FELTON v. ATLANTIC CITY TASK FORCE OFFICERS et al
OPINION. Signed by Judge Renee Marie Bumb on 4/10/17. (jbk, )
NOT FOR PUBLICATION
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
ATLANTIC CITY TASK FORCE
OFFICERS in their official,
private and individual
capacities; JAMES HERBERT,
DARRIN LORADY, WILLIAM WARNER,:
and GARY STOWE,
Civ. Action No. 17-1471 (RMB)
BUMB, District Judge:
Atlantic County Justice Facility (“ACJF”), in Atlantic City, New
Jersey, filed a civil rights action under 42 U.S.C. § 1983 on
March 3, 2017.
(Compl., ECF No. 1.)
Plaintiff seeks to proceed
without prepayment of fees (“in forma pauperis” or “IFP”) under
28 U.S.C. § 1915(a).
(IFP App., ECF No. 1-1, and ECF No. 1 at
Plaintiff has filed a properly completed IFP application,
pauperis, and his application will be granted.
The Court must review the complaint pursuant to 28 U.S.C.
§§ 1915(e)(2)(B); 1915A(b) to determine whether it should be
dismissed as frivolous or malicious, for failure to state a
claim upon which relief may be granted, or because it seeks
monetary relief from a defendant who is immune from such relief.
I. STANDARDS FOR A SUA SPONTE DISMISSAL
A pleading must contain a “short and plain statement of the
claim showing that the pleader is entitled to relief.”
Civ. P. 8(a)(2).
“To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.”
(quoting Twombly, 550 U.S. at 556.)
contained in a complaint.”
A court need not accept legal
threadbare recitals of the elements of a cause of action, do not
suffice to state a claim.
Thus, “a court considering a
motion to dismiss can choose to begin by identifying pleadings
entitled to the assumption of truth.” Id. at 679.
conclusions can provide the framework of a complaint, they must
be supported by factual allegations.”
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.
A court must liberally construe a pro se complaint.
Erickson v. Pardus, 551 U.S. 89, 94 (2007).
Plaintiff alleges the following in his Complaint.
Deprivation of my Due Process and Equal
Protection rights guaranteed to me under the
Fifth Amendment of the Federal Constitution
through racist threats, intimidation and
coercion by these officers named in the
above complaint while acting under color of
state law and outside the bounds of their
authority in a malicious prosecution in
violation of the Fourth Amendment of the
(Compl., ECF No. 1 at 3, ¶IV.)
custody and money damages.
Plaintiff seeks release from
Section 1983 claims
A plaintiff may have a cause of action under 42 U.S.C. §
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.
Thus, to state a claim for relief under § 1983, a plaintiff
must allege, first, the violation of a right secured by the
Constitution or laws of the United States and, second, that the
alleged deprivation was committed or caused by a person acting
under color of state law.
West v. Atkins, 487 U.S. 42, 48
(1988); Piecknick v. Pennsylvania, 36 F.3d 1250, 1255–56 (3d
Municipal officers in their official capacities
Plaintiff sued the defendants, city task force officers,
under § 1983 in their official and individual capacities.
government officials sued in their official capacities can be
promulgated by that body's officers” or if the constitutional
though such a custom has not received formal approval through
Department of Social Services of City of New York, 436 U.S. 658,
690-91 and n. 55 (1978).
defendants were pursuant to a police or custom of Atlantic City
or its government officials.
Therefore, Plaintiff has failed to
a state a Monell claim against Defendants in their official
The claim will be dismissed without prejudice.
violation of the Fourth Amendment against defendants in their
individual capacities, a plaintiff must allege facts showing:
(1) the defendants
(2) the criminal proceeding
(3) the proceeding
(4) the defendants acted maliciously or for
a purpose other than bringing the plaintiff
to justice; and
(5) the plaintiff suffered a deprivation of
liberty consistent with the concept of
DiBella v. Borough of Beachwood, 407 F.3d 599, 601 (3d Cir.
2005) (quoting Estate of Smith v. Marasco, 318 F.3d 497, 521 (3d
Plaintiff failed to allege that the defendants initiated a
criminal proceeding against him without probable cause or that
personally involved in the malicious prosecution.
556 U.S. at 676 (“a plaintiff must plead that each Governmentofficial
actions, has violated the Constitution.”)
Therefore, the Court
will dismiss the malicious prosecution claim without prejudice.
Equal Protection Claim
Because his Complaint arises out of his arrest, the Court
construes Plaintiff’s equal protection claim as one of selective
To establish a selective-enforcement claim,
a plaintiff must demonstrate (1) that he was
treated differently from other similarly
situated individuals, and (2) “that this
‘unjustifiable standard, such as race, or
religion, or some other arbitrary factor,
... or to prevent the exercise of a
Scranton, 411 F.3d 118, 125 (3d Cir.2005)
(quoting Holder v. City of Allentown, 987
F.2d 188, 197 (3d Cir.1993)).
Dique v. New Jersey State Police, 603 F.3d 181, 184 n.5 (3d Cir.
Here, Plaintiff has not described any similarly situated
individuals from whom he was treated differently on the basis of
enforcement claim without prejudice.
Due Process Claim
“The Supreme Court has noted that, ‘[w]here a particular
Amendment provides an explicit textual source of constitutional
that Amendment, not the more generalized notion of ‘substantive
due process,’ must be the guide for analyzing these claims.’”
(quoting Albright v. Oliver, 510 U.S. 266, 273 (1994) (internal
arrest or malicious prosecution ‘cannot be based on substantive
provision of the Bill of Rights’ such as the Fourth Amendment”
Id. (quoting Merkle v. Upper Dublin School Dist., 211 F.3d 782,
792 (3d Cir. 2000)).
Insofar as the Complaint might be construed to raise a
substantive due process claim under the Fourteenth Amendment,
brought as a false arrest or malicious prosecution claim under
the Fourth Amendment.
Plaintiff, however, may have been trying to
assert a claim under the New Jersey Constitution.
Ann. § 10:6–2(c) states that “a person may bring a civil action
under the [NJCRA] in two circumstances: (1) when he's deprived
threats, intimidation, coercion or force.”
See Felicioni v.
Admin. Office of Courts, 404 N.J.Super. 382, 400 (N.J. Super.
Ct. App. Div. 2008).
Although Plaintiff uses the language of
the New Jersey statute, his claim is conclusory because he does
not allege which of his rights was interfered with and what
threats, intimidation or coercion was used against him or by
Plaintiff’s IFP application but dismisses the Complaint without
prejudice for failure to state a claim upon which relief may be
An appropriate order follows.
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
Dated: April 10, 2017
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