MEALE v. CITY OF EGG HARBOR CITY et al
OPINION FILED. Signed by Judge Renee Marie Bumb on 6/23/15. (js) (Main Document 38 replaced on 6/23/2015) (js).
NOT FOR PUBLICATION
[Docket Nos. 22 & 24]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civil No. 14-5860 RMB/JS
CITY OF EGG HARBOR CITY, POLICE
OFFICER STEVEN HADLEY, and
POLICE OFFICER CHRISTOPHER
HOFFMAN, et al.,
Bonjean Law Group, PLLC
1000 Dean Street
Brooklyn, NY 11238
Attorney for Plaintiff
Schenck, Price, Smith & King LLP
200 Park Ave. P.O. Box 991
Florham Park, NJ 07932
Attorneys for Defendant Officer Steven Hadley
Gordon & Rees, LLP
90 Broad Street
New York, NY 10004
Attorneys for Defendants City of Egg Harbor City and Officer
BUMB, United States District Judge:
This matter comes before the Court upon two motions to
dismiss filed by the respective Defendants, City of Egg Harbor
City and Egg Harbor City Police Officer Christopher Hoffman (“Egg
Harbor Defendants”) [Docket No. 22] and Egg Harbor City Police
Officer Steven Hadley [Docket No. 24] (“Hadley”). For the reasons
set forth below, Defendants’ motions shall be granted.
Pursuant to her Complaint, Plaintiff, Christine Meale
(“Plaintiff”), alleges that “[o]n January 15, 2013, [she] was
forced into a five-month nightmare where she was the victim of
repeated sexual assault and emotional torment at the hands of
disgraced Egg Harbor City police officer Steven Hadley.”
Complaint at ¶ 1.
While many of the lurid details contained in
the Complaint need not be reviewed here as they are not at issue
(the Defendants have not moved to dismiss Counts I or II for
constitutional violations under 42 U.S.C. § 1983), Plaintiff has
alleged that, in exchange for having any potential criminal drug
charges against her dropped, she agreed to act as a confidential
This Court will accept the Plaintiff’s well-pled
allegations as true for purposes of this motion to dismiss.
Bistrian v. Levi, 696 F.3d 352, 358 n.1 (3d Cir. 2012).
informant for Officer Hadley, but the relationship resulted in
Hadley coercing Plaintiff into sexual acts and sexually abusing
Id. at ¶ 4.
Plaintiff also alleges that, during an initial
traffic stop, Officer Hoffman conducted an “intrusive and
unlawful search” of her that included fondling. Id. at ¶¶ 23-24.
Plaintiff also states that on one occasion, Hadley stated to her
“you know, this will all go away if you just give me a little,”
which was overhead by Hoffman.
Id. at ¶ 32.
After eventually pleading guilty to possession of controlled
dangerous substances, Plaintiff “spoke with a prosecutor from the
Atlantic County Prosecutor’s office, who was investigating
official misconduct committed by . . . Hadley.”
Id. at ¶ 55.
Hadley was criminally charged with official misconduct related to
his interactions with Plaintiff.
Id. at ¶ 56.
With respect to
Egg Harbor, the Plaintiff contends that “several women complained
to either Egg Harbor police department personnel, the Atlantic
County Prosecutor’s office, or other individuals in a supervisory
capacity about . . . Hadley’s misconduct and abuse of power,
including his pattern of demanding sexual favors from women in
Id. at ¶ 59.
Finally, the Plaintiff
alleges that all Defendants “conspired to violate the civil
rights of Plaintiff by targeting her for unwarranted violence . .
Id. at ¶ 72.
