MORIARTY v. DIBUONAVENTURA, ET AL.

Filing 15

OPINION. Signed by Chief Judge Jerome B. Simandle on 7/30/2014. (tf, )

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

PAUL D. MORIARTY,

HONORABLE JEROME B. SIMANDLE

Plaintiff,
Civil Action
No. 14-cv-2492 (JBS/AMD)

v.
PTL. JOSEPH DIBUONAVENTURA,
et al.,

OPINION

Defendants.

APPEARANCES:
William C. Popjoy, III, Esq.
POPJOY & KELLY, LLC
23 Euclid St., 2nd Floor
Woodbury, NJ 08096
Attorney for Plaintiff
A Michael Barker, Esq.
BARKER, GELFAND & JAMES
Linwood Greene, Suite 12
210 New Road
Linwood, NJ 08221
Attorney for Defendant Washington Township Police
Department

SIMANDLE, Chief Judge:
I.

INTRODUCTION
This matter comes before the Court on a motion to dismiss

by Defendant Washington Township Police Department (“the WTPD”).
[Docket Item 7.]

Plaintiff Paul D. Moriarty, a member of the

New Jersey General Assembly, alleges that Defendant Patrolman
Joseph DiBuonaventura initiated an illegal traffic stop and

falsely accused him of traffic violations, including driving
while intoxicated.

Plaintiff also alleges that DiBuonaventura

and the WTPD engaged in malicious prosecution when they
initially refused to drop charges after Plaintiff’s account of
the traffic stop was corroborated by video footage from
DiBuonaventura’s dashboard camera.

Furthermore, Plaintiff

alleges the WTPD established inadequate policies, procedures,
and customs with regard to the dismissal of charges, traffic
stop protocol, and employee training, supervision, and
monitoring.
The key question posed by this motion is whether the facts
pleaded in the Complaint sufficiently allege the existence of an
illegal policy or custom by the WTPD that it knew or should have
known would result in violations of the constitutional rights of
New Jersey citizens, such that it may be liable under 42 U.S.C.
§ 1983.

In addition, the Court is asked to determine whether,

as a matter of law, the WTPD may be liable for plaintiff’s
common law malicious prosecution claim.

For the reasons

explained below, the Court will dismiss the common law malicious
prosecution claim against WTPD with prejudice, and will dismiss
all other counts against WTPD without prejudice and permit
Plaintiff opportunity to amend his complaint.

2

II.

BACKGROUND
For the purposes of this motion, the Court accepts

Plaintiff’s allegations as true and draws the facts from the
Complaint.

On July 31, 2012, Plaintiff was driving his vehicle

on Black Horse Pike in Washington Township, New Jersey. (Compl.
¶¶ 12-13.)

Upon Plaintiff’s arrival at a restaurant, Patrolman

DiBuonaventura stopped Plaintiff’s vehicle, requested
Plaintiff’s driving documents, and “accused him of violating
traffic regulations by ‘cutting him off’ and driving while
intoxicated.”

(Id. ¶ 14.)

Plaintiff maintains he did not

commit any motor vehicle violations so as to provide
DiBuonaventura “or any reasonable law enforcement officer” with
legal grounds to effectuate a traffic stop.

(Id. ¶ 20.)

DiBuonaventura conducted a “field sobriety test” at the scene,
which Plaintiff “satisfactorily completed.”

(Id. ¶ 15.)

Nonetheless, DiBuonaventura arrested Plaintiff and transported
him to police headquarters.

(Id.)

While in custody, Plaintiff was handcuffed and issued three
citations: Driving while Intoxicated in violation of N.J.S.A. §
39:4-50; Refusal to Submit to a Breath Test in violation of
N.J.S.A. § 39:4-50.4a; and Failure to Maintain Lane in violation
of N.J.S.A. § 39:4-88(b).

(Id. ¶ 16.)

DiBuonaventura

authorized and filed multiple official reports with the WTPD
detailing the stop, seizure, arrest, processing, and filing of
3

charges against Plaintiff.

(Id. ¶ 17.)

All charges filed

against Plaintiff ultimately were dismissed by the Gloucester
County Prosecutor’s Office.

(Id. ¶ 19.)

