JANOWSKI v. CITY OF NORTH WILDWOOD et al
OPINION. Signed by Judge Renee Marie Bumb on 5/5/2017. (tf, )
[Docket Nos. 19, 20]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CASEY J. JANOWSKI,
Civil No. 16-4464 (RMB/JS)
CITY OF NORTH WILDWOOD, et al.,
Robert C. Scrivo, Esq.
McElroy, Deutsch, Mulvaney & Carpenter, LLP
1300 Mount Kemble Avenue
P.O. Box 2075
Morristown, New Jersey 07962
Attorney for Plaintiff Casey J. Janowski
A. Michael Barker, Esq.
Barker, Gelfand & James
210 New Road, Suite 12
Linwood, New Jersey 08221
Attorney for Defendants City of North Wildwood
and Chief Matthew Gallagher
Thomas B. Reynolds, Esq.
John J. Bannan, Esq.
Reynolds & Horn, P.C.
750 Route 73 South, Suite 202A
Marlton, New Jersey 08053
Attorneys for Defendant Sergeant Keith McGee
BUMB, UNITED STATES DISTRICT JUDGE:
Life presents countless lessons.
learned too late.
For many, they are
Unfortunately, that is the case here.
just-turned-21-year old with a misprinted driver’s license had
to know that he was courting disaster.
An impatient police
sergeant called to the bar--who could have just “counted to
three”--had to know that this disaster would land him in court.
For all sides, life has presented valuable lessons.
Defendant Sergeant McGee (“Sergeant McGee”) and Defendants
City of North Wildwood (“North Wildwood”) and Chief Matthew
Gallagher (“Chief Gallagher”) move to dismiss the Complaint
filed against them by Plaintiff Casey J. Janowski (“Plaintiff”).
The Court has considered the parties’ submissions and, for the
reasons set forth herein, Sergeant McGee’s Motion to Dismiss
[Docket No. 19] is denied without prejudice and Chief Gallagher
and North Wildwood’s Motion to Dismiss [Docket No. 20] is
Nonetheless, Plaintiff will be permitted to amend his
pleadings to cure the deficiencies identified herein.
FACTUAL AND PROCEDURAL BACKGROUND 1
On the night of July 16, 2015, Plaintiff and his friends
went to Keenan’s Bar in Wildwood Crest, New Jersey.
Plaintiff reached the entrance to the bar after his friends had
The facts recited herein are derived from Plaintiff’s
Complaint. The Court will and must accept Plaintiff’s well-pled
allegations as true in considering Defendants’ Motions to
Dismiss. See Bistrian v. Levi, 696 F.3d 352, 358 n. 1 (3d Cir.
2012). Additionally, as the Court writes primarily for the
parties, it assumes the reader’s familiarity with the facts and
recites only those relevant to its decision herein.
already entered, he handed the bouncer his valid New York-issued
Compl. ¶¶ 17-20 [Docket No. 1].
correctly listed his birthday as November 24, 1993, indicating
that Plaintiff was at least twenty-one years old, which he, in
Compl. ¶¶ 17, 20.
The bouncer, however, did not believe that Plaintiff was
twenty-one years old or that the driver’s license presented was
He asked Plaintiff to write his address on a sheet of
paper, which Plaintiff accurately did.
Compl. ¶¶ 21-22.
Nonetheless, the bouncer stated that he did not believe the
license belonged to Plaintiff and noted that the height listed
on the license was 6’3”, whereas Plaintiff was significantly
shorter in height, approximately 5’6”.
Compl. ¶¶ 23-24.
Plaintiff, apparently well-aware of the mistake on the license,
explained that this was an error by New York State, but that the
license was valid and he was twenty-one years old.
Compl. ¶ 24.
The bouncer informed Plaintiff that he still did not believe him
and confiscated Plaintiff’s driver’s license.
bouncer told Plaintiff that if he wanted the license returned,
Plaintiff could call the police.
Plaintiff then did so.
In response to Plaintiff’s call, two police officers
arrived at the scene.
Compl. ¶ 26.
The bouncer gave
Plaintiff’s license to the officers and Plaintiff explained that
he was actually twenty-one years old and that there was a
typographical error as to his height on his driver’s license.
Compl. ¶ 28.
Plaintiff also offered to show the officers other
forms of identification, which he had in his wallet, to confirm
his identity and age.
Compl. ¶ 29.
In response, the officers
indicated that they were waiting for a scanner to determine the
authenticity of the driver’s license and asked Plaintiff to
complete certain questions relating to the details on the
license, which Plaintiff did without issue.
Compl. ¶¶ 29-30.
As Plaintiff and the two officers were waiting for the
scanner, Sergeant McGee arrived on the scene.
explained to Sergeant McGee that his driver’s license was valid
and that he was twenty-one years old, as indicated on the
license, but that there was simply an error as to his height on
Compl. ¶ 32.
Immediately thereafter, without
inspecting Plaintiff’s alternate forms of identification or any
further questioning, Sergeant McGee ordered the other officers
to arrest Casey.
Sergeant McGee was “emphatic” that the license
did not belong to Plaintiff and noted that “his teeth looked
Compl. ¶ 33.
The officers then pulled Plaintiff’s
arms behind his back, pushed his face into the outside wall of
the bar, tightly handcuffed Plaintiff, and drove Plaintiff to
the North Wildwood Police Station.
Compl. ¶¶ 34-36.
At the station, Plaintiff’s possessions were removed from
his pockets, including several forms of identification,
including his University identification card, his health
insurance card, and various credit and debit cards, all of which
matched the name on his driver’s license.
Compl. ¶¶ 37-38.
Sergeant McGee did not look at Plaintiff’s alternate forms of
identification and instead directed Plaintiff to smile.
Sergeant McGee looked at Plaintiff smiling and Plaintiff’s
photograph on his driver’s license and stated: “Your teeth look
Compl. ¶¶ 39-40.
Plaintiff then asked Sergeant McGee if he could call his
mother, who is an attorney in New York.
Sergeant McGee denied
Plaintiff’s request and stated: “Stop you’re making my head
Compl. ¶ 41.
