ZAMPETIS v. CITY OF ATLANTIC CITY et al

Filing 12

OPINION filed. Signed by Judge Noel L. Hillman on 12/21/2015. (drw)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
NICHOLAS J. ZAMPETIS,
Plaintiffs,

Civil Action No. 15-1231 (NLH)

CITY OF ATLANTIC CITY, et al.,

OPINION

v.

Defendants.

APPEARANCES:
DAVID R. CASTELLANI
450 Tilton Road, Suite 245
Northfield, NJ 08225
Attorney for Plaintiff Nicholas J. Zampetis
A. MICHAEL BARKER
VANESSA ELAINE JAMES
Barker, Gelfand & James
210 New Road
Linwood, NJ 08221
Attorney for Defendant City of Atlantic City
MICHAEL E. RILEY
Law Offices of Riley & Riley
100 High Street
Mt. Holly, NJ 08060
Attorney for Defendants Ivan Lopez, Anthony Alosi, Jr.,
Mike Auble
HILLMAN, District Judge:
Nicholas J. Zampetis, a resident of New Jersey, filed a
Complaint against the City of Atlantic City, Atlantic City
Police Officers Ivan Lopez, Anthony Alosi, Jr., Mike Auble, and
several John Doe police officers claiming violation of his

rights under 42 U.S.C. 1983 and New Jersey law.

Plaintiff

asserts that on February 17, 2013, while he was celebrating a
friend’s birthday at the Tropicana Hotel and Casino in Atlantic
City, he became involved in a verbal disagreement with persons
at the hotel; the Defendant police officers arrived and, without
provocation, attacked and beat Zampetis and arrested him without
probable cause.
Presently before the Court are separate motions to dismiss
the Complaint pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure filed by the City of Atlantic City and by the
four named police officers.

In each motion, Defendants claim

that the Complaint does not satisfy the pleading standard set
forth in Ashcroft v. Iqbal, 556 U.S. 662 (2009).

Plaintiff

responds that he has alleged sufficient facts to adequately
plead claims under § 1983 against the City and against each
named police officer.

For the reasons expressed below, and

pursuant to Rule 78, this Court will grant the motions, dismiss
the federal claims presented in the Complaint without prejudice,
and decline to exercise supplemental jurisdiction.
I.

BACKGROUND

In this Complaint, Zampetis sues the City of Atlantic City,
Atlantic City Police Officers Ivan Lopez, Anthony Alosi, Jr.,
2

Mike Auble and five John Does.

He asserts that at about 2:00 to

3:00 a.m. on February 17, 2013 (early Sunday morning), while
celebrating a friend’s birthday at the Tropicana Hotel and
Casino in Atlantic City, Defendants Lopez, Alosi, Auble and John
Doe officers falsely arrested him.

He alleges that these

Defendants also beat him and falsely charged him with criminal
charges to cover up their wrongdoing.
In Count One, Zampetis claims that the individual police
officers violated his constitutional rights to freedom from
unlawful arrest, false imprisonment, deprivation of liberty, and
excessive force under 42 U.S.C. § 1983.

In Count Two, Zampetis

asserts that the City of Atlantic City had actual knowledge that
the individual Defendants had a propensity to violate the Fourth
Amendment rights of persons and failed to take appropriate
action; Atlantic City and its Police Department adopted policies
and procedures designed to prevent citizens from filing
complaints with Internal Affairs; Atlantic City had a custom of
allowing officers to use excessive force during arrests and to
file false criminal charges and reports without fear of
discipline; and Atlantic City failed to adequately train and
supervise officers regarding the requirements of the Fourth
Amendment.

In Count Three, Zampetis claims that the individual
3

Defendants conspired to violate his constitutional rights and in
Count Four he claims that the actions of the individual
Defendants warrant an award of punitive damages.

In Count Five,

Zampetis asserts that Defendants violated his rights under New
Jersey law.
II.

STANDARD OF REVIEW

To survive dismissal for failure to state a claim upon
which relief may be granted under Rule 12(b)(6), “a complaint
must contain sufficient factual matter, accepted as true, to
‘state a claim for relief that is plausible on its face.’ 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.'”
Iqbal, 556 U.S. at 678 (citations omitted).

Although for the

purposes of Rule 12(b)(6) a court must take factual allegations
in the complaint as true, a court is “not bound to accept as
true a legal conclusion couched as a factual allegation.”

Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal
quotation marks omitted).
Thus, in deciding a motion to dismiss, a court uses a
three-step process.

See Santiago v. Warminster Tp., 629 F.3d

121, 130 (3d Cir. 2010).

First, a court must “tak[e] note of
4

the elements a plaintiff must plead to state a claim [under the
appropriate substantive law].”

Iqbal, 556 U.S. at 675.

Second,

a court identifies “pleadings that, because they are no more
than conclusions, are not entitled to the assumption of truth.”
Iqbal, 556 U.S. at 679; see also Santiago, 629 F.3d at 128 (“We
take as true all the factual allegations of the Third Amended
Complaint and the reasonable inferences that can be drawn from
them, but we disregard legal conclusions and recitals of the
elements of a cause of action, supported by mere conclusory
statements.”) (citations and internal quotation marks omitted).
Third, “[w]hen there are well-pleaded factual allegations, a
court should assume their veracity and then determine whether
they plausibly give rise to an entitlement for relief.”

Id. at

130.
III.
A.

DISCUSSION

Federal Claims
The first step in reviewing the Complaint requires the

Court to identify the elements of each claim.

In Count One,

Zampetis claims that the individual police officers violated his
Fourth Amendment rights prohibiting excessive force during
arrest, arrest without probable cause, and false imprisonment.
To recover under 42 U.S.C. § 1983 against an individual, a
5

plaintiff must show:

(1) a person deprived him or caused him to

be deprived of a right secured by the Constitution or laws of
the United States, and (2) the deprivation was done under color
of state law.

See West v. Atkins, 487 U.S. 42, 48 (1988);

Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970).
(1)

Fourth Amendment Claims Against the Officers

The Fourth Amendment safeguards “[t]he right of the people
to be secure in their persons . . . against unreasonable . . .
seizures.”

U.S. Const. amend. IV.

When a plaintiff alleges use

of excessive force during an investigation or arrest, the
federal right at issue is the Fourth Amendment right against
unreasonable seizures.

See Tolan v. Cotton, 134 S.Ct. 1861,

1865 (2014); Graham v. Connor, 490 U.S. 386, 394 (1989).

“To

prevail on a Fourth Amendment excessive-force claim, a plaintiff
must show that a seizure occurred and that it was unreasonable
under the circumstances.”
183 (3d Cir. 2011).

Lamont v. New Jersey, 637 F.3d 177,

“Determining whether the force used to

effect a particular seizure is ‘reasonable’ ... 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
6

arrest or attempting to evade arrest by flight.”

Graham, 490

U.S. at 396.
In addition, the Third Circuit instructs consideration of
“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.”

Santini v. Fuentes, 795 F.3d 410, 417 (3d Cir. 2015)

(quoting Sharrar v. Felsing, 128 F.3d 810, 822 (3d Cir. 1997)).
The inquiry is objective and fact specific.
U.S. at 397; Santini, 795 F.3d at 417.

See Graham, 490

“Reasonableness is to be

evaluated from the perspective of a reasonable officer on the
scene, rather than with the 20/20 vision of hindsight.”
Carswell v. Borough of Homestead, 381 F.3d 235, 240 (3d Cir.
2004) (internal quotation marks and citation omitted).
“To state a claim for false arrest under the Fourth
Amendment, a plaintiff must establish:

(1) that there was an

arrest; and (2) that the arrest was made without probable
cause.”

James v. City of Wilkes-Barre, 700 F.3d 675, 680 (3d

Cir. 2012) (citing Groman v. Twp. Of Manalapan, 47 F.3d 628, 634
(3d Cir. 1995)).

“The proper inquiry in a section 1983 claim
7

based on false arrest . . . is not whether the person arrested
in fact committed the offense but whether the arresting officers
had probable cause to believe the person arrested had committed
the offense.”

Groman, 47 F.3d at 634 (quoting Dowling v. City

of Philadelphia, 855 F.2d 136, 141 (3d Cir. 1988)).

Generally,

the existence of probable cause is a factual issue and depends
on the elements of the criminal charges.

See Halsey v.

Pfeiffer, 750 F.3d 273, 300 (3d Cir. 2014); Groman, 47 F.3d at
635; Deary v. Three Un-Named Police Officers, 746 F.2d 185, 191
(3d Cir. 1984).
The constitutional tort of false imprisonment overlaps with
false arrest.1

See Wallace v. Kato, 549 U.S. 384, 388 (2007).

