RUSSELL v. THE CITY/TOWN OF HAMMONTON et al
Filing
5
OPINION. Signed by Judge Noel L. Hillman on 12/15/2015. (TH, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
________________________________
KERRY RUSSELL,
Civil No. 15-1669 (NLH/KMW)
Plaintiff,
OPINION
v.
THE CITY/TOWN OF
HAMMONTON, et al.,
Defendants.
__________________________________
APPEARANCES:
Kerry Russell
200 North Aurburn Street
Landisville, New Jersey 08325
Plaintiff Pro Se
HILLMAN, District Judge:
This screening follows the filing of Plaintiff’s Amended
Complaint [Doc. No. 3].
On August 31, 2015, the Court granted
Plaintiff’s IFP application [Doc No. 2] and dismissed
Plaintiff’s Complaint without prejudice because the Court was
unable to determine whether the Complaint stated a claim for
relief.
After reviewing Plaintiff’s Amended Complaint, the
Court will dismiss Plaintiff’s Amended Complaint without
prejudice, except to the extent Plaintiff states a malicious
prosecution claim against the individual officers.
1
Under the Prison Litigation Reform Act (PLRA) the Court,
prior to docketing or as soon as practicable after docketing,
must also review the complaint in a civil action in which a
plaintiff is proceeding in forma pauperis.
1915(e)(2)(B).
See 28 U.S.C. §
The PLRA requires the Court to sua sponte
dismiss any claim if the Court determines that it is frivolous,
malicious, fails to state a claim on which relief may be
granted, or seeks monetary relief from a defendant who is immune
from such relief.
Id.
A “document filed pro se is to be
liberally construed, . . . and a pro se complaint, however
inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers[.]”
Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (citations and internal quotation
marks omitted); see also Haines v. Kerner, 404 U.S. 519, 520
(1972).
In considering whether the plaintiff’s complaint fails to
state a claim, the 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, 350 (3d Cir. 2005); see also Phillips v. Cnty. of
Allegheny, 515 F.3d 224, 228 (3d Cir. 2008) (“[I]n deciding a
motion under Fed. R. Civ. P. 12(b)(6), [a district court is] . .
. required to accept as true all factual allegations in the
2
complaint and draw all inferences from the facts alleged in the
light most favorable to” the plaintiff).
The Court must ask “‘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, 583 (2007) (quoting Scheuer v. Rhoades, 416 U.S.
232, 236 (1974)); see also Ashcroft v. Iqbal, 129 S. Ct. 1937,
1953 (2009) (“Our decision in Twombly expounded the pleading
standard for ‘all civil actions[.]’”) (citation omitted).
“A complaint is subject to dismissal for failure to state a
claim if the allegations, taken as true, show the plaintiff is
not entitled to relief.
If the allegations, for example, show
that relief is barred by the applicable statute of limitations,
the complaint is subject to dismissal for failure to state a
claim[.]”
Jones v. Bock, 549 U.S. 199, 215, 127 S. Ct. 910,
920-21, 166 L. Ed. 2d 798 (2007).
“A United States District
Court may sua sponte raise the statute of limitations in
screening a complaint so long as the statute of limitations
defect is apparent from the face of the complaint and/or from
matters of which judicial notice may be had.”
Barren v.
Allegheny Cnty., Pa., No. 14–692, 2014 WL 4384598, at *7 (W.D.
Pa. Sept. 4, 2014) aff'd sub nom. 607 F. App'x 130 (3d Cir.
2015).
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I.
FACTS AND PROCEDURAL HISTORY
Plaintiff alleges that on February 5, 2012, he was stopped
by Officer Rigby of the Hammonton Police Department because his
license plate was covered by debris.
Plaintiff alleges Officer
Rigby conducted a sobriety and Breathalyzer test after detecting
the smell of alcohol on Plaintiff, which resulted in Plaintiff
being charged with a DUI.
Plaintiff further alleges that over
one month later, Officer Rigby falsely claimed that he stopped
Plaintiff again for driving with a suspended license.
Officer
Rigby thereafter obtained a warrant for Plaintiff’s arrest.
