MCGANN v. COLLINGSWOOD POLICE DEPARTMENT et al
Filing
55
OPINION. Signed by Judge Noel L. Hillman on 3/22/2012. (dmr)(n.m.)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
SEAN P. MCGANN,
Civil No. 10-3458 (NLH/KMW)
Plaintiff,
OPINION
v.
COLLINGSWOOD POLICE
DEPARTMENT, et al.,
Defendants.
APPEARANCES:
Sean P. McGann
4532 Walnut Street
Apartment B10
Philadelphia, Pennsylvania 19139
Pro Se
Dean R. Wittman, Esquire
Matthew B. Wieliczko, Esquire
Zeller & Wieliczko, L.L.P.
Woodcrest Pavilion
10 Melrose Avenue
Suite 400
Cherry Hill, New Jersey 08003
Attorneys for Defendant Collingswood Police Department
(Borough of Collingswood)
Kerri E. Chewning, Esquire
Archer & Greiner, P.C.
One Centennial Square
P.O. Box 3000
Haddonfield, New Jersey 08033-0968
Elyse G. Cra, Esquire
Shimberg & Friel, P.C.
20 Brace Road
Suite 350
Cherry Hill, New Jersey 08034
Attorneys for Defendant Camden County Prosecutor’s Office
Catherine Binowski
Office of Camden County Counsel
50 Market Street
14th Floor Courthouse
Camden, New Jersey 08102
Attorney for Defendant Camden County Correctional Facility
HILLMAN, District Judge
This matter comes before the Court by way of Defendant
Camden County Correctional Facility’s motion [Doc. No. 44] to
dismiss Plaintiff’s amended complaint pursuant to Federal Rule of
Civil Procedure 12(b)(6).
Also before the Court is Defendant
Camden County Prosecutor’s Office’s motion [Doc. No. 52] seeking
to partially dismiss Plaintiff’s amended complaint pursuant to
Rule 12(b)(6).
The Court has considered the parties’ submissions
and decides this matter pursuant to Federal Rule of Civil
Procedure 78.
For the reasons expressed below, Defendants’ motions to
dismiss are granted.
I.
JURISDICTION
In this case, Plaintiff has brought federal constitutional
claims pursuant to 42 U.S.C. § 1983.1
The Court has jurisdiction
over Plaintiff’s federal claims under 28 U.S.C. § 1331.
1. As noted in the Court’s June 28, 2011 Opinion, “Plaintiff
does not specifically cite Section 1983, but that statute poses
the proper vehicle to advance his federal claims, constitutional
in nature and alleging violations to his civil rights.
Therefore, the Court ... construe[s] Plaintiff’s claims as
Section 1983 claims.” (Op. [Doc. No. 38] 2 n.1, June 28, 2011.)
2
II.
BACKGROUND
The Court previously set forth the detailed factual
background of this case in its Opinion dated June 28, 2011.
[Doc. No. 38] 3-7, June 28, 2011.)
(Op.
Accordingly, the Court sets
forth here only those facts relevant to the present motions to
dismiss Plaintiff’s amended complaint.
As the Court recognized in the June 28, 2011 Opinion,
Plaintiff originally alleged Section 1983 claims generally
relating to the following incidents: (1) Plaintiff’s December 22,
2006 arrest by the Collingswood Police Department2 for suspicion
of theft; (2) a subsequent search of Plaintiff’s apartment that
same day; (3) a resulting charge of official misconduct in 2006;
(4) a related stay at a behavioral health facility; (5)
Plaintiff’s entry of a plea and subsequent sentence to six months
of house arrest; (6) Plaintiff’s first incarceration at Defendant
Camden County Correctional Facility (“Defendant CCCF” or “the
CCCF”) in the fall of 2007; (7) Plaintiff’s second incarceration
at Defendant CCCF beginning in approximately February 2008; (8) a
temporary restraining order filed by Plaintiff’s former
girlfriend and served on Plaintiff in 2008; and (9) alleged
2. Although Plaintiff named the Collingswood Police Department
as a Defendant in this action, the proper Defendant is the
Borough of Collingswood, not the Collingswood Police Department.
