CASTILLO-PEREZ v. THE CITY OF ELIZABETH et al

Filing 56

OPINION. Signed by Judge Kevin McNulty on 4/21/2014. (nr, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

ANTONIO CASTILLO-PEREZ,

Civ. No. 2:11-6958 (KM) (CLW)

Plaintiff,
OPINION
V.

THE CITY OF ELIZABETH, THE
ELIZABETH POLICE DEPARTMENT,
DETECTIVE KEVIN T. MCDONOUGH,
DETECTIVE DANIEL GEDDES,
SARGEANT TIMOTHY GEDDES, POLICE
OFFICER CARMINE GIANETTA, POLICE
OFFICER JORGE JOAQUIM, RONALD
SIMON, UNITED STATES DRUG
ENFORCEMENT AGENCY, FRANK
TARRENTINO, SPECIAL AGENT WILLIAM
STRENSKE, and THE UNITED STATES
Defendants.

MCNULTY, U.S.D.J.:
On November 28, 2011, the plaintiff, Antonio Castillo-Perez, filed a
Complaint, Docket No. 1 (“Compi.”), arising out of a 2010 arrest and detention.
Originally assigned to the Hon. Dennis M. Cavanaugh, the matter was
reassigned to me on August 1, 2012. (Docket No. 33). The Complaint asserts
twelve causes of action against law enforcement agents and the federal and
state governments, or government entities, that employ them. Such causes of
action, brought under a specific Constitutional provision against the persons
whose acts are complained of, are typically straightforward. Brought as more
general due process claims or against government entities, however, they face
significant legal barriers, such as sovereign immunity, which have not been
overcome here. My decision herein as to the many dispositive motions filed by
1

defendants is intended to focus the case on its core allegations: that officers of
the Elizabeth Police Department, in cooperation with two agents of the DEA,
arrested and detained Castillo-Perez without probable cause, in violation of his
rights under the Fourth Amendment and analogous State Constitutional
provisions. Of course, I do not prejudge the merits; solely for purposes of these
motions to dismiss or for judgment on the pleadings, see Fed. R. Civ. P.
1 2(b)(6) and 12(c), the allegations of the Complaint are accepted as true.
Currently before the Court are dispositive motions filed by the following
defendants:
(a)

(b)

(c)

(d)

The United States Drug Enforcement Agency (“DEA”) brings a
motion to dismiss the Complaint on behalf of itself and the
United States (Docket No. 22);
William Strenske and Frank Tarrentino of the DEA (the “DEA
Agents”) bring a motion to dismiss the Complaint, or, in the
alternative, for summary judgment (Docket No. 23);’
Daniel Geddes brings a motion to dismiss the Complaint
(Docket No. 28); Kevin T. McDonough brings a motion to
dismiss the Complaint (Docket No. 31); Jorge Joaquim brings a
motion to dismiss the Complaint, or, in the alternative, for
summary judgment (Docket No. 32); Carmine Gianetta brings a
motion to dismiss the Complaint, or, in the alternative, for
summary judgment (Docket No. 34); and Timothy Geddes bring
a motion to dismiss the Complaint (Docket No. 35). (D. Geddes,
McDonough, Joaquim, Gianetta and T. Geddes are collectively
referred to as the “Elizabeth Police Officers.”); and
Acting Elizabeth Police Chief Ronald Simon (“Chief Simon”), the
City of Elizabeth, New Jersey (“Elizabeth”), and the Elizabeth
Police Department (the “Police Department”) bring a motion to
dismiss the Complaint (Docket No. 39).2

The docket indicates that the individual DEA agents have been terminated as
Defendants for the entirety of the case as of June 25, 2012. As discussed at n.4, infra,
the United States was properly substituted as defendant, but only for the purposes of
the Federal Tort Claims Act (Count XII), not the other claims. The Clerk is directed to
correct the docket accordingly.
1

Defendants D. Geddes, Joaquim, Gianetta, T. Geddes, McDonough, Simon,
the City of Elizabeth, and the Elizabeth Police Department filed Answers before filing
the motions now before the Court. The Court will exercise its discretion to treat these
2

2

The plaintiff, Castillo-Perez, through his counsel, has filed an omnibus
opposition to these motions (Docket No. 37).3
For the reasons set forth below, Defendants’ motions will be granted in
part and denied in part. The claims that will remain are Counts I, II, III and
VIII, to the extent they assert federal and state constitutional claims against
the Elizabeth Police Officers, and Count IX, to the extent it asserts a Fourth
Amendment Bivens claim against the DEA Agents. I will administratively
terminate without prejudice the motions for summary judgment. They may be
refiled or reinstated upon completion of targeted discovery to explore the
circumstances surrounding the stop and arrest that gave rise to this action.
I.

BACKGROUND

Solely for purposes of the motions to dismiss or for judgment on the
pleadings, I base this statement of facts on the allegations of the Complaint.
See Section II.A. 1, infra. They have not yet been tested by any fact finder.
On June 8, 2010, Sabin Sanchez invited Castillo-Perez to take a ride with
him to Elizabeth, New Jersey, and Castillo-Perez accepted. Compi. ¶ 17. Later
that day, Castillo-Perez was a passenger in a motor vehicle operated by
Sanchez, en route from Brooklyn, New York to Elizabeth. Compi. ¶ 4. Sanchez
told Castillo-Perez that he planned to visit a house on Jersey Avenue in
Elizabeth. When they arrived, Castillo-Perez did not visit the house with
Sanchez, but instead went to a nearby restaurant. When Sanchez was ready to
leave, he called Castillo-Perez, and both returned to the car to drive back to
Brooklyn. Id. “Almost immediately thereafter, approximately six or more police
officers” arrived in police vehicles, ordered Castillo-Perez out of Sanchez’s car,
and arrested him. Id. ¶ 5.
as motions for judgment on the pleadings, pursuant to Fed. R. Civ. P. 12(c). See
Newton v. Greenwich Twp., 12-CV-238 RMB/KMW, 2012 WL 3715947, at 1, n. 1
(D.N.J. Aug. 27, 2012) (citing Patel v. Contemporary Classics of Beverly Hills, 259 F.3d
123, 126 (2d Cir. 2001) (explaining that the court has the discretion to construe postanswer 12(b)(6) motions as having been brought under Rule 12(c)). A court has
discretion to entertain a Rule 12(c) motion even before all defendants have filed an
answer, as long as no prejudice to any party would result. Id. (citations omitted).
This opposition brief, Docket No. 37, was filed before the filing of the motion to
dismiss filed by Ronald Simon, the City of Elizabeth, and the Elizabeth Police
Department (Docket No. 39). No opposition was filed specifically addressing this
motion.
3

3

Castillo-Perez “has very little command of English.” Id. ¶ 21. He alleges
that certain of the Elizabeth Police Officers shouted commands that he could
not comprehend. They physically removed him from the car and certain officers
punched him in the kidney. He was then handcuffed. Officers then opened the
trunk of Sanchez’s vehicle and removed a box, which was later found to
contain narcotics. The officers also removed from a “pocket or pouch” attached
to the back of the driver’s seat a black bag that contained money. Castillo-Perez
alleges that, at the time, he did not know what was inside the box or the bag.
Id. ¶ 22, 23.
Castillo-Perez was arrested and imprisoned from June 8, 2010, through
December 13, 2010, a period of 189 days. Id. ¶ 26. He was charged with several
offenses: Possession of a Controlled Dangerous Substance with Intent to
Distribute (N.J. Stat. Ann. 2C:35:5a(1); 2C:35-5b(1)); Possession of a Controlled
Dangerous Substance (N.J. Stat. Ann. 2C:35- lOa(1)); and Obstructing the
Administration of Law (N.J. Stat. Ann. 2C:29-1). Id. ¶J 26-27 (citing Union
County Indictment No. 10-10-010561). On April 11, 2011, however, the
Indictment was dismissed. Id. ¶ 27.
Castillo-Perez filed this action on November 28, 2011. He brings claims
pursuant to 42 U.S.C. § 1981, 1983, 1985, 1986, and 1988, as well as the
New Jersey Civil Rights Act and the federal Tort Claims Act.
He names as defendants the following:
The City of Elizabeth (“Elizabeth”), sued as a municipal entity;
The City of
Department”),
defendants;

