STORY v. ATLANTIC CITY POLICE DEPARTMENT et al
Filing
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OPINION. Signed by Judge Robert B. Kugler on 9/28/2012. (bdk, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
HUSCHEL B. STORY,
Plaintiff,
v.
ATLANTIC CITY POLICE
DEPARTMENT, et al.,
Defendants.
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Civil Action No. 11-5340 (RBK)
OPINION
APPEARANCES:
Plaintiff pro se
Huschel B. Story
Atlantic County Justice Facility
Mays Landing, NJ 08330
KUGLER, District Judge
Plaintiff Huschel B. Story, a pre-trial detainee confined at
Atlantic County Justice Facility in Mays Landing, New Jersey,
seeks to bring this action in forma pauperis pursuant to 42
U.S.C. § 1983, alleging violations of his constitutional rights.
Based on his affidavit of indigence and the absence of three
qualifying dismissals within 28 U.S.C. §1915(g), the Court will
grant Plaintiff’s application to proceed in forma pauperis
pursuant to 28 U.S.C. § 1915(a) and order the Clerk of the Court
to file the Complaint.
At this time, the Court must review the Complaint to
determine whether it should be dismissed as frivolous or
malicious, for failure to state a claim upon which relief may be
granted, or because it seeks monetary relief from a defendant who
is immune from such relief.
I.
BACKGROUND
The following factual allegations are taken from Plaintiff’s
Complaint and are accepted as true for purposes of this review.
Plaintiff alleges that he was arrested by Defendants M.
Braxton and Frank Timex, officers of the Defendant Atlantic City
Police Department.
He alleges that he did not resist arrest and
that after he was secured Officer Braxton beat him in the head
and back.
Plaintiff alleges that, during the beating, Officer
Timex allowed his police dog to bite Plaintiff.
Plaintiff also
alleges that the arresting officers failed to give him any
Miranda1 warnings.
Plaintiff seeks monetary damages.
II.
STANDARDS FOR A SUA SPONTE DISMISSAL
This Court must dismiss, at the earliest practicable time,
certain in forma pauperis and prisoner actions that are
frivolous, malicious, fail to state a claim, or seek monetary
relief from a defendant who is immune from such relief.
See 28
U.S.C. § 1915(e)(2) (in forma pauperis actions); 28 U.S.C.
§ 1915A (actions in which prisoner seeks redress from a
1
Miranda v. Arizona, 384 U.S. 436 (1966).
2
governmental defendant); 42 U.S.C. § 1997e (prisoner actions
brought with respect to prison conditions).
In determining the sufficiency of a pro se complaint, the
Court must be mindful to construe it liberally in favor of the
plaintiff.
Haines v. Kerner, 404 U.S. 519, 520-21 (1972); United
States v. Day, 969 F.2d 39, 42 (3d Cir. 1992).
The Court must
“accept as true all of the allegations in the complaint and all
reasonable inferences that can be drawn therefrom, and view them
in the light most favorable to the plaintiff.”
Morse v. Lower
Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997).
In addition, any complaint must comply with the pleading
requirements of the Federal Rules of Civil Procedure.
Rule 8(a)(2) requires that a complaint contain “a short and
plain statement of the claim showing that the pleader is entitled
to relief.”
A complaint must plead facts sufficient at least to
“suggest” a basis for liability.
218, 236 n.12 (3d Cir. 2004).
Spruill v. Gillis, 372 F.3d
“Specific facts are not necessary;
the statement need only ‘give the defendant fair notice of what
the ... claim is and the grounds upon which it rests.’” Erickson
v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted).
While a complaint ... does not need detailed factual
allegations, a plaintiff’s obligation to provide the
“grounds” of his “entitle[ment] to relief” requires
more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will
not do, see Papasan v. Allain, 478 U.S. 265, 286, 106
S.Ct. 2932, 92 L.Ed.2d 209 (1986) (on a motion to
dismiss, courts “are not bound to accept as true a
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legal conclusion couched as a factual allegation”).
