GARDNER v. NEW JERSEY STATE POLICE et al

Filing 48

OPINION. Signed by Judge Robert B. Kugler on 10/21/2016. (tf, )

NOT FOR PUBLICATION

(Doc. Nos. 16, 22, 25)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
___________________________________
:
Donald GARDNER
:
:
Plaintiff,
:
Civil No. 15-8982 (RBK/AMD)
:
v.
:
Opinion
:
NEW JERSEY STATE POLICE, et al.,
:
:
Defendant(s). :
___________________________________ :
KUGLER, United States District Judge:
Plaintiff Donald Gardner brings this action against Defendants New Jersey State Police,
Egg Harbor Township, City of Atlantic City, Michael Bordonaro, Steven Swankoski, Jeremy
Nirenberg, Edwin Huber, Andrew Koch, Paul Horsey, and Jack Donegan for excessive force,
intentional infliction of emotional distress, abuse of process, negligence, violation of the New
Jersey Civil Rights Act, violation of 42 U.S.C. § 1983, and punitive damages. Plaintiff moves for
leave to amend the Complaint (Doc. No. 22). Defendants New Jersey State Police, Edwin Huber,
Andrew Koch, Paul Horsey, and Jack Donegan (“State Defendants”), and Defendants Egg
Harbor Township, Michael Bordonaro, and Steven Swankoski (“EHT Defendants”) (collectively,
“Defendants”) each move to dismiss Plaintiff’s claims (Doc Nos. 16, 25). For the reasons
expressed below, Plaintiff’s Cross-Motion for Leave to File an Amended Complaint is
GRANTED, State Defendants’ Motion to Dismiss is DENIED, and EHT Defendants’ Motion to
Dismiss is GRANTED IN PART.

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I.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Egg Harbor Township (“EHT”) is a municipality in New Jersey. EHT’s Br. in Supp. of

Mot. to Dismiss ¶ 4. On or before November 7, 2013, the EHT Police Department allegedly
issued a “be on the lookout of” (“BOLO”) for Plaintiff and a vehicle believed to be in his
possession. Am. Compl. ¶ 17. On November 7, 2013, Detective Sergeant First Class Edwin
Huber, Trooper Andrew Koch, Trooper Paul Horsey, and Trooper Jack Donegan of the New
Jersey State Police, Casino Gaming Bureau were in Egg Harbor Township. Id. ¶¶ 18, 20. They
allegedly spotted Plaintiff’s vehicle and began pursuing it, without first verifying the BOLO. Id.
¶ 20. When they failed to make a traffic stop of the vehicle, they contacted the Atlantic City
Police Dispatch and falsely advised them that Plaintiff was armed with a handgun and
dangerous. Id. ¶¶ 21–22. Taking action on a BOLO before verifying it is a violation of New
Jersey State Police policy or custom, according to Plaintiff. Id. ¶¶ 20.
Upon being alerted of Plaintiff’s presence in Egg Harbor Township, the Atlantic City
Police Department disseminated the information countywide, thereby “creat[ing] a false sense of
alarm” and causing multiple law enforcement agencies to begin pursuing Plaintiff. Id. ¶¶ 24–25.
Responding officers eventually surrounded Plaintiff in a marshy area in Egg Harbor Township.
Id. ¶¶ 26–27. Those officers included Lieutenant Michael Bordonaro and Sergeant Steven
Swankoski of Egg Harbor Township and Detective Jeremy Nirenberg of Atlantic City. Id. ¶ 29.
They observed Plaintiff wade into a marsh unarmed, approached him, and fired multiple gun
shots at his back. Id. ¶¶ 28–31. Plaintiff alleges that Bordonaro, Swankoski, and Nirenberg’s
actions of approaching and discharging weapons at Plaintiff violated normal customs or
practices, and that they did not receive adequate training or supervision. Id. ¶¶ 32–33.