Elizabeth Police Department (the “Elizabeth Police
sued as the public employer of certain individual

Defendant Ronald Simon, the Chief of Police for Elizabeth (“Chief
Simon”), sued as a policymaker with respect to training, supervision, and
discipline of police officers;
Detective Kevin T. McDonough, Sergeant Daniel Geddes, Sergeant
Timothy Geddes, Police Officer Carmine Gianetta, and Police Officer
Jorge Joaquim (the “Elizabeth Police Officers”;
The United States Drug Enforcement Agency (“DEA”);
Group Advisor Frank Tarrentino and Special Agent William Strenske,
DEA Newark Field Division (the “DEA Agents”).
4

The Complaint asserts the following claims:
(1) violation of Plaintiff’s Fourth Amendment rights pursuant to 42 U.s.c.
§ 1983 against Defendants Elizabeth, the Elizabeth Police Department, and the
Elizabeth Police Officers (Count I);
(2) violation of the New Jersey Civil Rights Act/ State Constitutional
Claim against Defendants Elizabeth, the Elizabeth Police Department, and the
Elizabeth Police Officers (Count II);
(3) False Arrest and Illegal Imprisonment against the Elizabeth Police
Officers (Count III);
(4) violation of 42 U.S.C. Section 1983 against Defendants Elizabeth and
the Elizabeth Police Department (Monell Claim) (Count IV);
(5) violation of 42 U.S.C. Section 1981 against all Defendants (Count V);
(6) violation of 42 U.S.C. Section 1985 against all Defendants (Count VI);
(7) violation of 42 U.S.C. Section 1986 against all Defendants (Count VII);
(8) Malicious Prosecution against Elizabeth, the
Department, and the Elizabeth Police Officers (Count VIII);

Elizabeth

Police

(9) Fourth Amendment Biverts Claim against the DEA and the DEA
Agents (Count IX);
(10) Fifth Amendment Equal Protection Bivens Claim against the DEA
Agents (Count X);
(11) Fifth Amendment Due Process Bivens Claim against the DEA Agents
(Count XI); and
(12) Federal Torts Claim Act (“FTCA”), 28 U.S.C. §1346(b) against the
United States (Count XII) .‘

The Federal Tort Claims Act claim was brought against the DEA Agents and
the DEA. The United States, which is the proper defendant for a FTCA claim, has
submitted a Notice of Substitution, Docket No. 21, and Certification of the Scope of
Employment, Docket No. 22-3 at 1, pursuant to 28 U.S.C. § 2679(d)(1) and (2),
certifying that Tarrentino and Strenske were acting within the scope of their
employment by the United States at the time of the conduct alleged in the complaint.
Accordingly, I deem the United States to be substituted for the DEA Agents as
defendant for Count XII only. See 28 U.S.C. §2679(d)(l); Osborne v. Haley, 549 U.S.
5

II. DISCUSSION
A. Legal Standards
1. Motion to dismiss or for judgment on the pleadings

Rule 12(b)(6) provides for the dismissal of a complaint, in whole or in
part, if it fails to state a claim upon which relief can be granted. The defendant,
as the moving party, bears the burden of showing that no claim has been
stated. Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). In deciding a
Rule 12(b)(6) motion, a court must take the allegations of the complaint as true
and draw reasonable inferences in the light most favorable to the plaintiff.
Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (traditional
“reasonable inferences” principle not undermined by Twombly, see infra).
Federal Rule of Civil Procedure 8(a) does not require that a complaint
contain detailed factual allegations. Nevertheless, “a plaintiff’s obligation to
provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will
not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, the
complaint’s factual allegations must be sufficient to raise a plaintiff’s right to
relief above a speculative level, so that a claim is “plausible on its face.” Id. at
570; see also Umland v. PLANCO Fin. Serv., Inc., 542 F.3d 59, 64 (3d Cir. 2008).
That facial-plausibility standard is met “when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citing Twombly, 550 U.S. at 556). While “[t]he plausibility standard
it asks for more than a sheer
is not akin to a ‘probability requirement’
possibility.” Iqbal, 556 U.S. at 678.
.

.

.

The same standard applies to a motion for judgment on the pleadings
pursuant to Rule 12(c), made after the filing of any responsive pleading.
Federal Rule of Civil Procedure 1 2(h)(2), “provides that a defense of failure to
state a claim upon which relief can be granted may also be made by a motion
for judgment on the pleadings.” Turbe v. Gov’t of Virgin Islands, 938 F.2d 427,
428 (3d Cir. 1991). Accordingly, when this defense is raised in the context of a
Rule 12(c) motion, the Rule 12(b)(6) standard applies. Id.

225, 230 (2007) (“Upon the Attorney GeneraUs certification, the employee is dismissed
from the action, and the United States is substituted as defendant in place of the
employee.”).
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2. Summary Judgment Standard
Federal Rule of Civil Procedure 56(a) provides that summary judgment
should be granted “if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248; Kreschollek v. S. Stevedoring Co., 223 F.3d 202, 204 (3d Cir. 2000). In
deciding a motion for summary judgment, a court must construe all facts and
inferences in the light most favorable to the nonmoving party. See Boyle v.
County of Allegheny Pennsylvania, 139 F.3d 386, 393 (3d Cir. 1998) (citing
Peters v. Delaware River Port Auth. of Pa. & N.J., 16 F.3d 1346, 1349 (3d Cir.
1994)). The moving party bears the burden of establishing that no genuine
issue of material fact remains. See Celotex Corp. v. Catrett, 477 U.S. 317, 322—
23 (1986). “[W]ith respect to an issue on which the nonmoving party bears the
the burden on the moving party may be discharged by
burden of proof.
‘showing’—that is, pointing out to the district court—that there is an absence
of evidence to support the nonmoving party’s case.” Celotex, 477 U.S. at 325.
.

.

Once the moving party has met that threshold burden, the non-moving
party “must do more than simply show that there is some metaphysical doubt
as to material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475
U.S. 574, 586 (1986). The opposing party must present actual evidence that
creates a genuine issue as to a material fact for trial. Anderson, 477 U.S. at
248; see also Fed. R. Civ. P. 56(c) (setting forth types of evidence on which
nonmoving party must rely to support its assertion that genuine issues of
and pleadings are
material fact exist). “[U]nsupported allegations
insufficient to repel summary judgment.” Schoch v. First Fid. Bancorporation,
912 F.2d 654, 657 (3d Cir. 1990); see also Gleason v. Norwest Mortg., Inc., 243
F.3d 130, 138 (3d Cir. 2001) (“A nonmoving party has created a genuine issue
of material fact if it has provided sufficient evidence to allow a jury to find in its
favor at trial.”). If the nonmoving party has failed “to make a showing sufficient
to establish the existence of an element essential to that party’s case, and on
there can be ‘no
which that party will bear the burden of proof at trial.
genuine issue of material fact,’ since a complete failure of proof concerning an
essential element of the nonmoving party’s case necessarily renders all other
facts immaterial.” Katz v. Aetna Cas. & Sur. Co., 972 F.2d 53, 55 (3d Cir. 1992)
(quoting Celotex, 477 U.S. at 322—23).
.

.

.

.

7

.

.

