STORA v. BRADY et al

Filing 16

OPINION. Signed by Judge Noel L. Hillman on 10/10/2014. (tf, n.m.)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

SKIBOKY STORA,
Plaintiff,
v.
MARGARET BRADY, et al.,
Defendants.

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Civil Action No. 12-5131(NLH)

OPINION

APPEARANCES:
Skiboky Stora
559 Vermont Street
Brooklyn, NY 11207
Plaintiff pro se

HILLMAN, District Judge
Plaintiff Skiboky Stora seeks to bring this action in forma
pauperis pursuant to 42 U.S.C. § 1983, alleging violations of
his constitutional rights.
I.

BACKGROUND

Plaintiff was a prisoner at the time he submitted his
original Complaint [1], but he has since been released.

By

Opinion and Order entered December 19, 2012, this Court granted
Plaintiff leave to proceed in forma pauperis, dismissed the
Complaint without prejudice, and granted Plaintiff leave to

apply to re-open if he could cure the deficiencies of his
Complaint.

Thereafter, Plaintiff submitted a proposed Amended

Complaint [7] and a Second Amended Complaint [9].

By Opinion

and Order [14, 10], previously entered, this Court screened the
Second Amended Complaint pursuant to 28 U.S.C. § 1915(e)(2).
This Court accepted Plaintiff’s allegations as true for purposes
of screening the Second Amended Complaint, summarizing the
factual allegations and construing the claims as follows:
Plaintiff states that he resides in Brooklyn, New
York. He alleges that he was in Atlantic City, New
Jersey on May 16, 2012, when he was brought by
emergency medical personnel from his hotel to the
Atlanticare Regional Medical Center in Atlantic City.
Plaintiff does not describe the nature of his medical
emergency, but alleges that he was immediately
discharged. He states that Defendant Nurse Margaret
Brady and an Atlanticare security guard both started
pulling his arms to get him out of the hospital while
he was screaming in pain for them to stop. Plaintiff
asserts that Nurse Brady hit him in the chest, causing
him to fall on a bed. He claims that Defendant Nurse
Brady then called the police, telling them that
Plaintiff had assaulted her.
Plaintiff states that Defendant Officers Kevin
Burrows and Robert Nawroc, both of the Atlantic City
Police Department, responded to the call and that
Defendant Officer Burrows told Defendant Officer
Nawroc to arrest Plaintiff for assault on Nurse Brady.
Plaintiff states that he told the officers that there
was a camera that would reveal Nurse Brady’s attack on
him, and alleges that he was bruised as a result of
Nurse Brady hitting him, but that the officers refused
to take Plaintiff’s complaint against Nurse Brady.
Plaintiff contends that the officers falsely
arrested him and forced medical treatment on him.
[FN3] He states that he was confined for 132 days
following his arrest, but does not describe the
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resolution of the charges against him. He seeks
damages in the amount of five million dollars for
alleged violations of his rights, including,
specifically: false arrest, refusal to take his
complaint against Nurse Brady, filing a false police
report stating that swelling was evident on Nurse
Brady, and for discrimination by the police officers.
... He names as Defendants Nurse Margaret Brady,
Atlanticare Regional Medical Center, Officer Kevin
Burrows, Officer Robert Nawroc, and the Atlantic City
Police Department.
(Opinion [14] at 2-4.)

In its prior Order [10], this Court

dismissed with prejudice the claims asserted against Defendant
Officers Burrows and Nawroc for false arrest, making false
statements in a police report, and failure to investigate.

This

Court dismissed all remaining claims without prejudice, and
granted Plaintiff leave to file an application to re-open and a
proposed third amended complaint addressing the deficiencies of
the Second Amended Complaint “solely with respect to those
claims dismissed without prejudice.”

The Order further provided

that no additional opportunities to amend would be granted.
Plaintiff has submitted a proposed Third Amended Complaint,
and this Court has re-opened this matter for purposes of
screening the Third Amended Complaint pursuant to 28 U.S.C.
§ 1915(e)(2).

In addition to making new factual allegations,

Plaintiff has, contrary to the terms of this Court’s prior Order
[10], reasserted the claims dismissed with prejudice and has
asserted new claims.

