REED v. NEW JERSEY STATE POLICE et al

Filing 64

OPINION FILED. Signed by Judge Noel L. Hillman on 4/6/16. (js)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________
JOHNNY L. REED, IV,
Plaintiff,

Civil No. 15-1305 (NLH/JS)

v.
OPINION
WINSLOW TOWNSHIP, POLICE OFFICER
J. HURD, WINSLOW TOWNSHIP POLICE
DEPARTMENT, RONALD B. THOMPSON,
ESQ., CAMDEN COUNTY HEALTH
SERVICES, NEW JERSEY DEPARTMENT
OF CHILDREN AND FAMILIES,
SUPERINTENDENT JOSEPH FUENTES,
AND ALISON BLAKE,
Defendants.
__________________________________
APPEARANCES:
Johnny L. Reed, IV
P.O. Box 109
Sicklerville, NJ 08081
Pro Se Plaintiff
Anne E. Walters
Office of County Counsel
Courthouse, 14th Floor
520 Market Street
Camden, NJ 08102
Attorney for Defendant Camden County Health Services
Vincent Rizzo
Matthew J. Lynch
Deputy Attorney Generals
State Of New Jersey
Office of the Attorney General Division of Law
25 Market Street
P.O. Box 112
Trenton, NJ 08625
Attorneys for Defendants New Jersey Department of Children
and Families, Commissioner Alison Blake, and New Jersey
State Police Superintendent Joseph Fuentes

1

Robert J. Gillispie, Jr.
Mayfield Turner O'Mara Donnelly & McBride
2201 Route 38
Suite 300
Cherry Hill, NJ 08002
Attorney for Defendants J. Hurd, Robert Stimelski, Winslow
Township (Police Department), and Winslow Township Police
Department
Ronald B. Thompson, Esq.
563 Berlin Cross Keys Road
Sicklerville, NJ 08081
Pro Se Defendant
HILLMAN, District Judge
Presently before the Court are four motions to dismiss
filed by four different groups of Defendants.

For the reasons

that follow, the motions [Doc. Nos. 47, 50, 51, 57] will be
granted and Plaintiff’s amended complaint will be dismissed in
its entirety.
I.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiff, Johnny L. Reed, IV, filed a pro se complaint on

February 19, 2015 [Doc. No. 1] and an amended complaint on
October 7, 2015 [Doc. No. 42].

Plaintiff alleges that in March

and May 2008 he was falsely arrested by the New Jersey State
Police and Winslow Township Police Department, involuntarily
committed to Kennedy Memorial Hospital, and then transferred to
Camden County Health Services and involuntarily committed for a
three week evaluation.

(Am. Compl. ¶¶ 72, 89, 94.)

Plaintiff

further alleges that while he was involuntarily committed he was
administered dangerous drugs which caused him to suffer adverse
2

side effects.

(Am. Compl. ¶ 108.)

Plaintiff alleges that as a

result of these events, the New Jersey Division of Children and
Families wrongfully removed his child from his custody.
Compl. ¶ 114.)

(Am.

Plaintiff also claims his former attorney

committed malpractice.

(Am. Compl. ¶ 64.)

Plaintiff’s six-

count amended complaint alleges 42 U.S.C. § 1983 claims against
all Defendants for the March 2008 arrest (Count I), § 1983
claims against all Defendants for the May 2008 arrest (Count
II), a common law fraud claim against all Defendants (Count
III), a negligence claim against all Defendants (Count IV), an
attorney malpractice claim against Ronald B. Thompson, Esq.
(Count V), and a claim against all Defendants for the infliction
of extreme emotional distress (Count VI).

Plaintiff seeks

compensatory damages, punitive damages and equitable relief
against the New Jersey Division of Children and Families by
declaring the adoption of Plaintiff’s child void.1
II.