Thereafter, Plaintiff overheard a phone
call from his friend’s mother, also an attorney, who had called
the station to inquire about Plaintiff’s arrest, to represent
Plaintiff, and to confirm that Plaintiff was actually twenty-one
years of age.
Compl. ¶¶ 42-43.
After this call concluded, an
officer asked Plaintiff: “How many more girls are you going to
have pretend to be your lawyer?”
Compl. ¶ 44.
asked if Plaintiff’s parents had been called.
After this, the
officers returned Plaintiff’s belongings, apologized, and
released Plaintiff from custody.
Compl. ¶¶ 49-50.
The following day, Plaintiff’s mother spoke with Chief
Gallagher at length over the phone.
Compl. ¶ 51.
Gallagher informed her that he had reviewed the dashboard camera
footage of Plaintiff’s arrest and acknowledged that the arrest
He further stated that he was “appalled” at what
he had observed.
Compl. ¶ 52.
Chief Gallagher assured
Plaintiff’s mother that he would “get to the bottom of this”
He further noted that this was not the first incident
concerning Sergeant McGee and that he would commence an Internal
Affairs investigation into Plaintiff’s arrest.
Compl. ¶ 53.
An Internal Affairs investigation was commenced after the
incident and Plaintiff testified at Sergeant McGee’s
disciplinary hearing on March 2, 2016.
Compl. ¶ 57.
investigation found that Sergeant McGee violated the North
Wildwood Police Department’s policies and procedures by ordering
Compl. ¶ 58.
Based upon these events, on July 22, 2016, Plaintiff
instituted this action by filing a Complaint against Sergeant
McGee, Chief Gallagher, and North Wildwood [Docket No. 1],
alleging that he was falsely arrested and imprisoned.
Complaint sets forth the following causes of action: (1) a claim
for false arrest and false imprisonment against Chief Gallagher
and Sergeant McGee in violation of the Fourth and Fourteenth
Amendments, under 42 U.S.C. § 1983 (“Section 1983”); (2) a
supervisory liability claim against Chief Gallagher under
Section 1983; (3) a municipal liability claim against North
Wildwood under Section 1983; (4) a claim for false arrest and
false imprisonment against Chief Gallagher and Sergeant McGee in
violation of the New Jersey Constitution under the New Jersey
Civil Rights Act, N.J.S.A. § 10:6-1, et seq. (“NJCRA”); (5) a
supervisory liability claim against Chief Gallagher under the
NJCRA; and (6) a municipal liability claim against North
Wildwood under the NJCRA.
All Defendants subsequently moved to
dismiss Plaintiff’s Complaint.
MOTION TO DISMISS STANDARD
To withstand a motion to dismiss under Federal Rule of
Civil Procedure 12(b)(6), “a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007)).
“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.”
the-defendant-unlawfully-harmed-me accusation” does not suffice
to survive a motion to dismiss.
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
Twombly, 550 U.S. at 555 (quoting Papasan v. Allain,
478 U.S. 265, 286 (1986)).
In reviewing a plaintiff’s allegations, a district court
should conduct a three-part analysis:
First, the court must take note of the elements a
plaintiff must plead to state a claim. Second, the court
should identify allegations that, because they are no
more than conclusions, are not entitled to the
assumption of truth. Third, when 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.
[The] inquiry is
normally broken down into three parts: (1) identifying
the elements of the claim, (2) reviewing the complaint
to strike conclusory allegations, and then (3) looking
at the well-pleaded components of the complaint and
evaluating whether all of the elements identified in
part one of the inquiry are sufficiently alleged.
Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011) (internal
citations, quotations, and modifications omitted) (quoting
Iqbal, 556 U.S. at 675, 679).
Rule 12(b)(6) requires the district court to “accept as
true all well-pled factual allegations as well as all reasonable
inferences that can be drawn from them, and construe those
allegations in the light most favorable to the plaintiff.”
Bistrian, 696 F.3d at 358 n. 1.
Only the allegations in the
complaint and “matters of public record, orders, exhibits
attached to the complaint and items appearing in the record of
the case” are taken into consideration.
Oshiver v. Levin,
Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n. 2 (3d Cir.
1994) (citing Chester Cty. Intermediate Unit v. Pennsylvania
Blue Shield, 896 F.2d 808, 812 (3d Cir. 1990)).
A court may
also “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.”
Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196
(3d Cir. 1993).
Finally, “[i]t is axiomatic that the complaint may not be
amended by the briefs in opposition to a motion to dismiss.”
Com. of Pa. ex rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173,
181 (3d Cir. 1988) (internal citations and quotations omitted).
As such, the permissible role of a plaintiff’s opposition brief
is merely to explain the “legal theories . . . that [ ] find
support in the allegations set forth in the complaint.”
In the Complaint, Plaintiff asserts six causes of action
In the first and fourth counts, Plaintiff
sets forth false arrest and false imprisonment claims against
Sergeant McGee and Chief Gallagher under Section 1983 and the
The second and fifth counts set forth
supervisory liability claims against Chief Gallagher in his
official capacity as Chief of the North Wildwood Police
Department under Section 1983 and the NJCRA respectively.
Finally, the third and sixth counts set forth municipal
liability claims against North Wildwood under Section 1983 and
the NJCRA respectively.
“This district has repeatedly
interpreted NJCRA analogously to § 1983.”
Pettit v. New Jersey,
2011 WL 1325614, at *3 (D.N.J. Mar. 30, 2011) (collecting
cases); see also Borden v. Sch. Dist. of Twp. of E. Brunswick,
523 F.3d 153, 164 n. 5 (3d Cir. 2008).
Accordingly, the Court
will consider Plaintiff’s claims under the NJCRA together with
his claims under Section 1983.
Sergeant McGee moves to dismiss the false arrest and false
imprisonment claims asserted against him, arguing that he is
entitled to qualified immunity.
Additionally, North Wildwood
and Chief Gallagher have moved to dismiss Plaintiff’s claims for
failure to state a claim.