B. Threshold Issues as to Certain Government Entities
1. Claims against the DEA (Counts V, VI, VII, & IX)!
Sovereign Immunity
Castillo-Perez has brought against “the defendants” generally a number
of claims, including constitutional tort claims under Bivens and various
sections of the federal civil rights statutes. Among “the defendants” is the DEA.
The United States argues that all claims against the DEA must be dismissed.
Sovereign immunity, it argues, bars equitable and legal remedies against the
5
United States, and the DEA, as a federal agency, partakes of that immunity.
Under the doctrine of sovereign immunity, “[i]t is axiomatic that the
United States may not be sued without its consent and that the existence of
consent is a prerequisite for jurisdiction.” United States v. Mitchell, 463 U.S.
206, 212 (1983). “The conditional sovereign immunity of the United States
extends to its branches and agencies.” Biase v. Kaplan, 852 F. Supp. 268, 277
(D.N.J. 1994). Consent to suit must be express in order to constitute a waiver
of sovereign immunity. Id. at 277-78 (citing, e.g., Franchise Tax Board v.
United States Postal Service, 467 U.S. 512, 517—18, 104 S.Ct. 2549, 2552—53,
81 L.Ed.2d 446 (1984) (agency immunity); Library of Congress v. Shaw, 478
U.S. 310, 318, 106 S.Ct. 2957, 2963, 92 L.Ed.2d 250 (1986) (waiver must be
express)).
The United States, whether on behalf of itself or its agencies such as
DEA, has not consented to be sued under, e.g., 42 U.S.C. § 1981, 1983, 1985,
and 1986. None of the provisions of the Civil Rights Act “provide a basis for an
action against the United States or a Federal agency.” Id. at 280. Likewise,
Bivens provides a cause of action only against individual federal agents, not
agencies. See F.D.I.C. v. Meyer, 510 U.S. 471, 472 (1994) (“The logic of Bivens
itself does not support the extension of Bivens from federal agents to federal

The Eleventh Amendment “is a jurisdictional bar which deprives federal courts
of subject matter jurisdiction” over actions against a State. Blanciak v. Allegheny
Ludlum Corp., 77 F.3d 690, 693 n. 2 (3d Cir. 1996) (citing Pennhurst State School &
Hosp. v. Halderman, 465 U.S. 89, 98-100 (1984) (holding that “the principle of
sovereign immunity is a constitutional limitation on the federal judicial power
established in Art. III”). Therefore, the defense of sovereign immunity is properly raised
as a jurisdictional defect under Fed. R. Civ. P. 12(b)(1). Because this particular motion
is directed as a matter of law to the face of the Complaint, the distinction between
Rule 12(b)(1) and Rule 12(b)(6) or 12(c) has no practical consequences here.
5

8

6
agencies.”) (emphasis in original). Indeed, Bivens itself, when conferring a
constitutional cause of action, held “that the doctrine of sovereign immunity
bars a direct constitutional action against the Federal agency itself.” Biase v.
Kaplan, 852 F. Supp. at 279 (citing Bivens, 403 U.S. at 410).
Plaintiff’s omnibus opposition does not address these sovereign immunity
arguments with respect to DEA. I find them meritorious. Counts V, VI, VII, &
IX will therefore be dismissed as against the DEA.
2. Elizabeth Police Department/Capacity to be sued
The Elizabeth Police Department is a department of the City of Elizabeth.
See http: / /www.elizabethnj .org/ city-council/departments. For purposes of this
action, it is not an entity that may be sued separately. See Bonenberger v.
Plymouth Twp., 132 F.3d 20, 25 n.4 (3d Cir. 1997) (Court “treat[s] the
municipality and its police department as a single entity for purposes of section
1983 liability”); N.J.S.A. 40A: 14—118 (providing that New Jersey police
departments are “an executive and enforcement function of municipal
government”). I will therefore treat claims asserted against the Elizabeth Police
Department as having been asserted against the City of Elizabeth only.
3. Monell Section 1983 Claim Against Elizabeth and Chief Simon
(Count IV)
In Count IV of the Complaint, Castillo-Perez seeks to hold the City of
Elizabeth liable under 42 U.S.C. § 1983 for the constitutional torts of its
employees. Municipal bodies sued under Section 1983 are not entitled to
absolute immunity. Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S.
658, 701 (1978). Neither, however, can they be held liable solely under the
doctrine of respondeat superior. For a municipality to be liable, the
constitutional violation must have occurred pursuant to an official municipal
policy or custom. Id.; Bielevicz v. Dubinon, 915 F.2d 845, 849-50 (3d Cir. 1990).
A government policy and a government custom are distinct. Bielevicz,
915 F.2d at 850. A “policy” may be found when a decision-maker with the
requisite final authority issues an official edict, proclamation, or policy
statement. Id. (citing Andrews v. City of Philadelphia, 895 F.2d 1469, 1480 (3d
The United States argues that Count X and Count XI, too, should be
dismissed as against the DEA. If those claims were asserted against the DEA, it is
likely that sovereign immunity would bar them. It appears, however, that those
Counts are asserted only against the individual DEA Agents, not against the DEA.
6

9

Cir. 1990); Pembaur v. City of Cincinnati, 475 U.s. 469, 481(1986)). A “custom”
may be found where “a given course of conduct, although not specifically
endorsed or authorized by law, is so well-settled and permanent as virtually to
constitute law.” Id. (citing Andrews, 895 F.2d at 1480). Whether alleging a
policy or custom, the plaintiff must show that an official with the necessary
authority is responsible for either the “affirmative proclamation of a policy or
acquiescence in a well-settled custom.” Id. (citing And rews, 895 F.2d at 1480).
Finally, the plaintiff must show that the municipal policy or custom was the
proximate cause of the injuries suffered. Id.
Derivative “municipal policy” liability may stem from a failure to properly
train personnel. Recently, in Thomas v. Cumberland County, No. 12-3959, 123959, 2014 WL 1395666 (3d Cir. April 11, 2014), the Court of Appeals helpfully
summarized the elements of such a “failure-to-train” claim:
Where the policy “concerns a failure to train or supervise
municipal employees, liability under section 1983 requires a
showing that the failure amounts to ‘deliberate indifference’ to the
rights of persons with whom those employees will come into
contact.” Carter v. City of Phila., 181 F.3d 339, 357 (3d Cir. 1999)
(quoting City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989)
(“Canton”)). Additionally, “the identified deficiency in a city’s
training program must be closely related to the ultimate injury;” or
in other words, “the deficiency in training [must have] actually
caused” the constitutional violation. Canton, 489 U.S. at 391.
Id. at *4, slip op. at 10.

“Ordinarily, ‘[a] pattern of similar constitutional violations by untrained
employees’ is necessary ‘to demonstrate deliberate indifference for purposes of
131 5. Ct. 1350, 1360
U.S.
failure to train.”’ Connick v. Thompson,
(2011).” Id., slip op. at 12. Ordinarily, but not always:
--

--,

--,

Nevertheless, the Supreme Court posited in Canton that in certain
situations, the need for training “can be said to be ‘so obvious,’
that failure to do so could properly be characterized as ‘deliberate
indifference’ to constitutional rights” even without a pattern of
constitutional violations. 489 U.S. at 390 n. 10. The Court offered a
hypothetical example of this “single-incident” failure-to-train
liability. Because “city policymakers know to a moral certainty that
their police officers will be required to arrest fleeing felons,” if the
city arms the officers with firearms, “the need to train officers in
the constitutional limitations on the use of deadly force” is “so
10

obvious” that a failure to provide such training could provide a
basis for single-incident municipal liability. Id.
Id. at *5, slip op. at 12.
Here, Castillo-Perez alleges that, prior to the incident, Elizabeth, the
Elizabeth Police Department, and Police Chief Simon “developed and
maintained policies or customs exhibiting deliberate indifference to the
constitutional rights of citizens.” Compi. ¶ 51. Further, he alleges that it was
the “policy and/or custom of the City of Elizabeth Police Department to
inadequately supervise, train, discipline, sanction or otherwise directs its police
officers . . . thereby failing to adequately discourage further constitutional
violations . . . .“ Id. ¶ 52. Therefore, according to Plaintiff, the department
encouraged or otherwise tolerated the unlawful conduct of the Defendant Police
Officers. Id. ¶11 53—54.
These allegations may well be sufficient to set forth the legal elements of
“policy,” “custom” or failure-to-train claim. They are so devoid of facts,
however, as to fail the test of Twombly and Iqbal. (See p. 5, supra.) The
allegations of the Complaint merely recite the legal elements of a municipal
“policy” liability claim. No such policy is specifically identified in the Complaint.
See Bielevicz, 815 F. 2d at 851. Nor does Castillo-Perez identify a particular
“custom.” Nor does he state a single fact in support of his allegation that
Elizabeth failed to train its police officers. Nor does he specify the particular
manner in which such training supposedly fell short. Count IV of the
Complaint consists of nothing but legal boilerplate—precisely the kind of
“formulaic recitation of the elements of a cause of action” that was held
inadequate in Twombly, 550 U.S. at 555. As to the City of Elizabeth, the
motion to dismiss Count IV will be granted.
A supervisor, such as a chief of police, may be held liable under Section
1983 if that supervisor was “involved personally, meaning through personal
direction or actual knowledge and acquiescence, in the wrongs alleged.”
McKenna v. City of Philadelphia, 582 F.3d 447, 460 (3d Cir. 2009) (citing Rode
v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988); see also Delbridge v.
Schaeffer, 238 N.J. Super 323, 354, 569 A.2d 872, 887—88 (Ch. Div. 1989)
(applying personal involvement standard in tort claim against state officials
and agencies).
The Complaint is less than clear as to what liability is attributed to Chief
Simon. At any rate, I find that the Complaint fails to state a plausible factual
11

