SLIPPI-MENSAH v. MILLS et al
Filing
12
OPINION. Signed by Judge Noel L. Hillman on 9/14/2016. (TH, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
SHEENA SLIPPI-MENSAH,
1:15-cv-07750-NLH-JS
Plaintiff,
OPINION
v.
TROOPER J.M. MILLS #7412, et
al.,
Defendants.
APPEARANCES:
LINDA L. CAMPBELL
JOHN B. KEARNEY
KEARNEY & ASSOCIATES, P.C.
210 WHITE HORSE PIKE
P.O. BOX 279
HADDON HEIGHTS, NJ 08035
On behalf of plaintiff
SUZANNE MARIE DAVIES
STATE OF NEW JERSEY
OFFICE OF THE ATTORNEY GENERAL
25 MARKET STREET
P.O. BOX 112
TRENTON, NJ 08625
On behalf of defendants
HILLMAN, District Judge
This case concerns allegations of racial profiling by New
Jersey state troopers.
Presently before the Court is the motion
of defendants to dismiss plaintiff’s complaint.
For the reasons
expressed below, defendants’ motion will be granted, but
plaintiff will be afforded leave to file an amended complaint
within thirty days.
BACKGROUND
According to plaintiff’s complaint, on May 24, 2014, at
about 3:30am, plaintiff, Sheena Slippi-Mensah, was driving home
from a friend’s house in Philadelphia, PA.
Defendants, Trooper
J.M. Mills #7412 and Trooper II A. M. Sparacio #6821 of the New
Jersey State police, observed plaintiff, a young female African
American driving a new Cadillac on 1-295.
The troopers pulled
her over, stating that plaintiff was speeding and failed to
maintain a single lane.
The troopers performed field sobriety
tests, after which they arrested plaintiff for DUI and
transported her to the station.
She was given two breath tests,
which reported a reading of .00% blood alcohol level, and a
urine test.
She was charged with Driving Under the Influence,
Speeding, and Failure to Maintain Lane, and released to her
mother.
Plaintiff claims that at the municipal court hearing,
one of the defendants told the municipal prosecutor that they
were going to hang plaintiff.
All of the charges against plaintiff were ultimately
dismissed.
Plaintiff contends that because there does not
appear to be any legitimate reason for stopping, arresting, and
charging her, the motivation appears to be defendants’ racial
bias.
Based on these allegations, plaintiff has asserted claims
for violations of her state and federal constitutional rights
pursuant to the New Jersey Civil Rights Act, N.J.S.A. 10:6-2(c),
2
42 U.S.C. §§ 1983 and 1986, and conspiracy to violate her civil
rights, 42 U.S.C. § 1988.
She has also asserted claims for
“intentional tort,” “reckless/gross negligence,” negligence and
“failure to train” for defendants’ alleged the violation of the
state’s policy against racial profiling and one count under the
New Jersey Law Against Discrimination.
Defendants have moved to dismiss plaintiff’s claims on
several bases.
In response, plaintiff concedes that her claims
against the state, and the defendants acting in their official
capacities, must be dismissed based on Eleventh Amendment
immunity.
Plaintiff argues that the remainder of her claims are
properly pleaded and may proceed.
DISCUSSION
A.
Subject matter jurisdiction
Plaintiff has brought her claims pursuant to 42 U.S.C. §
1983, as well as the New Jersey constitution and New Jersey
state law.
This Court has jurisdiction over plaintiff’s federal
claims under 28 U.S.C. § 1331, and supplemental jurisdiction
over plaintiff’s state law claims under 28 U.S.C. § 1367.
B.
Standard for motion to dismiss
When considering a motion to dismiss a complaint for
failure to state a claim upon which relief can be granted
pursuant to Federal Rule of Civil Procedure 12(b)(6), a court
must accept all well-pleaded allegations in the complaint as
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true and view them in the light most favorable to the plaintiff.
Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005).
It is well
settled that a pleading is sufficient if it contains “a short
and plain statement of the claim showing that the pleader is
entitled to relief.”
Fed. R. Civ. P. 8(a)(2).