When a person is arrested without probable cause, the
constitutional tort of “false imprisonment ends once the victim
becomes held pursuant to [legal] process – when, for example, he
is bound over by a magistrate or arraigned on charges . . . If
there is a false arrest claim damages for that claim covers the
time of detention up until issuance of process or arraignment,

Zampetis claims that the Defendant officers deprived him of
liberty without due process.
The Court construes this as an
attempt to state a false imprisonment incident to arrest claim
under § 1983.
1

8

but not more.

From that point on, any damages recoverable must

be based on a malicious prosecution claim and on the wrongful
use of judicial process rather than detention itself.”

Id. at

389-90 (citations and internal quotation marks omitted).
To properly plead an unconstitutional conspiracy, a
plaintiff must assert facts from which a conspiratorial
agreement can be inferred.

See D.R. v. Middle Bucks Area

Vocational Tech. Sch., 972 F.2d 1364, 1377 (3d Cir. 1992); see
also Startzell v. City of Philadelphia, 533 F.3d 183, 205 (3d
Cir. 2008).

The assertion in a complaint of an unlawful

agreement or conspiracy is a legal conclusion that is not
entitled to the assumption of truth.

See Twombly, 550 U.S. at

555.
As required by the second and third steps, the Court will
now identify the legal conclusions that must be disregarded as
unsupported and determine whether the non-conclusory factual
allegations state a claim against an individual officer.

In the

section of the Complaint captioned “Introduction,” Zampetis
asserts the following:
On or about February 17, 2013, the plaintiff Nicholas
J. Zampetis was a patron at the Tropicana Hotel and
Casino celebrating the birthday of one of his friends
along with about fifteen to twenty other people.
During the course of the evening at approximately 2:00
to 3:00 AM on a Saturday night, plaintiff and others
9

in his party got into a verbal disagreement and/or
argument with other people at the Tropicana Hotel and
Casino to which the defendant City of Atlantic City
Police Officers were called. The defendants without
provocation and/or probable cause proceeded to attack
and beat plaintiff with their hands, fists, knees,
kicks, and batons. The plaintiff was falsely arrested
and beaten as aforementioned without threat of injury
or provocation to the defendant individual police
officers and without legal justification.
The plaintiff Nicholas J. Zampetis suffered severe and
permanent injuries from the violent and vicious and
unprovoked attack and excessive use of force at the
hands of the individual defendant officers.
(ECF No. 1 at 1-2) (paragraph numbers omitted).

Later, in the

section labeled “Factual Allegations,” Zampetis alleges:
On or about February 17, 2013, at approximately
between 2:00 and 3:00 AM, the plaintiff Nicholas J.
Zampetis while a patron at the Tropicana Hotel and
Casino was falsely arrested, and falsely charged with
criminal charges by the defendants Police Officers . .
. and was thereafter, physically attacked, beaten with
hands, fists, knees, kicks, baton strikes and
otherwise by these individual defendants and
thereafter falsely charged with criminal Complaints to
cover up these defendants[’] wrong doing.
(ECF No. 1 at 4) (paragraph number omitted).
Zampetis sets forth no additional factual allegations
concerning the individual Defendants.

Thus, his assertion that

the Defendant officers falsely arrested him to cover up their
use of excessive force must be disregarded because it is a legal
conclusion.

The legal conclusion concerning a false arrest

without probable cause is similarly not supported by factual
10

allegations.

For example, he asserts no facts regarding what he

and the officers did prior to his being taken into police
custody, the number of people involved when the police arrived
or the crimes for which he was arrested.2

In the absence of

factual allegations showing that the police lacked probable
cause to arrest him for a charged offense, the Complaint does
not sufficiently state a false arrest claim under the Fourth
Amendment.
Similarly, without more, Plaintiff’s allegations that
“[t]he defendants without provocation and/or probable cause
proceeded to attack and beat plaintiff with their hands, fists,
knees, kicks, and batons,” do not show that the force used by
any Defendant was excessive under the circumstances.