claim as to his supervisory liability. Count IV alleges generally that, “[p]rior to
June 8, 2010 the City of Elizabeth Police Department and Police Chief Simon
developed and maintained policies or customs exhibiting deliberate indifference
to the constitutional rights of citizens, which caused the violation of plaintiff’s
rights.” Compi. ¶ 51. That is the sole substantive allegation that even mentions
7
Chief Simon. This is a recitation of legal elements; it contains no factual
allegations of any kind. There is no factual allegation that links Chief Simon to
the violations alleged in the Complaint. To the extent that Count IV is directed
against Simon, it will be dismissed.
The motion to dismiss Count IV, and all other Section 1983 claims to the
extent they seek to impose vicarious, municipal, or supervisory liability on
Elizabeth or Chief Simon, will therefore be granted.
C.

Constitutional Claims Against State Defendants
1. Constitutional Claims against State defendants for
Malicious
&
Imprisonment,
False
Arrest,
False
Prosecution (Counts I, II, III, & VIII)

Subject to the threshold dismissals of defendants in Section II.B, supra,
the claims asserted in Counts I, II, III, and VIII will survive. Each hinges on the
existence, or not, of probable cause. Defendants have raised cogent arguments,
but a ruling as to probable cause would be premature. I will first allow Castillo
Perez to conduct limited discovery as to the circumstances surrounding the
stop and the arrest. Because many of the critical facts are in Defendants’
possession, I will reserve a probable cause determination until the parties have
completed discovery on those factual issues.
a. Counts I, II, III and VIII and arguments for dismissal
i. Counts I & III
Counts I and III appear on their face to raise the kind of claims
appropriately pursued under Section 1983. Count I is brought pursuant to 42

The title of Count IV names only Elizabeth and its Police Department. Setting
aside the caption and the introductory paragraphs, the Complaint’s only substantive
reference to Chief Simon occurs in paragraph 51, quoted in text, above. Out of
caution, I have analyzed the claim as to both the municipality and Chief Simon.
‘

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8
U.S.C. § 1983 against Elizabeth, the Elizabeth Police Department, and the
Elizabeth Police Officers. Count I alleges that these defendants deprived
Plaintiff of his Fourteenth Amendment rights to due process, happiness, and
liberty. Compi. ¶J 39—40. Count III, asserted only against the Elizabeth Police
Officers, alleges that Castillo-Perez was illegally arrested and imprisoned, in
violation of his “federal rights.” Count III does not cite 42 U.S.C. § 1983, but I
construe it as a Section 1983 constitutional claim.
“[T]o establish a violation of 42 U.S.C. § 1983, a plaintiff must
demonstrate that the challenged conduct was committed by (1) a person acting
under color of state law and (2) that the conduct deprived him of rights,
privileges, or immunities secured by the Constitution or laws of the United
States.” Gillispie v. City of Paterson, CIV.A. 06-4416 (SRC), 2006 WL 2970470,
at *2 (D.N.J. Oct. 16, 2006) (citing Parratt v. Taylor, 451 U.S. 527, 535 (1981),
overruled in part on other grounds by Daniels v. Williams, 474 U.S. 327 (1986)).
“It is well-established in the Third Circuit that an arrest without probable
cause is a constitutional violation actionable under § 1983.” Gillispie, 2006 WL
2970470, at *3 To state a claim for false arrest under Section 1983, a plaintiff
must allege: “(1) that there was an arrest; and (2) that the arrest was made
without probable cause.” Id. (citing Dowling v. City of Philadelphia, 855 F.2d
136, 141 (3d Cir. 1988)). “A false imprisonment claim under § 1983 which is
based on an arrest made without probable cause is grounded in the Fourth
Amendment’s guarantee against unreasonable seizures.” Groman v. Twp. of
Manalapan, 47 F.3d 628, 636 (3d Cir. 1995) (citing Bama v. City of Perth
Amboy, 42 F.3d 809, 820 (3d Cir. 1994)).
A Section 1983 claim of unlawful arrest or false imprisonment depends
on the absence of probable cause. Defendants argue that there was probable
cause to arrest and detain Castillo-Perez. They argue in the alternative that
qualified immunity shields their actions, which were objectively reasonable.
ii. Count II
9
Count II, brought against Elizabeth, the Elizabeth Police Department,
and the Elizabeth Police Officers, alleges that these defendants’ acts of
I have already dismissed the claims against Elizabeth and the Police
Department on threshold grounds. See Section II.B.2 & 3, supra.
8

Again, I have already dismissed the claims against Elizabeth and the Police
Department on threshold grounds. See Sections II.B.2 and 3, supra.
9

13

discrimination, false arrest, and unlawful detention deprived Castillo-Perez of
his rights under the New Jersey Constitution, including Article I, Section I;’°
Article I, Section 5; 11 and Article I, Section 7•12 Count II is brought under the
New Jersey Civil Rights Act, N.J.S.A. 10:6—2. Compl. ¶ 44.
“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
the New Jersey Constitutions.” Trafton v. City of Woodbury, 799 F. Supp. 2d
417, 443—44. (D.N.J. 2011). This District has uniformly interpreted the Act in
parallel with Section 1983. Id. Under the state-law doctrine of good faith
immunity, which is analogous to the federal qualified immunity doctrine, “[a]
public employee is not liable if he acts in good faith in the execution or
enforcement of any law.” N.J. Stat. Ann. § 59:3-3. The good faith immunity
doctrine incorporates the same objective reasonableness standard that applies
to Section 1983 claims. See Wildoner v. Borough of Ramsey, 162 N.J. 375, 387
(2000).
Defendants argue that the NJ Civil Rights Act claim should be dismissed
on the same grounds as Counts I and III, the Section 1983 claims. The
individual Elizabeth Police Officers also assert the defense of good faith
immunity. They further contend that Castillo-Perez has failed to specify a
constitutional violation, and maintain that the state law claims are barred
because Plaintiff failed to comply with the notice provisions of the New Jersey
Tort Claims Act, N.J.5 .A. 59:8—8(a).

