WHITE et al v. CITY OF VINELAND et al
Filing
43
OPINION. Signed by Judge Noel L. Hillman on 9/24/2018. (dmr)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
PAMELA WHITE, as
administratix ad prosequendem
of the estate of Phillip
George White, deceased,
IYONNA HANNAH, and T.H., a
minor, by and through his
guardian, Tamyra Downing,
Plaintiffs,
CIVIL NO. 16-8308 (NLH/KMW)
OPINION
v.
CITY OF VINELAND, VINELAND
POLICE CHIEF TIMOTHY
CODISPOTI, LOUIS PLATANIA,
RICHARD JANSIAK, AND, JOHN
DOES 1 THROUGH 10,
individually and/or in their
official capacities, jointly,
severally, and/or in the
alternative,
Defendants.
APPEARANCES:
SHARON A. KING
STANLEY O. KING
KING & KING, LLC
231 S. BROAD STREET
WOODBURY, NJ 08096
On behalf of Plaintiffs
TODD J. GELFAND
BARKER, GELFAND & JAMES
LINWOOD GREENE - SUITE 12
210 NEW ROAD
LINWOOD, NJ 08221
On behalf of Defendants City of Vineland, Timothy
Codispoti, and Louis Platania
HILLMAN, District Judge
This case concerns alleged violations of 42 U.S.C. § 1981,
42 U.S.C. § 1983, the New Jersey Civil Rights Act (“NJCRA”), the
New Jersey Law Against Discrimination (“NJLAD”), and various New
Jersey state common law tort claims.
Presently before the Court
is Defendants’ 1 Motion for Judgment on the Pleadings and
Plaintiffs’ opposition.
For the reasons expressed below,
Defendants’ motion will be granted with leave to replead certain
claims.
BACKGROUND
We take our brief recitation of the facts from Plaintiff’s
initial complaint.
Phillip George White visited a friend’s home
on West Grape Street in Vineland on March 31, 2015.
While
speaking with his friend, White raised his voice, causing a
neighbor to call the police and report a disturbance.
Shortly
thereafter White lowered his voice, apologized to his friend,
and walked over to the home’s chain link fence.
Defendant Louis
Platania, a police officer with the Vineland Police Department
(the “Police Department”) responded to the call and was the
1
All references to “Defendants” in this opinion only apply to
the City of Vineland, Timothy Codispoti, and Louis Platania.
Defendant Richard Janasiak filed a Suggestion of Bankruptcy on
June 4, 2018 and has been administratively terminated from this
matter pending the outcome of the bankruptcy action. He has
filed no argument relating to the Motion to Dismiss currently
under consideration.
2
first to arrive at the scene.
Officer Platania found White leaning against the fence
outside his friend’s home.
Officer Platania stated that he was
responding to a report of a disturbance, and White’s friend
responded that there was no disturbance.
Officer Platania
approached White and asked if he was “okay.”
White responded
that he was “okay” and started to walk away from Officer
Platania.
Plaintiffs allege that Officer Platania “had a
history of harassing White and other African-American men in
Vineland” including detention, searches, and interrogation
without cause.
In response to White walking away, Officer Platania grabbed
him and slammed him onto two cars before forcing him to the
ground.
White was motionless and appeared to have been rendered
unconscious.
Officer Platania continued to strike White while
he was on the ground, repeatedly ordering that he turn over.
An
unidentified bystander told Officer Platania that White was
“knocked out” and that he should “get off” of White, but Officer
Platania ignored the bystander.
At some point, Defendant Richard Janasiak, another officer
with the Police Department, arrived at the scene with a police
dog.
While Officer Platania held White on the ground and
instructed the police dog to “get him,” Officer Janasiak
released the police dog onto White.
3
Officer Platania continued
to instruct the police dog to “hold” even as a bystander told
the officers that White was unconscious and motionless.
Shortly
thereafter, Plaintiffs allege that Officer Platania shouted into
his police radio “let go of my gun” even though White never
reached for Officer Platania’s gun.
Officer Janasiak is also
alleged to have twisted White’s ankle during this time.
After the incident, Defendant John Doe 1 — another Vineland
police officer at the scene — took an unidentified bystander’s
phone after the bystander stated that he had recorded the entire
incident on his phone.
White was taken to Inspira Medical
Center in Vineland and was pronounced dead in the emergency
room.