STANDARD OF REVIEW

When considering a motion to dismiss a complaint for
failure to state a claim upon which relief can be granted
pursuant to Rule 12(b)(6), a court must accept all allegations

1

Plaintiff filed a complaint on the same
in this Court but focused specifically on
parental rights. That complaint was also
New Jersey Div. of Youth & Family Servs.,
2012 WL 1224418 (D.N.J. Apr. 10, 2012).
3

facts on July 27, 2009
the termination of his
dismissed. Reed v.
No. 09-3765 (NLH),

in the complaint as true and view them in the light most
favorable to the plaintiff.
347, 350 (3d Cir. 2005).

See Evancho v. Fisher, 423 F.3d

A complaint must contain “a short and

plain statement of the claim showing that the pleader is
entitled to relief.”

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

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
claims[.]’”

Bell Atl. Corp. 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, 129 S. Ct. 1937, 1953
(2009) (“Our decision in Twombly expounded the pleading standard
for ‘all civil actions[.]’”) (citation omitted).

The Third

Circuit has instructed district courts to conduct a two-part
analysis in deciding a motion to dismiss.

Fowler v. UPMC

Shadyside, 578 F.3d 203, 210 (3d Cir. 2009).
First, a district court “must accept all of the complaint’s
well-pleaded facts as true, but may disregard any legal
conclusions.”

Fowler, 578 F.3d at 210-11 (citing Iqbal, 129 S.

Ct. at 1949).

Second, a district court must “determine whether

the facts alleged in the complaint are sufficient to show that
the plaintiff has a ‘plausible claim for relief.’”
(quoting Iqbal, 129 S. Ct. at 1950).

4

Id. at 211

“[A] complaint must do

more than allege the plaintiff’s entitlement to relief.”

Id.

“‘[W]here the well-pleaded facts do not permit the court to
infer more than the mere possibility of misconduct, the
complaint has alleged – but it has not ‘show[n]’ - ‘that the
pleader is entitled to relief.’’”

Id. (quoting Iqbal, 129 S.

Ct. at 1949); see also Phillips v. County of Allegheny, 515 F.3d
224, 234 (3d Cir. 2008) (“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.”) (quoting Twombly, 550 U.S. at 556).
A court need not credit “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, 1429–
30 (3d Cir. 1997).

The defendant has the burden of

demonstrating that no claim has been presented.

Hedges v.

United States, 404 F.3d 744, 750 (3d Cir. 2005) (citing Kehr
Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir.
1991)).

5

III. DISCUSSION
Camden County Health Services’ motion asserts that
Plaintiff’s claims must be dismissed because (1) the federal
claims are barred by a two-year statute of limitations; (2) the
state claims are barred because Plaintiff failed to file a tort
claims notice; and (3) Camden County is not a person under §
1983.

Winslow Township, Winslow Township Police Department,

Winslow Township Police Chief Robert Stimelski and Winslow
Township Police Officer Joseph Hurd (collectively, the “Winslow
Defendants”) also assert that (1) the federal claims are barred
by a two-year statute of limitations; (2) the state claims are
barred because Plaintiff failed to file a tort claims notice;
and further argue that Plaintiff has failed state a claim under
§ 1983 and for common law fraud.

Defendants New Jersey

Department of Children and Families, New Jersey State Police
Superintendent Rick Fuentes and New Jersey Department of
Children and Families Commissioner Alison Blake2 argue that (1)
the entity Defendants are immune from suit; (2) the entity
Defendants are not persons under § 1983; (3) the Court lacks
jurisdiction under the Rooker-Feldman Doctrine; (4) the state
supervisors are entitled to qualified immunity; and (5) the tort
claims are barred because Plaintiff failed to file a notice of

2

Plaintiff does not name the New Jersey State Police in his
amended complaint.
6

tort claim.

Defendant Ronald B. Thompson, Plaintiff’s former

counsel in the 2008 cases, moves to dismiss Plaintiff’s claims
for legal malpractice because Plaintiff failed to file an
affidavit of merit or submit expert testimony.
Plaintiff opposes Camden County’s motion on the grounds
that the statute of limitations does not bar his claims because
he is disabled and is still in “custody.”
47].

(Opp. at 3 [Doc. No.