Based on the above allegations, Plaintiff has asserted a
Five Count Complaint against the Defendants as follows:
Count I: Against Defendants Hoffman, Hadley, and Unknown
Officers pursuant to 42 U.S.C. § 1983 for alleged Fourth,
Eighth and Fourteenth Amendment violations;
Count II: Against Egg Harbor City for Constitutional
Violations (i.e., a Monell claim);
Count III: State Law Torts Against Hoffman, Hadley and
Unknown Officers (including, inter alia, assault, battery,
trespass, false arrest, conspiracy, slander and negligent
infliction of emotional distress and intentional infliction
of emotional distress);
Count IV: Conspiracy to Violate Civil Rights against all
Count V: Punitive Damages against Hadley, Hoffman and
The Defendants have moved to dismiss Counts III, IV and V of
the Complaint. 2
To withstand a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), “a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is
To the extent Defendant Hadley seeks to have Count II
dismissed as to him, that motion is moot as the Plaintiff has
clarified that Count II only alleges a Monell claim against the
municipality of Egg Harbor City. Docket No. 31 at n. 1.
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 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
Id. at 663.
“[A]n unadorned, the-
defendant-unlawfully harmed-me accusation” does not suffice to
survive a motion to dismiss.
Id. at 678. “[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." Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478
U.S. 265, 286 (1986)).
In reviewing a plaintiff’s allegations, the district court
“must accept as true all well-pled factual allegations as well as
all reasonable inferences that can be drawn from them, and
construe those allegations in the light most favorable to the
plaintiff.” Bistrian v. Levi, 696 F.3d 352 n.1 (3d Cir. 2012).
Only the allegations in the complaint, and “matters of public
record, orders, exhibits attached to the complaint and items
appearing in the record of the case” are taken into
consideration. Oshiver v. Levin, Fishbein, Sedran & Berman, 38
F.3d 1380, 1384 n.2 (3d Cir. 1994)(citing Chester County
Intermediate Unit v. Pennsylvania Blue Shield, 896 F.2d 808, 812
(3d Cir. 1990)).
a) New Jersey Tort Claims Act Notice
Both sets of Defendants have moved to dismiss all tort
claims asserted in Count III, citing Plaintiff’s failure to
satisfy the requirements of the New Jersey Tort Claims Act
(“NJTCA”), N.J.S.A. § 59:8-3, which states: “No action shall be
brought against a public entity or public employee under this act
unless the claim upon which it is based shall have been presented
in accordance with the procedure set forth in this chapter.”
The Court agrees that, based on the allegations on the face of
the Complaint, she has failed to comply with the provisions of
the NJTCA. A court may grant a defendant’s Rule 12(b)(6) motion
to dismiss with respect to failure to comply with the NJTCA’s
See e.g., Bellocchio v. N.J. Dep't of
Envtl. Prot., 16 F. Supp. 3d 367, 381 n.20 (D.N.J. 2014)("The
Court finds Plaintiffs' pleadings insufficient to establish
actual or substantial compliance with the TCA's notice
requirements for causes of action against public entities."),
aff'd 2015 U.S. App. LEXIS 4909 (3d Cir. N.J., Mar. 26, 2015);
Garlanger v. Verbeke, 223 F. Supp. 2d 596, 602 (D.N.J. 2002).
As an initial matter, for the NJTCA’s notice-of-claim
requirements to apply, there must be "some nexus between the
wrong that is complained of and the defendant's public
employment." Mawhinney, 2010 U.S. Dist. LEXIS 62439 at *18, *22
(citing Gazzillo v. S. Hunterdon Reg. Bd. of Educ., 398 N.J.
Super. 259, 941 A.2d 641 (N.J. App. Div. 2008)).
There is no
dispute here that the alleged misconduct occurred pursuant to
Defendants’ role as Egg Harbor City Police Officers.
the NJTCA, a plaintiff must file her claim with the public entity
within 90 days or be barred from recovering damages from a public
N.J.S.A. § 59:8-8.
The 90 requirement achieves several
1) It gives the public entity time to review the claim and
promptly investigate the facts and prepare a defense;
2) It provides the public entity an opportunity to settle
meritorious claims before bringing suit;
3) It grants the public entity an opportunity to correct the
conditions with give rise to the claim; and
4) It allows time to inform the state in advance as to the
Velez v. City of Jersey City, 180 N.J. 284, 293, 850 A.2d
The NJTCA sets forth the procedures a claimant must follow
before bringing a tort claim against a "local public entity."