Factual allegations must be enough to raise a right to
relief above the speculative level ... .
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(citations omitted).
The Court of Appeals for the Third Circuit has held that the
Twombly pleading standard applies in civil rights actions.
See
Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir.
2008).
Context matters in notice pleading. Fair notice under
Rule 8(a)(2) depends on the type of case -- some
complaints will require at least some factual
allegations to make out a “showing that the pleader is
entitled to relief, in order to give the defendant fair
notice of what the ... claim is and the grounds upon
which it rests.” Indeed, taking Twombly and the
Court’s contemporaneous opinion in Erickson v. Pardus,
127 S.Ct. 2197 (2007), together, we understand the
Court to instruct that a situation may arise where, at
some point, the factual detail in a complaint is so
undeveloped that it does not provide a defendant the
type of notice of claim which is contemplated by
Rule 8. Put another way, in light of Twombly, Rule
8(a)(2) requires a “showing” rather than a blanket
assertion of an entitlement to relief. We caution that
without some factual allegation in the complaint, a
claimant cannot satisfy the requirement that he or she
provide not only “fair notice,” but also the “grounds”
on which the claim rests.
Phillips, 515 F.3d at 232 (citations omitted).
More recently, the Supreme Court has emphasized that, when
assessing the sufficiency of any civil complaint, a court must
distinguish factual contentions -- which allege behavior on the
part of the defendant that, if true, would satisfy one or more
elements of the claim asserted -- and “[t]hreadbare recitals of
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the elements of a cause of action, supported by mere conclusory
statements.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Although the Court must assume the veracity of the facts asserted
in the complaint, it is “‘not bound to accept as true a legal
conclusion couched as a factual allegation.’”
omitted).
Id. (citation
Thus, “a court considering a motion to dismiss can
choose to begin by identifying pleadings that, because they are
no more than conclusions, are not entitled to the assumption of
truth.”
Id. at 679.
Therefore, after Iqbal, when presented with a
motion to dismiss for failure to state a claim,
district courts should conduct a two-part analysis.
First, the factual and legal elements of a claim should
be separated. The District Court must accept all of
the complaint's well-pleaded facts as true, but may
disregard any legal conclusions. Second, a District
Court must then determine whether the facts alleged in
the complaint are sufficient to show that the plaintiff
has a “plausible claim for relief.” In other words, a
complaint must do more than allege the plaintiff's
entitlement to relief. A complaint has to “show” such
an entitlement with its facts. See Phillips, 515 F.3d
at 234-35. As the Supreme Court instructed in Iqbal,
“[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.’”
This “plausibility” determination will be “a
context-specific task that requires the reviewing court
to draw on its judicial experience and common sense.”
Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009)
(citations omitted).
Where a complaint can be remedied by an amendment, a
district court may not dismiss the complaint with prejudice, but
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must permit the amendment.
Denton v. Hernandez, 504 U.S. 25, 34
(1992); Grayson v. Mayview State Hospital, 293 F.3d 103, 108 (3d
Cir. 2002) (dismissal pursuant to 28 U.S.C. § 1915(e)(2)); Shane
v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000) (dismissal
pursuant to 42 U.S.C. § 1997e(c)(1)); Urrutia v. Harrisburg
County Police Dept., 91 F.3d 451, 453 (3d Cir. 1996).
III.
SECTION 1983 ACTIONS
A plaintiff may have a cause of action under 42 U.S.C.
§ 1983 for certain violations of his constitutional rights.
Section 1983 provides in relevant part:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
or Territory ... subjects, or causes to be subjected,
any citizen of the United States or other person within
the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other
proper proceeding for redress ... .
Thus, to state a claim for relief under § 1983, a plaintiff must
allege, first, the violation of a right secured by the
Constitution or laws of the United States and, second, that the
alleged deprivation was committed or caused by a person acting
under color of state law.
West v. Atkins, 487 U.S. 42, 48
(1988); Piecknick v. Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir.
1994).
