PAUL C.

WILLIAMS
35 BROAD STREET #C4
TOMS RIVER NJ 08753-6564
p.c.williams70@gmail.com
Ph: 732.998.6707

March 15, 2022

Honorable Zahid N. Quraishi, U.S.D.J.

United States District Court
402 East State Street, Courtroom 7W
Trenton NJ 08608

RE: PAUL C. WILLIAMS v. RICHARD BOSLEY, et al.

Case No. 3:18-cv-13092-ZNQ-TJB
ORAL ARGUMENT REQUESTED

Dear Judge Quraishi:

As you may recall, I am the Plaintiff in the above-referenced matter and

represent myself. Accordingly, please accept this Letter Sur-Reply to Defendant’s reply
(Doc. No. 65) in support of their motion (Doc. No. 61) for summary judgment which
Plaintiff opposes (Doc. No. 64).

Keeping in mind that the ultimate issue that is currently before the Court is
whether there is a genuine dispute of material facts and the movant is entitled to
judgment as a matter of law (Fed. Rule Civ. Proc., 56), Plaintiff submits that, in reply to
Plaintiff’s response to Defendant’s motion for summary judgment, Defendants submitted
a reply which addressed parts of Plaintiff’s response and also raised additional matters.

More specifically, Defendant’s initially addressed what they refer to as “Plaintiff’s

concessions” warranting the dismissal of eight counts; specifically counts 18, 20, 21, 22,
24, 26, 27, and 28. (Doc. No. 65, Pages 1 to 2) They argue that “Plaintiff concedes that
[several counts] must be dismissed. (Doc. No. 65, Page 2) To this, Plaintiff submits that
he made no such concessions. Instead, Plaintiff only indicated that “he is inclined to
concede that * * * parts of his claims in certain Counts and his entire claims in other
Counts may no longer be viable.” (Doc. No. 64, Page 98)(emphasis added) Such
“concession” relates to only “parts of Counts 3, 7, 11, and 15, and the entirety of Counts
18, 20, 21, 24, 26 and 27.” (Id.)(emphasis added) Accordingly, Defendant’s
representations regarding Counts 22 and 28 is patently inaccurate. Of course,
Defendant’s also argue that, with regard to Counts 22 and 28, “Plaintiff does not oppose
this argument” (Doc. No. 64, Page 2) because they perceive that Plaintiff had not
included any opposition to their argument regarding the seizure of the cell phone and
camera but such argument appears to fail to account for the fact that, regardless of any
argument, there is a genuine dispute of material fact relating to the seizure of the cell
 WILLIAMS v. RICHARD BOSLEY, et al.
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phone and camera.

Defendants also raised an issue regarding Plaintiff not providing a “supplemental

statement of undisputed material facts” or, alternatively, “a statement of undisputed
facts in separately numbered paragraphs as required by Local Civil Rule 56.1” and,
instead, provided a declaration. (Doc. No. 65, Page 2) Defendants requested that the
Court reject Plaintiff’s declaration in so far as it fails to cite to any aspect of the record to
validate the veracity of the same. (Id.) To this, Plaintiff would like to make a couple
things clear. To begin with and as Defendants have noted, Plaintiff is pro se and the
United States Supreme Court, in Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30
L.Ed.2d 652 (1972), long ago established what remains as a prevailing principle that
pleadings by pro se litigants are not to be held to the same technical standards as
attorneys. While the appearance of Plaintiff’s presentations may occasionally lead
some to forget that he is not an attorney nor possessed with the formal education and
training of attorneys, it is imperative to keep it in mind when it comes to claims such as
that made by Defendants.

