DUFFY v. ABSECON POLICE DEPARTMENT et al.
Filing
47
OPINION. Signed by Judge Jerome B. Simandle on 7/12/2018. (dmr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
BRETT T. DUFFY,
HONORABLE JEROME B. SIMANDLE
Plaintiff,
Civil Action No.
17-1117 (JBS/AMD)
v.
THE ABSECON POLICE DEPARTMENT,
et al.,
OPINION
Defendants.
APPEARANCES:
Thomas B. Duffy, Esq.
739 Bayview Drive
Absecon, NJ 08201
Attorney for Plaintiff
Vanessa Elaine James, Esq.
A. Michael Barker, Esq.
BARKER, GELFAND, JAMES & SARVAS, P.C.
Linwood Greene
210 New Road, Suite 12
Linwood, NJ 08221
Attorneys for Absecon Defendants
Christopher Joseph Riggs, Deputy A.G.
State of New Jersey Office of the Attorney General
25 Market Street
P.O. Box 116
Trenton, NJ 08625
Attorney for State Defendants
SIMANDLE, District Judge:
INTRODUCTION
In this case, Plaintiff Brett Duffy (“Plaintiff”) asserts a
variety of statutory and constitutional claims against several
Defendants, apparently arising out of his arrest and prosecution
in 2014. This matter is presently before the Court on three
motions: a Motion to Dismiss [Docket Item 27] the Second Amended
Complaint [Docket Item 21 (“SAC”)] as against Defendants Judge
Julio Mendez, A.S.J.C., Judge Glenn Grant, J.A.D., Acting AOC
Administrative Director,1 Office of the Attorney General of New
Jersey, the New Jersey Administrative Office of the Courts, the
Office of the Prosecutor of Atlantic County, the State of New
Jersey, and Vicinage I of the Superior Court (collectively,
“State Defendants”); a Motion to Dismiss [Docket Item 28] the
SAC by Absecon Mayor John Armstrong, Absecon Officer Christopher
Cavileer, Former Absecon Chief of Police David Risley, Absecon
Police Department, and City of Absecon (collectively, “Absecon
Defendants”); and Plaintiff’s Motion to Amend/Correct the
“Federal Complaint, if necessary” [Docket Item 43]. Substantial
difficulty is presented in ascertaining which claims are
asserted as against which Defendants, and it is in part for this
reason that the Court will grant State Defendants’ and Absecon
1
Plaintiff includes both judges in the caption of the SAC, but
states, at ¶ 96 of the SAC: “Judges Julio Mendez, A.S.J.C. and
Glen Grant, J.A.D., Acting AOC Administrative Director, at the
moment, because the actions against these two judges are partly
moot and a Federal Court cannot address most, if not all, of the
issues because of ‘abstention,’ etc., the judges are being
released from this lawsuit. Since their conduct is continuous,
the action can be refiled in State Court anytime in the
foreseeable future.” [Docket Item 21 ¶ 96.]
2
Defendants’ Motions to Dismiss, in large part without prejudice
as detailed more fully herein. The Court will also deny
Plaintiff’s Motion to Amend/Correct without prejudice.
Several issues are presented. Defendants move to dismiss,
inter alia, on the grounds that Plaintiff’s SAC does not consist
of a short, plain statement of his causes of action and the
supporting factual grounds thereof in violation of Rule 8, Fed.
R. Civ. P.; that Plaintiff’s descriptions of his claims are
implausible and conclusory and thus fail to state a claim under
Rule 12(b)(6), Fed. R. Civ. P.; that Plaintiff’s claims are
barred by Heck v. Humphrey, 512 U.S. 477 (1994); that the SAC
fails to allege a prima facie claim of disability
discrimination; and that certain claims should be dismissed as
against certain defendants for a variety of other reasons.
The Court turns to the instant motions.
II.
BACKGROUND
A.
Factual Background2
On April 17, 2014,3 Plaintiff was arrested by officers of
the Absecon Police Department for possession of a pellet gun
2
All factual information is derived from the SAC and properly
supportive documentation thereto. For purposes of this motion,
the Court must accept Plaintiff’s allegations as true.