A. False Arrest and False Imprisonment Claims
(Counts 1 and 4)
i. Sergeant Keith McGee
Sergeant McGee argues that he is entitled to qualified
immunity on Plaintiff’s false arrest and false imprisonment
“The doctrine of qualified immunity protects government
officials ‘from liability for civil damages insofar as their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)); accord Plumhoff
v. Rickard, 134 S. Ct. 2012, 2023 (2014) (“An official sued
under § 1983 is entitled to qualified immunity unless it is
shown that the official violated a statutory or constitutional
right that was ‘clearly established’ at the time of the
Qualified immunity protects from suit
“all but the plainly incompetent or those who knowingly violate
Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011)
(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).
Qualified immunity is immunity from suit, rather than
merely a defense to liability, and, as such, should be resolved
as early as possible.
Pearson, 555 U.S. at 231-32.
qualified immunity analysis involves a fact-intensive inquiry
that is generally ill-suited for resolution at the pleadings
Batiz v. Brown, 2013 WL 1137531, at *7 (D.N.J. Mar. 14,
2013); accord Coles v. Carlini, 2012 WL 1079446, at *9 (D.N.J.
Mar. 29, 2012) (“the qualified immunity analysis is typically
inappropriate for motions to dismiss for the very issue present
in this motion--it is a fact sensitive inquiry.”).
Third Circuit has “caution[ed] . . . that it is generally unwise
to venture into a qualified immunity analysis at the pleading
stage as it is necessary to develop the factual record in the
vast majority of cases.”
Newland v. Reehorst, 328 F. App’x 788,
791 n. 3 (3d Cir. 2009).
As a result, “qualified immunity will
be upheld on a 12(b)(6) motion only when the immunity is
established on the face of the complaint.”
Independence Twp., 463 F.3d 285, 291 (3d Cir. 2006) (quoting
Leveto v. Lapina, 258 F.3d 156, 161 (3d Cir. 2001)) (emphasis
In determining whether an officer is entitled to qualified
immunity from suit, a court must answer two questions:
“(1) whether the officer violated a constitutional right,” and
“(2) whether the right was clearly established, such that it
would have been clear to a reasonable officer that his conduct
was unlawful in the situation he confronted.”
Lamont v. New
Jersey, 637 F.3d 177, 182 (3d Cir. 2011) (internal quotations
and modifications omitted) (quoting Saucier v. Katz, 533 U.S.
194, 201-02 (2001)).
The questions may be answered in either
Pearson, 555 U.S. at 242.
Additionally, the officer
seeking to invoke qualified immunity bears the burden of proving
Reedy v. Evanson, 615 F.3d 197, 223 (3d Cir.
For purposes of his motion to dismiss only, Sergeant McGee
does not contest that a constitutional violation has been
Rather, Sergeant McGee focuses on the second question,
arguing that, although “Sergeant McGee does not concede that he
was mistaken in his judgment that probable cause existed for
Plaintiff’s arrest, [he] would nonetheless be entitled to
qualified immunity from this lawsuit even if he were mistaken as
alleged in the Complaint.”
No. 19-4] (emphasis added).
Def. McGee Br. at 8 [Docket
Accordingly, consistent with
Sergeant McGee’s arguments, the Court assumes, for purposes of
resolving the instant motion only, that the first question is
answered in the affirmative.
The Court, therefore, turns to
whether, based on the pleadings, it would have been clear to a
reasonable officer that his conduct was unlawful in the
situation he confronted, that is, that he did not have probable
cause to arrest Plaintiff.
In determining whether a right is clearly established, it
must be clear to a reasonable officer that his conduct was
unlawful in the situation he confronted.
Saucier, 533 U.S. at
202 (citing Wilson v. Layne, 526 U.S. 603, 615 (1999)).
differently, “a defendant cannot be said to have violated a
clearly established right unless the right’s contours were
sufficiently definite that any reasonable official in the
defendant’s shoes would have understood that he was violating
Plumhoff, 134 S. Ct. at 2023.
The Supreme Court has
cautioned courts “‘not to define clearly established law at a
high level of generality,’ since doing so avoids the crucial
question whether the official acted reasonably in the particular
circumstances that he or she faced.”
U.S. at 742).
Id. (quoting al-Kidd, 563
Instead, when determining whether an officer’s
actions violated a “clearly established right,” the “inquiry
‘must be undertaken in light of the specific context of the
case, not as a broad general proposition.’”
Brosseau v. Haugen,
543 U.S. 194, 198 (2004) (quoting Saucier, 533 U.S. at 201).
Arrest without probable cause is certainly a clearly
established constitutional violation in the abstract. See
Orsatti v. New Jersey State Police, 71 F.3d 480, 482 (3d Cir.
1995) (citing Papachristou v. City of Jacksonville, 405 U.S.
156, 169 (1972)) (“The general principles of law that govern
this case are well settled.
Broadly stated, the Fourth
Amendment prohibits a police officer from arresting a citizen
except upon probable cause.”).
end the inquiry.
That alone, however, does not
Rather, “the right the official is alleged to
have violated must have been ‘clearly established’ in a more
particularized, and hence more relevant, sense: The contours of
the right must be sufficiently clear that a reasonable official
would understand that what he is doing violates that right.”
Saucier, 533 U.S. at 202 (quoting Anderson v. Creighton, 483
U.S. 635, 640 (1987)).
Thus, the question this Court must address is whether a
reasonable officer in Sergeant McGee’s shoes at the time of
Plaintiff’s arrest would have understood that he did not have
probable cause to arrest Plaintiff.
See Plumhoff, 134 S. Ct. at
Here, the Court must consider whether, in light of the
circumstances known to Sergeant McGee at the time he arrested
Plaintiff, as pled in the Complaint, it was reasonable for
Sergeant McGee to believe that he had probable cause to do so.
Plaintiff asserts false arrest and false imprisonment
claims against Sergeant McGee.
At the heart of such claims is
the allegation that Plaintiff’s arrest was made without probable
See, e.g., Wright v. City of Philadelphia, 409 F.3d 595,
601 (3d Cir. 2005) (“An arrest by a law enforcement officer
without a warrant ‘is reasonable under the Fourth Amendment
where there is probable cause to believe that a criminal offense
has been or is being committed.’”) (quoting Devenpeck v. Alford,
543 U.S. 146, 152 (2004)); Pulice v. Enciso, 39 F. App’x 692,
696 (3d Cir. 2002) (“Under § 1983, false arrest, false
imprisonment, and malicious prosecution claims require a showing
that the arrest, physical restraint, or prosecution was
initiated without probable cause.”).