(Op. [Doc. No. 38] 1 n.1, June 28, 2011.) Therefore, any
reference in the remainder of this Opinion to the Collingswood
Police Department or its members shall be construed to refer to
the Borough of Collingswood.
3
harassment of Plaintiff by members of the Collingswood Police
Department when Plaintiff attempted to collect pay for unused
sick time and to obtain possession of his personal belongings
seized during the 2006 search of his apartment.
(Id. at 3-6.)
Initially, all three Defendants moved to dismiss Plaintiff’s
original complaint.
By Opinion and Order dated June 28, 2011,
the Court granted Defendants’ motions to dismiss based on the
fact that the majority of Plaintiff’s Section 1983 claims were
barred by the statute of limitations.
(Id. at 2, 16.)
With
respect to the Borough of Collingswood, the Court found that any
Section 1983 claims arising from the alleged misconduct of the
Collingswood Police Department relating to Plaintiff’s December
22, 2006 arrest, the search3 of Plaintiff’s apartment that same
day, and the official misconduct charge, accrued in or around
December 2006 and were barred by the two-year statute of
limitations because Plaintiff did not file his complaint until
approximately June or July of 2010.
(Id. at 10.)
The Court also
granted the Borough of Collingswood’s motion to dismiss
Plaintiff’s Section 1983 claims for failure to state a claim with
regard to the allegations that members of the Collingswood Police
Department harassed Plaintiff, in part, by filing multiple
3. This includes Plaintiff’s allegation that members of the
Collingswood Police Department planted evidence of drug-related
contraband in his apartment. (Op. [Doc. No. 38] 4, June 28,
2011.)
4
harassment charges against Plaintiff for attempting to collect
his personal belongings.
(Id. at 17-18.)
The Court concluded
that Plaintiff made only “vague allegations” regarding this
purported harassment and found that Plaintiff failed to
“articulate with requisite specificity and clarity in what ways
he was harassed, how many times he was harassed, or whether those
acts constitute[d] a violation of his legal rights.”
(Id. at
18.)
As to Defendant Camden County Prosecutor’s Office
(“Defendant CCPO” or “the CCPO”), the Court similarly determined
that the statute of limitations barred any Section 1983 claims by
Plaintiff against the CCPO relating to the December 2006 search,
Plaintiff’s acceptance of a plea agreement sometime between
December of 2006 and July 4, 2007, and the February 2008
violation of probation which resulted in Plaintiff’s subsequent
incarceration in the CCCF.
(Id. at 10-11.)
The Court concluded
that Plaintiff knew of the actions of Defendant CCPO before July
2007 and in or around February 2008, respectively, and thus any
causes of action under Section 1983 accrued at those times and
the statute of limitations had expired by the time Plaintiff
filed his complaint in June or July of 2010.
(Id. at 11.)
Finally, with respect to Defendant CCCF, the Court noted
that Plaintiff alleged facts indicating that he was incarcerated
at the CCCF on two separate occasions.
5
(Id. at 11-12.)
Regarding Plaintiff’s allegations that he was mistreated during
the course of his 2007 incarceration at the CCCF, the Court found
that any violation of Plaintiff’s civil rights must have occurred
before Plaintiff was released on October 12, 2007, and thus the
statute of limitations barred any claim arising from Plaintiff’s
2007 incarceration.
(Id.)
As to Plaintiff’s 2008 incarceration
at the CCCF which commenced in or around February 2008, the Court
concluded that “the complaint [was] devoid of any allegations
that would give rise to a cause of action against [Defendant]
CCCF for Plaintiff’s second” incarceration there.
(Id. at 12.)
