HARVEY v. GZPLINSKI et al
OPINION. Signed by Judge Renee Marie Bumb on 12/22/16. (jbk, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civ. No. 16-8181 (RMB)
NORTHFIELD PD OFFICER
PETE CZPLINSKI #643 et al.,
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
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
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).
STANDARD OF REVIEW
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
misconduct alleged.” Id. (quoting Twombly, 550 U.S. at 556.)
his claims by filing
judgment in his favor.
complaint, they must be supported by factual allegations.” Id.
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).
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
“assault and drugs.” (Id.) Plaintiff suffered multiple facial
fractures and required reconstructive surgery. (Id. at 5.) For
terminating Officers Gary Johnson, Jon D’Augustine and Sergeant
Charles Super from their jobs. (Id.)
defendants, although nowhere in his Complaint does he allege
Harbor Twp. PD #1594; Officer Benjamin Kollman #15191; and Det.
S. Hiltner #15154. (ECF No. 1 at 2-3.)
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.
To state a claim for relief under § 1983, a plaintiff must
allege the violation of a right secured by the Constitution or
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
Constitution.’” Bistrian v. Levi, 696 F.3d 352, 366 (3d Cir.
2012) (quoting Iqbal, 556 U.S. at 676)).
Kollman, and S. Hiltner
To state a § 1983 claim, a plaintiff must allege the nature
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
arrested Plaintiff and beat him while he was handcuffed, but the
complaint does not in any way disclose how Czplinski, Ruef,
Kollman and Hiltner were involved.
Therefore, the Court will
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
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
pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court will allow
these claims to proceed.
“The proper inquiry in a section 1983 claim based on false
arrest ... is not whether the person arrested in fact committed
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)).
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.
The Court will grant Plaintiff’s IFP application. Pursuant
to 28 U.S.C. § 1915(e)(2)(B)(ii), the Court will dismiss without
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
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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