THE ESTATE OF RICHARD BARD et al v. THE CITY OF VINELAND et al
OPINION. Signed by Judge Noel L. Hillman on 10/19/2017. (tf, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
THE ESTATE OF RICHARD BARD
and DANA GERMAN-BUNTON, as
of THE ESTATE OF RICHARD
THE CITY OF VINELAND, CHIEF
RUDY BEU, FORMER CHIEF
TIMOTHY CODISPOTI, and JOHN
DOE POLICE OFFICERS 1-10,
CONRAD J. BENEDETTO
MELISSA YVETTE HOFFMAN
LAW OFFICES OF CONRAD J. BENEDETTO
1233 HADDONFIELD-BERLIN ROAD
VOORHEES, NJ 08043
On behalf of Plaintiffs
A. MICHAEL BARKER
TODD J. GELFAND
BARKER, GELFAND & JAMES
210 NEW ROAD
LINWOOD, NJ 08221
On behalf of Defendants
HILLMAN, District Judge
This matter concerns claims by Plaintiff arising out of the
shooting death of her son by Defendant City of Vineland police
Presently before the Court is the motion of
Defendants to dismiss Plaintiff’s claims.
For the reasons
expressed below, Defendants’ motion will be granted in part and
denied in part.
Plaintiff, Dana German-Bunton, the mother of Richard Bard,
the decedent, and the administratrix of her son’s estate, filed
a seven-count complaint against the City of Vineland, its
current police chief, Rudy Beu, its former police chief, Timothy
Codispoti, and unnamed police officers involved in the shooting.
Plaintiff claims that the police officers violated Bard’s right
to be free from the use of excessive force, and the City of
Vineland and the police chiefs maintained a policy or custom
that fostered the police officers’ use of excessive force, or
the City and police chiefs failed to properly train its officer
on the appropriate use of force, all in violation of the Fourth
Amendment of the U.S. Constitution and New Jersey Civil Rights
Act, N.J.S.A. 10:6–2(c).
Plaintiff has also lodged claims for
wrongful death and negligence against Defendants.
The sum of the factual allegations in Plaintiff’s amended
complaint are as follows:
20. At the time of his death on April 17, 2016, Richard
Bard was thirty-one (31) years old.
21. Richard Bard had been involved in a motor vehicle
accident on January 13, 2013 wherein he sustained serious
injuries to his legs. Bard's injuries from the accident
included an opened fractured femur, a closed fractured
femur, rib contusions, a pulmonary contusion and
pneumothorax, for which the decedent had numerous
22. Upon information and belief, based on his existing
injuries, it was not possible for Bard to walk and even
23. On April 16, 2016, decedent Richard Bard and his
girlfriend Ebony Bonner attended a birthday party at a
friend's home located at the Walnut Villa Complex on
Florence Avenue in Vineland, New Jersey.
24. At around 11:30 p.m., Richard Bard and an individual
named Jonathan Bain agreed to leave the party and walk
together to get cigarettes from another resident at the
Walnut Villa Complex.
25. It is alleged by the Vineland police that around 1 a.m.
on April 17, 2016, Richard Bard and Jonathon Bain were
involved in a robbery of an individual near Seventh and
Cherry Streets in Vineland.
26. It is further alleged that Richard Bard and Jonathon
Bain fled and were chased by the police.
27. A responding officer, who has remained unnamed, shot
Richard Bard four times before Bard fell to the ground near
East Avenue and Almond Street in Vineland. Of the four
shots, two struck the decedent.
28. After the shooting, EMS were called. When EMS arrived,
Bard was found unconscious laying on the side of road in a
pool of blood. He had sustained two gunshot wounds,
including one gunshot wound to his groin and one gunshot
wound to his hip.
29. Bard was pronounced dead at Inspira Hospital by Dr.
William Martin at 2:05 a.m., on April 17, 2016.
