THE ESTATE OF MATTHEW MCKLOSKEY et al v. FRANKLIN TOWNSHIP et al

Filing 69

OPINION. Signed by Judge Joseph H. Rodriguez on 9/7/2016. (tf, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

ESTATE OF MATTHEW MCKLOSKEY
et al.,

Plaintiffs,

v.

FRANKLIN TOWNSHIP, et al.,

Defendants.

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Civ. No. 15‐4171 (JHR/AMD)

OPINION

APPEARANCES:
NICHOLAS M. FAUSTO, ESQ.
1 Convention Blvd., Suite 2‐293
Atlantic City, New Jersey 08401

and

MICHAEL E. STOSIC, ESQ. (pro hac vice)
236 Market Street, #3
Philadelphia, Pennsylvania 19106

Counsel for Plaintiffs

RICHARDSON EMPLOYMENT AND CIVIL RIGHTS LAW
By: Allan E. Richardson, Esq.
142 Emerson St., Suite B
Woodbury, New Jersey 08096
Counsel for Defendants Franklin Township and Nicholas Locilento

MADDEN & MADDEN, PA
By: Patrick J. Madden, Esq.
108 Kings Highway East, Suite 200
P.O. Box 210
Haddonfield, New Jersey 08033
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Counsel for Defendant Gloucester County

ARCHER & GREINER, PC
By: John C. Connell, Esq.
Kerri E. Chewning, Esq.
Daniel J. Defiglio, Esq.
One Centennial Square
P.O. Box 3000
Haddonfield, New Jersey 08033
Counsel for Gloucester County Prosecutor’s Office and Gloucester
County Prosecutor Sean Dalton

RODRIGUEZ, United States District Judge:

In the evening of December 28, 2014, ten year‐old Matthew McKloskey was

struck and killed by a police car driven by Defendant Franklin Township Police
Officer Nicholas Locilento. Plaintiffs‐‐ Matthew’s mother, Michelle Harding, and
Matthew’s Estate‐‐ assert claims against Defendants Locilento, Franklin Township,
Gloucester County, the Gloucester County Prosecutor’s Office, and Gloucester
County Prosecutor Sean Dalton.1

Presently before the Court are two Motions to Dismiss pursuant to Fed. R. Civ.

P. 12(b)(6): (1) the Motion of Defendant Gloucester County (Docket #44); and (2)

1 Defendant New Jersey Department of Transportation was previously dismissed

from this suit on 11th Amendment grounds.
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the Motion of Defendants Gloucester County Prosecutor’s Office, and Prosecutor
Sean Dalton (Docket #51).
For the reasons stated herein, the Court holds that the Amended Complaint
fails to plead sufficient facts to plausibly support a finding of liability against the
County and Prosecutor Dalton. Plaintiffs will be allowed an opportunity to amend
the Amended Complaint to attempt to cure these pleading deficiencies. Further, the
Court holds that the claim against the Gloucester County Prosecutor’s Office fails as
a matter of law.

II.

BACKGROUND

The following facts are alleged in the Amended Complaint.

Matthew McKloskey and two friends were crossing Delsea Drive (also known

as New Jersey State Route 47) in Franklin Township, New Jersey, around 7:00 p.m.
(Amend. Compl. ¶¶ 12, 16) It was late December, it was dark outside, and it was
raining. (Id. ¶¶ 12, 20)

Defendant Officer Locilento, “who had fairly recently been hired by Franklin

Township,” “was responding to a non‐emergency call that was less than three miles
away.” (Amend. Compl. ¶¶ 18, 20) Locilento was driving “around 80 [miles per
hour] without lights and sirens” when he struck Matthew with his car. (Id. ¶ 21)

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Very shortly thereafter, Matthew died as a result of the injuries he sustained. (Id. ¶¶
28, 103)
Claims against Defendant Gloucester County

Plaintiffs assert in each of Counts 1, 5, 6, and 9 of the Amended Complaint, the

liability of both Franklin Township and Gloucester County “jointly and severally,”
asserting claims of § 1983 / Monell liability (Count 1); “negligent training” (Count
5); “respondeat superior” (Count 6); and wrongful death / survivorship (Count 9).

