SMART v. OASIN et al

Filing 21

MEMORANDUM AND ORDER that the Clerk shall file the 19 Amended Complaint, and replace the defendants named in the caption as stated. ORDERED that the Amended Complaint shall be permitted to proceed past screening in its entirety. ORDERED that the Clerk shall file and mail the USM 285 letter, then issue summons upon the Marshals notification. (Memo Order, Pro Bono application, and USM Letter mailed). Signed by Judge Robert B. Kugler on 8/29/2016. (TH, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________________
SALAHUDDIN F. SMART,
:
:
Plaintiff,
:
Civ. No. 13-4339 (RBK) (KMW)
:
v.
:
:
DIVISION OF CHILD PROTECTION AND
:
MEMORANDUM AND ORDER
PERMANENCY, et al.,
:
:
Defendants.
:
_________________________________________ :
Plaintiff is proceeding pro se with an amended civil rights complaint. The amended
complaint names the following as defendants in this action: (1) Division of Child Protection and
Permanency (“DCP&P”); (2) John/Jane Doe – DCP&P Supervisor; (3) Alexandro Urbina –
Division Worker; (4) Borough of Magnolia; (5) John Doe – Magnolia Police Officer; (6) Robert
Doyle – Chief of Police; (7) Lisa von Pier – DCP&P Director; (8) Allison Blake – DCP&P
Commissioner; and (9) Suzanne Alvino – Chief of Staff for the DCP&P. The amended complaint
arises from plaintiff’s allegations that the defendants violated his Fourth Amendment rights when
they conducted an unlawful warrantless search of his room. Plaintiff also raises failure to train
claims against the defendants.
This Court has concluded that the amended complaint shall be permitted to proceed past
screening pursuant to 28 U.S.C. § 1915(e)(2)(B). With respect to plaintiff’s failure to train claims
against the defendants, this Court notes that plaintiff does not allege a pattern of violations that is
typically necessary to allege a failure to train claim. See Kline ex rel. Arndt v. Mansfield, 255 F.
App'x 624, 629 (3d Cir. 2007) (citing Berg v. Cnty. of Allegheny, 219 F.3d 261, 276 (3d Cir.
2000) (per curiam) (citing Bd. of Cnty. Comm'rs of Bryan Cnty., Okla. v. Brown, 520 U.S. 397,
408–09, 117 S. Ct. 1382, 137 L.Ed.2d 626 (1997))). However:

in a narrow range of circumstances, a violation of federal rights
may be a highly predicable consequence of a failure to equip law
enforcement officers with specific tools to handle recurrent
situations. The likelihood that the situation will recur and the
predictability that an officer lacking specific tools to handle that
situation will violate citizens' rights could justify a finding that
policymakers' decision not to train the officer reflected “deliberate
indifference” to the obvious consequence of the policymakers'
choice-namely, a violation of a specific constitutional or statutory
right.
Bryan Cnty., 520 U.S. at 409. It is on that basis at this early stage of the proceedings that
plaintiff’s failure to train claims shall be permitted to proceed.
Accordingly, IT IS this 29th day of August, 2016,
ORDERED that the Clerk shall file the amended complaint (Dkt. No. 19-1); and it is
further
ORDERED that the Clerk shall replace the defendants named in the caption in this action
so that the defendants remaining in this action are as follows since they are who are named in the
amended complaint: (1) Division of Child Protection and Permanency (“DCP&P”); (2)
John/Jane Doe – DCP&P Supervisor; (3) Alexandro Urbina – Division Worker; (4) Borough of
Magnolia; (5) John Doe – Magnolia Police Officer; (6) Robert Doyle – Chief of Police; (7) Lisa
von Pier – DCP&P Director; (8) Allison Blake – DCP&P Commissioner; and (9) Suzanne
Alvino – Chief of Staff for the DCP&P; and it is further
ORDERED that the amended complaint shall be permitted to proceed past screening in
its entirety; and it is further
ORDERED that the Clerk shall mail to plaintiff a transmittal letter explaining the
procedure for completing a Unites States Marshal (“Marshal”) 285 Forms (“USM-285 Form”);
and it is further

2

ORDERED that once the Marshal receives the USM-285 Forms from plaintiff and the
Marshal so alerts the Clerk, the Clerk shall issue summons in connection with each USM-285
Form that has been submitted by plaintiff, and the Marshal shall serve summons, the amended
complaint and this Order to the address specified on each USM-285 Form, with all costs of
service advanced by the United States1; and it is further
ORDERED that defendants shall file and serve a responsive pleading within the time
specified by Federal Rule of Civil Procedure 12; and it is further
ORDERED that pursuant to 28 U.S.C. § 1915(e)(1) and 4(a) of Appendix H of the Local
Civil Rules, the Clerk shall notify plaintiff of the opportunity to apply in writing to the assigned
judge for the appointment of pro bono counsel; and it is further
ORDERED that if at any time prior to the filing of a notice of appearance by defendants,
plaintiff seeks the appointment of pro bono counsel or other relief, pursuant to FED. R. CIV. P.
5(a) and (d), plaintiff shall (1) serve a copy of the application by regular mail upon each party at
his last known address and (2) file a Certificate of Service2; and it is further
ORDERED that the Clerk of the Court shall send a copy of this Order to plaintiff by
regular U.S. mail.
s/Robert B. Kugler
ROBERT B. KUGLER
United States District Judge

1

Alternatively, the U.S. Marshal may notify defendants that an action has been commenced and
request that the defendant waive personal service of a summons in accordance with FED. R. CIV.
P. 4(d).
2

After an attorney files a notice of appearance on behalf of a defendant, the attorney will
automatically be electronically served all documents that are filed in the case.
3