N.J. Stat. Ann. § 59:1-1 et seq. The notice must be presented in
writing and include:
(1) the name and address of the claimant, (2) the address to
which the notice will be sent, (3) the "date, place and
other circumstances of the occurrence or transaction" giving
rise to the claim, (4) a description of the injury, damage
or loss incurred, (5) the name or names of the public
entity, employee or employees causing the injury, (6) the
amount of damages claimed, and (7) the signature of the
§§ 59:8-4, 59:8-5; Ingram v. Twp. of Deptford, 911 F. Supp. 2d
289, 293 (D.N.J. 2012).
A plaintiff must comply with the NJTCA's
filing requirements in both non-intentional and intentional tort
actions. Velez, 180 N.J. at 292-93, 850 A.2d 1238 (citing
Bonitsis v. N.J. Inst. Of Tech., 363 N.J. Super. 505, 519-521,
833 A.2d 679 (App. Div. 2003) (rev'd on other grounds, 180 N.J.
450, 852 A.2d 188 (2004))).
The NJTCA offers an exception to the time for filing the
notice due to extraordinary circumstances:
A claimant who fails to file notice of his claim within 90
days as provided in section 59:8-8 of this act, may, in the
discretion of a judge of the Superior Court, be permitted to
file such notice at any time within one year after the
accrual of his claim provided that the public entity or the
public employee has not been substantially prejudiced
thereby. Application to the court for permission to file a
late notice of claim shall be made upon motion supported by
affidavits based upon personal knowledge of the affiant
showing sufficient reasons constituting extraordinary
circumstances for his failure to file notice of claim within
the period of time prescribed by section 59:8-8 of this act
or to file a motion seeking leave to file a late notice of
claim within a reasonable time thereafter . . . .
N.J.S.A. § 59:8-9.
There is also another exception that has developed under the
NJTCA, the doctrine of substantial compliance.
doctrine of substantial compliance prevents the barring of
legitimate claims due to technical defects.
Ewing v. Cumberland
County, No. 09-5432, 2015 U.S. Dist. LEXIS 37543, at * 60 (D.N.J.
Mar. 25, 2015)(citing Labron v. Sanchez, 407 N.J. Super. 204, 970
A.2d 399, 406 (N.J. App. Div. 2009); Henderson v. Herman, 373
N.J. Super. 625 (N.J. App. Div. 2004).
In other words, technical
notice defects will not defeat a valid claim as long as the
notice that has been given “substantially satisfies the purpose
for which the notices of claims are required.”
Lebron, 970 A.2d
Per her Complaint, the conduct giving rise to Plaintiff’s
claim took place between January 15, 2013 and May 2013.
Compl. at ¶¶ 45-47 & 56.
Hence, the time by which Plaintiff
should have filed her notice of claim, absent extraordinary
circumstances, expired in September 2013.
Plaintiff does not
dispute that she failed to file a NJTCA notice as required.
Instead, she argues that this Court should deny the motions to
dismiss at this stage because the Complaint “does not demonstrate
that the notice requirement of the NJTCA was not satisfied.”
Pl’s Opp. Br. at 3.
Plaintiff advances three arguments, none of
which go to the issue of whether Plaintiff adequately pled
compliance with the NJTCA.
Under the NJTCA, a public employee is not immune where he
engages in conduct that “constituted a crime, actual
fraud, actual malice or willful misconduct.” N.J.S.A. 593-14;
The Officers and the City were on notice of Hadley and
Hoffman’s criminal conduct and, therefore, Plaintiff
substantially complied with the NJTCA;
There is an outstanding issue of when, exactly,
Plaintiff’s state tort claims accrued.
With respect to willful misconduct, Plaintiff argues that
the allegations against both Hadley and Hoffman constitute
criminal behavior exempt from the NJTCA; Hadley was charged
criminally for sexual misconduct, and Plaintiff alleges that
Hadley coerced her into sexual acts and forced her to purchase
With respect to Hoffman, Plaintiff points to her
allegations that he sexually assaulted her by touching her
inappropriately during a search, which constitutes the crime of
Such outrageous conduct, Plaintiff argues, is
statutorily exempt from public employee immunity.
argument of immunity, however, does not address NJTCA notice noncompliance.