Following this incident, Plaintiffs allege that the Latino
Leadership Alliance of New Jersey conducted an investigation
“into use of force practices by members of the Vineland Police
Department.”
In 2014, this investigation found that 37.4% of
persons subjected to force by Vineland police officers were
African-American, even though they represent only 14.1% of the
population.
In the first quarter of 2015, which would include
the date that this incident occurred, the percentage had
increased to approximately 40%.
Plaintiffs allege that these
statistics support their contention that Timothy Codispoti
(“Chief Codispoti”), Chief of the Police Department, and the
City of Vineland (“Vineland”) “were aware of and condoned their
4
officers’ discriminatory conduct against the African American
segment of the Vineland community.”
Additionally, Plaintiffs allege that it was the policy and
custom of Chief Codispoti and Vineland to condone the alleged
misconduct contained in civilian complaints.
In support,
Plaintiffs allege that of the 190 civilian complaints of
excessive force filed between 2009 and 2014, only 185 were
investigated and none were sustained.
Plaintiffs also allege
that of the 24 civilian complaints of improper arrest filed
between 2009 and 2014 only 22 were investigated and none were
sustained.
The necessary implication, Plaintiffs assert is that
Vineland “[o]fficers engaging in misconduct were therefore not
disciplined nor provided with appropriate in-service training or
retraining.”
Plaintiffs, Pamela White, White’s mother and the
administratrix of his estate, Iyonna Hannah, White’s adult
daughter, and T.H., White’s minor son, filed their complaint on
November 7, 2016.
Defendants filed their Answer on February 10,
2017 and their Motion to Dismiss, under Federal Rule of Civil
Procedure 12(c) on February 12, 2018.
Plaintiffs filed their
opposition on March 26, 2018.
DISCUSSION
A.
Subject Matter Jurisdiction
This Court has jurisdiction over Plaintiff’s federal claims
5
under 28 U.S.C. § 1331, and supplemental jurisdiction over
Plaintiff’s state law claims pursuant to 28 U.S.C. § 1367.
B.
Standard for Motion for Judgment on the Pleadings
A Rule 12(c) motion for judgment on the pleadings may be
filed after the pleadings are closed.
FED. R. CIV. P. 12(c);
Turbe v. Gov’t of V.I., 938 F.2d 427, 428 (3d Cir. 1991).
In
analyzing a Rule 12(c) motion, a court applies the same legal
standards as applicable to a motion filed pursuant to Rule
12(b)(6).
Turbe, 938 F.2d at 428.
Thus, a court must accept
all well-pleaded allegations in the complaint as true and view
them in the light most favorable to the plaintiff.
Evancho v.
Fisher, 423 F.3d 347, 351 (3d Cir. 2005).
A district court, in weighing a motion to dismiss, asks
“not whether a plaintiff will ultimately prevail but whether the
claimant is entitled to offer evidence to support the claim[].”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 583 (2007) (quoting
Scheuer v. Rhodes, 416 U.S. 232, 236(1974)); see also Phillips
v. Cty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (stating
the “Supreme Court’s Twombly formulation of the pleading
standard can be summed up thus: ‘stating . . . a claim requires
a complaint with enough factual matter (taken as true) to
suggest’ the required element.
This ‘does not impose a
probability requirement at the pleading stage,’ but instead
‘simply calls for enough facts to raise a reasonable expectation
6
that discovery will reveal evidence of’ the necessary element”).
A court need not credit either “bald assertions” or “legal
conclusions” in a complaint when deciding a motion to dismiss.
In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 142930 (3d Cir. 1997).
The defendant bears the burden of showing
that no claim has been presented.
Hedges v. United States, 404
F.3d 744, 750 (3d Cir. 2005) (citing Kehr Packages, Inc. v.
Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991)).
In addition, “on a motion for judgment on the pleadings,” a
court “reviews not only the complaint but also the answer and
any written instruments and exhibits attached to the pleadings.”
Perelman v. Perelman, 919 F. Supp. 2d 512, 520 n.2 (E.D. Pa.
2013).
C. Facts Outside of Complaint Referenced in Plaintiffs’
Response to Defendants’ Motion to Dismiss
In responding to Defendants’ Motion to Dismiss, Plaintiffs
reference discovery received after service of the complaint
concerning the disciplinary file of Officer Platania.