Plaintiff also opposes Thompson’s motion on the grounds

that he does not require expert testimony because Thompson was
censured by the New Jersey Attorney Disciplinary Review Board in
2008 (Opp. at 2 [Doc. No. 62]).3
A. Section 1983 and State Tort Claims Against Camden County
and the Winslow Defendants
Camden County and the Winslow Defendants both assert that
Plaintiff’s § 1983 claims are barred by a two-year statute of
limitations.

The accrual date of a Section 1983 civil rights

action is entirely a question of federal law.

Wallace v. Kato,

549 U.S. 384, 388, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007);
Fullman v. Pa. Dep't of Corr., 265 Fed. App’x 44, 46 (3d Cir.
2008).

“The limitations period for purposes of § 1983 claims

begins to run from the time when the plaintiff knows or has

3

Defendant Thompson asks the Court not to consider Plaintiff’s
opposition because it was filed late. [Doc. No. 63]. The Court
exercises its discretion to consider briefs filed outside
prescribed time limits. D'Orazio v. Washington Twp., 501 Fed.
App’x 185, 187 (3d Cir. 2012).
7

reason to know of the injury which is the basis of the section
1983 action.”

Fullman, 265 Fed. App’x at 46 (citation and

internal quotation marks omitted).

Although federal law governs

the accrual date, the applicable limitations period for a
Section 1983 claim is the statute of limitations for personal
injuries in the state in which the cause of action arose.
Wallace, 549 U.S. at 387; Marcum v. Harris, 328 Fed. App’x 792,
795 (3d Cir. 2009).

Plaintiff's cause of action arose against

Defendants in the State of New Jersey.

In New Jersey, the

statute of limitations for personal injury claims, and thus for
Section 1983 claims, is two years.

See N.J.S.A. 2A:14–2(a);

Genty v. Resolution Trust Corp., 937 F.2d 899, 919 (3d Cir.
1991) (citing Cito v. Bridgewater Twp. Police Dep't, 892 F.2d
23, 25 (3d Cir. 1989)).

Further, N.J.S.A. 2A:14-2 provides that

state tort claims are subject to a two-year statute of
limitations.
Additionally, “[t]o bring an action in tort against a
‘public entity or public employee’ in New Jersey, the claimant
must file a notice of claim with the entity within ninety days
of the accrual of the claim or else be ‘forever barred’ from
asserting that cause of action.”

County Concrete Corp. v. Town

of Roxbury, 442 F.3d 159, 174 (3d Cir. 2006) (citing N.J.S.A. §
59:8-3 and 8).

N.J.S.A. 59:8-9 permits the filing of a late

tort claims notice, within one year after the accrual of the
8

cause of action, if extraordinary circumstances are shown and
the public entity has not been prejudiced.

McDade v. Siazon,

208 N.J. 463, 468, 32 A.3d 1122, 1125 (2011).
Here, the claims against Camden County and the Winslow
Defendants occurred in March and May 2008.
120, 121.)

(Am. Compl. ¶¶ 89,

On the face of the complaint, Plaintiff’s § 1983

claims are barred by the two-year statute of limitations, which
expired in 2010.

Plaintiff’s original complaint was filed five

years later in 2015.

For the same reasons, Plaintiff’s state

tort claims for personal injury are also barred under N.J.S.A.
2A:14-2.
Further, Plaintiff has not complied with the notice
requirements of the New Jersey Tort Claims Act and, therefore,
his state law claims against these Defendants must be dismissed.
See McDade, 208 N.J. at 469 (affirming appellate court’s finding
that summary judgment should have been granted in favor of
defendants where plaintiff failed to comply with the notice
requirements under the New Jersey Tort Claims Act); Smart v.
Taylor, No. 05-1777 (NLH), 2008 WL 755904, at *6 (D.N.J. Mar.
19, 2008) (dismissing state law claims against defendant for
failure to comply with the notice requirements of the New Jersey
Tort Claims Act).
Plaintiff argues that the statute of limitations must be
tolled because he is disabled and still in “custody.”
9

(Opp. at

3 [Doc. No. 47].)