3
This date does not appear anywhere in the SAC proper. It first
appears in a supporting exhibit, namely, the superseding
indictment of Plaintiff, dated June 3, 2014. [Docket Item 21-1
at 55.]
3
after discharging the pellet gun in Absecon. At the time, he was
21 years old. [Docket Item 21-1 at 29.] While in custody,
Plaintiff alleges, he attempted suicide, was taken to the
hospital, taken from the hospital by police against medical
advice, and continually denied access to his lawyer (and
father), who is also his counsel in this case. Plaintiff also
claims his rights against self-incrimination (under Miranda) and
his right against unreasonable searches and seizures were
violated. Plaintiff further complains that these actions led to
a subsequent, avoidable, second suicide attempt a few days later
that would not have occurred had he not been removed from the
hospital against medical advice.
After he was arrested, Plaintiff was subsequently indicted
on two charges: unlawful possession of a weapon in the third
degree, N.J.S. 2C:39-5c(1), for “knowingly and unlawfully . . .
possess[ing] a firearm, to wit: a GAMO .177 CALIBER PELLET GUN
without first having obtained a firearms purchaser
identification card in accordance with the provisions of N.J.S.
2C:58-3; contrary to the provisions of N.J.S. 2C:39-5c(1), and
against the peace of this State, the government and dignity of
the same[;]” and unlawful possession of a weapon in the fourth
degree, for “knowingly and unlawfully . . . possessing a certain
weapon, to wit: a MACHETE under circumstances not manifestly
appropriate for such lawful uses as it may have; contrary to the
4
provisions of N.J.S. 2C:39-5d, and against the peace of this
State, the government and dignity of the same.” [Docket Item 211 at 55-56.]
Subsequent to his indictment, Plaintiff eventually entered
the Pre-Trial Intervention program (“PTI”). Plaintiff claims
that his entry into PTI was delayed either because he is
disabled or because he is believed to be disabled, stating that
the court system and actors within it do not allow people with
“mental illness” to participate in PTI, but rather must take
part in “mental illness probation” instead, which is less
favorable to criminal defendants than PTI is, as mental illness
probation results in a conviction, whereas PTI does not. [SAC at
34.]4
4
“The PTI program is governed by N.J.S.A. 2C:43-12 and the [New
Jersey] Supreme Court’s guidelines provided in Rule 3:28.” State
v. Fordham, No. 13-11-0677, 2016 WL 2636519, at *1 (N.J. App.
Div. May 10, 2016). PTI “[p]rovide[s] applicants, on an equal
basis, with opportunities to avoid ordinary prosecution by
receiving early rehabilitative services or supervision[.]”
N.J.S.A. 2C:43-12(a)(1). A guilty plea may, but need not, be
entered by a defendant before enrolling in PTI: “Enrollment of a
defendant in PTI is not to be conditioned on an admission of
guilt by the defendant.” State v. Chambers, No. 13-11-2069, 2015
WL 9381231, at *1 n.2 (N.J. App. Div. Dec. 24, 2015)(citing
State v. Moraes-Pena, 386 N.J. Super. 569, 578-79 (App. Div.),
certify. denied, 188 N.J. 492 (2006)).
It is unclear from the SAC what the status of the state
court case against Plaintiff actually is. While it appears that
Plaintiff has been admitted to PTI [Docket Item 42 at 2], the
record does not reflect: whether Plaintiff pled guilty to any
charge, whether a conviction was entered (on even a conditional
basis), whether there was any colloquy or admission of guilt, or
related information. The Court notes that such information may
5
Plaintiff complains that certain actions taken against him
in the course of his arrest and the ensuing criminal case
constituted violations of his rights and/or disability
discrimination. Plaintiff claims that he was discriminated
against, retaliated against, and harassed because he is
disabled, in violation of the Americans with Disabilities Act
(“ADA”), the Rehabilitation Act (“RA”), and the New Jersey Law
Against Discrimination (“NJLAD”). Id. at 29-36. Plaintiff claims
that he is “a qualified person with disabilities. Specifically,
he has various developmental disabilities, Neurofibromatosis
Type I and cerebral palsy[.]” Id. at 2. He also claims that the
retaliation has violated his First Amendment rights. Id. at 30.
