ROYAL v. RUTHERFORD POLICE DEPT. et al
Filing
6
OPINION. Signed by Judge Claire C. Cecchi on 11/17/11. (dc, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
_______________________________
:
:
:
Plaintiff,
:
:
v.
:
:
RUTHERFORD POLICE DEPT. et al.,:
:
Defendants.
:
_______________________________:
HOZAY A. ROYAL,
Hon. Claire C. Cecchi
Civil Action No. 11-4862 (CCC)
O P I N I O N
CECCHI, District Judge:
Plaintiff Hozay A. Royal (“Plaintiff”), an inmate confined at
the Montgomery County Correctional Facility, Morris Township, New
Jersey, seeks to bring this action in forma pauperis, alleging
violations of his constitutional rights, pursuant to 42 U.S.C. §
1983.
Plaintiff’s civil complaint (“Complaint”) arrived unaccompanied
by the applicable filing fee of $350 or by Plaintiff’s in forma
pauperis (“IFP”) application.
See Docket Entry No. 1.
However, it
came together with his request for an IFP application, see id.,
which was duly forwarded to Plaintiff by the Clerk.
Entry No. 2.
See Docket
On September 19, 2011, the Clerk received a letter
from Plaintiff; the letter contained a duly executed affidavit of
poverty (“Affidavit”) and copies of the written exchanges between
Plaintiff
and
his
current
prison
Page -1-
officials;
these
exchanges
indicated that: (a) Plaintiff made inquiries as to the prison
officials’ compliance with his prior request to send to the New
Jersey Treasury Department the sum of $300; and (b) in response to
Plaintiff’s request for a certified copy of his six-month prison
account statement, Plaintiff was directed to contact the officials
of Plaintiff’s prior place of confinement, which was located in
Bergen County.
See Docket Entry No. 3.
Although Plaintiff’s request for the mailing of $300 from his
prison account causes this Court a certain concern, since such
reference might be indicative of Plaintiff’s ability to access an
amount allowing prepayment of his $350 filing fee, see Adkins v. E.
I. DuPont De Nemours & Co., Inc., 335 U.S. 331, 339 (1948), the
Court finds it warranted to accept the statement from Plaintiff’s
current prison officials (showing that Plaintiff’s current prison
account has no funds) in lieu of Plaintiff’s certified prison
account statement. Therefore, in light of Plaintiff’s Affidavit and
the absence of three qualifying dismissals within 28 U.S.C. §
1915(g), the Court will grant Plaintiff's application to proceed in
forma pauperis, pursuant to 28 U.S.C. § 1915(a), and will order the
Clerk to file the Complaint.
At this time, the Court must review the Complaint 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.
Page -2-
I.
BACKGROUND
Plaintiff’s allegations in this matter read as follows:
On July 20, 2010, at approximately 3:00 p.m. - 3:30 p.m.
in Rutherford, New Jersey, in the back of Lanni’s
Appliance store; Plaintiff was preparing to receive two
(2) televisions. However, before Plaintiff received the
televisions he was seized after he ran away, after which,
he thought he was being attacked by unidentified
Rutherford Police Officers. All of named Defendants in
the caption of this case, with the exception of Lt.
Feliciano,
seized Plaintiff’s person without probable
cause; seized and searched his vehicle and its contents
without a warrant, nor probable cause. Lt. Feliciano,
being the ranking police officer on the scene overseen
the unlawful actions of all named Defendants actions.
Moreover, he announced to the subordinate Defendants to
initiate the unconstitutional seizure of Plaintiff’s
person, and unconstitutional seizure and search of his
vehicle and contents.
Docket Entry No. 1, at 5 (capitalization and punctuation, and lack
thereof, in original).
The Complaint concludes with Plaintiff’s request for relief in
the form of $1,000,000.00 in monetary damages from each Defendant,
see id. at 6, and names the following entities and persons as
Defendants in this matter: (a) Rutherford Police Department; (b) Lt.
