FRANKLIN et al v. BOROUGH OF CARTERET POLICE DEPT. et al

Filing 4

OPINION. Signed by Judge Jose L. Linares on 11/15/10. (jd, )

-CCC FRANKLIN et al v. BOROUGH OF CARTERET POLICE DEPT. et al

Doc. 4

NOT FOR PUBLICATION

U N I T E D STATES DISTRICT COURT D I S T R I C T OF NEW JERSEY

________________________________ : : : Plaintiffs, : : v. : : B O R O U G H OF CARTERET POLICE : D E P ' T , et al., : : Defendants. : ________________________________ : A N D R E A FRANKLIN, LEROY MOORE, APPEARANCES: L e r o y Moore, Pro Se 67056 M i d d l e s e x County Adult Correctional Center R o u t e 130 N o r t h Brunswick, NJ 08903 L I N A R E S , District Judge P l a i n t i f f , Leroy Moore, currently confined at the Middlesex C o u n t y Adult Correctional Center ("MCACC"), North Brunswick, New J e r s e y , seeks to bring this action alleging violations of his c o n s t i t u t i o n a l rights in forma pauperis, without prepayment of f e e s pursuant to 28 U.S.C. § 1915. Based on Plaintiff's affidavit

C i v i l Action No. 10-1467 (JLL)

OPINION

o f indigence the Court will grant his application to proceed in f o r m a pauperis pursuant to 28 U.S.C. § 1915(a) and order the Clerk o f the Court to file the complaint.

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At this time, the Court must review the complaint pursuant to 2 8 U.S.C. §§ 1915(e)(2) and 1915A to determine whether it should b e dismissed as frivolous or malicious, for failure to state a c l a i m upon which relief may be granted, or because it seeks m o n e t a r y relief from a defendant who is immune from such relief. For the following reasons, Plaintiff's complaint will be d i s m i s s e d , without prejudice. 1 BACKGROUND P l a i n t i f f states that on August 28, 2009, defendant Carteret P o l i c e Department officers unlawfully entered the apartment of Ms. F r a n k l i n , and illegally searched the residence looking for drugs. At the time, Ms. Franklin lived there with her minor daughter, "AM". Defendant officers knocked down Ms. Franklin's door and

t h e n forced her to the ground when she asked to see a copy of the s e a r c h warrant. ground. AM, a six year old girl, was also forced to the

The police officers had a K-9 dog, who was barking and Both Plaintiff and Ms. Franklin were arrested

s c a r i n g the girl.

b y the officers on municipal warrants. A t police headquarters, Ms. Franklin continued to demand to s e e the search warrant. Plaintiff was shown the search warrant

This Court notes that Plaintiff seeks to bring the c o m p l a i n t on behalf of the mother of his children, co-plaintiff A n d r e a Franklin, as well as his minor daughter, "AM". He refers to h i m s e l f throughout the complaint as "movant," and to his partner, M s . Franklin, and AM as "plaintiff." For purposes of this Opinion, M r . Moore will be referred to as Plaintiff, since he is the filing party.

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and notes its flaws in the complaint.

Plaintiff also states that

t h e police told him that they didn't "want to charge [Ms. F r a n k l i n ] with what [they] found so [they] will charge [Plaintiff]." Defendants told Plaintiff that they had him and Ms.

F r a n k l i n under a narcotics investigation for three months. Plaintiff states that the investigation was really for him, not M s . Franklin, and that officers did not even know Ms. Franklin's n a m e until they retrieved her lease from the apartment. Plaintiff

s t a t e s that Ms. Franklin and AM "are suing each defendant for t h e i r actions individually and in their official capacity." P l a i n t i f f asserts that the defendants unlawfully entered and s e a r c h e d Ms. Franklin's residence without Ms. Franklin's consent o r a valid search warrant; used excessive force on Ms. Franklin a n d her daughter, AM, prior to and during the arrest; deprived Ms. F r a n k l i n and AM of free speech; took personal items from the h o u s e ; allowed the police dog to bark and scare AM; and used e x c e s s i v e force by choking him by his throat stating that he had s w a l l o w e d something. P l a i n t i f f asks for monetary and other relief. DISCUSSION A. S T A N D A R D S FOR A SUA SPONTE DISMISSAL T h e Prison Litigation Reform Act ("PLRA"), Pub. L. No. 1 0 4 - 1 3 4 , §§ 801-810, 110 Stat. 1321-66 to 1321-77 (April 26, 1 9 9 6 ) , requires a district court to review a complaint in a civil