With regard to his claims under 42 U.S.C. § 1983 and the
analogous New Jersey Civil Rights Law, Plaintiff claims that the
facts in the SAC “have intimidated Brett from exercising
numerous Constitutional Rights including, but not limited to,
Free Speech, Redress of Grievances (1 ), 2
st
nd
Amendment Rights,5
the Right to be free from illegal searches and seizures (4 ),
th
be relevant to arguments about abstention and/or whether
Plaintiff’s claims are barred under Heck.
5 Paragraph 59 of the SAC elaborates that this is based on
alleged entrapment by the Absecon Defendants who “told Brett on
April 8th, 2014 that he was within the purview of that Amendment
(or outside the scope of New Jersey [l]aws) while voluntarily
registering his pellet device and then charging him as though he
were outside the protection of that Amendment and liable under
its laws.”
6
Right to Counsel (5
th
Amendment), and to be free from cruel and
unusual punishment (8 ), and Due Process Rights and the right to
th
disability advocacy without retaliation for a given cause for
which he may advocate. Specifically, the defendant have violated
Brett’s rights of Due Process and Equal Protection Rights under
the 14
th
Amendment itself and these amendments by incorporation:
1 ,2 ,4 ,5 , and 8
st
nd
th
th
th
Amendments.” Id. at 37. Plaintiff claims
municipal liability pursuant to Monell v. Dep’t of Soc. Servs.,
436 U.S. 658 (1978). Id. ¶¶ 54-55, 64-65, 67.
Plaintiff requests compensatory damages, equitable
remedies, and also asserts a claim under the New Jersey
Declaratory Judgment Act, whereupon he requests a variety of
specific equitable remedies. Id. at 39-42.
B.
Procedural Background
The Court notes at the outset that, at all times during the
pendency of this litigation, Plaintiff has been represented by
licensed counsel, Thomas B. Duffy, Esq., who is also Plaintiff’s
father. Plaintiff is therefore not subject to the generous
pleading standards afforded to plaintiffs proceeding pro se, see
generally Erickson v. Pardus, 551 U.S. 89, 94 (2007)(“A document
filed pro se is to be liberally construed,’ and ‘a pro se
complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by
lawyers[.]’”)(internal citations omitted).
7
Although Plaintiff claims that he has a qualified
disability, there is no suggestion in the SAC that Plaintiff is,
with regard to this action, a minor or incompetent person,
either with, Fed. R. Civ. P. 17(c)(1), or without, Fed. R. Civ.
P. 17(c)(2), a representative.
Plaintiff’s submissions, including the SAC, the Response in
Opposition, and the Motion to Amend, are all then assessed
according to the general standards required of licensed
attorneys in both the Local Rules and the Federal Rules of Civil
Procedure, including Fed. R. Civ. P. 11(b). See Chan v. FIA Card
Svcs., No. SACV 10-1300 DOC (JCx), 2010 WL 11558108, at *4 n.2
(C.D. Cal. Oct. 28, 2010)(“The Court further notes that
Plaintiff is not pro se but is represented by counsel presumably
capable of understanding the elements of [a statutory claim] and
alleging appropriate facts in support of this claim.”)
Notwithstanding certain provisions in the SAC (see, e.g., Docket
Item 21 at 30, claiming a First Amendment violation because a
defendant “has kept both Father and Son Duffy from speaking or
advocating for people with disabilities”), the Court further
notes that Plaintiff’s counsel is not a party to this action and
the Court does not understand him to assert violations of his
own rights, nor any claims as the parent, representative,
guardian, or guardian ad litem of Plaintiff.
8
Plaintiff initially filed this action in New Jersey state
court, in the Law Division of Cumberland County [Docket Item 1-2
at 2] and filed an amended complaint in state court (styled as
the First Amended Complaint, id.), whereupon it was timely
removed by Absecon Defendants [Docket Item 1].
