Filed: Nov. 17, 2011
Latest Update: Feb. 22, 2020
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 10-3493 _ MICHAEL BOSWELL, an Incapacitated Person by his Guardian Ad Litem ETHEL BOSWELL; ETHEL BOSWELL, Individually, Appellants v. STEVE EOON; KIRSTEN BYRNES; CHRISTINA EICKMAN; PTL. JAMES FEISTER 1; NEW BRUNSWICK POLICE DEPARTMENT; CITY OF NEW BRUNSWICK; JOHN DOES, (#1 THRU #5) _ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (D.C. Civ. Action No. 3:08-cv-05098) District Judge: Honorable
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 10-3493 _ MICHAEL BOSWELL, an Incapacitated Person by his Guardian Ad Litem ETHEL BOSWELL; ETHEL BOSWELL, Individually, Appellants v. STEVE EOON; KIRSTEN BYRNES; CHRISTINA EICKMAN; PTL. JAMES FEISTER 1; NEW BRUNSWICK POLICE DEPARTMENT; CITY OF NEW BRUNSWICK; JOHN DOES, (#1 THRU #5) _ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (D.C. Civ. Action No. 3:08-cv-05098) District Judge: Honorable G..
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 10-3493
_____________
MICHAEL BOSWELL, an Incapacitated Person by his Guardian Ad Litem ETHEL
BOSWELL; ETHEL BOSWELL, Individually,
Appellants
v.
STEVE EOON; KIRSTEN BYRNES; CHRISTINA EICKMAN; PTL. JAMES
FEISTER 1; NEW BRUNSWICK POLICE DEPARTMENT; CITY OF NEW
BRUNSWICK; JOHN DOES, (#1 THRU #5)
_____________
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT
OF NEW JERSEY
(D.C. Civ. Action No. 3:08-cv-05098)
District Judge: Honorable Garrett E. Brown, Jr.
______________
Submitted Under Third Circuit LAR 34.1(a)
September 22, 2011
______________
Before: FISHER, HARDIMAN, and GREENAWAY, JR., Circuit Judges.
(Opinion Filed: November 17, 2011)
1
The last name of Patrolman James Feaster was incorrectly listed as “Feister” in the
complaint.
1
______________
OPINION
______________
GREENAWAY, JR., Circuit Judge.
Michael Boswell (“Boswell”), by and through his guardian ad litem, Ethel
Boswell, and Ethel Boswell, individually, appeal the District Court’s June 8, 2010 Order
granting summary judgment in favor of Defendants Steve Eoon (“Eoon”), Kirsten Byrnes
(“Byrnes”), Christina Eickman (“Eickman”), Patrolman James Feaster (“Feaster”), New
Brunswick Police Department (“Police Department”), City of New Brunswick (the
“City”), and John Does for claims arising under 42 U.S.C. § 1983 and state law. 2
Boswell also appeals the District Court’s August 8, 2010 Order denying his motion for
reconsideration. Boswell asserts that the District Court erred in denying his motion for
reconsideration, and in granting summary judgment, based on the conclusion that no
genuine issue of material fact 3 exists regarding his Fourteenth Amendment substantive
due process claims. We agree. For the following reasons, we will reverse the denial of
the motion for reconsideration and vacate the grant of summary judgment.
2
The District Court’s orders in this case solely address claims brought by Michael
Boswell. Only those claims are referred to in this opinion.
3
Because Boswell’s suit was filed prior to the December 2010 amendments to Fed. R.
Civ. P. 56, the question before the District Court at summary judgment was whether a
genuine issue of material fact existed. See Lamont v. New Jersey, 637 F.3d 177, 181 (3d
Cir. 2011) (noting that the current operative language under Fed. R. Civ. P. 56 is whether
there exists a “genuine dispute as to any material fact”). This change in language,
however, did not alter the summary judgment standard. Fed. R. Civ. P. 56 advisory
committee’s note (2010).
2
I. BACKGROUND
Because we write primarily for the benefit of the parties, we recount only the
essential, undisputed facts.
On September 4, 2005, at approximately 1:50 a.m., Feaster approached Boswell,
who was lying on a park bench, in Boyd Park, located in New Brunswick, New Jersey.