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action in which a prisoner is proceeding in forma pauperis or s e e k s redress against a governmental employee or entity. The

C o u r t is required to identify cognizable claims and to sua sponte d i s m i s s any claim that is frivolous, malicious, fails to state a c l a i m upon which relief may be granted, or seeks monetary relief f r o m a defendant who is immune from such relief. 1 9 1 5 ( e ) ( 2 ) ( B ) and 1915A. See 28 U.S.C. §§

This action is subject to sua sponte

s c r e e n i n g for dismissal under both 28 U.S.C. §§ 1915(e)(2)(B) and 1 9 1 5 A , because Plaintiff is a prisoner and is proceeding as an indigent. I n determining the sufficiency of a pro se complaint, the C o u r t must be mindful to construe it liberally in favor of the plaintiff. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007)

( f o l l o w i n g Estelle v. Gamble, 429 U.S. 97, 106 (1976) and Haines v . Kerner, 404 U.S. 519, 520-21 (1972)). v . Day, 969 F.2d 39, 42 (3d Cir. 1992). See also United States The Court must "accept as

t r u e all of the allegations in the complaint and all reasonable i n f e r e n c e s that can be drawn therefrom, and view them in the light m o s t favorable to the plaintiff." Morse v. Lower Merion School The Court need not,

D i s t . , 132 F.3d 902, 906 (3d Cir. 1997).

h o w e v e r , credit a pro se plaintiff's "bald assertions" or "legal conclusions." Id.

R e c e n t l y , the Supreme Court refined this standard for summary d i s m i s s a l of a complaint that fails to state a claim in Ashcroft

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v. Iqbal, 129 S. Ct. 1937 (2009).

The Court examined Rule 8(a)(2)

o f the Federal Rules of Civil Procedure which provides that a c o m p l a i n t must contain "a short and plain statement of the claim s h o w i n g that the pleader is entitled to relief." 8(a)(2). Fed. R. Civ. P.

Citing its recent opinion in Bell Atlantic Corp. v.

T w o m b l y , 550 U.S. 544 (2007), for the proposition that "[a] p l e a d i n g that offers `labels and conclusions' or `a formulaic r e c i t a t i o n of the elements of a cause of action will not do,'" I q b a l , 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 555), the S u p r e m e Court held that, to prevent a summary dismissal, a civil c o m p l a i n t must now allege "sufficient factual matter" to show that t h e claim is facially plausible. This then "allows the court to

d r a w the reasonable inference that the defendant is liable for the m i s c o n d u c t alleged." See id. at 1948. The Supreme Court's ruling

i n Iqbal emphasizes that a plaintiff must demonstrate that the a l l e g a t i o n s of his complaint are plausible. See id. at 1949-50;

s e e also Twombly, 505 U.S. at 555, & n.3; Fowler v. UPMC S h a d y s i d e , 578 F.3d 203, 2009 WL 2501662, *4 (3d Cir., Aug. 18, 2009). B. S E C T I O N 1983 ACTIONS A plaintiff may have a cause of action under 42 U.S.C. § 1983 f o r certain violations of his constitutional rights. p r o v i d e s in relevant part: E v e r y person who, under color of any statute, o r d i n a n c e , regulation, custom, or usage, of any State Section 1983

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or Territory ... subjects, or causes to be subjected, a n y citizen of the United States or other person within t h e jurisdiction thereof to the deprivation of any r i g h t s , privileges, or immunities secured by the C o n s t i t u t i o n and laws, shall be liable to the party i n j u r e d in an action at law, suit in equity, or other p r o p e r proceeding for redress....

T h u s , to state a claim for relief under § 1983, a plaintiff must a l l e g e , first, the violation of a right secured by the C o n s t i t u t i o n or laws of the United States and, second, that the a l l e g e d deprivation was committed or caused by a person acting u n d e r color of state law. See West v. Atkins, 487 U.S. 42, 48

( 1 9 8 8 ) ; Piecknick v. Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir. 1994). C. STANDING P l a i n t i f f seeks to sue on behalf of the mother of his c h i l d r e n and his daughter. As a preliminary matter, to the extent

t h a t Plaintiff Moore seeks to bring claims on behalf of Ms. F r a n k l i n the claims must be dismissed because Plaintiff lacks standing. I n order to have standing in an Article III court, a p l a i n t i f f must show that he: (1) personally suffered an actual or t h r e a t e n e d injury; (2) the injury is fairly traceable to the d e f e n d a n t ' s illegal conduct; and (3) the injury is likely to be r e d r e s s e d by a favorable decision. See Valley Forge Christian

C o l l . v. Ams. United for Separation of Church & State Inc., 454 U . S . 464, 472 (1982); Lujan v. Defenders of Wildlife, 504 U.S.

