LESHORE v. ATLANTIC CITY POLICE DEPARTMENT et al
OPINION. Signed by Chief Judge Jerome B. Simandle on 10/17/2016. (TH, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CHARLES M. LESHORE, JR.,
HONORABLE JEROME B. SIMANDLE
No. 16-2300 (JBS-AMD)
ATLANTIC CITY POLICE
DEPARTMENT, et al.,
Charles M. Leshore, Jr., Plaintiff Pro Se
Atlantic County Justice Facility
5060 Atlantic Avenue
Mays Landing, New Jersey 08330
SIMANDLE, Chief District Judge:
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.
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
in forma pauperis and is seeking relief from a government
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).
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.
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.
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
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
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