Patrick Feliciano; (c) Sgt. Anthony Nunziato; (d) Officer Sean
Farrell; (e) Officer Michael Garner; and (f) Officer Thomas Lewis.
See id. at 1.
II.
STANDARD OF REVIEW
In determining the sufficiency of a complaint, the Court must
be mindful to construe the facts stated in the complaint liberally
in favor of the plaintiff.
See Erickson v. Pardus, 551 U.S. 89
Page -3-
(2007); Haines v. Kerner, 404 U.S. 519 (1972); United States v. Day,
969 F.2d 39, 42 (3d Cir. 1992). Indeed, it is long established that
a court should “accept as true all of the [factual] allegations in
the
complaint
therefrom, and
plaintiff.”
and
view
reasonable
inferences
that
can
be
drawn
them in the light most favorable to the
Morse v. Lower Merion School Dist., 132 F.3d 902, 906
(3d Cir. 1997).
However, while a court will accept well-pled
allegations as true, it will not accept bald assertions, unsupported
conclusions, unwarranted inferences, or sweeping legal conclusions
cast in the form of factual allegations.
See id.
Addressing the clarifications as to the litigant's pleading
requirement stated in the United States Supreme Court in Bell Atl.
Corp. v. Twombly, 550 U.S. 544 (2007), the Court of Appeals for the
Third Circuit provided the courts in this Circuit with detailed and
careful guidance as to what kind of allegations qualify as pleadings
sufficient to pass muster under the Rule 8 standard.
See Phillips
v. County of Allegheny, 515 F.3d 224, 230-34 (3d Cir. 2008).
Specifically, the Court of Appeals observed as follows:
“While a complaint . . . does not need detailed factual
allegations, a plaintiff's obligation [is] to provide the
'grounds' of his 'entitle[ment] to relief' [by stating]
more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action . . . .”
Twombly, 127 S. Ct. at 1964-65 . . . Rule 8 “requires a
'showing,'
rather
than
a
blanket
assertion, of
entitlement to relief.” Id. at 1965 n.3. . . . “[T]he
threshold requirement of Rule 8(a)(2) [is] that the
'plain statement [must] possess enough heft to 'sho[w]
that the pleader is entitled to relief.'” Id. at 1966.
[Hence] “factual allegations must be enough to raise a
Page -4-
right to relief above the speculative level.” Id. at
1965 & n.3. . . . [Indeed, it is not] sufficient to
allege mere elements of a cause of action; instead “a
complaint must allege facts suggestive of the proscribed
conduct.” Id.
Id. at 230-34 (original brackets removed).
This pleading standard was further refined by the United States
Supreme Court in its recent decision Ashcroft v. Iqbal, 129 S. Ct.
1937 (2009):
[In any civil action, t]he pleading standard . . .
demands
more
than
an
unadorned
the-defendantunlawfully-harmed-me accusation. [Twombly, 550 U.S.] at
555 . . . .
A pleading that offers “labels and
conclusions” or “a formulaic recitation of the elements
of a cause of action will not do.” [Id.] at 555. Nor
does a complaint suffice if it tenders “naked
assertion[s]” devoid of “further factual enhancement.”
Id. at 557. . . . A claim has facial plausibility [only]
when the plaintiff pleads factual content . . . . Id. at
556. [Moreover,] the plausibility standard . . . asks for
more than a sheer possibility that a defendant has acted
unlawfully. Id. [Indeed, even w]here a complaint pleads
facts that are “merely consistent with” a defendant's
liability, [the so-alleging complaint still] “stops short
of [showing] plausibility of 'entitlement to relief.'”