“Probable cause exists
where the facts and circumstances within the arresting officer’s
knowledge are sufficient to warrant a reasonable person to
believe an offense had been committed.”
United States v.
McGlory, 968 F.2d 309, 342 (3d Cir. 1992). 2
As this Court previously noted, “[t]his district has
repeatedly interpreted the NJCRA analogously to § 1983.”
Pettit, 2011 WL 1325614, at *3. Likewise, the standard for
probable cause is identical under federal and New Jersey law.
Maples v. Atlantic City, 2008 WL 2446825, at *6 (D.N.J. June 16,
2008); see also New Jersey v. Basil, 202 N.J. 570, 585-86 (2010)
In determining whether probable cause existed at the time
of the arrest, the “arresting officer’s state of mind (except
for the facts that he knows)” and the charges “actually invoked
by the arresting officer” are irrelevant.
Devenpeck, 543 U.S.
at 153; Jaegly v. Couch, 439 F.3d 149, 154 (2d Cir. 2006).
Courts must instead objectively assess whether, at the time of
the arrest and based upon the facts known to the officer,
probable cause existed “as to any offense that could be charged
under the circumstances.”
Wright, 409 F.3d at 602 (quoting
Barna v. City of Perth Amboy, 42 F.3d 809, 819 (3d Cir. 1994)).
Courts must determine “whether, at the moment the arrest was
made, the officers had probable cause to make it--whether at
that moment the facts and circumstances within their knowledge
and of which they had reasonably trustworthy information were
sufficient to warrant a prudent man in believing that the
petitioner had committed or was committing an offense.”
State of Ohio, 379 U.S. 89, 91 (1964); accord Devenpeck,
543 U.S. at 152 (“Whether probable cause exists depends upon the
reasonable conclusion to be drawn from the facts known to the
arresting officer at the time of the arrest.”).
(reciting standard for probable cause to arrest under New Jersey
law and citing to federal law as basis for that standard). For
these reasons, the Plaintiff’s federal and state law false
arrest and false imprisonment claims are considered together.
Crucially, “[t]he test for an arrest without probable cause
is an objective one, based on ‘the facts available to the
officers at the moment of arrest.’”
(quoting Beck, 379 U.S. at 96).
Barna, 42 F.3d at 819
Courts must consider the
totality of the circumstances known to the officer at the time
of the arrest.
Andrews v. Scuilli, 853 F.3d 690, 698, 704
(3d Cir. 2017).
As discussed supra, the totality of the
circumstances known to the officer must be established on the
face of the complaint in order for this Court to carry out its
qualified immunity analysis.
Probable cause may exist “even in the absence of the actual
observance of criminal conduct when a prudent observant would
reasonably infer that a defendant acted illegally.”
States v. Burton, 288 F.3d 91, 98 (3d Cir. 2002) (citing
Illinois v. Gates, 462 U.S. 213, 243 n. 13 (1983) (“probable
cause requires only a probability or substantial chance of
criminal activity, not an actual showing of such activity.”)).
Additionally, “[t]he validity of the arrest does not depend on
whether the suspect actually committed a crime; the mere fact
that the suspect is later acquitted of the offense for which he
is arrested is irrelevant to the validity of the arrest.”
Michigan v. DeFillippo, 443 U.S. 31, 36 (1979).
and degree of proof and the procedural requirements necessary
for a conviction are not prerequisites to a valid arrest.”
Sergeant McGee argues that he is entitled to qualified
immunity, given all the facts as pled, because it was not
clearly established that he did not have probable cause to
arrest Plaintiff under the circumstances for presenting a false
In his moving brief, Sergeant McGee refers the
Court to N.J.S.A. § 33:1-81(c), which provides:
It shall be unlawful for: . . .
(c) Any person to misrepresent or misstate his age, or
the age of any other person for the purpose of inducing
any licensee or any employee of any licensee, to sell,
serve or deliver any alcoholic beverage to a person under
the legal age for purchasing alcoholic beverages[.]
N.J.S.A. § 33:1-81(c).
An individual must be at least 21 years
of age to legally purchase and consume alcohol in the State of
N.J.S.A. § 9:17B-1(b).
According to Sergeant McGee, even if he was mistaken in his
belief that he had probable cause to arrest and detain
Plaintiff, he is nonetheless entitled to qualified immunity
because such mistake is reasonable under the circumstances.
support, Sergeant McGee contends that he reasonably believed he
had probable cause to arrest Plaintiff for possessing a false
identification because of the blatant discrepancy between
Plaintiff’s actual height and the height listed on his driver’s
license and because Sergeant McGee thought Plaintiff’s “teeth
looked different than in the driver’s license photo.”
McGee Br. at 9.
Additionally, he argues that he reasonably
believed he had probable cause to arrest Plaintiff because the
bouncer at Keenan’s Bar believed the driver’s license was
invalid and because Plaintiff was only seven months past his
twenty-first birthday and, therefore, “might still appear to be
Finally, despite the fact that a scanner was on
its way and that Plaintiff had offered to present several other
forms of identification to corroborate his age and identity,
Sergeant McGee claims that once he “believed probable cause
existed for Plaintiff’s arrest as a result of the facts and
circumstances as he understood them to be at the time of the
arrest, he was not required to undertake a more exhaustive
investigation prior to making the arrest.”
Id. at 9-10. 3
Sergeant McGee relies, in part, on the Third Circuit’s
decision in Merkle v. Upper Dublin School District, in which the
Third Circuit stated that the defendant officer “was not
required to undertake an exhaustive investigation in order to
validate the probable cause that, in his mind, already existed.”
211 F.3d 782, 790 n. 8 (3d Cir. 2000). As alleged in the
Complaint, however, not only did Sergeant McGee not conduct an
exhaustive investigation prior to arresting Plaintiff, but he
failed to conduct any investigation. In any event, regardless
of whether Sergeant McGee was required to investigate any
further than looking at Plaintiff’s driver’s license and teeth
before arresting Plaintiff, it appears that it would have been
the prudent thing to do. In this Court’s view, this entire
debacle could have been prevented with a dose of common sense
and courtesy. Unfortunately, these traits were not displayed.