Defendants have correctly agreed that the notice
provisions of the NJTCA are applicable to intentional torts,
including alleged outrageous conduct, as set forth in Velez.
180 N.J. at 292 (“the notice provisions in the Act apply to
causes of action based on the intentional conduct of a public
Thus, while there may be no immunity under the Act
for intentional conduct, the Act’s notice provisions still apply
as a prerequisite to suit for such conduct.
Plaintiff further contends that the doctrine of substantial
compliance, which has previously been applied in the NJTCA
context, is applicable here because “Plaintiff’s complaint
suggests that she did comply with the notice requirements since
she complained about Defendant Hadley’s conduct to the
Prosecutor’s office and her complaint resulted in a criminal
charge . . . .”
Pl.’s Br. at 5.
In response, both Defendants correctly argue that
Plaintiff’s complaint about the Defendants’ behavior to the
Prosecutor’s office does not suffice to demonstrate substantial
compliance with the NJTCA.
“Although the doctrine of substantial
compliance has occasionally been applied in the tort claims
context, it has been limited carefully to those situations in
which notice, although both timely and in writing, had technical
deficiencies that did not deprive the public entity of the
effective notice contemplated by the statute.”
University of Medicine and Dentistry of New Jersey, 213 N.J. 130,
Indeed, when analyzing substantial compliance, the
New Jersey Supreme Court has held that “at a very minimum, a
notice of claim under the Act must be in writing.”
In circumstances similar to those presented in the instant
matter, courts have held that the doctrine of substantial
compliance is inapplicable.
For example, in Ingram v. Twp. Of
Deptford, the court found that the plaintiff had not fulfilled
the NJTCA notice requirement via substantial compliance where the
plaintiff filed a claim for excessive force with the Deptford
Township Municipal police department.
911 F. Supp. 2d 289
In Ingram, the Court held that the plaintiff’s
complaint did not provide an amount of damages claimed, as
required by § 59:8-4(f), nor any language suggesting that
plaintiff sought civil damages for her injuries.
This lack of
information, the court found
is an additional indication that the statement did not
provide sufficient notice of tort claims to the Township or
the Township Police. It is difficult to interpret this form
as anything other than what it plainly purports to be: a
statement in support of possible criminal charges against
[defendant]. The filing of this criminal complaint form in
municipal court does not constitute substantial compliance
with the notice requirements of the NJTCA.
Id. at 295.
The Ingram court went on to note that whether the
plaintiff filed the form at issue with the Municipal Court or the
Police Department was not material “because it is the nature of
what she filed [i.e., a non-compliant NJTCA administrative
claim], rather than the place of filing, that dooms [p]laintiff’s
NJTCA claims herein.”
Id. at 295 n.4.
Similarly in Platt v. Gonzalez, No. 09-6136, 2011 U.S. Dist.
LEXIS 65115 (D.N.J. June 9, 2011), the court found that a
plaintiff had not substantially complied with the NJTCA by filing
an “Internal Affairs Complaint” with the Atlantic City Police
Department and two “Civilian Complaint Requests” with the
Atlantic City Municipal Court, seeking to charge police officers
with aggravated assault and excessive force.
The court held that
plaintiff’s filings “could not be considered a notice pursuant to
Id. at *13.
In a supplemental submission to this Court, Plaintiff relies
upon Ewing v. Cumberland County, No. 09-5432, 2015 U.S. Dist.
LEXIS 37543 (D.N.J. Mar. 25, 2015) for the proposition that she
substantially complied with the NJTCA because she complained
about Defendant Hadley’s conduct to the Prosecutor’s office,
which was already investigating Hadley.
Ewing is misplaced.
Plaintiff’s reliance on
In Ewing, there was, in fact, a written
letter to the warden of the prison that “provided essentially the
same information required under [the NJTCA].”
Id. at *61-62.
That letter, and a subsequent letter, gave the full name and
address of plaintiff the time of the incident and officers
involved, made clear plaintiff suffered severe and permanent
injuries, and was mailed via certified mail; the Ewing court
found the communication served the purposes of the NJTCA.
