SIMMER v. KEHLER, ESQUIRE et al
Filing
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OPINION. Signed by Judge Robert B. Kugler on 11/2/2015. (dmr)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
HONORABLE ROBERT B. KUGLER
KAITLIN SIMMER,
CIV. NO. 15-2285 (RBK/JS)
Plaintiff,
v.
OPINION
FAWN KEHLER, ESQUIRE, et al.
Defendants.
KUGLER, United State District Judge:
This is a civil rights lawsuit that comes before the Court on Defendant Fawn Kehler’s
Motion to Dismiss (“Def.’s Mot.”) [Dkt. No. 12]. Kehler seeks to have the complaint against her
be dismissed. For the reasons that follow, Defendant’s Motion is GRANTED-IN-PART and
the complaint against Kehler is DISMISSED.
I.
BACKGROUND
The following facts are alleged in the First Amended Complaint (the “FAC”) [Dkt. No.
13].1 Plaintiff, Kaitlin Simmer, met with Kehler at a bar in Stone Harbor, New Jersey on July 2,
2014. Following a period of time during which Simmer recalls having a mixed drink, a shot, and
half of a beer, Simmer got into a car with Kehler and four men, and remembers nothing after
that. Simmer next remembers waking in a stranger’s home the next morning. Upon waking, she
immediately fled the home, leaving behind her purse. The homeowners called Stone Harbor
Police to let them know they had Simmer’s purse, and a police officer went to the home to
1
The instant motion was filed before the First Amended Complaint, and so references within the
motion are to the original Complaint [Dkt. No. 1]. Because the allegations with respect to
Kehler are materially the same, the Court has not required any additional filings from Kehler to
align her motion with the First Amended Complaint.
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retrieve Simmer’s purse. When Simmer went to the police station to retrieve her purse, she was
arrested for criminal trespass, handcuffed to a bench for approximately two hours, and in custody
for approximately eight hours total.
Simmer feared that she had been drugged, causing her not to remember what happened
for a period of time. She also feared that she had been raped during the period she cannot
remember. Simmer consented to a blood test, the findings of which she has never seen. Simmer
also initially consented to undergo a rape kit examination, but then declined.
At some point, Kehler was interviewed by the police, and disputed Simmer’s recitation of
events. Kehler falsely told the police that she had not entered the vehicle with Simmer and the
four men, and had attempted to get Simmer to go home with her separately. Kehler then
allegedly coordinated with the police in order to have Simmer arrested and prosecuted without
probable cause.
On August 20, 2014, the Cape May County Prosecutor’s Office dismissed the criminal
charges against Simmer. Simmer then filed the instant lawsuit in federal court, claiming
violations of her Fourth and Fourteenth Amendment rights as actionable under 42 U.S.C. § 1983,
the New Jersey Civil Rights Act (the “NJCRA”), and New Jersey common law. Specifically, as
to Kehler, Simmer alleged that Kehler’s actions were committed under the color of state law and
as such contributed to the malicious prosecution, false arrest, and wrongful search and seizure of
Simmer. Kehler now moves to dismiss the claims against her.
II.
JURISDICTION
Simmer raises claims under federal civil rights law, 42 U.S.C. § 1983, the NJCRA,
N.J.S.A. 10:6-2, and New Jersey common law. This Court has jurisdiction over Simmer’s
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federal claim pursuant to 28 U.S.C. § 1331, and may choose to exercise its supplemental
jurisdiction over the related state law claims pursuant to 28 U.S.C. § 1367.2
III.
STANDARD
Federal Rule of Civil Procedure 12(b)(6) provides that a court may dismiss a complaint
“for failure to state a claim upon which relief can be granted.” In order to survive a motion to
dismiss, a complaint must allege facts that make a right to relief more than speculative. Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also Fed. R. Civ. P. 8(a)(2).
While a court must accept all allegations in the plaintiff’s complaint as true, viewing
them in the light most favorable to the plaintiff, Phillips v. Cnty. of Allegheny, 515 F.3d 224, 231
(3d Cir. 2008), a court is not required to accept sweeping legal conclusions cast as factual
allegations. Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). The complaint
must state sufficient facts to show that the legal allegations are not simply possible, but plausible.