Under the
liberal federal pleading rules, it is not necessary to plead
evidence, and it is not necessary to plead all the facts that
serve as a basis for the claim.
F.2d 434, 446 (3d Cir. 1977).
Bogosian v. Gulf Oil Corp., 562
However, “[a]lthough the Federal
Rules of Civil Procedure do not require a claimant to set forth
an intricately detailed description of the asserted basis for
relief, they do require that the pleadings give defendant fair
notice of what the plaintiff’s claim is and the grounds upon
which it rests.”
Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S.
147, 149-50 n.3 (1984) (quotation and citation omitted).
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
claim.’”
Bell Atlantic 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, 684 (2009) (“Our decision in
Twombly expounded the pleading standard for ‘all civil actions’
. . . .”); Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir.
2009) (“Iqbal . . . provides the final nail-in-the-coffin for
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the ‘no set of facts’ standard that applied to federal
complaints before Twombly.”).
Following the Twombly/Iqbal standard, the Third Circuit has
instructed a two-part analysis in reviewing a complaint under
Rule 12(b)(6).
First, the factual and legal elements of a claim
should be separated; a district court must accept all of the
complaint's well-pleaded facts as true, but may disregard any
legal conclusions.
S. Ct. at 1950).
Fowler, 578 F.3d at 210 (citing Iqbal, 129
Second, a district court must then determine
whether the facts alleged in the complaint are sufficient to
show that the plaintiff has a “‘plausible claim for relief.’”
Id. (quoting Iqbal, 129 S. Ct. at 1950).
A complaint must do
more than allege the plaintiff's entitlement to relief.
Id.;
see also Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d
Cir. 2008) (stating that 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”).
A court need not credit either “bald
assertions” or “legal conclusions” in a complaint when deciding
a motion to dismiss.
In re Burlington Coat Factory Sec. Litig.,
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114 F.3d 1410, 1429-30 (3d Cir. 1997).
The defendant bears the
burden of showing that no claim has been presented.
Hedges v.
U.S., 404 F.3d 744, 750 (3d Cir. 2005) (citing Kehr Packages,
Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991)).
A court in reviewing a Rule 12(b)(6) motion must only
consider the facts alleged in the pleadings, the documents
attached thereto as exhibits, and matters of judicial notice.
S. Cross Overseas Agencies, Inc. v. Kwong Shipping Grp. Ltd.,
181 F.3d 410, 426 (3d Cir. 1999).
A court may consider,
however, “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.”
Pension Benefit Guar. Corp.
v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.
1993).
If any other matters outside the pleadings are presented
to the court, and the court does not exclude those matters, a
Rule 12(b)(6) motion will be treated as a summary judgment
motion pursuant to Rule 56.
C.
Fed. R. Civ. P. 12(b).
Analysis
Defendants argue that plaintiff’s claims against the
arresting troopers, J.M. Mills and A.M. Sparacio, must be
dismissed because not only are they too conclusory to withstand
the Twombly/Iqbal analysis, the dashboard video footage of the
traffic stop demonstrates that they acted properly and did not
target plaintiff because of her race.
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Defendants also argue
that plaintiff’s claims against the supervisory defendants fail
because they are conclusory without any supportive facts.
As a primary matter, the Court finds that it cannot
consider the video in assessing the viability of plaintiff’s
complaint at this motion to dismiss stage, for two reasons.
First, the video only encompasses one part of the events that
are the basis for plaintiff’s claims.
In addition to her claims
related to the traffic stop, plaintiff’s claims also include
allegations regarding her treatment at the station, where she
spent several hours being questioned, urine tested, and
handcuffed, as well as comments made at the municipal court
hearing.
The video does not show these events, and even if it
could be found that the officers acted properly during the time
the video was recording, it does not depict the subsequent
events that also form the basis of plaintiff’s claims. 1
Second, even though defendants argue that because the
“circumstances of the stop form the basis of plaintiff’s claims,
it is integral to the complaint, and can be considered by this
court on a motion to dismiss” (Docket No. 8-4 at 10), this video
does not qualify for the Pension Benefit’s exception.