Local government units and supervisors are not liable under
§ 1983 solely on a theory of respondeat superior.
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See City of
Oklahoma City v. Tuttle, 471 U.S. 808, 824 n.8 (1985); Monell v.
New York City Department of Social Services, 436 U.S. 658, 69091, 694 (1978) (municipal liability attaches only “when execution
of a government’s policy or custom, whether made by its lawmakers
or by those whose edicts or acts may fairly be said to represent
official policy, inflicts the injury” complained of); Natale v.
Camden County Correctional Facility, 318 F.3d 575, 583-84 (3d
Cir. 2003).
“A defendant in a civil rights action must have
personal involvement in the alleged wrongs, liability cannot be
predicated solely on the operation of respondeat superior.
Personal involvement can be shown through allegations of personal
direction or of actual knowledge and acquiescence.”
Rode v.
Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (citations
omitted).
Accord Robinson v. City of Pittsburgh, 120 F.3d 1286,
1293-96 (3d Cir. 1997); Baker v. Monroe Twp., 50 F.3d 1186, 119091 (3d Cir. 1995).
To establish municipal liability under § 1983, “a plaintiff
must show that an official who has the power to make policy is
responsible for either the affirmative proclamation of a policy
or acquiescence in a well-settled custom.”
Bielevicz v. Dubinon,
915 F.2d 845, 850 (3d Cir. 1990), quoted in Blanche Rd. Corp. v.
Bensalem Twp., 57 F.3d 253, 269 n.16 (3d Cir.), cert. denied, 516
U.S. 915 (1995), and quoted in Woodwind Estates, Ltd. v.
Gretkowski, 205 F.3d 118, 126 (3d Cir. 2000).
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A plaintiff must
demonstrate that, through its deliberate conduct, the
municipality was the moving force behind the plaintiff’s injury.
Monell, 436 U.S. at 689.
A policy is made “when a decisionmaker possess[ing]
final authority to establish municipal policy with
respect to the action issues a final proclamation,
policy or edict.” Kneipp v. Tedder, 95 F.3d 1199, 1212
(3d Cir. 1996) (quoting Pembaur v. City of Cincinnati,
475 U.S. 469, 481, 106 S.Ct. 1292, 89 L.Ed.2d 452
(1986) (plurality opinion)). A custom is an act “that
has not been formally approved by an appropriate
decisionmaker,” but that is “so widespread as to have
the force of law.” [Bd. of County Comm’rs of Bryan
County, Oklahoma v. Brown, 520 U.S. 397, 404 (1997).]
There are three situations where acts of a
government employee may be deemed to be the result of a
policy or custom of the governmental entity for whom
the employee works, thereby rendering the entity liable
under § 1983. The first is where “the appropriate
officer or entity promulgates a generally applicable
statement of policy and the subsequent act complained
of is simply an implementation of that policy.” The
second occurs where “no rule has been announced as
policy but federal law has been violated by an act of
the policymaker itself.” Finally, a policy or custom
may also exist where “the policymaker has failed to act
affirmatively at all, [though] the need to take some
action to control the agents of the government ‘is so
obvious, and the inadequacy of existing practice so
likely to result in the violation of constitutional
rights, that the policymaker can reasonably be said to
have been deliberately indifferent to the need.’”
Natale, 318 F.3d at 584 (footnote and citations omitted).
Here, Plaintiff has alleged no facts suggesting that the
circumstances of his arrest resulted from any policy or practice
of the Atlantic City Police Department.
Accordingly, the claims
against the Police Department will be dismissed with prejudice.
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IV.
A.
ANALYSIS
The “Miranda” Claim
Plaintiff alleges that the arresting officers failed to give
him any Miranda warnings.
In Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme
Court set forth certain procedural safeguards that must be
employed, to protect an individual’s Fifth Amendment privilege
against self-incrimination, whenever authorities take an
individual into custody, or otherwise deprive him of his freedom
in any significant way, and subject him to questioning.
