CALLAWAY v. NEW JERSEY STATE POLICE TROOP A et al

Filing 2

OPINION. Signed by Judge Robert B. Kugler on 4/5/2013. (nz, )n.m.

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

OREADER CALLAWAY, JR.,
Plaintiff,
v.
NEW JERSEY STATE POLICE
TROOP A, et al.,
Defendants.

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Civil Action No. 12-5477 (RBK)

OPINION

APPEARANCES:
OREADER CALLAWAY, JR., Plaintiff pro se
#30925
Gloucester County Jail
54 West Broad Street
Bridgeton, New Jersey 08302
KUGLER, District Judge
Plaintiff, Oreader Callaway, Jr., a state inmate confined
at the Gloucester County Jail in Woodbury, New Jersey, at the
time he filed this Complaint, seeks to bring this action in
forma pauperis.

Based on his affidavit of indigence, the Court

will grant plaintiff’s application to proceed in forma pauperis
(“IFP”) pursuant to 28 U.S.C. § 1915(a) (1998) and order the
Clerk of the Court to file the Complaint.
At this time, the Court must review the Complaint, pursuant
to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A, 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.

For the reasons set forth below, the Court concludes

that the Complaint should be proceed in part at this time.
I.

BACKGROUND

Plaintiff, Oreader Callaway, Jr. (“Plaintiff”), brings this
civil action, pursuant to 42 U.S.C. § 1983, against the
following defendants, New Jersey State Police Troop A Bridgeton
Barracks, Trooper McCreen, and Woodstown State Police Troop A.
(Complaint, Caption, ¶¶ 4b, 4c and 6.)

The following factual

allegations are taken from the Complaint, and are accepted for
purposes of this screening only.

The Court has made no findings

as to the veracity of Plaintiff’s allegations.
Plaintiff alleges that, on June 30, 2012, at about 7:45
a.m., he was arrested by the Bridgeton State Police Barracks for
having stolen property in his possession.

Plaintiff alleges

that he was questioned repeatedly without having first been read
his Miranda rights.

When Plaintiff requested an attorney, he

was called a “Black snake,” grabbed from behind and lifted up by
one of the State Troopers, “tearing [Plaintiff’s] ribs,
cartilage that has disfigured [Plaintiff] to this date.”
(Compl., ¶ 6.)

Plaintiff was then placed in a cell for
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approximately five hours, during which time he repeatedly asked
for medical attention.

He was allegedly told that “if he

continued to ask for a doctor, [his] black ass would really need
one.”

(Id.)

that remark.

Plaintiff alleges he feared for his life after
(Id.)

After about twelve hours, Trooper McCreen entered
Plaintiff’s cell with several other state troopers, and asked
Plaintiff again how he came into possession of the stolen
property.

Plaintiff alleges that, because of his injury and

fear, he told the officers that someone threw the bag while
running and Plaintiff picked it up.

At that statement, McCreen

allegedly stated, “you think I’m stupid, you dope feins (sic)
need to be put down or put away for a very long time.”

(Id.)

Plaintiff was then asked to remove his shoes and was told he was
never going home again.”

Plaintiff asked if he could have a

drink of water or something to eat, which request was denied.
At 8:30 p.m., Plaintiff was transferred to the Woodstown State
Police Barracks.

(Id.)

Plaintiff alleges that, immediately upon his arrival at the
Woodstown State Police Barracks, he asked for medical attention
and something to drink.

The sergeant on command told Plaintiff

he had a better chance of seeing “God.”

Plaintiff told the

sergeant that he could not raise his right arm more than 20
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degrees, that it was “frozen” from three prior surgeries, and
that his left side was in “excruciating pain” probably from a
broken rib.

Despite Plaintiff’s right arm being “frozen,” three

troopers in the presence of the shift sergeant lifted
Plaintiff’s arms over his head, causing Plaintiff to scream in
pain.

Plaintiff was then handcuffed for four to five hours with

no food or water for 14 hours total, and no medical attention
for his injuries.

(Id.)

At 10:00 p.m., Plaintiff was questioned by a detective
regarding a home invasion from which the stolen property found
on Plaintiff had come.

Plaintiff explained that he knew nothing

about a home invasion and asked for an attorney.