Plaintiff’s amended complaint states that the

events described in his complaint caused him to suffer “extreme
emotional distress, requiring prescription medication to treat
his ‘post traumatic syndrome condition.’”

(Am. Compl. ¶ 116.)

However, even accepting this allegation as true, Plaintiff has
not plausibly alleged how a mental disability prevented him for
the past six years from filing a timely legal action.4

Second,

the actions accrued upon the false arrest and the commitment;
the statute does not continue to run today even if Plaintiff is
in some type of “custody.”

(Opp. at 3 [Doc. No. 47.]

Further,

Plaintiff submits no explanation as to why a Notice of Tort
Claim was never filed and does not request leave to file one
now.
As to Plaintiff’s fraud claim, Plaintiff has not stated a
claim as to these Defendants.

The five elements of common law

fraud are: (1) a material misrepresentation of a presently
existing or past fact; (2) knowledge or belief by the defendant
of its falsity; (3) an intention that the other person rely on

4

The Court notes that N.J.S.A. § 2A:14-21 provides that tort
claims may be tolled if the plaintiff has “a mental disability
that prevents the person from understanding his legal rights or
commencing a legal action.” The same exception applies to the
New Jersey Tort Claims Act. N.J.S.A. § 59:8-8. However,
Plaintiff has not pled that a mental disability prevented him
from filing a complaint until 2015.

10

it; (4) reasonable reliance thereon by the other person; and (5)
resulting damages.

Triffin v. Automatic Data Processing, Inc.,

394 N.J. Super. 237, 246, 926 A.2d 362, 368 (App. Div. 2007)
(citation omitted).

Plaintiff has not alleged that Camden

County Health Services or the Winslow Defendants misrepresented
any material fact to Plaintiff or how that representation
damaged Plaintiff.

Accordingly, as to Camden County and the

Winslow Defendants, Plaintiff also fails to state a fraud claim.
As such, all claims against these Defendants will be dismissed.
B. Claims Against the New Jersey Department of Children and
Families, Commissioner Alison Blake and New Jersey State
Police Superintendent Joseph Fuentes
Plaintiff alleges that the New Jersey Department of
Children and Families “executed false internal reports and
intentionally or negligently conducted an internal
investigation” which resulted in Plaintiff losing custody of his
son.

(Am. Compl. ¶ 114.)

Plaintiff further alleges New Jersey

Department of Children and Families Commissioner Alison Blake
failed to train and supervise her staff.

(Am. Compl. ¶ 115.)

Additionally, Plaintiff alleges New Jersey State Police
Superintendent Rick Fuentes “failed to provide proper
supervision over his subordinates, and allowed an informal
policy to exist where his subordinates could employ a racial
animus against the plaintiff”.

(Am. Compl. ¶ 50.)

11

Plaintiff’s

claims against Fuentes are in his official and individual
capacities.
42 U.S.C. § 1983 provides that, “[e]very person who, under
color of any statute, ordinance, regulation, custom, or usage,
of any State . . . subjects, or causes to be subjected, any
citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law.”
State is not a “person” within the meaning of § 1983.

A

Will v.

Michigan Dep't of State Police, 491 U.S. 58, 65, 109 S. Ct.
2304, 2309, 105 L. Ed. 2d 45 (1989).
“A state agency is entitled to immunity from suit in a
federal court under the Eleventh Amendment when a judgment
against it ‘would have had essentially the same practical
consequences as a judgment against the State itself.’”

Fitchik

v. New Jersey Transit Rail Operations, Inc., 873 F.2d 655, 658
(3d Cir. 1989) (citing Lake Country Estates, Inc. v. Tahoe
Regional Planning Agency, 440 U.S. 391, 401, 99 S.Ct. 1171,
1177, 59 L.Ed.2d 401 (1979)).

Additionally, “a suit against a

state official in his or her official capacity is not a suit
against the official but rather is a suit against the official's
office . . .

[a]s such, it is no different from a suit against

the State itself.”

Id. at 71.

The New Jersey State Police,
12

Department of Children and Families, and their officials are
immune from suit for this reason.