With that in mind, it is correct, as Defendants assert, that Plaintiff did not present
a document that is specifically entitled “supplemental statement of undisputed material
facts” or, alternatively, “a statement of undisputed facts.” Frankly, Plaintiff did not
perceive that such was actually required of him. In full compliance with the very rule
they cited, Plaintiff did submit a document that is captioned “Plaintiff’s Response to
Defendant’s Statement of Undisputed Material Facts” (Doc. No. 64-1) and that such
document addressed each paragraph of their purported Statement of Undisputed Facts,
“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” (see, L. Civ. R. 56.1(a)). Whatever may be said of Plaintiff’s Declaration, his
“response to Defendant’s Statement of Undisputed Material Facts” makes clear that
Plaintiff has responded to Defendant’s statement of undisputed facts in the exact
manner contemplated by L. Civ. Rule 56.1 and his Declaration, made under penalty of
prosecution for perjury for any false statements made therein, was submitted in
accordance with F. Rule Civ. Proc., 56(c)(1)(A) and to clarify what the actual facts and
circumstances are.

Federal Rule of Civil Procedure, 56 and which is the operative rule upon which
Defendant’s seek summary judgment, provides that, in pertinent part,

“[a] party asserting that a fact cannot be or is genuinely disputed must support that
assertion by[] citing to particular parts of materials in the record, including
depositions documents, electronically stored information, affidavits or declarations,
stipulations (including those made for purposes of the motion only), admissions,
 WILLIAMS v. RICHARD BOSLEY, et al.
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Page 3 of 5

interrogatory answers, or other materials * * * .”

F. Rule. Civ. Proc., 56(c)(1)(A)(emphasis added). Accordingly and in response to

Defendant’s overwhelmingly and convoluted false and misleading assertions and
representations of what the facts are, Plaintiff drafted and submitted a Declaration in
addition to, not in place of, his separate “Response to Defendant’s Statement of
Undisputed Material Facts” and, in support of his opposition, to clarify what the actual
facts and circumstances in the case at bar have been and as he recited the facts and
circumstances in the “Statement of Facts” portion of his brief with references to the
Declaration and other documents.

Perhaps Plaintiff has been mistaken and should be allowed an opportunity to

correct such error but, in the grand scheme, it does not appear that the lack of such
specifically entitled and formatted document precludes submission and consideration of
the Declaration that, as Defendants bemoan, Plaintiff has submitted. Their protest
about the Declaration appears premised on their claim that it “is littered in advocacy,
and cites to not one single record to permit these Defendants to accurately and truthfully
confirm or deny the veracity of its stated contentions.” (Doc. No. 65, Page 2) However,
the Declaration was prepared in such a manner that each assertion of fact was in a
separately numbered paragraph and, therefore, could have been responded to by
Defendants just as Plaintiff responded to their Statement of Undisputed Material Facts.

Defendant’s assertions and argument appears to be an attempt to play the game

of “gotcha” on a procedural technicality of form over substance and have this Court
participate in it, although the Supreme Court has denounced such treatment of pro se
litigants such as the Plaintiff here. However inartful or untraditional Plaintiff may have
presented his opposition to Defendant’s flailing motion, substance over form clearly and
overwhelmingly reveals that Defendants motion must fail. See, Barclay v. Stabley,
U.S.D.C., M.D. Pennsylvania, January 12, 2022, Slip Copy 2022 WL 120256
(“Defendants filed a statement of material facts as required by Local Rule 56.1, and
Plaintiff filed a document titled “Statement of Material and Disputed Factual Issues” that
is, in substance, a response to Defendants’ statement of material facts. Defendants
argue that Plaintiff's statement of material facts should be disregarded for its purported
noncompliance with Local Rule 56.1. A review of Plaintiff's statement, however, shows
that it responds to Defendants’ statement of material facts in the exact manner
contemplated by Local Rule 56.1. I will, therefore, reject Defendants’ argument that
Plaintiff's statement should be disregarded.”)

In any event, Defendants overlooked and/or would have this Court overlook the
fundamental fact that, in connection with a motion for summary judgment, the burden of
persuasion is on the Defendant(s) and, in support thereof, they are required to put forth
 WILLIAMS v. RICHARD BOSLEY, et al.
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a statement of material facts that there is no genuine dispute about. This fact, however,
must be kept in mind, because it is upon such statement and any response thereto that
the Court must focus to determine whether there is a genuine dispute of material fact.