He further

alleges that no Miranda rights were read to him during this time
and his request for an attorney was denied.
transferred to county jail.

He was then

(Id.)

Plaintiff seeks $ 100 million in damages for the above
alleged constitutional violations and physical and mental
abuse.

He also asks that the defendants be “sanctioned, demoted

or terminated.”
retaliation.

Finally, Plaintiff seeks protection from any

(Compl., ¶ 7.)

Plaintiff does not allege any acts

of retaliation in his Complaint.

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II.

STANDARDS FOR A SUA SPONTE DISMISSAL

The Prison Litigation Reform Act (“PLRA”), Pub. L. No. 104134, §§ 801-810, 110 Stat. 1321-66 to 1321-77 (April 26, 1996),
requires a district court to review a complaint in a civil
action in which a prisoner is proceeding in forma pauperis or
seeks redress against a governmental employee or entity.

The

Court is required to identify cognizable claims and to sua
sponte dismiss any claim that is frivolous, malicious, fails to
state a claim upon which relief may be granted, or seeks
monetary relief from a defendant who is immune from such relief.
28 U.S.C. §§ 1915(e)(2)(B) and 1915A.

This action is subject to

sua sponte screening for dismissal under both 28 U.S.C. §
1915(e)(2)(B) and § 1915A.
In determining the sufficiency of a pro se complaint, the
Court must be mindful to construe it liberally in favor of the
plaintiff.

See Erickson v. Pardus, 551 U.S. 89, 93–94 (2007)

(following Estelle v. Gamble, 429 U.S. 97, 106 (1976); see also
United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992).
The Supreme Court refined the standard for summary
dismissal of a complaint that fails to state a claim in Ashcroft
v. Iqbal, 556 U.S. 662 (2009).

The Court examined Rule 8(a)(2)

of the Federal Rules of Civil Procedure which provides that a
complaint must contain “a short and plain statement of the claim
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showing that the pleader is entitled to relief.”

Fed.R.Civ.P.

8(a)(2). Citing its opinion in Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007) for the proposition that “[a] pleading that
offers ‘labels and conclusions’ or ‘a formulaic recitation of
the elements of a cause of action will not do,’”

Iqbal, 556

U.S. at 678 (quoting Twombly, 550 U.S. at 555), the Supreme
Court held that, to prevent a summary dismissal, a civil
complaint must now allege “sufficient factual matter” to show
that the claim is facially plausible.

This then “allows the

court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.”

Fowler v. UPMC Shadyside,

578 F.3d 203 (3d Cir. 2009)(citing Iqbal, 556 U.S. at 676).

The

Supreme Court’s ruling in Iqbal emphasizes that a plaintiff must
demonstrate that the allegations of his complaint are plausible.
See id. at 678-79; see also Twombly, 505 U.S. at 555, & n. 3;
Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011).
“A complaint must do more than allege the plaintiff’s
entitlement to relief.

A complaint has to ‘show’ such an

entitlement with its facts.” Fowler, 578 F.3d at 211 (citing
Phillips v. County of Allegheny, 515 F.3d 224, 234–35 (3d Cir.
2008).

See also Argueta v. U.S. Immigration & Customs

Enforcement, 643 F.3d 60, 73 (3d Cir. 2011); Bistrian v. Levi,
2012 WL 4335958, *8 (3d Cir. Sept. 24, 2012)(allegations that
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are no more than conclusions are not entitled to the assumption
of truth; a court should “look for well-pled factual
allegations, assume their veracity, and then ‘determine whether
they plausibly give rise to an entitlement to relief.’”)
(quoting, Iqbal, 556 U.S. at 679).
The Third Circuit cautioned, however, that Twombly and
Iqbal “do not provide a panacea for defendants,” rather, “they
merely require that plaintiff raise a ‘plausible claim for
relief.’”

Covington v. International Association of Approved

Basketball Officials, ___ F.3d ___, 2013 WL 979067, *2 (3d Cir.
March 14, 2013)(quoting Iqbal, 556 U.S. at 679).

Thus, factual

allegations must be more than speculative, but the pleading
standard “is not akin to a ‘probability requirement.’”
Covington, supra (quoting Iqbal, 556 U.S. at 678; Twombly, 550
U.S. at 556).
III.

