CASS v. THOMSON
OPINION. Signed by Chief Judge Jerome B. Simandle on 11/13/2015. (dmr)(n.m.)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
ALBERT P. CASS, III,
HONORABLE JEROME B. SIMANDLE
No. 15-6476 (JBS-JS)
CHIEF SCOTT THOMSON,
Albert P. Cass, III, Plaintiff Pro Se
Camden County Correctional Facility
330 Federal Street
Camden, New Jersey 08101
SIMANDLE, Chief Judge:
Before the Court is Plaintiff Albert P. Cass, III’s
(“Plaintiff”), submission of a civil rights complaint pursuant
to 42 U.S.C. § 1983. (Docket Entry 1). By Order dated September
21, 2015, this Court granted Plaintiff’s motion to proceed in
forma pauperis pursuant to 28 U.S.C. § 1915(a) and ordered the
Clerk to file the complaint. (Docket Entry 2).
At this time, the Court must review the complaint, pursuant
to 28 U.S.C. §§ 1915(e)(2) and 1915A to determine whether it
should be dismissed as frivolous or malicious, for failure to
state a claim upon which relief may be granted, or because it
seeks monetary relief from a defendant who is immune from such
relief. For the reasons set forth below, the Court concludes
that the complaint will be dismissed for failure to state a
claim, 28 U.S.C. § 1915(e)(2)(B)(ii).
Plaintiff brings this civil rights action against Scott
Thomson, the Chief of the Camden County Police Department
(“CCPD”). (Docket Entry 1). The following factual allegations
are taken from the complaint and are accepted for purposes of
this screening only. The Court has made no findings as to the
veracity of Plaintiff’s allegations.
On October 24, 2014, a warrant was issued for Plaintiff’s
arrest. (Docket Entry 1 at 4). Plaintiff alleges that on
November 4, 2014, his 2000 540i BMW was illegally seized by the
CCPD in order to arrest Plaintiff when he came to the impound
lot to claim his vehicle. (Docket Entry 1 at 4). The car was not
illegally parked in any way at the time of the seizure, and it
was registered with proper license plates on the front and back
of the vehicle. (Docket Entry 1 at 4). As of the date of the
complaint, Plaintiff has not received any motor vehicle tickets.
Plaintiff also indicates the BMW is not part of the crime for
which Plaintiff is awaiting trial. (Docket Entry 1 at 4).
Plaintiff asks this Court to order the CCPD to show cause
as to why they seized his vehicle, and to order them to pay for
the accrued impoundment fees or the value of his vehicle.
(Docket Entry 1 at 5).
III. STANDARD OF REVIEW
A. Standards for a Sua Sponte Dismissal
Per the Prison Litigation Reform Act, Pub. L. No. 104-134,
§§ 801-810, 110 Stat. 1321-66 to 1321-77 (April 26, 1996)
(“PLRA”), district courts must review complaints in those civil
actions in which a prisoner is proceeding in forma pauperis, see
28 U.S.C. § 1915(e)(2)(B), seeks redress against a governmental
employee or entity, see 28 U.S.C. § 1915A(b), or brings a claim
with respect to prison conditions, see 42 U.S.C. § 1997e. The
PLRA directs district courts to sua sponte dismiss any claim
that is frivolous, is malicious, fails to state a claim upon
which relief may be granted, or seeks monetary relief from a
defendant who is immune from such relief. This action is subject
to sua sponte screening for dismissal under 28 U.S.C. §§
1915(e)(2)(b) and 1915A because Plaintiff is a prisoner
proceeding in forma pauperis and is seeking relief from a
In determining the sufficiency of a pro se complaint, the
Court must be mindful to construe it liberally in favor of the
plaintiff. See Erickson v. Pardus, 551 U.S. 89, 93–94 (2007)
(following Estelle v. Gamble, 429 U.S. 97, 106 (1976)); see also
United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992).
According to the Supreme Court’s decision in Ashcroft v.
Iqbal, “a pleading that offers ‘labels or conclusions’ or ‘a
formulaic recitation of the elements of a cause of action will
not do.’” 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555 (2007)). To survive sua sponte
screening for failure to state a claim,1 the complaint must
allege “sufficient factual matter” to show that the claim is
facially plausible. Fowler v. UPMS Shadyside, 578 F.3d 203, 210
(3d Cir. 2009) (citation omitted). “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.” Fair Wind
Sailing, Inc. v. Dempster, 764 F.3d 303, 308 n.3 (3d Cir. 2014)
(quoting Iqbal, 556 U.S. at 678). Moreover, while pro se
pleadings are liberally construed, “pro se litigants still must
allege sufficient facts in their complaints to support a claim.”
Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013)
(citation omitted) (emphasis added).