The matter was initially assigned to Judge Renee Bumb,
U.S.D.J. Pursuant to Judge Bumb’s internal procedures, the
Defendants requested [Docket Items 7 & 8] and Judge Bumb
subsequently held a pre-motion conference [Docket Item 19] to
address alleged deficiencies in Plaintiff’s pleadings. As a
result of the conference where these alleged deficiencies were
discussed, Judge Bumb issued an Order directing Plaintiff to
file an Amended Complaint [Docket Item 20], whereupon Plaintiff
filed the SAC [Docket Item 21].
Defendants again requested a pre-motion conference
regarding dismissal [Docket Items 22 & 23]. However, the case
was thereupon transferred to Judge Robert B. Kugler [Docket Item
25], who does not require such conferences and advised
Defendants to submit the motions that they thought proper
[Docket Item 26]. The instant motions followed, and the case was
subsequently reassigned to the undersigned. [Docket Item 33.]
9
III. STANDARD OF REVIEW
A.
Motion to Dismiss
When considering a motion to dismiss a complaint for
failure to state a claim upon which relief can be granted under
Fed. R. Civ. P. 12(b)(6), a court must accept all well-pleaded
allegations in the complaint as true and view them in the light
most favorable to the nonmoving party. A motion to dismiss may
be granted only if a court concludes that the plaintiff has
failed to set forth fair notice of what the claim is and the
grounds upon which it rests that make such a claim plausible on
its face. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007).
Although the court must accept as true all well-pleaded
factual allegations, it may disregard any legal conclusions in
the complaint. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009);
Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009).
Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice. Iqbal,
556 U.S. at 678.
In addition, the complaint must contain enough well-pleaded
facts to show that the claim is facially plausible. This “allows
the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. “If the well-pleaded
facts do not permit the court to infer more than the mere
10
possibility of misconduct, the complaint has alleged – but it
has not shown – that the pleader is entitled to relief.” Id. at
679 (internal quotation marks and citation omitted).
Under Rule 9(b), a plaintiff “alleging fraud or mistake . .
. must state with particularity the circumstances constituting
fraud or mistake.” Fed. R. Civ. P. 9(b). “A plaintiff alleging
fraud must therefore support its allegations with all of the
essential factual background that would accompany the first
paragraph of any newspaper story--that is, the who, what, when,
where and how of the events at issue.” U.S. ex rel. Moore & Co.,
P.A. v. Majestic Blue Fisheries, LLC, 812 F.3d 294, 306 (3d Cir.
2016)(internal quotation omitted). “[T]he plaintiff must plead
or allege the date, time and place of the alleged fraud or
otherwise inject precision or some measure of substantiation
into a fraud allegation.” Frederico v. Home Depot, 507 F.3d 188,
200 (3d Cir. 2007). Plaintiffs alleging a misrepresentation
“also must allege who made a misrepresentation to whom and the
general content of the misrepresentation.” Lum v. Bank of
America, 361 F.3d 217, 224 (3d Cir. 2004)(abrogated on other
grounds).
B.
Motion to Amend a Complaint
Federal Rule of Civil Procedure 15(a) permits a party to
amend his pleading before trial as a matter of course in limited
circumstances, or otherwise with the consent of the opposing
11
party or the court’s leave. Plaintiff filed his Motion to Amend
several months after Defendants’ Motions to Dismiss, and was
therefore not within the 21-day window to amend as of right
under Federal Rule of Civil Procedure 15(a)(1). Rule 15(a)(2)
permits Plaintiff to amend “only with the opposing party's
written consent or the court's leave.” Fed. R. Civ. P. 15(a)(2).
Although “[t]he court should freely give leave when justice
so requires,” id, the decision to grant leave to amend a
complaint rests within the sound discretion of the trial court.
Massarsky v. General Motors Corp., 706 F.2d 111, 125 (3d Cir.
