Dennis Patterson v. City of Wildwood

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 08-2987
__________
DENNIS PATTERSON,
Appellant
v.
CITY OF WILDWOOD;
SGT. CHRISTOPHER HOWARD;
PATROLMAN KENNETH PHILLIPS;
PATROLMAN KEVIN FRANCHVILLE;
PATROLMAN DANIEL ROSIELLO
__________
Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 06-cv-04334)
District Judge: Honorable Renee M. Bumb
__________
Submitted Under Third Circuit LAR 34.1(a)
on November 20, 2009
Before: RENDELL, BARRY, and CHAGARES, Circuit Judges.
(Filed : November 25, 2009)
__________
OPINION OF THE COURT
__________

-- 1 of 6 --

The District Court had subject matter jurisdiction over the federal claims pursuant to1
28 U.S.C. §§ 1331 and 1343. We have appellate jurisdiction under 28 U.S.C. § 1291, as
this matter is on appeal from the final order of the District Court.
Patterson is appealing from an order granting summary judgment and dismissing
the case. The standard of review is therefore plenary. Couden v. Duffy, 446 F.3d 483,
491 n. 3 (3d Cir. 2006); Abraham v. Raso, 183 F.3d 279, 287 (3d Cir. 1999).
2
RENDELL, Circuit Judge.
Dennis Patterson appeals from the District Court’s grant of summary judgment on
the basis of qualified immunity, contending that the District Court erred in determining, in
reliance on language from Scott v. Harris, 550 U.S. 372 (2007), that it could not adopt
Patterson’s version of the facts for purposes of its ruling. We agree with Patterson and
will therefore vacate and remand for further proceedings.1
Patterson instituted a § 1983 civil action against the City of Wildwood and several
individuals, including Sgt. Christopher Howard, alleging violations of his Fourth
Amendment right to be free from unreasonable seizure. His complaint arose out of an
incident that occurred in September 2004 at the Fairview Café in Wildwood, New Jersey,
where, he contends, he was illegally arrested and excessive force was used against him
during the course of an illegal seizure.
At issue is the District Court’s grant of summary judgment on Patterson’s
excessive force claim against Sgt. Howard. As the District Court noted, the facts
regarding the events of the evening in question, and the alleged use of force, were “highly

-- 2 of 6 --

3
disputed.” The District Court accurately summarized the facts as contended by each
party:
The parties dispute whether Plaintiff was resisting arrest and
whether he was unconscious while on the ground. Plaintiff
asserts that when Defendant told him he was under arrest and
ordered him to turn around, Plaintiff attempted to comply
with the order, but Defendant “grabbed [him] by the collar
and into the – to the ground [he] went.” (Pl. Dep. 43:5-6).
Plaintiff further claims that when he was slammed to the
ground, he hit the ground face first and was momentarily
knocked unconscious. Thus, Plaintiff argues, it was
unreasonable for Defendant to punch Plaintiff in the face.
Defendant contests Plaintiff’s version of the facts and claims
that Plaintiff was resisting arrest. Specifically, Defendant
asserts that Plaintiff assumed a fighting stance and had to be
pulled away from a glass window, which caused both Plaintiff
and Defendant to fall to the ground. Defendant further claims
that once on the ground, Plaintiff was not unconscious but,
rather, continued to resist arrest by flailing his arms about. At
that point, Defendant punched Plaintiff in the face one time to
subdue him.
(Dist. Ct. Op., pp. 8-9.)
The District Court noted that in the usual case, on summary judgment, in
determining whether a constitutional violation occurred, the Court must take the facts in
the light most favorable to Patterson and make all reasonable inferences in his favor. The
District Court then noted an exception to this rule: “However, the court need not accept
Plaintiff’s version of the facts to the extent it is contradicted by the evidence in the
record.” (Dist. Ct. Op. p. 9.) The Court then referenced language from Scott v. Harris,
supra, for the proposition that when a “blatant contradiction” renders a plaintiff’s version