The

Complaint provides no facts respecting the severity of the

Zampetis states in his opposition brief that the officers charged
him with resisting arrest and assault, and that he was acquitted
of these charges on February 6, 2015. But in deciding a 12(b)(6)
motion, this Court cannot consider the contents of a reply brief.
See McTernan v. City of York, PA, 577 F.3d 521, 526 (3d Cir. 2009)
(“We have stated that, in deciding a motion to dismiss, all wellpleaded allegations of the complaint must be taken as true and
interpreted in the light most favorable to the plaintiffs, and all
inferences must be drawn in favor of them. In addition to the
complaint itself, the court can review documents attached to the
complaint and matters of public record, and a court may take
judicial notice of a prior judicial opinion.”) (citation omitted).
2

11

crimes, whether Zampetis may have posed an immediate threat to
the safety of the officers or others, the duration of the
incident, the role that each officer played in the alleged
assault, the number of people involved, or whether he was trying
to resist arrest or to evade arrest by flight.

In the absence

of contextual allegations, the Complaint does not substantiate
the conclusion that the individual Defendants’ use of force was
without provocation and excessive.3
Because the non-conclusory facts do not show that the
police arrested Zampetis without probable cause, the allegations
are necessarily deficient in stating a constitutional false
imprisonment incident to arrest claim.

Similarly, the Complaint

does not adequately plead a conspiracy claim because it does not

Ashcroft v. Iqbal, 556 U.S. 662 (2009), teaches that plaintiffs
who allege all the same basic facts against all the defendants
are unlikely to assert a plausible claim. While it is possible
that each of the defendants arrested plaintiff and that each of
them assaulted him as described, such a claim is not plausible.
In addition to separating out facts from legal conclusions, a
plausible claim alleges facts that are specific to the role
played by each individual which often varies in group settings
and activities. For example, it seems unlikely that even if a
group assault occurred that all of the officers participated in
the post-assault arrest. See id. at 677 (“[E]ach Government
official . . . is only liable for his or her own misconduct,")
and id. at 676 ("a plaintiff must plead that each Governmentofficial defendant, through the official's own individual
actions, has violated the Constitution.").
3

12

set forth facts from which a conspiratorial agreement to violate
Zampetis’s Fourth Amendment rights can be inferred.
The foregoing analysis demonstrates that the Complaint has
not “nudged [Plaintiff’s] claims” of unconstitutional false
arrest, excessive force, false imprisonment and conspiracy
“across the line from conceivable to plausible.”
U.S. at 680 (quoting Twombly, 550 U.S. at 570).

Iqbal, 556
The Court will

grant the motion to dismiss filed by the individual police
officers and dismiss the § 1983 and conspiracy claims against
them without prejudice to the filing of an amended complaint
within 30 days of the date of the entry of the Order
accompanying this Opinion.

See Del Rio-Mocci v. Connolly

Properties Inc., 672 F.3d 241, 251 (3d Cir. 2012); Shane v.
Fauver, 213 F.3d 113, 115 (3d Cir. 2000).
(2) Federal Claims Against the City
Zampetis asserts that the City of Atlantic City is liable
for violation of his Fourth Amendment rights because policies
and customs of Atlantic City caused the violation of his rights
by the individual Defendants.

But “neither Monell ... nor any

other of our cases authorizes the award of damages against a
municipal corporation based on the actions of one of its
officers when ... the officer inflicted no constitutional harm.”
13

City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (per
curiam); accord Mulholland v. Government County of Berks, PA.,
706 F.3d 227, 238 n.15 (3d Cir. 2013); Grazier ex rel. White v.
City of Philadelphia, 328 F.3d 120, 124 (3d Cir. 2003).

If a

municipal actor “inflicted no constitutional injury . . . , it
is inconceivable that [the municipality] could be liable.”
Heller, 475 U.S. at 799.

In this case where the Court has found

that the Complaint fails to adequately state a federal claim
against any individual defendant, the Complaint necessarily
fails to state a claim against the City of Atlantic City.

Id.

Alternatively, even if the Complaint adequately asserted a
§ 1983 claim against an individual police officer, as written,
it does not state a claim against the City of Atlantic City.

As

Plaintiff acknowledges, “a local government may not be sued
under § 1983 for an injury inflicted solely by its employees or
agents.

