EL v. WEHLING et al

Filing 64

OPINION. Signed by Chief Judge Jerome B. Simandle on 4/23/2015. (TH, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

AEMER K. C. EL,

HONORABLE JEROME B. SIMANDLE
Plaintiff,
Civil Action
No. 12-7750 (JBS/JS)

v.
LYNN A. WEHLING et al.,

OPINION
Defendants.

APPEARANCES:
Mr. Aemer K. C. El
25 Maplewick Lane
Willingboro, NJ 08046
Plaintiff, pro se
SIMANDLE, Chief Judge:
INTRODUCTION
In this action, pro se Plaintiff Aemer K. C. El’s Fifth
Amended Complaint consists of 49 “counts” sprawled across 537
pages. [Docket Item 54.]1 Plaintiff’s Fifth Amended Complaint is

1

On January 30, 2015, the Court granted Plaintiff’s application
to proceed in forma pauperis and directed the Clerk of Court to
file Plaintiff’s Fifth Amended Complaint received on August 21,
2014. [Docket Item 59.] Since the filing of his Fifth Amended
Complaint, Plaintiff has submitted, on three separate occasions,
a series of documents identified as “exhibits.” [Docket Items
61-63.] The most recent of these submissions, received by the
Clerk’s Office on April 21, 2015, after this opinion was nearly
complete, lists 70 exhibits, totaling more than 175 pages. The
Court will not consider these belated submissions as part of its
obligation to screen the Fifth Amended Complaint under 28 U.S.C.
§ 1915(e)(2). Plaintiff did not explicitly or implicitly rely on
these so-called exhibits in his 537-page complaint and he
submitted them nearly eight months after the Clerk’s Office

nearly unprecedented in its prolixity, redundancy, and
discursiveness. It is full of rhetoric and material that is not
pertinent to the cognizable causes of action. Nevertheless, it
appears that the crux of Plaintiff’s Complaint is an incident in
which he was arrested by members of the Cumberland County Police
Department, the City of Vineland Police Department, and the New
Jersey State Police and charged with various offenses including
weapons and drug offenses. Because Plaintiff brings this action
in forma pauperis, the Court has an obligation to screen the

received his Fifth Amended Complaint and nearly three months
after this Court directed it to be filed. Plaintiff’s continual
submissions only exacerbate the confusion caused by his prolix
and voluminous complaint and compound his violation of Rule 8,
Fed. R. Civ. P., which requires “a short and plain statement of
the claim showing that the pleader is entitled to relief.”
Binsack v. Lackawanna Cnty. Prison, 438 F. App’x 158, 160 (3d
Cir. 2011) (finding a violation of Rule 8 where plaintiff’s
complaint and exhibits of almost 200 pages were “so excessively
voluminous and unfocused as to be unintelligible”). When
confronted with a similar situation in which a pro se
plaintiff’s fourth amended complaint consisted of over 1,250
pages, including 1,000 pages of exhibits, this Court noted that
“[p]laintiffs are not permitted ‘to incorporate an endless
series of external documents into a complaint simply ‘by
reference’ to them, as this would lead to an impossible task for
defendants in filing their answers, and for courts in reviewing
the sufficiency of complaints.’” Rogers v. Morrice, Civ. 12-7910
(JBS), 2013 WL 5674349, at *3 (D.N.J. Oct. 16, 2013) (quoting In
re Schering Plough Corp. Intron/Temodar Consumer Class Action,
678 F.3d 235, 251 (3d Cir. 2012)). Such reasoning is even more
persuasive in the present case, where Plaintiff has submitted
hundreds of pages of documents months after submitting his
complaint, which are not even mentioned therein. Therefore, the
Court will disregard these tardy and voluminous submissions. In
doing so, the Court makes no determination as to their ultimate
relevance or admissibility.
2

Complaint under 28 U.S.C. § 1915(e)(2). For the reasons
discussed below the Court will dismiss in part Plaintiff’s Fifth
Amended Complaint. The Court will permit Plaintiff’s claims for
unlawful search and seizure, excessive force, false arrest, and
malicious prosecution to proceed at this time.
BACKGROUND
A.

Facts

Plaintiff’s Fifth Amended Complaint is extremely lengthy
and disjointed, rendering the Court’s task in gleaning the
relevant facts rather difficult. The Court recounts, and accepts
as true for the instant purposes, the following factual
allegations, which appear throughout the voluminous Complaint
interspersed with repeated, and frequently incoherent,
digressions on the history of the Moors, the legacy of slavery
in the United States, and contemporary drug policy.
On or about April 21, 2010, members of the Cumberland
County Narcotics Task Force, the Cumberland County Prosecutor’s
Office, the City of Vineland Police, T.E.A.M., and New Jersey
State Police “forcibly gained entry into a home” where Plaintiff
was a guest. (5th Am. Compl. [Docket Item 54] ¶ 85.) Plaintiff
awoke to loud noises and yelling and found “several individuals
dressed in black pointing [MP-5 submachine guns and P220’s] at
his head, back and body.” (Id.) At no point did any of the
individuals identify themselves as a police officer. (Id. ¶ 86.)
3

The officers “removed the plaintiff from the bed, conducted a
search of his person,” and took him to the rear of the property
where he was held by “the Vineland and Cumberland County
Officers.” (Id.) Sergeant Steven O’Neill, Jr. searched Plaintiff
by using “his fingers to reach in private regions [anal and
genital] [sic] of the plaintiff’s body similar to how white
slavers would do to an African.” (Id.) When Plaintiff
complained, “O’Neil responded by pushing the handcuffed
Plaintiff into the wooden banister” and requiring Plaintiff to
sit with “extremely tight handcuffs for two to three hours while
the defendants searched the residence.” (Id.) While in police
custody, Lynn Wehling “without identifying herself[,] questioned
the plaintiff . . . for a social security number, name, address
and birth date.” (Id.) Plaintiff provided all but his social
security number. (Id.) Thereafter, Gamaliel Cruz searched the
vehicles on the property, “which were not listed as property to
be searched in the purported search warrant or affidavit,” and
found Plaintiff’s “Moorish Islamic Corporate I.D. and Travel
Document,” then turned it over to the Cumberland County
Narcotics Task Force. (Id. ¶ 87.)
Plaintiff alleges that the officers involved in the search
were purportedly investigating “an entirely different person,”
Scott T. McArthur, and the officers had a search warrant for
McArthur’s home. (Id. ¶ 88.) Plaintiff contends that he was
4

cooperative throughout the search, which ultimately failed to
yield any evidence of marijuana or contraband. (Id.)
Nevertheless, the officers kept Plaintiff handcuffed even though
he “posed no immediate threat” and “did not resist arrest.” (Id.
¶ 89.) In addition to having guns pointed at him and being
handcuffed too tightly for an extended period of time, Plaintiff
asserts that he was incarcerated without socks which could have
led to “foot fungus on his right foot and malnutrition.” (Id.)
It appears that Plaintiff was prosecuted in Vineland Municipal
Court. Plaintiff appeared before Judge Telsely on May 7, 2010,
represented by a public defender, Frank Amari. (Id. ¶¶ 89-90,
94.)
On or about September 18, 2012, in response to Plaintiff’s
discovery request, the Cumberland County Prosecutor’s Office
produced letters addressed to Plaintiff and the Vineland
Municipal Court. (Id. ¶ 90.) Plaintiff maintains that the
signature on the letter addressed to the Vineland Municipal
Court contains an improper or forged signature of Defendant
Jonathan M. Flynn. (Id. ¶ 90.)
Plaintiff alleges that the “CDR 2 Securities Forms styled
as Arrest Warrants created 4/21/10 [were] clearly un-signed by a
Judicial Officer,” but Defendant Accosta allegedly failed to
provide Plaintiff with these documents in discovery. (Id. ¶¶ 9192.) Plaintiff filed “several [m]otions invoking his Sixth
5

