ITIOWE v. DANIEL et al

Filing 27

OPINION. Signed by Judge Renee Marie Bumb on 9/20/2017. (dmr)

[Dkt. No. 6, 7, 14, 15, 17]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

CHRISTIANA ITIOWE,
Plaintiff,
Civil No. 16-7777(RMB/KMW)
v.
MAYOR TEEFY DANIEL, et al.,

OPINION

Defendants.

BUMB, United States District Judge:
This matter comes before the Court upon a Motion to Dismiss
Plaintiff’s Amended Complaint filed by defendants Mayor Daniel
Teefy (improperly pled as Teefy Daniel), Municipal Court Judge
Nicholas Lacovara; Municipal Prosecutor Charles Fiore; Marcella
Carter, Administrative Assistant to the Chief of Police; 1 John

1

While Ms. Carter was named in Plaintiff’s initial Complaint,
she is excluded from Plaintiff’s Amended Complaint, which did
not specifically reference or incorporate the initial Complaint.
When an amended complaint is filed, it supersedes the original
and renders it of no legal effect, unless the amended complaint
specifically refers to or adopts the earlier pleading. See West
Run Student Housing Associates, LLC v. Huntington National Bank,
712 F.3d 165, 171-72 (3d Cir. 2013) (collecting cases); see also
6 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE §
1476 (3d ed. 2008). Ms. Carter was named, incorrectly, as Chief
of Police in the initial Complaint. In the Amended Complaint Ms.
Carter was not named, and Chief John McKeown was correctly
identified. As such, Ms. Carter is no longer a defendant in this
case. Plaintiff confirms as much in her filing of March 20, 2017
[Dkt. No. 21].

McKeown, Monroe Township Police Chief; the Monroe Township
Police Department; and its Internal Affairs Unit (collectively,
the “Defendants”). [Dkt. No. 15]. Defendants seek to dismiss all
counts of pro se plaintiff Christiana Itiowe’s (the “Plaintiff”)
Amended Complaint in which Plaintiff alleges (1) violations of
the First, Fourth, and Fourteenth Amendments of the United
States Constitution pursuant to 42 U.S.C. § 1983; (2) violation
of 42 U.S.C. §2000b-2; 2 (3) violations of Title 10 of NJSA; 3 (4)

Defendants also filed a motion to dismiss the Plaintiff’s
initial Complaint [Dkt. No. 7]. Because that Complaint was
superseded and rendered legally ineffective by the filing of the
Amended Complaint, the Defendants’ motion to dismiss is rendered
moot.
2 42 U.S.C. §2000b-2 is contained in Title III of the Civil
Rights Act of 1964 (“Title III”). “By its plain terms, Title III
of the Civil Rights act authorizes the Attorney General to bring
suit to vindicate equal protection rights[,] . . . Title III
does not create a private right of action.” Brown v. Warden
Voorhies, No. 07–cv–13, 2012 U.S. Dist. LEXIS 44511, at *31
(S.D. Ohio Mar. 30, 2012) (emphasis in original); see also e.g.;
Davis v. City of Dearborn, No. 2:09–cv–14892, 2010 U.S. Dist.
LEXIS 133546, at *18 (E.D. Mich. Dec. 17, 2010) (collecting
cases holding that no private right of action exists under Title
III). An individual is not permitted to bring suit under Title
III. Jefferson v. City of Freemont, No. C–12–0926, 2012 WL
1534913, *3 (N.D. Cal. Apr. 30, 2012). Therefore, the Court
dismisses this claim with prejudice.
3 Plaintiff claims that Defendants violated NJSA 10:1-2 and 10:51. NJSA 10:1-2 provides that “[a]ll persons within the
jurisdiction of [New Jersey] shall be entitled to the full and
equal accommodations, advantages, facilities and privileges of
any places of public accommodation, resort or amusement . . . .”
None of the allegations in Plaintiff’s Complaint so much as
suggests that any Defendant denied Plaintiff such “equal
accomodations, advantages, facilities and privileges.” This
claim must be dismissed. NJSA 10:5-1 is the first section of the
New Jersey Law Against Discrimination (“NJLAD”). This law
prohibits discrimination based on “race, creed, color, national