Article One, Section One provides: “All persons are by nature free and
independent, and have certain natural and unalienable rights, among which are those
of enjoying and defending life and liberty, of acquiring, possessing, and protecting
property, and of pursuing and obtaining safety and happiness.”
10

Article One, Section Five provides: “No person shall be denied the enjoyment
of any civil or military right, nor be discriminated against in the exercise of any civil or
military right, nor be segregated in the militia or in the public schools, because of
religious principles, race, color, ancestry or national origin.”
11

Article One, Section Seven 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 warrant shall issue except upon probable cause,
supported by oath or affirmation, and particularly describing the place to be searched
and the papers and things to be seized.”
12

14

iii. Count VIII
Castillo-Perez brings Count VIII, titled “Malicious Prosecution,” against
3
Elizabeth, the Elizabeth Police Department,’ and the Elizabeth Police Officers.
These defendants, he alleges, caused false criminal accusatory instruments to
be filed and testified falsely against him. Those acts, he alleges, were
encouraged, aided, abetted, and incited by the DEA, through its Agents,
Tarrentino and Strenske. (He does not appear, however, to name the DEA or
the DEA Agents as defendants in this count.) Compl. ¶ 68. Count VIII, titled
“malicious prosecution,” could be taken as a state-law tort claim. It alleges,
however, that defendants are liable under Section 1983 and the State
Constitution, as well as New Jersey State common law. I discuss them all.
In order to prevail on a Constitutional claim of malicious prosecution, a
plaintiff must demonstrate that: “(1) the defendants initiated a criminal
proceeding; (2) the criminal proceeding ended in the plaintiffs favor; (3) the
proceeding was initiated without probable cause; (4) the defendants acted
maliciously or for a purpose other than bringing the plaintiff to justice; and (5)
the plaintiff suffered deprivation of liberty consistent with the concept of
seizure as a consequence of a legal proceeding.” Johnson v. Bingnear, 441 F.
App’x 848, 851 (3d Cir. 2011) (quoting McKenna v. City of Philadelphia, 582
F.3d 447, 461 (3d Cir. 2009)). Similarly, a New Jersey common law tort claim
of malicious prosecution “requires proof: (1) that the criminal action was
instituted by the defendant against the plaintiff, (2) that it was actuated by
malice, (3) that there was an absence of probable cause for the proceeding, and
(4) that it was terminated favorably to the plaintiff.” Lind v. Schmid, 67 N.J.
255, 262, 337 A.2d 365, 368 (1975) (citations omitted).
Whether founded on the Constitution or tort law, a malicious prosecution
claim requires that probable cause be lacking. Defendants submit that,
because there was probable cause to charge Castillo-Perez, this Count must be
dismissed.
b. Discovery is required to resolve the probable cause
issue on the federal and state Constitutional
claims
As outlined above, Counts I, II, and III present Constitutional claims
premised on false arrest and false imprisonment, and Count VIII alleges both
note again that I have dismissed the claims against Elizabeth and its Police
Department on threshold grounds. See Sections II.B.2 and 3, supra.
13

15

Constitutional and state tort claims premised on malicious prosecution. All
depend on the defendants’ having acted without probable cause. Stated
another way, the presence of probable cause would defeat these federal and
4
state Constitutional and tort claims.’ See Revell v. Port Auth. of New York, New
Jersey, 598 F.3d 128, 137 n. 16 (3d Cir. 2010) (citation omitted). Qualified or
good faith immunity may also shield certain defendants from liability for
had probable cause for their actions
damages. In short, “police officers who.
or ‘who reasonably but mistakenly conclude that their conduct comports with
the requirements of the Fourth Amendment are entitled to immunity.”
Garlanger v. Verbecke, 223 F. Supp. 2d 596, 606 (D.N.J. 2002) (quoting Sharrar
v. Felsing, 128 F.3d 810, 826 (3d Cir. 1987)). All of these issues depend on
probable cause, or perhaps the reasonable perception thereof, and probable
cause depends on the facts surrounding the stop and arrest.
.

.

“An arrest was made with probable cause if ‘at the moment the arrest
the facts and circumstances within [the officers’] knowledge and
was made
of which they had reasonably trustworthy information were sufficient to
warrant a prudent [person] in believing that [the suspect] had committed or
was committing an offense.”’ Wright v. City of Philadelphia, 409 F.3d 595 (3d
Cir. 2005) (quoting Beck v. Ohio, 379 U.S. 89, 91(1964)).
.

.

.

Probable cause can, in some cases, present a complex factual issue. It is
“a fluid concept—turning on the assessment of probabilities in particular
factual contexts—not readily, or even usually, reduced to a neat set of legal
rules.” illinois v. Gates, 462 U.S. 213, 232 (1983). As to qualified immunity, too,
“if the historical facts material to [whether the actions of the officers were
there [will] be an issue for the jury.”
objectively reasonable] are in dispute
Sharrar, 128 F.3d at 828.
.

.

.

Defendants also argue that, in addition to the surrounding circumstances, a
Union County grand jury indictment for crimes related to possession of heroin and
obstruction of the administrative law is affirmative evidence of probable cause that,
standing alone, is sufficient to defeat Castillo-Perez’s claims here. An indictment may
indeed be affirmative evidence of probable cause sufficient to defeat a Section 1983
claim for false arrest or malicious prosecution. See Gaskins v. 17 Officers, CIV. A. 091982 WJM, 2009 WL 4730189, at *6 (D.N.J. Dec. 4, 2009) (“[A] grand jury indictment
is affirmative evidence of probable cause sufficient to defeat a claim of false arrest
under § 1983.”) (citing Gaffer v. Zappile, 67 F. Supp. 2d 515, 519 (E.D. Pa. 1999),
affd, 225 F.3d 648 (3d Cir. 2000)). In light of my finding that a ruling as to probable
cause is premature absent any discovery, I will reserve a discussion of the indictment
until the parties have completed focused discovery.
14

16

I do not mean to suggest, however, that the issues of qualified immunity
or probable cause inevitably require trial; far from it. The Supreme Court has
directed that the issue of qualified immunity be addressed “at the earliest
possible stage in litigation.” Hunter v. Bryant, 502 U.S. 224, 227 (1991). And
the issue of probable cause tends to turn, not on all of the facts of the case, but
on the limited information available to the officers at the time. The plaintiff’s
actual guilt or innocence of the offense is not strictly material to the issue of
probable cause; “the validity of the arrest does not depend on whether the
suspect actually committed a crime.” Michigan v. DeFillippo, 443 U.S. 31, 36
(1979); see also Wilson v. Russo, 212 F.3d 781, 783 (3d Cir. 2000). While
probable cause entails more than mere suspicion, it does “not require the fine
resolution of conflicting evidence that a reasonable-doubt or even a
preponderance standard demands.” Gerstein v. Pugh, 420 U.S. 103, 121(1975).
Where it can be established what information the officers possessed, the issue
of probable cause becomes a legal one for the Court to decide. See Wright,
supra (deciding the issue on summary judgment); Trabal v. Wells Fargo
Armored Service Corp., 269 F.3d 243 (3d Cir. 2001); Orsatti v. New Jersey State
Police, 71 F.3d 480 (3d Cir. 1995).
In this case, for purposes of the motions to dismiss, I find the factual
allegations of the Complaint and answers to be too sketchy to permit a proper
assessment of the potentially dispositive issues of probable cause and qualified
or good faith immunity. It is true, of course, that several Defendants have also
filed motions in the alternative for summary judgment. I think that summary
judgment would be premature now, because those motions were filed without
the benefit of any discovery. See Curley v. Kiem, 298 F.3d 271, 278 (3d Cir.
2002 (“Just as the granting of summary judgment is inappropriate when a
genuine issue exists as to any material fact, a decision on qualified immunity
will be premature when there are unresolved disputes of historical fact relevant
to the immunity analysis.”). Further factual development is required.
Here, a confidential tip led to a stop and a search, from which flowed the
arrest, detention, and indictment of Castillo-Perez. As to these matters, the
Defendants are in control of many of the material facts.’ I will afford the
5

Because I believe summary judgment would be premature on the current
state of the record, I overlook Castillo-Perez’s failure to respond to the Statement of
Undisputed Material Facts filed by the Elizabeth Police Officers. I caution all parties
that, once discovery has taken place, I will require compliance with this Court’s
procedures regarding motions for summary judgment.
15

