SMART v. OASIN et al
OPINION. Signed by Judge Robert B. Kugler on 10/19/2017. (rtm, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
SALAHUDDIN F. SMART,
Civ. No. 13-4339 (RBK) (KMW)
ALEXANDRO URBINA, et al.,
ROBERT B. KUGLER, U.S.D.J.
Plaintiff Salahuddin F. Smart is proceeding pro se with an amended civil rights
complaint. Currently pending before this Court is Defendant Borough of Magnolia’s
(“Borough”) motion to dismiss the amended complaint pursuant to Rule 12(b)(5)-(6).1 For the
following reasons, the motion to dismiss is granted as to Robert Doyle. The motion is denied as
to the John Doe Borough police officer and the Borough.
The Borough’s motion alternatively requested summary judgment. “Rule 12 does not authorize
a motion for summary judgment or a motion to dismiss and for summary judgment, as made in
this case, to be filed in lieu of an answer.” Visintine v. Zickefoose, No. 11-4678, 2012 WL
6691783, at *2 (D.N.J. Dec. 21, 2012). In an action where the plaintiff is a pro se prisoner, as
Mr. Smart was at the time he filed the complaint, a district court may not convert a motion to
dismiss into a summary judgment motion without notice to the plaintiff consisting of at a
minimum “a paper copy of the conversion Order, as well as a copy of Rule 56 and a short
summary explaining its import that highlights the utility of a Rule 56(f) affidavit.” Renchenski v.
Williams, 622 F.3d 315, 340 (3d Cir. 2010). “In this case, without having filed an answer, a
hybrid motion like the one filed here, does not comply with the above described requirements of
Rules 12 and 56 or satisfy the Renchenski court's directive to provide clear notice to pro se
prisoners regarding what they must do to avoid losing a summary judgment motion. It follows
from Renchenski and Rule 12 that a defendant should avoid filing a hybrid motion to dismiss
and/or for summary judgment of the sort filed here, which creates unnecessary confusion for a
pro se litigant.” Visintine, 2012 WL 6691783, at *3. The Court declines to convert the motion
into a summary judgment motion and will only consider the complaint in connection with
defendants’ Rule 12(b)(6) motion.
The Court recites the facts in the light most favorable to plaintiff. On September 29,
2011, Alexandro Urbina, a case worker at New Jersey’s Division of Child Protection and
Permanency (“DCP&P”), formerly the Division of Youth and Family Services, called the
Borough of Magnolia Police Department and reported Mr. Smart had committed an act of child
abuse or endangerment. As a result, Borough police officers entered the home in which Mr.
Smart was staying without a warrant or Mr. Smart’s consent and proceeded to search the house.
“After the warrantless home entry on September 29, 2011 the division worker Mr. Urbina
reported that plaintiff exposed his genitals to a minor child.” No criminal charges were brought
against Mr. Smart as a result of these allegations, but Mr. Smart was ordered by a family court
judge to have no contact with the minor child.
Mr. Smart filed a civil rights complaint on July 15, 2013 asserting violations of his
Fourth Amendment rights. The Court originally administratively terminated the complaint
because Mr. Smart did not use the proper in forma pauperis application form. Mr. Smart
requested to reopen the case on January 17, 2014, but the Court denied his application because
he still had not completed the proper prisoner in forma pauperis application. Mr. Smart
submitted a new application and requested to file an “all inclusive” amended complaint. The
Court granted the in forma pauperis application filed the original complaint. Mr. Smart
submitted the amended complaint on December 2, 2015, and the Court permitted the amended
complaint to proceed on August 30, 2016. The Borough has filed a motion to dismiss the
amended complaint for failure to serve former Magnolia Police Chief Robert Doyle pursuant to
Federal Rule of Civil Procedure 12(b)(5), and for failure state a claim pursuant to Federal Rule
of Civil Procedure 12(b)(6). Mr. Smart did not file a response in opposition to the motion.
When considering a motion to dismiss a complaint for failure to state a claim, Fed. R.
Civ. P. 12(b)(6), the Court must accept all well-pleaded allegations in the complaint as true and
view them in the light most favorable to the non-moving party. A motion to dismiss may be
granted only if the plaintiff has failed to set forth fair notice of what the claim is and the grounds
upon which it rests that make such a claim plausible on its face. Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007). Although Rule 8 does not require “detailed factual allegations,” it requires
“more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555).