30. After the shooting, family members of Richard Bard were
advised that he sustained two broken wrists. No explanation
was provided for how his wrists had been broken.
(Docket No. 8 at 4-5.)
Defendants have moved to dismiss all counts in Plaintiff’s
complaint, arguing that the complaint only contains conclusory,
bare-bones allegations relating to the liability of the
officers, police chiefs, and City for Bard’s death.
have also moved to dismiss Plaintiff’s complaint for her failure
to comply with the New Jersey Tort Claims Act.
opposed Defendants’ motion.
Subject matter jurisdiction
This civil action is brought for the redress of alleged
deprivations of constitutional rights as protected by 42 U.S.C.
§§ 1983, 1985, 1986, 1988, and the Fourth and Fourteenth
Amendments of the United States Constitution, as well as
violations of New Jersey state law.
Jurisdiction is founded on
28 U.S.C. §§ 1331, 1343 and 1367.
Standard for Motion to Dismiss
When considering a motion to dismiss a complaint for
failure to state a claim upon which relief can be granted
pursuant to Federal Rule of Civil Procedure 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 plaintiff.
Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005).
It is well
settled that a pleading is sufficient if it contains “a short
and plain statement of the claim showing that the pleader is
entitled to relief.”
Fed. R. Civ. P. 8(a)(2).
liberal federal pleading rules, it is not necessary to plead
evidence, and it is not necessary to plead all the facts that
serve as a basis for the claim.
F.2d 434, 446 (3d Cir. 1977).
Bogosian v. Gulf Oil Corp., 562
However, “[a]lthough the Federal
Rules of Civil Procedure do not require a claimant to set forth
an intricately detailed description of the asserted basis for
relief, they do require that the pleadings give defendant fair
notice of what the plaintiff’s claim is and the grounds upon
which it rests.”
Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S.
147, 149-50 n.3 (1984) (quotation and citation omitted).
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
Bell Atlantic v. Twombly, 550 U.S. 544, 563 n.8 (2007)
(quoting Scheuer v. Rhoades, 416 U.S. 232, 236 (1974)); see also
Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (“Our decision in
Twombly expounded the pleading standard for ‘all civil actions’
. . . .”); Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir.
2009) (“Iqbal . . . provides the final nail-in-the-coffin for
the ‘no set of facts’ standard that applied to federal
complaints before Twombly.”).
Following the Twombly/Iqbal standard, the Third Circuit has
instructed a two-part analysis in reviewing a complaint under
First, the factual and legal elements of a claim
should be separated; a district court must accept all of the
complaint's well-pleaded facts as true, but may disregard any
S. Ct. at 1950).
Fowler, 578 F.3d at 210 (citing Iqbal, 129
Second, a district court must then determine
whether the facts alleged in the complaint are sufficient to
show that the plaintiff has a “‘plausible claim for relief.’”
Id. (quoting Iqbal, 129 S. Ct. at 1950).
A complaint must do
more than allege the plaintiff's entitlement to relief.
see also Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d
Cir. 2008) (stating that 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.
‘does not impose a probability requirement at the pleading
stage,’ but instead ‘simply calls for enough facts to raise a
reasonable expectation 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, 1429-30 (3d Cir. 1997).
The defendant bears the
burden of showing that no claim has been presented.
U.S., 404 F.3d 744, 750 (3d Cir. 2005) (citing Kehr Packages,
Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991)).
A court in reviewing a Rule 12(b)(6) motion must only
consider the facts alleged in the pleadings, the documents
attached thereto as exhibits, and matters of judicial notice.
S. Cross Overseas Agencies, Inc. v. Kwong Shipping Grp. Ltd.,
181 F.3d 410, 426 (3d Cir. 1999).
A court may consider,
however, “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.”
Pension Benefit Guar. Corp.
v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.
If any other matters outside the pleadings are presented
to the court, and the court does not exclude those matters, a
Rule 12(b)(6) motion will be treated as a summary judgment
motion pursuant to Rule 56.
