected to an unreasonably excessive level of force by the police officer in
    
    response. Id. at 146.
    
           Porch here argues that because Garrison pled guilty to assaulting the arresting
    
    officer, the force Porch used in taking Garrison into custody could not have been
    
    
    
                                                   8
    excessive. However, the fact that Garrison’s threatened or attempted use of force was
    
    unlawful does not automatically mean that there is no use of force that Porch could have
    
    used in response which could have risen to the level of unreasonable and excessive.
    
    Porch was still constrained to use only the level of force which was reasonable to bring
    
    Garrison into custody. While the fact that Garrison was acting in an unruly and
    
    threatening manner certainly factors into the totality of the circumstances and may have
    
    justified a greater use of force than would have been reasonable had Garrison been
    
    peaceful and cooperative, it certainly did not dispense with the reasonableness
    
    requirement altogether.
    
           While this Court has not squarely addressed the issue of whether a simple assault
    
    conviction necessarily serves as a bar to a § 1983 excessive force claim under Heck, other
    
    courts of appeals to have considered factually similar cases have generally held that the
    
    mere fact of a conviction for assault or similar conviction arising out of the same incident
    
    does not automatically preclude recovery on an excessive force claim brought under §
    
    1983. See, e.g., Dyer v. Lee, 
    488 F.3d 876
    , 883 (11th Cir. 2007); McCann v. Nielsen,
    
    
    466 F.3d 619
    , 620 (7th Cir. 2006); Thore v. Howe, 
    466 F.3d 173
    , 180 (1st Cir. 2006);
    
    Ballard v. Burton, 
    444 F.3d 391
    , 400-01 (5th Cir. 2006); Smithart v. Towery, 
    79 F.3d 951
    , 952 (9th Cir. 1996) (per curiam). But see Cummings v. City of Akron, 
    418 F.3d 676
    , 682-83 (6th Cir. 2005) (holding that Heck barred plaintiff’s § 1983 excessive force
    
    claim where plaintiff had been convicted of assaulting the police officer in the same
    
    
    
                                                 9
    incident). We agree with the majority of other courts of appeals to have faced this issue
    
    in rejecting Porch’s argument that Garrison’s conviction for simple assault automatically
    
    precludes him from recovering on his § 1983 claim.
    
           Porch also argues that because Garrison could have, but did not, used self-defense
    
    as an affirmative defense to the charge of simple assault, his conviction establishes as a
    
    matter of law that his conduct was not justified, and he is therefore barred by Heck from
    
    recovering on his excessive force claim. However, due to the nature of Garrison’s factual
    
    claims as alleged in his complaint and pleadings, the issue of self-defense is irrelevant.
    
    Garrison has not claimed that his act of simple assault was committed to protect himself.
    
    He acknowledges that he assaulted Porch before Porch allegedly used excessive force.
    
    He claims that after his act of assault, Porch then responded by using a degree of force
    
    that was much greater than was reasonably necessary to subdue him and place him under
    
    arrest. This is clearly a claim of excessive force in response to an assault, and the
    
    theoretical availability of a self-defense claim in other simple assault cases is of no
    
    relevance to the present case.
    
           Garrison admits that upon initially being confronted by Porch, he acted in a very
    
    aggressive and threatening manner, which constituted simple assault. At that point,
    
    Garrison alleges that Porch responded by using an excessive level of force by flinging
    
    him to the ground and jumping on top of him, fracturing his vertebrae. There is no
    
    logical inconsistency in these two assertions. A reasonable jury could find that, even
    
    
    
                                                  10
    considering Garrison’s initial behavior which constituted a simple assault, Porch used an
    
    unreasonable amount of force in arresting him, and in doing so violated his constitutional
    
    rights. Garrison’s § 1983 claim is therefore not barred by Heck, and the District Court
    
    erred by granting Porch’s motion for summary judgment.3
    
                                                 IV.
    
           For these reasons, we will vacate the judgment of the District Court and remand
    
    the case for further proceedings.
    
    
    
    
           3
             The Court emphasizes that our holding is in no way an assessment of the merits
    of Garrison’s claim. We are reversing the District Court solely because Garrison’s claim
    for relief is not necessarily inconsistent with the fact of his simple assault conviction. In
    this respect the case before us is similar to Nelson, in which this Court wrote that “while
    we do not doubt that even on the facts as presented by Nelson it will be difficult for him
    to establish liability in this case, we do not see why a judgment in his favor would throw
    the validity of his conviction into doubt.” 109 F.3d at 146.
    
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