                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-22-2008

Bender v. Monroe
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2141




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008

Recommended Citation
"Bender v. Monroe" (2008). 2008 Decisions. Paper 630.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/630


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                             NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               ___________

                                   No. 07-2141
                                   ___________

                    KEVIN BENDER and PATRICIA BENDER,

                                                    Appellants,

                                          v.

   TOWNSHIP OF MONROE, MONROE TOWNSHIP POLICE DEPARTMENT,
   PATROL OFFICER JOHN McBRIDE, PATROL OFFICER BART McILVANE,
     PATROL OFFICER MICHAEL J. DORAN, and SGT. ROBERT CLARK

                                               Appellees.
                           ________________________

                   On Appeal from the United States District Court
                            for the District of New Jersey
                                    No: 05-cv-216
                     District Judge: Honorable Joseph E. Irenas
                            ________________________


                                Argued July 22, 2008

              Before: McKee, FUENTES, and JORDAN, Circuit Judges.

                          (Opinion Filed: August 22, 2008)

David A. Avedissian (Argued)
135 Kings Highway East
Haddonfield, New York 08033

      Attorney for Appellants
James R. Birchmeier (Argued)
Powell, Birchmeier, & Powell
1891 State Highway 50
P.O. Box 582
Tuckahoe, NJ 08250

       Attorney for Appellees
                                      ____________

                                OPINION OF THE COURT
                                     ____________




FUENTES, Circuit Judge.

       This is an appeal from a grant of summary judgment in a § 1983 claim. The

dispute concerns Appellant Kevin Bender’s allegations that he was beaten by the police,

after being arrested for a domestic disturbance. For the reasons set forth below, we will

reverse the District Court’s grant of summary judgment for the defendants, and remand

for further proceedings.

                                            I.

       The District Court had subject matter jurisdiction over this case pursuant to 28

U.S.C. § 1331, as Bender alleged violations of 42 U.S.C. § 1983, and supplemental

jurisdiction over Bender’s state law claims pursuant to 28 U.S.C. § 1367. We have

jurisdiction over the District Court’s grant of summary judgment pursuant to 28 U.S.C. §

1291. We will exercise plenary review of the District Court's grant of summary

judgment, and will apply the standard that the District Court should have applied in

determining whether summary judgment was appropriate. Ruehl v. Viacom, Inc., 500
F.3d 375, 380 (3d Cir. 2007). Summary judgment should be granted only “if the

pleadings, the discovery and disclosure materials on file, and any affidavits show that

there is no genuine issue as to any material fact and that the movant is entitled to

judgment as a matter of law.” Fed.R.Civ.P. 56(c). In making this determination, all

“[i]nferences should be drawn in the light most favorable to the non-moving party, and

where the non-moving party's evidence contradicts the movant's, then the non-movant's

must be taken as true.” Modrovich v. Allegheny County, Pa., 385 F.3d 397, 415 (3d Cir.

2004) (internal quotation marks omitted). An issue is genuine, and thus, summary

judgment cannot be granted, if a reasonable jury could possibly hold in the nonmovant's

favor on that issue. Congregation Kol Ami v. Abington Twp., 309 F.3d 120, 130 (3d Cir.

2002).

                                               II.

         The parties provided the court with dramatically different versions of the facts in

question. Since we must determine whether there is any genuine issue of material fact

necessitating a trial, we review the two versions of the events in question in detail.

         It is undisputed that, on March 9, 2003, Mr. and Mrs. Bender were driven home

from a party where they had both been drinking, by their oldest daughter, Colleen. When

they arrived home, Mrs. Bender, who was drunk, could not get the door to their house

open and an argument ensued. Kevin Bender did not provide the court with a description

of the ensuing argument but did not dispute at oral argument that all three of them started

slapping each other. Then, Mrs. Bender went into the bathroom to call 911 and Mr.
Bender attempted to break the bathroom door open. Colleen then called 911 from the

porch. Mrs. Bender joined Colleen on the porch and Mr. Bender locked them out of the

house. When the police arrived, Colleen and Mrs. Bender were outside the house,

hysterically crying, and Mr. Bender was locked inside the house. Mrs. Bender asked the

officers to force open the door because she was scared for the safety of her two other

daughters, who were locked inside the house with Mr. Bender.

       At this point in the story, the two sides’ factual recitations radically diverge.

