HICKS v. CAMDEN COUNTY et al

Filing 7

MEMORANDUM OPINION FILED. Signed by Chief Judge Jerome B. Simandle on 1/6/17. (js)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

RICHARD A. HICKS, JR.,

HONORABLE JEROME B. SIMANDLE

Plaintiff,
Civil Action
No. 16-3436 (JBS/JS)

v.
CAMDEN COUNTY, et al.,

MEMORANDUM OPINION
Defendants.

SIMANDLE, Chief Judge:
In this case, Plaintiff Richard A. Hicks, Jr. brings claims
pursuant to § 1983 and New Jersey state law against Camden
County, the Camden County Police Department, Officer Carl
Tucker, and John Does 1-10, arising from an incident between
Plaintiff and Officer Tucker at a bus stop. Before the Court is
a motion to dismiss brought by Defendants on the grounds that
Plaintiff’s Amended Complaint is time-barred, and in the
alternative, fails to state a claim upon which relief may be
granted. For the following reasons, the Court will grant in part
and deny in part Defendants’ motion.
1.

Plaintiff alleges that on June 13, 2014, he was

waiting on the sidewalk for a bus when he was approached by
Officer Tucker. 1 (Amended Complaint [Docket Item 3] ¶ 3.) He

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For purposes of the pending motion, the Court accepts as true
the version of events set forth in Plaintiff’s Amended

alleges that Officer Tucker asked Plaintiff for identification,
but that when Plaintiff refused to provide any, Officer Tucker
“assaulted Plaintiff without justification and with excessive
and unreasonable physical force during the course of the stop.”
(Id. ¶¶ 2-4.) Officer Tucker “restrained, subdued, and attacked”
Plaintiff and brought him to Camden County police headquarters
where he was charged with improper behavior. (Id. ¶¶ 4-6.)
Plaintiff suffered injuries and required medical attention on
account of this incident. (Id. ¶ 8.)
2.

Plaintiff filed this case in the United States

District Court for the District of New Jersey on June 14, 2016
[Docket Item 1] and filed an Amended Complaint as of right on
July 5, 2016 [Docket Item 3], asserting the following eight
claims: excessive force, supervisory liability, unlawful custom
and inadequate training, inadequate screening, and a demand for
prospective injunctive relief under § 1983; assault and battery;
violation of the New Jersey Civil Rights Act; and negligence.
Defendants filed the instant motion to dismiss [Docket Item 4],
which is now fully briefed [see Docket Items 5 & 6.] The Court
will decide this motion without holding oral argument pursuant
to Fed. R. Civ. P. 78.

Complaint, documents explicitly relied upon in the Complaint,
and matters of public record. See Schmidt v. Skolas, 770 F.3d
241, 249 (3d Cir. 2014).
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3.

Pursuant to Rule 8(a)(2), Fed. R. Civ. P., a complaint

need only contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Specific facts
are not required, and “the statement need only ‘give the
defendant fair notice of what the . . . claim is and the grounds
upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93
(2007) (citations omitted). While a complaint is not required to
contain detailed factual allegations, the plaintiff must provide
the “grounds” of his “entitle[ment] to relief”, which requires
more than mere labels and conclusions. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007).
4.

A motion to dismiss under Rule 12(b)(6), Fed. R. Civ.

P., may be granted only if, accepting all well-pleaded
allegations in the complaint as true and viewing them in the
light most favorable to the plaintiff, a court concludes that
the plaintiff failed to set forth fair notice of what the claim
is and the grounds upon which it rests. Id. A complaint will
survive a motion to dismiss if it contains sufficient factual
matter to “state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). Although a
court must accept as true all factual allegations in a
complaint, that tenet is “inapplicable to legal conclusions,”
and “[a] pleading that offers labels and conclusions or a

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formulaic recitation of the elements of a cause of action will
not do.” Id. at 678.
5.

First, Defendants seek to dismiss the Amended

Complaint because Plaintiff’s claims are barred by the
applicable two-year statute of limitations. Ordinarily, statutes
of limitations arguments are raised as affirmative defenses in
the answer to a complaint. See Fed. R. Civ. P. 8(c). However, if
“the time alleged in the statement of a claim shows that the
cause of action has not been brought within the statute of
limitations,” a statute of limitations defense may be made in
the context of a Rule 12(b)(6) motion. Schmidt v. Skolas, 770
F.3d 241, 249 (3d Cir. 2014) (quoting Robinson v. Johnson, 313
F.3d 128, 135 (3d Cir. 2012)). A motion to dismiss under Rule
12(b)(6) on statute of limitations grounds should be granted
“where the complaint facially shows noncompliance with the
limitations period and the affirmative defense clearly appears
of the face of the complaint.” Oshiver v. Levin, Fishbein,
Sedran & Berman, 38 F.3d 1380, 1384 n. 1 (3d Cir. 1994). If the
bar is not apparent on the face of the complaint, then it may
not afford the basis for dismissal. Schmidt, 770 F.3d at 249.
6.