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555, 560-61 (1992).

In addition to these constitutional standing

r e q u i r e m e n t s , courts also recognize certain judicially-created p r u d e n t i a l principles that further limit the Court's adjudicatory a b i l i t y .2 See Valley Forge Christian Coll., 454 U.S. at 474

( " [ b ] e y o n d the constitutional requirements, the federal judiciary h a s also adhered to a set of prudential principles that bear on t h e question of standing"); see also 4 Admin. L. & Prac. § 13:14 ( 2 d ed.) ("[p]rudential considerations are limitations on the c o u r t s ' power that the judiciary itself has devised ..."). N e v e r t h e l e s s , even under prudential principles, a plaintiff can o n l y assert his own rights and interests; he may not assert those o f a third party. See Warth v. Seldin, 422 U.S. 490, 499 (1975)

( p r u d e n t i a l standing requires plaintiff to assert "his own legal r i g h t s and interests"); Gladstone Realtors v. Vill. of Bellwood, 4 4 1 U.S. 91, 100 (1979) (prudential standing still requires p l a i n t i f f to "assert his own legal interests rather than those of t h i r d parties"); see also cf. O'Malley v. Brierley, 477 F.2d 785, 7 8 9 (3d Cir. 1973) (a plaintiff "may only assert his own c o n s t i t u t i o n a l rights or immunities ... one cannot sue for the

Prudential principles include "several judicially s e l f - i m p o s e d limits on the exercise of federal jurisdiction, such a s the general prohibition on a litigant's raising another p e r s o n ' s legal rights, the rule barring adjudication of g e n e r a l i z e d grievances more appropriately addressed in the r e p r e s e n t a t i v e branches, and the requirement that a plaintiff's c o m p l a i n t fall within the zone of interests protected by the law i n v o k e d . " Allen v. Wright, 468 U.S. 737, 751 (1984).

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deprivation of another's rights") (internal citations and q u o t a t i o n s omitted). N e v e r t h e l e s s , the rule that plaintiffs must assert their own r i g h t s and interests in order to have standing is not absolute. See Kowalski v. Tesmer, 543 U.S. 125, 130 (2004) ("we have not t r e a t e d [the above] rule as absolute. A plaintiff may have

s t a n d i n g to assert the rights of third parties if (1) they have a " ` c l o s e ' relationship with the person who possesses the right" and ( 2 ) there is a "`hindrance' to the possessor's ability to protect h i s own interests." (quoting Powers, 499 U.S. at 411)). However,

t h i r d party standing is not looked upon "favorably." Id.; Miller v . Albright, 523 U.S. 420, 422 (1998) (O'Conner, J. & Kennedy, J., c o n c u r r i n g ) (there is a "presumption against third party standing"). A parent/child relationship would seem to be a

s u f f i c i e n t l y close relationship for the purposes of third party standing. See Lewis v. Thompson, 252 F.3d 567, 585 (2d Cir. 2001)

( " [ a ] s for prudential standing, the relationship between a parent a n d child is obviously close"). Injuries to a parent resulting from violations of their c h i l d ' s constitutional rights are not sufficiently personal for p u r p o s e s of the parent's individual standing. See Hannah v. City

o f Dover, 152 F. App'x 114, 116-17 (3d Cir. 2005) (parents could n o t bring Fourth Amendment or Equal Protection claims via § 1983 f o r son's injuries because the parent "had not been the recipient"

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of the injury); Denman v. Wertz, 372 F.2d 135 (3d Cir. 1967) ( a f f i r m i n g dismissal of father's civil rights claim when police h a d detained and returned minor children to their mother's custody b e c a u s e plaintiff had not established he himself was deprived of r i g h t s ) ; C.H. v. Olivia, 990 F. Supp. 341, 349 (D.N.J. 1997), a f f ' d in part, vacated in part on other grounds, 226 F.3d 198 (3d C i r . 2000) (mother had no individual standing to sue for son's c o n s t i t u t i o n a l injuries). M o r e o v e r , other courts outside this circuit have held that p a r e n t s do not have standing to sue in their individual capacity f o r incidental injuries. See Tyree v. Smith, 289 F. Supp. 174,