1983). The district court may deny leave to amend only if (a)
the moving party's delay in seeking amendment is undue,
motivated by bad faith, or prejudicial to the non-moving party;
or (b) the amendment would be futile, meaning that the
complaint, as amended, would fail to state a claim upon which
relief could be granted. Travelers Indem. Co. v. Dammann & Co.,
594 F.3d 238, 243 (3d Cir. 2010); Shane v. Fauver, 213 F.3d 113,
115 (3d Cir. 2000).
In assessing “futility,” the court applies the same
standard of legal sufficiency as applies under Fed. R. Civ. P.
12(b)(6). Shane, 213 F.3d at 115. In other words, the amended
complaint must be dismissed (or leave to amend ought not be
granted) if, accepting all well-pleaded allegations in the
complaint as true and viewing them in the light most favorable
12
to the plaintiff, a court concludes that the plaintiff has
failed to set forth sufficient facts to state a claim for relief
that is plausible on its face. Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007); Fleisher v. Standard Ins. Co., 679 F.3d
116, 120 (3d Cir. 2012). Although a court must accept as true
all factual allegations in a complaint, that tenet is
“inapplicable to legal conclusions,” and “[a] pleading that
offers labels and conclusions or a formulaic recitation of the
elements of a cause of action will not do.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009).
IV.
DISCUSSION
As a general matter, the SAC asserts claims that Plaintiff
was denied, by the Absecon Police Department, his “1 , 2 , 4 , 5
st
& 8
th
nd
Amendment Rights (as applied to the States via the 14
Amendment) as well as his simple 14
th
th
th
th
Amendment Rights to Due
Process and Equal Protection.” SAC ¶ 53. He also claims
violations of the Americans with Disabilities Act (“ADA”),
Section 504 of the Rehabilitation Act (“RA”), and the New Jersey
Law Against Discrimination (“NJLAD”) for disability
discrimination and retaliation as “the Absecon Police Department
and its arrest procedures and evidence gathering procedures (or
lack thereof) are ‘public accommodations’ within the meaning of
13
the LAD and are a service, program or activity under both the
ADA and § 504.” Id.
Sorting the SAC into claims, the facts supporting such
claims, and the defendants against whom those claims are
asserted appears, to this Court, to be unreasonably difficult.
The SAC, for example:
Fails to plead a coherent narrative establishing the who,
what, where, when, and how of the factual allegations and
does not even include the date of the arrest that led to
the events at issue;
Names two judges as defendants in the caption but then
states that they are being “released” from the lawsuit--but
could be subject to a “refiled” lawsuit in state court “at
any time” [SAC at ¶ 96];
Asserts a panoply of constitutional claims but then
designates “the 5th Amendment violation” as “certainly the
main violation by the Absecon Defendants” and states that
it “may” “subsume all the other Constitutional Violations,
except those involving the 8th Amendment.” The SAC goes on
to state that “Defense counsel is encouraged to seek such a
stipulation to simplify the case[,]” ¶ 61, while apparently
overlooking the simple and clear necessity that the SAC is
required to state which causes of action it asserts, not
which ones it asserts that may (or may not?) subsume other
ones, subject to a possible, hypothetical stipulation that
the defendants may seek at their election;
Asserts a mixture of violations of the rights and/or
retaliation against Plaintiff with those of or against
Plaintiff’s counsel, who is not a party to this action and
does not have standing in this case to assert violations of
his rights or retaliation against him rather than against
Plaintiff;
Contains subheadings that do not clearly delineate sections
(cf., e.g., “Summary of Facts” [SAC at 2] with “The
Prosecutor & Vicinage I” [id. at 9]) and confuse, rather
than enlighten, the reader;
14
Contains numerous accusations against non-defendants (e.g.,
accuses state court clerks of committing “several felonies”
by holding a filing so that it could be marked as late in
an unrelated case) that are at most only tangentially
relevant [SAC ¶ 46];
States causes of action as offhand asides, in places where
they would not reasonably be expected to be found (e.g., at
the end of the subsection entitled “The Prosecutor &
Vicinage I,” Paragraph 51 states, in full, as follows:
51. The Prosecutor and the Vicinage had at least
two goals with Brett’s case. First, to try to
convict him in order to limit the liability in
any suit he filed. Second, and especially if Goal
#1 failed, to drag out the case past the statute
of limitations for this action. Keeping the
threat of prosecution and conviction over Brett’s
head until there was a quid pro quo that he
didn’t file this suit. Certainly, § 1983 was
designed to address issues such as this via an
analogy to abuse of process, malicious
prosecution or simply the illegality of trumped
up charges. Any place § 1983 is mentioned it
shall also include the nearly identical New
Jersey Civil Rights Law.
