INGRAM v. TOWNSHIP OF DEPTFORD et al
Filing
18
OPINION. Signed by Chief Judge Jerome B. Simandle on 3/13/2012. (TH, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
DOLORES INGRAM,
HON. JEROME B. SIMANDLE
Plaintiff,
Civil No. 11-2710 (JBS/JS)
v.
OPINION
TOWNSHIP OF DEPTFORD, et al.,
Defendants.
APPEARANCES:
Aaron Benjamin Gorodetzer, Esq.
BROWN - THE LAW FIRM
16 West Market Street
West Chester, PA 19382
Attorney for Plaintiff Dolores Ingram
Douglas M. Long, Esq.
LONG MARMERO & ASSOCIATES LLP
44 Euclid Street
Woodbury, NJ 08096
-andA. Michael Barker, Esq.
BARKER, SCOTT & GELFAND
Linwood Greene
210 New Road Suite 12
Linwood, NJ 08221
Attorneys for Defendants Township of Deptford, Deptford
Township Police and Sgt. Michael Taylor
SIMANDLE, Chief Judge:
I.
INTRODUCTION
This matter is before the Court on Defendants Township of
Deptford, Deptford Township Police and Sgt. Michael Taylor's
("Defendants") motion to dismiss the complaint pursuant Fed. R.
Civ. P. 12(c). [Docket Item 7.]
filed opposition.
Plaintiff Dolores Ingram has
For the reasons discussed herein, the court
will grant in part and deny in part Defendants' motion to
dismiss.
II.
BACKGROUND
The instant action arises out of Defendant Sgt. Michael
Taylor's alleged use of excessive force on the Plaintiff in
removing her from a municipal court proceeding pursuant to the
order a municipal court judge.
On or about May 13, 2009, Plaintiff Dolores Ingram
("Plaintiff") was a crime victim waiting to testify as a witness
in the Deptford Municipal Court where the Honorable William
Golden presides. (Compl. ¶ 10.) When the case in which Plaintiff
was to testify was called, the defendants had not appeared and
were not in the courtroom.
(Compl. ¶ 11.)
At the time of the incident, the Plaintiff was 74 years old
and had difficulty hearing the judge.
(Compl. ¶ 12.)
The
Plaintiff asked if she could speak to the Judge and explain the
situation.
(Compl. ¶ 12.)
At this point, Judge Golden stated
"remove her from the courtroom."
(Compl. ¶ 13.)
In response to the Judge's request, Defendant Sergeant
Michael Taylor, who was much larger in stature compared to the
Plaintiff, placed the Plaintiff in a hold by placing his right
arm under her chest around her ribs and pushing his left hand
into the center of her back and lifting the Plaintiff off the
ground.
(Compl. ¶ 14.)
The Plaintiff, who suffered from disc
2
herniations, prior broken ribs and a degenerative hip pleaded
with Sergeant Taylor to allow her to walk out of the courtroom on
her own.
(Compl. ¶ 15.)
Sergeant Taylor ignored her pleas and
continued his hold on the Plaintiff, forcibly removing her from
the courtroom.
After carrying her out of the courtroom, Sergeant
Taylor left the Plaintiff outside in tears.
(Compl. ¶ 16.)
As a result of Defendant Sergeant Taylor's forcible removal,
the Plaintiff allegedly sustained serious physical and emotional
injuries.
(Compl. ¶ 17.)
The Plaintiff was unable to and may in
the future be unable to attend to her usual duties and affairs.
(Compl. ¶ 17.)
Subsequently, the Plaintiff filed the instant action against
Defendants Township of Deptford, Deptford Township Police, Sgt.
Michael Taylor and John Does 1-50.
[Docket Item 1.]
The
Plaintiff alleges, pursuant to 42 U.S.C. § 1983, that the
Defendants used unnecessary and grossly excessive force in
violation of her Fourth and Fourteenth Amendment rights under the
United States Constitution.
The Plaintiff alleges that the
Defendants's conduct violated her established rights under the
New Jersey State Constitution as well.
Third, the Plaintiff
alleges that the Defendants' actions were negligent.
Finally,
the Plaintiff brings a cause of action for assault and battery.
The Defendants answered the complaint [Docket Item 4] and
filed the instant motion to dismiss pursuant to Fed. R. Civ. P.
3
12(c) [Docket Item 7].
First, the Defendants argue that all
claims against Sergeant Taylor should be dismissed because
Sergeant Taylor is entitled to absolute quasi-judicial immunity.
Second, the Defendants argue that the Plaintiff is barred from
asserting her common law tort claims because Plaintiff failed to
comply with the notice requirements of the New Jersey Tort Claims
Act.
Next, the Defendants argue that the Plaintiff failed to
state a legally cognizable claim against the Township of Deptford
under the United State Constitution or the New Jersey
Constitution.
Finally, the Defendants maintain that the
Plaintiff failed to state a legally cognizable claim against the
John Doe defendants.
The Plaintiff's opposition argues that the claims against
Sergeant Taylor are proper because he is not entitled to absolute
quasi-judicial immunity because Sergeant Taylor exceeded the
scope of Judge Golden's order and the execution of the order is
not a judicial act entitled to judicial immunity.
The Plaintiff
concedes that her negligence claim as well as her assault and
battery claim are not sufficiently pled.
The Plaintiff also
concedes that she has not alleged sufficient facts to support a
claim for municipal liability.
However, the Plaintiff urges the
court to dismiss these claims without prejudice and grant her
leave to amend.