(“the communications made Defendants aware of an incident for
which they could be liable and gave enough detail for them to
begin investigations and to find the correctional officers who
The nature and severity of Plaintiff’s injuries
also gave Defendants notice of potential damages so that they
could inform the State.”)
Plaintiff turns the pleading requirement under Rule 12(b)(6)
on its head by asserting that “Defendants have not shown through
Plaintiff’s [C]omplaint that Plaintiff failed to substantially
comply with the statutory notice requirements. Rather,
Plaintiff’s Complaint suggests that she did comply with the
notice requirement since she complained about Defendant Hadley’s
conduct to the Prosecutor’s office and her complaint resulted in
a criminal charge being filed on September 24, 2013.”
Docket No. 31 at 5.
There is nothing in the Complaint that pleads compliance,
and Plaintiff’s efforts to amend her Complaint through her brief
are not permitted.
The most Plaintiff avers is that she “spoke
with a prosecutor.” Compl. at ¶ 55.
This alone is insufficient.
See Bellocchio, 16 F. Supp. 3d at 381 n.20 ("The Court finds
Plaintiffs' pleadings insufficient to establish actual or
substantial compliance with the TCA's notice requirements for
causes of action against public entities.")
Even if Plaintiff
were to overcome the pleading hurdle by setting forth the details
she communicated to the Prosecutor’s office, the Complaint never
alleges a writing.
In short, as in Ingram and Platt, Plaintiff
nowhere alleges in her Complaint that speaking to the
Prosecutor’s office contained the elements required under § 59:84 or that she otherwise complied with the NJTCA but for a
Thus, the reasoning employed in both Ingram
and Platt dictates a similar result here: the Complaint, as
alleged, does not suffice to constitute substantial compliance
with the NJTCA’s provisions under the applicable case law.
Finally, in addition to the above arguments, Plaintiff
contends that the NJTCA does not bar her claims at this juncture
because the accrual date of such claims is not “cut and dry.”
Doc. No. 31 at 5.
She states that Plaintiff “could not have been
expected to file a notice under the NJTCA in light of Defendant
Hadley’s continued threats and abuse of power.
Plaintiff did not realize she was the victim of sexual assault by
Defendant Hoffman until undergoing mental health therapy.” Id.
Plaintiff says nothing with respect to the accrual of her claims
against the City in her opposition brief.
that such factual issues surrounding the accrual of her claim
render a dismissal inappropriate at this stage.
In response, the Defendants argue that Plaintiff’s argument
runs counter to her own assertions in the Complaint, such as the
fact that she participated in the criminal investigation in the
fall of 2013, yet still failed to file a NJTCA notice.
they state that other allegations asserted in the Complaint would
have alerted a “reasonable person” exercising ordinary diligence
to potential claims – i.e., forced sexual acts and the
mishandling of confidential informant relationship.
additionally argue that to the extent Plaintiff may assert she
was ignorant of the law, it is well settled that such ignorance
does not justify the tolling of an accrual date.
See Forcella v.
City of Ocean City, 70 F. Supp. 2d 512, 517 (D.N.J. 1999)
(“Ignorance of the 90-day statutory requirement, ignorance of
one's rights or mere ambivalence by the claimant have never been
found to be sufficient reasons on their own to allow late
Finally, Defendants contend that even if this Court
were to find that Plaintiff’s claims could be tolled through the
entire time frame during which she alleges she was subjected to
unlawful conduct by Hadley, her final alleged interaction with
him occurred in May 2013, and more than one year has passed since
that encounter with no NJTCA notice.
Typically, a cause of action accrues either when the
plaintiff initially learned about the harm or when the harm
Michaels v. New Jersey, 955 F. Supp. 315, 327
“The discovery rule provides that in an
appropriate case a cause of action will be held not to accrue
until the injured party discovers, or by an exercise of
reasonable diligence and intelligence should have discovered that
he may have a basis for an actionable claim."
McDade v. Siazon,
208 N.J. 463, 478-79 (2011).
As an initial matter, the Court notes that the Complaint
contains no allegations regarding Plaintiff’s failure to
appreciate the nature of the Defendants’ alleged conduct at the
time the acts were committed or regarding her mental health
therapy, and it is well established that a Plaintiff cannot amend
a complaint via an opposition brief.