(emphasis in original.) Immediately following Paragraph
51 is a new subheading, “The Parties.”).
Rule 8(a)(2) of the Federal Rules of Civil Procedure
requires a plaintiff to file a complaint “that states a claim
for relief” and contains “a short and plain statement of the
claim showing that the pleader is entitled to relief[.]” Rule
8(d) requires “[e]ach allegation” to “be simple, concise, and
direct.” “Taken together, Rules 8(a) and 8([d])(1) underscore
the emphasis placed on clarity and brevity by the federal
pleading rules.” In re Westinghouse Secs. Litig., 90 F.3d 696,
702 (3d Cir. 1996)(internal quotation and citation omitted).
15
The Court finds well-taken Defendants’ argument that the
SAC in its current form does not allege non-conclusory factual
grounds to support the claim that Plaintiff was barred from
accessing a public service based on his disability (real or
perceived), or that he was treated differently from someone
without a qualified disability. More fundamentally, the SAC
fails to make allegations with sufficient specificity to place
Defendants on notice of what they are accused of, and, in a
broader sense, what are the actual contours of this suit.
Dismissal pursuant to Rule 8 “is usually reserved for those
cases in which the complaint is so confused, ambiguous, vague,
or otherwise unintelligible that its true substance, if any, is
well disguised.” Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir.
1995)(quoting Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir.
1988)). The Court finds that the SAC falls into that category,
and will dismiss it for its failure to comply with Rule 8. See
Binsack v. Lackawanna Cty. Prison, 438 F. App’x 158, 160 (3d
Cir. 2011)(“Citing Fed. R. Civ. Pro. 8(a)(2), the Magistrate
Judge concluded that Binsack’s complaint, although voluminous,
was vague and ambiguous, and that he had failed to provide a
short and plain statement of each claim against each defendant:
the defendants could not meaningfully respond to his complaint”;
panel agreed that complaint “was anything but ‘simple, concise
and direct.’ Fed. R. Civ. Pro. 8(d)(1). It is so excessively
16
voluminous and unfocused as to be unintelligible. The complaint
defies any attempt to meaningfully answer or plead to it, and it
left the defendants having to guess what of the many things
discussed constituted deliberate indifference on their part, or
whether Binsack intended to also include a count that
correctional officials failed to protect him from other
inmates”); Tillio v. Spiess, 441 F. App’x 109, 110 (3d Cir.
2011)(affirming dismissal where complaint pro se plaintiff
“submitted was . . . ‘rambling and unclear’”).
It is clear from reading the SAC, with all due deference to
Plaintiff as the non-movant, that most (though perhaps not all)
of its allegations are conclusory and speculative and cannot
stand under Iqbal and Twombly; it is even more clear that,
including as it does numerous digressions and tangents, it
manifestly does not constitute a “short and plain statement of
the claim[s] showing that” Plaintiff is entitled to relief; nor
can its allegations reasonably be described as simple, concise,
or direct. The Court agrees with Absecon Defendants when they
state that “it is not the length of the pleading which ipso
facto renders it inadequate but its lack of coherence, its
constant digressions . . . and its compound averments[,] which
severely hinder Defendants’ ability to meaningfully respond to
the pleading and understand the precise parameters of
Plaintiff’s causes of action.” [Docket Item 44 at 8.]