1 7 5 (E.D. Tenn. 1968) ("[a] father has no standing to sue for the d e p r i v a t i o n of civil rights of his children"); E.W. v. Wake County B d . of Educ., No. 09-0918, 2010 WL 1286215, at * 15 (E.D.N.C. F e b r u a r y 16, 2010) (parents did not have standing to sue i n d i v i d u a l l y because they did not suffer a direct injury) (citing P i t t s l e y v. Warish, 927 F.2d 3, 8-9 (1st Cir. 1991) (after police a l l e g e d l y mistreated children while arresting their parents, court h e l d "only the person towards whom the state action was directed, a n d not those incidentally affected, may maintain a § 1983 claim")). Based on the foregoing, Plaintiff does not have standing to s u e on behalf of Ms. Franklin, as he cannot assert third party s t a n d i n g for her. As noted, a plaintiff, such as Mr. Moore, may

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have standing to assert the rights of third parties if (1) they h a v e a "`close' relationship with the person who possesses the r i g h t " and (2) there is a "`hindrance' to the possessor's ability t o protect his own interests." P o w e r s , 499 U.S. at 411). Kowalski, 543 U.S. at 130 (quoting

In this case, Ms. Franklin is an adult

w h o does not appear to have a "hindrance" in her ability to p r o t e c t her own interests. D. E X C E S S I V E FORCE CLAIMS A s to AM, Plaintiff does have standing to assert her rights a s a third party, as they are in a parent/child relationship, and A M , as a six-year-old child, possesses a hindrance, her age, to p r o t e c t her own interests. However, Plaintiff has not alleged Although Plaintiff

f a c t s asserting any violation of AM's rights.

a s s e r t s that the defendants used excessive force on AM, the facts h e alleges state only that they scared her with the use of the d o g , and that she was "forced to the ground." A Fourth Amendment excessive force claim calls for an e v a l u a t i o n of whether a police officer's actions are objectively r e a s o n a b l e in light of the facts and circumstances confronting him. See Graham v. Conner, 490 U.S. 386, 397 (1989). "The

` r e a s o n a b l e n e s s ' of a particular use of force must be judged from t h e perspective of a reasonable officer on the scene, rather than w i t h the 20/20 vision of hindsight." Id. While the question of

r e a s o n a b l e n e s s is objective, the court may consider the severity

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of the crime at issue, whether the suspect poses an immediate t h r e a t to the safety of the officers or others, and whether the s u s p e c t is actively resisting arrest or attempting to evade arrest b y flight. See id. at 396. Furthermore, appropriate attention

s h o u l d be given "to the circumstances of the police action, which a r e often `tense, uncertain, and rapidly evolving.'" Groman v.

T o w n s h i p of Manalapan, 47 F.3d 628, 634 (3d Cir. 1995) (quoting G r a h a m , 490 U.S. at 397). H e r e , liberally construing the complaint, Plaintiff contends t h a t the presence of the police dog barking near his daughter e x c e e d e d the bounds of what can be considered reasonable force. However, according to the complaint, it appears that the dog was n o t released, and there is no evidence that the dog bit scratched, o r harmed anyone involved in any way. I n a similar case, the District Court of Colorado held that, t h e mere presence of a police dog, while intimidating, does not a m o u n t to excessive force. 8 0 0 , 803 (D. Colo. 1989). See Navratil v. Parker, 726 F. Supp. Just like the plaintiff in that case,

t h e plaintiff here does not assert that the police dog was used as a n y more than an instrument of intimidation. Therefore, as pled, Plaintiff has not asserted sufficient f a c t s , in light of Iqbal, to proceed past sua sponte screening w i t h the third-party excessive force claim on behalf of his

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daughter.