Here, the parties agree that New Jersey’s two-year

limitations period for personal injury claims applies to
Plaintiff’s claims under Section 1983 and New Jersey state law.
N.J.S.A. 2A:14-2. The limitations period for a Section 1983
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claim begins to run when the claim “accrues,” or when the
plaintiff “knew or should have known of the injury upon which
the action is based.” Montanez v. Sec. Pa. Dep’t of Corr., 773
F.3d 472, 480 (3d Cir. 2014). It is undisputed that Plaintiff’s
claim accrued on June 13, 2014, the date of the incident with
Officer Tucker; it is also undisputed that the Clerk’s Office at
the Mitchell H. Cohen Courthouse in Camden stamped the Civil
Cover Sheet on Plaintiff’s Complaint “received” on June 14, 2016
at 8:28 a.m., and that the Complaint was filed on the public
docket that day. By these measures, Plaintiff’s Complaint was
filed one day outside the limitations period.
7.

Plaintiff takes the position that his Complaint should

not be barred by the statute of limitations for two reasons:
first, because his attorney delivered the Complaint in person to
the Camden Courthouse and left it in the Clerk’s Office drop box
for filing on June 13, 2016 at 5:34 p.m.; and second, because
even with a one-day delay, he has substantially complied with
the statute of limitations. The Court credits counsel’s
certification, under penalty of perjury, that he delivered the
Complaint on June 13 to the drop box at the Clerk’s Office and
that the document attached as Exhibit “A” is a copy of the
envelope in which the complaint was submitted and received at
the Clerk’s Office at 5:34 p.m. on June 13. While the Court will
address the sufficiency of the allegations in the Amended
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Complaint in this case, the Court reminds counsel that as of May
1, 2006, attorneys are required to submit initial civil
pleadings electronically.
8.

Defendants next argue that the Amended Complaint must

be dismissed because Plaintiff has not alleged plausible grounds
for relief under Section 1983 and because the Court should not
exert supplemental jurisdiction over Plaintiff’s remaining state
claims. For the reasons that follow, the Court will grant in
part and dismiss in part Defendants’ motion pursuant to Rule
12(b)(6).
9.

42 U.S.C. § 1983 provides a civil action for the

deprivation of rights against:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State . . .
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.
To state a claim under Section 1983, a plaintiff must allege
that “the defendant acted under color of state law to deprive
the plaintiff of a right secured by the Constitution.” Malleus
v. George, 641 F.3d 560, 563 (3d Cir. 2011) (citing West v.
Atkins, 487 U.S. 42, 48 (1988)).
10.

Defendants do not discuss, and the Court can find no

reason to dismiss, Plaintiff’s excessive force claim against
Officer Tucker. To allege a claim under Section 1983 for the use

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of excessive force, a plaintiff must show that a “seizure”
occurred, and that that seizure was unreasonable. Kopec v. Tate,
361 F.3d 722, 776 (3d Cir. 2004) (internal quotation and
citation omitted). “The test of reasonableness under the Fourth
Amendment is whether under the totality of the circumstances,
the officers’ actions are objectively reasonable in light of the
facts and circumstances confronting them, without regard to
their underlying intent or motivations.” Id. (citing Graham v.
Connor, 490 U.S. 386, 397 (1989).) The factors relevant to a
determination of reasonableness include “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” and
“the possibility that the persons subject to the police action
are violent or dangerous, the duration of the action, whether
the action takes place in the context of effecting an arrest,
the possibility that the suspect may be armed, and the number of
persons with whom the police officers must contend at one time.”
Id. at 776-777. Reasonableness under the Fourth Amendment
frequently presents a question for a jury. Id.
11.

Here, Plaintiff alleges that Officer Tucker

“restrained, subdued, and attacked” Plaintiff by grabbing his
arms and pinning him to the ground after Plaintiff refused to
provide identification. (Compl. ¶¶ 3-5.) Plaintiff has set forth
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facts which, if assumed true, are sufficient to show that he was
unreasonably seized by Officer Tucker. For these reasons, the
Court will not dismiss Count One of the Amended Complaint. 2
12.