Amendment Rights Speedy [sic] trial . . . which were never
addressed until June 2013.” (Id. ¶ 93.) Plaintiff “under threat”
and duress, and in violation of his religion, appeared in court
on various dates in October and November, 2012. (Id. ¶ 93.)
On November 29, 2012, Plaintiff apparently arrived late for
his hearing after attempting to notify the court administrator,
Donna Buckman. (Id. ¶ 95.) Upon his arrival, Plaintiff met with
Mr. Amari in his office and Amari informed Plaintiff that he
would seek dismissal based on a lack of discovery. (Id.) When
Plaintiff returned to the courtroom, he was approached by two
individuals, identified in the Fifth Amended Complaint as John
Does 3 and 4, who were wearing “Vineland security shirts.” (Id.)
These individuals allegedly forced Plaintiff from his seat and
handcuffed him to the wall, stating that a bench warrant was
issued for his failure to appear. (Id.) John Doe 3 “then
presented the ultimatum that the only way Plaintiff would be
going home is if he ‘take a hit’ or pay the $1503.00 purported
Bench Warrant ‘Bail’ for failure to appear.” (Id.) Amari then
“worked out the process for the Plaintiff to accept a plea of
guilty to a municipal ordinance ‘Any Acts against the Peace of
the City of Vineland.’” (Id.)
At some point, Plaintiff “motioned the Court to reopen the
matter because the plea was accepted under threat, duress and
coercion” and because he was never charged with a violation of
6

the municipal ordinance to which he pleaded guilty. (Id.) Around
the same time, Plaintiff “filed Tort Claims with the State of
New Jersey and the Cumberland County Narcotics Task Force
Attorney Diana V. Carrig.” (Id.) According to Plaintiff, the
motion to reopen “was heard and granted on” April 11, 2013.
(Id.)
On that same date, Plaintiff “submitted an OPRA request to
the Municipal Court and obtained copies of the CDR 2 Securities
forms styled as Arrest Warrants . . . and discovered more false
statements and the fact that the documents had no verified
findings by a Judicial Officer in accordance with the Rules
Governing the Courts of New Jersey.” (Id.)
Plaintiff appeared at a hearing on May 1, 2013 and Judge
Kasper required “the Municipal Prosecutor and Office to turn
over the missing discovery materials within a specific time
period.” (Id. ¶ 96.) Defendants Accosta, Duffy, and the Vineland
Municipal Prosecutor’s Office did not provide the materials
within the specified timeframe. (Id.) On June 20, 2013, Judge
North dismissed the action “where the Plaintiff was compelled to
act as a Defendant.” (Id. ¶ 104.) Presumably, this is a
reference to the charges against him in Vineland Municipal Court
arising from the April 21, 2010 search.
Plaintiff attempted to file citizen complaints pursuant to
N.J. Court Rule 7:2 against Defendants Wehling, Accosta, Cruz,
7

Duffy, and O’Neill. (Id. ¶¶ 97-100.) Plaintiff appears to
contend that Judge Kasper found probable cause against Wehling
for “crimes in violation of N.J.S.A. 2C:13-8 (Human
Trafficking), N.J.S.A. 2C:30-6 (Crime of Official Deprivation of
Civil Rights), N.J.S.A 2C:28-2 (False Swearing), N.J.S.A. 2C:284 (False Reports) and 18 U.S.C. 1581 (Peonage) the federal human
trafficking act.” (Id. ¶ 97.) The Vineland Municipal Court did
not set a hearing date for Wehling, nor does it appear that the
Vineland Court “provided the plaintiff with determinations”
regarding Accosta, Duffy, and O’Neill. (Id. ¶¶ 100-01.)
Plaintiff alleges that “the City of Vineland Municipal Court,
Heim, Marabel, and Montanez all abused their discretion, offices
and authority.” (Id. ¶ 101.)
Plaintiff asserts that a case against Wehling proceeded in
Cape May County in May, 2013 involving a complaint by “Cornell
Dixon”2 involving an allegation of sexual assault. (Id. ¶ 102.)3
It is unclear from Plaintiff’s pleadings what happened
thereafter, although the Fifth Amended Complaint refers to a

2

It is apparent that Plaintiff was offended by Defendants’
reference to him as Cornell Dixon because it is “incidental to
slavery with regards to dehumanizing treatment and practice of
depriving persons of African descent of their dignity, names,
religion and heritage (national origin, religious identities,
cultural nationality and ethnicity).” (Id. ¶ 103.)
3 It is unclear whether this case against Wehling in Cape May
County is the same as the “Internal Affairs Investigation”
discussed below.
8

hearing on his motion to reopen “State v. Wehling” before Judge
Wild in the Superior Court of Cape May County on or about May 5,
2014. (Id. ¶ 125.) Plaintiff’s motion to reopen was denied. (Id.
¶ 127.)
On or about June 24, 2013, Plaintiff participated in an
“Internal Affairs Investigation conducted by the defendant David
Hogan of the Cape May County Prosecutor’s Office.” (Id. ¶ 106.)
Plaintiff contends that on or about August 8, 2013, Hogan
prepared a false report stating that “The criminal complaints
[against the three occupants of the home searched on April 21,
2010, Scott and Alvin McArthur and Cornell Dixon] were approved
telephonically by Superior Court Judge Becker but Wehling made a
clerical error and signed Becker’s name on the line below where
it belonged.” (Id. ¶ 110.) According to Plaintiff, Hogan’s
report also included the following: “This investigation
determined that Detective Lynn Wehling should be Exonerated of
the allegation of False Arrest and Civil Rights Violations
brought by Cornell Dixon. The arrest was lawful and proper with
a clerical error giving Mr. Dixon an opportunity to file a false
complaint.” (Id. ¶ 110) (emphasis in original). Plaintiff
disputes Hogan’s characterization of Wehling’s testimony during

9

the investigation.4 (Id.) Plaintiff also takes offense at Hogan’s
identification of Plaintiff as “Black” or “B/M.” (Id.)5
Plaintiff also filed a complaint with the New Jersey Office
of the Attorney General Division of Civil Rights, which was not
pursued because the conduct about which Plaintiff complained was
“not covered under the provisions of the LAD or FLA.” (Id. ¶
109.) Additionally, he appears to have sought compensation from
the New Jersey Division of Criminal Justice Victims Compensation
Office, which was denied due to pending charges against “the
police officer.” (Id. ¶ 122.) It is not clear to whom this
refers.
It appears that Plaintiff on or about June 24, 2014, “resubmitted certifications of probable cause . . . alleging
‘Theft’, ‘Human Trafficking’, ‘Bias Intimidation’, Crime of
Official Deprivation of Civil Rights to the Municipal Court,”
which were allegedly ignored. (Id. ¶¶ 140-41.) Plaintiff alleges
that the “Defendant City, County and State incidental to slavery

4

Moreover, Plaintiff contends that Defendant O’Neill “provided
false information to the Defendant David Hogan at the Cape May
County Prosecutor’s Office as well.” (Id. ¶ 120.) It is unclear
whether O’Neill made these allegedly false statements as part of
the same “Internal Affairs Investigation” discussed above or
some other proceeding.
5 It is appears that Plaintiff subsequently filed a complaint
against Hogan with the New Jersey Office of the Attorney General
“Corruption and Government Fraud Bureau,” which resulted in no
investigation or action against Hogan according to Plaintiff’s
pleading. (Id. ¶ 138.)
10

retain a persistent widespread custom or practice of protecting
Public Servants, Employees and Officers from citizen or criminal
complaints filed by persons of African descent, that said
conduct constitutes old fashioned Jim Crow and Slavery customs
that historically have been in effect in the North and South.”
(Id. ¶ 143.)
B.