Finally, the Plaintiff agrees that the claims
against the fictitious John Doe police officers should be
4
dismissed because it is apparent from Defendants' answer that
Defendant Taylor was the officer who removed the Plaintiff from
the courtroom.
III.
DISCUSSION
A.
Standard of Review
Judgment on the pleadings pursuant to Rule 12(c), "will only
be granted where the moving party clearly establishes there are
no material issues of fact, and that he or she is entitled to
judgment as a matter of law."
DiCarlo v. St. Mary Hosp., 530
F.3d 255, 259 (3d Cir. 2008).
Where the movant alleges that the
complaint fails to state a claim upon which relief can be
granted, the court applies the same standards as under Rule
12(b)(6).
Turbe v. Government of Virgin Islands, 938 F.2d 427,
428 (3d Cir. 1991); Spruill v. Gillis, 372 F.3d 218, 223 n.2 (3d
Cir. 2004) (applying Rule 12(b)(6) standard to Rule 12(c)
motion).
In order to give defendant fair notice, and to permit early
dismissal if the complained-of conduct does not provide adequate
grounds for the cause of action alleged, a complaint must allege,
in more than legal boilerplate, those facts about the conduct of
each defendant giving rise to liability.
Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007); Fed. R. Civ. P. 8(a) and
11(b)(3).
These factual allegations must present a plausible
basis for relief (i.e., something more than the mere possibility
5
of legal misconduct).
1951 (2009).
See Ashcroft v. Iqbal, 129 S.Ct. 1937,
In its review of a motion to dismiss pursuant to
Rule 12(b)(6), Fed. R. Civ. P., the Court must "accept all
factual allegations as true and construe the complaint in the
light most favorable to the plaintiff."
Phillips v. County of
Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (quoting Pinker v.
Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)).
The assumption of truth does not apply, however, to legal
conclusions couched as factual allegations or to “[t]hreadbare
recitals of the elements of a cause of action, supported by mere
conclusory statements.”
B.
Iqbal, 129 S.Ct. at 1949.
Is Sergeant Taylor entitled to absolute quasi-judicial
immunity or qualified immunity?
1. Absolute quasi-judicial immunity
As a general rule, judges acting in their judicial capacity
are absolutely immune (in both their individual and official
capacities) from suit for monetary damages under the doctrine of
judicial immunity.
See Mireles v. Waco, 502 U.S. 9, 9 (1991).
Judicial immunity can be overcome only for actions not taken in a
judicial capacity, id., or for actions taken in a complete
absence of all jurisdiction, id. at 11-12.
Allegations that
actions were undertaken with an improper motive diminishes
neither their character as judicial actions nor the judge’s
immunity.
See Forrester v. White, 484 U.S. 219, 227 (1988).
Judicial immunity may extend to professionals who assist
6
courts in their judicial function.
121 (3d Cir. 2001).
See Hughes v. Long, 242 F.3d
Quasi-judicial immunity is given only to
public employees who perform judge-like functions and attaches
when a public official's role is functionally comparable to that
of a judge.
Hamilton v. Leavy, 322 F.3d 776, 785 (3d Cir. 2003).
"When judicial immunity is extended to officials other than
judges, it is because their judgments are 'functionally
comparable' to those of judges – that is because they, too,
'exercise a discretionary judgment' as part of their function."
Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 436 (1993).
“Absolute immunity does not apply in every action against a
judge or court personnel.”
971 (3d Cir. 2006).
Tucker v. I’Jama, 173 Fed. Appx. 970,
Instead, the “touchstone” for the
applicability of the doctrine of judicial immunity is “the
performance of the function of resolving disputes between
parties, or of authoritatively adjudicating private rights.”
Antoine, 508 U.S. at 435-36 (quoting Burns v. Reed, 500 U.S. 478,
500 (1991) (Scalia, J., concurring in judgment in part and
dissenting in part)).
The Supreme Court has stated that judicial
immunity does not protect the "administrative, legislative, or
executive" acts performed by judges.
U.S. at 227.
Forrester v. White, 484
Therefore, “‘it [is] the nature of the function
performed, not the identity of the actor who performed it, that
informs[] [an] immunity analysis.’” Antoine, 508 U.S. at 435-36
7
(quoting Forrester v. White, 484 U.S. at 229 (holding judge’s
hiring practices not judicial in nature)).
The Supreme Court has long held that a judge’s exercise of
control over the courtroom, including the admission and expulsion
of attorneys and litigants, is a judicial act.
See Bradley v.
Fisher, 80 U.S. 335, 346-47 (1871) (judge’s order expelling
attorney from court was “in the lawful exercise and performance
of his authority and duty as its presiding justice . . . [and]
was a judicial act.”); Mireles v. Waco, 502 U.S. at 12 (“[a]
judge’s direction to court officers to bring a person who is in
the courthouse before him is a function normally performed by a
judge.”).
Thus, a judge who presides in court and directs the
removal of an attorney, party, witness or spectator performs a
judicial act for which the judge has absolute judicial immunity.
The Defendants argue that Sergeant Taylor removed the
Plaintiff from the courtroom pursuant to Judge Golden's order.
Judge Golden was acting in his judicial capacity when ordering
the removal of the Plaintiff.
The Defendant argues that Sergeant
Taylor should similarly be entitled to absolute quasi-judicial
immunity because he was carrying out Judge Golden's directive in
removing the Plaintiff from the courtroom.
The Plaintiff argues that Sergeant Taylor is not entitled to
absolute quasi-judicial immunity.
Specifically, the Plaintiff
maintains she is not challenging Judge Golden's order of removal
8
or her subsequent removal from the courthouse.