17
The Court further notes, as did Defendants [Docket Item 272 at 13], that the attachment of more than ninety pages of
exhibits to the SAC, with many of those pages concerning
unrelated cases that predate Plaintiff’s arrest by as many as
ten years, is, in the main, unhelpful. “[B]ecause this case is
only in the pleading stage, [the plaintiff] need not prove his
claims with evidence at this time. By inundating the court with
evidence at this stage in the proceedings, [he] only burdens the
court, confuses the records, and delays his lawsuit. . . . [I]n
amending his complaint, plaintiff should simply state the facts
upon which he alleges a defendant has violated his
constitutional rights[.]” Moon v. Mullin, No. 2:11-cv-3277 EFB
P., 2012 WL 3205363, at *3 (E.D. Cal. July 31, 2012).
The Court finds that the SAC, because of its
conclusoriness, prolixity, internal contradictions and
equivocations, digressions, compound averments and general
disorganization, does not give fair notice to Defendants of the
claims against them, nor of the factual grounds that, if true,
would serve to support such claims. Accordingly, the Court will
GRANT Defendants’ Motions to Dismiss the SAC; such dismissal
shall be without prejudice except as noted below.
Because the SAC does not pass muster with either Rule 8 or
Iqbal/Twombly, the Court does not address State Defendants’
substantive argument that Plaintiff has failed to allege facts
18
that show that his alleged injury was caused by his disability
(rather than Plaintiff’s own unrelated conduct), or that he was
“treated differently based on . . . [his] disability.’” [Docket
Item 27-2 at 15, quoting CG v. Pa. Dep’t of Educ., 734 F.3d 229,
235-36 (3d Cir. 2013).] What was the differential treatment?
Which defendants did what? When? What was the resulting injury
or other harm? The Court also does not address the argument made
by State Defendants in their reply that Plaintiff’s claims based
on the allegedly lost PTI application are moot because Plaintiff
has now entered into PTI. [Docket Item 42 at 2.] Is Plaintiff
claiming, notwithstanding his admission into PTI, that delay in
doing so violated some constitutional or statutory right and
caused cognizable harm?
Nor does the Court address Absecon Defendants’ argument
that Plaintiff’s constitutional claims against them fail because
they are barred pursuant to Heck v. Humphrey, 512 U.S. 477
(1994), and that the LAD, ADA, and RA claims should also be
deemed Heck-barred pursuant to a line of unpublished district
court cases. [Docket Item 28-1 at 15-17, 17-19.] The Court
similarly does not address Absecon Defendants’ arguments that
the SAC fails to plead facts to support its claim of municipal
liability under Monell, id. at 19-22; or that the SAC does not
19
plead sufficient factual allegations as to the liability of
individual defendant Armstrong, id. at 23-24.6
The Court does note, however, as State Defendants correctly
state, that “the ADA, RA, and NJLAD permit claims only against
public entities, not against individuals. See Emerson v. Theil
Coll., 296 F.3d 184, 189 (3d Cir. 2002).” [Docket Item 27-2 at
16.] To the extent that the SAC asserts ADA, RA, or NJLAD claims
against individual defendants, such claims are DISMISSED with
prejudice.
Further, the Court also agrees with Absecon Defendants’
argument that the claims against the Absecon Police Department
are duplicative of the claims against the City of Absecon.
[Docket Item 28-1 at 22-23.] See, e.g., Pahle v. Colebrookdale
Twp., 227 F. Supp. 2d 361, 367 (E.D.Pa. 2002)(“In § 1983
actions, police departments cannot be sued in conjunction with
municipalities, because the police departments are merely
administrative agencies of the municipalities--not separate
6
The Court also does not address Plaintiff’s somewhat conclusory
request that some or all of the case be remanded pursuant to
this Court’s abstention [Docket Item 41 at 7]. If Plaintiff
obtains leave to file a Third Amended Complaint, as discussed
herein, and if Plaintiff wishes to press this argument in more
than merely conclusory fashion, he may file a motion to remand,
subject (as always) to the requirements of Rule 11, including
clear briefing of the abstention doctrine Plaintiff seeks to
invoke and the applicability of that doctrine to the various
causes of action asserted in the Third Amended Complaint.
20
judicial entities.”). The § 1983 claims against the Absecon
Police Department are, therefore, DISMISSED with prejudice.
(This does not preclude assertion of well-pleaded § 1983 claims
against individual officers who are “persons” under that
statute.)