Id. at 557 (brackets omitted). [A fortiori,] the tenet
that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal
conclusions [or to t]hreadbare recitals of the elements
of a cause of action, supported by mere conclusory
statements [,i.e., by] legal conclusion[s] couched as a
factual allegation [e.g.,] the plaintiffs' assertion of
an unlawful agreement [or] that [defendants] adopted a
policy “'because of,' not merely 'in spite of,' its
adverse effects upon an identifiable group.” . . . . [W]e
do not reject these bald allegations on the ground that
they are unrealistic or nonsensical. . . . It is the
conclusory nature of [these] allegations, rather than
their extravagantly fanciful nature, that disentitles
them to the presumption of truth. . . . [Finally,] the
question [of sufficiency of] pleadings does not turn on
the controls placed on the discovery process. Twombly,
550 U.S. at 559 . . . . [The plaintiff] is not entitled
Page -5-
to discovery [where the complaint alleges any of the
elements] “generally,” [i.e., as] a conclusory allegation
[since] Rule 8 does not [allow] pleading the bare
elements of [the] cause of action [and] affix[ing] the
label “general allegation” [in hope to develop facts
through discovery].
Iqbal, 129 S. Ct. at 1949-54.
III. CLAIMS AGAINST THE POLICE DEPARTMENT
Here, Plaintiff named, among Defendants in this action, the
Rutherford
Police
Department.
However,
this
entity
is
not
cognizable as a “person” subject to suit under 42 U.S.C. § 1983.
See Harper v. Franklin & Marshall College, 2011 U.S. Dist. LEXIS
34298, at *11-12 (E.D. Pa. Mar. 30, 2011)(“A police department is
a sub-unit of the city government and is merely a vehicle through
which the city fulfills its policing functions, and [is] therefore
not [a] suable entit[y] in Section 1983 actions.”) (citing Shilling
v. Brush, 2005 U.S. Dist. LEXIS 33912 (M.D. Pa. Aug. 26, 2005), and
Stokes v. The Chester County Sheriff's Dept, 1994 U.S. Dist. LEXIS
16895 (E.D. Pa. 1994), and relying on Golya v. Golya, 2007 U.S.
Dist. LEXIS 58093 (M.D. Pa. Aug. 9, 2007)); Jones v. Vineland Police
Dep't, 2011 U.S. Dist. LEXIS 19671, at *9 (D.N.J. Feb. 28, 2011)
(same, relying on Monell v. Dept. of Social Services of City of New
York, 436 U.S. 658, 688-90 (1978), and Petaway v. City of New Haven
Police Dept., 541 F. Supp. 2d 504, 510 (D. Conn. 2008); PBA Local
No. 38 v. Woodbridge Police Dept., 832 F. Supp. 808, 825-26 (D.N.J.
1993), and quoting Monell, 436 U.S. at 694, for the observation that
“[e]ven if this Court were to construe this defendant to be the
Page -6-
municipal entity, the City of Vineland, the claim would fail. ‘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 act may fairly be said to
represent official policy, inflicts the injury that the government
as an entity is responsible under § 1983’”) (footnote and original
brackets removed); accord Grabow v. Southern State Correctional
Facility, 726 F. Supp. 537, 538-39 (D.N.J. 1989) (“In Will v.
Michigan Department of State Police, 491 U.S. 58 (1989), the Supreme
Court made explicit what had been implicit in its earlier decisions,
namely that a state is not a person within the meaning of § 1983”).
Therefore,
Plaintiff’s
claims
against
this
Defendant
will
be
dismissed with prejudice.
IV.
CLAIMS AGAINST POLICE OFFICERS
Here, Plaintiff alleges that he was arrested (and his car was
searched) without probable cause.
In order to determine whether
Plaintiff’s claims under § 1983 are viable, the Court must "identify
the exact contours of the underlying right said to have been
violated."
(1998).
County of Sacramento v. Lewis, 523 U.S. 833, 841, n. 5
Here, Plaintiff’s claims arise under the Fourth Amendment,
which provides:
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause, supported
Page -7-
by Oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be
seized.
U.S. Const., Amend. IV.
The provisions of the Fourth Amendment are applicable to the
States by virtue of the Fourteenth Amendment's Due Process Clause.
See Cady v. Dombrowski, 413 U.S. 433, 440 (1973).
The Fourth
Amendment permits an arrest to be made only on the basis of
"probable cause."