Our holding will be spelled out with some specificity
in the pages which follow but briefly stated it is
this: the prosecution may not use statements, whether
exculpatory or inculpatory, stemming from custodial
interrogation of the defendant unless it demonstrates
the use of procedural safeguards effective to secure
the privilege against self-incrimination. By custodial
interrogation, we mean questioning initiated by law
enforcement officers after a person has been taken into
custody or otherwise deprived of his freedom of action
in any significant way. As for the procedural
safeguards to be employed, unless other fully effective
means are devised to inform accused persons of their
right of silence and to assure a continuous opportunity
to exercise it, the following measures are required.
Prior to any questioning, the person must be warned
that he has a right to remain silent, that any
statement he does make may be used as evidence against
him, and that he has a right to the presence of an
attorney, either retained or appointed. The defendant
may waive effectuation of these rights, provided the
waiver is made voluntarily, knowingly and
intelligently. If, however, he indicates in any manner
and at any stage of the process that he wishes to
consult with an attorney before speaking there can be
no questioning. Likewise, if the individual is alone
and indicates in any manner that he does not wish to be
interrogated, the police may not question him. The mere
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fact that he may have answered some questions or
volunteered some statements on his own does not deprive
him of the right to refrain from answering any further
inquiries until he has consulted with an attorney and
thereafter consents to be questioned.
Miranda v. Arizona, 384 U.S. at 444-445 (footnote omitted).
To the extent Plaintiff seeks to assert a claim for damages
based directly upon the failure to give a proper Miranda warning,
or questioning or acquisition of a statement in violation of his
Miranda warning rights, he fails to state a claim.
“[V]iolations
of the prophylactic Miranda procedures do not amount to
violations of the Constitution itself.
...
The right protected
under the Fifth Amendment is the right not to be compelled to be
a witness against oneself in a criminal prosecution, whereas the
‘right to counsel’ during custodial interrogation recognized in
[Miranda] is merely a procedural safeguard and not a substantive
right.”
Giuffre v. Bissell, 31 F.3d 1241, 1256 (3d Cir. 1994)
(citations omitted).
Thus, Plaintiff has no free-standing Fifth
Amendment right to remain silent during interrogation.
Nor does
Plaintiff have a free-standing Fifth Amendment claim for denial
of the right to counsel during questioning.
See James v. York
County Police Dept., 160 Fed.Appx. 126, 133, 2005 WL 3313029, 5
(3d Cir. 2005) (citing Giuffre).
In addition, a person’s Sixth
Amendment right to counsel “attaches only at or after the time
that adversary judicial proceedings have been initiated against
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him.”
Kirby v. Illinois, 406 U.S. 682, 688 (1972) (plurality
opinion).
Plaintiff also has asked for dismissal of the state criminal
charges against him.
It is not generally the role of the federal
courts to interfere in pending state judicial proceedings.
A
federal court must abstain from addressing requests for
injunctive relief against state court proceedings so long as the
constitutional issues involved may be addressed adequately in the
course of the state proceedings.
Younger v. Harris, 401 U.S. 37
(1971) (addressing abstention from state criminal proceedings).
The United States Court of Appeals for the Third Circuit has
enunciated three requirements that must be met before Younger
abstention may be invoked:
(1) there are ongoing state proceedings that are
judicial in nature; (2) the state proceedings implicate
important state interests; and (3) the state
proceedings afford an adequate opportunity to raise
federal claims. Whenever all three of these
requirements are satisfied, abstention is appropriate
absent a showing of bad faith prosecution, harassment,
or a patently unconstitutional rule that will cause
irreparable injury to the plaintiff.
Port Auth. Police Benevolent Ass’n Inc. v. Port Auth. Of New York
and New Jersey Police Dept., 973 F.2d 169, 173 (3d Cir. 1992)
(citing Schall v. Joyce, 885 F.2d 101, 106 (3d Cir. 1989)).
All
three predicates are present here; this Court will not interfere
with Plaintiff’s ongoing state criminal proceedings.