Instead, it is when execution of a government’s policy

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

Monell v. Dept. of Social Services

of City of New York, 436 U.S. 658, 694 (1978).
In his Complaint, Zampetis asserts that the violation of
14

his Fourth Amendment rights was caused by the following
policies, practices and customs of the Atlantic City Police
Department:

(1) “Atlantic City and the Atlantic City Police

Department formally adopted policies and standard operating
procedures designed to prevent formal complaints from being
filed within Internal Affairs Unit in favoring the statement of
police officers over the statements of citizens complaining of
police abuse or misconduct resulting in the exoneration of the
officers . . ., creating an atmosphere where unconstitutional
behavior of the police officers is tolerated, condoned and
ratified by the Atlantic City Police Department;” (2) “Atlantic
City and the Atlantic City Police Department have a permanent
and well settled practice or custom of allowing police officers,
including the defendants . . . to employ excessive force while
effectuating arrest;” (3) “Atlantic City and the Atlantic City
Police Department have a permanent and well settled policy,
practice and custom of allowing police officers including the
defendants . . . to use excessive force and unreasonable force
without fear of discipline;” (4) “Atlantic City and the Atlantic
City Police Department have a permanent and well settled
practice allowing police officers including defendants . . . to
falsify arrest and charge civilians without probable cause as a
15

tool to conceal their own illegal and unreasonable conduct,
creating an atmosphere of illegal and unconstitutional behavior
in deliberate indifference and reckless disregard of the public
at large including the plaintiff;” (5) “Atlantic City and the
Atlantic City Police Department have a permanent and well
settled practice or custom allowing police officers including
defendants . . . to file false reports, fabricate evidence,
destroy evidence and make false statements as a tool to conceal
their own illegal and unreasonable conduct in deliberate
indifference;” (6) “Atlantic City and the Atlantic City Police
Department have a permanent and well settled practice of failing
to protect the citizens of Atlantic City from unconstitutional
actions of police . . . by exonerating rogue police officers, by
refusing to investigate civilian complaints, and by convincing
civilians not to file formal citizens’ complaints;” (7)
“Atlantic City and the Atlantic City Police Department have a
permanent and well settled practice of refusing to adequately
respond to and investigate complaints regarding officer
misconduct;” (8) “Atlantic City and the Atlantic City Police
Department have a permanent and well settled practice of
violating their own policies and procedures in relation to the
use of force as well as the Attorney General Guidelines relating
16

to the use of force and the removal of officers from the line of
duty pending administrative investigations.”

(ECF No. 1 at 7-

10.)
But these allegations are conclusory.

Without more,

Zampetis cannot satisfy the Iqbal pleading standard by asserting
that Atlantic City had a policy or custom of allowing police
officers to use excessive force and to arrest people without
probable cause.

Liability may be imposed against a municipality

under Monell “when the policy or custom itself violates the
Constitution or when the policy or custom, while not
unconstitutional itself, is the ‘moving force’ behind the
constitutional tort of one of its employees.”

Thomas v.

Cumberland County, 749 F.3d 217, 222 (3d Cir. 2014) (citations
omitted).

A policymaker is a person who is “responsible for

establishing final government policy respecting” the activity in
question and “whether an official had final policymaking
authority is a question of state law.”
Cincinnati, 475 U.S. 469, 483 (1986).

Pembaur v. City of
“[M]unicipal liability

under § 1983 attaches where - and only where - a deliberate
choice to follow a course of action is made from among various
alternatives by the official or officials responsible for
establishing final policy with respect to the subject matter in
17

question.”

Id. at 483.

Where, as in this case, “a plaintiff claims that the
municipality . . . has caused an employee to [violate the
Constitution], rigorous standards of culpability and causation
must be applied to ensure that the municipality is not held
liable solely for the actions of its employee.”

Bd. Of County

Com’rs of Bryan County, Okl. V. Brown, 520 U.S. 397, 405 (1997).
“[A] plaintiff seeking to establish municipal liability on the
theory that a facially lawful municipal action has led an
employee to violate a plaintiff’s rights must demonstrate that
the municipal action was taken with deliberate indifference as
to its known or obvious consequences.”

Id. at 407.

The

plaintiff must show that (1) a policymaker had (2) notice that a
constitutional violation was likely to occur, (3) acted with
deliberate indifference to the risk, and (4) the failure to act
caused the constitutional violation.
563 U.S. 51,

See Connick v. Thompson,

, 131 S.Ct. 1350, 1358 (2011).

“[D]eliberate

indifference is a stringent standard of fault, requiring proof
that a municipal actor disregarded a known or obvious
consequence of his action.”

Connick, 131 S.Ct. at 1360 (quoting

Bryan County, 520 U.S. at 410.
For example, in Bryan County, Mrs. Brown sued Sheriff Moore
18

and the County under § 1983 after Deputy Sheriff Burns used
excessive force against her by dragging her out of her car and
spinning her to the ground (causing severe injury to her knees).
Mrs. Brown claimed that the County was liable because the
policymaker, Sheriff Moore, had hired Burns, the son of Moore’s
nephew, even though Burns had pleaded guilty to various
misdemeanors, including assault and battery, resisting arrest
and public drunkenness.