Plaintiff was arrested on March 20, 2012 by Officer Rigby and
unknown Buena Township Police Officers and then transferred to
the Atlantic County Detention Center where he posted bail.
Plaintiff alleges he was strip searched at the detention center.
On March 6, 2013, all charges against Plaintiff were dropped by
the prosecutor because Plaintiff was “illegal[ly] stopped.”
II.
DISCUSSION
The Court has construed seven claims in Plaintiff’s Amended
Complaint (hereafter, “Complaint”): false arrest, unlawful strip
search, conspiracy, municipal liability, malicious prosecution,
violations of the New Jersey Civil Rights Act, and selective
enforcement/racial profiling.
1. False Arrest, Strip Search and Conspiracy
4
Plaintiff seems to claim he was falsely arrested on two
occasions, first on February 5, 2012 and again on March 20,
2012.
Plaintiff alleges he was charged on February 5, 2012 with
a DUI then arrested on March 20, 2012 and transferred to the
Atlantic County Detention Center.
“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); Dowling v. City of Phila., 855 F.2d 136, 141 (3d
Cir. 1988)).
A claim for false arrest arises when a person is
arrested without probable cause and is subsequently detained
pursuant to that unlawful arrest.
See Adams v. Officer Eric
Selhorst, 449 F. App’x 198, 201 (3d Cir. 2011) (per curiam)
(citing Groman, 47 F.3d at 636).
The statute of limitations
period for a false arrest claim begins to run when the false
imprisonment ends.
Wallace v. Kato, 549 U.S. 384, 389, 127 S.
Ct. 1091, 1096, 166 L. Ed. 2d 973 (2007).
A false imprisonment
ends once the victim is bound over by a magistrate or arraigned
on charges.
Id.
Civil rights claims are best characterized as
personal injury actions and are governed by the applicable
state's statute of limitations for personal injury actions. See
Wilson v. Garcia, 471 U.S. 261, 280 (1985).
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Accordingly, New
Jersey's two-year limitations period on personal injury actions,
N.J. Stat. Ann. § 2A:14–2, governs Plaintiff's claims.
To the extent Plaintiff alleges he was falsely arrested on
February 5, 2012 and March 20, 2012, both claims are barred by
the statute of limitations.
Plaintiff alleges he was charged
with a DUI on February 5, 2012.
Plaintiff further alleges a
warrant was issued for his arrest on March 20, 2012.
Thereafter, he alleges he was transferred to the Atlantic County
Detention Center “where [he] made bail[].”
Id.
Plaintiff filed
the original complaint in this action on March 6, 2015.
The
statute of limitations ran on Plaintiff’s false arrest claims on
February 5, and March 20, 2014, respectively, approximately a
year out of time for both events.1
For the same reasons, Plaintiff’s claim that he was strip
searched on March 20, 2012 at the Atlantic County Detention
Center is also barred by the statute of limtiations.
Additionally, to the extent Plaintiff asserts a claim for civil
conspiracy as to these torts, Plaintiff’s claims are barred.
Muhammad v. Dempsey, 531 F. App'x 216, 219 (3d Cir. 2013) (“A
civil conspiracy claim requires a valid underlying tort claim,
1
Under New Jersey Court Rules, a person arrested on a warrant
must have bail set no later than 12 hours after arrest. See
N.J. Ct. R. 3:4-1(b). Even if Plaintiff made bail on March 21,
2012, the day after he was arrested, his complaint was still
filed over one year out of time.
6
see Gen. Refractories Co. v. Fireman's Fund Ins. Co., 337 F.3d
297, 313 (3d Cir. 2003), and § 1983 does not provide an
independent cause of action, see Boyanowski v. Capital Area
Intermediate Unit, 215 F.3d 396, 407 (3d Cir. 2000)).
Therefore, Plaintiff’s false arrest, strip search, and related
conspiracy claims are dismissed without prejudice.2
2. Monell Liability
Plaintiff alleges that Officer Rigby and unknown officers
in Buena Township and Hammonton, “pursuant to an official policy
or custom,” unlawfully and maliciously harassed, arrested, and
conspired to violate the rights of citizens.
Compl. at 16-17.
The Court reads Plaintiff’s complaint to allege municipal or
Monell liability pursuant to Section 1983.