Count Two of the Amended Complaint seeks to hold John

Doe Defendants liable under Section 1983 for “supervisory
liability.” It is well settled that “Section 1983 liability
cannot be found solely on the basis of respondeat superior.”
Alexander v. Gennarini, 144 Fed. Appx. 924, 925 (3d Cir. 2005).
Instead, a plaintiff must allege that a supervisor had a

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Count Six of the Amended Complaint sounds in “assault and
battery” under New Jersey common law against Officer Tucker. A
defendant is liable for assault under New Jersey law if the
plaintiff can show “(a) he acts intending to cause a harmful or
offensive contact with the person of the other or a third
person, or an imminent apprehension of such a contact, and (b)
the other is thereby put in such imminent apprehension.” Leang
v. Jersey City Bd. of Educ., 969 A.2d 1097, 1117 (N.J. 2009).
“The tort of battery rests upon a nonconsensual touching.” Id.
These same allegations set forth the elements of assault and
battery claims. Accordingly, Defendants’ motion to dismiss is
denied to the extent they seek to dismiss Count Six.
Similarly, Count Seven asserts a claim against Officer
Tucker under the New Jersey Civil Rights Act, N.J.S.A. 106:6-1,
premised on the same conduct as Plaintiff’s Section 1983 claim.
This Court treats claims under the NJCRA analogously to Section
1983. See Trafton v. City of Woodbury, 799 F. Supp. 2d 417, 443
(D.N.J. 2011) (analyzing all of plaintiffs’ NJCRA claims,
including claims of improper search and seizure and false
arrest, through the lens of Section 1983 because “[t]his
district has repeatedly interpreted NJCRA analogously to §
1983.”); Major Tours, Inc. v. Colorel, 720 F. Supp. 2d 587, 604
(D.N.J. 2010) (Simandle, J.) (applying one analysis to equal
protection claim brought under both Section 1983 and the NJCRA
because there was no reason to believe analysis would be
different). For the reasons that Plaintiff’s excessive force
claim will proceed, Defendants’ motion is denied to the extent
it seeks to dismiss Count Seven.
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personal involvement in the alleged wrongs. Rode v.
Dellaciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). “Personal
involvement can be shown through allegations of personal
direction or of actual knowledge and acquiescence.” Evancho v.
Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (citation omitted).
Plaintiff alleges in the Amended Complaint that John Doe
Defendants “either Directed Defendant Tucker . . . to violate
Plaintiff’s constitutional rights and/or had knowledge or and/or
acquiesced in his/their subordinate’s violations.” (Compl. ¶ 4.)
These legal conclusions alone are insufficient to withstand a
motion to dismiss, and Plaintiff’s allegation that the John Doe
Defendants are liable under Section 1983 for supervisory
liability because they failed to adequately track excessive
force complaints does not establish personal involvement or
actual knowledge of and acquiescence in Officer Tucker’s
conduct. Accordingly, the Court will dismiss Count Two of the
Complaint for failure to state a claim.
13.

Counts Three and Four of the Amended Complaint are

directed at Camden County and the Camden County Police
Department. It is well established that municipal liability
under Section 1983 “may not be proven under the respondeat
superior doctrine, but must be founded upon evidence that the
government unit itself supported a violation of constitutional
rights.” Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990)
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(citing Monell v. New York City Dep’t of Soc. Servs., 436 U.S.
658 (1978)). Consequently, a municipality may be liable under
Section 1983 only where the constitutional injury is alleged to
have been caused by a municipal “policy” or “custom.” Monell,
436 U.S. at 694. Plaintiff alleges that Camden County and the
Camden County Police Department engage in two unconstitutional
policies, practices, or customs: inadequate training of police
officers and inadequate screening of new hires.
14.

Failure to train “can serve as the basis for Section

1983 liability only where the failure to train amounts to
deliberate indifference to the rights of persons with whom the
municipal employees come into contact.” Reitz v. Cnty. of Bucks,
125 F.3d 139, 145 (3d Cir. 1997) (citing City of Canton v.
Harris, 489 U.S. 378, 388 (1989)). To state a Section 1983
failure to train claim, a plaintiff “must identify a failure to
provide specific training that has a causal nexus to their
injuries and must demonstrate that the absence of that specific
training can reasonably be said to reflect a deliberate
indifference to whether the alleged constitutional deprivations
occurred.” Reitz, 125 F.3d at 145.
15.