After dismissing the majority of Plaintiff’s Section 1983
claims as time-barred by the statute of limitations, the Court
granted Plaintiff leave to file an amended complaint with regard
to those claims that “may have arisen within two years of the
filing of” Plaintiff’s complaint in June or July of 2010, and
allowed Plaintiff to amend with regard to two narrow lines of
claims. (Id. at 18.)
First, the Court permitted Plaintiff to
amend those allegations relating to the purported harassment
Plaintiff suffered by members of the Collingswood Police
Department when he attempted to retrieve his personal belongings,
as well as the alleged failure of the Collingswood Police
Department and Defendant CCPO to return his personal possessions
from the December 2006 apartment search.
(Id. at 19.)
Second,
after recognizing that Plaintiff’s complaint was factually
6
insufficient to allege a Section 1983 claim against Defendant
CCCF as to Plaintiff’s 2008 incarceration at the CCCF, the Court
permitted Plaintiff leave to amend the factual allegations in
support of that claim.
(Id. at 12 n.10, 18-19.)
As directed by the June 28, 2011 Opinion and Order,
Plaintiff filed an amended complaint with the Court on July 26,
2011.
(See generally Pl.’s Am. Compl. [Doc. No. 40].)
Defendant
CCCF now moves to dismiss Plaintiff’s amended complaint pursuant
to Rule 12(b)(6).
Defendant CCPO also moves to partially dismiss
Plaintiff’s amended complaint.
III. DISCUSSION
In this case, Defendants invoke Federal Rule of Civil
Procedure 12(b)(6) in seeking dismissal of Plaintiff’s amended
complaint.
When considering a motion to dismiss a complaint for
failure to state a claim upon which relief can be granted
pursuant to Rule 12(b)(6), a court must accept all allegations in
the complaint as true and view them in the light most favorable
to the plaintiff.
Cir. 2005).
See Evancho v. Fisher, 423 F.3d 347, 350 (3d
A complaint must contain “a short and plain
statement of the claim showing that the pleader is entitled to
relief.”
FED. R. CIV. P. 8(a)(2).
A district court, in weighing a motion to dismiss, asks
“‘not whether a plaintiff will ultimately prevail but whether the
claimant is entitled to offer evidence to support the claims[.]’”
7
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563 n.8 (2007) (quoting
Scheuer v. Rhoades, 416 U.S. 232, 236 (1974)); see also Ashcroft
v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1953 (2009) (“Our
decision in Twombly expounded the pleading standard for ‘all
civil actions[.]’”) (citation omitted).
The Third Circuit has
instructed district courts to conduct a two-part analysis in
deciding a motion to dismiss.
Fowler v. UPMC Shadyside, 578 F.3d
203, 210 (3d Cir. 2009).
First, a district court “must accept all of the complaint’s
well-pleaded facts as true, but may disregard any legal
conclusions.”
Fowler, 578 F.3d at 210-11 (citing Iqbal, 129 S.
Ct. at 1949).
Second, a district court must “determine whether
the facts alleged in the complaint are sufficient to show that
the plaintiff has a ‘plausible claim for relief.’”
F.3d at 211 (citing Iqbal, 129 S. Ct. at 1950).
Fowler, 578
“[A] complaint
must do more than allege the plaintiff’s entitlement to relief.”
Fowler, 578 F.3d at 211.
“‘[W]here the well-pleaded facts do not
permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged –but it has not “show[n]”“that the pleader is entitled to relief.”’”
Fowler, 578 F.3d at
211 (citing Iqbal, 129 S. Ct. at 1949); see also Phillips v.
Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (“The
Supreme Court’s Twombly formulation of the pleading standard can
be summed up thus: ‘stating ... a claim requires a complaint with
8
enough factual matter (taken as true) to suggest’ the required
element.
This ‘does not impose a probability requirement at the
pleading stage,’ but instead ‘simply calls for enough facts to
raise a reasonable expectation that discovery will reveal
evidence of’ the necessary element.”) (citing Twombly, 550 U.S.
at 556).