Plaintiff eagerly offered alternative forms of identification,
yet he was ignored. The first officers on the scene called a
scanner to confirm the validity of Plaintiff’s driver’s license,
but this plan was abandoned in favor of a seemingly rash
decision that Plaintiff was lying, leading to his arrest. Had
Sergeant McGee politely requested that Plaintiff voluntarily
accompany him to the police station to confirm his age and
At this stage, however, on the face of the Complaint alone,
it is impossible for this Court to consider the totality of the
circumstances known to Sergeant McGee at the time of the arrest.
Without this, the Court cannot make a determination as to
whether it was clearly established that an officer, presented
with the situation confronted by Sergeant McGee, did not have
probable cause to arrest Plaintiff.
Without the full set of
facts known to Sergeant McGee at the time of Plaintiff’s arrest,
the Court cannot assess whether it was reasonable for Sergeant
McGee to believe he had probable cause to arrest Plaintiff.
For example, based on the Complaint alone, it is unknown
whether Sergeant McGee had an opportunity to compare Plaintiff’s
teeth, either in person or in the driver’s license photograph,
prior to Plaintiff’s arrest.
If Plaintiff appeared in person
exactly as he did in the driver’s license photograph, this would
suggest that Sergeant McGee did not act reasonably, whereas if
Plaintiff appeared different from his photograph, that would be
one fact to support the propriety of the arrest.
Neither a copy
of the driver’s license nor a photograph of Plaintiff is
included in the pleadings.
Thus, it cannot be said that, on the
face of the Complaint, qualified immunity attaches because
Sergeant McGee reasonably believed he had probable cause to
identity, perhaps all parties would have been satisfied and this
litigation could have been avoided.
Indeed, according to the Complaint, it was not until
after Plaintiff was arrested and at the police station that
Sergeant McGee directed Plaintiff to smile and observed his
Compl. ¶¶ 39-40.
More importantly, at this early juncture, it is unclear
what was known by Sergeant McGee at the time of Plaintiff’s
On the face of the Complaint, the Court cannot
determine what Sergeant McGee knew upon arrival at the scene.
For example, it is unknown whether Sergeant McGee was aware that
it was Plaintiff, not the bouncer, who called the police to
retrieve his driver’s license or that Plaintiff correctly
answered all questions asked by the first officers on the scene
regarding his identity and driver’s license, facts that enter
into the “totality of the circumstances” inquiry.
Plaintiff would make the call himself would seem to suggest that
he committed no crime, as individuals guilty of criminal conduct
do not tend to spotlight their crime to the police.
Additionally, the Complaint does not state whether Sergeant
McGee knew that the first officers on the scene were waiting for
a scanner to determine the authenticity of Plaintiff’s driver’s
It is also unclear what the first arriving officers
relayed to Sergeant McGee, if anything, either before or upon
Such information would likely greatly impact this
Only development of the factual record will
elucidate the full set of circumstances that Sergeant McGee
confronted at the time of Plaintiff’s arrest, so that qualified
immunity may be determined.
Qualified immunity is an affirmative defense, “not a part
of the plaintiff’s cause of action which he must denigrate.”
Thomas, 463 F.3d at 292 (citing Gomez v. Toledo, 446 U.S. 635,
As a result, “there is ‘no basis for imposing
on the plaintiff an obligation to anticipate such a defense[.]”
Id. (quoting Gomez, 446 U.S. at 640).
Thus, as is clear,
qualified immunity should only be granted on a motion to dismiss
when it is “established on the face of the complaint.”
Without further factual development, the Court cannot
evaluate the full set of circumstances with which Sergeant McGee
was confronted at the time he arrested Plaintiff.
information is critical to this Court’s determination of whether
Sergeant McGee is entitled to qualified immunity.
as the Court does not find that qualified immunity is apparent
on the face of the Complaint, Sergeant McGee’s motion to dismiss
is denied without prejudice.
If appropriate, Sergeant McGee may
raise this defense again at a later stage of the litigation.
It bears noting, however, that even with a proper factual
record, upon completion of discovery, jury questions are likely
For example, the Court does not envision that the
parties will agree that Plaintiff’s teeth “looked different” in
his driver’s license photograph than in person.
And, while the
height discrepancy is undisputed, it is only one factor that
goes into the probable cause and qualified immunity analyses.
Only when there are no material disputed facts may the Court
resolve the existence of probable cause; the existence of
probable cause is generally a question for the jury.
211 F.3d at 788-89.
The test will be “whether any reasonable
jury could conclude that those facts, considered in their
totality in the light most favorable to the nonmoving party, did
not demonstrate a ‘fair probability’ that a crime occurred.”
Andrews, 853 F.3d at 698 (quoting Dempsey v. Bucknell Univ., 834
F.3d 457, 468 (3d Cir. 2016)).
The Supreme Court “has eschewed
‘any rigid demand that specific ‘tests’ be satisfied’ and has
instead prescribed a ‘totality-of-the-circumstances approach’ to
the probable cause determination.”
Dempsey, 834 F.3d at 467-68
(quoting Gates, 462 U.S. at 230-31).
Additionally, in light of the “tightly intertwined issues
of fact and law” involved in the qualified immunity analysis,
the Court may use a jury in an advisory capacity to assist in
its determination, though the “responsibility for answering the
ultimate question remains with the court.”
499 F.3d 199, 211 n. 12 (3d Cir. 2007).
Curley v. Klem,
Thus, at a minimum,
special interrogatories to the jury may be appropriate to assist
the Court in its qualified immunity analysis by resolving the
“credibility-centered factual determination” of what
circumstances Sergeant McGee confronted at the time of
See Brandt v. Monte, 626 F. Supp. 2d 469,
484 (D.N.J. 2009).
ii. Chief Gallagher
The Court next turns to Plaintiff’s false arrest and
imprisonment claims against Chief Gallagher in his individual
Chief Gallagher argues that these claims must be
dismissed because the Complaint fails to set forth sufficient
facts regarding Chief Gallagher’s personal involvement in
Plaintiff’s arrest and detention.