17

parties the opportunity for limited factual discovery as to the circumstances
surrounding the initial stop and the arrest before considering summary
judgment. I will therefore, with one exception, as described in part c, below,
deny the motions to dismiss or for judgment on the pleadings, and will
administratively terminate the motions for summary judgment, subject to
refiling or reinstatement upon completion of this targeted discovery.
c. The state-law malicious prosecution tort claim will
be dismissed as to Elizabeth and its Police Officers
Elizabeth and the Elizabeth Police Officers invoke the notice requirement
of the New Jersey Tort Claims Act (“NJTCA”), see N.J.S.A. 59:8-8, as grounds
for dismissal of Count VIII, insofar as it asserts the state common law tort of
malicious prosecution.’ A state malicious prosecution claim is “subject to the
6
notice requirements of the [NJ]TCA.” Williams v. City of Elizabeth, No. 08 Civ.
5113, 2010 WL 3636238, at *12 (D.N.J. Sept. 9, 2010) (citing Velez v. City of
Jersey City, 180 N.J. 284, 293, 850 A.2d 1238, 1244 (2004) (holding that the
Tort Claims Act notice provision applies to common law torts based on
intentional or outrageous conduct)).
“The [NJJTCA ‘regulates both the substantive liability o[f] public entities
as well as the procedural requirements which must be observed when bringing
a claim against a public body.”’ Id. (quoting Martin v. Twp. of Rochelle Park, 144
N.J Super. 216, 219, 365 A.2d 197, 199 (App. Div. 1976) (superseded by
statute on other grounds)). The NJTCA provides that “[n]o action shall be
brought against a public entity under this act unless a claim upon which it is
based shall have been presented in accordance with the procedure set forth in
this chapter.” N.J. Stat. Ann. § 59:8—3. Before filing a complaint against a
public entity or its employees for injury or damages to person or property, and
within ninety days of the claim’s accrual, a plaintiff must submit a “notice of
claim” to the public entity. N.J. Stat. Ann. § 59:8—8. Failure to provide timely
notice of claim subjects a plaintiff’s claim to dismissal. Williams, 2010 WL
3636238, at *13 (citing N.J. Stat. Ann. § 59:8—7).’7 Castillo-Perez’s malicious
That NJTCA notice provision does not apply to Section 1983 claims. See
Felder v. Casey, 487 U.S. 131, 132 (1988). Nor does it apply to claims under the New
Jersey Civil Rights Act. Owens v. Feigin, 194 N.J. 607, 609, 947 A.2d 653, 654 (2008).
16

17

Specifically, the statute provides:

A claim relating to a cause of action for death or for injury or damage to
person or to property shall be presented as provided in this chapter 1 not
18

prosecution tort claim accrued on April 11, 2011, the date that the charges
were dismissed. See Compi. ¶ 27. The 90-day deadline for filing a notice of
claim therefore expired on July 10, 2011. The Complaint was filed on
November 28, 2011. William R. Hozapfel, City Attorney for the City of Elizabeth,
certifies that, as of July 25, 2012, Castillo had never filed any tort claim notice,
whether timely or untimely, with the City of Elizabeth. Docket No. 32-5.
Castillo-Perez does not allege to this day that he ever filed a notice of claim,
and his opposition brief does not describe any attempt to provide notice to
Elizabeth. Nor does the record contain any indication of such notice. To the
extent that it alleges the state law tort of malicious prosecution, Count VIII will
be dismissed as to Elizabeth and its employees, the Elizabeth Police Officers.

D.

Constitutional and Tort Claims
Defendants (Counts IX, X, XI & XII)
1.

against

Federal

Fourth Amendment Bivens claim (Count IX)

Under Bivens v Six Unknown Named Agents, 403 U.S. 388 (1971), a
plaintiff may assert against an agent of the federal government an implied
cause of action for violation of federal rights, even where no statute authorizes
suit. In Count IX, Castillo-Perez alleges that two federal agents, DEA Agents
Tarrentino and Strenske, “stopped, detained, investigated, seized and/or
arrested plaintiff intentionally and knowingly and without probable cause
and/or reasonable suspicion, in violation of the Fourth Amendment.” Compi. ¶

later than the 90th day after accrual of the cause of action. After the
expiration of six months from the date notice of claim is received, the
claimant may file suit in an appropriate court of law. The claimant shall
be forever barred from recovering against a public entity or public
employee if:
a. The claimant failed to file the claim with the public entity within
90 days of accrual of the claim except as otherwise provided in
N.J.S.59:8-9; or
b. Two years have elapsed since the accrual of the claim; or
c. The claimant or the claimants authorized representative
entered into a settlement agreement with respect to the claim.
N.J. Stat. Ann. § 59:8-8.

19

The Complaint alleges that the DEA Agents “worked together with” the
Elizabeth Police Officers “in carrying out each of the illegal activities
culminating in plaintiff’s false arrest and false imprisonment. . . .“ Compi. ¶ 6.
Count IX parallels the Section 1983 claims against the Elizabeth Police Officers
discussed in the section immediately preceding this one. Like the Elizabeth
Police, the DEA Agents respond that there was probable cause for the arrest
9
and that qualified immunity applies.’ For the reasons expressed in Section
II.C. 1 .b, supra, I will deny the motions to dismiss Count IX without prejudice to

76.18

It is not clear from the Complaint or Plaintiffs opposition brief whether his
Fourth Amendment claims include a claim for unreasonable search and seizure, in
addition to false arrest and false imprisonment. See Docket No. 37 at 22. I discuss it
briefly. Because Castillo-Perez was a mere passenger in Sanchez’s vehicle, he would
lack standing to challenge an illegal search of the vehicle. See Rakas v. illinois, 439
U.s. 128, 133—34 (1978) (holding that there is no legitimate expectation of privacy
where the area searched is in control of a third party); United States v. Baker, 221 F.3d
438, 441—42 (3d Cir. 2000) (“It is clear that a passenger in a car that he neither owns
nor leases typically has no standing to challenge a search of the car.”). In fact,
Castilo-Perez concedes that Sanchez, as owner of the vehicle, consented to the search,
seemingly eliminating any basis for a claim that the search was illegal. Docket No. 37
at 18.
18

The DEA Agents also argue that Castillo-Perez has failed to allege that they
were personally involved in his arrest. See Dacchille v. Woodbridge Twp., CIV.A. 10—
5504 WJM, 2011 WL 4809956, at *5 (D.N.J. Oct. 7, 2011) (citing Dowling v. City of
Philadelphia, 855 F.2d 136, 141 (3d Cir. 1988)). They read the Complaint to allege that
the DEA Agents did not arrive on the scene until after the state officers had
handcuffed Castillo-Perez. See Compl. ¶{ 5, 21, 22. The Complaint also alleges,
however, that the DEA Agents “worked together with” the Elizabeth Police Officers “in
carrying out each of the illegal activities culminating in plaintiffs false arrest and false
imprisonment . . . .“ Id. ¶ 6. It also alleges that the “police officers” and “law
enforcement officials,” presumably a reference to the Elizabeth Police Officers and DEA
agents, opened the vehicle’s trunk, searched, and removed a box from the trunk. Id. ¶
22. According to Castillo-Perez, the “defendant police officers/federal agents” were the
ones who “seized, interrogated and searched the plaintiff and his person without a
warrant.” Id. ¶ 29. He also alleges that the “individual officers/federal agents assisted
each other in performing the various actions described and lent their physical
presence and support and the authority of their office to each other during the said
events.” Id. ¶ 35. These allegations might or might not hold up in light of discovery.
But reading the Complaint, as I must, in the light most favorable to the Plaintiff, I
must reject this particular ground for dismissal.
19

20

the renewal of a summary judgment motion at the close of targeted discovery
on the issue of probable cause.
2. Fifth Amendment Equal Protection Bivens Claim (Count X)

Count X of the Complaint alleges that “Defendant DEA Officers
Tarrentino and Strenske stopped, detained, investigated, searched, seized,
and/or arrested plaintiff knowingly and intentionally on the basis of plaintiffs
race, ethnicity, and perceived national origin in violation of his right to equal
protection.” Compl. ¶J 79—80. A valid Equal Protection claim must contain
enough facts to show purposeful discrimination. Bradley v. United States, 164
F. Supp. 2d 437, 445 (D.N.J. 2001), affd, 299 F.3d 197 (3d Cir. 2002) (citing
Andrews v. City of Philadelphia, 895 F.2d 1469, 1478 (3d Cir. 1990) (“To make
out a viable claim for a violation of equal protection rights, a plaintiff must
demonstrate purposeful discrimination.”)). Here, the plaintiff must allege that
he was treated differently from others similarly situated and that the disparate
treatment was attributable to his race or ethnicity. Id.
The DEA Agents argue that Castillo-Perez has failed to sufficiently plead
a Fifth Amendment Equal Protection claim. In Iqbal, supra, the Supreme Court
dismissed the plaintiffs conclusory assertion that the defendants mistreated
him “solely on account of [his] religion, race, and! or national origin and for no
legitimate penological interest.” The Court found that these allegations were not
plausible and factual, but rather constituted a mere “formulaic recitation of the
elements” of a discrimination claim. Ashcroft v. Iqbal, 556 U.S. 662, 680—81
(2009) (citing Twombly, 550 U.S. at 555). Likewise, Castillo-Perez has failed to
allege factually that similarly situated individuals outside of his protected class
were treated any differently. See Fennimore v. Lower Twp., No 09 Civ. 2090,
2011 WL 1705599, at *6 n.6 (D.N.J. May 4, 2011) (“Plaintiff offers no facts by
which a reasonable fact finder could infer that Plaintiff received different
treatment from any other similarly situated individual.”). Castillo- Perez’s
allegations that the acts of the DEA agents were motivated by his race,
ethnicity, or national origin are strikingly similar to the “bald assertions”
dismissed by the Court in Iqbal. Castillo-Perez does not specifically address
these matters in his opposition.
I will dismiss the Fifth Amendment Equal Protection claim against the
DEA Agents because the Complaint does not allege facts sufficient to formulate
a plausible claim. Count X is dismissed.

