BOU v. STATE OF NEW JERSEY et al

Filing 20

OPINION FILED. Signed by Judge Joseph E. Irenas on 5/7/12. (js)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

GREGORY BOU,
Plaintiff,

HONORABLE JOSEPH E. IRENAS

v.

CIVIL ACTION NO. 11-6356
(JEI/JS)

STATE OF NEW JERSEY, et al.,

OPINION

Defendants.
APPEARANCES:
PATRICK GECKLE LLC
By: Maureen Reynolds O’Connor, Esq.
1835 Walnut Street, Suite 2300
Philadelphia, PA 19103
Counsel for Plaintiff
OFFICE OF THE NEW JERSEY ATTORNEY GENERAL
By: Roshan Deven Shah, Deputy Attorney General
RJ Hughes Justice Complex
25 Market Street
P.O. Box 112
Trenton, NJ 08625
Counsel for Defendants
IRENAS, Senior District Judge:

Plaintiff initiated this action to recover for injuries
sustained when two New Jersey State Troopers attempted to take
him to the hospital following a 911 call from Plaintiff’s school
nurse.1

Pending before the Court is Defendants’ Motion to

Dismiss Plaintiff’s claims under Title II of the Americans with
Disabilities Act (“ADA”) and Section 504 of the Rehabilitation
1

This Court exercises subject matter jurisdiction pursuant
to 28 U.S.C. § 1331 and 28 U.S.C. § 1367.
1

Act of 1973 (“RA”).
I.
On November 18, 2009, Troopers Michael DePinto and Charles
Hurley responded to a 911 call from school nurse Terri Land
(“Nurse Land”) at the Sequoia Alternative Program (“Sequoia”).
(Amended Compl. ¶¶ 15, 17, 19.)

The call was made after

Plaintiff Bou, a Sequoia student, reported to Nurse Land that he
was not feeling well because he took too much medication. (Id. ¶
15.)

The Complaint alleges that Nurse Land was aware that

Plaintiff suffers from bipolar disorder and major depression with
psychotic features, and that he had received treatment for his
mental illness at Hampton Hospital. (Id. ¶¶ 9, 11.)

Nurse Land

contacted Plaintiff’s mother and his physicians, who instructed
her to call 911.

(Id. ¶¶ 9, 11.)

Upon arrival, the Troopers spoke to Nurse Land privately
behind closed doors, while Plaintiff sat outside the office
wearing headphones, and talking to two Sequoia employees and his
cousin via cell phone.

(Id. ¶¶ 18-20.)

After the Troopers spoke

with Nurse Land, they approached Plaintiff and told him he was
going to the hospital.

(Id. ¶ 21.)

The Troopers said nothing

else to Plaintiff except that he was going to the hospital.
(Id.)
Plaintiff became apprehensive and called his mother to see
if she could take him to the hospital.
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(Id. ¶ 23.)

When

Plaintiff’s mother told him she was unable to take him, Plaintiff
became upset and threw his phone on the floor. (Id.) At this
point, the Troopers “assaulted Plaintiff without first trying to
talk to him or calm him down.”

(Id. ¶ 28.)

According to the

Complaint, the Troopers “grabbed Plaintiff out of his seat and
placed Plaintiff in a headlock, causing Plaintiff to choke.

[The

Troopers] then proceeded to smash Plaintiff’s head and face to
the ground.”

(Id. ¶ 29.)

Plaintiff was then handcuffed on the ground and placed in a
police vehicle until an ambulance arrived, whereupon he was taken
to the emergency room at Virtua Hospital.

(Id. ¶¶ 33-34.)

Plaintiff’s injuries included “severe swelling and bruising over
his left lateral orbit and abrasions on his neck.”

(Id. ¶ 35.)

Plaintiff filed his initial Complaint on October 31, 2011.
On February 29, 2012, Defendants filed a Motion to Dismiss the
Complaint.

On March 12, 2012, Plaintiff amended his Complaint

and dropped his claims against the New Jersey State Police
pursuant to 42 U.S.C. § 1983 and the New Jersey Civil Rights Act,
as well as corresponding state common law claims.

On March 27,

2012, Defendants filed a Motion to Dismiss the claims pursuant to
Title II of the ADA and Section 504 of the RA asserted against
the New Jersey State Police and the individual Troopers in the
Amended Complaint.

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II.
Federal Rule of Civil Procedure 12(b)(6) provides that a
court may dismiss a complaint “for failure to state a claim upon
which relief can be granted.”

In order to survive a motion to

dismiss, a complaint must allege facts that raise a right to
relief above the speculative level.

Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555 (2007); see also Fed. R. Civ. P.
8(a)(2).
While a court must accept as true all allegations in the
plaintiff’s complaint, and view them in the light most favorable
to the plaintiff, Phillips v. County of Allegheny, 515 F.3d 224,
231 (3d Cir. 2008), a court is not required to accept sweeping
legal conclusions cast in the form of factual allegations,
unwarranted inferences, or unsupported conclusions.

Morse v.

Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997).

The

complaint must state sufficient facts to show that the legal
allegations are not simply possible, but plausible.
515 F.3d at 234.

Phillips,

“A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.”

Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949

(2009).
When evaluating a Rule 12(b)(6) motion to dismiss, the Court
considers “only the allegations in the complaint, exhibits
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attached to the complaint, matters of public record, and
documents that form the basis of a claim.”

Lum v. Bank of

America, 361 F.3d 217, 221 n.3 (3d Cir. 2004).

A document that

forms the basis of a claim is one that is “integral to or
explicitly relied upon in the complaint.”

