TORRES v. BOROUGH OF LINDENWOLD et al

Filing 13

OPINION. Signed by Judge Noel L. Hillman on 6/26/2015. (drw)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

MICHAEL D. TORRES,
Civil No. 14-5243 (NLH/AMD)
Plaintiff,
OPINION

v.
BOROUGH OF LINDENWOLD, THOMAS
J. BRENNAN, BOROUGH OF
LINDENWOLD CHIEF OF POLICE,
PATROLMAN EDWARD SLIMM,
PATROLMAN RONALD BURROWS,
JR., JOHN DOES 1-25,
Defendants.

APPEARANCES:
RANDY P. CATALANO
51 SOUTH WHITE HORSE PIKE
SUITE 100
AUDUBON, NJ 08016
On behalf of plaintiff

JOHN CHARLES GILLESPIE
PARKER MCCAY, PA
THREE GREENTREE CENTRE
7001 LINCOLN DRIVE WEST
PO BOX 974
MARLTON, NJ 08053
On behalf of defendants
HILLMAN, District Judge
This case involves allegations of excessive force by police
officers.

Presently before the Court is the motion of

defendants to dismiss several of plaintiff’s claims.

For the

reasons expressed below, defendants’ motion will be granted in

part and denied in part.
BACKGROUND
According to his complaint, on the evening of August 25,
2012, plaintiff, Michael D. Torres, was standing in one of the
common areas of the Arborwood Condominiums in Lindenwold, New
Jersey.

Torres, a resident of Arborwood, was talking with

another tenant.

Plaintiff claims that this common area was not

accessible by motor vehicles and it had no paved roadways.
Despite this, plaintiff claims that suddenly a dark colored
motor vehicle drove toward plaintiff and the other tenant.

They

ran to avoid the car, but it continued to chase plaintiff
through the unpaved common areas and eventually struck him,
running over his leg causing an open wound and serious injuries.
The vehicle stopped after hitting plaintiff.

The operator and

the passenger got out, defendants Edward Slimm and Ronald
Burrows, Jr., and identified themselves as police officers.
Until the officers exited the vehicle, plaintiff claims that he
did not know that the vehicle was an unmarked police car.
The defendant officers arrested plaintiff on suspicion of
drug distribution and resisting arrest, and he was transported
to the hospital for the treatment of his injuries.

After

treatment, he was released on his own recognizance, and the
charges were ultimately dismissed.
Plaintiff filed the instant suit against Slimm and Burrows,
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as well as the Borough of Lindenwold and the Chief of Police,
Thomas Brennan.

Plaintiff alleges that defendants committed

numerous civil rights and tort violations under state and
federal law.

Defendants have moved to dismiss several of

plaintiff’s claims.

Plaintiff has opposed their motion.
DISCUSSION

A.

Subject matter jurisdiction

Plaintiff has brought his claims for violations of the
federal and New Jersey constitutions, as well as under New
Jersey state law.

This Court has jurisdiction over plaintiff’s

federal claims under 28 U.S.C. § 1331, and supplemental
jurisdiction over plaintiff’s state law claims under 28 U.S.C. §
1367.
B.

Standard for Motion to Dismiss

When considering a motion to dismiss a complaint for
failure to state a claim upon which relief can be granted
pursuant to Federal Rule of Civil Procedure 12(b)(6), a court
must accept all well-pleaded allegations in the complaint as
true and view them in the light most favorable to the plaintiff.
Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005).

It is well

settled that a pleading is sufficient if it contains “a short
and plain statement of the claim showing that the pleader is
entitled to relief.”

Fed.R.Civ.P. 8(a)(2).

Under the liberal

federal pleading rules, it is not necessary to plead evidence,
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and it is not necessary to plead all the facts that serve as a
basis for the claim.
446 (3d Cir. 1977).

Bogosian v. Gulf Oil Corp., 562 F.2d 434,
However, “[a]lthough the Federal Rules of

Civil Procedure do not require a claimant to set forth an
intricately detailed description of the asserted basis for
relief, they do require that the pleadings give defendant fair
notice of what the plaintiff’s claim is and the grounds upon
which it rests.”

Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S.

147, 149-50 n.3 (1984) (quotation and citation omitted).
A district court, in weighing a motion to dismiss, asks
“‘not whether a plaintiff will ultimately prevail but whether
the claimant is entitled to offer evidence to support the
claim.’”