A court need not credit “‘bald assertions’” or “‘legal
conclusions’” in a complaint when deciding a motion to dismiss.
In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429–30
(3d Cir. 1997).
The defendant has the burden of demonstrating
that no claim has been presented.
Hedges v. United States, 404
F.3d 744, 750 (3d Cir. 2005) (citing Kehr Packages, Inc. v.
Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991)).
However, “if a complaint is subject to a Rule 12(b)(6)
dismissal, a district court must permit a curative amendment
unless such an amendment would be inequitable or futile.”
Phillips, 515 F.3d at 245; see also Alston v. Parker, 363 F.3d
229, 235 (3d Cir. 2004) (“We have held that even when a plaintiff
does not seek leave to amend, if a complaint is vulnerable to
12(b)(6) dismissal, a District Court must permit a curative
amendment, unless an amendment would be inequitable or futile.”);
Burrell v. DFS Servs., LLC, 753 F. Supp. 2d 438, 444 (D.N.J.
2010) (“When a claim is dismissed pursuant to Federal Rule of
Civil Procedure 12(b)(6), leave to amend and reassert that claim
9
is ordinarily granted. ... A claim may be dismissed with
prejudice, however, if amending the complaint would be futile.”)
(citation omitted).
IV.
ANALYSIS
A.
Defendant CCPO’s Motion to Partially Dismiss
Defendant CCPO contends that Plaintiff’s amended complaint
“reiterates many of the allegations contained in the original
[c]omplaint, including allegations of official misconduct and
conspiracy.”
(Br. of Def. CCPO in Supp. of Mot. to Partially
Dismiss Pl.’s Am. Compl. [Doc. No. 52] (hereinafter, “Def. CCPO’s
Mot. to Dismiss”), 3.)
Defendant CCPO argues that pursuant to
the Court’s June 28, 2011 Opinion and Order, any allegations in
the amended complaint regarding purported official misconduct or
conspiracy on the part of Defendants must be dismissed with
prejudice.
(Def. CCPO’s Mot. to Dismiss 4-5.)
To the extent
Plaintiff’s amended complaint alleges theft of his personal
property in accordance with the June 28, 2011 Opinion, Defendant
CCPO filed an answer denying these allegations.
see generally Def. CCPO’s An. [Doc. No. 51].)
(Id. at 5 n.1;
The docket
reflects that Plaintiff did not file opposition to Defendant
CCPO’s motion to partially dismiss the amended complaint.
Upon review, the Court notes that in both the original
complaint and the amended complaint, Plaintiff alleges that
various Defendants engaged in official misconduct and conspiracy
10
relating to the December 2006 search of his apartment.
(Compare
Pl.’s Compl. [Doc. No. 1] ¶ 6, with Pl.’s Am. Compl. [Doc. No.
41] ¶ 1.)
However, the Court previously dismissed any claims
arising from the events of December 2006 as being time-barred by
the statute of limitations.
2011.)
(Op. [Doc. No. 38] 10-11, June 28,
Moreover, the Court recognized in the June 28, 2011
Opinion that Plaintiff had “no recourse” for “those claims that
[were] time-barred by the statute of limitations[.]”
18.)
(Id. at
Accordingly, the Court grants Defendant’s CCPO’s motion to
partially dismiss Plaintiff’s complaint.
Thus, to the extent
Plaintiff’s amended complaint re-alleges claims which the Court
previously dismissed as barred by the statute of limitations, the
dismissal of those claims was with prejudice as amendment would
be futile and the claims are hereby stricken from Plaintiff’s
amended complaint.
Cf. Millman v. Subaru of Am., Inc., No. 07-
4846, 2009 WL 197527, at *2, 5 (granting defendant’s motion to
dismiss counts one and two of plaintiff’s second amended
complaint where plaintiff re-alleged those counts despite the
court’s prior dismissal with prejudice of those same counts).