Plaintiff will be permitted to amend his complaint to

a d d r e s s these deficiencies, in accordance with the attached order. T h e only claim asserted by Plaintiff that is personal to him i n this complaint is his claim of the use of excessive force a g a i n s t him. Specifically, Plaintiff states that defendant

S t e n e t e l l a (who Plaintiff refers to as defendant "#8" in his c o m p l a i n t ) , "used excessive force choking [him] by his throat s t a t i n g he swallowed something." 3 A s noted, a claim of excessive force by law enforcement o f f i c i a l s in the course of an arrest, investigatory stop, or other s e i z u r e of a free citizen is analyzed under the Fourth Amendment's r e a s o n a b l e n e s s standard. See Graham v. Connor, 490 U.S. 386, 395

( 1 9 8 9 ) ; Nelson v. Jashurek, 109 F.3d 142, 145 (3d Cir. 1997);

If Plaintiff is attempting to assert a personal claim of a n illegal search and seizure, this Court finds that it must a b s t a i n from such a ruling. It is not generally the role of the f e d e r a l courts to interfere in pending state judicial proceedings. A federal court must abstain from addressing requests for i n j u n c t i v e relief against state court proceedings so long as the c o n s t i t u t i o n a l issues involved may be addressed adequately in the c o u r s e of the state proceedings. See Younger v. Harris, 401 U.S. 3 7 (1971) (addressing abstention from state criminal proceedings). In this case, it appears that Plaintiff is a pretrial detainee, a n d there are ongoing state proceedings in which he may assert his i l l e g a l search and seizure claim. F u r t h e r m o r e , if Plaintiff is not a pretrial detainee, but r a t h e r a convicted prisoner, relief is nonetheless barred by Heck v . Humphrey, 512 U.S. 477, 487 (1994)(holding that "the district c o u r t must consider whether a judgment in favor of the plaintiff w o u l d necessarily imply the invalidity of his conviction or s e n t e n c e ; if it would, the complaint must be dismissed unless the p l a i n t i f f can demonstrate that the conviction or sentence has a l r e a d y been invalidated.")

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United States v. Johnstone, 107 F.3d 200, 204 (3d Cir. 1997). r e a s o n a b l e n e s s inquiry is an objective one: "the question is

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w h e t h e r the officers' actions are 'objectively reasonable' in l i g h t of the facts and circumstances confronting them, without r e g a r d to their underlying intent or motivation." Graham, 490

U . S . at 397; see also Mosley v. Wilson, 102 F.3d 85, 94 (3d Cir. 1 9 9 6 ) ; Baker v. Monroe Tp., 50 F.3d 1186, 1193 (3d Cir. 1995). It

" r e q u i r e s careful attention to the facts and circumstances of each p a r t i c u l a r case, including the severity of the crime at issue, w h e t h e r the suspect poses an immediate threat to the safety of the o f f i c e r s or others, and whether he is actively resisting arrest or a t t e m p t i n g to evade arrest by flight." Graham, 490 U.S. at 396.

I n this case, Plaintiff admits that defendant Stenetella t h o u g h t that Plaintiff had swallowed something, which was the m o t i v a t i o n behind the alleged choking. Plaintiff does not state

t h a t he was injured or harmed, or even that he received de minimis injury. As such, as pled, Plaintiff has not alleged a claim of

e x c e s s i v e force, and his complaint must be dismissed, without prejudice.4

Although Plaintiff asserts in his statement of claims that A M and Ms. Franklins right to free speech was violated, and that p e r s o n a l items were taken from the house, Plaintiff does not a s s e r t enough facts to show that these claims are plausible. He s i m p l y makes these conclusory statements. However, Plaintiff may a d d r e s s these claims as to his daughter in his proposed amended c o m p l a i n t if he so wishes.

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CONCLUSION Despite the above-explained shortcomings in Plaintiff's c o m p l a i n t , this Court will allow Plaintiff to file a motion to a m e n d his complaint, attaching to any such motion a proposed a m e n d e d complaint, which addresses the deficiencies as outlined a b o v e , on behalf of himself and/or his daughter. Specifically,

P l a i n t i f f must adhere to the guidance by the Court of Appeals for t h e Third Circuit, which has explained, "the pleading standard can b e summed up thus: `stating ... a claim requires a complaint with e n o u g h factual matter (taken as true) to suggest' the required element. This `does not impose a probability requirement at the

p l e a d i n g stage[ ]' but . . . `calls for enough facts to raise a r e a s o n a b l e expectation that discovery will reveal evidence of' the n e c e s s a r y element." c i t a t i o n s omitted). An appropriate order accompanies this opinion. Phillips, 515 F.3d at 230-34 (internal

/ s / Jose L. Linares JOSE L. LINARES U n i t e d States District Judge

D a t e d : Nov. 15, 2010

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