21

3. Count XI: Fifth Amendment Due Process Bivens Claim
In Count XI, Plaintiff alleges that the DEA Agents “assisted in arresting
plaintiff and depriving plaintiff of his liberty in a manner that was without due
process of law and was fundamentally unfair in the totality of the
circumstances,” in violation of the Fifth Amendment. Compl. at ¶ 82. The DEA
Agents assert that this due process claim must be dismissed pursuant to the
°
2
Supreme Court’s “more-specific-provision” rule. Under that rule, “if a
constitutional claim is covered by a specific constitutional provision, such as
the Fourth or Eighth Amendment, the claim must be analyzed under the
standard appropriate to that specific provision, not under the rubric of
substantive due process.” United States v. Lanier, 520 U.S. 259, 272 (1997).
Specifically, where a plaintiff alleges that he has been subjected to unlawful
conduct during an arrest, such a claim “is properly analyzed under the Fourth
Amendment’s ‘objective reasonableness’ standard, rather than under a
substantive due process standard.” Graham v. Connor, 490 U.S. 386, 388
(1989).
The due process claim in Count XI must be analyzed under the Fourth
Amendment. It arises from allegedly unlawful conduct during a stop of Castillo
Perez, which led to his subsequent arrest and imprisonment. The gist of the
claim is that this was an unreasonable seizure without probable cause. The
“more-specific-provision” rule therefore applies: such a claim is “properly
analyzed under the Fourth Amendment’s ‘objective reasonableness’ standard,
rather than under a substantive due process standard.” Graham, 490 U.S. at
388; see Fennimore v. Lower Twp., 2011 WL 1705599 at *6 n.6 (“[T]o the extent
Plaintiffs substantive due process claim arises from the Defendant Officer&
alleged misconduct, such claim is analyzed under the more-specific provision’
of the Fourth Amendment.”); Swedron v. Borough, 08CV1095, 2008 WL
5051399, at *6 (W.D. Pa. Nov. 21, 2008) (dismissing a procedural and
substantive due process claim where the gravamen of plaintiff’s lawsuit was
“clearly premised on a First and/or Fourth Amendment violation based upon
his alleged malicious prosecution and arrest without probable cause”).
This claim must be asserted under the Fourth Amendment; indeed, in
Count IX, which is not being dismissed, the plaintiff has so asserted it.
Accordingly, I will grant the DEA Agents’ motion to dismiss the substantive due
process claims of Count XI.
They also assert that the allegations of Count XI are conclusory and do not
satisfy the standards of Twombly/Iqbal. Because I dismiss this count on legal
grounds, I do not reach that contention.
20

22

4. Federal Tort Claims Act claim against the United
States (Count XII)/Failure to exhaust
The FTCA claim (Count XII) is properly viewed as being brought against
the United States. See n.4, supra. The United States, as defendant, argues that
the FTCA claim must be dismissed for failure to exhaust administrative
remedies, a jurisdictional ground cognizable under Rule 12(b)(1), Fed. R. Civ. P.
Under the FTCA, a plaintiff may not bring suit against the United States
caused by the negligent or wrongful act or
“for injury or loss of property
unless the claimant shall
omission of any employee of the Government
have first presented the claim to the appropriate Federal agency and his claim
shall have been finally denied by the agency in writing.” 28 U.S.C. § 2675(a). In
other words, it is a jurisdictional prerequisite to a suit under the FTCA that a
plaintiff have exhausted all administrative remedies. See, e.g., Berenato v.
United States, CIV. 06-4355 (RBK), 2007 WL 2990626 (D.N.J. Oct. 9, 2007)
(explaining that “[t]o bring suit under the FTCA, a plaintiff must first have
‘presented the claim to the appropriate Federal agency and his claim shall have
been finally denied by the agency”’ and that “the Third Circuit courts have
construed this administrative exhaustion provision as a nonwaivable
jurisdictional requirement”) (citing Bialowas v. United States, 443 F.2d 1047,
1049 (3d Cir. 1971) (citation omitted); Kozel v. Dunne, 678 F. Supp. 450, 453
(D.N.J. 1988)). “The statutory language is clear that a court does not have
jurisdiction before administrative remedies have been exhausted, and a court
must dismiss any action that is initiated prematurely.” Id. (citing Wilder v.
Luzinski, 123 F.Supp.2d 312, 313 (E.D. Pa. 2000) (citing McNeil v. United
States, 508 U.S. 106 (1993); Wujick v. Dale & Dale, 43 F.3d 790, 793-94 (3d
Cir. 1994))).
.

.

.

.

.

.

Karen K. Richardson, Associate Chief Counsel of the Civil Litigation
Section in the Office of Chief Counsel of the United States Department of
Justice, Drug Enforcement Administration (DEA), has submitted a declaration
that Castillo-Perez had not filed, let alone exhausted, an administrative claim
with the DEA in connection with the facts underlying this case. Docket No. 222. Indeed, Castillo-Perez concedes that “he commenced this action without first
exhausting the administrative remedies as set forth in the Federal Tort Claims
Act.” Docket No. 37-1 at 1 n. 1. Accordingly, the FTCA claim will be dismissed
for lack of jurisdiction.

23

D.

Claims Against All Defendants Under 42 U.S.C.
1985, and 1986

§ 1981,

Finally, I discuss Counts V, VI, and VII, which assert violations of
’
2
42 U.S.C. § 1981, 1985, and 1986 against all defendants.
1.

Count V: 42 U.S.C.

§ 1981

In Count V, Plaintiff alleges that all defendants’ actions were motivated
by racial animus and the desire to injure, oppress, and intimidate plaintiff
because of his race or nationality, in violation of the Civil Rights Act, 42 U.S.C.
§ 1981. Compi. ¶ 56—59. Section 1981 provides:
All persons within the jurisdiction of the United States shall have
the same right in every State and Territory to make and enforce
contracts, to sue, be parties, give evidence, and to the full and
equal benefit of all laws and proceedings for the security of persons
and property as is enjoyed by white citizens, and shall be subject
to like punishment, pains, penalties, taxes, licenses, and exactions
of every kind, and to no other.
42 U.S.C. § 1981. Subsection (c) of that statute provides that these rights “are
protected against impairment by nongovernmental discrimination and
impairment under the color of state law.” Id.
First, this statute provides a cause of action only for “discrimination by
private actors and discrimination under color of state law”; it does not “protect
against discrimination under color of federal law.” Sindram v. Fox, 374 F. App’x
302, 304 (3d Cir. 2010). The United States, the DEA, and the DEA Agents are
all federal entities or agents, acting under color of federal law. Plaintiff appears
to concede this point. See Docket No. 37 at 37. Count V is dismissed as to all
federal defendants, including the DEA Agents.
The remaining defendants, State entities or agents, argue that Count V
fails to assert facts sufficient to state a claim of discrimination under color of
state law. They add that a Section 1981 claim can only be founded on
discrimination related to property transactions and contract formation.
To state a cause of action under Section 1981, plaintiffs must plausibly
allege that “(1) they are members of a racial minority; (2) defendants intended
This discussion is subject to the earlier dismissal on threshold grounds of
claims against the DEA, the City of Elizabeth, and the Elizabeth Police Department.
See Section II.B, supra.
21