More specifically, Plaintiff adds the

following facts to his description of the events of May 16,
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2012:

he alleges that Officer Nawroc used a racial epithet in

talking with him at the time of the arrest (an additional fact
in support of the previously-dismissed equal protection claim);
he alleges that Officers Nawroc and Brady violently assaulted
him without probable cause (a new fourth amendment claim); he
alleges that the officers did not advise him of his Miranda
rights (a new claim); and he asserts new state-law tort claims
against all defendants for malicious prosecution, assault and
battery, negligence, and tortious infliction of emotional
distress.
II.

STANDARDS FOR A SUA SPONTE DISMISSAL

As this Court has previously advised Plaintiff, every
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.”

“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 ... . Factual allegations must be enough to

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raise a right to relief above the speculative level
... .
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(citations omitted).
That is, a complaint must assert “enough facts to state a
claim to relief that is plausible on its face.”

Id. at 570.

“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, 556 U.S. 662, 678 (2009) (citing Twombly, 550
U.S. at 556).

The determination of whether the factual

allegations plausibly give rise to an entitlement to relief is
“‘a context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.’”

Bistrian v.

Levi, 696 F.3d 352, 365 (3d Cir. 2012) (citations omitted).
Thus, a court is “not bound to accept as true a legal conclusion
couched as a factual allegation,” and “[t]hreadbare recitals of
the elements of a cause of action, supported by mere conclusory
statements, do not suffice.”

Ashcroft v. Iqbal, 556 U.S. at 678

(citations omitted).
In determining the sufficiency of a pro se complaint, the
Court must be mindful to accept its factual allegations as true,
see James v. City of Wilkes-Barre, 700 F.3d 675, 679 (3d Cir.
2012), and to construe it liberally in favor of the plaintiff,

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see Haines v. Kerner, 404 U.S. 519, 520-21 (1972); United States
v. Day, 969 F.2d 39, 42 (3d Cir. 1992).
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); Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).
IV.
A.

ANALYSIS

The Equal Protection Claim
In an attempt to resurrect the previously-dismissed equal

protection claim, Plaintiff alleges that Officer Nawroc used a
racial epithet in talking with him at the time of the arrest.
The Equal Protection Clause of the Fourteenth Amendment
commands that no State shall “deny to any person within its
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jurisdiction the equal protection of the laws,” which is
essentially a direction that all persons similarly situated
should be treated alike.

City of Cleburne, Texas v. Cleburne

Living Center, 473 U.S. 432, 439 (1985) (citing Plyler v. Doe,
457 U.S. 202, 216 (1982)), cited in Artway v. Attorney General
of New Jersey, 81 F.3d 1235, 1267 (3d Cir. 1996).

Despite its

sweeping language, though, “[t]he Equal Protection Clause does
not forbid classifications.

It simply keeps governmental

decisionmakers from treating differently persons who are in all
relevant respects alike.”

Nordlinger v. Hahn, 505 U.S. 1, 10

(1992), quoted in Keystone Redevelopment Partners, LLC v.
Decker, 631 F.3d 89, 109 (3d Cir. 2011).
Proof of disparate impact alone, however, is not sufficient
to succeed on an equal protection claim; a plaintiff also must
prove that the defendant intended to discriminate.

Village of

Arlington Heights v. Metropolitan Housing Development Corp., 429
U.S. 252, 264-66 (1977); Washington v. Davis, 426 U.S. 229, 242,
244-45 (1976).

Thus, discriminatory intent must be a motivating

factor in the decision, but it need not be the sole motivating
factor.

Village of Arlington Heights, 429 U.S. at 265-66, cited

in Community Services, Inc. v. Wind Gap. Mun. Authority, 421
F.3d 170, 177 (3d Cir. 2005).
This Court previously dismissed this claim because
Plaintiff failed to allege any facts that would suggest that he
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was treated differently from other persons who are similarly
situated or that any Defendant intended to discriminate against
him.

While the new fact that Officer Nawroc used a racial

epithet suggests racial animus, the use of racial epithets,
alone, during the course of an arrest, without other conduct
that deprives an arrestee of constitutional rights, does not
amount to an equal protection violation.

See, e.g., Williams v.

Bramer, 180 F.3d 699, 706 (5th Cir. 1999), cited in Salley v. PA
Dept. of Corr., 181 F.App’x 258, 266 (3d Cir. 2006).