Plaintiff implies that

the charges were dropped after police reviewed the video footage
of the traffic stop captured by DiBuonaventura’s dashboard
camera, which Plaintiff alleges vindicates him and proves that
“Officer DiBuonaventura’s claims of any impropriety in
Plaintiff’s operation of his vehicle were false and that there
was no basis for the stop, seizure, and therefore ultimately
arrest of Mr. Moriarty.”

(Id. ¶ 18.)

Plaintiff further alleges

the WTPD “had actual knowledge and constructive knowledge of the
unlawful propensities of Officer Joseph DiBuonaventura prior to
the incident at issue, and failed to adequately train, supervise
and monitor the actions of Officer DiBuonaventura.”

(Id. ¶ 23.)

In April 2014, Plaintiff filed this Complaint asserting
both federal and state-law claims.1

He brings four claims under

42 U.S.C. § 1983 against DiBuonaventura, individually and in his
official capacity, and the WTPD for the alleged civil rights
violations and one claim under New Jersey state law for

1

This Court has jurisdiction over Plaintiff’s federal claims
under 28 U.S.C. § 1331 and exercises supplemental jurisdiction
over Plaintiff’s related state-law claims under 28 U.S.C. §
1367.
4

malicious prosecution.2 (Id. ¶ 8.)

Specifically, in Count I,

Plaintiff alleges that Officer DiBuonaventura violated the
Fourth and Fourteenth Amendments of the U.S. Constitution and
Art. I, Sec. 7 of the New Jersey Constitution, because
DiBuonaventura illegally stopped and falsely arrested Plaintiff
and “intentionally and maliciously filed false written and
verbal reports . . . .”

(Id. ¶¶ 26-27.)

In Count II, Plaintiff

alleges malicious prosecution against DiBuonaventura and the
WTPD because they “initiated a prosecution and continued to
prosecute Plaintiff after the evidence . . . disclosed the
falsity of the charges” and that the charges were dismissed
after an “unreasonable” period of time.

(Id. ¶¶ 31-32.)

In

Count III, Plaintiff alleges that the WTPD “established, knew of
and acquiesced to policies, procedures, and customs that it
knew, or should have known, would result in a violation of
constitutional rights for New Jersey citizens.”

(Id. ¶ 35.)

In

particular, Plaintiff cites inadequate policies, procedures, and
customs as to the timely dismissal of charges, routine traffic
stop protocol, and the “grounds required to pursue charges
against an individual.”

(Id. ¶¶ 36-37.)

2

In Count IV, Plaintiff

The Court is unable to determine what new cause of action
Plaintiff alleges in Count VI that the previous Counts do not
already allege. Count VI is the only count that Plaintiff does
not label with a cause of action, and the allegations contained
in Count VI appear duplicative of the previous Counts.
Therefore, the Court will dismiss Count VI for failure to state
a distinct claim.
5

alleges that the WTPD failed to properly train, supervise, and
monitor DiBuonaventura “as to the probable cause legal standard
for a traffic stop and arrest and the steps to be taken when
they discover it was without probable cause.”

(Id. ¶ 40.) In

Count V, Plaintiff alleges a claim of malicious prosecution,
apparently against both DiBuonaventura and the WTPD. (Id. ¶¶ 4449.)
In lieu of filing an Answer, the WTPD brings this motion to
dismiss. None of the claims against DiBuonaventura in his
individual capacity are addressed in this motion, as he is not a
moving party.
III. STANDARD OF REVIEW
Under Fed. R. Civ. P. 12(b)(6), the court must “accept all
factual allegations as true, construe the complaint in the light
most favorable to the plaintiff, and determine whether, under
any reasonable reading of the complaint, the plaintiff may be
entitled to relief.”

Fleisher v. Standard Ins. Co., 679 F.3d

116, 120 (3d Cir. 2012).

The complaint must contain “sufficient

factual matter, accepted as true, to state a claim to relief
that is plausible on its face.”

Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (internal quotation marks omitted).

“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.”
6

Id.

Allegations that are no more than legal conclusions are not
entitled to the same assumption of truth.
F.3d 352, 365 (3d Cir. 2012).

Bistrian v. Levi, 696

To determine if a complaint meets

the pleading standard, the Court must strip away conclusory
statements and “look for well-pled factual allegations, assume
their veracity, and then determine whether they plausibly give
rise to an entitlement of relief.”
marks omitted).

Id. (internal quotation

“The plausibility standard is not akin to a

‘probability requirement,’ but it asks for more than a sheer
possibility that a defendant has acted unlawfully.”