As set
forth above, when deciding a motion to dismiss courts generally
1
For this reason, even if the Court were to consider the video
and convert defendants’ motion into one for summary judgment,
summary judgment would still be denied.
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consider only the allegations contained in the complaint,
exhibits attached to the complaint, and matters of public
record, but a 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.”
Pension Benefit, 998 F.2d at 1196.
What is critical to this
exception “is whether the claims in the complaint are ‘based’ on
an extrinsic document and not merely whether the extrinsic
document was explicitly cited.”
Schmidt v. Skolas, 770 F.3d
241, 249 (3d Cir. 2014) (citation omitted).
Plaintiff’s complaint does not cite to, refer to, or attach
the video footage of the traffic stop.
Simply because a video
that captured the events complained of in the complaint exists
does not transform that video into a “document” upon which the
complaint is based.
For example, in Liebler v. City of Hoboken,
2016 WL 3965198 (D.N.J. July 21, 2016), the plaintiff alleged
that the City of Hoboken and certain of its officials violated
his First Amendment rights by shouting him down and ejecting him
from a City Council meeting at which he was entitled to speak.
The defendants moved to dismiss plaintiff’s complaint, and
provided a link to a video of the Council meeting to support
their motion.
The court declined to consider the video,
explaining:
I do not regard the video as comparable to, say, the
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written contract upon which an action for breach is based,
which I would surely consider. Such a video might be
considered on a motion to dismiss to establish, for
example, that a particular identifiable statement was made.
This is not such a case. The context of the statements,
the identities and tone of voice of the speakers, the
decisions that may have preceded or surrounded the meeting,
and so on, all present issues of factual interpretation.
In short, the video is not the sort of uncontroversial
document that may itself settle the claims one way or the
other. I believe that consideration of this video in
isolation from its evidentiary context has the capacity to
distort the analysis. I therefore exercise my discretion
to decline consideration of it on this motion to dismiss.
Liebler, 2016 WL 3965198, at *2–3.
Similarly, and analogous to the case here, in Velez v.
Fuentes, 2016 WL 4107689, at *8 (D.N.J. July 29, 2016), the
state trooper defendants moved to dismiss a plaintiff’s claims
arising out of a traffic stop, and moved to dismiss plaintiff’s
claims, or for summary judgment in the alternative, based on the
video of the plaintiff’s stop.
Defendants argued that discovery
was not necessary because “‘[t]he video of the [P]laintiff's
arrest shows, as a matter of law, that the force used by Trooper
Brettel was not excessive.’”
The court declined to consider
the video of the traffic stop:
While the video of Plaintiff's arrest provides the Court
with important insight into the events at issue, “[a]ny
assessment of the probative value of video evidence must
take into account that the camera, while an immutable
witness, can only describe events from the particular
perspective of the video's lens.” Breeland v. Cook, No.
12-2511, 2014 WL 820167, at *4 (M.D. Pa. Mar. 3, 2014).
For example, here the video does not capture the events
leading up to the stop, nor does it allow the Court to hear
everything said by Plaintiff, or see the interaction
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between Plaintiff, Trooper Brettel, and Patrolman McDonald
when Plaintiff was on the ground. The video evidence is
“subject to all of the vagaries and limitations of [the
camera's] perspective” and “commentators [have] caution[ed]
courts to refrain from a reflexive reliance on equivocal
video evidence when reaching ultimate legal conclusions.”
Id. (citations omitted). While it is true that “where . .
. there is video footage related to the claims, the Court
will not draw inferences that are inconsistent with the
video evidence,” Samoles, 2014 WL 2602251, at *3 (citing
Scott v. Harris, 550 U.S. 372, 380-81 (2007)), the Court is
not required to accept the video tape as the only account
of the incident.
Velez, 2016 WL 4107689, at *8; cf. Coles v. Carlini, 2012
WL 1079446, at *7 (D.N.J. Mar. 29, 2012) (finding that because
plaintiffs submitted a DVD video of the traffic stop as an
exhibit to their complaint, and there was no dispute over its
authenticity, the court considered the video while deciding
defendants’ motion to dismiss without having to convert the
motion into one for summary judgment).
