                                                                 NOT PRECEDENTIAL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