Iqbal, 556

U.S. at 678.
IV.

DISCUSSION
A. Consideration of matters outside the pleadings
The Court must first address the extrinsic material

Plaintiff offers in support of his position.

“As a general

matter, a district court ruling on a motion to dismiss may not
consider matters extraneous to the pleadings.”

In re Burlington

Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).
When matters outside the pleading “are presented to and not
excluded by the court” on a motion under Rule 12(b)(6), “the
motion must be treated as one for summary judgment under Rule
56,” and the court must give the parties “a reasonable
opportunity to present all material that is pertinent to the
motion.”

Fed. R. Civ. P. 12(d); see also Crown Cent. Petroleum
7

Corp. v. Waldman, 634 F.2d 127, 129 (3d Cir. 1980).

However,

the district court may consider a “‘document integral to or
explicitly relied upon in the complaint’” or an “‘undisputedly
authentic document . . . if the plaintiff’s claims are based on
the document,’” without converting a Rule 12(b)(6) motion into a
motion for summary judgment.

In re Rockefeller Ctr. Props.,

Inc., Sec. Litig., 184 F.3d 280, 287 (3d Cir. 1999) (quoting In
re Burlington Coat Factory Sec. Litig., 114 F.3d at 1426, and
PBGC v. White Consol. Indus., 998 F.3d 1192, 1196 (3d Cir.
1993)) (emphasis in In re Rockefeller Ctr. Props.).
Plaintiff provides several new factual allegations in a
“Written Statement of Complainant Paul Moriarty” attached to his
opposition brief.

(Pl. Opp’n Ex. A.)

Plaintiff describes his

precise route of travel to the restaurant, maintaining that “at
no time during this time interval did the Plaintiff exceed the
speed limit, fail to maintain a lane, or commit any other
violations . . . .”

(Id. ¶¶ 5-15.)

Plaintiff further asserts

that, as the former mayor of Washington Township, he recognized
DiBuonaventura and was aware DiBuonaventura had been terminated
for “significant disciplinary problems” and then reinstated.
(Id. ¶¶ 16-18.)
As previously stated, Fed. R. Civ. P. 12(d) permits the
court to consider material outside of the pleadings when
deciding a motion to dismiss, but the motion “must be treated as
8

one for summary judgment . . . .” (emphasis added).

At this

stage, it is premature to convert this motion to a motion for
summary judgment.

The parties have not met for an initial

scheduling conference, there is no indication that any discovery
has been exchanged, and the Defendants have not filed an Answer.
However, even if the Court does not convert the motion, it
may consider material outside the pleading that is “integral to
or explicitly relied upon in the complaint” or if the document
is “undisputedly authentic” and the “plaintiff’s claims are
based on the document.”

In re Rockefeller Ctr. Props., Inc.,

Sec. Litig., 184 F.3d at 287 (quotations and emphasis omitted).
Here, Plaintiff’s written statement does not fit into any of
these categories.

Plaintiff presents factual assertions to

supplement his pleading; his statement is merely a document
created for this motion practice and is neither integral to, nor
explicitly relied upon in, the Complaint.
Accordingly, because conversion to a motion for summary
judgment is inappropriate at this time, and because Plaintiff’s
written statement is neither “integral to” nor “explicitly
relied upon in the complaint,” the Court will not consider
Plaintiff’s written statement for the purposes of deciding this
motion.

9

B. Section 1983 claims
The WTPD argues that Plaintiff’s Complaint fails to
properly state a § 1983 claim.

(Def. Mot. at 2.)

In

particular, the WTPD contends that Plaintiff offers no factual
grounds to support his allegation that the WTPD promulgated an
illegal policy or custom that caused Plaintiff’s alleged
constitutional deprivations.

(Id. at 11.)

The WTPD maintains

that the fact that Officer DiBuonaventura may have violated
Plaintiff’s rights in this instance is not, in and of itself,
sufficient to establish municipal liability.

(Id. at 12.)

For

these reasons, the WTPD asserts that the first four counts of
Plaintiff’s Complaint must be dismissed.
Plaintiff counters that he should be permitted the
opportunity to obtain discovery because documentation of
civilian complaints may reveal that the WTPD perpetuated a
policy or custom of inadequate training and supervision of
DiBuonaventura.