B.
Defendant CCCF’s Motion to Dismiss
Defendant CCCF argues that Plaintiff’s amended complaint
should be dismissed with prejudice for failure to state a claim
upon which relief can be granted as to Defendant CCCF because
Plaintiff’s amended complaint “simply contains bald assertions
11
and legal conclusions that [Defendant CCCF] violated
[Plaintiff’s] 4th Amendment rights[.]” (Br. in Supp. of Mot. to
Dismiss in Lieu of Filing an Answer to Am. Compl. on Behalf of
Def. CCCF [Doc. No. 44] (hereinafter, “Def. CCCF’s Mot. to
Dismiss”), 4.)
Defendant CCCF makes three primary arguments in
seeking to dismiss Plaintiff’s amended complaint.
First,
Defendant CCCF contends that Plaintiff’s claims regarding a Terry
stop, a search of his person, and detaining Plaintiff without
probable cause during his 2008 incarceration at the CCCF are
“nothing more than labels and conclusions of law which clearly do
not satisfy the minimum standards for pleading a cause of
action.”
(Id.)
Second, Defendant CCCF asserts that Plaintiff’s amended
complaint fails to allege sufficient facts to sustain a Section
1983 under Monell because Plaintiff does not identify a
challenged policy or custom that is attributable to the County,
nor does Plaintiff show a causal connection between the execution
of such a policy and Plaintiff’s alleged injury.
(Id. at 6.)
Defendant CCCF argues that under Monell the CCCF cannot be held
liable on the basis on the basis of respondeat superior simply
for employing an alleged tortfeasor.
(Id. at 5-6.)
According to
Defendant CCCF, Plaintiff’s amended complaint against the CCCF
fails to state a claim upon which relief can be granted because
Plaintiff cannot demonstrate a municipal policy or custom existed
12
which caused an employee to violation Plaintiff’s rights.
(Id.
at 6.)
Finally, Defendant CCCF argues for a second time that
Plaintiff’s claims of alleged civil rights violations are barred
by the statute of limitations because Plaintiff’s cause of action
accrued in 2007 during Plaintiff’s first incarceration at the
CCCF.
(Id. at 7-8.)
In making this argument, Defendant CCCF
notes that in Plaintiff’s original complaint, Plaintiff alleged
that during the 2007 incarceration, Plaintiff learned from
Corrections Officer Richard Ellis that his former girlfriend was
involved in a sexual relationship with another Corrections
Officer — one, Ron Maksymowicz.
[Doc. No. 1] ¶ 17.)
(Id. at 8; see also Pl.’s Compl.
Defendant CCCF correctly points out that any
claims arising from Plaintiff’s 2007 incarceration at the CCCF
are time-barred by the statute of limitations.
(Def. CCCF’s Mot.
to Dismiss 8.)
With respect to the allegations in Plaintiff’s amended
complaint concerning Plaintiff’s 2008 incarceration, Defendant
CCCF asserts that Plaintiff now “coincidentally” alleges that
Corrections Officer Ron Maksymowicz confronted Plaintiff in July
2008 while at the CCCF regarding Maksymowicz’s sexual
relationship with Plaintiff’s former girlfriend and an alleged
speeding ticket.
(Def. CCCF’s Mot. to Dismiss 8, 8 n.1; see also
Pl.’s Am. Compl. ¶ 20.)
According to Defendant CCCF, at this
13
juncture, Plaintiff is only alleging that this incident occurred
in July of 2008 because “his civil rights claims involving his
2007 incarceration” were dismissed.
8.)
(Def. CCCF’s Mot. to Dismiss
Defendant CCCF also represents that this incident involves
“similar conduct” as alleged in the original complaint.
(Id.)
Thus, Defendant CCCF appears to argue that Plaintiff’s
allegations regarding the July 2008 incident at the CCCF actually
occurred in 2007 and thus are time-barred by the statute of
limitations.