Bell Atlantic v. Twombly, 550 U.S. 544, 563 n.8 (2007)

(quoting Scheuer v. Rhoades, 416 U.S. 232, 236 (1974)); see also
Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (“Our decision in
Twombly expounded the pleading standard for ‘all civil actions’
. . . .”); Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir.
2009) (“Iqbal . . . provides the final nail-in-the-coffin for
the ‘no set of facts’ standard that applied to federal
complaints before Twombly.”). Following the Twombly/Iqbal
standard, the Third Circuit has instructed a two-part analysis
in reviewing a complaint under Rule 12(b)(6).

First, the

factual and legal elements of a claim should be separated; a
district court must accept all of the complaint's well-pleaded
4

facts as true, but may disregard any legal conclusions.
578 F.3d at 210 (citing Iqbal, 129 S. Ct. at 1950).

Fowler,

Second, a

district court must then determine whether the facts alleged in
the complaint are sufficient to show that the plaintiff has a
“‘plausible claim for relief.’”
at 1950).

Id. (quoting Iqbal, 129 S. Ct.

A complaint must do more than allege the plaintiff's

entitlement to relief.

Id.; see also Phillips v. Cnty. of

Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (stating that the
“Supreme Court's Twombly formulation of the pleading standard
can be summed up thus: ‘stating . . . a claim requires a
complaint with enough factual matter (taken as true) to suggest’
the required element.

This ‘does not impose a probability

requirement at the pleading stage,’ but instead ‘simply calls
for enough facts to raise a reasonable expectation that
discovery will reveal evidence of’ the necessary element”).
A court need not credit either “bald assertions” or “legal
conclusions” in a complaint when deciding a motion to dismiss.
In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 142930 (3d Cir. 1997).

The defendant bears the burden of showing

that no claim has been presented.

Hedges v. U.S., 404 F.3d 744,

750 (3d Cir. 2005) (citing Kehr Packages, Inc. v. Fidelcor,
Inc., 926 F.2d 1406, 1409 (3d Cir. 1991)).
A court in reviewing a Rule 12(b)(6) motion must only
consider the facts alleged in the pleadings, the documents
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attached thereto as exhibits, and matters of judicial notice.
S. Cross Overseas Agencies, Inc. v. Kwong Shipping Grp. Ltd.,
181 F.3d 410, 426 (3d Cir. 1999).

A court may consider,

however, “an undisputedly authentic document that a defendant
attaches as an exhibit to a motion to dismiss if the plaintiff’s
claims are based on the document.”

Pension Benefit Guar. Corp.

v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.
1993).

If any other matters outside the pleadings are presented

to the court, and the court does not exclude those matters, a
Rule 12(b)(6) motion will be treated as a summary judgment
motion pursuant to Rule 56.
C.

Fed. R. Civ. P. 12(b).

Analysis

Plaintiff’s complaint verges on the “everything but the
kitchen sink” approach to pleading.

Plaintiff alleges “damages

for deprivation and violation of rights secured to him by the
Fourth, Fifth and Fourteenth Amendments to the United States
Constitution, by 42 U.S.C. § 1983 and by the New Jersey
Constitution.

Plaintiff[] seeks redress for defendants'

violation of his Fourth Amendment rights to be free from
excessive force, unlawful arrest, false imprisonment, and
malicious prosecution; for the violation of his 14th Amendment
rights to due process of law; for the violation of his rights
provided by 42 U.S.C. § 1983; for conspiring with each other to

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violate his rights under the Fourth and 15th 1 Amendments; for the
violation of constitutional rights including the right to be
free from excessive force, false arrest, false imprisonment,
malicious prosecution, malicious abuse of process, intimidation,
retaliation, emotional distress and negligence; and for
defendants conspiracy to commit these violations.”
1-2.)

(Compl. ¶¶

Plaintiff also claims that the individual officers

committed assault and battery.

(Id. ¶ 55.)

Defendants have moved to dismiss many of plaintiff’s
claims, arguing that they are conclusory, bare-bone recitations
of the legal elements of such claims which merely allege
plaintiff’s entitlement to relief, rather than the appropriate
substantive facts to give defendants notice of plaintiff’s
claims.