(Pl. Opp’n. at 4-5.)

In his opposition brief,

Plaintiff asserts he has pled his § 1983 claims “with as much
specificity as possible without having received any internal
affairs and/or training files with regard to the Officer.”
at 4.)
1. Section 1983 liability
Section 1983 provides:

10

(Id.

Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State . . . 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.

It is well established that municipal

liability under § 1983 cannot be based on respondeat superior,
but “must be founded upon evidence that the government unit
itself supported a violation of constitutional rights.”

Watson

v. Abington Twp., 478 F.3d 144, 155 (3d Cir. 2007) (citing
Monell v. New York City Dep’t. of Soc. Servs., 436 U.S. 658,
691-95 (1978)); see also Bielevicz v. Dubinon, 915 F.2d 845,
849-50 (3d Cir. 1990).

A municipality can be liable only “when

the alleged constitutional transgression implements or executes
a policy, regulation, or decision officially adopted by the
governing body or informally adopted by custom.”

McTernan v.

City of York, 564 F.3d 636, 657 (3d Cir. 2009) (quoting Beck v.
City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996) (citing
Monell, 436 U.S. 658).

Thus, Monell created a “two-track path”

for a plaintiff to establish municipal liability under § 1983,
depending on whether the allegation is premised on municipal
policy or custom.

McTernan, 564 F.3d at 657 (citing Beck, 89

F.3d at 971).

11

A government “policy” is established “when a ‘decisionmaker
possess[ing] final authority to establish municipal policy with
respect to the action’ issues an official proclamation, policy,
or edict.”

McTernan, 564 F.3d at 658 (quoting Andrews v. City

of Phila., 895 F.2d 1469, 1480 (3d Cir. 1990) (quotation and
citations omitted).

On the other hand, a “custom” can be proven

when a course of conduct, though not authorized by law, is “‘so
permanent[] and well-settled’ as to virtually constitute law.”
Id.; see also Watson, 478 F.3d at 155-56 (holding that “custom
may be established by proving knowledge of, and acquiescence to,
a practice.”) (citing Fletcher v. O’Donnell, 867 F.3d 791, 79394 (3d Cir. 1989)).

It is clear that under either route, “a

plaintiff must show that an official who has the power to make
policy is responsible for either the affirmative proclamation of
a policy or acquiescence in a well-settled custom.”

Watson, 478

F.3d at 156 (citing Bielevicz, 915 F.2d at 850); see also City
of St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988) (holding
that “an unconstitutional governmental policy could be inferred
from a single decision taken by the highest officials
responsible for setting policy . . . .”)
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
12

contact.”

Thomas v. Cumberland Cnty., 749 F.3d 217, 222 (3d

Cir. 2014) (quoting Carter v. City of Phila., 181 F.3d 339, 357
(3d Cir. 1999)).

Ordinarily, to demonstrate “deliberate

indifference” for purposes of failure to train, “[a] pattern of
similar constitutional violations by untrained employees” is
necessary.

Id. at 223 (quoting Connick v. Thompson, 131 S. Ct.

1350, 1360 (2011)).

A pattern of violations demonstrates a

deficiency in the current policy and “puts municipal
decisionmakers on notice that a new program is necessary.”

Id.

Further, a municipality’s continued adherence to an approach
that they knew or should have known resulted in constitutional
violations by employees “may establish the conscious disregard
for the consequences of their action--the ‘deliberate
indifference’--necessary to trigger municipal liability.”

Id.

(quoting Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 410
(1997)).
However, there are certain situations where the need for
training is “‘so obvious’ that failure to do so could properly
be characterized as ‘deliberate indifference’ to constitutional
rights” even without a pattern of constitutional violations.
Id. (quoting City of Canton v. Harris, 489 U.S. 378 at 390 n.10
(1989)).

In Canton, the U.S. Supreme Court illustrated “single-

incident” failure-to-train liability with a hypothetical: a city
arms its new police officers with firearms but fails to train
13

them as to the constitutional limitations on the use of deadly
force.

Canton, 489 U.S. at 390 n.10.

In this scenario, the

need for such training would be “so obvious” that the failure to
train could provide a basis for the “deliberate indifference”
necessary to establish single-incident municipal liability.

Id.

“Deliberate indifference” can also be established when
constitutional injuries are a “highly predictable consequence”
of the municipalities’ failure to train.