A jury found that the hiring policy of

Bryan County in Burns’s case as instituted by its policymaker,
Sheriff Moore, amounted to deliberate indifference to the
constitutional rights of Mrs. Brown.

The Supreme Court

reversed, holding that the District Court had erred by
submitting the case to a jury “[b]ecause there was insufficient
evidence on which a jury could base a finding that Sheriff
Moore’s decision to hire Burns reflected conscious disregard of
an obvious risk that a use of excessive force would follow.”
Id. at 415.
Similarly, in Connick a jury found that the Orleans Parish
District Attorney’s Office had violated Thompson’s rights under
Brady v. Maryland, 373 U.S. 83 (1963), because Harry Connick,
the District Attorney-policymaker, failed to adequately train
his attorneys about their duty under Brady to produce
19

exculpatory evidence and this lack of training had caused nondisclosure of an exculpatory lab report identifying the blood
type of the perpetrator in a robbery case wherein Thompson was
wrongly convicted.

The Supreme Court held that the § 1983 case

had improperly gone to the jury because Thompson did not show
that Connick ”was on actual or constructive notice of, and
therefore deliberately indifferent to, a need for more or
different Brady training.”

Connick, 131 S.Ct. at 1358.

Significantly, the Court rejected the notion that a “showing of
obviousness can substitute for the pattern of violations
ordinarily necessary to establish municipal culpability,”
Connick, 131 S.Ct. at 1361, and held that the district court
“should have granted Connick judgment as a matter of law on the
failure-to-train claim because Thompson did not prove a pattern
of similar violations that would ‘establish that the policy of
inaction [was] the functional equivalent of a decision by the
city itself to violate the Constitution.’”

Id. at 1366 (quoting

Canton, 489 U.S. at 395).
In this case, the Complaint filed by Zampetis is deficient
because it does not assert facts (1) identifying the policymaker

20

for the Atlantic City police department4 at the time of the
incident, showing how that policymaker had (2) notice and (3)
“consciously disregarded an obvious risk that the officer[s]
would subsequently inflict a particular constitutional injury,”
Bd. Of County Com’rs of Bryan County, Okl. V. Brown, 520 U.S.
397, 411 (1997), and showing that the policymaker’s deliberate
indifference (4) caused the officers’ excessive force and false
arrest of Zampetis.

Under these circumstances, without more,

the Complaint does not factually substantiate its stated
conclusion that a policy or custom adopted by Atlantic City
caused the officers’ violation of Zampetis’s Fourth Amendment
rights.

See, e.g., Beck v. City of Pittsburgh, 89 F.3d 966 (3d

Cir. 1996) (holding that five written complaints of violence
against the officer who used excessive force against the
plaintiff, which had been transmitted through the chain of
command to the policymaker, the chief of police, were sufficient
to show that the chief knew or should have known of Williams’s
violent behavior in arresting citizens); Bielevicz v. Dubinon,

Under New Jersey law, the Chief of Police is the relevant
policymaker for a municipal police department. See Hernandez v.
Bor. Of Palisades Park Police Dept., 58 F. App’x 909, 913 (3d Cir.
2003)(citing N.J. Stat. Ann. § 40A:14-118).
4

21

915 F.2d 845, 851 (3d Cir. 1990) (“[T]o sustain a § 1983 action
against the City, plaintiffs must [show] 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 their injury.”)
In his reply brief, Zampetis relies on an opinion issued by
Magistrate Judge Schneider on April 10, 2015, in Costantino v.
City of Atlantic City, Civ. No. 13-6667 (RBK), 2015 WL 1609693
(D.N.J. Apr. 10, 2015),5 and the existence of other excessive
force actions in this Court against Atlantic City.

He argues

that these lawsuits show that Atlantic City had a custom of
acquiescing in its police officers’ violation of persons’ Fourth
Amendment rights.
To be sure, in 2014, three other New Jersey District Judges
denied Atlantic City’s summary judgment motions in excessive
force during arrest cases.

See Mehr v. Atlantic City, Civ. No.