Procedural history

Plaintiff initially filed this action on December 18, 2012
and it was assigned to the Honorable Joseph E. Irenas. [Docket
Item 1.] By order entered January 7, 2013, Judge Irenas
dismissed Plaintiff’s fifty-eight page complaint for failure to
comply with Rule 8(a)(2), Fed. R. Civ. P. [Docket Item 3.]
Plaintiff on three occasions thereafter sought leave to file an
amended complaint, which Judge Irenas denied for failure to cure
the deficiencies in his initial complaint and for futility.
[Docket Items 10, 16, & 20.] On August 13, 2013, Plaintiff filed
a motion to reopen and for leave to file a Fourth Amended
Complaint [Docket Item 21], which Judge Irenas also denied.
[Docket Item 24.] Judge Irenas prohibited Plaintiff from seeking
further leave to amend. Plaintiff appealed and the Third Circuit
addressed Plaintiff’s Complaint submitted in August, 2013 which
consisted of seven counts against 25 named defendants.6 The Court

6

Although there is significant overlap between the defendants
named in Plaintiff’s previous complaints and his Fifth Amended
11

of Appeals disagreed with Judge Irenas’ determination that
Plaintiff’s August, 2013 complaint failed to satisfy Rule
8(a)(2). The Court of Appeals found that Plaintiff “asserted
seven claims of malicious prosecution and conspiracy to commit
civil rights violations,” as well as “claims of unlawful search
and seizure and illegal arrest.” El v. Wehling, 548 F. App’x
750, 752 (3d Cir. 2013). Upon remand, Plaintiff was permitted to
file a Fourth Amended Complaint. [Docket Item 31.]
Plaintiff subsequently filed a motion for service of
summons by the U.S. Marshals Service [Docket Item 32], a motion
for recusal [Docket Item 33], and a motion for relief and for
writ of mandamus [Docket Item 36]. Judge Irenas denied all three
motions. [Docket Items 37, 38, & 39.] Plaintiff then filed three
motions to vacate Judge Irenas’ denial orders [Docket Items 40,
41, & 42] simultaneously with three notices of appeal [Docket
Items 43, 44, 45.] Judge Irenas then entered an order of recusal
and this case was reassigned to the undersigned. [Docket Items
48 & 49.] By Order entered December 24, 2014 [Docket Item 55],
this Court granted Plaintiff’s “motion to vacate order denying
request for service of summons of civil rights complaint”
[Docket Item 40] and denied Plaintiff’s “motion to vacate order

Complaint, the defendants are not identical. Some defendants
have been added and others dropped.
12

dismissing petition for mandamus” [Docket Item 41].7 The Court
directed Plaintiff to submit an updated application to proceed
without prepayment of fees. Upon reconsideration, the Court
permitted Plaintiff to proceed in forma pauperis based on his
application submitted in April, 2014. [Docket Item 59.] The
Court directed the Clerk to file Plaintiff’s Fifth Amended
Complaint, but did not permit the service of summonses pending
screening of Plaintiff’s Fifth Amended Complaint pursuant to 28
U.S.C. § 1915(e)(2)(B), which now follows.
STANDARD OF REVIEW
Section 1915(e)(2)(B) requires the Court to screen
Plaintiff’s Complaint and to dismiss any frivolous or malicious
claim, any claim that fails to state a ground upon which relief
may be granted, and/or any claim that seeks monetary damages
from a defendant with immunity. See 28 U.S.C. §
1915(e)(2)(B)(i)-(iii); Neitzke v. Williams, 490 U.S. 319, 325
(1989).
In determining the sufficiency of a pro se complaint, the
Court must liberally construe the allegations in favor of the
plaintiff, and generally accepts as true all factual
allegations. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007).
The Court may, however, freely ignore the plaintiff’s “legal

7

The Court also dismissed as moot Plaintiff’s “motion to vacate
order dismissing affidavit to recuse” [Docket Item 42].
13

conclusions” and need not credit a pleading that offers little
more than “labels and conclusions or a formulaic recitation of
the elements of a cause of action[.]” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quotation omitted). Rather, the
plaintiff’s factual allegations must be facially sufficient to
demonstrate a “plausible” right to relief, by pleading factual
content sufficient for the court “to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)).
DISCUSSION
Plaintiff’s Fifth Amended Complaint contains 49 “counts”
and purports to assert claims as varied as “Unlawful Search and
Seizure,” securities fraud, sexual assault, extortion, and human
trafficking. (Id. ¶ 1.)8 The 537-page Fifth Amended Complaint

8

The Fifth Amended Complaint begins with the following:
Relator hereby asserts the following claims . . . pursuant to
several violations of Common law, Admiralty law, Substantial
Burden of Free Exercise of Religion-Obstruction of Free
Exercise
of
Religion,
Unlawful
Search
and
Seizure,
Denationalization-Cruel and Unusual Punishment, Deprivation
of Equal Protection and Equal Justice, False Arrestimprisonment, false light, miscellaneous frauds (Fraud upon
the
Court,
Securities
Fraud,
Fraudulent
concealment,
Fraudulent inducement-common law and Admiralty torts),
conspiracy to interfere with civil rights, civil conspiracy,
joint enterprise, conspiracy, refusing or neglecting to
prevent, failure to train, failure to supervise, State
Created Danger, willful and official misconduct, malicious
prosecution, malicious abuse of process, abuse of legal
process, assault, battery, sexual assault, extortion,
14

describes a variety of conduct by the 40 named defendants,
numerous fictitious defendants, and others who are unnamed in
the caption or in Plaintiff’s recitation of the defendants, but
are referred to as defendants later in the complaint. It
appears, however, that all of Plaintiff’s claims stem from a
single incident on April 21, 2010 after which Plaintiff faced
criminal prosecution in Vineland Municipal Court.
To assess whether Plaintiff has stated any viable claims
upon which relief may be granted, the Court has distilled
Plaintiff’s voluminous Fifth Amended Complaint to the following
two categories of claims: claims pursuant to 42 U.S.C. § 1983
and claims under New Jersey law.9

intentional infliction of emotional distress, negligence,
defamation of character (libel), human trafficking (Title 18,
Chapter 77 and N.J.S.A. 2C:13-8); fraud-extortion (18 U.S.C.
Chapter 26); i.e. deprivation of Civil Rights, Civil Rights
Act of 1866, 14 Stat. 27-30, 42 U.S.C. 1981-1988.
(5th Am. Compl. ¶ 1.)
9 The Court notes at the outset that Plaintiff refers in
Paragraph 46 of the Fifth Amended Complaint to the matter of El
Aemer El Mujaddid v. City of Vineland, CAM-L-004550-13, Superior
Court of New Jersey, Law Division, Camden. (Id. ¶ 46.) It
appears that this state court litigation may involve claims
arising from the same conduct giving rise to the instant matter.
Because the Court is unable to determine the precise nature and
status of Plaintiff’s state court case, which may remain
pending, the Court will not dismiss this action based on res
judicata or abstention grounds at this time.
15

A.

42 U.S.C. § 198310

The majority of Plaintiff’s claims appear to arise under 42
U.S.C. § 1983 including claims for excessive force, false
arrest, malicious prosecution, as well as claims for violations
of his constitutional rights under the First, Fourth, Eight, and
Fourteenth Amendments. Plaintiff also attempts to assert claims
for municipal liability under § 1983 against Cumberland County
and the City of Vineland.
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 . . . .
42 U.S.C. § 1983. To state a claim for relief under section
1983, a plaintiff must allege: 1) the violation of a right
secured by the Constitution or laws of the United States and 2)
that the alleged deprivation was committed or caused by a person

10

Plaintiff also purports to assert claims under Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S.
388 (1971). In Bivens, the Supreme Court held that one is
entitled to recover monetary damages for injuries suffered as a
result of federal officials’ violations of the Fourth Amendment.
The Supreme Court thus created a federal counterpart to the
remedy created by 42 U.S.C. § 1983. In the present case, Bivens
is inapplicable because Plaintiff only asserts claims against
persons acting under state, not federal law. Therefore, to the
extent Plaintiff seeks to assert a Bivens claim, such claim will
be dismissed as futile.
16