Id. at 225.

In

Thomas, the plaintiff brought claims against Cumberland County
and corrections officers at Cumberland County Correctional
Facility (“CCCF”) under § 1983 alleging inadequate conflict deescalation and intervention training.
21.

Thomas, 749 F.3d at 219-

The plaintiff brought his claims under a “single-incident”

theory, arguing that municipal decisionmakers were “deliberately
indifferent” when they disregarded training relevant to inmate
safety.

Id. at 225.

The plaintiff alleged that Cumberland

County did not provide its officers with conflict de-escalation
and intervention training as part of its mandatory pre-service
training requirements.

Id. at 223.

Thomas provided evidence

that fights occurred regularly in the prison.

Id.

The Third

Circuit found this evidence relevant in determining whether
Thomas’ injury was a “highly predictable consequence” of the
CCCF’s failure to provide intervention training, since the court
could infer that based on the frequency of fights, the situation
14

was likely to recur, thus demonstrating that the failure to
provide intervention training establishes the requisite
“deliberate indifference” on the part of the municipality.

Id.

The U.S. Supreme Court examined the limitations of singleincident liability in Connick, where an exonerated convict
sought to hold the district attorney liable for failing to train
prosecutors on discovery disclosure obligations regarding
exculpatory evidence.
1355).

Id. at 224 (citing Connick, 131 S. Ct. at

In finding that the failure to train did not “fall

within the narrow range of Canton’s hypothesized single-incident
liability,” the Court emphasized the training and professional
obligations of prosecutors, which differentiate them from other
public employees.

Id. (quoting Connick, 131 S. Ct. at 1361-63).

Whereas there is an obvious need for specific training in the
Canton scenario because new police officers are unlikely to be
“familiar with the constitutional constraints on the use of
deadly force,” prosecutors receive extensive legal training
before entering the profession and are ethically bound to be
familiar with discovery disclosure obligations.
Ct. at 1354-55.

Connick, 131 S.

Thus, “recurring constitutional violations are

not the ‘obvious consequence’ of failing to provide prosecutors
with formal in-house training.”

Id. at 1355.

A plaintiff bears the additional burden of proving
causation.

Id.

“To establish the necessary causation, a
15

plaintiff must demonstrate a ‘plausible nexus’ or ‘affirmative
link’ between the municipality's custom and the specific
deprivation of constitutional rights at issue.”
F.2d at 850.

Bielevicz, 915

In other words, to sustain a § 1983 action against

a municipality, a plaintiff must establish that “policymakers
were aware of similar unlawful conduct in the past, but failed
to take precautions against future violations, and that this
failure, at least in part, led to [plaintiff’s] injury.”

Id.

2. Analysis
Here, Plaintiff’s Monell claims rest on three allegations
in the Complaint:
36.
The [WTPD] . . . had no adequate policies to
dismiss in a timely fashion the charges against
Plaintiff after it learned them to have been false.
37.
The [WTPD] established inadequate policies,
procedures, customs and supervisory monitoring systems
with regard to an officer’s traffic stops protocol and
the grounds required to pursue charges against an
individual.
. . . 40.
The [WTPD], failed to properly train,
supervise, and monitor Officer Joseph DiBuonaventura
as to the probable cause legal standard for a traffic
stop and arrest and the steps to be taken when they
discover it was without probable cause.
(Compl. ¶¶ 36, 37, 40.)

Plaintiff’s factual allegations concern

only the Plaintiff’s traffic stop and arrest, and as such, do
not permit the inference that any policies or customs existed
and caused Plaintiff’s alleged constitutional injuries.

The

Complaint does not allege the existence of a municipal policy or
16

custom to pursue charges without probable cause; instead, the
Complaint alleges that the police authorities pursued charges
without probable cause in this instance.

Therefore, if

Plaintiff is to establish municipal liability, he must do so
under a “single-incident” theory.
As discussed above, an illegal policy or custom can be
inferred from a single unconstitutional act by a municipal
policymaker.

Praprotnik, 485 U.S. at 123.

However, nothing in

the Complaint permits the inference that Officer DiBuonaventura
is a municipal official with final policymaking authority.

