HARVEY v. GZPLINSKI et al

Filing 3

OPINION. Signed by Judge Renee Marie Bumb on 12/22/16. (jbk, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
_____
:
WARDELL HARVEY,
:
:
Civ. No. 16-8181 (RMB)
Plaintiff,
:
:
v.
:
OPINION
:
NORTHFIELD PD OFFICER
:
PETE CZPLINSKI #643 et al.,
:
:
Defendants.
:
:
BUMB, District Judge
Plaintiff Wardell Harvey filed this civil rights action on
November 2, 2016, along with an application to proceed in forma
pauperis (“IFP.”) (Compl., ECF No. 1; IFP app., ECF No. 1-2.)1

1

Plaintiff also filed a Notice of Motion, purportedly to be held
before Chief Judge Jerome B. Simandle on December 19, 2016,
requesting an order for “Punitive and Monitory” [sic] relief.
(ECF No. 1-2.) Plaintiff served the motion on defendants.
(Letter, ECF No. 2.) Counsel for defendants responded to the
motion and opposed relief. (Id.) The Court will strike the
motion as improvidently filed. At the time the motion was filed,
Plaintiff had not been granted permission to proceed in forma
pauperis, and his complaint had not been screened for dismissal,
as required by 28 U.S.C. § 1915. See Local Civil Rule 5.1(f)
(“[a]ny papers received by the Clerk without payment of such
fees as may be fixed by statute or by the Judicial Conference of
the United States for the filing thereof shall be marked
"received"); 28 U.S.C. § 1915(a)(1) (“any court of the United
States may authorize the commencement . . . of any suit. . .
without prepayment of fees or security therefor . . .” (emphasis
added). In any event, a plaintiff may not seek money damages on
1

Plaintiff’s IFP application is properly completed pursuant to 28
U.S.C. § 1915, and establishes his financial inability to prepay
the $400.00 filing fee. The IFP application will be granted.
Therefore, the Court will review the Complaint as required by 28
U.S.C. § 1915(e)(2)(B).
I.

STANDARD OF REVIEW
Under

screen
forma

28

U.S.C.

complaints
pauperis,

malicious,

fails

§

1915(e)(2)(B),

filed

and
to

by

plaintiffs

dismiss

any

state

claim

a

district
who

claim

are

that

upon

must

proceeding

in

frivolous

is

which

courts

or

relief

may

be

granted, or seeks monetary relief from a defendant who is immune
from such relief.
A complaint must contain a “short and plain statement of
the claim showing that the pleader is entitled to relief.” Fed.
R. Civ. P. 8(a)(2). 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

reasonable

content

inference

that

that

allows

the

the

defendant

court
is

to

liable

draw

the

for

the

misconduct alleged.” Id. (quoting Twombly, 550 U.S. at 556.)

his claims by filing
judgment in his favor.

a

motion,
2

without

first

obtaining

a

“While

legal

conclusions

can

provide

the

framework

of

a

complaint, they must be supported by factual allegations.” Id.
at 679.
Courts must liberally construe pleadings filed by pro se
litigants. Erickson v. Pardus, 551 U.S. 89, 94 (2007). If a
complaint can be remedied by an amendment, a district court may
not dismiss the complaint with prejudice, but must permit the
amendment. Grayson v. Mayview State Hospital, 293 F.3d 103, 108
(3d Cir. 2002).
II.

BACKGROUND
The Complaint arises out of Plaintiff’s arrest on or about

November 2, 2014. (Compl., ECF No. 1 at 4.) Plaintiff asserts
jurisdiction under 42 U.S.C. § 1983. (Id. at 2.)
For purposes of screening the Complaint under 28 U.S.C. §
1915, the Court accepts as true the following facts alleged by
Plaintiff. On November 1, 2015, around 11:44 p.m., Plaintiff was
driving and noticed he was being followed by police officers who
had harassed him in the past.

(ECF No. 1 at 4.) Plaintiff tried

to “make it to a lit and secured area[] with cameras (Walmart).”
(ECF No. 1 at 4.) The police stopped Plaintiff before he made it
to the Walmart lot. (Id.) Plaintiff stopped his car and exited,
holding his hands in the air in surrender. (Id.) Plaintiff,
while a gun was pointed at him, was handcuffed and beaten by
Officers

Gary

Johnson,

Jon

D’Augustine
3

and

Sergeant

Charles

Super.

(Id.)

These

officers

falsely

charged

Plaintiff

with

“assault and drugs.” (Id.) Plaintiff suffered multiple facial
fractures and required reconstructive surgery. (Id. at 5.) For
relief,

Plaintiff

seeks

money

damages

and

a

court

order

terminating Officers Gary Johnson, Jon D’Augustine and Sergeant
Charles Super from their jobs. (Id.)
Plaintiff

has

also

named

the

following

officers

as

defendants, although nowhere in his Complaint does he allege
what

these

Czplinski,

defendants
Northfield

did

PD

to

Officer

violate
#643;

his

rights:

Christopher

Ruef,

Pete
Egg

Harbor Twp. PD #1594; Officer Benjamin Kollman #15191; and Det.
S. Hiltner #15154. (ECF No. 1 at 2-3.)
III. DISCUSSION
A.