Upon Feaster’s request, Boswell produced an identification card providing his full name,
social security number, and address. After determining that Boswell was in violation of a
City ordinance prohibiting him from being in the park at that hour, Feaster issued him a
summons and told him to leave the park. Boswell proceeded to head towards a canal that
borders Boyd Park on the east, but Feaster redirected him towards Route 18 and its
intersection with Commercial Avenue. As Boswell headed towards Route 18, Feaster
observed Boswell tearing up the summons. After Boswell departed, Feaster discovered a
half-empty quart bottle of alcohol under the bench where Boswell had been sitting.
Although Feaster never saw Boswell drink from the bottle, Feaster believed that the
bottle belonged to him. Feaster went back to his patrol car to write Boswell a second
ticket for having an open container of alcohol. Feaster intended to serve the ticket by
mail, rather than call for Boswell to come back to receive the ticket.
Upon leaving the park, Boswell attempted to cross Route 18, a heavily trafficked
six-lane highway, against the traffic light. Boswell did not utilize pedestrian
throughways to cross Route 18; instead, he walked outside of the crosswalk and into
oncoming traffic. He was struck by two vehicles, driven by Eoon and Byrnes. Boswell
was taken to Robert Wood Johnson University Hospital, where his blood alcohol level
3
was determined to be 0.24%. As a result of the accident, Boswell sustained traumatic
brain injury that has left him unable to engage in conversation and dependent on the care
provided by an assisted-living facility.
Boswell filed a complaint in the District Court for the District of New Jersey on
August 24, 2007 and filed an amended complaint on September 9, 2008. He filed a
second amended complaint, the operative complaint here, on July 2, 2009. Boswell
asserted New Jersey state law claims against Eoon and Byrnes, the drivers, and Eickman,
the owner of one of the vehicles. Boswell also alleged similar state law claims and
federal civil rights violations, pursuant to 42 U.S.C § 1983, against Feaster, the City, and
the Police Department (collectively, the “City Defendants”). As to Feaster, Boswell
claimed that Feaster knew or should have known that Boswell was intoxicated and
incapable of crossing Route 18 without sustaining injury. Boswell alleged that the City
and the Police Department failed to properly train its police officers to handle intoxicated
or homeless persons.
The City Defendants filed a motion for summary judgment, which the District
Court granted on June 8, 2010. Construing Boswell’s opposition to the City Defendants’
statement of undisputed material facts (the “Opposing 56.1”), pursuant to D.N.J. L. Civ.
R. 56.1, as an admission that Boswell did not appear to Feaster to be visibly intoxicated,
the District Court concluded that there were no genuine issues of material fact regarding
whether Officer Feaster had acted with deliberate indifference. The District Court
reasoned that because the parties agreed that Feaster did not know that Boswell was
4
intoxicated when Feaster directed Boswell to leave the park via Route 18, Feaster could
not have knowingly disregarded a risk to Boswell’s safety.
In addition, the District Court concluded that Feaster was entitled to qualified
immunity. Furthermore, because Boswell was unable to establish a constitutional
violation, the District Court found that neither the City nor the Police Department could
be held liable for Boswell’s injuries and ruled that Boswell’s claims against the City and
the Police Department failed as a matter of law. The District Court declined to exercise
supplemental jurisdiction over Boswell’s state law claims.
On June 18, 2010, Boswell filed a motion for reconsideration in the District Court,
arguing that the District Court erred in concluding that all parties agreed that Feaster did
not observe Boswell to be visibly intoxicated. Boswell contended that he never agreed
with the City Defendants’ statement that he was not visibly intoxicated. The District
Court denied Boswell’s motion, concluding that he improperly sought to reargue factual
issues already resolved. Boswell appealed both the grant of summary judgment and the
denial of his motion for reconsideration.
II. JURISDICTION AND STANDARD OF REVIEW
The District Court had subject matter jurisdiction, pursuant to 28 U.S.C. § 1331, §
1343, and § 1367. This Court has jurisdiction under 28 U.S.C. § 1291.