The Court agrees with defendants that many of

plaintiff’s claims fail to fulfill the Iqbal/Twombly standard of
pleading viable claims.
For the reasons that follow, this Court concludes that when
viewed in its entirety and as currently pleaded only the
following claims meet the Iqbal/Twombly standard: (1)
plaintiff’s Fourth Amendment claims, brought pursuant to § 1983,
against Officer Slimm, (2) plaintiff’s excessive force claims

1

The Court presumes that reference to the 15th Amendment is a
typographical error, as the 15th Amendment relates to voting
rights.
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arising under the New Jersey Constitution and the New Jersey
Civil Rights Act against Officer Slimm, and (3) plaintiff’s
negligence and assault and battery claims against Officer Slimm.
All other claims must be dismissed with leave to re-plead.
(1) Plaintiff’s excessive force claims
Section 1983 is not a source of substantive rights, but
provides a vehicle for vindicating the violation of other
federal rights.

Graham v. Connor, 490 U.S. 386, 393-94 (1989).

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.

Therefore, 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 (1988); Piecknick v. Pennsylvania, 36 F.3d 1250,
1255-56 (3d Cir. 1994).
Municipalities and other local government units are among
those “persons” to which § 1983 liability applies.

Monell v.

New York City Dep’t of Social Services, 436 U.S. 658, 690
8

(1978).

Local governments, however, cannot be held liable for

the actions of their employees solely based on the doctrine of
respondeat superior.

Id. at 691-95; Bielevicz v. Dubinon, 915

F. 2d 845, 849-50 (3d Cir. 1990).

In order to successfully

state a claim for municipal liability, a plaintiff must allege
that the employees’ actions were pursuant to a policy or custom
of the municipality itself.

Monell, 436 U.S. at 694; Watson v.

Abington, 478 F.3d 144, 155 (3d Cir. 2007).
To show the existence of a policy or custom under Monell, a
plaintiff must allege that the municipality acted or failed to
act in any one of three ways.

First, the municipality adopted

an official policy that deprives citizens of their
constitutional rights.

Monell, 436 U.S. at 694.

Second, it

tolerated or adopted an unofficial custom that results in the
unlawful stripping of constitutional rights.

Natale v. Camden

County Correctional Facility, 318 F.3d 575 (3d Cir. 2003).
Third, it failed to “train, supervise, or discipline” its
employees so as to prevent them from unlawfully depriving
citizens of their constitutional rights.
Tuttle, 471 U.S. 808 (1985).

City of Oklahoma v.

“A municipality’s failure to train

its employees in a relevant respect must amount to ‘deliberate
indifference to the rights of persons with whom the [untrained
employees] come into contact.’”

Connick v. Thompson, 131 S.Ct.

1350, 1359 (2011).
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With regard to plaintiff's excessive force claim, in
determining whether excessive force was used, the Fourth
Amendment's “objective reasonableness” test is applied.

Sharrar

v. Felsing, 128 F.3d 810, 820–21 (3d Cir. 1997) (citing Graham
v. Connor, 490 U.S. 386, 396 (1989)).

The objective

reasonableness test “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.”

Id. (relying on Graham, 490 U.S. at 396; Groman v.

Township of Manalapan, 47 F.3d 628, 634 (3d Cir. 1995)).

“Other

relevant factors include the possibility that the persons
subject to the police action are themselves violent or
dangerous, the duration of the action, whether the action takes
place in the context of effecting an arrest, the possibility
that the suspect may be armed, and the number of persons with
whom the police officers must contend at one time.”

Id.

The facts in plaintiff’s complaint state a claim for
excessive force against Officer Slimm because, according to
plaintiff, Slimm was the driver of the unmarked police car who
ran over plaintiff’s leg in an effort to effect his arrest.
Evidence gathered through discovery will determine whether Slimm
acted objectively reasonably, and therefore entitled to
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qualified immunity, in his actions to secure plaintiff’s arrest.
For now, the facts alleged in the Complaint set for a plausible
claim for the use of excessive force in violation of the Fourth
Amendment.

See, e.g., Middlebrooks v. Alba, 2011 WL 3651337, *7

n.10 (D.N.J. 2011) (“Indeed, a police officer cannot be entitled
to qualified immunity if the officer then runs over the suspect
with his car or commits an analogous act laden with the danger
of physical injury to the suspect.”).
cognizable under § 1983.