MCI Telecomm. Corp. v. Bell

Atl. Pennsylvania, 271 F.3d 491, 503 (3d Cir. 2001) (Eleventh
Amendment immunity extends to state agencies and departments).
There is, however, an exception to this general rule under
the Ex Parte Young doctrine, where a plaintiff may sue state
officials in their official capacities but only for prospective
injunctive and declaratory relief to end continuing or ongoing
violations of federal law.

Id. at 506.

Here, Plaintiff seeks

compensatory and punitive damages, and therefore the Ex Parte
Young exception does not apply to pierce the State’s immunity as
to these claims.
However, as to the New Jersey Division of Children and
Families, Plaintiff also seeks an Order from this Court
declaring his son’s adoption void.

As the Court explained in

Plaintiff’s previous case, the Rooker–Feldman doctrine deprives
a federal district court of jurisdiction to review, directly or
indirectly, a state court adjudication.

Reed v. New Jersey Div.

of Youth & Family Servs., No. 09-3765 (NLH), 2012 WL 1224418, at
*2 (D.N.J. Apr. 10, 2012) (citing Judge v. Canada, 208 Fed.
App’x 106, 107 (3d Cir. 2006)).

As such, the Court must dismiss

this claim for declaratory relief because it lacks subject
matter jurisdiction.

13

Finally, the Court considers Plaintiff’s claim against
Defendant Fuentes in his “individual capacity.”
8.)

(Am. Compl. ¶

The Eleventh Amendment does not bar suits for damages

against government officials sued in their personal capacities.
Garden State Elec. Inspection Servs., Inc. v. Levin, 144 Fed.
App’x 247, 251 (3d Cir. 2005).

To assert a claim for

supervisory liability under § 1983 a plaintiff may establish
that there was an unconstitutional custom “by showing that a
given course of conduct, although not specifically endorsed or
authorized by law, is so well-settled and permanent as virtually
to constitute law.

In other words, custom may be established by

proving knowledge of, and acquiescence to, a practice.”
v. Abington Twp., 478 F.3d 144, 156 (3d Cir. 2007).

Watson

Plaintiff’s

amended complaint fails to allege that the New Jersey State
Police’s “racial animus” was so well-settled and permanent as
virtually to constitute law, or that Defendant Fuentes had any
knowledge of this alleged practice.

Accordingly, this

individual capacity claim must be dismissed.
Additionally, any state claims asserted against Fuentes,
Blake or the Department of Children and Families must be
dismissed for failure to comply with the notice of claim
provisions of the New Jersey Tort Claims Act, as discussed
supra.

Lassoff v. New Jersey, 414 F. Supp. 2d 483, 489 (D.N.J.

14

2006).

Accordingly, all claims against these Defendants are

dismissed.
C. Attorney Malpractice Claims Against Thompson
Defendant Thompson argues that Plaintiff fails to state a
claim because he has provided no expert testimony regarding the
standard of care or an affidavit of merit pursuant to N.J.S.A.
2A: 53A-27.

Plaintiff argues breach of the standard of care has

been demonstrated by Thompson’s censure by New Jersey Supreme
Court for Rules of Professional Conduct violations in another
case.
In New Jersey, legal malpractice suits are grounded in the
tort of negligence.

McGrogan v. Till, 167 N.J. 414, 425, 771

A.2d 1187, 1193 (2001) (citation omitted).

“The elements of a

cause of action for legal malpractice are (1) the existence of
an attorney-client relationship creating a duty of care by the
defendant attorney, (2) the breach of that duty by the
defendant, and (3) proximate causation of the damages claimed by
the plaintiff.

Id.

In New Jersey, in actions for damages for

attorney malpractice a plaintiff must timely file an affidavit
of merit.

N.J.S.A. § 2A:53A-27.

The New Jersey affidavit of

merit statute is substantive state law that must be applied by
federal courts sitting in diversity.