We review an order granting summary judgment under a plenary standard of
review and apply the same standard as the District Court to determine whether summary
judgment was appropriate. State Auto Prop. & Cas. Ins. Co. v. Pro Design, P.C., 566
F.3d 86, 89 (3d Cir. 2009) (citing Norfolk S. Railway Co. v. Basell USA Inc.,
512 F.3d
5
86, 91 (3d Cir. 2008)). The denial of a motion for reconsideration is reviewed for an
abuse of discretion, but underlying legal determinations are reviewed de novo and factual
determinations for clear error. Howard Hess Dental Labs. Inc. v. Dentsply Int’l, Inc.,
602
F.3d 237, 246 (3d Cir. 2010) (citation omitted). We give deference to a district court’s
interpretation of its own local rules. Gov’t of Virgin Islands v. Mills,
634 F.3d 746, 750
(3d Cir. 2011).
III. ANALYSIS
A. Motion for Reconsideration
We begin with the District Court’s denial of Boswell’s motion for reconsideration.
To succeed on a motion for reconsideration, a litigant must demonstrate one of the
following three grounds: “(1) an intervening change in the controlling law; (2) the
availability of new evidence that was not available when the court granted the motion for
summary judgment; or (3) the need to correct a clear error of law or fact or to prevent
manifest injustice.” Max’s Seafood Cafe ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d
669, 677 (3d Cir. 1999) (citation omitted). Boswell argues on appeal that the District
Court committed an error of law in denying his motion for reconsideration because it
misapplied its local rules, construing his Opposing 56.1 as an admission that he did not
appear to be visibly intoxicated to Feaster. We agree.
Both parties put forth expert testimony before the District Court to support their
respective views regarding whether Feaster should have known that Boswell was
intoxicated when the two interacted. Boswell’s expert opined that given Boswell’s blood
alcohol level of 0.24%, Boswell “would have exhibited the physical manifestations and
6
the unmistaken signs of alcohol impairment” that “would have been obvious to a
reasonably trained and reasonably perceptive police officer.” (App. 262-63.) The City
Defendants’ experts testified that, while a non-alcoholic person would have exhibited
unmistakable signs of intoxication with a blood alcohol level of 0.24%, Boswell’s history
of alcoholism meant that he possessed a greater tolerance for alcohol and that he would
not have appeared to be intoxicated. Feaster also testified at his deposition that Boswell
did not appear to be intoxicated that night and did not appear to be a danger to himself or
others.
In their motion for summary judgment, the City Defendants submitted a statement
of undisputed material facts, in accordance with D.N.J. L. Civ. R. 56.1, 4 essentially
asserting that Feaster did not observe Boswell to be visibly intoxicated on the night of the
accident. Boswell submitted an Opposing 56.1, responding paragraph by paragraph to
the City Defendants’ factual statements. In the statement, Boswell failed to deny the
City Defendants’ allegations that Boswell appeared not to be visibly intoxicated; instead,
4
District of New Jersey Local Civil Rule 56.1 states, in relevant part:
On motions for summary judgment, the movant shall furnish
a statement which sets forth material facts as to which there
does not exist a genuine issue, in separately numbered
paragraphs . . . . The opponent of summary judgment shall
furnish, with its opposition papers, a responsive statement of
material facts, addressing each paragraph of the movant’s
statement, indicating agreement or disagreement and, if not
agreed, stating each material fact in dispute and citing to the
affidavits and other documents submitted in connection with
the motion; any material fact not disputed shall be deemed
undisputed for purposes of the summary judgment motion.
D.N.J. L. Civ. R. 56.1(a).
7
Boswell admitted that Feaster claimed that Boswell appeared not to be visibly
intoxicated. 5
At summary judgment, the District Court concluded that both Boswell and the
City Defendants agreed that Boswell did not appear to be intoxicated the night of the
accident. Accordingly, the District Court determined that there were no genuine issues of
material fact, and, as a result, Boswell could not establish a constitutional violation.
Boswell filed a motion for reconsideration, arguing that the District Court
misconstrued his Opposing 56.1. Boswell stated that he had merely admitted what he
thought Feaster believed, which he contended he did not agree with substantively, given
the expert testimony he had submitted. In denying Boswell’s motion, the District Court
held that Boswell’s Opposing 56.1 amounted to an admission of the City Defendants’
version of the facts, stating “[i]f Boswell wished to dispute the facts in question, the 56.1
statement should have expressly indicated there was a dispute.” (App. 17.)
