ROYAL v. RUTHERFORD POLICE DEPT. et al

Filing 67

MEMORANDUM OPINION and ORDER administratively terminating 56 Defendants' Motion to Dismiss. Plaintiff shall file a third amended complaint within twenty-one (21) days of this Opinion. Defendants shall respond to the third amended complaint within twenty-one (21) days of its filing. etc. Signed by Judge Claire C. Cecchi on 8/20/2019. (dam, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

HOZAY A. ROYAL,
Civil Action No. 11-4862 (CCC) (JBC)
Plaintiff,
v.

MEMORANDUM OPINION AND ORDER

:

RUTHERFORD POLICE DEPT., et at.,
Defendants.

CECCHI, District Judge:

Plaintiff Hozay A. Royal (“Plaintiff’) filed this action alleging claims under 42 U.S.C.

§ 1983. ECF No. 1. Presently before the Court is the joint motion to dismiss Plaintiffs second
amended complaint (the “Motion”) (ECF No. 56) filed by Defendants Lieutenant Patrick
F eliciano, Sergeant Anthony Nunziato, Officer Sean Farrell, Officer Michael Gamer, and Officer
Thomas Lewis (together, “Defendants”). For the reasons stated below, the Court denies the
Motion and instructs Plaintiff to file a third amended complaint in this action.
This case has a complicated docket with an initial complaint, two amended complaints,

and multiple prior opinions of the Court, and both parties appear to be unclear about the present
status of this action. Defendants’ Motion, for instance, argues that the Rutherford Police

Department is an improper defendant in the second amended complaint (ECF No. 56 at 8-9),
however this Court previously dismissed all claims with prejudice against the Rutherford Police
Department in its May 9, 2018 opinion (ECF No. 49 at 7). Defendants also argue in the Motion

that all of Plaintiffs F ourth Amendment claims were previously found deficient (ECF No. 56 at
5-6), but fail to acknowledge that the Court explicitly allowed Plaintiffs Fourth Amendment
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search and seizure claims to go forward (ECF No 49 at 7). Finally, Defendants claim that
Plaintiff added new claims against new Defendants in the second amended complaint. ECF No.
56 at 11-12. While Plaintiff did add a claim alleging that his due process rights were violated by
the fabrication of evidence in his latest pleading (ECF No. 48 at 3), there are no new defendants
named in that filing.
Plaintiff has also contributed to the confusion in this matter. Plaintiffs initial complaint
filed under 42 U.S.C.

§ 1983 (ECF No. 1) had certain claims dismissed with prejudice and

certain claims dismissed without prejudice (ECF No. 6). Plaintiff then filed a first amended
complaint on February 27, 2012 containing four Fourth Amendment claims against Defendants
(ECF No. 16) but subsequently had his informapauperis status revoked and the case was
administratively terminated (ECF No. 18). Plaintiff petitioned the Court to reinstate his informa
pauperis status and that petition was granted on July 8, 2016. ECF No. 36. Plaintiff then filed a
motion to amend his complaint (ECF No. 41) and was granted leave to file a second amended
complaint that was to “include all allegations Plaintiff asserts in this matter and shall be
Plaintiffs operative pleading.” ECF No. 47. Plaintiff filed his second amended complaint on
August 14, 2017, but failed to add new facts to support his claims (the second amended
complaint did not include any facts at all, instead incorporating Plaintiffs prior complaints by
reference).’ ECF No. 48.
Given the convoluted state of affairs described above, the Court grants Plaintiff a final
opportunity to file an amended complaint. Plaintiff is instructed to include all factual allegations

‘In a prior opinion issued on May 9, 2018, the Court found that Plaintiffs second amended
complaint “does not appear to allege new facts.” ECF No. 49 at 1 n. 1. The Court notes,
however, that the second amended complaint does contain additional references to the
Fourteenth Amendment and a new count against existing Defendant Nunziato, though it remains
unsupported by factual allegations and requires supplementation.
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and claims in his third amended complaint, without incorporating prior complaints by reference.
To the extent Plaintiff is bringing new claims beyond those initially pled in this case, Plaintiff is
directed to include factual allegations indicating how such claims arise out of the same conduct
initially complained of and facts which demonstrate why these claims could not have been
brought until now. Defendants shall respond to the third amended complaint, and if a responsive
motion is filed, it shall include all arguments, supported by relevant caselaw, concerning
Plaintiff’s claims.
Accordingly, it is on this

20th

day of August, 2019

ORDERED that Plaintiff shall file a third amended complaint within twenty-one (21)
days of this Opinion; it is further
ORDERED that Defendants shall respond to the third amended complaint within twenty-

one (21) days of its filing; and it is further
ORDERED that the Clerk shall administratively terminate Defendants’ Motion (ECF
No. 56).
SO ORDERED.
DATE: August20, 2019

Claire C. Cecchi, U.$.D.J.

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