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).
The caption of the Fifth Amended Complaint indicates that
Plaintiff seeks to assert claims against the individual
defendants in both their official and individual capacities.
The Supreme Court has made clear that official capacity
suits are simply an alternative to “pleading an action against
an entity of which an officer is an agent.” Kentucky v. Graham,
473 U.S. 159, 166 (1985) (quoting Monell v. New York City Dept.
of Social Services, 436 U.S. 658, 690, n.55 1978)). “Suits
against state officials in their official capacity therefore
should be treated as suits against the State.” Hafer v. Melo,
502 U.S. 21, 25 (1991) (citing Graham, 473 U.S. at 166). In
contrast, personal capacity suits “seek to impose individual
liability upon a government officer for actions taken under
color of state law.” Id. “Thus, ‘[o]n the merits, to establish
personal liability in a § 1983 action, it is enough to show that
the official, acting under color of state law, caused the
deprivation of a federal right.’” Id. (quoting Graham, 473 U.S.
at 166). An official capacity action requires more because a
governmental entity is liable under section 1983 only when
official policy is “the moving force of the constitutional
17

violation.” Polk Cnty. v. Dodson, 454 U.S. 312, 326 (1981)
(quoting Monell, 436 U.S. at 694).
In the present case, although Plaintiff seeks to assert
claims against the individually named defendants in their
official and individual capacities, the Fifth Amended Complaint
is devoid of facts supporting claims against any of the
defendants in their official capacities. Plaintiff fails provide
specific allegations that the purported misconduct was the
result of official policy. Instead, Plaintiff’s Fifth Amended
Complaint only contains conclusory statements regarding official
policies of racial discrimination and racial profiling. For
example, “Relator alleges that incidental to slavery it is the
defendant’s policy to deprive the freedom, liberty and property
of persons of African descent for possession of CDS when their
presence is on premises which CDS is alleged to be found
irrespective of where the CDS is found and irrespective of one
person claiming ownership or responsibility.” (Id. ¶ 219.)
Plaintiff merely labels his allegations of misconduct against
various individuals as the product of official policy or custom.
Such conclusory allegations are insufficient to support an
official capacity claim against any defendant.11

11

Likewise, Plaintiff’s claims against the New Jersey State
Police fail because “the state and arms of the state may not be
sued under § 1983.” Smith v. New Jersey, 908 F. Supp. 2d 560,
563 (D.N.J. 2012); see also Will v. Michigan Dep’t of State
18

1.

Unlawful search and seizure

Plaintiff alleges that he was subject to an
unconstitutional search and seizure on April 21, 2010 when
officers searched the house where he was a guest without a valid
arrest warrant and without probable cause. Moreover, Plaintiff
contends that he was subject to an unreasonable strip search by
Officer O’Neill before being transported to the station. The
Fifth Amended Complaint contains sufficient factual allegations
for these claims to proceed at this stage.
The Fourth Amendment provides: “The right of the people to
be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and
no Warrants shall issue, but upon probable cause, supported by
Oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.” U.S. Const.
amend. IV. “To be constitutionally sound, search warrants must
state probable cause and ‘particularly describe the place to be
searched, and the persons or things to be seized.’” Bartholomew

Police, 491 U.S. 58, 64 (1989). Similarly, Plaintiff’s claims
against the Cumberland County Prosecutor’s Office are barred
because it is not a person amenable to suit under § 1983 and
sovereign immunity. See Landi v. Borough of Seaside Park, Civ.
07-5319 (FLW), 2009 WL 606141, at *5 (D.N.J. Mar. 9, 2009)
(dismissing claims against county prosecutor’s office based on
sovereign immunity).
19

v. Commonwealth of Pennsylvania, 221 F.3d 425, 428 (3d Cir.
2000) (quoting U.S. Const. amend. IV).
“It is a basic principle of Fourth Amendment law that
searches and seizures inside a home without a warrant are
presumptively unreasonable.” Payton v. New York, 445 U.S. 573,
586 (1980) (internal quotation omitted). Although there are
several exceptions to the warrant requirement, a warrantless
search generally must be supported by probable cause. Couden v.
Duffy, 446 F.3d 483, 496 (3d Cir. 2006). Similarly, in general,
“a seizure is reasonable only where it is justified by a warrant
or probable cause.” Id. at 494.
In the present case, Plaintiff alleges that the April 21,
2010 search and seizure occurred without probable cause.
Notably, the principal allegation in the Fifth Amended Complaint
is that Wehling falsified and/or forged the search or arrest
warrant which purportedly justified the April 21 search. In
addition, Plaintiff contends that he was arrested “because of
his mere propinquity to Universal S. A. Bey [a.k.a. Scott
McArthur]” and due to his “mere presence on or in a premises
where CDS is found.” (5th Am. Compl. ¶ 1311-12.) These
allegations are sufficient for Plaintiff’s claims against those
allegedly involved in the search and arrest to proceed past the
screening stage. See Castro v. Perth Amboy Police Dep’t, Civ.
13-3376 (MAS), 2014 WL 229301, at *3 (D.N.J. Jan. 21, 2014)
20

(allowing unlawful search claim to proceed where plaintiff
alleged that defendants entered his residence with consent or
valid warrant, conducted search, and destroyed plaintiff’s
property); Moore v. Dow, Civ. 11-281, 2011 WL 2182115, at *8
(D.N.J. June 2, 2011) (allowing unlawful search and seizure
claim to proceed past sua sponte dismissal where plaintiff
claimed the search warrant was not signed by a magistrate, but
was forged by the defendant).
Having undertaken the arduous task of combing through the
537-page Complaint to determine who was involved in the April
21, 2010 search, the Court will permit Plaintiff’s unlawful
search and seizure claim to proceed against certain defendants.12
Plaintiff’s Complaint names a laundry list of defendants who
were allegedly involved in the search including members of the

12

Although the Court will permit Plaintiff’s claim based on an
unlawful search and seizure to proceed at this time, the Court
notes that Plaintiff may lack standing to assert a claim based
on an unlawful search. The Supreme Court has for purposes of
standing distinguished between overnight guests and persons
merely present at the time of the challenged search. See
Minnesota v. Carter, 525 U.S. 83, 90 (1998) (“[A]n overnight
guest in a home may claim the protection of the Fourth
Amendment, but one who is merely present with the consent of the
householder may not.”). See also United States v. Mosley, 454
F.3d 249, 259 (3d Cir. 2006). Here, Plaintiff alleges that he
was a guest in Mr. McArthur’s home and he was sleeping when the
allegedly improper search occurred. A generous reading of
Plaintiff’s pleading suggests that he was an overnight guest as
opposed to a mere visitor to Mr. McArthur’s home. Defendants, of
course, are free to challenge this characterization in due
course.
21

Cumberland County Police Department, the City of Vineland Police
Department, and the New Jersey State Police. However, the Court
will only permit Plaintiff’s search and seizure claim to proceed
against those defendants for whom Plaintiff provides a factual
basis for such a claim.13 Although Plaintiff states the
involvement of the Cumberland County Narcotics Task Force, the
Cumberland County Prosecutor’s Office, the City of Vineland
Police and T.E.A.M., and the New Jersey State Police, claims
against these entities cannot proceed on a theory of respondeat
superior. As such, Plaintiff’s claim premised on an unlawful
search and seizure may only proceed against the individuals
against whom Plaintiff alleges specific facts regarding their
conduct of the search and seizure at issue, namely Wehling,
O’Neill, Cruz, and Sirakides. (5th Am. Compl. ¶ 863.)1415

13

For example, Plaintiff asserts only vague and conclusory
allegations against Defendants McKinney, Erdman, Nate, Boland,
Tennant, Cappucio, Langfield, Innella, Parkinson, Rocap, and
Jacobs regarding their roles in the allegedly improper search
and seizure. The same is true of Defendants Bernard, Chopek,
Cervini, Mollik, Carella, Cavagnaro, Shadlinger, Ramos,
Candelario, and Patilucci.
14 Plaintiff lists Dennis Hernon as a defendant in the caption of
the Fifth Amended Complaint and identifies him later as a member
of Cumberland County Narcotics Task Force. However, unlike the
other Cumberland County, Vineland, and State Police officers,
the Fifth Amended Complaint contains no factual allegations
against Hernon. Therefore, Plaintiff’s claims against him will
be dismissed.
15 As with other claims the Court permits to proceed below, the
Court makes no determinations regarding absolute or qualified
immunity at this time because the immunity analysis is highly
22

2.