With respect to Gloucester County, the Amended Complaint contains only one

factual allegation: “Officer NICHOLS LOCILENTO made th[e] decision [to drive 80
miles per hour without lights and sirens] based all or in part on the directions,
policy, training and procedures of the Franklin County [sic] Police Department
and/or Gloucester County.” (Amend. Compl. ¶ 22)

The Amended Complaint also contains the following conclusory allegations:
 “Based upon the principles set forth in Monell v. New York
City Department Of Social Services, 436 U.S. 658, FRANKLIN
TOWNSHIP and GLOUCESTER COUNTY, both jointly and/or
severally, through it[s] employees, agents and/or any other
party failed in it’s [sic] duties when i[t] failed to properly
train, monitor, provide adequate supervision, and/or
otherwise manage it’s [sic] employees.” (Amend. Compl. ¶
30; see also id. ¶ 95)

 “Franklin Township and Gloucester County, whether jointly
or severally created a custom and/or culture that led to the
reckless, callous and/or deliberate indifference of the Police
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Officers in regards to implementing safety procedures while
on non‐emergency calls to prevent the injury of citizens.”
(Amend. Compl. ¶ 32)

 “Defendants Gloucester County and Franklin Township,
Franklin Township Police Department, jointly and/or
severally whether intentional, negligent, carless or reckless
in failing to afford employees and/or other agents the proper
and special training necessary for the duties they could
foreseeably be expected to perform in the course of the
employment in that defendants received inadequate training
regarding the response to non‐emergency calls and calls
generally. The actions were the custom or policies of the
Franklin County [sic] and the Police Department.” (Amend.
Compl. ¶¶ 74‐75)
 “Defendants Gloucester County and Franklin Township,
Franklin Township Police Department, jointly and/or
severally is [sic] liable in respondent [sic] superior.” (Amend.
Compl. ¶ 79)

Claims against Defendants Gloucester County Prosecutor’s Office and Prosecutor Sean
Dalton

The Amended Complaint asserts one count (Count 3) against the Prosecutor
Defendants—individual liability and Monell liability under § 1983. Somewhat
confusingly, the Amended Complaint alleges that the Prosecutor Defendants failed
to: (a) reduce the speed limit on the relevant portion of the roadway; (b) install
rumble strips on the road; (c) install “proper signage”; “and/or” (d) take “other
related safety precautions.” (Amend. Compl. ¶ 40)

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III.

STANDARD OF REVIEW

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 raise a right to relief
above the speculative level. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007);
see also Fed. R. Civ. P. 8(a)(2). While a court must accept as true all factual
allegations in the plaintiff’s complaint, and view them in the light most favorable to
the plaintiff, Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008), a court
is not required to accept sweeping legal conclusions cast in the form of factual
allegations, unwarranted inferences, or unsupported conclusions. 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).

“[I]f a complaint is subject to a Rule 12(b)(6) dismissal, a district court must

permit a curative amendment unless such an amendment would be inequitable or
futile.” Great Western Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 174
(3d Cir. 2010) (internal citation and quotation omitted; emphasis added).
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IV.

DISCUSSION
A.

Defendant Gloucester County moves to dismiss pursuant to Fed. R. Civ. P.

12(b)(6), arguing that the Amended Complaint lacks sufficient factual allegations to
pass muster under Fed. R. Civ. P. 8, Twombly, and Iqbal.
Specifically, Gloucester County argues that the Amended Complaint fails to
articulate “how the County exerted control over Defendant Franklin Township.”
(Moving Brief, p. 2) This is significant because it appears undisputed that Franklin
Township‐‐ not the County‐‐ directly controls the Franklin Township Police
Department, and is primarily responsible for supervising and training Franklin
Township police officers. (See also Amend. Compl. ¶ 18)(alleging that Franklin
Township “hired” Officer Locilento).

In opposition to the motion, Plaintiffs submit exhibits which, they assert,

demonstrate that Gloucester County Prosecutor Sean Dalton “played a part in the
making of practices and policies” for Franklin Township and its police officers.
(Opposition Brief, p. 8, and Exhibits A‐B) Plaintiffs request leave to amend their
Amended Complaint. (Opposition Brief, p. 9)

Gloucester County has filed no reply to Plaintiffs’ opposition.