Allegedly, this file contains over 1,600 pages disclosing 47
complaints lodged against Platania between 2009 and 2015.
These
files were not attached to Plaintiffs’ brief, but are instead
referenced in an attached certification of Sharon A. King,
counsel for Plaintiffs (“King Certification”).
Although Rule 12(d) provides that a court should treat a
7
Rule 12(b)(6) or 12(c) motion as a motion for summary judgment
whenever matters outside the pleadings are considered, the Third
Circuit has clarified that “[m]erely attaching documents to a
Rule 12(c) motion . . . does not convert it to a motion under
Rule 56.”
CitiSteel USA, Inc. v. Gen. Elec. Co., 78 F. App’x.
832, 834-35 (3d Cir. 2003).
In ruling on a motion to dismiss, a
court has “‘discretion to address evidence outside the complaint
. . . .’” Id. at 835 (quoting Pryor v. Nat’l Collegiate Athletic
Ass’n, 288 F.3d 548, 559 (3d Cir. 2002)).
Thus, the court “‘may
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.’” Id. (quoting PBGC v. White
Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993)).
This Court declines to exercise its discretion to either
convert this Rule 12(c) motion into a Rule 56 motion for summary
judgment or to consider evidence outside of the complaint.
A
motion for summary judgment is not yet ripe, as both parties are
still vigorously pursuing discovery.
It would be imprudent, and
possibly prejudicial to the parties, to convert this motion
without either party briefing on this issue.
Moreover, this
Court may not consider the new allegations presented in the King
Certification as (1) no documents have been attached and (2)
there is no indication that the documents are “undisputedly
authentic.”
As a result, this Court will confine its analysis
8
to the allegations disclosed in the pleadings.
D. Section 1983 and NJCRA Claims Against Chief Codispoti in
his Official Capacity
Defendants argue that claims under 42 U.S.C. § 1983 and the
NJCRA brought against Chief Codispoti in his official capacity
are duplicative of Plaintiffs’ claims against the City of
Vineland and should be dismissed on those grounds.
Plaintiffs
do not present any argument in opposition in their brief.
In
fact, Plaintiffs state in the King Certification that they
“agree that their § 1983 and NJCRA claims brought against Chief
Codispoti in his official capacity are duplicative of claims
against the City of Vineland, and should therefore be dismissed
as to Chief Codispoti.”
The official capacity claims under 42 U.S.C. § 1983, will
be dismissed as a matter of law.
Kentucky v. Graham instructs:
“[a]s long as the government entity receives notice and an
opportunity to respond, an official-capacity suit is, in all
respects other than name, to be treated as a suit against the
entity.”
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.
As a result, summary judgment was properly granted in favor of
the County and Warden Guarini in his official capacity.”);
Estate of Bard v. City of Vineland, No. 17-01452, 2017 U.S.
9
Dist. LEXIS 172843, at *12 n.3 (D.N.J. Oct. 19, 2017)
(dismissing official capacity claims also lodged against
municipality “as redundant”).
Similarly, the NJCRA official
capacity claims asserted against Chief Codispoti will also be
dismissed.
See, e.g., Janowski v. City of N. Wildwood, 259 F.
Supp. 3d 113, 132 (D.N.J. 2017) (dismissing NJCRA claims against
police chief as “duplicative of municipal liability claims”).
As a result, the NJCRA and 42 U.S.C. § 1983 claims against
Chief Codispoti will be dismissed, with prejudice, 2 by this Court
as duplicative of claims against Vineland.
E. Tort Claims against Defendants
Defendants argue that all tort claims brought against them
be dismissed because of Plaintiffs’ failure to comply with the
notice requirements of the NJTCA.
Plaintiffs do not present any
argument in opposition in their brief.
2
Plaintiffs admit in the
As this Court has held previously, official capacity claims
where the entity is also subject to the same claims “must be
dismissed as redundant and should not be re-pleaded.” Estate of
Bard, 2017 U.S. Dist. LEXIS 172843, at *12 n.3. The same
reasoning applies for the NJCRA claims asserted against Chief
Codispoti. See, e.g., Janowski, 259 F. Supp. 3d at 132
(dismissing NJCRA claims, with prejudice, asserted against a
police chief—in his official capacity—and a municipality).