Unlawful strip search

The Court next turns to Plaintiff’s claim that his Fourth
Amendment rights were violated as the result of a strip search.
In Bell v. Wolfish, 441 U.S. 520 (1979), the Supreme Court held
that visual body-cavity searches of pre-sentence detainees do
not violate the Fourth Amendment as long as the searches are
related to a legitimate goal or interest. Id. at 560. In
Florence v. Bd. of Chosen Freeholders of Cnty. of Burlington,
132 S. Ct. 1510 (2012), the Supreme Court held that a county
jail’s policy of requiring all detainees, regardless of the
circumstances of arrest, suspected offense, or criminal history,
to submit to a non-invasive, visual strip search upon admission
did not violate the Fourth Amendment. Id. at 1518. However, the
Court in Bell observed that searches must be conducted in a
reasonable manner, and abusive searches are impermissible.
Bell, 441 U.S. at 560; see also Watson v. Sec'y Pennsylvania
Dep’t of Corr., 436 F. App’x 131, 136 (3d Cir. 2011) (“The
intrusive and humiliating nature of such a search, conducted on
an arbitrary basis, calls into question its reasonableness and,
thus, its constitutionality.”).
Here, Plaintiff appears to claim that he was unreasonably
and abusively strip searched by Officer O’Neill before being

fact-sensitive and thus more appropriately raised in this case
in later proceedings.
23

transported to the station. Plaintiff contends that “O’Neil used
his fingers to reach in private regions [anal and genital] [sic]
of plaintiff’s body” and when Plaintiff complained, O’Neill
pushed him into a wooden banister. (5th Am. Compl. ¶ 86.)
Accepting these allegations as true, it is conceivable that the
manner in which Plaintiff was searched, which Plaintiff
alternately describes as “groping” (Id. ¶ 1275), “brush[ing]”
(Id. ¶ 1276), and “similar to how white slavers would do to an
African” (Id. ¶ 86), was unreasonable in violation of the Fourth
Amendment. Therefore, the Court will permit Plaintiff’s claim
against Officer O’Neill based on an unreasonable strip search to
proceed at this time.
3.

Excessive force

Plaintiff contends that Officer O’Neill threw him into a
banister during the course of his arrest and applied handcuffs
too tightly.
The Fourth Amendment’s objective reasonableness standard
controls where a police officer allegedly uses excessive force
during an arrest. See Graham v. Connor, 490 U.S. 386, 397
(1989). To establish a claim for excessive force as an
unreasonable seizure, a plaintiff must show that: (a) a seizure
occurred; and (b) that seizure was unreasonable. See Rivas v.
City of Passaic, 365 F.3d 188, 198 (3d Cir. 2004) (citing Curley
v. Klem, 298 F.3d 271, 279 (3d Cir. 2002)). Proper application
24

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.” Saucier v. Katz, 533 U.S.
194, 205 (2001). Ultimately, “the question is whether the
officers' actions [were] ‘objectively reasonable’ in light of
the facts and circumstances confronting them.” Graham, 490 U.S.
at 397.
The Court of Appeals has specifically recognized that a
plaintiff who suffers serious injury as a result of “excessively
tight” handcuffs when officers ignore complaints that the
handcuffs are causing significant pain may establish that the
officer's “use of force was excessive in violation of the Fourth
Amendment.” Kopec v. Tate, 361 F.3d 772, 777 (3d Cir. 2004).
In analyzing excessive force claims based on excessively
tight handcuffs, courts in the District of New Jersey have
considered “the intensity of the plaintiff's pain, the officer's
awareness of the plaintiff's pain, whether the plaintiff asked
to have the handcuffs removed and how long after those requests
the handcuffs are removed, whether there were circumstances
justifying a delay in removing the handcuffs, and the severity
of the injury the plaintiff suffered.” Cincerella v. Egg Harbor
25

Twp. Police Dep’t, Civ. 06–1183 (RBK), 2009 WL 792489, at *10
(D.N.J. Mar. 23, 2009).
In the present case, Plaintiff alleges that O’Neill, after
conducting an unwarranted and unreasonable invasive strip
search, “bullied” him and pushed him into a wooden banister
while handcuffed. (5th Am. Compl. ¶ 1278.) According to
Plaintiff, he had not committed a crime and posed no immediate
threat to the officers. Nor did he resist arrest or attempt to
flee. (Id. ¶ 1287.) Plaintiff further alleges that “defendants
took a picture of [Plaintiff] while he was in pain from the
extremely tight handcuffs.” (Id. ¶ 1278.) These allegations,
taken as true, form a plausible basis for an excessive force
claim against Officer O’Neill, and the Court will permit such a
claim to proceed.
4.

False arrest

Plaintiff alleges two incidents of false arrest, the first,
which the Court discussed above in relation to the April 21,
2010 search, and the second, which occurred on November 29, 2012
after a bench warrant was issued for his arrest.
The Fourth Amendment prohibits a police officer from
seizing a citizen except on probable cause. See Albright v.
Oliver, 510 U.S. 266, 274–75 (1994). To state a claim for false
arrest under the Fourth Amendment, plaintiff must establish: (1)
that there was an arrest and (2) that the arrest was made
26

without probable cause. James v. City of Wilkes–Barre, 700 F.3d
675, 680 (3d Cir. 2012). “[W]here the police lack probable cause
to make an arrest, the arrestee has a claim under § 1983 for
false imprisonment based on a detention pursuant to that
arrest.” O'Connor v. City of Philadelphia, 233 F. App’x 161, 164
(3d Cir. 2007) (citing Groman v. Township of Manalapan, 47 F.3d
628, 636 (3d Cir. 1995)). “Probable cause to arrest exists when
the facts and the circumstances within the arresting officer’s
knowledge are sufficient in themselves to warrant a reasonable
person to believe that an offense has been or is being committed
by the person to be arrested.” Merkle v. Upper Dublin Sch.
Dist., 211 F.3d 782, 788 (3d Cir. 2000) (citation omitted).
In the present case, the same facts which support a claim
for an unlawful search and seizure also support a claim for
false arrest. Plaintiff’s allegations that he was arrested based
on a false or forged arrest warrant and without probable cause
are sufficient to permit a claim for false arrest to proceed
against the individual defendants involved in his arrest on
April 21, 2010: Wehling, O’Neill, Cruz, and Sirakides.16 (5th Am.
Compl. ¶ 208.)

16

As with Plaintiff’s claim for unlawful search and seizure, the
Court will only permit Plaintiff’s false arrest claim to proceed
against the defendants for whom Plaintiff has alleged some
factual basis to support such a claim, as opposed to those
defendants whose names appear only as part of a list coupled
with conclusory allegations.
27

In contrast, Plaintiff cannot sustain a claim for false
arrest against John Does 3 and 4 (two individuals wearing
“Vineland security shirts”) who allegedly placed him in
handcuffs after a bench warrant was issued for his failure to
appear on November 29, 2012. Plaintiff pleads no facts
suggesting that the bench warrant was invalid. Even accepting
Plaintiff’s allegations as true regarding his efforts to notify
the court of his tardiness, it appears that this second “arrest”
about which he complains occurred pursuant to a validly issued
bench warrant. As such, no claim for false arrest may proceed
based on his arrest or detention on November 29, 2012. Any such
claim against John Does 3 and 4 will be dismissed with
prejudice.
5.