Fed. R. Civ. P. 12(b).
Plaintiff’s constitutional and NJCRA violation
claims against the City of Vineland, Codispoti
and Beu 1
Defendants argue that Plaintiff’s constitutional violation
Because the New Jersey Civil Rights Act was modeled after 42
U.S.C. § 1983, and creates a private cause of action for
violations of civil rights secured under either the United
States or New Jersey Constitutions, the NJCRA is interpreted
analogously to § 1983. See Norman v. Haddon Township, 2017 WL
2812876, at *4 (D.N.J. 2017). Thus, Plaintiff’s NJCRA violation
claims will proceed or fail for the same reasons as Plaintiff's
§ 1983 claims.
claims fail because they do not satisfy the Twombly/Iqbal
The Court agrees.
Under Monell v. Dept. of Social Services of City of New
York, 436 U.S. 658, 694 (1978), “a local government may not be
sued under § 1983 for an injury inflicted solely by its
employees or agents.
Instead, it is when execution of a
government’s policy or custom, whether made by its lawmakers or
by those whose edicts or acts may fairly be said to represent
official policy, inflicts the injury that the government as an
entity is responsible under § 1983.”
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.”
Cumberland County, 749 F.3d 217, 222 (3d Cir. 2014) (citations
“[M]unicipal liability under § 1983 attaches where –
and only where – a deliberate choice to follow a course of
action is made from among various alternatives by the official
or officials responsible for establishing final policy with
respect to the subject matter in question.”
Cincinnati, 475 U.S. 469, 483 (1986).
Pembaur v. City of
A policymaker is a person
who is “responsible for establishing final government policy
respecting” the activity in question and “whether an official
had final policymaking authority is a question of state law.”
A § 1983 claim based on the policymaker's failure to train
or supervise employees “must amount to ‘deliberate indifference
to the rights of persons with whom the [untrained or
unsupervised employees] come into contact.’”
Thompson, 563 U.S. 51, 61 (2011) (quoting City of Canton, Ohio
v. Harris, 489 U.S. 378, 388 (1989)).
“[W]hen city policymakers
are on actual or constructive notice that a particular omission
in their training program causes city employees to violate
citizens' constitutional rights, the city may be deemed
deliberately indifferent if the policymakers choose to retain
Connick, 563 U.S. at 61.
Under New Jersey law, the chief of police is the relevant
policymaker for a municipal police department.
See Hernandez v.
Bor. Of Palisades Park Police Dept., 58 F. App’x 909, 913 (3d
Cir. 2003) (citing N.J.S.A. 40A:14-118).
Thus, in order to
properly plead a claim against the City of Vineland and the
police chiefs individually, Plaintiff must plead facts showing
that (1) Chief Codispoti or Chief Beu (2) had notice and (3)
“consciously disregarded an obvious risk that the officer[s]
would subsequently inflict a particular constitutional injury,”
and (4) this deliberate indifference caused the officers’ to use
excessive force on Bard.
Bd. of County Com'rs of Bryan County,
Okl. v. Brown, 520 U.S. 397, 411 (1997); Connick, 563 U.S. at
Plaintiff has failed to plead such facts with the level of
specificity required by Twombly/Iqbal.
With regard to
Plaintiff’s claims against the police chiefs and the City of
Vineland collectively, Plaintiff alleges that: “the City of
Vineland, by and through former Chief Timothy Codispoti, Chief
Rudy Beu and other policymakers, developed policies and/or
customs which led to Richard Bard's death and the violation of
his federal constitutional rights”; those policies “were
inherently deficient and resulted in the death of Richard Bard”;
and the City of Vineland, by and through former Chief Timothy
Codispoti, Chief Rudy Beu, and other policymakers acted
“negligently, recklessly, and/or intentionally” by failing “to
properly train and supervise Defendants John Doe Police Officers
1 - 10 with regard to the proper use of force against members of
(Docket No. 8 at 5-6.)