Papachristou v. City of Jacksonville, 405 U.S.
156, 169 (1972).
Probable cause "requires more than mere suspicion[.]"
Orsatti[ v. New Jersey State Police], 71 F.3d [480,] 482
[ (3d Cir. 1995)].
However, it does not "require the
same type of specific evidence of each element of the
offense as would be needed to support a conviction."
Adams v. Williams, 407 U.S. 143, 149 (1972).
Rather,
"probable cause to arrest exists when the facts and
circumstances within the arresting officer's knowledge
are sufficient in themselves to warrant a reasonable
person to believe that an offense has been or is being
committed by the person to be arrested."
Orsatti, 71
F.3d at 483; see also Wilson v. Russo, 212 F.3d 781, 789
(3d Cir.2000) ("Probable cause exists if there is a 'fair
probability' that the person committed the crime at
issue." (citation omitted).). "Probable cause need only
exist as to [one of the] offense[s] that could be charged
under the circumstances." Barna v. City of Perth Amboy,
42 F.3d 809, 819 (3d Cir.1994).
In analyzing whether
probable cause existed for an arrest, we must take a
"totality-of-the-circumstances approach."
Illinois v.
Gates, 462 U.S. 213, 230 (1983).
Reedy v. Evanson, 615 F. 3d 197, 211 (3d Cir. 2010).
Thus, in determining whether probable cause existed for an
arrest, the court applies an objective standard based on "'the facts
available to the officers at the moment of arrest.'" Barna, 42 F.3d
Page -8-
at 819 (quoting Beck v. Ohio, 379 U.S. 89, 96 (1964)); see also
Edwards v. City of Phila., 860 F.2d 568, 571 n. 2 (3d Cir. 1988)).
Moreover, "[e]vidence that may prove insufficient to establish guilt
at trial may still be sufficient to find the arrest occurred within
the bounds of the law."
Id. (citing Henry v. United States, 361
U.S. 98, 102 (1959)); see also Virginia v. Moore, 553 U.S. 164, 171
(2008) ("[w]hen an officer has probable cause to believe a person
committed even a minor crime . . . the balancing of private and
public
interests
is
not
in
constitutionally reasonable").
doubt
[and
t]he
arrest
is
"To find that there was an unlawful
arrest in violation of the Fourth Amendment, [it needs to be shown]
that, under the facts and circumstances within [the officer's]
knowledge, a reasonable officer could not have believed that an
offense had been or was being committed by the person to be
arrested."1
Mosley v. Wilson, 102 F.3d 85, 94-95 (3d Cir. 1996);
accord Revell v. Port Authority of New York, New Jersey, 598 F. 3d
128, 137 n.16 (3d Cir. 2010). Moreover, "[p]robable cause [does not
require] a showing that the officer's belief is more likely true
than false." Hughes v. Meyer, 880 F. 2d 967, 969 (7th Cir. 1989).
An arrest is deemed constitutional where a reasonable officer could
have believed that
a
criminal offense had been or was being
1
The Fourth Amendment does not require the issuance of an
arrest warrant prior to arrest (or imprisonment pursuant to that
arrest). Cf. Albright v. Oliver, 510 U.S. 266, 274-75 (1994).
Page -9-
committed.2
See Mosley, 102 F.3d at 94-95.
Here, Plaintiff’s Complaint paints a picture strongly suggesting
that a reasonable officer would have believed that an offense had been
or was being committed by Plaintiff: at no point did Plaintiff assert
that the officers could have observed him legitimately purchasing the
televisions at issue.
In fact, no statement in the Complaint
suggests, even vaguely, that he purchased the televisions at all or
that he was picking up his own televisions after a repair, or that he
was
legitimately
employed
by
the
store3
and
was
picking
2
the
The Fourth Amendment protects against unreasonable
searches as well as unreasonable seizures. An officer must have
probable cause to perform a lawful warrantless search of a car.