and violations of several New Jersey criminal statutes. 4 For the
reasons set forth below, the Defendants’ Motion to Dismiss shall
be granted. 5

origin, ancestry, age, marital status, affectional or sexual
orientation, familial status, disability, nationality, sex,
gender identity or expression or source of lawful income used
for rental or mortgage payments.” N.J. Stat. Ann. § 10:5-4.
Plaintiff does not allege any facts suggesting that any of the
Defendants discriminated against her based on any of these
protected categories, or at all. Plaintiff’s claims under NJLAD
are also dismissed.
4 Plaintiff alleges that the Defendants violated NJSA 2C:33-4,
NJSA 2C:16-1, NJSA 2C:5-2, and NJSA 2C:13-3. These are criminal
statutes. As this is a civil matter, Plaintiff has no standing
to assert criminal actions against any defendant in this Court.
Ali v. Jersey City Parking Auth., 2014 WL 1494578, at *4 (D.N.J.
Apr. 16, 2014) aff'd, 594 F. Appx. 730 (3d Cir. 2014).
Therefore, these claims are dismissed with prejudice.
5 The Court notes that Plaintiff has also filed three motions.
[Dkt. Nos. 6, 14, 17]. The first of these motions [Dkt. No. 6]
is a Motion for Default Judgment filed by Plaintiff on December
16, 2016. Federal Rule of Civil Procedure 55(b) governs the
entry of a default judgment. Before a default judgment may be
entered pursuant to Rule 55(b), a party must have the Clerk of
the Court enter a default pursuant to Rule 55(a). De Tore v.
Jersey City Public Employees Union, 511 F.Supp. 171, 176 (D.N.J.
1981); Nationwide Mut. Ins. Co. v. Starlight Ballroom Dance
Club, Inc., 175 Fed. Appx. 519, 521 n. 1 (3d Cir. 2006) (“Prior
to obtaining a default judgment under either Rule 55(b)(1) or
Rule 55(b)(2), there must be entry of default as provided by
Rule 55(a).”) (citation omitted) (unpublished). The Clerk has
not entered a default in this case; thus, this Court can not
enter a default judgment. Plaintiff's motion for default
judgment is therefore denied.
The second and third motions are unintelligible. As far as
the Court can discern, Plaintiff reiterates the allegations in
the Amended Complaint and seeks injunctive relief against
various parties and non-parties to this suit. Beyond being
incomprehensible, these motions are moot based on the dismissal
of each of Plaintiff’s claims.

I.

Factual Background

Because Plaintiff is proceeding pro se, the Court must
liberally construe her Complaint. Erickson v. Pardus, 551 U.S.
89, 94 (2007) (citing Estelle v. Gamble, 429 U.S. 97, 106
(1976)); see also Haines v. Kerner, 404 U.S. 519, 520 (1972)
(“[H]owever inartfully pleaded,” the “allegations of a pro se
complaint [are held] to less stringent standards than formal
pleadings drafted by lawyers[.]”). Even construing Plaintiff’s
Complaint very liberally, it is extremely difficult to
comprehend. The facts below are those that the Court could make
out from Plaintiff’s Amended Complaint, and are accepted as true
for the purposes of this review. Beyond these facts, Plaintiff
makes sweeping allegations about her rights being violated
without specifying in what way or by whom.
Plaintiff alleges that on March 13, 2016, while in line at
the Walmart store located at 1840 Black Horse Pike,
Williamstown, New Jersey, a Walmart employee and another Walmart
customer behaved inappropriately, in a “racist like” manner
towards her, leading to a verbal altercation. (Am. Compl. at 7,
¶ 1). As a result of this altercation, a Walmart employee called
the police. (Id. at 7, ¶ 2). Monroe Township Police Officer Roy