Phillips, 515 F.3d at 234. “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
IV.
DISCUSSION
A.
CIVIL RIGHTS CLAIMS UNDER 42 U.S.C. § 1983 AND THE NJCRA
Simmer brings claims against Kehler under both federal and state civil rights laws. The
federal civil rights law, 42 U.S.C. § 1983, “subjects to liability those who deprive persons of
federal constitutional or statutory rights ‘under color of any statute, ordinance, regulation,
custom, or usage’ of a state.” Leshko v. Servis, 423 F.3d 337, 339 (3d Cir. 2005) (quoting 42
U.S.C. § 1983). “[A] plaintiff seeking to hold an individual liable under § 1983 must establish
2
The Court will ultimately decline to exercise supplemental jurisdiction over the state law claims
of malicious prosecution and false arrest. See infra, Section IV.B.
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that she was deprived of a federal constitutional or statutory right by a state actor.” Kach v.
Hose, 589 F.3d 626, 646 (3d Cir. 2009). Similarly, the NJCRA subjects to liability “a person
acting under color of law.” N.J.S.A. 10:6-2(c). Kehler seeks to have all claims brought against
her under federal and state civil rights laws dismissed on the grounds that she is not a state actor.
Courts of this district have consistently interpreted § 1983 and the NJCRA analogously.
See Trafton v. City of Woodbury, 799 F. Supp. 2d 417, 443–444 (D.N.J. 2011) (collecting cases).
Accordingly, the claims under § 1983 and the NJCRA will be analyzed together, and must rise or
fall together.
To establish one as being a state actor, “[t]he principal question at stake is whether there
is such a close nexus between the state and the challenged action that seemingly private behavior
may be fairly treated as that of the State itself.” Leshko, 423 F.3d at 339 (quoting Brentwood
Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 (2001)) (internal quotations
omitted). The Third Circuit has provided three broad tests to determine whether state action
exists:
(1) [W]hether the private entity has exercised powers that are traditionally the
exclusive prerogative of the state; (2) whether the private party has acted with the
help of or in concert with state officials; and (3) whether the state has so far
insinuated itself into a position of interdependence with the acting party that it must
be recognized as a joint participant in the challenged activity.
Kach, 589 F.3d at 646 (quoting Mark v. Borough of Hatboro, 51 F.3d 1137, 1142 (3d. Cir.
1995)) (alterations and internal quotation marks omitted).
Simmer’s claims under the civil rights laws are based on the premise that Kehler gave
knowingly false information to the police, and subsequently conspired with them to have Simmer
arrested and charged with trespass. Simmer makes no other allegations that Kehler would be a
state actor in any other manner, and concedes as much in her opposition. Pl.’s Opp. [Dkt. No.
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19] at 9–10.3 Simmer fails to sufficiently plead that Kehler was a state actor, and so the civil
rights claims against Kehler will be dismissed.
Merely giving information to police officers is insufficient to convert a private party into
a state actor. See Braxton v. Lenhardt, Civ. No. 12-5155 (RBK), 2013 WL 3336685, at *7
(D.N.J. July 2, 2013) (finding no state action where a private party “merely responded to what
appeared to be a legitimate police request for information regarding criminal activity”); see also
Moldowan v. City of Warren, 578 F.3d 351, 399 (6th Cir. 2009) (“Providing information to the
police, responding to questions about a crime, and offering witness testimony at a criminal trial
does not expose a private individual to liability for actions take ‘under color of law.’”); Cooper v.
Muldoon, Civ. No. 05-4780, 2006 WL 1117870, at *2 (E.D. Pa. Apr. 26, 2006) (“Merely calling
the police, furnishing information to the police, or communicating with a state official does not
rise to the level of joint action necessary to transform a private entity into a state actor.”); Fisk v.
Letterman, 401 F. Supp. 2d 362, 367 (S.D.N.Y. 2005) (“[A] private party who calls police
officers for assistance or provides them with information that may lead to an arrest of an
individual does not become a state actor . . . unless the police officers were improperly influence
or controlled by the private party.”).
This remains true even if the information given is false. See Collins v. Christie, Civ. No.