Defendants also attempt to make some kind of distinction in freedom of speech

and the press rights and government authority about whether a person or the press is
capturing images of people, places, and things, including police activity, that appear and
are occurring in a public space dependent on whether the person and the press are
capturing those images in a public space while themselves situated on a public property
or private property; “flailing,” if you will. They state that Plaintiff has provided a
dissertation of First Amendment case law wherein Courts have habitually condemned
police interference with press related activities that occur on public property and that
they would agree that Plaintiff’s analysis is accurate and applicable “had he in fact been
located on public property.” (Doc. No. 65, page 2) To this, Plaintiff submits that,
whether he was himself situated on public or private property when he was capturing
images of what was appearing and occurring in a public space and Defendants initiated
and escalated their confrontation is completely and utterly irrelevant, considering the
facts and circumstances at issue here. Defendants appear to know this, despite their
argument, because they again attempt to mislead the Court with false and misleading
statements of what the facts and circumstances are; considering that they flagrantly lie
with the statement that “the residential property was enclosed from the street by a
wooden stockade fence.” (Doc. No. 65, page 2)(emphasis added) Not even careful but
very simple review of the photographic evidence both parties have submitted
demonstrates that property was not, by even any stretch of the imagination, “enclosed”
and there was not a “stockade” fence on or near at least any area of the property that is
relevant here. (Doc. Nos. 64-10 and 64-13 through 64-15; Doc. No. 61-19 and 61-20)

Defendants also attempt to interject a new argument that was not raised in their
initial brief. Specifically, Defendant’s state that, with regard to his claim for excessive
force, Plaintiff has lumped all Defendants into it, has not distinguished each respective
officer’s conduct, and that this inherent failure entitles Defendants to summary judgment
as a matter of law. In other words, they now contend that Plaintiff has not shown and
established the personal involvement of each Defendant in the excessive force Plaintiff
claims. For support, they rely on the Third Circuit’s decision in Jutrowski v. Township of
Riverdale, 904 F.3d 280 (3d Cir. 2018). They correctly note that the Court held that a
Plaintiff’s inability to identify which officer performed what conduct renders his claim for
excessive force void. Id., at 291. They also correctly note that such decision was later
affirmed and supported by the Third Circuits in the subsequent decision of Williams v.
City of York, 967 F.3d 252 (3d Cir. 2020) which the Court definitively recognized that
Section 1983 Liability, for summary judgment purposes, is predicated on a showing of
that individual defendants’ direct involvement – especially in excessive force cases.
 WILLIAMS v. RICHARD BOSLEY, et al.
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Because these arguments are being raised for the first time in their reply brief, certainly
could have been raised in their initial brief, and are not responsive to anything Plaintiff
raised, Plaintiff submits that the Court should strike such arguments and take any other
action against Defendants and their counsel as the Court may deem appropriate for
such antic; especially considering that, without permission of the Court to file a sur-
reply, Plaintiff will not be able to address such new arguments.

In response to Defendant’s new argument, Plaintiff submits that Jutrowski and

Williams are both fundamentally distinguishable from the case at bar. In both cases,
those Plaintiffs simply could not establish the personal involvement of those
Defendants. In this case, Plaintiff has at least adequately alleged the personal
involvement of the Defendant’s and, through their own reports, the Defendants have at
least adequately admitted their personal involvement. See, Smith v. Mensinger, 293
F.3d 641, 650 (3d Cir. 2002)(The defendants sought summary judgment on the grounds
that the plaintiff had failed to establish their personal involvement, but the Third Circuit
rejected this argument, holding that the plaintiff had sufficiently shown their personal
involvement through allegations and testimony that all of the officers had participated in
the assault.) At a minimum, there is a genuine dispute of material facts about personal
involvement enough to make summary judgment inappropriate.

Based on the foregoing, it is respectfully submitted that the Defendant’s motion

for summary judgment should be denied.

Respectfully submitted,

/s/ Paul C. Williams

Paul C. Williams

PCW:pcw
c: Thomas E. Monahan, Esq. via email
Patrick F. Varga, Esq. via email
Maura McCabe, Qual-linx representative via email
File