Instead, the
Plaintiff is solely challenging the manner in which Sergeant
Taylor forcibly carried her out of the courtroom.
The Plaintiff
argues that Sergeant Taylor exceeded the scope of Judge Golden's
order by using unnecessary and excessive force in removing her
from the courtroom.
The Plaintiff argues Sergeant Taylor's
manner of removal violated the Fourth and Fourteenth Amendments
and is not protected by quasi-judicial immunity.
A Circuit split exists with respect to whether a court
officer is entitled to absolute quasi-judicial immunity when the
officer allegedly uses excessive force to remove a person from a
courtroom pursuant to a judge's order.
addressed this issue.1
The Third Circuit has not
Prior to addressing the competing Circuit
1
The Defendants argue the Third Circuit has "sufficiently
determined" the issue by citing to an unpublished district court
decision, Muhammad v. Weis, No. 08-3616, 2009 U.S. Dist. LEXIS
72759 (E.D.Pa. Aug. 17, 2009). (Defs. Reply Br. at 3.) First of
all, unpublished district court decisions are not precedential or
binding authority. Second, the plaintiff in Muhammad alleged
that multiple state court judges and courtroom officers violated
his First Amendment rights by requiring the plaintiff to remove
his kufi when appearing as a litigant in their courtrooms and by
having him removed from the courtroom when he did not comply. Id.
at *45. The plaintiff in Muhammad alleged that the courtroom
officers acted pursuant to the judges' orders in removing him
from the courtroom. There were no allegations present that the
courtroom officers exceeded the scope of the judges' orders or
that excessive force was used in removing the plaintiff. The
district court did not decide the issue of whether a courtroom
officer is entitled to absolute quasi-judicial immunity if the
officer removes a litigant from the courtroom pursuant to a
judicial order but uses excessive force in doing so. Therefore,
Muhammad is not applicable to the instant case and the
Defendants' reliance is misplaced. Moreover, the Defendants'
9
opinions, it is first necessary to discuss the U.S. Supreme
Court's decision in Mireles v. Wako, 502 U.S. 9 (1991), which is
central to each Circuit's analysis.
In Mireles, the U.S. Supreme Court held that "a judge will
not be deprived of immunity because the action he took was in
error . . . or was in excess of his authority."
Id. at 12-13.
A
public defender alleged that a state court judge violated his
constitutional rights by ordering police officers to forcibly
seize him and use excessive force to bring him into the judge's
courtroom.
Id. at 10.
The public defender had failed to appear
for the initial call of the judge's morning calendar.
Id.
The
judge was allegedly "angered by the absence of attorneys from his
courtroom" and subsequently ordered the police officers "to
forcibly and with excessive force seize and bring plaintiff into
his courtroom."
Id.
The officers then allegedly seized the
plaintiff with unnecessary force and removed him backwards from
another courtroom where he was waiting to appear, cursed him and
called him offensive names.
Id.
Then, the officers
unnecessarily slammed him through the doors and swinging gates
into the judge's courtroom.
Id.
The Supreme Court held the state court judge was entitled to
absolute judicial immunity.
Specifically, the Supreme Court
complete failure to discuss the circuit split in their briefing
was unhelpful to the court and disingenuous to the complexity of
this issue.
10
emphasized that a "judge's direction to court officers to bring a
person who is in the courthouse before him is a function normally
performed by a judge . . . in the judge's judicial capacity."
Id. at 12.
However, the Court noted that the "judge's direction
to carry out a judicial order with excessive force is not a
function normally performed by a judge."
omitted).
Id. (citations
In reasoning that the judge was nonetheless entitled
to judicial immunity, the Supreme Court maintained that the
nature and function of the act, not the act itself, controls the
judicial immunity analysis.
The court also reasoned that the
fact that the judge's order was carried out by court officers did
not transform the judge's action from judicial to executive in
character.
Id. at 13.
Rather, the court stated a "judge's
direction to an executive officer to bring counsel before the
court is no more executive in character than a judge's issuance
of a warrant for an executive officer to search a home."
Id.
Therefore, the court held that while the judge exceeded his
authority, he was nonetheless entitled to judicial immunity.
Importantly, this decision did not address whether the court
officers that executed the judge's order were also entitled to
quasi-judicial immunity and this issue remains unaddressed by the
Supreme Court.
The first circuit to squarely address this issue was the
Eighth Circuit in Martin v. Hendren, 127 F.3d 720 (8th Cir.
11
1997).
In Martin, the plaintiff and her son were appearing in
municipal court on a traffic charge.
The plaintiff, unasked by
the judge, approached the bench twice and refused to sit down
when the judge ordered her back.
The judge then ordered the
court officer to remove the plaintiff.
A struggle then took
place between the court officer and the plaintiff resulting in
the plaintiff being struck in the face by the officer.
721.
Id. at
The judge then ordered the officer to "put the cuffs on
her."
Id.
The plaintiff attempted to push the court officer and
the court officer then flipped the plaintiff face down onto the
floor, handcuffed her, pulled her to her feet by the handcuffs
and her hair and then removed her from the courtroom.
Id.
The
plaintiff then filed suit against the court officer.
The majority opinion held that the court officer was
entitled to absolute quasi-judicial immunity.
The majority first
found that bailiffs enjoy absolute quasi-judicial immunity for
actions specifically ordered by the trial judge and related to
the judicial function.
Id. at 721.
The court rejected the
plaintiff's argument that the court officer ceased to act in a
quasi-judicial capacity when he carried out the judge's removal
order using excessive force.
Instead, the majority relied on the
Mireles opinion and extended its reasoning to quasi-judicial
immunity.