In reviewing the sufficiency of a complaint, the Court must “tak[e] note of the elements
[the] plaintiff must plead to state a claim. Second, it should identify allegations that, because they
are no more than conclusions, are not entitled to the assumption of truth. Finally, [w]hen there
are well-pleaded factual allegations, [the] court should assume their veracity and then determine
whether they plausibly give rise to an entitlement to relief.” Connelly v. Lane Const. Corp., 809
F.3d 780, 787 (3d Cir. 2016) (alterations in original) (internal citations and quotation marks
Federal Rules of Civil Procedure 12(b)(5) permits a motion to dismiss for “insufficiency
of service of process.” “The party responsible for effecting service has the burden of
demonstrating that service was proper.” Sharp v. Kean Univ., 153 F. Supp. 3d 669, 677 n.5
(D.N.J. 2015) (citing Grand Entm't Group v. Star Media Sales, 988 F.2d 476, 488 (3d Cir.
Failure to Serve
The Borough argues the amended complaint must be dismissed as to Mr. Doyle because
Mr. Smart has failed to properly serve the amended complaint. A review of the docket indicates
summons were returned unexecuted as to Mr. Doyle on January 31, 2017. Nothing on the docket
indicates Mr. Doyle has since been served with the amended complaint, and Mr. Smart has not
moved for an extension of time to serve Mr. Doyle with the amended complaint. The amended
complaint is therefore dismissed without prejudice as to Mr. Doyle. Fed. R. Civ. P. 12(b)(5). Mr.
Smart may move for an extension of time to serve Mr. Doyle if he can make a showing of good
cause for failure to timely serve. Fed. R. Civ. P. 4(m).
Failure to State a Claim
The Borough argues Mr. Smart has not sufficiently pled its liability for any violation of
the Fourth Amendment. “A municipality or other local government may be liable under [§ 1983]
if the governmental body itself ‘subjects’ a person to a deprivation of rights or ‘causes’ a person
‘to be subjected’ to such deprivation.” Connick v. Thompson, 563 U.S. 51, 60 (2011) (citing
Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 692 (1978)). “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 Cty., 749 F.3d 217,
222 (3d Cir. 2014) (internal quotation marks omitted).
“A pattern of similar constitutional violations by untrained employees is ‘ordinarily
necessary’ to demonstrate deliberate indifference for purposes of failure to train. . . . Without
notice that a course of training is deficient in a particular respect, decisionmakers can hardly be
said to have deliberately chosen a training program that will cause violations of constitutional
rights.” Connick, 563 U.S. at 62. See also Mann v. Palmerton Area Sch. Dist., No. 16-2821, 2017
WL 4172055, at *7 (3d Cir. Sept. 21, 2017) (precedential), as amended (Sept. 22, 2017). Mr.
Smart does not allege there have been prior incidents in which allegedly untrained Borough
police officers have violated the Fourth Amendment in similar situations. Municipal liability
may attach even in the absence of a pattern of violations, however, “where a violation of federal
rights is a ‘highly predictable consequence’ of an inadequate municipal policy or custom in a
situation that is likely to recur . . . .” Mattern v. City of Sea Isle, 131 F. Supp. 3d 305, 318 (D.N.J.
2015), aff'd, 657 F. App'x 134 (3d Cir. 2016) (citing Bd. of Cty. Comm'rs of Bryan Cty., Okl. v.
Brown, 520 U.S. 397, 409–10 (1997)). See also Connick, 373 U.S. at 63-64; Thomas, 749 F.3d at
Mr. Smart alleges the Borough failed to train its officers how to respond to a residence
after a DCP&P employee makes a report. For purposes of the motion to dismiss only, it is
reasonable to say that it is obvious that police officers responding to someone’s home after a
report of a possible sex act against a minor must be well-versed in the Fourth Amendment’s
requirements and that violations of the Fourth Amendment are the highly predictable
consequences of failing to train officers in those requirements. Mr. Smart has sufficiently stated a
claim against the Borough, and the motion to dismiss is denied.
iii. Statute of Limitations
The Borough finally argues the amended complaint should be dismissed as to the John
Doe Borough police officer because he was not served within the two-year statute of limitations.
The motion to dismiss is denied on this ground. It is not clear from the face of the
amended complaint that Mr. Smart’s claims against the John Doe officer are time-barred; further
development of the record is necessary. See Ostuni v. Wa Wa's Mart, 532 F. App'x 110, 111 (3d
Cir. 2013) (per curiam). Dismissal of the John Doe officer would therefore be inappropriate at
this time; however, nothing in this opinion should be construed as barring a future motion to
dismiss on the basis of the statute of limitations in the event the officer is later identified and
For the foregoing reasons, defendants’ motion to dismiss is granted as to Mr. Doyle and
denied as to the John Doe officer and the Borough. An appropriate order will be entered.
DATED: October 19, 2017
_s/Robert B. Kugler
ROBERT B. KUGLER
United States District Judge
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