The allegations of the Amended Complaint regarding

inadequate training fall short of this mark. The Amended
Complaint contains only brief and vague conclusory assertions
that officers have not been properly trained in, inter alia,
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interacting with citizens and handling evidence and official
records, and that the department knew that other people in
custody had been physically and mentally abused, without
containing the factual grounds for such assertions. (Compl.
Count 3 ¶¶ 4-5.) The mere allegation that Plaintiff was falsely
arrested and subjected to excessive force, and that some other
people have allegedly been treated similarly, is not enough to
show that Defendants had an inadequate training program, and
more critically, that such failure to train amounted to
deliberate indifference. The Court will dismiss Plaintiff’s
Count Three.
16.

Inadequate screening of potential employees will give

rise to municipal liability “[o]nly where adequate scrutiny of
an applicant’s background would lead a reasonable policymaker to
conclude that the plainly obvious consequence of the decision to
hire the applicant would be the deprivation of a third party’s
federally protected right.” Bd. of Cnty. Comm’rs of Bryan
County, Okl. V. Brown, 520 U.S. 397, 411 (1997). Plaintiff
identifies nothing in Officer Tucker’s background that should
have led Defendants to conclude that he would deprive a citizen
of constitutional rights. Accordingly, the Court will dismiss
Count Four of the Amended Complaint.
17.

In Count Five, Plaintiff Hicks seeks prospective

injunctive relief against the Defendants under Section 1983.
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Injunctive relief is available in appropriate circumstances
under Section 1983, see City of Los Angeles v. Lyons, 461 U.S.
95, 105 (1983) (holding that injunctive relief is available
under Section 1983 where a plaintiff can demonstrate a real and
immediate threat of being subjected to the same allegedly
unlawful conduct again), but there is no independent or separate
cause of action for such an injunction. In other words, a
plaintiff may list injunctive relief as among the species of
relief sought under any Section 1983 claim, and the availability
of such relief will depend upon satisfying the well-known
standards for a preliminary or final injunction pursuant to Rule
65, Fed. R. Civ. P. In this sense, Count Five fails to state a
cognizable claim. Because the Court will be granting leave to
seek to file a Second Amended Complaint, as discussed below, the
dismissal of Count Five will be without prejudice to listing
injunctive relief among the relief sought for particular counts,
provided that Plaintiff can assert a good faith basis for
claiming that he personally is at risk of resumed violations of
Section 1983 by these Defendants requiring an injunctive remedy
against likely future violations.
18.

Finally, the Court will also dismiss Plaintiff’s claim

under Count Eight for negligence. Plaintiff alleges that Officer
Tucker owed him a duty “not to expose him to unreasonable harm.”
(Compl. Count Eight ¶ 2.) Because the essence of Plaintiff’s
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claim is that Officer Tucker acted under color of state law and
owed Plaintiff a duty on account of his official role, this
Court will construe Plaintiff’s claim as one for state-created
danger.
19.

The Due Process Clause does not impose an affirmative

obligation on the state to protect its citizens. Phillips v.
County of Allegheny, 515 F.3d 224, 235 (3d. Cir. 2008). The
state-created danger theory operates as an exception to that
general rule and requires plaintiffs to meet a four part test:
“(1) the harm ultimately caused was foreseeable and fairly
direct; (2) the state actor acted with a degree of culpability
that shocks the conscience; (3) a relationship between the state
and the plaintiff existed such that the plaintiff was a
foreseeable victim of the defendant’s acts . . . ; and (4) the
state actor affirmatively used his or her authority in a way
that created a danger to the citizen or that rendered the
citizen more vulnerable to danger than had the state not acted
at all.” Sanford v. Stiles, 456 F.3d 298, 304 (3d Cir. 2006).
Because the Amended Complaint fails to set forth facts
establishing any of these elements, the Court will dismiss Count
Eight.
20.

The dismissal of Counts Two, Three, Four, Five and

Eight of the Amended Complaint will be without prejudice. If
Plaintiff Hicks is able to develop and allege plausible factual
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grounds for these claims to address the deficiencies noted in
this Opinion, he may move to amend the Amended Complaint in the
future. Any such motion to amend the Amended Complaint must be
filed within the time for amending pleadings to be set by the
Magistrate Judge in the forthcoming scheduling order under Rule
16(a)(3)(A), Fed. R. Civ. P.
21.

An accompanying Order will be entered.

January 6, 2017
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

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