Specifically, the majority found that while the
officer may have exceeded the scope of the judge's order, the
12
officer should not be deprived of judicial immunity "because the
action he took was in error . . . or was in excess of his
authority."
Id. at 722 (quoting Mireles, 502 U.S. at 12-13).
The majority further recognized the need for quasi-judicial
immunity in this type of situation:
Because
judges
frequently
encounter
disruptive
individuals in their courtrooms, exposing bailiffs and
other court security officers to potential liability for
acting on a judge's courtroom orders could breed a
dangerous, even fatal, hesitation. For the criminal
justice system to function, ... courts must be able to
assume their orders will be enforced.
Id. at 722 (citations omitted).
Therefore, the majority opinion
held that the court officer was entitled to absolute quasijudicial immunity.
The dissenting opinion took the opposite view and held the
officer was not entitled to absolute quasi-judicial immunity and
rather, a qualified immunity analysis was appropriate.
First,
the dissenting opinion recognized that "the presumption is that
qualified rather than absolute immunity is sufficient to protect
government officials in the exercise of their duties."
722 (citing Antione, 508 U.S. 429, 433 n.4 (1993)).
Id. at
The dissent
then discussed the policy reasons supporting judicial immunity
which was to ensure judges were at liberty to exercise their
independent judgment when deciding the merits of the case and
that courts should be cautious when extending the protection of
absolute immunity beyond judges and prosecutors.
13
Id.
The dissent then turned to Mireles and argued that the
majority opinion had misapplied the Supreme Court's analysis.
In
particular, the dissent emphasized that majority's conclusion
that the nature of the court officer's actions was quasi-judicial
because it was taken at the direction of the judge was flawed
because it was based on a "basic factual fallacy."
Id. at 723.
Specifically, the dissent argued that the majority's opinion was
based on "the assumption that the judge instructed bailiff to use
excessive force.
The record is barren of such suggestion."
Id.
Second, the dissent also reasoned that the majority
misapplied Mireles because "the Supreme Court in Mireles sought
to protect the first-tier decision-making function of a judge."
Id.
The dissent explained:
Clearly, it is within the traditional function of the
judge to direct that there be order in the courtroom.
However, it is not the nature of the judicial function
that a judge leave the bench and engage a disruptive
witness, party, or lawyer by physical force to achieve
his or her order. Such function lies within the executive
branch, and is characteristic of the function of a law
enforcement action in which only qualified immunity is
traditionally available.
Id. at 723.
Finally, the dissent discussed the potential
consequences of the expansion of Mireles extending absolute
quasi-judicial immunity to courtroom officers executing a judge's
removal order.
The dissent posited the following hypothetical:
Under the majority's reasoning, if a judge orders a
bailiff to remove a litigant from the courtroom, and the
bailiff decides that the most expeditious way to
accomplish this order is to bash the litigant in the head
14
with a baseball bat, the bailiff would enjoy absolute
immunity. This is not the type of action the doctrine of
absolute immunity is designed to protect.
Id. at 723.
Therefore, the dissent reasoned that absolute quasi-
judicial immunity was improper and a qualified immunity analysis
should be applied to evaluate a court officer's actions in
removing a litigant from a courtroom.
After Martin was decided, the Seventh Circuit was next to
address the issue of the use of excessive force by an officer in
removing a litigant from a courtroom.
The Seventh Circuit agreed
with the dissent in Martin and held that absolute quasi-judicial
immunity did not apply.
Richman v. Sheahan, 270 F.3d 430 (7th
Cir. 2001).
In Richman, a mother and her son, who was planning to
testify as a witness, appeared in municipal court for a traffic
violation.
The judge continued their hearing to a future date
before their case was called.
The mother and son attempted to
ask the judge a question but the judge quieted them.
The son
continued to speak and the judge ordered him restrained.
Two
county sheriff's deputies began to take the son into custody and
twelve more deputies entered the courtroom.
All fourteen
deputies then attacked the son, forced him to the floor, sat on
him and handcuffed him.
The son was physically disabled and did
not resist the deputies' attempt to restrain him.
His mother was
also restrained by four additional deputies and did not attempt
15
to resist.
When the son was handcuffed on the floor, he emptied
his bladder and bowels and appeared to have stopped breathing.
Paramedics rendered emergency assistance and transported him to
the hospital where the son was pronounced dead.
The mother then
filed a complaint against the deputies alleging violations of her
and her son's Fourth and Fourteenth Amendment rights and a claim
for wrongful death.
Richman, 270 F.3d at 433-34.
The majority in Richman held that the deputies were not
entitled to absolute quasi-judicial immunity and engaged in a
similar analysis to the dissenting opinion in Martin.
First, the
majority recognized the presumption in favor of qualified
immunity rather than extending the protection of absolute
judicial immunity.
In addition, the majority emphasized the
rationale behind judicial immunity in discouraging collateral
attacks on judicial decision making and assisting in establishing
appellate procedures to review judicial opinions.
435.
Id. at 434-
Further, the majority emphasized that judicial immunity is
extended to officials engaged in quasi-judicial decision making
and that the deputies in this case did not "exercise a comparable
form of discretionary decision making."
Id. at 435.
However, the majority did recognize that when an official
undertakes an action pursuant to the explicit direction of a
judicial officer, it has been held that the official is entitled
to judicial immunity.
Id. at 435.
16
"The policy justifying an
extension of absolute immunity in these circumstances is to
prevent court personnel and other officials from becoming a
lightening rod for harassing litigation aimed at the court."
Id.
(citations omitted).