Id. (quoting In re

Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir.
1997)).
III.
In Count Two of the Amended Complaint, Plaintiff alleges
that Defendants violated § 504 of the RA and Title II of the ADA.
The essence of these claims is that “Plaintiff was denied the
benefit of the lawful exercise of police power when, as a result
of [the New Jersey State Police’s] failure to train their
officers on how to handle mentally ill persons, the Troopers used
excessive force on Plaintiff.”

(Pl’s Opp. at 10.)

Defendants

move to dismiss these claims arguing that Plaintiff has failed to
allege facts regarding (1) the New Jersey State Police’s alleged
failure to maintain practices and policies for dealing with
mentally ill persons and (2) the individual Troopers’ knowledge
of Plaintiff’s mental illness.2
2

Defendants move to dismiss the RA and ADA claims against
the individual Troopers, arguing that these statutes do not
provide for liability against individual defendants. The Third
Circuit has held that “[s]uits may be brought pursuant to Section
504 [of the RA] against recipients of federal financial
assistance, but not against individuals.” A.W. v. Jersey City
Pub. Sch., 486 F.3d 791, 804 (3d Cir. 2007). Although the Third
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Section 504 of the RA provides in pertinent part “No
otherwise qualified individual with a disability . . . shall,
solely by reason of her or his disability, be excluded from the
participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving Federal
financial assistance . . . .” 29 U.S.C. § 794(a).

Similarly,

Title II of the ADA provides that “no qualified individual with a
disability shall, by reason of such disability, be excluded from
participation in or be denied the benefits of the services,
programs, or activities of a public entity, or be subjected to
discrimination by any such entity.”

42 U.S.C. § 12132.

Although

the ADA does not define “programs, services or activities,” the
RA provides that “‘program or activity’ means all of the

Circuit has not addressed individual liability under Title II of
the ADA, see Mutschler v. SCI Albion CHCA Health Care, 445 Fed.
Appx. 617, 621 n.6 (3d Cir. Sept. 27, 2011), the Second, Seventh
and Eighth Circuits have held that Title II of the ADA also does
not provide for individual capacity suits against state
officials. See Garcia v. S.U.N.Y. Health Sciences Center of
Brooklyn, 280 F.3d 98, 107 (2d Cir. 2001)(collecting cases); see
also Calloway v. Boro of Glassboro Dept. of Police, 89 F.Supp. 2d
543, 557 (D.N.J. 2000)(holding that individual defendants cannot
be held liable under Title II of the ADA). However, the Amended
Complaint only asserts claims pursuant to § 504 of the RA and
Title II of the ADA against Defendants DePinto and Hurley in
their official capacities. Because claims against state
officials in their official capacity are in essence suits against
the state itself, the Court will treat Plaintiff’s claims against
Troopers DePinto and Hurley in their official capacities as suits
against New Jersey and the New Jersey State Police. See Hafer v.
Melo, 502 U.S. 21, 25 (1991)(“Suits against state officials in
their official capacity . . . should be treated as suits against
the state.”).
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operations of . . . a department, agency . . . or other
instrumentality of a State or of a local government[.]”

29

U.S.C. § 794(b)(1)(A).
To state a claim for a violation of either § 504 of the RA
or Title II of the ADA, the plaintiff must show that (1) he is a
qualified individual with a disability; (2) that he was either
excluded from participation in or denied the benefits of some
public entity’s services, programs, or activities, or was
otherwise discriminated against by the public entity; and (3)
that such exclusion, denial of benefits, or discrimination was by
reason of the plaintiff’s disability.

Morais v. City of

Philadelphia, 2007 WL 853811, at *10 (E.D. Pa. March 29, 2007);
see also Helen L. V. DiDario, 46 F.3d 325, 330 n.7 (3d Cir.
1995)(“The law developed under Section 504 of the Rehabilitation
Act is applicable to Title II of the ADA.”)(citing Easley v.
Snider, 36 F.3d 297 (3d Cir. 1994); 28 C.F.R. § 35.103).
Viewing the Amended Complaint in the light most favorable to
Plaintiff, the Court finds that Plaintiff has failed to allege
sufficient facts to state a claim for relief under either § 504
of the RA or Title II of the ADA for two reasons.

First,

Plaintiff has not alleged sufficient facts to demonstrate that
the Troopers were aware that Plaintiff was disabled.

Although

the Amended Complaint alleges that the Troopers had a
conversation with Nurse Land upon arriving at Sequoia, there is

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no allegation that the Troopers were informed by Nurse Land or
otherwise aware that Plaintiff had a disability.

Second,

Plaintiff has not sufficiently pled that the alleged denial of
benefits was by reason of Plaintiff’s disability.

In essence,

Plaintiff argues that the Troopers overreacted to Plaintiff’s
disorderly conduct, which was a symptom of his mental illness.
However, in the absence of any allegation that the Troopers were
aware of Plaintiff’s disability, there can be no reasonable
inference that the Troopers use of force was by reason of
Plaintiff’s disability and not by reason of his disorderly
conduct.

Accordingly, Defendants’ Motion to Dismiss the claims

pursuant to Title II of the ADA and Section 504 of the RA will be
granted.
IV.
For the reasons stated above, Defendants’ Motion to Dismiss
Count Two of the Amended Complaint will be granted.

Plaintiff

will be granted leave to file a motion to amend the Complaint
within 30 days of this Opinion.

See Phillips v. County of

Allegheny, 515 F.3d 224, 245 (3d Cir. 2008)(holding that district
courts “must permit a curative amendment unless such an amendment
would be inequitable or futile.”).

An appropriate Order

accompanies this Opinion.
Dated:

May

7 , 2012
s/Joseph E. Irenas
JOSEPH E. IRENAS, S.U.S.D.J.

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