As to Plaintiff’s specific claims against Codispoti, who
was police chief until January 1, 2017, and Beu, who succeeded
Codispoti at that time, Plaintiff alleges:
On April 17, 2016,
Codispoti was “aware of, should have been aware of, and/or had
actual knowledge of the pattern and culture of unconstitutional
behavior and indifference, including using excessive use of
force against members of the public by the Vineland police,” and
that “[s]ince January 1, 2017, this unconstitutional behavior
and indifference has continued under” Beu; “Codispoti not only
directed, encouraged, tolerated or acquiesced to this behavior,
but was deliberately indifferent to the likelihood that his
staff, employees and/or police officers would use excessive
force against members of the public”; and the deliberate
indifference of Codispoti “to the need to supervise his staff,
employees and/or corrections officers was a proximate cause of
the constitutional violations suffered by the decedent.”
(Docket No. 8 at 8.)
All of these allegations are simply conclusory restatements
of the legal elements of unconstitutional policy, custom, and
failure to train claims under Monell, without any facts to show
how the City of Vineland became aware of a pattern and culture
of unconstitutional behavior by Vineland officers, when and
under what circumstances such events occurred, how Vineland
police chiefs failed to properly train its officers, or show the
nature of the policy or custom that fostered the use of
excessive force by the officers.
Iqbal itself provides the precise explanation as to why
Plaintiff’s claims are deficient, and this Court has set forth
the reasoning of Iqbal when dismissing similarly pled Monell
claims in another case.
See Zampetis v. City of Atlantic City,
2016 WL 5417195, at *6 (D.N.J. 2016).
In Zampetis, this Court
explained that in Iqbal, the complaint claimed that Attorney
General John Ashcroft and FBI Director Robert Mueller violated
Iqbal's equal protection rights by condoning and agreeing to
subject Iqbal to harsh conditions of confinement solely on
account of his race, religion and/or national origin.
Supreme Court held that the allegation that Ashcroft and Mueller
discriminated against him “on account of [his] religion, race,
and/or national origin and for no legitimate penological
interest” was a conclusory and formulaic recitation of the
elements of a constitutional discrimination claim, and could not
be assumed to be true. Zampetis v. City of Atlantic City, 2016
WL 5417195, at *6 (D.N.J. 2016) (citing Iqbal, 556 U.S. at 681).
The Supreme Court found that the factual allegation that
Ashcroft and Mueller adopted a policy of approving harsh
conditions of confinement for post-September 11 detainees until
the FBI cleared them did not plausibly suggest that Ashcroft and
Mueller purposefully discriminated against the detainees because
of their race, religion or national origin and, therefore, did
not state a claim for purposeful discrimination claim against
these high ranking defendants.
As in Iqbal, and also in Zampetis, Plaintiff’s conclusory
contention that an infirm policy, or custom, or training
practice by the City of Vineland, and the police chiefs’
knowledge of one or all of these infirmities, caused Bard’s
shooting death is insufficient to properly plead a viable Monell
Plaintiff is required to provide facts – not simply
regurgitate all the legal bases for liability under Monell - to
support her contentions and adequately plead her claims against
the City and the police chiefs.
Because of Plaintiff’s failure
to do so, Plaintiff’s claims against the City of Vineland,
Codispoti, and Beu must be dismissed. 2
The Court will, however, provide Plaintiff with thirty days
to file amended claims against the City and the police chiefs 3 if
In her opposition brief, Plaintiff attempts to add more factual
support to her claims against the City and police chiefs. That
is procedurally improper. See Com. of Pa. ex rel. Zimmerman v.
PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir. 1988) (“It is one
thing to set forth theories in a brief; it is quite another to
make proper allegations in a complaint.”); id. (citations
omitted) “‘[I]t is axiomatic that the complaint may not be
amended by the briefs in opposition to a motion to dismiss.’”).
