DORN v. ATLANTIC CITY POLICE DEPARTMENT et al

Filing 7

OPINION. Signed by Judge Noel L. Hillman on 5/13/2015. (tf,n.m. )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
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Plaintiff,
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v.
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ATLANTIC CITY POLICE
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DEPARTMENT, et al.,
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Defendants.
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___________________________________:
TODD DORN,

Civ. No. 14-3441 (NLH)
OPINION

APPEARANCES:
Todd Dorn, # 406042B/776752
South Woods State Prison
215 Burlington Road South
Bridgeton, NJ 08302
Plaintiff pro se

HILLMAN, District Judge
Plaintiff Todd Dorn, a prisoner confined at South Woods
State Prison in Bridgeton, New Jersey, filed this civil action
pursuant to 42 U.S.C. § 1983.

On July 21, 2014, the action was

administratively terminated for failure to pay the filing fee or
submit a complete in forma pauperis application.

Thereafter,

Plaintiff submitted another application to proceed in forma
pauperis and the case was reopened for review by a judicial
officer.

On April 30, 2015, the Court granted Plaintiff’s

application to proceed in forma pauperis, but noted that summons

would not issue until such time as the Court completed its sua
sponte screening.
The Court has had the opportunity to review the Complaint
to determine whether it should be dismissed as frivolous or
malicious, for failure to state a claim upon which relief may be
granted, or because it seeks monetary relief from a defendant
who is immune from such relief. See 28 U.S.C. § 1915(e)(2) (in
forma pauperis actions); 28 U.S.C. § 1915A (actions in which
prisoner seeks redress from a governmental defendant).

Because

Plaintiff’s submission is devoid of factual allegations, the
Complaint will be dismissed for failure to state a claim upon
which relief will be granted.

However, Plaintiff will be given

leave to file an amended complaint.
I.

BACKGROUND

Plaintiff provides little factual information in his
Complaint.

He alleges that he was illegally indicted because

Defendant Rodney Ruark, whom Plaintiff asserts is a police
officer with the Atlantic City Police Department, gave false
information to the grand jury.

Plaintiff asserts that this

caused him to spend 5 years in jail.
Specifically, Plaintiff contends that Detective Ruark gave
sworn testimony to the “Grand Jury of Atlantic County N.J. that
[he] [possessed] and [possessed] with intent to distribute one
ounce of cocaine.” (Compl. 6, ECF No. 1).

In support of his

allegation that Detective Ruark’s statement to the grand jury
were untrue, Plaintiff states that “it was found out on Nov.
2013 in a court hearing that there was never any drugs or any
evidence that Todd Dorn did anything wrong.” (Compl. 6, ECF No.
1).
Plaintiff does not specify the type of “court hearing” or
proceeding in which this determination was made.

Nor does

Plaintiff indicate the effect that this determination had on
Plaintiff’s underlying criminal proceeding, or on Plaintiff’s
sentence for these charges.

Plaintiff simply concludes his

Statement of Claims section by stating, “[t]hus spending 5 years
in prison.” (Compl. 6, ECF No. 1).
With respect to his allegations against the Defendant
Atlantic City Police Department, Plaintiff alleges that “they
employ liars and crooked police officers.” (Compl. 5, ECF No.
1).

No further information is provided.
Plaintiff explains that he previously sought relief with

respect to this issue when he “put a tort claim from N.J. Bureau
of Tresury [sic].” Id.

Plaintiff states that he has not yet

received a response.
As for relief, Plaintiff seeks punitive damages in an
unspecified amount for “5 y[ears] of life lost, plus mental
stress, plus the damage of stress to [his] children for the lost
[sic] of the father.” (Compl. 7, ECF No. 1).

II.

STANDARDS FOR A SUA SPONTE DISMISSAL

Every complaint must comply with the pleading requirements
of the Federal Rules of Civil Procedure. Rule 8(a)(2) requires
that a complaint contain “a short and plain statement of the
claim showing that the pleader is entitled to relief.” “Specific
facts are not necessary; the statement need only ‘give the
defendant fair notice of what the ... claim is and the grounds
upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93
(2007) (citations omitted).
While a complaint ... does not need detailed factual
allegations, a plaintiff’s obligation to provide the
“grounds” of his “entitle[ment] to relief” requires
more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will
not do ... . Factual allegations must be enough to
raise a right to relief above the speculative level
... .
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(citations omitted).
That is, a complaint must assert “enough facts to state a
claim to relief that is plausible on its face.” Id. at 570.

“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.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550
U.S. at 556).