24

to discriminate on the basis of race; and [3] discrimination concerned a
statutorily enumerated activity, such as the rights to make and enforce
contracts or to purchase property.” Hickson v. Marina Assocs., 743 F. Supp. 2d
362, 376 (D.N.J. 2010) (citations omitted) (finding that the plaintiff did not
“sufficiently allege or prove that, on the basis of race, he was deprived of a right
to make or enforce a contract, to acquire and protect property, or any other
right or activity associated therewith, as prescribed in Section 1981”).
Count V fails to meet the standards of Fed. R. Civ. P 12(b)(6) and
Twombly/ Iqbal, because it asserts nothing more than conclusory allegations of
discrimination. Indeed, Count V contains no supporting factual allegations at
all. It is true that it incorporates by reference all of the preceding allegations of
the Complaint. Those allegations, however, at best suggest an arrest and
detention without sufficient cause. They contain no facts sufficient to make out
a plausible claim that Castillo-Perez was deprived of a protected right or
activity on the basis of race. Without more than mere recitations of legal
conclusions, see Twombly, 550 U.S. at 555, a claim under 42 U.S.C. § 1981
cannot survive. I will therefore dismiss Count V in its entirety.
2.

Count VI: 42 U.S.C.

§ 1985

Count VI of the Complaint alleges that all defendants conspired “to
violate the civil rights of plaintiff based on his race,” in violation of 42 U.S.C.
Section 1985. Compi. Count VI, ¶ 60—6 1. To allege a violation of Section 1985,
a plaintiff must allege “(1) a conspiracy; (2) for the purpose of depriving, either
directly or indirectly, any person or class of persons of the equal protection of
the laws, or of equal privileges and immunities under the laws; and (3) an act
in furtherance of the conspiracy; (4) whereby a person is injured in his person
or property or deprived of any right or privilege of a citizen of the United
States.” Farber v. City of Paterson, 440 F.3d 131, 134 (3d Cir. 2006) (quoting
United Bhd. of Carpenters & Joiners v. Scott, 463 U.S. 825, 828—29 (1983)).
contain supportive factual
“A claim for conspiratorial liability ‘must.
allegations.” Ivan v. Cnty. of Middlesex, 595 F. Supp. 2d 425, 484 (D.N.J.
2009) (quoting Rose v. Bartle, 871 F.2d 331, 366 (3d Cir. 1989)). To state a
claim, “[t]he factual allegations supporting the conspiracy claim may not be
generalized or conclusory.” Id. In Ivan v. County of Middlesex, Judge Walls
observed that the Third Circuit applies a heightened pleading standard to
Section 1983 and Section 1985 conspiracy claims. Id. (“The Third Circuit
clearly stated that this heightened pleading requirement applies to both § 1983
and § 1985(3) conspiracy claims.”) (citing Startzell v. City of Philadelphia, 533
.

25

.

F.3d 183, 205 (3d Cir. 2008) (holding that a conspiracy claim under Section
1983 or 1985 requires plaintiff to show a “meeting of the minds”)); see Russo v.
Voorhees Twp., 403 F. Supp. 2d 352, 359 (D.N.J. 2005) (“Russo has failed to
allege that there was ever an agreement between Detective Monahan and the
other officers to deprive him of his civil rights. An agreement is a necessary
component of a conspiracy.”)).
The only substantive allegation in Count VI is that “[tihe acts of the
defendants herein constitute a violation of the Civil Rights Act, 42 U.S.C.
Section 1985, namely a conspiracy to violate the civil rights of plaintiff based
on his race.” Compi. ¶ 61. That is a legal conclusion, not a factual allegation.
The allegations from earlier sections of the Complaint, incorporated by
reference, do not suffice, either. True, they suggest concerted activity:
Paragraph 6, for example, alleges that the “Elizabeth police officers named
above worked together with the above-named DEA officers in carrying out
illegal activities culminating in plaintiff’s false arrest and false imprisonment.”
Compl. ¶ 6. Plaintiff also alleges that “at all times relevant the defendant
Elizabeth police officers and DEA agents were engaged in a joint venture. The
individual officers/federal agents assisted each other in performing the various
actions described and lent their physical presence and support and the
authority of their office to each other during the said events.” Comp. ¶ 35.
What is missing, however, is the same thing that was missing from
Count V: plausible factual allegations of intentional racial discrimination. The
factual allegations of the complaint set forth at best an arrest and detention
without probable cause.
Plaintiff has failed to allege any facts to suggest that there was any
agreement, combination, or conspiracy to deprive him of his civil rights on the
basis of race. I will dismiss Count VI.
3. Count VII: 42 U.S.C.

§

1986

Count VII alleges that all defendants “had knowledge of the
discrimination/violation of constitutional rights perpetrated on plaintiff and/or
but neglected and failed to prevent said wrongful
constitutional minorities
and illegal acts when they had the power to do so,” in violation of 42 U.S.C. §
1986. Compi. ¶ 64.
.

.

.

Defendants argue that this claim must be dismissed because a Section
1986 claim is derivative; by definition it depends upon a viable Section 1985

26

claim. They also argue that this count is barred by the one-year statute of
limitations that applies to claims under Section 1986.
Castillo-Perez does not provide any argument in opposition. I have
already dismissed his claim under Section 1985, and I agree with Defendants
that the Complaint does not state an independent claim under Section 1986.
See Clark v. Clabaugh, 20 F.3d 1290, 1295 (3d Cir. 1994) (explaining that, “by
definition,” a Section 1986 claim depends on “preexisting violation of § 1985);
Rogin v. Bensalem Twp., 616 F.2d 680, 696 (3d Cir. 1980) (“Because
transgressions of [Section] 1986 by definition depend on a preexisting violation
of [Section] 1985, if the claimant does not set forth a cause of action under the
latter, its claim under the former necessarily must fail also.”).
Count VII will therefore be dismissed.
III. CONCLUSION
For the foregoing reasons Defendants’ motions (Docket No. 22, Docket
No. 23, Docket No. 28, Docket No. 31, Docket No. 32, Docket No. 34, Docket
No. 35, and Docket No. 39) are granted in part and denied in part. Specifically:
1. Counts I, II, and III, are dismissed as to the City of Elizabeth
and the City of Elizabeth Police Department;
2. Count IV is dismissed in its entirety;
3. Count V is dismissed in its entirety;
4. Count VI is dismissed in its entirety;
5. Count VII is dismissed in its entirety;
6. Count VIII is dismissed as to the City of Elizabeth and the
Elizabeth Police Department insofar as it asserts malicious
prosecution claims under 42 U.S.C. § 1983 and the New Jersey
State Constitution, and is dismissed as to all Defendants insofar as
it asserts the state common law tort of malicious prosecution;
7. Count IX is dismissed as to the DEA;
8. Count X is dismissed in its entirety;
9. Count XI is dismissed in its entirety; and
10. Count XII is dismissed in its entirety.
The claims that remain, then, are the following:
1. Counts I, II, and III, insofar as they allege claims of illegal arrest and
false imprisonment under 42 U.S.C. § 1983 and the New Jersey State
Constitution against the Elizabeth Police Officers (Defendants
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McDonough, D. Geddes, T. Geddes, Gianetta, and Joaquim);
2. Count VIII, insofar as it asserts claims of malicious prosecution under
42 U.S.C. § 1983 and the New Jersey State Constitution against the
Elizabeth Police Officers (Defendants McDonough, D. Geddes, T. Geddes,
Gianetta, and Joaquim); and
3. Count IX, insofar as it asserts claims of illegal arrest and detention
under Bivens and the Fourth Amendment against the DEA Agents
(Defendants Tarrentino and Strenske).
An appropriate Order accompanies this Opinion and will be entered.

Dated: April 21, 2014

(J

KEVIN MCNULTY
United States District Judge

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