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Barna v. City of Perth Amboy

filed: December 14, 1994.

LOUIS D. BARNA; THERESA BARNA, APPELLANTS
v.
CITY OF PERTH AMBOY; TOWNSHIP OF WOODBRIDGE; PAUL OTTERBINE; STEPHEN OTTERBINE; RICHARD ECHEVARRIA; BENJAMIN RUIZ; ORLANDO SANABRIA; STEPHEN POLOKA; JAMES M. CRILLY; CHARLES HAWKINS; FRANK WALLACE



On Appeal From the United States District Court For the District of New Jersey. (D.C. Civil Action No. 92-cv-05133).

Before: Stapleton, Garth and Pratt,*fn* Circuit Judges.

Author: Stapleton

Opinion OF THE COURT

STAPLETON, Circuit Judge:

Louis and Theresa Barna ("Mr. and Mrs. Barna") sued eight police officers, the City of Perth Amboy, and the Town of Woodbridge for violations of their constitutional rights stemming from an alleged assault and the subsequent detention of Mrs. Barna and arrest and prosecution of Mr. Barna. Following presentation of the plaintiffs' case, Officers Otterbine, Echevarria, Ruiz, and Sanabria moved for judgment as a matter of law, which the district court granted.*fn1 The district court also dismissed their complaint as to Officer Hawkins for failure to effect proper service. The Barnas appeal from those orders.

We conclude that judgment as a matter of law was proper on Mr. Barna's assault-based claim because the evidence could not support a finding that the officers were acting under color of state law. We further conclude that judgment as a matter of law was also appropriate with respect to Mr. Barna's unconstitutional arrest claim and Mrs. Barna's forcible detention claim because a reasonable jury could only conclude that the officers acted reasonably under the circumstances. We therefore will affirm the district court's order as it relates to those claims.*fn2 We will reverse, however, the dismissal of the Barnas' claim against Officer Hawkins and will remand for a determination as to whether the answer purportedly filed on his behalf was authorized.

In reviewing an order granting judgment as a matter of law, we exercise plenary review and apply the same standard that the district court should have used in deciding the motion.*fn3 Sowell v. Butcher & Singer, Inc., 926 F.2d 289, 296 (3d Cir. 1991) (citing Frank Arnold Contractors, Inc. v. Vilsmeier Auction Co. Inc., 806 F.2d 462, 463 (3d Cir. 1986)). The officers' motions for judgment as a matter of law should have been granted only if, at the close of the Barnas' case, "there [was] no legally sufficient evidentiary basis for a reasonable jury to find for [the Barnas] on [an] issue" necessary to maintain their claims. Fed. R. Civ. P. 50(a).*fn4 We also exercise plenary review over the legal standards applied by the district court in granting a motion to dismiss for lack of service. Carteret Savings Bank, FA v. Shushan, 954 F.2d 141, 144 (3d Cir.) (quoting North Penn Gas Co. v. Corning Natural Gas Corp., 897 F.2d 687, 688 (3d Cir.) (per curiam), cert. denied, 498 U.S. 847, 112 L. Ed. 2d 101, 111 S. Ct. 133 (1990)), cert. denied, 113 S. Ct. 61 (1992).

I.

The relevant facts as established by the plaintiffs' presentation of their case at trial are as follows.*fn5 On the evening of December 21, 1990, Louis and Theresa Barna went to dinner with Mrs. Barna's sister, Mary Haelson ("Aunt Mary"), and Mrs. Barna's mother. After dinner, and after taking Mrs. Barna's mother home, Mr. and Mrs. Barna and Aunt Mary went to a bar. Mr. and Mrs. Barna each consumed significant quantities of alcohol during the evening.*fn6

The Barnas and Aunt Mary left the bar to return to the Barnas' home. On the way, they stopped at a Christmas tree business owned by a longtime friend of Mrs. Barna's family, Bobby DeHane. Mr. and Mrs. Barna were also in this line of business and Mrs. Barna was angry at Mr. DeHane, believing that earlier in the day he had reported electrical code violations at the Barnas' Christmas tree lot to a government agency. Mrs. Barna got out of the car and unsuccessfully sought out DeHane in order to confront him. Aunt Mary coaxed her back into the car.

DeHane's Christmas tree lot was across the street from another bar. Coincidentally, Perth Amboy Police Officers Paul Otterbine ("Otterbine") and Richard Echevarria ("Echevarria") were outside that bar in Officer Echevarria's truck. Officer Otterbine is the brother of Mrs. Barna and Aunt Mary. Although the officers were off-duty and not in uniform, they were armed with their service revolvers and with their police-issue "PR-24" nightsticks. Otterbine noticed his mother's car, and saw his two sisters and Mr. Barna. Aunt Mary signaled to her brother that Mr. and Mrs. Barna were drunk and wanted to damage the Dehane property and asked Otterbine to follow her home. Otterbine explained to his partner that there was a problem with Mr. and Mrs. Barna and asked Echevarria to accompany him. The two officers, in Echevarria's truck, then followed Mr. and Mrs. Barna and Aunt Mary back to the Barnas' home.

At the Barnas' home, Aunt Mary attempted to leave with her sister, Dena Otterbine, who had been babysitting the Barnas' children. Mr. Barna testified that, when he saw his sisters-in-law pulling away in their car, he signalled for them to stop by standing in the path of their car and waving his arms. Aunt Mary, who was driving, stopped the car. Mr. Barna testified that he then went to the side of the car, knelt down to speak with Aunt Mary through the driver's side window, and asked her to stay with Mrs. Barna and the children while he went out. Instead, Aunt Mary drove slowly away, dragging Mr. Barna who was holding onto the driver's side door. Aunt Mary stopped the car after dragging Mr. Barna fifty or sixty feet.