Judge Schneider was not deciding a motion to dismiss under Rule
12(b)(6) and the docket shows that no defendant in Costantino filed
a motion to dismiss under Rule 12(b)(6). In addition, unlike the
Complaint filed by Zampetis, the second amended complaint filed by
Costantino alleged that the police officer involved in that case
was the subject of 21 civilian complaints of misconduct, 15 of
which related to excessive force, and that the officer, along with
the City of Atlantic City, were being sued in this Court in at
least five separate causes alleging excessive force.
5

22

12-4499 (RBK), 2014 WL 4350546 (D.N.J. Sept. 2, 2014); Forero v.
Atlantic City, Civ. No. 11-1630 (JHR), 2014 WL 1301535 (D.N.J.
Mar. 31, 2014); Cordial v. Atlantic City, Civ. No. 11-1457
(RMB), 2014 WL 1095584 (D.N.J. Mar. 19, 2014).

For example,

Judge Kugler held in Mehr that there were genuine issues of
material fact as to whether Atlantic City had a custom of
acquiescing in officers’ use of excessive force where the
plaintiff had presented evidence establishing that 509 excessive
force complaints had been lodged with Internal Affairs from 2005
to 2010, the officer who was alleged to have used excessive
force against Mehr had been the subject of 12 of those excessive
force complaints, and the Chief of Police at that time testified
that he was responsible for reviewing all Internal Affairs
complaints and forwarding them to the prosecutor.
2014 WL 4350546 at *10.

See Mehr,

Similarly, Judge Rodriguez denied

summary judgment to Atlantic City where the plaintiff had
provided evidence showing that one defendant-police officer in
that case had been the subject of seven Internal Affairs
complaints, the other officer had one excessive force complaint,
and 509 excessive force complaints had been filed with Internal
Affairs between 2005 and 2010.
*4.

See Forero, 2014 WL 13011535 at

As Judge Rodriguez and this Court observed, “statistical
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evidence alone may not justify a . . . finding that a municipal
policy or custom authorizes or condones the unconstitutional
acts of police officers.”

Merman v. City of Camden, 824 F.

Supp. 2d 581, 591 (D.N.J. 2010); Forero at *3.

“If a plaintiff

relies mainly on statistics showing the frequency of excessive
force complaints and how frequently they are sustained, the
plaintiff must show why the prior incidents were wrongly decided
[by Internal Affairs] and how the misconduct in the case is
similar to that involved in the present action.”

Forero at *3.

The problem with Zampetis’s Complaint is that it does not
set forth facts identifying the City’s policymaker (at the
relevant time) and showing that the policymaker’s deliberate
indifference caused the officers to violate his Fourth Amendment
rights.

The Court will dismiss the § 1983 claims against the

City of Atlantic City without prejudice to the filing of an
amended complaint curing the defects found by the Court within
30 days.6

In an amended complaint, Zampetis could cite the cases identified
by this Court, as well as others, but he must still identify the
policymaker – Chief of Police – at the time of the incident and
factually establish that the policymaker had notice, acted with
deliberate indifference, and that this deliberate indifference
caused injury to Zampetis.
6

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B.

Supplemental Jurisdiction
"Supplemental jurisdiction allows federal courts to hear

and decide state-law claims along with federal-law claims when
they are so related to claims in the action within such original
jurisdiction that they form part of the same case or
controversy."

Wisconsin Dept. of Corrections v. Schacht, 524

U.S. 381, 387 (1998) (citation and internal quotation marks
omitted).

Where a district court has original jurisdiction

pursuant to 28 U.S.C. § 1331 over federal claims and
supplemental jurisdiction over state claims pursuant to 28
U.S.C. § 1367(a), the district court has discretion to decline
to exercise supplemental jurisdiction if it has dismissed all
claims over which it has original jurisdiction.

See 28 U.S.C. §

1367(c)(3); Growth Horizons, Inc. v. Delaware County, PA, 983
F.2d 1277, 1284-1285 (3d Cir. 1993).

In this case, the Court is

dismissing every claim over which it had original subject matter
jurisdiction at an early stage in the litigation and declines to
exercise supplemental jurisdiction over Plaintiff's state law
claims pursuant to 28 U.S.C. § 1367(c)(3).
IV.

CONCLUSION

For the reasons set forth in this Opinion, this Court will
grant the motions to dismiss, dismiss the federal claims against
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all defendants without prejudice to the filing of an amended
complaint, and decline to exercise supplemental jurisdiction.

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

December 21, 2015

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