The Court further finds that State Defendants are correct
when they state that the “public entity State Defendants are not
‘persons’ within the meaning of § 1983. Will v. Mich. Dep’t of
State Police, 491 U.S. 58, 70-71 (1989)(“neither a State nor its
officials acting in their official capacities are ‘persons’
under § 1983”).” [Docket Item 42 at 3.] Moreover, Plaintiff
appears to consent to such dismissal. SAC ¶ 99. Accordingly, all
§ 1983 claims against the public entity State Defendants and the
State officials named as defendants in their official capacities
are DISMISSED with prejudice.
Finally, as to Plaintiff’s Motion to Amend [Docket Item
43], the Court notes Plaintiff’s failure to comply with Local
Civil Rule 7.1(f), which requires the attachment of the proposed
Amended Complaint to such a motion. This rule serves the
purposes of efficiency and economy; neither the opponents of
such a motion (as Absecon Defendants note [Docket Item 45 at 67]), nor the Court, can assess the futility of such a motion, as
is required when determining whether leave to amend should be
granted, without having a proposed Amended Complaint to assess.
21
For this reason, Plaintiff’s Motion to Amend shall be DENIED.
However, such denial shall be without prejudice, except that
claims dismissed with prejudice herein may not be asserted in a
subsequent amended pleading.
Nevertheless, the Court finds well-taken Plaintiff’s
counsel’s assertion in the motion’s certification that, if
granted leave to amend, he plans to “hire a disability rights
lawyer” “to draft any new complaint.” [Docket Item 43 ¶ 23.] It
should not require a “civil procedure professor,” id., however,
to construct a complaint that meets these basic threshold
pleading requirements, as practitioners before this Court do so
without incident every day.
Notwithstanding what Defendants characterize as Plaintiff’s
“ample opportunity” to cure the defects in his pleadings, the
Court will entertain, within twenty-one (21) days from the entry
on the docket of this Opinion and the accompanying Order, a
renewed Motion to Amend the Complaint that complies fully with
all applicable Local Rules (including by attaching the proposed
Third Amended Complaint) and the Federal Rules of Civil
Procedure.7 The Court notes that it would anticipate that any
7
The Court expects, accordingly, that Plaintiff will include as
Defendants in any proposed Third Amended Complaint only those
defendants against whom he actually intends to assert claims and
will not name such Defendants in the caption but then announce
in the body of such proposed Third Amended Complaint his
22
further dismissals may well be with prejudice. See, e.g.,
Moriarty v. DiBuonaventura, No. 14-cv-2492(JBS/AMD), 2015 WL
1469515, at *4 (D.N.J. Mar. 30, 2015)(“Plaintiff’s Amended
Complaint fails to plead plausible claims for relief and fails
to cure the deficiencies of the original Complaint. The Court
previously identified these deficiencies and gave Plaintiff an
opportunity to cure them. Because Plaintiff has, again, failed
to plead plausible claims for relief in non-conclusory terms,
Plaintiff’s claims against the WTPD will be dismissed with
prejudice.”); Mann v. Brenner, 275 F. App’x 232, 240 n.9 (3d
Cir. 2010)(affirming dismissal of second amended complaint with
prejudice because allowing plaintiff “a fourth bite at the apple
would be futile”).
V.
CONCLUSION
The Motions to Dismiss shall be granted without prejudice
for the foregoing reasons and an accompanying Order will be
entered, with the exception that 1) any NJLAD, RA, or ADA claims
against individual Defendants are dismissed with prejudice; 2)
any § 1983 claims against the Absecon Police Department are
dismissed with prejudice; and 3) any § 1983 claims against the
public entity State Defendants and any State officials in their
intention to “release” them. That is not a proper method of
litigation.
23
official capacities are dismissed with prejudice. Plaintiff’s
Motion to Amend is denied without prejudice. Plaintiff may
submit a renewed Motion to Amend, including a proposed Third
Amended Complaint pursuant to L. Civ. R. 7.1(f), within twentyone (21) days. The accompanying Order is entered.
July 12, 2018
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge
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