Although amendment is usually allowed in a civil rights case, it
will not be given where amendment is futile. See DelRio-Mocci
v. Connolly Props., 672 F.3d 241, 251 (3d Cir. 2012) (“Although
a district court is authorized to grant a plaintiff leave to
amend a complaint when justice so requires, it is not compelled
to do so when amendment would be futile.” (citing Shane v.
Fauver, 213 F.3d 113, 115 (3d Cir. 2000)).
10
King Certification that they have no record of notices being
served upon Defendants and that they “consent to the dismissal
of their [tort] claims, the Ninth through Twelfth Causes of
Action.”
Defendants are correct that, absent extraordinary
circumstances and a showing that the public employees and
entities have not been prejudiced, notice of claim must be filed
within ninety days of the accrual of the claim or else the
claimant will be “‘forever barred’ from asserting that cause of
action.”
See Cty. Concrete Corp. v. Town of Roxbury, 442 F.3d
159, 174 (3d Cir. 2006) (citing N.J. STAT. ANN. § 59:8-3, 59:8-8);
McDade v. Siazon, 32 A.3d 1122, 1125 (N.J. 2011) (citing N.J.
STAT. ANN. § 59:8-9) (requiring a showing of extraordinary
circumstances in order for a claimant to successfully file a
late tort claims notice).
Accordingly, the tort claims
contained in counts nine through twelve will be dismissed
against Defendants, with prejudice. 3
F. Supervisory Liability Claims against Chief Codispoti
under Section 1983 and the NJCRA 4
3
Again, considering the fact that Plaintiffs have admitted they
have no record of notice of claim being filed and do not argue
that this case presents exceptional circumstances, amendment
will not be allowed on these claims as it would be futile.
4
Considering that “federal and New Jersey law governing . . .
alleged constitutional violations are substantially similar”
this Court will analyze both under the federal standard.
Middleton v. City of Ocean City, No. 12-0605 (RBK/JS), 2014 U.S.
11
Defendants argue that personal capacity claims against
Chief Codispoti under the NJCRA and 42 U.S.C. § 1983 must be
dismissed.
Defendants argue that Plaintiffs have not alleged
facts showing the personal involvement of Chief Codispoti in any
of the alleged violations, but have merely made conclusory
allegations.
Plaintiffs counter by pointing out that their allegations
are not conclusory, but based upon statistics.
Plaintiffs
allege that statistics show 214 civilian complaints concerning
either excessive force or improper arrest were either not
investigated or ruled “not sustained,” “unfounded,” or
“administratively closed.”
Plaintiffs argue that this shows
knowledge of misconduct by Chief Codispoti and a custom of
“tolerat[ing]” and “condon[ing]” this behavior by his officers. 5
In relevant part, Plaintiffs allege:
61. Defendants Chief Codispoti and the City of
Vineland, have repeatedly and knowingly failed to
enforce the laws of the United States, the State of
New Jersey and the regulations of the City of Vineland
pertaining to the use of force and lawful arrests,
thereby creating within the City of Vineland an
the King Certification, agree that the NJCRA and 42 U.S.C. §
Dist. LEXIS 88368, at *18 n.4 (D.N.J. June 30, 2014). See, e.g.,
Hedges v. Musco, 204 F.3d 109, 121 (3d Cir. 2000). Plaintiffs,
per 1983 claims are analyzed under the same standards.
5
As discussed supra, this Court has declined to exercise its
discretion to consider the complaints lodged against Officer
Platania, which were not contained in the complaint and were
first alleged in Plaintiffs opposition to Defendants’ Motion to
Dismiss.
12
atmosphere of lawlessness in which police officers
employ excessive and illegal force and violence, and
engage in illegal arrests and unlawful conspiracies,
and such acts are condoned and justified by their
superiors.
62. At the time of the incident described above,
Chief Codispoti and the City of Vineland had developed
and maintained policies or customs exhibiting
deliberate indifference to the constitutional rights
of person in the City of Vineland, which caused
White’s rights to be violated.
63. It was the policy and/or custom of the City
of Vineland and its police chief to inadequately and
improperly supervise and train its police officers and
to inadequately and improperly investigate citizen
complaints of police misconduct. Civilian complaints
were routinely dismissed and officers’ misconduct were
instead tolerated and condoned by the City of Vineland
and its police chief. For example, for six calendar
years preceding this event—2009 through 2014—there
were 190 civilian complaints of excessive force filed
against members of the Vineland Police Department. Of
these complaints,185 were investigated. None of the
investigated complaints resulted in a finding of
“sustained.” Rather . . . 100 percent of the
complaints resulted in the officer being exonerated or
a finding that the complaint was “not sustained” or
“unfounded[.]”