For the following reasons,
the Court agrees.
There are no allegations in the Complaint that even suggest
that Chief Gallagher was present during or directly involved in
Plaintiff’s arrest or detention.
Instead, Plaintiff argues that
“Chief Gallagher admitted to [Plaintiff’s] mother that
Sgt. McGee had engaged in similar conduct in the past,” yet
“[d]espite his knowledge of Sgt. McGee’s prior conduct, Chief
Gallagher failed to take precautions to prevent further civil
rights violations by Sgt. McGee.”
Pl. Opp. Br. at 19 [Docket
Accordingly, Plaintiff contends, “[b]y failing to take
the necessary precautions, Chief Gallagher’s deliberate
indifference directly caused the violations of [Plaintiff’s]
Plaintiff appears to argue that
Chief Gallagher is liable, in his individual capacity, for
Plaintiff’s allegedly unlawful arrest and imprisonment on a
supervisory theory of liability. 4
“‘[T]here are two theories of supervisory liability,’ one
under which supervisors can be liable if they ‘established and
maintained a policy, practice or custom which directly caused
[the] constitutional harm,’ and another under which they can be
liable if they ‘participated in violating plaintiff’s rights,
directed others to violate them, or, as the person[s] in charge,
had knowledge of and acquiesced in [their] subordinates’
Santiago v. Warminster Twp., 629 F.3d 121, 129
n. 5 (3d Cir. 2010) (quoting A.M. ex rel. J.M.K. v. Luzerne Cty.
Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004)).
Unquestionably, there are no allegations in the Complaint
that Chief Gallagher participated in violating Plaintiff’s
rights or directed others to do so.
Furthermore, the Complaint
is entirely devoid of any allegations that Chief Gallagher had
knowledge of Sergeant McGee’s actions on July 16, 2015, let
alone that he acquiesced in those actions.
Plaintiff also asserts supervisory liability claims
against Chief Gallagher in his official capacity in Counts 2
and 5 of the Complaint, which are addressed infra Section III.C.
The only well-pled allegations against Chief Gallagher are
that he spoke with Plaintiff’s mother the day after Plaintiff’s
arrest and indicated that “this was not the first incident
concerning Sgt. McGee.”
Compl. ¶ 53.
The remaining allegations
regarding Chief Gallagher’s purported involvement in Plaintiff’s
arrest and detention are mere legal conclusions.
¶¶ 54-56, 68-71.
As will be addressed in further detail below,
there are insufficient allegations in the Complaint to plead the
existence of any policy, practice, or custom created by Chief
Gallagher that Sergeant McGee followed, resulting in an alleged
violation of Plaintiff’s constitutional rights.
reasons, Plaintiff’s false arrest and false imprisonment claims
under Section 1983 and the NJCRA against Chief Gallagher in his
individual capacity must be dismissed without prejudice.
Accordingly, the Court grants Chief Gallagher’s motion to
dismiss Counts 1 and 4 of the Complaint against him in his
B. Municipal Liability Claims against North Wildwood
(Counts 3 and 6)
North Wildwood contends that Counts 3 and 6 of the
Complaint, which set forth municipal liability claims against it
under Section 1983 and the NJCRA respectively, must be dismissed
for failure to state a claim for municipal liability pursuant to
Monell v. Department of Social Services of the City of New York,
436 U.S. 658 (1978).
“A municipality cannot be held liable for the
unconstitutional acts of its employees on a theory of respondeat
Thomas v. Cumberland County, 749 F.3d 217, 222
(3d Cir. 2014) (citing Monell, 436 U.S. at 691).
plaintiff seeking to hold a municipality liable under
section 1983 must demonstrate that the violation of rights was
caused by the municipality’s policy or custom.”
Monell, 436 U.S. at 690-91).
For municipal liability under
Section 1983 to attach, a plaintiff must demonstrate that “the
policy or custom itself violates the Constitution” or that “the
policy or custom, while not unconstitutional itself, is the
‘moving force’ behind the constitutional tort of one of its
Id. (quoting Colburn v. Upper Darby Twp., 946 F.2d
1017, 1027 (3d Cir. 1991)). 5
Plaintiff’s municipal liability claim under the NJCRA is
interpreted consistently with Section 1983 in this respect.
See, e.g., Perez v. New Jersey, 2015 WL 4394229, at *8 (D.N.J.
July 15, 2015) (citing Ingram v. Twp. of Deptford, 911 F. Supp.
2d 289, 298 (D.N.J. 2012) (“[B]ecause respondeat superior
liability is not permitted under § 1983, and because New Jersey
courts interpret the NJCRA as analogous to § 1983, the Court
holds that respondeat superior liability is not permitted for
claims under the New Jersey Constitution and the NJCRA.”);
Didiano v. Balicki, 2011 WL 1466131, at *10 (D.N.J. Apr. 18,
2011)); accord Estate of Dasaro v. Cty. of Monmouth, 2015 WL
5771606, at *5 (D.N.J. Sept. 30, 2015) (same).
Moreover, “[w]here the 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.”
Id. (quoting Carter v. City of
Philadelphia, 181 F.3d 339, 357 (3d Cir. 1999)).
indifference’ is a stringent standard of fault, requiring proof
that a municipal actor disregarded a known or obvious
consequence of his action.”
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, 410 (1997)).
Additionally, “a municipality may be liable under § 1983
for a single decision by its properly constituted legislative
body--whether or not that body had taken similar action in the
past or intended to do so in the future--because even a single
decision by such a body unquestionably constitutes an act of
official government policy.”
Pembaur v. City of Cincinnati,
475 U.S. 469, 480 (1986); accord Langford v. City of Atl. City,
235 F.3d 845, 848 (3d Cir. 2000).
The Third Circuit has
reiterated that “[t]he Supreme Court’s decision in Pembaur makes
clear that an official with policymaking authority can create
official policy, even by rendering a single decision.”
v. Stroup, 413 F.3d 359, 367-68 (3d Cir. 2005).
Municipal liability may only be imposed based upon a single
decision “where the decisionmaker possesses final authority to
establish municipal policy with respect to the action ordered.”