Officer Otterbine, who apparently witnessed this, began yelling at Mr. Barna and accused him of hitting his sister, Aunt Mary. Mr. Barna argued with Officers Otterbine and Echevarria, telling them: "Look, you guys are out of your jurisdiction. Just get out of here, go home, this is none of your concern." App. 117. Echevarria then responded: "Jurisdiction? I'll show you jurisdiction." App. 117. Echevarria and Otterbine then attacked Mr. Barna and beat him up. Mr. Barna testified that he was largely passive during the fight, and that at one point Officer Otterbine used his nightstick to place Mr. Barna in a chokehold. Mr. Barna's testimony was in large part corroborated by Bobby Borrero who had followed the Barnas home to receive a paycheck from Mr. Barna.

After beating up Mr. Barna, Officers Otterbine and Echevarria left Mr. Barna on the sidewalk and returned to Echevarria's truck. They attempted to leave the scene, but Mrs. Barna prevented their departure. She slapped her brother in the mouth and told the two officers not to go anywhere.

Mr. Barna, fearing for his wife's safety, retrieved an unloaded revolver from his house. He pointed the gun into the cab of the truck in which Otterbine and Echevarria were sitting and told the officers not to go anywhere until other police arrived. At his wife's bidding, Mr. Barna stopped pointing his gun at the officers and walked over to see if his wife was okay. Otterbine and Echevarria then jumped out of the truck, drew their weapons against Mr. Barna, and told him to drop his gun. Mr. Barna stepped backwards, tripped over the curb, and, as he fell, flung the revolver in his hand over his shoulder into a hedge.

Mr. Barna then ran into his house and retrieved a twelve-gauge pump action shotgun. He walked out onto the porch and "shuffled" the pump action of the shotgun, making a distinctive sound to gain the attention of all present. He told Otterbine and Echevarria not to leave. At that point, he testified, he ran into the house, bolted the door, picked up the telephone and called his mother and his mother-in-law.

After Mr. Barna went back into his house, Officers Otterbine and Echevarria apparently called for backup and additional Perth Amboy police officers arrived on the scene, including Benjamin Ruiz ("Ruiz") and Orlando Sanabria ("Sanabria"). According to Mrs. Barna, Otterbine was drunk, and both he and Officer Echevarria continued to point their weapons at the Barnas' front door, stating that they were going to kill Mr. Barna. Mrs. Barna testified that she "was grabbing on [Otterbine's] arm, [yelling at him and] trying to get his attention," but "he didn't want to pay attention to me." App. 312, 315. Otterbine thereupon instructed Officer Ruiz to remove Mrs. Barna from the scene, but when Ruiz attempted to do so, she resisted. Officer Ruiz tried to restrain Mrs. Barna by holding her arms, while she struggled to elude his grasp. Ruiz was finally able to handcuff Mrs. Barna and, with the assistance of Officer Sanabria, place her into a patrol car. At that point, she attempted "with all [her] might" to kick her way out of the patrol car. App. 317.

Officers Ruiz and Sanabria took Mrs. Barna to the Raritan Bay Medical Center, where they checked her in for intoxication. Upon arriving at the Medical Center, Ruiz removed the handcuffs and Mrs. Barna tried to leave, but the hospital staff placed her in restraints. "I was hysterical," she testified, "I was still combative, I wanted to go home." App. 318. After a time, Mrs. Barna calmed down and she was released from the hospital; she returned home at about 3:00 a.m.

While Mrs. Barna was at the hospital, events at the Barna home escalated. Based on the representations of Officers Otterbine and Echevarria that Mr. Barna had barricaded himself in his home with his children, the Woodbridge police officers who had been called to the scene contacted then Middlesex County Prosecutor (now Judge) Allen A. Rockoff*fn7 and informed him that a hostage situation was taking place at the Barna home. As the chief law enforcement officer for the county, Rockoff ordered the county's hostage negotiation team to go to the Barnas' home. As part of the hostage situation response, the Barnas claim that Officer Charles Hawkins intercepted Mr. Barna's telephone conversations. After a period of time, Mr. Barna voluntarily surrendered to the police. He was arrested and detained for three hours, then taken to a hospital for treatment for his injuries, and finally transported to the Middlesex County Adult Corrections Facility. He was released when bail was posted.

Officers Otterbine and Echevarria later charged Mr. Barna with a number of criminal offenses in connection with these events.

Mr. and Mrs. Barna subsequently filed a civil complaint in the District Court for the District of New Jersey, alleging violations of their civil rights under 42 U.S.C. § 1983 by the City of Perth Amboy; the Township of Woodbridge; Officers Otterbine, Echevarria, Ruiz, Sanabria, Hawkins; and others. Prior to trial, a number of counts were voluntarily dropped and a number of defendants dismissed from the suit. At a pre-trial conference, the magistrate Judge recommended that the claims against Officer Hawkins be dismissed for improper service of process. At the start of the trial, and relevant to this appeal, the remaining defendants were Officers Otterbine, Echevarria, Sanabria, and Ruiz. Of the twelve counts in the Barnas' complaint, Counts I, III, and V remained for trial.

Count I alleged that Officers Otterbine and Echevarria "assaulted" Mr. Barna and thereafter caused his arrest, depriving him of his constitutional rights ...


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