In analyzing whether the deputies' conduct in this case was
entitled to quasi-judicial immunity, the majority opinion
rejected the Eight Circuit's reasoning in Martin.
Specifically,
the majority opined:
We believe that the Eighth Circuit stretches the
reasoning in Mireles too far, and confuses the question
... [of] whether the challenged conduct was specifically
ordered by the judge with the separate question of
whether the conduct was lawful or exceeded the actor's
authority.
Id. at 436.
The majority emphasized the Mireles opinion only
addressed the judge's order of removal and held that "when the
challenged conduct is the judge's own decision making, the
applicability of absolute immunity cannot turn on the correctness
of the judge's decision."
Id.
In contrast, the conduct at issue
in Martin and in Richman was not the judge's order but the manner
in which the order was enforced.
In reasoning that the extension
of quasi-judicial immunity was not appropriate in this type of
case, the majority explained:
The claim for damages in this case is not therefore a
collateral attack on the judge's order (an order that
Richman concedes was valid), and an appeal of the judge's
order would provide no remedy. Similarly, the deputies
are not being called upon to answer for wrongdoing
directed by the judge, but instead for their own conduct.
And that conduct-the manner in which they enforced the
17
judge's order-implicates
function.
Id. at 437-38.
an
executive,
not
judicial,
The majority also dismissed the Eighth Circuit's
policy reasons for extending judicial immunity when excessive
force is used in removing a litigant from a courtroom.
In
particular, the majority noted:
the need for immediate action in the face of potentially
fatal consequences is not a situation unique to
courtrooms, and yet qualified immunity (which takes into
account the particular circumstances faced by the
officers) is the rule for law enforcement officers of all
kinds, including secret service officers charged with
guarding the president.
Id. at 438 (citations omitted).
Finally, the majority emphasized that the only difference
between the application of qualified immunity and absolute quasijudicial immunity is that the latter "shields even knowingly
unlawful or plainly incompetent acts."
Id.
The majority
reasoned that the trade off of allowing officers who acted
reasonably to avoid litigation altogether while depriving victims
of knowingly unlawful acts of any remedy was inappropriate and
would not serve to protect the judicial function.
Id.
The
majority concluded:
It is not necessary to the judicial function, in our
judgment, to also deny a remedy to plaintiffs who were
harmed not by the judge's order, but by unlawful conduct
by those who enforce it.
Id. at 439.
In contrast, the dissenting opinion found that absolute
18
quasi-judicial immunity was proper to shield the deputies from
liability in Richman.
The dissenting opinion relied on the
majority's reasoning in Martin and reasoned that the officers
acted under the immediate direction and supervision of the judge
who ordered the removal.
The dissent reasoned that this differs
from other circumstances, such as when officers execute a warrant
and are not under the direct supervision of a judge.
Therefore,
the dissent opined that the officers here should be entitled to
judicial immunity when removing a litigant from a courtroom, even
if excess force and fatality result.
Id. at 443.
The dissent quoted heavily from the majority opinion in
Martin to support its analysis.
The dissent concluded by
reasoning that judges are competent enough to be entrusted with
supervising officers who carry out their orders in the courtroom
to make certain excessive force is not used and that a private
right of action against the individual officers is illogical and
unnecessary.
Id. at 444.
Otherwise, a probable outcome "would
be to suggest that the judge, cloaked with his or her immunity,
step down and preserve order himself."
Id.
After reviewing the case law at issue, this court is
persuaded by the reasoning of the Seventh Circuit majority
opinion in Richman and the dissenting opinion in Martin.
First, this court is cognizant of the presumption in favor
of applying qualified immunity in analyzing official actions
19
rather than extend the shield of absolute immunity.
The Supreme
Court has consistently “emphasized that the official seeking
absolute immunity bears the burden of showing that such immunity
is justified for the function in question.
The presumption is
that qualified rather than absolute immunity is sufficient to
protect government officials in the exercise of their duties.
[The Court] ha[s] been quite sparing in [its] recognition of
absolute immunity, and ha[s] refused to extend it any further
than its justification would warrant.”
Burns v. Reed, 500 U.S.
478, 486-487 (1991) (internal quotation marks and citations
omitted).
Next, when reviewing the Mireles decision, the Supreme Court
made a distinction between immunity provided to the judge who
issued the removal order and an officer who enforced the order.
The Supreme Court's holding in Mireles was limited to the judge
who ordered the public defender be brought before the court.
The
Supreme Court did not address whether quasi-judicial immunity
should extend to the officers enforcing the order.
In particular, the Supreme Court analogized the situation to
a judge issuing a warrant and the subsequent execution of the
warrant by reasoning a "judge's direction to an executive officer
to bring counsel before the court is no more executive in
character than a judge's issuance of a warrant for an executive
officer to search a home."
Mireles, 502 U.S. at 13.
20
The Supreme
Court, in analyzing the situation in Mireles, made a distinction
between the judicial function in issuing the removal order and
the executive function in enforcing the order.
Finally, the facts of Mireles are distinct from the case at
bar and the facts present in Martin and Richman.
In Mireles, the
majority assumed the judge expressly ordered the officers to
bring the public defender to the courtroom using excessive force.
In this case, and in Richman and Martin, the judge did not order
the officers to use excessive force in removing the litigants
from the courtroom.
The court agrees with the dissenting opinion in Martin that
the extension of quasi-judicial immunity to courtroom officers
who remove a person from court using excessive force is based on
a false premise.
Specifically, the argument for extending
judicial immunity falsely assumes that the judge ordered the
officers to carry out the removal with excessive force.