-- 3 of 6 --

4
essentially unbelievable, the court should not apply the usual standard: “[w]hen opposing
parties tell two different stories, one of which is blatantly contradicted by the record, so
that no reasonable jury could believe it, a court should not adopt that version of the facts
for purposes of ruling on a motion for summary judgment.” (Dist. Ct. Op. p. 9, quoting
Scott v. Harris, 550 U.S. 372, 380, 127 S. Ct. 1769, 1776 (2007).)
The District Court then proceeded to point to two aspects of the record that
contradicted the version offered by Patterson, so as to cause the Court not to view the
evidence in a light most favorable to him. One such contradiction was presented by the
video taken of Patterson when he was in the back seat of the police car. In the video,
Patterson stated that he “does not like being punched in the face,” and his manner of
speech suggested that he was intoxicated at the time. From this, the District Court
concluded that Patterson was not unconscious when he was punched in the face, since he
was able to recall the punch while sitting in the police car, and further, that his inability to
remember could alternatively be attributed to intoxication, rather than unconsciousness.
The second source of contradiction was the testimony of the club’s bouncer, who
witnessed the arrest. He testified that Patterson was resisting arrest and was not
cooperative with the officers.
The District Court concluded that “no reasonable jury could find that Plaintiff was
unconscious while on the ground. Rather, the evidence shows that Plaintiff actively
resisted arrest and Defendant acted reasonably to subdue him. Therefore, no

-- 4 of 6 --

See, e.g., Re: Buber v. Township of Old Bridge, 2007 U.S. Dist. LEXIS 93841, *82
(D.N.J., Dec. 21, 2007) (noting that a 911 call and radio transmission did not conclusively
demonstrate whether police officers had repeatedly hit the plaintiff and holding that
5
constitutional violation occurred and Defendant is entitled to summary judgment on this
charge.” (Dist. Ct. Op. p. 11.)
Patterson contends that the District Court improperly applied the limited exception
set forth in Scott v. Harris, and also improperly weighed evidence in a manner not
appropriate at the summary judgment stage. We agree. The limited exception set forth by
the Supreme Court in Scott v. Harris does not apply in the instant fact pattern. Unlike
the videotape relied upon by the Supreme Court in Scott, which depicted the actual
incident, the videotape in this case did not capture the incident and could not therefore
contradict, let alone “blatantly contradict,” the record as to what occurred. While the jury
might conclude that the videotape was inconsistent with, or gave rise to different
inferences regarding, Patterson’s version of events, the videotape in this case does not
portray the actual incident; it cannot, and does not, “blatantly contradict” Patterson’s
version of events as the video did in Scott v. Harris. There, the video of the police chase
contradicted Scott’s version of the key event on which the claim was based. As Patterson
notes, courts have declined to apply the limited exception set forth in Scott v. Harris
where a videotape or other mechanical depiction does not capture the whole incident or
the entire arrest, or where the videotape or mechanical depiction is susceptible to multiple
reasonable interpretations.2

-- 5 of 6 --

“[t]his is not an instance, as was in Scott, where the entire arrest was recorded by video,
and the video failed to demonstrate that Plaintiff had been punched or kicked as
alleged.”); Mills v. City of Harrisburg, 589 F. Supp. 2d 544, 553 n.5 (M.D. Pa. 2008)
(declining to apply Scott v. Harris because the relevant audio recording was “susceptible
to multiple reasonable interpretations” unlike the videotape in Scott).
6
We agree, further, that crediting the testimony of the club’s bouncer, and
concluding that it contradicts Patterson’s version in such a way as to alter the standard
and preclude Patterson from proceeding to trial, was improper. The bouncer’s testimony,
together with all other testimony, should be heard by a jury, and its credibility judged
accordingly. Accepting the bouncer’s version over Patterson’s at the summary judgment
stage was error.
In light of the foregoing, the District Court’s grant of summary judgment in favor
of Sgt. Howard based on qualified immunity in light of the absence of a constitutional
violation will be VACATED and the matter REMANDED for further proceedings in the
District Court.

-- 6 of 6 --