See

LaVerdure v. Cnty. of Montgomery, 324 F.3d 123, 126 (3d Cir.
2003) (“To be a policymaker for § 1983 purposes, an official
must have final policymaking authority”) (emphasis added);
Praprotnik, 485 U.S. at 123 (holding that state law determines
“whether a particular official has final policymaking
authority”); Loigman v. Twp. Comm. of Twp. of Middletown, 185
N.J. 566, 591-92 (2006) (holding that special counsel for
township was not a municipal policymaker for § 1983 purposes
because he “did not exercise control over a policymaking
division of municipal government” or possess “final policymaking
authority”); Cherrits v. Vill. of Ridgewood, 311 N.J. Super.
517, 534 (App. Div. 1998) (recognizing that chief of police was
policymaker for municipality). DiBuonaventura’s pleaded title of
“Officer,” reasonably suggests that he is not an official with
17

final policymaking authority for the WTPD.

Because it may not

be reasonably inferred that DiBuonaventura is a municipal
policymaker, an unconstitutional municipal policy or custom
cannot be inferred from the single incident described in the
Complaint.
Next, the Court must determine whether the factual
pleadings permit the inference that Plaintiff’s claimed
constitutional injuries were an “obvious” or “highly
predictable” consequence of an allegedly deficient training
program.

Here, the Complaint lacks factual content to permit a

reasonable inference that a deficient training program existed,
of which Plaintiff’s alleged injuries were the “obvious” or
“highly predictable” consequence.

Plaintiff simply alleges in

conclusory fashion that the WTPD failed to properly train
Officer DiBuonaventura as to traffic stop protocol and the
grounds required to pursue charges against citizens.
37, 40.)

(Compl. ¶¶

“Stating . . . a claim requires a complaint with

enough factual matter (taken as true) to suggest” the required
element.

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007).

Plaintiff seeks to excuse his lack of factual support for his
allegations of insufficient training and supervision by stating
that discovery will reveal DiBuonaventura’s training history,
and perhaps, a deficient training program.

(Pl. Opp’n at 4.)

This is insufficient to satisfy the “plausibility” pleading
18

standard, let alone sufficient enough to permit the inference of
“deliberate indifference” from a single-incident violation for
the purposes of a § 1983 claim for failure to train.

There are

no facts in the Complaint to suggest that DiBuonaventura’s
actions were the result of a lack of training, as opposed to
DiBuonaventura’s individual actions.
Here, as in Thomas, the alleged conduct falls somewhere on
the spectrum between the examples of Canton (arming police
without training in the use of deadly force) and Connick (lack
of in-house training for prosecutors who have received law
school training).

But whereas in Thomas, the plaintiff alleged

the high frequency of fights, permitting the Third Circuit to
conclude that the injury in that case was a highly predictable
consequence of a failure to provide training, Thomas, 749 F.3d
at 225, here, no similar factual allegations are forthcoming in
the pleadings. Nothing in the Complaint permits the inference
that Plaintiff’s alleged injuries were a highly predictable
consequence of a lack of training. Moreover, it is not a fair
inference from the Complaint, as presently pled, that there was
“[a] pattern of similar constitutional violations by untrained
employees” of the WTPD, as required by Connick and Thomas,
supra.

Therefore, the Complaint presently fails to state a

claim under § 1983 for municipal liability for lack of training

19

to prevent constitutional violations of the sort claimed by the
Plaintiff.
The Court also holds that Plaintiff’s failure to allege any
conduct by a municipal decisionmaker serves as an independent,
sufficient ground for dismissal.

In McTernan, the plaintiff, a

pro-life advocate, brought action under § 1983 against the City
of York and its mayor, police chief, and police sergeant,
challenging the constitutionality of a restriction imposed by
police on his ability to walk in an alley adjacent to a
reproductive health clinic so that he could speak to clients of
the clinic.

McTernan, 564 F.3d at 641.

Plaintiff alleged that

“the City of York, its Mayor and Police Chief [] have routinely
dispatched police officers to Planned Parenthood . . . to serve
as private security guards for Planned Parenthood.”

Id. at 658.

Plaintiff further alleged that he and others were “periodically
threatened with arrest and . . . told to leave the alley” and
that the City and its agents, acting under color of the City of
York, had a policy of ignoring First Amendment rights.

Id.

The district court concluded that McTernan “failed to
satisfy the ‘rigorous standards of culpability and causation’
required for municipal liability,” because McTernan failed to
identify a custom or policy and specify what exactly that custom
or policy was.

