WILLIAMS v. CITY OF MILLVILLE et al

Filing 16

OPINION. Signed by Judge Joseph E. Irenas on 11/22/2013. (TH, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

SHARON WILLIAMS,
HONORABLE JOSEPH E. IRENAS

Plaintiff,

CIVIL ACTION NO. 12-7540
(JEI/JS)

v.
CITY OF MILLVILLE, et al.,

OPINION

Defendants.

APPEARANCES:
CHRISTOPHER J. BASNER P.C.
By: Christopher J. Basner, Esq.
Two Kings Highway West, Suite 205
Haddonfield, New Jersey, 08033
Counsel for Plaintiff
MAYFIELD, TURNER, O’MARA & DONNELLY, PC
By: Robert J. Gillespie, Jr.
2201 Route 38, Suite 300
Cherry Hill, New Jersey 08002
Counsel for Defendants New Jersey CVS Pharmacy, LLC &
Amanda Mitchem

IRENAS, Senior District Judge:
Pending before the Court is Defendants New Jersey CVS
Pharmacy, LLC (“CVS”) and Amanda Mitchem’s (“Mitchem”) Motion to
Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6).
CVS and Mitchem’s motion is unopposed.

For the reasons set

forth below, CVS and Mitchem’s motion will be granted.
1

I.
The following facts are alleged in the Complaint.

The

Court reviews only those facts necessary for deciding these
Defendants’ motion.
CVS is a business located in Millville, New Jersey, where
Amanda Mitchem worked as an employee in August 2010.
6-7.)

(Compl. ¶¶

On August 20 and 21, 2010, this CVS was the victim of

shoplifting.

(Id. at ¶¶ 29-30.)

As a result of these

incidents, and with the permission of her supervisor, Mitchem
contacted Defendant William Stadnick, III, a police officer who
began investigating the crimes.

(Id. at ¶¶ 5, 29-30.)

In the course of his investigation, Stadnick reviewed video
footage of the shoplifting incidents and compared the footage
with a DMV photograph of Plaintiff Sharon Williams (“Williams”).
(Id. at ¶¶ 29-31.)

The Complaint fails to explain how Stadnick

even knew to consider Williams as a suspect in his
investigation, but after comparing the picture and video,
Stadnick concluded that Williams was responsible for shoplifting
from CVS.

(Id. at ¶ 32.)

complaint against Williams.

As a result, Stadnick filed a
(Id. at ¶ 23.)

However, Williams asserts that she did not steal from CVS,
nor can she recall ever having visited this particular CVS in
Millville.

(Id. at ¶¶ 52-53.)

On August 21, 2010, Williams was

catering a wedding and could not have been at the CVS to
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shoplift any goods.

(Id. at ¶ 55.)

Additionally, Williams

points out that because Mitchem and CVS had the opportunity to
review video from the CVS on August 20 and 21, both Mitchem and
CVS knew or should have known that Williams did not appear in
the video and was therefore not responsible for any shoplifting
that occurred on those days.

(Id. at ¶¶ 41-42.)

As a result of the shoplifting charge, Williams was
arrested by an unidentified police officer on December 10, 2010,
while she was on her way to cater a birthday party, accompanied
by her twelve year-old nephew.

(Id. at ¶¶ 12-13, 16, 74.)

Williams was forced to appear in court on five separate
occasions from late September, 2010 through June, 2011. 1
¶¶ 43-47.)

(Id. at

Following her arrest, Williams was forced to pay her

own bail, lost out on wages, and was unable to renew her “New
Jersey CNA license.”

(Id. at ¶¶ 64-65, 72.)

On June 24, 2011, the City of Millville terminated the
criminal prosecution against Williams in Municipal Court.
at ¶ 36.)

(Id.

Williams filed suit in this Court approximately

eighteenth months later, and CVS and Mitchem now seek dismissal
for failure to state a claim against them.

1

The Complaint does not explain whether Williams’s court appearances prior to
her arrest in December, 2010, were related to the shoplifting charges.
However, resolution of this issue is unnecessary for deciding CVS and
Mitchem’s motion.

3

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).
When considering a Rule 12(b)(6) motion, the reviewing
court must accept as true all allegations in the complaint and
view them in the light most favorable to the plaintiff.
Phillips v. Cnty. of Allegheny, 515 F.3d 224, 231 (3d Cir.
2008).