06-4702, 2007 WL 2407105, at *4 & n.9 (E.D. Pa. 2007) (finding no state action on the basis of
giving statements to the police, even if knowingly false) (citing Kahermanes v. Marchese, 361 F.
Supp. 168, 171 (E.D. Pa. 1973) (“The deliberate giving of false information by an individual to a
police officer to cause the arrest of another does not give rise to a cause of action under the Civil
3
Plaintiff’s Opposition has no page numbers, so all citations to Plaintiff’s Opposition are to the
page numbers assigned by the CM/ECF system.
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Rights Acts.”)); Gilbert v. Feld, 788 F. Supp. 854, 860 (E.D. Pa. 1992) (finding no state action
where the complaint alleged that the private party provided the District Attorney with “false and
misleading information in order to instigate criminal charges against plaintiff.”). Accordingly,
the mere act of Kehler speaking to the police and providing information, which for the purposes
of this motion is assumed to be false information, does not in and of itself make Kehler a state
actor.
However, providing false information to the police, coupled with a conspiracy to violate
constitutional rights, can transform a private actor into a state actor. Cf. Bailey v. Harleysville
Nat’l Bank & Trust, 188 F. App’x 66, 68 (3d Cir. 2006) (“[I]n the absence of a conspiracy with
the police to violate constitutional rights, a business’s summons of a police officer to deal with a
possible disturbance, does not make it a state actor.”) (citing Adickes v. S.H. Kress & Co., 398
U.S. 144, 152 (1970)); see also Pugh v. Downs, 641 F. Supp. 2d 468, 474–75 (E.D. Pa. 2009)
(“The deciding inquiry [to determine state actor status] was whether the state official surrendered
the exercise of its official judgment to a private party, either pursuant to an agreement or statute,
thus turning the private party into a state actor.”) (citing Lugar v. Edmonson Oil Co., Inc., 457
U.S. 922 (1982) and Cruz v. Donnelly, 727 F.2d 79 (3d Cir. 1984)).
In order to sustain a claim that Kehler acted in concert with the police at the pleading
stage, Simmer “must assert facts from which a conspiratorial agreement can be inferred.” Great
W. Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 178 (3d Cir. 2010). The
pleading must provide “enough factual matter (taken as true) to suggest that an agreement was
made.” Id. (quoting Twombly, 550 U.S. at 556) (internal quotations omitted). In her claim of a
conspiracy between Kehler and the police, Simmer pleads:
Upon information and belief, the police colluded with Kehler, solicited and/or even
encouraged the aforesaid false reporting. . . . To perpetuate her misconduct,
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Defendant, Kehler clothed herself with the color of state authority through the use
of Defendant, Stone Harbor Police Department. Kehler and the Borough of Stone
Harbor arrested and/or coordinated by mutual agreement Plaintiff’s arrest, without
probable nor any cause.
FAC ¶¶ 22, 27.
The Third Circuit in Great Western Mining explained in analyzing a conspiracy claim on
an appeal from a motion to dismiss, “we do not consider any conclusory allegations that there
was ‘a corrupt conspiracy,’ ‘an agreement,’ or ‘an understanding in place between the
Defendants and the [government entity].’” 615 F.3d at 178 (citing Iqbal, 556 U.S. at 679–81).
Here, too, this Court disregards the conclusory allegations of Simmer that “the police colluded
with Kehler”, that “Kehler clothed herself with the color of state authority,” and that “Kehler and
the Borough of Stone Harbor arrested and/or coordinated by mutual agreement Plaintiff’s arrest.”
FAC ¶¶ 22, 27. Further, Simmer has pleaded no facts to suggest any meeting of the minds. Like
the complaint in Great Western Mining, Simmer’s complaint “sets for merely a conclusory
allegation of agreement at some unspecified point, which does not supply facts adequate to show
illegality.” 615 F.3d at 179 (quoting Twombly, 550 U.S. at 557) (alterations and internal
quotations omitted).
The case Simmer points to in support of her position, Luck v. Mt. Airy No. 1, LLC, 901 F.