Pierson was dispatched to the store and, ultimately, Plaintiff
was asked to leave. 6 (Id. at 7, ¶ 2-3).
On her way out of the store, Plaintiff alleges, she
realized she had forgotten the bag containing the items she
purchased. (Id. at 8, ¶ 1). Plaintiff claims that upon realizing
this, she turned back toward the registers, at which time
Officer Pierson “made a hand gesture” and “acted like . . . [he]
was going to grab” her. (Id.) Because of “psychological damage”
and a fear of police, Plaintiff responded to this gesture by
asking Officer Pierson — in profane language — not to touch her.
(Id. at 8, ¶ 2). At that point, Plaintiff alleges that Officer
Pierson “went crazy . . . attacking” her, including bodyslamming her to the ground head first, which caused Plaintiff to
lose two of her teeth. (Id. at 8, ¶ 3). Officer Pierson then
arrested Plaintiff.
After her arrest, Plaintiff alleges that several of the
Defendants participated in a vague conspiracy against her. (Id.
at 9, ¶ 2). She alleges, without any factual support, that the
Monroe Township Police Department filed malicious and frivolous
criminal complaints against her (Id.); Municipal Prosecutor
Fiore maliciously prosecuted her (Id.); and that Municipal Court

6

The Court notes that although accusations about Officer Pierson
pervade Plaintiff’s Complaint, he is not named as a defendant in
the case and does not appear to have been served.

Judge Lacovara improperly denied motions she filed, refused to
dismiss the criminal case against her, and threatened her with
contempt of court (Id. at 9, ¶ 3). It is unclear from the
Amended Complaint what Mayor Daniel Teefy, Chief John McKeown,
or the Internal Affairs Unit of the Monroe Township Police
Department are accused of doing.
II.

Procedural Background

Plaintiff commenced this action on October 24, 2016,
alleging violations of the First, Fourth, and Fourteenth
Amendments of the United States Constitution, along with several
New Jersey statutory violations and false imprisonment and false
arrest claims against the city of Williamstown, New Jersey; its
Mayor Daniel Teefy; Monroe Township Municipal Court Judge
Nicholas Lacovara; Municipal Prosecutor Charles Fiore; Marcella
Carter, Administrative Assistant to the Chief of Police; the
Monroe Township Police Department; and its Internal Affairs
Unit. [Dkt. No. 1]. On December 19, 2016, Defendants moved to
dismiss Plaintiff’s Complaint [Dkt. No. 7]. On December 30,
2016, Plaintiff sought leave to amend her Complaint [Dkt. No.
10], which this Court granted [Dkt. No. 12], and Plaintiff filed
an Amended Complaint on February 15, 2017 [Dkt. No. 13].
Plaintiff’s Amended Complaint contained only one change, adding
Chief John McKeown as a defendant in place of Marcella Carter.

On March 1, 2017, Defendants again moved to dismiss each of
Plaintiff’s claims pursuant to Fed. R. Civ. P. 12(b)(6) [Dkt.
No. 15]. Plaintiff filed a letter in response to Defendants’
Motion on March 13, 2017 [Dkt. No. 19]. Defendant also filed
letters with the Court on March 20, 2017 [Dkt. No. 21, 22],
April 12, 2017 [Dkt. No. 23], and May 3, 2017 [Dkt. No. 24]
reiterating her incomprehensible arguments.
III. Legal Standards
A. Fed. R. Civ. P. 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’” in order to withstand a motion to dismiss under
Federal Rule of Civil Procedure 12(b)(6). Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007)). Claims are facially plausible “when
the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for
the misconduct alleged,” and “an unadorned, the-defendantunlawfully harmed-me accusation” will not survive a motion to
dismiss. Id. at 663, 678. “[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 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).