In reviewing the allegations, 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).

Instead, the complaint must state sufficient facts to

show that the legal allegations are not simply possible, but
plausible.

Phillips, 515 F.3d at 234.

“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.”
Iqbal, 556 U.S. 662, 678 (2009).

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Ashcroft v.

III.
CVS and Mitchem seek dismissal of Count I, which alleges
federal civil rights violations, and Count II, which alleges
supplemental state law claims.

Each is analyzed in turn.

A.
A plaintiff may have a cause of action under 42 U.S.C. §
1983 for certain violations of her constitutional rights.

In

relevant part, § 1983 provides:
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 proceedings for
redress . . . .
Thus, to state a claim for relief under § 1983, a plaintiff must
allege two elements: 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).
The determination of whether private parties or
associations have acted under color of law is a fact-specific
inquiry, which is a threshold issue for § 1983 liability.
5

Groman v. Twp. of Manalapan, 47 F.3d 628, 638-39 (3d Cir. 1995)
(citing Lugar v. Edmondson Oil Co., 457 U.S. 922, 939 (1982)).
Under this inquiry, making statements to police about suspected
criminal behavior does not convert a private individual into a
state actor for purposes of § 1983 liability.

Palmerini v.

Burgos, No. 10-cv-210 (FLW), 2011 WL 3625104, at *6 (D.N.J. Aug.
15, 2011); see also Bailey v. Harleysville Nat’l Bank & Trust,
188 Fed.Appx. 66, 68 (3d Cir. July 18, 2006) (“However, in the
absence of a conspiracy with the police to violate
constitutional rights, a business’s summons of a police officer
to deal with a possible disturbance, does not make it a state
actor.”).

Similarly, the victim of a crime who subsequently

reports the crime to police is not an individual acting under
color of state law.

Warner v. Sweeney, No. 05-cv-2871 (JBS),

2005 WL 2257925, at *3 (D.N.J. Sept. 12, 2005).
With respect to CVS and Mitchem, a private business and
private citizen, there are no allegations that either acted
under color of state law.

Williams alleges that Mitchem, with

the support of her supervisor, reported two shoplifting
incidents on August 20 and 21, 2010, to the police.
29-30.)

(Compl. ¶¶

Further, Williams alleges that both Mitchem and CVS

“supported” the legal process initiated against Williams for
shoplifting, in spite of the fact that Williams “did not commit

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the actual crime.” 2

(Id. at ¶¶ 27-28.)

Finally, Williams

alleges that Mitchem and CVS had either actual knowledge, or
should have had actual knowledge, that Williams was not
responsible for any shoplifting incidents at CVS on August 20 or
21.

(Id. at ¶¶ 41-42.)

In doing so, Williams has simply

alleged that Mitchem reported a crime to police with the
knowledge of her CVS supervisors.

Such actions are nothing more

than the report of a crime and therefore do not constitute state
action sufficient for imposing liability under § 1983 on Mitchem
or CVS.

As a result, the Court will dismiss Count I with

respect to CVS and Mitchem.

B.
Count II asserts eight state law torts, encompassed as
“Supplemental State Claims.”

(Compl. ¶ 82.)

The Court first

addresses the claim of malicious prosecution, next addresses the
failure to intervene, and finally turns to claims of assault,
battery, false arrest, false imprisonment, intentional
infliction of emotional distress, and abuse of process.

2 Williams’s Complaint contains allegations that “all defendants were acting
in concert and conspiracy,” and that both CVS and Mitchem “supported, and did
not oppose the legal process instituted against [Williams.]” (Compl. ¶¶ 11,
27-28.) These statements do not contain any factual allegations but are in
fact legal conclusions cast in the form of such allegations, and the Court
therefore does not consider them. See Morse, 132 F.3d at 906.

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1.
Malicious prosecution is an avowedly disfavored cause of
action.

Brunson v. Affinity Fed. Credit Union, 972 A.2d 1112,

1119 (N.J. 2009); Land v. Helmer, 843 F.Supp.2d 547, 550 (D.N.J.
2012).

To succeed, a plaintiff must demonstrate that (1) the

previous action was initiated by the defendant, (2) the action
was motivated by malice, (3) there was an absence of probable
cause, and (4) the action was terminated favorably for the
plaintiff.

Land, 843 F.Supp.2d at 550.