Chamberlain v. Giampapa,

210 F.3d 154 (3d Cir. 2000). N.J.S.A. § 2A:53A-27 provides:

15

In any action for damages for personal injuries,
wrongful death or property damage resulting from an
alleged act of malpractice or negligence by a licensed
person in his profession or occupation, the plaintiff
shall, within 60 days following the date of filing of
the answer to the complaint by the defendant, provide
each defendant with an affidavit of an appropriate
licensed person that there exists a reasonable
probability that the care, skill or knowledge
exercised or exhibited in the treatment, practice or
work that is the subject of the complaint, fell
outside acceptable professional or occupational
standards or treatment practices. The court may grant
no more than one additional period, not to exceed 60
days, to file the affidavit pursuant to this section,
upon a finding of good cause.

The court may grant a 60 day extension but if a plaintiff fails
to file the affidavit within 120 days of the filing of the
answer, the complaint will be dismissed with prejudice unless
extraordinary circumstances prevented the filing.

Palanque v.

LambertWoolley, 168 N.J. 398, 404, 774 A.2d 501 (2001) (citing
Cornblatt v. Barow, 153 N.J. 218, 247, 708 A.2d 401 (1998));
Burns v. Belafsky, 166 N.J. 466, 470–71, 766 A.2d 1095 (2001).
Where an affidavit of merit is required, failure to provide one
constitutes a “failure to state a cause of action.”

N.J.S.A.

2A:53A-29.
While an affidavit of merit is normally required in a legal
malpractice action alleging negligence in the exercise of
professional judgment (Levinson v. D'Alfonso & Stein, 320 N.J.
Super. 312, 314, 727 A.2d 87 (App. Div. 1999)), there is an
16

exception where the deviation from the standard of care falls
within the common knowledge of a juror (Hubbard v. Reed, 168
N.J. 387, 390, 774 A.2d 495 (2001)).

Stated a different way,

the common knowledge doctrine applies where “jurors' common
knowledge as lay persons is sufficient to enable them, using
ordinary understanding and experience, to determine a
defendant's negligence without the benefit of the specialized
knowledge of experts.”

Id. at 394 (citing Estate of Chin v.

Saint Barnabas Med. Ctr., 160 N.J. 454, 469, 734 A.2d 778
(1999)).
New Jersey case law provides that the Rules of Professional
Conduct “may be relied on as prescribing the requisite standard
of care and the scope of the attorney's duty to the client.”
Gilles v. Wiley, Malehorn & Sirota, 345 N.J. Super. 119, 125-26,
783 A.2d 756, 760 (App. Div. 2001) (citing Baxt v. Liloia, 155
N.J. 190, 201, 714 A.2d 271 (1998)) (“Thus violation of an
R.P.C. has essentially the same status and function in a
malpractice action as a statute that prescribes a standard of
conduct has in a negligence action.

Its breach is evidential of

defendant's failure to comply with the required standard of
care.”); Davin, L.L.C. v. Daham, 329 N.J. Super. 54, 74 n.3, 746
A.2d 1034 (App. Div. 2000).

However, while professional rules

violations may be useful in determining whether a standard of
care has been breached, the “[r]ule must be intended to protect
17

a person in the plaintiff's position or be addressed to the
particular harm suffered by the plaintiff.”

Baxt v. Liloia, 155

N.J. 190, 203, 714 A.2d 271, 277-78 (1998) (internal citation
omitted).
As to attorney malpractice, Plaintiff alleges that
Thompson, “in a rush to end the case advised plaintiff to
accepted a not guilty plea/verdict by reason of insanity,
informing plaintiff that he could reopen or appeal the matter
down the road.”

(Am. Compl. ¶ 62.)