The district court “must 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” when reviewing a
plaintiff's allegations. Bistrian v. Levi, 696 F.3d 352 n. 1 (3d
Cir. 2012). 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 County
Intermediate Unit v. Pennsylvania Blue Shield, 896 F.2d 808, 812
(3d Cir. 1990)).
B. Fed. R. Civ. P. 8
Fed. R. Civ. P. 8(a) requires that the Complaint contain:
“(1) a short and plain statement of the grounds upon which the
court's jurisdiction depends, unless the court already has
jurisdiction and the claim needs no grounds of jurisdiction to
support it, (2) a short and plain statement of the claim showing
that the pleader is entitled to relief, and (3) a demand for
judgment for the relief the pleader seeks.”
While Plaintiff lists a number of statutes under which she
seeks redress, the factual averments in the Complaint are for
the most part so confusing and unintelligible that this Court is
left speculating as to how Defendants allegedly violated those

statutes. 7 It appears that Plaintiff is disappointed with the
legal process she received, and she has brought claims against
anyone involved in that process. Plaintiff has named a mayor, a
police chief, an internal affairs unit, a prosecutor, and a
judge as defendants in this case. As far as the Court can
discern, however, Plaintiff seeks to bring suit against each of
the Defendants for the performance of their duties – except in
the case of the mayor and the police chief, who it appears she
wishes to hold responsible for the acts of others. To the extent
Plaintiff’s Complaint can be construed as alleging anything, the
Court will analyze it under 42 U.S.C. § 1983.
IV.

Section 1983 Analysis

A plaintiff may have a cause of action under 42 U.S.C. §
1983 (“Section 1983”) for certain violations of constitutional
rights. Section 1983 provides in relevant part:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
or Territory . . . 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, shall be liable
to the party injured in an action at law, suit in
equity, or other proper proceeding for redress . . . .
(emphasis added).

7

The only allegations of wrongdoing made by Plaintiff appear to
concern a Walmart employee and a Monroe Township police officer
who are not parties to this case.

Thus, to state a claim for relief under § 1983, a plaintiff
must, at a minimum, allege the violation of a right secured by
the Constitution or laws of the United States and that the
alleged deprivation was committed or caused by a person acting
under color of state law. West v. Atkins, 487 U.S. 42, 48
(1988); Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).
Plaintiff has not done this. She broadly alleges that her rights
have been violated, but does not specify by whom or in what way.
As such, her Complaint will be dismissed. The Court will,
however, permit Plaintiff one further opportunity to amend her
Complaint.
The Court notes that to the extent Plaintiff seeks to
allege violations of Section 1983, she should be mindful that
both judges and prosecutors are generally immune from suit for
money damages under Section 1983 for acts within the scope of
their judicial and prosecutorial roles. See Gallas v. Supreme
Court of Pa., 211 F.3d 760, 768 (3d Cir. 2000)(“[J]udges are
immune from suit under section 1983 for monetary damages arising
from their judicial acts”); see also Yarris v. Cnty. of Del.,
465 F.3d 129, 135 (3d Cir.2006) (“[T]he Supreme Court has held
that state prosecutors are absolutely immune from liability
under § 1983 for actions performed in a quasi-judicial role.”)
(citation omitted). Further, Mayor Teefy may be entitled to
immunity if Plaintiff’s allegations concern “legislative

activities.” See generally Bogan v. Scott–Harris, 523 U.S. 44
(1998); see also Youngblood v. DeWeese, 352 F.3d 836, 839–840
(3d Cir. 2003)(discussing the scope of what constitutes
“legislative activities”). Finally, the Court notes that
vicarious liability is “inapplicable to” Section 1983 suits, and
that to the extent Plaintiff seeks to bring suit against Mayor
Teefy or Chief McKeown, it must be for their own actions, and
not the acts of others. See Iqbal, 556 U.S. at 676, Baraka v.
McGreevey, 481 F.3d 187, 210 (3d Cir. 2007)(“A defendant in a
civil rights action must have personal involvement in the
alleged wrongs to be liable, and cannot be held responsible for
a constitutional violation which he or she neither participated
in nor approved.”); see also Rode v. Dellarciprete, 845 F.2d
1195, 1207 (3d Cir. 1988)(“Personal involvement can be shown
through allegations of personal direction or of actual knowledge
and acquiescence.”).
An accompanying Order will issue on this date.

s/ Renee Marie Bumb
RENÉE MARIE BUMB
United States District Judge

DATED: September 20, 2017