The Court takes no position at this time as to whether the
content of Plaintiff’s brief, if added to her complaint, would
transform her civil rights claims against the City and the
police chiefs into viable ones.
Plaintiff’s claims against Codispoti and Beu in their official
capacities must be dismissed as redundant and should not be repleaded. See Janowski v. City of North Wildwood, --- F. Supp.
3d ---, 2017 WL 1821078, at *12 (D.N.J. May 5, 2017) (quoting
Kentucky v. Graham, 473 U.S. 159, 166 (1985) (“[A]n officialcapacity suit is, in all respects other than name, to be treated
as a suit against the entity. It is not a suit against the
official personally, for the real party in interest is the
entity.”); Baez v. Lancaster Cty., 487 F. App’x 30, 32 (3d Cir.
2012) (finding that where claims against an officer in his
official capacity are duplicative of claims against the
municipality, those claims are properly dismissed as
she wishes to do so, and can do so in compliance with Rule 8,
Twombly/Iqbal, and Rule 11.
Plaintiff’s constitutional and NJCRA violation
claims against the John Doe police officers
Plaintiff’s claims against the John Doe police officers
consist of the allegation that after Bard and Bain allegedly
fled after robbing a person near Seventh and Cherry Streets in
Vineland, they were chased by the police, and one responding
officer shot at Bard four times, with two bullets striking him
in the groin and hip, which ultimately led to his death an hour
Plaintiff also alleges that Bard was disabled and could
not have run away from police, and that Bard had two broken
wrists of unknown cause at the time of his death.
these allegations, Plaintiff alleges that the officers “violated
the Civil Rights of Richard Bard as guaranteed by the Eighth and
Fourteenth Amendments to be safe from injury, harm and excessive
force from the Vineland Police”; their actions proximately
caused Bard’s death; and their actions were “intentional,
malicious, willful, wanton and/or in reckless disregard of
Richard Bard's federally protected rights, therefore entitling
Plaintiff to an award of punitive damages.”
(Docket No. 8 at
Even though Plaintiff’s claims against the police officers
are meager, and, indeed, Plaintiff has not even named the
officers involved in the incident, 4 Plaintiff’s constitutional
and NJCRA violation claims against the officers may proceed past
Defendants’ motion to dismiss.
Plaintiff claims that Bard was
shot and killed while purportedly fleeing the police even though
his physical condition from an accident would have precluded his
ability to run.
Plaintiff further claims that the use of such
force was excessive.
This allegation provides the officers with
New Jersey Court Rule 4:26–4, which is applicable in federal
court, see DeRienzo v. Harvard Industries, Inc., 357 F.3d 348,
353 (3d Cir. 2004) (citing N.J.S.A. 2A:14–2 and N.J. Ct. R.
4:26–4), permits a plaintiff to amend his complaint to identify
the proper party as long as a John Doe fictitious designation
was included for that specific category of defendant. See
Yarchak v. Trek Bicycle Corp., 208 F. Supp. 2d 470, 489 (D.N.J.
2002) (citing Mancuso v. Neckles, 747 A.2d 255, 261 n.1 (N.J.
2000) and discussing N.J. Ct. R. 4:26–4) (“[T]he fictitious
party rule permits a plaintiff to preserve a claim against as
yet unidentified potential defendants who may have contributed
to plaintiff's injuries.”). The Rule provides, in relevant
part, “In any action, irrespective of the amount in controversy,
other than an action governed by R. 4:4–5 (affecting specific
property or a res), if the defendant's true name is unknown to
the plaintiff, process may issue against the defendant under a
fictitious name, stating it to be fictitious and adding an
appropriate description sufficient for identification. Plaintiff
shall on motion, prior to judgment, amend the complaint to state
defendant's true name, such motion to be accompanied by an
affidavit stating the manner in which that information was
obtained . . . .” The Rule also requires that the plaintiff
must have exercised due diligence to ascertain the defendant's
true name before and after filing the complaint. DeRienzo, 357
F.3d at 353. Plaintiff has not explained why she has not
discovered the names of the officers involved in the shooting of
her son, but Defendants do not challenge Plaintiff’s invocation
of the Fictitious Party Rule. Thus, the Court does not have a
basis at this time to question Plaintiff’s continued use of the
notice of the nature of Plaintiff’s claims against them, and
accepting as true that using deadly force in that situation was
excessive, the facts alleged in the complaint are sufficient to
show that Plaintiff has a plausible claim for relief on his
civil rights claims against at least one officer.