* * *
64. Similarly, for the same period of time—2009
through 2014—there were 24 civilian complaints of
improper arrest. Out of 22 complaints investigated,
not a single complaint was sustained. Rather . . .
100 percent of the complaints resulted in the officer
being exonerated or a finding that the complaint was
“not sustained,” “unfounded” or “administratively
closed[.]”
* * *
65. Officers engaging in misconduct were
therefore not disciplined nor provided with
appropriate in-service training or retraining.
Further constitutional violations on the part of its
police officers were therefore not discouraged, but
condoned. As a result of the policies and practices,
citizens were routinely subjected to police
13
misconduct, including false arrests, excessive use of
force and unlawful conspiracies to deprive citizens of
their constitutional rights.
Plaintiffs allege that these actions “were the proximate cause
of White’s injuries.”
As Plaintiffs acknowledge, there are two theories of
supervisory liability under which Chief Codispoti may be found
liable.
First, Chief Codispoti may be found liable if he
“established and maintained a policy, practice or custom which
directly caused [the] constitutional harm.”
Santiago v.
Warminster Twp., 629 F.3d 121, 127 n.5 (3d Cir. 2010).
Second,
Chief Codispoti “may be personally liable . . . if he . . .
participated in violating the plaintiff's rights, directed
others to violate them, or, as the person in charge, had
knowledge of and acquiesced in his subordinates’ violations.”
Id. at 127 (quoting A.M. ex rel. J.M.K. v. Luzerne Cty. Juvenile
Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004)).
There are no
facts in Plaintiffs’ complaint that indicate Chief Codispoti
personally participated in the events of March 31, 2015,
directed others to commit the acts alleged, or had knowledge of—
much less acquiesced in—the actions of his inferior officers on
March 31, 2015.
Thus, the second theory of supervisory
liability is factually unsupported and cannot carry Plaintiffs
past Defendants’ Motion to Dismiss on this claim.
That leaves only the first theory, whether Chief Codispoti
14
established a custom “which directly caused constitutional
harm.”
A custom is a “course of conduct . . . though not
authorized by law” that is “‘so permanent and well settled’ as
to virtually constitute law.”
Andrews v. City of Philadelphia,
895 F.2d 1469, 1480 (3d Cir. 1980) (quoting Monell v. Dep’t of
Soc. Servs., 436 U.S. 658, 691 (1978)).
Liability may be
imposed against a municipality under Monell “when the policy or
custom itself violates the Constitution or when the policy or
custom, while not unconstitutional itself, is the ‘moving force’
behind the constitutional tort of one of its employees.” Thomas
v. Cumberland Cty., 749 F.3d 217, 222 (3d Cir. 2014) (citations
omitted).
Where the custom, as here, concerns a failure to train or
supervise, “deliberate indifference” must be shown.
F.3d at 222.
Thomas, 749
“[D]eliberate 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 (3d Cir. 2011) (quoting Bd. of County
Com'rs of Bryan County, Okl. v. Brown, 520 U.S. 397, 405
(1997)).
One way of showing deliberate indifference is through
“[a] pattern of violations [that] puts municipal decisionmakers
on notice that a new [training] program is necessary.”
Id. at
224.
Here, Plaintiffs have only made conclusory allegations.
15
While Plaintiffs do cite statistics to show the amount and type
of civilian complaints filed between 2009 and 2014, they have
not alleged any impropriety — supported by factual assertions —
on the part of Chief Codispoti.
First, Plaintiffs do not allege that the manner in which
Chief Codispoti handled these complaints was unconstitutional.
In other words, Plaintiffs do not allege that the alleged custom
concerning civilian complaints was unconstitutional.
Since
Plaintiffs do not assert that this was an unconstitutional
custom, 6 these allegations are insufficient to survive
Defendants’ Motion to Dismiss.
Plaintiffs also argue that, even if the custom itself was
not unconstitutional it was the “moving force” behind
unconstitutional action taken by Officer Platania, Officer
Janasiak, and the John Doe officers.