Pembaur, 475 U.S. at 481.
“‘[A]n official has final policy-
making authority, and can thus bind the municipality by his
conduct’ if ‘the official is responsible for making policy in
the particular area of municipal business in question’ and ‘the
official’s authority to make policy in that area is final and
Ecotone Farm LLC v. Ward, 639 F. App’x 118, 128
(3d Cir. 2016) (quoting Hill v. Borough of Kutztown, 455 F.3d
225, 245 (3d Cir. 2006)) (emphasis in original).
Plaintiff contends that his allegations “demonstrate that
Chief Gallagher is a municipal policymaker who exhibited
deliberate indifference and/or acquiescence to Sgt. McGee’s
Chief Gallagher’s knowledge of Sgt. McGee’s
prior conduct and deliberate indifference to that conduct caused
the violations of [Plaintiff’s] constitutional rights.”
Opp. Br. at 21.
At this juncture, the Court makes no findings as to whether
Chief Gallagher is a policymaker in this context.
that Chief Gallagher may be considered a policymaker here, such
that even a single act by him could constitute a municipal
policy or custom, the Court finds that the Complaint falls far
short of adequately pleading a municipal liability claim.
Complaint alleges no actions on the part of Chief Gallagher that
are violative of Plaintiff’s rights.
Moreover, there are no
allegations that even suggest that Chief Gallagher displayed
deliberate indifference to any alleged violations by others,
including Sergeant McGee.
Plaintiff’s municipal liability claims, just as his
supervisory liability claims, are premised upon a single factual
allegation in the Complaint: Chief Gallagher “informed
Mrs. Janowski that this was not the first incident concerning
Compl. ¶ 53.
From this alone, Plaintiff concludes
54. Chief Gallagher thus directed, participated in, had
actual knowledge of, and acquiesced in his subordinates’
violations of Casey’s constitutional rights as detailed
in this Complaint.
55. Chief Gallagher’s actions in this matter, including
his failure to prevent his subordinates’ violations of
Casey’s constitutional rights as set forth in this
Complaint, amounts to a callous, reckless, knowing, and
deliberate indifference to those rights.
56. Chief Gallagher’s direction of, participation in,
knowledge of, and acquiescence in his subordinates’
violations of Casey’s rights was a breach of his sworn
duty to the City of North Wildwood, the North Wildwood
Police Department, and the people of North Wildwood.
Compl. ¶¶ 54-56.
The Complaint also baldly alleges that North Wildwood had
“in effect express, official policies, and/or practices and
customs, that were the direct and proximate cause of the
violations of Casey’s constitutional and civil rights as set
forth in this Complaint.”
Compl. ¶ 77.
Next, Plaintiff concludes, without any factual elaboration,
78. In particular, Chief Gallagher, John Does 1-10, the
City, and the police Department at all times relevant to
this Complaint have and had actual and/or constructive
knowledge of repeated and persistent abuses of civil and
constitutional rights by Sgt. McGee, . . . with the sole
purpose to harass, intimidate, and humiliate, as set
forth in this Complaint.
79. Despite that actual and/or constructive knowledge,
Chief Gallagher, John Does 1-10, the City, and the Police
Department tolerated, condoned, displayed deliberate
indifference to and tacitly authorized the behavior and
custom of Sgt. McGee to violate the constitutional
rights of members of the public.
As a direct and
proximate result of their misfeasance and malfeasance in
light of the foregoing, the custom and conduct became
the de facto official policy of the City and the Police
80. Moreover, Chief Gallagher, John Does 1-10, the City,
and the Police Department had a duty to train and
supervise the conduct of Police Department personnel
and, among other things, to prevent such personnel from
violating the constitutional rights of Casey and other
members of the public. Chief Gallagher, Johns Does 1-10,
intentionally, recklessly, and/or negligently breached
their duty to train and supervise the Police Department,
all of whom were under their control, resulting in the
deprivation of Casey’s constitutional rights as set
forth in this Complaint.
81. The City’s training policy was inadequate in that
it failed to properly train members of the Police
Department with respect to constitutionally-required
procedures for lawfully procuring arrests, imprisoning
That training policy was so
deficient as to reflect deliberate indifference on the
part of the City, the Police Department, Chief
Gallagher, and John Does 1-10 to the constitutional and
civil rights of persons, including Casey, with whom the
members of the Police Department came into contact[.]
82. The City and the Police Department maintained and
implemented the aforementioned policies, practices, and
customs through Chief Gallagher and John Does 1-10 and
with deliberate indifference to the rights of Casey and
others. Those policies and customs were the direct and
constitutional and civil rights as set forth in this
Compl. ¶¶ 78-82.
These textbook conclusory allegations are not
entitled to the assumption of truth.
Malleus, 641 F.3d at 563.
Plaintiff’s allegations of any municipal policy, practice,
or custom are, at best, completely conclusory and, at worst,
totally absent from the Complaint.
Based solely upon Chief
Gallagher’s alleged comment that “this was not the first
incident concerning Sgt. McGee,” Plaintiff improperly
extrapolates that Chief Gallagher was aware that Sergeant McGee
had previously committed civil rights and constitutional
violations and yet took no steps to address the purported
As Defendants correctly note, that is simply an
overstatement of the pleadings.
Plaintiff cannot amend or
supplement his pleadings through his opposition brief.
Zimmerman, 836 F.2d at 181.
As currently pled, the Complaint
alleges nothing more than that Chief Gallagher stated that there
have been other “incidents concerning Sergeant McGee.”
are no allegations whatsoever in the Complaint as to the nature
of these incidents or Chief Gallagher’s responses to those
incidents, from which one could infer an unlawful policy,
custom, or practice, or deliberate indifference on the part of
Indeed, the only well-pled allegations regarding Chief
Gallagher’s conduct are that he spoke with Plaintiff’s mother
after Plaintiff was released from custody, that he promised to
investigate the matter, and that he did, in fact, investigate.