See generally Monell
v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 98 S.
Ct. 2018, 56 L. Ed. 2d 611 (1978).
Plaintiff in this case has properly named the municipality,
Hammonton, as a defendant in this action.
However, with respect
to Hammonton’s involvement, Plaintiff alleges that Hammonton
“owned an maintained the Hammonton Police Department and
employed the individual defendant[s] sued herein” and is
“responsible for the policy of procedures implemented through
2
For the same reasons, Plaintiff’s state law tort claims of
assault and battery which allegedly occurred on March 20, 2012
in connection with his arrest are time barred.
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its various agencies[.]”
Compl. at 3, 4.
This statement is
insufficient to establish liability under Monell.
See
Hildebrand v. Allegheny County, 757 F.3d 99, 110–11 (3d Cir.
2014) (complaint must plead facts to support Monell liability);
McTernan v. City of York, Pa., 564 F.3d 636, 658 (3d Cir. 2009)
(stating to satisfy pleading standard for Monell claim,
complaint “must identify a custom or policy, and specify what
exactly that custom or policy was”).
Accordingly, Plaintiff’s
municipal liability claim is dismissed without prejudice.
3. Malicious Prosecution
To the extent Plaintiff alleges he was subject to a malicious
prosecution, the Court will allow Plaintiff’s claim to proceed
in part.
In the context of this claim, Plaintiff names Officer
Rigby, unknown Buena Township officers, and the “Municipal of
Hammonton” based on respondeat superior.
As an initial matter, it is well established that local
government units and supervisors are not liable under § 1983
solely on a theory of respondeat superior.
Monell, 436 U.S. at
690-91, 694 (municipal liability attaches only “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” complained of);
Natale v. Camden County Correctional Facility, 318 F.3d 575,
583-84 (3d Cir. 2003).
“A defendant in a civil rights action
8
must have personal involvement in the alleged wrongs, 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.”
Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)
(citations omitted).
Again, Plaintiff did not plead a specific policy or custom
by Hammonton which caused Plaintiff’s injury.
Further,
Hammonton cannot be liable solely through the operation of
respondeat superior.
As such, Plaintiff’s malicious prosecution
claim against Hammonton is dismissed without prejudice.
To the extent Plaintiff’s malicious prosecution claim is
asserted against the individual officers, however, Plaintiff’s
claim may proceed.
A constitutional claim for malicious
prosecution in the Third Circuit pursuant to Section 1983 and
New Jersey law requires a plaintiff to establish four elements:
“that the defendant (1) instituted proceedings (2) without
probable cause ... (3) with legal malice; and (4) the
proceedings terminated in favor of the plaintiff.”
Trabal v.
Wells Fargo Armored Serv. Corp., 269 F.3d 243, 248 (3d Cir.
2001) (citing Lightning Lube v. Witco Corp., 4 F.3d 1153, 1197
(3d Cir. 1993)).
A plaintiff's “[f]ailure to prove any one of
these four elements denies the plaintiff a cause of action [for
malicious prosecution.]”
Trabal, 269 F.3d at 248 (citing
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Fleming v. United Parcel Serv., 642 A.2d 1029, 1030 (N.J. Super.
Ct. App. Div. 1992), cert. denied, 516 U.S. 847 (1995)).
In order to satisfy the favorable termination element, the
Third Circuit requires that a prior criminal case was disposed
of in a way that indicates the innocence of the accused.
Donahue v. Gavin, 280 F.3d 371, 383 (3d Cir. 2002); see also
Hector v. Watt, 235 F.3d 154, 156 (3d Cir. 2000) (noting that “a
plaintiff claiming malicious prosecution must be innocent of the
crime charged in the underlying prosecution”).
Accordingly, “a
malicious prosecution claim cannot be predicated on an
underlying criminal proceeding which terminated in a manner
[that is] not indicative of the innocence of the accused.”
Kossler v. Crisanti, 564 F.3d 181, 187 (3d Cir. 2009).
Generally, a favorable termination includes: “(a) a discharge by
a magistrate at a preliminary hearing, or (b) the refusal of a
grand jury to indict, or (c) the formal abandonment of the
proceedings by the public prosecutor, or (d) the quashing of an
indictment or information, or (e) an acquittal, or (f) a final
order in favor of the accused by a trial or appellate court.”