“The legal standard for dismissing a complaint for failure to
state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) is the
same as that for dismissing a complaint pursuant to Federal Rule
of Civil Procedure 12(b)(6).” Schreane v. Seana, 506 F. App’x
120, 122 (3d Cir. 2012) (citing Allah v. Seiverling, 229 F.3d
220, 223 (3d Cir. 2000)); Mitchell v. Beard, 492 F. App’x 230,
232 (3d Cir. 2012) (discussing 28 U.S.C. § 1997e(c)(1));
Courteau v. United States, 287 F. App’x. 159, 162 (3d Cir. 2008)
(discussing 28 U.S.C. § 1915A(b)).
B. Section 1983 Actions
A plaintiff may have a cause of action under 42 U.S.C. §
1983 for certain violations of his constitutional rights.
Section 1983 provides in relevant part:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
or Territory ... 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 ....
§ 1983. Thus, to state a claim for relief under § 1983, a
plaintiff must allege, first, the violation of a right secured
by the Constitution or laws of the United States and, second,
that the alleged deprivation was committed or caused by a person
acting under color of state law. See West v. Atkins, 487 U.S.
42, 48 (1988); Malleus v. George, 641 F.3d 560, 563 (3d Cir.
2011); Piecknick v. Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir.
A. Fourth Amendment Claim
To state a Fourth Amendment claim for an illegal seizure, a
plaintiff must allege two elements: (1) that there was a
seizure; and (2) that the seizure was made without probable
cause.2 Plaintiff’s complaint sufficiently alleges these
elements; however, it fails to sufficiently allege Chief Thomson
is personally responsible for the seizure.
A chief of police is generally not liable under § 1983 for
acts of subordinate police officers in which he or she played no
role. “Government officials may not be held liable for the
unconstitutional conduct of their subordinates under a theory of
respondeat superior [and] a plaintiff must plead that each
Government-official defendant, through the official's own
actions, has violated the Constitution.” Ashcroft v. Iqbal, 556
U.S. 662, 676 (2009). See also Bistrian v. Levi, 696 F.3d 352,
366 (3d Cir. 2012). The Third Circuit has identified two general
ways in which a supervisor-defendant may be liable for
unconstitutional acts undertaken by subordinates: (1) “liability
may attach if they, with deliberate indifference to the
consequences, established and maintained a policy, practice or
custom which directly caused [the] constitutional harm”; or (2)
As Plaintiff does not allege his vehicle was seized for public
use, the Court does not construe his complaint as raising a
violation of the Fifth Amendment’s Takings Clause. See Am. Exp.
Travel Related Servs., Inc. v. Sidamon-Eristoff, 669 F.3d 359,
370 (3d Cir.) (“The Takings Clause of the Fifth Amendment
prohibits the federal government from taking private property
for public use without providing just compensation [and] applies
to state action through the Fourteenth Amendment.”), cert.
denied, 133 S. Ct. 345 (2012).
“a supervisor may be personally liable under § 1983 if he or she
participated in violating the plaintiffs rights, directed others
to violate them, or, as the person in charge, had knowledge of
and acquiesced in the subordinate's unconstitutional conduct.”
Barkes v. First Corr. Med., Inc., 766 F.3d 307, 316 (3d Cir.
2014) (internal citations omitted), rev'd on other grounds sub
nom Taylor v. Barkes, 135 S. Ct. 2042 (2015).
Plaintiff has alleged no facts that would permit this Court
to reasonably infer Chief Thomson was responsible for the
seizure of Plaintiff’s vehicle. As Plaintiff may be able to
allege facts that would permit such an inference against Chief
Thomson, or another officer who must be named as a Defendant,
Plaintiff shall be permitted to move to amend his complaint. See
Grayson v. Mayview State Hosp., 293 F.3d 103, 114 (3d Cir.
B. Leave to Amend
Plaintiff may move for leave to file an amended complaint
within 30 days of the date of this order. Any motion for leave
to amend must be accompanied by a proposed amended complaint.
Plaintiff should note that when an amended complaint is
filed, the original complaint no longer performs any function in
the case and cannot be utilized to cure defects in the amended
complaint, unless the relevant portion is specifically
incorporated in the new complaint. 6 Wright, Miller & Kane,
Federal Practice and Procedure 1476 (2d ed. 1990) (footnotes
omitted). An amended complaint may adopt some or all of the
allegations in the original complaint, but the identification of
the particular allegations to be adopted must be clear and
explicit. Ibid. To avoid confusion, the safer course is to file
an amended complaint that is complete in itself. Ibid.
For the reasons stated above, Plaintiff’s complaint is
dismissed without prejudice for failure to state a claim upon
which relief may be granted, 28 U.S.C. § 1915(e)(2)(B)(ii). An
appropriate order follows.
November 13, 2015
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?