Plaintiff’s claims against the John Doe police officers may
Plaintiff’s Wrongful Death and Negligence claims
In addition to the Defendants’ alleged civil rights
violations, Plaintiff asserts claims against them for wrongful
death 6 and negligence.
These claims fail as against the City of
Vineland, Codispoti, and Beu for the same reason as Plaintiff’s
The Court reminds Plaintiff that when she discovers the
identities of the officers involved and names them that her
allegations against those officers must comply with Rule 8 and
Twombly/Iqbal by providing sufficient facts to make out a
plausible civil rights claims against each named officer.
Plaintiff does not specifically allege that Defendants have
violated the New Jersey Wrongful Death Act, N.J.S.A. 2A:31–1 to
–6, but the Act codified the common law of wrongful death
claims. LaFage v. Jani, 766 A.2d 1066, 1077 (N.J. 2001) (“New
Jersey had a common law wrongful death cause of action before
our first statute was passed in 1848. . . . [O]ur Wrongful Death
Act is a codification of our common law.”). Therefore,
Plaintiff’s wrongful death claim must arise under the New Jersey
Wrongful Death Act. Under the Wrongful Death Act, the heirs of
a person who has died by virtue of “a wrongful act, neglect or
default” may assert a claim for their “pecuniary injuries.”
N.J.S.A. 2A:31–1, –5.
civil rights claims against them – the dearth of any factual
support separate from the legal elements of those claims.
As for Plaintiff’s wrongful death and negligence claims
against the John Doe police officers, Defendants argue that
those claims fail because Plaintiff does not allege that she
complied with the New Jersey Tort Claims Act.
Under the NJTCA,
a plaintiff bringing a tort claim against a public entity or
public employee must give the relevant public entity notice of
the claim within ninety days of the accrual of the cause of
action. N.J.S.A. 59:8-8.
A plaintiff who fails to do so is
“forever barred” from recovering against a public entity or
Plaintiff’s complaint does not state that she complied with
the notice requirement of the NJTCA, but she attaches to her
opposition brief what she contends is her tort claim notice.
(Docket No. 16-1.)
In response, Defendants do not challenge
whether Plaintiff’s notice is in compliance with the NJTCA, but
instead argue that she cannot amend her complaint through her
brief to establish that compliance.
Because the Court will permit Plaintiff to file an amended
complaint relating to her civil rights claims against the City
of Vineland, Codispoti, and Beu, she may also re-plead her
wrongful death and negligence claims, including pleading her
compliance with the NJTCA, so long as she complies with Rule 8,
Twombly/Iqbal, and Rule 11.
For the reasons expressed above, all of Plaintiff’s claims
against the City of Vineland, Former Police Chief Timothy
Codispoti, and Police Chief Rudy Beu will be dismissed, and
Plaintiff’s wrongful death and negligence claims against the
John Doe police officers will also be dismissed.
afforded thirty days to file an amended complaint against any,
some, or all of these Defendants if she can do so in compliance
with Federal Civil Procedure Rules 8 and 11 and the standards
set forth by Twombly and Iqbal.
Plaintiff’s civil rights
violation claims against the John Doe police officer may
An appropriate Order will be entered.
October 19, 2017
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
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