SECTION 1983 ACTIONS

Plaintiff brings this action pursuant to 42 U.S.C. § 1983.
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 ... .
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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).

See also Malleus v. George, 641 F.3d 560, 563 (3d

Cir. 2011).
IV.
A.

DISCUSSION

Excessive Force Claim
Plaintiff alleges that certain unidentified state trooper

defendants from the New Jersey State Police Troop A Bridgeton
Barracks used excessive force in their arrest of Plaintiff by
lifting him and tearing his ribs and cartilage.

Claims of

excessive force during arrests, investigatory stops and other
seizures are governed by the Fourth Amendment.

See Graham v.

Conner, 490 U.S. 386 (1989); Rivas v. City of Passaic, 365 F.3d
181, 198 (3d Cir. 2004).

When construing an excessive force

claim, this Court must consider whether the defendant troopers’
use of force was objectively reasonable under the circumstances,
regardless of the their underlying motive or intentions.
Graham, 490 U.S. at 397.

In Graham, the Supreme Court expounded

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on the reasonableness inquiry, stating that it “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.”

Id. at 396.

In

addition, the Third Circuit has noted other relevant factors
including “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.”
Sharrar v. Felsing, 128 F.3d 810, 822 (3d Cir. 1997)(abrogated
on other grounds by Curley v. Klem, 499 F.3d 199 (3d Cir.
2007)); see also Couden v. Duffy, 446 F.3d 483, 496–97 (3d Cir.
2006); Kopec v. Tate, 361 F.3d 772, 776–77 (3d Cir.2004); Doby
v. DeCrescenzo, 171 F.3d 858, 874 (3d Cir. 1999)(“Significant
factors in evaluating the force used by the police are whether
the person being taken into custody is resisting or attempting
to resist by flight.”); Ashton v. City of Uniontown, 459 Fed.
Appx. 185, 189 (3d Cir. 2012).
Furthermore, appropriate attention should be given “to the
circumstances of the police action, which are often ‘tense,
uncertain, and rapidly evolving.’” Groman v. Township of
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Manalapan, 47 F.3d 628, 634 (3d Cir. 1995) (quoting Graham, 490
U.S. at 396)(“Not every push or shove, even if it may later seem
unnecessary,” violates the constitution.).

It is also important

to consider whether “the physical force applied was of such an
extent as to lead to injury.”

Mellott v. Heemer, 161 F.3d 117,

122 (3d Cir. 1998)(quoting Sharrar v. Felsing, 128 F.3d 810, 822
(3d Cir. 1997), abrogated on other grounds by Curley v. Klem,
499 F.3d 199 (3d Cir. 2007)); see also Walke v. Cullen, 491 Fed.
Appx. 273, 277 (3d Cir. July 2, 2012).

Additionally,

“[r]easonableness is to be evaluated from the perspective of a
reasonable officer on the scene, rather than with the 20/20
vision of hindsight.”

Carswell v. Borough of Homestead, 381

F.3d 235, 240 (3d Cir. 2004)(internal quotation marks and
citation omitted); see also Brown v. Cwynar, 484 Fed. Appx. 676,
679-80 (3d Cir. June 7, 2012).
Here, Plaintiff’s allegations, if true, may be sufficient
to allow this claim to proceed at this time.

He alleges that he

was grabbed from behind and lifted up to the point that his rib
cartilage was torn and/or his rib broken.

Plaintiff’s

allegations also suggest that he was not doing anything to
provoke such harsh treatment by the troopers.

Consequently, it

would appear that Plaintiff has alleged facts sufficient at this

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time to raise a “plausible claim for relief.”

Iqbal, 556 U.S.

at 679.
Next, after Plaintiff was transferred to the Woodstown
Barracks, Plaintiff alleges that certain unidentified state
troopers forced his arms up over his head, causing pain, despite
Plaintiff’s prior arm injury and surgeries.

There are no

allegations that Plaintiff was resisting the state troopers in
any way or that he was acting in any way to provoke this
response from the troopers.