District of New Jersey Local Civil Rule 56.1 requires the non-movant to submit an
opposing 56.1 statement and either admit or deny each statement of undisputed material
fact asserted by the movant. The local rule further states that “any material fact not
disputed shall be deemed undisputed for purposes of the summary judgment motion.”
D.N.J. L. Civ. R. 56.1(a). Notably, the local rule is ambiguous as to whether a material
5
For example, Boswell stated the following in his Opposing 56.1: “Plaintiffs admit that
Officer Feaster claims that Mr. Boswell appeared to understand him, was cooperative
with him and responded immediately and appropriately to all commands.” (App. 342-
43.)
8
fact must be challenged in the non-movant’s opposing 56.1 statement or else be deemed
admitted.
Boswell’s Opposing 56.1 was effectively non-responsive—it neither admitted nor
denied the City Defendants’ contention that Boswell appeared not to be intoxicated. The
question, then, is whether Boswell’s summary judgment briefing and evidentiary
submissions—in which Boswell disputed that he appeared not to be intoxicated on the
night of the accident—were sufficient to prevent the District Court from concluding that
Boswell’s failure in his Opposing 56.1 to dispute the City Defendants’ factual averments
constituted an admission of those facts. We conclude that these averments were
sufficient.
As we have noted, the purpose of certain district court local rules pertaining to
motions is the “[f]acilitation of the court’s disposition of motions, not punishment.”
Lorenzo v. Griffith, 12 F.3d 23, 28 (3d Cir. 1993). Although we have not spoken on the
precise issue presented here by D.N.J. L. Civ. R. 56.1, there are District of New Jersey
cases that have heeded our admonition in Lorenzo and excused the non-movant’s failure
to strictly comply with this local rule, permitting the non-movant to rely on its briefing
and evidentiary submissions to dispute the movant’s purportedly undisputed material
facts. See, e.g., Longoria v. New Jersey,
168 F. Supp. 2d 308, 312 n.1 (D.N.J. 2001)
(noting that, because the non-movant had not submitted an opposing 56.1 statement, the
movant’s 56.1 factual statements would be deemed admitted “unless disputed by [the
non-movant] in his briefs or contradicted by the evidence”); DiGiacomo v. Prudential Ins.
Co. of Am.,
501 F. Supp. 2d 626, 629 n.4 (D.N.J. 2007) (“Because [the non-movant] did
9
not oppose [the movant’s] statement of material facts, the Court will presume that the
facts are true unless they are controverted by the evidence in the record.”). The
commentary to D.N.J. L. Civ. R. 56.1 supports this interpretation, discussing cases where
the non-movant’s failure in any form to dispute material facts constitutes an admission of
those facts. See D.N.J. L. Civ. R. 56.1 cmt. d (2010).
Permitting the non-movant to rely on its briefing and evidentiary submissions to
dispute the movant’s 56.1 statement is consistent with the requirement at summary
judgment that federal courts “view the facts in the light most favorable to the non-moving
party.” Jakimas v. Hoffmann-La Roche, Inc., 485 F.3d 770, 777 (3d Cir. 2007).
Boswell’s briefing and expert report make clear that he disputes the City Defendants’
contention that he did not appear to be visibly intoxicated during his encounter with
Feaster. Given Boswell’s briefing and factual submissions, it would be antithetical to the
spirit of summary judgment to rely on his poorly worded Opposing 56.1.
The factual allegation central to the viability of Boswell’s substantive due process
claims is that Feaster knew that Boswell was intoxicated. All of Boswell’s submissions
support this contention and compel the conclusion that Boswell disputed the City
Defendants’ statement of undisputed material facts. We also cannot ignore that
Boswell’s Opposing 56.1, while certainly not a model of clarity, does reference his
expert’s conclusion that he would have appeared to be visibly intoxicated the night of the
accident. (App. 350-53.) This alone should have given the District Court pause.