Donahue, 280 F.3d at 383 (citation omitted).
Here, Plaintiff has attached to his complaint the formal
abandonment of the proceedings by the public prosecutor.
Accordingly, this prong of Plaintiff’s malicious prosecution
claim is satisfied.
Plaintiff has also sufficiently plead the
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remaining elements of the claim: that the criminal proceedings
against him lacked probable cause and were initiated with legal
malice.
Accordingly, Plaintiff’s malicious prosecution claims
against the individual officers may proceed.3
4. New Jersey Civil Rights Act
In addition to his federal civil rights claims, Plaintiff
asserts claims under the analogous New Jersey Civil Rights Act
(NJCRA).
N.J.S.A. 10:6–1.
Like Section 1983, NJCRA is a means
of vindicating substantive rights and is not a source of rights
itself.
Gormley v. Wood-El, 218 N.J. 72, 98, 93 A.3d 344, 358
(2014).
Plaintiff seeks redress pursuant to the NJCRA based on the
same facts plead in support of his Federal civil rights claims.
For the same reasons that Plaintiff’s Section 1983 claims will
be dismissed, Plaintiff’s state civil rights claims will be
dismissed.
Hottenstein v. City of Sea Isle City, 977 F. Supp.
2d 353, 365 (D.N.J. 2013) (“This district has repeatedly
interpreted NJCRA analogously to § 1983.”) (citing Pettit v. New
Jersey, 2011 WL 1325614, at *3 (D.N.J. Mar. 30, 2011); Armstrong
3
Plaintiff’s malicious prosecution claim is not likewise barred
by the statute of limitations because the claim accrues at the
time the criminal proceeding is terminated in the plaintiff’s
favor. Hill v. Algor, 85 F. Supp. 2d 391, 413 (D.N.J. 2000).
Plaintiff’s indictment was dismissed on March 6, 2013.
Plaintiff’s original complaint was filed March 6, 2015. Thus
Plaintiff’s malicious prosecution claim did not accrue when
Plaintiff’s original complaint was filed.
11
v. Sherman, No. 09–716, 2010 WL 2483911, *5 (D.N.J. June 4,
2010) (“[T]he New Jersey Civil Rights Act is a kind of analog to
section 1983....”); Johnson v. Passaic Cnty., No. 13-4363, 2014
WL 2203842, at *9 (D.N.J. May 23, 2014) (New Jersey Civil Rights
Act claims are also governed by the two-year statute of
limitations); Smith-Harper v. Thurlow, No. 15-1254, 2015 WL
3401419, at *3 (D.N.J. May 26, 2015) (citing Brown v. City of
Newark, No. 09–3752, 2010 WL 1704748, at *4 (D.N.J. Apr.26,
2010) (stating that although New Jersey Civil Rights Act does
not contain an express statute of limitations, language of New
Jersey's generally-applicable personal injury statute combined
with Act's similar purpose and design to Section 1983 convinces
the court that two-year statute of limitations applies)).
5. Selective Enforcement/Racial Profiling
Plaintiff generally alleges his arrest on March 20, 2012
was the result of selective enforcement/racial profiling.
Compl. at 29.
A Section 1983 selective enforcement claim begins
to accrue when the plaintiff is stopped by police officers.
Dique v. New Jersey State Police, 603 F.3d 181, 188 (3d Cir.
2010).
Again, Plaintiff was arrested on March 20, 2012 and did
not file his original complaint until March 6, 2015.
Thus,
Plaintiff’s claims are barred by the statute of limitations and
will be dismissed without prejudice.
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III. CONCLUSION
In conclusion, Plaintiff’s Amended Complaint will be
dismissed without prejudice except to the extent Plaintiff
states a malicious prosecution claim against Officer Rigby and
unknown Buena Township police officers.
The Court will Order
the Clerk to issue summons and the United States Marshal shall
serve summons, the Complaint and this Order upon Defendants,
with all costs of service advanced by the United States.
An Order consistent with this Opinion will be entered.
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
Date:
December 15, 2015
At Camden, New Jersey
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