It is plain from the Complaint that

Plaintiff was in custody at the time, having been transferred
from the Bridgeton State Police Barracks after more than twelve
hours in custody after his arrest by the troopers.
While the use of force upon a post-arraignment, pretrial
detainee is analyzed under the Fourteenth Amendment, see
Sylvester v. City of Newark, 120 Fed. Appx. 419, 423 (3d Cir.
2005), “a person continues to be an arrestee subject to the
Fourth Amendment protection through the period of post-arrest
but prearraignment detention.”

Hill v. Algor, 85 F. Supp.2d

391, 403 (D.N.J. 2000); see also Pierce v. Multnomah County, 76
F.3d 1032, 1043 (9th Cir. 1996); Morrison v. Phillips, 2008 WL
4308215, *11 fn. 10 (D.N.J. Sept. 16, 2008).

Thus, for the same

reasons as discussed above with regard to defendants’ actions at
the time of arrest, this Court finds that Plaintiff may have
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alleged facts sufficient, if true, to support a claim of
excessive force where Plaintiff alleges that defendants’ use of
force was unreasonable under the circumstances because Plaintiff
allegedly did not pose a threat.
Therefore, Plaintiff’s claim that excessive force was used
by defendant troopers in violation of his Fourth Amendment
rights will be allowed to proceed at this time against the
unidentified Bridgton and Woodston Barracks state troopers being
sued in their individual capacities.

However, to the extent

that Plaintiff is suing the New Jersey State Police (namely,
their Bridgeton and Woodston Barracks), these defendants must be
dismissed from this action, because a state, its agencies, and
its actors in their official capacities are not persons who may
be sued under § 1983.

See Will v. Michigan Department of State

Police, 491 U.S. 58, 64 (1989)(Department of State Police was an
arm of the state, and thus, are not subject to suit under §
1983); Smith v. New Jersey, ___ F.3d ___, 2012 WL 5465023, *3
(D.N.J. Nov. 7, 2012).
B.

Miranda Claim
Plaintiff's allegation that he was not advised of his

Miranda rights does not state a colorable claim under section
1983.

“[F]ailing to follow Miranda procedures triggers the

prophylactic protection of the exclusion of evidence, but does
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not violate any substantive Fifth Amendment right such that a
cause of action for money damages under § 1983 is created.”
Jones v. Cannon, 174 F.3d 1271, 1291 (11th Cir. 1999); Guiffre
v. Bissell, 31 F.3d 1241, 1256 (3d Cir. 1994); Price v. Stewart,
2012 WL 4758374, *3 (M.D. Ga. Aug. 27, 2012).

Indeed, “a

violation of the constitutional right against self-incrimination
occurs only if one has been compelled to be a witness against
himself in a criminal case.”
760, 770 (2003).

See Chavez v. Martinez, 538 U.S.

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 (3d Cir. 2005)
(citing Guiffre); Story v. Atlantic City Police Dept., 2012 WL
4507168, *5 (D.N.J. Sept. 27, 2012).
C.

Coercive Interrogation – Due Process Claim
Plaintiff also appears to assert that the circumstances of

his interrogation amounted to a violation of Plaintiff's due
process rights under the Fourteenth Amendment.

See, e.g.,

Chavez v. Martinez, 538 U.S. 760, 780 (2003)(under some
circumstances, coercive interrogation alone may violate a
suspect’s right to substantive due process, even when no selfincriminating statement is used against the person
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interrogated); County of Sacramento v. Lewis, 523 U.S. 833, 846–
47, n. 8 (1998)(substantive due process rights are violated only
when “the behavior of the governmental officer is so egregious,
so outrageous, that it may fairly be said to shock the
conscience”); Miller v. Fenton, 474 U.S. 104, 109 (1985)
(“certain interrogation techniques, either in isolation or as
applied to unique characteristics of a particular suspect, are
so offensive to a civilized system of justice that they must be
condemned under the Due Process Clause of the Fourteenth
Amendment”); Rochin v. California, 342 U.S. 165 (1952)(due
process violated when evidence obtained by subjecting the
suspect to an involuntary stomach pump).
The Third Circuit has held that to establish a violation of
substantive due process rights, the action alleged must be “so
ill-conceived or malicious that it shocks the conscience.”
Miller v. City of Philadelphia, 174 F.3d 368, 375 (3d Cir. 1999)
(quoting Lewis, 523 U.S. at 846).