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Plaintiff pleads that Defendants’ actions caused him serious injuries, including paralysis
and severe emotional distress. Id. ¶ 34. Plaintiff filed a Complaint against Defendants in the
Superior Court of New Jersey, Atlantic County Law Division, on November 2, 2015, seeking
damages. Id. State Defendants timely removed the case pursuant to 28 U.S.C. § 1441(c) and §
1443 on December 31, 2015 (Doc. No. 1). On March 4, 2016, State Defendants filed and served
a Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6) (Doc. No. 16). On March
24, 2016, Plaintiff filed a Cross-Motion for Leave to File an Amended Complaint (Doc. No. 22).
On April 1, 2016, EHT Defendants filed a Motion to Dismiss (Doc. No. 25).
II.

PLAINTIFF’S CROSS-MOTION TO AMEND PLEADING
Federal Rule of Civil Procedure 15(a)(1)(B) provides that “[a] party may amend its

pleading once as a matter of course . . . (B) if the pleading is one to which a responsive pleading
is required, [within] 21 days after service of a responsive pleading or 21 days after service of a
motion under Rule 12(b).” State Defendants filed and served a Motion to Dismiss under Rule
12(b)(6) on March 4, 2016. Plaintiff subsequently submitted its first Motion to Amend the
Complaint on March 24, 2016. Plaintiff filed the Amended Complaint within 21 days of State
Defendants’ Motion to Dismiss, which satisfies Rule 15(a)(1)(B), and the Court accordingly
grants Plaintiff’s Motion to Amend.
III.

STATE DEFENDANTS’ MOTION TO DISMISS
State Defendants filed a Motion to Dismiss before Plaintiff filed the First Amended

Complaint. Because the original version of a Complaint is superseded by any amended version,
Snyder v. Pascack Valley Hosp., 303 F.3d 271, 276 (3d Cir. 2002), and State Defendants’ Motion

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was directed at Plaintiff’s original Complaint, State Defendants’ Motion is moot. Thus, the Court
denies the State Defendants’ Motion to Dismiss without prejudice.1
IV.

EHT DEFENDANTS’ MOTION TO DISMISS
A.

Standard of Review

Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss an action for failure
to state a claim upon which relief can be granted. When evaluating a motion to dismiss, “courts
accept all factual allegations as true, construe the complaint in the light most favorable to the
plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff
may be entitled to relief.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009)
(quoting Phillips v. Cty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)). A complaint survives a
motion to dismiss if it contains sufficient factual matter, accepted as true, to “state a claim to
relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). It
is not for courts to decide at this point whether the non-moving party will succeed on the merits,
but “whether they should be afforded an opportunity to offer evidence in support of their
claims.” In re Rockefeller Ctr. Props., Inc. Sec. Litig., 311 F.3d 198, 215 (3d Cir. 2002). While
“detailed factual allegations” are not necessary, a “plaintiff’s obligation to provide the grounds of
his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (internal quotations
omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009).
In making this determination, the court conducts a three-part analysis. Santiago v.
Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010). First, the court must “tak[e] note of the
elements a plaintiff must plead to state a claim.” Id. (quoting Iqbal, 556 U.S. at 675). Second, the
1

For this same reason, this Opinion evaluates EHT Defendants’ Motion to Dismiss as directed
against the First Amended Complaint.
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court should identify allegations that, “because they are no more than conclusions, are not
entitled to the assumption of truth.” Id. (quoting Iqbal, 556 U.S. at 679). “[T]hreadbare recitals
of the elements of a cause of action, supported by mere conclusory statements,” do not suffice.
Id. at 131 (quoting Iqbal, 556 U.S. at 678). Finally, “where there are well-pleaded factual
allegations, a court should assume their veracity and then determine whether they plausibly give
rise to an entitlement for relief.” Id. (quoting Iqbal, 556 U.S. at 679). This plausibility
determination is a “context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Iqbal, 556 U.S. at 679. A complaint cannot survive a motion to
dismiss where a court can only infer that a claim is merely possible rather than plausible. Id.
B.