See e.g., Bell v. City of
Phila., 275 F. App'x 157, 160 (3d Cir. 2008)("A plaintiff may not
amend his complaint through arguments in his brief in opposition
to a motion for summary judgment.").
There are no facts alleged
at this juncture which demonstrate the Plaintiff’s claim would
have accrued other than between January 15, 2013 and May 2013,
Compl. at ¶¶ 45-47 & 56, and clearly both the applicable 90 day
period and one year time frame for extraordinary circumstances
have passed since those dates.
For the foregoing reasons, Defendants’ motions to dismiss
are granted, but without prejudice.
Plaintiff shall be permitted
to seek leave to file an amended complaint setting forth
allegations of substantial compliance and delayed accrual within
21 days of this Opinion.
b) Conspiracy Under 28 U.S.C. § 1985
As currently pled, Plaintiff’s allegations in Count IV fail
to adequately state a claim under 42 U.S.C. § 1985(3) for
conspiracy to deprive Plaintiff of her civil rights.
In order to
state such a claim under § 1985(3), a plaintiff must plead:
(1) a conspiracy;
(2) motivated by a racial or class based discriminatory
animus designed to deprive, directly or indirectly, any
person or class of persons to the equal protection of the
(3) an act in furtherance of the conspiracy; and
(4) an injury to person or property or the deprivation of
any right or privilege of a citizen of the United States.
Livingston v. Borough of Edgewood, 430 Fed. Appx. 172, 178 (3d
Cir. 2011)(citing Lake v. Arnold, 112 F.3d 682, 685 (3d Cir.
The Defendants argue that Plaintiff has failed to set forth
any factual basis supporting the requisite class based
discriminatory animus or any facts supporting the conspiracy or
an act in furtherance of conspiracy.
Again, Count IV
conclusorily alleges that “Defendants conspired to violate the
civil rights of Plaintiff by targeting her for unwarranted
violence . . . .”
Compl. at ¶ 72.
In response, Plaintiff contends that she has adequately set
forth a conspiracy claim by alleging that Defendants Hadley and
Hoffman “conspired and agreed to violate Plaintiff’s
constitutional rights by working together to falsely arrest her .
. . .”
With respect to class-based animus, Plaintiff states
contends that “Defendant Hadley was motivated to target women.”
Pl.’s Br. at 6.
While the well-pled allegations of the Complaint, read
generously, may suffice to plead a conspiracy, see e.g., Compl. ¶
26 discussing Hadley and Hoffman conferring before taking
Plaintiff to the Police Department, they do not suffice to
demonstrate the requisite class-based animus against women –
i.e., “there is no factual basis from which to infer that any of
the defendants knew of this prejudice, shared this prejudice or
had the goal of conspiring against plaintiff due to this
Dayoub v. Aaron, No. 12-1770, 2013 U.S. Dist. LEXIS
127805, at *29 (E.D. Pa. Sept. 9, 2013).
As such, the Court
finds that Plaintiff has failed to plead facts sufficient to
sustain the § 1985 claim and it will be dismissed without
Plaintiff will, however, have the opportunity to cure
the deficiencies identified via leave to amend the Complaint
within 21 days of this Opinion.
c) Punitive Damages
Finally, Defendant Egg Harbor City seeks to dismiss
Plaintiff’s punitive damages claim in Count V of the Complaint as
the City is a only remaining cause of action against the City is
asserted pursuant to 42 U.S.C. §1983, and punitive damages are
not recoverable against a municipality.
Because Plaintiff does
not contest this aspect of the motion, and it is well established
that “a municipality is immune from punitive damages under 42
U.S.C. § 1983,” Smith v. Borough of Dunmore, 633 F.3d 176, 183
(3d Cir. 2011), the Court will dismiss Count V against Egg Harbor
For the reasons set forth above, this Court will grant the
Defendants’ motions to dismiss.
Plaintiff shall have 21 days to
cure the deficiencies outlined above.
An appropriate Order will
issue this date.
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
June 23, 2015
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