Mere negligence is not

sufficient to meet this standard.

Lewis, 523 U.S. at 847.

The

standard often used by the Supreme Court to determine whether an
action has reached that level is the “deliberate indifference”
standard.

Id., 523 U.S. at 851.

The Third Circuit acknowledged

that the meaning of this “shocks the conscience” standard varies
depending on the factual context of the case.
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Miller, 174 F.3d

at 375; see also United Artists Theatre Circuit, Inc. V.
Township of Warrington, 316 F.3d 392, 399-400 (3d Cir. 2003);
Nicini v. Morra, 212 F.3d 798, 810 (3d Cir. 2000)(“A plaintiff
seeking to establish a constitutional violation must demonstrate
that the official’s conduct ‘shocks the conscience’ in the
particular setting in which that conduct occurred”).
Typically, “conscience shocking” provides relief for
physical abuse.

See Rochin v. California, 342 U.S. 165

(1952)(due process violated when evidence obtained by subjecting
the suspect to an involuntary stomach pump).

Some courts have

suggested that “conscience shocking” behavior must be either
physically intrusive or violent, or strike at the basic fabric
of a protected relationship, such as a parent-child
relationship.

See Cruz-Erazo v. Rivera-Montanez, 212 F.3d 617,

623 (1st Cir. 2000).

For instance, in the few cases where

interrogation alone has supported a conscience-shocking claim,
there have usually been at least some allegations of physical
force or abuse.

In Chavez, the Supreme Court remanded the case

to the Ninth Circuit to determine whether a suspect had a
“shocks the conscience” claim against police for conduct during
the interrogation.

The Ninth Circuit allowed the claim based in

part on implications of physical abuse allegations that the
officer had interfered with the medical treatment of the
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plaintiff while he screamed in pain.

Martinez v. City of

Oxnard, 337 F.3d 1091, 1092 (9th Cir.2003).
In this case, the Court is hard pressed to find that the
interrogation tactics used by the state trooper defendants rose
to the level of a coercive interrogation that shocks the
conscience and resulted in a federal constitutional deprivation.
Plaintiff was not interrogated for hours.

He was not physically

abused or harmed during the interrogation sessions, although he
does state that his arms were lifted above his head causing
pain.

Rather, Plaintiff simply alleges that he was not provided

food, water and medical care for fourteen hours, but admits that
the interrogation was not being conducted during this entire
time.
Moreover, Plaintiff admits that he did not feel compelled
to talk to the troopers as he denied their charges during
questioning.

No confession or admissions were elicited from

Plaintiff during this time in interrogation.

Thus, the Court

finds that the interrogations were not so egregious or
outrageous, that it may be fairly said to shock the contemporary
conscience.

Accordingly, this due process claim of coercive

interrogation will be dismissed without prejudice for failure to
state a claim.

As this appears to be the only claim asserted

against Trooper McCreen, the Complaint will be dismissed with
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prejudice, in its entirety, as against Defendant McCreen for
failure to state a cognizable claim.
D.

Denial of Medical Care Claim
Finally, Plaintiff also alleges that certain unidentified

state trooper defendants denied Plaintiff medical attention for
the injuries he sustained during the arrest, namely, his ribs
and right arm.

This Court will rely upon the Fourteenth

Amendment in analyzing Plaintiff’s denial of medical care claim.
See City of Revere v. Massachusetts General Hospital, 463 U.S.
239, 243–45 (1983)(holding that the Due Process Clause of the
Fourteenth Amendment, rather than the Eighth Amendment, controls
the issue of whether prison officials must provide medical care
to those confined in jail awaiting trial); Hubbard v. Taylor
(“Hubbard I”), 399 F.3d 150, 158 (3d Cir. 2005); King v. County
of Gloucester, 302 Fed. Appx. 92, 96 (3d Cir. 2008).

See also

Montgomery v. Ray, 145 Fed. Appx. 738, 740, 2005 WL 1995084 (3d
Cir. 2005) (unpubl.) (“the proper standard for examining such
claims is the standard set forth in Bell v. Wolfish, ...; i.e.,
whether the conditions of confinement (or here, inadequate
medical treatment) amounted to punishment prior to adjudication
of guilt ....”)(citing Hubbard I, 399 F.3d at 158).