Thus, for these reasons,
the Court will not consider the video of the traffic stop in the
context of defendants’ motion to dismiss. 2
The Court therefore turns to the substance of plaintiff’s
claims against the arresting troopers and the supervisory
defendants.
For her constitutional violation claims, plaintiff
alleges a laundry list of constitutional violations as a result
of the traffic stop, the breath and urine tests, her arrest, and
the municipal court hearing.
Without singling out which actor
2
The Court has not viewed the video because the Court does not
have a copy of the video.
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perpetrated which constitutional violation and how, plaintiff
collectively pleads that all the defendants, the arresting
troopers as well as the supervisory defendants, violated her
federal and state constitutional 3 rights of:
a.
freedom from unlawful arrest and seizure;
b.
freedom from prosecution without probable cause;
c.
freedom from the use of unreasonable, unjustified, and
excessive force;
d.
right of due process of law;
e.
freedom from deprivation of liberty, and property
without due process of law;
f.
freedom from unreasonable search and seizures;
g.
right to enjoy and defend life and liberty;
h.
right to pursue and obtain safety and happiness ;
i.
excess force while being arrested and/or while in
custody and/or police brutality; and
j.
right to any other natural and unalienable right
retained by the people.
(Compl. Count Six ¶ 2, Docket No. 1 at 20-21.)
To recover under 42 U.S.C. § 1983 against an individual, a
plaintiff must show: (1) a person deprived him or caused him to
be deprived of a right secured by the Constitution or laws of
the United States, and (2) the deprivation was done under color
of state law.
See West v. Atkins, 487 U.S. 42, 48 (1988);
Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970).
3
The New Jersey Civil Rights Act, N.J.S.A. 10:6–1 et seq., was
modeled after 42 U.S.C. § 1983 and creates a state law cause of
action for violation of an individual's federal and state
constitutional rights. Owens v. Feigin, 947 A.2d 653 (N.J.
2008).
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More succinctly stated, § 1983 “provides a civil remedy for
specific acts of constitutional deprivation.”
Brawer v.
Horowitz, 535 F.2d 830, 839 (3d Cir. 1976).
Even though plaintiff may have pleaded facts that may
support each of her ten alleged constitutional violations, it is
her obligation under Rule 8 and Twombly/Iqbal to articulate the
“specific acts of constitutional deprivation” for each
defendant.
For example, the facts to support a claim of
unlawful seizure and excessive force may be different from the
facts to support claims for equal protection and due process
violations.
See, e.g., United States v. Delfin–Colina, 464 F.3d
392, 396 (3d Cir.2006) (explaining that the “lawfulness of the
initial traffic stop is properly analyzed under the Fourth
Amendment, as a traffic stop is a ‘seizure’ within the meaning
of the Fourth Amendment. The traffic stop is valid if the
officer has a reasonable, articulable suspicion that a violation
has occurred”); James v. City of Wilkes-Barre, 700 F.3d 675, 680
(3d Cir. 2012) (“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.”); Graham v. Connor, 490 U.S. 386, 394 (1989)
(“Determining whether the force used to effect a particular
seizure is 'reasonable' ... requires ... careful attention to
the facts and circumstances of each particular case, including
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the severity of the crime at issue, whether the suspect poses an
immediate threat to the safety of the officers or others, and
whether he is actively resisting arrest or attempting to evade
arrest by flight.”); Smith v. Mensinger, 293 F.3d 641, 650–51
(3d Cir. 2002) (explaining that a police officer has a duty to
take reasonable steps to protect a victim from another officer's
use of excessive force, even if the excessive force is employed
by a superior, but only if there is a realistic and reasonable
opportunity to intervene); Bradley v. United States, 299 F.3d
197, 205 (3d Cir. 2002) (“To make an equal protection claim in
the profiling context, [the plaintiff] was required to prove
that the actions of customs officials (1) had a discriminatory
effect and (2) were motivated by a discriminatory purpose.”).
It is plaintiff’s obligation to provide each defendant with fair
notice of what her claim is and the grounds upon which it rests.