This presents a closer
case, but because these allegations are factually unsupported,
this claim against Chief Codispoti in his personal capacity must
also be dismissed.
Plaintiffs allege that complaints were “inadequately and
improperly” investigated and “routinely dismissed,” thereby
“creating within Vineland an atmosphere of lawlessness.”
6
But,
This Court offers no opinion on whether or not this could be an
unconstitutional policy or custom, just that Plaintiffs have not
pleaded that this was an unconstitutional custom.
16
the statistics do not illuminate whether constitutional
violations were perpetrated by members of the Police Department
and then swept under the rug via an inadequate investigative
process.
As pleaded, instead, these statistics could indicate
that the Police Department took these complaints seriously,
investigated them rigorously, and found its officers performed
adequately.
This ambiguity points to an underlying problem: no
facts are pleaded to show that Chief Codispoti was on notice of
constitutional violations by his inferior officers and
subsequently failed to take action.
In other words, Plaintiffs
have not pleaded that the civilian complaints are actually
evidence of constitutional violations committed by Police
Department officers.
Finally, the case cited by Plaintiffs, Beck v. City of
Pittsburgh, 89 F.3d 966 (3d Cir. 1996), does not apply to the
allegations as pleaded in the complaint.
Unlike Beck,
Plaintiffs do not allege (1) any civilian complaints lodged
against the officers involved in the alleged constitutional
violations, 7 (2) that the Police Department “has no formal system
in place for tracking complaints against its officers,” or (3)
that “the citizen complaints were not isolated incidents.”
7
Id.
This Court has exercised its discretion to not consider the
complaints concerning Officer Platania, which were not included
in Plaintiff’s complaint.
17
at 975.
Specifically, as Plaintiffs recognize, the Beck court
was most interested in the content, amount, and timing of
civilian complaints filed against the officer who supposedly
committed the constitutional violation.
Id. at 969-70
(discussing the civilian complaints filed against Officer
Williams previous to his alleged use of excessive force against
plaintiff, Robert Beck).
Plaintiffs complaint pleads nothing to
show that any of the officers allegedly involved in the incident
were subject to complaints or disciplinary proceedings.
Thus, this Court will dismiss the NJCRA and 42 U.S.C. §
1983 claims asserted against Chief Codispoti in his personal
capacity without prejudice to the filing of an amended complaint
curing the defects found by the Court within 30 days.
G. NJLAD Claims against Chief Codispoti
Defendants also argue that the NJLAD claims asserted
against Chief Codispoti should be dismissed.
Their main
argument is that the complaint “alleges only conclusory
allegations and no facts regarding any affirmative action taken
by Chief Codispoti.”
Defendants maintain that the NJLAD
requires some sort of affirmative action on the part of Chief
Codispoti.
Plaintiffs counter that affirmative action is not required,
just that Chief Codispoti exhibited a “passive” form of aiding
and abetting which only requires deliberate indifference.
18
Plaintiffs also argue that statistical evidence, like that cited
in their complaint, is sufficient to show “discriminatory
purpose.” 8
The claim asserting a violation of the NJLAD is supported
by the following allegations from the complaint:
54. Chief Codispoti and the City of Vineland
were aware of and condoned their officers’
discriminatory conduct against the African American
segment of the Vineland community. Following White’s
death, the Latino Leadership Alliance of New Jersey
conducted an investigation into use of force practices
by members of [the] Vineland Police Department. In
this study, the organization reviewed more than 800
“Use of Force” reports prepared by Vineland police
officers from January 2013 to March 2015. The study
revealed that force was disproportionately used
against members of the African American and Latino
communities. In 2014, 195 persons were subject to use
of force by Vineland police officers. Although
African-Americans make up only 14.1 percent of the
City of Vineland’s population, 37.4 percent of the
persons subjected to force were African-Americans.
This number was increased to approximately forty
percent for the first quarter of 2015.
* * *
76. This cause of action arises under New Jersey
Law Against Discrimination, N.J.S.A. § 10:15-1 et seq.
Supplemental jurisdiction is established pursuant to
28 U.S.C. § 1367 as the claim forms part of the same
case and controversy as the claims brought under the
First through Sixth Causes of Action.
77. The conduct of Defendants Platania, Chief
Codispoti and the City of Vineland, as described
8
Plaintiffs also argue that Officer Platania’s complaint record
shows “that he engages in racial profiling” and that Chief
Codispoti has taken no action to protect the public from
Officer’s Platania’s actions even though he had an obligation to
do so. This Court cannot consider this argument as complaints
against Officer Platania were not included in Plaintiff’s
complaint.