See California v. Acevedo, 500 U.S. 565, 569-70 (1991). Probable
cause to conduct a search exists "where the known facts and
circumstances are sufficient to warrant a man of reasonable
prudence in the belief that contraband or evidence of a crime
will be found." Ornelas v. United States, 517 U.S. 690, 696
(1996) (citing Brinegar v. United States, 338 U.S. 160, 175-76
(1949), and Illinois v. Gates, 462 U.S. 213, 238 (1983)). The
Supreme Court has held that several sets of circumstances in
which police have probable cause that a vehicle contains evidence
of a crime are lawful exceptions to the warrant requirement,
including exigency that the vehicle will be moved, see California
v. Carney, 471 U.S. 386, 390 (1985) (citations omitted), and
search "incident to a recent occupant's arrest only if the
arrestee is within reaching distance of the passenger compartment
at the time of the search or it is reasonable to believe the
vehicle contains evidence of the offense of arrest." Arizona v.
Gant, 129 S. Ct. 1710 (2009). Here, the circumstances asserted
by Plaintiff: (a) indicate that his car, if not searched, was
likely to be moved: and, in addition (b) suggests that the
vehicle was searched in connection with Plaintiff’s arrest and on
the grounds of Plaintiff’s activities observed by police.
3
Plaintiff’s Affidavit indicates that, at the time of the
incident at issue, Plaintiff was “unemployed” and recently
released from his prior incarceration. See Docket Entry No. 3,
at 4.
Page -10-
televisions up in order to make a delivery to a customer.4
Entry No. 1.
See Docket
Moreover, Plaintiff does not assert that the officers
could have observed any interactions between him and the store owners
indicative of legitimacy of Plaintiff’s actions; indeed, he does not
claim that he ever entered the store or that he was in front of the
store, where pedestrians, the store owners or the police could observe
his legitimate actions.
See id.
Rather, Plaintiff asserts that he
situated himself at “the back” of the store and was merely “preparing
to receive two(2) televisions.” He had his vehicle nearby for the
purposes of this unelaborated-upon “receivership.”
Id. at 5.
Furthermore, Plaintiff states that – when he was about to execute this
mysterious “receivership” – he saw police officers approaching and,
for the reasons unspecified in the Complaint, he elected to abandon
his “receivership”
efforts and tried to run away.
See id.
Simply
put, Plaintiff’s Complaint paints a picture, which – being observed
by a reasonable officer – would have led that officer to believe that
Plaintiff was involved (or was about to get involved) in criminal
activity.5 Therefore, the Complaint, as drafted, does allege probable
4
The Court takes note of “Lanni Appliance Center” (“Lanni
Appliance”) located at 116 Park Avenue, Rutherford, New Jersey
07070. See <>.
5
The fact patterns stated in the Complaint come dangerously
close to resembling a scenario typically associated with
obtaining stolen goods or acting in conspiracy with another with
the goal of stealing goods, or analogous crimes. Accord
<> (reporting that “[a] mother and
son duo from East Rutherford was arrested on Wednesday, March 16,
Page -11-
cause for Plaintiff’s arrest and search of his vehicle.
While the
Court could fancy a scenario where, under the circumstances pled by
Plaintiff, a reasonable officer observing Plaintiff’s activities might
still not conclude Plaintiff was involved or about to get involved in
a
criminal
offence,
Plaintiff’s
challenges
cannot
pass
the
plausibility requirement set forth in Iqbal.6
after police caught the two of them allegedly attempting to steal
a television from the back of a truck parked in the loading area
at Lanni Appliance in Rutherford”).
6
Plaintiff asserted that he was arrested in connection
with the incident that took place on June 20, 2010. In
connection with that, the Court takes notice of a news release
dated August 12, 2010, which stated:
Rutherford police officers managed to catch a
Philadelphia man who was allegedly using other people's
credit cards to purchase electronic equipment in a
sting on July 20 in which officers posed as employees
at Lanni[] Appliances on Park Avenue. The investigation
began when employees of Lanni[] Appliances called
police on July 16 to report that a customer calling
himself Tom Henson had twice placed orders using a
credit card account that was declined. The first order
came on July 12 for a 46-inch Samsung television.