Count I — Excessive Force

EHT Defendants move to dismiss Plaintiff’s excessive force claim against EHT. New
Jersey courts analyze excessive force claims under the Fourth Amendment of the United States
Constitution and Article 1, Paragraph 7 of the New Jersey Constitution. See State v. Ravotto, 777
A.2d 301, 306 (N.J. 2001). Because Plaintiff also brings a § 1983 and a NJCRA claim, the Court
dismisses this Count as duplicative and analyzes the excessive force claim under Counts V and
VI below.
C.

Count II — Intentional Infliction of Emotional Distress

EHT Defendants argue for dismissal of the intentional infliction of emotional distress
claim against EHT because it has immunity under the NJTCA. Section 59:2–10 of the NJTCA
confers immunity to public entities for intentional torts, and intentional infliction of emotional
distress is a tort that requires intentional or reckless conduct. Ward v. Barnes, 545 F. Supp. 2d
400, 421 (D.N.J. 2008). Municipalities are considered public entities. N.J. Stat. Ann. § 59:1–3.

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EHT as a municipality thus has immunity for claims of intentional infliction of emotional
distress, and the Court dismisses Count II against EHT with prejudice.
D.

Count III — Abuse of Process

EHT Defendants move to dismiss the common law abuse of process claim under Rule
12(b)(6).2 To state a claim for malicious abuse of process in New Jersey, a plaintiff must allege
(1) an improper or “ulterior” motive, and (2) “some further act after an issuance of process
representing the perversion of the legitimate use of the process.” Fleming v. United Parcel Serv.,
Inc., 604 A.2d 657, 681 (N.J. Super. Ct. Law Div. 1992), aff’d, 642 A.2d 1029 (N.J. Super. Ct.
App. Div. 1994), cert. denied, 649 A.2d 1285 (N.J. 1995). “Process is not abused unless after its
issuance the defendant reveals an ulterior purpose he had in securing it by committing ‘further
acts’ whereby he demonstrably uses the process as a means to coerce or oppress the plaintiff.”
Ruberton v. Gabage, 654 A.2d 1002, 1005 (N.J. Super. Ct. App. Div. 1995) (quoting Tedards v.
Auty, 557 A.2d 1030, 1035 (N.J. Super. Ct. App. Div. 1989)) (internal quotations omitted).
Plaintiff’s Complaint does not explain what process EHT Defendants issued, what further
act they took after the process’ issuance, or how the act revealed an ulterior purpose. The abuse
of process allegations are clearly inadequate under Rule 12(b)(6). As such, the Court dismisses
this Count against EHT Defendants without prejudice.
E.

Count IV — Negligence

Plaintiff brings negligence claims against EHT Defendants. “[I]mmunity is the dominant
consideration of the [NJTCA].” Rochinsky v. State, Dep’t of Transp., 541 A.2d 1029, 1034
(1988) (quoting Kolitch v. Lindedahl, 497 A.2d 183 (1985) (O’Hern, J., concurring)). N.J. Stat.
Ann. § 59:5–2 immunizes a public entity or public employee from “any injury caused by . . . an
2