Plaintiff also alleges

Thompson failed to make timely, scheduled court appearances (id.
at ¶ 65), ignored Plaintiff’s version of the facts and coerced
him into an insanity plea (id. at ¶ 66) and failed to make
appropriate motions during the criminal prosecution (id. at 67).
Further, Plaintiff attached to his opposition motion5 the New
Jersey Attorney Disciplinary Board order which admonished
Thompson for violating Rules of Professional Conduct 1.3 (lack
of diligence) and 1.4(b) (failure to keep client reasonably
informed about the status of the matter or to promptly reply to

5

In ruling on a motion to dismiss, the Court has “‘discretion to
address evidence outside the complaint ....’” CitiSteel USA,
Inc. v. General Electric Co., 78 F. App'x 832, 835 (3d Cir.
2003) (quoting Pryor v. Nat'l Collegiate Athletic Ass'n, 288
F.3d 548, 559 (3d Cir. 2002)). Thus, the court “‘may consider
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.’” Id. (quoting PBGC v. White Consol.
Indus., 998 F.2d 1192, 1196 (3d Cir. 1993)).
18

reasonable requests for information) as to a different client.
The Court finds that this determination by the Supreme Court of
New Jersey in regard to a different client in a different
factual scenario is insufficient to show a violation of a
standard in conduct in Plaintiff’s case.

While perhaps a

censure regarding Plaintiff’s case would place Plaintiff’s
instant claims in the realm of “common knowledge,” Rules of
Professional Conduct violations regarding other clients do not
demonstrate a standard of care violation in this case.
As the Court has found that the “common knowledge”
exception does not apply, Plaintiff’s failure to file a timely
affidavit of merit constitutes a “failure to state a cause of
action.”

N.J.S.A. 2A:53A-29.

Further, in the absence of a

showing of extraordinary circumstances, Plaintiff’s complaint is
subject to dismissal with prejudice.

Stoecker v. Echevarria,

408 N.J. Super. 597, 611, 975 A.2d 975, 983 (App. Div. 2009)
(“[T]he plaintiff's failure to serve the affidavit within 120
days of the filing of the answer is considered tantamount to the
failure to state a cause of action, subjecting the complaint to
dismissal with prejudice.”).
As to Plaintiff’s fraud claim, failure to comply with the
affidavit of merit statute likewise requires dismissal of
Plaintiff’s fraud claim based on the same facts.

Levinson v.

D'Alfonso & Stein, 320 N.J. Super. 312, 315, 727 A.2d 87, 88
19

(App. Div. 1999); Portes v. Tan, No. A-3940-11T3, 2014 WL
463140, at *10 (N.J. Super. Ct. App. Div. Feb. 6, 2014)

(“If a

plaintiff bases his or her fraud claim on the same allegations
as the malpractice claim, ‘merely adding the label “fraud” to’
them without alleging the elements of legal or equitable fraud,
then it may not be treated as a separate and distinguishable
claim.”) (citation omitted).

Additionally, all state law tort

claims asserted against Thompson are subject to dismissal
without prejudice because they are barred by the statute of
limitations under N.J.S.A. 2A:14-2.
IV.

CONCLUSION

For the reasons discussed, the motions to dismiss [Doc.
Nos. 47, 50, 51, 57] will be granted.

Plaintiff’s claims

against Defendants Camden County Health Services, Winslow
Township, Winslow Township Police Department, Winslow Township
Police Chief Robert Stimelski, Winslow Township
Police Officer Joseph Hurd, New Jersey Department of Children
and Families, Commissioner Alison Blake, and New Jersey State
Police Superintendent Joseph Fuentes will be dismissed.
Plaintiff’s malpractice claim against Ronald B. Thompson, Esq.
will be dismissed with prejudice and the remaining claims
against Thompson will be dismissed without prejudice.
The Court recognizes that to the extent Plaintiff’s claims
implicate civil rights violations, Third Circuit precedent
20

“supports the notion that in civil rights cases district courts
must offer amendment--irrespective of whether it is requested-when dismissing a case for failure to state a claim unless doing
so would be inequitable or futile.”

Fletcher-Harlee Corp. v.

Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir.
2007).

For this reason, Plaintiff is granted thirty (30) days

leave to amend his complaint to cure the deficiencies noted in
this Opinion, with the exception of the malpractice claim, which
will be dismissed with prejudice.

If Plaintiff is unable to

cure the deficiencies within this time period the case will be
closed.

Dated: April 6, 2016

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

At Camden, New Jersey

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