19
above, constitute discrimination against White based
upon his race, in a place of public accommodation, in
violation of N.J.S.A[.] § 10:5-1, The conduct of
Defendants Platania, Chief Codispoti and the City of
Vineland, as described above, constitute
discrimination against White based upon his race, in a
place of public accommodation, in violation of
N.J.S.A[.] § 10:5-1, et seq.
78. As a result of the defendants’ conduct,
Plaintiffs are entitled to compensatory and punitive
damages as to all defendants, pursuant to New Jersey
Law against discrimination.
(emphasis in original).
As is apparent, this complaint contains only conclusory
allegations.
Conclusory statements that the conduct
“constitute[s] discrimination” and that the action was “based
upon [White’s] race” do not suffice to meet the requirements of
Federal Rule of Civil Procedure 8 as interpreted by
Twombly/Iqbal.
Moreover, there is not an allegation that Chief
Codispoti acted intentionally, recklessly, or even negligently
in his supervision of the officers involved in the incident in
relation to this claim.
Without an allegation of the requisite
culpability, which Plaintiffs acknowledge is at least
“deliberate indifference” if not “knowing and substantial
assistance,” this claim is deficient.
Finally, the statistics cited do not get Plaintiff past
this motion to dismiss.
The question is not whether African-
Americans are disproportionately subject to use of force, the
question is whether African-Americans are disproportionately
20
subject to excessive use of force.
While the statistics may
well show the former, they definitely do not show the latter, as
pleaded.
Legal conduct by Police Department officers cannot be
the basis for a NJLAD claim.
See, e.g., Brooks v. Codispoti,
No. 12-5884, 2015 U.S. Dist. LEXIS 172202 (Dec. 28, 2015)
(dismissing vicarious liability against Chief Codispoti under
NJLAD on summary judgment because no underlying NJLAD violation
had been shown).
This Court will dismiss the NJLAD claim
against Chief Codispoti without prejudice to the filing of an
amended complaint curing the defects found by the Court within
30 days.
H. Wrongful Death and Survivorship Claims against Chief
Codispoti
Defendants also insist that the wrongful death and
survivorship claims asserted against Chief Codispoti should be
dismissed because Plaintiffs have not alleged facts sufficient
to support his underlying liability.
Plaintiffs seem to concede
this point, arguing that these claims should not be dismissed
only if a substantive claim against Chief Codispoti under 42
U.S.C. § 1983, NJCRA, or NJLAD remains.
As discussed supra, all claims against Chief Codispoti in
his personal and official capacity have been dismissed.
Claims
of “survivorship” or “wrongful death” are “derivative” and
therefore must be dismissed when the underlying claims have been
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dismissed.
Abramson v. Ritz-Carlton Hotel Co. & Spa Resort, No.
09-3264, 2011 U.S.Dist. LEXIS 58469, at *18 (D.N.J. May 31,
2011), aff’d, 480 F. App’x 158 (3d Cir. 2012).
See also Harvey
v. Cty. of Hudson, No. 14-3670, 2015 U.S. Dist. LEXIS 159402, at
*34 (D.N.J. Nov. 24, 2015) (“To the extent that the other claims
have been dismissed as to [a defendant], then, the derivative
Wrongful Death Act and Survivor’s Act claims must be dismissed
as well.”); Durkin v. Paccar, Inc., No. 10-2013, 2010 U.S. Dist.
LEXIS 110999, at *4 (D.N.J. Oct. 19, 2010) (“[Plaintiff]’s
remaining claims under the Wrongful Death Act and Survival
Statute are dependent upon the viability of the products
liability
causes of action.”).
This Court will dismiss these
claims without prejudice to the filing of an amended complaint
curing the defects found by the Court within 30 days.
CONCLUSION
For the reasons set forth in this Opinion, this Court will
grant the Defendants motion to dismiss.
While the dismissal
will be without prejudice as to the claims against Chief
Codispoti in his personal capacity, including the wrongful death
and survivorship claims, it will be with prejudice to the claims
against Chief Codispoti in his official capacity and the tort
claims.
An appropriate Order will be entered.
Date: September 24, 2018
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
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