Here,
there is no evidence that Judge Golden ordered the officer to
remove the Plaintiff with excessive force, and to assume that
such an authorization is inherent in a judge's removal order
defies reason and would condone the exercise of unconstitutional
conduct.
Instead, the court agrees with the majority opinion in
Richman that "an order to take someone into custody carries with
it an implicit order not to use unreasonable force."
270 F.3d at 435.
21
Richman,
The court also finds the policy reasons supporting the
extension of judicial immunity to the instant matter
unpersuasive.
While courtroom order is important and providing
security to judges, litigants and courtroom personnel is
imperative, the dangers present are not unique to the courtroom
environment and are present in numerous circumstances faced by
law enforcement every day.
The Supreme Court has consistently
held that qualified immunity is sufficient to protect government
officers from unnecessary litigation and preserve the exercise of
their official duties.
Hunter v. Bryant, 502 U.S. 224
(1991)(applying qualified immunity to Secret Service agents
protecting the president); Anderson v. Creighton, 483 U.S. 635
(1987)(applying qualified immunity to an FBI agent who conducted
a warrantless search of a home in pursuit of a suspect in a bank
robbery committed earlier that day); Mitchell v. Forsyth, 472
U.S. 511 (1985)(applying qualified immunity analysis to Attorney
General who authorized a warrantless wiretap for purposes of
gathering information pertinent to national security).
The court
sees no reason to shift this well established policy in the
courtroom setting.
Further, the court is mindful that the only difference
between absolute immunity in this case and qualified immunity is
that the former forecloses any right of redress by a victim of
unconstitutional conduct while the later allows a court to
22
analyze the specific facts and circumstances of the officer's
conduct.
The court is persuaded that qualified immunity is the
more appropriate vehicle in this circumstance.
In particular, the court agrees with the majority opinion in
Richman that the Plaintiff's claim is not challenging the
validity of the judge's order of removal and cannot be seen as a
collateral attack on the judge's decision making.
Nor does
Plaintiff challenge the deputy's authority to remove her pursuant
to the judge's order.
Rather, Sergeant Taylor is being called
upon to answer for his own wrongdoing, specifically the manner in
which he enforced Judge Golden's order.
This implicates an
executive and not a judicial function, and therefore, qualified
immunity is appropriate.
For the reasons discussed above, this court will follow the
7th Circuit's decision in Richman and decline to extend absolute
quasi-judicial immunity to Sergeant Taylor.
2. Qualified Immunity
As an "accommodation of competing values," qualified
immunity strikes a balance by permitting a plaintiff to recover
for constitutional violations where a governmental defendant was
"plainly incompetent or . . . knowingly violate[d] the law,"
while immunizing a state officer who "made a reasonable mistake
about the legal constraints on his actions."
Curley v. Klem, 499
F.3d 199, 206-07 (3d Cir. 2007) (internal quotations and
23
citations omitted).
A defendant’s entitlement to qualified immunity hinges on
two considerations.2
First, a court must determine “whether the
plaintiff has alleged a deprivation of a constitutional right at
all,”
Pearson v. Callahan, 555 U.S. 223, 232 (2009)(citation
omitted), which, as the Court of Appeals has emphasized, is not a
question of immunity as such, “but is instead the underlying
question of whether there is even a wrong to be addressed in an
analysis of immunity.”
Curley, 499 F.3d at 207.
A court must
then decide “whether the right that was [allegedly] violated was
clearly established, or, in other words, whether it would be
clear to a reasonable officer that his conduct was unlawful in
the situation he confronted.”
citations omitted).
Id. (internal quotations and
This inquiry “must be undertaken in light of
the specific context of the case, not as a broad general
proposition.”
Brosseau v. Haugen, 543 U.S. 194, 198 (2004)
(citation omitted).
2
While under Saucier v. Katz, 533 U.S. 194 (2001),
overruled in part by Pearson, 129 S.Ct. at 818, the qualified
immunity standard followed a “rigid order of battle,” Pearson,
129 S.Ct. at 817 (citation omitted), in which the question of
whether a right was clearly established was assessed only if the
plaintiff had adequately alleged a violation in the first place,
the Supreme Court adopted a more flexible approach in Pearson.
As the Court explained, “[b]ecause the two-step Saucier procedure
is often, but not always, advantageous, the judges of the
district courts and the courts of appeals are in the best
position to determine the order of decisionmaking will best
facilitate the fair and efficient disposition of each case.”
Pearson, 129 S.Ct. at 821.
24
a.
Deprivation of a Constitutional Right
The threshold question for a qualified immunity analysis is
whether a reasonable fact-finder could conclude that the
defendant deprived the plaintiff of a constitutional right.
One
of the protections afforded by the Fourth Amendment is the right
to be free from the use of excessive force by a law enforcement
officer.
Carswell v. Borough of Homestead, 381 F.3d 235, 240 (3d
Cir. 2004) (citing Graham v. Connor, 490 U.S. 386, 395 (1989)).
In deciding whether the conduct at issue rises to the level of
“excessive,” a court must use an objective reasonableness
standard rather than the “20/20 vision of hindsight,” recognizing
that police officers are often faced with split-second decisions
in “tense, uncertain, and rapidly evolving” situations.
490 U.S. at 396-97.
Graham,
As the Supreme Court has explained, “[n]ot
every push or shove, even if it may later seem unnecessary in the
peace of a judge’s chambers, violates the Fourth Amendment.”
at 396 (internal quotations and citations omitted).
Id.