Id. (quoting Bryan County, 520 U.S. at 405).

The Third Circuit affirmed, finding the complaint insufficient
20

to establish a claim for municipal liability, because it simply
alleged that McTernan’s rights were violated “due to the City's
policy of ignoring First Amendment right[s.]”

Id.

The Third

Circuit also found McTernan’s § 1983 claims deficient because
the complaint failed to allege responsibility on the part of a
municipal decisionmaker or policymaker:
Equally fatal, the four allegations in the complaint
relevant to McTernan’s Monell claim fail to allege
conduct
by
a
municipal
decisionmaker.
Although
McTernan maintains that York officers “periodically”
instructed protesters to exit the alley, he does not
plead knowledge of such directives by a municipal
decisionmaker, such as the Mayor or Police Chief.
There is no allegation that either the Mayor or the
Police Chief were aware of, let alone directed, the
restrictions or participated in formulating traffic
abatement strategies at the Clinic. Nor do the
allegations support, indirectly, such an inference.
The complaint alleges nothing more than directives
issued
ad
hoc
by
individual
officers,
without
reference to any formal administrative or policy
channels. Hence, the allegations are deficient.
Id. at 658-59.
Here, Plaintiff similarly fails to allege any
responsibility on the part of a municipal decisionmaker.
Plaintiff alleges the existence of inadequate policies with
regard to training, traffic stop protocol, and the timely
dismissal of charges, but does not plead that a municipal
decisionmaker, such as the mayor or chief of police, effectuated
such a policy or knew of and acquiesced to it as a “well-settled
custom,” nor do the allegations support such an inference.

21

The

Complaint here simply alleges these undefined policies or
customs are insufficient and that Plaintiff’s rights were
violated as a result, without reference to any administrative
approval or acquiescence.

See, e.g., Watson, 478 F.3d at 156-57

(affirming dismissal of plaintiff’s § 1983 claims because, in
part, plaintiff failed to “show that an official who has the
power to make policy is responsible for either the affirmative
proclamation of a policy or acquiescence in a well-settled
custom”) (citation and internal marks omitted).
The foregoing analysis of Plaintiff’s failure to train
claim similarly applies to Plaintiff’s allegation of municipal
liability for inadequate supervision.
222.

See Thomas, 749 F.3d at

The only fact that suggests a failure to supervise and

monitor is that some unspecified officials were aware of Officer
DiBuonaventura’s “unlawful propensities” and nevertheless
reinstated him after his disciplinary termination.

However,

Plaintiff fails to provide any factual support that
DiBuonaventura’s propensities included a history of ignoring
traffic stop protocol, or the grounds required to pursue
charges, or the steps to be taken in order to dismiss charges.
Plaintiff simply alleges that DiBuonaventura has “unlawful
propensities” and that his superiors were aware of them.

The

conduct leading to his previous termination is not stated.
Vague references to the “unlawful propensities” that do not
22

affirmatively link those propensities to the injury allegedly
suffered by Plaintiff are insufficient to meet the causation
pleading requirement.

The Complaint does not plead a “plausible

nexus” between the WTPD’s alleged failure to supervise
DiBuonaventura and his alleged conduct during Plaintiff’s stop,
seizure, and arrest.

Because Plaintiff has not sufficiently

pleaded causation, his § 1983 claim against the WTPD for failure
to supervise must be dismissed.
In sum, Plaintiff’s § 1983 municipal liability claims for
failure to train or supervise Officer DiBuonaventura are
dismissed without prejudice, and the Court will permit Plaintiff
to file an Amended Complaint curing the deficiencies noted
herein within 14 days of the entry of this Opinion.
C. Municipal liability for official capacity claims
Plaintiff also asserts the WTPD is liable for Officer
DiBuonaventura’s unconstitutional conduct in his official
capacity.

The U.S. Supreme Court has held that in an official-

capacity action, a governmental entity is liable under § 1983
only when the entity is a “‘moving force’” behind the
constitutional deprivation.

Kentucky v. Graham, 473 U.S. 159,

166 (1985) (quoting Polk County v. Dodson, 454 U.S. 312, 326
(1981)).

More specifically, in an official-capacity suit, a

government policy or custom “must have played a part in the
violation of federal law.”