The Court analyzes a common law abuse of process claim in this section, and an abuse of
process claim under the NJCRA and § 1983 in the Counts V and VI section.
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escaping or escaped person.” In the context of a police pursuit, “when the officer suspect[s]
someone of having violated the law and [is] pursuing him, the officer’s conduct [is] immune
from liability.” Tice v. Cramer, 627 A.2d 1090, 1097–98 (N.J. 1993). The immunity is absolute
save willful misconduct on the part of the public employee. N.J. Stat. Ann. § 59:3–14(a).
However, it is well-established that the burden of pleading immunity under the NJTCA rests
with the public entity or employee, Leang v. Jersey City Bd. of Educ., 969 A.2d 1097, 1112 (N.J.
2009), and EHT Defendants have not raised a defense of immunity for this claim. Thus, the
Court analyzes Plaintiff’s negligence claim against EHT officers and EHT under the Rule
12(b)(6) standard.
Plaintiff alleges EHT officers were negligent in their approach of and use of force against
Plaintiff. In New Jersey, the elements of a cause of action for negligence are: (1) a duty of care
owed by the defendant to the plaintiff; (2) a breach of that duty; (3) proximate cause; and (4)
actual damages. Polzo v. Cnty. of Essex, 960 A.2d 375, 384 (N.J. 2008). The duty of care is
commensurate with the “foresight of harm” based on the activity. Hill v. Yaskin, 380 A.2d 1107,
1109 (N.J. 1977). Determining whether a duty of care exists is “quintessentially a question of
law for the court.” Highlands Ins. Co. v. Hobbs Grp., LLC, 373 F.3d 347, 351 (3d Cir. 2004).
Police officers have a duty of care to act with due regard to the safety of the public. See
Pappas v. Union Twp., 2010 WL 5419016, at *4 (N.J. Super. Ct. App. Div. Aug. 20, 2010).
Plaintiff alleges that EHT officers shot Plaintiff while Plaintiff was unarmed, had his back to the
officers, and was wading in a marsh. Accepting these facts as true, they are sufficient to make a
plausible showing that EHT officers breached the duty of care. The Complaint also alleges that
shots fired by the EHT officers caused Plaintiff to become paralyzed, enough to show causation
and damages. The Court is thereby satisfied that the Complaint proffers sufficient facts

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supporting all four elements of the negligence claim and finds Plaintiff has stated a plausible
claim for relief.
Plaintiff asserts negligent training and supervision claims against EHT. The torts of
negligent training and supervision require the plaintiff to show the four elements of negligence.
Dixon v. CEC Entm’t, Inc., 2008 WL 2986422, at *19 (N.J. Super. Ct. App. Div. Aug. 6, 2008).
Here, Plaintiff’s negligent training and supervision claims against EHT fail on the elements of
breach and proximate causation. The Complaint alleges that EHT failed to adequately train and
supervise EHT officers in handling the encounter with Plaintiff but furnishes no facts to support
that assertion. The pleading standard requires more than mere conclusory statements. In addition,
the Complaint does not adequately plead that EHT’s training and supervision were a proximate
cause of Plaintiff’s injuries. Establishing the proximate cause element requires showing that the
injury would not have occurred “but for” the defendant’s negligence, Conklin v. Hannoch
Weisman, 678 A.2d 1060, 1071 (N.J. 1996), and Plaintiff makes no such showing here. As such,
the Court dismisses the Plaintiff’s negligent training and supervision claims against EHT without
prejudice.
F.

Count V — New Jersey Civil Rights Act, Count VI — 42 U.S.C. § 1983

Plaintiff brings civil rights claims under the NJCRA and 42 U.S.C. § 1983. Courts in this
district have consistently interpreted the NJCRA and § 1983 analogously. See Szemple v. Corr.
Med. Servs., Inc., 493 F. App’x 238, 241 (3d Cir. 2012). This Court thus analyzes Plaintiff’s
NJCRA and § 1983 claims together.
Plaintiff appears to bring a § 1983 claim against EHT under a Monell theory. It is
axiomatic that “[a] municipality cannot be held liable for the unconstitutional acts of its
employees on a theory of respondeat superior.” Thomas v. Cumberland Cty., 749 F.3d 217, 222