Moreover,

Plaintiff still has pleaded no facts that suggest that he was
treated differently from other persons who are similarly
situated, that is, that he was arrested where other individuals
typically are not arrested, when police have received a
complaint of assault that is corroborated by another witness.
This claim will be dismissed with prejudice.
B.

The Excessive Force Claim
Plaintiff asserts that Officers Nawroc and Brady violently

assaulted him without probable cause and, alternately, that they
used excessive force in arresting him, in violation of the
Fourth Amendment.
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.”
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“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), cited in Lamont v. New
Jersey, 637 F.3d 177, 182-83 (3d Cir. 2011).

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).

Clearly, here, there

is no question that Plaintiff has adequately alleged that a
seizure occurred.
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
Graham v. Connor, 490 U.S. 386, 396 (989) and Scott v. Harris,
550 U.S. 372, 383 (2007).

Proper application of this objective

reasonableness standard “requires careful attention to the facts
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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).

Other factors to be considered include “’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, and the number of persons with whom the police
officers must contend at one time.’”

Couden v. Duffy, 446 F.3d

483, 497 (3d Cir. 2006) (citations omitted).

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 simply alleged in conclusory fashion
that Officers Nawroc and Burrows beat him and used excessive
force against him.

This Court is not bound to accept

Plaintiff’s characterization of the officers’ conduct as
excessive.

And he has failed to allege facts from which this

Court could apply the governing considerations to determine
whether Plaintiff has stated a claim that the use of force was
excessive.

To the contrary, Plaintiff has failed utterly to
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describe the nature of the force used against him and the
circumstances under which he was arrested, except to note that
there appeared to be some type of altercation between himself
and Nurse Brady, which may have been ongoing when the police
arrived.

That is, he has failed to allege any facts that would

raise his right to relief “above a speculative level.”

This

conclusory claim will be dismissed for failure to state a claim.
C.

The Miranda Claim
Plaintiff seeks damages because Officers Nawroc and Brady

did not advise him of his Miranda rights.

Plaintiff does not

state whether the officers questioned him or whether he made any
statement, other than to assert that Nurse Brady had assaulted
him.
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.
According to the Supreme Court,
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
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taken into custody or otherwise deprived of his
freedom of action in any significant way.
Miranda v. Arizona, 384 U.S. at 444 (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 the 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 F.App’x 126, 133 (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 him.”

Kirby v. Illinois, 406 U.S.

682, 688 (1972) (plurality opinion).

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Accordingly, the Miranda

claim for damages will be dismissed with prejudice for failure
to state a claim.

Cf. Gunset v. Marsh, Civil Action No. 12-

4735, 2012 WL 3229145 (D.N.J. Aug. 6, 2012) (dismissing with
prejudice damages claim arising out of alleged Miranda
irregularities during interrogation).
D.

The False Arrest Claim
Plaintiff re-asserts the false arrest claim, which this

Court previously dismissed with prejudice.

He has alleged no

new facts that would cause this Court to reconsider its prior
decision.

Accordingly, for the reasons stated in this Court’s

prior Opinion [14], this claim will be dismissed with prejudice.
E.

State Law Tort Claims
In the Third Amended Complaint, Plaintiff asserts new

state-law tort claims against all defendants for malicious
prosecution, assault and battery, negligence, and tortious
infliction of emotional distress.
Pursuant to 28 U.S.C. § 1367(c)(3), where a district court
has dismissed all claims over which it has original
jurisdiction, it may decline to exercise supplemental
jurisdiction over a related state law claim.

Indeed, the Court

of Appeals for the Third Circuit has held that, where all
federal claims are dismissed before trial, “the district court
must decline to decide the pendent state claims unless
considerations of judicial economy, convenience, and fairness to
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the parties provide an affirmative justification for doing so.”
Hedges v. Musco, 204 F.3d 109, 123 (3d Cir. 2000) (citations
omitted) (alteration in original).

As no such extraordinary

circumstances appear to be present, this Court will dismiss all
state law claims without prejudice.
V.

CONCLUSION

For the reasons set forth above, all federal claims will be
dismissed with prejudice, pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(ii), for failure to state a claim.

All state

law claims will be dismissed without prejudice pursuant to 28
U.S.C. § 1367(c)(3).
granted.

No further opportunities to amend will be

An appropriate order follows.

At Camden, New Jersey

Dated:

s/ Noel L. Hillman
Noel L. Hillman
United States District Judge

October 10, 2014

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