Filing 4

OPINION. Signed by Chief Judge Jerome B. Simandle on 10/17/2016. (TH, )

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY CHARLES M. LESHORE, JR., HONORABLE JEROME B. SIMANDLE Plaintiff, Civil Action No. 16-2300 (JBS-AMD) v. ATLANTIC CITY POLICE DEPARTMENT, et al., OPINION Defendants. APPEARANCES: Charles M. Leshore, Jr., Plaintiff Pro Se #01-239193 Atlantic County Justice Facility 5060 Atlantic Avenue Mays Landing, New Jersey 08330 SIMANDLE, Chief District Judge: INTRODUCTION Plaintiff Charles M. Leshore, Jr., seeks to bring a civil rights complaint pursuant to the 42 U.S.C. § 1983 against the Atlantic City Police Department (“ACPD”) and Officer Andrew Jaques. Complaint, Docket Entry 1. Based on Plaintiff’s affidavit of indigency and in forma pauperis application, Docket Entry 3, his request to proceed in forma pauperis is granted. 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 claim against Officer Jaques shall proceed. II. BACKGROUND According to the complaint, Plaintiff was arrested on September 29, 2015 by ACPD Officer Jaques. Complaint at 3. He alleges that Officer Jaques punched him numerous times in the face and choked him into unconsciousness while he was fully restrained. Id. When Plaintiff awoke, he was on the ground and another officer had a knee on his back and his firearm pointed at Plaintiff’s head. Id. A sergeant threatened Plaintiff that he would “die that night or go down to a NJ State prison.” Id. III. STANDARD OF REVIEW 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. This action is subject to sua sponte screening for dismissal under 28 U.S.C. § 1915(e)(2)(B) and 1915A because Plaintiff is proceeding 2 in forma pauperis and is seeking relief from a government employee. 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, 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). IV. DISCUSSION Plaintiff alleges that Officer Jaques used unreasonable force during the arrest in violation of the Fourth Amendment. Construing the complaint liberally and giving Plaintiff the benefit of all reasonable inferences, he has sufficiently alleged a constitutional violation. His claim against Officer Jaques shall therefore be permitted to proceed. 3 His claims against the ACPD must be dismissed, however, as it is not a “person” subject to liability under § 1983. “Although local governmental units may constitute ‘persons’ against whom suit may be lodged under 42 U.S.C. § 1983, a city police department is a governmental sub-unit that is not distinct from the municipality of which it is a part. And the allegations in the complaint do not reach the municipality, in any instance, because the alleged injury was inflicted solely by its employees.” Jackson v. City of Erie Police Dep't, 570 F. App’x 112, 114 n.2 (3d Cir. 2014) (citing Monell v. Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658, 694 (1978)). The claims against the ACPD shall be dismissed without prejudice. V. CONCLUSION For the reasons stated above, the Fourth Amendment claim against Officer Jaques shall be permitted to proceed at this time. An appropriate order follows. October 17, 2016 Date s/ Jerome B. Simandle JEROME B. SIMANDLE Chief U.S. District Judge 4

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