Her current complaint with collective claims against groups of
defendants fails to do so. 4
As it stands now, plaintiff’s
constitutional claims must be dismissed.
4
The same can be said for plaintiff’s conspiracy claims brought
under 42 U.S.C. § 1985 (Count Eight). Conspiracy claims under §
1985 must be pleaded with factual specificity. Hauptmann v.
Wilentz, 570 F. Supp. 351, 385 (D.N.J. 1983), aff'd, 770 F.2d
1070 (3d Cir. 1985), and aff'd sub nom. Appeal of Hauptmann, 770
F.2d 1070 (3d Cir. 1985); Handelman v. State of New Jersey, 2016
WL 3691976, at *11 (D.N.J. July 12, 2016) (citation omitted)
(“[C]laims under Section 1985 must be pleaded with specificity
in order to withstand a motion to dismiss. Broad, conclusory
allegations, unsupported by specific facts implicating specific
13
Because, however, Third Circuit precedent “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),
the Court will allow plaintiff to file an amended complaint as
to her constitutional violation claims set forth in Counts One,
Six, Seven, Eight, and Nine.
Such amendment does not appear to
be inequitable or futile at this time.
The Third Circuit’s notion of liberal amendment in civil
rights cases does not apply to plaintiff’s other claims.
Based
on the same facts, plaintiff has asserted claims for
“intentional tort” (Count Two), “reckless/gross negligence”
(Count Three), negligence (Count Four), and “failure to train”
(Count Five), as well as a statutory claim alleging a violation
of the New Jersey Law Against Discrimination (Count Ten),
against the defendants collectively. 5
Plaintiff only separates
the defendants into two categories within each of these claims –
defendants are insufficient to state a claim upon which relief
can be granted.”).
5
The Court notes that “Intentional tort” and “failure to train”
are not specific causes of action, and must be considered
subsumed by plaintiff’s other claims.
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the arresting troopers who allegedly engaged in racial
profiling, and the supervisory defendants who, passively or
actively, sanctioned the racial profiling. 6
Conclusory
statements that the arresting troopers acted intentionally and
recklessly and negligently by profiling her based on race, and
that the supervisory defendants acted intentionally and
recklessly and negligently in their supervision of the arresting
troopers are insufficient under Rule 8 and Twombly/Iqbal, and
must be dismissed.
Nonetheless, because plaintiff has requested
leave to file an amended complaint to attempt to cure the
pleading deficiencies raised by defendants, the Court will
provide plaintiff with the opportunity to properly plead her
state and common law claims as well. 7
6
Racial profiling is, in essence, a claim of selective
prosecution, and arguments based on selective prosecution are
grounded in equal protection. State v. Ball, 887 A.2d 174, 182–
83 (N.J. Super. Ct. App. Div. 2005).
7
Amendments to pleadings are governed by Federal Civil Procedure
Rule 15, which provides that the Court “should freely give leave
when justice so requires.” Fed. R. Civ. P. 15(a)(2). The Third
Circuit has shown a strong liberality in allowing amendments
under Rule 15 in order to ensure that claims will be decided on
the merits rather than on technicalities. Dole v. Arco Chemical
Co., 921 F.2d 484, 487 (3d Cir. 1990); Bechtel v. Robinson, 886
F.2d 644, 652 (3d Cir. 1989). An amendment must be permitted in
the absence of undue delay, bad faith, dilatory motive, unfair
prejudice, or futility of amendment. Grayson v. Mayview State
Hosp., 293 F.3d 103, 108 (3d Cir. 2002) (citing Foman v. Davis,
371 U.S. 178, 182 (1962)).
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CONCLUSION
Plaintiff is afforded leave to file an amended complaint to
properly plead his claims against all defendants, except for the
State of New Jersey and the defendants in their official
capacities.
Thus, defendants’ motion to dismiss will be
granted, but plaintiff will be afforded leave to file an amended
complaint within 30 days.
Plaintiff is reminded to be mindful
of her obligations under Federal Civil Procedure Rules 8 and 11.
An appropriate Order will be entered.
Date:
September 14, 2016
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
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