Supp. 2d 547 (M.D. Pa. 2012), is inapposite. The court in Luck specifically rejected the
proposition that speaking to the police made the private party a state actor, remarking, “the mere
fact that a private actor called the police does not transform him into a state actor.” 901 F. Supp.
2d at 562 n.7 (citing Cooper v. Muldoon, Civ. No. 05-4780, 2006 WL 1117870, *2 (E.D. Pa.
Apr. 26, 2006)). What the court relied on to deem the private parties state actors was that “the
[police] allowed [the private parties] to substitute its judgment in deciding whether to arrest the
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plaintiffs for criminal trespass.” Id. at 562–63. That is not the case here, and Simmer does not
allege as such in the FAC.
Therefore, the complaint does not adequately plead that Kehler was a state actor,
Kehler’s motion will be granted with respect to all claims against her under 42 U.S.C. § 1983
and the NJCRA, and the civil rights claims against Kehler will be dismissed.
B.
COMMON LAW FALSE ARREST AND MALICIOUS PROSECUTION
Once the federal claims have been dismissed against Kehler, Simmer requests that this
Court dismiss the remaining state law claims. Pl.’s Opp. at 8. The supplemental jurisdiction
statute contemplates this type of situation, and states that this Court “may decline to exercises
supplemental jurisdiction . . . if . . . the district court has dismissed all claims over which it has
original jurisdiction.” 28 U.S.C. § 1367(c)(3). In the Third Circuit, “where the claim over which
the district court has original jurisdiction is dismissed before trial, the district court must decline
to decide the pendent state claims unless considerations of judicial economy, convenience, and
fairness to the parties provide an affirmative justification for doing so.” Hedges v. Musco, 204
F.3d 109, 123 (3d Cir. 2000) (quoting Borough of W. Mifflin v. Lancaster, 45 F.3d 780, 788 (3d
Cir. 1995)) (emphasis added in original).
As such, this Court declines to exercise supplemental jurisdiction over the state law
claims of false arrest and malicious prosecution pursuant to 28 U.S.C. § 1367(c)(3), and will
dismiss Simmer’s remaining claims against Kehler.
C.
REQUESTS TO AMEND AND CONDUCT LIMITED DISCOVERY
Finally, Simmer’s opposition includes two requests: (1) leave to amend her complaint to
cure any deficiencies, Pl.’s Opp. at 7; and (2) permission to conduct limited discovery on the
issue of whether Kehler was a state actor, Pl.’s Opp. at 9. Both requests are denied.
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Permitting Simmer leave to amend her complaint would be giving Simmer a second bite
at the apple. “A District Court has discretion to deny a plaintiff leave to amend where the
plaintiff was put on notice as to the deficiencies in his complaint, but chose not to resolve them.”
Krantz v. Prudential Inv. Fund Mgmt. LLC, 305 F.3d 140, 144 (3d Cir. 2002). Simmer was
aware of the issues in Kehler’s motion to dismiss, which was originally filed on May 28, 2015
and filed an amended complaint on June 22, 2015 in response. See Order Retroactively Granting
Plaintiff Leave to Amend the Complaint (July 16, 2015) [Dkt. No. 18]. Following the Court’s
order of July 16, 2015 granting Simmer retroactive leave to amend her complaint, Simmer filed
her opposition to Kehler’s original motion to dismiss on July 20, 2015. Accordingly Simmer’s
request will be denied.
As to Simmer’s request to conduct limited discovery into Kehler’s status as a state actor,
this too will be denied. Simmer points to no authority in support of her request. Kehler’s reply
directs this Court to Federal Rule of Civil Procedure 11(b)(3), and argues that this rule does not
contemplate the relief Kehler requests. Def.’s Reply [Dkt. No. 20] at 3. This Court agrees, and
as such, this request will also be denied.
V.
CONCLUSION
For the foregoing reasons, Kehler’s Motion to Dismiss will be granted-in-part with
respect to all of the civil rights claims under 42 U.S.C. § 1983 and the NJCRA, this Court will
decline to exercise supplemental jurisdiction over the state law claims, and the complaint against
Kehler will be dismissed. An appropriate order accompanies this opinion.
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Date: November 2nd , 2015
s/ Robert B. Kugler
ROBERT B. KUGLER, U.S.D.J.
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