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Insofar as Plaintiff seeks a declaratory judgment that his
Miranda rights were violated, see 28 U.S.C. § 2201 (Federal
Declaratory Judgment Act), he is not entitled to such relief.
Where a state criminal prosecution has begun before
initiation of a federal declaratory judgment action, equitable
principles preclude the granting of declaratory relief that might
disrupt state criminal proceedings except in very unusual
circumstances, where the plaintiff has no adequate remedy at law
in the state criminal proceeding or where necessary to prevent
immediate irreparable injury.
See Samuels v. Mackell, 401 U.S.
66 (1971); Younger v. Harris, 401 U.S. 37 (1971); Schall v.
Joyce, 885 F.2d 101, 106 (3d Cir. 1989) (applied in Anthony v.
Council, 316 F.3d 412 (3d Cir. 2003) (in which plaintiffs sought
declaratory and injunctive relief related to state child support
proceedings)).
Again, Plaintiff has alleged no facts that would
justify the granting of declaratory relief that might interfere
with his criminal proceedings.
This Court expresses no opinion as to whether the
circumstances of the interrogation or the use at trial of any
statement obtained from Plaintiff would violate the Miranda rule.
B.
Excessive Force in Arrest
Plaintiff alleges that he did not resist arrest, but that
Officer Braxton beat him and that Officer Timex permitted his
police dog to bite Plaintiff.
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The Fourth Amendment to the United States Constitution
provides that “The right of the people to be secure in their
persons ... against unreasonable searches and seizures, shall not
be violated.”
“To state a claim for excessive force as an unreasonable
seizure under the Fourth Amendment, a plaintiff must show that a
‘seizure’ occurred and that it was unreasonable.”
Brower v.
County of Inyo, 489 U.S. 593, 599 (1989), quoted in Abraham v.
Raso, 183 F.3d 279, 288 (3d Cir. 1999).
See also Graham v.
Connor, 490 U.S. 386, 395 (1989) (“all claims that law
enforcement officers have used excessive force--deadly or not--in
the course of an arrest, investigatory stop, or other ‘seizure’
of a free citizen should be analyzed under the Fourth Amendment
and its ‘reasonableness’ standard”).
A seizure triggering Fourth Amendment protection occurs when
a government actor “by means of physical force or show of
authority, has in some way restrained the liberty of a citizen.”
Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968).
To determine the reasonableness of a seizure, a court “must
balance the nature and quality of the intrusion on the
individual’s Fourth Amendment interests against the importance of
the governmental interests alleged to justify the intrusion.”
United States v. Place, 462 U.S. 696, 703 (1983), quoted in
Tennessee v. Garner, 471 U.S. 1, 8 (1985) and Graham v. Connor,
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490 U.S. 386, 396 (1989).
Proper application of this objective
reasonableness standard “requires careful attention to the facts
and circumstances of each particular case, including the severity
of the crime at issue, whether the suspect poses an immediate
threat to the safety of the officers or others, and whether he is
actively resisting arrest or attempting to evade arrest by
flight.”
Graham v. Connor, 490 U.S. at 396; quoted in Groman v.
Township of Manalapan, 47 F.3d 628, 633 (3d Cir. 1995).
Ultimately, “the question is whether the officers’ actions are
‘objectively reasonable’ in light of the facts and circumstances
confronting them, without regard to their underlying intent or
motivation.”
Graham, 490 U.S. at 397.
Here, Plaintiff has alleged facts sufficient to permit a
Fourth Amendment “excessive force” claim to proceed as against
Defendant Officers Braxton and Timex.
V.
CONCLUSION
For the reasons set forth above, the Fourth Amendment
“excessive force” claim may proceed as against Defendant Officers
Braxton and Timex only.
All other claims will be dismissed with
prejudice, pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and
1915A(b)(1), for failure to state a claim.
An appropriate order
follows.
s/Robert B. Kugler
Robert B. Kugler
United States District Judge
Dated: September 27, 2012
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