(Id.)
1. Statute of Limitations Issue
Defendant CCCF’s contention that Plaintiff merely alleges
the July 2008 incident in order to bring his claim against
Defendant CCCF within the statute of limitations warrants a
closer examination of the allegations in the original complaint
as compared to those in the amended complaint.
With regard to
Plaintiff’s 2008 incarceration which commenced in approximately
February of that year, Plaintiff originally alleged only the
following:
19.
20.
21.
On February 3, 2008 I was arrested in
Philadelphia and placed in the Philadelphia
Prison System for I was a Fugitive Felon for
violating probation.
I was transferred to [the] Camden County
Correctional Facility approximately 2 weeks
later.
I was advised that the Prosecution wanted to
give me 3 years in prison for violating my
probation. They ultimately agreed to give me
a 364 day sentence with no probation. I
served 212 days of the sentence and was
14
released in mid July 2008.
(Pl.’s Compl. ¶¶ 19-21.)
It is clear from the original complaint
that Plaintiff made no previous allegations regarding any alleged
encounter with Corrections Officer Maksymowicz or any alleged
misconduct by Officer Maksymowicz in July of 2008.
In fact,
Plaintiff clearly sets forth that he was released in “mid July
2008[.]”
(Id. ¶ 21.)
The only mention of Corrections Officer
Maksymowicz in the original complaint alleges only that
Corrections Officer Richard Ellis informed Plaintiff during his
2007 incarceration that Corrections Officer Maksymowicz was
engaged in a sexual relationship with Plaintiff’s former
girlfriend.
(Id. ¶ 17.)
By contrast, in the amended complaint, Plaintiff alleges for
the first time that:
In July, 2008 while incarcerated in the Camden
County Correctional facility, I was on my way to
court when I was approached by Officer Maksymowics
[sic] and he said, “Are you the ... cop that gave
me a speeding ticket?” then he stated, “you do know
that I am [engaged in a sexual relationship with]
your girlfriend?” I did not know this officer
until this incident. He did make these statements
in front of other inmates, making it a danger to my
safety. I was scared greatly. ... I do have a
witness to this incident, but I wish to keep his
name confidential for now.
(Pl.’s Am. Compl. ¶ 20.)
Based on this alleged incident,
Plaintiff purportedly contends that “Defendant (Camden County
Correctional Facility) ... clearly violated [Plaintiff’s] 4th
Amendment Rights ... specifically by conducting a Terry Stop,
15
searching [Plaintiff’s] person, and detaining [Plaintiff],
restricting [Plaintiff’s] liberty, without probable cause ...
causing [Plaintiff] to feel intimidated and fearful of
correctional officers.”
(Id. at 4.)
It may appear suspect to Defendant CCCF that after the
Court’s previous dismissal of time-barred claims, Plaintiff now
alleges an incident not previously set forth in the original
complaint, regarding similar facts and involving similar
individuals, because these allegations effectively bring
Plaintiff’s Section 1983 claim within the statute of limitations
regarding Plaintiff’s 2008 incarceration.
However, in ruling on
this motion to dismiss, the Court must accept all allegations in
Plaintiff’s amended complaint as true and view them in the light
most favorable to Plaintiff, even in the face of Defendant CCCF’s
suspicions.
Evancho, 423 F.3d at 350.
Accepting these factual
allegations as true and viewing them in the light most favorable
to Plaintiff, the Court cannot find that Plaintiff’s Section 1983
claim regarding the 2008 incarceration is time-barred by the
statute of limitations at this time.
As set forth in the Court’s June 28, 2011 Opinion,
Plaintiff’s Section 1983 claim regarding his 2008 incarceration
at the CCCF is subject to a two-year statute of limitations and
his claim accrued at the time Plaintiff knew or had reason to
know of his injury.
See Fullman v. Pa. Dep’t of Corr., 265 F.