The determination of whether the factual

allegations plausibly give rise to an entitlement to relief is

“‘a context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.’” Bistrian v.
Levi, 696 F.3d 352, 365 (3d Cir. 2012) (citations omitted).
Thus, a court is “not bound to accept as true a legal conclusion
couched as a factual allegation,” and “[t]hreadbare recitals of
the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. at 678
(citations omitted).
In determining the sufficiency of a pro se complaint, the
Court must be mindful to accept its factual allegations as true,
see James v. City of Wilkes-Barre, 700 F.3d 675, 679 (3d Cir.
2012), and to construe it liberally in favor of the plaintiff,
see Haines v. Kerner, 404 U.S. 519, 520-21 (1972); United States
v. Day, 969 F.2d 39, 42 (3d Cir. 1992).
In general, where a complaint subject to statutory
screening can be remedied by amendment, a district court should
not dismiss the complaint with prejudice, but should permit the
amendment. Denton v. Hernandez, 504 U.S. 25, 34 (1992); Grayson
v. Mayview State Hospital, 293 F.3d 103, 108 (3d Cir. 2002)
(noting that leave to amend should be granted “in the absence of
undue delay, bad faith, dilatory motive, unfair prejudice, or
futility of amendment”), cited in Thomaston v. Meyer, 519 F.
App’x 118, 120 n.2 (3d Cir. 2013); Urrutia v. Harrisburg County
Police Dept., 91 F.3d 451, 453 (3d Cir. 1996).

III. SECTION 1983 ACTIONS
A plaintiff may have a cause of action under 42 U.S.C. §
1983 for certain violations of his constitutional rights.
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 ... .
Thus, to state a claim for relief under § 1983, a plaintiff
must allege, first, the violation of a right secured by the
Constitution or laws of the United States and, second, that the
alleged deprivation was committed or caused by a person acting
under color of state law. West v. Atkins, 487 U.S. 42, 48, 108
S.Ct. 2250, 2255, 101 L.Ed.2d 40 (1988); Malleus v. George, 641
F.3d 560, 563 (3d Cir. 2011).
IV.

ANALYSIS

Even construing Plaintiff’s pro se submission liberally,
there are no factual allegations present in the Complaint which
could form the basis of a cause of action under § 1983.

As

noted above, basic information is absent from the Complaint.
Among other things, Plaintiff fails to provide information
regarding the underlying criminal proceeding in which Plaintiff
alleges he was illegally indicted; the status of the criminal

case against Plaintiff; the outcome and purpose of the November
2013 court hearing Plaintiff references in his Compliant; the
purpose and duration of Plaintiff’s incarceration; the
constitutional right which Plaintiff alleges was violated; and
the date(s) on which this alleged violation occurred.
Furthermore, the Atlantic City Police Department is not a
“person” subject to liability under § 1983. See Will v. Mich.
Dep't of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d
45 (1989).

Defendant Atlantic City Police Department,

therefore, will be construed as the city of Atlantic City. See
Jackson v. City of Erie Police Dep't, 570 F. App'x 112, 114 (3d
Cir. 2014) (per curiam) (not precedential); Boneberger v.
Plymouth Twp., 132 F.3d 20, 25 (3d Cir. 1997) (holding that, for
purposes of § 1983, municipality and its police department are
treated as a single entity); see also Charm v. New Jersey, No.
11-4676, 2012 WL 1455457, at *2 (D.N.J. Apr. 24, 2012).
However, “a municipality cannot be held liable solely
because it employs a tortfeasor.” Monell v. Dep't of Soc. Servs.
of City of N.Y., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d
611 (1978).

Rather, “it is [only] when execution of a

government's policy or custom, whether made by its lawmakers or
by those whose edicts and acts may fairly be said to represent
official policy, inflicts the injury that the government as an
entity is responsible under § 1983.” Id.

In this case, Plaintiff asserts that Atlantic City “employs
liars and crooked officers.” (Compl. 5, ECF No. 1).

This

conclusory assertion, without more, is insufficient to create
municipal liability under Monell. See Caldwell v. Egg Harbor
Police Dep't, 362 F. App'x 250, 252 (3d Cir. 2010).

The

Complaint fails to make any allegations of an unconstitutional
policy or custom adopted by Atlantic City which inflicts a
constitutional deprivation. See Hildebrand v. Allegheny County,
757 F.3d 99, 110–11 (3d Cir. 2014) (complaint must plead facts
to support Monell liability); McTernan v. City of York, Pa., 564
F.3d 636, 658 (3d Cir. 2009) (stating to satisfy pleading
standard for Monell claim, complaint “must identify a custom or
policy, and specify what exactly that custom or policy was”);
Rivera v. Zwiegle, No. 13–3024, 2014 WL 6991954, at *3 (D.N.J.
Dec. 09, 2014) (same).

Accordingly, Plaintiff’s claims against

the Atlantic City Police Department are dismissed.
Additionally, insufficient information is provided
regarding Defendant Detective Ruark.

Although he, as an officer

of the Atlantic City Police Department, could be a proper
subject of a § 1983 complaint, Plaintiff does not provide
sufficient information in the Complaint to state a cause of
action against him.

Presumably, Plaintiff means to assert a

claim for malicious prosecution against Detective Ruark.
However, this claim, as pled, is untenable.

To prove malicious prosecution under § 1983 when the claim
is under the Fourth Amendment, a plaintiff must show that:
(1) the defendant initiated a criminal proceeding, (2) the
criminal proceeding ended in his favor, (3) the defendant
initiated the proceeding without probable cause, (4) the
defendant 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.
Johnson v. Knorr, 477 F.3d 75, 81-82 (3d Cir. 2007).
Here, Plaintiff does not plead facts sufficient to show
that Detective Ruark initiated the criminal proceeding, let
alone that he did so without probable cause.