According to Bender, when the officers broke down the door to his house, he did nothing

to threaten the police officers. He claims that the defendants’ allegation that he was

holding an Allen wrench and standing in a boxing stance when they forced open the door

are false, and that, in fact, he held nothing in his hands when they came in, and did not

threaten the officers in any way. He says that the officers tackled him after breaking his

door open, that they pushed his head into a coffee table, and ultimately handcuffed him.

He conceded at oral argument that he, at some point after he was handcuffed, kicked an

officer in the groin. He says the officers led him from his house and beat him on his front

lawn, in front of his wife and three daughters, while he was handcuffed. He claims that

while the officers were beating him, one of them hit him in the face with a flashlight,

causing a fracture in his left cheekbone. He also claims that one of the defendants,

Officer Clark, threatened him while he was in the hospital, telling him that, if he told the

hospital staff how he got injured, Clark would retaliate against him.

       The defendants version of Bender’s arrest is quite different. According to the
defendants, the officers had to place Mr. Bender under arrest verbally through the closed

door to his house, because he refused to open it. Then, after receiving encouragement

from Mrs. Bender, they forced the door open. Once they got the door open, the

defendants claim that Mr. Bender met them in a boxing stance, holding an Allen wrench

in his hand. They say that Mr. Bender refused to drop the wrench so they forcibly took

him to the floor and handcuffed him. The defendants allege that his face may have been

injured at this point, because he struck a coffee table in the living room with his face, as

they were struggling to get the handcuffs on him. Then, as they escorted Mr. Bender to

the police car, they say he was fighting and kicking, and kicked one of the officers in the

groin. They claim that Mr. Bender fell to the ground, and continued to kick at the officers

to keep them away from him. Once they finally got him into the car, they say that he

repeatedly head butted the partition, also potentially causing the injury to his face.

       The depositions of family members support Mr. Bender’s version of the events of

that night. His daughter Cara testified that when the cops kicked in the door, Mr. Bender

stepped back and the cops slammed him on the ground and handcuffed him. Cara

testified that once they got him outside, a bald officer raised a flashlight into the air and

threatened her dad with it. She stated that she did not see him hit her father with it

because she turned her head.

       His daughter Colleen also testified that her father just stood there when the officers

opened the door and that they tackled him to the floor. Colleen stated that while they

were transporting him, handcuffed, to the patrol car, he was yelling and cursing and tried
to kick at the officers. Colleen said that, in response, the officers punched him in the

stomach, sending him to the ground, and that all the officers piled on top of him, beating

him, and hitting him with a flashlight.

       Kaitlyn Bender, his third daughter, testified that the officers tackled him in the

house to handcuff him and that, when they got out onto the front lawn, she heard her dad

making grunting noises because they were beating him. Mrs. Bender testified at her

deposition that she didn’t watch as the officers took Mr. Bender from the house to the

patrol car. She did not know that he had been beaten until she was told he was being

taken to the hospital.

       In connection with this incident, Mr. Bender was charged in a 6 count indictment,

including counts of resisting arrest and possessing an Allen wrench as a weapon. He

eventually pled to one count of aggravated assault on a police officer. At his guilty plea

hearing, he admitted to kicking a police officer while he was handcuffed.

                                             III.

       Bender argues that the District Court erred by granting the defendants’ summary

judgment motion with respect to his 42 U.S.C. § 1983 excessive force claim. We agree.

       In granting the defendants’ summary judgment motion, the District Court analyzed

whether the force used against Mr. Bender was reasonable under the Fourth Amendment.

The District Court found that it was undisputed that the police officers placed Mr. Bender

under arrest before entering his home, that he refused to open the door and therefore

resisted arrest, and that the officers needed to forcibly enter the house. In addition, the
District Court noted that Mr. Bender pled guilty to one count of aggravated assault on a

police officer. Accordingly, the court found, without any further analysis, that the force

used to restrain him was reasonable.

       This finding was error. Taking the facts in the light most favorable to Bender, he

resisted arrest by refusing to open the door when they knocked, but did not threaten the

police once they forced the door open. Next, if Mr. Bender is to be believed, the officers,

unprovoked, smashed his face against a coffee table, in their efforts to handcuff him.

Once the officers led Mr. Bender out of his house, he kicked one of them and the officers

retaliated by beating him up, while he was handcuffed, hitting him in the face with a

flashlight and breaking his cheekbone. The District Court should have allowed a jury to

determine which version is to be believed and whether the facts finally proved at trial

amount to excessive force.

                                             IV.

       It is clear, as detailed above, that a genuine issue of material fact remains to be

decided at trial. Accordingly, we will reverse the decision of the District Court and

remand for further proceedings.