16
App’x 44, 46 (3d Cir. 2008); N.J. STAT . ANN . § 2A:14-2(a).
Based
on the allegations in the amended complaint, Plaintiff knew or
had reason to know of his encounter with Corrections Officer
Maksymowicz and any resulting violation of his rights sometime in
July 2008 prior to his release from the CCCF.4
Accordingly, any
potential claim relating to Plaintiff’s 2008 incarceration
accrued at that time and thus the statute of limitations on such
a claim expired sometime in July of 2010.
Defendant’s correctly point out that Plaintiff’s original
complaint in this action in the District of New Jersey was
received by the Clerk of Court on July 7, 2010 and docketed on
July 8, 2010.
However, attached as an exhibit to Plaintiff’s
original complaint is an Order dated June 21, 2010 signed by the
Honorable Juan Sanchez, U.S.D.J., in the Eastern District of
Pennsylvania, dismissing a civil rights complaint by Plaintiff
against the same Defendants in the present suit.
Compl. [Doc. No. 1-1] 1.)
(Ex. to Pl.’s
It is apparent from the existence of
Judge Sanchez’s Order that Plaintiff at least attempted to bring
this suit sometime prior to June 21, 2010 in the Eastern District
of Pennsylvania.
Moreover, Plaintiff’s original complaint and
its attachments as submitted in the District of New Jersey are
4. Plaintiff does not allege the specific date in July of 2008
on which the alleged encounter with Corrections Officer
Maksymowicz occurred. Accordingly, whether or not the statute of
limitations expired before Plaintiff brought this claim is
unclear.
17
all signed and dated by Plaintiff June 28, 2010.
Pl.’s Compl [Doc. No. 1].)
(See generally
With respect to the newly amended
allegations regarding Plaintiff’s 2008 incarceration in the CCCF,
the Court is unable to determine whether Plaintiff’s claim is
barred by the statute of limitations because the precise date of
the incident is not alleged in the amended complaint.
Thus,
Defendant CCCF’s motion to dismiss cannot be granted on the basis
of the statute of limitations.
2.
Failure to State a Claim for Monell Liability
Although the record is unclear regarding whether Plaintiff’s
claim is time-barred, the Court need not resolve the statute of
limitations issue to rule on the pending motion to dismiss
because even if Plaintiff’s claim was timely, Plaintiff’s amended
complaint fails to allege facts sufficient to support any Section
1983 claim against Defendant CCCF based on the alleged misconduct
of Corrections Officer Maksymowicz in July of 2008.
As Defendant
CCCF correctly argues, “a municipality cannot be held liable
under § 1983 on a respondeat superior theory.”
Marvel v. Cnty.
of Delaware, 397 F. App’x 785, 790 (3d Cir. 2010) (citing Monell
v. Dep’t of Soc. Servs., 436 U.S. 658, 690-91 (1978)).
Accordingly, “there are two ways that a plaintiff can
establish municipal liability under § 1983: policy or custom.”
Watson v. Abington Twp., 478 F.3d 144, 155 (3d Cir. 2007).
“Under Monell, a plaintiff shows that a policy existed when a
18
decisionmaker possess[ing] final authority to establish municipal
policy with respect to the action issues an official
proclamation, policy, or edict.”
Watson, 478 F.3d at 155
(citation and internal quotations omitted).
Alternatively, “[a]
plaintiff may establish a custom ... by showing that a given
course of conduct, although not specifically endorsed or
authorized by law, is so well-settled and permanent as virtually
to constitute law.
In other words, custom may be established by
proving knowledge of, and acquiescence to, a practice.”
155-56 (citation and internal quotations omitted).
Id. at
“In addition
to proving that an unlawful policy or custom existed, a plaintiff
also bears the burden of proving that such a policy or custom was
the proximate cause of the injuries suffered.”
Id. at 156.
Here, Defendant CCCF argues, and the Court agrees, that
Plaintiff has failed to meet the requirements to establish
municipal liability in this case.