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The allegations concerning Gloucester County currently lack sufficient factual

support to raise Plaintiffs’ claims above the speculative level. See Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009)(“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.”).
Plaintiffs will, however, be granted leave to amend their Amended Complaint
in an attempt to cure the pleading deficiencies as to Gloucester County. See Great
Western Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 174 (3d Cir. 2010)
(“[I]f a complaint is subject to a Rule 12(b)(6) dismissal, a district court must permit
a curative amendment unless such an amendment would be inequitable or
futile.”)(internal citation and quotation omitted; emphasis added).

B.
1. Defendant Gloucester County Prosecutor’s Office

The Motion to Dismiss of the Gloucester County Prosecutor’s Office will be

granted.

A county prosecutor’s office is not a “person” capable of being sued under §

1983.2 Sutton v. Gloucester County Prosecutors Office, 2014 U.S. Dist. LEXIS 70302

2 Section 1983 provides, in relevant part, “[e]very person who, under color of any

statute, ordinance, regulation, custom, or usage, of any State or Territory . . .
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(D.N.J. May 21, 2014) (holding that the Gloucester County Prosecutor’s Office is not a
“person” under § 1983); see also Egas v. Fit Rite Body Parts, Inc., 2014 U.S. Dist.
LEXIS 113493 at *8 (D.N.J. Aug. 15, 2014) (prosecutor’s office not a “person” under
§ 1983); Gordon v. Berkeley Twp Police, 2011 U.S. Dist. LEXIS 69595at *4 (D.N.J.
June 27, 2011)(same); Baker v. Lewis, 2010 U.S. Dist. LEXIS 110945 at *1 n.1 (D.N.J.
Oct. 18, 2010)(same); Nugent v. County of Hunterdon, 2010 U.S. Dist. LEXIS 47654
at *4 (D.N.J. May 14, 2010)(same); West v. City of Jersey City Police Dep't, 2009 U.S.
Dist. LEXIS 57584 at *14 (D.N.J. July 6, 2009)(same); Stackhouse v. City of E. Orange,
2008 U.S. Dist. LEXIS 90727 at *13‐14 (D.N.J. Nov. 6, 2008)(same); Smith v. H.C.
Prosecutors Office, 2008 U.S. Dist. LEXIS 55660 at *7 (D.N.J. July 15, 2008)(same).

Accordingly, the Amended Complaint fails to state a claim for § 1983 liability

against the Gloucester County Prosecutor’s Office. The Motion to Dismiss will be
granted in this respect.

2. Prosecutor Sean Dalton in his individual capacity

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, suit in equity, or other proper proceeding for redress.” 42 U.S.C.
§ 1983.
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The Amended Complaint fails to plausibly allege Prosecutor Dalton’s liability
based on his alleged failure to take safety precautions on the relevant roadway. It is
not at all clear why, or how, an individual county prosecutor would be responsible
for maintaining safety conditions on the road. Indeed, Prosecutor Dalton, in support
of his instant motion, explains that his duties are limited by statute to the “detection,
arrest, indictment and conviction of offenders against the laws,” N.J.S.A. 2A:158‐5,
and that legislative authority to regulate roadways lies with the New Jersey
Department of Transportation, see N.J.S.A. 27:1A‐1.
In opposition to the instant Motion, Plaintiffs assert a completely different
theory of liability as to Prosecutor Dalton. As noted in Section IV., A. above, they
submit exhibits which, they assert, demonstrate that Gloucester County Prosecutor
Sean Dalton “played a part in the making of practices and policies” for Franklin
Township and its police officers. The Amended Complaint, as currently drafted,
however, contains no such factual allegations.

Plaintiffs will be granted leave to amend their Amended Complaint in an

attempt to cure the pleading deficiencies as to Prosecutor Dalton. See Great Western
Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 174 (3d Cir. 2010) (“[I]f a
complaint is subject to a Rule 12(b)(6) dismissal, a district court must permit a
curative amendment unless such an amendment would be inequitable or
futile.”)(internal citation and quotation omitted; emphasis added).
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V.

CONCLUSION

For the above‐stated reasons, the Motions to Dismiss of Defendants

Gloucester County and Prosecutor Sean Dalton will be dismissed without prejudice;
Plaintiffs will be granted leave to amend their Amended Complaint within 30 days.
The Motion to Dismiss of Defendant Gloucester County Prosecutor’s Office will be
granted.
An appropriate order accompanies this opinion.

Date: September 7, 2016

____s/ Joseph H. Rodriguez____________
JOSEPH H. RODRIGUEZ, U.S.D.J.

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