Such claims are

Because an excessive force claim in

violation of the federal constitution and in violation of § 1983
would also state claims under the state constitution and the New
Jersey Civil Rights Act, those claims will be allowed to proceed
as well. 2
In contrast, the facts pleaded by plaintiff, at this stage,
fail to state a claim for municipal liability against the
Borough of Lindenwold.

Plaintiff alleges that the Borough,

2

Excessive force claims brought under the New Jersey
Constitution and the New Jersey Civil Rights Act are analyzed
under the same “reasonableness” standard employed under the
Fourth Amendment. See State v. Ravotto, 777 A.2d 301, 306 (N.J.
2001) (“Under the Fourth Amendment of the United States
Constitution and Article I, Paragraph 7 of the New Jersey
Constitution, a search or an arrest by the police must be
reasonable, measured in objective terms by examining the
totality of the circumstances.”); Trafton v. City of Woodbury,
799 F. Supp. 2d 417, 443 (D.N.J. 2011) (explaining that the New
Jersey Civil Rights Act was modeled after 42 U.S.C. § 1983, and
creates a private cause of action for violations of civil rights
secured under the New Jersey Constitutions).
11

through its police department, 3 has failed to properly train its
officers on the proper use of force and was aware of
constitutional violations by municipal officers in the past.

At

first blush it might seem plausible – accepting plaintiff’s
claims as true - that if Officer Slimm sped onto the grassy
common area of an apartment complex in an unmarked car, chased
plaintiff, who was innocently standing there talking to a
neighbor, and then ran over his leg, that the Borough had failed
to properly train its police officers on how to apprehend
suspects within the bounds of the Fourth Amendment.
However, that is a conclusion, not a plausible inference
from the facts pled.

Officer Slimm’s conduct, if true, could

have contravened the training he received.

Absent an allegation

that the Borough did not train officers driving unmarked
vehicles on apprehending suspects on foot or an allegation that
the Borough was on notice that officers used their vehicles to

3

Plaintiff’s claims are asserted against the Borough of
Lindenwold, which is the same legal entity as its police
department. Boneberger v. Plymouth Township, 132 F.3d 20, 25 n.4
(3d Cir. 1997) (a municipality and its police department are a
single entity for the purposes of § 1983 liability). Plaintiff
properly did not name the police department as a separate
defendant. Plaintiff’s claims against the individual defendants
are in their individual and official capacities, and the
official capacity claims are actually claims against the Borough
of Lindenwold. See Monell v. New York City Dept. of Social
Services, 436 U.S. 658, 690 n.55 (1978) (official capacity suits
“generally represent only another way of pleading an action
against an entity of which an officer is an agent”).
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subdue fleeing suspects by striking them, plaintiff has failed
to allege sufficient facts to raise a reasonable expectation
that discovery will reveal evidence tending to show an unlawful
municipal policy and therefore municipal liability.

Cf.,

Connick, 131 S. Ct. at 1360 (“[W]hen city policymakers are on
actual or constructive notice that a particular omission in
their training program causes city employees to violate
citizens' constitutional rights, the city may be deemed
deliberately indifferent if the policymakers choose to retain
that program.”); City of Canton v. Harris, 489 U.S. 378, 390
n.10 (1989) (“[C]ity policy makers know to a moral certainty
that their police officers will be required to arrest fleeing
felons.

The city has armed its officers with firearms, in part

to allow them to accomplish this task.

Thus, the need to train

officers in the constitutional limitations on the use of deadly
force can be said to be ‘so obvious,’ that the failure to do so
could properly be characterized as ‘deliberate indifference’ to
constitutional rights.”).

While we recognize that the Borough

could be liable if it was aware of a practice of
unconstitutional conduct by its officers or simply failed to
implement any training on the use of force at all, plaintiff
plead no facts in support of such claims.
Similarly, plaintiff’s Fourth Amendment claims cannot be
maintained against Officer Burrows and Chief Brennan has they
13

are currently pled.

“A[n individual government] defendant in a

civil rights action must have personal involvement in the
alleged wrongdoing; liability cannot be predicated solely on the
operation of respondeat superior.

Personal involvement can be

shown through allegations of personal direction or of actual
knowledge and acquiescence.”
353 (3d Cir. 2005).