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(3d Cir. 2014) (citing Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 691 (1978)).
To hold a city liable under § 1983, the plaintiff must demonstrate that her rights were violated by
a policy or custom of the city and that such policy or custom has been “the moving force” behind
the deprivation of her constitutional rights. See Monell, 436 U.S. at 694. Municipal policy
generally involves a “statement, ordinance, regulation, or decision officially adopted and
promulgated by [a local governing] body’s officers.” Id. at 690. A municipal custom, although
lacking the formal approval of a policy, refers to those official practices which are “so permanent
and well settled as to constitute . . . the force of law.” Id. at 691.
Under certain circumstances, a municipality’s failure to properly train its employees and
officers can amount to a “custom” that will trigger liability under § 1983. See City of Canton v.
Harris, 489 U.S. 378, 388 (1989). When a plaintiff alleges that a policy “concerns a failure to
train or supervise municipal employees, liability under section 1983 requires a showing that the
failure amounts to ‘deliberate indifference’ to the rights of persons with whom those employees
will come into contact.” Thomas, 749 F.3d at 222 (quoting Carter v. City of Phila., 181 F.3d 339,
357 (3d Cir. 1999)). “A pattern of similar constitutional violations by untrained employees is
‘ordinarily necessary’ to demonstrate deliberate indifference for purposes of failure to train.”
Connick v. Thompson, 563 U.S. 51, 61 (2011) (quoting Bd. of Cty. Comm’rs of Bryan Cty., Okl.
v. Brown, 520 U.S. 397, 409 (1997)).
Municipal liability under § 1983 requires an underlying constitutional violation, see
Monell, 436 U.S. at 690–91, and Plaintiff appears to identify two theories: excessive force and
abuse of process. Plaintiff supports his Monell claim by pleading that officials of the
municipality acted “pursuant to a policy statement, ordinance, regulation, and/or decision
officially adopted and promulgated by Defendants, and/or a well settled custom or practice by

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Defendants,” and that the officers’ actions “were committed as a result of inadequate training
and/or supervision by Defendants.” Am. Compl. at ¶¶ 55–56. Plaintiff, however, fails to provide
any additional evidence. Such threadbare allegations do not make out a plausible claim for relief.
They fail to identify any policies or official practices of EHT that were the cause of the excessive
force and abuse of process allegedly suffered by Plaintiff. Neither does the Complaint contain
any factual averments suggesting that a pattern of untrained employees engaged in similar
constitutional violations so as to show a failure to train or supervise on EHT’s part. As such,
Plaintiff has not met the Rule 12(b)(6) standard, and the Court dismisses the NJCRA and § 1983
claims against EHT without prejudice.
G.

Count VII — Punitive Damages

Lastly, EHT Defendants move to dismiss Plaintiff’s punitive damages claim against
EHT. Plaintiff brings claims under common law torts, the NJCRA, and § 1983. However,
punitive damages are unavailable against municipalities under the NJTCA, the NJCRA, and §
1983. N.J. Stat. Ann. § 59:9–2(c) (NJTCA); Damiani v. W. Deptford Twp., No. Civ. 07-2884
(JEI), 2008 WL 656041, at *5 (D.N.J. Mar. 7, 2008) (NJCRA); City of Newport v. Fact
Concerts, Inc., 453 U.S. 247, 271 (1981) (Section 1983). Plaintiff cites City of Newport as
support for obtaining punitive damages under § 1983, but the case states only that punitive
damages may be available in “an extreme situation where the taxpayers are directly responsible”
for an outrageous abuse of constitutional rights. 453 U.S. at 267 n.29 (emphasis added). There is
no abuse allegedly committed by taxpayers at issue here. Thus, Plaintiff’s claim for punitive
damages against EHT cannot stand, and the Court dismisses it with prejudice.

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V.

CONCLUSION
Plaintiff’s Motion to Amend is GRANTED. State Defendants’ Motion to Dismiss is

DENIED without prejudice. EHT Defendants’ Motion to Dismiss is GRANTED IN PART:
Count I is dismissed with prejudice; Counts II and VII against EHT are dismissed with prejudice;
Counts IV, V, and VI against EHT are dismissed without prejudice, and Count III against EHT
Defendants is dismissed without prejudice.

Dated:

10/21/2016

s/ Robert B. Kugler
ROBERT B. KUGLER
United State District Judge

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