“It is beyond doubt

that ‘[t]he plaintiff must establish each element [and that
u]pon the failure to prove any one, the cause must fail.’”
Brunson, 972 A.2d at 1119 (alterations in original) (quoting
Lind v. Schmid, 337 A.2d 365, 368 (N.J. 1975)).
To demonstrate that a defendant initiated an action against
the plaintiff, New Jersey law requires proof that the defendant
took an active part in “instigating or encouraging the
prosecution,” assisted another individual in the prosecution, or
ratified and otherwise aided the prosecution.

Epperson v. Wal-

Mart Stores, Inc., 862 A.2d 1156, 1161 (N.J. Super. Ct. App.
Div. 2004) (quoting W. PAGE KEETON
OF

ET AL.,

TORTS § 119, at 872 (5th ed. 1984)).

PROSSER

AND

KEETON

ON THE

LAW

While this determination

depends upon the exact actions of a defendant under the
circumstances, initiation of an action requires more than the
simple report of a crime.

See, e.g., Brenner v. Twp. Of
8

Moorestown, No. 09-cv-219 (RBK), 2011 WL 1882394, at *15-16
(D.N.J. May 17, 2011) (calling 9-1-1 does not constitute
initiation of a criminal proceeding); Afiriyie v. Bank of Am.,
No. L-1987-08, 2013 WL 451895, at *17 (N.J. Super. Ct. App. Div.
Feb. 7, 2013) (per curiam) (holding that defendant initiated
malicious prosecution where she was willing to sign a criminal
complaint and police testified that they arrested and charged
plaintiff “based upon [defendant’s] allegation”).
Because Williams has failed to allege that CVS and Mitchem
initiated the criminal proceeding against her, Williams has
failed to state a claim for malicious prosecution against these
Defendants.

Williams alleges that Mitchem, “apparently” with

the approval of her supervisor at CVS, reported a case of
shoplifting to Officer Stadnick.

(Compl. ¶ 29.)

Williams

alleges no other facts regarding CVS and Mitchem’s involvement
in the charges that Williams faced. 3

Again, Williams only

alleges that Mitchem reported a crime, which is insufficient to
constitute the initiation of a legal process for the tort of

3

There is no allegation that Mitchem (or anyone else at CVS) provided
Stadnick with Williams’s name, identity, or a photograph connecting Williams
to the crime. (See Compl. ¶ 29.) Indeed, the Complaint contains no
information asserting that Mitchem or CVS even connected Williams with the
shoplifting incidents. (Id. at ¶¶ 31-32.) Rather, Williams simply asserts
that Mitchem reported the shoplifting incidents to police, and Stadnick,
after comparing a DMV photograph of Williams to the video, reached the
erroneous conclusion that Williams appeared in the video. (Id. at ¶¶ 29-32.)

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malicious prosecution.

Williams’s claim for malicious

prosecution against CVS and Mitchem must therefore be dismissed.

2.
Williams alleges that CVS and Mitchem’s acts and conduct
constitute a “failure to intervene under the laws of the State
of New Jersey.”

(Compl. ¶ 82.)

In some jurisdictions, a

defendant may be liable for malicious prosecution if, after the
discovery that no probable cause supporting prosecution exists,
the defendant fails to intervene or sever his connection with
the prosecution.

E.g., Simmons v. Telecom Credit Union, 442

N.W.2d 739, 742 (Mich. Ct. App. 1989); see also 52 AM. JUR. 2D
Malicious Prosecution § 26 (2013).

Regardless of whether New

Jersey recognizes a failure to intervene as grounds giving rise
to malicious prosecution, Williams has failed to demonstrate
that CVS and Mitchem engaged in malicious prosecution, as
Williams alleges nothing more than that Mitchem reported a
crime.

(Compl. ¶ 29.)

As a result, CVS and Mitchem are

entitled to dismissal of the failure to intervene claim.

3.
New Jersey law imposes liability for the common law tort of
assault if “(a) he acts intending to cause a harmful or
offensive contact with the person of the other or a third
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person, or an imminent apprehension of such a contact, and (b)
the other is thereby put in such imminent apprehension.”

Leang

v. Jersey City Bd. of Educ., 969 A.2d 1097, 1117 (N.J. 2009)
(quoting Wigginton v. Servidio, 734 A.2d 798, 806 (N.J. Super.
Ct. App. Div. 1999)).