Malicious prosecution

The Fifth Amended Complaint contains repeated and varied
allegations of investigative and prosecutorial misconduct,
stemming not only from the charges against Plaintiff, but also
his attempt to pursue citizen complaints against many of the
named defendants in this case. It appears, however, that
Plaintiff’s only potentially viable claims for malicious
prosecution are against Webb-McRae, Flynn, Riley, Accosta, and
Duffy.
To state a claim for malicious prosecution under section
1983, a plaintiff must show that: “(1) the defendants initiated
28

a criminal proceeding; (2) the criminal proceeding ended in the
plaintiff’s favor; (3) the proceeding was initiated without
probable cause; (4) the defendants acted maliciously or for a
purpose other than bringing the plaintiff to justice; and (5)
the plaintiff suffered deprivation of liberty consistent with
the concept of seizure as a consequence of a legal proceeding.”
McKenna v. City of Philadelphia, 582 F.3d 447, 461 (3d Cir.
2009). The element of malice may be inferred from a lack of
probable cause. Robinson v. Jordan, 804 F. Supp. 2d 203, 206
(D.N.J. 2011).
In the present case, Plaintiff alleges that Webb-McRae,
Flynn, Riley, Accosta, and Duffy knew that the CDR 2 forms were
based on false statements, were unsigned, and lacked a finding
of probable cause by a judicial officer. (5th Am. Compl. ¶
1090.) Further, these defendants allegedly prosecuted Plaintiff
“for the sole purposes of placing him in a slave like
condition.” (Id.) These defendants allegedly “falsely charge[d]
and selectively prosecute[d Plaintiff] for eight felonious
charges based upon false statements” and concealed exculpatory
evidence. (Id. ¶¶ 147, 155, 246, 1090.) The Court notes that the
Fifth Amended Complaint is not particularly clear as to the
outcome of the criminal proceedings against Plaintiff in

29

Vineland Municipal Court.17 Nevertheless, the Court accepts as
true for the instant purposes Plaintiff’s repeated allegation
that these charges were dismissed on June 20, 2013 by Judge
North. (Id. ¶¶ 104, 197, 319, 334, 708.) As such, Plaintiff’s
claim for malicious prosecution may proceed against Defendants
Webb-McRae, Flynn, Riley, Accosta, and Duffy for their
respective roles in prosecuting Plaintiff for offenses stemming
from his April 21, 2010 arrest.18

17

The Court is mindful that the U.S. Supreme Court has held that
in order to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by
actions whose unlawfulness would render a conviction or
sentence invalid, a § 1983 plaintiff must prove that the
conviction or sentence has been reversed on direct appeal,
expunged by executive order, declared invalid by a state
tribunal authorized to make such determination, or called
into question by a federal court's issuance of a writ of
habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing
that relationship to a conviction or sentence that has not
been so invalidated is not cognizable under § 1983.
Heck v. Humphrey, 512 U.S. 477, 486–87 (1994). To the extent
Plaintiff’s prosecution did not conclude in his favor or has not
been deemed invalid, his claim for malicious prosecution, among
other claims, could not proceed under § 1983.
18 The Court notes some confusion regarding Plaintiff’s
prosecution in the Vineland Municipal Court which he challenges
in this action. It is particularly unclear which defendants were
actually involved in Plaintiff’s prosecution. Nevertheless, the
Court will permit Plaintiff’s malicious prosecution claim to
proceed against these defendants who Plaintiff alleges were
involved, without prejudice to defendants’ right to seek
dismissal in due course.
30

6.

Municipal liability

Plaintiff attempts to assert claims for municipal liability
against Cumberland County and the City of Vineland principally
for a failure to train their respective employees.
It is well-established that municipal liability under §
1983 “may not be proven under the respondeat superior doctrine,
but must be founded upon evidence that the government unit
itself supported a violation of constitutional rights.”
Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990) (citing
Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658
(1978)). As a consequence, a municipality is liable under § 1983
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.” Monell, 436 U.S. at 694.
“Where the policy concerns a failure to train or supervise
municipal employees, liability under section 1983 requires a
showing that the failure amounts to deliberate indifference to
the rights of persons with whom those employees will come into
contact.” Thomas v. Cumberland Cnty., 749 F.3d 217, 222 (3d Cir.
2014) (internal quotation and citation omitted). Moreover, “the
deficiency in training must have actually caused the
constitutional violation.” Id. (internal quotation and
alteration omitted).
31

Here, Plaintiff has failed to allege any facts beyond bare
conclusions suggesting a policy or custom by Cumberland County
or the City of Vineland that led to the alleged misconduct
enumerated at length in the Fifth Amended Complaint. Instead,
Plaintiff’s allegations as to a policy or custom maintained by
Cumberland County or the City of Vineland consist simply of
labels ascribed to the alleged misconduct about which he
complains. The following is typical of Plaintiff’s allegations
in this regard:
The City of Vineland . . . established a de facto policy,
practice or custom of arresting dark skin pigmented humans
because of their mere presence on premises where CDS is
alleged to be found permitting the unlawful seizure of
Religious “Papers and Property” and the malicious prosecution
of individuals innocent of the charges lodged against them
and where no finding of probable cause had been made by a
Judicial Officer . . . .
(5th Am. Compl. ¶ 270.) Such conclusory allegations without more
are not enough to support a claim for municipal liability, as
they are nothing more than an attempt to recast Plaintiff’s
claims against the individual defendants as claims against the
municipal entities. Accordingly, Plaintiff’s claims against
Cumberland County and the City of Vineland for failure to train
and for a policy of arrests based on skin color will be
dismissed.19

19

The Court will also dismiss Plaintiff’s claims against the
Cumberland County Narcotics Task Force because it is not a
separate entity that can be sued under § 1983. See Bonenberger
32

7.

Equal Protection and Due Process

Plaintiff’s complaint is long on sweeping historical
statements, but short on pertinent facts to support a claim for
a violation of his Equal Protection or Due Process rights.
Consequently, the Court will dismiss Plaintiff’s claims premised
on violations of the Fourteenth Amendment.
“Racial profiling” is a violation of the Equal Protection
Clause because the Clause “prohibits selective enforcement of
the law based on considerations such as race.” Whren v. United
States, 517 U.S. 806, 813 (1996). As the Court of Appeals
explained in Carrasca v. Pomeroy, 313 F.3d 828 (3d Cir. 2002),
“[even t]he fact that there was no Fourth Amendment violation
does not mean that one was not discriminatorily selected for
enforcement of a law . . . . [E]qual protection claims under the
Fourteenth Amendment require a wholly separate analysis from . .
. claims under the Fourth Amendment.” Id. at 836 (internal
citations omitted); accord Gibson v. Superintendent of N.J.
Dep't of Law and Pub. Safety, 411 F.3d 427, 440–41 (3d Cir.
2005). “To prevail on an equal protection claim in the racial

v. Plymouth Twp., 132 F.3d 20, 25 (3d Cir. 1997) (noting that
the Court of Appeals “treat[s] the municipality and its police
department as a single entity for purposes of section 1983
liability”); Araromi v. Middle Twp. Police Dep’t, Civ. 10-1048,
2014 WL 1301524, at *11 (D.N.J. Mar. 31, 2014) (“It follows that
the [county SWAT Team] is not amenable to suit on its own, and
summary judgment will be granted as to that entity.”).
33

profiling context, [a p]laintiff[] would have to show that the
challenged law enforcement practice had a discriminatory effect
and was motivated by a discriminatory purpose.” Carrasca, 313
F.3d at 834. For the purposes of the first prong of this
inquiry, the plaintiff must “show that [he] is a member of a
protected class and that [he] was treated differently from
similarly situated individuals in an unprotected class.” Bradley
v. U.S., 299 F.3d 197, 206 (3d Cir. 2002). The second prong of
this inquiry was expressly examined by the Supreme Court in
Iqbal, where the Court pointed out that the plaintiff asserting
an equal protection claim “must plead [facts showing] that the
defendant acted with a discriminatory purpose” to permit the
court’s reasonable inference that the government-official
defendant acted “for the purpose of discriminating on account of
race.” Iqbal, 556 U.S. at 676–77.
In the present case, Plaintiff fails to plead facts
sufficient to satisfy either prong. First, Plaintiff has not
alleged that he was treated differently from others similarly
situated in an unprotected class. He contends that he was denied
“the guarantees of the equal protection clause” that were
afforded McArthur and Cruz “whom were of Hispanic or Latino
ancestry and not dark skin pigmented” like Plaintiff. (5th Am.
Compl. ¶ 569.) Plaintiff, however, does not explain how McArthur
or Cruz were similarly situated to him or how they were treated
34