Factors a
court may consider include:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
the severity of the instant crime;
the threat of immediate harm to the officers or others;
whether the suspect is attempting to flee or is actively
resisting arrest;
the duration of the officer’s action;
whether the action takes place in the context of
effecting an arrest;
the possibility that the suspect may be armed;
the number of persons with whom the police officer must
contend at one time.
Couden v. Duffy, 446 F.3d 483, 496-97 (3d Cir. 2006).
25
In this case, the Plaintiff has clearly alleged a violation
of her constitutional right to be free from excessive force in
the course of an otherwise lawful seizure.
The Plaintiff alleges
that Sergeant Taylor forcibly picked her up off of the ground and
a carried her out of the courtroom despite her pleas to walk out
on her own.
There is no allegation that the Plaintiff resisted
the judge's order that she be removed from the courtroom or that
she was uncooperative in any way.
Further, the Plaintiff was a
witness who was there to testify as a victim of a crime.
There
is no evidence that the Plaintiff, a seventy-four year old woman,
was behaving in a violent manner, had a known criminal history to
warrant aggressive treatment or was exhibiting any signs of
threatening behavior.
Further, Sergeant Taylor's action in
forcibly removing the Plaintiff from the courtroom did not take
place during a struggle or a “tense, uncertain, and rapidly
evolving” situation.
Graham, 490 U.S. at 396-97.
Therefore, taking all Plaintiff's factual allegations as
true as required on a motion to dismiss, the Plaintiff has
alleged a violation of her constitutional right to be free from
excessive force.
b.
Clearly Established Right
Because the Plaintiff has alleged that Sergeant Taylor's
conduct deprived the Plaintiff of her Fourth Amendment right to
be free from excessive force, the Court must now determine
26
whether the alleged deprivation violated clearly established law.
See Safford Unified Sch. Dist. #1 v. Redding, 557 U.S. 364, 366
(2009) (granting qualified immunity to school officials where a
strip search of a student was unconstitutional but governing law
at the time of the incident was not sufficiently clear).
The Defendants argue that the law with regard to the removal
of someone from a courtroom is not clearly established as
evidenced by the Circuit split discussed infra.
The Defendants
argue that where is disagreement amongst the Circuits as to the
state of the law, the law is not clearly established and
qualified immunity is appropriate.
The Defendants cite to
Giuffre v. Bissell, 31 F.3d 1241, 1256 (3d Cir. 1994) in support
of their argument.
It is generally true that where the law is uncertain,
qualified immunity is to be recognized.
The Defendants confuse
which ambiguities in the law are relevant to the qualified
immunity analysis.
The Circuit split discussed infra addresses
whether absolute quasi-judicial immunity or qualified immunity is
the appropriate analysis for an excessive force claim brought
against an officer that removed a litigant from a courtroom
pursuant to a judge's directive.
These cases did not address the
underlying constitutional violation - the use of a excessive
force - committed by the officers.
It is the law surrounding the
constitutional right at issue, not the law surrounding the
27
immunity analysis, that must be clearly established.
Indeed, the case cited by the Defendants clearly states:
The contours of the right must be sufficiently clear that
a reasonable official would understand that what he is
doing violates that right. This is not to say that an
official action is protected by qualified immunity unless
the very action in question has previously been held
unlawful, but it is to say that in the light of
pre-existing law the unlawfulness must be apparent.
Giuffre, 31 F.3d at 1255 (citing Anderson v. Creighton, 483 U.S.
635, 640 (1987)).
Therefore, the issue before the court is whether the law
surrounding excessive force was clearly established at the time
of the alleged violation, not whether the law surrounding
governmental immunity in this circumstance was clearly
established.
A right is clearly established when "it would [have been]
clear to a reasonable officer that his conduct was unlawful in
the situation he confronted."
177, 182 (3d Cir. 2011).
Lamont v. New Jersey, 637 F.3d
It is clearly established that the
"[u]se of excessive force by a state official effectuating a
search or seizure violates the Fourth Amendment."
Smith v. Marasco, 430 F.3d 140, 148 (3d Cir. 2007).
Estate of
Moreover,
while the law surrounding excessive force is fact-dependent, this
does not mean the law is not clearly established.
Reidel, 61 F. Supp. 2d 289, 299 (D.N.J. 1999).
Tofano v.
At the time of
this incident, it was clearly established law in the Third
28
Circuit that the objective reasonableness standard articulated in
Graham v. Connor, infra, and reiterated in Couden v. Duffy,
infra, applied to alleged excessive force violations of the
Fourth Amendment.
Id.
While there was no case law in this circuit addressing the
reasonableness of force used when removing a litigant from a
courtroom pursuant to a judge's directive, it would have been
clear to a reasonable officer in Sergeant Taylor's position that
forcibly lifting a non-resisting senior citizen and carrying her
out of the courtroom was excessive.
Therefore, from the facts alleged in the Plaintiff's
complaint, Sergeant Taylor is not entitled to qualified immunity
on the allegation that he used constitutionally excessive force
in executing the judge's directive.
Accordingly, the Defendants'
motion to dismiss the claims against Sergeant Taylor will be
denied.
C.
Plaintiff's claims for negligence as well as assault
and battery will be dismissed without prejudice
Tort claims against public entities and public employees are
governed by the New Jersey Tort Claims Act ("NJTCA"), N.J.S.A.
59:1-1 et seq.
See Velez v. City of Jersey City, 180 N.J. 284
(2004); Longo v. Santoro, 195 N.J. Super. 507, 514 (App. Div.
1984); Badalamente v. Monmouth County Prosecutor's Office, No.
08-2501, 2011 U.S. Dist. LEXIS 53457, *25 (D.N.J. May 17, 2011).