With respect to Defendant
CCCF, the allegations of Plaintiff’s amended complaint, set forth
above, merely identify one specific encounter between Plaintiff
and Corrections Officer Maksymowicz and Plaintiff’s general
contention that Defendant CCCF violated Plaintiff’s Fourth
Amendment rights.
Compl. 4.)
(See Pl.’s Am. Compl. ¶ 20; see also Pl.’s Am.
Even accepting these factual assertions as true and
viewing them in the light most favorable to Plaintiff, the
amended complaint fails to identify any policy or custom on the
19
part of Defendant CCCF that would support a Section 1983 claim
for liability under Monell.
Moreover, the amended complaint
similarly fails to demonstrate how any such policy or custom was
the proximate cause of Plaintiff’s alleged injuries.5
Accordingly, the Court grants Defendant CCCF’s motion to dismiss.
5. On September 19, 2011, Plaintiff filed a brief in opposition
to Defendant CCCF’s motion to dismiss. (See generally Br. in
Supp. of Pl.’s Opp’n to Def.’s Mot. to Dismiss [Doc. No. 45].)
Plaintiff’s opposition was untimely, and Defendant CCCF objected
to the filing of Plaintiff’s late opposition and requested that
the Court not considered them. (Def.’s Response [Doc. No. 46]
1.)
By letter dated September 30, 2011, Plaintiff requested that
the Court consider the September 19, 2011 opposition in ruling on
the motion to dismiss because Plaintiff believed he had thirty
days to oppose the motion. (See September 30, 2011 Letter [Doc.
No. 54] 1.) Plaintiff apparently believed that he was entitled
to thirty days to file his opposition based on a document
entitled, “Federal Court Civil Complaint Timeline”, wherein it
appears to indicate a thirty day deadline for opposing a motion
to dismiss. (Id. at 2.)
It is unclear to the Court where Plaintiff obtained this
“Timeline”, but the Court recognizes that given Plaintiff’s pro
se status, it was reasonable for Plaintiff to believe he had
thirty days to file his opposition papers. Accordingly, the
Court considered Plaintiff’s opposition papers in ruling on the
motion to dismiss.
However, nothing in Plaintiff’s opposition can save
Plaintiff’s amended complaint from being dismissed as to
Defendant CCCF. Although Plaintiff alleges more detail in his
opposition regarding the purported July 2008 encounter with
Corrections Officer Maksymowicz, Plaintiff’s opposition similarly
fails to allege a claim under Monell. While Plaintiff argues
that Defendant CCCF knew that corrections officers have the power
to arrest individuals and had a duty to keep inmates safe, these
allegations are insufficient to allege a custom or practice under
Monell. Moreover, Plaintiff’s assertion that officials at
Defendant CCCF knew of the sexual relationship between
Plaintiff’s former girlfriend and Officer Maksymowicz and should
have “ensured that contact between” these men would not take
place, also cannot serve as a basis for Monell liability.
20
Therefore, Plaintiff’s claims against Defendant CCCF are
dismissed with prejudice, and the CCCF is terminated as a
Defendant in this action.
V.
CONCLUSION
For the foregoing reasons, Defendant CCCF’s motion to
dismiss Plaintiff’s amended complaint pursuant to Rule 12(b)(6)
is granted.
Plaintiff’s claims against Defendant CCCF are
dismissed with prejudice, and Defendant CCCF is terminated as a
Defendant in this action.
Additionally, Defendant CCPO’s motion
to partially dismiss Plaintiff’s amended complaint is granted.
Therefore, to the extent Plaintiff’s amended complaint re-alleges
claims which the Court previously dismissed as barred by the
statute of limitations, the dismissal of those claims was with
prejudice as amendment would be futile and the claims are hereby
stricken from Plaintiff’s amended complaint.
An Order consistent
with this Opinion will be entered.
Dated: March 22, 2012
At Camden, New Jersey
/s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
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