differently. Second, other than bald and outrageous allegations
that defendants purposefully prosecuted him to enact slave-like
conditions, Plaintiff has not alleged facts showing
discriminatory intent. Moreover, because Plaintiff refers to
“equal protection” when describing a variety of conduct,
including his allegedly false arrest and malicious prosecution,
as well as the apparent confiscation of his Moorish
identification documents, it is unclear what specific conduct
and by what defendants allegedly resulted in a violation of
Plaintiff’s Equal Protection rights. As such, Plaintiff’s Equal
Protection claim will be dismissed.
To the extent Plaintiff attempts to assert a procedural due
process claim, such a claim is similarly infirm. To state a
claim of a procedural due process violation, a plaintiff must
allege (1) an asserted individual interest encompassed within
the Fourteenth Amendment’s protection of “life, liberty, or
property,” and (2) that the procedures available denied him or
her of “due process of law.” Alvin v. Suzuki, 227 F.3d 107, 116
(3d Cir. 2000) (citing Robb v. City of Phila., 733 F.2d 286, 292
(3d Cir. 1984)). To have a protected property interest, “a
person clearly must have more than an abstract need or desire
for it” or “a unilateral expectation of it,” but rather must
have “a legitimate claim of entitlement to it.” Robb, 733 F.2d
at 292. Courts look to state law to determine whether an
35

asserted property interest exists. Dee v. Borough of Dunmore,
549 F.3d 225, 229–30 (3d Cir. 2008).
Here, Plaintiff complains of a variety of misconduct which
he purports violated his procedural due process rights,
including the withholding of exculpatory evidence (Am. Compl. ¶¶
145, 248), the use of false arrest warrants and false statements
(Id. ¶ 154), and the failure to prosecute Defendant Wehling (Id.
¶¶ 1238, 857). Although such actions often arise in the context
of selective prosecution, it is clear that the decision of
whether or not to prosecute rests in the discretion of the
prosecutor. United States v. Armstrong, 517 U.S. 456, 464
(1996); United States v. Esposito, 968 F.2d 300, 306 (3d Cir.
1992). As such, Plaintiff cannot claim a protected property
interest in the prosecution or investigation of defendants such
as Wehling whom he accuses of wrongdoing and against whom he
sought to initiate criminal proceedings. In other words, the
Constitution does not confer on one person the right to obtain
the criminal prosecution of another.
As to defendants’ alleged withholding of exculpatory
evidence, namely the allegedly falsified arrest warrant(s),
Plaintiff’s allegations are insufficient to establish a
procedural due process violation. The Third Circuit has noted
that “[t]here can be no violation of [Brady v. Maryland, 373
U.S. 83 (1963)] unless the government’s nondisclosure infringes
36

the defendant’s fair trial right” and “the nondisclosure must do
more than impede the defendant’s ability to prepare for trial;
it must adversely affect the court’s ability to reach a just
conclusion, to the prejudice of the defendant.” United States v.
Starusko, 729 F.2d 256, 262 (3d Cir. 1984). Accordingly, “[n]o
denial of due process occurs if Brady material is disclosed in
time for its effective use at trial.” Id. (quoting United States
v. Higgs, 713 F.2d 39, 44 (3d Cir. 1983)). In the present case,
it is apparent that Plaintiff ultimately received the
purportedly withheld discovery and, according to Plaintiff, the
charges against him were eventually dismissed. Consequently, it
is not at all clear from the Fifth Amended Complaint that
Plaintiff was prejudiced as the result of defendants’ alleged
failure to disclose certain discovery materials, and thus,
Plaintiff has not stated a claim for a violation of his
procedural due process rights bases on a Brady violation.20

20

The Court will similarly dismiss Plaintiff’s claim for legal
malpractice against Amari. Beyond vague and conclusory pleadings
suggesting that Amari served as Plaintiff’s public defender,
Plaintiff has failed to allege with specificity that Amari
breached a duty owed to Plaintiff which proximately caused
damage to Plaintiff. See McGrogan v. Till, 167 N.J. 414, 425
(2001) (“The elements of a cause of action for legal malpractice
are (1) the existence of an attorney-client relationship
creating a duty of care by the defendant attorney, (2) the
breach of that duty by the defendant, and (3) proximate
causation of the damages claimed by the plaintiff.”). Plaintiff
alleges that the charges against him were dismissed, rendering
it unclear what damage Plaintiff suffered and how it was caused
by Amari’s representation.
37

Plaintiff alleges that defendants violated his substantive
due process rights as the result of a state created danger. It
appears that Plaintiff’s state created danger claim is premised
on the same facts which give rise to his civil rights and
constitutional claims, namely the April 21, 2010 search and
Plaintiff’s subsequent efforts to pursue criminal charges and
disciplinary proceedings against those involved. (5th Am. Compl.
¶ 1323). Like his municipal liability claim, Plaintiff refers to
the New Jersey State Police’s use of the term “black” and the
Attorney General’s “custom of not providing compensation or
assistance to Victims of Crimes likes [sic] Human Trafficking.”
(Id. ¶¶ 1327, 1329.) The Court, based on Plaintiff’s pleadings,
is unable to divine a discrete set of facts or an independent
basis for his state created danger claim.
“Individuals have a constitutional liberty interest in
personal bodily integrity that is protected by the Due Process
Clause of the Fourteenth Amendment.” Phillips v. Cnty. of
Allegheny, 515 F.3d 224, 235 (3d Cir. 2008). The Due Process
Clause does not impose an affirmative obligation on the state to
protect its citizens, id. (citing DeShaney v. Winnebago Cnty.
Dep’t of Soc. Servs., 489 U.S. 189, 195–96 (1989)), but courts
“have recognized that a state actor may be held liable under the
‘state-created danger’ doctrine” when the following four
conditions are met:
38

(1) the harm ultimately caused was foreseeable and fairly
direct;
(2) a state actor acted with a degree of culpability that
shocks the conscience;
(3) a relationship between the state and the plaintiff existed
such that the plaintiff was a foreseeable victim of the
defendant's acts, or a member of a discrete class of persons
subjected to the potential harm brought about by the state's
actions, as opposed to a member of the public in general; and
(4) a state actor affirmatively used his or her authority in
a way that created a danger to the citizen or that had
rendered the citizen more vulnerable to danger than had the
state not acted at all.
Henry v. City of Erie, 728 F.3d 275, 281–82 (3d Cir. 2013)
(citing Morrow v. Balaski, 719 F.3d 160, 177 (3d Cir. 2013)).
Plaintiff’s allegations in support of a state created
danger claim are indistinguishable from those offered to support
his municipal liability claim. Plaintiff merely attaches the
“state created danger” label to the misconduct repeatedly
alleged throughout the Fifth Amended Complaint. For example,
Plaintiff asserts that the New Jersey Office of the Attorney
General maintained a policy of using the racial category of
“black” and custom of not providing assistance to crime victims.
Nothing in Plaintiff’s Fifth Amended Complaint can be construed
as sufficient to satisfy the four conditions necessary to state
a claim for a state created danger. Therefore, the Court will
dismiss Plaintiff’s state created danger claim.
8.

Sixth Amendment

Plaintiff alleges in conclusory fashion that his Sixth
Amendment speedy trial rights were violated.
39

The Sixth Amendment guarantees that “[i]n all criminal
prosecutions, the accused shall enjoy the right to a speedy and
public trial.” U.S. Const. amend. VI. In Barker v. Wingo, 407
U.S. 514 (1972), the Supreme Court set forth four guidelines to
determine whether the Sixth Amendment’s guarantee of a speedy
trial has been violated: (1) the length of the delay; (2) the
reason for the delay; (3) whether, in due course, the defendant
asserted his right to a speedy trial; and (4) the prejudice to
the defendant. See id. at 530; see also United States v. Dent,
149 F.3d 180, 184 (3d Cir.1998), cert. denied, Dent v. United
States, 525 U.S. 1085 (1999).
Plaintiff has pleaded insufficient facts to state a claim
for a violation of his speedy trial rights. The Fifth Amended
Complaint is replete with references to “protracted resolution
of this matter,” failures to consider Plaintiff’s motions, and
violations of Plaintiff’s speedy trial rights, but Plaintiff
refers to so many state court and administrative proceedings
that it is unclear at what point or points he believes his Sixth
Amendment rights were violated. At the very least, the Fifth
Amended Complaint is so prolix and convoluted that the Court
cannot identify the length of delay about which Plaintiff
complains or any of the other factors the Court is to consider
in evaluating such a claim. By any plausible reading, the
charges against Plaintiff were resolved within less time than
40

precedent cases for which no speedy trial violation was found.
See, e.g., Barker v. Wingo, 407 U.S. 514, 533 (1972) (finding no
violation of speedy trial rights where “well over five years”
elapsed between arrest and trial); Conroy v. Leone, 316 F. App’x
140, 144 (3d Cir. 2009) (holding that state court was not
unreasonable in concluding that speedy trial rights were not
violated despite four year delay between arrest and trial);
United States v. Hassan-Gouda, Crim. 07-258 (JBS), 2013 WL
1501695, at *5 (D.N.J. Apr. 8, 2013) (considering Barker factors
and declining to dismiss indictment on speedy trial grounds
despite six year delay). Therefore, the Court will dismiss
Plaintiff’s Sixth Amendment speedy trial claim.
9.