Id.
23

As explained above, Plaintiff fails to sufficiently allege
the existence of a municipal policy or custom or that the WTPD
was the moving force behind Plaintiff’s alleged constitutional
deprivations, and therefore all claims against DiBuonaventura in
his official capacity are hereby dismissed without prejudice.
The Court makes no determination as to the viability of the
claims against DiBuonaventura in his individual capacity, as
DiBuonaventura is not a moving party.
D. Common law malicious prosecution claim
The WTPD argues it is immune from liability for Plaintiff’s
common law malicious prosecution claim under the New Jersey Tort
Claims Act (“NJTCA”), which provides: “A public entity is not
liable for the acts or omissions of a public employee
constituting a crime, actual fraud, actual malice, or willful
misconduct.”

N.J.S.A. § 59:2-10.

Plaintiff has not opposed

this aspect of WTPD’s dismissal motion.

(Pl. Opp’n.)

Under the

NJTCA, “willful misconduct” is the “commission of a forbidden
act with actual knowledge that the act is forbidden.”

Stroby v.

Egg Harbor Twp., 754 F. Supp. 2d 716, 722 (D.N.J. 2010).

As the

WTPD is a “public entity,” see N.J.S.A. § 59:1-3 (recognizing
that “public entity” includes the State and any county,
municipality and public authority in the State), it cannot be
held liable for the willful misconduct of its employees.

See,

e.g., Merman v. City of Camden, 824 F. Supp. 2d 581, 597 (D.N.J.
24

2010) (holding that the NJTCA precluded plaintiff from asserting
excessive force and assault and battery claims against the
defendant city, because the claims were premised on intentional
conduct of police officers); Trafton v. City of Woodbury, 799 F.
Supp. 2d 417, 444 (D.N.J. 2011) (concluding that the NJTCA
barred plaintiff from asserting false arrest and excessive force
claims against defendant city, because claims were premised on
the willful misconduct of a police officer).
The Complaint alleges that DiBuonaventura “acted with
intent, malice, and bad faith,” and “intentionally and
maliciously filed false written and verbal reports . . . .”
(Compl. ¶¶ 24, 27.) Because Plaintiff’s malicious prosecution
claim is premised on the intentional, willful conduct of Officer
DiBuonaventura, the WTPD is immune from liability for official
capacity claims under New Jersey law.

See N.J.S.A. § 59:2-10;

Graham v. Carini, No. 09-4501, 2011 WL 1639998, at *4 (D.N.J.
May 2, 2011) (holding that the defendant city “cannot be held
liable on the . . . malicious prosecution claims” because
“‘actual malice’ is an element of a malicious prosecution claim”
and § 59:2-10 provides immunity to public entities for the acts
of a public employee constituting actual malice or willful
misconduct) (citing Brunson v. Affinity Fed. Credit Union, 199
N.J. 381, 393 (2009)); Stolinski v. Pennypacker, No. 07-3174,
2008 WL 5136945, at *6 (D.N.J. Dec. 4, 2008) (holding that the
25

defendant state police department was immune from liability
under § 59:2-10 because plaintiff’s malicious prosecution claim
was premised upon allegations of willful and malicious conduct
by four individual state police officers); Santiago v. City of
Vineland, 107 F. Supp. 2d 512, 569 (D.N.J. 2000) (granting
summary judgment for the defendant city on a New Jersey
malicious prosecution claim, citing § 59:2-10 for the
proposition that “a public entity is not liable for the acts of
a public employee constituting ‘a crime, actual fraud, actual
malice, or willful misconduct’”); accord O’Connor v. Harms, 111
N.J. Super. 22, 26-27 (App. Div. 1970) (“where ‘malice’ is an
essential ingredient of the tort, a city or comparable public
agency is not vicariously liable for the personal malice of the
city’s officers or employees in performing their public
duties”).

Accordingly, this Court will dismiss Plaintiff’s

common law malicious prosecution claim against the WTPD with
prejudice.
V.

CONCLUSION
For the reasons explained above, the Court dismisses Count

V as against the Washington Township Police Department with
prejudice, but dismisses all other counts against the Washington
Township Police Department without prejudice.

If Plaintiff is

able to clarify the grounds for its claims in Counts I - IV
consistent with this Opinion, Plaintiff may file an Amended
26

Complaint curing the deficiencies noted herein within 14 days of
the entry of this Opinion on the docket. An accompanying Order
will be entered.

July 30, 2014
Date

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

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