The NJTCA requires that a notice of claim must be filed with the
29
public entity not later than the ninetieth (90th) day after
accrual of the underlying cause of action.
59:8-8(a).
N.J. Stat. Ann. §
Failure to file the required notice will result in
the dismissal of the Plaintiff's tort claims. N.J. Stat. Ann. §
59:8-3 ("No action shall be brought against a public entity or
public employee under this act unless the claim upon which it is
based shall have been presented in accordance with the procedure
set forth in this chapter.").
It is undisputed that the Defendants are public entities and
employees and therefore, the notice provisions of the NJTCA apply
to Plaintiff's tort claims.
The Plaintiff's complaint does not
allege that she filed notice in accordance with the statute.
Therefore, the Plaintiff's complaint fails to state a claim for
negligence and assault and battery and must be dismissed.
The Defendants argue that this dismissal should be with
prejudice because in her opposition, the Plaintiff admitted that
she did not file a notice of claim pursuant to the NJTCA.
Instead, the Plaintiff maintains that she filed a civil complaint
with the police department and several Open Public Records Act
requests.
The Defendant, in its reply, maintains these actions
are insufficient to constitute sufficient compliance with the
NJTCA notice requirements and therefore any amendment would be
futile.
No motion to amend has been filed, and the Plaintiff has not
30
had an opportunity to respond to the arguments in the Defendant's
reply brief that her proposed amendment would be futile.
Consequently, as the court does not have the benefit of full
briefing on the issue, the court will decline to decide whether
Plaintiff's proposed amendment would satisfy the notice
requirements of the NJTCA and state a valid claim.
The court will therefore dismiss the Count III (Negligence)
and Count IV (assault and battery) without prejudice.
The
Plaintiff will be permitted leave to file a motion to amend the
complaint and the parties will be able to fully brief the issue
of NJTCA notice at that time.3
D.
Plaintiff's claims against the Township of Deptford and
the Deptford Police will be dismissed without prejudice
For municipal liability to attach under Section 1983, a
plaintiff must allege the municipality:
(1) established a policy
or custom that deprived Plaintiff of his constitutional rights;
(2) acted deliberately and was the moving force behind the
deprivation; and (3) his injury was caused by the identified
policy or custom.
Bd. of the County Comm’rs of Bryan County v.
3
Likewise, because the tort claims arising under the NJTCA
are being dismissed for lack of notice, the Court will not
determine whether Sergeant Taylor is entitled to qualified
immunity for the alleged assault and battery. One could
plausibly argue that the deputy's initial touching of Plaintiff
was privileged because it was pursuant to the judge's directive;
if so, Taylor would be immune from liability for the initial
touching and removal, if not for the allegedly excessive force in
doing so.
31
Brown, 520 U.S. 397, 403-04 (1997) (citing Monell, 436 U.S. at
690-91, 694).
A plaintiff can establish causation by
“demonstrating that the municipal action was taken with
‘deliberate indifference’ as to its known or obvious
consequences.”
Id. at 407.
In this case, the Plaintiff's complaint fails to allege the
existence of a policy or custom that deprived the Plaintiff of
her constitutional right to be free from excessive force.
The
Plaintiff has also not alleged that the Defendant Township of
Deptford or the Deptford Township Police department acted with
deliberate indifference to any purported policy or custom.
Therefore, the Plaintiff's complaint fails to state a claim
against the Township of Deptford and the Deptford Township
Police.
However, it may be possible that an amended pleading could
cure the above deficiencies if the Plaintiff pled sufficient
grounds to establish a policy or custom.
Accordingly, as to the
claims against the Township of Deptford and the Deptford Township
Police, the dismissal will be without prejudice to the Plaintiff
moving to amend her complaint to correct the above deficiency.
See 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
32
inequitable or futile.").
E.
Plaintiff's claims against John Does 1-50 are dismissed
with prejudice
The Plaintiff concedes that her claims against the
fictitious John Does 1-50 should be dismissed as the complaint
fails to set forth facts asserting that any other Deptford
Township employees were involved in the removal of the Plaintiff
from the Deptford Municipal Court aside from Sergeant Taylor and
Judge Golden.
The Plaintiff does not oppose the dismissal of the
fictitious John Does as the Defendants have admitted that
Sergeant Taylor was the officer who removed the Plaintiff from
the courtroom.
Therefore, all claims against fictitious John Doe Defendants
1-50 will be dismissed.
IV.
CONCLUSION
For the reasons discussed above, the court will grant in
part and deny in part Defendants' motion to dismiss.
The court
finds that Defendant Sergeant Michael Taylor is not entitled to
absolute quasi-judicial immunity and taking the facts in the
complaint as true, Defendant Sergeant Michael Taylor is also not
entitled to qualified immunity.
Therefore, the Plaintiff's
claims against Defendant Sergeant Taylor will not be dismissed
and this aspect of the Defendants' motion is denied.
The court finds that Counts III (negligence) and IV (assault
and battery) should be dismissed without prejudice as the
33
Plaintiff has failed to allege compliance with the New Jersey
Tort Claims Act notice requirement.
In addition, Defendants
Township of Deptford and Deptford Township Police will be
dismissed as defendants since the Plaintiff has failed to allege
the existence of an established policy or custom.
The dismissal of Count III, Count IV and Defendants Township
of Deptford and Deptford Township Police is without prejudice to
the Plaintiff filing a motion seeking to amend to correct these
deficiencies within thirty (30) days of the entry of this order.
The accompanying Order will be entered.
March 13, 2012
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
34
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