First Amendment

Plaintiff’s allegations regarding the violation of his
First Amendment are conclusory and meritless. Principally,
Plaintiff appears to complain that defendants repeatedly
referred to him as Cornell Dixon and confiscated his Moorish ID.
The Free Exercise Clause of the First Amendment provides
that “Congress shall make no law . . . prohibiting the free
exercise [of religion].” U.S. Const. amend. I. “[A] law that is
neutral and of general applicability need not be justified by a
compelling governmental interest even if the law has the
incidental effect of burdening a particular religious practice.”
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508
41

U.S. 520, 531 (1993). In contrast, where “the government action
is not neutral and generally applicable, strict scrutiny
applies, and the government action violates the Free Exercise
Clause unless it is narrowly tailored to advance a compelling
government interest.” King v. Christie, 981 F. Supp. 2d 296, 331
(D.N.J. 2013), aff’d sub nom. King v. Governor of the State of
New Jersey, 767 F.3d 216 (3d Cir. 2014). “[A] law targeting
religious beliefs as such is never permissible” and the law is
not neutral “if the object of a law is to infringe upon or
restrict practices because of their religious motivation.”
Hialeah, 508 U.S. at 533.
Courts have recognized that the adoption of a Muslim name
and the desire to be free of one’s previous name may be part of
the practice of religious faith. See Masjid Muhammad-D. C. C. v.
Keve, 479 F. Supp. 1311, 1323 (D. Del. 1979). However, there are
limits to one’s right to be called by the adopted name. Id. at
1323-24. (“It does not follow, however, that plaintiffs are
entitled to have the institution and its staff utilize their
Muslim names for all purposes.”); see also Howard v. Wilson, 176
F. App’x 468, 469 (5th Cir. 2006) (“Although the adoption of a
Muslim name is considered an exercise of religious freedom, the
refusal by prison officials to recognize the name change does
not violate his free exercise of religion.”) (internal citation
omitted).
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Plaintiff alleges that defendants “strip[ped] him of his
dignity, name and heritage by their use of [the name Cornell]
‘Dixon’” (5th Am. Compl ¶ 124) and by not referring to him by
his “Moorish name” on various court-related and other documents.
It is clear that Plaintiff “rejected” this so-called “Christian
Anglo American name” (Id. ¶ 228), but it is not clear that he
adopted another name as part of the practice of his religious
faith. Plaintiff refers to the impairment of his nationality,
national origin, ethnicity, and religious identity, misconduct
he alternatively describes as “denationalization.” At other
points in the complaint, he says he identified himself under his
“Moorish/Muslim-African and Cultural Name.” (Id. ¶ 202.)
Plaintiff has not stated a claim for a violation of his Free
Exercise rights because he has not alleged consistently or
coherently that the use of a Moorish name was part of the
practice of his religion. He does not allege that Cornell Dixon
was not his given name, nor does he allege that the police and
public officials made up the name Cornell Dixon. The same is
true of Plaintiff’s allegation regarding the confiscation of his
“Moorish I.D.” To seize an arrestee’s identification documents
and other valuables pursuant to arrest is an established lawful
practice. Plaintiff fails to allege sufficient facts to suggest
that such conduct impaired the exercise of Plaintiff’s religion.

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Accordingly, the Court will dismiss Plaintiff’s First Amendment
claims.21
10.

Eighth Amendment

Plaintiff makes passing reference to the Eighth Amendment
throughout the Fifth Amended Complaint and names the Cumberland
County jail as a defendant, but the Court is hard-pressed to
identify the basis of a claim for violation of Plaintiff’s
Eighth Amendment rights. Nevertheless, in the interest of
completeness, the Court notes that Plaintiff’s claims against
the jail are facially deficient. A jail is not a “person”
amenable to suit under 42 U.S.C. § 1983. See Marsden v. Federal
BOP, 856 F. Supp. 832, 836 (S.D.N.Y. 1994) (county jail not an
entity amenable to suit under 42 U.S.C. § 1983); Powell v. Cook
County Jail, 814 F. Supp. 757, 758 (N.D. Ill. 1993) (a jail is
not a “person” under § 1983); Vance v. County of Santa Clara,
928 F. Supp. 993, 995 (N.D. Cal. 1996) (county department of
corrections is an agency of the county and cannot be sued
separately from the county under § 1983). Accordingly, to the
extent Plaintiff seeks to assert claims against the Cumberland
County Jail, the Court will dismiss these claims with prejudice.

21

Since Plaintiff has filed suit under the name Aemer K. C. El,
this Court will use only this name.
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B.

Tort claims

The Court similarly concludes that Plaintiff’s tort claims
arising under New Jersey law must be dismissed due to
Plaintiff’s failure to satisfy the notice of claim requirements
under the New Jersey Tort Claims Act (“NJTCA”), N.J.S.A. 59:1-1
to 12-3. Under the NJTCA,
[p]rior to filing a complaint, a plaintiff must submit a
notice of claim to the public entity within ninety days of
the claim's accrual, N.J.S.A. 59:8-8a, and must file suit
within two years after the claim's accrual, N.J.S.A. 59:88b. The notice must include the name of the public entity,
and the name of the employee or employees causing the injury,
if known. N.J.S.A. 59:8-4e.
Velez v. City of Jersey City, 180 N.J. 284, 290 (2004). The
NJTCA makes clear the consequences that result from a
plaintiff’s failure to comply with its notice requirements: such
a claimant “shall be forever barred from recovering against a
public entity or public employee.” 14 N.J.S.A. 59:8-8. Plaintiff
has failed to allege any facts suggesting that he filed notices
under the NJTCA, and well over ninety days have passed since
Plaintiff’s tort claims accrued. Therefore, the Court will
dismiss Plaintiff’s tort claims for failure to comply with the
notice requirements of the NJTCA, including Plaintiff’s claim(s)
for fraud.
CONCLUSION
In light of the foregoing, the Court will dismiss in part
Plaintiff’s Fifth Amended Complaint. The Court will permit only
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the following four claims under 42 U.S.C. § 1983 against a total
of nine defendants to proceed past this screening stage: (1)
unlawful search and seizure (against Defendants Lynn A. Wehling,
Steven O’Neill Jr., Gamaliel “Gami” Cruz, and Kenneth
Sirakides); (2) excessive force (against Defendant Steven
O’Neill Jr.); (3) false arrest (against Defendants Wehling,
O’Neill, Cruz, and Sirakides); and (4) malicious prosecution
(against Defendants Jennifer Webb-McRae, Jonathan M. Flynn, John
Riley, Inez Accosta, and Edward Duffy). The Court will direct
the Clerk to issue summonses for service by the U.S. Marshals
Service. The Court expresses no opinion on the merits of these
four claims. All other claims will be dismissed with prejudice.
Plaintiff has had numerous opportunities to amend and properly
plead his claims since he filed his initial complaint in
December, 2012. Any opportunity to amend for a sixth time at
this juncture would be futile. An accompanying Order will be
entered.

April 23, 2015
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

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