After the first card was rejected, "Henson" gave the
store a second account that was accepted. A thin black
male in his 50's picked up the television on July 14.
Two days later he called back to order two more
televisions. Once again, the first account he used to
put down a deposit was declined so he gave a second
that was accepted. At this point, employees at Lanni[]
became suspicious and contacted the police that day.
On July 19, police contacted the credit card company
and found that several of the cards were being used
fraudulently. On July 20, the man called back to pay
the rest of the order. Once again the first card he
gave the store was denied but officers told the
employees to tell him it was approved. Rutherford
police officers went to Lanni[] Appliances and posed as
employees and waited for the man to arrive. According
to police, at about 7:30 p.m. a van pulled up and the
Page -12-
[The required] plausibility standard . . . asks for more
than a sheer possibility that a defendant has acted
unlawfully. [Indeed, even w]here a complaint pleads facts
that are “merely consistent with” a defendant's liability,
[the so-alleging complaint still] “stops short of [showing]
plausibility of 'entitlement to relief.'”
Iqbal, 129 S. Ct. at 1949-50.
Here,
substantial
Plaintiff’s
dollop
of
challenges,
imagination,
if
construed
might
meet
with
the
a
very
possibility
standard, but they fall short of meeting the plausibility one.
same black male exited and went into the store. When
asked by undercover police the man said he was Tom
Henson's nephew, according to police. He was directed
to drive around the corner to Chestnut Street where
more officers were waiting. Detective Tom Lewis
approached the man, who was later identified as
[Plaintiff]. Lewis identified himself as an officer
and ordered [Plaintiff] to surrender. According to
police, [Plaintiff] ran for it and Lewis and Detectives
James Garner and Sean Farrell pursued on foot. The
officers caught up with [Plaintiff] as he attempted to
scale a fence in the alleyway between 33 and 25
Franklin Place. Farrell and Garner arrested
[Plaintiff] and he was taken into custody. Police
report evidence linking [Plaintiff] to further fraud at
other stores was found in the van and the investigation
is still ongoing. [Plaintiff] was charged with three
counts of fraudulent use of a credit card, three counts
of theft, one count of obstruction and one count of
resisting arrest. Bail was set at $100,000 with not 10
percent option and he was transferred to the Bergen
County Jail. Police say they also discovered that
[Plaintiff] was wanted by U. S. Marshals.
<>. While the
Court has no reason to take this information as true for the
purposes of screening Plaintiff’s Complaint, the Court notes
that, had the scenario depicted in the above-quoted news release
been, hypothetically, established as true, police officers would
have had abundance of probable cause for both Plaintiff’s arrest
and search of his vehicle.
Page -13-
Therefore, Plaintiff’s instant Complaint should be dismissed for
failure to state a claim upon which relief can be granted.
However, this Court – being mindful of Plaintiff’s pro se status
– cannot rule out that Plaintiff might be able to elaborate on the
circumstances of his “receivership” by stating facts showing that a
reasonable
officer observing Plaintiff’s actions could not have
believed that an offense had been or was being committed.
Therefore,
the Court will dismiss Plaintiff’s Complaint without prejudice to
filing an amended pleading detailing such facts, that is, if such
facts were in existence.7
V.
CONCLUSION
For
the
dismissed.
foregoing
reasons,
Plaintiff’s
Complaint
will
be
Plaintiff’s claims not amenable to cure by amendment will
be dismissed with prejudice, while the remaining claims will be
dismissed with leave to amend.
An appropriate Order accompanies this Opinion.
Date:
November 17, 2011
s/Claire C. Cecchi
CLAIRE C. CECCHI,
United States District Judge
7
The Court takes this opportunity to remind Plaintiff that
his amended complaint, as his original Complaint, are documents
executed under penalty of perjury and, therefore, these
allegations should state facts which Plaintiff believes, in good
faith, to be true.
Page -14-
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