By concluding that Boswell admitted the City Defendants’ version of the facts, the
District Court imposed a dispositive penalty, one unwarranted given the nature of the
10
noncompliance. The evidence submitted to the District Court demonstrates that Boswell
disputed the City Defendants’ factual assertion. This is not a case where Boswell flouted
the District Court’s local rule. Indeed, Boswell clearly attempted to fully comply with
D.N.J. L. Civ. R. 56.1.
We hold that the District Court erred in denying Boswell’s motion for
reconsideration by construing Boswell’s Opposing 56.1 as an admission of the City
Defendants’ factual averments that Feaster did not observe Boswell to be visibly
intoxicated. We will reverse the denial of the motion for reconsideration.
B. Summary Judgment
Summary judgment is appropriate “where the pleadings, depositions, answers to
interrogatories, admissions, and affidavits show there is no genuine issue of material fact
and that the moving party is entitled to judgment as a matter of law.” Nicini v. Morra,
212 F.3d 798, 805-06 (3d Cir. 2000) (en banc) (citing Fed. R. Civ. P. 56(c)). “Once the
moving party points to evidence demonstrating no issue of material fact exists, the non-
moving party has the duty to set forth specific facts showing that a genuine issue of
material fact exists and that a reasonable factfinder could rule in its favor.” Azur v.
Chase Bank, USA, Nat’l Ass’n,
601 F.3d 212, 216 (3d Cir. 2010) (citation omitted). In
determining whether summary judgment is warranted, “[t]he evidence of the nonmovant
is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson v.
Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986) (citation omitted).
We hold that Boswell has put forth sufficient evidence to create a genuine issue of
material fact as to whether he was visibly intoxicated on the night of the accident.
11
Boswell’s expert opined that Boswell would have exhibited unmistakable signs of
intoxication with a blood alcohol level of 0.24%. The City Defendants’ contention that
Boswell’s expert failed to address the issue of tolerance of alcohol does not negate the
existence of a genuine issue of material fact. In re Lemington Home for the Aged, ---
F.3d ----, 2011 WL 4375676, at *6 (3d Cir. Sept. 21, 2011) (“For an issue to be genuine,
‘all that is required is that sufficient evidence supporting the claimed factual dispute be
shown to require a jury or judge to resolve the parties’ differing versions of the truth at
trial.’” (quoting
Anderson, 477 U.S. at 248-49)).
Moreover, we cannot agree with the District Court’s conclusion that, even
assuming that Boswell’s Opposing 56.1 was not an admission of the City Defendants’
version of the facts, no reasonable factfinder could conclude that Feaster’s conduct was
deliberately indifferent. The District Court determined that Feaster had a duty to
intervene and take Boswell to an alcohol treatment center only if Feaster observed
Boswell to be intoxicated to the point of incapacitation under New Jersey law. (App. 17-
18.) But whether Feaster was deliberately indifferent when he directed Boswell to leave
the park via Route 18 is a separate question from whether Feaster had a statutory duty to
intervene and assist Boswell. See Kneipp v. Tedder, 95 F.3d 1199, 1208-09 (3d Cir.
1996) (summary judgment improper where reasonable factfinder could conclude that
police officers willfully disregarded a known risk to a woman’s safety by permitting her
to walk alone at night, in cold weather, and in a highly intoxicated state).
Based on Boswell’s version of the facts, a reasonable factfinder could determine
that Boswell appeared to be visibly intoxicated and that Feaster was deliberately
12
indifferent to Boswell’s safety in directing him to leave the park at night, while
intoxicated, by means of a perilous highway, after having seen a half-empty bottle of
alcohol.
Accordingly, we will vacate the grant of summary judgment. 6
IV. CONCLUSION
For the foregoing reasons, we will reverse the District Court’s August 8, 2010
Order denying Boswell’s motion for reconsideration, vacate the District Court’s June 8,
2010 Order granting summary judgment, and remand for further proceedings consistent
with this opinion. 7
6
The existence of a genuine issue of material fact also precludes an entry of summary
judgment on the basis of qualified immunity. See Giles v. Kearney, 571 F.3d 318, 327-
28 (3d Cir. 2009).
7
Because we will vacate the grant of summary judgment, we need not address Boswell’s
alternative argument that we should, at a minimum, modify the District Court’s judgment
to remove the admission that Boswell agreed he did not appear to be visibly intoxicated.
13