Evancho v. Fisher, 423 F.3d 347,

For Officer Burrows, other than claiming

that Burrows was the passenger in the unmarked police car that
Officer Slimm drove, plaintiff has not pleaded any allegations
concerning Burrows’ involvement in the incident.

For Chief

Brennan, although plaintiff claims that Brennan was the final
decisionmaker for the police department, he does not provide any
substance to support that conclusory allegation.

A supervisor,

such as a chief of police, may be held liable under § 1983 if
that supervisor was “involved personally, meaning through
personal direction or actual knowledge and acquiescence, in the
wrongs alleged.”

McKenna v. City of Philadelphia, 582 F.3d 447,

460 (3d Cir. 2009).

Simply because Officer Slimm allegedly

committed excessive force, and the police department allegedly
failed to properly train its officers in the proper use of
force, does not automatically impute liability for those
failures to the police chief, absent some basic factual basis
for the chief’s personal involvement.
Accordingly, plaintiff’s excessive force claims may proceed
14

against Slimm and they will be dismissed as to the other
defendants.
(2) Plaintiff’s assault and battery and negligence claims
A person is subject to liability for the common law tort of
assault if: “(a) he acts intending to cause a harmful or
offensive contact with the person of the other or a third
person, or an imminent apprehension of such a contact, and (b)
the other is thereby put in such imminent apprehension.”

Leang

v. Jersey City Bd. of Educ., 969 A.2d 1097, 1117 (N.J. 2009)
(citation omitted).

The tort of battery rests upon a

nonconsensual touching.

Id. (citation omitted).

Plaintiff

claims that when Officer Slimm chased him with the car and ran
over him with his vehicle, Slimm committed assault and battery.
This claim is sufficient to proceed. 4

4

The Court notes that the notice provision of the New
Jersey Tort Claims Act, N.J.S.A. 59:8-3, applies to both
intentional and non-intentional torts asserted against public
employees. Lassoff v. New Jersey, 414 F. Supp. 2d 483, 490
(D.N.J. 2006) (citing Velez v. City of Jersey, 180 N.J. 284,
286, 850 A.2d 1238 (2004)). Moreover, under the NJTCA, “A
public employee is not liable if he acts in good faith in the
execution or enforcement of any law. Nothing in this section
exonerates a public employee from liability for false arrest or
false imprisonment.” N.J.S.A. 59:3-3. The NJTCA strips a
public employee of any immunity, however, if that employee is
found to have engaged in "willful misconduct." N.J.S.A.
59:3-14(a). The defense of failure to file notice under the
Tort Claims Act is an affirmative one which must be pleaded in
order to avoid surprise, and a defendant may be found to have
waived the protection thereof by failing to plead it as a
defense. Hill v. Board of Educ. of Middletown Tp., 443 A.2d
225, 227-28 (N.J. Super. Ct. App. Div. 1982).
15

The same may be said for Plaintiff’s claim of negligence.
Pled in the alternative, Plaintiff’s factual allegations that
Officer Slimm drove an unmarked police vehicle through areas
reserved for pedestrian traffic and struck him causing bodily
harm pleads sufficient facts to suggest a plausible claim of
negligence.
(3) Plaintiff’s other claims
The remaining claims in plaintiff’s complaint are not
supported by the proper factual foundation to satisfy the
federal pleading requirements.

Other than conclusory

statements, plaintiff has not articulated even the most minimal
facts to suggest that defendants committed unlawful arrest,
false imprisonment, malicious prosecution, intimidation,
retaliation, emotional distress, or that defendants entered into
a conspiracy to commit those violations.

All these remaining

claims must be dismissed without prejudice for insufficient
pleading.
CONCLUSION
For the reasons expressed above, all claims in plaintiff’s
complaint will be dismissed, except for plaintiff’s excessive
force claims, brought pursuant to 42 U.S.C. § 1983, and arising
under the New Jersey Constitution and New Jersey Civil Rights
Act, and plaintiff’s assault and battery and negligence claims,
all brought against Officer Slimm.
16

Because the Court cannot rule out that Plaintiff may
be able to allege additional facts in support of the
dismissed claims, Plaintiff will be granted leave to file
an amended complaint within 20 days of the filing of this
Opinion.

An appropriate Order will be entered.

Date:
June 26, 2015
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

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