The allegations not only suggest that Chief Gallagher did not
act unlawfully or with deliberate indifference, but that he
Plaintiff has not alleged even a single
decision by Chief Gallagher as a policymaker, let alone the
existence of a preexisting custom, policy, or practice, that
could form the basis of a municipal liability claim.
foregoing reasons, the Court grants North Wildwood and Chief
Gallagher’s motion to dismiss Counts 3 and 6 of the Complaint.
Plaintiff’s municipal liability claims are dismissed without
C. Supervisory Liability Claims against Chief Gallagher
(Counts 2 and 5)
Finally, the Court addresses Plaintiff’s supervisory
liability claims against Chief Gallagher in his official
capacity, set forth in Counts 2 and 5 of the Complaint.
Court noted supra, “[t]here are two theories of supervisory
Santiago, 629 F.3d at 129 n. 5.
Under the first,
“supervisors can be liable if they ‘established and maintained a
policy, practice or custom which directly caused [the]
Id. (quoting A.M. ex rel. J.M.K, 372 F.3d
For the reasons set forth above in addressing
Plaintiff’s municipal liability claims, the Court finds that the
Complaint does not set forth sufficient facts to establish that
Chief Gallagher established or maintained a policy, practice, or
custom that directly caused any alleged constitutional harm to
Plaintiff’s allegations in this respect are wholly
The second theory of supervisory liability provides that
supervisors “can be liable if they ‘participated in violating
plaintiff’s rights, directed others to violate them, or, as the
person[s] in charge, had knowledge of and acquiesced in [their]
372 F.3d at 586). 6
Id. (quoting A.M. ex rel. J.M.K.,
As the Court has already found, there are
The Third Circuit has acknowledged that the Supreme
Court’s decision in Iqbal may have altered the scope of
supervisory liability in the Section 1983 context. “To date,
[the Third Circuit] ha[s] refrained from answering the question
of whether Iqbal eliminated--or at least narrowed the scope of-supervisory liability.” Jennings-Fowler v. City of Scranton,
--- F. App’x ----, 2017 WL 715068, at *4 n. 24 (3d Cir. Feb. 23,
2017) (quoting Argueta v. U.S. Immigration & Customs Enf’t, 643
F.3d 60, 70 (3d Cir. 2011)). Any resulting narrowing of
supervisory liability after Iqbal does not impact this Court’s
decision here as it is plainly clear that the facts as currently
simply no allegations that Chief Gallagher was in any way
involved in Plaintiff’s arrest and detention, let alone that he
participated in any alleged violations of Plaintiff’s rights or
directed others to violate Plaintiff’s rights.
are no well-pled allegations that he had knowledge of and
acquiesced in any alleged unlawful conduct on the part of
Indeed, the only allegations regarding Chief
Gallagher address his conduct the day after Plaintiff’s arrest,
after he had been released from custody.
allegedly expressed his dismay at the circumstances to
Plaintiff’s mother and vowed to investigate the situation, which
Based upon the pleadings, the Court sees no basis to
impose liability upon Chief Gallagher and, therefore, dismisses
the supervisory liability claims set forth in Counts 2 and 5 of
the Complaint against Chief Gallagher in his official capacity.
In any event, even if Plaintiff could plead sufficient
facts to establish supervisory liability against Chief Gallagher
in his official capacity, the Court nonetheless also dismisses
the supervisory liability claims on separate grounds.
Gallagher and North Wildwood argue that Plaintiff’s supervisory
liability claims against Chief Gallagher in his official
capacity set forth in Counts 2 and 5 of the Complaint should be
pled cannot sustain a supervisory liability claim against Chief
Gallagher under any standard.
dismissed as duplicative of municipal liability claims against
North Wildwood, set forth in Counts 3 and 6 of the Complaint.
The Court agrees.
In fact, even Plaintiff does not contest that
the Court may dismiss these claims as duplicative of the
municipal liability claims against North Wildwood.
Plaintiff simply argues that the Court is “not required to do
Pl. Opp. Br. at 23 (emphasis added).
“[A]n official-capacity suit is, in all respects other than
name, to be treated as a suit against the entity.
It is not a
suit against the official personally, for the real party in
interest is the entity.”
Kentucky v. Graham, 473 U.S. 159, 166
Accordingly, where claims against an officer in his
official capacity are duplicative of claims against the
municipality, those claims are properly dismissed as redundant.
See, e.g., Baez v. Lancaster Cty., 487 F. App’x 30, 32 (3d Cir.
2012) (“The claim against Warden Guarini in his official
capacity is duplicative of the suit against the County.
result, summary judgment was properly granted in favor of the
County and Warden Guarini in his official capacity.”); Cuvo v.
De Biasi, 169 F. App’x 688, 693 (3d Cir. 2006) (“We will affirm
the District Court’s dismissal of the claims against the
officers in their official capacities because a lawsuit against
public officers in their official capacities is functionally a
suit against the public entity that employs them.
is suing Palmer Township, the suit against the officers in their
official capacities is redundant.”) (internal citations
omitted); Matos v. Laielli, 2016 WL 6275161, at *2 n. 1 (D.N.J.
Oct. 26, 2016) (“Insofar as any claims have been asserted
against Balles in his official capacity, they are dismissed as
duplicative of the claims against the County.”).
Here, the supervisory liability claims against Chief
Gallagher in his official capacity are entirely duplicative of
the municipal liability claims against North Wildwood.
claims are all premised upon the same conclusory allegations and
Accordingly, the Court grants Chief
Gallagher’s motion to dismiss Counts 2 and 5, the supervisory
liability claims against Chief Gallagher in his official
capacity, as duplicative of Counts 3 and 6, the municipal
liability claims against North Wildwood.
Any amendment to the
Complaint as to these claims would be futile.
Plaintiff’s supervisory liability claims against Chief Gallagher
in his official capacity under Section 1983 and the NJCRA, set
forth in Counts 2 and 5, are dismissed with prejudice.
For the foregoing reasons, the Motion to Dismiss by
Defendant Sergeant McGee is denied without prejudice and the
Motion to Dismiss by Defendants North Wildwood and Chief
Gallagher is granted.
Plaintiff may amend his pleadings within
thirty (30) days of the entry of this Opinion and the
accompanying Order to cure the deficiencies identified herein.
An appropriate Order shall issue on this date.
s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE
Dated: May 5, 2017
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