The tort of battery “rests upon a non-

consensual touching.”

Leang, 969 A.2d at 1117 (citing Perna v.

Pirozzi, 457 A.2d 431, 439 (N.J. 1983)).

Williams fails to

allege any physical contact, or apprehension of physical
contact, between Mitchem, CVS, and Williams.

Mitchem and CVS

are therefore entitled to dismissal of Williams’s assault and
battery claims.
For similar reasons, Williams’s claims of false arrest and
false imprisonment fail.

“A basis for a suit for false arrest

arises where the aggrieved party is arrested without legal
authority, as where he is arrested pursuant to process that is
void.”

Mesgelski v. Oraboni, 748 A.2d 1130, 1138 (N.J. Super.

Ct. App. Div. 2000) (citing Fair Oaks Hosp. v. Pocrass, 628 A.2d
829, 836-37 (N.J. Super. Ct. Law Div. 1993)).

“False

imprisonment is the constraint of the person without legal
justification.”

Leang, 969 A.2d at 1117 (quoting Mesgelski, 748

A.2d at 1138) (internal quotation mark omitted).

The tort of

false imprisonment has two elements: an arrest or detention of a
person against their will, and a lack of proper legal authority
or legal justification.

Leang, 969 A.2d at 1117.
11

Williams’s

Complaint contains no allegations regarding any detention or
constraint imposed by either Mitchem or CVS; rather, the only
reference to an arrest appears when Williams was arrested by an
unidentified police officer.

(Compl. ¶¶ 12-13.)

Because

Williams fails to allege any facts supporting claims of false
arrest and false imprisonment as to Mitchem and CVS, these
claims against Mitchem and CVS must be dismissed.
The common law cause of action for intentional infliction
of emotional distress requires the plaintiff to establish
“intentional and outrageous conduct by the defendant, proximate
cause, and distress that is severe.”

Tarr v. Ciasulli, 853 A.2d

921, 924 (N.J. 2004) (quoting Buckley v. Trenton Saving Fund
Soc’y, 544 A.2d 857, 863 (N.J. 1988)).

The requisite level of

emotional distress to sustain a claim for intentional infliction
of emotional distress is distress “so severe that no reasonable
person could be expected to endure it.”
1115.

Leang, 969 A.2d at

To reach this threshold, the plaintiff need not suffer

physical injury, but the distress must be nonetheless severe;
thus, a combination of symptoms including the loss of sleep,
aggravation, embarrassment, and embarrassment in front of one’s
children are still insufficient to be “so severe that no
reasonable [person] could be expected to endure it.”
544 A.2d at 864.

12

Buckley,

Though Williams alleges she was “greatly embarrassed” by
her arrest and that her twelve year-old nephew was present for
the arrest, she has failed to describe any other symptoms
resulting from emotional distress.

(Compl. ¶¶ 73-74.)

These

two allegations, as the only symptoms suffered by Williams, fail
to reach the threshold of severe distress required to state a
claim for intentional infliction of emotional distress.

Mitchem

and CVS are therefore entitled to dismissal of Williams’s claim
of intentional infliction of emotional distress.
To state a claim for abuse of process, a plaintiff must
show “(1) an ulterior motive and (2) some further act after an
issuance of process representing the perversion of the
legitimate use of process.”

Stolinski v. Pennypacker, 772

F.Supp.2d 626, 644 (D.N.J. 2011) (quoting Mosley v. Del. River
Port Auth., No. 99-cv-4147 (JBS), 2000 WL 1534743, at *9 (D.N.J.
Aug. 7, 2000)); Tedards v. Auty, 557 A.2d 1030, 1035 (N.J.
Super. Ct. App. Div. 1989).

“The typical abuse of process claim

involves leveraging some attachment process or complaint in
order to achieve some other end.”
645.

Stolinski, 772 F.Supp.2d at

While Williams alleges that Mitchem’s report of

shoplifting initiated legal process against her, Williams has
failed to allege any subsequent acts following the issuance of
that process.

Moreover, Williams has not alleged any ulterior

motives held by CVS or Mitchem.

Williams has therefore failed
13

to allege a claim for abuse of process against Mitchem and CVS,
and they are entitled to dismissal of this claim.

IV.
In light of the foregoing, the Defendants’ Motion to
Dismiss is granted.

An appropriate order accompanies this

Opinion.

Date:

11-22-2013

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

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