Section 1983 claims

A plaintiff may assert a cause of action under 42 U.S.C. §
1983 for violations of his 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 . . . .
42 U.S.C. § 1983.
4

To state a claim for relief under § 1983, a plaintiff must
allege the violation of a right secured by the Constitution or
laws

of

the

United

States,

and

that

the

constitutional

deprivation was caused by a person acting under color of state
law. West v. Atkins, 487 U.S. 42, 48 (1998); Malleus v. George,
641 F.3d 560, 563 (3d Cir. 2011). “ʽBecause vicarious liability
is inapplicable to Bivens and § 1983 suits, a plaintiff must
plead

that

Government-official

own

official's

each

individual

defendant,

actions,

has

through
violated

the
the

Constitution.’” Bistrian v. Levi, 696 F.3d 352, 366 (3d Cir.
2012) (quoting Iqbal, 556 U.S. at 676)).
1.

Pete
Czplinski,
Christopher
Kollman, and S. Hiltner

Ruef,

Benjamin

To state a § 1983 claim, a plaintiff must allege the nature
of

the

unconstitutional

conduct,

and

the

time,

place,

and

persons responsible. Evancho v. Fisher, 423 F.3d 347, 353 (3d
Cir. 2005) (citing Boykins v. Ambridge Area Sch. Dist., 621 F.2d
75, 80 (3d Cir. 1980); Hall v. Pennsylvania State Police, 570
F.2d 86, 89 (3d Cir. 1978)). Plaintiff named the above officers
as defendants but he did not allege what they did to violate his
constitutional rights. The Complaint contains allegations that
Officers

Johnson,

D’Augustine

and

Sergeant

Super

falsely

arrested Plaintiff and beat him while he was handcuffed, but the
complaint does not in any way disclose how Czplinski, Ruef,

5

Kollman and Hiltner were involved.
dismiss

the

§

1983

claims

Therefore, the Court will

against

these

defendants

without

prejudice.

2.
“A

Excessive Force

cause

of

actions

exists

under

§

1983

when

a

law

enforcement officer uses force so excessive that it violates”
the Fourth Amendment’s protection from unreasonable search and
seizure. Groman v. Township of Manalapan, 47 F.3d 682, 683-84
(3d Cir. 1995).

When a police officer uses force to effectuate

an arrest, that force must be reasonable. Id. at 634 (citing
Graham v. Connor, 490 U.S. 386, 396 (1989)). The reasonableness
of the force used is measured by “careful attention to the facts
and

circumstances

of

each

particular

case,

including

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.” Id.
Here, Plaintiff alleges he was handcuffed and a gun was
pointed

at

D’Augustine
allegations

him

while

and
as

true

he

Sergeant
for

was

beaten

Super.

purposes

6

of

by

Officers

Accepting
screening

Johnson,

Plaintiff’s
the

Complaint

pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court will allow
these claims to proceed.
3.

False Arrest

“The proper inquiry in a section 1983 claim based on false
arrest ... is not whether the person arrested in fact committed
the

offense

but

whether

the

arresting

officers

had

probable

cause to believe the person arrested had committed the offense.”
Groman, 47 F.3d at 634-35 (quoting Dowling v. City of Phila.,
855 F.2d 136, 141 (3d Cir. 1988)). “[P]robable cause is defined
in terms and circumstances sufficient to warrant a prudent man
in believing that the suspect had committed or was committing a
crime.” Merkle v. Upper Dublin School Dist., 211 F.3d 782, 789
(3d Cir. 2000) (citing Sharrar v. Felsing, 128 F.3d 810, 817-18
(3d Cir. 1997)).
Plaintiff

alleges,

in

a

conclusory

manner,

that

he

was

falsely arrested for assault and “drugs” by Officers Johnson,
D’Augustine and Sergeant Super. In order to state a claim for
relief, Plaintiff must explain why he believed the defendants
lacked probable cause to arrest him. Therefore, the Court will
dismiss the false arrest claims without prejudice.
IV.

CONCLUSION
The Court will grant Plaintiff’s IFP application. Pursuant

to 28 U.S.C. § 1915(e)(2)(B)(ii), the Court will dismiss without
prejudice

Plaintiff’s

§

1983

claims
7

against

Pete

Czplinski,

Christopher Ruef, Benjamin Kollman, and S. Hiltner. The Court
will also dismiss without prejudice Plaintiff’s § 1983 false
arrest claims against Gary Johnson, Jon D’Augustine and Charles
Super.

The

Court

will

strike

Plaintiff’s

notice

of

motion.

Finally, Plaintiff’s § 1983 claims for excessive force against
Gary Johnson, Jon D’Augustine and Charles Super may proceed.

An appropriate order follows.
Date: December 22, 2016
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge

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