The Court notes

that a grand jury indictment is affirmative evidence of probable
cause sufficient to defeat claims for malicious prosecution and
false arrest under § 1983. See Gatter v. Zappile, 67 F. Supp.2d
515, 519 (E.D. Pa. 1999), aff'd, 225 F.3d 648 (3d Cir. 2000);
Rose v. Bartle, 871 F.2d 331, 353 (3d Cir. 1989).

In light of

Plaintiff’s statement that the grand jury did, in fact, indict
him, Plaintiff’s ability to demonstrate the absence of probable
cause is limited.
At the pleading stage, however, “this prima facie evidence
[of probable cause] may be rebutted by [allegations] that the
presentment was procured by fraud, perjury or other corrupt
means.” Rose, 871 F.2d at 353 (stating that the allegations must
be sufficient “to overcome the presumption of grand jury
regularity”) (citations omitted); see also Palma v. Atl. Cnty.,
53 F. Supp. 2d 743, 756 (D.N.J. 1999).

Accordingly, Plaintiff

can rebut the presumption of probable cause triggered by the
return of an indictment by alleging grand jury irregularity.
Additionally, because the Complaint may not be subject to
the heightened pleading standard applied in Rose, see Leatherman
v. Tarrant Cty. Narcotics Intelligence & Coordination Unit, 507
U.S. 163, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993), minimal
allegations of grand jury irregularity would be enough to allege
the absence of probable cause. See Palma, 53 F. Supp. 2d at 757
n.10.
Here, Plaintiff alleges that Detective Ruark gave false
information to the grand jury; specifically, that he falsely
testified that Plaintiff possessed, and possessed with the
intent to distribute, one ounce of cocaine.

At first glance,

this allegation appears comparable to the allegations made in
Palma which were deemed sufficient to rebut the prima facie
evidence of probable cause reflected by the return of an
indictment. Id. at 757.
In this case, however, Plaintiff fails to provide
information regarding the precise charges against him or the
totality of the evidence before the grand jury.

Without more

information regarding the circumstances of the charges in the
indictment or the grand jury process itself, the conclusory
allegations that Detective Ruark’s statements were false are
insufficient to satisfy even the minimal pleading requirements

of grand jury irregularity.

Thus, Plaintiff has failed to

sufficiently allege a lack of probable cause and his malicious
prosecution claim fails.
Further, even assuming that Detective Ruark had initiated
the criminal proceedings without probable cause, Plaintiff has
failed to establish that the criminal proceeding ended in his
favor.

In support of his claim against Detective Ruark,

Plaintiff points to a determination made in an unspecified court
hearing, which occurred in November 2013.

Therefore Plaintiff

implies, but does not state with any specificity, that some
criminal proceeding ultimately concluded in his favor.

However,

Plaintiff does not provide sufficient information about that
court hearing to explain how, and if, this determination marked
a favorable end to the criminal proceeding allegedly initiated
by Detective Ruark.

Accordingly, any claim for malicious

prosecution is insufficiently pled and must be dismissed.
Furthermore, as stated above, Plaintiff has not explained
the specific charges for which he was indicted, the status of
those charges, or the resolution of the criminal case against
him resulting from those charges.

Pursuant to Heck v. Humphrey,

512 U.S. 477 (1994), Plaintiff cannot seek relief under § 1983
if this Court's adjudication would call into question the
validity of his criminal conviction, unless his conviction first
has been overturned on appeal or in state or federal collateral

proceedings.

Without more information regarding the underlying

criminal proceedings, further consideration of the allegations
in Plaintiff’s Complaint risks running afoul of the Supreme
Court’s holding in Heck. Id.
V.

CONCLUSION

For the reasons set forth above, the Complaint will be
dismissed, pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and
1915A(b)(1), for failure to state a claim.

However, because it

is conceivable that Plaintiff may be able to supplement his
pleading with facts sufficient to state a claim under § 1983,
the Court will grant Plaintiff leave to file an application to
reopen accompanied by a proposed amended complaint. 1 See Denton,
504 U.S. 25; Grayson, 293 F.3d 103.
An appropriate Order follows.
___s/ Noel L. Hillman_____
NOEL L. HILLMAN
United States District Judge

Dated: May 13, 2015
At Camden, New Jersey

1

Plaintiff should note that when an amended complaint is filed,
it supersedes the original and renders it of no legal effect,
unless the amended complaint specifically refers to or adopts
the earlier pleading. See West Run Student Housing Associates,
LLC v. Huntington National Bank, 712 F.3d 165, 171 (3d Cir.
2013) (collecting cases). See also 6 CHARLES ALAN WRIGHT & ARTHUR R.
MILLER, FEDERAL PRACTICE AND PROCEDURE § 1476 (3d ed. 2008). To avoid
confusion, the safer practice is to submit an amended complaint
that is complete in itself. Id.