In Hubbard,

the Third Circuit clarified that the Eighth Amendment standard
only acts as a floor for due process inquiries into medical and
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non-medical conditions of pretrial detainees. 399 F.3d at 165–
67.
The Fourteenth Amendment standard of unconstitutional
punishment, like the Eighth Amendment’s cruel and unusual
punishments standard, contains both an objective component and a
subjective component:
Unconstitutional punishment typically includes both
objective and subjective components. As the Supreme Court
explained in Wilson v. Seiter, 501 U.S. 294, 111 S.Ct.
2321, 115 L.Ed.2d 271 ... (1991), the objective component
requires an inquiry into whether “the deprivation [was]
sufficiently serious” and the subjective component asks
whether “the officials act[ed] with a sufficiently culpable
state of mind[.]” Id. at 298 .... The Supreme Court did
not abandon this bipartite analysis in Bell, but rather
allowed for an inference of mens rea where the restriction
is arbitrary or purposeless, or where the restriction is
excessive, even if it would accomplish a legitimate
governmental objective.
Stevenson v. Carroll, 495 F.3d 62, 68 (3d Cir. 2007).
In this case, Plaintiff alleges that he was denied medical
treatment for an alleged broken rib or torn cartilage for more
than 14 hours without any medical or legitimate justification.
In fact, Plaintiff alleges that when he asked the desk sergeant
for medical attention, the sergeant replied, “You have a better
chance of seeing God.”

Consequently, these allegations, if

true, may be sufficient to support a denial of medical care
claim at this time.

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However, Plaintiff does not identify any defendants with
respect to this denial of medical care claim.

Instead,

Plaintiff generally refers to the New Jersey State Police
Bridgeton and Woodston Barracks.

For the same reasons set forth

above, the New Jersey State Police is a state agency and is not
a “person” subject to suit under § 1983.

See Will v. Michigan

Department of State Police, 491 U.S. 58, 64 (1989)(Department of
State Police was an arm of the state, and thus, are not subject
to suit under § 1983); Smith v. New Jersey, ___ F.Supp.2d ___,
2012 WL 5465023, *3 (D.N.J. Nov. 7, 2012).

Therefore, this

Court will dismiss without prejudice this denial of medical care
claim for failure to state a cognizable claim at this time.
This dismissal is without prejudice to Plaintiff filing an
amended Complaint to cure the deficiencies of this action as
noted herein, namely, to the extent that Plaintiff can identify
defendants who acted in their individual capacities with regard
to Plaintiff’s allegations that he was denied medical care. 1
1

Plaintiff should note that when an amended complaint is filed,
the original complaint no longer performs any function in the
case and “cannot be utilized to cure defects in the amended
[complaint], unless the relevant portion is specifically
incorporated in the new [complaint].” 6 Wright, Miller & Kane,
Federal Practice and Procedure § 1476 (2d ed.1990)(footnotes
omitted). An amended complaint may adopt some or all of the
allegations in the original complaint, but the identification of
the particular allegations to be adopted must be clear and
explicit. Id. To avoid confusion, the safer course is to file
an amended complaint that is complete in itself. Id.
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V.

CONCLUSION

For the reasons set forth above, Plaintiff’s claim alleging
use of excessive force in violation of his Fourth Amendment
rights will be allowed to proceed at this time as against the
unnamed state trooper defendants acting in their individual
capacities.

However, Plaintiff’s Miranda claim and coercive

interrogation claim will be dismissed with prejudice for failure
to state a claim, pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and
1915A(b)(1).

Likewise, the Complaint will be dismissed with

prejudice, in its entirety, as against defendants, the New
Jersey State Police (Troop A Bridgeton and Woodston Barracks)
and Trooper McCreen, for failure to state a claim, pursuant to
28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).

Finally,

Plaintiff’s denial of medical care claim will be dismissed
without prejudice for failure to state a claim at this time.
An appropriate order follows.

s/Robert B. Kugler
__
ROBERT B. KUGLER
United States District Judge
Dated: April 5, 2013

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